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Wood, J.
This is the third appeal in this case. Flake v. State, 156 Ark. 34; Flake v. State, 159 Ark. 37. The facts developed by the testimony at each of the trials are substantially the same. For :a statement of these facts see Flake v. State, 156 Ark. 34. The law of the case is thoroughly settled and announced in the opinions on former appeals.
At the last trial the court gave the following instruction on the subject of the credibility of witnesses: “Now the law constitutes you the sole and exclusive judges of the weight and credibility of these witnesses; that is the province of the jury and not the court, to weigh this testimony. You determine the weight and credit that you will attach to the testimony of any witness who has testified in this case, by considering his demeanor upon the witness stand before you, the interest that he may manifest, if any be shown, in the result of your verdict, the reasonableness or absence of the reasonableness of the statements that he makes to you while under oath before you as a witness, the friendship for or bias or prejudice against the accused that may be manifested by such witness, and by these rules of law it is for you to determine just what weight and what credit you will attach to the testimony of each and every witness who has testified in this case. Weighed by these rules of law, if you find that any witness has wilfully sworn falsely to any material facts necessary to a determination of the issues raised by the return of the indictment and the different pleas interposed by the defendant, then you may disregard the testimony of such witness entirely, or you may believe that part which appears to you as being reasonable and true, which is corroborated or 'may have been corroborated by the testimony of other witnesses in whom you believe, and reject that part which you find unworthy of your belief. In other words, you can believe in whole or in part, just as the testimony of each witness has impressed you, weighed by these rules of law that I have declared to you in this case.”
The appellant made a general objection to this -instruction at the time it was offered, and also objected specifically to “that part of the instruction that told the jury that, if they found that any witness had wilfully ’ sworn falsely to any material fact, they might disregard the testimony of such witness in whole or in part.”
In Taylor v. State, 82 Ark. 540-545, an instruction was given which contained language substantially the same as that quoted above. Commenting upon this lan guage, Judge Riddick, speaking for the court, said: “This, in effect, tells the jury that, if a witness has wilfully sworn falsely to any material fact, the jury may disregard his entire testimony, even though they should believe part of it to be true. But the jury has no right to reject any material testimony they may believe to be true. If a witness testified to a wilful falsehood in reference to a material fact, the jury should take that into consideration in weighing other portions of his testimony ; and if they conclude that none of his testimony is worthy of belief, they should reject it; but they have no right to reject any truthful statement simply because the witness has told a falsehood about something else. It may happen that a witness, because he wishes to shield himself, or for some other reason, may fail to tell the whole truth, may be guilty of a wilful misrepresentation as to his own interest in or connection with the crime, and yet, as to other facts throwing light on the crime, he may give evidence of the greatest importance. The jury, after being satisfied that he has sworn falsely as to any material matter, should scrutinize his other statements with great caution before accepting them as true; but, when once they become convinced that he has told the truth, they should not reject it.” While thus condemning the instruction because of similar language and the same purport of that above quoted, the court did not reverse the judgment because of the error in giving the instruction containing the above language. The court said: “But, while this instruction was not strictly correct, there was no objection to it, and the language used was probably the result of inadvertence or oversight, which did no harm.”
In the case of Griffin v. State, 141 Ark. 43-45, in construing an instruction couched in somewhat similar language to that under review, we said: “Taking the instruction as a whole, its purpose, as we view it, was to tell the jury that, if they believe that any witness had wilfully testified falsely to any material fact in the case, they were at liberty to disregard the whole of such testimony if they believed the same to be false, or any part of the same which they believed to be false.” In that ease there was no specific objection to the instruction offered. Concerning this, we said: “If counsel conceived, at the trial of the cause, that the instruction is open to the suggestion which he here urges against it, it was his duty to have called the attention of the trial judge to such instruction by a specific objection. If they had done this, the court doubtless would have so framed the instruction as to have contained the exact language the omission of which, they now insist, renders the instruction erroneous. The instruction is not one so inherently defective as to fall under the condemnation of being an erroneous and misleading-declaration of law. In the absence of specific objection, the giving- of the instruction as written was not a reversible error.”
In Johnson v. State, 127 Ark. 516-532, the appellant asked the court to give an instruction similar in purport to that under review, which the trial court refused.' This court held that the instruction, taken as a whole, was not the law, and that the trial court did not err in refusing to grant it.
In Johnson v. State, 120 Ark. 193-203, an instruction was given containing similar language to that in the first part of the instruction under review, ' and we refused to reverse the judgment because of such ruling. There was no specific objection calling the court’s attention to the particular defects complained of.
In Bruder v. State, 110 Ark. 402-410, an instruction was given containing- three paragraphs on the subject of impeachment and credibility of witnesses, and concluded with the following- language: “If the jury believe any witness has sworn falsely to any material fact, they may disregard the whole or any part of his testimony.” While condemning this language, we held that it was not reversible error, because no specific objection was made to such paragraph. There was a general objection to the instruction as a whole.
In Burgess v. State, 108 Ark. 508, an instruction was given on the subject of impeachment and credibility of witnesses, and we held that the instruction was not .reversible error because its language was not objectionable, and there was only a general objection made to the instruction.
In Bloom v. State, 68 Ark. 336, the following instruction was given: “If you believe that any witness has sworn falsely as to any material fact, you are at liberty to disregard his entire testimony, or you may receive that portion you may believe to be true, and reject that you may believe to be false.” The court held that the giving of the above instruction was error, and reversed the cause. The court said: “The instruction is erroneous and prejudicial, according to the decision in the case of Frazier v. State, 56 Ark. 244, which holds that, before you can disregard the testimony of a witness for false swearing, the false swearing must be wilfully done.”
In the last two cases we quoted the following language from the opinion of Judge Hemingway in the case of Frazier v. State, supra: “False swearing as to a particular fact warrants a jury in discrediting the entire testimony of a witness only when it is wilful, and the instruction is- incomplete in omitting this. Moreover, the instruction might be construed as warranting a jury in disregarding testimony which it believed to be true, if it emanated from a witness who had sworn falsely to some other fact. Thus construed, it does not reflect the law, for, although a witness is found to have wilfully testified falsely to a material fact, the jury will not be warranted in disregarding other parts of his testimony which appear to be true.” But the court did not reverse the judgment in the Frazier case on account of the error in giving the instruction.
Therefore, the effect of all these holdings of onr court is that an instruction couched in language like that here under review, or of the same purport, does not strictly and accurately state the law, but the refusing of such an instruction is not reversible error, because it is not error for the trial court to refuse an instruction that does not correctly declare the law. And the giving of such an instruction is not error in the absence of an objection calling attention to the specific language to which the objection is made and which is claimed to be erroneous and misleading. The appellant specifically called the attention of the trial court to such language of the instruction under review. It was therefore the duty of the trial court, under the rule established by the above decisions, to have the instruction corrected so as to meet these objections and to frame the instruction in conformity with the law as declared in the above decisions. Where a specific objection is offered, as was the case here, the jury should be plainly told that, if they find that any witness has wilfully sworn falsely to any material fact, they may disregard the whole of his testimony if they believe same to be false, or any part of the testimony of such witness which they believe to be false; but if they believe that any portion of the testimony of a witness is true, they should not ignore or reject such portion, even though they believe that the witness has wilfully sworn falsely to some other material fact in the case. It follows that the court' erred in giving the instruction under consideration.
2. The appellant contends that the court erred in giving instructions which ignored the right of appellant, in self-defense, to act upon the circumstances as they appeared to him, and in refusing the prayer of appellant in which he asked the court to tell the jury that he had such right, if, without fault or carelessness on his part, he honestly believed that he was in danger of death or great bodily harm at the hands of the deceased. The court did not err in its ruling on this phase of the case, because the undisputed evidence, as we view the record, did not raise the issue as to whether the appellant acted upon appearances. The testimony of the appellant, which was all the testimony bearing on that issue, was to the effect that, immediately prior to his striking the deceased, the deceased struck at Trim, with an axe, and he knew that the deceased was going to kill him unless he did something. He said, “I knew he was going to kill me; he dropped his saw, turned on me with the axe, and I think it was time to do something.” This testimony, if believed by the jury, warranted a verdict of not guilty on the ground that appellant acted in the face of a real and not an apparent danger. The deceased, if the appellant told the truth, was attacking appellant with an axe at the time he struck the fatal blow. Therefore instructions on the issue of appearances or an apparent danger would have been abstract. The instructions of the court fully and correctly declared the law of self-defense applicable to the fasts of this record. See Pendergrass v. State, 157 Ark. 364, at pp. 377-78.
3. The instructions of the court on the defense of insanity were likewise correct. They conformed substantially to the doctrine of this court on that subject in the cases of Bell v. State, 120 Ark. 530-538; Hankins v. State, 133 Ark. 38; Kelley v. State, 146 Ark. 509; Woodall v. State, 149 Ark. 33.
4. Counsel for appellant have not insisted in their brief that the ruling of the court in giving its instruction No. 9, on its own motion, on the subject of reasonable doubt, is a reversible error. But in view of a new trial, inasmuch as the same instruction might be given again, we deem it proper to call attention to the fact that an instruction substantially in this form has been condemned in the case of Darden v. State, 73 Ark. 315-320, and also in Gilcoat v. State, 155 Ark. 455. In the.latter case it was expressly held reversible error to give such an instruction.
For the error indicated in giving the instruction on the subject of the icredibility of witnesses the judgment is reversed, and the cause remanded for a new trial. | [
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Wood, J.
This is an appeal from a judgment sentencing the appellant to nine months’ imprisonment in the State Penitentiary upon a conviction of involuntary manslaughter. The testimony for the State tended to prove that on the 15th day of December, 1922, about three o’clock p. m., the appellant was operating and in control of an automobile on the public highway in Arkansas County; that he was drunk,-and, while running the car at a speed of from twenty-five to thirty-five miles an hour, he came in contact with one Ed Miller, who was driving his team hitched to a wagon loaded with rice. Miller at the time was walking by the side of his team, and the collision threw him under his wagon, the wheels of which ran over his neck, causing his death. The testimony on behalf of the appellant tended to prove that he was unconscious at the time, as the result of voluntarily drinking what he thought was whiskey.
1. The appellant alleges three grounds for the reversal of the judgment. First, that the court erred in refusing to quash the indictment. The record shows that Joe Melton, the official stenographer of the grand jury of the Seventeenth Judicial Circuit, was in the grand jury room when the grand jury had under consideration the charge against appellant embraced in the present indictment. He testified that he took down the testimony of the witnesses. They had voted many times, and, when he saw they were going to vote the last time, he left the room and went down to get the prosecuting attorney to prepare the indictment. He requested the foreman of the jury that they should vote the indictment while he was absent. When he came back with the indictment, the foreman informed him that they had voted on it while he was away. The testimony of the foreman of the jury shows that the stenographer was absent when the final vote was taken, but they had voted many times possibly while he was present. Section 2996 of Crawford & Moses’ Digest provides: “No person except the prosecuting attorney and the witnesses under examination are permitted to be present while the grand jury is examining a charge, and no person whatever shall be present while the grand jury is deliberating or voting on a charge. ”
Act No. 42 of the Acts of 1917, page 202, provides for a court stenographer for the grand juries of the Seventeenth Judicial District of the State of Arkansas. After describing his duties in detail in §§ 2 and 3, § 3 concludes with the following language: “And said stenographer’s presence in the grand jury room shall be allowed at all times, and he shall be subject to the same penalties as are now or may hereafter be prescribed by law for divulging any of the secrets or proceedings of the grand juries.” This court has declared'in several cases, in effect, that, under the provisions of the general law (% 2996, supra), the presence of any one in the grand jury room other than the jurors themselves, while they are deliberating or voting on a charge, would be ground for quashing the indictment on that charge. See Bennett v. State, 62 Ark. 516; Richards v. State, 108 Ark. 89; Tyner v. State, 109 Ark. 145. In these cases this court, in effect, negatively at least, has held that it is within the power of the Legislature to prescribe that no one shall be present in the grand jury room during the time when the jurors are deliberating or voting on a verdict. It is equally within the constitutional power of the Legislature to declare that parties other than the grand jurors may be present while the jurors are deliberating or voting upon a charge. The whole subject is within the power of the Legislature, and there is no constitutional restraint upon such power. The wisdom and policy of such legislation therefore must prove itself to the Legislature. It is impossible to escape the conclusion that the language of special act No. 42 of the Acts of 1917 repeals, by necessary implication, the provision of the general law above quoted on the subject, as' applicable to the Seventeenth Judicial District.
The presence of the stenographer in the grand jury room “at all times” necessarily excludes the idea that his presence cannot be allowed during the time the grand jury are deliberating or voting on a charge. The intent must be derived from the language used, and its meaning is too plain to admit of any other construction. The special act expressly repeals all laws or parts of laws in conflict therewith. Repeals by implication are not. favored, and are never allowed unless there is an irreconcilable repugnancy between the later and the older statutes. Bank of Blytheville v. Willis, 76 Ark. 296, and cases there cited; Bartlett v. Willis, 147 Ark. 374. See also Bank of Blytheville v. State, 148 Ark. 504. Here there is a direct and irreconcilable conflict between the provisions of the general law and the provisions of the special act as applied to the Seventeenth Judicial District. So, the latter repeals the former, in so far as it applies to that district. The court therefore did not err in refusing to quash the indictment because of the presence of the stenographer while the grand jury was deliberating on the charge 'in the indictment.
2. Section 6837, Crawford & Moses’ Digest, provides that, if the jury for the trial of any case cannot be obtained from the panel of petit jurors, bystanders shall be summoned, as the court may direct, to complete such jury. After the regular and special panels selected by the jury commissioners had been exhausted in the effort to impanel the trial jury, the court ordered the sheriff to go to McFall and Keaton Townships and summon twenty-five men to serve as jurors, and directed him “to get good men possessing the qualifications as petit jurors.”
Appellant contends that this direction of the trial court was reversible error. This court has held that an accused person is not entitled to have any particular jurors try his case, and that his rights are fully protected if he secures a panel summoned under the orders of the court, who, at the time they are called to answer as to their aualifications. are found to be duly qualified. McCain v. State, 332 Ark. 501. We have also held tliat it was not reversible error to refuse to direct the sheriff, at the instance of the accused, to summon as bystanders persons present in the courtroom while the trial jury is being formed. Pate v. State, 152 Ark. 553. In the last case, construing the statute (§ 3Í45) which requires the court to order the sheriff to summon bystanders to complete the jury after the regular panels have been exhausted, we held “that by ‘bystanders’ is meant electors possessing the qualifications ■ of jurors, and in their selection the body of the county is open and available to the sheriff.” To be sure, the same rule's for the selection of -bystanders as jurors are applicable to the State as well as to the defendant. But the direction of the court that the sheriff summon jurors from some particular township or townships is not in conflict with any provision of the law requiring an impartial jury to be selected. The test, after all, is as to whether the jurors selected anywhere in the county are found, on their voir dire, to possess the necessary qualifications as jurors. In the exigencies (of '.trials the presiding judge must necessarily be vested with a wide discretion in the matter of impaneling the jury, after the panels provided by statute are exhausted, so as to expedite the business of the court. The presumption must be indulged always, until the contrary is shown, that the trial court did not abuse its discretion in the manner of impaneling the jury. For aught that appears in this record to the contrary, it may have been exceedingly important to have directed the sheriff to summon a jury from that portion of the body of the county where jurors could most likely be obtained, who had not formed or expressed an opinion on the merits of the case, because of residence remote from the immediate scene of the alleged crime. There was therefore no error in the ruling of the court in the matter of directing the sheriff to summon special veniremen to complete the trial panel.
3. The appellant prayed the court to instruct the jury as follows: “If you find from the evidence in this case that the defendant drank what he thought was whiskey,“but the effects upon the defendant were of such nature as to paralyze his mind and was contrary to the effect of whiskey, and that he was crazed by said dope to that extent that he did not know what he was doing, then and in that event the defendant would not be guilty of the crime charged, even though you find he did, while operating his automobile, strike and knock the deceased under a wagon, which ran over and killed him.” The court rejected the prayer, to which ruling the appellant duly excepted. The intent to commit the offense of involuntary manslaughter of which the appellant was convicted is not an ingredient of the crime. Involuntary manslaughter is, as its name implies, an involuntary killing done without any intent to kill, but in the commission of some unlawful act, or in the improper performance of some lawful act. Tharp v. State, 99 Ark. 188; Trotter v. State, 148 Ark. 466.
The testimony of the appellant shows that he “voluntarily drank the dope” which produced his temporary besotted and unconscious condition. No effort is made to prove that the appellant, at the time of the killing, was afflicted .with any disease of the mind, either permanent, temporary, or periodical, such as delirium tremens, mania a potu, or dipsomania. Casat v. State, 40 Ark. 511. It appears that the killing was the result of reckless, wanton, and careless driving of his automobile, while the appellant was unconscious, as the result of beastly intoxication caused by his own voluntary drinking. Voluntary drunkenness was no excuse for the' crime. The court did not err in refusing appellant’s prayer for instruction. See Bowen v. State, 100 Ark. 232; Madding v. State, 118 Ark. 506; Alford v. State, 110 Ark. 302; Carter v. State, 135 Ark. 169.
There is no reversible error in the record. Therefore let the judgment be affirmed. | [
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McCulloch, C. J.
Appellees purchased two hundred bales of cotton from appellants during the month of January, 1920, at thirty-nine cents per pound, and it was agreed that payment for the cotton should be made according to gin weights, but that final- settlement was to be made in accordance with compress weights after the cotton should be shipped by appellants to appellees- and received by the latter. ' Appellants shipped the cotton by rail from Okemah, Oklahoma, to Fort Smith, consigned to themselves, and mailed to appellees a draft for the price, according to gin weights, with bills of lading attached. The shipment was diverted from Fort Smith to Van Burén on account of the embargo at Fort Smith, but the testimony introduced in the present litigation establishes the fact that this diversion was not made by the carrier at the instigation either of the appellees or appellants. Appellees paid the draft and took up the bills of lading, and caused the cotton to be weighed at the compress at Van Burén. According to these weights there was a loss in the weight of the- cotton sufficient to amount to the sum of $683.18 at the purchase price paid for the cotton, -and appellees instituted this action in the -circuit court of Sebastian County (Fort Smith District) to recover this amount.
Appellants moved to quash the service on the ground that they resided in the State of Oklahoma but were served with process in Sebastian County, and that.they were induced by appellees to go from their place of residence in Oklahoma to the city of Fort Smith for the ostensible purpose of adjusting the differences between the parties, but that plaintiffs fraudulently took advantage of their presence thus obtained in Sebastian County to cause process to be served on them in this case.
The court heard oral testimony on the motion to quash the service, and overruled the motion, whereupon appellants filed their answer, and also filed a cross-complaint against the Missouri Pacific Railroad Company, the carrier of the cotton, over whose lines it was shipped, and asked that the latter be made a defendant in the case, which was done.
There was a trial of the issues before the jury, which resulted in a verdict in favor of' appellees for the amount claimed, and judgment was rendered accordingly.
It is first contended that the court erred in refusing to quash the service, but we must treat the motion to quash as having been waived by reason of the fact that appellants, without preserving their rights in that respect by an express reservation in their subsequent pleadings, filed an answer as well as a cross-complaint, thus voluntarily submitting to the jurisdiction of the court. This constituted a waiver, and it is too late now to raise the question of insufficiency of the service, or fraud in procuring the service. Tindall v. Layne, 139 Ark. 590.
Objection is made to portions of the court’s charge on the ground that it failed to submit appellants’ theory of the case to the jury. There is very little, if any, material conflict in the testimony concerning the contract between the parties and its effect. Appellees were engaged in the cotton business in Muskogee, Oklahoma, and appellants were engaged in the same business at Okemah, Oklahoma, and during the month of January, 1920, the parties entered into an agreement for the sale of two hundred bales of cotton by appellants to appellees at the price of thirty-nine cents per pound, the price to be paid according to gin weights, subject, to final adjustment in accordance with compress weights after shipment and delivery to appellees. It was agreed that the cotton should be shipped by rail to Fort Smith, consigned to appellants’ order, with draft on appellees attached to the bills of lading. There is a slight difference in the statements of the parties as to the precise words of the agreement, but little difference as to the effect. Mr. Vann, one of the appellees, who conducted the negotiations with appellants, testified that there was an embargo on compresses in that locality, except at Fort Smith and Van Burén, and that he expressed a willingness to have the cotton shipped to either place, but that appellants claimed that they had had trouble with weig’hts at the Van Burén compress, and preferred to ship to Fort Smith, to which he readily agreed. Mr. Barry, one of the appellants, testified that he objected to shipping to Van Burén, and declined to do so on account of having had trouble with the compress weights at that place, and that he insisted on shipping the cotton to Fort Smith, to which Mr. Vann agreed.
The evidence is sufficient to show that appellants were unwilling to ship the cotton to Van Burén, and that there was an express agreement that it was to be shipped to Fort Smith, consigned to appellants’ own order.
There is no testimony at all that either party was responsible for the diversion of the shipment from Fort Smith to Van Burén.
Counsel for appellants contend that the court excluded their defense by refusing to give the following instructions:
“1. If you believe from the evidence that defendants sold to plaintiffs two hundred bales of cotton, to be weighed at Fort Smith compress, and with the distinct understanding that the cotton was not to be weighed at Van Burén compress, and was delivered to plaintiffs at Okemah, Oklahoma, and you further believe that said cotton was weighed at Van Burén, Arkansas, without the consent of Barry Bros., then your verdict should be for the defendants.”
“3. You are instructed that the defendants had the right to sell the cotton in question with a stipulation or agreement that they would not be bound by the weights of said cotton if weighed at the compress at Van Burén, Arkansas, and if you find from a preponderance of the evidence that this agreement was made at or before the time of sale, and that the defendants, after said sale was made, and at the request and under the direction of the purchasers, Armstrong-Vánn & Co., delivered said cotton to the Fort Smith and Western Railroad at Okemah, Oklahoma, to be delivered to Fort Smith, Arkansas, and was thereafter, without fault on the part of the defendants, diverted to and weighed at the compress at Van Burén, Arkansas, then the defendants would not be bound by such weights as shown by the Van Burén compress, nor liable to the plaintiff for any damage on account of loss of weight, if any is shown.”
There was no testimony tending to show that there was a delivery of the cotton to appellees at Okemah, Oklahoma, therefore the court was correct in refusing to give this instruction on that account. The undisputed evidence gs that the cotton was to be shipped to appellants’ own order at Fort Smith, and delivered there to appellees, upon payment of the draft attached to the bills of lading. That instruction was also erroneous, as will be seen in the discussion of the other instructions hereafter, in denying appellees recovery on account of loss in weights merely because the cotton was not weighed in Fort Smith.
Instruction No. 3 was erroneous in telling the jury that the shipment of the cotton to Fort Smith constituted a delivery to appellees, and that for that, reason appellees could not recover for loss of weights except as shown by the compress weights at Fort Smith. According to the undisputed evidence, shipment was made to appellants’ own order, and, nothing else being proved to manifest the contrary intention of the parties, this constituted a reservation of the title, and the delivery to the carrier was not a delivery to the purchaser. In a recent case we said that “where the seller consigns the shipment to his own order, thus.manifesting his intention to reserve his dominion and right of disposition over the property, nothing else appearing to manifest an intention to pass the title, such consignment does not constitute a delivery to the purchaser.” Richardson v. Fowler Commission Co., 154 Ark. 92, and cases there cited. Appellants having reserved their dominion and control over the cotton by consigning it to their own order at Fort Smith, made the carrier their own agent, and they alone are responsible for the unauthorized diversion. Appellees were therefore not bound by the agreement to settle according to the Fort Smith weights, unless appellants gave an opportunity to ,carry out that agreement by re-weighing the cotton at Fort Smith. There is no 'contention that appellants gave an opportunity to re-weigh the cotton at Fort Smith, and they could not, therefore, escape liability for loss in weights merely because the carrier, as their agent, had diverted the cotton to another place. The agreement was, as before stated, to make final settlement upon the compress weights at Fort Smith. The agreement was that the cotton was to be shipped to Fort Smith, and that the compress weights were to be the basis of final settlement, and this necessarily meant the compress at Fort Smith. There was no agreement that the parties should be bound by the compress weights at Van Burén, or at any place other than Fort Smith, but, since the cotton was not delivered to the compress in Fort Smith, appellees were entitled to recover for actual losses in weight. The parties were not bound by the compress weights at Van Burén unless they were correct weights, and the burden of proof was on appellees to show that those weights were correct.
It is insisted that the court erred in giving the following instruction at the instance of appellees:
“9. Even though you may find that it was a part of the agreement of sale, if you so find, that the cotton was to be shipped to Fort Smith, yet if you believe from a preponderance of the evidence that there was actual loss in weights, the defendants would be liable for such loss in weights, if' any shown by the evidence, and the plaintiff would be entitled to recover the value thereof according to the sale price, together with interest at the rate of six per cent, per annum. ’ ’
This instruction was in accordance with the views of the law which we have just expressed, and there was no error. It told the jury, in substance, that, even though the cotton was to be shipped to Fort Smith, if there was, in fact, an actual loss in the weights, appellants would be liable for the loss, based on the price of the cotton. There was, as before stated, no issue of fact as to the appellees being responsible for the diversion of the shipment.
Objection was also made to the following instruction given by the court of its own motion:
“A. If you believe from the evidence defendants sold plaintiff certain cotton, and it was agreed that said cotton was to be weighed at a certain point, and settlement for loss of weight, if any, was to be made accordingly, then the burden of proof rests upon the plaintiff to show what the loss of weight would have been if said cotton had been weighed as agreed.”
If there was any error in this instruction, it was not to appellants’ prejudice. As we have already said, the burden was on appellees to prove the actual weight of the cotton, as the parties had not agreed to be bound by the Van Burén compress weights, and were not bound. But the instruction was too favorable to appellants in telling the jury that, if there was an agreed place for the re-weighing of the cotton, the burden would be upon appellees to show what the weights would have been if it had been re-weighed there. Appellees were not bound to cause the cotton to be weighed at the agreed place, after it had been diverted by the carrier, without their consent, therefore they were not bound to show what the weights would be at that place before they could recover. They had the right to ascertain the actual weights, and were entitled to recover on that basis. Appellees introduced the Van Burén compress weights, and proved that they were correct, and the recovery is authorized, based on these weights, not because there was any agreement to be bound thereby, but because the weights were founl by the jury to be correct.
Finally, it is insisted that the court erred in permitting appellees to introduce testimony as to the good reputation of the man who weighed the cotton at Van Burén. The answer to this contention is that appellants themselves attached the reputation of the weigher at Van Burén, and this invited the introduction of the testimony on that subject. They are therefore in no attitude to complain of the error of the court in permitting testi mony in that direction to be introduced. In other words, the error was invited by appellants themselves.-
No error' is found in the record, and the judgment is therefore affirmed. | [
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Smith, J.
This is a suit by Mrs. Hodge for divorce, and for the custody of an only child, a girl who was five years old at the time of the institution of the suit, and for an allowance for the support of the child, and for costs, and other relief. It was alleged that the defendant had refused and neglected to provide for plaintiff, or to support their child, and that he had been guilty of such conduct as to make plaintiff’s condition as defendant’s wife intolerable. At the time of the institution of this suit plaintiff was residing in Saline County with the child, and she earned her own living and that of the child by teaching school. She and defendant were married in Howard County, in 1915, where they lived together until March 12,1921, since which time they have lived apart, and the defendant continued to reside in Howard County. After this suit was instituted defendant brought; in Howard County, a suit for divorce, alleging desertion as ground therefor, but this suit appears to have been abandoned, and defendant filed an answer in his wife’s suit, in which he denied all the allegations of her complaint.
•A large amount of testimony was taken, and, on the final hearing, the court dismissed the complaint as being •without equity, but awarded the custody of the child to the mother, with the right of the father to visit it, and directed him to pay five dollars per week for the support of the child, but made no allowance for suit money, and the parties were directed to pay their own costs, and both have appealed.
It appears that Mr. Hodge at one time brought suit against one Brooks for the alleged alienation of his. wife’s affections, but there was a verdict and judgment against him in that suit, which was affirmed by this court on appeal. In that case Hodge attempted to show that Brooks had alienated his wife’s affections, and, in support of the suit, he made inquiry of two neighbors touching their observation and knowledge of the conduct of Brooks towards Mrs. Hodge. These persons were unable to furnish Hodge any information of value, but Mrs. Hodge was advised of the inquiry, and she assigns this suit and this inquiry as a part of the conduct on Hodge’s part which has rendered her condition as his wife intolerable. The point, however, which was most fully devel^■ned and was most urgently pressed was the failure of defendant to support her and the child.
Mrs. Hodge admits that she left her husband, and that she no longer entertains any affection for him, but she says the estrangement resulted from his lack of affection for her, and from his indolence.
Mr. Hodge does not charge his wife with having had any immoral relations with Brooks, nor did he do so in his suit for alienation of affections, but he did charge then, and now asserts, that it was Brooks who alienated his wife’s affections from him. Brooks testified1 as a witness in the present case, but he appears to have passed out of the lives of the parties, except in so far as he is charged with being responsible for the original separation. Mrs. Hodge left the county where both her husband and Brooks resided, and is now living many miles away from both of them..
Hodge admitted that he had contributed but little to the support of Ms wife and child while they lived together, but he sought to excuse his- failure so to do by saying that he was an invalid; that he had suffered a sunstroke, from which he had never fully recovered, and that he was able to work only in cool weather, and was able only to do a limited amount of work. Mrs. Hodge testified that her husband’s failure to be employed was due to a lack of inclination to work, rather than to any inability to do so, and that shé had frequently found little jobs for him, which he was able to do but which he refused to take. She further testified on this subject that her husband was not confined to his bed or to Ms home, and that he allowed and required her to earn the living; for him as well as for herself and the child, and that she did tMs by teaching, by keeping boarders, by sewing, and, at one time, by working in the field. Mrs. Hodge admitted that she did not intend ever again to live with her husband, and gave as her reason therefor that she had all she could do to make a proper living for herself and for the child. She testified, however, that she was well and strong and able to work and support the child, and that she earned seventy dollars per month teaching school, and that she found other employment when she was not engaged in teaching.
Mr. Hodge complains of the action of the court in requiring him to contribute to the support of the child while deprived of its custody. He insists that the custody of the child be awarded him, and that, if this were done, his wife would return to him and their home would be reestablished. He admitted, however, that he had no ■ home to which to take the child, and proposes to take it, if his wife will not again live with him, to the home of his father and mother, who are seventy-five and sixty-five years old, respectively.
We are unwilling to disturb the finding of the chancellor in dismissing the complaint as being without equity. Plaintiff’s husband is not questioning her character, as she insists. Upon the contrary, he is resisting her application for divorce, and earnestly expresses the hope and desire that she return to him as his- wife, and the record is convincing that he genuinely desires her to do so. It does appear that he does not work regularly, and did not work as much as he might have done during the time he and his wife were living together, but he is unquestionably not able to work at all times, and, as is pointed out in the case of Arnold v. Arnold, 115 Ark. 32, non-support is not made a ground for divorce by our statute.
We approve the decree in regard to the custody of the child. Mr. Hodge has no home to which the child might be carried, except that of his aged father and mother, unless his wife consents to live with him again. She declares she will never do this, 'because she is unable to support her husband in idleness, and she should not be required to do this as a condition upon which she may retain the custody of the child. All the testimony shows that the child is being well cared for, and is living under good influences.
We also approve the allowance of five dollars per week for the support of the child. Certainly this is little enough, unless the father is to be relieved of all responsibility in that respect. But we cannot say that his earning capacity is such as to require him to pay a larger sum.
Because of the husband’s lack of earning capacity, and the lack of merit in the wife’s suit for divorce, the action of the court in refusing to allow a fee to the wife’s attorney will 'be affirmed, and no fee will :be allowed on this appeal; and the decree in regard to the costs below will be affirmed, but the costs of the appeal will be assessed against appellant. | [
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Hart, J.
This appeal questions the jurisdiction of the circuit court to hold a special term to consider an appeal from the judgment of the county court assessing benefits upon the lands of William Kirten, situated in the Chicot Drainage District.
It appears ‘from the record that the Chicot Drainage District was created by act No. 405 of the Acts of the General Assembly of the State of Arkansas of 1920, and that it has elected to become a drainage district under the general drainage acts of 1909.
Under the statute, certain landowners in the drainage district, including William Kirten, filed in the county court their written objections to the assessment of benefits made against their lands, and asked that the assessment be set aside as illegal and void for the grounds stated in their petitions. The county court found against their contention, and refused to set aside the assessment of benefits made against their lands. Judgment was entered accordingly, and the petitioners appealed to the circuit court.
At the March term, 1923, of the Chicot Circuit Court, by consent, the appeals from the county court above referred to were continued for the term. On June 18, 1923, the commissioners of the Chicot Drainage District presented a petition to the judge of the circuit court, setting forth grounds for the calling for a special term of the circuit court to consider the appeals taken by the landowners from the judgment of the county court refusing to set aside the assessment of benefits made against their lands.
After conferring with the attorneys representing both parties, and after due consideration of the petition, the circuit judge of the Chicot Circuit Court ordered the circuit court to convene in special session at nine o’clock on Wednesday, the first day of August, 1923, for the purposes set out in the petition. It was also ordered that the clerk should spread the order of record and docket all of the cases referred to in the petition, and issue subpoenas to all parties to the suit, and the petitioners were required to give notice of the order to attorneys representing litigants in the suits. This order was signed by the circuit judge on June 18, 1923. On the first day of August, 1923, the circuit court was duly convened, and proceeded to call said cases for trial. The landowners appeared specially for the purpose of questioning the jurisdiction of the court to hold a special •term for trying the causes above set forth. Their plea to the jurisdiction of the court was overruled, and, after hearing proof in the matter and the argument of counsel, their appeals from the county court were dismissed.
The correctness of the decision of the circuit court as to its jurisdiction in the premises is the only question presented for review in this court. As we have already seen, the drainage district perfected its organization under the general drainage statutes, notwithstanding it was originally created by the special act of the Legislature. The special term of the circuit court was called pursuant to the provisions of § 3647 of Crawford & Moses’ Digest, and is a part of our statutes under the title of “Alternative System of Drainage Districts.” The section reads as follows: “The county and circuit court may, at the request of the commissioners of the district, at any time hold special sessions for the purpose of acting upon any petition or report, or making any order in a matter involving any drainage district.”
The principal reliance of appellant for a reversal of the judgment is that the section in question does not refer to appeals from the county court questioning the correctness of the drainage assessments, but that it only refers to orders made by the circuit court in forming drainage districts.
Section 3607 provides that, if the lands in the drainage district' are in one county, the county court shall have power to establish the district, and that, if the lands in the drainage district are in more than one county, the application shall be addressed to the circuit court of either county, and all proceedings shall be had in such circuit court.
It is claimed that, when this section is construed in connection with § 3647, the latter section only gives jurisdiction to the circuit court where the drainage district is situated in two counties and the application to create the district is made in the circuit court. We do not agree with counsel in this contention. The language of the section does not carry on its face any such limitation or restriction, and we do not see any reason for placing such limitation upon the section, because jurisdiction for the formation of the district is given to the' county court where the lands in the drainage district are situated in one county, and in the circuit court where the lands in the drainage district are in more than one county. The original drainage act in question, which is called “An Alternative System of Drainage Districts,” in force at the time of its passage, was enacted by the Legislature in 1909. See Acts 1909, p. 829. This act was amended by the Legislature of 1913. See Acts of 1913, p. 738.
Section 15 of that act provides for special sessions in county and circuit courts in certain cases, and is § 3647 of the Digest.
' The evident purpose of the section was to facilitate the establishment of drainage districts, and the hearing of the appeals upon the assessment of benefits is just as much a part of the formation and organization of the distriqt as the other proceedings. The language of the section is broad enough to include appeals from the judgment of the county court in the matter of assessing benefits, and we can perceive no reason for limiting its scope in that respect.
Li the absence of some language of a qualifying nature, we feel constrained to hold that the language of the statute is broad enough to include appeals like the one in this case. The concluding part of the section is very broad, and provides for a special session of the county and circuit court for making any order in a matter involving any drainage district.
Again, it is insisted that the circuit court could not acquire jurisdiction on appeal, because, by consent of the parties at the March term, 1923, the cases had been continued until the next regular October term of the court. We cannot perceive how the consent to a continuance until the next term could give either party any greater rights in the premises than eonld he secured by a continuance by operation of law or by reason of the court having adjourned for the term without trying the cases. The only object of entering an order continuing eases by consent is that the parties may be excused from further attendance upon the court. In other words, the court might set aside the order, upon proper notice, and try the cases at that term of the court. If such course was not pursued, and court should be adjourned for the term, the order for a continuance amounts to no more than if the cases had been continued by operation of law because they had not been reached on the calendar before the end of the term.
In this connection it may be stated that a statute authorizing the county judge to hold a special term of the county court when the good of the county demands it, has been held valid, and is a power to be exercised largely in the discretion of the county judge. Wilmans v. Bordwell, 73 Ark. 418.
Ag&in, it was held that the Legislature may pass a statute prescribing that a court shall be open at all times for the transaction of business of an urgent character, and that the act of the judge in vacation in such cases is the act of a court. Wilmot Road Imp. Dist. v. DeYampert, 159 Ark. 298.
The special session of the circuit court in question was held pursuant to the statute, after due notice, to all interested parties, and we are of the opinion that the authority for holding the special session is included in the phrase, ‘ ‘ or making any order in a matter involving any drainage district.”
It follows that the judgment will be affirmed. | [
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McCulloch, C. J.
Appellee is a road improvement district created by a statute enacted at the regular ses-.sion of the General Assembly of 1923 (Special Acts 1923, p. 1721), the road to be improved starting a short distance west of the town of McGehee, in Arkansas County, thence running to McGehee and through the town, and thence northeasterly parallel with the line of the Missouri Pacific Railroad, to the town of Watson, and from the town of Watson two routes running north, .one to Toncapin and the other to a point designated as Moore’s Bridge across Red Fork Bayou, in section 15, The statute provided for a referendum election for the majority of landowners to vote to determine whether or not there should be operations under the statute, and it provided that at said election, -in addition to the question of adoption of the statute, the voters should select which of the two routes from Watson to Toncapin or to Moore’s Bridge shall be adopted.
The statute describes the boundaries of the district ■as including all lands in Desha County “south of the Arkansas River and west of the Mississippi River, and situated within three miles of any part of the road hereinafter described to he improved, laid out and maintained.” The section in which the description of the territory is given 'Concludes as follows: “Any quarter section lying wholly or in part within three miles of the road is included within the district.” The statute also prescribed how the election should be held to determine the question of adoption of the statute, and the selection of the route north of "Watson.
Appellant is the owner of property in the district, and he instituted this action to enjoin the commissioners from proceeding, alleging that the statute is void. The complaint alleges that an election was held pursuant to the terms of the statute, and that a majority voted in favor of adopting the statute and selecting the route from Watson to Toncapin. The chancery court rendered a decree declaring the statute valid, and an appeal has been prosecuted to this court.
The first contention of counsel for appellant is that the statute is void by reason of the provision that, where any part of a quarter section lies within three miles of the road, the whole should be included in the district. The argument is that this makes the taxes discriminatory and arbitrary and might result in including an entire quarter section and excluding other lands equidistant from the road to be improved. It cannot be seen, from the face of the statute, that this rule could result in any discrimination in favor of or against any lands, and no reason is given in the pleadings why it is discriminatory. No case is presented now where lands are included, with other intervening lands "excluded. The statute itself does not fix the assessments of land, but provides for assessments of benefits to be made by the commissioners. We see no reason why this provision of the statute should result in any unjust discrimination, so as to afford grounds for declaring the statute, void. House v. Road Improvement District No. 5, 158 Ark. 357.
It is next contended that the act is void because the description of the boundaries of the territory to be included is so vague and indefinite that it cannot be determined what lands are to be included, or what owners shall be permitted to vote in the election. Attention is called to the fast that the boundaries are not definitely fixed until the voters have decided, at the election, upon the route to be adopted north of Watson, either to Yoncapin or to Moore’s Bridge, and it is argued that, since the boundaries of the district are extended three miles from the road to be improved, it cannot be known until after the route is selected where the boundaries are. The situation with respect to the creation of this district is indeed unusual and presents a different question from anything heretofore presented on this subject. It is our duty, however, to give such construction to the statute as will render it valid, if it can be done under any reasonable interpretation of the language used.
It is clearly and unmistakably declared in the statute that the district shall be created and that the boundaries shall extend three miles from the road, and yet there is a provision for the selection of the route north of Watson. It will be remembered, from the recitals heretofore made, that the principal part of the road is the long stem running parallel with the railroad between McGehee and Watson, and there are two comparatively short prongs of the road, one running from Watson to Yoncapin and the other from Watson to Moore’s Bridge, and it is left to the choice of the resident landowners to determine which of those prongs should be adopted. We think that a fair interpretation of the statute is that it was intended to include the lands within three miles of each -of these roads north of Watson for the purpose of determining who should vote in the election. Both routes are tentatively selected by the statute, but the final selection is left with the voters, and it was the purpose of the framers of the statute to permit resident owners of land within three miles, of each of the two routes to vote in the election, but, after the selection of the route by a majority of the voters, then the route selected becomes the final one, and the boundaries of the district reach only to points on each side of the road three miles distant, which would exclude all lands within those boundaries. Thus interpreting the statute, it is a valid one, and it appears, from the face of the pleadings, that an election was held, and that the route to Yoncapin was adopted.
Since the decision of this case in the court below, act No. 5 of the extraordinary session of 1923, commonly designated as the general highway bill, has been enacted, containing a provision to the effect that, in all road districts created since the session of 1915, where no construction work has been done, nor contract let, nor bonds issued, before proceeding there shall be a reference to a vote of the owners, in number or in value, of lands in the district. The section .containing that provision also contains the following exemption:
“This section of this .act shall not apply to improvement districts where the act creating the improvement district or amendments to it provide for petitions of any maj-ority of property owners, or an election to ascertain their will, or to those districts where actual construction work has been begun, or contracts theref or have been made, or bonds sold .and delivered and are outstanding, before the passage of this act.”
It is contended that this provision of the late statute nullifies the organization of appellee road district under the prior statute, for the reason that the election provided for and held under the statute creating this district was .at variance with the provisions in the general highway bill for an election by all the landowners in the district, regardless of residence, either in number or in value. The general highway bill was passed since the decision below, but we take notice of its passage, and if its effect is to repeal the former act, it' is our duty to so declare, even though the new statute was passed while the appeal was pending here. We are of the opinion, however, that this 'district falls within the exemption specified in the general highway hill. It is true that the statute creating this district provided for an election to be participated in by only the resident landowners, whereas the general highway bill provides for an election by cwners of land, regardless of residence. There is no constitutional restriction, however, upon the lawmakers in providing how an improvement district shall be put into operation; the ascertained will of the majority is not required, but is only a privilege extended by the Legislature, or a condition upon which the act goes into effect. It was within the power of the lawmakers to leave it to the will of the resident property owners. The exemption in the general highway bill does not specify what kind of an election must have been held in order to come within its terms. The only specification is that districts formed under previous statutes, where there was a provision for a majority of property cwners to petition or to vote at an election, should fall within the exemption. This only meant that, where there had been a reference of the statute, in such mode and upon such terms and regulations as the Legislature saw fit to provide, and the election was held in accordance therewith, there was to be no requirement under the later statute for another election.
We conclude therefore that no election under the general statute was required, and that there had been a valid adoption of the statute by the voters.
This covers all the points raised in the case, and, as we find the decree to be correct, it is in all things affirmed. | [
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Wood, J.
This- action was instituted by Homer T. Hill against the city of Rector, Arkansas, to recover the sum of $305 alleged to be due him for his services as mayor of the city from January 11,1919, up to and including the 16th day of January, 1920, when he resigned. He alleged that the city of Rector is a city of the second class, and, upon a vacancy occurring in the ’ office of mayor by reason of the removal from the city of J. W. Dollinson, the legally elected mayor, the city council, at its first regmlar meeting, proceeded to elect Homer T. Hill as mayor, to serve for the unexpired term. After Hill’s resignation the city council issued a warrant in his favor for $105 which, he claimed, was to reimburse him for .money spent in visiting Little Rock and other places in the interest of the city and as compensation for his services in writing certain ordinances.
The appellee, in its answer, denied that Hill was elected mayor of the city of' Rector, and denied all other material allegations of the complaint, and, among other things, recited that “by special agreement made with the plaintiff and the members of the city council of defendant, that he would not charge any compensation for his services, he was permitted to act as mayor, and so continued to act until on or aboiit the 16th day of January, 1920, when plaintiff resigned his office as such, and that by reason of said agreement, even if plaintiff had been duly elected mayor of the city, he would not have been entitled to compensation, and defendant pleads said fact in bar of plaintiff’s right to recover.”
It is agreed by the parties that an ordinance of the city of Rector provides for the payment of a salary to the mayor in the sum of $300 per year.
The appellant testified that he was notified of his election as mayor of the city of Rector in 1919, and that •he duly qualified as such on the 11th of January, 1919'. He served the city as mayor from that date until January 16, 1920, and has not been paid anything on his salary as mayor. The warrant for $100, which he exhibited and introduced in evidence,. was given him the morning after he resigned. He had cashed the warrant. The warrant was drawn on the treasurer in favor of Hill for $100, and contained the following recital: “Given the 12th day of January, 1920, account of in full for services as mayor. ’ ’ It was signed by the recorder. Appellant testified that it was expressly understood by all members of the council present that the above warrant was being issued to him in payment for services rendered by him and expenses incurred in making’' a trip to Little Rock, Paragould, and Pine Bluff, Arkansas, and for preparing the city ordinance known as “the occupation tax ordinance,” and two additional ordinances.
Over the objection of the appellee, appellant was permitted to prove by the recorder of the city that there had been a meeting of the council, and that the recorder made minutes of it on a piece of paper, and thought he had transferred his notes to the minute-book, but, after examining the record, he does not find the record of said notes. At that meeting Hill was elected, mayor by a majority of the city council, and acted as mayor from then on for several months. Witness made a record of the vote on the piece of paper on which he kept the record of that meeting. The roll was called and record made of how each man voted, whether aye or nay.
The appellee introduced the records of the minutes of the city ...of Rector entered January 16/1920. These minutes showed that there was a meeting of the city council on January 16, 1920, with Homer T. Hill, mayor, being present, and the other officers, .giving the names of the aldermen, the marshal and the recorder, and, after reciting the allowance of certain accounts, contains this further recital: “Homer T. Hill tendered.his resignation as mayor of the city of Rector to take effect January 16, 1920. By motion of George Gordon, seconded by George Hardin, the resignation was accepted. On motion of George Hardin, seconded by L. P. Sims, it was voted to pay Homer T. Hill $100 for his services while acting as mayor.”
Upon the above testimony the court directed the jury to return a verdict in favor of the appellee. Judgment was entered in favor of appellee dismissing the appellant’s complaint, from which is this appeal.
Section 7680, Crawford & Moses’ Digest (act of May 1, 1909, p. 589). provides: “Whenever a vacancy shall occur in the office of mayor in any city of the second class, from any cause, the city council shall, at the first regular meeting after the occurrence of such vacancy, proceed to élect, by a majority vote of all the aldermen, a mayor to serve for the unexpired term.”
While the word “elect” is used in the statute to designate the selection or election of the mayor, it is obvious that the word “elect” is here used with the same signification as the word “appointment” in § 7518, Crawford & Moses ’ Digest, which reads as follows: ‘ ‘ All appointments of officers by any council shall be made viva voce, and the concurrence of a like majority shall be required; the names of those voting, and for whom thev voted, on the votes resulting’ in the appointment, shall be recorded, and all such voting shall be public.”
The last section was a part of the act of March 4, 1891. The act of 1909 providing for the election of a mayor in case of a vacancy is not in conflict with § 7518, act of March 4, 1891, supra. The two statutes, so far as the appointment or election of a mayor is concerned, are in pari materia and must be construed with reference to each other. Therefore an appointment or election of a mayor to fill a vacancy by a city council of cities of the second class must be made in accordance with § 7518, C. & M, Digest, supra, in order to constitute a legal election. The provisions of § 7518, supra, in regard to the manner in which the appointment shall be made and the recording thereof, are mandatory. The proceedings of the council in this regard must have been either by ordinance or resolution, and such proceedings must be proyed by the record itself, in the absence of proof that such record has been lost or destroyed. El Dorado v. Faulkner, 107 Ark. 456; Pugh v. Little Rock, 35 Ark. 457; Hencke v. Standiford, 66 Ark. 535.
It follows that the appellant failed to prove that he was duly elected mayor of the city of Rector. The appellant, however, does prove that he was the de facto mayor of the city of Rector. But in the case of Stevens v. Campbell, 67 Ark. 484, quoting from Andrews v. Porter, 79 Me. 490, we held: “A de facto officer has no legal right to the emoluments of the office, the duties of which he performs under color of an appointment, but without legal title. He cannot maintain an action for the salary. His action puts in issue his legal title to the office, and he cannot recover by showing merely that he was an officer de facto.” The fact that the appellee, in its answer, recognized that the appellant “was permittc'" to act as mayor” does not estop the anpellee from setting mo that appellant was not the duly elected mayor of the city. The appellee expressly denied that appellant was such mayor. We conclude therefore that the court did not err in directing the jury to return a verdict in favor of the appellee. The judgment is correct, and it is affirmed. | [
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Paul Ward, Associate Justice.
The question for decision is whether the complaint and amended complaint filed in the trial court stated a cause of action.
On June 6, 1957 appellee, M. M. Barksdale Lumber Company, filed a complaint against “Stroud Brothers Lumber Company, Inc.” in which it was alleged appellee sold to the said defendant a “lot of lumber for the price of” $1,382.43; that the amount was due, and; that demand for payment had been made and refused. The prayer was for payment in said amount. The complaint was verified. Also attached thereto, marked “Exhibit A,” was a verified and detailed statement of the account of the aforementioned sum. This statement was made out to “Stroud Mills.” On June 25, 1957 “Stroud Brothers Lumber Company, Inc. ’ ’ answered with a general denial.
On the 12th day of July, 1957 appellee filed a verified "Amended Complaint” in which it was stated:
"Plaintiff hereby amends his complaint by making S. Y. Stroud and Roy Stroud, dba Stroud Milling Company with place of business at Mena, Polk County, Arkansas, as defendants; by making Raymond Stroud and Roy Stroud, doing business as Stroud Lumber Company, Inc., defendants; and prays judgment against S. V. Stroud and Roy Stroud and Raymond Stroud, against the Stroud Brothers Lumber Company, Inc., against Stroud Milling Company, against Stroud Lumber Company, Inc., in the amount of Thirteen Hundred Eighty-Two Dollars and Forty-Three Cents.”
On the same day summons issued for the newly named defendants.
No answer or other pleading having been filed by the newly named defendants, appellee filed a verified Motion For Default Judgment on December 14, 1957. On December 27,1957, no pleading still .having been filed by any of said defendants, the trial court entered a default judgment in favor of appellee against "S. Y. Stroud and Roy Stroud as individuals and dba Stroud Mill Company, and against Raymond Stroud and Roy Stroud as individuals and dba Stroud Lumber Company, Inc.”
This appeal is prosecuted by those parties against whom the above judgment was rendered. The only question involved is, as stated by appellants, "whether the complaint and amended complaint state a cause of action upon which to base a default judgment against the defendants brought into litigation by the amended complaint. ’ ’
It is our conclusion that the complaint and amended complaint, taken together, do state a cause of action against appellants. While the second complaint is denominated an "Amended” complaint, yet we think it should be treated as an “Amendment” to the first complaint. The first portion of the second paragraph begins as follows: "Plaintiff hereby amends his complaint by making S. Y. Stroud and Roy Stroud . . . de fendants . . .” This portion of the amended pleadings, taken together with the rest of it, indicates clearly, we think, that it was not meant to take the place of the first complaint hut to add to it. We have frequently stated, in effect, that a pleading will not be judged by what it is called but by what it contains. It was said in Randolph v. Nichol, 74 Ark. 93 (at page 101), 84 S. W. 1037: “But under our code of practice all forms of action are abolished, and relief is granted according to the facts alleged and proved, without regard to the form or denomination of the plea.” To the same effect, see: Clements v. Hamilton-Brown Shoe Company, 99 Ark. 335, 138 S. W. 971; Teal v. Thompson, 180 Ark. 63, 20 S. W. 2d 307, and; Railway Express Agency, Inc. v. H. Rouw Company, 197 Ark. 1142, 127 S. W. 2d 251.
Also, under our system, we must construe pleadings liberally and give them every reasonable intendment. Mason v. Gates, 90 Ark. 241, 119 S. W. 70; James v. Lloyd, 196 Ark. 568, 118 S. W. 2d 284; Central Supply Company v. Wren, 198 Ark. 1090, 133 S. W. 2d 632, and; Neal v. Parker, 200 Ark. 10, 139 S. W. 2d 41.
Therefore, when we take both of appellee’s pleadings, and considering them in accordance with principles above stated, we think all the appellants were aware of the fact that appellee was attempting to hold theúi liable for the lumber it had sold. It is of no avail to appellants that the statement was made out to “Stroud Mills” when it now appears that the correct name is “Stroud Mill Co. Inc.” This issue was decided against appellants in the Central Supply Company case, supra. See also § 27-1155 Ark. Stats. and Beavers v. Baucum, 33 Ark. 722.
Appellants make no contention that proper service was not had on any of them, and since, as we have indicated above, the pleadings stated a cause of action, the judgment of the trial court must be affirmed.
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John Mauzy Pittman, Chief Judge.
Appellant in this criminal case was convicted in district court of harassment. He appealed to circuit court and requested a jury trial. The circuit court dismissed the appeal on the grounds that appellant’s attorney failed to appear at a pretrial hearing. Appellant’s attorney filed a motion for reconsideration asserting that he never received notice of the pretrial hearing. The trial court took no action. On appeal, appellant argues that the trial court erred in dismissing his appeal because to do so denied him his right to a jury trial without the express and unambiguous waiver thereof required by Duty v. State, 45 Ark. App. 1, 871 S.W.2d 400 (1994). Appellant is correct.
In Harrell v. City of Conway, 296 Ark. 247, 753 S.W.2d 542 (1988), the supreme court held that a circuit court’s dismissal on its own motion of an appeal from municipal court denied the appellant his statutory right to a jury trial in circuit court, and reversed on that basis. Furthermore, Arkansas Code Annotated § 16-96-508 (1987) provided in part that, if the appellant from the judgment rendered by an inferior court fails to appear in the circuit court when the case is set for trial, the circuit court may affirm the judgment of the inferior court and enter judgment against the appellant for the same fine or penalty that was imposed in the inferior court. In Williams v. State, 79 Ark. App. 216, 85 S.W.3d 561 (2002), we held that this section authorized dismissal only if the appellant fails to appear for trial and did not apply where the appellant merely failed to appear at a pretrial readiness hearing. The dismissal in the present case was based on failure to appear at a pretrial hearing and, as in Williams, the dismissal of appellant’s appeal was not authorized by the statute. The burden is on the trial court to assure that, if there is to be a waiver of the right to a jury trial in a criminal case, it be done in accordance with the provisions of the Arkansas Constitution by the defendant personally making an express declaration to that effect in writing or in open court. Duty v. State, supra. Because dismissal of the appeal from district court was not authorized by section 16-96-508, the effect of the trial court’s action was to deny appellant his right to a jury trial without the express waiver thereof required by the Arkansas Constitution, and we reverse and remand on that basis.
There are some procedural irregularities in this case. Appellant’s notice of appeal was filed in time to appeal the dismissal of his circuit court appeal, but was not timely with respect to appellant’s motion for reconsideration in that court. The significance of this is that appellant made no objection or argument below except in his motion for reconsideration. Although this failure to object would in most cases be fatal to appellant’s appeal to this court, see Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), the contemporaneous objection rule is inapplicable to the failure to afford one a trial by jury. See Harrell v. City of Conway, supra (error addressed although raised for the first time on appeal); Duty v. State, supra. The reason for this exception is that the right to a jury trial is so ancient and fundamental to our jurisprudence that its denial is an error of such gravity that every judge should, on his own motion, intervene to prevent. Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992); see Wicks v. State, supra.
Reversed and remanded.
Hart, Robbins, Glover, Neal, and Roaf, JJ., agree.
Gladwin, Crabtree, and Baker, JJ., dissent.
Subsequent to the operative events in this case, minor amendments were made to this section by Act 1994 of 2005. See Ark. Code. Ann. § 16-96-508 (Supp. 2005).
We are not reversing based on Williams v. State, 79 Ark. App. 216, 85 S.W.3d 561 (2002). We cite that case only in response to the State’s argument that appellant’s right to a jury trial was obviated by the circuit court’s proper dismissal of his appeal for failure to appear pursuant to Ark. Code Ann. § 16-96-508. The appellant responded to the State’s statutory argument in his reply brief, correctly noting that section 16-96-508 permits dismissal only for failure to appear at trial, not for failure to appear at a pretrial hearing. This, as we note in the body of our opinion, is a correct statement of the law pursuant to Williams v. State, 79 Ark. App. 216, 85 S.W.3d 561 (2002). In the context of the arguments as presented by the parties to this appeal, Williams is significant only because it negates the State’s attempt to defend the denial of appellant’s right to a jury trial on the basis of an incorrect reading of section 16-96-508. | [
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George Rose Smith, J.
These two appeals involve different phases of the same litigation and have been consolidated in this court. In the more important of the two appeals, Case No. 5-1632, the basic issue is that of priority as between a judgment lien held by the appellants Burnside and a mortgage lien asserted by the appellee Farmerville Bank. The chancellor held that the bank’s mortgage is valid and that it constitutes a first lien against the property that both creditors are pursuing. We have concluded that the chancellor’s decision was erroneous, because the bank’s mortgage was discharged by payment on January 14, 1957.
The property in question, a drive-in theater near El Dorado, ivas formerly owned by Carson J. Futch, a now insolvent debtor who incurred both the obligations sued upon in this case. The bank’s claim preceded that of the Burnsides in point of time. Futch borrowed at least $23,000 from the bank, evidenced by what is referred to in the record as a hand note, and executed two separate mortgages to secure the debt. One of the mortgages Avas given in 1952 to secure what is called a real estate note, in the amount of $15,000, and co\7ered a farm owned by Futch in Louisiana, where the bank is domiciled. The other mortgage Avas executed in 1953, to secure another $15,000 real estate note, and conveys the tract of land now in controversy, upon which a theater was constructed. Under the bank’s practice the hand note represented Futch’s actual indebtedness; the tAvo real estate notes and mortgages were attached to the hand note as collateral security.
In 1954 Carson J. Futch entered into a contract by which he agreed to sell the theater property to E. J. Burnside, Jr., for $75,000. Burnside and his father, as partners, made payments totaling $13,000 upon the purchase price. On October 31, 1956, the Burnsides filed suit to rescind the contract and to recover their payments, it being alleged that certain outstanding mineral interests rendered Futch’s title unmerchantable. By a decree rendered on February 28, 1957, the chancellor granted the Burnsides’ request for rescission and aAvarded them a judgment against Carson J. Futch for the $13,000 that had been paid. The decree declared that the Burnsides’ judgment lien should he effective as of the filing of the notice of lis pendens on October 31, 1956. The bank was not originally a party to the suit for rescission, but it intervened on March 26, 1957, to assert its mortgage lien.
It seems clear that Futch, while the Burnsides’ suit was pending, decided to denude himself of his lands in Arkansas and Louisiana. On January 14, 1957, he conveyed the Louisiana land to his brother, Robert T. Futch. On the same day Robert T. Futch went to the bank and borrowed $16,000, which was advanced to him in cash. With that money and about $8,000 of his own Robert paid in full Carson’s indebtedness to the bank, which then totaled about $23,900. The bank marked Carson’s hand note as paid and concedes that this transaction extinguished Carson’s personal liability to the bank. The bank did not, however, mark as paid Carson’s real estate note for $15,000, secured by the Arkansas mortgage, which had been attached to Carson’s hand note as collateral security. Instead, the bank attached that real estate note and mortgage to Robert’s $16,000 hand note, as collateral security. Robert’s note was also secured by a new mortgage that he executed upon part of the Louisiana land he had received from Carson. On the following day, January 15, Carson conveyed the Arkansas land to Robert for a consideration of $10 and the assumption of the mortgage debt (which had actually been paid by Robert the day before).
On March 15, 1957, the bank filed a foreclosure suit upon Carson’s $15,000 real estate note and mortgage. This suit was consolidated with the Burnsides’ suit for rescission, in which the court had already rendered a decree and ordered a sale of the property. The chancellor’s opinion upon final hearing in the consolidated case erroneously states that Robert had already assumed the Arkansas mortgage debt when he paid Carson’s hand note on January 14. Upon this mistaken premise the chancellor concluded that there had been no break in the continuity of the mortgage lien, Robert’s personal liability having been merely substituted for Carson’s. The decree accordingly upheld the bank’s lien and awarded it priority.
The bank seems to have acted, in reliance upon the law of Louisiana, but of course the validity of a lien on Arkansas land is to be determined by Arkansas law. Midland Valley R. Co. v. Moran etc. Co., 80 Ark. 399, 97 S. W. 679, 10 Ann. Cas. 372. The chancellor,’ treating Robert as a purchaser, applied a rule analogous to that stated in Walker v. Mathis, 128 Ark. 317, 194 S. W. 702, where we held that payment of a mortgage by a subsequent purchaser will be regarded as an assignment when that course is necessary to protect the purchaser’s right to subrogation. Here Robert T. Futch has not asked for subrogation and is hardly in a position to do so, as his promise to pay the mortgage debt was apparently the only consideration he gave for the property.
It seems clear enough that Robert’s payment of Carson’s indebtedness on January 14 extinguished the lien of the mortgage on the theater property. As Hughes points out in his treatise on Arkansas Mortgages, § 272: “Payment of the debt instantly and of itself discharges the mortgage.” It goes without saying that there can be no lien when there is no debt, for a lien is purely a security device. At the close of business on January 14 it could not seriously have been contended that the bank had a lien on Carson’s Arkansas land. The debt had been paid in full by Robert, who did not own the land and had not assumed the mortgage. Robert, it is true, owed the bank $16,000, but that obligation was secured by a different mortgage upon land in Louisiana. The discharged lien of the Arkansas mortgage could not be revived by the bank’s attempt to reissue the paid note as collateral security for a debt owed by Robert, who had no interest in the Arkansas land and thus had no power to encumber the title. Hughes, supra; Bailey v. Rockafellow, 57 Ark. 216, 21 S. W. 227. It is immaterial that Robert later tried'to assume the discharged indebtedness, for the break in the continuity of the bank’s lien is fatal to its claim to priority. The decree awarding a prior lien to the bank must therefore be reversed.
In Case No. 5-1638 the bank appeals from the order confirming the sale of the property. The court had directed that the real and personal property be sold separately. At the sale the bank bought the real property for $9,000 and bought certain items of personal property for $3,613.75. The Burnsides bought other items of personal property for $749.50.
The bank now contends that even though its mortgage contained only a metes-and-bounds description of the land, with no reference whatever to personal property or appurtenances, all the fixtures and equipment of the drive-in theater became real property within the mortgage description and were therefore part of the real property that the bank bid in at the judicial sale. To support this theory the bank president and Carson J. Futch testified that the money was lent to enable Futch to construct the theater and that both parties intended for the mortgage to cover all the personal property that was later used in the operation of the theater.
Even if it be assumed that the unexpressed intention of the parties to the mortgage could, as between themselves, extend the mortgage to cover property not described in the instrument, that question is not before us, for we are holding in the companion appeal that the mortgage is not a lien on the property. Instead, the issue is whether the real estate purchased by the bank at the judicial sale includes certain property that the court below found to be personalty. Some of the disputed items, such as a cot, an office desk, chairs, a lamp, etc., were not affixed to the realty at all. Other items, such as a motion picture projector, sound equipment, etc., could be removed without damage to the land. We art; of the opinion that the chancellor was correct in holding these articles to be personal property. Anderson v. Southern Realty Co., 176 Ark. 752, 4 S. W. 2d 27.
The decree in Case No. 5-1638 is therefore affirmed. | [
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Paul Ward, Associate Justice.
Appellant, Charlie Dailey, filed a claim in the amount of $7,000 against the estate of Maggie M. Goodwin which was disallowed by the Executor and also by the Probate Court. For a reversal, he prosecutes this appeal. The controversy between the parties is based not upon disputed facts but upon the legal significance of those facts.
Maggie M. Goodwin died testate on March 7, 1957. Her will was executed June 2, 1956 and probated March 25, 1957. This will is not involved or significant in this litigation except in a single instance to be noted later. The executor of the will is H. C. Adams.
On September 5,1957 appellant filed his claim which consisted only of the usual affidavit with two exhibits attached. One exhibit was a check, as follows:
“DeWitt Ark. October 19, 1956 No............. FIRST NATIONAL BANK PAY TO THE ORDER OF .................. Charlie Dailey ..................... $7,000.00 Seven thousand no/100 ...................................................... DOLLARS FOR from my estate as mentioned in letter ............Maggie M. Goodwin”
The other exhibit was a written document, to-wit:
“I Maggie M. Goodwin of sound mind do hereby artharize Charlie Dailey to rite this check on me for $7,000.00 to bee paid out of my estate to Charlie Dailey and he is to care for my dog Madam Shan for her lifetime and beried in a pine box at the foot of my grave and to place on my cemetary a arch that I have told Mr. Lawson Fly about tbe size and shape to be placed in the South West corner of the Merritt Cemetary bearing the name the Merritt Cemetary by Maggie Merritt Goodwin and to remodel my house for his convenience leaving the too original rooms that was moved on the property.
R by Charlie Dailey for Maggie M. Goodwin
S/s Maggie M. Goodwin”
The check and document were placed in an envelope and delivered to appellant at the time of their execution and were held by him until filed as a claim in the Probate Court.
Appellant’s contentions here are based on two grounds. One. The trial court erred in holding (a) the check and document were without consideration, (b) claimant had burden of showing consideration, and (c) testimony could not be introduced to show consideration. Two. The trial court erred in holding that the check and document did not constitute a gift inter vivos or a gift causa mortis.
One. At the beginning it is noted that although the document has certain testamentary aspects, appellant makes no claim on that basis. In this appellant is correct because the testimony and the document show it was not properly executed as a will or as a codicil to a will. Nor does appellant base his claim on compensation for services rendered during the deceased’s lifetime. If he had done so certain oral testimony would have been admissible.
We gather from statements in appellant’s brief that his claim is based upon a written contract. In response to an inquiry by the court it was stated that appellant was not relying on an implied contract, but that he was relying on a “specific contract.” At another place we find this statement: “It is insisted by the claimant that the instruments dated October 19, 1956 represented a written contract and are obligations against the estate; said instruments are heretofore set out fully in this brief.” (emphasis supplied). Viewed in this light, the Chancellor’s finding that no valid contract existed must be sustained, as indicated below.
The document was not signed by appellant. He was not obligated to do anything. There.was no consideration shown in the document. It mentioned nothing appellant had done in the past, but only things he was to do in the future. It is not stated nor was it shown that he had performed any part of the socalled contract. Appellant does not rely on any mistake or fraud, in the absence of which parol testimony was inadmissible. In American Southern Trust Co. v. McKee, 173 Ark. 147, (at page 160), 293 S. "W. 50 this court said: “. . . it is universally held that a written contract, free from doubt and ambiguity, cannot be altered or contradicted by parol evidence except for fraud or mistake.” The trial court was therefore correct in refusing to allow appellant to show by parol testimony what services he had rendered to Mrs. Goodwin during her lifetime. Moreover, even had such testimony been admissible it would have not necessarily shown consideration for the purported contract under consideration. Item 5 of Mrs. Goodwin’s will heretofore mentioned shows that she gave appellant 4 lots in Block 42 in the City of DeWitt. This could have been for services already rendered since all services mentioned in the document were to be performed in the future.
Two. In the alternative to the first contention discussed above, appellant says the trial court erred in not allowing his claim on the basis of a gift. We do not agree.
There was no gift inter vivos because there was no irrevocable transfer of the $7,000 to appellant which is necessary under the decisions of this court dating back to Ammon v. Martin, 59 Ark. 191, 26 S. W. 826 where, in this connection, the court said: ‘ ‘ The gift being made by Mrs. Lynch while on her death bed, and but a few hours before her death, the presumption is it was a gift causa mortis. But death, supervening in so short a time after the delivery, practically eliminated the ele ment of revocability which distinguishes a gift causa mortis from one inter vivos. Delivery before death is just as essential to a gift causa mortis as it is to a gift inter vivos, and the same rules as to delivery are applicable to both; but in the former, although absolute in form, the title to the thing given remains in the donor, and the gift is subject to revocation at any time prior to his death. In the latter — inter vivos — the gift becomes absolute upon delivery.” In the case under consideration there was a delivery of the check to appellant, but appellant had no right to cash it at that time, and there was no circumstance which eliminated “the element of revocability.” There was a period of approximately 140 days (from Oct. 19, 1956 to March 7, 1957) in which Mrs. Goodwin could have stopped payment on the check or changed her will or could have revoked the document. We have carefully considered the cases relied on by appellant, but find they can be distinguished on the facts or have no bearing on the issue here considered. There is nothing in Burks v. Burks, 222 Ark. 97, 257 S. W. 2d 369 contrary to the views above expressed.
Nor do we think appellant’s claim can be sustained on the basis of a gift causa mortis. The question of irrevocability does not arise in such a gift, but it is essential that the gift be made in contemplation of death. See: Hatcher v. Buford, 60 Ark. 169 (pp. 173, 4), 29 S. W. 641, and Ellsworth, Administrator v. Cornes, 204 Ark. 756, 165 S. W. 2d 57. No such required showing is disclosed by the record, but just the contrary. As stated before, approximately 140 days elapsed after the check was written before Mrs. Goodwin died. While it is shown that she was ill a greater portion of this time there was no proof that the check was written in contemplation of death.
Affirmed. | [
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HUMPHREYS, J.
Appellants instituted suit in the G-arland Chancery Court against appellees to set aside an order of the probate court to sell lot 15, block 54, in the second subdivision of the Hot Springs Land & Improvement Company, in the city of Hot Springs, Arkansas; and to cancel all the proceedings appertaining thereto, and conveyances made thereunder for the alleged reasons:
First, because the probate court had no jurisdiction to order or approve the sale.
Second, because the sale was procured by fraud.
Third, because the transaction was an exchange of other property for the homestead.
An agreement was reached by which the Scott-Mayer Commission Company was to retain its lease on said property during the lease term, by paying the rent into the registry of the court. By this agreement, said company was eliminated from the litigation.
The widow and children of John J. Horner,, deceased, filed answer, denying all the material allegations of the bill.
The cause was heard by the chancellor upon the issues joined and proof adduced from which he found that the probate court had jurisdiction to order and confirm the sale; that the homestead was not traded for other property; and that the sale was not induced by fraud or collusion.
The bill was dismissed for want of equity on the 17th day of August, 1916, from which an appeal has been prosecuted to this court.
The property involved in this suit was the homestead of W. W. Rushing, at the time of his death, which occurred on December 20, 1898. Said property was assigned to the widow and appellants as a homestead, and another piece of real estate valued at $1,100 was assigned to the widow as dower in the landed estate of her deceased husband. The widow, Sarah A. Rushing, was appointed guardian for appellants on the 16th day of October, 1899. She procured an order to sell the homestead on the 29th of August, 1900, for the maintenance and education of appellees. In pursuance to said order, the property was sold at public sale to John J. Horner, husband and father of appellees, for $2,050, evidenced by two notes of $1,025 each, payable, respectively, in three and six months. On the 24th of December thereafter, deed was made by the guardian to the said Horner, reciting consideration of $1,025 cash and note for $1,025, due May 23,1901. The deed contained a rental clause for the interest of Sarah A. Rushing in the homestead. On the same date Sarah A. Rushing executed a quitclaim deed for her interest in the homestead to the said Horner for an expressed consideration of $500.00. Col. John M. Harrell, conceded to be an attorney of reputation above reproach, was the attorney who directed and counseled the guardian. He prepared the guardian’s deed and entered the following payments upon the two'notes aforesaid :
‘ ‘ This note credited with a cash payment of five hundred and seventy-one ($571.00) dollars.” (This credit appears on the face of the first note just above the signature of the maker, J. J. Horner).
“Hot Springs, Arkansas, November 28, 1900.
‘ ‘ Received from J. J. Horner this day $600 to be credited on these notes in addition to credit on face hereof.
S. A. Rushing, Guardian. ’ ’
(This credit appears on the back of the note).
“Credit received November 28, 1900 on the within note $146.00, which is that much of the sum of $600 in dorsed on the first note credited on this note, leaving dne $879.00.”
(This credit appears on the face of the second note just above the signature of the maker, J. J. Horner).
“Received the amount of within note, payment in full, this December 28, 1900.”
(This credit appears on the back of the second note).
John J. Horner died on the 3d day of August, 1905. On the 25th day of February, 1905, the. court house and the papers in the case burned. The record proper was saved, which disclosed that the order of sale was made by proper application and on notice in the manner provided by law; and that the sale was confirmed by the court. Col. J. M. Harrell has since died. Mrs. Rushing gave testimony in substance to the effect that she exchanged the property in question for two lots described as follows: Lots forty-seven and forty-eight in block four, in what is known as Grains & Williamson’s addition to the city of Hot Springs, and $800 in cash; that she was overreached and influenced to sacrifice the homestead property by J. J. Horner, under the advice and direction of Col. J. M. Harrell, who had been selected as her attorney by Horner.
Her evidence is not in accord with the records of the court, deeds, notes with credits thereon, and the bank records.
I,t is strenuously insisted by appellant that the sale and all proceedings thereunder should be set aside for fraud. The chancellor found against appellants on this issue. We have read the entire record very carefully and are of the opinion that the finding of the chancellor is in accord with the facts and circumstances. The evidence is too uncertain and conflicting upon which to base a finding of fraud. The immediate parties to the transaction are dead except Mrs. Sarah A. Rushing, who is the chief witness for appellants. The record evidence and circumstances in the case do not support her testimony. We can not say the finding of the chancellor is contrary to a clear preponderance of the evidence on the issne of fraud.
(1) It is also insisted that the sale is void .because it is contrary to law for a probate court to authorize a guardian to exchange the homestead lands of a ward for other iands; and because this homestead was in part exchanged for other land. The appellants are correct in their statement of the law. In treating upon this question, this court said in Gatlin v. Lafon, 95 Ark. 256, ‘‘It (referring to the homestead) can not be lawfully exchanged for an interest in other lands to serve the same purpose.” We can not follow learned counsel for appellants in their (Conclusion that an exchange of property was made in the instant case. The records of the probate court and the deed and notes executed in pursuance of the sale reflect the fact that the property was sold for $2,050.00, and paid for in money, not property. The finding of the chancellor on this point was adverse to appellants and is not contrary to a clear preponderance of the evidence.
(2) And lastly, it is insisted by appellants that the probate court had no jurisdiction to order the sale of the homestead. The reason assigned is that the estate of W. W. Rushing, deceased, was in debt at the time of the sale of the homestead. The latest expression of this court is to the effect that the probate sale of a minor’s homestead by the guardian is absolutely void if the estate is at the time in debt; that in order to invest a good title in the purchaser at the guardian’s sale, the record of the probate court should affirmatively show that the estate was free from debt; that the necessary essentials to give jurisdiction must appear on the record; that no presumptions can be indulged in favor of the judgment ordering the sale of a minor’s homestead; that the burden rests upon the party asserting title under the sale to establish that the judgment ordering the sale of a minor’s homestead recites the necessary essentials to give the court jurisdiction. Tipton, Admr. Ex Parte, 123 Ark. 389.
The judgment in this case ordering the sale of the homestead was burned and in order for appellees to sustain their title to the property it became necessary for them to establish that the judgment ordering the sale contained the jurisdictional recital that the estate of "W. W. Bushing, deceased, was not in debt at the time the order for the sale of the homestead was made. No such showing appears. The evidence shows that the estate was in debt at the time the order for the sale of the homestead was procured. On this account, it will be necessary to reverse the decree of the chancellor.
There is some evidence in the case to the effect that extensive improvements were made upon this property by appellees. We are unable to determine, in the present state of the proof, the enhanced value of the real estate by reason of the improvements. Nor are we able to ascertain the rental value of the property in its improved condition, per month or per annum, beginning three years before the institution of this suit. It seems that the case was not fully developed with reference to rental value, net profits and betterments.
For the error indicated, the decree of the chancellor is reversed and the cause remanded for a new trial, with privilege to either party to make further proof. | [
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Ed. F. McFaddin, Associate Justice.
This is a suit brought by a Trustee (Herbert S. Bonney, Jr.) asking the Court of Equity for instructions as to how the Trustee should proceed. Such procedure is recognized (see Ark. Baptist State Convention v. Board of Trustees, 209 Ark. 236, 189 S. W. 2d 913).
Mrs. Elizabeth S. Polk executed her will on June 4, 1954 and died on June 6, 1954, a citizen and resident of Dallas County, Texas. She owned real estate in Hot Springs, Arkansas and the will was also duly filed in Garland County, and her husband, Eugene Polk, was appointed ancillary administrator in Arkansas. It is about the real estate in Hot Springs that we are here concerned. Mrs. Polk was survived by her husband, Eugene Polk; and he is the life tenant of the Arkansas properties here involved and joined with the Trustee, Mr. Bonney, as a party plaintiff in this suit. Mr. Polk, as life tenant, is cooperative with the Trustee.
The portions of Mrs. Polk’s will necessary for a determination of this case are as follows:
“XIV. I devise and bequeath to my beloved husband, Eugene Polk, a life estate in and to my property in Hot Springs, Arkansas, known as the Kress Building, with remainder to Ralph Patterson, Jr., and the Patterson twins, Frank and Helen Patterson, children of my niece and nephew, Helen and Ralph Patterson, Sr., as hereinafter provided. I devise and bequeath to my beloved husband, Eugene Polk, a life estate in and to my real property in Hot Springs, Arkansas, known as the Schneck Building, with remainder to my god-children, James Fitzhugh Burton and Isabel Lee Burton, as hereinafter provided. It being my intention, wish and desire that my beloved husband, Eugene Polk, shall enjoy the rents and revenues and income of every kind and character from both the Kress Building and the Schneck Building as long as he shall live.
“XV. a Upon the death of my beloved husband, Eugene Polk, I devise and bequeath to my friend and attorney, Herbert S. Bonney, Jr., in trust and as the Trustee of my god-children, James Fitzhugh Burton and Isabel Lee Burton, my real property and improvements located in Hot Springs, Arkansas, known as the Schneck Building; and I devise and bequeath to my said Trustee in trust and as Trustee for Ralph Patterson, Jr., and Frank Patterson, and Helen (Sissie) Patterson my real property and improvements situated in Hot Springs, Arkansas, known as the Kress Building. It is my desire that my Trustee shall, if possible, place all of the indebtedness against the two above mentioned buildings and land thereunder upon the Kress Building, thereby releasing the Schneck Building from any and all indebtedness.
“b. My said Trustee shall hold the above described property in trust so long as all of the beneficiaries of said trust are minor children, and when each such beneficiary shall attain the age of twenty-one years, my said Trustee shall convey the undivided interest to which such beneficiary is entitled, to each beneficiary. My trustee shall apply all of the rents and revenues over and above taxes and expenses to retire the mortgage indebtedness on said real property and improvements, bnt if the Scbneclc Building shall be clear of debt, such revenues derived from it shall be paid to the beneficiaries for whom said Trustee shall be holding said Schneck Building, share and share alike.
“e. I devise and bequeath all of the residue of my property, real, personal and mixed, after the death of my beloved husband, Eugene Polk, other than the special bequests made in this Will, to my said Trustee, Herbert S. Bonney, Jr., and I instruct my said Trustee to liquidate said residue estate and apply the same against the indebtedness then due against the Kress Building and Schneck Building, and should there be any property or estate left after the payment of said indebtedness on said buildings in full, one-half of the same shall be given, share and share alike, to Ralph Patterson, Jr., Frank Patterson, and Helen (Sissie) Patterson, and the other one-half shall be given, share and share alike, to James Fitzhugh Burton and Isabel Lee Burton, as each of the above mentioned Pattersons and Burtons attain the age of twenty-one (21) years.
“XVIII. . . My said Trustee shall have the power with reference to all properties coming to him in trust, except the Kress Building and the Schneck Building properties above described, to sell, dispose of or otherwise perform any act or execute any instruments with reference thereto and shall have all the powers given Corporate Trustees by the statutes of the State of Texas with reference to the handling of such residue property.”
It is essential to an understanding of this case that we give certain other facts developed in the trial:
1. The two properties in Hot Springs are referred to as the “Kress property” because it is leased to S. H. Kress Company, and the “Schneck property” because it is occupied by the Schneck Drug Company. It will be observed from the foregoing copied portions of Mrs. Polk’s will that the Kress Building was devised to Mr. Polk for life with the remainder to the Patterson children, but under the trusteeship of Mr. Bonney during the minority of the Patterson children; and that the Schneck Building was devised to Mr. Polk for life with the remainder to the Burton children, but under the trusteeship of Mr. Bonney during the minority of the Burton children.
2. Mr. Polk is a man now 89 years of age and as life tenant under Mrs. Polk’s will is receiving all of the net rents from the two properties.
3. The Patterson children with their birth dates and ages are as follows: (a) Ralph M. Patterson, Jr. was born May 17, 1936 and became twenty-one years of age on May 17, 1957; (b) Helen Patterson, a girl, was born November 25, 1943, and will become twenty-one years of age on her birthday in 1964; (c) Prank Patterson was likewise born on November 25, 1943 and will become twenty-one years of age on his birthday in 1964.
4. The Burton children, with their birth dates and ages, are as follows: (a) James Fitzhugh Burton was born October 5, 1947 and will become twenty-one years of age on his birthday in 1968; (b) Isabel Lee Burton was born on November 6, 1948 and will become twenty-one years of age on her birthday in 1969.
5. It will be observed from Paragraph XV of the will that the age of twenty-one is listed as the determinative age for each beneficiary, so these dates will become important in our decision in this case.
6. The Kress property is now bringing in a monthly rental of $400.00 in addition to taxes and insurance; and the Schneck property is now bringing in $225.00 per month in addition to taxes and insurance. The two properties are now, and were at the time of Mrs. Polk’s will and death, under a mortgage to the Equitable Life Assurance Society in the amount of $45,-000.00, which bears interest at the rate of 4 per cent per annum. The mortgage became due on October 1, 1957 and is now past due; and refinancing is awaiting the outcome of this litigation. The Kress building is leased to S. H. Kress & Company until December 31, 1960. The Schneck building appears to have some sort of option provision that may extend the lease as long as 1965, although that point is not entirely clear in the record.
7. On February 13, 1957, Mr. Herbert S. Bonney, Jr., as Trustee under Mrs. Polk’s will, and Mr. Eugene Polk, as ancillary administrator under the will, filed the present proceeding in the Garland Chancery Court, naming as defendants the three Patterson children previously mentioned, the two Burton children previously mentioned, and the guardians of those that are minors. Ralph M. Patterson, Jr. is of full age and is represented by counsel. Mr. Ralph M. Patterson, Sr. is the guardian of Helen Patterson and Frank S. Patterson, minors. Frank M. Burton, Sr. is the guardian of James Fitzhugh Burton and Isabel Lee Burton, who are minors. Mr. Bonney, as Trustee, asked the Garland Chancery Court to give him instructions by answering certain well framed questions, germane portions of which questions relate to: (a) the title and right of the Trustee to the properties; (b) the power or duty of the Trustee to negotiate renewal or extension of the present mortgage of $45,-000.00; (c) whether the Schneck Building should be released from the lien of the mortgage if the new mortgage can be obtained entirely with the Kress Building as security; (d) whether the Trustee has power to act even though Ralph M. Patterson, Jr. is over the age of twenty-one; and (e) whether the Trustee can execute a lease of either property for a longer period than the date when beneficiaries reach twenty-one years of age. The attitude of the life tenant, Mr. Eugene Polk, has been most cooperative; and, due to that fact, we treat the case as though only the Trustee’s powers were at issue, because Mr. Polk seems thoroughly agreeable to executing any instruments that the Court may direct the Trustee to execute.
8. The Burton children (all minors) answered by their guardian, and claimed that the Schneck Building should be cleared of the $45,000.00 mortgage and that the provision in Mrs. Polk’s will to that effect in Paragraph XV is mandatory on the Trustee.
9. Ralph M. Patterson, Jr., one of the Patterson children, and being himself of full age, claimed that under Mrs. Polk’s will his one-third interest in the Kress Building was vested in him on reaching twenty-one years, subject only to the life estate of Mr. Polk, the '$45,000.00 mortgage, and the present lease which expires in 1960; that the Trustee had no power to execute any renewal or extension of that lease on the Kress Building covering the interest of Ralph M. Patterson, Jr. without his individual consent; that the provision in Mrs. Polk’s will (that the total indebtedness of $45, 000.00 be shifted to the Kress building, if possible) was precatory only and not mandatory; that, at all events, the power of the Trustee had ceased insofar as Ralph Patterson, Jr. was concerned when he became twenty-one years of age.
10. The other two Patterson children, Helen Patterson and Prank Patterson, being minors, answered by their guardian, Ralph M. Patterson, Sr., and adopted in the main the position of Ralph Patterson, Jr.
11. At the trial it was shown that the $45,000.00 mortgage could be refinanced with the Equitable Life Assurance Society on a 15-year basis at 5 per cent, with no principal payments for five years and then amortized in equal installments over the other ten years at 4 per cent; and the Equitable Life Assurance Society was willing to release the Schneck Building and take the Kress Building as its sole security, provided some satisfactory assurance could be obtained as to tenancy of the Kress Building. It was further shown that the Kress Company would pay a rental of $700.00 per month for the Kress Building, provided a lease could be obtained for as long as twenty years from the present expiration in 1960.
So much for the background facts. At the trial the evidence and stipulations developed all of the factual statements hereinbefore contained; and the Chancery decree answered the questions posed by the Trustee. These answers were, in effect: (a) that the Trustee had power to negotiate a renewal or extension of the present $45,000.00 loan and transfer the entire loan to the Kress Building and completely release the Schneck Building from the mortgage; (b) that the Trustee had the power to completely mortgage the Kress Building with the approval of the Court but without any approval or joinder of Ralph M. Patterson, Jr.; (c) that the Trustee had the complete power to execute a 20-year lease on the Kress Building from its present expiration, beginning January 1, 1960, without any consent or joinder of Ralph Patterson, Jr. or any of the guardians; and (d) that the Trustee, prior to the youngest beneficiary becoming twenty-one years of age, had full power to act, since the life tenant joined with him in the matters.
From that decree there is the present appeal, and we condense the various issues, presented in the excellent briefs, into the following topic headings:
I. The Duration Of The Trust. The first point that must be decided is the duration of the trust because if Ralph Patterson, Jr. is correct in his contention, then Mr. Bonney, as Trustee, has no power whatever over the one-third remainder interest of Ralph Patterson, Jr. In Cross v. Manning, 211 Ark. 803, 202 S. W. 2d 584, we stated some of the rules for construing wills; and those rules are applicable here. After a careful study of all the various provisions of Mrs. Polk’s will, as previously copied, we reach the conclusion that Mrs. Polk intended to and did accomplish the following: (a) she devised the Kress property to Mr. Polk for life with remainder to the Patterson children, who have a vested remainder subject to the powers of the Trustee, as hereinafter stated; and (b) the same thing applies to the Schneck property and the Burton children. Thus, there were and are two distinct and separate trusts: (1) a trust for the Patterson children on the Kress property; and (2) a trust for the Burton children on the Schneck property. The will distinctly makes the trusts separate.
Mrs. Polk established a trusteeship over the Kress property until the youngest of the Patterson children reaches the age of twenty-one years; and a trusteeship over the Schneck property until the younger of the Burton children reaches the age of twenty-one years. We have previously given these dates; and they show that the trusteeship over the Schneck property extends until November 6, 1969 when Isabel Lee Burton becomes twenty-one years of age; and the trusteeship over the Kress property extends until November 25, 1964, when Helen Patterson and Prank Patterson become twenty-one years of age. The trusts are separate and distinct.
It will be noted that in Paragraph XV of her will Mrs. Polk said, “My said Trustee shall hold the above described property in trust so long as all of the beneficiaries of said trust are minor children . . .” She used the term, “minor children” as meaning under twenty-one years of age, because she instantly added, “. . . and when each such beneficiary shall attain the age of twenty-one (21) years, my said Trustee shall convey the undivided interest to which such beneficiary is entitled to each beneficiary.” Mrs. Polk undoubtedly knew that the children would not all be twenty-one on the same day and she wanted the trust to continue on the Kress property until the youngest one of the Patterson children became twenty-one. All that Ralph Patterson, Jr. received when he became twenty-one was his beneficial interest in the property subject to the continuation of the trust during the life of the life tenant and until the youngest Patterson child becomes twenty-one. It is clear that when Mrs. Polk said: “. . . so long as all of the beneficiaries of the trust are minor children,” she used the word “all” in the sense of “any” because the trust continues on each property until all of the beneficiaries reach twenty-one years of age.
Ralph Patterson, Jr. says that the trusteeship ended on his one-third remainder interest in the Kress property when he became twenty-one years of age. We do not so interpret the will. It was a trusteeship on the Kress property during the minority of the three benefi ciaries, and was not a mere trusteeship over the interest of each of the three children in the Kress property. The Trustee is to handle the entire Kress property and not the separate interest of the still remaining minors. What Ralph Patterson, Jr. was entitled to receive when he became twenty-one years of age was the right to an instrument attesting that he owned a one-third interest in the remainder in the Kress property, subject to the powers of the Trustee under the will of Mrs. Polk; and such power continues until the youngest of the three Patterson children reaches twenty-one years of age. We hold that Mr. Bonney, as Trustee, has all the powers given him by Mrs. Polk’s will and that the majority of Ralph Patterson, Jr. has no effect on the powers of the Trustee over the Kress property.
All that has been said regarding the rights of the Patterson children in the Kress property applies with equal force to the rights of the Burton children in the Schneck property. In short, absent any death of the beneficiaries, the trusteeship on the Kress property will cease when the youngest Patterson child reaches the age of twenty-one; and the trusteeship on the Schneck property will cease when the younger of the Burton children reaches the age of twenty-one. Of course, during the life of Mr. Polk the remaindermen have only a vested remainder on which the Trustee may act.
II. Mandatory v. Precatory. At the time of Mrs. Polk’s will both the Kress property and the Schneck property were included in a mortgage to the Equitable Life Assurance Society for $45,000.00; and the same condition exists now. Mrs. Polk’s will, as previously copied, says as regards this mortgage indebtedness, It is my desire that my Trustee shall, if possible, place all of the indebtedness against the two above mentioned buildings and land thereunder upon the Kress Building, thereby releasing the Schneck Building from any and all indebtedness. . . but, if the Schneck Building shall be clear of debt, such revenues derived from it shall be paid to the beneficiaries for whom said Trustee shall be holding said Schneck Building, share and share alike.”
The Trustee, Mr. Bonney, is Trustee for both sets of remaindermen — the Patterson children and the Burton children — and he wants to be absolutely fair to his cestui que trusts. At the same time he wants to be loyal to his trust, so he expresses no opinion as to whether the provision of the will as above referred to is mandatory or precatory. He asked the Chancery Court to make that decision. The Burton children say that the language about freeing the Schneck property is mandatory; and the Patterson children say that the language is precatory.
The distinction between mandatory and precatory words in wills and trust instruments could make a treatise in itself. In wills and trust instruments, directions are held to be mandatory -when such words direct, command, or require something to be done; and directions are held to be precatory when such words merely express a hope or wish, and leave it to. the trustee or the occurrence of some fortuitous circumstance as to whether the desires will be accomplished. If Mrs. Polk’s language about placing the mortgage indebtedness entirely on the Kress Building was merely precatory, then Mr. Bonney, the Trustee, cannot accomplish such purpose. It would unduly prolong this opinion to discuss the value of the properties, the position of the language, the general tone of the words throughout the entire will, or to otherwise elaborate on the reasons for our conclusions; but after a careful study we have concluded that the words in Mrs. Polk’s will are mandatory on the Trustee. That is, Mr. Bonney should make every reasonable, honest, and bona fide effort to: (a) refinance the $45,- 000.00 mortgage at a rate of interest in keeping with present day interest rates; and (b) if possible, obtain a mortgagee who will accept the Kress property as sole security as such interest rate. The mortgage can extend longer than the trusteeship over the Kress property, but the mortgage should contain a clause allowing a full repayment of the indebtedness on any anniversary date after ten years from date of the mortgage. Of course, the proposed note and mortgage must be submitted by the Trustee to the Chancery Court for approval; but when the Trustee and the life tenant join in the note and mortgage and the Court approves it, then the Patterson children cannot complain if only the Kress Building be mortgaged.
III. Long Term, Lease Of The Properties. The present lease on the Kress property expires December 31, 1960, and the present rental is $400.00 a month after payment of taxes and insurance. S. H. Kress & Company has been the tenant of this building for more than forty years and has proved to be a most satisfactory tenant. The Trustee, Mr. Bonney, reported to the Chancery Court in this proceeding that the Kress Company wanted to make, at its own expense, certain extensive improvements on the property, and would pay a rental of $700.00 per month beginning immediately if a valid lease could be made by the Trustee to run until December 31, 1980 (a period of twenty years from the expiration of the present lease). The Chancery Court considered this to be a good monthly rental and indicated that the Trustee would be authorized to execute the lease.
Viewing the matter as a good business proposition, it appears that the Chancery Court was possibly correct: but viewing the matter as regards the powers and authority of the Trustee, we are forced to conclude that Mrs. Polk’s will did not give the Trustee power to execute a lease for such a long period of time after the last of the Patterson children becomes of age. Mrs. Polk’s will did not set up a trust on the Kress property for an indefinite time and empower the Trustee to pay the beneficiaries their moneys at stated intervals; rather, Mrs. Polk’s will set up a trust on the Kress property that could not in any event extend longer than the time when the youngest Patterson child became twenty-one years of age. It was a trust during the minority of the Patterson children, and not a trust for some period of time.
The Trustee cannot be authorized by the Chancery Court to lease the property after the youngest Patterson child reaches twenty-one years of age, unless all the Patterson beneficiaries duly consent to such lease. But absent such consent, then no lease can be made past the end of the trust except, of course, to the end of the calendar year. Our holding is possibly unfortunate from a business viewpoint; but we are obliged to restrict the trust powers to what we construe the testator to have stated in the will. In the excellent briefs there is a discussion of a line of cases on extending the power of the trustee to lease property past the life of the trust. We see no need to discuss these cases because we restrict our holding to the trust here involved; and, in the case at bar, we reach the conclusion that Mrs. Polk intended for the trusts to be separate trusts on the properties for the minority of the class of beneficiaries, and for the powers of the Trustee to terminate in each trust when the youngest beneficiary thereof reaches the age of twenty-one years.
CONCLUSION
The decree is affirmed in part and reversed in part as herein contained; and the cause is remanded to reinvest the Chancery Court with jurisdiction to enter a decree in keeping with this opinion and for any further proceeding's that any of the parties may undertake, consistent with the views herein contained. The costs of all courts will he taxed one-half against each of the respective trust estates.
George Rose Smith, J., not participating.
In various places in this opinion we use the expression “minority”, but do so to shorten the language of the will, which says “twenty-one years of age.”
No one has mentioned in the brieis the possibility of the death of any of the beneficiaries before reaching' twenty-one as a termination of the trust; so we entirely ignore such eventuality and continue to refer to reaching the age of twenty-one years as the termination of the trust.
Some few references are these: Cross v. Manning, 211 Ark. 803, 202 S. W. 2d 584; Cockrill v. Armstrong, 31 Ark. 580; Bloom v. Strauss, 73 Ark. 56, 84 S. W. 511; Wooldridge v. Gilman, 170 Ark. 163, 279 S. W. 20; Wallace v. Wallace, 179 Ark. 30, 13 S. W. 2d 810; Union Trust Co. v. Madigan, 183 Ark. 158, 35 S. W. 2d 349; 57 Am. Jur. 771 “Wills” § 1180; Annotations on “Precatory Trusts” in 49 A.L.R. 10, 70 A.L.R. 326, and 107 A.L.R. 896.
This rental would now be $525.00 per month except for the fact that Mrs. Polk in effect received $125.00 per month of the rental in advance several years ago.
Of course, a trustee could make a lease on a calendar year basis (or a crop year basis in an agricultural situation) in accordance with business customs of the locality; and a lease could extend to the end of the calendar year (or crop year) even if such time extended beyond the life of the trust. For equitable purposes we consider such a lease as being coterminus with the trust because at no event could it be longer than one year past the end of the trust. But the situation here is to make a lease for ten or fifteen years after the termination of the trust.
Ralph Patterson, Jr., now being of full age, could now make his own consent to such long term lease; and by proper proceedings the guardian of the two minor beneficiaries could be empowered to make such consent.
Annotations somewhat in point are found in 46 A.L.R. 2d 907 and 43 A.L.R. 2d 1102. See also 54 Am. Jur. 376 and Restatement of Trusts § 189e, page 500. | [
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"WOOD, J.,
(after stating the facts). It may be conceded for the purposes of this opinion that if the appel-lee’s tax deed is void for the reasons alleged in appellant’s complaint that appellant is the owner of the land and entitled to the relief prayed. But the chancellor was correct in holding that there was no competent evidence in the record to show that the appellee’s tax deed was void. The tax deed was regular on its face.
In Senter v. Greer, 101 Ark. 301, 302, we said: “The deed of the clerk of the county court, executed substantially as the statute requires, was prima facie evidence of title (Kirby’s Digest, § 7104), and was sufficient, in the absence of evidence showing that the tax sale was void, to warrant a court in confirming tlie title in ap-pellee. ’ ’
(1) While this was said in a suit to confirm a tax title, the same rule applies where it is sought to cancel a deed regular on its face as a cloud on title. Before appellant could have the affirmative relief of cancellation of appellee’s tax title, prayed for in his' complaint, the burden was upon him to show that the tax deed of the appel-lee was void.
(2) Appellant contended in ,the court below, and contends here, that the tax deed is void for the reason that the taxes on the land in controversy for the year 1910 were paid. This he undertakes to prove in the following manner:
O. L. Nall testified, by deposition, that he was the county clerk of Grant County, and as such was custodian of the records of the county. The records' showed that the taxes for the year 1910 were paid. There is a forfeiture indication on the real estate book of the east one-half southwest quarter section 23-6-13, in the name of Fannie Lybrand. He had examined the record of tax receipts for the year 1910, and it showed at page 223 that the taxes on the east one-half of the southwest quarter of section 22-6-13 had been paid for the year 1910 by the Mercantile Trust Company. He had examined the delinquent land record for that year to see whether or not the land in controversy was listed there for the non-payment of taxes and found that the east one-half of the southwest quarter of either 22 or 23 was sold for the taxes for the year 1910. He was asked whether the figures “22” or “23,” whichever it might have been, had been changed since the book was made, and answered, “It had been written with a pen section ‘23’ and changed to section ‘22’ by making a lead pencil ‘2’ over the ‘3.’ ” Witness did not know whether the change was made before or after the sale. The delinquent record shows that the deed was executed to Lybrand October 27, 1913.
On cross-examination, the witness stated that he had access to the original notice of land sales for delinquent taxes for the year 1910, and it showed that the land in controversy was published as delinquent for the taxes for the year 1910; that the record of sales had been recorded with pen and ink; that the number of the section had been changed with pencil, but he did not know at what date. The figure “3” was made with a pen and the figure “2” with a pencil. Witness had a record of the tax receipts to correspond with the real estate tax books for each corresponding year. The receipt for the taxes paid for the year 1910 was recorded in receipt record for 1910 ,on page 223. No date recorded. It was recorded on the record “northwest southwest'22-6-13, 320 acres $560.00.” It is a matter of fact from the records that the' land in controversy appears upon the records as having been assessed other than the southwest quarter. It is assessed separately. The record of sales conforms, as it now shows, with the notice of sale of delinquent land for the year 1910; but the record might not have conformed with such notice at the date of the recording of the delinquent list. If the record of delinquent lands for the year 1910 had been kept according to the published notice of the land sales for said year the original entry upon the sales book would have shown east one-half southwest quarter 22-6-13, but the record is not kept from the published notice. It is made up from the list returned by the sheriff for non-payment of taxes. The record of delinquent land for the year 1910, from which the witness testified, witness supposes is a copy from the record of the collector, made and filed with the clerk, but witness does not know. If it was correctly kept it would be a true copy, and the notice of sale made by the clerk would also be a true copy. Witness had not made a diligent search through his office for the original delinquent list of lands for non-payment of taxes for the year 1910, made by John B. G-ean, the collector of Grant County. Witness was deputy clerk at that time, but did not remember seeing the delinquent list. He must have seen it, however, as he wrote the delinquent record. A majority of the records of lands re turned delinquent for the year 1910, if not all, is in witness’ handwriting.
John B. Gean testified, .also by deposition, that he was sheriff and collector of Grant county in the year 1911. The real estate tax record for the year 1911 shows the east one-half of the southwest quarter section 22, township 6 south, range 13 west, in the name of V. V. Stockton, as having been paid for that year. On the real estate book it is marked “paid” and shows the date paid and the page the receipt was recorded on. If the taxes were not paid on any tract that was indicated by a small circle, thus “0.” “If the records are like I left them, then if the land in controversy is marked by figures indicating the page upon which the receipt was recorded and the date of payment of the taxes such is a good indication that such piece of land did not forfeit. ’ ’ As collector of Grant county, when the owner of a piece of land paid the taxes, witness always marked the tract paid on the tax book and gave the owner a receipt for the same. If the owner did not pay in the time required by law witness returned the tract delinquent, and it was advertised by the clerk as such and witness, as collector, sold it at public outcry at the courthouse, as provided by law. And when a tract of land was sold by him for the delinquent taxes he executed to the purchaser a certificate to such tract. It was not his custom to receive taxes twice on the same tract of land for the same year. Witness had occasion to examine the sale record of lands sold for non-payment of taxes for the year 1910, in which it appears that the land in controversy was sold to John W. Lybrand, and in which it appears that the numbers.of the land in controversy are correct, and that the record seems to have been tampered with. Since the sale of the lands for the delinquent taxes of the year 1910 witness had seen his advertisement of such lands and the east one-half of the southwest quarter of section 22, township 6 south, range 13 west, was advertised as delinquent. Since the sale of the lands in controversy the sale records seem to have been tampered with, but witness did not remember whether it was changed from 22 to 23 or 23 to 22. Witness’ recollection is that -in making a return of the tract in controversy he made it as section 22-6-13. The delinquent list witness filed with the clerk is correct. Witness does not know what it is. Witness was asked this question: “If the real estate records of 1910 show the east one-half of the southwest quarter of section 22-6-13 as having been paid on as required by law and the east one-half of the southwest quarter of section 23-6-13 is returned delinquent on said record then your recollection as to it being east one-half southwest quarter section 22, is wrong is it not?” and answered, ‘ ‘ I will just say that the delinquent list I filed with the clerk is correct. I do not know what it is. ’ ’
Now if the taxes were paid on the land in controversy for the year 1910, the above testimony shows that there was an original tax receipt issued showing such payment and a record made of this receipt, and the appellant does not show that the original tax receipt was lost or destroyed or that it was beyond his power to produce same in evidence. There is copied into the transcript what purports to be a tax receipt for the taxes of the year 1910, showing payment by the Mercantile Trust Company, but this purported receipt is not signed by the collector and is nowhere in the testimony identified as the original tax receipt or as a correct copy thereof. In fact, this purported tax receipt, for the purposes of proof, is of no more probative force than a blank piece of paper, and cannot be considered.
Neither the tax records nor any authenticated copies thereof were filed and brought into the record as a part of the evidence of the witnesses who testified about them.
(3) The only other evidence in regard to the payment of the taxes found in the record is a certificate of the sheriff and collector to the effect that he had examined the tax records in his office for the years 1903 to 1910, inclusive, and that they showed that the taxes on the lands in controversy were regularly paid for each of said years, and that the lands were not returned delinquent for the non-payment of taxes for the year 1910, and were not marked delinquent on the real estate record. Bnt the chancellor found that the witnesses were not brought into court; that the certificate was not taken as a deposition; that no notice was given to the defendant when it was made; that it was not sworn to, and that in such certificate he made no profert of the record itself or presented any certified copies of the record about which he testified. The chancellor correctly held, upon these findings, that the certificate was incompetent to he considered as evidence in the cause.
All this testimony of the clerk and sheriff was duly objected to when it was offered as being incompetent and the court correctly ruled that, in the form presented, it was incompetent.
There being no competent evidence in the record to warrant the cancellation of appellee’s deed it follows that the trial court was correct in so holding and its decree is therefore affirmed. | [
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HART, J.
On July 10, 1916, E. S. Ready instituted this action in the chancery court against the Yalley Oil Company, alleging that it was an insolvent corporation and praying for its dissolution and the settlement of its affairs. A receiver was appointed and its property was sold for enough to pay its debts in full.
Among the claims presented to the court for allowance was a claim for $29,700 filed by the New South Oil Mill, a copartnership.
E. C. Hornor, S. S. Faulkner and T. H. Faulkner, stockholders in the Valley Oil Company, filed exceptions to the allowance of the claim, and for grounds stated that E. S. Ready was an officer and stockholder in the Yalley Oil Company and that he had purchased the claims of four creditors aggregating $29,700, at thirty-three and one-third cents on the dollar and that they were transferred to the New South Oil Mill for himself. Their contention was that said claims should only be allowed for the price actually paid the creditors for them.
The chancery court allowed the claims in full with interest and Hornor and others have prosecuted this ap-. peal from that decree.
The facts upon which the decree was bas'ed are as follows:
The Yalley Oil Company was a domestic corporation doing business at Pine Bluff, Arkansas, with an authorized capital stock of $83,000, which was divided into 830 shares of the par value of $100 each. The stockholders and the amount of stock owned by them in the company are as follows:
E. C. Hornor.,..$19,000
Geo. W. Willey. 13,000
A. H. D. Perkins. 10,000
W..A. Short,. 10,000
T. H. Faulkner.$ 4,000
S. S. Faulkner. 4,000
Leon Berton. 3,000
John Meyers. 1,000
E. S. Beady. 19,000
Perkins, Beady, Hornor and S. S. Fanlkner, were directors of the corporation. Perkins was president and manager and Beady was vice president of the corporation. In 1915 the corporation owed debts to the amount of between fifty-seven and fifty-eight thousand dollars. Of these debts twenty-nine thousand seven hundred dollars were owed to creditors who were not secured. Hor-nor, Perkins and Willey endorsed the notes of the corporation for the balance of its indebtedness. In 1915 all these endorsers were insolvent except Beady. The officers and stockholders of the corporation regarded it as being in an insolvent condition, and in the fall of 1915, held a meeting at which the creditors of the corporation were present. An effort was made to get the unsecured creditors to take hold of the oil mill and run it until they had made sufficient profit to pay themselves. The creditors declined to do this. An offer was then made to buy the claims of the unsecured creditors at a discount' but the creditors refused tó take less than seventy-five cents on the dollar. This offer was refused by the stockholders of the corporation. In 1916 a committee, of which Beady was a member, was appointed to formulate a letter and send to the unsecured creditors offering thirty-three and one-third cents on a dollar for their claims. The draft of this letter was prepared by Beady and submitted to Perkins, the president of the corporation. Perkins sent the letter to the creditors and they replied by refusing the offer. Perkins was asked to resign because the company was insolvent and unable to pay him any salary. Perkins sent in his resignation, which was accepted on July 6,1916.
As above stated, the present suit was filed on July 10,1916. About the middle of June, 1916, the New South Oil Mill, a partnership composed of B. T. Doughtie and Mrs. Ready, the wife of E. S. Ready, began negotiations looking to the purchase of these unsecured claims. E. S. Ready acted as agent of the firm and secured the assignment of the claims of four creditors aggregating in amount twenty-nine thousand and seven hundred dollars' to the New South Oil Mill. The creditors were paid by a check of the firm signed by R. T. Doughtie and countersigned by E. S. Ready. Ready met the creditors in the city of New York in June, 1916, and there made the contract for the purchase of the claims at thirty-three and one-third cents on the dollar, cash. When he returned home the checks were sent in to the creditors at once. The New South Oil Mill was the successor of the South Oil Mill Company, which was a corporation. It had a capital stock of $50,000, divided into two thousand shares of stock, of which Ready owned eleven hundred and sixty-four. In the fall of 1912, the corporation was dissolved and its assets turned over to the New South Oil Mill, a partnership composed of R. T. Doughtie and Mrs. E. S. Ready. Ready gave to his wife his interest in the corporation. He was solvent at the time and has continued solvent ever since. He was a director in a bank in the city of Helena at that time. The bank became insolvent in 1913, and Ready was appointed receiver and wound up its affairs.
It may here he stated that it is the contention of the stockholders of the Valley Oil Company that Ready purchased the claims in question for himself and that their transfer to the New South Oil Mill was colorable merely. On this point Doughtie, being called by the appellants, testified that he and Mrs. E. S. Ready composed the firm of the New South Oil Mill, which operated an oil mill at Helena, Arkansas; that E. S. Ready had no interest in said firm; that Ready was paid the sum of $300 per month by the firm to act in an advisory capacity merely, hut that he, Doughtie, was the active manager of the firm; that all the checks of the firm were signed by himself and countersigned by E. S. Ready or by Mrs. E. S. Ready; that the Valley Oil Mill Company became indebted to his firm in the sum of $10,000 and in this way he became interested in the affairs of that corporation; that the corporation began to be regarded as insolvent in the spring of 1915; that differences had arisen between its stockholders and that he had been called in to help adjust these differences and in this way became perfectly familiar with the affairs of this corporation; that he knew a committee had been appointed to buy in the claims of the unsecured creditors at a discount and that their negotiations had been unsuccessful ; that about the middle of June, 1916, he first conceived the idea of buying the^e claims for his firm and in this way help to protect his firm in its own claim; that he mentioned the matter to Mr. Ready and got bim to undertake the negotiations for his firm; that pursuant to his directions, Mr. Ready went to New York City and met the representatives of the four unsecured creditors whose claims aggregated the sum of $29,700; that after some discussion of the matter, they agreed to take thirty-three and one-third cents on the dollar for their claims if they should be paid at once in cash. Ready agreed to this offer for the New South Oil Mill, and as soon as he returned to Helena, checks were sent to . the various creditors signed by R. T. Doughtie for the New South Oil Mill and countersigned by E. S. Ready as had been the custom. Doughtie stated positively that he first formed the design of buying these claims at a discount for his firm and so stated to .Ready. He stated in positive language that the money was paid by his firm and that Ready had no interest whatever in the transaction except to act as agent for the firm.
E. S. Ready was also called as a witness by the appellants and in every respect corroborated the testimony of R. T. Doughtie.
It was agreed that at the sale of the property of the Valley Oil Company there were three persons bidding— E. C. Hornor of Helena, Mr. R. T. Doughtie, representing the New South Oil Mill, and Mr. Leo M. Andrews of Pine Bluff. All three bidders engaged in bidding until the sum of $50,000 was bid, but Mr. E. C. Hornor there after dropped out and bidding was thereafter increased from time to time by the other two bidders until the New South Oil Mill bid $66,450. Thereupon Leo M. Andrews bid $66,500, which was the last and best bid, and the property was struck off and sold to him for that amount.
E. S. Hornor and T. H. Faulkner testified that they were on the committee to purchase the creditors’ claims at a discount and stated that after the committee had quit acting as a committee that they were endeavoring to buy in the unsecured claims for forty cents on the dollar; that they intended to pay the money themselves and buy in the claims for the corporation.
As above stated, the court found the issues in favor of the New South Oil Mill. The issue was the fraudulent conduct of Ready in the purchase of the claims of the unsecured creditors.
(1) A corporation can only act by agents and the directors are the governing body of the corporation. They stand in a fiduciary relation to the corporation and its stockholders. They owe the duty of the utmost good faith toward the corporation and toward the shareholders who elect them. Nedry v. Vaile, 109 Ark. 584.
(2) Ready was a director of the Valley Oil Company, and when it was thought to be in an insolvent condition he was appointed on a committee to compromise its debts and buy in the claims against it at a discount if possible. Under these circumstances he owed to the corporation and to the shareholders the duty of acting in their interest and for their benefit. He could not buy up its outstanding debts for his own benefit, knowing the corporation to be insolvent, and hold the debts so purchased for their full amount.
In 10 Cyc. 798, it is said that beyond question a director of an insolvent corporation will not be allowed to buy up its debts at a discount, and prove them against the corporation as a creditor for their face value.
In Thompson on Corporations, Vol. 2 (2 ed.), par. 1238, the rule is stated as follows:
“It may be stated as a general rule that a director will not be permitted to purchase claims against the corporation, either when he owes to it the duty of acting in its interests and for its benefit, or when, knowing the corporation to be insolvent, he buys such claims for his own benefit, intending thereby to get an advantage over the other creditors and hold the claims thus purchased against the corporation for their full amount. In all such cases it may be said that the director will have no claim against the corporation beyond the amount actually expended by him. Thus a director acting as a special committee to settle certain claims against the corporation, can not claim for himself the benefit of reductions secured by him in the adjustment and compromise of claims, though purchased by him with his own funds. ’ ’
So it may be said that if Ready purchased the claims of the creditors of the Yalley Oil Company for himself, or if he was a member of the firm in whose name the claims were purchased, or if he was financially interested in such firm, under the principles of law above cited, neither he nor his firm could reap any profit from the transaction, but the purchase would be considered to be made for the benefit of the Yalley Oil Company and its stockholders.
(3) In testing this issue of fraud, we should, of course, thoroughly sift the transaction and consider it in its true light. All the attending circumstances which in any wise tend to shed light upon the transaction should be closely scrutinized and the entire field explored to determine whether or not the purchase was fraudulent within the meaning of the rule just.announced. At the outset it may be well to remember that both Doughtie and Ready were called as witnesses by the appellants. They detailed the whole transaction without any hesitancy whatever, and there was no material discrepancy in their testimony. Ready organized the New South Oil Mill Company and was its principal stockholder. Doughtie was also interested in that corporation. They both were men of considerable experience in the oil, mill business. In tlie fall of 1912, all the property of that corporation was turned over to the New South Oil Mill, a partnership formed for that purpose. Doughtie and Mrs. Ready were members of the firm. Mrs. Ready acquired her interest by gift from her husband. Mr. Ready was solvent at the time he gave the property to her and has been solvent ever since. There is a suggestion that he was director in a bank, in the city of Helena, which failed in 1913, and that he gave this property to his wife in order to escape liability as such director. Ready was appointed receiver of the bank when it failed and there is nothing whatever in the record to show that his conduct as director of that bank had been such as to cause him to fear that he might become personally liable for the debts of the bank. So it may be said that he had a perfect right to give his wife an interest in the firm of the New South Oil Mill. It is true that he was afterwards paid a salary to act in an advisory capacity to the firm, but this the parties had a right to do. Doughtie was the active manager of the firm and checks given by the firm were signed by Doughtie and countersigned by Mr. Ready or his wife. In this way both members of the firm could keep a check on each other as to the firm’s business.
Under these circumstances, we think the New South Oil Mill had a perfect right to purchase the claims of the creditors of the Valley Oil Company, and the fact that they employed Ready to conduct the transaction for them in no wise made the transaction fraudulent as far as the New South Oil Mill was concerned. We are not concerned in this opinion as to what the duty of Mr. Ready towards the shareholders in the Valley Oil Company should have been. If the New South Oil Mill had the legal right to purchase these claims, that right could not be defeated because the firm used for that purpose the services of a director of the Valley Oil Company corporation. This was not the case of a contract between corporations with interlocking directors or with a corporation where the director acted for it and also as agent for the other contracting party. The creditors acted for themselves and Ready acted for the New South Oil Mill.
The question in the. case which has given us the most concern is as to whether or not Ready in reality purchased the claims for himself in the name of the New South Oil Mill. If Ready was the real purchaser of the claims and the New South Oil Mill was merely used by him to conceal his interest in the transaction, such course was fraudulent within the rule above stated because of the confidential relation which existed by reason of Ready being director in the Valley Oil Company or which was created by him becoming a member of the committee appointed by the stockholders to purchase the claims of creditors for their benefit. Upon this issue we may consider any circumstances from which an inference of fraud was natural.
Counsel for appellant point to the fact that the Valley Oil Company was thought to be in an insolvent condition and Ready was one of its directors and actively participated in the management of its affairs; that he had been appointed on a committee for the purpose of compromising the debts of the corporation or buying in the claims of creditors at a discount; that he without notice to the other creditors or to any of the shareholders of the company went to the city of New York for the purpose of buying in these claims at a heavy discount ostensibly for a firm in which his wife owned a one-half interest. These were all cogent circumstances tending to show the want of good faith in Ready towards his fellow-shareholders, but the legal inferences of fraud which might be drawn therefrom were overcome by the positive testimony of Doughtie and Ready.
Doughtie testified that his firm was a creditor of the Valley Oil Company; that differences had arisen between the shareholders of that company and that he had been called in to adjust these differences; that in this way he became perfectly familiar with the affairs of the company ; that he was the active manager of his firm and first formed the design of buying in these claims for his firm. He stated positively that he asked Mr. Eeady to act for his firm in the transaction; that Eeady did act for the firm, that the amount paid, viz., thirty-three and one-third cents on the dollar, was actually paid by his firm. He further stated that Eeady had no financial interest whatever in the transaction.
Eeady was also called to the stand by appellants, and in every respect corroborated the testimony of Doughtie. They both had been men of recognized good standing in the business world, and there is nothing to impeach their testimony except the circumstances under which the purchase in question was made. The record shows that Doughtie was an active bidder when the assets of the corporation were sold and that his activity in that regard was the cause of the assets being sold for an amount sufficient to pay all the claims against the corporation.
The issue of fraud thus raised by the conflicting evidence was determined by the chancellor in favor of the New South Oil Mill, and after a careful consideration of the whole record, we are of the opinion that his finding is not against the preponderance of the evidence. Therefore, under the settled rules of this court, the decree will be affirmed. | [
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McCULLOCH, C. J.
Appellant instituted this action in the circuit court of Pope County against the receiver of the St. Louis, Iron Mountain & Southern Railway Company to recover damages on account of personal injuries alleged to have been inflicted by the negligence of appellee’s servants. There was a plea of former adjudication based upon a judgment of the circuit court of Garland County in a case involving the same cause of action, which said judgment is in the following language:
“Now on this day this canse comes on to be heard, comes the plaintiff in her own proper person and by her attorney, U. L. Meade, Esq., comes the defendant by its attorney, W. R. Donham, Esq., and by consent of the parties and leave of the court this canse is dismissed at the cost of defendant.
“It is therefore ordered and adjudged by the court that the plaintiff, Sarah E. Doan, do have and recover of and from the defendant, St. Louis, Iron Mountain & Southern Railway Company, all her costs in this suit by her laid out and expended. ’ ’
The statutes of this State contain the following provisions with reference to the dismissal of an action without prejudice:
‘ ‘ An action may be dismissed without prejudice to a future action:
First. By the plaintiff before the final submission of the case to the jury, or to the court, where the trial is by the court.
Second. By the court where the plaintiff fails to appear on the trial.” Kirby’s Digest, § 6167.
There is a conflict in the authorities as to the effect of the dismissal of an action by agreement, but the rule seems to us to be established by the weight of authority that “a judgment of dismissal entered in pursuance of an agreement of the parties has the legal effect of an adjustment of the merits of the controversy, which constitutes a bar to a subsequent action.” 9 R. C. L. 211. The leading case on that side of the question is The Bank v. Hopkins, 2 Dana 395, where the court said:
“It has been frequently decided by this court, that the legal deduction from a judgment dismissing a suit ‘ agreed, ’ is, that the parties had, by their agreement, adjusted the subject-matter of controversy in that suit; and the legal effect of such a judgment is, therefore, that it will operate as a bar to any other suit between the same parties, on the identical cause of action thus adjusted by the parties, and merged in the judgment thereon rendered, at their instance, and in consequence of their agree ment. If, in such, a case, the original cause of action has not been actually extinguished by payment, or other actual satisfaction, but was only transformed, by the agreement of the parties, into a new cause of action, the remedy must be on the latter, and can not be maintained -on the former and extinguished cause of action. ’ ’
The same court in the later case of Jarboe v. Smith, 10 B. Mon. 257, said: ‘ <vThe legal effect of an order dismissing a suit agreed is, to bar any other suit between the same parties, on the original cause of action thus adjusted by them. ”
The Virginia Court of Appeals, speaking on the same subject, said: [‘The court is of the opinion that the judgment of a court of competent jurisdiction, dismissing a suit agreed, upon the ground that it had been agreed by the parties, is a final determination, as to those parties, of the matters litigated in that suit. It is virtually an acknowledgment by the plaintiff in open court, as in re traxit, that the plaintiff has no cause of action, or rather no further cause of action. It is not merely an abandonment of his suit by the plaintiff, as in a nonsuit; it is the concurrent action of both parties. It is a representation by the plaintiff to the court that the'suit has been agreed, which is assented to by the defendant; and thereupon the suit is dismissed agreed by the judgment of the court, without costs to either party. To say that a suit is agreed by the parties is, in effect, to say that the cause of the suit has been agreed. It is a declaration of record sanctioned by the judgment of the court, that the cause of action has been adjusted by the parties themselves, in their own way, and that the suit is dismissed agreed.” Hoover v. Mitchell, 25 Grat. 387. To the same effect see Merritt v. Campbell, 47 Cal. 542; Ford v. Roberts, 14 Col. 291; Phillpotts v. Blasdel, 10 Nev. 19. Mr. Black in his Work on Judgments, also states that to be the sound rule. 2 Black on Judgments, § 706.
There are, however, well considered opinions to the contrary, notably the opinion of Chief Justice Winslow in Bishop v. McGillis, 82 Wis. 120, and also the opinion of the Supreme Court of the United States in the case of Haldeman v. United States, 91 U. S. 584. See also State Medical Board v. Stewart, 46 Wash. 79, 89 Pac. 475; St. Joseph & Elkhart Power Co. v. Graham, 165 Ind. 16.
We believe it is sounder to say that where parties agree to a dismissal of a cause, such an agreement entered upon the record as the judgment of the court ought to be treated as a final disposition of the cause of action. ’A judgment of that kind does not fall within the terms of our statute which provides that the dismissal of an action either by the plaintiff or by the court shall be without prejudice to a future action. Any other view of the matter would give no effect whatever to the agreement of the parties and would treat the judgment of dismissal merely as a voluntary act of the plaintiff.
We are of the opinion, therefore, that the trial court was correct in sustaining the plea of former adjudication.
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Sam Robinson, Associate Justice.
The appellant was convicted in Clay County, Arkansas, on the charge of possessing stolen property exceeding in value the sum of $35.00. The information charged, also, that he had previously been convicted of a felony in Oklahoma and had been convicted of a felony in the District Court of the United States for the Eastern District of Illinois. The jury was unable to agree on the punishment, and the court fixed the penalty by sentencing the defendant to ten years in the penitentiary.
On appeal appellant urges several points for reversal, one of which is that the evidence is not sufficient to sustain the conviction. There is no contention that the defendant did not have in his possession mer chandise which had been stolen, consisting of several guns, bnt appellant does maintain that there is no substantial evidence from which an inference can be drawn that he knew the guns had been stolen. In view of the fact that the judgment must be reversed on other grounds, there is no need to abstract the evidence here. Suffice it to say that in our opinion there is substantial evidence to sustain the verdict.
Appellant contends that the State was permitted to impeach its own witness,. Charles Skaggs. The court permitted the prosecuting attorney to cross-examine this witness, on the theory that the prosecution was surprised by his testimony. Apparently the cross-examination included the reading from documents by the prosecuting attorney in the presence of the jury. The question is whether the cross-examination went so far that it can be said to amount to impeachment, but it is not necessary to dwell on this point, because in a new trial there will be absent the element of surprise giving the State’s attorney the right to cross-examine a State’s witness.
The jury was unable to agree on the punishment. Therefore, on the authority of Ark. Stat. § 43-2306, the court assessed the punishment by sentencing the defendant to ten years in the penitentiary. Appellant contends that the statute authorizing the court to fix the punishment is contrary to several provisions of the Constitution. But we do not reach the constitutional question. The rule is well established that the Constitution is not construed unless the cause cannot be disposed of on any other ground. Bailey v. State, 229 Ark. 74, 313 S. W. 2d 388.
On cross-examination, over the objection and exception of defendant’s counsel, the defendant was asked if he had been charged with other crimes. This was error. In Reddell v. State, 216 Ark. 197, 224 S. W. 2d 812, we said: “It is well settled in Arkansas that the defendant as a witness may not be questioned about mere previous arrests, indictments, or charges filed against him. The mere fact that a charge has been made, as distinguished from the doing of a criminal act or a conviction therefor, tends to prove nothing as to the credibility of the witness. Johnson v. State, 161 Ark. 111, 255 S. W. 571; Wray v. State, 167 Ark. 54, 266 S. W. 939; Jutson and Winters v. State, 213 Ark. 193, 209 S. W. 2d 681. And see 3 Wigmore, Evidence (3d Ed., 1940) § 980a.”
After his arrest on November 24, 1956, the defendant’s case was set for trial the following January. The case was continued to April 22nd. At that time the defendant failed to appear, and his bond was forfeited. In explaining his absence, on April 22nd, he stated that he was in jail at Kennett, Missouri, from February 1st to July 16th. The fact that the bond had been forfeited was wholly immaterial, as was the reason for the defendant’s absence. Neither sheds any light on the issue of the guilt or innocence of the accused, and we do not think the defendant’s effort to explain his absence by stating he was in jail in Missouri opened the door for the prolonged cross-examination of the defendant about other charges. The first fifteen pages of the record given to cross-examination are devoted almost exclusively to questioning the defendant about other offenses and other charges. Of course, we have held that a witness (and this includes the defendant who takes the stand in his own behalf) can be asked on cross-examination about acts embracing moral turpitude, for the purpose of shedding light on his credibility. But the rule is universal that a witness cannot be asked if he has been indicted or charged with an offense. “Nor should the court permit a question whether the witness has ever been arrested, incarcerated or imprisoned, accused, charged with, informed against, tried without being convicted, or indicted, or prosecuted for crime.” Under-hill’s Criminal Evidence, 5th Ed., Yol. 1, § 244.
It would unduly extend this opinion to set out the fifteen record pages of cross-examination above mentioned, but a liberal portion of it is as follows:
“Q. Doc, how old are you? A. 38 years old.
Q. Where were you born? A. Clinton, Arkansas.
Q. Where is Clinton? A. Yan Burén County.
Q. When did you move to Missouri? A. In 1941 when I came to Missouri.
Q. You moved to Missouri in 1941? A. Yes sir.
Q. Were you ever arrested or convicted of anything in Arkansas before you moved to Missouri? A. No, sir.
Q. You had never been charged over there with anything? A. No, sir.
Q. Are you sure of that? Public drunkenness or anything else? A. No, sir.
Q. You moved from Clinton right to Missouri? A. No, sir, moved from Clinton to Henrietta, Oklahoma.
Q. Is that where you stole the cattle? A. Where I, was supposed to have stolen cattle.
(Previously the State had proved the conviction for stealing domestic animals.)
Q. You weren’t guilty of that either? A. No, sir.
Q. But you were tried by a jury? A. Yes, sir.
Q. And found guilty by the jury? A. Yes, sir.
Q. You started serving time when? A. I believe the spring of ’40.
Q. When did you get out, February ’41? A. I believe that’s right.
Q. When did you go in service? A. January 5, 1942.
Q. You were in service about three years? You got out what month in ’45? A. I got out October 12th.
Q. October 12, 1945. How many days was it before you stole the car? A. I couldn’t be exact.
(In its case in chief, the State had proved this offense.)
Q. How many days did you have the car before you were arrested? A. I thinlc maybe over night, something like that.
Q. If you were arrested 11/17/45, then you stole it on the 16th, didn’t you? Did you steal the car or did they have you charged with it? A. I drove my ear and left the— went in a saloon, and got in another car and drove it off. I stopped at Centralia, Illinois at a beer joint.
Q. You didn’t have a bill of sale on that car? A. I didn’t have nothing.
Q. You pleaded guilty there, too? A. No.
Q. Did you plead guilty? A. I did.
Q. What was your lawyer’s name? A. Mr. Hans W. Wulff of St. Louis and I believe Mr. George K. Reeves from Caruthersville.
Q. You plead guilty there in stealing a car? A. Yes, sir.
Q. But you plead not guilty of larceny of domestic animals, cattle theft? A. Yes, sir.
Q. You were out of the Army less than a month when you got in trouble stealing a car? A. I would say around that length of time.
Q. When did you get out of the Federal Penitentiary? A. I don’t remember.
Q. Was it December 29, 1946? A. I believe it was along about that time, yes, sir.
Q. Where did you serve the Federal time ? A. Leavenworth.
Q. On January 6, 1954, were you picked up by the State Highway Patrol at Poplar Bluff? A. What day?
Q. January 6, 1954.
ME. CO OPEE: That is objected to.
Q. In January—
ME. COOPEE: He can ask if he was convicted.
ME. SHELL: You asked about charges, Mr. Cooper.
ME. COOPEE: No matter about that. All he can ask (is) if he has been convicted or if he did a certain thing.
COUET: Mr. Cooper, did you ask this witness on direct examination about charges he had been placed in jail on?
ME. COOPEE: No, sir, I certainly did not. If I did, I was asleep.
ME. SHELL: I would remind the court about all the charges in Missouri having been dismissed and that have not been dismissed. I submit that opened it up.
COUET: Did you ask him about the charges he had been placed under?
ME. COOPEE: I asked why he didn’t come to Arkansas on charges —
COUET: I am asking you this question, Mr. Cooper, did you ask about charges he had been placed in jail on?
ME. COOPEE: Yes, sir, in Caruthersville.
COUET: Then this is proper cross examination.
ME. BEADLEY: Just a minute.
(Conference at the bench.)
ME. BEADLEY: The court then is overruling Mr. Cooper’s objection?
COURT: Sustaining the objection to that question there. The court is permitting the prosecuting attorney to examine on any charges since December 1956 for the reason that the direct examination of the defense counsel made it competent.
MR. BRADLEY: Of course the defendant is objecting to the court’s ruling. Exception.
MR. COOPER: If the court please, my objection was to the whole business.
COURT: I sustained the objection to 1954, but by your direct examination of defendant on charges since December 1956, the court is holding this is competent for the prosecuting attorney to examine him on arrests and charges since December 1956.
MR. BRADLEY: Same objection.
COURT: All right.
MR. BRADLEY: Same exception.
Q. In May 1954, in or about Poplar Bluff, did you break into any place and steal something?
A. No, sir.
Q. You didn’t? Specifically the date is May 6, 1954.
MR. COOPER: I object to that.
COURT: Overruled.
MR. COOPER: Exception.
A. No, sir.
Q. On or about April 9th, or on or about April 7, 1955, in or around Caruthersville, Missouri, did you steal anything? A. No, sir.
Q. What happened to you between January and April? A. I was put in jail at Kennett.
Q. On charges over there for receiving stolen property, property alleged to have been stolen from places in Missouri? A. No, sir, not at Kennett.
MB. COOPER: We object to that.
COURT: Overruled.
MR. COOPER: Exception.
Q. Why were you put in jail? A. The warrant you fellows sent over there.
Q. Is that why you were put in jail over there first? A. At Kennett, yes.
Q. After you made bond in November or December, you came back to court in January, didn’t you? A. Yes, sir.
Q. You left here? A. Yes, sir.
Q. Freely and voluntarily? A. Yes, sir.
Q. Went back to Missouri? A. Yes, sir.
Q. You were in jail in April at the time the bond was forfeited, were you not? A. Yes, sir.
Q. What were you in jail for then? A. I don’t remember the charge right now.
Q. You are telling the jury you were in jail and you don’t even remember the charge? A. I don’t.
Q. As the truth of the matter, you know what the charge is, receiving stolen property alleged to have been stolen from places in Missouri, wasn’t it? A. No.
MR. COOPER: I object to the manner of examination of this witness. If Mr. Shell wants to know, he can get the alias warrant issued and the information from over there.
COURT: Mr. Cooper, the examination is proper and the statement you made is improper.
MR. SHELL: The alias warrant was issued after the bond was forfeited.
Q. Where were you in jail on—
MR. BRADLEY: I would like a ruling on Mr. Cooper’s objection.
COURT: Overruled.
MR. COOPER: I am objecting to statement of the prosecuting attorney testifying what was done because the record speaks for itself.
COURT: Do you want the court to state what the record shows?
MR. SHELL: Yes, sir, at this time I would like the court to state.
MR. COOPER: Yes, sir, I would like to see the record.
COURT: April 22, 1957, defendant called three times, failed to answer. Not present, forfeiture on bond, alias warrant for defendant.
MR. SHELL: That is on the—
COURT: April 22, 1957.
Q. Where were you on April 22, 1957? A. In jail at Kennett.
Q. What kind of charge? A. I don’t remember what the charge was.
Q. And at that time there were also charges against you in Pemiscot County and another county, three different counties, wasn’t there? A. No sir, there was two counties.
MR. COOPER: I ask that the witness be given time to answer the questions.
COURT: He can’t answer with you interrupting. The witness was trying to answer with you talking. Co ahead and answer.
A. Two counties in Missouri had warrants for me.
Q. You are telling this jury you can’t remember the charge? A. No, not Kennett.
Q. What in the other counties! A. Pemiscot, burglary and larceny.
Q. What other charges! A. That’s all.
Q. Did you have a charge of receiving stolen property or buying stolen property! A. No, sir.
Q. You don’t know what the charge was in Ken-nett! A. No, I don’t remember what it was. I had it read to me.
Q. Do you remember if it was murder! A. No, it was not murder.
Q. Do you remember whether it was rape! A. No, it wasn’t that.
Q. Do you remember whether it was stealing an automobile! A. I don’t remember what the charge was.
Q. You were in jail but you don’t remember what the charge was! A. That’s right.”
The rule is that a witness cannot be asked if he has been charged with a crime. There was nothing in the direct examination of the defendant that justified the prosecution in pursuing the subject of the defendant’s incarceration in the Kennett, Missouri, jail. He was asked on cross-examination: “Q. What happened to you between January and April! A. I was put in jail at Ken-nett. Q. On charges over there for receiving stolen property, property alleged to have been stolen from places in Missouri! A. No, sir, not at Kennett.” and “Q. As the truth of the matter, you know what the charge is, receiving stolen property alleged to have been stolen from places in Missouri, wasn’t it!” and “Q. Where were you on April 22, 1957! A. In jail at Kennett. Q. What kind of charge! A. I don’t remember what the charge was. Q. And at that time there were also charges against you in Pemiscot County and another county, three different counties, wasn’t there!” Questions concerning other charges against the defendant were repeated again and again by the prosecution. The effect of these questions was to impress upon the jury that the defendant had been charged in Missouri with offenses similar to the one for which he was then being tried. Evidence of other crimes (not charges) is admitted solely for the purpose of shedding light on the credibility of the witness, but such evidence is not admissible for the purpose of showing that the defendant is a person likely to commit the offense charged. Alford v. State, 223 Ark. 330, 266 S. W. 2d 804; Moore v. State, 227 Ark. 544, 299 S. W. 2d 838.
Next, the appellant contends that the federal offense of transporting a stolen automobile in interstate commerce will not support the charge of having been convicted of a prior offense under our statute. Act 228 of 1953 (Ark. Stat. §§ 43-2328-43-2330) is known as the “Habitual Criminal Act”. The first section (Ark. Stat. § 43-2328) deals with the punishment when the prior offense was committed in this State. Section 2 (Ark. Stat. § 43-2329) applies where the prior conviction was not in the courts of Arkansas. Section 2 provides:
“SECTION 2. Effect of conviction in another State. Any person convicted in any of the United States, or in any district or territory thereof, or in any Federal Court, or in a foreign country, of an offense which, if committed in this State, would be punishable by the laws of this State by imprisonment in the penitentiary, shall, upon conviction for any subsequent offense punishable by imprisonment, within this State, be subject to the punishment prescribed in Section 1 upon subsequent convictions, in the same manner and to the same extent as if such first conviction had taken place in a court in this State.” (Emphasis ours)
Obviously before Section 2 would apply the offense committed elsewhere would have to be punishable by the laws of this State if committed here. The evidence introduced by the State to prove the charge of having been convicted of a felony in a district court of the United States showed that the defendant had pleaded guilty to the violation of the Dyer Act on two counts. Appellant cites Landreth v. Gladden, 253 Or. 205, 324 P. 2d 475, as authority for the proposition that a prior conviction of transporting a stolen automobile in interstate commerce cannot be used as the basis for a charge of a prior conviction under a statute substantially the same as our Habitual Criminal Statute. But in the case at bar, not only did the defendant plead guilty to violating that section of the Dyer Act (18 U. S. C. A. § 2312) dealing with transporting a stolen vehicle in interstate commerce, but pleaded guilty, also, to violating § 2313, which provides: ‘ ‘ § 2313. Sale or receipt of stolen vehicles. Whoever receives, conceals, stores, barters, sells or disposes of any motor vehicle or aircraft, moving, as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.”
The distinction between § 2312 and § 2313 is pointed out in the Landreth case, and there the conviction in the federal case was under § 2312, which applies to transporting a stolen automobile in interstate commerce. Section 2313 makes it unlawful to “receive” a stolen automobile moving in interstate commerce, and such an act would also be a violation of the laws of this State. The fact that the vehicle was or was not moving in interstate commerce would be immaterial. People v. Morgan, 270 App. Div. 859, 60 N. Y. S. 2d 774.
For the error in permitting the State to cross-examine the defendant in regard to other charges, the judgment is reversed and. the cause remanded for new trial. | [
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George Rose Smith, J.
This is a proceeding instituted before the State Medical Board for the revocation of the appellant’s license to practice medicine. The complaint alleges two statutory grounds for revocation: First, that the license was obtained by fraud, and, secondly, that Dr. Bockman has been convicted of crimes involving moral turpitude. Ark. Stats. 1947 (1957 Replacement), § 72-613. The board, after a hearing at which Dr. Bockman appeared by counsel but not in person, found that both charges were sustained by the evidence and entered an order revoking the license. The record was reviewed on certiorari by the Pulaski Circuit Court, which affirmed the board’s decision.
The appellant contends that the board’s findings of fact are not sustained by any substantial competent evidence. Upon this point it is our rule in proceedings like this one that the board’s action will not be set aside on certiorari unless there is an entire absence of substantial evidence to sustain the findings, in which case the board’s action is deemed to be arbitrary. Hall v. Bledsoe, 126 Ark. 125, 189 S. W. 1041; Eclectic State Med. Bd. v. Beatty, 203 Ark. 294, 156 S. W. 2d 246.
For a reason to be explained later we discuss only the charge that the license was obtained by fraud. Dr. Bockman received his license from the Arkansas Eclectic Medical Board in 1922, although he does not appear to have practiced medicine in Arkansas until about 1937. In applying for the license Dr. Bockman stated on oath that he had attended lectures at the Kansas City College of Medicine and Surgery for four years, beginning in 1917, and that he had been granted a diploma by that institution on May 5, 1922.
The records of the Kansas City school were not available, but counsel for the board introduced the affidavits of six physicians who attended the college and graduated in the class of May, 1922. All six state that Dr. Bockman did not attend the school. It was also shown by affidavit that Dr. Bockman did not appear in the class graduation picture, nor was his name listed in the announcement of the commencement exercises. Counsel also introduced certified copies of judicial opinions rendered in Connecticut, in a proceeding which resulted in the revocation of Dr. Bookman’s license to practice there, in 1928. In detailed findings of fact the trial court found that Dr. Bockman was not a bona fide graduate of the Kansas City school, having merely paid $30 for the privilege of taking an examination (which no one failed to pass if a suitable fee was paid) and having on that basis been awarded an “honorary” degree. The trial court’s decision was affirmed on appeal. Aronson v. State Dept. of Health, 108 Conn. 84, 142 Atl. 476.
This proof is sufficient to sustain the finding that the license was obtained by means of false representations. Although the evidence consists of affidavits and certified copies of court decisions, it was nevertheless competent. This is not a criminal prosecution, in which the accused is entitled to be confronted by the witnesses against him. It is an administrative proceeding, civil in nature, as to which the governing statute provides: “The Board shall not be bound by strict or technical rules of evidence, but shall consider all evidence fully and fairly, provided, however, that all oral testimony considered by the Board must be under oath.” Ark. Stats., § 72-614. A provision of this kind is manifestly appropriate when the board members are not trained in the law, for the tribunal could not proceed at all if it were required to observe technical rules of evidence. Meffert v. State Board, 66 Kan. 710, 72 P. 247, affirmed, 195 U. S. 625. Affidavits are frequently used in quasi-judicial proceedings, as in hearings before the workmen’s compensation commission; there is no constitutional objection to this method of proof in a civil proceeding. Here the evidence is wholly uncontradicted, as Dr. Bookman did not choose to testify or to offer proof tending to refute the charges against him. We have no doubt that the evidence adduced was admissible in a hearing of this kind and was ample to sustain the findings.
Next, it is contended that the board is now without power to revoke any license issued before the passage of Act 198 of 1957. Appellant relies on this proviso in the 1957 statute: “Nothing in this Act shall be construed to invalidate or affect any person holding a valid unrevoked or unsuspended license to practice medicine in this state on the effective date of this act.” Ark. Stats., § 72-623. The argument is that since the 1957 statute authorizes the revocation of licenses procured by fraud (Ark. Stats., § 72-613), the quoted proviso prevents the cancellation of any license that was issued before the act became effective.
This interpretation of the legislative intent is unsound. The statute that was superseded by the 1957 act also provided for the revocation of licenses obtained by fraud. Pope’s Digest, § 10740. Indeed, that provision has been in the statutes for almost fifty years. The 1957 act, among other things, raised the standards for admission to the practice of medicine, by requiring a written examination, fixing the passing grade at an average of 75 per cent, authorizing the board to require all applicants to serve one year of internship, etc. We think it plain that the proviso relied upon by the appellant was inserted to protect physicians already licensed against the possibility of a revocation on the ground that their qualifications did not meet the more stringent requirements embodied in the 1957 act. If the proviso were given the sweeping effect that the appellant would have us attribute to it, it would follow that no license issued before the effective date of Act 198 of 1957 could ever be revoked for any reason whatever. Of course that was not the legislative intention.
Finally, the appellant interposes a plea of res judicata. It is shown that in 1937 a physician, acting as a representative of the medical profession as a whole, filed with the Eclectic Medical Board a complaint asking that Dr. Bookman’s license be revoked on the ground that he had been convicted in New York of crimes involving-moral turpitude. That board declined to revoke the license, holding that the proof of identity was insufficient and that in any event the offenses did not involve moral turpitude. On certiorari the circuit court refused to disturb the board’s findings, and no appeal was taken to this court. That decision is now relied upon as a complete bar to the present proceeding.
We think the plea to be well founded with respect to the second count in the present complaint, which alleges the same New York convictions. When an administrative tribunal acts judicially or quasi-judieially, there are good reasons for holding that its decisions should have the finality that is conferred by the rule of res judicata. See an extended note on the subject in 27 Michigan Law Review, p. 677. Especially is this true when, as here, the administrative decision has been upheld upon judicial review.
The prior decision, however, involved only the New York criminal convictions and is not a bar to the charge that Dr. Bookman’s license was fraudulently procured. It is shown that the attorney for the complainant in the 1937 proceedings knew that Dr. Bockman was not a bona fide graduate of the Kansas City medical school, but that fact ivas not asserted as a ground for the revoca tion of the license and was not considered by the Eclectic Medical Board. Doubtless the charge of fraudulent procurement of the license might have been joined with the charge of prior criminal convictions, but a joinder was not essential. The two instances of misconduct were entirely distinct, separated in time by a number of years, and had no bearing upon each other. Hence there were two causes of action, and a decision upon the first had no effect upon the second. State Life Ins. Co. v. Goodrum, 189 Ark. 509, 74 S. W. 2d 230. Since it was settled by the Beatty case, supra, that the practice of medicine under a license fraudulently obtained is a continuing offense, no issue of limitations or laches is now presented.
We conclude that the board was entitled to act upon the first charge in the complaint, but the defense of res judicata to the second count should have been sustained. Upon a finding of guilty the board is authorized to revoke the license, or to suspend it, or to place the person charged upon probation. Ark. Stats., § 72-614. The record does not indicate what penalty would have been imposed had the board considered only the charge that the license was procured by fraud. The cause will therefore be remanded, through the circuit court, to the board, to the end that that body may enter an order based only upon its finding that the license was obtained by false representations.
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McCulloch, C. J.
The indictment in this case mentioned the name of the accused as “Charlie Martin,” but appellant, Brady Martin, was arrested, arraigned and put on trial as the person accused, without any order of the court correcting the error. There was no objection made to the indictment by demurrer or other plea. The contention here is that the proof shows the correct name of appellant, and that he could not be convicted without an order of the court correcting the error in the name, under the statute which provides that error in the name of a defendant shall not vitiate an indictment, and that, “if his true name is discovered at any time before execution, an entry shall be made on the minutes of the court of his true name, referring to the fact of his being indicted by the name, mentioned in the indictment.” Crawford & Moses’ Digest, § 3017. The correction may be made, as will be seen from the language of the statute, at any time before execution, and the fact that an order correcting the error was not made before or during the progress of the trial does not afford grounds for setting aside the judgment of conviction. The design of the statute is to permit the correction to be made at any time, but, as appellant did not ask for a correction, or in an appropriate manner raise the question that he is not the person Who was indicted by the grand jury, and on arraignment pleaded not guilty and proceeded with the trial, he waived the right to have the correction made before conviction. Appellant demurred to the indictment on the ground that it failed to state facts sufficient to constitute a public offense, but this was not the proper manner to question the charge as being one against appellant.
The indictment was for burglary and grand larceny, and included other persons besides appellant. On the trial of the case appellant was acquitted of the crime of burglary, but convicted of grand larceny. He was charged with breaking into a store at Alma, in Crawford County, and stealing a lot of merchandise. Circumstantial evidence in the case, together with the fact that the property, after having been recently stolen, was found in appellant’s possession, was sufficient to sustain the conviction. ■ '
Appellant attempted to prove an alibi, and when one , of the witnesses was introduced to testify on that subject (a Mrs. Manus) the State undertook, on cross-examination, to discredit her by asking whether or not she had, late on the night that the alleged crime was committed, been out riding with a man in a stolen car. The witness admitted that she was out riding that night in the car at a very late hour, when there was a collision with another car, and that the man who was driving the car was arrested for speeding. We think that the testimony drawn out on cross-examination was competent for the purpose of throwing light on the credibility of the witness. It was a question for the jury to determine the extent which the incident should affect the credibility of the witness, and it was properly permitted to go to the jury for that purpose.
Error is assigned in amending one of appellant’s instructions on the subject of proof as to alibi. The instruction as requested by appellant’s counsel stated the law to be that it is not necessary for the accused to prove an alibi beyond a reasonable doubt, but if, after a full consideration of all the facts and circumstances in evidence, a reasonable doubt is entertained as to whether or not the accused was present at the time and place of the commission of the offense, it is the duty of the trial jury to give him the benefit of the doubt, and acquit him. The court struck out the words, “it is not necessary for defendant to prove an alibi to your satisfaction beyond a reasonable doubt,” and substituted the words, “the burden is on the defendant to prove this defense by a preponderance of the testimony,” leaving Intact the remainder of the instruction as requested by appellant. It seems to us that there was no substantial change in the meaning of the instruction, and that there was no prejudice in the modification.
Error is assigned in the refusal of the court to give the following instruction requested by appellant:
“á. You are instructed that the possession of recently stolen property presents a question for your determination, and which you may take into consideration in arriving at your verdict. However, it is only where the possession of the stolen goods, if you find that the defendant had possession of the stolen property, is found to be unsatisfactory, that such possession may be found sufficient to warrant an inference of guilt.”
The instruction, to say the least of it, was not couched in accurate language, and the court properly refused1 to give it. The meaning of the statement that “possession of the stolen property is found to be unsatisfactory” is not clear, and before the accused can complain of the refusal of the court to give an instruction he must offer one which is free from vagueness and ambiguities.
There are other assignments with respect to the court’s charge, which are not of sufficient importance to discuss.
There is no error found in' the record, and the judgment is affirmed. ■ | [
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Wood, J.
This is an action by the appellee against the appellant. The appellee alleged that the appellant was a foreign -corporation engaged' in the business of building bridges, and that, prior to the third day of August, 1917, it made a bid for the contract to do the bridge work on the Wilmot Road District in Ashley County, Arkansas; that its bid was accepted, and it entered into a contract with the road district for the building of bridges without first obtaining authority from the State of Arkansas to engage in such business in this State and' without complying with the laws of the State applicable to sjich corporations.
The appellant, in its answer, specifically denied the allegations of the complaint, and alleged that, if it engaged in business in the State of Arkansas without complying with the laws in regard to foreign corporations, such business transacted by it was interstate commerce and not subject to the regulation of the State laws; that, if the laws of the State 1825-1832, inclusive, Crawford & Moses’ Digest) forbidding foreign corporations to do business in the State without complying with the laws therein prescribed, be held to apply to the business of appellant, such laws were repugnant to the commerce clause of the Constitution of the United States, and therefore void.
The facts as set forth in an agreed statement of facts are as follows: “Kansas City Structural Steel Company is a corporation organized under the laws of the State of Missouri. On May 3, 1921, it executed a contrast with the Wilmot Road District for the construction of a steel bridge across Bayou Bartholomew, near the town of Wilmot, county of Ashley, State,of Arkansas. The contract was signed at Hamburg, Ashley County, Arkansas, by representatives of the contracting parties, and contained a provision that it should hot become effective until a bond to secure its faithful performance had been executed by the steel company. This bond was executed in Kansas City on May 5, 1921. On June 14, 1921, the defendant steel company sublet to the Yancey Construction Company of Abilene, Kansas, a partnership, the construction work upon the bridge, except the erection of the steel superstructure. On or about June 15, 1921, the Yancey Construction Company began work upon the bridge, and by August 17, 1921, had completed the greater portion of the work on the piers. On August 17, 1921, the Kansas City Structural Steel Company secured a permit, as required by law, authorizing it to do.business in the State of Arkansas, and on that da^ complied with the laws of the State with reference to'foreign corporations engaging in business within the State.
The Kansas City Structural Steel Company has not received any payments of money from the Wilmot Road District by reason of its contract for the construction of the bridge. The actual construction work done by the Yancey Construction Company was done by said company as independent contractors. The Kansas City Structural Steel Company fabricated the steel for its superstructure at its plant in Kansas City. Prior to August 17, 1921, three shipments of steel were made to Arkansas for use in the bridge, said shipments consisting of bolts, reenforcing rods, steel piers, tubes and angles, and this material was used in construction work done by tbe Yancey Construction Company under its contract with the Kansas City Structural Steel Company.”
In addition to the above it was shown that on July 21, 1921, the appellant shipped three cans of bridge paint, weighing 200 pounds, and also on July 2, 1921, had shipped two carloads of structural steel, and still another carload at another time, all material shipped prior to August 17, 1921. This paint and the carloads of structural steel were consigned to the appellant at Wilmot, Arkansas, from Kansas City, Missouri.
Upon the above facts the trial court rendered a judgment in favor of the appellee against the appellant in the sum of $1,000, from which is this appeal.
The facts are undisputed, and they constitute the doing of business by appellant in this State contrary to the laws applicable to foreign corporations, as contained in §§ 1825-1832 inclusive, Crawford & Moses’ Digest. It appears that appellant came into this State and bid on the contract for the construction of bridges in Wilmot Koad District; that its bid was accepted and the contract entered into in this State for the construction of these bridges; that, prior to the day when it obtained its license to do. business in this State, it had sublet a portion of the work which it had contracted to do, to a construction company, a partnership, in Abilene, Kansas; that, before it was authorized to do business in this State, appellant also shipped the structural steel necessary for the bridge work, consigned to itself at Wilmot, Arkansas; that, of this material, the appellant furnished the. Kansas company such bolts, reenforcing rods, steel piers, tubes and angles as were necessary to enable it to perform its part of the work, all of which it did and completed before the appellant secured/ its permit to do business in this State.
These acts separately (and certainly taken as a whole), looking towards the fulfillment of its contract to construct the bridges which was entered into, and to be performed, in this State, constituted the doing of business in this State, and the court was correct in so holding. The appellant .contends that these acts were wholly interstate in character, and relies upon the cases of Rose City Bottling Works v. Godchaux Sugars, Inc., 151 Ark. 269, and L. D. Powell Co. v. Rountree, 159 Ark. 121. Neither of these cases sustains appellant’s contention. In Rose City Bottling Works v. Godchaux Sugars, Inc., supra, a foreign corporation sold goods to a resident of this State and consigned the goods to its order at the buyer’s place of business, and the foreign corporation, through its local agent, negotiated and arranged with a third party whereby its agent should hold the goods until paid for. In that case we said: “If therefore the goods came into the State under shipper’s order consignment, retaining its character as interstate, it follows that there was no change in the character of the transaction in the further arrangement between the parties stipulating the method of payment of the price. The transaction, from inception to the end, was continuous and interstate in its character, for the contract now under consideration related to the method of the payment of the price, and did not constitute a new contract for the sale of the goods.”
In the case of L. D. Powell Co. v. Rountree, supra, a foreign corporation, through its traveling agent, took an order from a party in this State for certain books, and the foreign corporation shipped the books to the purchaser, under a contract by which the title was reserved in the seller until the purchase money was paid. The original purchaser, having failed to pay for the books, turned them over to an attorney in payment of a fee. Later a representative of the foreign corporation claimed the books, and the attorney having them in possession recognized the claim and offered to deliver the books to the agent of the foreign corporation. The latter resold these books to the attorney, under a contract similar in form to the contract under which they. were first purchased. We held that the first transaction was an interstate transaction, and that the latter was but a continuation of the original interstate transaction, and that the whole did not constitute the doing of business in this State by a foreign corporation, contrary to our laws. Among other things we said: “The books were not shipped into the State as sole and independent property of appellant for the purpose of selling them to the appellee or any other person. On the contrary, they were shipped into the State by appellant to McNeill on an order for future delivery, obtained by appellant’s traveling agent. The McNeill contract clearly covered an interstate transaction. The recovery of the books under the McNeill contract amounted to a collection growing out of an interstate transaction. The collection was made in books instead of money, and we think the resale of them, in order to convert them into money, was a continuation of the interstate transaction.”
The facts in the case at bar readily differentiate it from the doctrine of those eases. Here the bid for the contrast to build bridges in the State and the entering into the contract to build those bridges were strictly intrastate acts. Likewise, the furnishing of the material to the Yancey Construction Company after the same was shipped to Wilmot, Arkansas, to the order of the appellant, was strictly an intrastate and not an interstate transaction. These transactions were intrastate and not interstate transactions, and constituted the doing of business in this State. In Hogan v. Intertype Corporation, 136 Ark. 52, there was a sale of machinery by a foreign corporation to a resident of this State, and the machinery was shipped to the purchaser from another State to the shipper’s order, and was delivered by the seller to the buyer within this State. We held that this constituted an intrastate transaction. Among .other things we said: “One test laid down by the Ark ansas cases differentiating an interstate transaction from an intrastate transaction is the ownership of the property after it arrives in the State. An interstate transaction contemplates a consignor without and a consignee within a State, or vice versa.” The facts of the case in hand are much stronger to show an intrastate transaction than were the facts in the case of Hogan v. Intertype Corporation, supra. But this is not the case, on the facts, of a resident of this State ordering goods of a foreign corporation, and the shipment of those goods by the foreign corporation to its own order in this State for delivery to the purchaser. Not at all. Here the facts warranted the trial court in finding, and evidently it did find, that appellant shipped the material necessary in the construction of this bridge to Wiimot, and there established the emporium or warehouse from which it furnished to the Yancey Construction Company all the material the latter company required to do the work under its contract.
The facts bring this case within the principle announced by the Supreme Court of the United States in Browning v. Waycross, 233 U. S. 16; General Ry. Signal Co. v. Virginia, 246 U. S. 500, and York Mfg. Co. v. Colley, 247 U. S. 21, and that line of cases.
The judgment is correct, and it is affirmed. | [
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Ed. F. McFaddin, Associate Justice.
This is a Workmen’s Compensation case. Melvin Kelly suffered a heart attack and died while working for the appellant, E. P. Bettendorf & Company on April 25, 1956. The Workmen’s Compensation Commission made an award to the appellees, who are the widow and children of Melvin Kelly; the Circuit Court affirmed the Commission’s award; and appellant prosecutes this appeal, urging only one point for reversal, to-wit: “The decedent, Melvin Kelly, did not sustain an accidental injury arising out of his employment”. This assignment requires a brief review of the evidence and a discussion of the applicable rule of law.
Mr. Kelly, aged 43, was engaged in driving nails into pallets (boards) when he collapsed. Dr. Shelton (the local physician of the appellant) testified that Mr. Kelly had been suffering for some time with chronic ne phritis (kidney ailment), and also with hypertension (high blood pressure); and that physical exertion by a person suffering from hypertension increases the heart’s burden and hastens a heart attack. The death certificate signed by Dr. Shelton stated that Mr. Kelly died from a coronary infarction. When Mr. Kelly collapsed at his work, Dr. Shelton was called immediately, had the patient taken to the hospital, had oxygen administered; but all to no avail. It was Dr. Shelton’s opinion that Mr. Kelly died enroute to the hospital.
On this testimony, and other of a similar nature, the commission made an award of compensation for Mr. Kelly’s death. The Referee used this language in his opinion, which was affirmed by the full Commission:
“A study of the evidence in this case taken together with the medical testimony shows, in the opinion of the Referee, that the claimant had a pre-existing condition which taken together with the work load that the claimant was undertaking on the date of his collapse and death resulted in his collapse on the job in the course of his employment. The Referee is further of the opinion that the evidence shows that the claimant’s work was a causal connection in the claimant’s death. The evidence shows that the claimant was a hard worker and that he had worked on numerous occasions doing over-time work and this taken together with the amount of work that the claimant had done in the past and his collapse on the job while attempting to do the work before him on that date, made his collapse and death accidental injury arising out of and in the course of his employment.
In bringing the case to this Court, appellant’s counsel contends that anyone could have known that a person suffering from high blood pressure would have a heart attack if such person engaged in over-exertion; and so (reasons appellant’s attorney) Mr. Kelly’s death was not accidental but consequential due to his disease and Ms over-exertion. Iii an effort to avoid the effect of our holding in Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S. W. 2d 436, appellant uses this language :
. “The testimony of. the-very witness called by the claimants in this case to establish that Kelly died as the result of a heart attack, a contributing cause of which was the work which he. was performing, also indisputably establishes that the. heart- attack was not- unforeseen or unexpected, but, on the contrary, in light of the fact that he was suffering from hypertension and nephritis, that the occurrence of a heart attack was not only ex-pectable and foreseeable, but was entirely probable. ’ ’
We cannot follow appellant in the conclusion urged. Every time a mortal is born everyone knows that some time the mortal will die, so the death of a mortal is never unforeseen or unexpected in the light of human existence. But just when the death will occur and under what circumstances, is certainly unforeseeable and unpredictable. So it was with the heart attack of Mr. Kelly in the case at bar: no one could tell when it would occur. He was engaged in a line, of work, he was exerting himself by the driving of nails into the pallets, he collapsed: his death was, therefore, accidental and within the scope of his employment.
The unanimous opinion of this Court in the case of Bryant Stave & Heading Co. v. White, supra, is directly in point:
“In reference to the term ‘accidental injury’ it seems apparent that the adjective ‘accidental’ refers to and modifies the noun ‘injury’, and does not refer to the cause of the injury. There is no statutory requirement that the cause of the injury itself must have also been an accident. What the statute says is that the injury itself must have been accidental, that is, unforeseen and unexpected. . .
“Notwithstanding anything we may have said in prior cases, we hold that an accidental injury arises out of the employment when the required exertion producing the injury is too great for the person undertaking the work, whatever the degree of exertion or the condition of his health, provided the exertion is either the sole or a contributing cause of the injury. In short, an injury is accidental when either the cause or result is unexpected or accidental, although the work being done is usual or ordinary.”
Our case of Bryant Stave & Heading Co. v. White, supra, is in accord with the great weight of authority. In Vol. 19 NAACA Law Journal, p. 34, there is a lengthy review of our case, concluding with the statement that the holding in the Bryant Stave case is in accordance with the majority rule. There is this significant concluding sentence to the NAACA article, written in May, 1957: “May the few States that still adhere to the minority rule have the courage to reverse ■ themselves and restore justice to injured workers — and we predict that at least one of the minority States, Michigan, will soon join the majority. . .” This language was a real prophecy because in Sheppard v. Michigan National Bank, 348 Mich. 577, 83 N. W. 2d 614, the Supreme Court of Michigan on June 10, 1957 reached the same conclusion that we had reached in Bryant Stave & Heading Co. v. White, and cited our case and agreed with our hold ing. We continue to adhere to the holding in Bryant Stave & Heading Co. v. White, supra. The Commission was correct in making the award; and the Circuit Court was correct in affirming the Commission.
Affirmed.
The same argument was made before the Commission, and in its opinion the Commission used this language; “We think the argument advanced by counsel for respondents is worthy of note and comment. As set out hereinabove, counsel for respondents argues that the death of deceased, under circumstances then extant, was not unexpected. This argument rests on the undisputed factual situation in this case that no fortuitous event brought about the death of decedent, nor was decedent, at the time of his death, exposed to any conditions of employment not usual or customary. Then counsel for respondents contends that the death of deceased, coming when it did and as it did, could not be considered to be an unexpected death when it is taken into account that ailments from which deceased suffered coupled with usual exertjon, would reasonably result in death. Thus, according to counsel, instant case does not become a compensable one within the rule expressed in Bryant Stave & Heading Company v. White, ... In that case the court said, among other things, ‘That an injury is accidental when either the cause or result is unexpected, or accidental, although the work being done is usual or ordinary.’ ”
In 20 NAACA Law Journal p. 32 there is a review of the Michigan case. | [
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HART, J.
S. J. and M. A. Davis sned tbe Firemen’s Insurance Company of Newark, New Jersey, to recover on a policy of fire insurance. On tbe 20tb day of August, 1914, tbe defendant issued a policy of fire insurance to the plaintiffs, insuring tbeir piano situated in a certain dwelling in tbe city of Hot Springs, Arkansas, against loss by fire in tbe sum of $400 for tbe period of one year. On tbe 18th day of March, 1915, tbe building in which tbe piano was situated was destroyed by fire and tbe piano was greatly damaged by tbe fire.
The defense of tbe company was that the plaintiffs bad failed to comply with certain provisions of tbe policy, as follows: ‘ ‘ This company shall not be liable beyond tbe actual cash value of tbe property at tbe time any loss or damage occurs, and tbe loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation, however caused, and shall in no event exceed what it would then cost the insured to repair or replace tbe same with material of like kind and quality; said ascertainment, or estimate shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided; and, tbe amount of loss or damage having been thus determined, tbe sum for which this company is liable pursuant to this policy, shall be payable sixty days after due notice, ascertainment, estimate and satisfactory proof of tbe loss have been received by this company in accordance with tbe terms of this policy.”
“* * * No suit or action on this policy, for tbe recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by tbe assured with all tbe foregoing requirements, nor unless commenced within two years next after tbe fire.”
Tlje only issue of fact raised by tbe pleadings in this case was as to tbe amount of tbe loss suffered by the plaintiffs. It was tbe contention of tbe defendant that it was not liable because tbe plaintiffs bad not complied with tbe conditions of tbe policy in regard to arbitration under tbe clause - of tbe policy above stated and referred to.
It is contended by counsel for tbe defendant that tbe clause in tbe policy in regard to appraisement is a condition precedent to plaintiff’s right of recovery.
On tbe other band, it is tbe contention of counsel for tbe plaintiffs that this clause of tbe policy is contrary to section 4382 of Kirby’s Digest and is therefore void. Tbe section is as follows: “No policy of insurance shall contain any condition, provision or agreement which shall directly or indirectly deprive tbe insured or beneficiary of tbe right to trial by jury on any question of fact arising under such policy, and all such provisions, conditions or agreements -shall be void.”
(1) It has been held that a general covenant in a fire insurance policy to arbitrate all matters in dispute is invalid as ousting the courts of their jurisdiction, but that such a clause is a reasonable method of estimating and ascertaining tbe amount of loss or damage in case of disagreement as to such loss or damage and that such a clause may be made a condition precedent to tbe commencement of a suit upon tbe policy. See tbe case note to 15 L. R. A. (N. S.) 1055. Tbe effect of tbe bolding of tbe courts in this regard is that a clause which requires an arbitration to submit to tbe arbitrators a question of law is void because it ousts tbe courts of their jurisdiction; but that a clause which requires arbitration to determine tbe amount of loss is not invalid because it only involves an agreement to submit a question of fact. It would seem that tbe members of tbe Legislature bad this principle of law in view when tbe act under consideration was passed and that tbe object of tbe statute was to prevent insurance companies from inserting conditions like tbe one in question in their policies. In other words, they recognized that a failure to agree as to the amount of loss or damage raised an issue of fact and that the company might insert in its policies a clause providing for an appraisal in case of disagreement as to such an amount and make this a condition precedent to the insured’s rights of action on the policy. The statute in question was enacted to prevent insurance companies from doing this and to enable policy holders to go before a jury on questions of fact as well as questions of law.
(2) It is not contended that insurance companies are not subject to police regulations. It is too well settled to require a citation of authority that the business of fire insurance, as it is carried on in this State by corporations licensed and regulated by the State, is a proper subject for the exercise of the police power of the State.
It is also contended that the testimony does not warrant the verdict of the jury. The jury returned a verdict for $400, and it is true, according to the testimony of the witnesses for the insurance company, the piano was not worth that amount before it was injured by fire and that it could have been repaired for a sum not exceeding $55, but this testimony is contradicted by the evidence adduced in favor of the plaintiffs.
According to the testimony of the plaintiffs, the piano cost $550, and there was a piano player attached to it worth $250. The piano had been in the possession of the plaintiffs five or six years, but it had been used very little and had been well taken care of.
A piano dealer, who had been in the business for many years and who was also an expert piano tuner, testified that he was familiar with the mechanism and construction of pianos. The piano was carried to his place of business after it was injured by fire and he examined it and testified that the piano was of no practical value since its injury by the fire. He gave in detail his reasons therefor, and described minutely the condition of the piano when it was brought to his place of business after the fire. According to the testimony of the plaintiffs the piano was worth more than $400 at the time it was in jured by the fire. This evidence, if believed by the jury, was sufficient to warrant a verdict in favor of tbe plaintiffs. Tbe jury so found, and under tbe well settled rules of tbis court its verdict will not be disturbed on appeal.
Tbe judgment will therefore be affirmed. | [
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HART, J.,
(after stating the facts). There appears in the transcript what purports to be a redemption certificate showing the date of redemption of one of the tracts of land in controversy in this case and on another page what purports to be a list of lands returned delinquent by the St. Francis Levee District. The lands in question are particularly described in those papers. In response' to a petition for certiorari by' appellees, the clerk certified that these pages of the transcript were not properly a part of the record on this appeal. There is nothing in the record tending to contradict the certificate of the clerk and it will be taken as correct.
It appears from the decree itself that the exceptions were heard on the original complaint and decree, proof of publication, the report of sale, and the exceptions thereto by the Crittenden Investment Company. The report of sale states that the lands in question were redeemed within one year from the day of sale. This report was made by the clerk of the court, who under our statute is ex-officio commissioner in chancery. Acts of 1903, page 323.
The commissioner made his report of sale in the discharge of an official duty as directed by the decree of sale. The Crittenden Investment Company, being the purchaser at the sale, made itself a party to the action for all purposes connected with the sale. It filed exceptions to the report of the commissioner, but no proof was offered in support of its exceptions. The report of the commissioner was prima facie correct and furnished sufficient basis for the confirmation of the sale. 24 Cyc. 33; Childress v. Harrison, 1 Baxter (Tenn.) 410; Wigginton v. Nehan (Court of Appeals of Kentucky), 76 S. W. 196; Oliphant v. Burns (Court of Appeals of New York), 40 N. E. 980; Laidley v. Jasper, 49 W. Va. 526, 39 S. E. 169, and Bolgiano v. Cooke, 19 Md. 375.
There is contained in the report opposite the description of one of the tracts the figures “2/5/16.” It is contended that these figures indicate that the land was redeemed on February 5,1916, which was more than a year after the day of sale. It is true figures are sometimes used to indicate the day of the month and the year on which transactions occurred, but we do not think that these figures should be sufficient to overcome the positive statement of the commissioner that the lands were redeemed within one year from the day of sale. It must be remembered that both the figures and the statement that the lands had been redeemed within one year from the day of sale were made by the commissibner in an official report to the court and the figures used are not sufficient proof to overcome the positive words used in the report that the lands had been redeemed within one year from the day of sale.
It is also sought to uphold the decree on the ground that the period of redemption was extended to five years by Act, 43 of the Acts of 1915. See Acts of 1915, page 123. On the other hand, it is contended by the counsel for appellant that the sale having been made before the passage of this act that it did not apply. The views we have expressed make it unnecessary to decide this question.
It follows that the decree will be affirmed. | [
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ohn Mauzy Pittman, Chief Judge.
The appellant in this J criminal case entered a conditional plea of guilty pursuant to Ark. R. Crim. P. 24.3(b) to possession ofmethamphetamine found in a search of his automobile conducted after his arrest. On appeal, he asserts that there was no valid basis to perform an inventory of his automobile and argues that the trial court therefore erred in denying his motion to suppress evidence obtained from the automobile following his arrest. We affirm.
The record shows that the owner of Johnson’s Automotive called police to report that appellant had driven by that business several times, leading the owner to suspect that appellant would attempt to remove one of appellant’s automobiles from impound after the business closed for the night. A check disclosed that there were outstanding warrants for appellant’s arrest for violation of the Arkansas Hot Check Law and for failure to pay child support, and an officer was dispatched to make contact with him. The officer saw appellant driving on Route 23 and attempted to stop him by engaging the emergency lights and siren of his patrol car. Appellant indicated by waving his hand and pointing out the window that he saw the officer but, instead of stopping in a nearby parking lot as directed, he continued driving, turned onto Benton Street, and parked on the street in front of his home. Appellant exited his car and was arrested on the outstanding warrants. Officers immediately performed an inventory of appellant’s automobile at the scene and discovered in a jacket in the front seat the methamphetamine that he was convicted of possessing in this case.
On appeal, appellant contends that there was no reasonable need to secure his automobile and its contents because it was parked in front of his home, and that the items discovered in his car therefore should have been suppressed as the fruits of an illegal search. Where the validity of a warrantless search is in issue, this court makes an independent determination, based on the totality of the circumstances, whether the evidence obtained by means of a warrantless arrest or search should be suppressed. The trial court’s finding will not be set aside unless it is found to be clearly against the preponderance of the evidence. As the preponderance of the evidence turns heavily on the question of credibility, we defer to the superior position of the trial court in making the determination of which evidence is to be believed. Folly v. State, 28 Ark. App. 98, 771 S.W.2d 306 (1989).
As a general rule, all searches conducted without a valid warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant. Kirk v. State, 38 Ark. App. 159, 832 S.W.2d 271 (1992). The burden is on the State to establish an exception to the warrant requirement. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998); Izell v. State, 75 Ark. App. 377, 58 S.W.3d 400 (2001).
One recognized exception is the so-called “inventory search” of an automobile, which permits police officers to conduct a warrantless inventory of a vehicle that is being impounded in order to protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger. Bratton v. State, 77 Ark. App. 174, 72 S.W.3d 522 (2002); see Ark. R. Crim. P. 12.6(b). However, the police may impound a vehicle and inventory its contents only if the actions are taken in good faith and in accordance with standard police procedures or policies; an inventory “may not be used as a guise for ‘general rummaging to discover incriminating evidence.’ ” Bratton v. State, 11 Ark. App. at 177-78, 72 S.W.3d at 525 (quoting Florida v. Wells, 495 U.S. 1, 4 (1990)). Although the fact that a vehicle is legally parked does not necessarily negate the need to take the vehicle into protective custody, Folly v. State, supra, factors such as hazard to public safety, possibility of vandalism, and the risk of theft are to be considered when determining whether protective custody is necessary. Izell v. State, supra.
In the present case, we need not decide whether the State demonstrated circumstances justifying an inventory because a search of the passenger compartment of appellant’s automobile was clearly permitted under the facts of this case as an incident of appellant’s arrest. We will affirm the trial court if it is correct even though the court states the wrong reason for its ruling, and this principle has been applied in cases where the issue was the validity of a search. See, e.g., Moya v. State, 335 Ark. 193, 981 S.W.2d 521 (1998); McKenzie v. State, 69 Ark. App. 186, 12 S.W.3d 250 (2000); Hicks v. State, 28 Ark. App. 268, 773 S.W.2d 113 (1989). The United States Supreme Court has held that, when a police officer makes a lawful custodial arrest of an automobile’s occupant or recent occupant, the Fourth Amendment allows the officer to search the vehicle’s passenger compartment and containers found therein as a contemporaneous incident of arrest. New York v. Belton, 453 U.S. 454, 460-61 (1981). The justification for the search is not that the arrestee has no privacy interest in the vehicle’s passenger compartment but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have. Id. This rule is not limited to situations where the police officer makes contact with the occupant while the occupant is inside the vehicle, but also applies in cases where a recent occupant of a vehicle is first contacted and arrested in close proximity to the vehicle. Thornton v. United States, 541 U.S. 615, 622 (2004). Our review of the totality of the circumstances leads us to conclude that the officer initiated contact with appellant while appellant was occupying his vehicle, and that appellant was clearly at least a recent occupant of his vehicle and in close proximity to his vehicle when he was placed under arrest; indeed, he had just stepped out of the car after being stopped by the officer. The search of the passenger compartment of that vehicle clearly was authorized under both New York v. Belton, supra, and Thornton v. United States, supra, and thus was permissible under the federal constitution.
Likewise, we think that the search of the vehicle incident to appellant’s arrest was proper under Arkansas law. As Judge Hart correctly notes in her dissent, article 2, section 15 of the Arkansas Constitution provides protection against unreasonable searches similar to that of the Constitution of the United States, and Arkansas courts are not bound by the federal interpretation of the Fourth Amendment when interpreting our own law. However, the Arkansas Supreme Court has considered this precise issue and expressly declined to depart from federal interpretation in the vehicular search-incident-to-arrest context, noting that it has long followed the rule enunciated in New York v. Belton and has found it to provide a practical and workable rule. Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995); see State v. Sullivan, 348 Ark. 647, 650-51, 74 S.W.3d 215, 217-18 (2002). Consequently the term “unreasonable search” as employed in article 2, section 15 of the Constitution of Arkansas is to be interpreted in the same manner the United States Supreme Court interprets the Fourth Amendment to the Constitution of the United States. Stout, 320 Ark. at 555-56, 898 S.W.2d at 460. Furthermore, the Stout court expressly rejected the argument that the Arkansas Rules of Criminal Procedure provide greater protection against unreasonable searches than does the Fourth Amendment in this context. The court noted that, although Rule 12.4, standing alone, does provide a more narrow definition of a reasonable search than does Belton, Rule 12.1 embraces the Belton rationale and allows the search of the passenger compartment of a car incident to a lawful custodial arrest without regard to whether the circumstances warrant a reasonable belief that the vehicle contains things connected with the offense for which the arrest was made. Stout, 320 Ark. at 556, 898 S.W.2d at 460-61.
Judge Neal, in his dissent, asserts that there must be some relationship between the vehicle and the reason for the arrest to support a valid search of the vehicle incident to the occupant’s arrest. No authority for this assertion is cited, and it is therefore difficult to address with specificity, but we note that the United States Court of Appeals for the Eighth Circuit appears to be unaware of any such principle. In circumstances similar to those presented here, that court upheld the search of the automobile recently driven by a man arrested on an outstanding arrest warrant for assault as a valid search incident to his arrest. United States v. Poggemiller, 375 F.3d 686 (8th Cir. 2004). In any event, the qualification that Judge Neal would place upon the Belton rule is plainly one that neither the United States Supreme Court nor the Arkansas Supreme Court has ever stated. Rather, Belton unquali-fiedly holds that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Belton, 453 U.S. at 460.
In his dissent, Judge Griffen argues that the search of a vehicle may be conducted as an incident of the occupant’s arrest only where there is reasonable cause to believe that the search will yield evidence of a crime. He is wrong. There is a distinction, apparently widely misunderstood, between the various legal principles governing searches of moveable vehicles. One such set of principles, established by the United States Supreme Court in Carroll v. United States, 267 U.S. 132 (1925), has been called the “automobile exception” to the warrant requirement. The permissible scope of a search conducted pursuant to the automobile exception is dependent upon circumstances like those that the dissenting judges assert are required in the present case:
[T]he scope of the warrantless search authorized by [the automobile] exception is no broader and no narrower than a magistrate could legitimately authorize by warrant. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the obj ect of the search.
United States v. Ross, 456 U.S. 798, 825 (1982). The automobile exception, however, is not involved in the present case. Neither is the plain view doctrine being relied upon, see McDonald v. State, 354 Ark. 216, 119 S.W.3d 41 (2003), or the principles applicable when the occupant of the vehicle consents to the search, see Duncan v. State, 304 Ark. 311, 802 S.W.2d 917 (1991).
Judge Griffen also argues that this case is similar to Izell v. State, 75 Ark. App. 377, 58 S.W.3d 400 (2001), where this court held that a search of a car parked in a driveway was not a valid search incident to arrest. However, the appellant in that case was inside his parents’ home when he was arrested, and had been for thirty to forty-five minutes before the police arrived and were admitted inside. To the extent of its holding regarding search incident to arrest, Izell is distinguishable from the case now before us.
Despite the assertions to the contrary made by some of the dissenting judges, the law upon which we rely is well-established and has been in effect for many years. In Chimel v. California, 395 U.S. 752 (1964), the United States Supreme Court declared that, when an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape, and to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. In United States v. Robinson, 414 U.S. 218 (1973), the Supreme Court reversed a decision of the District of Columbia Court of Appeals holding that a search made incident to arrest was unreasonable because the officer’s interest in self-protection could have been met by only a frisk of the arrestee, and because there was no evidence to be found given • that he was arrested for driving while his license was revoked. Noting that its fundamental disagreement with the court of appeals arose from the latter’s suggestion that it was necessary to litigate, in every case, the issue of whether a search incident to arrest was necessary to secure evidence or ensure officer protection, the Robinson Court wrote that:
A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment.
Robinson, 414 U.S. at 235 (emphasis added). Stated another way, a search incident to a lawful custodial arrest may be made consistent with the Fourth Amendment “whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence.” United States v. Chadwick, 433 U.S. 1, 14 (1977).
In New York v. Belton, 453 U.S. 454 (1981), the Supreme Court extended the doctrine in Robinson to allow the search of the entire passenger compartment of a vehicle as a contemporaneous incident of a valid arrest of an occupant or recent occupant of the vehicle. In so doing, it clearly explained the factors upon which its decision was based:
Although the principle that limits a search incident to a lawful custodial arrest may be stated clearly enough, courts have discovered the principle difficult to apply in specific cases. Yet, as one commentator has pointed out, the protection of the Fourth and Fourteenth Amendments “can only be realized if the police are acting under a set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement.” LaFave, “Case-By-Case Adjudication” Versus “Standardized Procedures”: The Robinson Dilemma, 1974 S.Ct.Rev. 127, 142. This is because “Fourth Amendment doctrine, given force and effect by the exclusionary rule, is primarily intended to regulate the police in their day-to-day activities and thus ought to be expressed in terms that are readily applicable by the police in the context of the law enforcement activities in which they are necessarily engaged. A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be ‘literally impossible of application by the officer in the field.’ ” Id., at 141. In short, “[a] single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.” Dunaway v. New York, 442 U.S. 200, 213-214 So it was that, in United States v. Robinson, 414 U.S. 218, the Court hewed to a straightforward rule, easily applied, and predictably enforced: “[I]n the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” Id., at 235. In so holding, the Court rejected the suggestion that “there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest.” Ibid.
Belton, 453 U.S. at 458-59. For the same pragmatic reasons, the Supreme Court in Thornton v. United States, 541 U.S. 615 (2004), refused to adopt a different rule to apply in cases where the suspect is arrested outside a vehicle he recently occupied:
Under petitioner’s proposed rule, an officer approaching a suspect who has just alighted from his vehicle would have to determine whether he actually confronted or signaled confrontation with the suspect while he remained in the car, or whether the suspect exited his vehicle unaware of, and for reasons unrelated to, the officer’s presence. This determination would be inherently subjective and highly fact specific, and would require precisely the sort of ad hoc determinations on the part of officers in the field and reviewing courts that Belton sought to avoid. Id., at 459-460, 101 S.Ct. 2860. Experience has shown that such a rule is impracticable, and we refuse to adopt it. So long as an arrestee is the sort of “recent occupant” of a vehicle such as petitioner was here, officers may search that vehicle incident to the arrest.
Thornton, 541 U.S. at 623. The Arkansas Supreme Court adopted the rationale of Belton as applicable to the Arkansas Constitution precisely because it was a practical and workable rule. See Stout v. State, supra; State v. Sullivan, supra.
The dissenting judges, perhaps hungering for that “heady stuff upon which the facile minds of lawyers and judges eagerly feed” described by the Belton Court, would reject the simple, straightforward, easily-applied, and predictably-enforced standard enunciated in that case in favor of a standard so nebulous that they themselves cannot precisely define it. Their position is not the law.
The trial court reached the right result, and we therefore affirm.
Affirmed.
Robbins, Vaught, Crabtree, and Baker, JJ., agree.
Hart, Gladwin, Griffen, and Neal, JJ., dissent.
“Unfortunately, lawyers and judges who have taken the words ‘automobile exception’ literally have created considerable confusion about the parameters of the Carroll decision and its progeny. The exception is neither limited to automobile searches, nor does it cover all searches of automobiles. . . . Many warrantless searches of movable vehicles are properly analyzed only in terms of other exceptions to the Fourth Amendment’s warrant requirement. For example,... a search of all or part of an automobile may be justified independently of the automobile exception if conducted incident to a lawful arrest, in performing a stop and frisk of a car’s occupants, under the authority of the plain view doctrine, while inventorying a car, or upon the consent of car’s occupant. Other constitutional searches of automobiles may not involve the Fourth Amendment at all.” Charles H. Whitebread & Christopher Slobogin, Criminal Procedure 179-80 (3d ed. 1992) (emphasis added) (internal footnotes omitted). | [
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Paul Ward, Associate Justice.
The main issue in this litigation is who is entitled to the proceeds of a life insurance policy.
O. D. York carried a $2,000 insurance policy made payable at his death to his wife who is the appellee herein. On August 20, 1955 appellee inflicted- knife wounds on York which resulted in his death a few days later. Ada York was appointed administratrix of York’s estate, and as such filed a complaint against the carrier insurance company and appellee for the proceeds of the policy. The complaint alleged that since appellee maliciously and wilfully inflicted the mortal wounds upon York she is disqualified under the law to receive the proceeds of the insurance policy, and that the insurer is ready and willing to pay the proper amount to the rightful owner. Appellee denied all material allegations and claimed the proceeds of the policy as the named beneficiary. The trial resulted in a verdict in favor of appellee, and from the judgment entered thereon appellant prosecutes this appeal.
The only ground urged for a reversal is that there is no substantial evidence to sustain the jury’s verdict. This case is similar in many respects to the case of Ada York, Administratrix v. Dorothy Marie Hampton, 229 Ark. 301, 314 S. W. 2d 480, decided by us this day to which reference is hereby made. The same principal of law applies to both cases.
There is in the record, we think, substantial evidence to support the verdict. Appellee cut the deceased on the left arm with a knife in front of their own home sometime around 12 o’clock at night. He was promptly sent to the hospital where the doctor attempted to stop the flow of blood from an artery. On August 24, York began to hemorihage and during an attempt to tie off the artery he died.
On the late afternoon of August 20 it seems appellee and some friends went to a cafe where they got sandwiches. The deceased also came to the cafe but soon returned home. Later when appellee and her friends approached the house the deceased told appellee to come on home. Appellee and one of her friends said she told him she would be there soon, but another witness said appellee replied: “I will be back when I get good and ready.” At about this time the deceased started towards appellee with a stick when appellee cut him on the arm with a knife. The sister testified that about two weeks before the affray she heard appellee say: “Don’t lose my knife because I am going to mess O. D. up with it”, meaning the deceased. Another witness said she was in a store when appellee bought a knife' when appellee said she had told appellant she was going to kill her husband. Appellee denied making these statements, and said she had carried a knife a long time like most colored women. Appellee testified: “At the time I cut him he hit me with a stick. I was going to get some barbecue and he asked me to come home and he insisted and cursed me and grabbed a stick and started toward me. I stood there and the reason I did not get out of the way I knew he would catch me. "When he hit me with the stick, I cut him. I felt I was in danger. I don’t know what size stick he hit me with. It knocked a hole in my head. I did not intend to kill deceased. I tried to keep him off of me. He had whipped me before and I had plenty of excuses to cut him before.” She further stated that she used the knife in Self defense. A witness who was present stated that appellee was not looking at the deceased when he hit her, but she might have seen him before he got to her; that the force of the blow did not knock appellee down but that she was bleeding at the head.
The jury had a right to believe or disbelieve all or any part of the testimony of any witness, and we must give the testimony its greatest weight in favor of appellee. Viewed in this light we are unable to say there is no substantial evidence to support the jury’s verdict.
Affirmed. | [
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Larry D. Vaught, Judge.
Guaranteed Auto Finance, Inc., appeals from the decision of the Board of Review reversing the Arkansas Appeal Tribunal Flearing Officer. The Board of Review found that Melvin Flores voluntarily left his work for good cause connected to the work, and he was entitled to unemployment benefits. We agree and affirm.
Melvin Flores began working as a salesman for Guaranteed on January 14, 1999. In March and April of 2004, Flores attended several religious seminars and began to observe Saturday as the Sabbath. On May 17, 2004, Flores met with his regional manager, Mike Phillips, to discuss his situation and ask that he be allowed Saturday off work for worship. Flores explained that it was his deeply held religious belief that Saturday was a day of rest and that to work on that day would violate his moral beliefs. He offered to work on Sunday instead or to work Wednesday, his other day off. Although the company is not officially open for business on Sunday, Flores testified that some of the sales personnel come in and work extra hours on Sunday. He argued that although administrative and managerial personnel were not available on Sunday, it was possible for sales representatives to work on Sunday taking applications and drumming up additional business. However, Flores admitted that people who worked extra on Sunday were also required to work Saturday.
Until 2004, Flores had always worked on Saturday. Although every sales representative received two days off a week — Sunday plus one day during the week — all sales personnel were required to work on Saturday because of the amount of business conducted on that day. Flores had worked every Saturday since he was hired except for when he was off for vacation. Flores stated that this was not a problem for him in the beginning because he only recently began celebrating Saturday as the Sabbath.
Flores testified before the hearing officer that after meeting with Phillips, he waited a couple of weeks to receive news regarding what the company had decided to do. Flores stated that he then asked about the status of his request, and he was told nothing had been decided. Flores stated that he had started getting “antsy” because he was still working on Saturday, which he felt violated his religious beliefs. At one point, he asked his manager, Greg Adams, what to do. Flores stated that Adams said he did not want to see Flores fired but that was what would happen if he took Saturday off without permission. Adams told him to take the next Saturday off as a sick day, which Flores did. The next Friday, June 4, 2004, Flores met with John Holbert, who presented the company’s refusal to accommodate Flores’s request. Holbert explained to Flores that if he did not show up for work on Saturday, he would be fired. Flores then cleaned out his office and left. He did not work on Saturday and did not return to work on Monday.
John Holbert also testified before the hearing officer. He stated that the company was closed on Sunday and provided no administrative support on that day. He stated that the main reason for not being open on Sunday was to provide a positive work environment for his staff — to give them two days off a week, Sunday and one day during the week. Sunday was chosen as the day off for everyone because that was the day most of the company’s suppliers and lenders took off. Holbert stated that as an accommodation, he offered Flores the opportunity to apply for any position within the company’s other departments that did not work on Saturday. These departments included administration, shop, and detail. Holbert stated that Flores did not apply for a position, but Holbert admitted that he did not know if there was an available position in any of those departments at that time or not. He stated that the company could not have created a position for Flores if one did not exist. There was a high probability that Flores’s salary would have been reduced significantly if a position had been open in another department. Holbert disagreed with Flores’s description of what would happen should Flores not show up for work the following Saturday. Holbert stated that he told Flores that if he did not show up for work, he would be treated in accordance with the employee handbook like anyone else who did not show up. Holbert stated that the first occurrence would warrant reprimand and the second would result in termination.
We must decide whether the Board of Review’s decision to award Flores unemployment benefits was supported by substantial evidence. In unemployment compensation cases, the scope of review is governed by the substantial evidence rule. Haig v. Everett, 8 Ark. App. 255, 650 S.W.2d 593 (1983). We review the evidence in the light most favorable to the appellee, and if there is substantial evidence to support the decision by the Board of Review, it must be affirmed. Id. at 258, 650 S.W.2d at 595. Substantial evidence is defined as such relevant evidence as a reasonable person might accept as adequately supporting the conclusion. Id., 650 S.W.2d at 595.
Arkansas Code Annotated section ll-10-513(a)(l) (Supp. 2005) provides that “an individual shall be disqualified for benefits if he or she voluntarily and without good cause connected with the work, left his or her last work.” Under Ark. Code Ann. § 11-10-515(c) (Repl. 2002), factors to be considered when determining whether an employee had good cause to voluntarily terminate his or her employment under section 513 include: risk involved to his or her health, safety, and morals; physical fitness and prior training; experience and prior earnings; length of his or her employment; prospects for obtaining work in customary occupation; distance of available work from residence; prospects for obtaining local work. Good cause has been defined as “a cause that would reasonably impel the average able-bodied, qualified worker to give up his or her employment” and is ordinarily a question of fact for the Board of Review to determine. Thornton v. Director, 80 Ark. App. 99, 91 S.W.3d 523 (2002). As a prerequisite for receiving unemployment benefits, an employee is required to make every reasonable effort to preserve his job rights before leaving employment. Booth v. Director, 59 Ark. App. 169, 954 S.W.2d 946 (1997).
We recognized in Haig that the Supreme Court of the United States has held that conditioning availability of benefits upon a person’s willingness to violate “cardinal principles” of their religious faith effectively penalized the free exercise of constitutional liberties. Haig, 8 Ark. App. at 257, 650 S.W.2d at 595 (citing Sherbert v. Verner, 374 U.S. 398 (1963)). The Supreme Court in Sherbert held that the lower court’s ruling denying the claimant benefits forced “her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” 374 U.S. at 404. Additionally, our opinion in Haig cites to Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707 (1981), where the Supreme Court, relying on Sherbert, held that the denial of unemployment-compensation benefits violated the claimant’s First Amendment right to the free exercise of religion. In that case, the Court stated that “[w]here the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.” Thomas, 450 U.S. at 717-18.
After a review of the record, we are satisfied that there is substantial evidence to support the Board’s decision granting benefits to Flores on a finding that he voluntarily quit his last work for good cause. Flores left his job because his company’s requirement that he work on Saturday conflicted with his religious belief that Saturday was the Sabbath. Flores requested an accommodation and attempted to resolve the matter before quitting; however, Guaranteed could not accommodate Flores because it required all its sales personnel to work on Saturday. Although Guaranteed argues that Flores did not make every reasonable effort to preserve his job rights because he did not apply for other positions within the company, there was no evidence presented that any other employment opportunities were available within the company at the time Flores left. Flores testified that it was his deeply held belief that working on Saturday violated the tenets of his religion. We agree with the Board that Flores had good cause to leave Guaranteed once his constitutionally protected religious beliefs diverged with his job requirements. Moreover, based on Sherbert and Thomas, Flores cannot be denied unemployment compensation solely because he chose his religion over his job. Therefore, we affirm.
Affirmed.
Hart and Neal, JJ., agree.
It should be pointed out that our opinion in Haig affirmed the Board’s denial of the claimant’s compensation benefits. 8 Ark.App. at 258-59, 650 S.W.2d at 595-96. However, our decision was based on the fact that the claimant’s reasons for voluntarily quitting his employment were personally motivated, rather than motivated by conduct mandated by his religious beliefs. Therefore, because the claimant was not required to choose between his job duties or his religious beliefs, he did not have good cause to terminate his employment. | [
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George Rose Smith, J.
This case arises from a traffic collision that occurred in Clark county on November 11, 1957. The proof shows that as the plaintiff-appellant, Callaway, was turning to his left to leave the highway his car was struck by one that was being driven by Neil Cherry, who was accompanied by his mother, Irene Cherry, and his cousin, Don Rodgers. The jury found that Callaway, Mrs. Cherry, and Rodgers sustained personal injuries.
Callaway asserted in his complaint that the three -occupants of the Cherry car were engaged in a joint enterprise, but at the close of the plaintiff’s proof the trial -court ruled that the evidence tending to show a joint enterprise was not sufficient to present a question for the jury. At the end of the trial the other issues raised by the complaint and the defendants ’ cross-complaints were submitted to the jury upon special interrogatories. The jury apportioned the total negligence in the ratio of 56 per cent to Neil Cherry and áá per cent to Callaway, found that neither Mrs. Cherry nor Don Rodgers was guilty of any negligence, and, as between Neil Cherry and Don Rodgers, found willful and wanton misconduct on Cherry’s part. The court entered a judgment fixing the liability of the various parties in accordance with the verdict.
The direct appeal involves only that part of the judgment by which Mrs. Cherry recovers damages of $10,000 from Callaway. Although Mrs. Cherry was found not to have been negligent herself, the appellant insists that the court erred in taking from the jury the issue of joint enterprise, whereby Neil Cherry’s negligence might have been imputed to his mother. We are of the opinion that this contention must be sustained.
The Cherry car was owned by Mrs. Cherry’s husband, who lived with his family in the city of Waldron. The Cherrys’ daughter, Sharon, was attending college at Arkadelphia and had been at home for a week-end visit. On the day of the accident the Cherry party had driven Sharon back to the school at Arkadelphia and were returning to Waldron when the collision took place. The sole purpose of the trip was to take Sharon to the college. Neil Cherry, who was driving the car, was a few days past eighteen years old and lived with Ms parents. Don Rodgers, who was sitting next to the driver, was only seventeen and had gone along ‘ ‘ just for the ride ’ ’; Callaway has abandoned his contention that Don shared in the asserted joint enterprise. Mrs. Cherry evidently knows how to drive, but at the time she was riding in the back seat. Called as a witness by the plaintiff, she testified that she would not have hesitated to reprimand her son if he had driven too fast. The clear implication of her testimony is that she expected Neil to obey her.
Upon this proof it was for the jury to say whether Mrs. Cherry’s right and power to control the actions of her minor son were sufficient to make her liable for his negligence. The situation is not unlike that considered in Minor v. Mapes, 102 Ark. 351, 144 S. W. 219, 39 L. R. A. N. S. 214, where we upheld the liability of a husband who was being driven by his wife. After pointing out that a guest is not ordinarily liable for the carelessness of a driver over whom the guest exercises no control, we stated: “This rule cannot, however, be. extended so as to afford an avenue for the husband’s escape from liability on account of negligent act of his. wife or minor child with whom he is driving in an automobile or other vehicle. He is presumed to exercise-some control over them under those circumstances, at least to the extent of preventing an act of negligence-which is calculated to result in injury to other persons,, and it is his positive duty to do so.” The case is perhaps not as strong when a mother rides with her minor son, but we are unwilling to say that fairminded men would necessarily conclude that the power of control is absent. Our holding in Lockhart v. Ross, 191 Ark. 743, 87 S. W. 2d 73, is easily distinguishable, for there the son was a man of forty-five and owned the car in which his mother was riding as his guest. We observed that there was “a total want of evidence” to show that the mother had any control over the use of the automobile.
In seeking to uphold the judgment counsel for Mrs. Cherry rely upon the language in many of our decisions, including the Lockhart case, to the effect that in a joint enterprise the participants must have an equal right to direct and govern the movements and conduct of each other. It is therefore contended that a joint enterprise could not have existed between Mrs. Cherry and her son, since Neil had no power to control his mother’s conduct. Even so, we regard the distinction as one of nomenclature rather than of substance. It might well have been more accurate for the plaintiff to assert an agency relationship rather than a joint venture; but the vital issue presented by the proof was whether Neil’s negligence might be imputed to his mother, and we are not persuaded that the imperfect terminology misled the trial court or opposing counsel.
Neil Cherry took a cross appeal and contends that there is no substantial evidence to support the jury’s finding that he was guilty of willful and wanton misconduct and was therefore jointly liable with Callaway for the $2,000 judgment awarded to Don Rodgers. We think that the testimony about Cherry’s greatly excessive speed warranted the submission of this issue to the jury. About a quarter of a mile from the scene of the accident young Cherry had passed another car which was traveling at 45 or 50 miles an hour. One of the occupants of this car testified that the Cherry vehicle was traveling very fast; “that car was just rocking when it passed me.” Another stated positively that Cherry was traveling at least 90 miles an hour. About the same estimate was given by the plaintiff. We do not intimate that any violation of the 60-mile-an-hour speed limit justifies a finding of willful and wanton misconduct, but “the difference between gross negligence and willful and wanton misconduct is so narrow and indistinct that in many instances the question is one for the jury.” Froman v. J. R. Kelley etc. Co., 196 Ark. 808, 120 S. W. 2d 164. Without attempting to lay down an inflexible rule on the subject, we hold that the testimony in this case warranted the court’s submission of the issue to the jury.
The judgment is affirmed on cross appeal, but on direct appeal the judgment is reversed and the cause remanded for a new trial. Upon remand the controversy between Callaway and Mrs. Cherry will be subject to a retrial upon all issues, but the disputes among the various other litigants have been settled by the original verdict and judgment. On this procedural point see Martin v. Street Imp. Dist. No. 349, 180 Ark. 298, 21 S. W. 2d 430; Oklahoma Gas S Elec. Co. v. Hofrichter, 196 Ark. 1, 116 S. W. 2d 599; Manzo v. Boulet, 220 Ark. 106, 246 S. W. 2d 126.
Harris, C. J., and MoPaddin, J., dissent to the affirmance on cross appeal. | [
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HUMPHREYS, J.
Appellant brought suit on the 24th day of February, 1916, against appellees in the Jefferson Chancery Court praying for a writ of error coram nobis for the purpose of reversing a judgment rendered on the 15th day of May, 1913, in an action wherein Mollie L. Bradford was plaintiff and Marcus L. Bradford, Crawford & Hooker, J. C. Bradford and Onie Bradford, his wife, were parties defendant, in so far as it affected the title to the northeast quarter of the northwest quarter of section 14, township 6 south, range 10 west, in Jefferson County, Arkansas. He alleged ownership of said estate by purchase from Marcus L. Bradford on the 13th day of March, 1913, also want of knowledge that the title to his land was involved in the suit of Mollie L. Bradford v. Marcus L. Bradford et al., assigning as a reason his inability to read and write. Excerpts from the judgment were incorporated in his petition but he did not make the entire judgment a part thereof. From the excerpts of the judgment set out in the petition, it appears that Mollie L. Bradford brought a suit against Marcus L. Bradford, her husband, for divorce, and alleged that he was the owner of the land in question. The court found that Marcus L. Bradford was the owner thereof; that on April 11, 1911, Marcus L. Bradford had executed a mortgage to Crawford & Hooker on said real estate; that on March 21, 1913, he had conveyed said real estate to J. C. Bradford by quitclaim deed for a consideration of $1 and the assumption of the Crawford & Hooker mortgage; that J. C. Bradford accepted the quitclaim deed with full knowledge of the claim of Mollie L. Bradford for alimony and that his title was subject to the interest and rights of Mollie L. Bradford and of the mortgage lien of Crawford & Hooker. The court rendered a decree in favor of Mollie L. Bradford for an undivided one-third interest in said real estate during her natural life, and in favor of Crawford & Hooker on their mortgage claim; that the land was not susceptible of division in kind and ordered same sold to satisfy the mortgage lien and to pay Mollie L. Bradford her interest therein. It also appears from the decree that the lands were sold by a commissioner for $700 to F. G-. Smart and S. E. Wilhoit, which sale was approved and confirmed by the court.
A demurrer was filed to the petition predicated upon the theory that a chancery court has no jurisdiction to issue a writ of error coram nobis; and that the petition failed to state any cause of action. The court sustained the demurrer to the petition and dismissed same, from which an appeal has been prosecuted to this court. Appellant contends that chancery courts have jurisdiction to issue writs of error coram nobis, and cites in support of his position, Mitchell v. Conley, 13 Ark. 414; Rawdon, Wright & Hatch v. Rapley, 14 Ark. 203; King & Houston v. State Bank, 9 Ark. 185; Bobo v. State, use, etc., 40 Ark. 224; Adler v. State, 35 Ark. 517.
We have examined the cases and find nothing in them to sustain the position assumed by appellant. • All of them, except Adler v. State, treat of the right of a court to amend a decree after term time either by motion or by nunc pro time order to make the decree or judgment speak the truth. The writ of error coram nobis was invoked in Adler v. State, supra, to reverse a judgment of conviction in a criminal case where the defendant was insane when tried bnt that fact not made known at the time of the trial.
It seems to be settled that a writ of error coram nobis has no place in chancery proceedings and is strictly - a common law writ. 2 R. C. L. 305-06; Reid’s, Admr. v. Strider’s Admr., 54 Am. Dec. 120.
Appellant does not insist that the allegations in his petition are sufficient to bring him within the statutory provisions for vacating judgments, nor that it contains the necessary .allegations for a bill of review.
No error appearing, the decree sustaining the demurrer and dismissing the petition is affirmed. | [
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Sam Robinson, Associate Justice.
Appellee owns a house and lot in Hot Spring County, just north of the city limits of Malvern. The ground is 308 feet in width at the front, where it joins the right of way of Highway 67, and it is 210 feet in depth. Fifteen feet across the entire front was taken for the purpose of improving Highway 67. Appellee filed a claim in the sum of $15,-000 for loss of the ground taken, plus damages to the remainder. Upon a trial in circuit court, a jury returned a verdict for $8,000. Appellant, Hot Spring County, has appealed, and contends that the verdict is excessive; that there is no substantial evidence to support the amount of the verdict. Appellant produced three expert witnesses, one of whom said the damages amount to $900, and the other gave a figure of $1,500 as damages.
To prove his damages, appellee introduced in evidence several pictures of the property before the highway was widened and the grade lowered, and also several pictures of the condition of the property after the new work on the highway was completed. Appellee contends that these pictures, without additional evidence, support the verdict, but we fail to see anything in the pictures indicating that appellee has been damaged to the extent of $8,000. In addition to the pictures, appellee produced two witnesses who gave testimony of the amount of damages. Appellee, Prickett, testified that there has been a depreciation in value of $25,000 because of the taking. It is not shown that he has had any experience in the real estate business, and there is. no showing whatever as to how he arrived at the $25,000 damages. He gave no facts to sustain his conclusion. True, he testified that the place cost $60,000, including the cost of improving the land and building the house, but he is an interested party, and his testimony on that point is not corroborated.
In addition to himself, appellee produced only one witness, Judy Carlisle, to prove damages. She testified that she has been a real estate agent since 1954; that the property before the taking was worth $58,000 and since the tailing it is worth $40,000 — damages of $18,-000. She had been in Malvern only about six months at the time she gave her testimony, although she had been in and out of the city for about three years. Apparently the only sale of real estate that she has made in or around Malvern is a 160 acre farm which sold for $20,000. Her business is primarily dealing in farms and ranches, and she has not bought or sold any residential property in Malvern. She testified that the value of the Prickett lot in itself was $9,000 before the taking and $6,000 thereafter. She also said that if the property were used for business purposes it would not be as accessible as it was before the taking, but its best and most valuable use is for residential purposes, and she sees no prospect of its being used for any other purpose. She also testified that the only other lots in that community that she knows of for sale are priced at $3,000, but no one has bought at that price. It cannot be said that the testimony of this witness standing alone, excepting the testimony given by appellee himself, is substantial evidence. See Ark. State Highway Comm. v. Byars, 221 Ark. 845, 256 S. W. 2d 738, and cases cited therein, and Texas Illinois.Natural Gas Pipeline Co. v. Lawhon, 220 Ark. 932, 251 S. W. 2d 477.
Reversed and remanded. | [
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HART, J.,
(after stating the facts). This appeal involves the construction of an act passed at the last session of the Legislature, approved January 24, 1917, prohibiting'the shipment of intoxicating liquors into this State, etc. Act 13, Acts of 1917. The particular sections necessary for a construction of the issues raised by this appeal are sections 1, 16 and 17, which are as follows:
“Section 1. That it shall be unlawful for any railroad company, express company, or other common carrier, or any officer, agent or employee of any of them, or any other person, to ship or to transport into, or deliver in this State in any manner or by any means whatsoever, any alcoholic, vinous, malt, spirituous or fermented liquors or any compound or preparation thereof, commonly called tonic, bitters or medicated liquors, from any other State, Territory or district of the United States, or from any foreign country, to any person, firm or corporation within this State, when the said liquors, or any of them, are intended by the person interested therein to be received, possessed or sold, or in any manner used except as provided or sold, or in any manner used except as provided in section 17. ’ ’
“Section 16. That in any indictment or presentment for any violation of this act it shall not be necessary to negative the exceptions herein contained, or that the liquors, bitters and drinks were ordered shipped, transported or delivered for any of the purposes set out in the succeeding section hereof, but such exceptions may be relied upon as defense and the burden of establishing the same shall be upon the persons claiming the benefits thereof.”
‘ ‘ Section 17. That nothing in this act shall make it unlawful (1) for any priest or minister of any religious denomination or sect to order and have shipped and delivered, wine for sacramental purposes; nor for any common carrier, corporation or person to ship, transport, carry or deliver wine for said purposes to any priest or minister of any religious denomination or sect; (2) for any person, firm or institution to have shipped and have delivered alcohol for strictly medicinal or mechanical purposes; but records shall be kept by the carrier or delivering party of all such wines for sacramental purposes and all such alcohol, and statements thereof shall be filed with the clerk of the circuit court within ten days after such delivery. ’ ’
The circuit court, in effect, instructed the jury that the express company delivered the alcohol to Wilson at its peril and that the question of its good faith could not be considered except in mitigation of the punishment. The court likened it to the sale of liquor to a minor where such sale is prohibited by statute. In Redmond v. State, 36 Ark. 58, the court held that one who sells liquor to a minor without the written consent of his parent or guardian, violates the statute, although he is informed and believed at the time that the minor is of full age. The court further held that an honest mistake as to the minor’s age would mitigate the penalty. It is insisted that by analogy this principle controls here. We do not think so. There the prohibition of the statute was absolute. Under the statute one could not sell liquor to a minor without the written consent of his parent or guardian, and a sale made to him without such consent was illegal, whether the seller knew him to be a minor or not. The offense was one where guilty intent was not an essential ingredient in its commission and need not be approved. In short, the court held that in such a case the liquor dealer acts at his peril and must ascertain the facts.
(1-2) Section 17 of the act under consideration expressly provides that it is not unlawful for any person, firm or institution to have shipped and delivered alcohol for strictly medicinal and mechanical purposes. It was the duty of the express company as an interstate common carrier for hire to receive for transportation to consignees upon its line in the State of Arkansas any article which was not prohibited by the laws of the State. There was no absolute prohibition against delivering alcohol, but on the other hand the act made it expressly lawful to deliver it for strictly medicinal or mechanical purposes. The express company would not violate the statute if it delivered the alcohol to a person who intended to use it for strictly medicinal or mechanical purposes. The express company, being an interstate common carrier and having a public duty to perform, if it acted with reasonable care or due caution to avoid a violation of the statute, it should not be deemed guilty. Mr. Bishop says that a statute will not generally make an act criminal, however broad may be its language, unless the offender’s intent concurred with his act, because the common law does not. Bishop on Statutory Crimes (3 ed.), § 132. Continuing in the same section, the learned author said:
(3-4-5) “One who, while careful and circumspect, is led into a mistake of facts, and, doing what would be in no way reprehensible were they what he supposes them to be, commit what under the real facts is á violation of a criminal statute, is guilty of no crime; because such is the rule of the common law, and in construction it restricts the statute. Yet in some instances of this sort lie incurs a civil liability. ’ ’ See also 1 McClain on Criminal Law, § 128; Adams Express Co. v. Commonwealth (Court of Appeals of Kentucky), 169 S. W. 603; Adams Express Co. v. Commonwealth (Court of Appeals of Kentucky), 112 S. W. 577. In the application of this principle the court should have admitted the testimony tending to show the good faith of the express company as a defense to the action and the court erred in not doing so and in limiting the testimony on this point to the mitigation of the punishment. It was the duty of the express company in receiving and carrying the alcohol from Poplar Bluff, Missouri, to Pike County, Arkansas, and in delivering it to Wilson at Murfreesboro to have acted in good faith and to have acted with ordinary care or due caution to avoid a violation of the statute. Common carriers are required to obey the law in like manner as other people are required to obey it. Its agents are required -to exercise the' same judgment as a reasonably prudent man would he required to exercise in the conduct of his own business. In short, when alcohol is shipped from a point out of this State to a point in the State and delivered by a common carrier to a person in this State, the duty devolves upon the carrier to use reasonable care to learn for what.purpose it is to be used, and it can only deliver the alcohol when in the exercise of such reasonable care it is convinced that the alcohol is to be used for strictly medicinal or mechanical purposes. As stated in Adams Express Company v. Commonwealth, 169 S. W. 603, if the express company acts upon reasonable grounds in good faith after such investigation as ordinary care requires, and is misled, it is not liable; otherwise, it is liable. So, too, in the case of the State v. Southern Express Co., 66 So. 115, in discussing this question, the Supreme Court of Alabama said:
“If in good faith and after proper investigation a common carrier of interstate commerce delivered liquors to a consignee without any knowledge upon its part that such liquors are intended by the consignee for illegal use, then such carrier can not, we think, he held to have violated any law of this State. ’ ’
In the case of Jas. Clark Distilling Co. v. Western Maryland Railroad Co., 219 Fed. 334, the court held:
“Where intoxicating liquors are offered to a carrier for transportation from Maryland into West Virginia, for the alleged personal use of the consignee, the carrier is not hound at his peril to make sure that the liquors are not intended to be used contrary to the laws of such State, but is only required to act in good faith in a bona fide effort to prevent its instrumentalities being used to aid a violation of the law. ’ ’ The court said:
“In this case nothing need be decided other than that the defendant as a common carrier is bound to receive for shipment, and to transport and deliver in West Virginia, such liquors as are intended solely for the personal use of the consignee, even though the orders for them had been solicited by letters mailed at points outside the State. It has no right to accept for shipment, or to deliver in West Virginia, liquors which are intended by any person interested therein to be used in any way forbidden by the law of that State.
It is not bound at its peril to make sure that no liquor transported by it is intended to be used contrary to the State law. It need not create or maintain any special staff of investigators or detectives to aid it in determining such questions. It must, however, act in good faith. Its agents and employees who handle such shipments for it must keep their eyes open, and must exercise common sense to prevent it and its instrumentalities being used as aids in violation of the law. ’ ’
(6) The question of the good faith of the express company in delivering the alcohol to Wilson was a question of fact for the jury in this case and the court should have instructed the jury as above indicated.
For the error in not doing so, the judgment must be reversed and the cause remanded for a new trial. | [
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Paul Ward, Associate Justice.
This litigation relates to the probation of a will made by W. M. Tatum March 31, 1954. Mr. Tatum, a widower at the time, died on February 24, 1957 at the age of 86, leaving three sons and one daughter. Appellee, May Belle Chandler, is the daughter and two of the sons are J. W. and James L. Tatum, the appellants. The other son is Auda L. Tatum.
The trial court admitted the will to probate, and appellants here seek a reversal on three grounds, to-wit: One, the will was not executed according to law; Two, the testator lacked mental capacity, and; Three, undue influence on the part of appellee.
The testator left an estate estimated at approximately $40,000 principally in real estate. By the terms of his will J. W. received 6 acres of land out of a certain forty on which the home of the deceased was situated; Appellee received the balance of that forty; J. W. and appellee together received an additional 90 acres; James L. received three acres with certain restrictions valued at about $800 and; Auda L. received one dollar.
From the record it appears that J. W. and his family lived with his father on the home for many years and that, until recent years, they farmed together; Appellee lived in Missouri but visited her father on numerous occasions; She made several gifts to her father totaling, according to her statements, about $2,000; At one time the son Auda, who lives in California, was given 40 acres of land by his father, and at another time he was given a place to bnild a house; J. W. and James L. had also received gifts from their father.
One. Appellant’s contention that the will was not legally executed is based on the testimony' of the two attesting witnesses. They both admitted they saw W. M. Tatum sign his name at the bottom of the paper or will, and also admitted they signed their names at the bottom of the attesting clause in the testator’s presence and in the presence of each other. Both witnesses however, said the will was not read in their presence and that the testator did not state the paper was his will or request them to sign as witnesses. In support of their contention appellants cite Orr v. Love, 225 Ark. 505, 283 S. W. 2d 667.
We are unable to agree with appellants. The will and the attesting clause admittedly appear to be regular in every respect. The attesting clause which the two witnesses admit signing states that they signed at Tatum’s request and that he declared in their presence the instrument was his last will and testament. The Orr case just cited merely holds that it is indispensable that the testator should know the contents of the will at the time of its execution, and that no presumption of due execution of a will arises from the mere production of an instrument purporting to be a last will.
In this case there is much more than the mere production of an instrument. The undisputed testimony of appellee was that Tatum had talked to her previously about making a will; that he, on this occasion, not only requested a will be made but dictated to her, while she made notes, just what he wanted in it; that he gave her land descriptions which she had never known; that she had an attorney to write the will as directed, and; that she personally invited the attesting witnesses to be present and informed them fully of the purpose. Before the two witnesses attested the will they visited a few minutes with J. W. Tatum and his wife in a room near where the will was executed, and J. W. knew at that time the will was to be executed. All these circumstances and others which could be cited from the record leave little doubt that all parties knew exactly what was going on at the time the will was executed. The Probate Judge’s finding that the will was properly executed is supported by the weight of the evidence. This court has held that such circumstances may be considered in this kind of a case. In Leister v. Chitwood, 216 Ark. 418, 225 S. W. 2d 936, we approved this statement.
“Each of the attesting witnesses must sign his name as a witness at the request of the testator, but such request might be inferred from the attendant circumstances in proof by signs or gestures as well as words . . . by the testator desiring the witnesses to be sent for to attest the execution of his will, or from a request made to such witnesses by another person in the testator’s presence.”
This court, in the case of Meek v. Bledsoe, 221 Ark. 395, 253 S. W. 2d 369, used language which we think is applicable here. In holding that it was not necessary to the validity of a will to show it was read by the testator before he signed it, the court quoted with approval:
“It is sufficient if the court is satisfied by competent evidence that the contents of the will were known to and approved by him. Where a will, written in the presence of the testator according to his dictation, is executed according to the statute, it is valid though not read to or by him.”
“The doctrine as stated by the English cases on this point is illuminating, viz.: ‘If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make a good will, if executed by the testator, is that he should be able to think thus far, “I gave my solicitor instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out. ’ ’ ’
In the case under consideration the record shows, in addition to what is heretofore set forth, that the testator had talked with the attorney who wrote the will and had paid him for writing it, that he actually signed the instrument which is now conceded to be his will, and that he talked to others later about having made the will. All this, we think, leaves no doubt that the will was properly executed in compliance with the statute. Certainly in the absence of any showing to the contrary, we must say that the court’s finding is supported by the weight of the evidence.
Two. In our opinion the record supports the finding of the Probate Court that W. M. Tatum was competent to execute his will. Mr. Tatum who was approximately 83 years old when he signed his will on March 31, 1954 and lived about 3 years thereafter. It is true that he had been in feeble health for a few years, that he was in bed at his home when he signed, and that he entered the Arkansas Baptist Hospital on April 5th or 6th, 1954. At that time Dr. Autry examined him, and later testified that Tatum’s condition was very poor, that he was not mentally alert, and that in his opinion Tatum was not mentally competent on March 31, 1954 to execute the will. On cross-examination however he stated “I cannot say that W. M. Tatum did not know what he was signing when he executed his will on March 31, 1954.” The testimony of Dr. Brown was much the same as that of Dr. Autry except there was no qualifying statement on cross-examination. There was also lay testimony to the effect that Tatum did not recognize some of his neighbors from time to time.
On the other hand there was somewhat convincing evidence that Tatum was competent to execute the will. James C. Yerdier, minister of the First Penecostal Church, testified that he had known Tatum since 1938, that Tatum was a friend but not a member of his church; that he visited him often — once just about the time the will was signed; that he talked with Tatum, and he appeared to be very rational, and; that Tatnm discussed the matter of the will with him in 1955. Dr. John W. Ashby, in substance, stated: I had known Tatum for 15 years, and treated him frequently during that time; I examined him the day the will was signed and he was suffering from uremia; I had been treating him for this disease several years; W. M. Tatum was mentally clear when I examined him, (the day the will was executed) he knew what he was doing and was capable of making a will. In addition to the above it was shown that Tatum was up and around visiting neighbors and transacting business after the will was signed.
We have frequently said that the test of mental capacity to execute a will is that the testator must be able to retain in mind without prompting the extent and condition of his property, to comprehend to whom he was giving it, and relations of those entitled to his bounty. See: McWilliams v. Neill, 202 Ark. 1087, 155 S. W. 2d 344; Parette v. Ivey, Executor, 209 Ark. 364, 190 S. W. 2d 441, and; Shippen v. Shippen, 213 Ark. 517, 211 S. W. 2d 433.
The burden of proving mental incapacity rests upon the one who seeks to prove it. See: Parette and Shippen, supra, and Gray v. Fulton, 205 Ark. 675, 170 S. W. 2d 384; Jones v. National Bank of Commerce, 220 Ark. 665, 249 S. W. 2d 105, and; Thiel, Adm. v. Mobley, 223 Ark. 167, 265 S. W. 2d 507.
Three. The Probate Judge found no undue influence was exercised to induce the execution of the will, and again we think this finding was justified by the evidence. Appellants admit that they carry the burden of proving undue influence, but say this burden was met by showing appellee was the prime beneficiary and that she helped in preparing for its execution. Due to this circumstance, they say, more strict proof was required of appellee, citing McDaniel v. Crosby, 19 Ark. 533. The rule alluded to however does not relieve appellants of the burden of proof. In fact there is no direct evidence in the record of nndne influence on the part of appellee or anyone else. The fact that appellee received under the will a larger portion of the estate than each of the appellants is not alone convincing or even significant. First, because the testator had a right to dispose of his property as he saw fit, and secondly, the discrepancies are partially justified at least by gifts previously made to some of his children.
Affirmed. | [
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Sam Bird, Judge.
On June 18, 2004, appellee Community Action Program for Central Arkansas (CAPCA) terminated appellant Brenda Pacheco from her employment. She subsequently applied for unemployment benefits, and her application was denied by the Arkansas Employment Security Department. Pacheco then appealed to the Arkansas Appeal Tribunal, which reversed the decision of the Department and awarded unemployment benefits to her. CAPCA appealed to the Board of Review, and the Board reversed the decision of the Appeal Tribunal. In the present appeal, Pacheco claims that the Board erred in finding that there was substantial evidence that she was discharged for misconduct under Ark. Code Ann. § 11-10-514. We agree with Pacheco, and for the reasons stated herein, we reverse and remand.
Arkansas Code Annotated section ll-10-514(a)(l) (Repl. 2002) states that a person shall be disqualified from receiving unemployment benefits if the Director of the Employment Security Department finds that the person is discharged from his or her last work for misconduct in connection with the work. “Misconduct,” for purposes of unemployment compensation, involves: (1) disregard of the employer’s interest, (2) violation of the employer’s rules, (3) disregard of the standards of behavior which the employer has a right to expect of his employees, and (4) disregard of the employee’s duties and obligations to his employer. Fulgham v. Director, 52 Ark. App. 197, 918 S.W.2d 186 (1996). To constitute misconduct, the definitions require more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good-faith errors in judgment or discretion. Johnson v. Director, 84 Ark. App. 349, 141 S.W.3d 1 (2004). Instead, there is an element of intent associated with a determination of misconduct. Id. There must be an intentional and deliberate violation, a willful and wanton disregard, or carelessness or negligence of such a degree or recurrence as to manifest wrongful intent or evil design. Id. Misconduct contemplates a willful or wanton disregard of an employer’s interest as is manifested in the deliberate violation or disregard of those standards of behavior which the employer has a right to expect from its employees. Id.
The evidence in this case reveals that on June 11, 2004, Pacheco was called into a meeting with her supervisor, Carolyn Mallot, and CAPCA’s human resources representative, Pam Hensley. Pacheco was informed that she was being placed on one week’s suspension from her employment, with pay, pending an investigation into co-workers’ complaints. Pacheco was apparently told not to discuss “it” with anyone pending completion of the investigation.
Upon her return on June 18, Pacheco was given a letter signed by CAPCA’s Executive Director, Phyllis Fry, and Head Start Director, Bill Ballard, informing her that she was dismissed from her position as Family Advocate for CAPCA Head Start for the following reasons:
Section 1200.00 of the Administrative Manual
#5 Inability to get along with co-workers, so that work is hindered or not up to required standards.
#7 Rudeness in dealing with the public, clients, vendors, or other employees.
#8 Conduct unbecoming of an employee, which adversely reflects upon the agency.
#12 Conduct which undermines the morale of other employees. #17 Using threatening or abusive language.
#18 Insubordination.
Pacheco pursued a grievance against CAPCA, which was denied. She then filed a claim for unemployment benefits, which has become the subject of this appeal. On July 12, 2004, the Department denied Pacheco’s application for unemployment benefits based on its determination that she was discharged from her job because she “willfully” did not perform her work satisfactorily and because her actions were within her control and against CAPCA’s best interest. Pacheco then appealed to the Arkansas Appeal Tribunal.
On August 12, 2004, the Appeal Tribunal conducted a hearing by telephone. During the hearing, CAPCA’s Head Start Program Director, Bill Ballard, testified that Pacheco worked for CAPCA from February 2000 to June 2004. He said that Pacheco’s primary functions were dealing with families, recruiting, and managing children’s records, and that the decision to terminate her was based on six items of disciplinary action found in CAPCA’s Administrative Manual. Specifically, he said that “all six items combined led us to make our decision to terminate Mrs. Pacheco’s employment with us.”
Ballard also said that, prior to Pacheco’s termination, she was suspended with pay pending an investigation into certain allegations, including that she was generally rude, that she was “running everybody off,” and that she “tried to make [her co-workers] live by her opinion.” In addition, Ballard said that Pacheco allegedly “threatened people with their jobs” and that she had, in the past, ignored an order from a center manager to perform a task. Ballard also testified that, at the time Pacheco was suspended, there were “six or eight pages of testimony” from her co-workers to support the allegations against her and that Pacheco “had access to look at these [allegations] and a chance to reply to all of them.” However, on cross-examination, Ballard admitted that he did not attend the meeting on June 11, that he did not know why Pacheco was not given a chance to review the file, but that he knew the investigation file was at the meeting if Pacheco had wanted to read it.
Ballard further testified that Pacheco had demonstrated insubordination by discussing the situation with others after CAPCA informed her of the investigation against her, suspended her with pay, and told her “not to discuss it until we completed our investigation.” Ballard said that, on the same day that Pacheco was suspended, CAPCA received calls “from outside, from people not even employed with CAPCA that they already knew about all of this, from [Pacheco], or from somebody she talked to.”
Carolyn Mallot, CAPCA’s Community Development Director, testified that she had supervised Pacheco from February 2004 to June 2004. Mallot said that CAPCA had planned to discuss the allegations with Pacheco after her suspension, but that the discussion never occurred because the center had received phone calls from persons asking questions about the matter.
Pacheco testified that during her employment with CAPCA, she never received any input that things were not going well and that no one warned her that she “was not popular.” She said that she did, however, notice “a lot of people resigning from their jobs.” She also said that she felt like she was “wrongly done” and that she filed a grievance procedure after being terminated. According to Pacheco, CAPCA responded to her grievance by stating that it had received a phone call after she was suspended, and based on that, the decision to terminate was proper.
Pacheco said that two co-workers contacted her by telephone the day after she was suspended and that she did not initiate the contacts. She said that the first caller called during her lunch break and asked her where she was, and that she replied, “Well, I’m not coming in this week.” The caller then asked, “What’s wrong?” and Pacheco replied, “I just can’t come in.” Pacheco said that she responded “no” when questioned by the caller about whether she was fired. Pacheco testified that she started crying during the conversation. According to Pacheco, the second phone call was from co-worker Charla Steiner. Pacheco denied discussing the details of her suspension with Steiner or the first caller, but admitted that she told both callers that she had been suspended.
Pacheco also testified that, on the day she was suspended, she told Mallot, “I don’t understand this,” and when she asked to further discuss the situation with Mallot, her request was denied. She said that on the day that she returned to work after her suspension, she was terminated. She testified that Ballard and Mallot told her that, based upon their investigation, she was fired. Pacheco stated that she did not “have a clue what they did,” but that she was given a letter of termination.
Charla Steiner testified that she resigned from CAPCA “because of what happened to [Pacheco].” She said that she did not know anyone who had quit because of Pacheco, and that she had never known Pacheco to talk to anyone in a rude manner or to have a verbal confrontation with anyone. Steiner also said that she called Pacheco on June 11, 2004, and that Pacheco was “crying” and saying that “she had been suspended and that she did not know why, but they said she was rude to people.” She said that Pacheco told her that she was not supposed to have any contact with anyone from work.
The Appeal Tribunal reversed the decision of the Department, concluding that there was not a preponderance of the evidence to support a finding that claimant willfully and intentionally failed to perform her job against the employer’s interest, and that she was discharged from her last work for reasons which do not constitute misconduct in connection with the work. CAPCA then appealed to the Board of Review.
The Board of Review reversed the decision of the Appeal Tribunal, stating as follows:
Based on the evidence, the Board of Review finds that the claimant was discharged from last work for misconduct not con nected with the work. The available evidence does not establish that the claimant’s conduct, in regard to the original complaints, rose to the level of misconduct. She may have exceeded her authority to some extent by attempting to correct problems with other coworkers rather than report the problems to the appropriate supervisor for correction. It has not been shown that the claimant was acting against the employer’s interests, nor that she was advised to stop attempting to correct her coworkers.
However, the claimant’s conduct after her suspension was more serious, and this was the reason the employer discharged her without conducting any further investigation of the complaints. The claimant was told not to discuss the matter with any coworkers. The testimony of the claimant’s witness was the most damaging evidence against the claimant. The claimant may not have initiated the phone calls to her coworker, but she told her coworkers that she had been suspended, that the reason for the suspension was allegations of rudeness, and that her suspension would last a week. The claimant knew that she was not supposed to discuss the matter with her coworkers, and even told them she was not supposed to discuss it when she, in fact, discussed it with them.... ? If the claimant had simply told the coworkers that she had been instructed not to discuss her absence, her conduct would probably not rise to a level to constitute misconduct, and the outcome of this case might be different. However, the claimant disclosed information to the callers after she was specifically told not to discuss the matter with her coworkers. Her conduct violated a standard of behavior the employer had a reasonable right to expect. Therefore, the decision of the Appeal Tribunal (Appeal No. 2004-AT-07484), which reversed the Department determination, is reversed on the finding that the claimant was discharged from last work for misconduct connected with the work.
(Emphasis added.)
Whether an employee’s actions constitute misconduct in connection with the work sufficient to deny unemployment benefits is a question of fact for the Board. Thomas v. Director, 55 Ark. App. 101, 931 S.W.2d 146 (1996). Our standard of review of the Board’s findings of fact is well-settled:
We do not conduct a de novo review in appeals from the Board of Review. In appeals of unemployment compensation cases we instead review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board of Review’s findings. The findings of fact made by the Board of Review are conclusive if supported by substantial evidence; even when there is evidence upon which the Board might have reached a different decision, the scope ofjudicial review is limited to a determination of whether the Board could have reasonably reached its decision based on the evidence before it. Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion.
Johnson v. Director, supra (citing Snyder v. Director, 81 Ark. App. 262, 263, 101 S.W.3d 270, 271 (2003)). Additionally, the credibility of witnesses and the weight to be accorded their testimony are matters to be resolved by the Board of Review .Johnson, supra.
Here, there is no evidence that Pacheco manifested the requisite intent to constitute misconduct under Ark. Code Ann. § 11-10-514. The Board of Review found that Pacheco disclosed information about her suspension over the phone after she was specifically told not to discuss the matter with her coworkers, and that her conduct violated a standard of behavior the employer had a reasonable right to expect. Our difficulty with the Board’s conclusion, however, is that we are unable to find any evidence in the testimony of CAPCA’s witnesses, or anywhere else in the record, that enables us to determine what “the matter” was that Pacheco was not supposed to discuss.
The evidence shows that CAPCA instructed Pacheco not to discuss “it” with anyone pending investigation of the allegations against her. Although CAPCA had planned to discuss these allegations with Pacheco after her suspension, Carolyn Mallot testified that this discussion never occurred. Furthermore, Pacheco testified that, on the day she was suspended, she told Mallot, “I don’t understand this,” and when she asked to further discuss the situation with Mallot, her request was denied.
After Pacheco was suspended, two co-workers called to inquire why she was not at work. Pacheco clearly did not initiate this contact, and she was emotional and crying when she informed the callers that she had been suspended. Other than telling Charla Steiner that she had been accused of being rude, there is no evidence that Pacheco discussed anything with her about an investigation that was about to be undertaken by CAPCA. If, as the Board suggests, Pacheco should have responded to inquiries by saying that she “was not supposed to discuss her absence,” then that is what CAPCA should have instructed her to do. An admonition not to discuss “it” is not sufficiently specific to put Pacheco on notice of what “it” was that she was not to discuss.
In our view, a reasonable mind could not accept this evidence as adequate to support the conclusion that Pacheco’s actions constituted an intentional and deliberate violation of her employer’s expectations. We therefore hold that the Board’s decision was not supported by substantial evidence, and we reverse and remand the case to the Board for further proceedings to determine the amount and duration of Pacheco’s benefits.
Reversed and remanded.
Hart and Crabtree, JJ., agree. | [
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George Rose Smith, J.
This case is closely related to the proceedings considered in Mo. Pac. Transp. Co. v. Inter City Transit Co., 216 Ark. 95, 224 S. W. 2d 372. It will be convenient to review the earlier case briefly before coming to the facts in the present proceeding.
In 1948 Inter City Transit Company, which was then operating a bus service between Little Eock and Morrilton, applied for a certificate of convenience and necessity authorizing it to operate between Little Eock and Port Smith over highways 64 and 65 and between Russellville and Port Smith over highways 7 and 22. That application was resisted by Missouri Pacific Transportation Company, which operated bus lines over both routes covered by Inter City’s application, and by Crown Coach Company, whose bus service between Little Rock and Port Smith used a parallel route along highways 10 and 71.
The proof in the earlier case showed that there was undoubtedly a need for additional intermediate or local bus service between the various cities and towns lying between Little Rock and Port Smith on highways 22, 64, and 65. It was not shown, however, that there was any public need for additional bus service for through traffic between Fort Smith and Little Rock or North Little Rock or between Alma and Little Rock. It was accordingly held in the earlier case that Inter City’s application should be granted subject to certain restrictions, the principal ones being that Inter City would not be allowed to handle through traffic between the terminal points that we have just mentioned.
This arrangement continued in force until the present proceeding was begun in 1956. In September of that year Missouri Pacific (which has since become Midwest Buslines, Inc.) discontinued its bus service between Port Smith and Russellville along highways 7 and 22, on the south side of the Arkansas River, and reduced from five to two its daily schedules between Port Smith and Little Rock along highways 64 and 65, on the north side of the river. Inter City at once filed the present application, asking the Public Service Commission to remove the restrictions imposed in the 1948 proceeding and thus to permit Inter City to provide a through bus service between Port Smith and Little Rock-North Little Rock and between Alma and Little Rock.
After an extended hearing the Commission, by a two-to-one vote of its members, granted Inter City’s request that the restrictions be lifted. On appeal the circuit court affirmed the Commission’s order with respect to Inter City’s service between Fort Smith and Little Rock by way of Dardanelle, on the south side of the river; but the court held the evidence insufficient to support the application with respect to the other Little Rock-Fort Smith route, by way of Clarksville, on the north side of the river. Crown and Midwest have appealed from that part of the judgment that affirms the order of the Commission, and Inter City has cross appealed from that part of the judgment that reverses the order of the Commission.
In our opinion the case turns solely upon Inter City’s failure to sustain the burden of proving that the public convenience and necessity require the removal of the restrictions complained of. There is no doubt — indeed, it is conceded — that the burden of proof rested on Inter City, which was in effect applying for an extension of its certificate. Boyd v. Ark. Motor Freight Lines, Inc., 222 Ark. 599, 262 S. W. 2d 282.
In a case of this kind we review the evidence de novo. Wisinger v. Stewart, 215 Ark. 827, 223 S. W. 2d 604. We find that Inter City, to support its application, introduced the testimony of about seventy-five witnesses. Only a handful of these persons, however, touched upon the point at issue: the need for added through service between the terminals designated in the challenged restrictions. Nearly all of Inter City’s witnesses confined their testimony to the need for local service between intermediate points along the Little Rock Fort Smith routes and to the excellence of the local service being rendered by Inter City. This testimony must all be laid aside as irrelevant, for Inter City already had the authority and the duty to provide that local service. That service is not involved in the present application to remove the limitations upon Inter City’s carriage of through traffic.
Only six of Inter City’s witnesses can be said to have given pertinent testimony. Two Little Rock ladies testified that, after the Commission had removed the restrictions by a temporary order, they had occasion to travel by bus to Fort Smith and found that, among the services available, one of Inter City’s buses was conveniently scheduled to put them in Fort Smith for a meeting at three o’clock in the afternoon. Two Catholic nuns stationed at a school in Fort Smith testified in a general way that their pupils from Little Rock and North Little Rock needed and used through bus. service, but they did not know the number of students' involved and did not say that the service being provided by other carriers was inadequate. And two witnesses who had sold tickets for Inter City stated that they had received requests for through passage from Fort Smith to Little Rock. We attach no weight to the latter testimony, as it is doubtless true that ticket agents for bus lines and railroad companies often receive inquiries about transportation to cities that are not served by the carrier in question. Such inquiries do not tend to show that the service available elsewhere is inadequate.
This scant testimony does not establish the fact that the convenience of the publio, as distinguished from that of a few individuals, requires that this application be granted. Santee v. Brady, 209 Ark. 224, 189 S. W. 2d 907. There is a complete absence of proof with respect to several facts that would seem to be of importance in a case of this kind, such as the volume of through traffic from Little Rock to Fort Smith, the adequacy of the seating capacity being provided by other common carriers, the financial interdependence, if any, between Inter City’s local service and the proposed through service, etc.
In its brief Inter City relies chiefly, as did the majority of the Commission, on the fact that Missouri Pacific discontinued its service south of the river and curtailed that on the northern route. This bare fact does not satisfy Inter City’s burden of proof, nor does it demonstrate that the public convenience and necessity demand that the service be brought to its former level by another carrier. In the absence of evidence it may equally well be supposed that Missouri Pacific’s voluntary re duction of its schedules indicates that the public demand is insufficient to support the former service as a profitable operation. Too, it appears that the Missouri Pacific certificate, now held by Midwest, is still in effect, so that this carrier is in a position to restore its original schedules between the terminal points in dispute.
Further, the public interest as a whole requires that the peculiar relative positions of Crown and of Inter City be given consideration. Inter City’s alternate routes from Little Rock to Fort Smith pass through a comparatively well-populated area; the total population of the communities along each route is shown to exceed 80,000. By contrast, the Crown buses travel along sparsely settled highway 10, where the total comparative population is less than 8,000. These figures indicate that Crown can expect less than a tenth of the intermediate traffic revenues that are available to Inter City. It follows, of course, that the income from through traffic is by comparison essential to the existence of the Crown bus service, while in the case of Inter City that income represents merely an added profit in the operation of buses that are, as far as this record shows, already being supported by intermediate traffic. Crown’s service is shown by the proof to be needed, rapid, and efficient. These considerations, taken in conjunction with the dearth of evidence that the public convenience and necessity require the granting of this application, convince us that Inter City failed to sustain the burden of proving its case.
The circuit court’s judgment is reversed on direct appeal and affirmed on cross appeal, and the cause is remanded, through that court, to the Commission, with instructions that the application be denied.
Harris, C. J., and Millwee, J., would affirm the judgment of the circuit court. Holt, J., would reinstate the decision of the Commission. | [
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George Rose Smith, J.
Robert Lee Collie died testate on July 22, 1952, and his widow, Sarah F. Collie, died intestate on December 19, 1957. This case requires a construction of the husband’s will in order to determine the ultimate disposition of certain real and personal property that Mrs. Collie received from her husband’s estate and still held at the time of her, own death. The appellants, who are the husband’s collateral heirs, contend that Mrs. Collie was given only a life estate with a power of disposition and that at her death the devolution of the property now in dispute was controlled by her husband’s will. The appellees, Mrs. Collie’s collateral heirs, contend that she was given an estate in fee simple, so that the property should pass to them under the laws of descent and distribution. The trial court, construing Collie’s will in connection with petitions filed by the appellants, held that Mrs. Collie had owned the property in fee.
The case turns upon the construction of these two paragraphs in the will of Robert Lee Collie:
“Third. After the payment of my debts, if any, and my funeral expenses I hereby give, devise and bequeath to my said wife, Sarah F. Collie, all of my property, real, personal and mixed of whatsoever kind of which I may die seized and possessed, including our home place in Malvern, Ark., bank stock, notes and mortgages and all other property of any and all kinds, although not herein specifically mentioned. In as much as I have no children and my said wife has aided me to accumulate what we have I feel that it is only just and right, that should she outlive me, all I have should be absolutely hers, and that is my will.
“Fourth. It is my will in case my wife should not use and dispose of all my property during her lifetime, that whatever she may leave undisposed of, shall be equally divided between her heirs and my heirs.”
The probate court rightly concluded that this case is controlled by our decision, upon very similar facts, in Bernstein v. Bramble, 81 Ark. 480, 99 S. W. 682, 8 LRANS 1028. There the testator devised his residuary estate to his widow “in fee simple forever,” and, in the next sentence of his will, attempted to provide for the distribution of any of the property that the widow had not disposed of during her lifetime or by her will. It was held that the limitation over was void, being inconsistent with the fee simple devise to the widow. In discussing a number of authorities we pointed out the governing distinction: If the will, construed in its entirety, shows that the testator intended for the first taker to have an estate in fee simple, then any subsequent language attempting to direct the disposition of property remaining undisposed of at the death of the first taker is void. If, however, the will shows that the testator intended for the first taker to have only a life estate with a power of disposition, then the testator may direct the disposition of property remaining undisposed of at the death of the life tenant.
In the present case Collie left all his property to his wife and added the unmistakable direction that it should be “absolutely hers.” In view of this clear expression of Collie’s intention that his widow would own the property outright instead of merely for life, the attempted limitation over must be declared void. We are not willing to set aside the rule of property that was announced in the Bernstein case and that has been adhered to ever since.
The four cases principally relied upon by the appellants are not out of harmony with the Bernstein decision. In two of them, Little Rock v. Lenon, 186 Ark. 460, 54 S. W. 2d 287, and United States of America v. Moore, 197 Ark. 664, 124 S. W. 2d 807, the original devise was modified by a codicil to the will, and we stressed the fact that the mere making of a codicil gives rise to the inference of a change in the testator’s intention. In the other two, Jackson v. Robinson, 195 Ark. 431, 112 S. W. 2d 417, and Piles v. Cline, 197 Ark. 857, 125 S. W. 2d 129, the testamentary language was insufficient to create a fee simple estate in the first taker; so the subsequent limitation over was not inconsistent with the first gift.
It is also contended by the appellants that the issue in this case was conclusively adjudicated during the administration of Robert Lee Collie’s estate. Sarah F. Collie was the executrix of her husband’s will, and in filing her final account she inserted a statement that ‘ ‘ I am the sole legatee of said will and am entitled to all of the assets of said estate for and during my lifetime.” The probate court order approving the account recites that Mrs. Collie is entitled to all the property in her husband’s estate, to use and dispose of as she chooses, and that the remainder not disposed of at her death shall descend according to the terms of Collie’s will “to their lawful heirs. ’ ’
It is evident that Mrs. Collie misunderstood the legal effect of her husband’s will, and that misconception was embodied in the order approving her final account. Since this order was also an order of final distribution, containing all the recitals enumerated in subsection (b) of Ark. Stats. 1947, § 62-2902, the appellants insist that subsection (d) of the statute requires that the order be given conclusive effect.
We do not agree with this view. The court was not called upon to determine the validity of the fourth paragraph in Collie’s will, for a decision of that issue was not essential to a distribution of the estate. Ark. Stats., § 60-416. Subsection (a) of § 62-2902, governing the distribution order, contemplates that the distributees of the estate be given such notice of the hearing as the court may direct, to the end that questions pertaining to the distribution may be conclusively settled in an adversary proceeding. In the case of Collie’s estate the only issue that could be determined when the final ac count was filed in 1953 was that of making a proper physical distribution of the assets of the estate. Even if the fourth paragraph of Collie’s will had been valid, it could not be known in 1953 what property would be undisposed of at the date of Mrs. Collie’s death or what persons would then prove to be the heirs of Mr. and Mrs. Collie. The statute certainly does not authorize the court to make a conclusive determination at a time when the essential facts cannot be known and when even the identity of the distributees cannot be ascertained. We think Mrs. Collie correctly interpreted the statute when she stated in her final account that she was the sole beneficiary of the estate, there being no other distributees under the terms of the will. As far as the issues presented by the 1953 distribution order were concerned, that statement was accurate.
It is plain that Mrs. Collie’s heirs, the present appellees, are not bound by the distribution order under the doctrine of res judicata, for they were not parties to that proceeding. Nor are they concluded by the principle of virtual representation, as it cannot be said that Mrs. Collie fairly represented the same interest as theirs in that uncontested proceeding. Since the probate court order recited that Mrs. Collie was entitled to use and dispose of the property as she chose, she herself was not adversely affected by the unnecessary recital of how the unused remainder would descend at her death. Her misconstruction of the will was in fact antagonistic to the interest of the appellees. It would be manifestly unjust, as we observed in Mixon v. Barton Lbr. & Brick Co., 226 Ark. 809, 295 S. W. 2d 325, to apply the doctrine of virtual representation as a basis for holding that these appellees have had their day in court.
Affirmed.
Ward, J., dissents. | [
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SMITH, J.
Appellant sued to recover damages alleged to have been sustained by him by reason of the wrongful and unauthorized cutting of the timber on certain lands owned by him lying on the bank of White river and’the consequent caving of the banks resulting from denuding the land of the standing timber.
Appellee defended upon the ground that he had authority to cut the trees which he did cut, and that no damages had resulted from their cutting. Two principal questions are presented, and these are questions of fact. Other questions are discussed, but they are subordinate to these principal questions.
The first assignment of error is that appellant was not permitted properly to fully develop the elements of damage for which he 'Should have had compensation. This assignment of error might appear more plausible had the jury found for appellant in any sum, but it did not do so, as the verdict returned was a general finding -in favor of defendant. The conrt, however, did permit appellant to show the number of trees cut, and their location, and the action of the water as influenced by the cutting of the trees, and the depreciation in the value of the land as a result thereof. No attempt was made to recover the value of the trees as such, the cause- of action being predicated upon the theory that the cutting of the trees had resulted in caving hanks and in a washing away of the soil, and if it could be said that any evidence was improperly excluded, it was evidence which tended only to increase the amount of the damage on this account, and there was sufficient evidence to support a verdict for some damages, had appellant’s theory of the case been accepted, and if there was any competent evidence excluded it was evidence which would only have tended to support a larger verdict.
Evidence on the part of appellee tended to show that no substantial damage had been sustained, although the cutting of a number of trees is admitted.
It is insisted by appellant that he should, at least, have had judgment for nominal damages, as certain of his trees were cut under appellee’s direction, and the correctness of this contention presents the real question in the case.
Over the objection and exception of appellant, the court gave an instruction numbered 5, which reads as follows :
‘ ‘ 5. You are instructed that if you find from the evidence that Matlock was plaintiff’s agent and was in charge of his land and had authority to cut timber on said land, authorized and told the defendant that he could cut said timber and that acting from this authority he cut same, then your verdict should be for the defendant.”
It is said there was no evidence upon which to base this instruction, and that if this instruction is disapproved as being without evidence to support it, a judgment for at least nominal damages must be awarded appellant. . In deciding whether the instruction was, in fact, abstract, we need consider only that evidence which is said to fnrnish a basis for it, and such evidence may be summarized as follows:
Appellee operated a ferry across White river, and had paid appellant $25 for the use of a right-of-way across appellant’s land. The trees were cut so that one approaching the ferry could see the river banks and know whether a congestion of traffic made the ferry inaccessible. The land was in charge of one Matlock, who was appellant’s tenant, and Matlock, and the tenant preceding him-, had both cut trees for the purpose of clearing and cultivating the land. That for the purpose of cultivating the land, Matlock had cut some of the timber standing on the land in question, and had told appellee that when he had the time he would cut the remainder, but as Matlock was otherwise engaged, appellee cut down the timber for Matlock, who cut it up and hauled it away and sold it, apparently without objection on appellant’s part. There was other testimony that Matlock had cut other trees in the spring, and that he was clearing up the timber in patches so that it would not shade the land and he could put the river bank in cultivation, and that appellee did, at once, for Matlock what this tenant was doing gradually.
There was contradiction of this evidence, but we assume that these conflicts were resolved in appellee’s favor, and that when this was done the jury found that Matlock was in possession of the land for the purpose of clearing and cultivating it and had the right, as an incident thereto, to cut down the standing timber, which right he was exercising as it suited his convenience, and that appellee, for his own purposes, did, at Matlock’s invitation, a thing which Matlock himself could rightfully have done. Conway v. Coursey, 110 Ark. 557. If this were true, the instruction is not abstract, and no error was committed in giving it.
Finding no prejudicial error, the judgment is affirmed. | [
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Robert J. Gladwin, Judge.
A Jefferson County jury found Cardrick Deon Flowers guilty of aggravated robbery, theft of property, and possession of firearms by certain persons. Fie was sentenced to an aggregate term of forty years’ imprisonment. Fie raises two points on appeal: (1) the uncorroborated testimony of an accomplice was insufficient to support his convictions; and (2) the trial court erred in denying his motion for mistrial when the prosecutor made an improper remark in closing argument regarding his decision not to testify. We affirm.
A jury trial was held on February 18 and 19, 2004. Danielle Dante Shaw, an employee at a McDonald’s restaurant in Pine Bluff, testified that on March 5, 2003, at approximately 11:00 p.m., she took out the trash as the restaurant prepared to close. She saw a car with three male occupants drive around the restaurant. When she had finished with the trash and was going back inside the restaurant, she noticed the same car going into the Total gas station and only one male was inside the car at that point. As she was closing the back door of the restaurant, a man grabbed the door, put a gun in front of her face, and told her not to say anything. The man turned her around, stuck the gun against her back, and told her to take him to the manager and the money. Once inside, he suddenly pushed her toward the sink area, and he and another man ran past her into the front area of the restaurant. Shaw ran out a side door and called the police. According to her, the first man, later identified as appellant, wore a black jacket and had pulled his shirt over his face revealing only his eyes. She also described him as very dark and skinny. She did not get a good look at the second man.
Kenneth J. Lee, Jr., another employee at McDonald’s, testified that he was cleaning the grill when two men came inside the restaurant with Shaw in front of them. Lee identified a silver Ruger handgun and testified that the man who held that gun, later identified as Vic Norman, wore a black “bubble” jacket with a hood over his head. He stated that the other man, appellant, carried a black gun and wore a thin, dark blue or black jacket with his t-shirt pulled over half of his face. While Norman kept his gun pointed at Lee, appellant went to the front of the store and came back with the manager. Both robbers went into an office with the manager and then ran out the back door. Appellant carried till drawers, and Norman carried a bag that he pulled money out of and stuffed in his pockets. Lee said the men ran toward the Total gas station, which was near the Comfort Inn.
Yalonda Smith testified that she was working at the restaurant’s drive-through window that night and saw a white Lincoln drive around the restaurant twice. She was sitting with the manager and Lee’s girlfriend at the front of the restaurant when appellant, who had his t-shirt pulled over his nose, approached with a gun in his hand. Appellant told the manager to take him to the money. Yalonda and the manager walked toward the back of the store, and she saw another man, Norman, with a silver gun. Yalonda described him as skinny and very dark complected and said that he wore a “puffy” black coat. She was ordered to lie down on the floor, and the manager went inside an office to open the safe.
Shenita Smith was at McDonald’s that night to pick up her boyfriend Lee. She was sitting with the manager when appellant, who had his shirt pulled over his face, walked up and told them to open the safe. When neither one of them moved, appellant pointed his gun at them and told them again to open the safe. When the manager and Yalonda began walking toward the back of the store, Shenita suddenly ran out a side door that had not been locked and dialed 911 on a cell phone that the manager had slipped to her. She described appellant as tall, “kind of buff,” stocky, and muscular. She said he had a black gun. Shenita said that from where she had been sitting, she could see another man near the back door and that he had a coat on with a hood covering his head.
Lawrence Joseph Warfield, the manager at McDonald’s, testified that he was sitting at a table completing a truck order when appellant approached, pointed a gun at him, and told him to take him to the safe. Warfield said that appellant wore a thin black jacket and a white t-shirt that he used to cover part of his face. When he took the man to the safe, Warfield saw a second man, Norman, with a silver gun. He said that Norman wore a black “puffy” coat. Warfield opened the safe, and the men removed cash drawers that contained approximately $1,200. Warfield described Norman as “a skinny fellow” and more dark complected than appellant.
Vic Norman, an inmate at Cummins Prison, testified that he entered into a plea negotiation with the State in which he agreed to testify against his co-defendants in exchange for twenty years’ imprisonment for aggravated robbery. Norman said that, on the night in question, appellant called him and asked him to go to Pine Bluff to see Alvin Akins. The two men traveled in a white Lincoln. Norman stated that he left Little Rock with a nine-millimeter Ruger and wore a navy blue or black “goose jacket,” a jersey, and jeans. The two men picked up Akins, and they drove around Pine Bluff drinking some alcohol they had purchased. Appellant, who had been driving, became inebriated to the point that Akins got behind the wheel. The three men drove into the McDonald’s parking lot, saw someone taking out the trash, and decided to rob the restaurant. According to Norman, he and appellant entered the restaurant with guns. At trial, Norman identified the guns that he and appellant carried that night. Norman stayed in the back of the restaurant, while appellant went to the front. Norman said that he covered his face with the hood of his coat. They forced the manager to open the safe, took the money and cash drawers, and ran out the back door to an area behind the Comfort Inn. They got back into the vehicle with Akins, and the police arrived shortly afterwards. Although the police ordered the men to stop, Akins did not stop the car until it was blocked by police with a patrol unit, at which point Akins put the car in reverse. Akins then fled on foot, and the police opened fire. Norman exited the car with his gun and was also shot at by the police. At trial, Norman identified the jersey he wore and noted the hole from the gunshot wound he received.
Officer Buddy L. Earnest with the Pine Bluff Police Department testified that a police car blocked the robbers’ Lincoln and that the driver put the car into reverse and narrowly missed hitting him as well as two other officers. The driver made a U-turn; the car jumped a curb; and the car was driven into a field where it got stuck in the mud. Earnest saw Norman exit the vehicle from the front passenger’s seat.
Todd Parent, formerly an officer with the Pine Bluff Police Department, testified as to the same events Officer Earnest described, but he saw both Norman and the driver, Akins, exit the Lincoln. In his pursuit of Akins, Parent ran past the Lincoln and noticed appellant slumped over in the back seat. Thinking that appellant was shot and critically injured, Parent continued to pursue Akins. After Akins was taken into custody, appellant was apprehended.
Adam Owings, formerly an officer with the Pine Bluff Police Department, arrived on the scene with Parent. His testimony was similar to Parent’s, but he identified the blue-and-white jersey worn by Norman, who had pointed a gun at him. Lieutenant James F. Cooper with the Pine Bluff Police Department testified that he found a .22 pistol on the floorboard of the driver’s seat of the white Lincoln Town Car. Officer Rick Bunting with the Pine Bluff Police Department testified that he found appellant hiding inside a dumpster and that appellant had been shot in the shoulder on the back.
Cathy Ruhl and Johnny Bumpass, crime scene technicians, identified several exhibits from their processing of the crime scene. Specifically, they identified several articles of clothing and two guns, which the witnesses who were employees of McDonald’s had previously identified as those belonging to appellant and Norman.
The State then rested, and appellant’s counsel moved for a directed verdict on each count. Appellant argued that, other than the “testimony of the accomplice Mr. Vic Norman,” there was no independent corroborating evidence to link appellant to the crimes. The State argued that Norman’s testimony had been corroborated, and the court agreed. The trial court denied the motion, finding that the “accomplice’s testimony” had been sufficiently corroborated by other evidence. After discussing other matters, appellant’s counsel submitted a jury instruction on accomplice testimony, which the court accepted.
Robert Eugene Flowers, appellant’s father, testified next. Flowers testified that the Lincoln belonged to him and that appellant had borrowed the car on the night in question. He stated that he knew his son was a convicted felon but that he had a .22 derringer under the front seat of the car. According to Flowers, appellant did not know the gun was there. He stated that, had he been home when appellant borrowed the car, he would have removed the gun.
Appellant renewed his motion for a directed verdict, and the trial court denied the motion. The trial judge then instructed the jury, including the instruction about accomplices. The judge specifically stated, “Now, it is contended that the witness, Vic Norman, was an accomplice.” During closing arguments, the prosecutor said:
What you need to understand, at this time, the only people who truly know everyone that’s involved in what has gone on and what has transpired is (sic) the defendant and his two accomplices. They are the only ones.
Appellant objected, arguing that the prosecutor had commented on the fact that he did not take the stand and testify. The prosecutor began to argue, but the trial judge interrupted, stating, “We’re going to make a record on that. I’m going to let him finish. You’ve got a minute to wrap it up and we’ll talk about that. I’m going to let him finish his argument.” After the State finished its closing argument, the jury retired to deliberate. At that point, appellant moved for a mistrial based on the prosecutor’s improper remarks. The State responded that it was simply rebutting appellant’s argument. The prosecutor contended that, if his comment referred to appellant’s failure to testify, it was unintentional and that he simply meant that appellant and his accomplices were the only people who could possibly know what happened. In the meantime, the jury returned with its verdict, convicting appellant of aggravated robbery, theft of property, and possession of firearms by certain persons.
In the sentencing phase of the trial, the jury heard testimony from appellant’s mother, Idelle Flowers. The judge instructed the jury; the State and appellant made closing arguments in regard to sentencing; the judge made a final instruction; and another hearing took place. Counsel for appellant asked for an opportunity to argue in support of her motion for mistrial. The judge discussed a two-prong test and reserved the right to decide on the mistrial “because what [the jury] ultimately decide[s] would certainly seem to me to be a factor in determining the second part of that two-prong test.” The jury then announced its agreement as to sentencing, and the jury was dismissed. A hearing on the mistrial motion and sentencing was held on March 18, 2004. The trial judge found:
[T]hat the comments by the prosecutor at that time were inappropriate and that they were indicative of bringing to the attention of the Court, I mean, the trier of fact, the jury, the fact that the defendant did not testify.
Now, in examining the — examining the case law and examining the exact language that was used during the closing argument, the offensive language in this case, the Court, again, has compared that with the language that is mentioned in all of the cases that are reported that have the exact language and certainly mentioned in there and the Court is of the opinion, at this point, that the prosecutor was probably saved by a timely objection. It appears that the very next comment probably would have put those comments over the edge and would have caused the Court to have no recourse other than to declare a mistrial.
The Court is of the opinion that the offending language is not sufficient to grant a mistrial. . . .
I. Accomplice Corroboration
On appeal to this court, appellant argues that the uncorroborated testimony of an accomplice was insufficient to support his convictions. Appellant concedes that the crime was independently established but argues that the remaining evidence did not tend to connect him with its commission. Appellant admits that the evidence put him in proximity of the crime but contends that there was not substantial evidence of his guilt, other than Norman’s testimony.
The State, relying on Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999), contends that appellant’s argument is not preserved because Norman was never declared by the court to be an accomplice and because it is not clear from the jury’s verdict forms whether it considered Norman to be an accomplice. The defendant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. Windsor, supra. A defendant must either have the trial court declare a witness to be an accomplice as a matter of law or submit the issue to the jury for determination. Id. In Windsor, Windsor never requested at trial that a witness be declared an accomplice, did not request that the witness’s status be submitted to the jury for determination, and did not even request a jury instruction to the effect that the testimony of an accomplice requires corroboration. Accordingly, our supreme court held that Windsor’s failure to have a witness declared an accomplice or to have the jury consider it precluded Windsor from raising the witness-corroboration rule on appeal.
The facts, however, in the case at bar are more akin to the facts in Brown v. State, 82 Ark. App. 61, 110 S.W.3d 293 (2003), where the Arkansas Court of Appeals noted that it was clear from the record that the court, the defense counsel, and the prosecutor all accepted the fact that certain witnesses were accomplices. In that case, the court unambiguously found certain witnesses to be accomplices, regardless of the omission of an express declaration to that effect. Here, not only did the defense counsel, the prosecutor, and the court refer to Norman as an accomplice, a jury instruction on accomplice testimony was submitted to the jury. A defendant must either have the trial court declare a witness to be an accomplice as a matter oflaw or submit the issue to the jury for determination. Windsor v. State, 338 Ark. at 656, 1 S.W.3d at 24 (emphasis added). Appellant’s argument is therefore preserved for review on appeal; however, his challenge to the sufficiency of the evidence must nevertheless fail.
When reviewing the sufficiency of the evidence, we determine whether there is substantial evidence to support the verdict, viewing the evidence in a light most favorable to the State. Tate v. State, 357 Ark. 369, 167 S.W.3d 655 (2004). Arkansas Code Annotated section 16-89-111 (e) (1) (1987) provides that a person cannot be convicted of a felony based upon the testimony of an accomplice, unless that testimony is “corroborated by other evidence tending to connect the defendant with the commission of the offense.” Corroboration is not sufficient if it merely establishes that the offense was committed and the circumstances thereof. Martin v. State, 346 Ark. 198, 57 S.W.3d 136 (2001). It must be evidence of a substantive nature since it must be directed toward proving the connection of the accused with a crime and not directed toward corroborating the accomplice’s testimony. Id. The corroborating evidence need not be sufficient standing alone to sustain the conviction, but it must, independent from that of the accomplice, tend to a substantial degree to connect the accused with the commission of the crime. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). The testis whether, if the testimony of the accomplice were completely eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Marta v. State, 336 Ark. 67, 983 S.W.2d 924 (1999). The corroborating evidence may be circumstantial so long as it is substantial; evidence that merely raises a suspicion of guilt is insufficient to corroborate an accomplice’s testimony. Gordon v. State, 326 Ark. 90, 931 S.W.2d 91 (1996).
The evidence established that appellant had borrowed the Lincoln getaway car from his father on the night of the robbery. Witnesses from McDonald’s testified regarding the role appellant played in the robbery and described his clothing and weapon, which items were collected at the scene. Appellant’s jacket had blood stains on it and a hole corresponding to the location of the gunshot wound he received. Appellant was found hiding inside a dumpster near the site where the Lincoln became stuck in the mud. The presence of an accused in the proximity of a crime in a manner suggestive of joint participation is a relevant factor in determining an accomplice’s connection to a crime. Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999). Moreover, evidence of flight to avoid arrest may be considered by the jury as corroborative of guilt. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). In the case at bar, evidence other than Norman’s testimony tends to establish the crime, and, to a substantial degree, connect •appellant with its commission.
II. Motion for Mistrial
Next, appellant contends that the trial court erred in denying his motion for mistrial because the prosecutor improperly remarked on his decision not to testify. The law is well settled that to preserve an issue for appeal, a defendant must object at the first opportunity. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). Similarly, motions for mistrial must be made at the first opportunity. Id. The policy reason behind this rule is that a trial court should be given an opportunity to correct any error early in the trial, perhaps before any prejudice occurs. Id.
Here, appellant immediately objected to the prosecutor’s remark but did not at that time request a mistrial; instead, appellant waited until after the prosecutor had finished his closing argument. When an objection to a statement during closing argument is sustained, an appellant has been given all the relief requested; consequently, there is no basis to raise the issue on appeal unless the appellant requests an admonition to the jury or a mistrial. Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999). On the other hand, when an objection to the prosecutor’s closing argument is clearly overruled, an objection without a request for further relief is sufficient to preserve the argument for review. See id. In the case at bar, the trial court’s ruling was unclear, and, of course, the burden of obtaining a ruling is on the movant. See Jenkins v. State, 60 Ark. App. 1, 959 S.W.2d 57 (1997).
Even if appellant’s motion for mistrial were not untimely, the prosecutor’s remarks were not an impermissible comment on appellant’s failure to testify or even a veiled reference to such. The prosecutor’s statement asserted only that appellant knew what he had done because he was guilty. Moreover, the jury was instructed that appellant had an absolute constitutional right not to testify and that the fact that he did not testify was not evidence of guilt and could not be considered. A mistrial is an extreme remedy and is proper only when an error is so prejudicial that justice cannot be served by continuing the trial and when it cannot be cured by an instruction. Gates v. State, 338 Ark. 530, 2 S.W.3d 40 (1999). The decision to grant a mistrial is within the sound discretion of the trial court. Id. Under these circumstances, the trial court did not abuse its discretion in denying the motion, had the argument been preserved for appeal.
Affirmed.
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J. Seaborn Holt, Associate Justice.
This litigation involves an oral lease of farm land. According to the evidence adduced by appellee West, he and appellant (Mizell) entered into an oral agreement whereby West (landowner) leased to Mizell for the year 1956, 108 acres of land to be planted to cotton and 70 additional acres for beans. It was agreed that Mizell would furnish all the necessary farm machinery and equipment and as lessee was to receive three-fourths (West one-fourth) of all cotton produced. Under this agreement Mizell farmed the land, properly and successfully, and at the end of the 1956 year West refused appellant’s request for renewal of the lease for 1957 and additional years, and placed the land under the soil bank program. Appellant testified on the other hand that the oral agreement between him and West was for the lease of appellee’s land for a period-not only including 1956, hut for several years thereafter. That the reason for a long-lease was to enable Mizell (lessee) to pay for the additional farm equipment which would require several crop years. He further testified that it was his understanding that he (Mizell) was to have the land as long as he made an average crop and wanted it. “A. . . . I hadn’t discussed with Mr. West anything during the time he rented to me —■ he told me he was going to put it in the soil bank and work the rest himself — I was under the impression all the time that I was going to be there this year and continue on as long as I made an average crop on the place. Q. As far as you were concerned it was just going on as long as he owned the land? A. That is what he told me and the boys, as long as we wanted to work it. ... Q. Did he ever offer to share the soil bank proceeds with you. A. No sir.”
Appellant brought the present suit against West alleging: “That by reason of the defendant’s breach of the aforesaid rental contract and his unlawful dispossession of the plaintiff from the aforesaid lands this plaintiff has suffered damage by reason of depreciation” of his equipment in the amount of $3,732.72 and “that by reason of loss of profits from farming the 108 acres of land hereinabove mentioned to cotton and the 50 to 70 acres of soybeans, this plaintiff has suffered damage in the sum of $7,250.00 or a total damage in the sum of $10,982.72,” and prayed for a judgment in this amount. In an amendment to his complaint plaintiff further alleged: “That the Soil Bank payments under the contract will be in the approximate sum of Seven Thousand Five Hundred Dollars ($7,500.00), and that this plaintiff is entitled to receive three-fourths of said payment or the sum of Five Thousand Six Hundred Twenty Five Dollars ($5,625.00).
Wherefore, in addition to the prayer of the original complaint filed herein, plaintiff prays, in the alternative, that he have judgment against the defendant in the sum of Five Thousand Six Hundred and Twenty Five Dollars ($5,625.00) and for all other relief to which he may be entitled.”
West answered with a general denial and in a cross complaint sought to recover from Mizell $450.00 alleged balance due on the 1956 rental, $300.00 for cotton alleged to have been abandoned by Mizell and left in the field and $84 for tractor fuel used in seed bed preparation and planting, or a total of $834.00.
A jury trial resulted in a verdict for West on Mizell’s complaint and a verdict in favor of Mizell on West’s cross complaint. This appeal followed.
For reversal appellant relies on one point: “The trial court erred in instructing a verdict for the defendant, upon the claim of the appellant for a pro rata share of the soil bank payments, thereby refusing to recognize appellant as a third party beneficiary under the soil bank agreement.”
The record reflects that Mizell requested only two instructions, which were given by the court, as follows: “1. If you find from a preponderance of the evidence in this case that the defendant, J. E. West, entered into an agreement with the plaintiff, E. E. Mizell, to rent him the lands involved in this case for the year 1956 and as many years thereafter as E. E. Mizell farmed the lands in a satisfactory manner, and you further find from a preponderance of the evidence that E. E. Mizell moved onto the lands and began the performance of such contract, and purchased equipment because of such a contract and repaired a house on the land to live in so that he could perform the contract, and if you further find that the defendant gave the plaintiff no notice that his work was unsatisfactory, or that he would not be able to farm the lands for the year 1957, then you will find for the plaintiff and fix his damages in an amount equal to the value of the lands to the plaintiff less the agreed rental under the contract. 2. If you find for the plaintiff you may consider, in determining the value of the lands to the plaintiff for the year 1957, the pro rata amount of the soil bank payments to which he would be entitled under the soil bank program of the federal government.”
As we view the evidence these instructions fully and clearly covered appellant’s theory of the case, and the jury found against him on substantial testimony. Obviously, the soil bank issue did. not arise in the 1956 crop year, when appellant operated the leased land. It conld only arise in subsequent years provided appellant’s theory of the case had been sustained by the jury’s verdict and, as indicated, it was not.
The record shows that the court gave appellee’s requested instruction No. 9 on appellant’s claim to a share in the soil bank payments, as follows: “You are instructed to find for the defendant upon the alternative claim of plaintiff for a portion of the soil bank payment,” and appellant’s objection is in this language: “To which action of the court, in giving to the jury, defendant’s written requested instruction No. 9, the plaintiff at the time objected generally, his general objection was by the court overruled, and the plaintiff at the time asked that his exceptions be saved and duly noted of record, which is hereby accordingly done.” It is thus apparent that appellant’s objection was only general, not specific, and he did not offer any instruction to cover his alleged alternative claim for participation in the soil bank payment. It was his duty to present to the court an instruction on his theory of the case. “A party failing to request a definite instruction is in no position to complain that one was not given,” Wallace v. Riales, 218 Ark. 70, 234 S. W. 2d 199; “Appellant cannot complain that the trial court failed to give an instruction that was not asked by appellant,” Headnote 6, Ward Furniture Mfg. Co. v. Isbell, 81 Ark. 549, 99 S. W. 845; ‘ ‘ One who appeals cannot complain that the instructions of the lower court were incomplete if he made no effort to have the omissions supplied at the trial,” Headnote 4, White, v. McCracken, 60 Ark. 613, 31 S. W. 882.
Accordingly the judgment is affirmed. | [
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Carleton Harris, Chief Justice.
On the night of June 11, 1957, a truck belonging to Isaac Ashby, appellee herein, became stuck in the mud on a dirt road near Blytheville. Efforts to extricate the truck only succeeded in miring it deeper, and the Phillips Motor Company was requested to send a wrecker. The wrecker, driven by Carl Allbritton, after picking up Ashby and Olin Little, who was with Ashby, went to the location of the mired truck. In getting into position to extricate the truck from the mud, the wrecker became stuck. Ashby and Little took positions on the left side of the wrecker, back of the cab, and pushed as the driver rocked backward and forward in an effort to release the wrecker from the mud. As the wrecker moved out, Mr. Ashby was struck by some portion of the vehicle along the right knee, causing painful injuries for which he instituted suit. The complaint alleged that
“defendants’ servant and employee, Carl Allbritton, and while in the employ of the defendants, and who knew plaintiff’s position, suddenly negligently and carelessly greatly increased the supply of gasoline, causing the said wrecker to suddenly lurch forward.
That when the defendants’ wrecker suddenly and without warning lurched forward, its left rear bumper struck this plaintiff behind his right knee and right heel, bruising and cutting his leg and breaking his right heel.”
Appellants answered, first denying any negligence, pleading contributory negligence, and further pleaded that appellee assumed all risks incidental to the undertaking. On trial, the jury returned a verdict in appellee’s favor in the amount of $7,200, for which amount the court rendered judgment. From such judgment, comes this appeal.
For reversal, three points are urged, the first being that the trial court erred in not directing a verdict for appellants. Under onr view, as hereinafter set ont, a discussion of other alleged errors is unnecessary.
The sole charge of negligence against Allbritton has previously been quoted from the complaint. According to the evidence, the back wheels of the wrecker mired down as Allbritton sought to get into position to extricate the truck. Little and Ashby walked up to the driver ’s side of the door, and took hold of the wrecker to help get it out. According to Ashby, Little “* * # was right at the door. I was right behind him with my hands on the door right behind the cab.” After rocking back and forth two or three times, the wrecker came out. “To tell the truth, he was rocking. He hit me just like that, (snaps fingers) I was laying on the ground. * * * Q. Did this truck slide any? A. It was possible. Like I said, it was like that, (snaps fingers) I was on the ground.” The witness then testified that he doubted that the wrecker slid sideways more than six inches. When asked if his foot slipped, he replied, “I don’t know. It happened so quick, I don’t know.” Ashby was struck on the side of the right knee. He stated that he was struck by the bumper, or, as he described it, the “draw bar.” According to his evidence, the occurrence took place somewhere between 9:30 and 10:00 o’clock on a clear night, and Allbritton could have seen him “without any doubt.” Appellee testified that he heard somebody say, “Keep rocking, and I believe we can get it out,” but he did not know whether the remark was made by Allbritton or Little. On cross examination, he admitted that in trying to get his own truck out before calling the wrecker, he had rocked it and accelerated the engine, but “He rocked his more than I did mine. I accelerated mine a little and couldn’t get out.” Ashby admitted that to get automobiles and trucks out of mud, it is necessary to accelerate the motor, as he stated, “to a certain extent.” His testimony reflects that no request was made by All-britton for aid in getting out of the hole; that he (Ashby) did not tell the driver he was helping; that he chose his own position from which to do the pushing, and had already observed the “draw bar” at the back.
Little’s testimony was very similar. “Mr. Ashby and me went by the side of him. We went to rock it. Mr. Ashby and me said we were going to rock it ont and he said, ‘I believe we can.’ ” He testified that he took a position on the south side of the truck, placing his hand on the front part of the cab “where the glass rolled down,” and that appellee was right behind him. The witness stated that the driver of the wrecker could see him, and could have seen Ashby if he had looked; that the vehicle was rocked backward and forward two or three times. He heard no request from Allbritton for Ashby to push on the wrecker.
Allbritton testified that the wrecker became mired in the same mud hole as the truck; that he, quoting, “began rocking my truck backwards two or three times and accelerating it fairly heavy in order to get it out of the mud.” He testified he did not ask anyone to help him, and that Ashby did not say anything to him about helping or pushing. His testimony reflects that upon pulling loose from the mud, he went straight ahead.
We are unable, from the record, to find any negligence on the part of Allbritton, and of course, such negligence must be shown before Ashby is entitled to recover. The testimony of all parties reflects that the wrecker was driven straight ahead when coming out of the mud hole, and it seems remarkable that the vehicle, with its wheels spinning in slick gumbo mud, did not slide sideways more than six inches. Admittedly, appellee took up his position of his own own accord, without any direction from the driver, and in fact, the undisputed evidence shows that no request for help was made. In Saliba v. Saliba, 178 Ark. 250, 11 S. W. 2d 774, 61 A. L. R. 1348, and Blakemore v. Stevens, 188 Ark. 755, 67 S. W. 2d 733, recoveries were allowed to parties who were injured while assisting in extricating vehicles from mud holes, but the circumstances in those cases were far different from those in the case at bar. For instance, in the Saliba case, the proof showed that the injured plaintiff was invited to get behind a stuck car and push it; that while so engaged, the driver suddenly put the car in reverse, and plaintiff was injured when the car rolled backwards. In the Blakemore case, plaintiff was asked to help in pushing a car out of the mire, and stationed himself on the right hand side of the car in a position to assist. The car was being pushed backwards, and without warning, the defendant driver suddenly cut the steering wheel to the left, throwing the right front wheel from under the right front fender, and the car, in its backward motion, ran over plaintiff. In the case before us, the only alleged negligence is “suddenly, negligently, and carelessly greatly increased the supply of gasoline causing the said wrecker to lurch forward.” Common experience teaches that to get out of a mud hole, it is necessary to accelerate the engine. Additional power is needed. The method used by Allbritton would seem to be the usual method of those engaged in extricating a vehicle from mud and slime, i. rocking back and forth, and accelerating the motor in an attempt to get sufficient momentum to come out of the hole. Of course, once the wheels get free of the mud and hit firm ground, the vehicle moves at a faster pace. We find no evidence that appellants’ driver committed any unusual act which would result in taking appellee by surprise, and thus occasion the injuries complained of.
We are of the opinion that the trial court should have directed a verdict for appellants.
Reversed and dismissed.
Johnson, J., dissents.
The ligaments were badly torn in the knee, ankle fractured, and the heelbone cracked.
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Carleton Harris, Chief Justice.
Appellant, Thomas Walker, was charged by Information with the crime of First Degree Murder. The case went to trial and the jury returned a verdict of guilty, fixing Walker’s punishment at death in the electric chair. The cause is here on appeal. Appellant contends that the evidence was insufficient to sustain the conviction, and that a verdict of acquittal should have been directed by the court.
On March 9, 1957, around 9:30 p. m., a Saturday night, J. W. Orman, while on duty at the Cates Esso Station in West Memphis, was killed by a shotgun blast, fired by a Negro man, during an attempted holdup. Mr. and Mrs. Marvin Smith witnessed the slaying. Mr. Smith was inside the station, using the telephone, and his wife was sitting in the car in front of the station. Both heard the intruder say, “Stick them up,” and Mr. Smith testified that the murderer had a double barrelled shotgun. The man was wearing an old felt hat, pulled down over his face. They stated that the murderer was a Negro, but were unable to identify appellant as the per petrator of the crime. Following the report of the killing to officials, Arkansas State Trooper Bobby Sanders, with two other officers, went to the station, obtained a description of the suspect, and then drove south on Hulbert Boad. After obtaining information from a young-colored boy named Peals, who had observed a man running across a field, next hiding in a ditch when a car passed, and then running- straight down the highway toward Hulbert, the officers drove on to Hulbert, and State Trooper Weaver walked down the railroad tracks toward Memphis. The officers heard a car start on a dead-end road at the edge of Hulbert, and watched it proceed to the Hulbert Boad and turn south. Sanders testified that, judging from the sound of the starter, they considered the car to be an old model Buick or Pontiac, with a defective muffler, and observed that the left tail light was dimmer than the right. The next day, upon locating the car driven by appellant, it was found that such car was an old model Buick, with a defective muffler, and that the left tail light was dimmer than the right. Leroy Brown, a farm employee, employed by L. L. Biggan, testified that as he was leaving the Biggan barn, located at the intersection of Fletcher Lake Boad and Dixon-Yates Boad, around 12:30 or 1:00 a. m., on Sunday morning following the shooting, a man carrying a gas siphoning hose and a shotgun, caught up with him. They engaged in small talk, and parted at the intersection of Bock Boad and Fletcher Lake Boad. Brown testified that appellant “looks pretty well” like the man he saw on the road, but would not positively identify him. John Tolbert Clemons, also an employee of Biggan, testified that about sunup, he got up to hook up a pair of mules, and observed an “old model, sort of blue looking, might have been green, I -took it to be blue, old model car setting side the road.” From the testimony: <£Q. Was anybody by the car? A. Looked like a gentleman off from the car, sorta stooped over, off from the car. Q. Which way was the car headed? A. The way the road-run; south like, Q. Away-from you? A. -Yes-, sir. Away from.me-. Q. .How did you say the gentleman, was? - A. -Looked like- he. was sorta bent over, away from the car, sorta stooped over.” He testified that later, a colored man, driving the blue car, passed the barn and stopped at the home of William Bradford, another employee of Biggan. According to his testimony, the driver of the car walked back np toward the barn, and talked with Biehie Taylor, another employee, about finding work. Clemons identified Walker as the stranger seeking work. Bradford testified that appellant stopped at his house and asked if he (Bradford) could let him have any .gas or money. Walker then inquired about getting work, .and was told that he would have to see “my boss man.” He further testified that Walker parked his car where it could not be seen by people coming down the Hulbert Boad. L. L. Biggan testified that Walker asked him for work. When told that none was available, appellant went across the field to the home of James Williams, likewise a tenant on the Biggan farm. Biggan, who had heard about the killing earlier that morning, drove to West Memphis, and notified officers of Walker’s presence on his farm. In the meantime, according to witness Williams, Walker came to his home and asked Williams to fix him something to eat. Before the latter could finish preparing the meal, the officers arrived and took Walker into custody.
In another phase of the investigation, Lieutenant Charles Duncan of the West Memphis Police department, testified that he searched the immediate vicinity around the station for clues, and found footprints leading into a field just west of the West Memphis road and the service station. The footprints led to an open field that borders Hulbert Boad and went as far as Bowen Airfield (where Peals saw the man running). The tracks were followed to the Hulbert Boad. About five hundred yards from the point where the tracks started, Duncan found an empty 12-gauge shotgun shell. This testimony was corroborated by Captain Romines of the West Memphis Police Department.
After taking Walker into custody at the home of Williams, appellant was transported to the City Hall in West Memphis by two of the officers, while the others stayed and searched for the shotgun. It was finally located, buried at the side of the road, lying in one of the gulleys, being covered lightly with dirt, and a burned piece of fence post, and near the place where Tolbert had noticed the parked blue car, and the man bending over. A search of the automobile revealed a piece of hose and a gas can in the back of the car. A shotgun shell was taken from appellant’s possession at the City Hall. As reflected by the evidence, Captain Romines and Lieutenant Duncan talked to appellant at the West Memphis City Hall around 10 o’clock on the morning of the arrest. His oral statement to them was to the following effect. After stating that his name was Thomas Morris, he changed it to Walker, and stated that he lived in Blytheville . . . had been in West Memphis a couple of days, after getting lost ... he got lost between Osceola and Blytheville, taking a wrong turn . . . that the automobile he was driving, and the shotgun, belonged to Lilly Daniels, with whom he was living in Blytheville ... he identified the shotgun as the one he brought from Blytheville . . . around 9 o ’clock Saturday night, he was on a street where there were a lot of Negroes, and negro “honky tonks” . . . he overheard one say there had been a killing . . . that somebody had been shot with a shotgun . . . lie got scared, because he had the shotgun in the car, left, and drove away (to the area which constituted a part of the Niggan plantation) . . . that during the night he stayed around the car, walking up and down the turn row to keep warm . . . the next morning, he buried the double barrelled shotgun beside the road in the ditch, because he didn’t want to get caught with it . . . that after burying the shotgun, he went to a colored boy’s house on the plantation, parked his car, went down and asked a white man for a job . . . that he then went to another colored boy’s house to try and get breakfast (the home of Williams, where he was arrested).
The shotgun, expended shell, and loaded shell, all properly identified by the officers, were sent by Captain Nomines to the Federal Bureau of Investigation at Washington, with a request for a laboratory examination to determine if the expended shell had been fired from that particular shotgun, and if there was any relation between the expended shell and the loaded shell. Marion E. Williams, ballistics expert, and an employee of the Bureau for 19 years, conducted the examination of the gun and shells, and testified as follows: As to die markings, of the loaded shell and the expended shell, Williams testified that they were stamped from the same machine, though that did not necessarily mean that they came from the same box. According to his testimony, many thousands of shells are stamped with the same marking, “Since there are 25 in a box, this same marking might appear in any number boxes of shells. * * * Q. Could have come from the same box, but that is not necessarily true? A. Could have, yes.” Williams testified that two test rounds of ammunition were fired through each barrel of the shotgun sent to him, and he then went into minute and interesting detail as to the manner in which it is determined whether a particular shell was fired from a particular gun. This explanation was implemented by enlarged photographs, showing the markings on the head of the shell, caused by the breech face of the gun. He testified that the expended shell sent to him (which had been found in the field) was fired in the right barrel of the shotgun, and stated that this conclusion was reached from many points of comparison. Although vigorously cross examined, Williams was quite emphatic and positive in this statement. His testimony was impressive and authoritatively related, and was, we think, potent testimony.
Appellant points out that the evidence is circumstantial. Yet, circumstantial evidence has long been recognized by the law as sufficient to sustain a conviction. Osburne v. State, 181 Ark. 661, 27 S. W. 2d 783, Jeffer son v. State, 196 Ark. 897, 120 S. W. 2d 327, Smith v. State, 227 Ark. 332, 299 S. W. 2d 52. While parts of the testimony failed to link appellant with the crime, because of the inability of witnesses to make identification (testimony of the Smiths and Peal), and some other testimony, standing alone, was of but little value, it was certainly established that appellant was near ■ the area in which the murder was committed ... he was without money and apparently in need of funds (testimony of William Bradford), which could have been his motive for attempting robbery . . . Or-man’s slayer used a double barrelled shotgun . . . Walker had such a weapon in his possession at the time . . . he went out into the country and spent the night walking back and forth on a turn row, which was unusual, since he had been in town for two days ... he went to the trouble of burying the shotgun ... a siphoning hose was found in the car he was using (which ties in with the testimony of Leroy Brown), . . . the shotgun shell in his pocket was of the same brand, gauge, and color as the expended shell — and the expended shell, found not too far from the scene of the shooting, had been fired from the gun in Walker’s possession. In the Osburne case, supra, Justice Smith, speaking for the Court, said:
“But it may be doubted whether the State relied upon circumstantial evidence alone in the instant case. It is true that no witness who testified in the case saw the killing, but numerous statements of appellant herself relating thereto were offered in evidence, and the inferences deducible therefrom were of an incriminating character. The inference is fair and reasonable from appellant’s own admissions that she must have known how her husband met his death, and her improbable and untrue statements in regard thereto support the conclusion that she was a party to his murder.”
No evidence was here offered on behalf of appellant, and'the- testimony of the officers as' to the oral statements made by Walker to them, stands uncontradicted and unexplained. This testimony constitutes, persuasive evidence in support of the conviction. Even if we consider appellant as an ignorant neer-do-well, obsessed by-fear, still bis actions are totally inconsistent with innocence ; bis story too unlikely for credence.
The court did not err in refusing to direct a verdict of acquittal, and the evidence, under numerous holdings of this Court, was sufficient to sustain the verdict rendered. We have examined the record, and find no reversible error.
Affirmed.
William J. Smith, J., not participating.
Only one set of prints was found. According to the testimony, the field was wet and soggy.
The officers made casts of the prints, which were approximately the same size and general appearance of Walker’s shoes; however, according- to Captain Romines: “We didn’t think the casts were good enough, due to the condition of the ground, to definitely or positively identify the tracks as having been made by any particular shoe.” Captain Romines also testified that some of the prints by the road were measured, and that the first print, from the heel to the next heel, was 6Y2 feet, and the next 5% feet, indicating that whoever made the prints was traveling fast.
This shotgun shell, like the expended one, was a blue, Peters 12-gauge shell.
A double barrelled shotgun with wire wrapped around the handle.
The car was turned over to Lilly Daniels four days later when it was ascertained that it belonged to her.
Qualifications are as follows: “I have a Bachelor of Science degree, which I received prior to going to work for the Federal Bureau of Investigation. Since my employment there, I have studied under instructors who have made their life work firearms and ammunitions, too, that type. And, in different firearms and ammunitions plants, studying the method of manufacture and studying ammunitions, things of that type. I read various books and periodicals on the subject of guns, examinations. _ Made many examinations on my own in the Federal Bureau of Investigation laboratory. And have made examinations in several hundred cases and presented the evidence in courts in several jurisdictions throughout the United States. * * * Q. Would you tell the jury what your teaching experience is? A. Well, since being assigned to the Federal Bureau of Investigation laboratory, I have participated in numerous schools, both in Washington and throughout the United States, designed to train police officers and other men in this profession in the handling of evidence, particularly as it relates to firearms, ammunition, things of that type.”
“This photograph is a photograph made through a comparison microscope. It is, I will explain that, a comparison microscope is actually an arrangement whereby two microscopes are put side by side, or two microscopes. Then we place on the left hand stage, ordinarily place the evidence shell, which in this case is Plaintiff Exhibit No. 9. On the righthand stage, place the specimen which was fired in the laboratory, they are situated side by side on the stages of the microscope. By optical means the images of the two primers are brought together in one single eyepiece in the instrument. As you look through the eyepiece, you see a portion of Plaintiff Exhibit No. 9, which is the evidence shell, and a portion of the test shell, through the microscope. It is possible by a mechanical arrangement of the microscope to move the shell to the right, left, up, down. It is possible, under the microscope, when arranged in the comparison microscope, you see through the microscope as a split field. This line in the center is caused by the split in the field. As you look at the photograph for this set-up, the left side of this photograph or the left as you see it, is a portion of the head of the shot shell in the area adjacent to the firing pin impression on the primer, enlarged 50 or 60 times. That area, portion on the right, my right, your left, is a portion of the head of the shot shell which was fired in the laboratory in the right barrel of the shotgun. These markings that seem to pass across the line from the head of one shell to the other are points used for the purpose of identification. Those markings are caused by the breech face of the gun.” | [
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Sam Robinson, Associate Justice.
Appellant, Tiny Perry, and appellee, Julius Perry, were married June 7, 1925. On September 25, 1951, Tiny filed suit for separate maintenance; Julius filed a cross complaint asking for an absolute divorce. On October 15, 1951, the court granted Tiny’s prayer for separate maintenance and gave her custody of the three minor children, who have since that time become of age; gave her possession of the home place, which was an estate by the entirety; and ordered Julius to pay her $25 per week as maintenance and support for the children. On December 17, 1951, Julius was granted an absolute divorce on his cross complaint. The previous order granting separate maintenance to Tiny was not a grant of alimony pendente lite, but was separate maintenance granted in a suit filed for that purpose, and the granting of the separate maintenance in the circumstances was not a bar to the granting of a divorce to Julius. Hill v. Rowles, Chancellor, 223 Ark. 115, 264 S. W. 2d 638.
The decree granting the absolute divorce did not change or modify the previous order giving to Tiny possession of the property constituting an estate by the entirety. The prior order in that respect remained in full force and effect. Later both Tiny and Julius remarried, but Tiny continued in possession of the property constituting an estate by the entirety. On August 19, 1957, Julius filed a petition asking that he be given possession of the property. The court granted the petition, but the order sets out that Julius is willing that the property be sold and the proceeds divided equally between him and Tiny, and in addition that Julius is willing to pay to Tiny, from his part of the proceeds of the sale, $410 which he has been in arrears a long time in maintenance payments.
On appeal Tiny contends that the decree of December 17,1951 is res adjudícala of the question of possession of the estate by the entirety, and that the court has lost jurisdiction by lapse of time. The possession of the property was given to Tiny by way of maintenance. In the final decree the order giving Tiny possession was in no way disturbed or modified, but the decree specifically provides that the court retains “control of this cause for such further orders and proceedings as may be necessary to ascertain definitely, and enforce, the rights of the parties hereto in the property herein referred to.”
As a matter of law the trial court retains control of the cause with jurisdiction to modify an allowance of alimony or maintenance. Ark. Stat. § 34-1213 provides: “The court, upon application of either party, may make such alterations from time to time, as to the allowance of alimony and maintenance, as may be proper, . . .” Decrees for continuing alimony are always subject to the modification of the court upon application of either party. Schley v. Dodge, 206 Ark. 1151, 178 S. W. 2d 851.
The chancellor had jurisdiction to change the order providing for maintenance, which the court did by holding that since she had married again Tiny is no longer entitled to exclusive possession of the estate by the entirety. As it now stands, Julius and Tiny own the property by the entirety, but neither of them is entitled to exclusive possession. Since the estate was created prior to Act 340 of 1947, the court does not have authority to order that the property be sold. Jenkins v. Jenkins, 219 Ark. 219, 242 S. W. 2d 124. Of course, the parties may agree to a disposition of the property, and if they cannot agree the courts may take the proper steps to protect the interest of each of them.
Reversed with directions to enter a decree not inconsistent herewith. | [
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Minor W. Millwee, Associate Justice.
Petitioner, St. Paul-Mercury Indemnity Company, seeks a writ prohibiting the judge of the Circuit Court of St. Francis County, Arkansas, from proceeding further in a certain action pending in that court, “due to the attainment and legal retention of jurisdiction by the Chancery Court of St. Francis County, Arkansas, in this case, and due to the irreparable harm which will be caused petitioner by the wrongful continuation and trial of said cause in the Circuit Court of St. Francis County, Arkansas.”
According to the petition and the response thereto, St. Francis County owned a truck which was insured by petitioner and damaged in a collision while it was under a loan to and being used by the City of Hughes, Arkansas. Petitioner paid the amount of the damages to St. Francis County resulting from- the collision less $100.00 deductible as provided in tbe policy of insurance.
On August 28, 1956, counsel for petitioner filed an action in tbe St. Francis Circuit Court in tbe name of tbe county against tbe City of Hughes for tbe damages sustained to tbe truck under its right of subrogation under tbe policy. On September 26, 1956 County Judge M. D. Clark made a notation of dismissal on tbe docket sheet which tbe circuit judge determined bad tbe effect of dismissing tbe cause without prejudice. There was no appeal from an order to that effect entered on October 5, 1956.
On October 20, 1956 petitioner filed suit in tbe St. Francis Chancery Court in its own name against tbe City of Hughes and St. Francis County for tbe amount of its subrogation only. Subsequently petitioner filed an amendment to its complaint in tbe name of tbe county to also recover tbe $100.00 deductible claim alleged to be still due tbe county. Tbe county filed a motion to dismiss tbe amendment on May 30, 1957, alleging a prior release by it to tbe city of any claim as to tbe $100.00 deductible portion of tbe loss. After a bearing on June 20, 1957, tbe Chancery Court dismissed tbe action with prejudice as to any damages sustained by the county in excess of the amount of tbe subrogation paid by petitioner, directed that tbe county remain a party plaintiff and restrained tbe county judge from interfering in any manner with tbe prosecution by petitioner of its cause of action for tbe amount of its subrogation. A motion of tbe City of Hughes to transfer tbe case to law previously filed and submitted on briefs was beard by tbe chancellor who entered an order on November 7, 1957, transferring tbe case to the St. Francis Circuit Court. Tbe clerk of this court refused to docket petitioner’s appeal from this order on tbe ground that it was not final and appealable. We sustained tbe clerk’s action by denial of petitioner’s motion for a rule on tbe clerk on April 7, 1958.
Petitioner’s motion to transfer the canse back to chancery court was also denied by the St. Francis Circuit on February 7,1958, the court holding that the county was not a necessary party to petitioner’s action against the City of Hughes for the amount of its subrogation which involved only an action for damages properly triable in the circuit court. Petitioner then filed the instant application for a writ of prohibition on March 19, 1958, asserting the circuit court was without jurisdiction because the chancery court had already obtained jurisdiction and that its attempt to evade further exercise of such jurisdiction by transferring the case to law was erroneous, without authority and void.
In support of the petition it is first contended that the transfer of the case by the chancery court to circuit court was erroneous and improper; and that that chancery court, having acquired and exercised jurisdiction of the cause of action for one purpose, should have retained it for all purposes. We find it unnecessary to determine such contentions on this application for a writ of prohibition, though we have already sustained the prior decision of our clerk that a similar order was not final and appealable. Even if the chancellor’s action in refusing to exercise and retain jurisdiction were erroneous, we are unwilling to say that petitioner’s remedy by appeal is inadequate, or that it has no other protection against the wrong that would be done by a refusal to exercise such jurisdiction.
It is well settled by our cases that prohibition may not be used as a substitute for an adequate remedy by appeal. In this connection we have held that the remedy for refusal to transfer an action to equity is by appeal and not by prohibition under a situation quite similar to that presented here. In Richards v. Maner, Judge, 219 Ark. 112, 240 S. W. 2d 6, a suit brought at law was first transferred to equity and then retransferred to law when the petitioner applied for a writ of prohibition. In denying the writ we distinguished the factual situation from that in Burton v. Ward, 218 Ark. 253, 236 S. W. 2d 65, where each trial court refused to try the case, insisting that the other had jurisdiction. In the Richards case we said: “Here the trial courts are in agreement. The chancellor has sent the case back to the circuit court, and that court proposes to proceed with the trial. Unlike the situation in the Burton case these petitioners are afforded the opportunity of a trial, but they insist that the hearing should be in chancery. It is settled, however, that the remedy for a refusal to transfer an action to equity is by appeal, not by prohibition. Dunbar v. Bourland, 88 Ark. 153, 114 S. W. 467. As we said in Bassett v. Bourland, 175 Ark. 271, 299 S. W. 13: ‘The writ is never issued to prohibit an inferior court from erroneously exercising its jurisdiction, but only where the inferior tribunal is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction. To illustrate: The circuit judge certainly had jurisdiction to pass upon the motion to transfer to equity the case pending in its court. If it erroneously transferred the case to equity, prohibition is not the remedy. It can be corrected only on appeal.’ We then went on to point out that the party objecting to the transfer should have saved his objection and preserved his point for consideration by this court on appeal from the trial court’s final judgment.” See also, Weaver v. Leatherman, 66 Ark. 211, 49 S. W. 977.
So here, the trial courts are in agreement, and the circuit court had jurisdiction to pass on the motion to retransfer to equity. If it acted erroneously the petitioner’s remedy is by appeal when the matter proceeds to a final judgment, and prohibition is not the remedy. The case of Askew v. Murdock Acceptance Corporation, 225 Ark. 68, 279 S. W. 2d 557, relied on by petitioner, involved an appeal and not an application for a writ of prohibition.
What we have said concerning petitioner’s first point is applicable to its second contention that circuit court is without jurisdiction to proceed in the case because the chancery court acquired and exercised juris diction before it transferred the case to circuit court. As the respondent points out: “A settlement by the insured for the amount of the loss in excess of the insurance only, with a tort-feasor who is liable for the loss, since it is a settlement for the part of the eause of action which remains in the insured and which he has a right to settle, does not affect the insurer’s right of action against the tort-feasor.” 29 Am. Jur., Insurance, Sec. 1345. We do not understand petitioner to contend that the insured county had no right to settle with the alleged tort-feasor city for that part of the loss in excess of the insurance. Such settlement in no manner precludes petitioner from pursuing its action for damages against the city to the extent of its subrogation.
Jurisdiction of this action as well as the authority to pass ■ on the motion to retransfer to chancery court was a matter properly within the jurisdiction of the St. Francis Circuit Court. On the record presented, we cannot say that petitioner’s remedy by appeal from a final judgment that may be rendered in the circuit court action is inadequate, or that irreparable harm to it will necessarily result from an adjudication of the matter there.
The writ is accordingly denied. | [
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George Rose Smith, J.
This is the second appeal in this case. In 1954 two of the appellants, Pañi E. Broyles and his wife, agreed to sell a house and lot to the appellees, W. J. Summers and his wife. In 1955 the purchasers brought this suit for specific performance of the contract. On March 19, 1956, the chancellor entered a decree for the plaintiffs and directed that the sellers convey the property to the purchasers upon the payment of the balance of the purchase price, which was found to be $2,462.25. Upon an appeal by the sellers that decree was affirmed on November 5, 1956. Broyles v. Summers, 226 Ark. 878, 294 S. W. 2d 766.
Later on a dispute arose as to whether the purchasers were entitled to a credit upon the purchase price in the amount of the rents collected by the sellers after the date of the original decree. The appellees filed a motion in the trial court, asking that they be given credit for these rents and that the sellers be required to execute a deed upon the payment of the original balance less the amount of the rents. In response to this motion the sellers contended, as they do upon this appeal, that our affirmance of the 1956 decree settled every issue in the case and precluded the purchasers from seeking a credit for rents collected after the entry of that decree.
A hearing was had in the chancery court upon the issues raised by the supplemental pleadings. It was shown by undisputed testimony that, in connection with the first appeal, the parties had agreed, through the attorneys then representing them, that the sellers would not be required to execute a supersedeas bond and that, in lieu of such a bond, the rents received by the sellers after the date of the decree would be applied upon the purchase price if the chancellor’s decision should be affirmed. By the decree now under review the chancellor simply enforced the parties’ agreement and made a finding, which we think to be supported by the evidence, that the purchasers are entitled to a credit of $660, rep resenting rents collected by the sellers between the date of the original decree and the date of the supplemental decree.
The chancellor’s decision was correct. It is doubtless true that in many cases, perhaps in most cases, onr affirmance of a judgment or decree ends the litigation except for the matter of enforcing the trial court’s order. But this is not invariably true. Not infrequently justice requires that further proceedings be had with reference to rights arising after the entry of the trial court’s original judgment. For example, in Montgomery v. Black, 75 Ark. 184, 86 S. W. 1006, we affirmed a chancery decree setting aside an administrator’s sale and remanded the cause with directions that the land be judicially sold and the proceeds distributed. Upon remand the trial court required the administrator to account for rents collected by him after the date of the first decree. On a second appeal, Robinson v. Black, 84 Ark. 92, 104 S. W. 554, we held that, although the cause had been remanded for “the sole purpose” of having the land sold, it was proper for the trial court to ascertain the amount of rents collected by the administrator after the date of the original decree. That issue had not arisen when the sale was set aside in the first instance and was not adjudicated by the affirmance of the initial decree.
The appellants’ position in the case at bar cannot be upheld. If, in taking the first appeal, they had executed a supersedeas bond for the purpose of maintaining the status quo and thereby enabling themselves to continue to collect the rents, the affirmance of the decree would not have been res judicata in a proceeding upon the bond for the recovery of rents collected after the date of the superseded decree. Dover v. Henderson, 197 Ark. 971, 125 S. W. 2d 798. Instead of making the bond, the appellants were permitted to continue to collect the rents on the faith of their agreement that the appellees would receive credit upon the purchase price if the decree were affirmed. The appellants cannot invoke the doctrine of res judicata as a basis for repudiating their promise.
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Ed. F. McFaddin, Associate Justice.
The Trial Court sustained a demurrer to the complaint and dismissed the case. The plaintiffs (appellants) have appealed; and the sole issue is whether the complaint stated a cause of action.
The plaintiffs, as the heirs at law of Esther Lidell Sisson Goodin, brought this suit against the defendants, who together constitute all those interested in the estate of Joe Dean Goodin. The complaint alleged that Joe Dean Goodin, the husband, and Esther Lidell Sisson Goodin, the wife, were married on December 18, 1930; that they each then had only a very small estate; that at or shortly after the marriage, the said husband and wife entered into an oral agreement to form a partnership, for the purpose of acquiring lands and other properties and operating the same under the name and style of J. D. Goodin; that by the terms of said agreement, each of the parties was to and did contribute to the said partnership all of his or her property, capital, labor, and services, and each was to share jointly in the profits of the partnership; that all of the property was to be held and used for their mutual benefit during their joint lives.
We now copy certain of the germane allegations of the complaint, against which the demurrer was sustained :
“. . . that at the time of their marriage the said Esther Lidell Sisson Goodin and Joe Goodin entered into an oral agreement to form a partnership or joint adventure for the purpose of acquiring lands and property and operating farms in Poinsett County, Arkansas, under the name and style of Joe Dean Goodin or J. D. Goodin. By the terms of said agreement, each of said parties was to and did contribute to said partnership or joint adventure all of his or her property, capital, labor, and service, and each was to share equally in the profits, income, increments, losses, and labor of said partnership or joint adventure; that all of the property, profits, income and increments acquired and held by said partnership or joint adventure was to be, and was, held and used for their mutual benefit during their life time; that upon the death of either partner or joint adventurer, the survivor would hold and have the full use and benefit of all of said partnership or joint adventure property until his or her death, and upon the death of the survivor, the partnership or joint adventure would terminate, and all of said property (be) divided equally, one-half to the heirs of the said Joe Dean Goodin and one-half to the heirs of the said Esther Lidell Sisson Goodin.”
The complaint further alleged that the partnership had assets of realty and personalty into the hundreds of thousands of dollars; that the wife, Esther Lidell Sis-son Goodin died on October 9, 1944; and that the husband, J. D. Goodin, remained in control of the partnership assets pursuant to the agreement; that he died on January 11, 1957; and that his death terminated the partnership agreement. The plaintiffs claimed that under the partnership agreement they were entitled to one-half of all the partnership assets. To the complaint the defendants filed general demurrers, which, as hereto fore recited, were sustained, and the case was dismissed, when the plaintiffs elected to stand on the complaint.
At the outset it is well to state the rule for testing a case on demurrer. In Tyler v. Morgan, 214 Ark. 667, 217 S. W. 2d 606, we said:
“Appellees demurred to this complaint on the ground that it did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer and this appeal followed.
‘ ‘ The question presented is: Treating all allegations in the complaint, which are well pleaded, as true, and construing them liberally in favor of the pleader, as we must, was a cause of action stated? We hold that there was. ‘It is not necessary that the complaint should state a cause of action in every particular, for if it contains the substance of a cause of action imperfectly stated, the presumption would be that the defects in the complaint were cured by the proof at the trial.’ Clow v. Watson, 124 Ark. 388, 187 S. W. 175.”
After a careful study we reach the conclusion that the demurrer should have been overruled in the case at bar; and here are our conclusions as against the matters claimed to be defects in the complaint:
(1) The complaint alleged that the husband and wife formed a partnership. It is true that the case of Gilkerson-Sloss Com. Co. v. Sallinger, 56 Ark. 294, 19 S. W. 747, held that a husband and wife could not be partners in a commercial-venture; but that case was decided in 1892 and its effect was overcome by Act No. 159 of 1915 and by Act No. 66 of 1919, both as now found in § 55-401 Ark. Stats. We have recognized the partnership status between husband and wife in these cases: Williams v. Williams, 186 Ark. 160, 52. S. W. 2d 971; Price v. Price, 217 Ark. 6, 228 S. W. 2d 478; and Reed v. Reed, 223 Ark. 292, 265 S. W. 2d 531.
(2) The complaint alleged that the partnership agreement was oral, and that the partnership was to engage in acquiring and holding lands. But in Russell v. Williams, 197 Ark. 1086, 126 S. W. 2d 614, we held that the statute of frauds did not apply to an oral contract of partnership formed for the purpose of buying and selling land.
(3) The complaint alleged that the partnership would continue to be operated after the death of one of the partners. But we cannot say that the bare allegation was demurrable. In 40 Am. Jur. 327, “Partnership”, § 287, the holdings of many jurisdictions are summarized: “Where, as is often the case, the articles provide that the partnership shall not be dissolved by the death of a partner, such provision will be given effect by the courts”.
(4) The complaint alleged that the surviving partner would have a life estate in the interest of the deceased partner, the allegation to such effect being, “. . . that upon the death of either partner or joint adventurer, the survivor would hold and have the full use and benefit of all of said partnership or joint adventure property until his or her death . . .” This allegation did not make the complaint fatally defective on demurrer. The matter of one partner making disposition of his interest in the partnership upon his death is not a matter unknown to this Court. In Alexander v. Sims, Executor, 220 Ark. 643, 249 S. W. 2d 832, we had such an agreement before us, which was copied in full in the footnote to that opinion. We held that the agreement in that case was obtained by fraud and was, therefore, void; but in discussing the agreement we said:
“Absent any question of consideration, testamentary nature, or fraud on a partner or his creditors, spouse, heirs, etc., some courts have upheld a partnership agreement in which each partner agrees that the survivor will receive all of the assets of the partner ship, but such an agreement is always subjected to the closest scrutiny to see if the utmost good faith was observed. ’ ’
(5) The complaint alleged that after the death of the surviving partner, . . the partnership or joint adventure would terminate, and all of said property (be) divided equally, one-half to the heirs of the said Joe Dean Goodin, and one-half to the heirs of the said Esther Lidell Sisson Goodin”.
This allegation has given us most serious concern, as it may be testamentary in character and not executed in the form and solemnities required of a will. In 40 Am. Jur. 347 the text reads: “A provision in a partnership agreement that on the death of one of the partners his interest in the partnership shall become the property of the other partners is not testamentary in nature, and the fact that the agreement is not executed according to the requirements of the statute of wills does not invalidate it”.
Among other cases that we have studied, there is the Alabama case of Gomez v. Higgins, 130 Ala. 493, 30 So. 417. In that case, Francisco Gomez (the father) made a partnership agreement with his son, Alexander Gomez, and it provided, inter alia:
“In the event of the death of F. Gomez, the entire business with all assets, profits, book accounts and money on hand shall become the property of Alexander Gomez during his lifetime, and at his death the said business, together with all assets, profits, book accounts, stock and money on hand shall be divided into three equal parts, as follows: One-third (1/3) to my daughter Florida Gomez, one-third (1/3) to my daughter Romanda Higgins, and one-third (1/3) to the heirs of the said Alexander Gomez.”
The Alabama Court said that the instrument was a partnership agreement, “. . . but this did not prevent it being testamentary in character also in some of its provisions, ... It has the earmarks of a testamentary disposition of the property, such as constrain us to hold, that it did not pass a present estate, but was a testamentary disposition as to the property in question.”
The fundamental and basic distinction between the holdings seems to be this: if the primary purpose of the contract is to merely make a disposition of the partnership assets, then it can be enforced as a contract. But, if the primary purpose of the partnership agreement is to dispose of property after the death of the partners, then the instrument is testamentary and to be valid must have been executed in accordance with the solemnity and requirements for the execution of wills. Even though we have discussed this “testamentary matter” in considerable detail, still we do not have to decide on this appeal whether the agreement here involved was testamentary because: (a) if it was testamentary and, therefore, not enforceable, the heirs of Esther Lidell Sis-son Goodin might still have a cause of action unless barred by limitations and laches; and (b) if the agreement was not testamentary, the said heirs would not have a cause of action until the death of the life tenant, Joe Dean Goodin. So, in either event, the issue would not be reached on demurrer unless the complaint showed limitations or laches on its face.
(6) The appellees stoutly insist that the demurrer was properly sustained on the basis that Esther Lidell Sisson- Goodin died in 1944 and the appellants, as her heirs, did not file this suit until July, 1957. Thus, the appellees claim that limitation and/or laches appear on the face of the complaint and thus can be pleaded by demurrer. (Mueller v. Light, 92 Ark. 522, 123 S. W. 646, 31 L. R. A. N. S. 1013; McGinnis v. Less, 147 Ark. 211, 227 S. W. 398.) But in making such claim we think the appellees have overlooked allegations in the complaint to the effect: (a) that Joe Dean Goodin held a life estate and did not die until 1957; and (b) “. . . that after the death of the said Esther Lidell Sisson Goodin on October 9, 1944, the said Joe Dean Goodin took control of said partnership or joint adventure property, pursuant to their said agreement; that from 1944 until his death on January 11, 1957, the said Joe Dean Goodin held said property as trustee for said partnership or joint adventure using the profits, income and increases therefrom to further expand and increase said holdings; and that he held the same as such trustee for said partnership or joint adventure from that time until his death, at which time said partnership or joint adventure was terminated.”
The foregoing allegation is sufficient to prevent limitation or laches from appearing on the face of the complaint, and to require the defendants to assert such defenses by answer, if they so desire.
(7) Finally, there are the claims of third parties which we have not heretofore mentioned. The complaint alleged, that some time before his death, Joe Dean Goodin transferred a portion of the real and personal property of the partnership to third persons. Because of such transfer, it is claimed that limitation and laches apply. These may be good defenses by answer, but not by demurrer: because it does not appear on the face of the complaint that said third persons were bona fide purchasers. Even should we hold that Joe Dean Good-in occupied some position equivalent to that of a trustee, defensive pleadings by answer and proof are needed.
In conclusion, we reiterate that we are considering the complaint only on demurrer. Matters of proof are not before us; but on the face of the complaint we conclude that the demurrer should have been overruled. Therefore, the decree is reversed and the cause is re manded, with, directions to overrule the demurrer and allow further proceedings.
Harris, C. J., dissents; Johnson, J., not participating.
See the article by E. B. Meriwether: “The Partnership of Husband and Wife in a Mercantile Business in Arkansas”, in Arkansas Law School Bulletin of May, 1931, Volume 2, page 67. See also annotation in 157 A.L.R. 652, “Validity of partnership agreement between husband and wife.”
In another footnote we cited the following: McKinnon v. McKinnon, 56 F. 409; Michaels v. Donato (N. J.), 67 Atl. 2d 911; and other cases cited in the annotations in 73 A.L.R. 983 and 1 A.L.R. 2d 1207. See also 40 Am. Jur. 347.
In 73 A.L.R. 983 there is an annotation: “Validity, construction, and effect of agreement for disposition of interest in partnership in event of death of partner”; and on page 1000 to 1002 the annotation discusses agreements amounting to a gift of a partnership interest. Then, there is an annotation in 1 A.L.R. 2d 1178: “Provision for post-mortem payment or performance as affecting the instrument’s character and validity as a contract”; and on page 1216 et seq. the annotation discusses, “Features which, in conjunction with post-mortem provision, make instrument testamentary”.
In Hershy v. Clark, 35 Ark. 17, there was an agreement between tenants in common as to the disposition of interest in the event of the demise of either co-tenant. We held that instrument was testamentary. In the case of In Re Gardner’s Will, 66 N.Y. Supp. 2d 256, a partnership agreement was held to be testamentary in disposition. | [
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George Rose Smith, J.
This is an action for the wrongful death of Grover O. Dyer, who was struck and killed by a dump truck being driven by the appellant, Dyer’s fellow employee. The jury returned a verdict for the appellee, Dyer’s administratrix, fixed the damages at $5,000 for the' estate and $45,000 for the decedent’s widow and children, and attributed 5 per cent of the total negligence to Dyer.
A principal contention for the reversal of the judgment is that there is no proof of negligence on the part of the appellant. Our study of the record convinces us that the testimony presented a question for the jury on this point.
Dyer and King were employed by a contracting company, which was repaving with asphalt a highway south of Malvern. The hot asphalt is spread by what is called a Barber Green machine, which is a wide self-propelled vehicle that lays the asphalt along one entire traffic lane. As this machine moves slowly forward dump trucks carrying asphalt back up one at a time to a hopper at the front end of the machine, and the machine continues in motion and pushes each truck while the asphalt is being dumped into the hopper. The asphalt passes through the Barber Green machine and is distributed at the rear end of the machine in an even layer upon the highway. The operation requires a crew of ten or twelve men, some of whom work ahead of the machine, preparing the roadway, while others work behind the machine, smoothing the freshly laid asphalt.
On the day of the accident the west half of the highway was being repaved, in a northerly direction, with the east lane open to one-way traffic. King, who had arrived with a load of hot asphalt and had turned his truck around, started backing southward toward the front end of the Barber Green machine. King’s backward movement was directed by another employee, Carl Williams, who stood on the west shoulder of the highway near the front of the Barber Green machine. It was Williams’ duty to align the dump truck so that its rear wheels would make proper contact with the rollers by which the moving Barber Green machine pushes the truck along while the hopper is being filled. At this time, however, the Barber Green machine was stationary, its operator having shut off the motor a short time earlier.
While King was backing toward the machine the decedent, Dyer, was walking in the same direction down the center of the highway. An unidentified car, traveling north in the east lane, came so close to Dyer that he stepped into the west lane, in the path of King’s truck. Despite the shouts of Williams and others the truck hit Dyer and knocked him to the pavement. Dyer got up to his hands and knees, but the bed of the truck struck him and knocked him down again. He then tried to roll away, but his head was crushed by one of the wheels.
King’s insistence upon his freedom from fault is based largely upon the assumption that Dyer was walking faster than the truck was traveling and had just passed the truck when he stepped into its path and was struck in practically the same instant. The testimony of the witness Cloud supports this view, but there is other substantial evidence indicating that Dyer had been ahead of the truck for an appreciable time before he stepped into the west lane. Two witnesses thought the truck was backing too fast; they estimated its speed at about eight miles an hour, which exceeds a man’s walk. The witness Isaac Bell testified that Dyer was standing still with his back to the truck when he was hit.
On the issue of negligence there was also testimony that after Dyer was hit the second time the truck rocked as if the brakes had been applied, but then the truck continued to back and struck Dyer again. It was also shown that it was understood by all the crew that dump trucks were not to be backed up to the Barber Green machine while its motor was shut off. The operator of the machine testified that when he turned off the motor King’s truck had not begun to back and was standing still about a hundred feet away.
The appellant objected to the testimony about the practice just mentioned, but we think it was a proper matter for the jury to consider. The Barber Green machine was the hub around which the activities of the whole crew revolved. When the machine was stopped the trucks were not to come up to it, for the newly laid asphalt might be damaged if a vehicle backed against the machine while it was stationary. Even though the practice was not adopted as a safety measure, the jury could take it into account as a factor bearing upon the negligence of King and the contributory negligence of Dyer.
We find no error in the court’s refusal to give an instruction telling the jury in substance that if King as a prudent person was backing his truck under the direction of Williams, and if Williams was in a position to observe the roadway behind the truck, then King had a right to rely upon Williams and a right to assume the roadway was clear and would not be negligent merely, by reason of backing his truck under those circumstances. This instruction disregarded King’s possible negligence in starting to back while the Barber Green machine was idle and might have erroneously precluded the jury from considering that fact.
Nineteen days before the trial the defendant, by interrogatories, asked for the names of the witnesses that the plaintiff expected to call to prove certain specified allegations of the complaint. Ark. Stats. 1947, § 28-355. Two days after the service of the interrogatories the plaintiff answered that her attorney informed her that he expected to present three named persons as witnesses to the facts mentioned. At the trial, however, the plaintiff called three additional witnesses not named in her answer to the interrogatories. In reply to the defendant’s objection to the testimony of these wit nesses plaintiff’s counsel explained that he did not discover or interview these witnesses until after the interrogatories had been answered. The court then overruled the objection and allowed the witnesses to testify.
The appellant insists that the plaintiff was under a duty to amend her response when additional witnesses were found. Otherwise, it is pointed out, a party can never obtain the names of witnesses discovered by his adversary within fifteen days before trial, as the statute allows that much time for answering interrogatories. We agree with this reasoning and hold that the additional names should have been supplied by amendment. It does not appear, however, that the omission was prejudicial in this case. The three additional witnesses were all members of the paving crew and would normally be interviewed in a routine investigation by the defendant. They were in no sense surprise witnesses; indeed, the defendant did not assert surprise as a basis for his objection to their testimony. In the absence of prejudice there is no reversible error. Phoenix Cement Sidewalk Co. v. Russellville Water & Light Co., 101 Ark. 22, 140 S. W. 996.
We are not impressed by the argument that the Workmen’s Compensation Act prevents an employee, or his personal representative, from maintaining an action for the negligence of a fellow employee. Our statute merely provides that the remedies under the act are exclusive of other remedies against the employer. Ark. Stats., § 81-1304. The making of a claim for compensation does not affect the right of the employee or his dependents to maintain an action against a third person. § 81-1340. Under a statute like ours a negligent coemployee is regarded as a third person. Botthof v. Fenske, 280 Ill. App. 362; Kimbro v. Holladay, La. App., 154 So. 369; Churchill v. Stephens, 91 N. J. L. 195, 102 Atl. 657.
The only other point that need be discussed is the size of the verdicts. The award of $45,000 for the widow and children is not excessive. Dyer, a man of forty- nine with, an expectancy of more than twenty-one years, had been earning from fifty to sixty-five dollars a week. He was survived by his widow and nine children, the youngest of the four minor children being only four years old. In view of the pecuniary loss to his dependents and the mental anguish shown by the proof we do not regard the award as excessive.
On the other hand, the evidence does not support the $5,000 verdict in favor of the estate. The funeral expenses, including a monument, totaled only $1,263.30; so the rest of the award must represent compensation for pain and suffering. There is no indication that Dyer was conscious after his head was struck by the wheel of the truck. Nor is there any proof that he actually experienced pain during the two or three seconds that elapsed after he was first felled by the slowly moving vehicle. In the absence of proof the record does not sustain an award of more than $50 as essentially nominal damages for the striking.
The judgment is affirmed on condition that a remittitur of $3,752.33, which is the excess when Dyer’s contributory negligence is taken into account, be filed within seventeen calendar days; otherwise the judgment will be reversed and the cause remanded.
Johnson, J., not participating. | [
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George Rose Smith, J.
This is the second appeal in a suit by the appellants, M. O. Robertson and his daughter Mary Etta, against the appellee, Opal Robertson, who is the divorced wife of M. O. Robertson and the mother of Mary Etta. In the original complaint Mary Etta sought an accounting for rents collected by her mother upon forty acres that the mother and daughter own as tenants in common, and M. O. Robertson sought to set aside his conveyance to Opal of an undivided half interest in the land. The chancellor in effect sustained a demurrer to the original complaint and dismissed the suit. On the first appeal, 227 Ark. 978, 302 S. W. 2d 810, we held that Mary Etta’s complaint for an accounting stated a cause of action and that M. O. Robertson should have been given time to amend his part of the complaint. The cause was remanded with directions that the suit for an accounting be reinstated and that M. O. Robertson be given time to amend.
Upon remand the plaintiffs filed an amended complaint alleging, in addition to théir original causes of action, that Opal Robertson held her undivided half interest in the forty acres upon a constructive trust for Mary Etta. After a trial on the merits the chancellor required Opal to account to her daughter for one half of the rents, but he refused to impress a trust on the land or to set aside Robertson’s conveyance to his former wife. This appeal is from the latter rulings.
The appellee insists that upon remand the trial court should not have permitted the plaintiffs to assert a new cause of action by amendment, since this was outside the scope of our directions on the first appeal. The rule is, however, that the pleadings may be amended after an appeal that merely reverses a ruling on demurrer, there having been no hearing on the merits. American Inv. Co. v. Sager, 175 Ark. 67, 299 S. W. 374.
The asserted constructive trust is said to have arisen when Robertson conveyed the land to his wife and daughter on September 5, 1947. A divorce suit was then pending between Robertson and his wife, and the deed was executed pursuant to an agreement settling the couple’s property rights. Although the deed was absolute in form, the appellants offered proof to show, that the purpose of the conveyance was to provide a means of support for Mary Etta, whose custody was being awarded to Opal, that Opal was named as a grantee only to enable her to manage the property for the minor child, and that Opal orally agreed that the land would belong to Mary Etta when she reached her majority. Mary Etta became of full' age shortly before the case was heard below.
The appellants’ proof is insufficient to establish a constructive trust. A grantee’s oral promise to hold the land for a third person is unenforceable under the statute of frauds, but a constructive trust will be imposed if it is shown by clear and convincing evidence that the grantee’s promise was intentionally fraudulent or that the grantor and grantee were in a confidential relation. Walker v. Biddle, 225 Ark. 654, 284 S. W. 2d 840; Rest., Trusts, § 45. In this instance neither condition is shown by the required standard of proof.
To bring about a constructive trust the oral promise must be falsely given, with no intention of performance, so that it amounts to a misrepresentation of fact. Rest., Trusts, § 44, Comment b; Armstrong v. Armstrong, 181 Ark. 597, 27 S. W. 2d 88. Here there is nothing to indicate this state of mind on the part of Mrs. Robertson except the bare fact that more than ten years later she refused to carry out the asserted agreement. All the rest of the evidence tends to rebut the suggestion that the promise was consciously false. Both the appellants testify that Mrs. Robertson conceded until about the time this suit was filed that the land belonged to Mary Etta. In 1948, in connection with a second divorce suit after the couple had remarried, Mrs. Robertson signed a separation agreement which recited that the land had been deeded to her and the child for the support and maintenance of the child. These matters certainly indicate that the promise, if it was made, was given in good faith. We are by no means convinced that this mother deliberately set out to defraud her eight-year-old daughter, whose custody she sought and won in the divorce suit that was pending at the time.
The proof also negatives the existence of a confidential relation between Robertson and his wife when the deed was executed. The two were already estranged and had signed a separation agreement bringing their marital duties to an end. The husband alone was represented by an attorney, who prepared the deed and supervised its execution. If the instrument did not express the true intention of the parties, the omission must be attributed to Robertson’s reliance upon the advice of counsel rather than to a reliance upon the confidence that a husband reposes in his wife when the two are living together in harmony.
Robertson’s alternative request for a cancellation of the deed is based upon the fact that the Robertsons were married, in 1935, about three weeks before Mrs. Robertson obtained a divorce from her first husband. Robertson says that he did not learn until 1954 that his first marriage to the appellee was void. On this basis he contends that the appellee was not legally entitled to a property settlement in 1947 and that the conveyance should therefore be canceled.
There are two answers to this reasoning. First, Robertson has insisted all along that his only purpose-in executing the deed was to provide for the support of his daughter, and there is no reason to think that he would have been less generous to his child had he known that the marriage was invalid. Secondly, although the first marriage was void, the Robertsons married and divorced each other a total of four times. The last three marriages were legal, and at least one of the later divorces was obtained by Mrs. Robertson. There is no proof that this undivided half -interest in forty acres of land is more than she was entitled to receive upon the dissolution of the valid marriages.
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George Rose Smith, J.
On November 15, 1956, Phillip Green, aged nineteen, was killed in a collision between the car he was driving and a car owned by the appellant Garrett and being driven by the appellant DeLong. This action for wrongful death and property damage was originally brought by the decedent’s parents, Forace and Elvie Green. Later on Forace Green was appointed administrator of his son’s estate and in that capacity intervened as a plaintiff in the action. Upon trial before a jury the plaintiffs recovered a judgment for $23,061.47, of which $20,000.00 was awarded by the jury for the mental anguish suffered by the parents.
The principal argument for reversal concerns certain references to an insurance company that were made during the selection of the jury. Mr. Means, representing the plaintiffs, had stated that he proposed to ask the veniremen if any of them owned stock in the Southern Farm Bureau Casualty Insurance Company. Mr/ McMillan, representing the defendants, informed the court that the company in question was in fact insuring the defendants in the case. He further stated that, “as far as our information is concerned, we have no knowledge of anybody in Plot Spring county, and particularly on this jury, that has any stock in this corporation.” He went on to say that there was a conflict in the county between the farmers supporting the Farm Bureau and those supporting the Farmers Union, both of which had insurance companies, that at least two members of the jury were decidedly biased against the Farm Bureau, and that to indicate that the Farm Bureau was a defendant would affect those men. Mr. McMillan requested that the questions be limited to a reference to insurance companies in general, and, if any juror answered in the affirmative, that he then be' asked to name the particular company. “In this way,” Mr. McMillan pointed out, “Mr. Means can obtain his information without disclosing the name of the insurance company.”
Mr. Means insisted, however, that he was entitled to ask the jurors about the particular company. The trial court sustained this contention, s,nd Mr. Means then asked the veniremen four separate questions about their ownership of stock in, or their agency for, the Southern Farm Bureau Casualty Insurance Company. No juror gave an affirmative answer to any of these questions.
On some fifteen occasions we have considered the matter of questioning prospective jurors about their connection with insurance companies. The difficulty, which has made the issue a recurring one, is that of laying down a rule that will operate with fairness to both sides in the litigation. On the one hand, the plaintiff’s attorney is undoubtedly entitled to elicit information that may assist him in the exercise of his peremptory challenges. As we said in Dedmon v. Thalheimer, 226 Ark. 402, 290 S. W. 2d 16: “If counsel, in good faith, thinks that liability insurance is involved, then he may ask questions calculated to bring to light any bias or prejudice a venireman may have for or against insurance com panies ... A lawyer trying a case would be rather careless if he failed to ascertain as well as possible if any one on the venire was biased or prejudiced on a question involved in the litigation, even though such question would be only indirectly involved. ’ ’
On the other hand, the fact that the defendant is insured has no bearing on the issue of negligence, and since that knowledge, as we have repeatedly held, may prejudice the jury, it is improper for the questions on voir dire to be used as a means of unnecessarily calling the jury’s attention to the fact of insurance. Pekin Stave & Mfg. Co. v. Ramey, 104 Ark. 1, 147 S. W. 83. Judge Frank Smith, in writing the court’s opinion in Williams v. Cantwell, 114 Ark. 542, 170 S. W. 250, had this to say: “. . . appellee’s attorney appears to have known, not only that Mr. Wynne did represent an insurance company, but to have known the particular company which he represented, and his speech before the court, as well as his questions to the jurors, appears to us to have unnecessarily advised the jurors of the fact that appellant was insured against liability and that he would not be required to pay any verdict which they might render against him. Information as to any jur- or’s connection with any insurance company could have been obtained in a less dramatic manner by asking each of the jurors if he represented or was connected with any casualty company insuring employers against liability, or if he was connected with any insurance company, or any other proper question which might have tended to disclose whether any juror had any bias or prejudice likely to influence his verdict one way or the other; and had any juror answered that he was so connected with any such insurance company it would not have been improper to have permitted a more minute inquiry of such juror. But no such necessity appears to have existed in this case, and the purpose and effect of counsel’s remarks addressed to the court and his questions to the jurors appear to have been to advise the jury that appellant was insured against liability in. the Home Life and Accident Insurance Company and would not have to pay any judgment for damages which they might render against him. ’ ’
In the case at bar it cannot be said that counsel’s unquestioned right to information about the veniremen necessarily required that the Southern Farm Bureau Casualty Insurance Company be referred to by name. Opposing counsel, whose good faith in the matter is not questioned, had declared that the farmers in the county supported two rival organizations, that at least two members of the panel were decidedly biased against the Farm Bureau, and that to refer to that company would have a prejudicial effect. He went further and pointed out, much as Judge Smith did in the Williams case, how the desired information might have been obtained by general questions. Despite this warning plaintiff’s counsel insisted upon naming the company and did so in four questions to the jury. It can hardly be supposed that a group of intelligent jurors did not draw the inference that the Southern Farm Bureau Casualty Insurance Company had insured the defendants, since that company was singled out in counsel’s repeated inquiries on the subject. Had there been no alternative way of examining the venire no doubt the plaintiffs’ right to information would have overridden the defendants’ objection; but there was an alternative, which the plaintiffs refused to adopt.
"We are aware that in three instances we have affirmed judgments even though a specific insurance company was mentioned during the selection of the jury. Ellis & Lewis v. Warner, 182 Ark. 613, 32 S. W. 2d 167; Halbrook v. Williams, 185 Ark. 885, 50 S. W. 2d 243; Lewis v. Cox, 187 Ark. 1163 (mem.), 58 S. W. 2d 215. We emphasize, however, that those precedents do not justify the procedure which was permitted in this instance and that the present judgment would have to be reversed regardless of what rule might be established for the future. In none of the cases just cited was there a suggestion, as there is here, that to name the company would be peculiarly prejudicial; nor was it insisted in the earlier cases that the desired information be elicited by gen eral questions. In order to affirm this judgment we should have to go far beyond any prior case, by saying flatly that counsel has an unqualified right to name the particular insurer even though the record shows that the reference will have an especially prejudicial effect upon the jury and even though the needed information can equally well be obtained in a way that involves no such unfair advantage for either side. That view is not supported either by our earlier decisions or by the simplest notions of fair play.
We could, of course, end our discussion at this point, leaving for future determination a host of minute and finely drawn distinctions that would undoubtedly be urged in later cases. The bench and bar, however, are entitled to an expression of our views, especially if that course may reduce an area of uncertainty and thereby avoid needless appellate litigation. We therefore think it best to announce our preference for the procedure that is at once the simplest to follow and the fairest to both sides in the lawsuit: Questions about the veniremen’s insurance connections should refer only to insurance companies in general; a particular company should not be named when the information wanted can just as well be obtained by the use of general questions.
In the present case it is also contended that the plaintiffs ’ references to the Southern Farm Bureau Casualty Insurance Company were offset by the fact that the defendants were allowed to ask the jurors about their possible connection with the Emmco Insurance Company. The latter inquiry was plainly permissible, however, as the Emmco Insurance Company was actually a party to the case, having intervened to assert a subrogation claim for the damage to the Green car.
Several other asserted errors are argued in the briefs, but for the most part they are of a kind not apt to arise upon a retrial and need not be discussed. One matter, however, should be mentioned. Over the defendants’ objection the court permitted the jury to return separate verdicts for the mental anguish suffered by the father and that suffered by the mother. The case was tried un der Act 115 of 1949, which allows the personal representative to recover for mental anguish sustained by the parents of the decedent and which directs that the recovery be distributed in the proportion provided by law for the distribution of personal property left by persons dying intestate. It is insisted that the court should have required the jury to return a single verdict in favor of the administrator for the total mental anguish undergone by both parents.
Without deciding the merits of this contention we point out that Act 115 was repealed by Act 255 of 1957, which by its language is applicable to all actions for wrongful death, whether arising before or after the effective date of the 1957 statute. Ark. Stats. 1947, §§ 27-906 et seq. The new act provides that the apportionment of the damages shall be made by the jury at the request of any beneficiary or party. Ark. Stats. § 27-909. We regard this as essentially a procedural change, since the substantive right to collect damages for wrongful death is continued in force, with a change in the procedural method by which the distribution of these damages is to be determined. The 1957 act will therefore be controlling upon a new trial, under the rule that procedural changes apply to pending cases. Foster v. Graves, 168 Ark. 1033, 275 S. W. 653.
Reversed.
McFaddin, Mill wee, and Robinson, JJ., dissent. | [
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Ed. F. McFaddin, Associate Justice.
This appeal stems from the efforts of the appellant to recover on a surety agreement. The appellant — The J. R. Watkins Company (hereinafter called “Watkins”) — is a corporation engaged in selling merchandise in wholesale quantities to individuals who resell to the retail trade. On June 17, 1954 Watkins entered into a written contract with. William Albert Martin (hereinafter called “Martin”), agreeing to sell to him merchandise in wholesale quantities, under the provisions of their contract. To guarantee Martin’s payments to Watkins under the contract, Tom Martin, along with the appellees, Bailey Hall, Y. E. Smith, Roy Bell, and Clyde Deakins, signed a surety agreement with Watkins, which agreement was attached to the Martin contract, and read in part:
“In consideration of the execution of the foregoing agreement by The J. R. Watkins Company, which we . . . hereby agree and assent to, and its promise to sell, and the sale and delivery by it, to the Purchaser, as vendee, of goods and other articles, as therein provided, we, the undersigned sureties, . . . jointly, severally and unconditionally promise, agree and guarantee to pay for said goods and other articles, and the prepaid transportation charges thereon, at the time, and place, and in the manner in said agreement provided . . .”
' Pursuant to' the contract, Martin received merchandise from Watkins at various times and in various amounts. He did not pay for the merchandise; and he seems to have departed from the locality and was never served with summons in this case. His unpaid balance was $1,458.92 on April 18, 1955, when Watkins notified each of the appellees:
“In Re: Yonr surety for Mr. William Albert Martin. This is to notify you formally that the contract of the above for whom you are surety has been terminated, and in accordance with the provisions of the contract any balance owing is immediately due and payable. We wish to advise you that under the terms of the contract, unsold goods are returnable for credit, charges prepaid— credit will be allowed on condition of goods as received by us. If there is any information you desire or cooperation, please let us hear from you promptly.”
Appellees neither made payment nor returned merchandise ; and on May 31, 1956 Watkins filed the present , action, alleging the facts as above stated, all of which were established at the trial. In addition to a general denial, the appellees claimed that Martin had on hand merchandise which should have been returned to Watkins and which would have extinguished the account.
At the trial, the appellees admitted signing the contract, did not deny the correctness of the account, and admitted receiving the letters from Watkins dated April 18,1958; but the appellees contented themselves with testifying: (a) that they went to Martin’s house and saw through the window several truck loads of merchandise, although no one ever made any further examination as to the contents or condition of the merchandise; (b) that they wrote Watkins offering to return the merchandise and pay freight, but never received any reply to the letter; and (c) because they did not receive a reply to the letter, no merchandise was ever returned. These matters were claimed to be substantial compliance with the provisions of the contract as to the return of the merchandise. At the conclusion of the evidence, Watkins moved for an instructed verdict for the plaintiff, which was refused. The jury rendered a verdict for the defendant and this appeal ensued.
I. Instructed Verdict. We hold that the Trial Court should have directed a verdict for Watkins. The fact that the appellees received no detailed instructions from Watkins as to the method of returning the mer chandise was no defense, because the contract gave the appellees the right to return the merchandise if they exercised the right within the time and in the manner stated in the contract, all of which they entirely failed to do. The appellees did not show: (1) that they tendered a return of the merchandise within the time fixed by the contract; (2) that the merchandise in Martin’s house was of the qualifications that could be returned; or (3) that the merchandise in Martin’s house had any determined value. According to the uncontradicted evidence, the defendants owed Watkins $1,458.92, together with interest, and the Trial Court should have directed a verdict for Watkins for said amount, since the appellees did not show that they had complied with the contract in regard to the return of merchandise.
II. Procedural Matter On Appeal. In this Court the appellees have filed a motion to dismiss the appeal: claiming that the appellant has failed to comply with a portion of Sec. 9 of Act 555 of 1953 (as now found in Sec. 27-2127.3 Cumulative Supplement to Ark. Stats.) The portion of the section relied on by the appellees reads:
“If there be designated for inclusion any evidence or proceedings at the trial or hearing which was steno-graphically reported, the appellant shall file, at the time of filing his designation or within a time to be fixed by the Court, a copy of the reporter’s transcript of the evidence or proceedings included in his designation. The said transcript shall be filed with the designation unless the appellant shows to the satisfaction of the Court the impossibility or impracticability of furnishing the transcript at the time of the filing of the designation of the record.”
The appellees urge that when the appellant furnished the designation of the record and the points to be relied on, the appellant failed — at that time — to furnish the stenographer’s transcribed notes of the testimony taken ore terms. The record reflects that the judgment was entered on April 5, 1958; that the notice of appeal and the designation of points were filed on April 9, 1958; that the transcribed testimony was certified by the Court Reporter on April 16, 1958; and that it was filed on April 23, 1958.
When the judgment was filed on April 5, 1958 the appellant had thirty days within which to file the notice of appeal; and was required to file the designation of points promptly thereafter. (See Sec. 2 of Act 555, as found in § 27-2106.1 Cumulative Supplement to Ark. Stats.) The notice and designation were filed in apt time. The statute says: “. . . failure of the appellant ... to take any of the further steps to secure the review shall not affect the validity of the appeal, . . . but shall be ground only for such action as the appellate court deems appropriate, which may include the dismissal of the appeal . . .” Section 20 of said Act 555 (as now found in § 27-2127.1 Cumulative Supplement to Ark. Stats.) says that the record on appeal shall be filed with the appellate court and the appeal docketed within 90 days from the date of the notice of the filing of the appeal unless an extension be granted, as provided by law. The record was filed in this Court within the 90-day period.
When we take into consideration the fact which we know — that it is only in the rarest of instances that a court reporter gets the testimony transcribed within four days after the trial — we think it would be putting the letter above the spirit to say that the transcribed testimony must be filed in all cases at the time the notice of appeal and the designation of the record are given. We, therefore, indulge a presumption that the Trial Court granted additional time for the filing of the transcribed testimony; and this presumption exists because appellees did not claim and establish either: (1) that they asked the lower Court to shorten the time for filing the transcribed testimony; or (2) that the appellees have been hurt by failure of earlier filing of the transcribed testimony. We exercise the discretion accorded us by Sec. 2 of the Act 555 and deny the motion to dismiss the appeal.
The judgment is reversed and the cause is remanded, with directions to enter a judgment for The J. R. Watkins Company for $1,458.92, together with interest from April 18, 1955 until paid, and together with all costs.
Justice William J. Smith not participating.
Some of the contractual provisions were:
1. The contract continued until April 1,1955 if Martin fulfilled all terms, but “. . . either of the parties hereto may terminate this agreement at any time, if desired, by giving the other party notice thereof in writing by mail.”
2. “The purchaser further agrees to pay the Company its current wholesale prices for the goods and other articles sold to him, as herein provided . . .”
3. “The purchaser may, within thirty days after the expiration or termination of this agreement, return, by prepaid freight, to the Company, at Winona, Minnesota, Memphis, Tennessee, Newark, New Jersey, or Oakland, California, in as good condition as when delivered to him at point of shipment, any goods purchased by him from the Company, which he may then have on hand; and the Company agrees to repurchase such goods, in the units and combinations purchased, if in such condition when received by it, and pay or credit the Purchaser therefor at the invoiced prices or at the Company’s prevailing wholesale prices whichever shall be lower . . .” | [
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George Rose Smith, J.
TMs action for slander was brought by the appellee, Virginia Dove, who asserts that the appellant, George Edward Thiel, falsely accused her of adultery. The jury awarded the plaintiff $14.00 as compensatory damages and $1,400.00 as punitive damages. The appellant questions the sufficiency of the evidence and the correctness of the count’s instructions to the jury.
Thiel, who was the municipal judge at Paragould, was standing on the sidewalk across the street from the Reynolds Apartments at about 9:30 on the evening of July 24, 1957. He says that in' one of the apartments he saw a city policeman, Jimmy Rogers, clad only in an undershirt, and a nude woman whom he did not recognize and, in fact, has never attempted to identify. The two disappeared from view, but Thiel observed enough of their conduct to indicate that an act of sexual intercourse took place.
On the same evening, according to the evidence, Thiel met two policemen and told them what he had seen. He also went to the home of an alderman and, in describing the incident, identified the window of the apartment as having been the first one to the left of the stairway in the building. The next day the mayor heard about the matter and discussed it with Thiel.
No formal charge appears to have been made against Rogers, the officer involved, but the city’s Police Committee met on July 26 and investigated the matter to some extent. Five days later the city council held a public hearing, which was well attended, to determine if Rogers should be suspended or discharged. Thiel appeared at both these meetings, by request but without subpoena, and again described what he had seen in the apartment to the left of the stairway.
The apartment in question was occupied by the plaintiff, Mrs. Dove, and her husband. Their testimony, which is amply corroborated, is that on the evening of July 24 two other tenants in the building, Miss Potter and Miss Berry, dropped in to watch television. Nothing of an unusual or indecent nature took place. Rogers testified that he had never been in the Reynolds Apartments at night and had never been in the plaintiff’s apartment at all. The jury evidently accepted the testi mony offered by the plaintiff and concluded that the defendant’s narrative was false.
The appellant first contends that his words did not amount to a defamation of Mrs. Dove, since he did not name her as the woman he saw and did not even know that she lived in the particular apartment. This argument is not sound. It is enough that the slanderous words be reasonably understood to refer to an ascertained or ascertainable person, who, of course, must be the plaintiff. Nowell, Slander and Libel (4th Ed.), § 214. Inasmuch as Thiel identified the man as Jimmy Eogers and fixed the place as the apartment occupied only by Mrs. Dove and her husband, the statements strongly imply, and would reasonably be taken to mean, that Mrs. Dove was in fact the unidentified woman supposedly seen by the appellant.
Upon the theory that Thiel’s statements before the Police Committee and at the city council’s public hearing were absolutely privileged, counsel for the defense asked the trial court to instruct the jury that there could be no liability for those statements. That request was properly refused. The committee and the council were discharging a public duty in inquiring into Rogers’ fitness to act as a policeman, and in the public interest it was desirable that they have as much information as possible about the incident. Consequently it is true that statements taken at the hearings were privileged, but the privilege was conditional rather than absolute. Rest., Torts, § 598.
The rule governing the limited immunity that attends a conditional privilege has been stated as follows: “One who publishes false and defamatory matter of another upon a conditionally privileged occasion is liable to the other if he abuses the occasion.” Rest., Torts, § 599; Bohlinger v. Germania Life Ins. Co., 100 Ark. 477, 140 S. W. 257, 36 LRANS 449, Ann. Cas. 1913C, 613. It is an abuse of the occasion for one to make a .defamatory statement that he knows to be untrue. Rest., § 600. Here, as we have seen, the jury were warranted in finding that the statements at the hearings were made with knowledge of their falsity.
A conditionally privileged occasion is also abused if the speaker is motivated by malice rather than by the public interest that calls the privilege into being. Rest., § 603; Miller v. Nuckolls, 77 Ark. 64, 91 S. W. 759, 113 A. S. R. 122, 4 LRANS 149. We think the proof made the existence of malice a question for the jury. “Malice may be shown by the defamatory words themselves and the manner of their publication, and need not be proved by extrinsic evidence. The absence of legal excuse for publishing the slander is evidence of malice.” Gaines v. Belding, 56 Ark. 100, 19 S. W. 236. It may be conceded that if Thiel did not know who lived in the apartment next to the stairway his statements were not consciously motivated by ill will toward Mrs. Dove in particular. But the proof supports a finding that Thiel acted at his peril in designating the apartment and displayed such a conscious indifference to results that his conduct could be regarded as willfully wrong. Greer v. White, 90 Ark. 117, 118 S. W. 258. What we have already said on the issue of malice makes it unnecessary to discuss the contention that the evidence of malice is insufficient to support an award of punitive damages.
Finally, it is insisted that the court erred in giving an instruction which reads in part: “You are instructed that malice may be inferred from the falsity and the absence of probable cause or other relevant circumstances, or it may be deduced from the libel or slander itself of which it forms a part.” It is argued that under our previous decisions this instruction constituted a comment upon the weight of the evidence.
This contention must be sustained. The manner in which the trial court may call certain facts to the jury’s attention has been pretty clearly outlined by a number of decisions, many of which deal with the fact of possession of recently stolen property as constituting sufficient proof of guilt. On the one hand, it is permissible for the court to instruct the jury that a certain fact, such, as the possession of recently stolen goods, goes to the jury for its consideration in connection with the other evidence as tending to show the guilt of the accused. See Blankenship v. State, 55 Ark. 244, 18 S. W. 54; Sons v. State, 116 Ark. 357, 172 S. W. 1029; Barron v. State, 155 Ark. 80, 244 S. W. 331.
On the other hand, it is clearly improper for the court to tell the jury that a specific fact in evidence is sufficient to support an inference of guilt, negligence, or the like. Blankenship v. State, supra; Smith v. Jackson, 133 Ark. 334, 202 S. W. 227; Coca-Cola Bottling Co. of Southeast Arkansas v. Bell, 194 Ark. 671, 109 S. W. 2d 115. It is for the jury to say whether the particular inference should be drawn from all the proof in the case, and consequently the court comments on the weight of the evidence when it declares that a certain inference may be drawn from a specific fact.
In the case at bar the court instructed the jury, at least in general language if not by reference to a specific fact, that malice may be inferred from the falsity of the statements and the absence of probable cause. In applying this charge to the proof before them the jury would necessarily understand that a finding of falsity and of the want of probable cause was, in the court’s judgment, a permissible basis for inferring the existence of malice. Hence, even though the charge was couched in general language it conveyed the same message that would have been carried by a specific narration of the facts.
The case of L. B. Price Merc. Co. v. Cuilla, 100 Ark. 316, 141 S. W. 194, is directly in point. That was a suit for malicious prosecution, and the court instructed the jury that malice might be inferred from the want of probable cause. In holding the charge erroneous we said: “This amounted to an instruction on the weight of the evidence, for it was equivalent to saying to the jury that a finding of want of probable cause was sufficient to justify a finding of malice. Now, a trial jury in a case of this sort may or may not, according to the circumstances of the case, draw an inference of malice from a want of probable cause. It is a mere inference of fact and not presumption of law; and as tbe jury are not bound to draw such an inference as a matter of law, it amounts to an instruction on tbe weight of the evidence to tell them what facts are of sufficient weight to warrant the inference.” To the same effect is Kable v. Carey, 135 Ark. 137, 204 S. W. 748, 12 A. L. R. 1227.
Reversed. | [
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Ed. F. McFaddin, Associate Justice.
This is a death sentence case. In Moore v. State, 227 Ark 544, 299 S. W. 2d 838 the present appellant and three others had been convicted for the murder of M. R. Hamm. We reversed the convictions for the reasons stated in the majority opinion in that case. The facts surrounding the killing of Mr. Hamm and the appellant’s alleged participation are stated in our opinion in the first appeal; so we do not again recite them.
On remand, James Moore (present appellant) obtained a severance, made no claim for change of venue, and upon trial was again convicted and sentenced to death. This appeal ensued; and, being a capital case, we have reviewed every objection in the record. (See § 43-2723 Ark. Stats.) ¥e group the objections and assignments in convenient topic headings:
I. Appellant’s Motion To Quash The. Information. Appellant was tried on an information filed by the Prosecuting Attorney instead of an indictment returned by a Grand Jury; and he says:
“Again is presented to the Court the contention that Amendment No. 21 to the Constitution of the State of Arkansas violates those liberties provided for in the Constitution of the United States of America. The more recent interpretations of the due process clause of the Federal Constitution activates interest in the question of whether or not a State may, if it so desires, provide for prosecution by Information rather than Indictment. ’ ’
The contention here made has been rejected in many of our cases. In Washington v. State, 213 Ark. 218, 210 S. W. 2d 307, we said:
“Appellant was tried on an information filed by the prosecuting attorney, rather than on an indictment returned by a grand jury; and appellant claims that prosecuting him by information is violative of his rights under both the State and Federal Constitutions. Amendment 21 of the State Constitution reads: ‘That all offenses heretofore required to be prosecuted by in dictment may be prosecuted either by indictment by a grand jury or information filed by the prosecuting attorney’. This amendment has been upheld by this court against such attack as is here made, in numerous cases, some of which are: Penton v. State, 194 Ark. 503, 109 S. W. 2d 131 and Smith et al. v. State, 194 Ark. 1041, 110 S. W. 2d 24. The United States Supreme Court has repeatedly held that a State can — if it so desires — provide for a prosecution by information instead of by indictment. Some of these cases are: Hurtado v. California, 110 U. S. 516, 28 L. Ed. 232, 4 S. Ct. 111; Bolln v. Nebraska, 176 U. S. 83, 44 L. Ed. 382, 20 S. Ct. 287; and Gaines v. Washington, 277 U. S. 81, 72 L. Ed. 793, 48 S. Ct. 468.”
The United States Supreme Court refused certiorari in the case of Washington v. State, 335 U. S. 884, 93 L. Ed. 423, 69 S. Ct. 232. So our holding remains the same as in Washington v. State.
II. Motion For Continuance. The trial of appellant’s case was duly set to commence on July 10, 1957; and on the morning of that date the appellant filed a motion for continuance, claiming:
“On a late news telecast over television station KCMC at Texarkana, Arkansas, July'9, 1957, Bill Gill, newscaster, told viewers and listeners living in a wide area covering all of Miller County, Arkansas and much of the four State area which it serves, that Judge Lyle Brown had granted permission for the televising of the trial of the defendant scheduled to begin on July 10, 1957 at 9:00 A. M., in granting permission for the filming and recording from the corridors of the Miller County Courthouse. The defendant, by his attorney, moves for a continuance to ascertain the effect of the sudden and dramatic interest created by such an act, upon the minds of the inhabitants of Miller County, Arkansas, for a possible move to ask the Court for a change of venue.”
Testimony on the motion was duly beard. It disclosed that the defendant’s attorney had agreed that a television camera could be placed in a corridor of the Courthouse and that through a window or conduit into the Courtroom certain portions of the trial could be filmed; that the filmed portions would be edited after the trial; and that the pictures could then be televised as silent films. No cameras were stationed in the courtroom and no pictures were taken by anyone in the courtroom. The motion for continuance was not because of the television itself, but because a radio newscast on the night of July 9th had stated what was to be done; and appellant’s attorney wanted the trial continued to see whether the radio announcement on the night of July 9th had adversely affected his client.
The Prosecuting Attorney, the Defense Attorney, and the Trial Court arranged some sort of pickup camera outside the courtroom. The motion for continuance is not an effort by the defendant’s attorney to recede from that agreement: rather it is a motion for continuance to see if the announcement of the facts of the agreement had adversely affected his client. We fail to see how the radio announcement could be a cause for continuance. The statutes (Ark. Stats. § 43-1705 et seq.) and construing cases specify the essential content and showing that must be made in a motion for continuance ; and no such content or showing was here made.
III. Motion To Quash The Panel Of Petit Jurors. This presents the claim of racial exclusion of trial jurors in Miller County, Arkansas. The motion to quash recites, inter alia:
“That at all times material herein it has been, was and still is the custom in Miller County, Arkansas, to use white persons exclusively for regular Petit Jury service in any and all cases including the trials of felonies, and in selecting the current jury and the supplement thereto the Jury Commissioners substantially followed the said customs in naming only white persons to the said jury panel. The defendants allege that no Negroes are now serving on the present panel of petit jurors, and that they have been systematically excluded from serving solely because they are Negroes, and that this action constitutes discrimination and a denial to them of equal protection of the laws of the United States of America as guaranteed by Section One of the Fourteenth Amendment to the Constitution of the United States of America.
A lengthy hearing was held on this motion covering seventy pages of the transcript. The evidence reflects that for several years prior to November, 1953 no Negroes had been selected on the trial jury by the Jury Commissioners, with the exception of the June 1951 term, when four Negroes were selected. There are two terms of the Miller Circuit Court each year, being the terms of June and November. The record as to Ne groes selected by the Jury Commissioners for trial jury service from November 1953 to date of this trial is as follows:
Number of Negroes
Selected
November, 1953 3
June, 1954 1
November, 1954 2
June, 1955 5
November, 1955 3
June, 1956 9
November, 1956 none
June, 1957 10
Tbe defendant was tried at the June, 1957 term of the Court, at which ten Negroes had been selected for trial jury service. The record does not disclose the number of Negroes in Miller County who are qualified for jury service, and census figures of the total number of Negroes in the County would not indicate how many were qualified for jury service.
The issue here is whether, as regards the calling of Negroes for jury service in Miller County, Arkansas, there has been either a systematic exclusion or a studied evasion. We went into this issue in considerable detail in Washington v. State, 213 Ark. 218, 210 S. W. 2d 307; and we there said, as regards the claim of systematic exclusion in Jefferson County:
“. . . in the case at bar the record reflects that Negroes were selected for jury service at a special term of the Jefferson Circuit Court in March, 1947, and again at the regular term of the court in October, 1947, from which last-mentioned term comes this appeal. Thus, at the two most recent terms, including the one in which appellant’s trial occurred, Negroes were selected for jury service. So, any alleged systematic exclusion of previous years certainly had been abandoned at the time of the trial of this case — and this abandonment was no donbt in keeping with the holding of the U. S. Supreme Court in Hill v. Texas, 316 U. S. 400, 86 L. Ed. 1559, 62 S. Ct. 1159. That case referred to grand juries, but — a fortiori — is also germane to petit juries. So, we hold that the evidence here sufficiently repels any inference of present systematic exclusion, since Negroes are now called for jury service.”
In the case at bar, Negroes have been called for jury service in Miller County, Arkansas since 1953; so certainly no systematic exclusion has been shown.
As regards appellant’s claim of studied evasion, we likewise conclude that the proof offered fails to substantiate such claims. In Washington v. State, supra, we said on the claim of studied evasions:
“The fact that the jury commissioners selected Negroes for the panel satisfies the burden placed on the State under the holding in Patton v. Mississippi, supra: and the burden then devolved on the appellant to show that the jury commissioners practiced ‘evasion’. There is no such proof in the record.”
Here, the record reflects that the Trial Judge positively instructed the Jury Commissioners to have Negroes on the trial jury list that was to be called to try this case. On June 19, 1957 when there was a preliminary hearing on the motion to quash the jury panel, the record reflects:
“. . . said motion is held in abeyance after announcement by the Court of intention to have additional jurors selected. Whereupon the State of Arkansas elects to put James M. Moore to trial first, to which there are no objections, and this cause is continued until July 10th, 1957 to afford the Court opportunity to select additional Jurors.”
Then, at the hearing on the motion to quash the panel, the Trial Court stated:
“As a matter of fact, the Court instructed the Clerk in preparing that list, to put all the Negro jurors at the top of the list in order that there might be full opportunity, if found qualified and if not challenged either by peremptory challenge or cause, for them to serve.”
And again the Court stated:
“. . . the Court explained to' the Commissioners that the absence of Negroes on the panel was significant to the Court, particularly in view of the fact that we were to try the Hamm case, and I instructed them to take special precaution and to make special effort to place a substantial number of Negroes on the additional special list, reminding them that those special jurors, of course, would have to meet the same qualifications as the Court had previously laid down for the selection of jurors.”
Thus, the Trial Judge took every precaution to see that there were Negroes on the trial jury list in this case; and the record — instead of showing studied evasion — shows a deliberate attempt by the Trial Court in this case to fully comply with the rulings of the United States Supreme Court, which condemn racial exclusion. We, therefore, find no merit in this claim of studied evasion.
IY. The Confession. Appellant says: “The Court erred in admitting the confession of the appellant, and the confessions of three other co-defendants charged with the commission of the crime of which appellant was convicted.” Eeally, there are three points argued under this one topic; and we shall discuss each.
First, we consider the question of whether there was sufficient evidence to submit to the jury the question as to whether the confession was voluntary. The burden is on the State to prove that the confession was voluntary. Love v. State, 22 Ark. 336; Smith v. State, 74 Ark. 397, 85 S. W. 1123; and Cush v. State, 180 Ark. 448, 21 S. W. 2d 616. And in determining whether a confession is voluntary the Court should look to the whole situation and surroundings of the accused. Dewein v. State, 114 Ark. 472, 170 S. W. 582; Brown v. State, 198 Ark. 920, 132 S. W. 2d 15.
When the State sought to introduce the appellant’s confession the hearing was recessed to the Judge’s chambers for the Trial Judge to see if there was sufficient evidence of voluntariness to submit the issue to the jury. Such is in accordance with our frequently stated procedure. Charles v. State, 198 Ark. 1154, 133 S. W. 2d 26; Brown v. State, 198 Ark. 920, 132 S. W. 2d 15; Hendrix v. State, 200 Ark. 103, 167 S. W. 2d 503. The Trial Judge correctly ruled that there was sufficient evidence offered to take the case to the jury on the voluntariness of the confession; and thereupon the hearing was resumed before the jury.
It was shown that the defendant, James Moore, and the three others thought to be implicated in the murder of M. R. Hamm, were taken into custody about 4:30 or 5:00 P. M. the afternoon of May 15th at a store near Texarkana; that the Prosecuting Attorney’s office was at Arkadelphia, a distance of about eighty miles from Texarkana; that Moore and the other three accused persons were advised that they would he taken to Arkadelphia to the Prosecuting Attorney and then to the State penitentiary at Cummings Farm; that the only stop made from Texarkana to Arkadelphia was at Hope (thirty-three miles from Texarkana) for the purpose of placing a telephone call to the Prosecuting Attorney’s office; that in going from Texarkana to Arkadelphia the four prisoners were on the back seat of the car and three officers were on the front seat of the car; that the prisoners slept a considerable portion of the trip from Texarkana to Arkadelphia; that they reached the Prosecuting Attorney’s office in Arkadelphia about 8:00 P. M.; that in the Prosecuting Attorney’s office the prisoners were served with food; that the prisoners were questioned separately and sometimes together; that Moore was advised that he did not have to make any statement; that Moore’s statement was made freely and voluntarily; that the statement was signed by him; that the other prisoners likewise made and signed their statements; and that all of the prisoners were then taken to the State Penitentiary at Cummings Farm for safekeeping.
The Court Reporter who took down the statements, testified that Moore gave direct answers to the questions asked, and that the statement he signed was in his own words. The defendant testified that he was scared and, therefore, the confession was not voluntary. But he admitted that he was never threatened or struck or beaten; also he admitted that there were no harsh words used by the Prosecuting- Attorney. So, under the evidence as stated, and other in the record, we conclude that it was a question of fact for the jury as to whether the confession was voluntary.
The second objection argued under this topic relates to the statements that the other prisoners made regarding Moore’s participation in the homicide of Mr. Hamm. There was testimony that all four of the prisoners participated in the robbery and murder of Mr. Hamm. It was shown that the statements made by the other prisoners were made in Moore’s presence and not denied by him in any way. In fact, he tacitly admitted the statements to be true. This evidence of the statements by the other prisoners in Moore’s presence tending to implicate him in the crime was admissible testimony under our holding in Martin v. State, 177 Ark. 379, 6 S. W. 2d 293, wherein we said: “. . . it is a general rule that the statements of one accomplice made in the presence and hearing of another, which are not contradicted by him, are admissible in evidence against him as an admission on his part for his failure to contradict them. Polk v. State, 45 Ark. 165; Ford v. State, 34 Ark. 654.”
In 20 Am. Jur. 428, “Evidence”, § 493, the general rule is stated:
“The rule precluding- the use of the confessions of co-conspirators and codefendants as evidence against those not making- the confessions is limited to confessions made in the absence of such other defendants. A confession of a co-conspirator or codefendant made in the presence of the accused and assented to by him, impliedly or tacitly by his silence or conduct, is admissible against Mm, upon the same principles which permit the introduction of evidence that the defendant stood silent when accused of crime, but it must appear that he did assent to the confession.”
We, therefore, conclude that there was no error in the Court’s ruling on the point here involved.
The third and final point in regard to the confession of Moore is that his statement was obtained without taking him before a magistrate, as provided in § 43-601 Ark. Stats. It is conceded by the State that after Moore was taken in custody on the afternoon of May 15th he was immediately taken to the Prosecuting Attorney’s office in Arkadelphia and the signed confession obtained from him, and that it was not until May 21st that Moore was returned from the penitentiary and appeared in Court in Texarkana. Because of the above mentioned statute and the stated facts, appellant insists that the confession was not admissible.
In the case of State v. Browning, 206 Ark. 791, 178 S. W. 2d 77, we held that the statute (A 43-601 Ark. Stats.) was directory only and not mandatory. We there quoted from Wharton on Criminal Evidence, 11th Ed. Vol. 2, p. 1023, § 610: “The mere fact that a confession is made while the maker is in the custody of a police officer, or even while confined under arrest, is not sufficient of itself to affect its admissibility, providing that it is otherwise voluntarily made. This rule pertains equally whether the arrest is legal or illegal.” Then, in the Browning case, the holding of this Court was summarized in the following language:
“The fact that the confession was obtained while the accused was being held without a warrant, and before he had been carried before a committing magistrate, does not of itself make the confession inadmissible, but is a circumstance, along with all the other facts and circumstances under which the confession was made, to be taken into consideration by the jury in determining its voluntariness. ’ ’
We, therefore, find that there is no merit in this third point urged by appellant in regard to the confession.
V. Other Objections Or Assignments. It would unduly prolong this opinion to discuss in extenso every objection or assignment in the record; but we have given careful consideration to each, and find none to possess merit. The declarations and admissions made by Moore show his connection with the crime charged. Wooten v. State, 220 Ark. 750, 249 S. W. 2d 964. The fact that the deceased’s billfold was found at the place where Moore had the officers stop to look for it tends to connect Moore with the crime and to substantiate the confession. Shufflin v. State, 122 Ark. 606, 184 S. W. 454. The evidence was amply sufficient to support the verdict; and there was no error in any of the challenged instructions.
Affirmed.
Some of the matters discussed in this opinion have been considered in several recent opinions of the United States Supreme Court, which we have carefully studied, to-wit: Payne v. Arkansas (opinion of 5/19/58), 356 U. S. 560, 2 L. Ed. 2d 975, 78 S. Ct. 844; Thomas v. Arizona (opinion of 5/19/58), 356 U. S. 390, 2 L. Ed. 2d 863, 78 S. Ct. 885; Hoag v. New Jersey (opinion of 5/19/58), 356 U. S. 464, 2 L. Ed. 2d 913, 78 S. Ct. 829; and Eubanks v. Louisiana (opinion of 5/26/58), 356 U. S. 584, 2 L. Ed. 2d 991, 78 S. Ct. 970.
See also Smith v. State, 218 Ark. 725, 238 S. W. 2d 649.
The defendant’s attorney testified in part on this point: “My name is W. Harold Flowers, an attorney representing James M. Moore, charged with First Degree Murder in the Miller Circuit Court. I have not discussed with Mr. Gill but upon one occasion in or about the chambers of the Presiding Judge the granting of permission to film and televise the proceedings in the trial of James M. Moore. In that discussion which was held during the month of June, on the Friday referred to, we talked for a few minutes and Í gave more or less tentative consent to the plan to televise the proceedings; that Mr. Gill told me at that time that we would have the privilege of editing the telecast, and that they only wanted to televise the summation or the arguments to the jury.
Canon No. 35 of the Code of Judicial Ethics, adopted by the American Bar Association and by the Arkansas Bar Association (see 10 Ark. Law Review p. 295), provides: “Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the court room, during sessions of the court or recesses between sessions, and the broadcasting or televising of court proceedings are calculated to detract from the essential dignity of the proceedings, distract, the witness in giving his testimony, degrade the court, and create misconceptions with respect thereto in the mind of the public and should not be permitted. Providing that this restriction shall not apply to the broadcasting or televising, under the supervision of the court, of such portions of naturalization proceedings (other than the interrogation of applicants) as are designed and carried out exclusively as a ceremony for the purpose of publicly demonstrating in an impressive manner the essential dignity and the serious nature of naturalization.” We find no change in that Canon. In 11 Ark. Law Review, p. 174 there is a case note about photographing court proceedings, which article contains a review of many of the eases. Also there is a discussion about Canon No. 35 in the American Bar Association Journal for May 1957, Vol. 43, p. 419.
See annotation in 39 A.L.R. 2d 1342 on continuance because of hostile sentiment.
There is an annotation in 1 A.L.R. 2d 1291 entitled: “Proof as to exclusion of or discrimination against eligible class or race in respect to jury in criminal case.”
In Washington v. State, 213 Ark. 218, 210 S. W. 2d 307, it was shown that there were 35,980 Negroes in Jefferson County, Arkansas, and that only 3,000 of these were qualified electors, which is one of the requirements for being a qualified juror. So total census figures shed no light on the qualifications for jury service under our statute.
There are annotations in 85 A.L.R. 870 and 170 A.L.R. 567 on the voluntariness of confessions. Many Arkansas eases are there listed.
This Section reads: “Where an arrest is made without a warrant, whether by a peace officer or private person, the defendant shall be forthwith carried before the most convenient magistrate of the county in which the arrest is made, and the grounds on which the arrest was made shall be stated to the magistrate, and, if the offense for which the arrest was made is charged to have been committed in a different county from that in which the arrest was made, and the magistrate believes, from the statements made to him on oath, that there are sufficient grounds for an examination, he shall by his written order, commit the defendant to a peace officer, to be conveyed by him before a magistrate of the county in which the offense is charged to have been committed; or, if the offense is a misdemeanor only, the defendant may give bail before the magistrate for appearing before a court or magistrate having jurisdiction to try the offense, on a day to be fixed by the magistrate and named in the bail-bond.”
See annotation in 19 A.L.R. 2d 1331; and annotation in 93 L. Ed. U. S. 115.
Included in the record are the summation arguments of counsel to the jury; and we have also read these arguments. | [
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J. Seaborn Holt, Associate Justice.
Appellee, Bose Ellen Bostic, secured a divorce from appellant, John Elmo Bostic, August 13, 1954. She was also awarded the care and custody of their two minor children, John Scott Bostic 9 years of age and Danny Gene Bostic, 6. The decree also contained this recital: “The defendant shall pay through the office of the Master in Chancery the sum of $40.00 on the 15th day of August, 1954, and the sum of $40.00 on the 1st day of September, 1954, and a like amount on the first and fifteenth days of each and every month thereafter until such further order of this court, said sums to be for the support of the children herein and alimony for the plaintiff.”
Both parties have remarried since the divorce decree. On March 8, 1957, appellant sought to have the decree modified by reducing the alimony and child support allowance to $40 per month, alleging “changes in circumstances of both parties” such as would warrant modification. Trial resulted in the denial of appellant’s petition and the decree directed that “The defendant, John Elmo Bostic, shall henceforth pay to the plaintiff for the nse and benefit of the minor children the sum of $80.00 per month. Said sums shall be for the support of the minor children of these parties.” This $80 per month was to be paid $40 on the first and $40 on the fifteenth of each month. It appears that appellant has not failed to make these payments in accordance with the court’s order. From that decree is this appeal.
For reversal appellant contends that the trial court erred in refusing to reduce the child support payments because of: “ The remarriage of appellee and her improved financial circumstances; and the decreased earnings of appellant, his worsened financial circumstances, and his remarriage.”
We find no error in the decree of the trial court. Our rule is well settled that it is both the legal and moral duty of the father to support his minor children in accordance with his means and ability during their minority, and this obligation is required of him even without a court order. See Kuespert v. Roland, 222 Ark. 153, 257 S. W. 2d 562.
The evidence discloses that appellee lives with her new husband within the city limits of Arkadelphia. They own a small garden plot of 30 feet x 70 feet and 96 acres of pasture land and rent about 400 acres of farm land. They own no passenger car but do own a Chevrolet truck (1949 or ’50 model). The record appears to be silent as to the income of appellee or her husband. Generally the remarriage of both husband and wife (as here) to third persons is not within itself regarded as a sufficient change in circumstances as would require a modification of the allowance for child support and maintenance. “The fact that a divorced husband has remarried or was contemplating remarriage is not alone ground for reducing the amount of the allowance, although it is a circumstance that may be considered in weighing the equities of the situation, and the same rule applies to the remarriage of the wife, at least in the absence of an assumption by the second husband of any obligation to support the children of the first marriage; nor is the remarriage of both husband and wife to third persons, in itself, regarded as such a change of circumstances as requires a modification of the allowance,” 27 C. J. S. Divorce, Sec. 322, p. 1245. It appears undisputed that appellant was earning more money after his remarriage, and at the time of the decree in the present case, than he was at the time the divorce decree was granted. For a number of years appellant has been employed by the Rock Island Railroad, and is now so employed. His take home pay is approximately $260 per month. At the time Mrs. Bostic divorced him he was receiving approximately $240 per month, so that at the present time he is earning about $20 more per month, than at the time the divorce decree was granted. He and his present wife operate a rooming house, from which they net about $15 per month, after paying rent of $75 per month. Appellant, in August 1956 following his remarriage, purchased a new 1956 “Ford Fairlane” and obligated himself for installment payments of $72.68 per month on the Ford. Appellant has no children by his present wife. It, thus, appears that appellant’s financial condition is better now than it was at the time of the divorce decree. Of significance is the fact that appellant’s obligation in the purchase of a new car with payments of $72.68 per month is just $7.32 less than his obligation, under the court’s decree, of $80 per month for the support of his children. As indicated, his first obligation was to these children.
Upon consideration of all the evidence presented we hold that the chancellor’s findings, that there were no changed conditions such as would warrant a reduction in the child support payments, are in accordance with the preponderance of the testimony. See Wilson v. Wilson, 186 Ark. 415, 53 S. W. 2d 990. Affirmed. | [
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J. Seaborn Holt, Associate Justice.
This appeal involves our Workmen’s Compensation Law (Secs. 81-1361 — 1349 Ark. Stats. 1947). Claimant’s claim for an award of compensation benefits for injuries from silicosis received while in the employ of appellee and while in the course of his employment, was denied by the full commission and on appeal, was also denied by the circuit court of Johnson County. This appeal followed.
It appears that counsel, in effect, agreed that the sole question for determination here was whether Ban nals’ claim was filed within the statutory period required. The applicable law is set forth in Sec. 18 (a) (2) of the Workmen’s Compensation Law, Sec. 81-1318 Supplement Ark. Stats. 1947, as follows: “A claim for compensation for disability on account of injury which is either an occupational disease or occupational infection shall be barred unless filed with the commission within two years from the date of the last injurious exposure to the hazards of the disease or infection, except that in a claim for compensation for disability on account of silicosis or asbestosis, the claim must be filed with the commission within one year after the time of disablement therefrom, and such disablement must occur within three years from the date of the last injurious exposure to the hazards of silicosis or asbestosis.”
The trial court in its findings of facts said: “The Facts: The facts and evidence conclusively show claimant is totally and permanently disabled. No controversy as to this condition of claimant. The claim for compensation from the exhibits, show same to have been received by the commission on December 27, 1954. The claim on its face shows that employer was first notified on November 13, 1953 and that the accident (disability) occurred November 13, 1953.” Rannals testified, when questioned as to his first notice of trouble with lungs and breathing: “A. Well, that happened about the last two years that I worked at the mines. . . . Q. Why did you quit work? A. One reason, the mine was abandoned, and another reason, I wasn’t able to work . . . Q. When you say you have worked any at all since you quit in February of 1953? A. No, sir. Q. You knew you were through at that time? A. I knew I was through at that time. I didn’t even go back and report, or help them take the machinery out. Q. The doctor tried to get you to quit before that time and told you you had silicosis? A. Yes, sir. . . . Q. When you got the x-rays, you quit? A. Yes, sir. Q. Then what date did you quit? A. That was in 1953 — ■ February of 1953.” Dr. Cecil F. Boulden testified: “He (Rannals) noted increased dyspnea with exertion, fatigability and muscle aching, which eventually caused his volunteer retirement in February 1953,” and “His first knowledge of silicosis came during a hospital admission at Clarksville in October 1954.” Dr. Harley C. Darnall stated “He had been unable to work since February 1953, because of this shortness of breath . . .” His diagnosis, Silicosis Grade III. Dr. George L. Hard-graves testified: “I have treated Arch A. Rannals of Clarksville, Arkansas, since 1946 for silicosis and bronchietasis, growing worse each year and now cannot work. Advised him to quit long before he did quit. ’ ’
We hold that the above testimony alone was substantial and sufficient to support the findings of the commission and the judgment of the circuit court. As we read Rannals’ testimony, he, in effect, admits he quit work in February 1953 because he was unable to continue, or even to go on the dismantling job on February 13, 1953. He did not work thereafter, and became permanently disabled.
The trial court correctly held that: “Under our statute where a claim is filed for compensation for disability on account of silicosis, claim must be filed within one year after the time of disablement therefrom. It is therefore, not the disease of silicosis, for however long a period it might have existed, but the actual disablement which determines the period of limitation, or the date of the commencement of the running of the statute. . . . it is the finding of this court, that the disablement of claimant, Rannals, occurred on February 13, 1953. That the claim for compensation not having been filed within one year thereafter, same is barred by the statute of limitations, and that the finding to such effect by the commission should be affirmed. That the statement of claimant, together with other competent testimony, sustain such findings.”
In the case of Donaldson v. Calvert-McBride Printing Co., 217 Ark. 625, 232 S. W. 2d 651, we said: “The rule in most jurisdictions is that the period within which a proceeding for the recovery of compensation may be instituted, or within which an application or claim may be filed, commences to run when the injury accrues, or when the disabling consequences of the accident or injury become apparent or discoverable, rather than at or from the time of the happening of the accident from which the injury results; . . .” and in the more recent case of T. J. Moss Tie & Timber Co. v. Martin, 220 Ark. 265, 247 S. W. 2d 198, in which we, in effect, reaffirmed what we said in the Donaldson case above, we used this language: “. . . the time of injury from which the statute commences to run means the time when the disabling consequences of the accident or injury become apparent or discoverable, rather than the time of the happening of the accident from which the injury results. In short, we held that the time of injury meant the time when the injury becomes compensable. ’ ’
It is elementary that the circuit court on appeal from the commission, as well as this court on appeal from the circuit court, must give to the findings of fact by the commission the same verity that would attach to a jury’s verdict, or to the findings of the circuit court sitting as a jury. In other words, if we find any substantial evidence to support the findings of the commission and the judgment of the circuit court, we must affirm, Lundell v. Walker, 204 Ark. 871, 165 S. W. 2d 600; J. L. Williams & Sons, Inc. v. Smith, 205 Ark. 604, 170 S. W. 2d 82; Hughes v. Tapley, 206 Ark. 739, 177 S. W. 2d 429; Johnson v. Little Rock Furniture Mfg. Co., 206 Ark. 1016, 178 S. W. 2d 249; Kloss v. Ford, Bacon & Davis, 207 Ark. 115, 179 S. W. 2d 172; Fordyce Lbr. Co. v. Shelton, 206 Ark. 1134, 179 S. W. 2d 464; Barrentine v. Dierks Lbr. & Coal Co., 207 Ark. 527, 181 S. W. 2d 485; McKamie v. Kern-Trimble Drilling Co., 229 Ark. 86, 313 S. W. 2d 378; Carty v. Ward Furn. Mfg. Co., 229 Ark. 725, 318 S. W. 2d 148.
Accordingly, we affirm.
Justice Johnson not participating. | [
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MoCULLOCH, C. J.
Appellee instituted this action before a justice of the peace of Crawford County against appellants, as receivers of the St. Louis & San Francisco Railroad Company, to recover $100, the value of a horse, alleged to have been killed through negligence in the operation of a train. In the complaint the value of the horse is alleged in the sum of $100, and the prayer of the complaint is that appellee “may have and recover the sum of $100 damages, and a reasonable attorney’s fee.” The case was tried in the circuit court on appeal and the trial resulted in a verdict in appellee’s favor for the sum of $100.
(1) The question of recovery of attorney’s fee was not submitted to the jury, and that feature of the com plaint appears from the record to have been entirely ignored in the trial of the case. It is insisted here, apparently for the first time, that the justice of the peace had no jurisdiction, and that the circuit court acquired none on appeal, because the action was one to recover on account of damage to personal property, and that the amount in controversy exceeded the sum of $100. The question of jurisdiction raises itself at any stage of the proceedings, and it may be raised here, even though not insisted on in the trial below. The statute (Kirby’s Digest, § 6774, as amended by Acts of 1907, page 144) authorizes the recovery of attorney’s fees in actions against railway companies for killing or wounding stock only where there has been a failure on the part of the company to post notice of the injury in accordance with the terms. of the statute, or where, after the posting of notice, there has been a failure or refusal to pay within thirty days after demand. Kansas City Southern Ry. Co. v. Anderson, 104 Ark. 500; St. Louis Southwestern Ry. Co. v. Cone, 111 Ark. 309.
(2) The complaint contains no allegations concerning the posting of notice or refusal to pay after demand, and for that reason there is no statement of a cause of action for the recovery of attorney’s fee. The burden is always, on the complaining party to allege and prove his cause of action in that respect. Kansas City Southern & Memphis Rd. Co. v. Summers, 45 Ark. 295. Neither is there any specific sum demanded in the complaint for attorney’s fee. It is unnecessary to decide whether or not a demand in the complaint for a specific sum as attorney’s fee in addition to the sum of $100 claimed as actual damages would put the cause of action beyond the jurisdiction of a justice of the peace, but we hold that where there is neither an allegation of facts which would justify the recovery of attorney’s fee nor a statement of any amount sought to be recovered, the general prayer for recovery of attorney’s fee in addition to the amount of actual damages will not defeat the jurisdiction of the justice of the peace. The prayer of the complaint in that respect is purely surplusage and does not affect the jurisdiction of the court in which suit is brought.
(3) The only other question raised here is that concerning the legal sufficiency of the evidence. It is conceded that appellee’s horse was killed by a train operated by servants of appellants, but it is contended that the testimony adduced by appellants overcomes the presumption of negligence beyond controversy. The horse was killed during the night at a road crossing near the station of Rudy by a passenger train, which the proof shows was running at a speed of about forty miles per hour. No one saw the horse killed except the engineer and fireman, and, according to their testimony in the case, they were both keeping a lookout and the fireman saw the horse on the right-of-way coming in the direction of the track and gave warning to the engineer, who sounded the whistle and applied the brakes, but the engine was too near the horse at the time to avoid striking him. The attention of the engineer was called to the presence of the horse on or near the track as the train rounded a curve coming out of a deep cut a short distance south of the place.where the horse was struck. The engineer testified that the distance from the end of the cut to the crossing where the horse was struck was only about 100 feet, and that he did everything he could to avoid the injury after his attention was called to the horse being in danger. Appel-lee introduced testimony tending to show that it was about 800 feet from the end of the cut to the place where the horse was struck and that a person could see up the track that distance. It was also shown that the tracks of the horse were seen along between the rails for a distance of the length of two and one-half rails. It is thus seen that the testimony of the engineer was contradicted by that of other witnesses and the jury might have found that the horse was seen for a distance of 800 feet ahead of the engine running along the track, and that sufficient effort was not put forth by the trainmen to prevent the injury.
Judgment affirmed. | [
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SMITH, J.
Appellant sued to recover damages to compensate a personal injury sustained by him, and alleged substantially the following facts as constituting his cause of action. He was directed by his foreman to tear down a certain wire fence and replace it with a plank fence. For the purpose of drawing out the staples fastening the wire to the posts, he was furnished two hatchets, one of which he was directed to place against the point or edge of the staples and to drive the hatchet for a sufficient distance under the staple to force it from the post. That the hatchets were cheap and of poor construction and unfit for the use and purpose to which plaintiff was instructed and expected to put them, “in that the heads or parts of said hatchets that struck together were so tempered and hardened that they were liable to break off, splinter and sliver when struck against each other,” and that the defendant knew, or should have known, of the condition of the hatchets, whereas plaintiff did not know that the hatchets were unsafe and improper tools, as he was unaccustomed to do such work, and relied upon the defendant to furnish him safe and proper tools.
A demurrer was interposed and sustained, and this appeal has been prosecuted to reverse that action.
To sustain the action of the court below, attorneys for appellee invoke what they call, and what is commonly-called, the “simple tool” doctrine. This doctrine, as such, has never had recognition by this court; yet the principles upon which that doctrine is 'based have been recognized in a number of decisions of this court. That is, the simplicity of a tool, and the skill or lack of it required in its use, have been treated as questions to be considered in determining the degree of care to be used by the master in the selection of such tools for the purposes of his servant, and of the directions and instruction which should be given the servant in its use. Two recent cases discuss the principles upon which the simple tool doctrine is predicated. These are C., R. I. & P. Ry. Co. v. Smith, 107 Ark. 512, and Fordyce Lumber Co. v. Lynn, 108 Ark. 377. Both of these cases were exhaustively briefed, as appears from the. official report thereof.
In the first of these cases we said that there is no hard and fast rule that may be laid down as governing the liability of the employer for a defect in common tools and that we should not undertake to lay down any general rule determining what state of facts the rule of liability should embrace and what state of facts it should not embrace.. In that case the undisputed evidence showed that the hammer with which the servant was injured was an eight-pound sledge hammer, which had an imperfect striking face, and was in a defective condition when considered with reference to the uses for which it was intended, and we said that, under the evidence of that case, the jury was warranted in finding that the master was negligent in furnishing this tool to the servant who used it, the injured servant not having been permitted to make bis own selection of the tools to be nsed by himself alone.
In the case of Fordyce Lumber Co. v. Lynn, supra, the injury to the servant was occasioned by the breaking of a stick in the use of which the servant was employed at the time of his injury. In holding that there was no liability under the facts of that case, we quoted with approval from the case of Gulf G. & S. F. R. Co. v. Larkin, 82 S. W. (Tex.) 1026, the following statement of the law:
“It is not the duty of a railroad company to inspect every implement or tool that it furnishes to its employees, but that duty arises whenever the machinery or implement is of such character that a man of ordinary prudence would, under the same circumstances, inspect the machinery or implement as a precaution against injury to the servant. * * * A master is not required to inspect the common tools and appliances which are committed to the custody of a servant who has the capacity to understand their character and uses. * * * If this requirement were sustained, then every farmer or housekeeper who furnishes an ax to his servant with which to cut wood for use upon the premises, or for other purposes, must use that care which would here be required with regard to the lantern by an inspection to discover the condition of the ax before he purchased it, and, during the use of it by the servant, he must keep up a course of inspection in order to insure safety.”
And we also quoted with approval from the case of Longpre v. Big Blackfoot Milling Co., 99 Pac. (Mont.) 131, a statement of the law to the effect that it is not the duty of the master to inspect, much less test, every tool or appliance put in the hands of an employee, but that this duty arises only when the appliance is of such a character that a man of ordinary prudence would, under the same circumstances, make an inspection as a precaution against injury to his servant, and that the master was not required to inspect simple appliances, the character and use of which are understood by all alike.
(1-2) An innumerable number of cases define the duty of the master in furnishing the servant safe tools with which to work, and the duty of inspecting those tools, but there are circumstances under which the master owes the servant no such duty. He does not owe this duty where the tool furnished is one which requires no special skill or training for its safe use, and when the defect, if any, is as obvious to the servant as it is to the master, or when the defect arises from the use of the tool and the servant would naturally be the first person to discover the existence of the defect. The concurrence of these conditions give rise to what is called the ‘ ‘ simple tool” doctrine, which is another way of saying that the master must inspect and instruct when the circumstances of the employment are such that reasonable care and prudence would suggest that this be done; but that he owes no such duty when the necessity therefor is not reasonably apparent.
If the master is not to be held as an insurer of the servant’s safety against any injury sustained in the course of his employment, and if the principles of law upon which the doctrine sometimes called the “simple tool” doctrine is based are to be given effect, we think this a case in which they should be applied.
(3) We take the allegations of the complaint as true when they are considered on demurrer, but we do not extend them by implication to cover allegations not there contained. We have here the allegation that the hatchet was an improper tool and was cheap and defective “in that the heads or parts of said hatchets that struck together were so tempered and hardened that they were liable to break off, splinter and sliver when struck against each other.” Few tools could be simpler in their construction and use than a hatchet, and the defect which occasioned the injury was developed by its use by the servant himself; and we must, therefore, hold that the trial court properly sustained the demurrer to the complaint.
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HAET, J.,
(after stating the facts). The indictment in this case was returned under section 1990 of Kirby’s Digest. The section reads as follows: “It shall be unlawful for any officer of this State, or of any county, township, city or incorporated town in this State, or any deputy, clerk or other person employed by any such officer, having the custody or possession of any public funds, by virtue of his office or employment, to use any of such funds in any manner whatsoever for his own purpose or benefit, or to loan any of such funds to any person or corporation, whomsoever or whatsoever, or permit any person or corporation whomsoever or whatsoever to use any of such funds, or to pay or deliver any such funds to any person or corporation, knowing that he is not entitled to receive it, or for any such officer to wilfully fail or omit to pay over any such funds to his successor in office at the expiration of his term of , office; but collectors of taxes, county treasurers and treasurers of cities and incorporated towns may deposit the public funds in their custody in incorporated banks for safekeeping; and the said officers and the sureties on their official bonds, the bank and the stockholders of the bank shall be liable for all funds that such bank on demand shall fail to pay to the person entitled to receive the same.”
(1) It is contended by counsel for the defendant that the indictment is insufficient because it does not contain any averment that the misappropriation of the funds by the defendant was intentional or wilful. The indictment does charge, however, that the defendant “did then and there unlawfully, feloniously and fraudulently fail and omit to pay the amount as aforesaid to said county due by him, the said W. L. Parker, on settlement, and did then and there unlawfully, feloniously use said money and funds as aforesaid for his private purposes, and convert the same to his own use, ’ ’ etc. To charge that an act is feloniously done includes a charge that it is done wil-fully and with criminal intent.
(2) Counsel for the defendant also urges that since the Legislature of 1911 passed a special statute paying the officials of Polk County salaries and prescribing the method of their accounting and settlement with county, that section 1990 of Kirby’s Digest does not apply. The special act placing certain officials of Polk County on a salary may be found in the Special Acts of Arkansas for 1911, page 132. The act requires certain county officials of Polk County to keep a record of all moneys or other evidence of value received or earned by them as such officers under the laws of this State. It is also made the duty of such officers to make a report under oath quarterly to the’commissioners of accounts and a final report to the commissioners of accounts at the expiration of their terms of office.
In these reports he is required to set forth the total amount of money, etc., received by them. It is made the duty of the commissioners of accounts to review and pass upon these reports. The officers named in the act are required to pay the excess of public moneys in their hands immediately into the treasury of Polk County after such accounts are passed upon by the commissioners of accounts. This special act has an entirely different object to that sought to be accomplished by section 1990 of Kirby’s Digest, and it is readily apparent from reading the two acts that they in no wise conflict with each other.
(3) It is also contended that the oral charge to the jury copied in the statement of facts was tantamount to a directed verdict against the defendant and constitutes reversible error. In this contention we think counsel are correct. In the declaration of rights in the Constitution of 1874, article 2, section 10, it is provided among other things, that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.
Article 7, section 23, provides that judges shall not charge juries with regard to matters of fact, but shall declare the law. In Roberts v. State, 84 Ark. 564, the court held that it was error to direct the jury to return a verdict of guilty in a prosecution for a misdemeanor which is punishable by imprisonment. The court quoted from Bishop on Criminal Procedure (2d ed.), Vol. 2, p. 813, the following:
“The judge is incompetent to convict one of crime, even though he acknowledge it, except on a plea of guilty. The evidence is exclusively for the jury. However conclusive of guilt it may he, he can only tell them that, if they believe such and such to be the facts, the law demands a verdict of guilty; he can not otherwise direct such verdict.”
In the case of Shipp v. State, 128 Tenn. 499, in discussing the question the court said:
“Whatever may be the rule in relation to misdemeanors, the weight of authority is overwhelming to the effect that in a prosecution for felony, where a plea of not guilty is interposed, it is not permissible for the court to direct a verdict of guilty or to pass on any question of fact unfavorable to the defendant. This is true even though the incriminating evidence is uncontradicted or conclusive.”
In the case of State v. Koch, 34 Mont. 490, 8 A. & E. Ann. Cas. 804, the court said:
“Where the defendant in any criminal prosecution pleads not guilty, the trial court, no matter how conclusive the evidence may be, can not instruct the jury to return a verdict of guilty, as the defendant can not be deprived of his absolute constitutional right to have the question of his guilt or innocence determined by the jury without coercion by the court. ’ ’
In the case of Konda v. United States, 166 Fed. 91, 22 L. R. A. (N. S.) 304, the court held that the question of whether or not a pamphlet for the mailing of which one is on trial, is non-mailable, can not be determined by the court as a matter of law, although the evidence is un-contradicted, and the jury can not be directed to bring in a verdict to that effect, but the question must be left to the determination of the jury. The reason the court may direct a verdict in a civil case and in a misdemeanor case where punishment is by fine only is that the court has the power to set aside verdicts in such cases and the action of the court cuts off the possibility of useless verdicts by directing the jury the only verdict which the court would let stand. But in criminal cases, where part of the punishment is by imprisonment, if the jury returns a verdict for the defendant, the judge can not set it aside and order a new trial, even though it may think the evidence for the State is nncontradicted.
In the case of State v. Riley, 113 N. C. 648, 18 S. E., 168, the court held that, although the evidence for the State in a criminal case is uncontradicted, the court can only instruct the jury to return a verdict of guilty if they believe the State’s evidence. In U. S. v. Taylor, 12 Fed. 470, the court said:
“By his plea of not guilty the deefndant must be understood as denying the truth of the information or indictment and as not conceding the truth of what the witnesses for the government have sworn to. This is so, notwithstanding the fact that no witnesses for the defendant contradicted the statements of the witnesses for the prosecution. In this condition of the testimony it was the right of the jury to pass upon the credibility of the witnesses even if unimpeached as to character, and to consider whether, upon applying all the tests of manner, clear or confused statement, prejudice and accuracy of memory, they were to be believed. It was within the province of the jury to disbelieve the witnesses for the government.” See also Territory v. Kee (N. M.), 25 Pac. 924; State v. Wilson, 62 Kan. 621, 52 L. R. A. 679; State v. Godman, 145 N. C. 461, 123 A. S. R. 467; Huffman v. State, 29 Ala. 40; Thompson on Trials (2 ed.), Vol. 2, § 2149.
We have held that upon the trial of a person indicted for an offense consisting of different grades, and there is no evidence to warrant submission of one of the lower grades to the jury, the judge is not required to instruct on that grade. For instance, if the defendant is indicted for murder and there is no evidence upon which to predicate an instruction of manslaughter the court is not required to instruct the jury on manslaughter. We have held that this is not an invasion of the province of the jury as to question of fact; but that it is simply applying the law to the facts. It would be quite a different ques tion, however, for the court to tell the jnry that the facts on a certain decree of homicide were nndispnted.
In Harris v. State, 34 Ark. 469, an exception was saved to the action of the conrt in giving an instruction after the close of the argument. This conrt held that such action of the court was not error hut said: ‘ ‘ Judges may not now, as under the former practice in charging juries, sum up the evidence, and tell them what facts are proven and what are not, and leave them to find such facts only as the court may deem disputed or doubtful, but it is the province of the court to declare the law applicable to the case, and the court is not obliged to be silent after the close of the argument.” The oral charge was given by the court after the jury had failed to agree and had reported their disagreement to the court.
We are of the opinion that the oral charge in question in this case is neither more nor less than an instruction to convict. The court told the jury that the case was not open to dispute on any essential fact. This the court was not warranted in doing, and it in effect was an instruction to the jury to return a verdict for the State.
For this error the judgment must be reversed and the cause remanded for a new trial. | [
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George Rose Smith, J.
In 1952 Walker employed Kerr to manage Walker’s insurance agency at Forrest City for a term of five years. Under the contract Kerr was to receive a weekly salary and an annual bonus. At the end of the first year the parties disagreed about how the bonus should be computed. Kerr eventually filed this suit to recover $3,018.41 as his bonus, and Walker then notified Kerr that he was discharged. The chancellor awarded Kerr $242.66 as his bonus and $600.00 as termination pay that accrued upon his discharge without cause. Both parties have appealed.
The principal issue, that of computing the bonus, is presented by Kerr’s direct appeal. In the trial court an accountant was appointed as a master in chancery, to determine the profits of the business during the year in question, and there is very little dispute about the figures that enter into the calculation of the bonus. Instead, the problem concerns the method of calculation and hinges upon the correct interpretation of this paragraph in the contract of employment:
“First party [Walker] agrees to guarantee second party [Kerr] a weekly salary of Seventy ($70.00) Dollars per week and at the end of the first year, and each consecutive year thereafter during the term of this contract, first party further agrees to pay to second party a bonus based on Thirty (30%) per cent of the net income or profit of said Walker Insurance Agency, less the guaranteed salary as above set out. It is understood and agreed between first party and second party that the net income or profit of said Walker Insurance Agency shall mean the commissions earned through the sale of insurance, less actual operating expenses of the agency.” (We have italicized the pivotal clause.)
The question is, what is the guaranteed salary to he subtracted from? Walker contends, and the chancellor held, that the salary is to be applied as a credit against 30 per cent of the net profits (these profits being determined without a deduction of the guaranteed salary as an operating expense), so that the bonus represents the difference between the guaranteed salary and 30 per cent of the profits. Under this construction of the agreement Kerr ultimately receives either the fixed salary or 30 per cent of the profits, whichever is greater.
Kerr contends that the italicized clause in the contract means only that the salary is to be deducted from the net income, as an operating expense, before the bonus of 30 per cent is computed. Under this construction the bonus is in effect added to the salary, with the result that Kerr would receive altogether more than 68 per cent of the agency’s net income for the year in question. Alternatively, Kerr asks that the contract be reformed if its language should be found not to have the meaning that he attributes to it.
Kerr relies heavily upon the testimony of Jack P. West, the attorney whom the parties jointly employed to prepare the written contract. West, having originally obtained his information from Kerr alone, prepared a preliminary draft of the agreement. He then called the parties together and read the draft to them, explaining it paragraph by paragraph. He states that when he read the paragraph about Kerr’s compensation the parties said that they understood it and that it was what they wanted. Over Walker’s objection West testified that the salary was to be deducted from the net income, with the bonus being computed upon the remaining amount.
We do not regard West’s interpretation of the contract as competent evidence either to explain an ambigui ty or to afford a basis for reformation. It is true that prior negotiations between the parties are admissible to show that ambiguous language in the contract was intended to have any particular meaning that the words will reasonably bear, or, if that particular meaning cannot be assigned to the language, to show a -mutual mistake that requires a reformation. Best., Contracts, §§ 242 and 238 (c); Ben F. Levis, Inc. v. Collins, 215 Ark. 172, 219 S. W. 2d 762. But such testimony must -relate to an understanding that was common to both parties; it is not permissible to show the uncommunicated subjective interpretation that one party or the other placed upon the language of the agreement. Best., Contracts, § 230; Stoops v. Bank of Brinkley, 146 Ark. 127, 225 S. W. 593.
Although West testified that he explained the provisions of the contract, he does not say that he outlined the formula to be followed in the computation of the bonus. Both Kerr and Walker state that in their negotiations they did not discuss the mechanics of calculating the bonus. We do not see how the parties, without such a discussion, could have had a common understanding of the exact point now presented for decision. Since it does not appear that the attorney’s interpretation of the paragraph in controversy was made known to Walker, it follows that the attorney’s testimony represents nothing more than his construction of the agreement, which is inadmissible.
Disregarding West’s testimony, we are limited in our study to the bare language of the agreement. Persuasive arguments are made by both sides, but we are inclined to believe that the chancellor’s view is the more reasonable one. To begin with, it is pretty clear that the contract would have had the meaning that Kerr attributes to it if the italicized clause had been wholly omitted. Walker would then have undertaken to pay “a bonus based on Thirty (30%) per cent of the net income or profit” of the agency. In that case it could hardly be supposed that the fixed salary would not be deducted as an operating expense, for it would be next to absurd to give an employee a bonus upon Ms own salary. Thus the italicized clause adds nothing to the contract unless we give it the meaning that Walker contends for.
Secondly, it is somewhat unlikely that the proprietor of a going concern, to which he still expected to devote at least part of his time, would enter into an arrangement by which his manager was entitled to more than two thirds of the profits. Thirdly, had the italicized clause been intended to refer to ‘ ‘ the net income or profit” rather than to “a bonus,” the comma immediately preceding the clause should not have been inserted. As a matter of punctuation the use of the comma indicates that the clause refers back to the earlier noun. See Evans, A Dictionary of Contemporary American Usage, p. 94. No really useful purpose would be served by our discussing at length the many other arguments that are made in the briefs.
On cross appeal Walker contends that Kerr was not entitled to the termination pay of $600 which the contract provides for him if he is discharged without cause. It is said that an employee who sues his employer displays such an uncooperative attitude that the employer is entitled to end their relationship. Upon the facts before us this argument is not sound. The bonus was payable at the end of the first year. Kerr says that he made repeated efforts to discuss the bonus with his employer, but Walker was evasive and kept putting him off. After delays of two months and a half Kerr finally brought the matter to an issue by filing suit. To hold that his conduct worked a forfeiture of the termination pay would enable Walker to escape that liability by persistently refusing to recognize Kerr’s just request for a discussion of the bonus.
Walker also insists that the chancellor, in determining the net profits for the year, should have disallowed, as bad debts, eleven accounts receivable totaling $644.77. It appears, however, that Walker did not originally treat these accounts as uncollectible, for after the year in question he continued to extend credit to these eleven customers of the agency. All but three of them later made payments on their accounts, and for the ihost part these payments exceeded the old debit entries that are now asserted to be uncollectible. The accounts seem to be still carried on Walker’s books, and he has not attempted to collect any of them by legal action. The chancellor, upon evidence not designated for inclusion in the record, made a deduction of $778.22 for bad debts. We are not convinced that the weight of the evidence required him also to disallow the eleven additional accounts now in controversy.
Affirmed on direct and cross appeal. | [
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Paul Ward, Associate Justice.
A tractor-trailer truck belonging to Victor Metal Products Corporation and driven by Elbert Chambliss ran into a pick-up truck owned and driven by Harley Shirrell. Five or six hours later Shirrell felt “knocked out all over,” two or three hours later he suffered pains and was unable to move his legs, and 14 days later he died. A special administrator of Shirrell’s Estate sued, and recovered judgment against Chambliss and the said corporation for several items of damages including $20,000 for pain and suffering.
Appellants, Chambliss and the said corporation, have appealed on two grounds only. One. There is no substantial evidence to show a causal relation between the accident and Shirrell’s death. Two. The award of $20,000 for pain and suffering is excessive.
One. After a careful examination we have concluded there is substantial evidence to support the jury’s finding of a causal connection. To substantiate our conclusion it is necessary to set forth at some length the pertinent facts and circumstances as disclosed by the record.
On January 3, 1957, Harley Shirrell of Myrtle, Missouri, 58 years of age and. in apparent good health, was driving his pickup truck south on Highway 67 below Pocahontas, Arkansas, between 5:30 and 6:00 a.m. at a time when it was dark, when his truck was struck from behind on the left rear corner by a tractor-trailer unit owned by Victor Metal Products Corporation and driven by Elbert Chambliss. The immediate result of the impact was; frame was bent, the bumper and back of the cab of the pick-up truck were damaged and the front end of the tractor-trailer truck skidded against the bank of a ditch on the right side of the road. Shirrell told a State Trooper, who arrived at the scene of the accident soon after it happened, that he was not hurt. Shirrell then walked up the road about a mile to make a telephone call. About four hours later (around 10 a.m.) he arrived home and told his wife he didn’t think he was hurt, but she said she thought he appeared nervous. Shirrell then went with a neighbor to Alton, Missouri concerning the papers on his truck. He returned from this trip, ate lunch, and at 1 p.m. went to the store across the road which he and his wife operated. At that time he said “there is a funny feeling in my legs,” and also said “Oh my back.” Thereupon a neighbor, Mr. Hyde arranged to take him to Dr. William Carhart at Alton. Shirrell could not walk to the car but, as Mrs. Shirrell put it, they had to push his feet along or just scoot him along. The Doctor found him incoherent and partially paralyzed from the navel down, and gave him medication including aspirin. Shirrell was returned home and the next morning was put in a car for transportation to a hospital in Jonesboro. However when they arrived at Pocahontas he was unable to proceed on the journey. Dr. Carhart was contacted by phone and he advised they bring him to his office. This was done, and then he was taken back home where he was treated and died on January 17, 1957.
The testimony of Dr. Carhart was, in substance, as follows: On January 3, I saw Mr. Shirrell after he had been in an accident — he was unable to move his legs, complained of severe pains in his legs and told me he had been involved in an accident. His temperature was 98 degrees which is helow normal. I X-rayed his skull, chest, abdomen, back and lower extremities. His particular complaint was inability to move and had no feeling from his waist down — his reflexes were normal but he did not react to electric stimuli, he did not notice an electric shock — he didn’t feel it at all from his navel down, above the navel he did feel it — no reaction from the navel down, front, back or side. We used a sharp needle to penetrate the skin but there was no reaction to it below the navel but reaction above the navel. A urinalysis showed there was a little blood. Q. “Did you reach any conclusion in your examination of Mr. Shirrell?” A. “Yes, I did. I suspected traumatic psychoneurosis shock.” Shirrell was mentally incoherent at moments when I first saw him • — ■ he kept speaking of the accident — at times he knew he was in my office and at times I don’t think he did know exactly where he was. An examination of his heart and blood pressure showed blood pressure 145/81, pulse good, steady at 62 per minute, respiration good — blood pressure considered normal for a man of his age. My recommendations as to treatment were: Diet, medication, rest, rehabilitation, passive exercise of the body and extremities. The diet was to be liquids or fluids. In the way of medication, I used Thorazine, which is a tranquilizer, and I used aspirin. I recommended taking Mr. Shirrell to a hospital the next morning. The next day they started to take him to Jonesboro but when they got to Pocahontas Mr. Shirrell couldn’t proceed any further and they stopped there and called me. I told her to keep him there. Mrs. Shirrell called me again in the evening and I told her to bring him up and he came back to my clinic the next morning. I saw Mr. Shirrell again on the 5th when he was brought in an ambulance to my clinic — I found his condition was progressively worse — he had the same trouble except it was worse and he complained of severe pain in his chest and skull at that time, it was more pronounced. He was incoherent and I called a specialist in Springfield. I repeated my examination of him and I concluded that he had the same difficulties only he was worse. I advised Mrs. Shirrell that he should be moved to a hospital but she wanted him returned home — in my opinion there was nothing that could have been done at a hospital that couldn’t have been done for him at home. I saw him at his home the next day on the 6th but I was in 24 hour contact with the Shirrell family. On the 6th there' was no improvement — the same things were wrong with him and he was incoherent ■ — ■ he thought he was a little boy and he kept recalling facts that even the Shirrell family had forgotten. The next time on the 8th I found his condition the same — I didn’t make any recommendations except to continue the treatment as prescribed. On the 8th Shirrell was complaining of severe pain in the chest and skull —- the next time I saw him was on the 12th and his condition was unchanged, he was definitely incoherent and the case was marked critical and the family was so advised. He was in pain at the time because there was severe moaning and he would hold his head and skull, and the moaning was continuous. Next time was on the 14th and found no change — next time on the 16th and the patient was in a coma. On the 14th he was making sort of a crying noise and moaning, he died on the 17th. Shirrell was unable to control bladder and bowels during his sickness.
On cross-examination the doctor stated: “A person sick independent of wounds would demonstrate pathology if they were diseased. If a pérson had pneumonia they would demonstrate pathology to the lungs. Shirrell did not have pneumonia — I never changed my diagnosis — it was acute traumatic psychoneurosis shock. In explaining the doctor’s statements he said: “Traumatic is caused or relating to an injury. Psychoneurosis is a functional condition, disorder of mental origin without benefit of clinical demonstration of a lesion, fracture or wound. You can’t find a full definition of traumatic psychoneurosis shock in the dictionary. Trauma indicates some sort of a blow or an injury. Q. “Didn’t this man have a mental condition?” A. “There was a possibility he could have. ’ ’ Q. “Why did you classify it as psyehoneurosis1?” A. “Because he lost the value of reality.” He was a psyehoneurosis patient — there is such a thing as traumatic psyehoneurosis — traumatic psyehoneurosis would be an injury to the system, and we couldn’t demonstrate any lesion, wound or pathology. To link traumatic psyehoneurosis together the trauma would, come from the accident, possibly unknown to Mr. Shirrell. The truck hitting him from behind would possibly cause a mild whiplash injury to his system, which he at the moment ignored. Whiplash injury is a blow and would be most generally without the knowledge of the victim, a blow from the back. I suspicioned at the time Mr. Shirrell came to see me a whiplash injury but when I couldn’t elicit any dislocation from the X-rays, 1 ruled that out. Mr. Shirrell walked away from the accident and complained only later; then I was suspicious. There is a possibility that paralysis of the legs could have been caused by a mental condition, paralysis of the legs is an organic symptom.
On redirect the doctor stated: “I considered an injury to the vertebral column but not finding any external proof lacerations or marks we ruled that out. After hearing the testimony of Dr. Bean I have not changed my mind of the diagnosis of the trouble of this man. For a man of normal health as Mr. Shirrell was, 1 would attribute his condition to an accident.”
The Dr. Bean mentioned above was called to testify for appellants. He is an Osteopathic Physician, well qualified. After all the facts and circumstances of this case were fairly placed before him in a lengthy hypothetical question, he was asked if there was any direct causal connection between the traffic accident and Shirrell ’s condition and death. His answer was: “My opinion is that it could have no bearing whatsoever since the lapse of time was 6 hours or a little bit better.”
Assuming, though it is not made clear, Dr. Bean meant to say that in his opinion there was no connection between the accident and Shirrell’s condition and death, it still leaves open a question for the jury. Dr. Car- hart attributed Shirrell’s condition to the accident, and Dr. Bean did not. The jury had the right not only to believe the one and disbelieve the other but to consider which doctor’s testimony more nearly conformed to all the facts and circumstances of the case. Both doctors agree that Shirrell’s symptoms and condition indicated some kind of an injury to or malfunction of the spinal cord. The jury could have believed this spinal cord condition was the result of the severe blow or whiplash especially in view of the absence of any other explanation. We recognize that appellee bore the burden of showing a causal connection, as stated in Jonesboro Coca Cola Bottling Co. v. Young, 198 Ark. 1032, 132 S. W. 2d 382 and other decisions of this court, but this again, involved a question of evidence and the weight to be given it by the jury.
Appellants cite Missouri Pacific Railroad Co. v. Hampton, 195 Ark. 335, 112 S. W. 2d 428 for the rule that where the evidence is uncertain, and two or more things might have brought about the injury, there can be no recovery. This is merely another way of saying, as this court has said many times, that a jury’s verdict must be based on evidence and not on speculation, and it does not, we think, preclude a recovery here. Here there are, as heretofore pointed out, many facts and circumstances together with the positive statement of Dr. Carhart pointing to the conclusion reached by the jury. On the other hand there is no evidence that any thing else might have caused the injury to Shirrell’s spinal cord.
Two. We cannot say there is no substantial evidence to support the jury’s verdict for pain and suffering in the amount of $20,000. The testimony relating to this feature of the case has already been set forth and it would serve no useful purpose to repeat it. There is, as we have said on many occasions previously, no definite or satisfactory rule to measure compensation for pain and suffering. Where there is substantial evidence to support the jury’s verdict, as we believe there is here, and there is nothing in the case to indicate passion, prej notice, or an incorrect application of the law, as in the case here, this court will not disturb the award of the jury. See: Coca Cola Bottling Co. v. Cordell, 189 Ark. 1132, 76 S. W. 2d 307, Arkansas Motor Coaches v. Williams, 196 Ark. 48, 116 S. W. 2d 585, and Rudolph v. Mundy, 226 Ark. 95, 288 S. W. 2d 602.
It follows from what we have said that the judgment of the trial court must be affirmed.
Cross-Appeal. The jury found that 25 per cent of the total negligence was attributable to Shirrell, from which finding appellee has cross-appealed. We are unable to say the jury was wrong as a matter of law. We find in the record substantial evidence to support the jury’s verdict. The evidence discloses that it was dark when the pick-up truck was hit from behind by the tractor-trailer truck driven by Chambliss. Chambliss testified that if Shirrell had a tail light on his pick-up it was not burning or he could not see it. He also stated that he told Shirrell this and that Shirrell stated it (the tail light) had been in the habit of going out. None of the testimony is denied or refuted, and is, we think, substantial evidence of negligence.
Affirmed on direct appeal and on cross appeal.
McFaddin, J., not participating. | [
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ohn B. Robbins, Judge.
Appellant Roger Israel appeals the j entry of default judgment against him in a negligence action filed by appellees Christopher and Lisa Oskey in Washington County Circuit Court. In the complaint filed on April 7, 2004, Christopher alleged that he suffered personal injuries after he fell from a ladder while performing construction work on appellant’s personal residence. A process server provided the summons and complaint to appellant at his residence on April 19, 2004. Though the circumstances of delivery were in dispute, both the process server and appellant agreed that hand-delivery of documents took place that day. The process server testified that she went to the door, appellant answered and affirmed his identity to her, she informed him that she was serving him with a summons and complaint, he said, “okay,” and he shut the door. Appellant recalled the process server driving to his residence, he saw her car and ran to it, and he accepted what he thought was mail from her through the window of her car. Appellant did not know what happened to the documents after he accepted them, though he thought he put them in his back pocket, that he never looked at them, and that they were somehow lost. The process server filed proof of service with the circuit court on the following day, April 20, 2004, by filling in the return form on the summons that was for use when service was made by the sheriff or sheriff s deputy. The process server did not complete an affidavit of service.
After the time for filing an answer elapsed, appellees filed a motion for a default judgment on May 25, 2004. Appellant filed an answer on August 18, 2004. On August 20, 2004, appellant moved to enlarge the time within which to answer, responded to the motion for default, and moved to dismiss appellees’ complaint. Appellees responded by filing a motion to strike appellant’s answer on September 20, 2004. Appellant followed this with a motion to strike appellees’ motion to strike his answer on October 1, 2004. The hearing on the respective requests was conducted on October 1, 2004. The trial court entered the order on appeal on November 4, 2004.
The order granted appellees’ motions for a default judgment and to strike appellant’s answer. In this same order, the trial court denied appellant’s motion to dismiss the complaint and appellant’s motion to strike the request to strike his answer. The order did not dispose of the motion to enlarge the time within which to answer the complaint. The letter opinion, incorporated into the order, stated that default judgment was granted on the issue of liability, but that appellant was entitled to a trial on the remaining issue of damages. The trial court found that there was valid service by a duly-qualified process server on April 19; that the process server erroneously used the sheriffs return instead of providing an affidavit of service on April 20; that this error did not invalidate service; that appellant admitted receipt of the documents; that there was neglect in failing to answer the complaint, but not excusable neglect; that the trial court sent two letters to appellant, dated July 9 and August 4, setting the matter for trial on October 1; and that appellant’s filing of an answer on August 18 demonstrated his failure to take any of the documents seriously. Appellant filed a timely notice of appeal from the trial court’s order.
On appeal, appellant argues that the trial court erred in entering a default judgment because (1) the service requirements were not strictly followed, (2) the proof of service was defective, (3) appellant demonstrated excusable neglect in failing to file a timely answer, and (4) appellant was entitled to an extension of time. Appellant also argues that the trial court erred in granting appellees’ motion to strike his answer. After our appellate review of all issues, we affirm the trial court’s decision in all respects.
We first note that as to the default judgment, appellees contend that we do not have a final order for purposes of appeal. The issue of jurisdiction is one that we are duty-bound to raise, even if it is not raised by the parties. See, e.g., Hyatt v. City of Bentonville, 275 Ark. 210, 628 S.W.2d 326 (1982). Appellees correctly state the general rule that a judgment or order is not final and appealable if the issue of damages remains to be decided. See U.S. Bank, N.A. v. Milburn, 352 Ark. 144, 100 S.W.3d 674 (2003); String v. Kazi, 312 Ark. 6, 846 S.W.2d 649 (1993); John Cheeseman Trucking, Inc. v. Dougan, 305 Ark. 49, 805 S.W.2d 69 (1991); Sevenprop Assoc. v. Harrison, 295 Ark. 35, 746 S.W.2d 51 (1988). In Sevenprop, our supreme court held that, in an appeal from a default judgment on liability, where there was failure to file a timely answer and the issue of damages was not yet resolved, the appeal had to be dismissed.
Nevertheless, we conclude that we have appellate jurisdiction of the present appeal because there is a single distinguishing factor — appellant’s answer was struck. Under those circumstances, the Arkansas Supreme Court has held that the appeal is proper. See Arnold Fireworks Display, Inc. v. Schmidt, 307 Ark. 316, 820 S.W.2d 444 (1991). In Arnold Fireworks, the supreme court held that Arkansas Rule of Appellate Procedure-Civil 2(a)(4) provides that an appeal may be taken from an order that strikes all or part of an answer. Our supreme court declared that this specific provision in Ark. R. App. P.-Civ. 2(a)(4) controlled over the more general rule of Ark. R. App. P.-Civ. 2(a)(1), which requires.a “final judgment.” The supreme court held that appellate rule 2(a)(4) permitted a “piecemeal approach.” Id. at 319. Therefore, we have appellate jurisdiction over the striking of the answer, which permits review of the entry of default judgment.
We now address appellant’s arguments on appeal in the order presented by him. The thrust of his appeal is directed toward whether the trial court erred in entering default judgment. When a party against whom a judgment for affirmative relief is sought fails to plead or otherwise defend as provided by the Rules of Civil Procedure, a default judgment may be entered against him. See Ark. R. Civ. P. 55(a). Default judgments are not favorites of the law and should be avoided when possible. B & F Engineering v. Cotoneo, 309 Ark. 175, 830 S.W.2d 835 (1992). A default judgment may be a harsh and drastic result affecting the substantial rights of the parties. CMS Jonesboro Rehabilitation, Inc. v. Lamb, 306 Ark. 216, 812 S.W.2d 472 (1991); Burns v. Madden, 271 Ark. 572, 609 S.W.2d 55 (1980). Pursuant to Rule 55(c) of the Arkansas Rules of Civil Procedure, a default judgment may be set aside for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) the judgment is void; (3) fraud, misrepresentation, or other misconduct of an adverse party; or (4) any other reason justifying relief from the operation of the judgment. In cases where the appellant claims that the default judgment is void, we review a trial court’s decision using a de novo standard. Nucor Corp. v. Kilman, 358 Ark. 107, 186 S.W.3d 720 (2004). In cases where an issue arises under sections (c)(1), (3), or (4) of Rule 55, we review the trial court’s decision for abuse of discretion. Id.
Appellant first contends that default judgment was improper because he was not properly served with the summons and complaint. Arkansas law is long settled that service of valid process is necessary to give a court jurisdiction over a defendant. Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001) (citing Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982)). Statutory service requirements, being in derogation of common-law rights, must be strictly construed and compliance with them must be exact. Id.; Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996) (citing Wilburn v. Keenan Companies, Inc., 298 Ark. 461, 768 S.W.2d 531 (1989) and Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978)). The same reasoning applies to service requirements imposed by court rules. Carruth v. Design Interiors, Inc., supra; Wilburn v. Keenan Companies, Inc., supra.
We hold that the trial court did not err in finding that there was valid service in this instance. Appellant agreed that he was handed some documents from a female who had driven to his residence that day. Appellant disagreed that he accepted them at the door; instead, he said he met her at the window of her car, thinking she was a mail carrier delivering regular mail. There was no dispute that the summons and complaint specifically and correctly notified appellant of all he was required to be provided under Arkansas law, and in particular Arkansas Rule of Civil Procedure 4. Appellant contends that his belief that the process server was actually a mail carrier and that she did not inform him what she was handing him invalidates the completed service. We disagree that appellant was not properly served.
By both appellant’s and the process server’s testimony, appellant received documents from the process server at his residence on April 19. He simply neglected to read the documents. The summons is a process used to apprise a defendant that a suit is pending against him and afford him an opportunity to be heard. See Nucor, supra. Appellant’s contention that he was mistaken in his belief that he was being handed regular mail does nothing to erode the admitted fact that appellant received hand-delivery of service. See Miller v. Transamerica Commercial Finance Corp., 74 Ark. App. 237, 47 S.W.3d 288 (2001) (holding that evidence was sufficient to prove service of summons and complaint despite appellant not recalling being served at all, where deputy’s unequivocal testimony was that he recalled serving the pleadings at a specific time and date, even though he stated on cross-examination that he had served so many times that he could not identify each and every instance). We affirm this point.
Appellant also contends that service was defective because the process server provided her proof of service by incorrectly filling in the form printed on the summons, which is provided for use by the sheriff or his deputies when serving summons and complaints. The form read as follows, with the handwritten insertions of the process server set out in italics:
On this 19 day of April 20041 have duly served the within writ, by delivering a copy and stating the substance thereof to the within named Roger Israel in person at 5857 New Hope Rd. Springdale, AR.
Sheriff s costs $_ _
Sheriff
D.S. [deputy sheriff] Sheri R. Brooks WPS 00-7
Appellant directs us to Ark. R. Civ. P. 4(g), which states in pertinent part that:
If service is made by a sheriff or his deputy, proof may be made by executing a certificate of service or return contained in the same document as the summons. If service is made by a person other than a sheriff or his deputy, the person shall make affidavit thereof[.]
The trial court found that the process server had not complied with Rule 4(g) by her failure to provide an affidavit to prove her service of summons. Notwithstanding that mistake, the trial court found that this omission did not affect the validity of service. The trial court was correct.
There is a distinction between service and proof of service. See Adams v. Nationsbank, 74 Ark. App. 384, 49 S.W.3d 164 (2001). Failure to make proof of service does not affect the validity of service, because proof of service may be made by means other than demonstration on the return of the serving official. Lyons v. Forrest City Machine Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990). We affirm this point and hold that valid service was provided to appellant to notify him of the summons and complaint, and that the erroneous manner of proving service did not invalidate service.
Appellant’s next argument concerns whether the trial court abused its discretion in granting a default judgment. Appellant’s argument has essentially two facets: (1) that he was unfairly allowed to harbor the false notion that the documents handed to him were regular mail and that this constitutes misconduct on the serving party excusing his failure to answer in a timely fashion, and (2) that his failure to answer on time was excusable neglect for his failure to understand the gravity of what had been handed him. We disagree with both of those arguments.
We have already disposed of the service-of-process argument. Furthermore, appellant presents no compelling argument or any legal authority requiring a verbal warning of what is being served. Assignments of error that are unsupported by convincing argument or authority will not be considered on appeal unless it is apparent without further research that they are well taken. Webb v. Bouton, 350 Ark. 254, 85 S.W.3d 885 (2002).
We also disagree that failure to answer within the time allotted under the Rules of Civil Procedure was a product of excusable neglect. Indeed, the trial court found that appellant had failed to answer due to neglect, but not “excusable” neglect. We cannot say that this finding is clearly erroneous or that the trial court abused its discretion in entering a default judgment under these circumstances. Failure to attend to business is not excusable neglect. Maple Leaf Canvas, Inc. v. Rogers, 311 Ark. 171, 842 S.W.2d 22 (1992); CMS Jonesboro Rehabilitation, Inc. v. Lamb, supra.
Appellant adds to this argument by stating that no prejudice resulted to the appellees and that he has a meritorious defense. It must be remembered, however, that appellant must first satisfy the court that a threshold reason exists for denying default judgment. See Maple Leaf, supra. Like in Maple Leaf and in CMS, supra, the failure to answer the complaint was due more to carelessness or not attending to business.
The case of Nucor, supra, is instructive. In that case, a high-level employee of Nucor received a summons and complaint. Though the employee was undoubtedly extremely busy at the time he received the suit papers, he did nothing, and the trial court found that his being “too busy” was not excusable neglect. The justices in the Nucor appeal affirmed that discretionary decision. The Nucor decision referred back to Layman v. Bone, 333 Ark. 121, 967 S.W.2d 561 (1998), where it was held that:
Presumably, any failure to file an answer on time could be referred to as a “mistake” in the sense that an error of some sort caused the failure to file on time. To hold, however, that any error whatsoever should excuse compliance with Rule 12(a) would deprive the trial courts of the discretion to which the rule refers. That is not the intent behind the rule.
Layman, 333 Ark. at 125, 967 S.W.2d at 563-564.
In the present appeal, appellant testified that he was a business man who was familiar with court processes. Despite his experience and intellect, appellant failed to tend to this business and did nothing until after being informed by letter that a trial on damages was pending. We cannot say that the trial court’s conclusion, that this did not rise to excusable neglect, was clearly erroneous. As a result, we hold that its discretion was not abused in entering a default judgment. Compare to Hubbard v. The Shores Group, Inc., 313 Ark. 498, 855 S.W.2d 924 (1993) (upholding trial court’s discretionary decision setting aside default judgment under compelling facts supporting a finding of excusable neglect).
Appellant next contends that the trial court erred in granting a default judgment because he was entitled to an extension of time within which to file an answer pursuant to Ark. R. Civ. P. 6. Arkansas Rule of Civil Procedure 6(b) provides that upon motion made after the expiration of the specified period, a trial court has discretion to permit the act to be done where the failure to act was the result of mistake, inadvertence, surprise, excusable neglect, or other just cause. Appellant contends that the trial court abused its discretion in denying his motion to enlarge the time within which to file his answer.
We do not address this issue on appeal because appellant bore the burden to obtain a ruling on the Rule 6 argument. His failure to do so is a procedural bar to our consideration of the issue on appeal. See Kangas v. Neely, 346 Ark. 334, 57 S.W.3d 694 (2001); Barker v. Clark, 343 Ark. 8, 33 S.W.3d 476 (2000); St. Paul Fire & Marine Ins. Co. v. First Bank of Ark., 341 Ark. 851, 20 S.W.3d 372 (2000).
Even had we reached the merits, we would not hold that the trial court abused its discretion in not extending the time to answer because, like the entry of default judgment, there was no finding of excusable neglect. Rule 6(b)(2) was amended in 1990 to make it compatible with the move to liberalize Rule 55 and the standards for granting default judgments. See Layman v. Bone, supra. It allows a trial court, “in its discretion,” to enlarge the time to answer, even after the initial period has passed. See id. However, the revision of the rule did not require the trial courts to permit such answers in any circumstance. See id.
Appellant’s final contention on appeal is that the trial court erred in striking his answer filed on August 18, 2004. He notes that the trial court specifically stated that he had made a prima facie showing of a meritorious defense to the complaint, and furthermore, the issue of damages was remaining for trial. Thus, he asserts that striking his belated answer prevents him from maintaining his defenses raised in the answer. We disagree.
A trial court’s decision regarding the striking of a pleading will not be reversed in the absence of an abuse of discretion. See Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002). Arkansas Rule of Civil Procedure 12(f) provides that a trial court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. See also Newbern, Arkansas Civil Practice and Procedure § 11-12. Clearly, the belated answer was untimely to rebut the factual allegations in the complaint upon default regarding liability, and therefore the factual responses were immaterial under Rule 12(f). Appellant correctly states that the issue of damages remains outstanding for trial. The harm levied against appellant in striking his answer was the entry of default judgment. The defenses raised in his answer related primarily to the issue of service of process, which has heretofore been resolved in the propriety of entering default judgment. Appellant remains free to counter any proof of damages, which must be proved by appellees at trial. Thus, we cannot say that the trial court abused its discretion in striking the untimely answer filed by appellant.
We affirm.
Pittman, C.J., and Vaught, J., agree.
Although appellate Rule 2(a)(4) speaks only to an appeal from “an order which strikes out an answer, or any part of an answer, or any pleading in an action,” the supreme court has relied on this jurisdictional base to review the related default judgment. See Southern Transit Co., Inc. v. Collums, 333 Ark. 170, 966 S.W.2d 906 (1998); Arnold Fireworks Display v. Schmidt, supra. | [
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George Rose Smith, J.
On August 19, 1957, the appellee obtained a temporary restraining order which enjoined the appellants, labor representatives, from picketing a construction job in Jonesboro. On final hearing the chancellor dissolved the temporary injunction but held that there was no competent evidence to support an award of damages for its wrongful issuance. The appellants contend that the court should have awarded them substantial compensatory and punitive damages.
The record is large, but only a few salient facts need be stated. McDaniel Brothers Construction Company, a partnership which was also engaged in the plumbing business under the trade name of Central Plumbing Company, was originally the general contractor and the plumbing contractor for the construction job at Jonesboro. In July of 1957 McDaniel Brothers brought suit against these appellants, to enjoin the picketing that was then in progress. The application for a temporary injunction was heard on July 18 by Chancellor Lee Ward, who refused to interfere with the picketing except to a very limited extent.
After having failed in their effort to halt the picketing, the McDaniel brothers ostensibly sold their plumbing department to the appellee Eleanor Samuels, who was an employee in that department. On August 19 Mrs. Samuels filed her present complaint, which alleges the same matters that were asserted in the earlier case but does not disclose that the plaintiff acquired the plumbing subcontract from McDaniel Brothers. On the same day, without notice to the defendants, the verified complaint was presented to Chancellor W. Leon Smith, who issued a temporary restraining order. When the matter was later heard on its merits Judge Smith ruled that the injunction had been wrongfully obtained, as the plaintiff was in privity with the McDaniels and was bound by their litigation. This appeal is from the court’s refusal to allow damages.
■ We find no merit in the appellee’s cross-appeal, by which it is contended that the injunction was not obtained wrongfully. On the direct appeal we must reluctantly agree with the chancellor’s conclusion that the appellants offered no competent evidence to sustain an award of damages against the appellee and her bondsmen. One witness testified that the bargaining position of the labor unions was practically destroyed by their inability to picket, but there is no evidence at all by which we could attempt to determine the pecuniary loss that resulted from this injury. That damage of this kind may be hard to prove in dollars and cents does not justify our reaching into the air for a figure that would represent only an unsupported guess on our part. The burden was on the appellants to prove' the amount of their damages. Alf Bennett Lbr. Co. v. Walnut Lake Cypress Co., 105 Ark. 421, 151 S. W. 275.
In seeking to prove certain expenses that the unions are said to have incurred as a result of the injunction, the appellants offered only a memorandum of figures prepared by the witness Mowrey. The chancellor correctly held this memorandum to be inadmissible, for it was a synopsis of information gathered by Mowrey from various records and canceled checks of the unions. The records themselves were the best evidence and should have been produced. Wigmore on Evidence (3d Ed.), §§ 1179 and 1532. The appellants also sought reimbursement for their attorney’s fees in connection with the dissolution of the injunction, but under our decisions this expense is not recoverable. McDaniel v. Crabtree, 21 Ark. 431; Citizens’ Pipe Line Co. v. Twin City Pipe Line Co., 183 Ark. 1006, 39 S. W. 2d 1017. Nor can punitive damages be recovered in the absence of an award of actual damages. Kroger Gro. & Baking Co. v. Reeves, 210 Ark. 178, 194 S. W. 2d 876.
Doubtless the appellants were entitled to nominal damages; but the chancellor awarded them their costs, and in an equity ease, where the costs have béen properly assessed in the trial court, nominal damages are not allowed on appeal for the sole purpose of charging the appellee with the costs in this court. Campbell v. Southwestern Tel. & Tel. Co., 108 Ark. 569, 158 S. W. 1085; Reader Railroad v. Green, 228 Ark. 4, 305 S. W. 2d 327.
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Sam Robinson, Associate Justice.
Appellant, R. E. Harris, as agent for his wife, Sadie Harris, contracted to sell a large plantation to appellee, A. I. McCann. Later, a portion of the place, 640 acres, was sold to Harlen Wilson and wife for the price of $66,000, of which $10,000 was paid in cash and notes given for the balance of $56,000. Harris loaned money to McCann to operate the plantation for the years 1955 and 1956. In January, 1957, McCann filed this suit, asking for specific performance of the contract of sale. McCann made an alleged tender of the amount he claims he owed. He contends, however, that he should have credit for $66,-000, the price of that part of the land sold to "Wilson. Harris answered and set up several defenses. He denied that McCann should have credit for the sales price of the Wilson land. He alleged that McCann had breached the contract by failing to make payments in accordance with the terms thereof; that there had been a forfeiture; and, further, that by mutual agreement the sales contract had been rescinded. By way of cross complaint Harris asked for judgment for the alleged unpaid balance on money loaned to McCann to make the crops. McCann answered the cross complaint, alleging that Harris had charged a usurious rate of interest for the money loaned to make both the 1955 and 1956 crops. Later, Harris filed a new suit against Florida Real Estate Loan Company, Helena National Bank, A. I. and Grace E. McCann, and B. A. and Mary Lucille McCann, alleging that the defendants had wrongfully encumbered the title to the property, and asked that the title be cleared and that the plaintiff be given judgment for damages. The cases were consolidated.
Upon a trial of the issues, the chancellor ordered specific performance of the contract, and it was the decree of the court that a usurious rate of interest had been charged by Harris on loans for both of the years 1955 and 1956, but that McCann could not recover that part of the 1955 account which had been voluntarily paid; that the 1956 loan was void because of usury and that there is no merit to Harris’ claim that title to the property has been wrongfully encumbered; and, further, that McCann should have credit for the price of the land sold to Wilson. Harris has appealed. And McCann has cross-appealed from that part of the decree disallowing recovery of the payments made on the 1955 account.
On the 20th day of December, 1954, Harris and his wife entered into the contract whereby they agreed to sell, and McCann agreed to buy, Wildwood Plantation in Phillips County, consisting of approximately 2,915 acres, and also the farming implements, etc., used in operating the place. On January 1, 1955, the property was turned over to McCann. On March 2, 1955, a more formal contract of sale was executed. The purchase price, including land and equipment, was $300,000, of which $8,000 was paid in cash, and in addition McCann and his wife gave their note for $12,000 due December 1, 1956, secured by a mortgage on other property. The balance of the purchase price of $280,000 was to be paid in twenty yearly installments of $14,000 each, and interest, the first installment becoming due on or before December 20,1955. Harris loaned McCann the necessary money to operate the place for the years 1955 and 1956. In January, 1956, the 640 acres was sold to Harlen Wilson and wife for the sum of $66,000; Wilson paid $10,-000 in cash and executed notes payable to both Mc-Cann and Harris for the balance. The $10,000 in cash was paid to Harris, and McCann endorsed the notes and turned them over to Harris.
On the 10th day of January, 1956, Harris furnished McCann a statement showing that he had advanced to McCann $83,952.43, and that McCann was entitled to credits for $65,565.74, leaving a balance owed by McCann to Harris of $18,386.69. Two days later, on January 12th, additional charges and credits were made that grew out of the 1955 operation of the place, and on that day Harris furnished McCann a statement showing there was a balance of $11,635.04 owed by McCann from 1955 (this amount was carried forward into the 1956 account). The statement for 1955 included an item dated January 9th, as follows: “Interest on furnish account, $2,677.40.” On the face of this statement is written, in longhand, “This settlement is hereby accepted as a true and final settlement of account. Signed E. E. Harris A. I. McCann.” In addition, Harris had received and credited to the debt on the land $14,000 principal and about the same amount as interest.
Mr. John A. Moye, Jr., is vice-president of Helena National Bank and has computed all types of interest over a period of 17 years. He testified that the interest charged by Harris to McCann on the “furnish” account for the year 1955 exceeded 10% per annum by $525.05. The parties had contracted for an interest charge of 6%. All of the charges and credits are taken from the books of appellant Harris. The computation of interest made by Mr. Moye is based on the records of Mr. Harris, and it appears from a preponderance of the evidence that more than 10% interest was charged for the year 1955.
McCann contends that with the exception of two comparatively small checks for wheat and oats which he turned over to Harris, all the receipts for the crops produced were paid to Harris by the purchasers of such crops, and therefore such receipts cannot be considered as voluntary payments on his indebtedness to Harris. But McCann accepted the statement of January 12th as a “true and final settlement of account”. If he did not actually authorize the application to the ‘ ‘ furnish” account of the funds received by Harris from the crops, he certainly ratified such application, which is the same as having authorized it in the first instance.
But the situation is different for the year 1956. In that year Harris furnished to McCann $45,159.49, which includes the $11,635.04 carry-over from 1955. McCann owed Harris two separate accounts, one for the “furnish” and one for the land. Harris had received $40,-949.48 from the sale of crops produced on the property in 1956, but none of this money had been applied to any particular account. It had been held by Harris as unallocated. It had not been applied to either the land or the “furnish” account. Furthermore, the parties had reached no agreement as to the allocation of the receipts. Sometime during the latter part of October (the exact date is not shown on Harris’ statement) he charged McCann with a “carrying charge” of $2,290.65. According to Mr. Moye, the expert on computing interest, this carrying charge exceeds 10% per annum on the money loaned to McCann by Harris during 1956. The chancellor held that snch carrying charge was usurious and therefore Harris had forfeited the money loaned to McCann in 1956 and the interest thereon.
On the question of usury Harris contends that the carrying charge does not exceed 10% ; that whatever money he received from McCann was paid voluntarily; that the transaction is not usurious because there was no agreement between the parties for the charge of interest at a rate of more than 10% per annum. In the first place, the dates of advances of money to McCann and the amounts thereof are all shown on Harris’ books, as well as the interest charged, which is designated “carrying charge”. The preponderance of the evidence shows that the “carrying charge” amounts to more than 10% per annum on the amounts advanced. Mr. Harris attempts to explain that items other than interest are included in the “carrying charge”. But his testimony in that respect is not convincing. In the recent case of Jones v. Jones, 227 Ark. 836, 301 S. W. 2d 737, we said: “When, as here, the lender writes the contract he has the opportunity to put down in black and white an intelligible description, and the exact amount, of every charge that is being added to the principal of the debt. Last week we pointed out that the practice of attaching meaningless labels to such charges weakens the lender’s position when usury is asserted. Whiddon v. Universal C. I. T. Credit Corp., 227 Ark. 824, 301 S. W. 2d 737. The same criticism can fairly be made of a contract that gives the borrower no information at all about the deferred charges being exacted by the lender. In either case the trier of the facts is justified in assuming, until he is convinced by proof to the contrary, that the difference between the principal of the loan and the face amount of the contract represents interest on the debt.”
McCann actually in person had not paid anything to Harris in 1956. True, those who had purchased the crops produced by McCann had, by agreement of the parties, paid the purchase price to Harris. But, as here tofore pointed out, McCann owed Harris a debt on the purchase price of land and owed the “furnish” account, and the money received by Harris from the 1956 crop to apply on McCann’s debts had been held in an unallocated account and had not been applied to either the land account or the “furnish” account. In these circumstances it cannot be said that there had been a voluntary payment on the 1956 “furnish” account.
Next, Harris says that since there had been no agreement by McCann to pay more than 10% per annum interest, the fact that more than that amount may have been charged does not make the transaction usurious, and cites, among other cases, Sloan v. Sears, Roebuck and Co., 228 Ark. 464, 308 S. W. 2d 802, and General Contract Corp. v. Duke, 223 Ark. 938, 270 S. W. 2d 918, to the effect that the transaction is to be judged as of the time the contract is made and not thereafter. Appellant therefore contends that since the contract provides for only 6% per annum there can be no usury for the simple reason that the borrower has to pay only what the contract calls for.
The carry-over from 1955 of $11,635.04 embodied part of the .usurious interest charged in 1955. Furthermore, to constitute usury there must be only the intention of the lender to take or receive an unlawful rate of interest. Baxter v. Jackson, 193 Ark. 996, 104 S. W. 2d 202; Wilson v. Whitworth, 197 Ark. 675, 125 S. W. 2d 112. Undoubtedly it was Harris’ intention from the beginning to compute the interest by charging a straight 6% on all sums advanced, regardless of the date he actually parted with the money. For both years, 1955 and 1956, the amount of the “carrying charge” is a flat 6% of the total advanced. This is exactly the method used in computing interest in Brooks v. Burgess, 228 Ark. 150, 306 S. W. 2d 104, and was held to be usurious, the amount of the interest exceeding 10% per annum, as in the case at bar.
McCann contends that he should have credit on the land account for $66,000, the sales price of the land bought by Wilson. Harris maintains that McCann Is not entitled to credit for the sales price of the Wilson land. The sale to Wilson came about in this manner: Mr. Godfrey Merrifield is a real estate broker. He had been authorized by Harris to sell Wildwood Plantation. It was agreeable with Harris to divide the place and sell it in parcels to different buyers, provided all parcels were sold, but Merrifield negotiated a contract between Harris and McCann whereby McCann agreed to buy the whole place. This contract provides: “15. It is further mutually agreed between the parties that the purchaser may sell any portion of the approximately 2,915 acres of land hereinabove described at any time during the life of this contract, provided that the price and terms are agreeable to the sellers and the proceeds from such sales are applied to the indebtedness owing to the sellers by the purchaser as hereinabove set out.”
Later, after the contract had been made between Harris and McCann, Merrifield found Wilson as a purchaser of a portion of the place, known as Section 28, consisting of 640 acres. The contract to sell the property to Wilson was signed by McCann and his wife and Harris and his wife, and, of course, by Wilson. Wilson paid $10,000 in cash, which was turned over to Harris, gave his notes, payable to both Harris and McCann, for $56,000, the balance of the purchase price, payable in annual installments. The notes were endorsed by Mc-Cann and delivered to Harris. When the first installment became due, Wilson made the payment to Harris. The contract between Harris and McCann is somewhat ambiguous, in that it does not specifically provide whether the notes taken in connection with the purchase price should be regarded as proceeds from the sale. (It will be recalled that the contract between Harris and Mc-Cann provides that the proceeds from the sale of any part of the property to a third party should be applied to McCann’s indebtedness to Harris.) Appellant Harris contends that the notes should not be regarded as part of the “proceeds” as mentioned in the Harris-Mc-Cann contract and therefore should not be applied to the indebtedness owed by McCann. On the other hand, McCann says that when all the facts and circumstances are considered, the Wilson notes should he regarded as part of the proceeds from the sale of the Wilson land and the full amount of these notes applied to McCann’s indebtedness to Harris. Both sides cite numerous cases to sustain their point as to what should be considered “proceeds” of a sale in circumstances of this kind. But we think the case at bar is more closely in point with Rose v. Hall, 171 Ark. 529, 284 S. W. 776. There the Court said: “We think what was intended and the thing which was in fact done was to substitute, by consent of all parties concerned, Sarah Hall as the purchaser from Bose, instead of from Shuptrine. ’ ’ And that appears to be what was done in the case at bar. Wilson was substituted for McCann as the purchaser of the 640 acres. Every detail of the sale to Wilson was approved by Harris, and everything received from the sale, including the cash and the notes, was turned over to Harris. In the first place, from the very beginning Harris contemplated selling the plantation in parcels, and although he contracted to sell the entire property to McCann, the contract provided that McCann could sell any portion of the property “provided that the price and terms are agreeable to the sellers (Harris) and the proceeds from such sales are applied to the indebtedness” owned by McCann to Harris. It will be noticed that all the terms of the sale had to meet the approval of Harris, including the selling price; hence, Harris could insist on a selling price, a down payment, and deferred payments, that would give him full protection in the event of a sale. And certainly, when Wilson finally would have paid in full for the land he would have title to it free of any indebtedness that McCann might still owe to Harris. Furthermore, the entire transaction was handled by Harris as if he were selling the property to Wilson; Harris’ real estate broker arranged the sale; his lawyer drew up the contract of sale on terms dictated by Harris; the proceeds of the sale — the $10,000 cash payment and the Wilson notes — -were delivered to Harris; Harris kept a complete double entry set of hooks, and the record of the sale to Wilson was set up on Harris’ books just like tbe sale to McCann had been set up; Wilson was given credit for tbe $10,000 down payment; McCann’s land account was not credited with tbe down payment; neither was tbe McCann account credited with tbe first installment payment made by Wilson. We think a preponderance of tbe evidence shows clearly that all tbe parties considered that Wilson was substituted for McCann as a purchaser of tbe 640 acres which we have spoken of as the Wilson land.
Appellant makes tbe further contention that tbe contract of sale between Harris and McCann was rescinded by mutual agreement. This is a question of fact, and there is ample evidence to sustain tbe chancellor in tbe finding that tbe contract was not rescinded. True, a rescission of tbe contract was discussed, but McCann says be did not agree to tbe rescission, and tbe conduct of the parties subsequent to tbe time Harris contends tbe contract was rescinded does not appear to sustain Harris’ contention. McCann remained in possession of tbe property; be paid to Harris $12,000, which was part of tbe agreed down payment. Moreover, tbe notes given by McCann in connection with tbe $300,000 purchase price were not returned to him.
Appellant makes tbe further argument that McCann should not prevail because be did not come into court with clean bands, but we do not think tbe acts Harris alleges that McCann has committed bring tbe case within tbe clean bands doctrine.
In order to raise tbe money to pay Harris in full, McCann mortgaged tbe property to Florida Real Estate Loan Company. It is appellant’s contention that both McCann and Florida are liable for unlawfully encumbering tbe title to tbe property. McCann bad possession of the property and bad paid part of tbe purchase price; be bad an equitable interest which be bad a right to mortgage. 41 C. J. 374; 36 Am. Jur. 708; Oliphint v. Eckerley, 36 Ark. 69.
Appellant further maintains that McCann has made no valid tender of tbe purchase price. It appears that when McCann attempted to pay the debt and demanded a deed, the principal issue between the parties was whether he should be given credit for the price of the land sold to Wilson, and since it is being held that he should be given such credit, there is no doubt about the tender being sufficient. But the tender was not sufficient to stop the running of interest on the debt. Florida Real Estate Loan Company had agreed to loan McCann $187,500, and the Mississippi County Bank had agreed to loan $12,500. This money was to be used to pay off the debt McCann owed Harris. Although the money was available and could be obtained at any time for the purpose of paying off the debt, it had not actually been advanced by Florida or the Bank, and Florida was not willing to deposit the money in court. There is no indication that McCann would have to pay interest on the money until such time as it was actually advanced. In these circumstances it would be inequitable to say that the tender stopped the interest on the debt to Har-' ris, because if that were done McCann would be having the full use and benefit of the money owed to Harris without the payment of interest to anyone. Of course, McCann did not propose to use his own money to pay off the debt, and Florida and the Bank have not actually advanced the money, but have agreed to make it available to McCann for the purpose of paying off the loan when that can be done.
In 55 Am. Jur. 779, it is said: “A tender alone however, does not keep a purchaser in possession from being liable in equity for interest; he must keep the tender good and set aside the money for the vendor’s use, as by a deposit in a bank or in court. There is also authority to the effect that a vendee in possession must give notice that the money is set aside for the vendor’s use in order to escape being liable in equity for interest. . . . An arrangement between a contract purchaser of real property of which he has taken possession, and a bank, that the bank will furnish the money to be paid on the contract when needed, upon security of bonds deposited with it, is not such a setting aside and appropriation of money to the contract as to exonerate the purchaser from liability in equity for interest in case of delay in carrying out the contract.”
We think that in the circumstances of this case principles of equity demand that the debt owed by McCann to Harris bear interest until the debt is paid, and the decree should be modified to that extent.
On cross-appeal McCann contends that Harris charged him a usurious rate of interest on the “furnish” account for the year 1955, and that he therefore should have credit for the amount he paid on the 1955 account. The parties had a settlement on the 1955 account, and a statement of account prepared by Harris showed Mc-Cann owed a balance of $11,635.04. This amount was carried into the 1956 account and has been held void because of a usurious rate of interest charged on the account for that year. The parties considered that all of the 1955 account except the $11,635.04 had been paid in full. Appearing on the 1955 statement of account is the following: ‘ ‘ This settlement is hereby accepted as a true and final settlement of accounts. Signed: R. E. Harris A. I. McCann.”
There can be no recovery of money voluntarily paid on an account, where a usurious rate of interest was charged, except a recovery of the excessive interest. Anderson v. Shoup, 180 Ark. 955, 23 S. W. 2d 616. Even though the borrower may ordinarily recover the excessive interest, there is no showing here of what portion of such interest is embodied in the $11,635.04 carried into the 1956 account and declared void.
Appellee further contends on cross-appeal that he should have credit for $5,134.70 profit which he claims Harris wrongfully made out of crops raised by McCann and for a compress rebate of $94.50. These are questions of fact, and it would unduly extend this opinion, which is already too long, to set out in detail the ramifications of those issues. Suffice it to say we have examined the record and carefully considered argument of counsel, and we cannot say the chancellor’s finding against appellee in that respect is against a preponderance of the evidence.
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Paul Ward, Associate Justice.
This same subject matter comes to us on appeal for the second time. The opinion on the first appeal was delivered March 11, 1957, and will be found in 227 Ark. 506, 300 S. W. 2d 10. A brief statement of the facts, pleadings, and result of that ease is necessary to an understanding of the issue on this appeal.
On April 20, 1956, appellant, John M. Eastburn, purchased the Seven Valley Cheese Plant, located at Mena, from appellee, L. A. Galyen, for the purchase price of $45,000. A down payment of $10,000 was made by Eastburn, and he was to pay the balance in monthly installments of $500. The payments were not made, and some months later Galyen filed suit in the chancery court for the balance due on Eastburn’s note and to foreclose the mortgage on the cheese plant. Eastburn filed an answer in which he sought a recision of the purchase agreement on the ground that he and his wife had been induced to purchase the cheese plant by fraudulent representations of Galyen and his agents. Prom a decree in favor of Galyen, Eastburn appealed to this Court, where we held, in effect, that Eastburn had, by his acts, waived any misrepresentations that may have been made to him. See the Eastburn case, supra.
After the above mentioned disposition of the first litigation, on May 23, 1957 Eastburn and his wife filed a complaint in the circuit court against the said L. A. Galyen for special and exemplary damages based on the same, or essentially the same, allegations of fraud and misrepresentations which were relied on as a defense to the original foreclosure suit. To the above complaint Galyen filed an answer, later treated by the trial court as a demurrer, in which he pleaded estoppel based on the former litigation, setting forth, as exhibits, copies of the former decree, the opinion of this Court in the former case, and this Court’s mandate therein. The trial court dismissed the complaint, holding that East-burn’s claim was “barred by the doctrine of res judicata. ’ ’
We think the trial court was correct in dismissing the complaint. When the foreclosure suit was filed against Eastburn, there was available to him as a defense a choice of two remedies. One was to accept title to the cheese plant and sue Galyen for the damage he had been caused by the alleged misrepresentations. The other remedy called for a rejection of title to the property, and a petition for recision of the sale and a refund of the purchase money which had been paid. When Eastburn elected to pursue the latter remedy, he was thereby precluded from later resorting to former remedy. All the essential conditions or elements applicable to the rule relating to election of remedies are present in this particular case: (a) Both remedies were available to appellants, (b) they are inconsistent, (c) they are based on the same state of facts, (d) the same parties were involved in both suits, and (e) appellants were not mistaken as to the existence of any material facts.
In the case of Bigger v. Glass, 226 Ark. 466, 290 S. W. 2d 641, the Court approved, and commented on, three essential elements: (1) The existence of two or more remedies, (2) the inconsistency between such remedies, and (3) a choice of one of them. There is, we think, no doubt that all of these elements are present in the case under consideration: (1) When Galyen brought the foreclosure suit, Eastburn could have sought — as he did — a reeision of the purchase contract and a return of the money he had already paid to Gal-yen, or he could have accepted the sale and asked for damages. (2) It was inconsistent for Eastburn to offer to return title to the cheese plant to Galyen, as he did in the first suit, and retain title in himself, as he had to do in the present suit. On this point the opinion in the Bigger case, supra, contains this statement:
“. . . Stripped of all legal niceties, the matter is simply this: when Glass asked specific performance he was offering to surrender the property to Bigger for the full amount of money contracted. When Glass asked damages, he was keeping the property and seeking damages. Certainly keeping the property is inconsistent with surrendering the property . . . ”
(3) It is clear under our many decisions that Eastburn made an irrevocable choice of remedies when he filed his answer in the foreclosure suit seeking a reeision. Again we quote from the Bigger case for language that bears directly on this point:
“. . . In many jurisdictions, merely filing a specific performance suit is not considered an irrevocable choice, for that suit may be dismissed without prejudice and then a damage action may be filed. This is no longer an open question in Arkansas, for we have a line of cases all holding that the filing of the suit is the act of irrevocable election . . .”
We can see no rational difference in this connection, between filing an answer and filing a complaint. East-burn might have brought a suit for a reeision before the Galyens brought the foreclosure suit, but the result obviously would have been the same. Also, under this view it is immaterial that Eastburn, under our former decision, did not have a decision on the merits of his allegations, because his election of remedies was made when his answer was filed.
Practically the same rules set forth above were announced in the case of Belding v. Whittington, 154 Ark. 561, 243 S. W. 808, which opinion is extensively quoted in the Bigger case, supra. It was there indicated that B elding would not have been bound by his election of a remedy if he could show “that his election was based upon a mistake of material facts.” As stated before,, Eastburn does not here contend that he was mistaken as to any material facts. The Court also said, in speaking of the doctrine of election of remedies: ‘£ Certainly this doctrine has the merit of preventing one who is about, to hale another into court from making a capricious choice between inconsistent remedies which he may pursue.”
We have read with care the numerous cases and authorities presented in appellants’ able brief, but we find nothing to compel a conclusion different from the-one we have reached. Appellants stress the holding in Harris v. Whitworth, Admr., 213 Ark. 480, 211 S. W. 2d 101, and the cases cited therein. There the principal issue was res judicata, and it is disclosed that, in the two-actions involved, each did not depend on the same proof, and different parties were involved in both. Appellants-cite Restatement, Judgments § 62, and Restatement Contracts § 383, to the effect that the remedy relied on as a bar must have been available to the elector. However, we see no application of that principle here because the remedy which appellants now seek to invoke was available to them in the foreclosure suit.
By what we have said heretofore we do not mean to imply that appellants might not also be barred from maintaining this present action under the doctrine of res judicata. This doctrine appears to be the one relied on by the trial court, but the result was the same as the result reached by us, and its decree should be, and it is hereby, affirmed.
Affirmed.
George Rose Smith, J., not participating. | [
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Paul Ward, Associate Justice.
This appeal deals with the annexation of a small parcel of land to the town of Bryant. The petition for annexation, signed by a majority of the property owners affected, was approved by the circuit court over the objections of appellant and his wife who are affected property owners.
Appellants’ grounds for urging a reversal will be classified and discussed under three separate headings. One. The lands sought to be annexed are not contiguous. Two. The lands proposed for annexation are not suitable for that purpose under the rules announced in Vestal v. Little Rock, 54 Ark. 321, 15 S. W. 891. Three. There is no substantial evidence to support the judgment of annexation by the circuit court.
One. There is, we think not only substantial but clear and convincing evidence to support the trial court’s finding that the land proposed for annexation is contiguous to the town of Bryant. It is admitted by appellants that the land touches the corporate limits of Bryant along a north and south line for 150 feet. The parcel of land proposed for annexation (hereafter referred to as “the land”) is very small and is in an irregular shape. The plot shows the said 150 feet wide (from north to south) strip extends west from the west corporate limits for a distance of 634 feet, and that adjoining said strip at the southwest corner is another irregular parcel of land which extends west 250 feet and south 450 feet. It is also shown that there is a blacktopped road (running west from and being a continuation of Fourth Street) across “the lands”. There appears no reason why it is not practicable for the present town and “the land” to some day become a unity. In the Vestal case, supra, it was said: “In all cases, however, where actual unity is practicable legal unity should be ordered as promising the greatest aggregate of Municipal benefits”. In the cited case it was held that Little Rock and Argenta (now North Little Rock) were contiguous although they are divided by the Arkansas River which (then) conld only be crossed via two bridges and small boats. See also: Garner v. Benson, 221 Ark. 215, 272 S. W. 2d 112. The case of Wild et al. v. People ex rel. Stephens, 227 Ill. 556, (Ill.) 81 N. E. 707, cited by appellants as holding to the contrary is not in point because it is based on a statute which we do not have in this state.
Two. In the Vestal case, supra, the court, after mentioning the two grounds relied on for a reversal, made this statement: “Before considering them (the two points) directly, we will state what we conclude from the many authorities to be the correct rule to guide in determining an application for annexation”. The court then set forth (at pages 323 and 321 Arkansas Reports) five examples or conditions affecting annexation. It is important to note that these five examples or conditions are not conjunctive but disjunctive. In appellants’ designation of points and in the argument they have apparently relied on each example or condition as a separate ground for reversal. It seems clear to us however that it is not encumbent upon appellees to meet the burden imposed by all five of the conditions or examples. In other words, “the ]and” may be considered as suitable for annexation if appellees’ application and proof comply with either one of them. We think this requirement has been met.
Although “the land” has not been divided into lots and blocks, it appears they are susceptible of such divisions; they furnish a suitable abode for the four families now living there and could be used by others; the town has recently approved a sizeable bond issue (two in fact) for improvement of the water system, and this service is needed and can be used by those living in the proposed annexation; a serviceable road or street has already been constructed as before mentioned, and; it appears that the lots, as stated in the Vestal case, supra, “. . . are valuable by reason of their adaptability for prospective town uses”. The land is not used for agriculture or horticulture and it is not shown to be valuable for that purpose only.
There is much testimony showing that there are a great many vacant lots in the town of Bryant, and great stress is placed on this fact by appellants. Although the existence of these vacant lots is a circumstance which might have been weighed by the trial judge, it has never been considered controlling by this court. In the case of Fowler v. Ratterree, 110 Ark. 8, 160 S. W. 893, annexation was approved although, as the court said, there was “much vacant and unimproved lands already within the limits”.
We are aware that from .the v'ery nature of this kind of a case there will often be occasion for a diversity of opinions and that, for that reason, much must be left to the good judgment of the trial court. The statutes under which this proceeding was instituted. (Ark. Stats. § 19-301 et seq.) appear to be designed to that end. Section 19-302, among other things, says the court shall grant annexation if it is satisfied the prayer of the petitioner is right and proper. Sanction was given to this view in the recent case of Cantrell et al. v. Vaughn, 228 Ark. 202, 306 S. W. 2d 863, decided by us November 4, 1957, Vol. 102 L. R. 760-.
Three. In view of what we have already said it is obvious that there is substantial evidence to support the judgment of the trial court. It is well established by the decisions of this court that the findings of the trial court in annexation cases must be given the same weight as are given to the verdict of a jury, and that such findings must be sustained if supported by substantial evidence. See: City of Newport v. Owens, 213 Ark. 513, 211 S. W. 2d 433; Walker v. City of Pine Bluff, 214 Ark. 127, 217 S. W. 2d 510; Burton v. City of Fort Smith, 214 Ark. 516, 216 S. W. 2d 884; Marsh v. City of El Dorado, 217 Ark. 838, 233 S. W. 2d 536, and; Garner v. Benson, 224 Ark. 215, 272 S. W. 2d 442.
Affirmed. | [
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Minor W. Millwee, Associate Justice.
On May 9, 1957 the appellant, Leo Lee, was charged with murder in the first degree in the killing of another Negro, William Harrison Smith Jr., on December 26,1956. The in formation was amended on July 23, 1957, by additionally charging appellant with the commission of the homicide while in the attempt to perpetrate the crime of rape upon the person of Grace Helen Hays. The jury returned a verdict of guilty of first degree murder without recommending a life sentence and the trial court thereupon assessed the death penalty.
In his motion for new trial, the appellant first questions the sufficiency of the evidence to support the verdict. He earnestly contends there is a lack of sufficient evidence to show either that he assaulted and killed Smith with malice aforethought, premeditation and deliberation or that he did so in the attempt to perpetrate a rape upon the Hays girl.
The evidence adduced by the State tended to establish the following facts. Grace Helen Hays, 19 years of age, resides with her parents at 1406 Ringo Street in Little Rock, Arkansas. In December, 1956 she was at home for the Christmas vacation while in her third year in college in Michigan. On the night of December 26, 1956, she had a date with William Harrison Smith Jr. with whom she had been keeping company for three or four years. They attended a movie with Grace’s two younger sisters and a brother. After leaving the theater in Smith’s two-door Chevrolet automobile, they took the children home and proceeded to drive around for a while and parked about the middle of the 2200 block on 24th Street between Howard and Park Streets.
Grace Helen Hays testified that she was learning to drive and that she and Smith exchanged positions in the front seat shortly after they parked. After they had been sitting there about five minutes and Smith had kissed her once, a large rock crashed through the right door glass of the car and she heard a voice shout: “I am tired of this fucking here.” She saw the form of a man standing on the curb with his head above the car. As the car door opened Smith turned to his right and said: “Mister, please don’t hurt my girl,” and then said to Grace Helen, “Don’t get shook, I am shot.” Smith then got out of the car. The man she later identified as the appellant then walked in front of and to the left side of the car and said to Grace Helen: “Come on ont — I have been laying for you.” He seized her by the shoulder and forced her from the car. She fell to the ground and rolled under the car. He then said: “Come on out, I am going to kill you anyway,” and she replied: “Mister, I will do anything.” As he forced her into an alley with a pistol against her back, he asked her about her husband, her parents and where she lived. He then forced her to lie on the ground where he kissed her, placed his fingers in her privates after making her remove her undergarments. He then forced her to engage in an unnatural sexual act at gun point. After also placing his penis in her privates he released her with the warning that she not “holler or call the police.” She drove the car directly to her home, reaching there about 9:45 p. m. and the police were notified and given a description of the appellant whom she had not known previously.
After young Smith left the car he staggered to the home of Nace Bradford, a short distance from the car and slumped on his front porch. Bradford called an ambulance and Smith was taken to a hospital where he died shortly thereafter as a result of a wound caused by a bullet which entered his left side and came to rest in his right hip bone.
On May 4,1957, appellant was taken into custody by Little Bock police in connection with another shooting at Gillham Park. Two Little Bock detectives, D. M„ Cox and O. A. Allen, testified that on May 7, 1957, appellant freely and voluntarily admitted he shot someone at the scene of the killing when he came upon a couple in a car on the night of December 26, 1956; that he read the next morning that it was Smith; that he did not want to visit the scene of the shooting again; and that a day never passed that he didn’t think about the-killing. He made the same statement the next day to> the prosecuting attorney and other officers. Grace Helen was called home from college and was positive in her identification of the appellant as her assailant on the night in question and picked him out of a police line-up. She and others testified there was a street light and other lights shining in the vicinity of the killing on the night of December 26, 1956. She also stated the night was clear and that the lights in the vicinity enabled her to get a good look at the appellant while they were in the alley and that she particularly noticed his mustache and the outline of his hair.
Appellant had lived within a block of the scene of the killing for about 18 months prior to August, 1955, and had known Nace Bradford for many years. When officers visited the scene on the night of the killing, they found shattered glass where the car had been parked and a purse belonging to the prosecuting witness where she had told them she dropped it. In the excitement she was unable to distinguish between the crash of the window of the car door and the noise of a gun and did not know that a shot had been fired until the deceased told her he was shot.
Appellant testified he made the confession as the result of a beating administered to him by Officer Allen in a lonely graveyard west of Little Rock where he said the officer took him while they were on their way to State Police Headquarters on May 7th. This was denied by Allen and there were other facts and circumstances in contradiction of appellant’s version of the route taken and injuries he claimed to have sutained as a result of a beating by the officer. Appellant and his wife also testified that he did not leave home on the night of the killing.
We must, of course, consider the testimony in the light most favorable to the State in determining its sufficiency to sustain the verdict. When this is done we hold the evidence sufficient to sustain the charge that there was either a willful, malicious, deliberate and premeditated killing of Smith by the appellant or that the latter killed Smith in the attempt to perpetrate a rape upon the person of Grace Helen Hays. It follows that the trial court committed no error in refusing appellant’s request for a directed verdict of not guilty.
Appellant next assigns error in allowing the prosecuting attorney to amend the information to charge that the offense was committed by appellant while in the attempt to perpetrate the crime of rape as provided by statute (Ark. Stats., Sec. 41-2205.) Amendments like this which change neither the nature nor the degree of the crime charged are permissible under Ark. Stats., Sec. 43-1024. See Underwood v. State, 205 Ark. 864, 171 S. W. 2d 304.
In response to appellant’s motion for a bill of particulars, the State detailed the time and place of the alleged commission of the offense. The response further stated that the State would also rely on the additional allegation that the offense was committed by appellant while in the attempt to perpetrate the crime of rape as set out in the amended information. Appellant’s complaint of the insufficiency of the bill of particulars is without merit. The information, unaided by the bill of particulars, fully complied with Ark. Stats., Sec. 43-804. This statute provides that the bill of particulars shall state the act relied upon by the State in sufficient details as formerly required by an indictment, that is, with sufficient certainty to apprise the defendant of the specific crime with which he is charged in order to enable him to prepare his defense. The information here met all requirements of the statute and the bill of particulars gave still further details and information as to the charge. Brockelhurst v. State, 195 Ark. 67, 111 S. W. 2d 527; Ragsdale v. State, 222 Ark. 499, 262 S. W. 2d 91.
Error is next assigned in admitting a photograph of the body of the deceased. In doing so, the trial court admonished the jury that the picture was admitted solely for the purpose of showing the nature, extent and location of the bullet wound and not to inflame their minds in any matter. The admission and relevancy of photographs is a matter resting largely in the discretion of the trial judge, and we find no abuse of that discretion in this case. As we said in Oliver v. State, 225 Ark. 809, 286 S. W. 2d 17: “ Admissibility of photographs does not depend upon whether the objects they portray could be described, in words, but rather on whether it would be useful to enable the witness better to describe and the jury better to understand, the testimony concerned. Where they are otherwise properly admitted, it is not a valid objection to the admissibility of photographs that they tend to prejudice the jury. Competent and material evidence should not be excluded merely because it may have a tendency to cause an influence beyond the strict limits for which it is admissible. ’ ’
Appellant next contends the court erred in allowing his confession to be introduced into evidence. It is argued that it was not made freely and voluntarily in that it was made while appellant was in custody and before he was taken before a magistrate. The trial court followed the approved practice of first hearing the testimony in the absence of the jury as to the circumstances under which the confession was given and then submitted the question as to whether it was freely and voluntarily made to the jury on the conflicting evidence, admonishing them to disregard the confession unless it was voluntarily made. We have held in State v. Browning, 206 Ark. 791, 178 S. W. 2d 77, and several subsequent eases, that the failure to have a warrant of arrest and to take the accused before a committing magistrate does not prevent a confession made to officers from being admissible if the jury found the confession to have been voluntarily made. See Palmer v. State, 213 Ark. 956, 214 S. W. 2d 372, certiorari denied in 336 U. S. 921, 69 S. Ct. 639, 93 L. Ed. 1083. There is no evidence of a continuous inquisition persisted in to the extent of exhausting the appellant physically or mentally and thereby overcoming his will, and his testimony that he was beaten into the confession is sharply denied by the officers and other facts and circumstances.
Appellant also insists the court erred in admitting evidence that a .38 caliber revolver was taken from his home by an officer without a search warrant. While we have held evidence obtained without a search warrant to be competent and admissible, it is undisputed that the officer entered the home of appellant and took the gun with appellant’s express permission.
Complaint is also made of the court’s action in permitting counsel for the State to ask appellant’s wife the name of his first wife on cross examination. First, the witness' stated she did not know the name of her husband’s former spouse and the appellant testified, without objection, as to the name. The scope of the cross examination of a witness is largely within the discretion of the trial court and no abuse of that discretion occurred here.
Nor do we think the trial court committed reversible error in refusing appellant’s motion to allow the jury to go to the scene of the alleged beating of appellant by Officer Allen. Appellant testified he and the officer were at the scene only a short time and that he was handcuffed to a hickory tree and fell to the slate ground at the base of the tree where the officer beat and kicked him. As previously stated, this was stoutly-disputed and there is little in the testimony indicating that a visit to the scene would have had any probative value. At any rate the question of the propriety of a view of a place where any material fact is alleged te have occurred is again a matter within the discretion of the trial court under Ark. Stats., Sec. 43-2119. No abuse of that discretion is apparent in the instant case.
We have carefully examined the other assignments of error which relate primarily to the admission of certain rebuttal testimony and general objections to certain instructions given. We find no error in these assignments. The trial court’s rulings on the admission of evidence generally were very favorable to the appellant and the instructions given have been repeatedly approved by this court. On the whole case we find no prejudicial error, and the judgment is affirmed. | [
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Carleton Harris, Chief Justice.
Appellant instituted a suit for damages alleging that he was seriously injured by the action and negligence of appellee in striking him at the intersection of 10th and Broadway in Little Rock. Appellee answered, denying the allegations, alleging that any damages were caused solely and proximately by appellant’s own negligence. Unavoidable accident was further pleaded. Previous to the voir dire examination, appellant’s attorney requested in Chambers that he be permitted to ask the following questions of the jury panel during such examination.
‘ ‘ One. Have you ever been in the employ of a liability insurance company? Two. Do you own any stock in a liability insurance company at the present time? Three. Are you insured with a mutual benefit liability company where your premiums are determined upon the size of judgments given in personal injury actions for the previous year?”
The court ruled that counsel could ask the first two questions, but sustained an objection to the third. After returning to the courtroom, the court made a statement to the panel, explaining the general nature of the case, and interrogated the prospective jurors relative to their knowledge of the cause, representation by any of the attorneys, any relationship to any of the attorneys, and whether there was any reason why any juror could not try the case impartially if selected. The following colloquy then took place:
“Mr. Moody: (Counsel walks to pleading bar and turns and directs his question to counsel for the defendant sitting close by). ‘What is the name of that insurance carrier that has the coverage on your client’s automobile?’ Mr. Sharp: ‘Your Honor, I want to be heard on that. ’
Thereupon, Counsel for both parties approached the bench and an off-record discussion was had between the Court and counsel for the respective parties.
The Court: ‘Ladies and gentlemen, are any of you connected with or do yon own any stock in the Preferred Eisk Insurance Company, an Arkansas corporation, or do any of you have any close relatives that are employed by or owns stock in that company?’
Thereupon, Mr. Sharp, counsel for the defendant, returned to his seat at the counsel table and Mr. Moody, counsel for the plaintiff, approached the pleading bar and questioned the jury, as follows: * * *”
Here, appellant’s counsel interrogated the panel relative to any employment by that company at any time in the past, any representation or business dealings with appellee’s attorneys, and whether any of the prospective jurors had ever been either plaintiffs or defendants in a personal injury suit. Upon submission of the case, the jury returned a verdict for appellee. For reversal, appellant relies upon two points.
I.
The Court erred in refusing permission to plaintiff’s attorney to interrogate prospective jurors on the voir dire respecting their interest in or connection with liability insurance companies.
II.
The Court erred in refusing permission to plaintiff’s attorney to interrogate prospective jurors on voir dire as to their ownership of stock or employment with any liability insurance companies, and as to mutual benefit insurance determined by judgment given in personal injury actions for the previous year.
These will be considered together in our discussion.
The exact questions, heretofore mentioned, were approved in Dedmon v. Thalheimer, 226 Ark. 402, 290 S. W. 2d 16. In that case, the trial court refused to allow any of the questions to be asked; here, the court ruled that the first two might be propounded, but not the third. Appellant complains that he was effectively deprived of even asking the first two questions, because the court took over the interrogation, and did not ask the questions in the manner in which they had been requested. We have searched the record and find nothing therein which indicates that the court, in any manner, prohibited counsel from asking the first two questions. Counsel had been informed in Chambers that the two questions could be asked, and the record discloses no further remarks by the trial judge to the jury panel, or to the attorneys, other than those heretofore mentioned. We accordingly are unable to agree that the court’s action in asking the questions relative to ownership of stock, or close relatives in the Preferred Bisk Insurance Company, amounted to “taking over” the interrogation, or precluded appellant’s counsel from requesting the information in questions one and two. In fact, as previously shown, other questions were asked, and counsel’s examination of the jury appears to have been entirely unhampered (except as to the third question). While we said in the Dedmon case, supra, that the question excluded was proper, we do not see that, under the circumstances, appellant was prejudiced by the refusal of the court to permit the question. The court questioned the panel specifically in regard to the Preferred Bisk Insurance Company. These questions certainly would convey the impression that if an insurance company were interested, it was this company. Mutual companies return dividends to their policy holders in the form of a credit to be applied upon premiums that become due. This credit is, of course, affected by the size of judgments given against the company in the previous twelve month’s period. There being no answer to the court’s questions relative to the Preferred Bisk Insurance Company, it is apparent that no prospective juror held a policy with that company. Since any holder of a mutual policy on the panel would have recognized that his or her company was not involved, they would likewise have known that their dividend credit would not he affected by the outcome of the litigation.
Actually, the court’s interrogation resulted in the jury obtaining information relative to insurance which they should not have properly received, and which, under usual circumstances, could have been expected to inure to the benefit of appellant. In fact, under our holding in Delong v. Green, 229 Ark. 100, 313 S. W. 2d 370, such a statement by the court, if properly objected to by appellee, would have necessitated a reversal, had appellant obtained a judgment. At any rate, it would appear, that when the court asked these questions, counsel was apparently satisfied as far as any examination relating to insurance was concerned, for he did not even proceed to ask the two questions for which permission had already been obtained. We are persuaded that appellant’s contentions are not well taken, and that no reversible error was committed by the court.
The judgment is affirmed.
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Carleton Harris, Chief Justice.
J. L. Jacobs operated an automobile motor company in Fort Smith under the name of Jacobs Motor Company. On September 24, 1955, Jacobs and wife, Mary Virginia, executed their promissory note to appellee in the sum of $3,000, due 90 days from date, and bearing interest at the rate of 6 per cent per annum until paid, representing borrowed money, which was deposited by Jacobs in Ms bank account with, appellee for use in his business. To secure the payment of said note, Jacobs and wife executed and delivered to the bank a second mortgage on certain real estate situated in Sebastian County. At the same time they executed a chattel mortgage on various household items. On December 27, 1955, Jacobs made a payment to the bank of $500 on the principal of said note, and paid the interest, leaving a principal balance due of $2,500, and on the same date, Jacobs and wife entered into a written extension agreement, which was attached to the note, extending the maturity date thereof to March 23, 1956. On January 31, 1956, Jacobs executed an additional promissory note to the bank for $6,000 for borrowed money, due on demand, for the purpose of obtaining money to use in his business. On February 6, 1956, apparently using a portion of the money obtained by the execution of the note on January 31st, Jacobs paid to the bank the principal balance of $2,500, and interest due on the note executed September 24, 1955, and extended to March 23,1956, and accordingly remained indebted to the City National Bank in the principal sum of $6,000. On April 21, 1956, Jacobs paid appellee $1,000 on the principal of said note together with interest, and executed a new note, due in 90 days, in the amount of $5,000, as a renewal thereon. Thereafter, the note was successively renewed without payment (except for interest) until October 18, 1956, when it was last renewed by the execution of a note by Jacobs to the bank in the sum of $5,000, due and payable 90 days from date, and bearing interest at the rate of 6 per cent per annum until paid. The mortgage of September 24,1955, was not released when the balance due on the note of same date was paid the bank on February 6, 1956, and under the bank’s contention, the mortgage was intended also to secure any future advances made to Jacobs. Suit ivas instituted against Jacobs and wife on April 15, 1957, for the sum of $5,000 (the amount due under the note of October 18, 1956) and sought to foreclose the mortgage, heretofore referred to, taken on the property in 1955. Jacobs counterclaimed for $6,000, alleging that the bank had illegally taken possession of certain of his motor vehicles, and wrongfully disposed of them at a price greatly under the actual value, and sought damages in the aforesaid amount. To explain the counterclaim, we relate the following facts. Jacobs would take a buying trip, and buy several cars. He would return to the bank, execute a chattel mortgage and note in blank, and discuss with the proper bank official the cars he had bought, giving them the necessary information about the automobiles, motor and serial numbers, etc. The bank would fill in the mortgage, listing the said cars by description, fill in the amount they would loan on the cars, and give this amount to Jacobs. Jacobs would sell to a prospective purchaser, and a conditional sales contract and note would be executed by the purchaser, and given to the bank after endorsement by Jacobs. He would then receive credit for the amount contained in the conditional sales contract, on the note which he had signed under the chattel mortgage, less $25 which went into a special account designated “Reserve Account.”
Sometime in January or February of 1956, Jacobs was informed by his doctors that he had cancer, or cirrhosis of the liver, and on February 8th, he left for Mayo Brothers Clinic for examination. The next day, several bank officials went to Jacobs’ used car lot, taking with them a letter which had been prepared and typed at the bank. The letter was directed to Edward Reed, president of the City National Bank, and advised the bank that Jacobs desired appellee to take over the cars and dispose of them in order to pay any indebtedness he might owe the bank. Jim Underwood, who had been left in charge of the lot, signed the letter. The bank thereafter proceeded to dispose of the vehicles which Jacobs had floor planned with them (for $14,-118.72), by selling them to one J. L. Swink for $9,625. Swink shortly resold them for $11,418. The ‘ ‘ Red Book, ’ ’ used by car dealers and finance companies, gave the ‘ ‘ as is” valne of the vehicles as $13,495, with average retail valne of $18,210.
On trial, the Chancellor held that the real estate mortgage dated September 24, 1955, did secure the $5,000 note dated October 18, 1956, and rendered judgment against Jacobs in the sum of $5,000, together with interest at the rate of 6 per cent per annum, $200 attorney’s fee, found that the claim of H. E. Jacobs was inferior to the lien of appellee’s mortgage, foreclosed any right, title, or interest of J. L. Jacobs and Mary Virginia Jacobs in the property, and ordered it sold. The counterclaim filed by Jacobs was dismissed. From such judgment of the court comes this appeal.
For reversal, appellant first asserts that the $5,000 note, dated October 18, 1956, was not secured by the real estate mortgage of September 24, 1955, and the court erred in holding otherwise. Next, it is contended that the bank became a trustee of the vehicles when it took possession of them, and did not comply with the provisions of the instruments, under which, it disposed of the automobiles. It is then urged that the bank, by repossessing some vehicles from the ultimate purchasers, waived the unpaid balance on them. We proceed to a discussion of each point.
In contending that the note in question was secured by the earlier mortgage, appellee relies upon the following provision in the mortgage (a printed provision and appearing in the defeasance clause):
“Now if the said mortgagors shall pay or cause said indebtedness to be paid with interest according to the terms hereof and all other indebtedness of the mort gagors to mortgagee; then this instrument to he null and void; otherwise to remain in full force and effect.” We deem this insufficient since one of the mortgagors was Mary Virginia Jacobs, who owed no other indebtedness to the bank, and did not subsequently execute any notes. While there is testimony that the bank intended the mortgage to cover future loans, it is noticeable that the mortgage provides that the mortgagors shall keep the property insured in the amount of $3,000. It would seem logical that if the mortgage were intended to cover other indebtedness, the clause would have read “in the amount secured by this mortgage.” Be that as it may, we consider the language insufficient to accomplish the result sought by the bank. In the case of American Bank & Trust Co. v. First National Bank of Paris, 184 Ark. 689, 43 S. W. 2d 248, this Court said:
“One may execute a valid mortgage to secure a debt to be contracted in the future (citing earlier cases) but, in order to do so, there must be an unequivocal agreement in the instrument itself that it is given for debts to be incurred in the future. * * * ”
In the same opinion, quoting from Word v. Cole, 122 Ark. 457, 183 S. W. 757, the Court further said:
“ ‘The effect of our cases is that a mortgage to secure future advances * * * is valid, but, if such purpose is intended to be accomplished, that fact must clearly appear from the instrument, and such purpose will not be presumed where the instrument does not contain a general description of the indebtedness secured so as to put one who examines it on notice that this was its purpose in order that such person may pursue the inquiry which such knowledge would suggest.’ ”
Further:
“Where one contracts in good faith with a debtor that the security given should include not only that specifically mentioned in the mortgage bnt other indebtedness, whether existing then or to be incurred in the future, it is not difficult to describe the nature and character thereof, so that both the debtor and third parties may be fully advised as to the extent of the mortgage. Sound policy demands no less. Especially is this true where the terms of the mortgage are sought to be extended by means of the language of the defeasance clause, which is usually at the end of the mortgage and, in the prepared forms commonly in use, is in small type which escapes all but the closest scrutiny.”
Numerous other cases denote the same holding. In the instant mortgage, there is nothing said about future advances; the instrument is only a form mortgage, and falls far short of meeting the requirements set forth in American Bank & Trust Co., supra.
We do not agree with appellants in their second contention. It is argued that when the bank took possession of the automobiles, it became a trustee of the vehicles, accordingly owed the highest fiduciary duty to Jacobs, and was bound to obtain the highest possible price for them. Appellants contend that the provisions of the chattel mortgages on the vehicles were not complied with, in that before a sale of the property was authorized, same should have been advertized by “ten days notice in some newspaper published in Sebastian County, Arkansas, or by written notices posted at least five places near the property.” This admittedly was not done. A number of witnesses testified that the automobiles were sold to Swink at a price considerably less than their value, and in fact, Swink later resold them at a figure approximately $2,000 higher than the amount he had paid for them. There was some evidence that other automobile dealers were notified by the bank of the proposed sale of the cars. We consider, however, all of such evidence to be irrelevant to the question involved, for the reason that the bank was not acting as trustee. The cars were taken over by the bank at the request of Jacobs, through Underwood. Though Jacobs originally desired that the bank send a man over to his used car lot to handle the cars there, he apparently recognized that appellee likely would not be willing to do so. From the testimony of Underwood:
“Q. Did he give you authority to dispose of the ears and power to turn them over to the bank?
A. He said it would be up to the bank what they wanted to do about it.
Q. Did he tell you to turn them over to the bank if they asked for them?
A. Yeah.
Q. And the bank did ask for them and you turned them over?
A. Yeah.”
As to whether a greater price could have been obtained for the vehicles, is mere conjecture. We agree with the trial court that the bank acted in good faith, and there was certainly no reason for appellee to dispose of the cars at a price less than could have been obtained. Jacobs himself ratified and confirmed the transaction, which is shown by defendant’s exhibit 19, an analysis sheet listing the various cars, their average retail value, the amount for which each had been sold by Swink, and the total amount of loss resulting from the sales. This was prepared by Jacobs on March 27th, when most of the vehicles had been disposed of. Jacobs had written on the bottom of the sheet: “I owe $5,000 note less res. $1,697.95.” Thus, Jacobs recognized his indebtedness under the note in question, and apparently had no thought that the bank had acted improperly, or beyond its authority, in disposing of the automobiles.
Nor can we agree with appellants’ third contention. As already stated, we do not characterize the bank’s action as “repossessing” the vehicles; rather, with the authority and consent of Jacobs, the bank undertook to help him out of a bad situation and 'minimize his losses. The reserve was applied against such losses, and this was with the authority of Jacobs, who, on February 23, 1956, wrote the bank to “Please release as much of my reserve as you can to apply on my indebtedness to the City National Bank.” Jacobs contends that the judgment should have at least been reduced by $1,908.45, the balance remaining in the reserve account at the time of the trial. Appellee admits that after all contracts are liquidated, Jacobs will be entitled to credit on the bank’s judgment for any amount of the reserve remaining.
We conclude that the court’s action in dismissing the counterclaim was proper.
For the error in holding that the note of October 18, 1956, was secured by the real estate second mortgage of September 24, 1955, that portion of the decree is reversed, and the cause remanded with directions to enter a decree not inconsistent with this opinion.
A first mortgage was held by F. W. Dyke, trustee for the United Savings Association, which was recognized by appellee as being superior and paramount to the bank’s mortgage. The property was later conveyed by Jacobs and wife to one H. E. Jacobs, a party appellant in this case, but the effect of such conveyance is not emphasized by any of the litigants herein.
The chattel mortgage was subsequently released by virtue of the payment of an agreed amount of money and is not now considered in this litigation.
Prior to this date, Jacobs had executed other notes to the bank and obtained money therefor in the course of conducting his business, and had repaid such loans.
The letter was prepared after previous conversation between Underwood and one of the bank officials.
Emphasis supplied.
Mr. and Mrs. Jacobs owned the property as tenants by the entirety. | [
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Paul Ward, Associate Justice.
Petitioner here seeks to enjoin the Chancery Court of Washington County from proceeding in a cause there pending on the ground that it is an action against a State Commission. Petitioner’s contention is that in such action only the Pulaski County Chancery Court has jurisdiction under Ark. Stats. §§ 27-603 and 34-201. The respondent asserts that the Chancery Court of Washington County has jurisdiction under Ark. Stats. § 27-601.
Since one phase of this matter was before us previously (see State Ex Rel. Ark. Publicity & Parks Comm. v. Woodward, 228 Ark. 856, 310 S. W. 2d 803) we by-pass consideration of the procedural method here pursued.
On February 28, 1957 Neil W. Woodward filed a petition in the Chancery Court of Washington County against the Petitioner wherein he claimed to be the owner of the S% of SE%, Sec. 23, Twp. 13 N., Range 31 W. in Washington County, deraigning his title from the Federal Government. Woodward further alleged that said lands were wild and unimproved, and that he and his predecessors had paid all the taxes since 1926, and; That petitioner unlawfully and wrongfully took possession of a part of said land for park purposes under claim of title through a deed from the State based on a void tax sale for the 1930 taxes. The complaint further states that volume 287 in the clerk’s office showing the forfeiture of said lands in 1930, at page 501, bears the marginal notation “Cancelled Chancery Court Decree April 20, 1940, D. L. Moore, Clerk”. The complaint contains a copy of the Decree in a suit brought by the State to quiet title to the lands in question in Washington County, which shows that on April 20, 1940 the Chancery Court dismissed the State’s claim to the land here claimed by Woodward, and it is stated that no appeal had been taken by the State. Also attached to the complaint is “Exhibit 1” which is captioned “State Land Office, James H. Jones Commissioner, Entry Statement”. It is to the effect that the State has no claim to the questioned land, and that it has no record of a conveyance of any part of said land to the Petitioner. The complainant further alleges that the Petitioner is claiming some right, title or interest in said lands by reason of a dedication deed from the Commissioner of State Lands dated January 22, 1935, and recorded in the clerks office of Washington County; and that said deed and the other instruments above mentioned constitute a cloud upon the title to his land.
The prayer was that said clouds be removed from complainant’s title and that title to said property be vested in him as against the Petitioner herein, and, further that petitioner be commanded “to remove any improvements placed upon said property . . .”
To the above complaint Petitioner entered a demurrer on the ground that the “court has no jurisdiction of the person of the defendant or the subject matter of this action.” The Respondent overruled the demurrer, and Petitioner here asks us to prohibit Respondent from proceeding further in this cause, and asks that the action there pending be ordered transferred to the proper tribunal in Pulaski County.
It is our conclusion that the Respondent was correct in overruling the demurrer. Ark. Stats. § 34-201 reads, in relevant part, as follows: “. . . all actions against such board or commissioner or state officer, for, or on account of any. official act done, or omitted to be done, shall be brought and prosecuted in the county where the defendant resides . . .” § 27-601 in relevant part, states that actions for the recovery of real property, or of an estate or interest therein must be brought in the county in which the subject of the action (land) is situated.
The present action was, we think, one affecting title to land, as set out in the last mentioned statute, and was therefore properly brought in Washington County. Since a demurrer admits all allegations in the complaint, the present action amounted to an attempt by Woodward to have certain void deeds and entries removed as clouds upon his title. In other words it was an action to quiet title. We have held many times that such an action is properly brought in the county where the land is situated. See Fidelity Mortgage Company v. Evans, 168 Ark. 459, 270 S. W. 624. An action to remove a fraudulent deed as a cloud on title to land comes within the same statute. See McLaughlin v. McCrory, 55 Ark. 442, 18 S. W. 762.
The present action was not such an action against the State or Commission as falls within the purview of § 34-201, since it sought to impose no obligation upon the State. In Federal Compress & Warehouse Co. v. Call, 221 Ark. 537 (at page 541), 254 S. W. 2d 19, this court in dealing with this question stated: “No money judgment is sought against the state — only the enjoining of allegedly void rulings,” etc., and held the action not to be against the State. We said in Hickenbothan v. McCain, Comm’r of Labor, 207 Ark. 485 (at page 490), 181 S. W. 2d 226, “But if the relief prayed is granted no obligation is imposed upon the state. It is, therefore, not a suit against the state.” See also Wilson v. Parkinson, 157 Ark. 69, 247 S. W. 774. In the case under consideration, taking the allegations of the complaint to be true, Woodward sought to impose no obligation upon the State.
The suit brought by Woodward is in effect an action to clear certain clouds from the title to his land in Washington County. Prom a practical standpoint it appears reasonable, if not compelling, that any court proceedings or decrees affecting his title should appear on the records of that county. No doubt the legislature recognized this fact in enacting § 27-601. This court so found in Jones, McDowell & Co. v. Fletcher, 42 Ark. 422 at page 439 when it said: “It is very clear that the Legislature intended, in the adoption of section 4532 Gantt’s Digest (Ark. Stats. § 27-601) as a part of our code procedure, to make all actions, whether at law or in equity, where the judgment or decree is to operate directly upon the estate or title, local, and to restrict the remedy to the proper tribunal of the county where the subject of the action, or some part of it, is situated”.
For the reasons heretofore set out the writ is denied.
We have not overlooked that Woodward asked for a mandatory injunction requiring Petitioner to remove any improvements placed upon the land. We think this in no way affects the main issue considered above, because there is no proof that any such improvements have been placed on the land. This feature of the case may or may not arise when and if the cause is tried on its merits.
Denied. | [
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George Rose Smith, J.
This is a suit by the appellees for a mandatory injunction to require the appellants to remove two fences that they have erected across what is asserted to be a public road. The chancellor granted the relief prayed. Substantially the only contention made on appeal is that the maintenance of a gate across the road for many years compels the conclusion that the public’s use of the way has been merely permissive.
The several parties all own farm land on what is known as Morrison Island or Watermelon Island. This so-called island consists of twelve or thirteen hundred acres lying between the Ouachita River and an old river bed that is now a slough. For a good many years the various landowners have, by common consent, maintained a single fence around the entire island.
The great weight of the evidence shows that the road in question has existed for seventy-five years or more. It -provides access to the island from a nearby county highway. The road enters the island through a gate in the perimeter fence, crosses the land owned by the appellant Martin, and runs thence to lands owned by the four appellees and others. Throughout its life the road has been used by the landowners of the island and by the general public; at times it has been worked upon by the county. If it were not for the gate at the entrance to the island there would be no good reason to doubt the public’s prescriptive right to use the road.
This dispute arose when Martin, and the other defendants at his direction, placed two fences across the road at points on Martin’s land. In insisting that the long-continued existence of the gate entitles him to close the road Martin relies upon our settled rule that the public loses its prescriptive right in a road when it acquiesces for more than seven years in a landowner’s maintenance of a gate across the road. Porter v. Huff, 162 Ark. 52, 257 S. W. 393. The reason for the rule, as we observed in the Porter case, is that the gate gives notice to the public that they pass through the land by permission of the owner and not as a matter of right.
To apply the rule to the particular facts of this case would extend it beyond the reasoning on which it is based. To begin with, the gate was not situated on the land that Martin owns; so the gate could hardly be regarded as notice to the public that their passage across that particular land was by permission of its owner. Upon somewhat similar facts we held, on rehearing, in Stoker v. Gross, 216 Ark 939, 228 S. W. 2d 638, that a landowner is not entitled to close a road across his land merely because another landowner has maintained a gate at a different point on the road. See also Holmes v. Pierce County, 121 Wash. 56, 208 P. 7.
The proof does not support Martin’s effort to distinguish the Stoker case on the ground that here Martin’s predecessor in title, Henry B. Means, Sr., mistakenly believed that the gate was on the land that Means owned. Means acquired the land in 1915 and owned it until his death in 1950. The gate was near the Means barn and was sometimes referred to as the Means gate, but it was actually on adjoining land owned by the appellee Sibley. Coley Buck, who supervised the Means farm for thirty-four years, testified positively that Means never laid claim to the land where the gate is. GK B. Sibley and Charles Crow gave similar testimony. Henry B. Means, Jr., evidently believed that the gate was on the Means land, as he once kept the gate locked for two or three days, but he frankly admitted that his assumption was based on hearsay. On the whole record we are not convinced that the elder Means relied upon the gate as a protection against the creation of an easement.
In the second place, the gate was not maintained .even by its owner as a means of asserting his dominion over the road. There is abundant evidence that the perimeter fence, including the gate, was kept in repair by the community as a whole, to protect the island lands against the intrusion of cattle during the crop seasons. Everyone concerned helped in the maintenance of the fence, the gate, the bridge across the slough, and even the road itself. We are by no means persuaded that the various landowners, in assuming their fair share of the responsibility for the fence, the gate, the bridge, and the road, had the slightest notion or intention of demonstrating by their maintenance of the gate that their use of the road was merely permissive. It is much easier to believe that they used as a matter of right the facilities that they themselves had created.
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J. Seaborn Holt, Associate Justice.
On a charge of the crime of rape (Sec. 41-3401 Ark. Stats. 1947) appellant, Adams, was convicted of assault with intent to commit rape (Sec. 41-607 Ark. Stats. 1947) and his punishment fixed at a term of three years (the minimum) in the state penitentiary. Prom the judgment is this appeal.
The prosecuting witness had a “blind” date with Adams on the night of July 21, 1957, and accompanied him in a car to a drive-in movie. During the show Adams made such improper advances towards her that she got out of the car. After the movie was over appellant borrowed a car and started to take her home, however, before arriving there Adams turned off on a side road, began trying to assault her and when she jumped out of the car appellant ran after her, caught her, threw her on the ground and forcibly and against her will had sexual intercourse with her.
Appellant concedes that the evidence was sufficient to support the verdict of the jury but earnestly contends that reversible error was committed by remarks of the prosecuting attorney in his opening and closing arguments to the jury. In this connection the record reflects: “Opening Argument — By Mr. Lee: Now gen tlemen of the jury I don’t charge people with anything . or for any crime unless I know what I am doing. Mr. Moncrief: If the court please we object to the statement that Mr. Lee just made, that he doesn’t charge-people with anything or any crime unless he knows what he is doing and that is the exact statement that he made and we are objecting to it, and we would like the court to tell the jury to disregard it. The court: Gentlemen of the jury Mr. Lee wasn’t a witness to this case and he has only acted by his official duties that is required by him and you are to consider the case on the law and the evidence that is introduced and not on the argument of counsels. Mr. Moncrief: Note the defendant’s exceptions. Closing Argument — By Mr. Lee: Now, gentlemen if you turn this man loose go home and tell your daughters that you made it really hard for them today because you turned a man loose that can run over them and take anything from them he wants to and then come up here and tell cock and bull story and get away with it. Mr. Moncrief: If the court please we object to the statements that Mr. Lee just made. Mr. Lee is trying to compare the juror’s daughters with some girl that goes out on blind dates and I am sure that none of the jurors try to get blind dates for their daughters or even allow their daughters to go out on blind dates and we are objecting to the statements that Mr. Lee just made, that if they turn this boy loose that he can run over their daughters and take anything away from them he wants to and then come up here and tell some cock and bull story and get away with it. The court: As I have told the jury before that you are not to consider the case on the arguments of counsels but on the law and the evidence introduced. Mr. Moncrief: Note the defendant’s exceptions.”
We have concluded that appellant was correct in his above contention and that the judgment must be reversed for the above error. The duty and responsibility of a prosecuting attorney is a high and important one, and has been announced by this court many times. It is as much his duty to protect the innocent as to convict the guilty. In Holder v. State, 58 Ark. 473, 25 S. W. 279, we said: “A prosecuting attorney is a public officer ‘acting in a quasi judicial capacity.’ It is his duty to use all fair, honorable, reasonable and lawful means to secure the conviction of the guilty who are or may be indicted in the courts of his judicial circuit. He should see that they have a fair and impartial trial, and avoid convictions contrary to law. Nothing should tempt him to appeal to prejudices, to pervert the testimony, or make statements to the jury which, whether true or not, have not been proved. The desire for success should never induce him to endeavor to obtain a verdict by arguments based on anything except the evidence in the case and the conclusions legitimately deducible from the law applicable to the same. To convict and punish a person through the influence of prejudice and caprice is as pernicious in its consequences as the escape of a guilty man. The forms of law should never be prostituted to such a purpose.” See also Kansas City, Ft. Smith & Memiphis RR Co. v. Sokal, 61 Ark. 130, 32 S. W. 497.
In reversing the judgment for prejudicial remarks of the prosecuting attorney, similar in effect to those in the present case, in the case of Hughes v. State, 154 Ark. 621, 243 S. W. 70, we used this language: “Lastly, appellant contends that his rights were prejudiced by the following statements of the prosecuting attorney made in closing the argument, to-wit: ‘I know he is guilty, I am willing to meet my God in the next hour knowing that Hughes is guilty, because I am thoroughly convinced. I have examined the testimony and know so much about it, and know things that never get to anybody else.’ When this statement was made, the counsel for appellant objected, and the court stated that the argument of the prosecuting attorney was improper and the jury should not consider it. The statement was an attempt on the part of the prosecuting attorney to testify. He, in effect, said that he was in possession of facts which could not be revealed to the jury, but which riveted conviction upon appellant. Coming from a sworn official, the remark was calculated to make a deep impression upon the minds of the jurymen. It cannot, perhaps, he classed with remarks the effect of which cannot be removed even by a solemn admonition of the court, but it was certainly a flagrant violation of the right of appellant to a fair and impartial trial vouchsafed to him by the Constitution and laws of the State of Arkansas. Considering the highly prejudicial character of the remark, its effect could not be removed by a mild admonition of the court.”
As indicated, we hold that the above remarks of state’s counsel were highly improper and prejudicial to appellant’s rights. His remarks referring to the daughters of the jurors were improper and inflammatory and tended to arouse passion and prejudice. “.The appeal to the jury to put themselves in plaintiff’s place was improper. One doing that would be no fairer judge of the case than would plaintiff herself. Dallas Ry. & Terminal Co. v. Smith, 42 S. W. 2d 794. The fact must be very plain to justify a lawyer in declaring his opponent’s case to be trumped up,” F. W. Woolworth Co. v. Wilson, 74 Fed. 439, 98 A. L. R. 681. Here the mild rebuke of the court was not sufficient to remove from the minds of the jury the damage done.
Since the judgment must be reversed and remanded for a possible new trial for the above error, we do not discuss the other assignments of alleged errors, other than to point out that we think the prosecuting attorney was allowed too much latitude on his cross-examination of appellant, Adams, and that the trial court abused its discretion in permitting it. While our rule is that a defendant when he submits himself, as here, to cross-examination is in the same position as any other witness, and in testing his credibility may be asked about previous convictions of offenses and about his personal habits and associates, we think improper and prejudicial questions were permitted. Over appellant’s objections and exceptions the prosecuting attorney was permitted to ask appellant: “Q. Did you ever assault an other female? A. No, sir. Q. Did you ever assault a Mr. Emmett Honn’s daughter? A. No, sir . . . Q. Did you assault a woman down at Eadel? A. "Where? Q. Eadel? A. Never been down there. Q. You have never been down there or in that county? A. Not that I know of.” We think these questions were highly prejudicial and improper in the circumstances. The record before us fails to show, in the slightest degree, that appellant had ever assaulted any other woman. Without any basis of fact whatever, the state’s counsel was permitted to question appellant about imaginary assaults of two other women, which obviously, we think, would tend to inflame the minds of the jury against appellant.
The judgment is reversed and the cause remanded for a new trial.
Mr. Justice McF addin dissents. | [
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Smith, J.
Appellant Altman employed appellee Sproles to build three dwelling-houses in the city of Helena. Altman prepared a memoranda of the agreement, but it is quite obvious that the writing which the parties signed did not embody the entire contract. The provision relating to the consideration to be paid reads as follows: “That the contractor agrees to building for J. L. Altman on his lot on the corner of Beech and York streets, in the city of Helena, State of Arkansas, three houses, as agreed, for the sum of $6,000, to be paid as follows: Pay-roll every week, and for materials as presented when O. K. by H. Sproles.” The houses were to each have four rooms and a bath, but nothing was said about closets, nor was anything said in the writing about the material, except that “the contractor agrees to build the houses in a first-class, workmanlike manner, and agrees to leave the lots in a clean condition.”
To indemnify the owner, the contractor executed a bond, with appellee Hightower as surety, to fully indemnify and hold the owner harmless against any and all loss, including laborers’ and mechanics’ liens and liens for materials furnished.
This bond contained the following stipulation: “Any alterations made by agreement by and between the said Henry Sproles (the contractor) and the said Julius Altman (the owner), in the terms of the contract, or the nature of the work to be done, or the giving to the said Henry Sproles, or his executors, administrators, or heirs, any extension of time for performing said contract, or any of the stipulations therein contained and on the part of the said Henry Sproles to be performed, or any forbearance on the part of the said Julius Altman to the said Henry Sproles, his heirs, executors, or administrators, shall not in any way release the said Henry Sproles or the surety in this bond. ’ ’
After the completion and acceptance of the buildings and the payment to Sproles of the contract price, a materialman filed a claim for a lien and recovered judgment for materials furnished amounting to $1,235.34, and Altman was required to pay the judgment, whereupon he sued on the bond which Hightower had executed as surety.
Altman testified that he and Sproles agreed on the plans of the buildings, and that he did not authorize any changes, and none were made; that there were some additions, but these he paid for, and that he authorized no changes in the materials, and none were made, and he denied that certain plans which Sproles offered in evidence had been agreed upon as the plans for the buildings.
Sproles testified that he prepared rough plans for the buildings, and Altman approved and accepted them. These plans did not provide for any closets, yet Altman directed that three be built in each house, and the cost of each closet was around $75. The plans called for a foundation of plain brick, but Altman required that the foundations be stucco. No. 2 lumber was to be used in the houses, but Altman directed that No. 1 be used, and there was a difference of between thirty and thirty-five dollars per thousand feet in the price. The contractor testified that the changes in the plans and materials which Altman ordered added $1,300 to the cost of the buildings. He also testified that the extras for which Altman paid him were fences, sidewalks and coal-houses, which were'not in the original contract at all.
The dealer who furnished the materials for the buildings testified that the price of the first estimate of the materials to be used in the buildings was $2,700, but that the materials actually used amounted to $3,500, and that the 'difference arose not only from the change in the grade of materials but also from the quantity used.
The court gave, at the request of Altman, instructions which, in effect, told the jury to find for him if they accepted his statement of the transaction as true; but the court declined to give an instruction numbered 2, reading as follows: ‘ ‘ You are instructed that any 'change or alterations in the original contract between Henry Sproles and J. L. Altman will not in any manner release the defendant, Carey Hightower, from liability on the bond sued on in this action. You are further instructed, in this connection, that any extension of time for performing the said contract, or any stipulations contained in the contract, will not in any way release the defendant, Carey Hightower, from his liability on said bond, for the reason that it is agreed in the face of the bond itself that any alterations made by agreement between Henry Sproles and Julius Altman under the terms of the 'contract shall not release the said Henry Sproles.”
At the defendants’ request the jury was told to find for the defendant surety if material changes were made without his consent.
Instructions numbered 2 and 3 were given at the request of the defendants, over plaintiff’s objections. These instructions read as follows:
“2. If you find from the testimony in this case that the class of lumber that was used in the erection of the houses by the defendant was changed from grade No. 2 to grade No. 1, and that such change was made after the bond upon which this suit is brought was signed and delivered, and if you find that such change in the grade of lumber was made without the consent of Carey Hightower, and that such change was material, then you will find for the defendant, Carey Hightower.”
“3. The jury is instructed that, in determining whether the changes in the building contract, if any, were material, yon are instructed that any change of a substantial nature in the plans of the buildings or the materials to be used, which said changes cause a substantial change in the cost of same, are material changes; and if you find that such changes were made in the building contract in this case without the consent of Carey Hightower, then you will find for the said defendant, Carey Hightower.”
After giving these instructions, the court charged the jury orally as follows: “Before you can find for the defendant in this case, you must find from the evidence that there was a material change in the construction or in the contract for the erection of these three buildings; that is, that the grade of material was changed from grade No. 2 to grade No. 1 with the consent of the plaintiff.”
There was a verdict in favor of the defendants, and judgment accordingly, and Altman appealed.
We think the giving of the oral instruction was an error which requires the reversal of the judgment. In the first place, it eliminates from the jury’s consideration any question about the foundation, or the -closets, and limits the jury’s consideration to the change of material from grade No. 2 to grade No. 1. In this respect it is more favorable to Altman than it should have been, as the jury might have found that there were changes in the foundation and in building the closets, and that these changes were material. Had there been no other error in the instruction, the judgment would not be reversed, as the error just indicated is in Altman’s favor. But the prejudicial error is in assuming that a change from No. 2 to No. 1 Was material. The jury might well have found that this change was material, but we have concluded this was a question of fact upon which the jury should have passed judgment,, under the instructions given by the court defining material changes. We have reached this conclusion because the evidence is uncertain as to the extent of the increased cost due to change of grade in materials. Much of the increase of cost might be accounted for by a -change in plans, or by the use of more material than the first estimate called for.
Appellant Altman insists the judgment should be reversed because the court refused1 to charge the jury, as requested by him, that any -change agreed upon between himself and Sproles, the contractor, would not release the surety. This contention is based upon the stipulation in the bond, set out above, that any alteration made by agreement between Sproles and Altman should not in any way release the surety.
In support of this contention appellant Altman cites numerous authorities to the effect that sureties on a builder’s bond are not released by substantial changes in the plans where the bond itself authorized those changes to be mads. Among the numerous other authorities cited is the case of Woodruff v. Schultz, 155 Mich. 11. This case is very extensively annotated in vol. 16 A. & E. Cases, p. 346, and a number of decisions of .this court are cited in the annotator’s note.-
It appears that there are many cases which have held that the surety may consent in advance that material changes may be made, and when he has consented he is not released from liability after they are made. But in all the cases which we have examined (and we are sure it must be true in .all others) there was provision that the contractor or builder -should be paid the increased cost, if any there was. In principle the recent case of Kerby v. Road Imp. Dist., 159 Ark. 21, was of that character. There it was provided that important changes or alterations might be made upon the written order of the engineer, but the contract also provided that “the price covering such changes or .alterations shall.be fixed by agreement between the engineer and the contractor. ’ ’ In the instant -case the contract obligates the owner to pay only $6,000, and there is no provision by which it might be ascertained that he should in any event pay more. The recital in regard to .the price or consideration which we copied above is the only provision in regard to payment. The owner does not contend that these changes might be made after he and the contractor had agreed upon the price, but, on the contrary, he plants himself on the proposition that the contract limits his liability to $6,000 in any event; and in this he appears to be correct, and upon this theory he has sued the surety for the excess over the contract price of $6,000. His whole case is predicated upon the assumption that $6,000 is the maximum sum he was required to pay for the buildings, and by his instruction numbered .2, set out above, he asks the court to charge the jury that he and the contractor might make changes ad libitum without releasing the surety, and the instruction makes no reference whatever to any additional compensation therefor. As the contract thus limits the owner’s liability, we conclude that the changes contemplated are those which do not involve a substantial increase in the cost of the buildings.
The doctrine of the case of Miller-Jones Furniture Co. v. Fort Smith Ice & Gold Storage Co., 66 Ark. 287, is applicable here. In that case the contract provided that: “It is further-agreed that the said party of the second part may make any alterations, deviations, additions or omissions from the aforesaid plans, specifications and drawings, or either of them, which they shall deem proper, and the said architect shall advise, without affécting or making void this contract, and in all such eases the architect shall value or appraise such alterations, and add to or deduct from the amount heretofore agreed to be paid to said party of the first part the excess or deficiency occasioned by such alterations.”
Extensive changes in the plans of the building were made, which, the court held, discharged the surety, notwithstanding the authorization, contained in the con tract, to the owner to make any alterations, deviations, additions or omissions from the plans and specifications which he deemed proper and the architect advised, without affecting the contract or making it void. Because of this provision the owner sought to hold the surety, but the court, through Justice Reddick, said: “But we are of the opinion that the parties did not intend by this provision to authorize changes so extensive as the one complained of here. The provision referred to, which is set out in the statement of facts, permits such alterations to be made, even without the consent' of the contractor, and provides that the architect shall determine the amount to be paid or deducted therefor. We cannot suppose that the parties intended by this provision to permit the owner to make great and extensive changes in the plan of the building, and to force the contractor to complete it in conformity therewith, at such compensation as might be allowed by the architect. The fact that these alterations in the plan could be made without the consent of the contractor forces us to the conclusion that the alterations referred to were such minor changes as owners often wish to make in the plans of buildings while they are under construction, and which do not greatly affect the undertakings of the contractor. Dorsey v. McGehee (Neb.). 46 N. W. 1018; Consaul v. Sheldon (Neb.), 52 N. W. 1104.”
It thus appears that the court restricted the right to make changes to those which were not great and extensive, these terms being used, of course, in comparison with the subject-matter of the contract, because, as it was there said, it was not to be presumed that the contractor meant to give the owner and the architect the power to compel him to do any work the owner might desire done at such price as the architect might fix.
So here, it is not to be assumed that the parties were agreeing that the owner might have three buildings erected, upon such plans as he might finally adopt, without regard to the cost to the contractor and with a cost limit to himself of $6,000. From the testimony in this case the jury might have found that the contractor followed the owner’s direction in making the changes, under the belief that he would be paid therefor, but without any promise to that effect by the owner. Surely it was not the .purpose of the surety to guarantee the performance of such a contract, yet the owner, even now, contends that $6,000 was the full contract price to be paid by him, except, of course, for additions which were not covered by the contract at all. We think a more reasonable interpretation of the contract is that the surety consented in advance to any changes, however material, which were not so great and extensive as to cause a substantial increase in the cost of the buildings.
Of course, if there was no substantial change in the plans, the surety was liable for the increased cost, however much that excess might be over the contract price. But, on the other hand, we think the contract conferred no authorization to make substantial changes in the plans which materially increased the cost of constructing the buildings.
For the error in giving the oral instruction -the judgment is reversed, and the cause remanded. | [
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McCulloch, C. J.
This case is very closely akin to the recent case of Mitchell v. Jimmerson, 160 Ark. 248, involving road districts created by special statutes identical in terms, except as to the territory and the roads to be improved. The district involved in the present controversy is Road District No. 16 of Woodruff County, which was created by act No. 183 of the General Assemblv at the extra session of 1920. The statute is, as before stated, identical in terms with act No. 209 of the same session, under which Road District No. 15 of Woodruff County was created, and which was involved in the case of Mitchell v. Jimmerson, supra. The territory of both of the districts at the time of creation was situated within the Northern District of Woodruff County, and, since that time, the General Assembly, at the regular session of 1923, enacted a statute creating the Central District of Woodruff County (Special Acts of 1923, p. 210), and some of the territory in each of these two road districts is now situated within the boundaries of the Central District of Woodruff County.
The contention in the present case, as it was in the case of Mitchell v. Jimmerson, supra, is that the necessary effect of tiie statute creating the Central District of Woodruff County is to abolish the road districts on account of the fact that a part of the territory was taken into the new court district without any provision for levying and collecting taxes. In the former case it was held that such was not the effect of the statute merely because of the provision of § 19, requiring that separate taxbooks shall be made out in each court district, .and that the assessed benefits on lands in each district shall be extended on the taxbooks of the district in which the lands are located. The contention in the present case is that the levy of assessments on lands in Central District of Woodruff County is void because it was made by the county court sitting at Augusta, in the Northern District, and not by the court sitting at McCrory, in the Central District. This contention is unsound, for there is no requirement in either of the statutes — the one creating the road district or the later one creating the new court district — that the taxes on the lands in the new court district must be levied by the court sitting in that district. On the contrary, the statute creating the road district provides for the county court of the Northern District of Woodruff County levying the assessments. Hill v. Echols, 140 Ark. 474. The act creating the Central District of Woodruff County, as we have already said, contains no requirement for the levying of taxes of any kind by the court sitting in that district, and §15 of that statute provides that “in all matters not otherwise provided for by the provisions of this act, the county of Woodruff shall be one entire county.” This provision excludes from the terms of the act everything not included in it, and the levying of the taxes is not included.
Counsel for appellant rely on the decision in Mitchell v. Jimmerson, supra, holding that the taxes on lands in Central District must be levied by the county court sitting in that district, but such is not the effect of that decision. All that we held there was that the provision with reference to the extension of taxes on lands in the new district included improvement taxes, and that the lands might thus be included-without impairing the original statute creating the district.
We hold therefore that appellant’s attack on the assessment is not sustained.
The next contention is that the district should be enjoined from further proceedings because the county court of Woodruff County has not approved the plans and specifications adopted and filed with the county clerk by. the commissioners. The statute creating the district does not contain any requirement that the plans and specifications must he approved by the county court, and we have decided that such requirement in the statute is not essential to its validity. Easley v. Patterson, 142 Ark. 52; Gibson v. Spikes, 143 Ark. 270. There is, however, a provision in the statute creating this district which requires the commissioners to file the plans and specifications with the. county clerk, and it is insisted that this requirement implies that the county court must approve all plans and specifications before they can be acted upon. Counsel rely upon certain language found in the decision of this court in the case of Commissioners v. Quapaw Club, 145 Ark. 279. We were then dealing with a different question, namely, whether or not the statute under consideration in that case made it compulsory upon the county court to accept and maintain a bridge built through the agency of the district, and we said that the provisions for the plans and specifications to be filed with the county court implied authority on the part of the county court to pass upon these plans. We were then dealing with the Question of consent on the part of the county court, or the opportunity for the court to consent, before having the bridge and its maintenance imposed upon the county.' The question now presented is of a different character or nature, and we conclude that the mere reauirement for the filing of the plans and specifications with the county clerk does not impfy that it -is essential for the county court to make an order approving the plans before work can be begun under those plans. The requirement for the filing of the plans with the county clerk is for another purpose, that is, to afford.' landowners and others interested an opportunity to inspect the plans. But, since the approval of the county court is not essential as the exercise of a part of its constitutional jurisdiction, the statute need not contain any such requirement, and such a requirement will not he implied merely because there is a provision for filing the plans with the clerk.
This disposes of the last of the appellant’s contentions, and, as we find no error committed by the court in sustaining the demurrer to the complaint, the decree must be affirmed, and it is so ordered. | [
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Humphreys, J.
Appellee instituted suit against appellant in the chancery court of Miller County to recover $4,712.65 borrowed money, upon five separate promissory notes, and to foreclose the several mortgages given upon personal property and real estate to secure same.
The cause was submitted to the court upon the pleadings, exhibits thereto, and the testimony taken ore tenus before the court, which resulted in a finding for appellees for the amount sued for and a decree of foreclosure and sale of the lands and chattels to apply upon the indebtedness. From this finding and decree an appeal has been duly prosecuted to this court. Appellees insist upon an affirmance of the decree because the testimony has not been preserved and properly incorporated in the record.
The testimony heard by the trial court and taken down in shorthand was transcribed by the stenographer, and an attempt was made to- bring’ a transcription thereof into the record five months after the rendition of the decree, by the following agreement of counsel.
“It is agreed by and between counsel of record for the plaintiff and defendant in the above entitled cause that the foregoing pages, numbered from one to seventy-one, contain all of the evidence heard or offered in the trial of said cause, and all the exceptions thereto, and all proceedings had and done in the trial of this cause, and that the same is correct, and that, when filed by the clerk of the chancery court, shall become a part of the record in said cause as fully, completely and effectually as if approved, signed and ordered filed by order of the judge trying said cause.
“Witness our hands this 12th day of February, 1923.
“W. H. Arnold, Jr.
“Counsel for plaintiff.
“M. E. Sanderson,
“Counsel for defendants.”
The decree did not allow appellant any time within which to prepare and file the bill of exceptions, and it does not appear that the request for time to do so was made. This privilege was accorded to them by § 1318 of Crawford & Moses’ Digest. The substance and language of the agreement set out above reflects that the oral and documentary evidence was attempted to be brought into the record as an agreed bill of exceptions by authority of ■§ 1323 of Crawford & Moses’ Digest, which is as follows:
“In all cases, except indictments charging a felony, where the parties to an action agree in writing upon the correctness of a bill of exceptions by indorsement thereon, „ signed by one or more counsel of record of the respective parties, it shall be the duty of the clerk of the court in which the case is pending to at once file such agreed bill of exceptions, and the same shall be a part of the record as fully, completely and effectively as though approved, signed and ordered filed by the order of the court or judge trying the cause. Provided, said bill of exceptions is filed within the time fixed by the court for filing the same. ’ ’
No time having been requested or obtained within which to file the bill of exceptions beyond the term at which the decree was rendered, the judge trying the case could not have approved, signed, and ordered the bill of exceptions to be filed as a part of the record after the adjournment of the court. Under our statute, in order for a bill of exceptions,'prepared and filed after adjournment of court, to become a part of tbe record, it was necessary .for a day certain to have been fixed for tbe filing of same and for tbe bill to bave been approved and signed by the trial judge or agreed upon by tbe parties, and filed .with tbe clerk within tbe tbe time allowed by the court. Watson v. Watson, 53 Ark. 415; Stinson v. Shafer, 58 Ark. 110; Springfield v. Fulk, 96 Ark. 316.
As tbe oral and documentary evidence was not brought into the record by any method recognized by our practice, and, as tbe errors, complained of arise out of the testimony, tbe decree herein must be affirmed, without determining tbe issues upon their merits.
It is so ordered. | [
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Smith, J.
Appellant was tried and convicted under an indictment which charged that he “unlawfully, wilfully and feloniously did make mash, wort and wash fit for the distillation and manufacture of alcoholic liquor, the said P. H. Dickerson not being a person authorized under the laws of the United States to manufacture sweet cider, vinegar, non-alcoholic or spirits for other than beverage purposes.”
It is first insisted that the demurrer to the indictment should have been sustained because the indictment does not allege the intent with which the mash, wort or wash was made. It will be observed1 that the indictment substantially follows the language of .the statute, and it sufficiently apprised the accused of the offense with which he was charged. The indictment charges that the mash, wort or wash was fit for the distillation and the manufacture of alcoholic liquor, and this is made a . crime by § 1 of act 324 of the Acts of 1921 (General Acts 1921, p. 372).
The phrase, “fit for,” which is copied in the indictment from the statute, has been defined as meaning “intended for,” in the cases of Logan v. State, 150 Ark. 486 and Milliner v. State, 154 Ark. 608, and the indictment will, of course, be construed as using the phrase as we have defined it.
A motion to quash the indictment was filed upon the ground that it was returned by an illegally constituted grand jury, in that two women were members thereof. It is by statute expressly provided that “no indictment shall be void or voidable because any of the grand jury fail to possess any of the qualifications required by law.” Section 3030, C. & M. Digest.
In the very recent case of St. Clair v. State, 160 Ark. 170, we said: ‘ ‘ There was a motion in each case to quash the indictment on the ground that one of the grand jurors failed to possess the necessary qualifications in that he was not a citizen and elector of the State. The statute precludes an inquiry into that question for the purpose of quashing an indictment. Crawford & Moses’ Digest, § 3030; Calloway v. State, 120 Ark. 204; Borland v. State, 158 Ark. 37.”
The statute precludes any consideration of the question of- the competency of the grand jurors, if there was In fact any doubt about tbe eligibility of women to serve on juries.
It is assigned as error tbat appellant was denied a full panel of jurors from wbicb to select tbe jury. As a matter of fact, as is reflected by tbe record, there were twenty-four jurors in tbe box when tbe trial began, but, before tbe examination of the jurors on their voir dire began, the court excused one of them on tbe ground that be bad been a member of the grand jury which returned tbe indictment. However, a drawn jury was not requested, and tbe right thereto must therefore be held to have been waived, and, in the very recent case of Bohannon v. State, 160 Ark. 431, we held tbat tbe accused’s right to be confronted with a full panel of twenty-four jurors is only accorded when a drawn jury is not waived.
It is earnestly insisted tbat tbe testimony is insufficient to support tbe verdict, and tbat such circumstances as tended to incriminate tbe accused Were so fully explained that it was arbitrary for tbe jury to disr regard tbe explanation.
It may be said tbat tbe. defendant offered explanations of tbe State’s testimony, which, if accepted as true, did show tbat he was not guilty of tbe crime charged; but it was tbe province of tbe jury to pass upon this testimony and to discard such portions of it as were not credited. In passing upon tbe question of tbe legal sufficiency of the testimony to support tbe jury’s verdict we must, of course, give to the evidence wbicb tends to support tbe verdict its highest probative value.
The testimony offered by tbe State was to tbe effect that, when the appellant was arrested, be bad three pint bottles of whiskey on bis person. That a search of bis house was made, and a ten or fifteen-gallon keg' was found, about two-thirds full of fermented1 mash, which, upon being analyzed by a chemist, was found to contain, by volume, 14.75 per cent, alcohol, and tbe officers who made the search testified tbat they were familiar with the mash used in mailing whiskey, and tbat the mash found at appellant’s home could have been so used, and that it had gone through a process of fermentation which precedes the distillation of the mash into whiskey. That the mash was composed of corn, raisins, sugar, yeast and water. This keg was found in an unfinished part of the house upstairs that was dark, and the officers found a coil in another room in appellant’s house upstairs, and some grain in a pan which had soured. They also found some barley and a couple of boilers and a small bottle, which the officers took to be coloring matter.
Appellant, as a witness' in his own behalf, testified1 that he knew how whiskey was made, and that whiskey could not have been made with the utensils found at his house, for the reason that they could not confine the vapor or steam generated by boiling the mash, thereby compelling its condensation.
The articles found by the officers were not all found in the same place, and we do not know whether, when put together, they would have made a still with which whiskey could be manufactured; but this was a question for the jury. We cannot say that 'the jury might not have believed that the officers failed1 to find some part of the mechanism, or that it would have been arbitrary for the jury to have so found.
It will be remembered that appellant was not indicted for possessing a still, and the purpose of this testimony was to show the intended use of the mash; and we have concluded that the testimony is legally sufficient to support the finding that appellant had made a mash fit for distillation and the manufacture' of alcoholic liquor, as charged in the indictment.
Over appellant’s objection the court gave an instruction numbered 2, reading as follows: “2. A part of the evidence upon which the State relies for a conviction is what is called circumstantial evidence. Circumstantial evidence is evidence not of the main facts in issue, for instance, not evidence that a man was seen to shoot another, but evidence of circumstances from which the main facts may be inferred. Circumstantial evidence, when it is sufficient to satisfy the rules of law governing its use, and to satisfy the mind of the jury beyond a reasonable doubt, is legal and competent evidence upon which to base a conviction, regardless of the nature of the crime or the extent of the punishment. To justify a conviction upon circumstantial evidence alone, the circumstances must be consistent with each other, and inconsistent with any other reasonable hypothesis, except that the defendant is guilty.”
It is objected that this instruction is argumentative and was a charge on the facts, in that the jury was told that the production of the different bits of evidence had probative value tending to prove appellant was guilty. We think, however, the instruction is not open to either objection. On the contrary, it contained a definition of circumstantial evidence through an illustration, and when the jury was told, as was done here, that, to justify a conviction upon circumstantial evidence alone, the circumstances must be consistent with each other and inconsistent with any other reasonable theory or hypothesis except that the defendant is guilty, we think, no prejudice could have arisen.
Over appellant’s objection the court gave an instruction numbered 3, reading’ as follows: “3. The court tells you as a matter of law, if some one else made the mash alleged in the indictment for P. H. Dickerson, by his direction or consent, if such mash was made, then defendant Dickerson would be held to have made it.”
Appellant says in his brief that the instruction is not questioned as a proposition of law, but that it is abstract and misleading, as there is no testimony that any other person had anything to do with making the mash, so-called, except himself.
We think the instruction is not correct as an abstract proposition of law, because appellant is indicted as a principal and not as an accessory, yet, under this instruction, he might have been convicted, although he neither made the mash himself nor stood by and aided, abetted or assisted some one else to make it. Wood v. State, 157 Ark. 503.
But we think no prejudice arose from this instruction because, as appellant says, the testimony is undisputed that no one else had anything to do with making the mash, whatever it was. The keg containing the mash was found in an unfinished room in appellant’s house, and he did testify that his wife’s niece and her husband! had rooms upstairs in his house for a short time, but the time during which they were at his house extended, as he testified, from about the 20th of April until the last of May, and the mash was not found until June 8, and thereafter no one else lived with appellant, and the officers testified that the mash had been made for only a few days; so that it stands undisputed, if not admitted, that no one except appellant put the ingredients in the keg which were found therein. As has been said, appellant denied there were any raisins in the keg; but this was one of the disputed questions of fact in the case.
Appellant asked the court to define the words “mash, wash and wort,” but the court declined to do so, and appellant thereafter presented instructions defining those words, and the court refused to give them. Thereupon counsel for appellant said: “I want to save a specific objection to the submission to the jury the question whether the defendant made wort or wash fit for distillation, as there is no testimony in this case upon which a verdict could be returned that the defendant made wort or wash, as neither one of these was mentioned in the testimony of any of the witnesses, the only thing mentioned in the testimony being that he made mash. ’ ’
It does appear that no witness testified that appellant made wort or wash, andthat all the witnesses referred to the concoction found as “mash,” and, there being no testimony that wort or wash had been made, it was not proper to submit that question to the jury. The court, however, sent the case to the jury on an instruction which told the jury to acquit appellant unless they found beyond a reasonable doubt that he had made mash fit for distillation. This instruction is as follows:
“2. The jury are instructed as a matter of law that the defendant had a right to have intoxicating liquor in his private residence, and, if you find that he did have such liquors in his private residence, you will acquit the defendant, unless you find beyond a reasonable doubt that the defendant made mash intended for.the distillation of intoxicating liquors; and mere possession of mash would not authorize the jury to convict the defendant on this charge.”
A number of other errors are assigned and! are referred to in the brief of appellant, but they relate to matters which have heretofore been decided adversely to appellant’s contention.
No error appearing, the judgment is affirmed. | [
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McCulloch, C. J.
Appellants, who were plaintiffs below, are owners of real property in an improvement district in the city of Fayetteville, organized for the purpose of paving a street designated as North College Avenue, and they instituted this action in the chancery court, attacking the validity of the organization, as well as attacking the correctness of the assessment of benefits of their respective properties. The action was commenced more than thirty days after the city council passed upon the petition of property owners asking for the improvement and appointed the board of commissioners, but it was commenced within thirty days after the city council approved the assessment of benefits. The court sustained a demurrer to the amended complaint on the ground that facts were not stated therein sufficient to constitute a cause of action. We therefore have to deal only with the question of the sufficiency of the complaint, and in doing so we must treat the allegations as true.
■Counsel for appellees insist that the demurrer was properly sustained to that part of the complaint which relates to the attack on the validity of the organization of the district on the ground that the action was not commenced within thirty days, as provided by' statute (Crawford & Moses’ Digest, § 5653), after the city council ascertained that a majority of property owners had signed the petition for the improvement. The answer to that contention is that the statute referred to applies only to a review of the findings of the city council as to a majority of property owners signing the petition — not to jurisdictional defects in the organization of the disT trict.
The point of attack of appellants on the validity of the statute is that there had been previously organized and put into operation, under general statutes (Craw ford & Moses’ Digest, § 5299 et seq.), a road improvement district for the purpose of improving a road running to and through the city of .Fayetteville and including North College Avenue, that the territory of the district now under review overlaps the territory of said road district, and that the present organization constitutes an encroachment on the road district and causes double taxation on property in the district for the same improvement. According to the allegations of the complaint, a road district, designated as Road Improvement District No. 2 of Washington County, was organized under general statutes in the year 1918, for the purpose of improving (paving with gravel or rock) a road extending through Washington County from the Crawford County line to the Madison County line, through the city of Fayetteville and along North College Avenue; that “all or nearly all of the real estate within the corporate limits of Fayetteville is being taxed for said road district,” and that “said road district is still in progress, but that no work has as yet been done on the North College Avenue part thereof.” It is also alleged in the complaint that said road district organization was validated by special statute enacted by the extraordinary session of the General Assembly in 1920, and approved February 4, 1920. It is charged in one of the paragraphs of the complaint, and it is contended in the argument here, that, ‘ ‘ assuming the validity of the organization of said district, the necessary effect will be to withdraw, for the purpose of making said improvement, the streets and parts of streets constituting the said roadway or improvement through the corporate limits of the city of Fayetteville from the control of the city and to vest said control in the Washington County Court, until said improvement within the corporate limits has been made, and that said improvement through said corporate limits has not, as yet, been made;” and that “the municipality has been divested of all authority over said roadway within the corporate limits, including North College Avenue.”
Counsel for appellees bring to our attention a general statute (containing the emergency clause) enacted by the G-eneral Assembly at the recent extraordinary session, and approved October 13, 1923 (after the rendition of the decree in this case), which reads as follows:
“Section 1. That no road improvement district within this State shall in any way. affect the validity of any municipal improvement district which is organized for the purpose of paving streets over which any road improvement district may pass.
“Section 2. All municipal improvement districts heretofore organized, and which are included in road improvement districts heretofore organized, are hereby declared to be valid.”
The question of the validity of this statute and its effect on the present litigation presents itself. "Appellants contend that the statute is only prospective — not retroactive — in its terms and application. We do not agree to that view. The statute is necessarily retroactive if it. can be legally made so, and is by its terms applicable to municipal districts theretofore organized. The fact that the statute was enacted since the rendition of the decree below does not prevent its having effect now. Sudberry v. Graves, 83 Ark. 344. The effect of the statute is to suspend or withdraw the authority of rural road districts in the improvement of streets in municipalities which are the subject of districts organized in municipalities for that purpose, and to validate municipal improvement districts organized to improve streets included in a general road district.
We conclude that the statute is valid and is applicable to the present controversy, for its effect is such as could have been imposed before the organization of either district, and it prescribes only such restrictions as could have been declared by law in the first instance. Sudberry v. Graves, supra.
There are no allegations in the complaint which show that the application of the statute in suspending the authority of the road district as to improvement of the street in question would result in an impairment of the obligation of a contract, or would result in unjust inequalities in taxation, or in taking property without due process of law. It is true that the complaint contains an allegation that the operation of the municipal district will result in double assessments for the same improvement, but this is merely a statement of a conclusion, and not facts upon which the conclusion is based. It is not shown that there are inequalities which cannot be removed in the assessment or reassessment of benefits in either of the districts as provided by law. Sembler v. Water & Light Imp. Dist., 109 Ark. 90; Van Dyke v. Mack, 139 Ark. 524. The complaint shows on its face that no work has been done by the road district in the improvement of this particular street, and the matter is within legislative control. Van Dyke v. Mack, supra.
When a street in a city or town needs improving, a majority of the owners of property to be affected have a right to provide therefor; in the manner authorized in the statute, by the formation of a district, and it is within the power of the lawmakers to withdraw any authority previously conferred on a road-district. All of the constitutional requirements are complied with when the will of the majority of the owners of property in a municipal district is ascertained.
The next question presented is whether or not the allegations of the complaint are sufficient to state facts and constitute grounds for reviewing the assessment o'f benefits to the property of appellants. The complaint contains statements as to the respective amounts of assessed benefits to property of appellants in each of the districts, and states in general terms that the assessments are excessive, and that they are “arbitrary, discriminatory, inequitable and unfair,” and are not “according to value of benefits.” There is an allega tion that church property and other valuable properties in the district “have been favored.” The complaint also mentions specifically a particular piece of valuable property, stating its market value and also the assessed value of benefits, but there is no allegation that this particular property has been under-assessed. These are mere conclusions, and do not show facts upon which the conclusions are based. The allegations are not sufficient to call for a review of the assessments made by the board of assessors. Moore v. Board of Directors, 98 Ark. 113; McClelland v. Pittman, 139 Ark. 341.
A judicial review of assessments, even in a direct proceeding, as in this instance, does not authorize the substitution of the court’s judgment for that of the assessors, unless facts are shown which render the assessments unjust and discriminatory, and these facts must be properly and directly pleaded before a court should enter upon the investigation.
Our conclusion therefore is that the demurrer was properly sustained by the court, so the decree dismissing the complaint is affirmed.
Hart, J., dissents; Humphreys, J., did not participate. | [
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McCulloch, C. J.
The indictment under which appellant was tried and convicted reads as follows (omitting the caption and formal part) :
“The said defendant, on the 13th day of February, 1922, in Columbia County, Arkansas, did unlawfully and feloniously make mash fit for distillation, said defendant not being such a person as is authorized under the laws of the United States to manufacture sweet cider, vinegar or other non-alcoholic beverages, or spirits other than beverage purposes.”
The indictment was an attempt to charge an offense under the first section of act No. 324 of the General Assembly of the year 1921 (General Acts 1921, p. 372), which reads as follows:
“No mash, wort or wash fit for distillation or for the manufacture of beer, wine, distilled spirits or other alcoholic liquor shall be made or fermented by any person other than a person duly authorized under the laws of the United States to manufacture sweet cider, vinegar, non-alcoholic beverages, or spirits for other than beverage purposes.”
There was a demurrer to the indictment, which the court overruled, and this ruling is the basis of the first and principal assignment of error.
We are of the opinion that the indictment fails to charge a public offense, in that it does not contain an allegation that the mash was “for distillation or for the manufacture of beer, wine, distilled spirits, or other .alcoholic liquor.” It is not unlawful, under the statute, to prepare mash for distillation, except for “beer, wine, distilled spirits, or other alcoholic liquor, ’ ’ and the use of the word “distillation” does not imply that it was for the purpose of producing any of the liquors named in the statute. There may be a distillation of non-alcoholic liquors, even the distillation of pure water. ■ The word “distillation” merely described the process of evaporation and condensation, or liquefaction of any substance which may be subjected to that process. Hotchkiss v. State, 156 Ark. 340. The lexicographers define the evaporation of water, its condensation into clouds and its precipitation as rain, dew, or frost, as a natural process of distillation. Surely the mere charge of distillation, without further explanatory words, is not sufficient to imply the preparation for the production of alcoholic liquor.
We decided in Logan v. State, 150. Ark. 486, that, under the statute, the intent to use mash, wort, or wash for the purpose of distillation or manufacture of the liquors mentioned was an essential element of the offense, but we did not decide that it was necessary to charge the intent other than in the language of the statute. We do not deem it necessary to decide, in the present case, whether it is necessary to specifically charge the intent in the indictment. It is generally sufficient to charge a statutory offense in the language of the statute itself, but we do hold that the.mere use of the word “distillation” is not sufficient to charge an offense without alleging that the mash is fit for the distillation of the kind of liquors mentioned in the statute. Other assignments need not be discussed.
The demurrer to the indictment should have been sustained, and the judgment is therefore reversed, .and the cause is remanded for further proceedings in accordance with this opinion. | [
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McCulloch, C. J.
Appellant was employed by appellee as a laborer, and alleges that he received personal injuries while at work in appellee’s service. Appel-' lee is a domestic corporation, operating lumber mills in Hot Spring County, and, at the time appellant claims to have been injured, the company was engaged in building a telephone line between two of its mills. Appellant and four other employees, working under the direction of a foreman, were raising a telephone pole. Three of the men were lifting the pole by the use of pikes, and appellant and another one of the workmen were holding the pole up on their shoulders. The telephone pole, while being raised, slipped from the pikes held by the men, and, it is claimed, fell down on appellant and injured him.
It is alleged in the complaint that appellee’s foreman was negligent in failing to furnish a jack with which to lift the pole, and1 also in failing to furnish more help. Negligence of fellow-servants in allowing the pikes to slip when lifting the pole is also alleged.
Appellee answered denying all the charges of negligence, and denying that appellant was injured at all.
The trial resulted in a verdict in favor of appellee.
There was a sharp conflict in the testimony, and every assertion made by appellant with respect to the injury and the cause thereof was disputed by testimony adduced' by appellee.
It appears that there were three of the poles to 'be raised, and that the raising was done by three of the men using pikes, and two others, appellant being one of them, standing with their backs to the hole in which the pole was to stand, and holding the pole while the other men were pushing i-t up with the pikes.
Appellant testified that he protested against engaging in .the work unless a jack was procured and unless additional men were put on the work of raising the pole, but that the foreman said that the force was sufficient, and that it was unnecessary to procure the jack, and directed the men to go on with the work, without a jack and without additional force.
Appellant testified that, while the pole was in process of erection, the pikes held by the men slipped and the pole fell on him, severely injuring him.
Testimony adduced' on the part of appellee was to the effect that appellant was not injured at all and made no complaint until long after the time that the pole was being raised. The testimony of the witnesses was-also to the effect that it was not customary to procure a jack when only a few poles were to be raised, as in this instance, and that the force of men was sufficient to raise the pole.
There being a conflict in the testimony upon every issue, the verdict of the jury is conclusive as to the facts.
The issues were submitted upon instructions asked by each party. Each instruction requested by appellant was given, and nearly all of the instructions asked by appellee were also given. Every phase of the case was covered by the instructions, and we think that they were not inconsistent with each other.
It is contended that the following instruction, given at the request of appellee, was erroneous:
“No. 2. The court instructs you that the defendant lumber company is not an insurer of its employees against injury and is not liable for damages for all injuries suffered by its employees, but for those only which are caused by its negligence, which means some failure to use ordinary care, being that care which an ordinarily prudent person would use under similar circumstances. So, if you believe from the testimony that ordinary care was used in raising the telephone pole, then your verdict should be for the defendant, notwithstanding plaintiff suffered an injury. ’ ’
The contention is that this instruction erroneously ignored the question of negligence on the part of appellee in failing to furnish reasonably safe equipment — in failing to furnish a jack to be used in raising the pole. The language in the instruction, “ordinary care was used in raising the telephone pole,” was manifestly intended to refer, in a broad sense, to the whole question of negligence with respect to the work to be done in raising the pole, and we scarcely think it could properly be construed as limiting the consideration to the question of negligence in the actual work, ignoring the question of failure to furnish proper equipment. But there was only a general objection to the instruction, and, if it was thought that the language might be understood in a narrower sense as ignoring the question with respect to furnishing equipment, then the objection should have specifically pointed out the fact, and a general objection was not sufficient-,
It is contended that the court erred in giving an instruction submitting the question of contributory negligence on the part of appellant. The contention is that there was no evidence to justify the submission of this issue. We are of the opinion that the evidence which presented an issue to the jury with respect to negligence of servants of appellee in allowing the pole to slip from the pikes and fall also called for a submission of the question of appellant’s own negligence in failing to avoid the danger. The testimony which tends to show that the men were negligent in permitting the pole to slip from the pikes also, shows that, when the pole began to fall, the men were warned and told to look out, and that appellant’s companion, who, like himself, was under the pole helping to hold it up, did avoid the danger by stepping aside. The jury might have found that appellant did not exercise proper care in jumping from under the pole when he was warned that it was falling. We are of the opinion therefore that there was no error in submitting the whole issue to the jury of contributory negligence as well as that of negligence.
During the progress of the trial, appellant asked permission of the court to amend his complaint by alleging additional injury other than that set forth in the complaint. In the complaint it was alleged that the falling of the pole injured plaintiff in certain respects, and the requested amendment was for the purpose of alleging that hernia resulted from the injury, but the court refused to permit the amendment to be made. Appellant offered testimony to support the allegation that hernia resulted, but the court excluded that testimony, and error is charged in that respect. There was proof showing other ill effects from the injury, if plaintiff was hurt at all, and the verdict of the jury is necessarily conclusive on the issue as to appellant having suffered any injury at 'all, so it is unnecessary to consider the question whether or not the court abused its discretion in refusing to allow the pleadings to be amended during the progress of the trial.
Objection is made to certain statements of one of the attorneys for appellee during the argument of the cause, but it appears from the record that the court sus tained tlie objection and directed the jnry not to consider the argument.
We find no error in tlie record, and the judgment is therefore affirmed. | [
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Hart, J.,
(after stating the facts). The defendant was indicted under ■§ 2449 of Crawford & Moses’ Digest, which reads as follows: “Every person who, with intent to defraud or cheat another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain a signature of any person to any written instrument, or obtain from any person any money, personal property, right of action, or other valuable thing or effects whatever, upon conviction thereof shall be deemed guilty of larceny and punished accordingly.”
The first assignment of error is that the indictment is fatally defective. We have copied the body of the indictment in our statement of facts, and it need riot be repeated here.
Tested by our decisions construing the statute just quoted, we are of the opinion that the court properly overruled the demurrer to the indictment. It is well settled by our decisions that a false pretense is a false representation of an existing fact or past event, by one who knows that it is not true, and which is of 'such a nature as to induce the party to whom it is made to part with something of value; and it is only necessary that the false pretense be the inducing motive to the obtaining of the goods or money by the defendant. Parker v. State, 98 Ark. 575, and Lawson v. State, 120 Ark. 337.
The indictment in question charges that a false pretense was in fact made. That it was made with the intention of defrauding the prosecuting witness, W. J. Shiver, and that the prosecuting witness was in fact defrauded to his injury. The indictment in plain terms charges that A. B. Fisher, in White County, Arkansas, on the 12th day of April, 1923, feloniously pretended to W. J. Shiver that he, the said A. B. Fisher, was the authorized agent of the Columbia Hardwood Lumber Company of Chicago, Ill., to purchase, receive and pay for lumber for it.
The indictment further charges that the said A. B. Fisher proposed to purchase from W. J. Shiver seven carloads of lumber, of the value of $2,300, and, by reason of said false pretense, obtained from said W. J. Shiver the seven carloads of lumber, with the felonious intent to defraud the said W. J. Shiver out of his property.
The indictment further charges the fact to be that the said defendant was not then and there the authorized agent of the said Columbia Hardwood Lumber Company of Chicago, Ill.,, to purchase, receive and pay for lumber for it, and that0 the said defendant well knew that he was not such agent at the time he made the false pretense aforesaid. The statement that the defendant knew his representations of agency to be false embraces the charge that it was so in fact. The words, “that he knew his representations to be false at the time he made them,” fixed the venue of the offense; because, in another part of the indictment, it charges that the representations were made in White County, Arkansas.
The indictment also charges that the defendant made the false pretense in question to induce the prosecuting witness to part with his property, and that the alleged false pretense was effectual for that purpose. Hence the facts charged to constitute false pretenses are stated with sufficient certainty to apprise the defendant of what facts would he necessary for him to prove in his defense.
It is further claimed that, as the indictment fails to specifically charge loss or damage to Shiver, it is fatally defective. We think the offense, under the statute, is complete when a thing of value has been obtained knowingly and designedly from another by false pretenses, with an intent to defraud such person of such property, and that it is unnecessary to 'Charge or prove an actual pecuniary loss or damage. The prosecuting witness was legally injured when he surrendered his property on account of the false representations made to him by the defendant in order to obtain it. The obtaining of the property of Shiver by means of false pretenses constituted the offense, and it was unnecessary to charge that the defendant did not pay for the lumber in question. The crime, if any, was complete when the property was fraudulently obtained. West v. State (Neb.), 88 N. W. 503, and Stoltz v. People (Col.), 148 Pac. 865.
It is also insisted that there is a variance between the allegations of the indictment and the proof. It is insisted that the indictment charges the defendant with obtaining the lumber mentioned under false pretenses, while the proof shows that the defendant never obtained it; but that, if any person or ¡corporation obtained it, it was the Columbia Hardwood Company, of which the defendant was the agent.
We do not think that this assignment of error is well taken. It is evident from the testimony that, if any one made false and fraudulent representations amounting to false pretenses and obtained the lumber by reason thereof, it was the defendant. If he made the representations, he made them with the.knowledge of their falsity, and the plea of agency is not available to one who knowingly commits a crime. In such cases it is sufficient if the defendant either obtained the possession or control of the goods, or that such goods were delivered to another at his request or in accordance with his wishes. Our statute does not make it an element of the' offense of obtaining money or property under false pretenses that it shall be obtained for the person making the pretenses himself, or that it should be intended- to obtain it for another. The statute provides that every person, who, with the intent to defraud another, shall, by color of any false token or writing, or by any other false pretense, obtain personal property, upon conviction shall bé deemed guilty of larceny, and shall be punished accordingly. The statute is directed against whomsoever shall obtain money or property by false pretenses, and it does not make any difference who gets the money or property. State v. Balliet, 63 Kan. 707, 66 Pac. 1005; Musgrave v. State, 133 Ind. 297, 32 N. E. 885; State v. Chingren, 105 Ia. 169, 74 N. W. 946; and State v. Mendenhall, 24 Wash. 12, 63 Pac. 1109.
It is next insisted that the evidence is not legally sufficient to warrant a verdict of guilty; but we are of the opinion that the proof in this case, on the part of the State, brings it clearly within the doctrine of the cases cited. The statements and representations made by the defendant to Shiver to induce him to part with his lumber were representations of existing fapts. They consisted of positive assertions of existing facts or conditions which were known, by him to be false, and which were made with the intent to influence the action of the prosecuting witness and to induce him to refrain from any particular investigation of the subject to which they related, and to induce him to part with his. property upon the faith that the defendant was the agent of the Columbia Hardwood Lumber Company of Chicago, Ill.
According to the evidence on the part of the State, we have a case where a person, by falsely pretending to be the purchasing agent of a regular established lumber dealer, fraudulently procured another lumber dealer to sell him lumber. Shiver was induced to part with his property upon the representations of the defendant that he was the agent of the Columbia Hardwood Lumber Company of Chicago, Ill. Then, upon the faith of such representations, Shiver looked up the rating of that ■company, and, when he found it to be good, he sold the lumber to the defendant. He already knew that that company had the reputation of being a reliable company.
According ,to the evidence for the defendant, he represented that the hardwood company had offices in Little Rock and also in Chicago; that he was the agent of that company. A subsequent investigation ■showed that the Columbia Hardwood Company of Little Rock was not known in the lumber trade, and that it only had a nominal existence. However that may be, the proof on the part of the State showed that the defendant falsely represented himself to be the purchasing agent of the Columbia Hardwood Lumber Company of Chicago, Ill., which was well known in the lumber trade, and which had a good rating, and thereby induced him to sell defendant seven cars of lumber. The evidence for the State, if believed by the jury, was legally sufficient to warrant a verdict of guilty.
It is next insisted that the court erred in giving certain instructions on the part of the State. We do not deem it necessary to set out these instructions. It is sufficient to say that they contain correct declarations of law within the principles announced in the decisions above cited and many other decisions of this court which might be cited.
It is next insisted that the court erred in refusing to give instruction No. 4 requested by the defendant. Tbe instruction is as follows: “The jury are instructed that, if you find from the testimony in this case that the cars of lumber mentioned in the indictment as being received by the defendant, A. B. Fisher, were in reality sold by the prosecuting witness, W. J. Shiver, to the Columbia Hardwood Lumber Company, and shipped by the prosecuting witness, then you will find the defendant not guilty. ’ ’
In this connection it may be said that the court gave instruction No. 5 at the request of the defendant, which is as follows: “The jury are instructed that, if you find from the testimony in this case that the defendant, A. B. Fisher, was hired by the Columbia Hardwood Company by the month, under a written contract duly signed, to represent it, and, at the time of the purchase of the cars of lumber mentioned in the indictment from the prosecuting witness, W. J. Shiver, he made known to said prosecuting witness the fact that he was only a purchasing agent and the name of his principal, and furnished to the said prosecuting witness written orders for said lumber, and that said written orders contained the name of the purchaser, the price to be paid, the time when it was to be paid, and the conditions of the purchase, and that the lumber was afterwards loaded and shipped to the actual purchaser thereof, the Columbia .Hardwood Company, and not to the defendant, and the defendant was not interested in the purchase of said lumber further than as agent aforesaid, then you will find the defendant not guilty.”
This instruction presented fully and fairly the theory of the defendant, and the court is not required to multiply instructions on the same point.
Finally, it is insisted that the court erred in modifying instruction No. 8 requested by the defendant, and giving it to the jury as modified. The instruction as modified reads as follows: “The jury are instructed that the defendant is charged in the indictment with obtaining seven cars of lumber from W. J. Shiver by false pretense, and that this allegation must he proved, and, although yon may find from the testimony that the defendant may have received pay for some of the lumber as agent of the Sargent Lumber Company, still this alone would not be sufficient to convict the defendant, under the charge contained in the indictment.”
We think the modification of the instruction was proper. The instruction, without the word “alone,” would have singled out certain facts and have given them undue prominence to the jury. The court is never required to single out fasts and thus emphasize the theory of either the State or the'defendant.
In the present case the respective theories of the State and of the defendant were fully and fairly submitted to the jury, under the instructions given by the court. It will be readily seen that the guilt or innocence of the defendant depended upon whether the prosecuting witness or the defendant was telling the truth about the transaction.
We find no prejudicial error in the record, and the judgment will be affirmed. | [
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Hart, J.,
(after stating the facts). The decree of the chancery court was correct. The Legislature of 1873 passed an act providing that the lien held by the vendor of real estate, when the same appears on the face of the deed, inures to the benefit of the assignee of the note for the purchase money, and may be' enforced by such assignee. Crawford & Moses’ Digest, §476.
Since the passage of that act this court has uniformly held that a vendor’s lien reserved in a deed as security for the purchase notes of land is analogous to a. mortgage, and passes with the transfer of the notes to a bona fide purchaser freed from any defenses which the grantor had against the grantee. Stephens v. Anthony, 37 Ark. 571; Pullen v. Ward, 60 Ark. 90; Smith v. Butler, 72 Ark. 350; Beard v. Bank of Osceola, 126 Ark. 420, and Graves v. First National Bank of Bentonville, 126 Ark. 177.
It is true that J. A. Hankins testified that the note for $1,500 held by the Merchants’ & Planters’ Bank was paid by that bank at the instance of the maker, A. Wakin. This, however, is denied by A. "Winham, who acted for the Merchants’ & Planters’ Bank in the purchase of the note, and by C. M. Blocker, who acted for the plaintiffs in the premises.
According to the testimony of Winham and Blocker, the note was purchased' by Winham for value in the usual course of business, and the qualified indorsement was placed on the back of the note in order that Hankins and wife might not (be held personally liable on their indorsement. The indorsement was made by the plaintiffs “without recourse” merely to release themselves from liability as indorsers, and not for the purpose of releasing the lien of the vendor, which passed by the assignment of the note. . ! i -7s!
The chancellor found the issue in this respect in favor of the defendants, and his finding is in accord with the weight of the evidence. An indorsement without recourse merely releases the indorser liability, and is not out of the usual course 'of trade.
In the case of Neely v. Black, 80 Ark. 212, it was held that the fact that the payee of a note indorsed it without recourse did not impair the negotiable character of the instrument, nor put the indorsee upon notice of any infirmity therein between the original parties. Judge Battle, speaking for the court, quoted with approval from a Virginia case the following:
“An indorsement without recourse is not out of the due course of trade. The security continues negotiable, notwithstanding such an indorsement. Nor does such an indorsement indicate, in any case, that the parties to it are conscious of any defect in the security, or that the indorsee does not take it on the credit of the other party or parties to the note. On the contrary, he takes it solely on their credit, and the indorser only shows thereby that he is unwilling to make himself responsible for the payment.”
Moreover, the matter is set at rest by our negotiable instrument law, wherein it is provided that such an indorsement does not impair the negotiable character of the instrument. Crawford & Moses’ Digest, § 7804.
It follows that the decree must be affirmed. | [
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Humphreys, J.
Appellant was indicted for murder in the first degree, in the circuit court of Jackson County, and, when arraigned, entered a plea of not guilty to the charge. He was convicted of murder in the second degree, and adjudged to serve a term of five years in the State Penitentiary as punishment therefor. Prom the judgment of conviction he has prosecuted an appeal to this court. At the conclusion of the opening statement of the prosecuting attorney as to the issues involved and what evidence the State would introduce in support of the charge, B. P. Hartwick, one of the jurors, announced that he was a member of the grand jury that returned the indictment in the case. Thereupon the court gave appellant an opportunity to challenge the juror for cause, which he declined to do. The court then discharged the jury, and appellant immediately entered a plea of former jeopardy, and moved the court for a discharge. The court overruled the motion, and impaneled another jury to try the case, over the objection and exception of appellant.
Appellant first contends for a reversal of the judgment upon the ground that the court erred in overruling the motion. Not so, for a necessity in the administration of justice had arisen demanding action on the part of the. court. It became the duty of the court to safeguard the right of appellant to a trial by an impartial jury, and also to protect the right of the public to test the guilt or innocence of one charged with crime hy jury trial. This court is committed to the doctrine that- the discharge of a jury and impaneling of another in a situation of this kind does not constitute jeopardy. Franklin v. State, 149 Ark. 546, and cases cited therein in support of the rule. The rule is based upon and grows out of the necessity of the situation.
Appellant next contends for a reversal of the judgment because the court refused to give, at his request, the following instruction: "Mere suspicion of the commission of an offense is not sufficient. What the law requires is proof, fully satisfying your minds and consciences of the defendant’s guilt of the offense charged.’’ The requested instruction was substantially covered by the court’s instruction No. 3, upon reasonable doubt, which is as follows:
"By ‘beyond a reasonable doubt’ is meant that the evidence of the defendant’s guilt must be clear and convincing, fully satisfying your minds and consciences. A mere imaginary, possible or captious doubt, however, is not a reasonable doubt. Such a doubt as the law contemplates as a reasonable doubt is a rational doubt, arising* from the testimony and circumstances presented by the evidence in the case.”
Appellee’s last contention for a reversal of the judgment is that the verdict is without evidence under the law to support it. The argument is made that the undisputed evidence showed that appellant shot and killed John Hall in necessary self-defense. It is true. that appellant and the witnesses introduced by him testified that John Hall was reaching for and advancing upon appellant, with an open knife in his left hand, at the time appellant shot and killed him, but there was evidence introduced by the State tending to show that deceased did not own a knife, and that he was right-handed. One of appellant’s witnesses admitted, on cross-examination, that Hall was six feet from appellant when he began to shoot. The testimony also showed that the deceased was shot above the heart, through the heart, in the leg above the knee, and in the shin. Appellant shot at Hall seven times. He oiled his pistol the morning before the crime occurred. The jury may have drawn an inference from these facts and other circumstances leading up to the affray, needless to mention, that the killing was unnecessary. '
No error appearing, the judgment is affirmed. | [
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Humphreys, J.
Appellants instituted a joint suit in ejectment, in the circuit court of Cleveland County, against appellees, to recover seven-eighths of 160 acres of land in said county, particularly described in the complaint, alleging that appellants and appellees are the only heirs of Warren Crain, who died intestate in 1890, leaving as a part of his estate said tract of land; that appellee, Martha Word, is a tenant in common with them in said tract, owning an undivided one-eighth interest therein, but that recently she had asserted the ownership to the whole tract and had executed a deed for same to her codefendant and son, Warren Word; that said appellees are in possession thereof, disputing appellants’ rights therein.
Appellees filed an answer admitting the kinship of appellants and appellees to their ancestor, Warren Crain, in the degrees alleged, and that he died intestate, but denying appellants’ ownership to any interest in said land. They pleaded three defenses to the alleged cause of action: limitations, laches, and a deed of conveyance from Warren Crain to Martha Word, which, they alleged, was destroyed, after delivery by the grantor, at the suggestion of his son.
On motion of appellees the cause was transferred, ■over the objection of appellants, to the chancery court of said county, where, upon a trial of the cause, a decree was rendered dismissing the complaint of appellants for the want of equity, and vesting the title to said real estate in appellee, Warren Word, as grantee of his mother, Martha Word. From that decree an appeal has been duly prosecuted to this court for trial de novo.
A large part of the testimony was directed to the issue of whether a deed to the land was executed and delivered by Warren Crain in his lifetime to Martha Word. We shall not attempt to set out the testimony bearing upon this issue, as we have concluded, after, a careful reading thereof, it is insufficient, under the law, to support a finding that the deed, if executed, was delivered. We think, however, the, decree of the chancery court was warranted under the testimony responsive to the issue of limitations. Martha Word and Warren Word, her son, both testified that she moved upon the place with her family in 1892, under claim of ownership, and openly, continuously and adversely occupied same, claiming title thereto, until she conveyed said land to her co-appellee, since which time he has occupied same adversely, claiming title thereto; that, during the time of their respective occupancies, each managed, controlled, repaired, improved, and paid taxes upon the property; that they either cultivated it themselves or rented it to parties who paid them rent, and were never called upon to render an accounting to appellants, although appellants resided in the neighborhood during the entire time; that their title was never questioned by appellants until some time in the year 1920, when the lands became valuable on account of the discovery of oil in the vicinity; that on the 13th day of September, 1921, after the refusal of appellee, Martha Word, to divide the money obtained for oil leases thereon, appellants instituted this suit in ejectment.
The testimony introduced by appellants upon the issue was, in the main, of a negative nature. It was to the effect that they never heard appellees assert or claim title to the land until the last few years. Two witnesses had testified that Warren Word said to them that, after his mother died, the appellants might have the land. His explanation, however, concerning this bit of evidence was that he proposed to them, if they would not disturb his mother in her old age, by claiming the land or bringing suit against ber, be would move off tbe land when sbe died and allow them to take it, but appellants would not entertain bis proposition.
We tbink tbe direct and positive testimony of appellees, to tbe effect that Martba Word beld adverse, open, notorious, and continuous possession of tbe land for more than seven years, under claim of ownership, must be accepted as true. Tbe great length of time sbe occupied tbe land and tbe appropriation of the proceeds therefrom for ber own use, without interference or a demand for an accounting, is a very potent circumstance in support of tbe testimony of herself and son as to tbe character of ber possession and claim. Her management and control of tbe place., under tbe circumstances, was inconsistent with an occupancy by cotenancy, and was sufficient to put appellants upon notice that ber possession and claim was adverse to them.
Tbe decree is therefore affirmed. | [
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Smith, J.
This is a suit by appellee against appellant to recover on the following’ promissory note:
“$6,000 Stuttgart, Ark., June 8, 1921.
“One year after date I promise to pay to the order of A. P. Rice six thousand and no/100 dollars, for value received, payable at the First National Bank of Stuttgart, Ark., with interest from date at the rate of ten per cent, per annum until paid. Demand, notice of protest and non-payment waived by makers and indorsers.
“E. Tallman.”
Indorsements: “A. P. Rice.”
There was a prayer also for the foreclosure of a lien upon $6,200 of notes pledged as collateral to the principal note. The note was assigned to appellee, and the answer denied the .assignment was for value and in the usual course of business, and pleaded usury. Thereafter an amendment to the complaint was filed, alleging that the note evidenced an Indiana contract. There was a decree in favor of the plaintiff, and the defendant, the maker of the note, has appealed.
The testimony established the following facts, much of which is undisputed: Appellant is a resident of Stuttgart, Arkansas, and desired to borrow some money. Accordingly, he wrote a letter to M. F. Smith, his cousin, who resides in Cleveland, Ohio, and asked him to negotiate a loan. Smith submitted the proposition to Rice, a resident of Indiana, who stated that he had some money which he would loan for ten per cent., after first deducting five per cent. Upon being advised of the terms upon which. Rice would make the loan, appellant wrote Rice the following letter:
“Mr. A. P. Rice.
“Dear sir: In accordance with the recent correspondence had through Mr. M. F. Smith, I hand you herewith my two blank notes, one for $5,000 and one for $6,000, each due one year after date. I also hand you two collateral notes * * ' I should like to have $6,000 instead of the $5,000 mentioned in your letter of June 1. However, if you care to let me have only the $5,000, that will be all right. Please retain the two collateral notes and return whichever one of the other notes you prefer to take to the Exchange Bank of this place, together with a draft for the amount of same, less the agreed discount of five per cent. Your instruction to the bank will be, of course, to turn over the draft to me when I sign the note, which the bank will then return to you. I will, of course, see that the note is properly stamped. The reason I am handling the transaction in this way is that I do not know whether you prefer to accept the $5,000 or the $6,000 note. Yours truly,
“E. T ALUM AN.”
In reply Rice wrote the following letter: “I have decided to let you have the $6,000, and am forwarding draft Fort Dearborn National Bank, No. 21,626, for $5,750, also your note for $6,000, to the Exchange Bank, Stuttgart, Ark., with the instructions to turn this draft over to you on receipt of the inclosed note signed and stamped by you.”
Appellant called at the bank, and signed and delivered the note to it, and the.bank turned the draft over to him.
It was developed that some years ago appellant had indorsed a note, and that he and the maker thereof pleaded usury, when sued to enforce payment, and appellant admitted that he had a general knowledge of the usury laws, and he also testified that, in executing the note, it was his purpose to execute a valid obligation. It was shown also that Rice had never been in Arkansas, and that this was the only transaction he had ever had in this State.
The decision of the court below is defended upon the ground that the transaction was an Indiana transaction, and therefore controlled by the laws of that State. The court below accepted this view, and rendered a decree for the $5,700 actually advanced and six per cent, interest thereon, it being the law of Indiana that, where a greater rate of interest than eight per cent, has been contracted for, the excess over six per cent, shall be deemed usurious, and may be recouped by the debtor when he is called upon for payment.
There are a number of interesting questions discussed in the excellent briefs in'the case, but we find the preliminary question of fact decisive of the case, and we discuss it only. It is conceded by both parties that this contract, like any other, is to be governed by the law of the place where it was made, if it is not, by its terms, to be performed elsewhere; but if it is to be performed in a State other than that in which it was made, the law of the State in which it is, by its terms, to be performed must govern.
We think the testimony establishes the fact that the note sued on is an Arkansas contract, and must therefore be governed by the laws of this State..
The note is dated at Stuttgart, and is payable at the First National Bank in that city. It was actually signed at Stuttgart, and there delivered to the bank as Rice’s agent, for transmission to him, and the money was actually paid to appellant in Stuttgart. It is true the money was paid by the bank in Stuttgart cashing a draft drawn on a bank in Chicago, but these circumstances are unimportant except in so far as they tend to show where the place of performance of the contract was. Prima facie the note is an Arkansas contract. It purports, on its face, to be a contract to be performed in this State, and we think the testimony does not show that the parties intended to contract with reference to the laws of another State/ and, if this be true, the note is tainted with usury, and there can be no recovery of either principal or interest. Nice testified that he'made the loan in Indiana, and gave as his reason for so stating that it was there that he accepted the proposition to make the loan, and that the preliminary negotiations occurred in that State; but the consummated contract is the note, and, as we have said, it is an Arkansas contract.
Counsel cite numerous cases to the effect that it is within the power of contracting parties to establish the place according to the laws of which the Validity and construction of a contract should be determined; and other cases to the effect that, when it is doubtful whether the contract is to be performed in one State, where its provisions are lawful, or in another State, where its provisions render it invalid, that it will be presumed that the parties intended that law to control which would uphold,‘rather than destroy, the contract.
Numerous eases dealing with these questions are collected in the note to Midland Savings & Loan Co. v. Beats, 150 Pac. 868, L. R. A. 1916-D, 745. But it is unimportant where the contract was made if it was to be carried out in this State, for, as was said by Mr. Justice Folger for the Court of Appeals of New York, in the case of Dickinson v. Edwards, 77 N. Y. 574, it would be a novel doctrine if the usury laws of a State could not be violated by a transaction agreed upon outside its bounds.
The note sued upon infringes the usury law of this State, and there can therefore be no recovery of either principal or interest. German Bank v. DeShon, 41 Ark. 331.
• The decree of the court below will therefore be reversed, and the cause remanded with directions to dismiss -the complaint. | [
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MoCULLOCH, C. J.
Appellee, representing himself as a citizen and taxpayer of Pulaski County, instituted an action in the chancery court of that county to restrain the county judge, clerk and treasurer from reissuing the outstanding county warrants and issuing separate warrants for the payment of interest for forbearance until a future day.
It is alleged in' the complaint that the outstanding warrants of the county exceed in amount, to the extent of $150,000, the county revenues derived this year from taxation and other purposes. The defendants offer justification for the reissuance of the county warrants and the issuance of separate warrants in payment of interest for the forbearance until the warrants are to be presented in the future, under an act of the G-eneral Assembly of 1917, Act 378, p. 1814, entitled “An Act authorizing the county court of Pulaski County to refund its county warrants.” That statute provides that the county court of Pulaski County may call in its warrants for reissuance payable to bearer at a future date, and that the county court “is authorized to pay to parties accepting any of said reissued warrants payable at a future date, a fair sum, representing the value of their indulgence in waiting for payment at such future date, such price to be paid either in money or warrants, but not to exceed the equivalent of 6 per cent, per annum for the time for which said indulgence is granted. ’ ’
The court sustained a demurrer to the answer, and appellants declined to plead further and suffered final judgment to be rendered against them in accordance with the prayer of the complaint.
(1) If the proceedings of the county officials as recited in the complaint are unauthorized by law, it constituted an illegal exaction within the meaning of Section 13 of Article XYI of the Constitution, which provides that “Any citizen of any county may * * * institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.” Appellee is, therefore, entitled to maintain the suit. Lee County v. Robertson, 66 Ark. 82.
The contention of appellee is that the statute is void and that the proposed proceedings are illegal because in conflict with the provisions of Section 1, Article XYI of the Constitution of 1874, which reads as follows:
“Neither the State nor any city, county, town or other municipality in this State shall ever loan its credit for any purpose whatever; nor shall any county, city, town or municipality ever issue any interest-bearing evidences of indebtedness, except such bonds as may be authorized by law to provide for and secure the payment of the present existing indebtedness, and the State shall never issue any interest-bearing treasury warrants or scrip. ’ ’
On the other hand, learned counsel for appellants insist that this provision of the Constitution forbids only the issuance by counties and municipalities of evidences of indebtedness, which on their face bear interest, and that the provision does not prohibit counties or municipalities from entering into contracts in another form for the payment of interest.
We think that to sustain this argument would be to give too restricted a meaning to the language of the Constitution, and that such an interpretation would admit of the most flagrant evasions. This court has, in fact, expressly decided against that interpretation in the case of Jacks & Co. v. Turner, 36 Ark. 89, where it was held that a statute declaring that registered county warrants should bear interest was in conflict with the provision of the Constitution now under consideration. It is worthy of note that the circuit judge who tried that case below, and the justice of this court who wrote the opinion here, were both members of the Constitutional Convention, and they shared the same view in the interpretation of this particular provision. That case did not involve evidences of indebtedness bearing interest on their face, but the decision related to the power of the Legislature to make ■such evidence of indebtedness interest-bearing upon being presented and registered on account of lack of funds. Mr. Justice EakiN, in disposing of the question, .said:
‘ ‘ Formerly, the holder of any county warrant might have presented it to the county treasurer, whose duty it was, in case of no funds, to indorse the fact upon the warrant, with the date, after which the warrant bore interest, at the rate of 6 per cent, per annum. This made it an interest-bearing evidence of indebtedness, which was not permissible after the adoption of the new Constitution. ’ ’
In giving full scope to that decision, which was an interpretation of the Constitution not a great while after its adoption, we are constrained to hold that the inhibition reaches not only to evidences of indebtedness which bear interest on their faces, but also to separate contracts for the payment of interest for future indulgence. If the proceeding now under consideration is permissible under the Constitution, it amounts to no less than the issuance of separate evidences of indebtedness to cover interest.
County warrants are what the name implies, orders on the treasury for the payment of money, but in a sense they constitute, while outstanding, evidences of indebtedness of the county. If separate warrants can be issued for interest to accrue in the future, then other evidences of indebtedness could be issued with separate contracts to pay interest in the future. The fact that the evidence of an agreement to pay interest Is in the form of an order on the treasurer does not rescue it from the constitutional ban against the issuance of interest-bearing evidences of indebtedness.
Counsel for appellant rely upon the decision of this court in Nevada County v. Hicks, 50 Ark. 416, where it was held that this provision of the Constitution did not prevent judgments against counties bearing interest under a general statute making all judgments bear interest. This court took occasion, however, in the opinion in that case to distinguish the ruling from the decision in Jacks & Co. v. Turner, supra, by pointing out that the charge of interest resulted from contract in the former case and that it resulted merely by operation of law in the case then under consideration. In the opinion the court said:
‘ ‘ The interest allowed in a judgment, where interest is not stipulated for in the contract sued on, is not by virtue of the contract between the parties to the suit, but is by operation of law, and is in the nature of a penalty provided by the law for delay in payment of the principal sum, after it becomes due. In the case of a judgment rendered against a county, by a court of competent jurisdiction, the rendering of the judgment can not, in any just or reasonable sense, be regarded as a contract by the county. The judgment is the decision or sentence of the law fixing the amount due, and we- fail to see how the allowance of interest in a judgment on a claim due by a county can be construed as the contract of a county to pay interest — or as the issuing by the county of interest-bearing evidences of indebtedness.”
(2-3) The language just quoted is a clear recognition by the court of the construction of the Constitution which prohibits counties and municipalities from issuing evidences of indebtedness constituting a contract for the payment of interest whether the interest appears on the face of the contract of otherwise. We hold now that that is what the framers of the Constitution meant, and that the county court exceeds its power when it undertakes to issue warrants or other evidences of indebtedness in any form for the payment of interest for future forbearance. There is ho authority in this State for the payment of in terest at all by counties, for the old statute making judgments bear interest, even against counties, bas been amended so as to exclude judgments against counties from its operation. Kirby’s Digest, $ ■§ 5387, 5388.
Interest is nothing more nor less than compensation for forbearance, or, as otherwise defined “legal damages for injurious detention of money.” McDonald v. Loewen (Mo.), 130 S. W. 52. Contractual interest is usually a temporary expedient, and the fact that the plan under consideration contemplates only a temporary postponement of the county debt does not alter its objectionable character.
If the Legislature has no power to declare county evidences of indebtedness to be interest-bearing after registration on account of lack of funds, then certainly it has no power to authorize the county court to enter into a separate contract for the payment of interest.
With the policy of the law, we have nothing to do, our only concern being as to its validity when measured by the terms of the Constitution. It may be that in the present emergency it would be a good thing for the county to procure a postponement of the presentation of its outstanding warrants to a future date by paying interest, but the Constitution forbids that, and we must all obey the mandate. The chancery court was, therefore, correct in reaching the conclusion that the proposed statutory plan for reissuance of the warrants is invalid, and the decree is affirmed. | [
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J. Seaborn Holt, Associate Justice.
This action was a damage suit filed by appellee, Loren Staten, for personal injuries sustained when he was struck by an automobile driven by appellant, Captóla Bennett, in the city of Jonesboro, July 14, 1956. At the time of the injury Staten was pushing a lawn mower on the east side of South Bridge Street in Jonesboro, in a northerly direction, when he was struck by an automobile coming from the rear, operated by appellant, Bennett. Appellee alleged various acts of negligence on the part of appellant .and appellant answered with a general denial, and specifically pleaded various acts of contributory negligence on the part of appellee.
A trial to a jury resulted in a verdict in favor of appellee, and a judgment in amount of $2,750 was entered on the verdict. On appeal here appellant does not question the sufficiency of the evidence to support the verdict. For reversal she relies on the following points: “1. The court erred in failing and refusing to submit to the jury the issue of whether or not the plaintiff was guilty of contributory negligence in pushing his lawn mower in the street with his back to traffic instead of traveling on the sidewalk; as set forth in Defendant’s requested Instruction No. 1. 2. The court erred in failing and refusing to submit to the jury the issue of whether or not plaintiff suddenly and negligently stepped in front of defendant’s vehicle thereby causing the injuries; as set forth in defendant’s requested In struction No. 2. 3. The court erred in failing to submit to the jury the issue of whether plaintiff kept a proper lookout and whether he was guilty of negligence in this respect; as set forth in defendant’s requested Instruction No. 3. 4. The court erred in failing to tell the jury that a mere accident occurring without negligence gives rise to no liability as set forth in defendant’s requested Instruction No. 4.”
Appellant’s position is stated in this language: “The evidence was undisputed that the appellee, while pushing a lawn mower, walked in the street instead of on the sidewalk and that he walked on the right side of the street with his back to traffic traveling in the same direction. It was appellant’s theory, as set forth in the answer, that these acts constituted negligence on the part of appellee 'which caused or contributed to cause the injuries complained of. Appellant had a right to have the jury’s attention directed to answering whether these acts constituted negligence which caused or contributed to cause appellee’s injuries.” Appellant frankly concedes that the court properly instructed the jury on appellee’s allegations in his complaint that appellant was negligent in driving at an excessive and dangerous rate of speed; failed to keep a lookout for pedestrians, failed to keep her car under control and failed to give reasonable warning of her approach and to use every reasonable precaution to avoid injuring appellee. While she concedes that these instructions were correct, she insists that since she had specifically defended on the ground that appellee was negligent in walking on the wrong side of the street, and in the street instead of on the public sidewalk, darting in front of appellant’s vehicle without warning, and failure to keep a proper lookout and pushing his lawn mower in the street instead of on the sidewalk, that she was entitled to have her theory of the case presented to the jury in her Instructions 1 and 2, which the court refused:
These instructions provided: “1. In your consideration of whether the plaintiff Loren Staten was negligent, you may determine whether or not an ordinarily prudent person would have, under the same or similar circumstances; (1) Walked in the Street instead of on the sidewalk. (2) Walked on the right side of the street instead of the left side. (3) Pushed a lawn mower in the street instead of on the sidewalk. If you find that an ordinarily prudent person would not have done these things, then the plaintiff Staten was guilty of negligence, and if you further find that such negligence caused or contributed to cause the injuries complained of you will charge the plaintiff with such negligence. 2. The defendant contends that the plaintiff Staten suddenly and without warning changed his course and stepped in front of her vehicle. If you find that this contention is true and that such action was negligence on the part of the plaintiff which caused or contributed to cause the accident in question, then you will charge the plaintiff with such negligence.”
We hold that these instructions were properly refused because they were in effect comments upon the facts presented and were fully covered by other instructions which fairly announced the law applicable to the facts in this case. A judge is ordinarily not permitted to comment on the facts. The record reflects that the court in general terms set out the theory upon which appellee was relying and also the theory of the defense, relied upon by appellant. He further instructed the jury to determine “which, if either, of the parties were guilty of negligence which caused, concurred, or contributed to cause the injuries complained of.” He gave the accepted definition of negligence to the jury, and the definition of the meaning of proximate cause and contributory negligence as applied to both parties. The court further properly instructed the jury relative to certain recognized rules of the road which it would consider in determining whether either of the parties was guilty of any negligence. He further instructed covering several traffic statutes of the state pertinent to the facts presented relating to speed of motor vehicles, the duty of the motor vehicle operator upon approaching a pedestrian walking upon or along a public highway, in the language of the particular statute.
As indicated, appellant appears not to complain about these general instructions given by the court, which applied to both parties, but contends that they do not fully cover his theory of the case. We do not agree. As indicated, the instructions given by the court, when considered as a whole, correctly declared the law applicable to the facts presented. Appellant’s requested instructions were fully covered by those which the court gave. The facts were not complicated. It was, therefore, not necessary for the jury to be instructed on any particular facts relied upon by appellant, in order to understand and answer appellant’s theory of contributory negligence. The court fully and fairly covered appellant’s theory of contributory negligence in the following instruction: “No. 5 Contributory negligence is the failure to use ordinary care for his own safety on the part of the person injured, which contributes directly or proximately to his own injury, and but for which, taken in connection with the negligence, if any, of the person sought to be charged, the injury would not have occurred. ’ ’
Reversible error is committed only where no other instruction was given covering defendant’s theory of defense. See Cain v. Songer, 176 Ark. 551, 3 S. W. 2d 315, and Pacific Mutual Life Ins. Co. v. Smith, 166 Ark. 403, 266 S. W. 279. In answer to interrogatory No. 1 propounded to the jury, the jury found that defendant (appellant) was guilty of negligence which caused, concurred or contributed to cause plaintiff’s (appellee) injuries, and in interrogatory No. 2 the jury found that plaintiff (appellee) was guilty of no negligence causing, concurring or contributing to cause his injuries.
We find no error in the court’s refusal to give appellant’s Instruction No. 3, which was as follows: “You are told that a pedestrian has an obligation to keep a lookout for the presence of other persons and vehicles upon a street in order to protect himself and if you find that the plaintiff (appellee) failed to keep such a lookout, you may consider such fact upon the proposition of whether plaintiff was negligent.” This instruction did not properly declare the law applicable to the facts here. The court had correctly instructed the jury that “It is the duty of a pedestrian to exercise ordinary care for his own safety;” also, “Pedestrians, as well as motorists, are entitled to use the public highway, each must act with regard to the presence of the other.” This was in harmony with our holding in Walker v. Earnheart, 187 Ark. 1110, 63 S. W. 2d 971, where we said: “The general rule is that a pedestrian has the same right to the use of a public street as the driver of a motor vehicle, and that each is obliged to act with due regard to the movements of the other, and neither is required to anticipate the negligence of the other. The rule is thus stated in Murphy v. Clayton, 179 Ark. 225, 15 S. W. 2d 391, 393: 'Drivers of automobiles and pedestrians both have a right to the street, but the former must anticipate the presence of the latter and exercise reasonable care to avoid injuring them.’ ”
Finally, we find no error in the court’s refusal to give appellant’s following Instruction No. 4: “The court instructs the jury that if they believe from the evidence that the injuries, if any, sustained by the plaintiff were a result of a mere accident, that is, without negligence of anyone, then your verdict will be for the defendant.” The facts did not warrant this instruction. What we said in Newark Gravel Co. v. Barter, 179 Ark. 799, 18 S. W. 2d 331, applies with equal force here: “The appellant urges a reversal of the case, first, on the ground that the injury was due to inevitable accident, and calls attention to authorities holding that no recovery can be had for a mere accident. It is useless to call attention to or to review authorities on this question, because this court has repeatedly held that no one is liable for a mere accident. Moreover, the jury was instructed fully on the question of negligence, and was told that appellee could not recover, unless the injury was caused by the negligence of Austin, and that this negligence must be the proximate cause of the injury ... If Austin was guilty of negligence that caused the injury, it was not an accident, and appellant is liable. If Austin had been guilty of no negligence, then it would have been an inevitable accident, and there could have been no recov ery. These questions, however, were submitted to the jury under proper instructions, and the jury’s verdict is against appellant on this issue. Moreover, there is no evidence in the record tending to show an unavoidable accident. ’ ’
As indicated, the jury here, under proper instructions, had found that appellant was guilty of negligence and that appellee was free of any negligence. We find no evidence in this record that even tends to show an unavoidable accident. The text writer in C. J. S. Vol. 65, Sec. 264, Negligence, (e) announces the general rule applicable here in this language: ‘ ‘ Ordinarily the issue of inevitable or unavoidable accident should be submitted to the jury where it is raised by the evidence; and such issue is raised when, and only when, there is evidence tending to prove that the injury resulted from some cause other than the negligence of the parties. It is not raised and may not be submitted for consideration by the jury where either party was guilty of negligence in the situation which resulted in the injury, or if there is no evidence tending to prove that something other than the negligence of one of the parties caused the injury complained of . . .”
Finding no error, the judgment is affirmed. | [
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William J. Smith, Associate Justice.
This is an appeal from a decree by the Chancery Court of Pope County dismissing the appellants’ action alleging that a mineral deed from Luller Etta Webb and John M. Webb to W. E. Lauener, conveying an undivided one-half interest in all oil, gas and other minerals in, under, and •upon the following described lands lying in Pope County, Arkansas, to-wit: The South Half of the Northeast Quarter; Southeast Quarter of Northwest Quarter; Northeast Quarter of Southeast Quarter; all in Section 26, Township 9 North, Range 18 West, dated the 2nd day of August, 1929, appearing of record in book 4-E, page 526, of the Deed Records of Pope County, Arkansas, is a forgery.
The appellants first argue that the court erred in refusing to strike the appellees’ answer. On December 11, 1957, appellant B. B. Andrews verified the appellants’ complaint and on the next day the appellants filed a motion to strike the appellees’ answer because it was not verified. This motion was not presented to the court until the appellants had completed their proof and the appellees had moved for dismissal on February 4,1958. At that time the court permitted appellee W. E. Lauener to verify the answer in open court. We find no error in this procedure.
In construing Ark. Stats. 1947, Sec. 27-1105, pertaining to the verification of pleadings, we said in Bank of Dover v. Jones, 192 Ark. 740, 95 S. W. 2d 92, that the court did not abuse its discretion in permitting the defendant to verify her answer when it became apparent that the plaintiff sought to take advantage of her failure to do so.
The second point raised by the appellants is the contention that the court erred in denying their motion for a continuance. In determining whether this point has any merit, we think it significant that the motion was not presented until the day the case was set for trial when the appellees and their witnesses were present and ready for trial; that this case was set on November 21, 1957, for trial on December 19, 1957, and continued due to the inability of the court to hear the matter on that date; and, on January 16, 1958, the case was set for trial on February 4, 1958. Certainly the appellants had sufficient notice of the trial date to be prepared. Further, they made no effort to comply with the statute pertaining to information to be filed in support of a motion for continuance, Ark. Stats. 1947, Sec. 27-1403. It is settled law, Crisco v. Murdock Acceptance Corporation, 222 Ark. 127, 258 S. W. 2d 551, that whether a continuance should be granted is a matter within the sound discretion of the trial court. We find nothing in the record to indicate an abuse of the court’s discretion in denying this motion and in our opinion the appellants’ argument on this point is without merit.
Next, the appellants urge that the court’s findings are against the preponderance of the evidence.
Appellants B. B. Andrews and Luller Etta Webb did not attend the trial and testify, and the notary, B. L. Hillis, and W. L. Hamm, the witness to the mark of John M. Webb, were deceased.
The court heard voluminous testimony from nine witnesses in behalf of the appellants and four witnesses (including one hand-writing expert) in behalf of the appellees. Several of the appellants’ witnesses limited their testimony to collateral issues. The appellants introduced six exhibits, and seventeen exhibits were introduced by the appellees. A great deal of this evidence was conflicting and we can see no useful purpose in summarizing it in this opinion. A careful review and consideration of all the evidence convinces us that the trial court’s finding that the disputed deed is not a forgery is supported by a preponderance of the evidence. Having so determined the issue on the allegation of for gery, we do not reach the court’s finding as to limitations and laches.
The fourth and last point argued by the appellants calls for a ruling on a question we have not decided since Act 555 of 1953 was enacted, Ark. Stats. 1947, Sec. 27-2106.1, et seq.
After giving notice of appeal but before the record was filed in this Court and the case was docketed in this Court, the appellants filed a motion to vacate the judgment, and the appellees then filed a motion to quash, on the ground that the court was divested of jurisdiction by the filing of notice of appeal. The motion to quash was granted and we have concluded that this was error. The trial court held that after notice of appeal was filed it retained limited jurisdiction and could act only pursuant to Ark. Stats. 1947, Sec. 27-2127.1 and Sec. 27-2129.1.
In construing Act 555 of 1953, we note that the General Assembly said: ‘If an appeal has not been docketed in the Supreme Court . . .” (Sec. 27-2106.1); “. . . and if the action is not yet docketed with the appellate court . . .” (Sec. 27-2107.2); “The record on appeal shall be filed with the appellate court and the appeal there docketed . . .” (Sec. 27-2127.1); “Where the Supreme Court has acquired jurisdiction of a cause, but it is made to appear that the record is incomplete for want of documents, exhibits, or a bill of exceptions, and the trial court has lost such jurisdiction . . .” (Sec. 27-2129.2). In our opinion there is a clear legislative intent in this Act that after notice of appeal is filed the trial court retains jurisdiction of the case until the record (under proper circumstances a partial record, Norfleet v. Norfleet, 223 Ark. 751, 268 S. W. 2d 387) is filed with this Court and the appeal is docketed in this Court, and we so hold.
However, we have determined that this holding does not require that the case be reversed, because the motion to vacate does not allege facts sufficient to put in issue the chancellor’s qualification.
The appellants’ motion to vacate the judgment is predicated upon the allegation that the chancellor who rendered the decree against them was disqualified by-reason of his former service, many years ago, as counsel in a similar case.
Article 7, Sec. 20 of the Constitution of the State of Arkansas is as follows:
“No judge or justice shall preside in the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by consanguinity or affinity, within such degree as may be prescribed by law; or in which he may have been of counsel or have presided in any inferior court.”
We find no allegation indicating to us that the chancellor may be interested in the case; or, that the chancellor is connected with any party to the suit by consanguinity or affinity; or, that he has acted as counsel in this cause. The mere allegation that the chancellor acted as counsel in similar litigation many years ago between different parties is certainly not sufficient to put his qualification in issue in this case. Something more than a suggestion of disqualification is required to support such a motion. Rowland v. State, 213 Ark. 780, 213 S. W. 2d 370.
The appellees found it necessary to file a supplemental abstract, without which we could not have considered the merits of this case. Under our Rule 9(e) .they have requested and are entitled to additional costs in the amount of $85.50.
The decree is affirmed. | [
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McCULLOCH, C. J.
The General Assembly of 1917 enacted a special statute creating the “ Arkansas-Louisiana Highway Improvement District,” for the purpose, as the name implies, of improving certain public highways running through the counties of Lincoln, Desha, Drew, Chicot and Ashley to the Louisiana State line,, and appellees, who own real estate within the boundaries of said district, challenged the validity of said statute and instituted this action to enjoin the commissioners from proceeding under its terms. The chancery court sustained the contention of appellees as to the unconstitutionality of the statute and rendered a decree in their favor restraining the commissioners from proceeding under the statute, and an appeal-has been prosecuted to this court from that decree.
The lands included in said district consist of more than 600,000 acres lying contiguous to the roads to be constructed, and composing parts of each of the counties specified above. The roads to be constructed are in the aggregate approximately 150 miles in length, and run. through each of the counties named. The main stem, if that term may he used in describing the road, runs from a point near Yarner in Lincoln County to a point near MeGehee in Desha County, following the line of the railroad of the St. Louis, Iron Mountain & Southern Bailway Company, passing through the towns of Yarner, Dumas, Winchester and other towns along the route. The road then forks at MeGehee, and one prong runs southwesterly, substantially parallel with the line of road of the said St. Louis, Iron Mountain & Southern Railway Company, through the towns of Blissville, Morrell, Portland, Parkdale, Wilmot, and other towns, ending at the southern boundary line of the State, near the town of Cypress; and the other prong runs southeasterly from MeGehee, substantially parallel with the line of road of the Memphis, Helena & Louisiana Railway Company, through the towns of Trippe, Halley, Lake Village, Eudora, and other towns, and ends at the southern boundary line of the State near the town of Arkla. Another road runs east from Trippe to Arkansas City, the county site of Desha County, and another runs east from the town of Dermott on the line of the St. Louis, Iron Mountain & Southern Railway Company to the town of Halley on the Memphis, Helena & Louisiana Railway. All of these roads are described in said statute as being public roads as now established by the county courts of the respective counties, or as they may be changed by the said county courts for the purpose of straightening the roads before the construction of the improvement. The lands in the district are accurately described in the statute by sections, but there is an error in the statute in that a number of sections are duplicated in the description. The statute provides, in substance, that there shall be ten commissioners of the district; two of them to be appointed by the county court, or the judge in vacation, of each of said counties; that the board of commissioners shall form plans for the construction of the roads, said plans first to be submitted to and approved by the State Highway Department, and then to be submitted to and approved by the county courts of each of said counties, so far as concerns tbe roads in each of the respective counties; and that when the plans have been so approved and adopted, and the cost of the improvement ascertained, there shall be an assessment of benefits to the lands included in the district, and that the cost of constructing the improvement shall be assessed against said lands in proportion to the benefits to be derived. There is also a provision in the statute to the effect that if it is ascertained that other lands not embraced in the district are found to be specially benefited by the improvement, the county court of the respective counties in which said lands lie may, upon petition of the board, and after due notice is published, make orders including such lands in the district. There is the usual provision for the issuance of bonds and for the enforcement of assessments against the lands in the district.
Counsel in the case agree that the attack upon the validity of the statute involves a consideration of the following points:
First. Can the Legislature create a road improvement district embracing land in more than one county to improve a defined public road situated in more than one county?
Second. Can the Legislature authorize the commissioners to improve the road through towns ?
Third. Can the Legislature appoint commissioners who are not residents of the county where a part of the road is to be improved, and give them authority to improve the road in that county according to plans approved by the county court of that county?
Fourth. Does the project constitute a single, local improvement, and result in special benefit to the lands to be taxed, so as to justify taxation of those lands to pay for construction of the improvement?
Fifth. Does the fact that the act, in describing the land composing the district, duplicates the description of some tracts, invalidate the act?
Sixth. Does the fact that section 36 of the act permits another road improvement district to improve a part of the roads to he improved under this act affect the validity of the act?
The points will he discussed and determined in the order stated by counsel.
1. The first point involves little difficulty, for county and other municipal lines are not taken into account in the formation of local improvement districts, the question being whether or not the project constitutes a single local improvement, regardless of its particular relation to such boundary lines. There is no express limitation in the Constitution upon the creation of improvement districts, except as to those situated wholly within cities and towns, and we have held that the constitutional provision has no application to districts situated partly inside and partly outside of cities and towns. Butler v. Fourche Drainage Dist., 99 Ark. 100. The power to include parts of two counties in an improvement district seems to have been definitely settled by this court in the case of Shibley v. Fort Smith & Van Buren District, 96 Ark. 410, where we upheld the validity of a district organized to construct a bridge across the Arkansas river where it forms the boundary line between Sebastian and Crawford counties, and which included lands in both of those counties. Counsel for appellees argue that there is a distinction between that case and the present one in that the former involved the erection of one bridge which connected the two counties, and that the lands in each county were assessed according to benefits', to pay its part on the bridge, whereas in the present case the roads run through different counties, and the effect is to tax the lands in one county to construct the road in another. We do not, however, think that the distinction sought to be made by counsel is to be found in the tv o'cases, for the construction of all the roads constitutes a single improvement; at least, they •must be so treated if the statute is to be upheld at all, and the taxes are levied on the lands in the several counties for the purpose of contributing to the expense as a whole, and not to any particular part of the road. The statute in question does not invade the jurisdiction of the county court by taking from that court the control of the roads of the county, or by compelling the county court to accept as a public road one improved by the district, as in Road Improvement District No. 1 v. Glover, 89 Ark. 513, for the statute under consideration only provides for improvement of public roads already established and subject to change by the county court, and we have held that the creation of improvement districts for such purposes does not invade the jurisdiction of the county court. Parkview Land Co. v. Road Imp. Dist. No. 1, 92 Ark. 93; Road Imp. Dist. No. 2 v. Winkler, 102 Ark. 560. Nor is the statute open to the objection found to exist in the district dealt with by this court in the case of Swepston v. Avery, 118 Ark. 294, where substantially the whole of a county was placed in a road district with authority conferred upon the co'mmissioners to improve any of the roads and to assess the cost on the lands of the county in equal proportion. Here the assessments are to be levied upon actual benefits ascertained by the assessors appointed for that purpose, and the land owners are given an opportunity to be heard on the question of the amount of the assessment. The statute is, therefore, not open to the objection stated in the above inquiry.
2. Nor is there any valid objection on the ground that the plan is to improve roads passing through incorporated towns. This objection has been answered by the court in other decisions. Cox v. Road Improvement Dist. No. 8 of Lonoke, 118 Ark. 119; Nall v. Kelley, 120 Ark. 277. The improvement under those circumstances does not constitute an invasion of the authority of the municipalities, nor does it offend against the constitutional provision with respect to improvements in cities and towns. See Butler v. Fourche Drainage District, supra.
3. We can discover no valid reason for holding the statute to be objectionable on the ground that roads in one county are to be constructed under the supervision of commissioners, some of whom are residents of other coun ties. The Constitution does not, as before stated, -contain any regulation concerning improvement districts outside of -cities and towns, nor in cities and towns as to the particular mode of constructing the improvement, except that where the district lies wholly within a municipality the consent- of the majority of the property owners in value must be obtained. Craig v. Russellville Waterworks Improvement Dist., 84 Ark. 390. The district is treated as an entirety regardless of intersecting county lines and the board of commissioners represent the district, and not any particular portion of it. Therefore, it can not be truly said that the commissioners are nonresidents of the county in which the work is to be done because they all represent the whole district. It is within the power of the Legislature to distribute the appointments so as to give each locality representation on the board. This attack on the validity of the statute is, therefore, unfounded.
4. The question whether the proposed improvement constitutes a single one, and is local in its nature, so as to justify special taxation, is a matter of serious concern, for this court has never had to deal with an improvement district covering a project of such magnitude. However, there are applicable principles well settled by the decisions of this court. We have said that a legislative determination on this question in creating an improvement district is conclusive unless that determination is found to be arbitrary and without foundation in reason. St. L. S. W. Ry. Co. v. Grayson, 72 Ark. 119; St. L. S. W. Ry. Co. v. Board of Directors, 81 Ark. 564; Moore v. Bd. Dir. of Long Prairie Levee Dist., 98 Ark. 113; Shibley v. Ft. Smith & Van Buren Dist., supra; Board of Directors v. Collier, 104 Ark. 425. The Supreme Court of the United States has in its decisions accorded the same degree of conclusiveness to a legislative determination in creating improvement districts. French v. Barber Asphalt Paving Co., 181 U. S. 324. We have held, too, that the fact that the public at large enjoys benefit from an improvement is no reason why it may not constitute a local improvement within the legal meaning of that term if the property in the locality receives peculiar benefits in excess of that enjoyed by the public. We applied that principle to the construction of a bridge in the Sbibley case, supra, whei*e we said: “A bridge for the use of the public, like a street in a city or a highway in the country, is undoubtedly of great benefit and convenience to the traveling public; nevertheless, it may be also of special benefit to adjoining lands and a fit subject for construction from the proceeds of local assessments. * * * The benefits need not be exclusive. The general public may also derive benefits in more remote degree, yet if there is a special and peculiar benefit inuring to the adjoining property, local assessments are justified.” ■ This court, in giving a definition of the phrase “local improvement” in the ease of Crane v. Siloam Springs, 67 Ark. 30, said that it meant ‘ ‘ a public improvement, which, although it may incidentally benefit the public at large, is made primarily for the accommodation and convenience of the inhabitants of a particular locality, and which is of such a nature as to confer a special benefit upon the real property adjoining or near the locality of the improvement. ” It is difficult to lay down a test on this subject which may have invarving application'to any state of facts, but one of the controlling principles is that in order for the improvement to be treated as a local one, there must be peculiar benefits derived from its construction in excess of those enjoyed by the public. The magnitude of the project or the extensiveness of the area involved, can have no decisive bearing on the question if the included area is to derive a special benefit apart from that enjoyed by the whole public. In other words, the size of the district presents only a question of degree in the enjoyment of the special benefits and is not necessarily decisive that the benefit is general in its results. We have here, it is true, a district comprising a large area covering a considerable portion of five counties, but those parts are grouped together into a solid area which may be peculiarly affected, and receive special benefits from the improvement. At least, we can not say as a matter of law that with that state of facts the legislative determination is unreasonable and sbonld be disregarded. Nor sbonld we say that because tbe improvement consists of more than one road it can not be treated as a single improvement so as to be constructed under one organization and assessment of benefits. That is also a matter of legislative determination, and we must accept as conclusive tbe finding of tbe Legislature that this system of roads constitutes a single improvement, unless that finding is obviously and demonstrably erroneous. Tbe decision in tbe case of Conway v. Miller County Highway & Bridge District, 125 Ark. 329, has direct bearing on this question, for we held there that tbe construction of several roads diverging from a common point might be treated as a single improvement. In Wilson v. Blanks, 95 Ark. 497, we said that after indulging tbe proper presumption with respect to tbe validity of the acts of a city council in creating an improvement district, it could not be said that tbe construction of waterworks and an electric light plant under one organization constitutes separate and independent improvements so as to invalidate tbe organization. So we bold in tbe present case that tbe conditions are not such as would justify us in disregarding tbe determination of the Legislature to tbe effect that tbe roads grouped together in this organization constitutes a single improvement of a local nature.
5. Tbe fact that an error was made in framing tbe statute whereby some of tbe land descriptions were duplicated can not in any view of tbe matter affect tbe validity of tbe statute. It is an obvious error which should be entirely disregarded in testing tbe validity of tbe statute. It can not be construed as an effort to tax tbe lands twice, and it does not operate as an exclusion of lands which ought to be taxed, or the inclusion of lands which ought not to be taxed. In other words, tbe duplication has no effect either upon tbe size of tbe district or tbe construction of tbe improvement, and,'therefore, must be treated as immaterial.
6. Section 35 of tbe statute provides that if any part of tbe roads named should be improved, by or through any other agency, before this district can proceed with the work of improvement, then it shall be the duty of the commissioners to credit the assessment of benefits against any of said land with 'such amounts as represent the amount that said benefits are reduced b.ecause of said improvements in any part of the said road made by other agencies than the district and accepted by the district as complying with their plans; and in section 36 of the statute it is provided that if the Drew-Desha District, another district created by the Legislature, shall let a contract prior to August 1, 1917, for the construction of a part of the roads embraced in the terms of this statute, credit should be given on the assessment of benefits the same as provided in the preceding section. Otherwise, that that part of the improvement be done through the present agency, that is to say, by the district created under this statute. This whole matter fell within the power of the lawmakers, and it was not. beyond that power to determine which of the agencies should construct the roads and under what circumstances. The Legislature had the power, in other words, to provide that the Drew-Desha district should improve a given portion of the road, if done by a certain time, otherwise that it should be embraced in the improvement contemplated by the statute now under consideration. The act does not by any means contemplate double assessment for the same improvement, nor does the construction of the improvement by either one of those agencies nullify the power of the other to proceed with the balance of the authorized improvement. Boles v. Kelley, 90 Ark. 29; McDonnell v. Improvement Dist. No. 145, Little Rock, 97 Ark. 334; Fellows v. McHaney, 113 Ark. 369; Keystone Drainage Dist. v. Drainage Dist. No. 16, 121 Ark. 16.
The statute enacting the Drew-Desha district was approved and went into effect seven days later than the statute under consideration, and contained no limitation with respect to time for letting contract for construction of this portion of the road. We construe this later statute as an elimination of the period of time specified for let ting the contract as to the part of the road referred-to, hut this does not affect the powers of this district to proceed with the construction if the other district should for any reason fail to do so.
The various questions presented in this case are not free from difficulty, hut after mature consideration we are of the opinion that the Legislature has not transcended its power in the creation of this improvement district, and that there are no grounds for holding that the statute is invalid. The learned chancellor erred, therefore, in the decree, and the same is reversed with directions to dismiss the complaint for want of equity.
Act 265, p. 1366, Acts of 1917. rRen | [
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George Rose Smith, J.
This is a claim against the county for damages of $40,000 assertedly suffered by the appellees as a result of a lowering of the grade of Highway 67 in front of their service station. The county court disallowed the claim, finding it excessive. Upon appeal to the circuit court the appellees were awarded a verdict and judgment for $10,000. The county contends that the State alone is liable to the claimants and, alternatively, that incompetent evidence was introduced at the trial.
In 1954 and 1955 the State Highway Commission approved a plan for the renovation of Highway 67 in Hot Spring county. Pursuant to Ark. Stats. 1947, § 76-510, the Commission applied to the county court for assistance in the project. The court granted the petition and entered an order requiring any aggrieved landowner to present his claim within one year. It is conceded that by this order the county made itself liable for the value of the land that was actually taken as a right-of-way for the improvement. Ark. State Highway Com’n v. Palmer, 222 Ark. 603, 261 S. W. 2d 772.
It happened, however, that none of the appellees’ property, which abutted the highway for a distance of 120 feet, was actually taken. Along their frontage the pre-existing right-of-way was used, hut the roadbed was lowered about three feet, causing the damage now complained of.
The county points out that the Highway Commission controls the grade of state highways and could have lowered the roadbed in front of the appellees ’ land without applying to the county court for assistance. Counsel also seek to deduce from some of our prior decisions a rigid rule by which liability for a change in the grade of a street or highway would he limited to the public agency having the authority to make the change. Among the cases cited are Eickhoff v. Street Imp. Dist. No. 11, 120 Ark. 212, 179 S. W. 367; Red v. Little Rock Ry. & Elec. Co., 121 Ark. 71, 180 S. W. 220; and Road Imp. Dist. No. 6 v. Hall, 140 Ark. 241, 215 S. W. 262. It is accordingly urged that the appellees have no claim against the county and that their only remedy was against the State, either by a suit for an injunction or by an application to the Claims Commission.
We are unable to agree with this reasoning. None of the cases relied upon lays down the inflexible principle that the appellant would have us adopt; each case merely holds that a particular public agency was not liable under certain statutes not pertinent to the present controversy. Here the county’s liability derives from Ark. Stats., § 76-510, which authorizes the Highway Commission to call upon the county court to change or widen any state highway, in the manner provided by § 76-917. The latter section empowers county courts to make such changes in old roads as may be deemed proper. It is plain enough that the county may assume the responsibility for a change in the existing highway, whether or not the acquisition of additional right-of-way is involved.
Here the county court’s order gave no hint to the affected landowners that the county meant to restrict its liability to the value of land actually taken. The order recites the fact that the road is to be rehabilitated as set out by the Highway Commission’s plan and specification, that the improvements asked for in the Commission’s petition are accepted, and that any landowner who is affected by the order is to present his claim to the county court. Although the record is not wholly clear on the point, it appears that the Commission’s plans and specifications contemplated the change in grade along the appellees’ land. To say the least, it may fairly be assumed that the Highway Commission did not embark upon an extensive renovation of Highway 67 without knowing what the finished grade would be. A landowner who is damaged by a change in the grade of the highway is protected by the constitution to the same extent as one whose land is actually taken. Clark County v. Mitchell, 223 Ark. 404, 266 S. W. 2d 831. If the county intended to assume the latter liability only, that intention should have been clearly disclosed by the order, so that the public would not be misled.
On the second point, however, the judgment must be reversed. An expert witness for the claimants was permitted to arrive at the value of the land, before the change in grade, by capitalizing the income derived from the service station on the property. This was error. Hot Spring County v. Crawford, 229 Ark. 518, 316 S. W. 2d 834. The record does not support the argument that this income consisted only of rent received by the appellees from lessees of the property; Bowman testified that he operated the station himself for a substantial part of the period that was considered in the capitalization of income.
Reversed and remanded for a new trial. | [
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Karen R. Baker, Judge.
Appellant, Manuel Meraz-Lopez, appeals a jury verdict convicting him of possession of marijuana with intent to deliver and possession of drug paraphernalia and sentencing him to a total of240 months’ imprisonment. His sole challenge to this conviction is that the trial court erred by denying his motion to suppress evidence seized from the trunk of his car at the scene of a traffic stop. We agree.
At 10:04 p.m. on January 30, 2004, Arkansas State Trooper Jason Aaron activated his lights to pull over a 2004 Crown Victoria that was following the vehicle in front of it too closely. The trooper testified that the car took longer than most cars to pull over in response to his lights. When the car stopped, Aaron approached the passenger side of the vehicle and explained to the appellant, who was the driver, that he had been following the car in front of him too closely. Appellant explained that the car in front of him slowed down as it crossed the state line, causing him to follow it too closely. While speaking to appellant, Aaron noticed that appellant had a brand new cellular telephone, new atlases, fast food wrappers, and energy drinks scattered in the front. Aaron considered the presence of these items as indicators of possible criminal activity.
Aaron explained that “we’ve encountered [possession of new cell phones] in almost every single one of our drug arrests” because drug couriers were provided telephones so that the drug suppliers could track the couriers. While the new phone was not suspicious on its own, the appellant’s hands were shaking when he handed the trooper his paperwork, consisting of the car’s rental agreement and his driver’s license. In addition, the rental agreement indicated that the car had been rented on January 28 in Palmdale, California, and was due back there on February 4, while appellant’s driver’s license indicated that he lived in Phoenix, Arizona. Appellant’s reason for the discrepancy was that he was driving to Little Rock to visit family for two days before returning to Palmdale and moving to California. The trooper viewed this information as suspicious in that appellant was driving more than 3,400 miles for a two-day visit, and that in his experience, drug couriers take such atypical trips.
After checking appellant’s paperwork, the trooper asked appellant to come to the back of the car so he could issue him a warning. The trooper described appellant at this point as “extremely nervous” as though he were “going to pass out.” The trooper viewed appellant’s nervousness as excessive when compared with the nervousness he normally encounters during traffic stops. In response to the trooper’s question inquiring whether appellant felt well, however, appellant explained that he was shaking and starting to feel sick due to going suddenly from the warm car to the cold, night air.
Trooper Aaron issued appellant a warning at approximately 10:10 p.m., six minutes after the stop, and then asked whether he could search appellant’s car. As this was occurring, Olen Craig, also of the Arkansas State Police, arrived at the scene. Although Aaron and appellant had been conversing in English during the entire stop, when the trooper asked for consent to search, appellant seemed suddenly to not understand English. Other testimony indicated that Trooper Craig and an officer who later interviewed appellant, Special Agent Doug McAllister, agreed with Trooper Aaron’s assessment that appellant appeared to be fluent in English. Trooper Aaron nevertheless retrieved a consent form in Spanish, and appellant began to review it. The trooper asked appellant whether he felt okay, and appellant responded that he felt like he was going to be sick, going from hot to cold without a jacket. The trooper explained that because he was concerned that appellant was going to fall, he asked appellant whether he wanted to sit in his patrol car, and appellant said, “yes.”
Although appellant eventually signed the consent form, it is unclear whether he did so before Trooper Eric Schrock arrived at the scene with his drug dog and ran it around the car from 10:24 to 10:26 p.m. The dog alerted on the trunk of the car, resulting in the discovery of three boxes containing approximately ninety-five pounds of marijuana.
Appellant does not challenge Trooper Aaron’s initial stop of the car, but argues that the trial court erred in failing to suppress the evidence seized from the traffic stop because a reasonable suspicion did not exist to continue to detain the appellant after the warning ticket was issued. In his argument, appellant alleges constitutional violations as well as violation of Rule 3.1 of the Arkansas Rules of Criminal Procedure. The State argues that the constitutional argument is not preserved for appellate review because appellant relied exclusively upon Rule 3.1 at the suppression hearing. However, we need not decide the waiver issue in that appellant’s reliance upon Rule 3.1 is well taken, and we reverse on that basis.
When we review the denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of fact for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court. Simmons v. State, 83 Ark. App. 87, 118 S.W.3d 136 (2003). In order for a police officer to make a traffic stop, he must have probable cause to believe that the vehicle has violated a traffic law. Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004). Whether a police officer has probable cause to make a traffic stop does not depend on whether the driver was actually guilty of the violation that the officer believed to have occurred. Id. at 512, 157 S.W.3d at 533. As part of a valid traffic stop, a police officer may detain the party while the officer completes certain routine tasks — such as computerized checks of the vehicle’s registration, the driver’s license, and the driver’s criminal history — and writes the driver a citation or warning. Id. at 514, 157 S.W.3d at 535. During this process, the officer may ask the party routine questions such as the party’s destination, the purpose of the trip, and whether the officer may search the vehicle; the officer may act on whatever information is volunteered. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001).
Under Ark. R. Crim. P. 3.1, a detention without arrest may transpire under certain circumstances:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.
Pursuant to Ark. R. Crim. P. 2.1, “reasonable suspicion” is defined as “a suspicion based on facts or circumstances [,] which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion ... a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.” Our supreme court has held that the determination of whether an officer has reasonable suspicion depends on whether, under the totality of the circumstances, the officer has specific, particularized, and articulable reasons indicating that the person may be involved in criminal activity. Laime, 347 Ark. at 155, 60 S.W.3d at 473. In the absence of reasonable suspicion, it is unlawful for law enforcement to detain a party once the legitimate purpose of the traffic stop is concluded. Sims, 356 Ark. at 515, 157 S.W.3d at 536.
This case is similar to Sims, supra. In Sims, during a valid traffic stop made midday, the police noticed that the driver was nervous and sweating and thought it was strange that he volunteered an odd comment about having just been to Wal-Mart to buy a swing set. After telling Sims that the traffic stop was over, the police then decided to run a drug dog around the car. Our supreme court held that reasonable suspicion to detain did not exist, primarily because nervousness alone does not give rise to reasonable suspicion. Id.
The recent case of Lilley v. State, 362 Ark. 436, 208 S.W.3d 785 (2005) is also instructive. In Lilley, our supreme court focused on when the traffic stop was over and held that reasonable suspicion did not exist based on the fact that Lilley was nervous, he was drinking energy drinks, his car smelled like air freshener, the rental agreement was for one-way travel, and the car was rented in another person’s name, although Lilley was listed as an additional driver. As our supreme court explained, taken as a whole, these facts are seemingly innocent. But cf. Burks v. State, 362 Ark. 558, 210 S.W.3d 62 (2005) (distinguishing Lilley and finding that the facts at the time the traffic stop was over suggested that the rental car had been stolen).
Likewise, under the totality of the circumstances in this case, we hold that the facts do not establish “specific, particularized, and articulable reasons” that criminal activity was afoot. The presence of a brand new cellular telephone, new atlases, fast food, and energy drinks scattered in the front are seemingly innocent. Even if appellant’s shaking was due to nervousness, rather than the cold air of the January night, nervousness alone is not a sufficient basis to detain an individual. See Laime, supra. Consequently, the trial court erred in failing to suppress the evidence obtained as a result of the search of the car.
While a consent to search was eventually signed, the uncertainty of when it was signed cannot remedy the unwarranted detention which resulted in the officer’s securing the consent.
Accordingly, we reverse and remand.
Crabtree, J., agrees.
Pittman, C.J., concurs.
The State has a heavy burden to prove by clear and positive testimony that consent was freely and voluntarily given. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002); Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999). The testimony in this case fell short of the burden to prove that the consent was given prior to the search.
We attempted to certify this case to the supreme court; however, the supreme court declined to accept certification upon handing down its decision in Lilley v. State. | [
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Andree Layton Roaf, Judge.
Deborah Broadway Hutcheson was charged as an accomplice for two counts of rape and one count of second-degree sexual assault for acts committed against her daughter, A.M.H. A Saline County jury found Hutcheson guilty of all three counts and recommended a sentence of twenty-five years for each of the rape convictions and ten years on the second-degree sexual assault conviction. The jury also recommended that the sentences be consecutive. The trial judge accepted the jury’s recommendations, and Hutcheson was sentenced to a total of sixty years’ imprisonment. On appeal, Hutcheson argues that the trial court erred (1) in denying her motions for directed verdict because there is insufficient evidence to establish accomplice liability; (2) in overruling her objections during voir dire and allowing the State to improperly commit the jury to a position on factual situations; (3) in ruling that her co-defendant’s statements made to the investigating officer were admissible as an exception to the hearsay rule; and (4) in instructing the jury on accomplice liability by instructing the jury that she had a legal duty to prevent criminal acts of sexual abuse as set out in Ark. Code Ann. § 9-27-303(35) (Supp. 2003). We find no merit to these arguments, and we affirm.
Hutcheson is the mother of two children: A.M.H., the victim in this case, and Michael Hutcheson. Sometime in 1995, Hutcheson permitted Kenneth Ragan to live with her and her two children. For two years, Ragan sexually assaulted A.M.H., who was then eight or nine years old. Although A.M.H. reported the abuse to Hutcheson, Hutcheson did nothing, and no action was taken until A.M.H. reported the rapes to her school counselor. School officials reported the abuse to the Department of Human Services, and DHS opined that Hutcheson had been wrong in failing to report the abuse of her child. Charges were filed against Ragan, and he was convicted and incarcerated for the crimes committed against A.M.H. and another child.
Shortly thereafter, Hutcheson permitted Gary Anderson and his mother, Maxine Anderson, to live with her family. Anderson also sexually assaulted A.M.H., then ten years old, for a period of approximately five years. Hutcheson again turned a deaf ear to her daughter’s complaints, opting instead to take A.M.H. to the doctor to get birth-control pills. After Hutcheson refused to help her, A.M.H. again reported the abuse to her school officials, and another DHS investigation was initiated. When Hutcheson learned that DHS had been contacted, she took A.M.H. and Michael and fled from Garland County to Benton, in Saline County. Although Anderson had been jailed for the sexual-assault allegations, upon his release, Hutcheson permitted him to move back with her family in Benton. Each time A.M.H. told Hutcheson about the assaults, Hutcheson instructed her not to tell anyone about what had happened.
When A.M.H. reported an incident of rape by use of a bottle to Hutcheson, Hutcheson refused to listen to A.M.H. and refused to seek medical attention for the child even though A.M.H. reported to her mother that she was bleeding and in pain. When Maxine Anderson witnessed Gary Anderson raping A.M.H., she reported the incident to Hutcheson, and A.M.H. asked Hutcheson to repair the door to her bedroom so that she could keep Anderson out. Hutcheson refused, and she did not call the police or seek medical attention for her A.M.H.
Approximately two months following the bottle incident, Anderson went to jail, and Hutcheson permitted Ragan to move back in with her and her children. Even though Ragan had already been convicted of molesting A.M.H. and was classified as a level-three-sex offender, Hutcheson allowed him to keep some of his belongings in A.M.H.’s room and sleep there on a few occasions. When asked why she permitted Ragan to sleep in A.M.H.’s room over her protests, Hutcheson responded, “Because really I didn’t care.” While living with the Hutchesons, Ragan was employed delivering newspapers. On at least four occasions, Hutcheson forced A.M.H. to accompany Ragan on his paper route from Benton to Hot Springs even though A.M.H. stated that she did not want to go, and the route lasted from 10:30 p.m. until 5:00 a.m. and A.M.H. had to awake for school at 7:00 a.m. During the drive from Benton to Hot Springs, Ragan molested A.M.H., then age fifteen, and on at least one occasion he pulled over and raped her. These incidents were also reported to Hutcheson, who again did nothing.
Following Ragan’s arrest, Hutcheson gave a taped statement, in which she admitted that she was jealous of her daughter; that she did nothing when her daughter reported that Anderson and Ragan were assaulting her; that she did not care that A.M.H. was being assaulted because she was jealous of her; that she refused to confront her daughter’s assailants because she feared that they would leave; and that she needed Ragan and Anderson for transportation and income. During the statement, Hutcheson also admitted that she used A.M.H. to keep men around the house and to keep income coming in. Hutcheson was tried and convicted in the Saline County Circuit Court on April 1, 2004, and this appeal ensued.
For her first point on appeal, Hutcheson argues that the trial court erred in denying her motions for directed verdict because there is insufficient evidence establishing accomplice liability. For her fourth point on appeal Hutcheson argues that the trial court erred in instructing the jury on accomplice liability by instructing them that she had a legal duty to protect A.M.H. from criminal sexual acts as set out in Arkansas Code Annotated § 9-27-303(35) (Supp. 2003). Because these two points are related, we have discussed them together.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Lowry v. State, 90 Ark. App. 333, 205 S.W.3d 830 (2005). On appeal from the denial of a motion for directed verdict, the sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Circumstantial evidence may provide the basis for support of the appellant’s conviction, but it must be consistent with the appellant’s guilt and inconsistent with any other reasonable conclusion. Nelson v. State, 84 Ark. App. 373, 141 S.W.3d 900 (2004). Substantial evidence is that evidence which is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Lowery, supra. This court considers only the evidence supporting the guilty verdict, and the evidence is viewed in the light most favorable to the State. Id. Determinations of credibility are left to the jury. Nelson, supra.
A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he solicits, advises, encourages, or coerces the other person to commit it; or aids, agrees to aid, or attempts to aid the other person in planning or committing the offense; or having a legal duty to prevent the commission of the offense, fails to make proper effort to do so. Ark. Code Ann. § 5-2-403(a)(l)-(3) (Repl. 1997). Factors relevant in determining whether a person is an accomplice include the presence of the accused near the crime, the accused’s opportunity to commit the crime, and association with a person involved in the crime in a manner suggestive of joint participation. Releford v. State, 59 Ark. App. 136, 954 S.W.2d 295 (1997). Typically, mere presence or negative acquiescence and passive failure to disclose a crime are neither separately nor collectively sufficient to make one an accomplice. Learv. State, 278 Ark. 70, 643 S.W.2d 550 (1982). Further, knowledge that a crime is being or is about to be committed usually cannot be said to establish accomplice liability; nor can the concealment of knowledge, or the mere failure to inform the officers of the law when one has learned of the commission of a crime. Id. In short, absent a legal duty, presence, acquiescence, silence, knowledge, or failure to inform an officer of the law is not sufficient to make one an accomplice. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988).
In this case, Hutcheson was convicted as an accomplice of two counts of rape and one count of second-degree sexual assault. On appeal, she argues that the trial court’s ruling is erroneous because the State did not show that she aided, or agreed to aid, attempt to aid, solicit, advise, or encourage Anderson or Ragan in their acts against her daughter. Relying on Scherrer, supra, Hutcheson first points out that mere presence at the scene of a crime does not make her an accomplice and further asserts that neither her knowledge that the crimes had been committed, nor her concealment of knowledge makes her an accomplice. We disagree.
In Schener, supra, the appellant was found guilty of first-degree murder for the rape and murder of Debbie Watts. Terry Harrison, the appellant’s accomplice, and Billy Ivey were the principal witnesses at the trial. Id. Their testimony essentially established that the appellant raped Watts, cut her throat, and then put her body in a nearby canal. Id. The supreme court held that the evidence showed that Harrison was clearly an accomplice but that Ivey was not. Id. The evidence established that Ivey was present at the scene, witnessed the crime, and failed to notify the police, but did not participate. Id. The jury found that Ivey was not an accomplice, and the supreme court affirmed. Id.
The proposition set out in Schener, supra, is correct: mere presence or knowledge, or failure to act, does not make one who, without a legal duty to do so, an accomplice. However, that is not the circumstance in the case at bar, and the Schener holding is not applicable to this case. Hutcheson, as A.M.H.’s parent, had a legal duty to protect A.M.H. from Ragan and Anderson, and her silence, knowledge, concealment, and failure to inform law enforcement officers of the sexual assaults committed against her daughter makes her an accomplice to those assaults. An accomplice is someone who has a legal duty to prevent the commission of an offense and fails to make a proper effort to do so. As the supreme court stated in Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985) (overruled on other grounds), each parent has a duty to prevent injury to their child. Accomplice liability for permitting child abuse has also been upheld in Williams v. State, 267 Ark. 527, 593 S.W.2d 8 (1980). The supreme court held that the evidence sufficiently established that the appellant committed first-degree battery upon her ten-month-old daughter. Id. The court noted that the man with whom the appellant lived was abusing the child; that there was no doubt that the appellant could not have been around the child without knowing of the injuries; and that our courts no longer make a distinction between the principal and accessory. Id; see also Burnett, supra (stating that the evidence of abuse was overwhelming; that the evidence shows that both parents could not have been ignorant of the abuse; and that each parent had a duty to prevent injury to the child).
Here, Hutcheson had a legal duty to protect A.M.H. from Ragan and Anderson. There is no doubt that Hutcheson was aware that the two men were raping her daughter at various times when the girl was between eight or nine and fifteen years of age. Hutcheson admitted that A.M.H. told her of the assaults and, at one time, requested that a lock be put on her door. Maxine Anderson told Hutcheson that she observed her son engaging in sexual intercourse with A.M.H., and A.M.H. verified her allegation. Despite the fact that Ragan had served time for sexual assault upon A.M.H., Hutcheson allowed him to move in with them and forced A.M.H. to accompany him on an overnight paper route. Hutcheson admitted that she moved from one county to another to evade DHS’s investigation after being told that she had been wrong in failing to report the sexual abuse of her daughter. Because Hutcheson had a legal duty to protect A.M.H. when she became aware of the offenses being committed against her daughter, and because she concealed her knowledge and failed to act, she is an accomplice to those offenses committed by Ragan and Anderson. Burnett, supra; Williams, supra.
Likewise, we find that it was not error for the trial court to give the jury an instruction regarding parental duty to protect children from abuse. Hutcheson argues that the trial court abused its discretion by instructing the jury concerning Hutcheson’s legal duty to protect her child from abuse, by permitting the State to modify the model jury instruction on accomplice liability. Relying on Ark. Code Ann. § 9-27-303 (Supp. 2003), the jury was instructed:
A parent has a legal duty to prevent the abuse of her child when the parent knows or has reasonable cause to know the child is or has been abused. A parent has a legal duty to take reasonable action to protect her child from abandonment, abuse, sexual abuse, sexual exploitation, neglect, or parental unfitness where the existence of this condition was known or should have been known. A parent has a legal duty to appropriately supervise her child and prevent the child from being left alone at an inappropriate age or in inappropriate circumstances which put the child in danger.
Hutcheson essentially argues that this jury instruction extends accomplice liability and allows courts to criminally punish on the basis of “bad parenting.”
An AMCI instruction is to be used unless the trial judge finds that it does not accurately state the law. Love v. State, 281 Ark. 379, 664 S.W.2d 457 (1984). If there is no instruction on a subject upon which the judge determines the jury should be instructed, an appropriate instruction can be given. Id. Because the AMCI instruction did not contain a definition of parental duty, and because the jury should have been instructed regarding Hutcheson’s legal duty to protect her child, the trial court did not abuse its discretion in permitting the modified instruction.
Lastly, under this point, Hutcheson argues that the trial court’s admission of an order terminating her parental rights to A.M.H. was so prejudicial that it denied her due process of the law because the jury was bound to find that she had violated her legal duty to A.M.H. because a court had already made that determination. The termination order was admitted into evidence without objection, and Hutcheson cannot now complain on appeal. London v. State, 345 Ark. 313, 125 S.W.3d 813 (2003).
For her second point on appeal, Hutcheson argues that the trial court improperly permitted the State to ask inappropriate questions during voir dire in an attempt to get each juror to commit to a vote of guilty based on similar fact patterns before the jury had heard evidence in the instant case. During voir dire, the prosecutor asked the jury several questions relating to parental duty. For example, the prosecutor asked a juror whether a mother should be held accountable if something happened to her baby while she was passed out after taking methamphetamine. The juror responded in the affirmative. The prosecutor also asked whether the jurors agreed that teachers have a duty to protect children while they are in their custody and whether the jurors agreed that our society has established laws to protect children because they cannot protect themselves. The jury agreed.
The purposes of voir dire examination are to discover if there is any basis for challenges for cause and to gain knowledge for the intelligent exercise of peremptory challenges. Nutt v. State, 312 Ark. 247, 848 S.W.2d 427 (1993). Those purposes do not include an attempt to commit the jurors to a decision in advance. Id. “Prospective jurors may not be questioned with respect to a hypothetical set of facts expected to be proved at trial and thus commit the jury to a decision in advance, but... they may be questioned . . . about their mental attitude toward certain types of evidence, such as circumstantial evidence.” Id.; see also Haynes v. State, 270 Ark. 685, 66 S.W.2d 563 (1980) (holding that it was improper to excuse a juror for cause where she commented during voir dire that she was unaware of whether she would be able to impose the maximum sentence without hearing all of the evidence). The conduct of voir dire is left to the broad discretion of the trial court. Sharp v. State, 90 Ark. App. 81, 204 S.W.3d 68 (2005). Unless the trial court’s discretion is clearly abused, it will not be reversed. Sanders v. State, 278 Ark. 420, 646 S.W.2d 14 (1983).
It appears that the State was merely posing questions to the jury in an effort to establish that the jury pool understood the concept of parental duty, a key issue in the instant case. The questions posed by the prosecution thus were a permissible use of voir dire examination. Because the trial court is given broad discretion over the conduct of voir dire, we affirm. Moreover, Hutcheson never requested an admonition or mistrial, and she, therefore, cannot demonstrate prejudice. Sanders, supra.
For her third point on appeal, Hutcheson argues that the trial court erred in admitting statements that Ragan, her co-defendant, made to Randy Gibbins, the investigating detective. During the trial, Gibbins testified that he investigated A.M.H.’s allegations that Ragan had sexually assaulted her during the paper-route trips from Benton to Hot Springs. During his investigation, Gibbins spoke with Ragan regarding the allegations, and a statement was taken. Over Hutcheson’s objection, Gibbins testified that he showed Ragan a map and that Ragan showed him where the specific acts had taken place in Saline County. Gibbins also testified that Ragan admitted that he had raped A.M.H. in Saline County. Hutcheson also objected to this testimony, and the trial court allowed the testimony pursuant to the statement-against-interest exception to the hearsay rule.
Admissibility of evidence is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Taylor v. State, 88 Ark. App. 269, 197 S.W.3d 31 (2004). Our appellate courts will not reverse a trial court’s ruling on a hearsay question unless the appellant can demonstrate an abuse of discretion. Id. “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ark. R. Evid. 801(c) (2005); Taylor, supra. Hearsay testimony is gener ally inadmissible. Ark. R. Evid. 802 (2005); Taylor, supra. Rule 804(b)(3) (2005) allows for the admission of a statement made by an unavailable declarant, which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, that a reasonable man in his position would not have made the statement unless he believed it to be true. Notwithstanding that exception, the last sentence of Rule 804(b)(3) provides that a statement or confession offered against the accused in a criminal case, made by a co-defendant or other person implicating both himself and the accused, is not within the statement-against-interest exception to the hearsay rule. Ark. R. Evid. 804(b)(3); Jones v. State, 45 Ark. App. 28, 871 S.W.2d 403 (1994) (holding that the trial court did not err in admitting the witness’s testimony where the court excluded any evidence of the declarant’s statement implicating the appellant, and where no “statement” was offered to prove the truth of the matter asserted); Burkett v. State, 40 Ark. App. 150, 842 S.W.2d 857 (1992) (reversing and remanding the case for new trial where the trial court admitted the appellant’s girlfriend’s statement at his trial for possession of a controlled substance and her statement was offered against the appellant, implicated them both, and therefore did not fall within the statement-against-interest exception to the hearsay rule).
Hutcheson’s reliance on Jones v. State, supra, for her assertion that a statement or confession by a co-defendant or other person implicating himself is not within the statement-against-interest exception to the hearsay rule, is misguided. Both Jones, supra, and Burkett, supra, make it clear that the last sentence of Rule 804(b)(3) requires that the declarant’s statement be offered against the accused and implicate both the declarant and the accused to take it outside the exception. In Jones, supra, the court noted that the trial court excluded any evidence implicating the appellant, and found that the appellant’s reliance on Rule 804(b) (3)’s final sentence was thus unavailing. Similarly, Ragan’s statement that he raped A.M.H. in Saline County did not implicate Hutcheson, and her reliance on the last sentence of Rule 804(b)(3) and the Jones holding is likewise unavailing.
Affirmed.
Bird and Baker, JJ., agree.
A person commits rape if she engages in sexual intercourse or deviate sexual activity with another person: by forcible compulsion; or who is incapable or consent because he or she is physically helpless, mentally defective, or mentally incapacitated; or who is less than fourteen years of age. Ark. Code Ann. § 5~14-103(a)(l)(A)-(C) (Supp. 2003). A person commits sexual assault in the second degree if the person: engages in sexual contact with another person by forcible compulsion; engages in sexual contact with another person who is incapable of consent because the person is physically helpless, mentally defective, mentally incapacitated; being eighteen years of age or older engages in sexual contact with another person, not the person’s spouse, who is less than fourteen years of age. Ark. Code Ann. § 5-14-125 (Supp. 2003).
Ark. R. Evid. 804(a) (2005). We note that it does not appear that the trial court found that Ragan was unavailable at Hutcheson’s trial. However, she did not object to the State’s reliance on Rule 804(b)(3), which requires that the declarant be unavailable. | [
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Josephine Linker Hart, Judge.
Appellant, Samuel Evans, argues that, by refusing to lower his alimony payments, the circuit court erroneously modified the terms of a property-settlement agreement between him and appellee, Benita Evans, that provided for reduction of his alimony payments while he worked outside of the United States as a medical missionary. We affirm, concluding that the court’s refusal to lower his alimony payments was a proper exercise of its contempt powers.
On December 18, 2000, a decree was entered granting appellee a divorce from appellant. Incorporated into the decree was the parties’ property-settlement agreement, which provided in part as follows:
[Appellant] will pay to [appellee] the sum of $5,000.00 per month, as alimony, on the first day of each month. . . . [Appellee] acknowledges that [appellant] plans to become a medical missionary and agrees that, despite any economic hardship it may cause her, [appellant’s] alimony payments should be reduced to $1,000.00 during each month he lives outside the United States while pursu ing this lifelong ambition. Upon [appellant’s] return to the United States alimony payments of $5,000.00 per month shall immediately resume.
The agreement further provided that appellant would pay appellee $100,000 following the sale of the marital residence.
Following the sale of the residence, the court, in an order filed August 13, 2001, found appellant “in willful contempt of the Decree of Divorce entered herein for failure to pay alimony and for failure to meet other financial obligations” and ordered him to pay, along with other sums, $100,000 plus interest relating to the disposition of the parties’ marital home. The court also instructed appellant to “surrender his passport” to the court and ordered that his “passport shall not be returned to him, nor shall [appellant] apply for a duplicate passport,” until appellant had made the required payments, including payment of the $100,000 plus interest.
On January 11, 2002, appellee filed a petition asking that appellant be held in contempt. The matter was not heard, however, until May 13, 2004. At the hearing, appellant’s counsel argued that, in accordance with the property-settlement agreement, appellant’s monthly alimony payment decreased to $1000 beginning in January 2002 when he left the United States and became a medical missionary. During his testimony, appellant admitted that he had obtained a duplicate passport and left the United States on December 30, 2001, for the Philippines, where he practices as a medical missionary. He also admitted that he filed for bankruptcy in Missouri in August 2002, that he had not paid $100,000 to appellant, and that this payment was still within the jurisdiction of the bankruptcy court. Also introduced into evidence was an order from the bankruptcy court that awarded appellee a judgment for any unpaid alimony.
In its June 1, 2004, order, the court found appellant in contempt of court for “applying for a duplicate passport and blatantly leaving the United States against the Court’s Order and for not paying alimony payments as ordered.” In calculating appellant’s alimony arrearages, the court stated that appellant “is not entitled to receive a reduction of the $5,000.00 per month obligation from January 2002 through July 2002, since [appellant’s] departure from the United States during this time period was in violation of the Court’s Order.” The court further ordered that the “monthly alimony obligation of [appellant] shall be reduced to $1,000.00 per month effective from August 2002, to present, provided that the United States Bankruptcy Court in Missouri discharges [appellant] from his obligation ... to pay [appellee] $100,000.00.” The order further provided that if appellant was “not allowed a discharge of this obligation, then additional alimony arrearages shall be calculated from August 2002 through the date of this hearing at the rate of$5,000.00 per month, with a supplemental order being issued from this Court awarding [appellee] judgment against [appellant] for this additional sum.”
On appeal, appellant argues that the court erred by modifying the parties’ property-settlement agreement and ordering him to pay $5000 a month in alimony even though the agreement reduced his alimony obligation to $1000 a month while he was working as a medical missionary outside of the United States. We note the well-established Arkansas jurisprudence that when parties enter voluntarily into an independent property-settlement agreement that is incorporated into a decree of divorce, the agreement cannot subsequently be modified by the court. See, e.g., Gentry v. Gentry, 327 Ark. 266, 938 S.W.2d 231 (1997). Appellant, however, acknowledged in his brief to this court that he was properly found in contempt of the circuit court’s order for leaving the United States and for violating the parties’ agreement. And if appellant had abided by the court’s order, then he would have remained in the United States and continued to pay alimony at the rate of $5000 a month.
The Arkansas Supreme Court has stated that if “an act interferes with the order of the court’s business or proceedings, or reflects upon the court’s integrity, that act is deemed contemptuous” and that a “court’s contempt power may be wielded to preserve the court’s power and dignity, to punish disobedience of the court’s orders, and to preserve and enforce the parties’ rights.” Hart v. McChristian, 344 Ark. 656, 670, 42 S.W.3d 552, 562 (2001). In Hart, although the parties’ limited-partnership agreement required each party to pay one-half of any costs associated with arbitration, the Arkansas Supreme Court concluded that the trial court properly assessed one party the other half of the costs as punishment for violating the court’s orders. The court concluded that “the contempt award was not a modification of the parties’ limited-partnership agreement but a valid exercise of the court’s inherent contempt power.” Id. at 671, 42 S.W.3d at 562. In the case at bar, the circuit court’s decision to order appellant to pay alimony at the rate of $5000, despite appellant’s presence in the Philippines as a medical missionary, was likewise not a modification of the terms of the agreement. Rather, it was a valid exercise of the court’s inherent contempt power for appellant’s violation of the court’s order restricting his travel outside of the United States until he satisfied his obligation under the agreement to make the $100,000 payment to appellee. Thus, we affirm.
Affirmed.
Bird and Crabtree, JJ., agree.
While appellant further argues that the doctrine of unclean hands is inapplicable, we do not address this argument because the court, in its order, did not rely on the doctrine. Instead, the court relied on its contempt powers and fashioned a remedy designed to enforce its prior order. | [
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John B. Robbins, Judge.
Appellant James Benjamin Wright was convicted in a bench trial of first-degree terroristic threatening, and was sentenced as a habitual offender to fifteen years in prison. Simultaneously, a revocation order was entered whereby Mr. Wright was sentenced to nine years in prison in connection with a prior guilty plea for first-degree terroristic threatening. The trial court ordered the two prison sentences to run concurrently.
Mr. Wright now appeals from each of the judgments. With respect to the conviction, Mr. Wright’s counsel has filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j)(l) of the Rules of the Arkansas Supreme Court and Court of Appeals, on the grounds that the appeal is without merit. Mr. Wright’s counsel has filed a merit appeal from the order of revocation, arguing that the trial court erred in revoking his suspended imposition of sentence because the State failed to introduce proof of his conditions as part of its case. We affirm the conviction and we reverse the revocation.
In this case, the trial on the first-degree terroristic threatening charges was conducted immediately prior to the revocation hearing. At the trial, Donna Wright testified that Mr. Wright is her husband, but that they are separated. Mrs. Wright stated that on the night of March 22, 2003, while Mr. Wright was under a protective order and was not to contact her, Mr. Wright came to her house and attempted to open the front door, but it was locked. Mr. Wright then cursed at Mrs. Wright, made a reference to her having company in the house, and threw a three-foot-tall ashtray through the front window. According to Mrs. Wright, Mr. Wright had been calling her on the phone and had threatened to burn her house down with her in it.
Mr. Wright’s counsel asserts in his brief that any appeal from the first-degree terroristic threatening conviction would be without merit, noting that there were no adverse rulings from which to appeal. Mr. Wright was provided a copy of his counsel’s brief and notified of his right to file a list of points for reversal within thirty days, but has failed to do so.
We agree that the appeal from Mr. Wright’s conviction is meritless. As Mr. Wright’s counsel points out, the only adverse ruling was the trial court’s denial of his directed-verdict motion. However, any challenge to the sufficiency of the evidence is not preserved for appeal because the motion was not specific as required by Ark. R. Crim. P. 33(b). A general motion that merely asserts that the State failed to prove its case is inadequate to preserve the issue for appeal. Beavers v. State, 345 Ark. 291, 46 S.W.3d 532 (2001). Mr. Wright’s counsel further asserts that even if a sufficiency challenge had been preserved it would be without merit, and we agree. The testimony of Mrs. Wright amounted to substantial evidence to convict Mr. Wright of first-degree terror-istic threatening, which is committed by a person if, “[w]ith the purpose of terrorizing another person, he threatens to cause death or serious physical injury or substantial property damage to another person.” See Ark. Code Ann. § 5-13-301 (a)(1)(A) (Repl. 1997).
Based on our review of the record and Mr. Wright’s counsel’s brief, we conclude that there has been full compliance with Rule 4 — 3(j)(1) and that the appeal from the conviction is without merit. Therefore, we affirm the conviction and grant Mr. Wright’s counsel’s motion to be relieved.
We now turn to Mr. Wright’s appeal from the revocation order, which has been briefed and argued on the merits. The revocation proceedings were premised on a judgment filed on August 9, 2002, which entered a conviction against Mr. Wright for first-degree terroristic threatening, and contained the handwritten notation that he not have any contact with Mrs. Wright. At the revocation hearing the State established that Mr. Wright violated the no-contact provision during the March 23, 2002, incident, where he tried to enter Mrs. Wright’s home and then threw an ashtray through her front window.
For reversal of the revocation, Mr. Wright contends that the proof was insufficient because the State failed to introduce into evidence the written conditions that he allegedly violated. Mr. Wright concedes that he failed to raise this argument below, but nonetheless asserts that no objection was necessary pursuant to Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001), where the supreme court held that defendants are not required to move for a directed verdict in revocation proceedings in order to preserve a challenge to the sufficiency of the evidence on appeal.
We find it unnecessary to address the argument being raised on appeal, and we reverse the revocation order sentencing Mr. Wright to nine years’ imprisonment. This is because the underlying order entered on August 9, 2002, does not reflect that Mr. Wright was given any probation or a suspended imposition of sentence. Instead, it imposes a sentence of 108 days in prison with credit for 108 days served. In both the State’s revocation petition and Mr. Wright’s brief to this court, it is represented that the August 9, 2002, order imposed a nine-year suspended imposition of sentence, less the 108 days served. However, the August 9, 2002, order contains no such provision.
In Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003), the supreme court held that a trial court does not have the authority to revoke a suspended sentence before the commencement of the period of suspension, and that in such instances the resulting sentence is void. In the case at bar, no suspended sentence ever commenced, and thus the order of revocation was unauthorized and the sentence void. Although Mr. Wright does not challenge the legality of his sentence on appeal, we review problems involving void or illegal sentences even if not raised on appeal and not objected to in the trial court. See Harness v. State, supra.
Mr. Wright’s conviction for first-degree terroristic threatening and resulting fifteen-year prison term is affirmed, and we grant his counsel’s motion to be relieved on the grounds that the appeal from the conviction is without merit. The unauthorized nine-year prison term is reversed and dismissed.
Affirmed in part; reversed and dismissed in part.
Griffen and Crabtree, JJ., agree. | [
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McCULLOCH, C. J.
Appellant is charged with the offense of selling intoxicating liquor, alleged to have been committed in the month of January, or early in February, of the present year. He was convicted in the trial below on the testimony of one Whybark to the effect that the witness applied to appellant on a street in the city of Fort Smith for a pint of whiskey, and that he gave appellant money for the price of the whiskey, and that appellant agreed to get it for him, and that he later found it in his room at the place at which he had directed appellant to deliver.
There was little, if any, conflict between the testimony of Whybark and that of appellant himself. Their testimony coincided substantially as to what took place between them, bnt appellant went a little further in his testimony and told about getting the whiskey and delivering it at Whybark’s room. Both of the men testified that Whybark accosted appellant near the latter’s taxicab stand or office in Fort Smith, and asked appellant about getting some liquor, or if he knew where he could get some. Appellant replied that whiskey was a very scarce article, and Whybark then suggested that he had heard that a negro bootlegger was plying his illegal commerce around one of the railroad stations in the city of Fort Smith. Appellant agreed to procure a pint of whiskey for Whybark and accepted the sum of $1 from the latter to pay for it. Appellant testified that he made inquiry around the railroad station and learned that a negro named Williams was. selling whiskey, and that he bought a pint of Williams and carried it to Whybark’s room and left it there. He testified that he had no relations whatever with Williams and bought the whiskey purely as an accommodation for Whybark.
There were some suspicious circumstances in the ease which would have warranted the jury in finding that appellant was interested in the sale, or that he was really the seller of the whiskey himself; or the jury might have found, on the other hand, that appellant acted purely as a matter of accommodation for Whybark, and accepted the money and bought the liquor for him without making himself in any manner an intermediary between the purchaser and the seller. Counsel for appellant asked the court to give the following instruction, among others, which the court refused to give:
“You are instructed that if the defendant, at the request of the prosecuting witness, and solely as the agent of the prosecuting witness and without having any interest in the sale of the liquor other than to procure the liquor for the prosecuting witness, went to the party from whom the whiskey was purchased and with the money furnished him by Whybark, and without making any profit or having any pecuniary interest or other interest in the sale, purchased whiskey which he carried to Why-bark, as a matter solely to accommodate Whybark, and not for the purpose of procuring a purchaser for the whiskey, or to assist in any way the seller in making the sale, then you should acquit the defendant. The court tells you that an intermediary, as mentioned in these instructions, is one who is employed to negotiate a matter between two parties and who for that reason is considered as the mandatary of both.”
We think the court should have given that instruction in order to place before the jury appellant’s contention concerning the effect of the transaction between him and Whybark. The evidence was, as before stated, sufficient to warrant the jury in finding appellant guilty on the theory that he procured whiskey from some one else, and was in fact the seller in the transaction with Why-bark, but there was another view of the testimony which justified the finding that appellant did not act as the seller, nor as the agent of the seller, nor as an intermediary between the seller and the purchaser.
The Attorney General relies, to sustain the ruling of the court, on the decision in Bobo v. State, 105 Ark. 462, and also the recent case of Williams v. State, 129 Ark. 344, but we do not think that the decisions in either of those cases sustain the ruling of the court in failing to give the instruction set out above. The instruction might not be a strictly accurate statement of law in-a case where there was evidence tending to show that the accused person acted as an intermediary between the seller and the purchaser so as to become a participant in the sale itself. In this case there is, however, no circumstance, so far as concerns the procurement of the whiskey from the illicit vendor by appellant, which would justify the inference that appellant acted as an intermediary between the parties to the sale, or that his participation in the transac tion was a factor in bringing about tbe sale. On the contrary, the parties agreed that Whybark offered a suggestion to appellant as to the place where liquor could be obtained and merely requested appellant to go to the place and buy the whiskey for him; so, if that was all that was done, appellant was not such a participant in the sale as would make him a party to it.
Appellant was, as before stated, entitled to have that feature of the case submitted to the jury, and we think that it constituted reversible error for the court to refuse to do so. There was no such element in this case, so far as the testimony below shows, of appellant withholding the name of the party from whom the liquor was to be obtained, as was the fact in Bobo v. State, supra, nor was there any element of apparent community of interest between appellant and the party from whom the liquor was obtained, as in the Bobo case, so as to connect appellant with the vendor of the liquor and constitute him a necessary factor in the sale.
According to appellant’s contention, he did nothing except to carry out the wishes of Whybark in taking the money and buying the liquor from a person at the locality suggested. For the error in refusing to give the instruction, the judgment is reversed and the cause remanded for a new trial. | [
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SMITH, J.
The Iron Mountain Railway Company ran certain of its freight trains over the tracks of the Cotton Belt Railway Company through the town of Rector, one of which, according to the contention of appellee, set fire to his mill and destroyed it. On appellee’s part there was proof of the absence of any cause for the fire except from sparks thrown out by a passing engine. It was shown that a heavy train, of seventy or eighty cars, stopped at a tank, at a distance of twenty or thirty car lengths from the mill, to take water, and that fifteen or twenty minutes thereafter the mill was discovered afire, and that at the nearest point the track was only eighty feet from the mill, and that a strong wind was blowing at the time in the direction to carry the sparks from the engine to the mill.
Over appellant’s objection, evidence was admitted showing that other fires had been set out by railroad engines in the vicinity of the fire involved in this suit. But there was no evidence that the particular engine, or any engine of the Iron Mountain Railway Company, had previously set out a fire. Nor was there any evidence that this engine was equipped with a spark-arrester differing in any manner from those used by other engines on either the Iron Mountain or the Cotton Belt railway.
The complaint itemized the property destroyed by fire, and alleged its value, and witnesses testified as to the value of the various articles so destroyed. Among other property destroyed was seven or eight thousand laths, some gum logs, two thousand feet of gum box boards, two thousand feet of cypress, and fifteen hundred feet of poplar lumber, together with various kinds of saws, and the engine, boiler and other fixtures, together with the building under which these things were housed. Other witnesses were permitted to testify to the difference in the value of the land before the fire and after-wards.
Over appellant’s objection, an instruction was given which told the jury that the measure of damages was the difference in value of the land immediately before and immediately after the fire, whereas appellant asked the court to charge the jury on that subject as follows: ‘£ The plaintiff is limited in his recovery in this action to the reasonable market value of the property entirely destroyed, and to the difference between the reasonable market value of the property destroyed immediately before the fire and the sum it would cost to restore the damaged property .to its original condition and the value of the use of property until it could be restored with ordinary care.”
We presume that the last part of this, instruction refers to property partially destroyed.
(1) In the case of Railway Co. v. Jones, 59 Ark. 105, it was said: ‘ ‘ And it was inadmissible to show that other engines had set fire to materials on or near the right-of-way, as a circumstance to show that the engine which caused the fire on this occasion, or its appliances, were defective or in bad condition. For such purpose the proof would have to be confined to fires caused by the engine that is said to have caused the fire that burned the appellant’s meadow.”
• The language of that opinion must be read, however, in connection with the issue there being considered. It was there sought to be shown that the railway company had negligently set out a fire, and in that connection it was said that it could not be shown that other engines had set out a fire as a circumstance to show that the engine which caused the fire in question was equipped with defective appliances, but that for such purposes the proof would have to be confined to fires caused by the engine which set out the fire in question. In this opinion, however, it was said:
“The evidence that other fires had occurred on the line of the railroad than the one which destroyed the plaintiff’s meadow was improperly admitted, as it was not shown that these fires were caused by the engines of the railroad, or that they occurred from the operation of its trains. If this had been shown, it might have been admissible as a circumstances tending to show that the condition of the right-of-way of the railroad was such that a fire might have occurred from sparks escaping from its engines, and igniting the dry grass and inflammable material on its right-of-way. But the fact that other fires had occurred, without proof that they were caused by the railroad, was inadmissible.”
The question of negligence is not involved in this case, and the jury was required only to find the origin of the fire, and if that responsibility was placed on the railroad company, liability for the damage resulting attached without regard to the question of negligence. Act 141 of the Acts of 1907, page 336.
This evidence was offered “as a circumstance tending to show * * * that a fire might have occurred from sparks escaping from the engine” which passed the mill shortly before the fire occurred. Of course, there must be such substantial similarity of conditions in the proof of other fires as to make it reasonable and probable that the same cause existed to produce the same result. This similarity of condition existed here, as the testimony objected to related to a fire set out in grass near the mill “within a morning or two of the fire which destroyed the mill. ’ ’ And no attempt was made to show that any difference existed in the equipment of the engines to arrest the emission of sparks.
The identical question here raised was considered and decided by the Supreme Court of Missouri in the case of Campbell v. Missouri Pacific Ry. Co., 25 L. R. A. 175, 25 S. W. 936, 121 Mo. 340. There the testimony objected to was that other fires, both before and subsequent to the one in question, at different places on the line of defendant’s railroad, had been started by sparks from some of defendant’s engines. Here we have a much closer similarity of conditions as a predicate for the admission of the questioned testimony, for here both fires were set out in the same lot and within a day or two of each other. But, under the facts stated, the Supreme Court of Missouri, upon a review of the authorities, held the evidence admissible. Among other cases cited and quoted from was the case of Grank Trunk R. Co. v. Richardson, 91 U. S. 470, 23 L. Ed. 362, as follows:
“Mr. Justice Strong, who wrote the opinion of the court, says: ‘ The question has often been considered by the courts of this country and in England, and such evidence has, we think, been generally held admissible, as tending to prove the possibility, and consequent probability, that some locomotive caused the fire.’ He follows this statement of the law by a number of citations, both English and American,- including the case of Sheldon v. Hudson River R. Co., 14 N. Y. 223, 67 Am. Dec. 155. Further on in the same opinion the judge says: ‘ The particular engines were not identified, but their crossing raised at least some probability, in the absence of proof of any other known cause, that they caused the fire; and it seems to us that, under the circumstances, this probability was strengthened by the fact that some engines of the same defendant, at other times during the same season, had scattered fire along their passage.’ To the same effect are the following cases: Smith v. Boston & M. Rd., 63 N. H. 25; Chicago, St. P. M. & O. R. Co. v. Gilbert, 3 C. C. A. 264, 52 Fed. Rep. 711, 10 U. S. App. 375; Thatcher v. Maine Central R. Co., 85 Me. 509.”
The Supreme Court of Missouri concluded its review of the authorities cited with the following statement: “We think the evidence tended to prove the possibility, and consequent probability, that the fire was communicated to plaintiff’s property from one of defendant’s engines, and that the evidence was admissible, and its probative force was for the determination of the jury. If the issue had been of negligence in the construction or management of the engine only, and the engine which could only have caused the damage had been clearly identified, evidence that other engines emitted sparks and set fires would have been inadmissible under the decisions of this court. Coale v. Hannibal & St. J. R. Co., 60 Mo. 227; Patton v. St. L. & S. F. Rd. Co., 87 Mo. 117, 56 Am. Rep. 446. But, in case the fact whether the fire originated from the engine was alone in issue, and there was no direct proof of the fact, it seems very clear that such evidence would have some tendency to prove that issue. The evidence was all circumstantial, and the facts testified to were circumstances, though slight they may have been, bearing upon the issues.” See also Railway Company v. Harrell, 58 Ark. 455.
We concur in the reasoning of that court as applied to the facts of this case, and hold that no error was committed in the admission of the testimony objected to.
We think the court should have instructed the jury on the question of the measure of damages in accordance with the contention of appellant. Here a portion of the property destroyed was lumber and logs and laths, and certain other personal property, the value of which and the damage to which was in nowise dependent upon the value of the land or the damage to it.
It is true this court held, in the case of K. C. S. R. Co. v. Wilson, 119 Ark. 143, where a fire set out in a pasture burned the grasses and grain growing thereon and the fence enclosing it, that the measure of damages was the difference in the value of the pasture before the fire and after the fire. And the same measure of damages was approved in the case of Mo. & N. Ark. Bd. Co. v. Phillips, 97 Ark. 54, where the property destroyed was an orchard. But these cases must, of course, be read in the light of the facts there recited, and we must have in mind the character of the property there destroyed.
In the case of St. L., I. M. & S. R. Co. v. Ayres, 67 Ark. 371, it was said that the measure of damages for the destruction of trees on the land by fire was the difference between the value of the land with the trees unburned and with the trees burned. After announcing this measure of damages, the court gave, as a reason therefor, that the trees were a part of the freehold-and could not be replaced in a short time and only at considerable expense, and that “the destruction of the trees was a depreciation in the value of the land, of which they were a part.”
In 8 Ruling Case Law, page.484, the measure of damages for the destruction of property attached to the realty is discussed. It is there said: “Section 46. Property Attached to Realty. — In cases of injury to real estate the courts recognize two elements of damage; first, the value after separation from the freehold, if any, of the thing taken, injured or destroyed; and, second, the damage to the realty, if any, occasioned by the severance. The measure of damages in such cases depends to some extent on the character of the property taken or destroyed — a distinction being often made between property whose chief value consists in its connection with the soil and its incidental enhancement of the value of the land, and those improvements which may be replaced at will, and whose value may readily be determined, apart from the ground on which they rest. Thus, if the property destroyed or injured is so closely connected with the real estate on which it stands or to which it is attached that it has no value separate from and independent of the real estate, or if the injury is' to the soil itself, the measure of damages is the difference in value between the real estate before the injury and after it. On the other hand, the value of the property destroyed, or the cost of restoring or replacing such property, is the proper measure of damages for the destruction of buildings, fences and other improvements, which may at once be replaced, where the exact cost of restoring the property destroyed is capable of definite ascertainment, and where there is no damage to the realty itself. Added to this, the right is generally given to recover for the loss of the use of the property. Some courts hold that where property attached to the realty is destroyed, the owner has his election to sue either for the value of the thing destroyed or for the injury to the freehold, or, in other words, he may seek to recover the value of the destroyed property in its detached form or its value as a part of the realty. If recovery is sought for the value of the property destroyed in its detached form, the measure of damages is its market value when so detached; but if recovery is sought for the injury to the freehold by reason of the taking or destruction of property attached thereto, the measure of damages is the difference between the value of the land before and after the injury. There is considerable conflict of authority in the application of the foregoing rules to cases where a recovery is sought for the destruction of growing crops. In some cases it is held that the proper measure of damages is the value of the crop at the time and place and in the condition it was in when it was destroyed, and in others that it is the difference in the value of the land on which the crop is growing. A similar conflict exists in the case of trees, some courts holding that the measure of damages is the difference in the value of the land before and .after the injury; while others hold that the value of the trees destroyed is the proper measure of damages. It has been held that damages caused by the destruction of fruit trees may be measured by estimating either their value as a distinct part of the land, or the difference in value of the land before and after their destruction; and that where both methods are resorted to in the same case, the damages must be ascertained by the jury from all the evidence. ’ ’
In the note to the text quoted many cases are cited bearing upon this subject, several of which are annotated cases.
In a suit for damages for the destruction of a house by fire, the Supreme Court of Iowa, in holding that the measure of damages was the value of the house, said: “The fundamental principle in all actions for damages is that just compensation be made to him who has suffered injury from another in his person or property, and, in order to give satisfaction, measured in money, such rules are formulated as are thought best adapted to accomplish this purpose. A distinction has, for this reason, been made between growing crops, shrubs, and trees, whose chief value is because of their connection with the soil and their incidental enhancement of the value of the land, and those improvements which may be replaced at will, and whose value may be readily determined, apart from the ground on which they rest.’’ McMahon v. Dubuque, 77 N. W. (Iowa) 517.
In 33 Cyc., pages 1389,1390 and 1391, many cases are cited which deal with the measure of damages for property destroyed by fire, and in the text of this article it is said:
“Where buildings are injured or destroyed it is ordinarily held that they are capable of a separate valuation and that the measure of damages is the value of the property at the time of its destruction. ’ ’
All of the cases cited in the note to this text supported it, and none approved a different measure of damages.
(2) We think our own cases, when construed in connection with the facts to which the principles there announced were applied, result in the following statement of the law. That, if the value of the property destroyed depends upon its connection with the soil, the measure of the damages is the difference in the value of the land before and after the fire. But, if the property destroyed could be replaced in substantially the condition in which it existed before the fire, then the measure of the damages is the cost of so replacing it.
The case of Dodd v. Read, 81 Ark. 13, is not in conflict with this view, but is in harmony with it. That was a suit for damages for the value of a building, and it was there said that the true inquiry was as to the cash market value of the building, and the opinion recites the evidence of the carpenter who was the only witness for the plaintiff on the subject of value and who testified that the house was worth only two hundred dollars, and a remittitur was ordered of the part of the judgment in excess of that sum. See, also, St. L. & S. F. Rd. Co. v. Shore, 89 Ark. 418; K. C. So. Ry. Co. v. Boles, 88 Ark. 533; Dwight v. Elmira, etc. R. R. Co., 15 L. R. A. 612.
The facts of this ease show, not only the wisdom and justice, but the necessity, for the rule we now approve. Much, of the property destroyed was not even fixtures, and under the measure of damages given by tbe court, tbe jury could not properly bave allowed compensation for its destruction. No contention was made that the land itself bad sustained any damage; but tbe property destroyed was a sawmill with tbe building which boused it and tbe numerous articles of purely personal property used in connection therewith, tbe value of which was testified to by tbe witnesses, and which included, among other things, some lumber which bad been manufactured on the very day of tbe fire. Tbe plaintiff was entitled to compensation for this property, although tbe measure of damages given would not bave warranted its assessment; yet, according to appellant, these damages were allowed, together with damages which exceeded the value of the property destroyed when estimated under the rule here approved; and, as we can not affirmatively say that such is not the case, we must reverse the judgment and remand the cause for a new trial. | [
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HART, J.,
(after stating the facts). In most States the statutes point out the manner in which the widow shall declare her election between the provisions in her favor contained in her husband’s will and her dower under the law. In this State when the husband devises lands to his wife and also bequeaths her personal property, she may make her election between the testamentary provision and dower, and by a deed of release executed to the heirs, renounce the benefits of the will, at any time within eighteen months. Pumphry v. Pumphry, 52 Ark. 193.
(1) The present suit was instituted by the widow within the time prescribed by the statute for making her election. Soon after her husband’s death the executor informed her of the provisions of her husband’s will in her favor. There was a verbal acceptance by her of the provisions in the will in lieu of dower, but none of the property was actually received by her. All of the property belonging to her husband’s estate remained in the hands of the executor and none of it was delivered to her. Her verbal declaration to accept the provisions of the will in her favor unaccompanied by actual receipt or possession of the property did not constitute an election on her part to take under the will. It amounted to no more than an intention to make an election and was revocable until acted upon. In English v. English, 3 N. J. Eq. 504, the court held that to constitute an election by a widow to accept a legacy bequeathed to her in lieu of dower, there must be more than a mere intention or determination to elect. The court said:
(2) “But in a case of dower, there must be something more than a mere intention to elect. The right to dower is a legal right. Upon the death of the husband, the widow is seized at law of a freehold estate, and that estate can not be divested by an intention or determination to take something else in lieu of it, no matter how often the intention may have been made known or communicated. Loose conversations with third persons to that effect, are of no account; and the making known of such determination, even to those who may be interested, will not of itself constitute an election in law. There must be some decisive act of the party, with knowledge of her situation and rights, to determine the election; or there must be an intentional acquiescence in such acts of others as are not only inconsistent with her claim of dower, but render it impossible for her to assert her claim without prejudice to the rights of innocent persons. •
“We have already remarked, that in this case no injury can accrue to third persons; and the question is to be settled upon the acts of the complainant.”
We are of the opinion that under the facts of this case there was no election by the widow to take under the will in lieu of her dower, and that there was no waiver of her right of dower.
It follows that the court erred in dismissing her complaint and for that error the decree will be reversed and the cause remanded for further proceedings according to law. | [
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SMITH, J.
This suit was brought to recover the statutory penalty for a charge made on two intrastate shipments of lumber in excess of the rate fixed for such service by the Arkansas Railroad Commission. A charge of four cents per hundred pounds was made, whereas the rate fixed by the Arkansas Railroad Commission for the service charged for was three and one-half cents per hundred pounds.
The railway company admitted making the charge in excess of the rate fixed by the Arkansas Railroad Commission, and, in justification of its action in iso doing, set up the following facts:
That the Memphis Freight Bureau of Memphis, Tennessee, for and on behalf of numerous persons engaged in business in that city, on June 22, 1914, filed its complaint before the Interstate Commerce Commission against the defendant, St. Louis, Iron Mountain & Southern Railway Company, and other railroads, which said proceeding is known as 7030 on the docket of the Interstate Commerce Commission, entitled "Memphis Freight Bureau et al. v. St. Louis, Iron Mountain & Southern Railway Company et al.” in which said complaint it was charged and alleged that the defendant railway company and other common carriers operating in the territory were charging rates, for the transportation of lumber in carload lots, from points on the line of the St. Louis, Iron Mountain & Southern Railway Company and other common carriers in Arkansas and Louisiana to Memphis,, which were unreasonable and unduly prejudicial to jobbers doing business in the city of Memphis. That, after a full hearing of all parties interested, the filing of briefs and the making of oral arguments, said cause was .submitted to the Interstate Commerce Commission for its decision on April 27, 1915, and said commission, on May 9, 1916, rendered its decision and filed its report and order.
That by said report the commission found that the ¡said rates charged by the St. Louis, Iron Mountain & Southern Railway Company and other common carriers, on shipments of lumber in carload lots from points on their lines in Arkansas and Louisiana to Memphis, Tennessee, were just and reasonable, these rates having been approved by the Interstate Commerce Commission. That the Railroad Commission of Arkansas had established a tariff regulating freight charges within the State of Arkansas to be collected by the St. Louis, Iron Mountain & Southern Railway Company and other common carriers on lumber in carload lots from one point in the State of Arkansas to other points in said State, and the rates which were being charged from points within the State of Arkansas to Memphis, Tennessee, exceeded more than one cent per - hundred pounds the rates contemporaneously applied by the St. Louis, Iron Mountain & Southern Railway Company and other like carriers for the transportation of like shipments for like distances between points in Arkansas under such tariff made by the said Railroad Commission of Arkansas, and the Interstate Commerce Commission found and held that these rates subject Memphis to undue and unreasonable prejudices and disadvantages. That the said Interstate Commerce Commission, upon so finding, issued its order, 7030, in which, among other things, it notified and ordered the defendants, St. Louis, Iron Mountain & Southern Railway Company and other common carriers, to cease and desist, on or before August 1, 1916, and thereafter, from publishing, demanding, or collecting any rates, for the transportation of lumber, in carload lots, from points on their lines in the State of Arkansas to Memphis, Tennessee, which exceeded, by more than one cent per hundred pounds, the rates contemporaneously applied by said common carriers to the transportation of like ¡shipments, for corresponding distances, between points in Arkansas. A copy of said findings., report and order were attached, marked Exhibit “A,” and made a part of the answer.
That, in obedience to said order of the Interstate Commerce Commission, the defendants filed, before the Interstate Commerce Commission, what is known as Supplement 18 to Missouri Pacific Tariff No. 1110-F, and which took effect, upon the class of freight herein mentioned, August 1,1916. That said tariff was issued June 28, 1916, duly filed with the Interstate Commerce Commission and approved by it as Supplement No. 18 to I. C. C. No. A-2887. That, in this tariff, the rates were adjusted and filed to conform to the order of the Interstate Commerce Commission hereinbefore mentioned.
That, shortly after said tariff was filed with the Interstate Commerce Commission, and before it became effective, vigorous protest was filed against it by numerous shippers of lumber and other commodities named therein with the Interstate Commerce Commission, which was therein requested to suspend said rates, as it had the right and power to do under section 15 of the act to regulate commerce; but, after due consideration of said protest, it refused to suspend said tariff, but permitted it to go into effect.
That, prior to this time, the Railroad Commission of Arkansas had put into effect what is known as Standard Freight Distance Tariff No. 5, to regulate freight charges on the class of freight herein mentioned between points in the State of Arkansas. The defendants asked that the Arkansas Railroad Commission make its rates in compliance with the order of the Interstate Commerce Commission, so as not to make the rate., on the class of material herein mentioned, between points in the State of Ark ansas, more than one cent per one hundred pounds less than the rates fixed by the Interstate Commerce Commission tariff above mentioned; but the said Arkansas Railroad Commission refused so to do; therefore, it became necessary, in order for the defendants to comply with the order of the Interstate Commerce Commission, to, put into effect a tariff, for shipment of said material between points in Arkansas, which would not be more than one cent per hundred pounds less than the rate checked in to comply with the order of the Interstate Commerce Commission, and, in obedience to said order of the Interstate Commerce Commission, defendant did put into effect, August 1, 1916, its tariff known as Tariff 5807, eliminating discrimination as ordered by the Interstate Commerce Commission, and under such tariff the correct, proper and legal charge upon the shipments mentioned and complained of in the complaint herein was, and is, four cents per one hundred pounds.
That defendants have been charging, and are charging, the rates mentioned in said Tariff No. 5807, for shipment of the material herein mentioned, in carload lots, between points in Arkansas, in order to comply with said order of the Interstate Commerce Commission. That the said rates are, in no case, higher than those filed with the Interstate Commerce Commission, but are one cent per one hundred pounds less than the rates to Memphis for similar distances. '
The defendants state that it is impossible for them to comply with the opinion and order of the Interstate Commerce Commission, marked Exhibit “A” hereto, and with the tariff of the Arkansas Railroad Commission hereinbefore referred to as Standard Freight Distance Tariff No. 5, without charging interstate rates and establishing lower classifications, ratings and exceptions than were found reasonable by the Interstate Commerce Commission, and that the said order of the Interstate Commerce Commission and the rates fixed by the Arkansas Railroad Commission are in direct and irreconcilable conflict, and defendants allege that the rates fixed by the Arkansas Railroad Commission, in its Standard Freight Distance Tariff No. 5, on the material mentioned in said order of the Interstate Commerce Commission, are null, void and of no effect.
To this answer a demurrer was filed, upon the ground that the facts recited did not constitute a defense to the complaint of the State, and, upon the hearing thereof, the demurrer was sustained, and, defendants refusing to plead further, the statutory penalty was imposed, and this appeal has been prosecuted to reverse that action.
Upon the authority of the case of Houston, East & West Texas Ry. Co. and Houston & Shreveport R. R. Co. et al., Appellants, v. United States, the Interstate Commerce Commission et al., 234 U. S. 342, generally referred to as the Shreveport case, the State concedes the power of the Interstate Commerce Commission to make the order set out in the answer of the railway company; but the State does not concede that the effect of this order is to nullify the rates, or any of the rates, prescribed by the Arkansas Railroad Commission, or to justify the railway company in ignoring said rates.
It is said that this is true because the Interstate Commerce Commission does not prescribe, and has not prescribed, minimum rates, but has prescribed only maximum rates, and it is argued that the railway company can comply with the order of both the Interstate Commerce Commission and the rates fixed by the Arkansas Railroad Commission by the simple expedient of reducing its interstate rates to a point where they will not exceed, by one cent per one hundred pounds, the tariff rates fixed by the Arkansas Railroad Commission.
We think this argument does not properly take into account the far-reaching effect of the decision of the Supreme Court of the United States in the Shreveport case, supra, and we become convinced of this when we read the amplification of that opinion, and its application to the facts recited, in the recent case of American Express Co. et al., Plaintiffs in Error, v. The State of South Dakota ex rel., et al., 244 U. S. 617. This last opinion was handed down by the Supreme Court of the United States on June 11,1917.
The material facts out of which the litigation arose which was terminated by the decision of the Supreme Court of the United States in the Shreveport case, supra, are substantially similar to the facts of the instant case. Complaint was made to the Interstate Commerce Commission of rates which were alleged to be discriminating against Shreveport. This discrimination grew out of compliance with the intrastate rates fixed by the Railroad Commission of Texas. The Interstate Commerce Commission made substantially the same order as was made in the instant case, and this order was reviewed by the Commerce Court, and its action affirmed in an opinion by that court. See Texas & Pacific Ry. Co. v. United States (Interstate Commerce Commission et al., Interveners), 205 Fed. 380.
In that case it was said that interstate carriers had the lawful right to charge the maximum rate approved by the Interstate Commerce Commission, and this and other cases appear to settle the law definitely to be, in any collateral inquiry, that the rate is reasonable which the Interstate Commerce Commission has approved, and that railroads have the right to charge the maximum rates thus fixed and approved, and it was there expressly held that, when an interstate rate had been thus approved and held reasonable, the carrier was at liberty to raise the intrastate rates to a level with that rate, and could not be compelled to reduce such reasonable interstate rates to a level with the current intrastate rates. That the authority of Congress was clear to prevent the interstate carrier from unjustly discriminating in its rates in favor of one person or locality against another person or locality under substantially similar conditions of traffic, and, in discussing how the carrier might avoid the discrimination, the court there said:
“But if the action of the Texas commission regarding these intrastate rates is in derogation of the regulat ing power of Congress, the petitioner is not bound by that action, but has the right to readjust its schedules in conformity with the order of the Interstate Commerce Commission.”
In the same opinion it was also said:
“The commission also found by necessary inference, as its order clearly indicates, that the interstate commodity rates in question were not unreasonable, and this in effect sanctioned the continuance of those rates. It is likewise a necessary inference from the report and order that the unlawful discrimination against Shreveport, so far as commodity rates are concerned, was caused by the imposition of intrastate rates which are lower than petitioner is justly entitled to charge. This being so, it follows that petitioner is at liberty and has the right to comply with the commission’s order by making a proper increase of its Texas rates. Indeed, since its interstate rates are not excessive, such an increase appears to be the only method of compliance which would be just to both shipper and carrier.
“When this order was made, upon the facts .so ascertained and reported, it had the effect, in our judgment, of relieving petitioner from further obligation to observe the intrastate rates which the Texas authorities had prescribed. The petitioner was no longer under compulsion in respect of those rates, because the rate situation disclosed by the inquiry was subject in its entirety to the provisions o'f the Federal statute and the administrative control of the commission. The order of the commission therefore operated to release petitioner as regards the intrastate rates in question, from the restraint imposed by the State of Texas; and thereupon petitioner became entitled, if it did not choose to reduce its interstate rates, to comply with the order by advancing its Texas rates sufficiently to remove the forbidden discrimination. Its obedience was due to the superior authority, and it ceased to be bound by any inconsistent obligations. * # * It is sufficient to hold, as we do, that petitioner can not resist the order on the ground of involuntary action, because the effect of that order was an exemption of these intrastate rates from Texas authority.”
This commerce court has since been abolished by Congress, but, upon the appeal which was prosecuted from this decision, the case was consolidated with the case of Houston, E. & W. T. Ry. Co. et al. v. United States (Interstate Commerce Commission et al., Interveners), 205 Fed. 391, under which style the opinion on the appeal is found reported in 234 U. S. 342. This is the case which we have said is commonly referred to as the Shreveport case, and'in the opinion of the court handed down by Mr. Justice Hughes, the decision of the commerce court was fully approved. These two appeals from the commerce court were argued and submitted together on October 28 and 29, 1913, and the opinion delivered on June 8, 1914, and the report of the case as well as the opinion itself indicate that the question decided, received the most careful consideration. In concluding the opinion it was there said:
“In conclusion: Reading the order in th.e light of the report of the commission, it does not appear that the commission attempted to require the carriers to reduce their interstate rates out of Shreveport below what was found to be a reasonable charge for that service. So far as these interstate rates conformed to what was found to be reasonable by the commission, the carriers are entitled to maintain them, and they are free to comply with the order by so adjusting the other rates, to which the order relates, as to remove the forbidden discrimination. But this result they are required to accomplish.
“The decree of the commerce court is affirmed in each case.’,’
In the brief filed on behalf of the State the argument is made that the order of the Interstate Commerce Commission alone can not annul the lawfully established intrastate rates of a State, and it is insisted that the opinion in the Shreveport case, when properly construed, does not recognize any such power in the Interstate Commerce Commission. In support of this view, the case of State ex rel. Attorney General v. American Express Co., 163 N. W. 132, is cited, and such, appears to have been the view of the Supreme Court of South Dakota as reflected in that opinion. But a writ of error was allowed December 11, 1916, and that decision was reversed by the Supreme Court of the United States in an opinion handed down on June 11, 1917. In reviewing the nature of the order of the Interstate Commerce Commission, designed to prohibit a discrimination against shippers in favor of intrastate shippers, the court, in this last cited opinion, said:
“In its specific direction the order merely prohibits charging higher rates to and from Sioux City than to and from the five South Dakota cities. It could be complied with (a) by reducing the interstate rates^ to the South Dakota scale or (b) by raising the South Dakota rates to the interstate scale or (c) by reducing one and raising the other until equality is reached in an intermediate scale. The report (which is made a part of the order) contains, among other things, a finding that the interstate rate which was prescribed by the commission was not shown to be unreasonable. This finding gives implied authority to the express companies both to maintain its interstate rates and to raise, to their level, the intrastate rates involved. The Shreveport case (Houston E. & W. Texas Ry. v. United Stales), 224 U. S. 342. For, if the interstate rates are maintained, the discrimination can be removed only by raising the intrastate rates.”
In reversing the decision of the Supreme Court of South Dakota, it was there also said:
“2. The power of the Interstate Commerce Commission.
“The Supreme Court of South Dakota declares:
“If the purported order of the commission does, in any respect, regulate intrastate commerce, it is to that extent void owing to the commission’s want of jurisdiction over the subject matter.
“That court denies not only the intent of Congress to confer upon the commission authority to remove an ex isting discrimination against interstate commerce by directing a change of an intrastate rate prescribed by State authority; but denies also the power of Congress under the Constitution to confer such power upon the commission or to exercise it directly. The existence of such power and authority should not have been questioned since the decision of this court in the Shreveport case.
“It is also urged that even if the commission had power, under the circumstances, to order a change of the intrastate rates, the order in question was invalid, because the commission, instead of specifically directing the change, undertook to give to the carrier a discretion as to how it should be done and as to the territory to which it should apply. The order properly left to the carriers’ discretion to determine how the discrimination should be removed; that is, whether by lowering the interstate rates or by raising the intrastate rates or by doing both. In its general form the order is identical with that under consideration in the Shreveport case.”
The necessary effect of these decisions is that the railway may charge the rate approved by the Interstate Commerce Commission in its interstate shipments, and that it may comply with the order of that commission to remove existing discriminations against interstate shipments by raising the intrastate rate to such a point that, according to the ruling of the Interstate Commerce Commission, a discrimination will not exist.
It follows, therefore, that the court erred in sustaining the demurrer, and that judgment will be reversed and the cause remanded with directions to overrule the same. | [
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Karen R. Baker, Judge.
Charles McClelland appeals from an order of the Union County Circuit Court denying his petition to adopt his minor step-children, A.M. and S.M. McClelland argues that the circuit court erred in finding that the best interest of the minor children was served by denying his adoption petition and by finding that appellee Joel M. Murray had justifiable cause for his failure to communicate with his daughters. We reverse.
The facts in this case are largely not in dispute. At the time the adoption petition was heard, Charles McClelland had been married to Alicia McClelland for more than nine years. A.M. and S.M. are twin girls born of Alicia’s previous marriage to Joel M. Murray. That marriage ended when the twins were eighteen months old. In the ensuing fourteen years, Murray had no contact with his children. He did, however, faithfully pay child support, and his obligation was current as of the date of the hearing. McClelland stipulated that regardless of whether the adoption was granted, A.M. and S.M. would continue to live with him.
At the hearing, McClelland testified that he had acted as a father to the twins since he married their mother and that he loved them with all of his heart. He stated that he was a Deacon at the First Baptist Church and that the girls have a “good Christian foundation and background.” According to McClelland, A.M. and S.M. were excelling as students with 3.9 grade-point averages at Westside Christian School. McClelland asserted that he was proud of the girls, and regardless of the adoption, he considered them to be his daughters. He also claimed that he would not stand in the way of Murray contacting the girls if he adopted them.
Alicia McClelland testified that she consented to the adoption and wished that McClelland would become the twins’ adoptive father. She confirmed that the girls last had face-to-face contact with Murray on Mother’s Day of 1989, and he had not attempted to visit with them since that time. She asserted that Murray knew where her parents lived and could have ascertained her whereabouts if he had desired contact with the children. She claimed that if he had called, she would not have discouraged contact. Alicia opined that it would be in the girls’ best interest to be adopted because McClelland “has been in their life for nine or ten years,” taught them to drive, had been to every school activity, and had helped them to be active in the church. She stated that when McClelland married her, “he also married them.” According to Alicia, the girls considered McClelland to be their father and even called him “Daddy.” She also stated that if the adoption were granted, she would not prevent Murray from contacting the girls.
On cross examination, Alicia admitted that she sought restricted visitation in her divorce action and opposed allowing visitation at Murray’s home out-of-state. She also admitted that she had made accusations of inappropriate sexual comments by Murray concerning her then-infant daughters.
Both S.M. and A.M. testified that they desired to be adopted by McClelland, that they considered him their father, and that they called him “Daddy.” The girls confirmed that McClelland had been an active participant in their lives and that they had no contact with Murray.
Murray testified that he currently lived in New Jersey and was working for the government in a position that required him to have a top secret security clearance. He stated that at the time of his divorce from Alicia, he was living in Missouri and subsequently moved to Nevada. Although he and Alicia filed for divorce almost simultaneously, and although he never lived in Arkansas, he was advised that Arkansas was the proper forum for matters relating to the custody of the children. Ultimately, Murray came to Arkansas to establish child support and secure visitation. However, during the pendency of that action, he testified that Alicia levied allegations against him that he might “possibly cause bodily harm to my daughters in a sexual nature.” Fearing that this type of allegation would jeopardize his top secret security clearance and deciding it was in his daughters’ best interest not to put them through the kind of ordeal associated with fighting the allegations, he chose simply not to have contact with his daughters. He felt that in order to exercise visitation, he would have to fly to Arkansas and stay in a hotel, and to completely protect himself from spurious allegations, he would have to take the girls to a doctor to be examined before and after the visit. Further, Murray stated that he contacted Alicia approximately a year after the divorce and found her to be uncooperative and threatening. He also stated that he tried contacting Alicia’s parents, but Alicia’s mother told him that she had been instructed not to tell him 'where the girls were. He asserted that his relationship with his daughters early in their lives was “taken away” from him, and he intended to reestablish a relationship with the girls when they were in college so they could at least know who their father was. Murray characterized his decision to relinquish his right to visit the girls as putting them first, his job second, and himself third. Regarding telephonic communication, he admitted that he last attempted it when the girls were twenty-two months old and at that time, “they had no clue of how to communicate with [him].” He also admitted that he did not attempt to write to his daughters and that he last sent them Christmas presents in 1990.
After taking the matter under advisement, the trial judge denied the adoption petition. He found “reasonable” Murray’s belief that sexual misconduct allegations would require that he have the children medically examined before and after his visitation made such visitation “not feasible” and that such allegations would also jeopardize his security clearance and thus his employment. Accordingly, the trial court ruled that Murray’s lack of contact with his children was justified. The trial court noted, however, that “such a complete forbearance is excessive and has its risks” in that when the children turned eighteen, Murray’s consent to the adoption would not be required. The trial judge also found that the children were “well adjusted in their academic, religious, and social lives, excelling and performing responsibly.” However, he reasoned that the children’s “accomplishments” were gained without the benefit of adoption and that therefore “their performance will continue at the same level with or without adoption.” On this basis, the trial judge concluded that there was no evidence presented that the adoption would be in the best interest of the children.
On appeal, McClelland argues that the trial court erred in finding that the best interests of the children was served by denying the adoptions, contending that despite the fact that the twins wiU “no doubt continue to be outstanding young ladies,” the trial court “overlooks” that there is “something to be said” for having a “legally recognized father-daughter relationship with the man who raised you.” He contends that it is in the girls’ best interest to have a parent-child relationship because he has “been there for them” and they consider him their father, rather than to preserve a relationship with a man to whom they have not talked and whom they had not seen in over fourteen years. McClelland also argues that the circuit court erred in finding that Murray had “justifiable cause” for his failure to communicate with the twins. He cites Ray v. Sellers, 82 Ark. App. 530, 120 S.W.3d 134 (2003), for the proposition that failure to communicate without justifiable cause is “one that is voluntary, willful, arbitrary, and without adequate excuse,” and that not even a total failure to communicate with a child is required under Ark. Code Ann. § 9-9-207 (a) (2) (Supp. 2003). Regarding the latter point, he characterizes Murray’s failure to communicate with his children as not merely significant, but “total.” Regarding the former standard, he argues that Murray’s failure to communicate was voluntary and willful because it was his own decision and although he was granted visitation rights he chose not to exercise them. McClelland characterized the lack of communication as “arbitrary and without adequate excuse” because Murray claimed to be concerned over the possibility of allegations of sexual misconduct, which had not previously been made. We agree.
Arkansas Code Annotated section 9-9-207(a) provides in pertinent part that consent to adoption is not required of:
(2) [a] parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree [.]
It is settled law that adoption statutes are strictly construed, and a person who wishes to adopt a child without the consent of the parent must prove that consent is unnecessary by clear and convincing evidence. In re Adoption of Lybrand, 329 Ark. 163, 946 S.W.2d 946 (1997). A finding concerning the necessity of a parent’s consent in an adoption proceeding will not be reversed unless clearly erroneous. In re Adoption of K.F.H. and K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993). We view the issue of justifiable cause as factual but one that largely is determined on the basis of the credibility of the witnesses. This court gives great weight to a trial judge’s personal observations when the welfare of young children is involved. Id. at 423, 844 S.W.2d at 347.
We are mindful that Murray testified, and the trial judge found it credible, that even an allegation of sexual misconduct involving his minor children would jeopardize his security clearance and, consequently, his employment. The trial court noted that this total lack of contact was “excessive,” and we agree. Further, although Murray had the means to establish supervised visitation and enforce his visitation rights through the court, he instead abandoned all contact with the girls. However, no sexual abuse allegation could arise from a letter, a phone call, or a birthday present. We hold that this failure to communicate was not justifiable. Because Murray failed to significantly communicate with his children for more than one year, without justifiable cause, his consent to the adoption was not required under Ark. Code Ann. § 9-9-207.
We also reverse the trial court’s finding that the best interests of the children were served by denying the adoptions. We simply do not subscribe to the trial judge’s logic that because the children have thrived without being adopted by McClelland, there was no advantage in formalizing his status as their father. We hold that under these circumstances, the best way to guarantee that the children continue in the current successful nurturing environment was to grant McClelland’s adoption petition. We therefore reverse and remand this case to the trial court for further proceedings consistent with this opinion.
Reversed and remanded.
Roaf and Bird, JJ., agree. | [
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John Mauzy Pittman, Chief Judge.
The appellee, Roxanne Cumbie, was injured in a motor vehicle accident on December 30, 2001. She was not at fault. She settled with the tortfeasor’s insurance carrier for his policy limits of $25,000 and then made demand upon appellant Nationwide for the policy limits under her own underinsured motorist policy. Nationwide evaluated the claim and offered to setde the underinsured motorist claim for $10,000. Appellee rejected this offer and filed suit on October 28, 2002, seeking the policy limits of $50,000 plus a statutory twelve percent penalty, prejudgment interest, and attorney’s fees. Shortly before the scheduled trial date, Nationwide agreed to tender its policy limits and allow the court to determine its liability for the penalty, prejudgment interest, and attorney’s fees. The court found Nationwide liable for all of these, and this appeal followed.
Nationwide first argues that the trial court erred in awarding the statutory twelve percent penalty because a “material change of circumstances” occurred after the lawsuit was filed in that appellee required additional surgery and incurred substantial additional medical bills. Arkansas Code Annotated § 23-79-208(a)(l) (Repl. 2004) provides that:
In all cases in which loss occurs and the cargo, property, marine, casualty, fidelity, surety, cyclone, tornado, life, accident and health, medical, hospital, or surgical benefit insurance company and fraternal benefit society or farmers’ mutual aid association or company liable therefor shall fail to pay the losses within the time specified in the policy after demand is made, the person, firm, corporation, or association shall be liable to pay the holder of the policy or his or her assigns, in addition to the amount of the loss, twelve percent (12%) damages upon the amount of the loss, together with all reasonable attorney’s fees for the prosecution and collection of the loss.
The allowance of the statutory penalty and attorney’s fees when an insurer, after demand, fails to pay for an insured loss within the time specified in the policy is punitive in nature and is directed against the unwarranted delaying tactics of insurers. Shepherd v. State Auto Property & Casualty Insurance Co., 312 Ark. 502, 850 S.W.2d 324 (1993). With regard to the reference in § 23-79-208 (a) to an insurance company’s failure to pay losses “within the time specified in the policy,” where an agreement does not specify a time period in which action is to be taken, the losses must be paid within a reasonable time. McHalffey v. Nationwide Mutual Insurance Co., 76 Ark. App. 235, 61 S.W.3d 231 (2001).
Attorney’s fees and penalty attach if the insured is required to file suit, even though judgment is confessed before trial. Silvey Cos. v. Riley, 318 Ark. 788, 888 S.W.2d 636 (1994). The appellant in Silvey Cos. v. Riley argued that there was an exception to the above-stated rule when it was reasonably necessary for the insurance company to continue to investigate the loss even after payment is due under terms of the policy. This argument was based on Clark v. New York Life Insurance Co., 245 Ark. 763, 434 S.W.2d 611 (1968), where the supreme court held that the statutory language regarding an insurer’s failure to pay losses within the time specified in the policy contemplates that the insurer shall have a reasonable time to make necessary investigation in reference to the loss and the circumstances thereof after demand. Although the Silvey Cos. court did not decide the issue because the appellant in that case failed to show a reasonable need for further investigation, and although the holding in Clark was based on the slightly different language of the predecessor to the present twelve percent penalty statute, Ark. Stat. Ann. § 66-3238 (Repl. 1966), we think that the language and purpose of the two penalty statutes are so nearly identical that Ark. Code Ann. § 23-79-208(a)(l) likewise contemplates that the insurer shall have a reasonable time to make necessary investigation in reference to the loss and the circumstances thereof after demand.
The question, then, is whether the trial court could reasonably have found that Nationwide had a reasonable opportunity to investigate the loss. We think that it clearly could. The record shows that Nationwide refused to fully examine the medical records made available to it by appellee’s authorization because it did not want to go to the expense of paying for copies, insisting instead that appellee provide it with all relevant documents. However, the statute requiring insurers to offer underinsured motorist coverage to their insureds clearly contemplates that the insurer will make an independent investigation of an underinsured motorist claim based on authorizations and releases provided by the insured.
Nor do we agree with Nationwide’s argument that it had no reason to know the value of the claim until appellee actually underwent surgery and incurred the additional medical expenses. The purpose of underinsured motorist coverage in this state is to supplement benefits recovered from a tortfeasor’s liability carrier so to provide compensation to the extent of the injury, subject to the policy limit. Shepherd v. State Auto Property & Casualty Insurance Co., supra. As an underinsured motorist carrier, Nationwide’s contractual duty, subject to its policy limit, was based on the liability of the tortfeasor to its insured under Arkansas law, and probable future medical expenses have been a recognized element of damages in negligence actions for many decades. See, e.g., Arkansas Power & Light Co. v. Heyligers, 188 Ark. 815, 67 S.W.2d 1021 (1934). Furthermore, Nationwide’s good faith in its investigation and evaluation of the extent of appellee’s claim was called into question by unrefuted evidence that, even after learning of appellee’s additional surgery and medical expenses, Nationwide did not tender its policy limits but instead continued to negotiate a settlement for a lesser amount. A trial court’s decision on whether to award attorney’s fees, a twelve-percent penalty, and interest due to an insurer’s failure to timely pay benefits will not be reversed on appeal unless the trial court’s decision is clearly erroneous. American Underwriters Insurance Co. v. Turner, 57 Ark. App. 169, 944 S.W.2d 129 (1997). On this record, we cannot say that the trial court could not reasonably have found that Nationwide could have determined, within a reasonable time after appellee’s demand under her underinsured motorist policy, that appellee would likely require further medical treatment sufficient to warrant payment of the policy limits.
Nationwide next argues that the award of prejudgment interest was inappropriate. The general test for awarding prejudgment interest is whether a method exists for fixing an exact value on the cause of action at the time of the occurrence of the event which gives rise to the cause of action. If such a method exists, prejudgment interest should be allowed. Home Mutual Fire Insurance Co. v. Jones, 63 Ark. App. 221, 977 S.W.2d 12 (1998). We hold that the twelve percent penalty award was warranted. Here, Nationwide’s potential liability was limited by the policy limit of $50,000 so that, in the context of this case, the question regarding the appropriateness of prejudgment interest is whether Nationwide should have known at the time demand was made that it was liable for its policy limits. See Shepherd v. State Auto Property & Casualty Insurance Co., supra. Given our holding that the trial court could reasonably have found that Nationwide should have known that it was liable for the policy limits within a reasonable time after demand for payment was made on May 29, 2002, we cannot say that the trial court clearly erred in awarding prejudgment interest for a period beginning in June 2004.
Affirmed.
Bird and Neal, JJ., agree.
Ark. Code Ann. § 23-89-209(c) provides, in part:
If a tentative agreement to settle for the liability limits of the owner or operator of the other vehicle has been reached between the insured and the owner or operator, written notice may be given by the insured injured party to his or her underinsured motorist coverage insurer by certified mail, return receipt requested.The written notice shall include:
(1)Written documentation of pecuniary losses incurred, including copies of all medical bills;
(2) Written authorization or a court order authorizing the underinsured motorist insurer to obtain medical reports from all employers and medical providers; and
(3) Written confirmation from the tortfeasor’s liability insurer as to the amount of the alleged tortfeasor’s liability limits and the terms of the tentative settlement.... | [
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Robert J. Gladwin, Judge.
Appellant Jose Enrique Men-diola was convicted by a Pulaski County jury of three counts of aggravated robbery, one count of Class Y felony kidnapping, and two counts of Class B felony kidnapping. He was sentenced to a total of sixty-five years’ incarceration in the Arkansas Department of Correction. On appeal, appellant argues that the trial court abused its discretion by allowing testimony concerning an alleged threat he made to an officer during a preliminary hearing. We affirm.
On or about April 5, 2003, Karl McCree, Raymond Smith, and Maurice Freeman went to a liquor store to deliver cocaine to appellant’s brother. During the transaction, the men were confronted by appellant and others, and they were forced to hand over money, jewelry, and most of their clothing. They were beaten and then taken by force to Sweet Home, Arkansas, where McCree escaped and Smith and Freeman were later released. Investigator Lett was involved in the investigation of the incident and was called to testify in the matter by the State.
At a pretrial hearing, appellant looked toward Investigator Lett and put his fingers up as if to wipe his mouth. Appellant then made a “finger-gun motion” and put his thumb down in a shooting motion. Later during the same hearing, appellant mouthed the words “you’re dead” to Investigator Lett. The trial court allowed Investigator Lett to testify at appellant’s trial as to the alleged threats. On appeal, appellant argues that the trial court erred by allowing the introduction of the evidence because it was not probative to the charges he faced and was highly prejudicial.
Trial courts have broad discretion in deciding evidentiary issues, and their decisions are not reversed absent an abuse of discretion. Shields v. State, 357 Ark. 283, 166 S.W.3d 28 (2004); see also Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999) (specifically referring to the admissibility of evidence under Rules 403 and 404(b)). Under Rule 404(b) of the Arkansas Rules of Evidence, evidence of a prior bad act that is independently relevant to the main issue, rather than merely relevant to prove the defendant is a criminal, may be admissible. Regalado v. State 331 Ark. 326, 961 S.W.2d 739 (1998). The Arkansas Supreme Court has interpreted “independently relevant to the main issue” as relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal. See Johnson v. State, 333 Ark. 673, 972 S.W.2d 935 (1998). The supreme court has stressed the requirement that there be a very high degree of similarity between the charged crime and the prior uncharged act. Id. In other terms, evidence offered under Rule 404(b) must be independently relevant, thus having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Id.
Appellant maintains that Investigator Lett’s testimony was inadmissible pursuant to Rule 404(b), which states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
We will not reverse a trial court’s ruling regarding the admission of evidence under Rule 404(b) absent an abuse of discretion. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000); see also Smith v. State, 90 Ark. App. 261, 205 S.W.3d 173 (2005). Appellant argues that it was an abuse of discretion for the trial court to admit evidence that he made nonverbal threats to Investigator Lett at the pretrial hearing because the prior incident lacked the required degree of similarity to the alleged conduct that led to the offenses with which he was charged, specifically, robbery and kidnapping. The charges against appellant stemmed from events that supposedly occurred months before the alleged threats took place. Appellant maintains that the introduction of Investigator Lett’s testimony was not independently relevant to establish any of the allowed exceptions under Rule 404(b). Appellant asserts that nothing about the testimony in question tends to prove some material point, i.e., the elements of one of the offenses charged, but instead is in an attempt to show that he is a “criminal.”
Additionally, appellant notes that the trial court never gave a cautionary instruction as discussed in Regalado, supra. He maintains that even if the testimony was admissible under Rule 404(b), the jury was never apprised as to how it should be considered and that he should have received the benefit of such an explanation and instruction. We disagree. The supreme court did not hold that a limiting instruction was required in Regalado, rather that the failure to give such an instruction was not error in the absence of a request for one. Appellant has presented us with no evidence that he requested such an instruction, accordingly, he cannot argue that it was error for the trial court to permit the testimony without giving one.
The State argues that the testimony regarding appellant’s nonverbal threats was relevant and probative to prove his consciousness of guilt with respect to the charges of aggravated robbery and kidnapping. They were not offered simply to show that he was a criminal, but rather to show his attempt to silence a key witness from testifying at trial. Efforts to conceal evidence demonstrate a consciousness of guilt and are therefore admissible. Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004); see also Eliott v. State, 342 Ark. 237, 27 S.W.3d 432 (2000) (holding that when evidence of a past crime reflects a consciousness of guilt, it is independently relevant and admissible under Rule 404(b)). The Eighth Circuit Court of Appeals has specifically held that evidence of death threats against witnesses or other parties cooperating with the government is generally admissible against a defendant to show consciousness of guilt with respect to the crimes charged. United States v. Griffith, 301 F.3d 880 (8th Cir. 2002).
Appellant also argues that even if Investigator Lett’s testimony did qualify as an exception under Rule 404(b), it should have been excluded under Rule 403 of the Arkansas Rules of Evidence because its probative value was outweighed by the risk of unfair prejudice. See Smith, supra. He maintains that the testimony was highly prejudicial and that it outweighed any probative value it may have had. He asserts that he was further prejudiced by the fact that the trial court failed to give a cautionary instruction.
Rule 403 states that “although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The State maintains that the probative value of the evidence was not substantially outweighed by unfair prejudice. The testimony was evidence of appellant’s consciousness of guilt, and it was also critical from the standpoint of undermining his defense that he was an honest businessman who only “roughed up” the victims in order to protect his family and keep them from selling drugs to his handicapped brother.
Additionally, appellant fails to demonstrate how he was prejudiced by the admission of the testimony. When the evidence of his convictions is considered in the absence of Investigator Lett’s testimony about the threats made at the pretrial hearing, there is still abundant evidence that he committed aggravated robbery and kidnapping. All three victims, McCree, Smith, and Freeman, testified that they were robbed at gunpoint and kidnapped at the direction of appellant. Investigator Lett corroborated McCree’s testimony as to specific evidence associated with the offense that he discovered at the scene. Additional law enforcement officials further corroborated the victims’ testimony, as did Ronald Bee, the rural resident who discovered McCree on his doorstep after he had escaped from appellant. Where evidence of guilt is overwhelming and the error slight, we can declare the error harmless and affirm. Walker v. State, 91 Ark. App. 300, 210 S.W.3d 157 (2005).
Affirmed.
Pittman, C. J., and Glover, J., agree. | [
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Larry D. Vaught, Judge.
Candis Young appeals the decision of the trial court — following the entry of a default judgment in her favor — awarding her only $4500 for past medical services after it determined that her medical bills for chiropractic care were excessive. We affirm.
Young filed a complaint alleging that she was physically attacked by Maria Barbera on October 29, 2002. Young asked the court to award her $35,000 in compensatory damages plus $15,000 in punitive damages. Young accused Barbera of assaulting her by punching and scratching her in the face, pulling fistfuls of hair out of her head, and violently jerking her head up and down and side to side while sitting on top of her. Because Barbera was larger in size, it took Young some time to escape. However, once she did, she promptly reported the incident to the police and sought medical attention from Dr. Philip Roberts, a chiropractor, the day after the incident. Young stated that she did not seek emergency-medical attention, nor did she consult a medical doctor. Dr. Roberts treated her for nine months, and his charges totaled $7135. Young testified that when she began seeing Dr. Roberts, she went three times a week. Young stated that after a couple of months, the visits were reduced to twice a week, then once a week, then once every other week, and so on until she was released.
Barbera filed an untimely pro se answer to Young’s complaint. The court granted default judgment in favor of Young and held a hearing to determine her damages. Following that hearing, the court issued a final judgment awarding Young $4500 for medical costs, $2500 for pain and suffering, and $1000 in punitive damages. The court also awarded Young the costs associated with the lawsuit. The court found that the actual medical bills of $7135 were excessive — specifically in light of the fact that no expert witness was called at the hearing to testify regarding Young’s medical needs — and declined to award her the full amount that she requested.
In civil cases where the trial judge, rather than a jury, sits as the trier of fact, the correct standard of review on appeal is not whether there is any substantial evidence to support the finding of the court, but whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997). The trial judge, as fact-finder, is the sole evaluator of credibility and is free to believe or disbelieve the testimony of any witness. Id. at 786, 957 S.W.2d at 705.
The mere fact that a plaintiff has incurred medical expenses and the defendant has admitted liability does not automatically translate into a damage award equivalent to those expenses. Depew v. Jackson, 330 Ark. 733, 957 S.W.2d 177 (1997). A party seeking medical damages has the burden of proving the reasonableness and necessity for that party’s medical expenses. Avery v. Ward, 326 Ark. 829, 934 S.W.2d 516 (1996). Whether the medical expenses were reasonable and necessary is a question of fact for the trier of fact. Blissett v. Frisby, 249 Ark. 235, 458 S.W.2d 735 (1970). While not controlling, evidence of expense incurred in good faith is some evidence that the charges were reasonable. Id. at 246, 458 S.W.2d at 742. However, evidence of expense incurred alone is not sufficient to show that medical-service charges were causally necessary. “Necessary” means causally related to the tortfeasor’s negligence. Ponder v. Cartmell, 301 Ark. 409, 784 S.W.2d 758 (1990).
Expert medical testimony is not essential in every case to prove the reasonableness and necessity of medical expenses. Bell v. Stafford, 284 Ark. 196, 680 S.W.2d700 (1984). The testimony of the injured party alone, in some cases, can provide a sufficient foundation for the introduction of medical expenses incurred. Id. at 199, 680 S.W.2d at 702; see also Ark. Code Ann. § 16-46-107 (Repl. 1999). In Bell, our supreme court gave the following example:
if a litigant suffered a specific injury in an accident and was immediately taken to a hospital emergency room for treatment of only that specific injury the injured party’s testimony would be sufficient to establish the necessity of the medical expense as a result of the accident. However, expert testimony would normally be required to prove the necessity of the expense when, as here, expenses for hospital tests were incurred many months after the accident, none of the physicians in attendance immediately after the accident referred the litigant either to the admitting doctor or to the hospital, and the expenses on their face do not appear to be related to the accident.
Bell, 284 Ark. at 199, 680 S.W.2d at 702-03.
Young relies on a statement in Ponder v. Cartmell, 301 Ark. 409, 784 S.W.2d 758 (1990), to support her argument that the trial court should not have been allowed to reduce her damages for medical treatment. In Ponder, our supreme court stated that “[i]f a plaintiff proves that her need to seek medical care was precipitated by the tortfeasor’s negligence, then the expenses for the care she receives, whether or not the care is medically necessary, are recoverable.” 301 Ark. at 412, 784 S.W.2d at 761. However, Ponder is clearly distinguishable from the present case. In Ponder, the court was ruling on issues of admissibility — whether the defendant in the case should have been allowed to introduce expert testimony that plaintiffs doctor had misdiagnosed the plaintiff and conducted an unnecessary surgery. Both the plaintiff and defendant in Ponder presented testimony of expert witnesses at trial, and the definitive issue was not whether the plaintiff had met her burden of proving her medical bills were reasonable and necessary to the trier of fact, but whether the defendant’s doctor could second guess the plaintiff s doctor regarding treatment. On appeal, the plaintiff in Ponder was not arguing that the amount of damages awarded was insufficient because she had proven she was entitled to more, but rather, that the amount awarded was insufficient because the court had improperly admitted testimony affecting the necessity of a specific course of treatment.
In the present case, the trial court did not deny the admissibility of Young’s medical damages — to the contrary, the judge allowed Young to testify regarding her medical treatment and submit her chiropractic bills into evidence. The issue in our case involves the province of the fact-finder to weigh the evidence and ascertain whether Young sustained her burden of proving damages, and we must decide whether the trial judge clearly erred in determining that Young was not entitled to the all the medical damages she sought.
Here, the trial judge was charged with weighing the evidence presented by Young. He was in the best position to observe Young, hear her testimony, and evaluate her credibility. In its order awarding damages, the court specifically found that Young’s medical bills were excessive in light of the fact that she presented no expert witness to testify regarding what was medically required to treat her injuries. It was Young’s burden to prove that her compensatory damages were reasonable and necessary, and the only evidence she presented was her own self-serving testimony and an invoice from her chiropractor in the amount of $7135. She admitted at trial that she did not seek emergency-medical attention after the assault and, in fact, never sought the care of a medical doctor. Additionally, based on the invoice of Dr. Roberts’s charges that Young submitted, she visited the chiropractor at least once every five days for three months after the incident — excluding the week of Christmas, when the time between visits was extended to seven days. In the following months, she saw Dr. Roberts four times in February, four times in March, three times in April, three times in May, twice in June, and a final visit in July. Based on the evidence presented at trial, the judge’s finding that the chiropractor’s bill was excessive without some expert testimony that the treatment was medically necessary and reasonable in light of Young’s injuries and his subsequent damage award were not clearly erroneous, and we affirm.
Affirmed.
Pittman, C.J., Gladwin, and Glover, JJ., agree.
Bird and Baker, JJ., dissent.
Young filed a motion to amend the judgment pursuant to Rule 52(b) of the Arkansas Rules of Civil Procedure a few days after the judgment was entered and attached an affidavit from Dr. Roberts regarding the necessity ofYoung’s chiropractic treatment. The trial judge entered an order denying the motion because the court could not consider evidence not submitted at trial.
Taken on its face, such a statement could be interpreted to mean that once a plaintiff shows she was injured by a tortfeasor and sought medical attention, the tortfeasor is responsible for all medical bills regardless of the reasonableness and necessity of those charges.
In our view, although the statement establishes that all such medical costs are recoverable, it does not definitively conclude that the fact-finder is required to award that amount as damages. If it did indeed establish such precedent, then there would be no purpose in holding a hearing on damages once liability had been established. Rather, plaintiffi would be awarded whatever amount of compensatory damages prayed for and there would be no requirement that a jury deliberate on the amount. | [
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Sam Bird, Judge.
Appellants Hardy and Loretta Little brought a negligence action against appellee Jonesboro Country Club after Mrs. Little was injured while playing golf at the club. The Littles’ sole point on appeal is that the trial court erred by granting the club’s motion for summary judgment. Because we find that the evidence in this case presents a genuine issue of material fact, we reverse and remand.
In a complaint filed on May 23, 2003, the Littles claimed that they had participated in a Memorial Day golf tournament at the club on the afternoon of May 29, 2000, and that during this time, Mrs. Little had fallen into an “uncovered and hidden valve hole” located off the sixteenth-hole fairway. According to the complaint, the club maintained and operated an underground irrigation system with valves housed in metal casings. The casings were approximately twenty-three inches deep and eight to ten inches in diameter. The Littles claimed that the valve causing Mrs. Little’s injury was not covered at the time she was injured, and that grass had grown over the surface area of the valve hole to the extent that it was completely obstructed from view. The complaint specifically alleged that the club had breached its duty of ordinary care in maintaining the premises by “failing to conduct regular inspections, and thereby failing to discover, secure, and maintain the valve that created this dangerous condition.”
On September 24, 2004, the club filed a motion for summary judgment. Mark Huffer, superintendent of the club’s golf course, stated in a supporting affidavit that the club had maintained the underground irrigation system since 1983 and that there were approximately 120 valves and 120 valve covers associated with the sprinkler system throughout the golf course. Furthermore, Huffer stated that of the 120 valve covers, no more than fifteen had been replaced or repaired since 1983. He said that during the months preceding Mrs. Little’s fall, he never observed or received information regarding a cracked valve cover anywhere on the golf course, including the sixteenth hole. Huffer’s affidavit also stated that the club’s employees had mowed the rough on the sixteenth hole during the months of April and May 2000; that Huffer would inspect the entire golf course at least twice a week to look for potential hazards; and that Huffer had inspected most of the course on the morning of May 29, 2000. To the best of Huffer’s knowledge, the rough along the sixteenth hole was mowed four days before Ms. Little’s fall occurred. In addition, two members of the club, Dr. Grover Poole and Les Abernathy, each stated by affidavit that he frequently played golf at the club and had never observed a broken valve cover on the course.
The Littles filed a response to the club’s motion for summary judgment, including supporting affidavits and deposition testi mony. In his affidavit, Mr. Little stated that, while playing in the tournament on May 29, 2000, he noticed that Mrs. Little had fallen into a hole on the course that was “approximately two feet deep” and was “covered by grass so that it could not be seen by an unsuspecting golfer.” He also said that he had played golf at the club for more than twenty years and that he was very familiar with the course; thus, he knew that the valves were supposed to be capped, but “this one was not capped.” Frankie Gray, Dick Gray, and Steve Mitchell, who were playing golf with Mrs. Little at the time of her injury, each stated in an affidavit that the hole into which Mrs. Little fell was not visible and that it was covered with grass. Dick Gray also stated that the hole was not capped. In her deposition testimony, Mrs. Little testified that at the time she fell, “the hole was covered and the grass was thick at that time, and it was completely covered.” After reviewing the matter, the court granted summary judgment in favor of the club.
On appeal, the Littles argue that the trial court erred in granting summary judgment to the club. Our supreme court has previously set forth the standard of review for cases in which summary judgment has been granted:
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 party is entitled to judgment as a matter of law. Jackson v. City of Blytheville Civ. Serv. Comm’n, 345 Ark. 56, 43 S.W.3d 748 (2001). Once the 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. George v. Jefferson Hosp.Ass’n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999); Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998). Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998); Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997). After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable persons might reach different conclusions from those undisputed facts. George, supra. MedMarc Cas. Ins. Co. v. Forest Healthcare, Inc., 359 Ark. 495, 499, 199 S.W.3d 58, 61 (2004) (quoting Allen v.Allison,356 Ark. 403, 412-13, 155 S.W.3d 682, 689 (2004)).
Rice v. Tanner, 363 Ark. 79, 82, 210 S.W.3d 860, 863 (2005).
Here, the club had a duty to use ordinary care to protect the Littles because they were invitees. See Gann v. Parker, 315 Ark. 107, 865 S.W.2d 282 (1993) (citing Kay v. Kay, 306 Ark. 322, 812 S.W.2d 685 (1991)). In Autozone v. Horton, 87 Ark. App. 349, 353, 192 S.W.3d 291, 295 (2004), this court specifically explained the duty of care that a premises owner owes to invitees:
[A]s follows in Restatement (Second) of Torts, § 343 (1965):
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
The basis for a premises owner’s liability under this rule is the superior knowledge of an unreasonable risk of harm of which the invitee, in the exercise of ordinary care, does not or should not know. Jenkins v. Hestand’s Grocery, Inc., 320 Ark. 485, 898 S.W.2d 30 (1995).
The initial question is therefore whether the defect is so apparent that, through the use of ordinary care, the possessors should have discovered and corrected it. Gann, supra. Ordinary care means that the possessor must protect an invitee from dangers that could have been, or reasonably should have been, foreseen. Id.
In the case at bar, there is a genuine issue of material fact as to whether the club, through the use of ordinary care, should have discovered that the valve cover was defective or missing. The Littles offered evidence to show that the valve hole into which Mrs. Little fell was not visible at the time of her injury, that it was covered by thick grass, and that it was supposed to be capped but was not. On the other hand, the club’s golf course superintendent stated that the area was mowed approximately four days before the incident; that the entire course was frequently inspected for potential hazards; that prior to Mrs. Little’s fall, he had never received information concerning a cracked valve cover or observed one anywhere on the course; and that he had inspected most of the course on the morning of May 29, 2000. It is also clear from the evidence, however, that the irrigation system had been in place since 1983 and that the valve covers required periodic maintenance and attention. Whether the club’s inspection and maintenance procedures were adequate in this case presents an issue of material fact for the trier-of-fact.
The cases cited by the club to support its position are clearly distinguishable from this case. In Gann, supra, the court stated that there was no genuine issue of material fact regarding the appellees’ lack of negligence in failing to cure a defect inside an appliance or in failing to warn the invitee, a repairman, of the defect. In affirming the trial court’s grant of summary judgment to the appellees (possessors of the premises), the court noted that the defect inside the appliance was simply not apparent to them, and that there was no showing that by the use of ordinary care a reasonably prudent possessor would have discovered the defects inside the appliance. Id. However, the case at bar presents very different circumstances. Here, the golf course superintendent stated that he routinely inspected the course to check for potential hazards and that he had inspected most of the course on the morning of May 29, 2000. Thus, there is a fact question as to whether the club should have discovered and corrected any problem with the valve cover during routine inspection and maintenance procedures.
In Jenkins, supra, the court upheld the trial court’s decision to grant summary judgment in favor of the appellee, a grocery store, and held that the store owner owed no duty to warn the appellant of any danger posed by an entrance ramp from the store’s parking lot. The court in Jenkins clearly distinguished between the duty owed with respect to “dangers that are obvious,” such as the entrance ramp, and the duty owed with respect to hidden dangers, such as “traps, snares, or pitfalls.” Id. The entrance ramp in Jenkins, being clearly visible and obvious to the appellant in that case, is easily distinguishable from the valve hole in this case. Here, there was evidence that the hole was covered in grass and was not visible at all.
Finally, in McMullen v. New York, 199 A.D.2d 603, 604 N.Y.S.2d 335 (1993), the claimant sustained injuries after she stepped into a small hole, obscured by grass, on a golf course. However, in that case, the origin of the hole was not known and there was no evidence that the hole was created by any action of the owner of the golf course. Id. The court found that the claimant’s proof failed to establish that the hole existed for a sufficient length of time prior to the accident to permit the appellant’s employees, in the reasonable performance of their duties, to discover and remedy it. Id. Here, unlike in McMullen, the sprinkler system’s valve holes were created by the club, the club was clearly aware of the location of each hole containing a valve, and the club offered proof that it inspected each hole and was aware that each location required routine maintenance. The question of whether the club should have discovered the missing or defective valve cover during its routine inspection and maintenance procedures is one for the factfinder.
For the reasons stated herein, we reverse the trial court’s grant of summary judgment in favor of the club and remand for further proceedings.
Reversed and remanded.
Hart and Crabtree, JJ., agree. | [
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Andree Layton Roap, Judge.
Appellant Darren Helms was convicted by a jury of felony residential burglary and misdemeanor theft of property with a value of$500 or less. Helms was sentenced as an habitual offender with more than one but less than four prior felony convictions to twenty-five years’ imprisonment in the Arkansas Department of Correction for residential burglary and was fined $1000 and sentenced to one year of incarceration in the county jail for theft of property. On appeal, Helms argues that the trial court erred in admitting a State’s document into evidence during the penalty phase and allowing the State to also reference facts showing that Helms committed the offenses at issue while he was released on bond in connection with two unrelated charges. We affirm.
At trial, the State introduced the testimony of two witnesses to prove Helms was guilty of residential burglary and theft of property with a value of $500 or less. One of the State’s witnesses was the victim, Steven Hoskinson, and the other witness was Pulaski County Sheriffs Office Investigator Lewis Wig. Hoskin-son testified that on July 21, 2003, he discovered that someone had broken into his house and had taken some of his personal property, including a portable television, stereo, weed eater, pellet guns, meat from his freezer, stopwatch, and a box of checks. Investigator Wig testified that he arrested Helms on July 23, 2003, and he took a custodial statement from Helms. Investigator Wig first made contact with Helms while Helms was asleep in his automobile. Investigator Wig arrested Helms, and he found two books of Hoskinson’s checks inside Helms’s automobile. According to Investigator Wig, Helms admitted that he and an accomplice had broken into Hoskinson’s house and had stolen some of Hoskin-son’s personal property.
The jury found Helms guilty of residential burglary and theft of property. In the penalty phase of the trial, the State proved that Helms had three prior misdemeanor convictions and three prior felony convictions. The State also sought to introduce State’s Exhibit No. 6, which was a document establishing that, when Helms had committed the criminal offenses at issue, he was free on bond from the North Little Rock Municipal Court after having been arrested on two counts of forgery. Defense counsel objected to the admissibility of State’s Exhibit No. 6, arguing that the exhibit was not relevant and that it stated that Helms was on bond for a charge that the jury knew nothing about and of which Helms had not been convicted of. The trial court admitted State’s Exhibit No. 6 over the defense counsel’s objection. The prosecutor told the jurors that they should “be aware that [Helms] was out on bond at the time the offense was committed. ...”
During the penalty phase of the trial, Helms’s mother, Ellen Helms, testified for the defense. During cross-examination, the prosecutor approached the bench and asked for permission to ask Ellen Helms about the forgery charges for which Helms was out on bond from, because the State contended that the victim of those forgeries was Ellen Helms. The defense counsel objected to this questioning, arguing that it was not relevant. The trial court allowed the line of questioning. Ellen Helms testified that she had paid Helms’s bond for the forgery charges and that she did not know the victim of the forgery charges.
During the State’s closing argument of the penalty phase, the prosecutor reminded the jurors that at the time Helms committed the offenses he had been free from pretrial incarceration on bond from unrelated criminal charges. In the State’s initial closing argument, the prosecutor stated:
We are asking you to keep in mind that he is someone who had probation, had been given that chance, also had made a bond and committed this new offense, someone that had been in the county jail and gotten released and committed this new offense. I’m asking that you keep that in mind today as you come up with what you deem to be an appropriate sentence.
In the State’s final closing argument, the prosecutor stated:
Also, please don’t forget that when he committed this July 21st burglary, he was out on bond for yet a different case. He has been given his chances. There is no doubt about that. I mean, he acts like he wants to go to prison for a long time. He won’t learn his lesson, and he keeps committing these crimes.
The jury sentenced Helms, as an habitual offender, to twenty-five years’ imprisonment in the Arkansas Department of Correction for residential burglary and to one year of incarceration in the county jail and a $1000 fine for theft of property. The trial court ran Helms’s twenty-five year sentence of imprisonment consecutively to an eighteen-year sentence of imprisonment that he was already serving. Helms now appeals from his sentence.
Helms argues that the trial court erred when it admitted State’s Exhibit No. 6 and permitted the prosecutor to cross-examine Ellen Helms concerning Helms’s unrelated forgery charges. The State contends in response that Helms’s accused status as shown by State’s Exhibit No. 6 was admissible under Ark. Code Ann. § 16-97-103(5) and (6) (Supp. 2003), which permits the introduction of character evidence and aggravated circumstances at sentencing.
In Arkansas, criminal prosecutions in which a jury sits as the trier-of-fact are bifurcated into a guilt-innocence phase and a penalty phase. Ark. Code Ann. § 16-97-101 (Supp. 2003). A trial court’s decision to admit evidence in the penalty phase of a trial is reviewed for an abuse of discretion. Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002). The admissibility of proof in the penalty phase of a jury trial is governed by the Arkansas Rules of Evidence; however, pursuant to Ark. Code Ann. § 16-97-103 certain evidence is admissible at sentencing that would not have been admissible at the guilt phase of the trial. Crawford v. State, 362 Ark. 301, 208 S.W.3d 146 (2005) (citing Buckley v. State, supra). Arkansas Code Annotated section 16-97-103 provides in pertinent part:
Evidence relevant to sentencing by either the court or jury may include, but is not limited to, the following . . .
(5) Relevant character evidence;
(6) Evidence of aggravating and mitigating circumstances. The criteria for departure from the sentencing standards may serve as examples of this type of evidence; . . .
While evidence introduced during the sentencing phase may include evidence described in this section, the list is not exhaustive. Crawford, supra.
With respect to the admissibility of relevant character evidence under Ark. Code Ann. § 16-97-103(5), we first note that Rule 404 of the Arkansas Rules of Evidence states that character evidence generally is not admissible for the purpose of proving that a person acted in conformity therewith on a particular occasion and that the rule then lists some exceptions to this rule. While it is true that our evidence rules govern the introduction of evidence in the sentencing phase of trials, our supreme court has also held that, pursuant to Ark. Code Ann. § 16-97-103, certain evidence is admissible at sentencing that would not have been admissible at the guilt phase of the trial. Crawford, supra. Character evidence that might not be admissible at the guilt phase could be admissible at sentencing. Id.
Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ark. R. Evid. 401. In the present case, although Helms had been accused but not yet convicted of forgery, evidence that Helms was out on bond when he committed residential burglary and theft of property provided proof of his character and was relevant to the jury’s determination of an appropriate punishment. Helms argues that the jurors’ knowledge that he committed the criminal offenses while he had had been free on bond in connection with forgery charges tells the jury nothing about his character if the jurors were never told that a condition of his bond agreement was that he agreed not to commit any additional crimes while free on bond. In considering evidence, jurors may use their common sense. Bridges v. State, 46 Ark. App. 198, 878 S.W.2d 781 (1994). The jury need not have learned of the details of Helms’s bond requirements to understand that the fact that Helms was out on bond when he committed the new crimes says something about his character.
Affirmed.
Glover, J., agrees.
Griffen, J., concurs. | [
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Andree Layton Roaf, Judge.
Appellants Roxie E. Boy-ette and James M. Boyette appeal from the trial court’s denial of their complaint seeking the establishment of a boundary line by acquiescence, or in the alternative by adverse possession, and the court’s granting of the appellees Ray F. Vogelpohl and Teresa M. Vogelpohl’s counterclaim to quiet tile. We agree that the trial court erred in quieting title to the disputed property in appellees, and reverse and remand.
Roxie Boyette and James Boyette own property on Highway 10 in Perryville, Arkansas (the Boyette property). Roxie owns the northern section of the property and James owns the southern section of the property. The Vogelpohls own the property situated on the west side of the Boyettes’ parcels. At one time all of the property was owned by James Boyette’s grandfather. Roxie and her now-deceased husband and James both acquired deeds to their respective parcels in 1994. The Vogelpohls acquired a deed to their property from F.C. Grass Farms Partnership in 1994.
The Boyette property and the Vogelpohl property were divided by a barbed-wire fence that ran the length of the property from north to south. The fence had been constructed at a time when both the west and east tracts were owned by the Boyette family. In July 2000, Troy Laha conducted a survey of the property line between the Boyette and Vogelpohl properties for Roxie Boyette and determined that the true boundary line sits east of the barbed-wire fence line. In 2002, the Vogelpohls began erecting a new fence in accordance with the surveyed boundary line. The Boyettes filed a complaint asserting that the old fence line represented the boundary by acquiescence or, in the alternative, that they had acquired title to the disputed property by adverse possession; the Vogelpohls counterclaimed and requested that the trial court quiet title to the disputed property in them.
At trial, Laha stated that he first observed the barbed-wire fence in April 1998; that it appeared that the fence had been in its present location for a number of years; and that the fence appeared to be virtually undisturbed for a long period of time. Laha also testified, “All indications are, on the ground, is that it [the barbed-wire fence] is being used as a boundary line between the two property owners. The Vogelpohls on the west were occupying up to the fence and the Boyettes on the east side were occupying up to the fence. If I remember correctly, both of them was cutting the grass up to the hedges as close as they could.”
Roxie testified that she has lived on the Boyette property since 1965, and has been familiar with the Boyette property since 1960. From her earliest recollection, there has been a fence line running north and south separating the Boyette property from the property to the west, and it has always served as the boundary line between the two properties. The fence also served to keep out their neighbor’s livestock and to control their own cattle. Roxie further stated that her family had been mowing the property up to the fence line since 1965, and that, before the Vogelpohls constructed their new fence, it was their custom to mow up to the old fence line. Roxie stated that she has used and claimed the property up to the fence line for “all of these years.”
James Boyette testified that he was fifty-seven years old, and that at all times there has been a barbed-wire fence running from the north to the south end of the Boyette property. He stated that the function of the fence was to keep cattle off of their property, but “everybody’s always recognized [the fence line] as the boundary line between the two properties.” He also said that the owners of the property to the west of their property have claimed ownership of the land up to the old fence line.
Ray Vogelpohl testified that he purchased the property to the west of the Boyette property from F.C. Grass Farms. Before his purchase in 1994, the property had been vacant for a number of years. He admitted that, when he purchased the property, he did not have it surveyed, but that he relied on a survey that had been performed in 1981 that did not show any fences on the property. Vogelpohl testified that the Boyettes’ deed also did not reflect the existence of any fences on the property. Vogelpohl stated that he had no reason to believe that the Boyettes were claiming anything other than the property that was described in their deeds; that there was no mention of a fence in their property description; that there is no reference to a fence in his property description; and that the Boyettes never told him that there were claiming anything other than the property that was actually described in their deeds.
Vogelpohl stated that after purchasing the property, he and his wife began to repair the property and restore it to a livable condition. He stated, “We’d maintain what we could on our side to keep the horse in. We’re not concerned about the other side until we could at least get to place a proper fence there, which we did in 2002.” He testified the weeds on both sides of the fence had grown up six to seven feet tall.
When asked to describe what action he had taken between 1994 and 2002 to indicate his exercise of dominion and control over the property in dispute, Vogelpohl responded that he was relying on the documents that Roxie had filed. He also stated that, because the north end of the fence was quite overgrown, he had the hedgerow taken down both sides of the north end of the fence and painted both sides. He maintained that he did not accept the fence line as the property line; that he painted and maintained the fence; and that he paid taxes on his property.
The trial court entered an order dismissing the Boyettes’ complaint with prejudice and granting the Vogelpohls’ counterclaim. In the order the trial court found in pertinent part:
The existence of a fence between adjoining landowners is not sufficient to create a boundary line by acquiescence, there must be mutual recognition of the fence as a dividing line.
As the fence was erected during the period of time when one common owner owned all of the parties’ respective real property, the fence could not have been erected as a dividing line.
It is clear from the testimony and evidence presented that there was no mutual recognition of the fence as a dividing line between the parties to this action.
There was no testimony or evidence presented concerning any mutual recognition between the plaintiffs and the defendants’ predecessors) in interest.
Any occupation of the disputed strip was subordinate to that of the holder of the legal title.
Although boundary line cases are reviewed de novo on appeal, we will affirm a trial court’s finding of fact with regard to the location of a boundary line unless the finding is clearly erroneous. Hedger Bros. Cement & Materials, Inc. v. Stump, 69 Ark. App. 219, 10 S.W.3d 926 (2000). A finding is clearly erroneous when, although there is evidence to support it, we are left, after considering all of the evidence, with the definite and firm conviction that a mistake has been committed. Id. Whether a boundary line by acquiescence exists is to be determined upon the evidence in each individual case. Id.
The facts in this case are similar to those in Summer v. Dietsch, 41 Ark. App. 52, 849 S.W.2d 3 (1993), in which the appellant appealed from the trial court’s decision that an old fence line did not constitute a boundary by acquiescence, nor did appellant gain title to the property by adverse possession. In Summer, the appellant’s father had purchased forty acres of land in 1943. In 1954, he deeded the east thirty acres to appellant’s grandfather, and in 1970, he deeded the remaining ten acres to appellant. In 1970, the grandfather deeded his thirty acres to a person outside the family, who subsequently deeded fifteen of these thirty acres to appellees. Appellees then shared a common north-south boundary with appellant’s ten-acre tract. During all relevant times, a fence divided appellant’s land from appellees’, and the fence had been in existence for at least forty years. Both parties used their property up to the fence line, and both appellee and appellant maintained the fence. When appellees’ 1991 survey reflected that the fence was approximately forty feet off the actual property line, they began construction of a new fence and filed for injunctive relief. Appellant responded that the old fence line was the long-established boundary line by acquiescence, and also contended that he had acquired title by adverse possession.
On appeal, this court reversed, holding that the trial court’s finding that the old fence line had not become the boundary line by acquiescence was clearly erroneous. We stated that boundaries are frequently found to exist at locations other than those shown by an accurate survey of the premises in question and may be affected by principles of acquiescence and adverse possession. A fence, by acquiescence, may become the accepted boundary even though contrary to the survey line. The general rule is that, when adjoining landowners silently acquiesce for many years in the location of a fence as the visible evidence of the division line and thus apparently consent to that line, the fence line becomes the boundary by acquiescence. Id. (quoting Tull v. Ashcraft, 231 Ark. 928, 929-30, 333 S.W.2d 490 (1960)). The court also quoted from Kittler v. Phillips, 246 Ark. 233, 236, 437 S.W.2d 455, 456 (1969):
The appellant ably argues that to establish a boundary line by acquiescence there must be a mutual or expressed agreement of the dividing line. However, in [a previous case] we said: It may be conceded, as claimed by appellant, that there never was any express agreement to treat the fence as the dividing line between the two parcels of land. Such an agreement, however, may be inferred by the action of the parties.
Moreover, it is well established that whenever property owners tacitly accept a fence line or other monument as the visible evidence of their dividing line for a long period of time and thus apparendy consent to that Hne, the Hne becomes the boundary Hne by acquiescence. Summers, supra. The property owners and their grantees are then precluded from claiming that the boundary Hne thus recognized and acquiesced in is not the true one, although it may be on the survey Hne. Id.
Here, the Boyette fence has been in existence for more than forty years. The trial court found that, because the fence had been erected when the first Boyette owner owned all of the property in question, the fence line could not be considered a boundary Hne by acquiescence. However, the Boyettes testified that the Vogelpohls’ parcel had been deeded outside the family sometime in the 1950s. The trial court’s finding is contrary to the Summers holding and is clearly erroneous. Although not expressly stated in the Summers opinion, the fence in question was also in existence at a time when Summers owned all of the property. It is of no consequence that the fence Hne was not originally erected to serve as a boundary Hne. It is the conduct of the parties that is important when reviewing a boundary Hne by acquiescence case. In this case, both parties used their respective properties up to the fence Hne, and the Vogelpohls made no claim to the disputed property until 2002, when they began building a new fence, eight years after they acquired their property. In fact, Ray Vogelpohl stated that he had relied on an old survey until Laha performed the new survey in 2002. Although Vogelpohl testified that because he repaired the fence on the northern end of the property and painted both sides, he never acquiesced to the fence line as the boundary Hne; however, his conduct shows otherwise. Vogelpohl never used any of the property east of the fence Hne, and admitted that he took care of the weeds on his property and the Boyettes took care of the weeds on their property, but that the middle was overgrown. Laha and James Boyette testified that the parties had mowed their respective properties up to the fence Hne. Accordingly, we find that the parties’ conduct shows that the Vogelpohls silently acquiesced in the fence Hne as the boundary Hne and that the Vogelpohls did nothing until 2002, which was eight years after they took possession of the property.
The trial court also found that there was not mutual recognition of the fence line as the boundary line. In Fish v. Bush, 253 Ark. 27, 484 S.W.2d 525 (1972), the supreme court stated that, in order to have a boundary Hne by acquiescence, the adjoining land owners must recognize the fence as the boundary line, and there must be mutual recognition. The trial court found that there was no mutual recognition in this case. This finding is also clearly erroneous. Vogelpohl argues that he did not recognize the fence line as the boundary line and that he did not assent to the fence line as the boundary line because he relied on a previous survey. Again, the Vogelpohls never expressly asserted claim to any of the property east of the fence until 2002. The Boyettes used and mowed the property on the east side of the fence line, and the Vogelpohls only used up to the fence line on the west side. Mutual recognition is not an expressed agreement, and in fact, an expressed agreement is not required when the parties silently acquiesce. See Summer, supra.
The trial court also found that the mere existence of a fence between two adjoining parcels of land does not in and of itself sufficiently demonstrate a boundary line by acquiescence. See Carney v. Barnes, 235 Ark. 887, 363 S.W.2d 417 (1963) (mere fence not sufficient, must show mutual recognition). While this is a correct statement of the law, the evidence shows not merely a fence, but reflects mutual recognition and silent acquiescence.
We also conclude that the Boyettes established a claim of adverse possession to the disputed property. In order to establish a claim for adverse possession, a party must prove that he had possessed the property in question continuously for more than seven years and that the possession was visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. McWilliams v. Schmidt, 76 Ark. App. 173, 61 S.W.3d 898 (2001). The Vogelpohls contend that the Boyettes’ claim of adverse possession fails because they have not complied with Ark. Code Ann. § 18-11-106, in that they failed to present proof that they paid ad valorem taxes. See Schrader v. Schrader, 81 Ark. App. 343, 101 S.W.3d 873 (2003). However, the statutory requirements for adverse possession were amended in 1995, requiring the party seeking adverse possession to show color of title and payment of taxes in addition to all of the elements necessary under existing adverse possession. Id. In Schrader, the court held that if the claimant’s action accrues before 1995, the effective year of the amendment, then requirement of payment of taxes is not necessary. Id. In this case, the Boyettes have openly and continuously used and occupied the property on the east side of the fence line since the 1960s, thus their adverse possession claim would have accrued well before 1995.For the reasons stated above, we find that the Boyettes also established a claim for adverse possession.
Reversed and remanded for entry of an order quieting title in the disputed property to the Boyettes.
Glover, Neal, and Baicer, JJ., agree.
Gladwin and Griffen, JJ., dissent. | [
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WOOD, J.,
(after stating the facts). Appellant objected to the introduction of a book kept by T. 0. Douglas, showing the names, dates and amounts collected from various persons and articles while he was operating the ferry for Munn; and >also objected to the testimony of the appellee J. B. Shults based upon the entries in the book kept by Douglas which was introduced in evidence. It does not appear that these objections were carried into the motion for a new trial. They were therefore waived in the court below and can not be.considered here. Choctaw & Memphis R. Co. v. Goset, 70 Ark. 429; Mitchell v. State, 86 Ark. 486; King v. Blade, 92 Ark. 598; Railways Ice Co. v. Howell, 117 Ark. 198, 208.
Appellant concedes that the “facts are practically undisputed.” It will be seen from the above findings of fact by the court that the county court of Miller County, in October, 1912, granted Munn the privilege of operating a ferry across Red river at the point designated, which privilege, under the order granting the same, expired on the 31st of December, 1912; that the license which Munn was required to pay for exercising the privilege during that time was paid. But the court also found that Munn did not own and operate a ferry during the year 1912 and up to the first week in February, 1913, did not use his ferry privilege; that up until the latter part of January, 1913, there was no public road leading from the county road down to the point of the landing of the ferry; nor until said time was there any public road crossing the river at said point in Miller County, Arkansas. The court further found that Munn did not, after October, 1912, in any way apply for the privilege of operating a ferry, nor was he after that time granted the privilege of operating the ferry at the designated point.
These findings of fact by the court are sustained by the evidence. It thus appears that the ferry was never established under any order of the county court granting the privilege to establish the ferry at the point designated. Appellant allowed the privilége and the license to expire without establishing the ferry in accordance with such order of the county court granting same and never thereafter sought, nor was he granted by the county court, the privilege of operating a public ferry at Buzzard’s Bluff, in Miller County, Arkansas.
(1) Ferry privileges are granted because of the public convenience subserved thereby. A ferry is not established merely by applying for and obtaining a license for operating the .same. To establish a ferry one must go further and provide the facilities and operate the same for the public before it can be said that the ferry is established. So here, although the findings of the court show that Munn had applied for and had been granted the privilge and had obtained his license for operating a ferry for the year 1912, the findings of the court nevertheless show that he did not establish the ferry by provid ing the necessary facilities and operating the same until the period had expired for which his license was granted. Therefore, the order of the county court levying a tax on the 6th of January, 1913, of $25.00 for the privilege of operating ferries in the county of Miller did not apply to Munn and he was not at that time, under the law, subject to the payment of the tax, for the law expressly declares that “no ferry at which the public county road does not cross shall be subject to the taxherein provided. ’ ’ And the findings of the court show that on January 6,1913, when the tax was levied there was no public road leading from the county road down to the point of the landing of said ferry, nor was there a public road crossing the river at that point.
If a ferry could be established simply by obtaining the order of the county court granting the privilege and by obtaining the license, but without actually providing the facilities and putting them in operation for the use of the public, then the purpose of the law, which is to promote the public convenience, would be wholly frustrated, for after the privilege is granted and the ferry established the county court is expressly prohibited from permitting any ferry to be established within one mile above or below any ferry previously established.
In Murray v. Menefee, 20 Ark. 561, 563, it is said: “When the license has been so granted, and the ferry once established, it is made the duty of the county court to levy a tax on the privilege annually thereafter, whether application for renewal of the license be made or not; and the duty of the clerk to issue, annually, a license, and deliver it to the sheriff for the person to whom the privilege was granted, who, on presentation of the license, is bound to pay for it.” And in Lindsay v. Lindley, Id. 573, 581, it is said: “Because, after the appellee’s ferry was once established, the question of public convenience was no longer an open one between him and the appellant, subject to investigation on the occasion of each annual grant of license thereafter; nor, in such case, does the statute require the owner of a ferry privilege to make a further application. It is made the duty of the court to levy a tax on the privilege, annually, whether the owner makes application or not; the clerk is required to issue the license, deliver it to the sheriff, and the owner is bound to pay for it. ’ ’
Now since no ferry was established by appellant under the order of the county court granting him the privilege and under the license obtained for exercising such privilege, he cannot invoke in his defense the statute, and the above decisions based thereon, requiring the county court to levy a tax, and the clerk to issue the license, and the sheriff to present the same to him, regardless of whether or not he renewed his application for the ferry privilege and license. These duties are exacted of the county officials named only when the license has been so granted and the ferry once established. Independence County v. Duffey, 95 Ark. 354.
Here, as we have seen, while the license was granted in 1912, the ferry was never established under it, and it was not being maintained and operated as a ferry when the county court, on the 6th of January, 1913, made a general order levying a tax of $25.00 for ferry privileges.
(2-3) It seems to be the doctrine of our cases that when a ferry franchise is once granted and the ferry is established under it, the privilege continues subject to the power of the county court to discontinue the same when the public interests demand it. Before one can exercise the privilege the right must be extended to him by the proper authority—the county court. See Murray v. Menefee, supra; Bell v. Clegg, 25 Ark. 26. Therefore, even though appellant had established the ferry under the franchise granted by the county court, he could not after his annual license expired continue to exercise the privilege “without complying with the' provisions of law in relation to obtaining license. ’ ’ The derelictions of county officials in failing to issue the annual license and to levy and collect the tax therefor, can not exonerate the holder of a ferry franchise for a failure to pay the annual license fee or tax, nor exempt him from the penalties denounced by section 3582, supra, for such failure.
(4) Although the franchise may be granted and the provisions of the law in regard to obtaining license complied with, the privilege is one that may thereafter be lost by a failure to establish the ferry and exercise the privilege, or it may be abandoned by failure to procure the license prescribed by the statute. In Finley v. Shemwell, 94 Ark. 190, we announced the law as follows:
“It is settled by the decisions of this court that, while ownership of lands on one or both sides of a navigable stream entitles the owner to the privilege of keeping a public ferry, the right can not be exercised without procuring a license from the county court. It has also been decided by this court that when the county court has once granted the privilege of keeping a public ferry the privilege is exclusive within the distance, so long as it is exercised under the annual grant of license provided for. There may, however, be an abandonment of the ferry privilege by failure to procure the license prescribed by statute; or the county court may, by proper order, discontinue a ferry once established.” Citing all former cases.
Now, under the doctrine of these cases, and the facts of this record as found by the trial court, which are sustained by the evidence and is practically undisputed, the' court was correct in his conclusion of law that Munn, by reason of his failure to procure a ferry boat and use the ferry privilege granted him in 1912, and by failing to obtain the annual license prescribed by the statute for the years 1913 and 1914, had abandoned his ferry privilege, and that the license issued in October, 1914, for the years 1913 and 1914 could not avail him as a defense to this action.
Appellant, by keeping the ferry and charging persons for same without complying with the provisions of the law relating to obtaining license, incurred the penalties denounced by tbe section supra, upon which, this suit was grounded.
The judgment is therefore correct, and it is in all things affirmed. | [
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