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Jim Johnson, Associate Justice.
The question to be decided is, whether compensation benefits should be paid to an employee receiving a compensable injury but whose earning capacity is not diminished by the injury. Following the opinion of this Court in Dockery v. Thomas, 226 Ark. 946, 295 S. W. 2d 319, the Arkansas Workmen’s Compensation Commission awarded benefits to William Earl Thomas.
The temporary total disability was found by the Commission to be from May 4, 1954, through June 29, 1955, and the permanent partial disability was found to be 30% to the body as a whole. Under the award, Thomas was to receive $25.00 per week for the tempo rary total disability, or a total, minus credits, of $1,-472.14; for tbe permanent partial disability, tbe award was for $25.00 per week for 135 weeks or $3,375.00, plus hospital, medical, medical appliance bills, and the maximum attorney’s fee allowable. Thomas died on August 27,1957, from causes entirely disconnected with this case. On appeal by Dockery, the Pulaski Circuit Court authorized Thomas’ widow to revive the action. The Circuit Court modified the Commission’s award by cancelling all of the permanent partial award after August 27, 1957, the date of Thomas’ death; and appellee does not complain of such modification. Appellant insists, here, that Thomas was not entitled to any award for permanent partial disability.
The evidence reflects that Thomas, during the years following his injury, received substantially the same earnings as before his injury; and it is thus argued that permanent partial disability benefits should be denied. The appellant calls to our attention the cases of Conatser v. D. W. Hoskins Truck Service, et al., 210 Ark. 141, 194 S. W. 2d 680, and Sallee Bros. v. Thompson, 208 Ark. 727, 187 S. W. 2d 956. It was decided in those cases that an employee was precluded from an award of permanent partial disability when his earnings after the injury were as great as his earnings prior to the injury. But those cases were decided in 1946 and 1945 respectively, and were governed by Act 319 of 1939, § 13 (Ark. Stats. (1947) § 81-1313 (C) (23)), which provides:
‘ ‘ OTHER CASES: In all other cases in this class of disability there shall be paid to the injured employee 65% of the difference between his average weekly wages and his wage earning capacity thereafter in the same employment or otherwise, payable during the continuance of such partial disability, but subject to reconsideration of the degree of such impairment by the Commission on its own motion or upon application of any party in interest, and in no case exceeding a longer period than four hundred fifty (450) weeks, or a maximum of $7,000.”
That Section of the 1939 Workmen’s Compensation Act was superseded by Initiated Measure (1949) No. 4, § 13, (Ark. Stats. (1948) § 81-1313 (d)), which provides:
“OTHER CASES: A permanent partial disability not scheduled in sub-section (c) hereof shall be apportioned to the body as a whole, which shall have a value of 450 weeks, and there shall be paid compensation to the injured employee for the proportionate loss of use of the body as a whole resulting from the injury.”
A comparison of the above quoted sections of the Workmen’s Compensation Acts reflects that the words of the 1948 act omit the reference to the employee’s wage earning capacity after the injury, and instead, provide that the employee shall be paid compensation for the “proportionate loss of use of the body as a whole resulting from the injury.”
In the case of Lion Oil Co. v. Reeves, 221 Ark. 5, 254 S. W. 2d 450, decided in 1952, we allowed a recovery even though the employee was receiving more money after his injury than he had received before his injury. We pointed out the difference between the 1939 law and the 1948 Initiated Measure, and explained that the cases of Conatser v. Hoskins, supra, and Sallee v. Thompson, supra, were decided under the 1939 law. In Lion Oil Co. v. Reeves, supra, we said:
“In view of the change in language found in the Initiated Act, and in obedience to the universal policy of courts to construe compensation measures in a manner reasonably calculated to effectuate the legislative intent (or, as in the case of an initiated amendment, to carry out the presumptive intention of those who framed the measure and the people who adopted it), we are unable to say that the Commission was in error when it determined that payment for permanent partial disability in the circumstances of this case was not the plan, and that compensation must be made whether the subject is employed or unemployed, and this is true irrespective of what his wages may be.”
The holding in Lion Oil Co. v. Reeves is compelling here. The Commission found that Thomas had suffered a permanent partial disability of 30% to the body as a whole. What he might have earned for a short period of time after his injury does not prove that the Commission was in error in fixing the injury to his body as a whole.
The judgment of the Circuit Court is in all things affirmed.
Smith, J., concurs.
Harris, C. J., dissents.
It was argued in the brief of appellant that all the unpaid Workmen’s Compensation benefits awarded Mr. Thomas abated by reason of his death. But in the oral argument the appellant’s counsel — with becoming candor — called attention to § 81-1323 (e) Cumulative Pocket Supplement of Ark. Stats., which is Paragraph 23 of Initiated Act No. 4 of 1949, and which settles the said point argued in the brief.
In Larson on Workmen’s Compensation Law, Vol. 2 § 57.21, cases from more than a score of jurisdictions are cited to sustain this textual statement: “It is uniformly held, therefore, without regard to statutory variations in the phrasing of the test, that a finding of disability may stand even when there is evidence of actual post-injury earnings equal-ling or exceeding those received before the accident. | [
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HART, J.
Jasper Tongs, alias J. W. Clark, was convicted of uttering a forged instrument, and his punishment was fixed by the jury at two years in the State penitentiary. The defendant has duly prosecuted an-appeal from the judgment of conviction, hut he has not filed a brief in the case. The Attorney General, however, has fairly abstracted the testimony and has carefully discussed the grounds for reversal alleged by the defendant in his motion for a new trial.
The first ground of the defendant’s motion for a new trial is that the testimony is not sufficient to warrant the verdict. The check charged to have been forged is as follows :
“Hope, Arkansas, 1-3-1917.
“No. Citizens National Bank, 81-110.
“Pay to the order of J. W. Clark $60.00, sixty dollars.
“T. J. Smith.”
(Endorsed on back, “J. W. Clark.”)
The bookkeeper of the Citizens National Bank, a corporation, testified that when the check was first presented, it purported to have been signed by J. T. Smith instead of T. J. Smith, and that he would not pay it that way and that the defendant told him the check had been signed by T. J. Smith; that he had been working for T. J. Smith and had sold him a horse and that the check had been given him in payment therefor; that he was on his way to Texas, and for that reason wanted to cash the check at once; that he went out and came back with the check changed so as to show that it was signed by T. J. Smith; that T. J. Smith was about sixty years of age and had an account with the bank; that his son, Joe Smith, had no account with the bank; that there had been some trouble about Joe Smith signing T. J. Smith’s name to checks and presenting them to the bank for payment; that the bank had been notified by T. J. Smith not to pay any more checks where his son Joe had signed his name to them; that he would not have cashed the check in question unless he had thought it had been signed by T. J. Smith.
(1) T. J. Smith testified that he did not sign the check in question and that the defendant had not sold him a horse. It was also shown in evidence that the signature to the check resembled that of T. J. Smith.' A. written confession signed by the defendant and dated "Hope, Arkansas, March 12, 1917,” was read in evidence to the jury. The confession detailed the wanderings of Joe Smith and the defendant from the time they escaped from jail in the State of Oklahoma until they came to the residence of T. J. Smith in Hempstead County, Arkansas. In it the defendant specifically admitted that he knew Joe Smith had signed T. J. Smith’s name to the check and that he, after endorsing the check, presented it to the bank at Hope in Hempstead County, Arkansas, for payment; that the cashier stated that the initials of T. J. Smith as they appeared on the check had been reversed and asked the defendant if T. J. Smith had signed the check; that the defendant was then requested to get T. J. Smith to sign the check with his initials in their proper order; that the defendant went out for that purpose and later on in the day presented the check purported to have been signed by T. J. Smith and the bank then cashed it.
The defendant denied that he knew that Joe Smith had forged T. J. Smith’s name to the check. He testified that Joe Smith had given him the check in payment of a debt he owed him and that he thought the signature to it was genuine.
It will be readily apparent from the above statement of facts that the testimony was sufficient to warrant the verdict.
Another ground for defendant’s motion for a new trial was that the confession was improperly read to the jury. The defendant testified that he was arrested at his home in Texas, and that he did not make the statements contained in'the confession as read to the jury. He stated that when he was arrested he was told that if he would sign the written statement that he would be released and that he signed the statement because he thought he was going to be released that night; that a portion of the statement is true and that some of it he did not state at all. On the other hand, the mayor of Hope stated that after the defendant was arrested he was brought to his office and that the confession was written out there by the detective who had him under arrest; that the confession was voluntary and freely made; that no hope of reward or promise of immunity was made to the defendant.
(2) It is true that when improper influences have been used to obtain a confession from a defendant, the presumption arises that a subsequent confession of the same crime flows from that influence. It is equally well settled, however, that such presumption may be overcome by positive evidence that the subsequent confession was given free from undue influence. Turner v. State, 109 Ark. 332, and Smith v. State, 74 Ark. 397.
(3) Prom the testimony of the mayor of the city of Hope the court might have found that the confession was made in the mayor’s office and was freely and voluntarily made. In determining whether a confession was voluntarily made, the court must look to the whole situation and surroundings of the accused and its finding that the confession was free from taint of official inducement will be upheld where there is evidence to support it, Dewein v. State, 114 Ark. 472, and Greenwood v. State, 107 Ark. 568.
(4) Another ground of defendant’s motion for a new trial was that the circuit court erred in overruling his motion for a continuance. The defendant and Joe Smith were confined- in jail in the State of Oklahoma. They escaped therefrom and finally went to the home of Joe Smith’s father in Hempstead County, Arkansas, where the forgery charged in the indictment is alleged to have been committed. It was the theory of the defendant that the check in question was given him by Joe Smith in payment of his services in helping to get Smith to his home in Hempstead County, Arkansas. He stated in his motion for a continuance that he could prove this fact by W. H. Tongs and that he is informed and believes that W. H. Tongs is in Little River County, Arkansas; that a subpoena for him was issued and sent to the sheriff of Little River County, Arkansas, on the 7th day of April, 1917; that the subpoena has not been returned and that the defendant does not know whether or not it has been served. The record shows that the defendant was brought back to Hope on March 12,1917, charged with the commission of the forgery and that an indictment was returned against him on the 5th day of April, 1917. In his motion he states that the matter to be proved by W. H. Tongs was a conversation between the defendant and Joe Smith which occurred at W. H. Tongs’ residence in Little River County, Arkansas. It will be observed that the defendant did not attempt in any way to notify the sheriff in what part of the county W. H. Tongs lived, but relied wholly upon the issuance of a subpoena for him. He knew that his case had been set for trial for the 12th day of April, 1917, and that it was necessary that the subpoena should be served at an early date. Hence we do not think that the defendant used due diligence, and it can not be said that the court abused its discretion in refusing a continuance to procure the attendance of "W. H. Tongs.
In Ms motion for a continuance the defendant also states that he has five witnesses who live in Bowie County, Texas, four of whom are character witnesses, and one who would testify that the detective who arrested the defendant held out inducements to him in order to get him to confess the alleged forgery. The defendant does not even set out the names of these witnesses, and we do not think the court erred in refusing to continue the case to allow the defendant to procure their voluntary attendance or to take their depositions.
(5) Another ground of the defendant’s motion for a new trial is that the court erred in refusing an instruction asked by him on the subject of reasonable doubt. We do not deem it necessary to set out the instruction, for if it can he said that the instruction is good in form, other instructions on the same subject were given both for the State and the defendant. They fully cover the subject, and we have repeatedly held that the court is not required to multiply instructions on the same point.
(6) Again in his motion for a new trial the defendant alleges that the court erred in refusing to instruct the jury that if it should find from the evidence that prior to the giving of the check in question the defendant had received checks on the Citizens National Bank from Joe Smith signed T. J. Smith, and that said checks were honored by the hank and paid by T. J. Smith and that T. J. Smith in paying the checks had acted in a way to lead the defendant to believe that Joe Smith had authority to sign his name to the checks, that it should find the defendant not guilty. On the part of the State it was shown that T. J. Smith had paid checks to wMch his name had been signed by his son, Joe Smith, but he had directed the bank not to pay any more of them. According to the testimony of the defendant the bank had cashed two or three checks where T. J. Smith’s name had been signed by Joe Smith. This fact, however, would not warrant the jury in returning a verdict of not guilty. The fact that T. J. Smith had in a few instances paid checks where his son had wrongfully signed his name thereto, would not warrant the jury in finding that he meant thereby to give his son such authority in the future. He might have forgiven his son and paid those checks but this was not testimony from which a jury would be warranted in finding that he intended to give his son authority to sign his name to checks in the future.
It follows that the judgment must be affirmed. | [
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Carleton Harris, Chief Justice.
On November 20, 1957, Pauline O. Holt instituted suit in the Washington Circuit Court against appellant, Dr. Stanley Applegate. The complaint alleged that about March 10, 1956, Mrs. Holt became ill and sought the advice and services of Dr. Applegate; that she was informed by appellant that it was necessary that she undergo immediate surgery for removal of a tumor from her left ovary; that without her consent, the doctor removed her uterus, and performed upon her a total hysterectomy; that Applegate negligently cut, or otherwise destroyed, the normal function of her left ureter, creating a condition that prevented urine from escaping from plaintiff’s left kidney, but causing said urine to collect therein and causing the kidney to become enlarged and infected; that she underwent excruciating pain and suffering from March 20, 1956, until May 2, 1956, on which date it became necessary that the kidney be removed. Further:
“VI
That as the proximate result of the negligent acts or omissions by the defendant Stanley Applegate, it was necessary that the plaintiff be confined in a hospital and under the care of physicians and surgeons for a total of one hundred and fifty days, during which period of time the plaintiff suffered severe and intense pain, suffering, and mental anguish, and for which hospital and medical care, and the drugs and medicines necessitated thereby, the plaintiff was required to, and did, expend large sums of money.
“VIII
# * * the plaintiff states that it became and was necessary that her left kidney be removed as aforesaid, in order to prevent the flow and pássage of her urine from said kidney into her vagina as hereinabove set out, and the leakage therefrom, and that on or about the 2nd day of May, 1956, said kidney was removed by further surgical operation, and the loss of said kidney caused the plaintiff great injury and damage, all of which injury and damage was the proximate result of the negligent acts and/or omissions on the part of the defendant as set out herein.
“IX
That said acts and omissions, acting singly and together, caused and brought about and were the proximate cause of all of the aforesaid injuries and damages suffered by the plaintiff, all of which total the sum of one hundred thousand dollars ($100,000).”
The complaint prayed judgment against appellant in that amount.
Applegate answered, with a pleading termed, “Answer and Third Party Complaint,” denying the material allegations, and stating:
“ * * * that if in fact the plaintiff sustained any damages as alleged in the complaint that the same are not the result of any negligence on the part of this defendant.”
He then alleged that; Dr. Prank Riggall, a physician and surgeon at Prairie Grove,
“* * * carelessly and negligently represented to the plaintiff that her condition following surgery was such that it was necessary that her left kidney be removed, and acting upon said negligent representation, did, on or about May 2, 1956, remove the left kidney of the plaintiff; that the said action on the part of the cross-defendant was wholly unwarranted and that any damage, if any, suffered by the plaintiff was the proximate result thereof. That the negligence of the cross-defendant consisted of carelessly and negligently diagnosing the condition of the plaintiff as requiring the removal of the left kidney; and in carelessly and negligently advising the plaintiff to submit to said operation; and in carelessly and negligently performing the said operation without cause therefor; that the damage alleged in the complaint was the direct and proximate result of the negligence of the cross-defendant, for which this defendant and cross-complainant is not responsi•j-qe # # * > j
Subsequently, Dr. Riggall demurred to the third party complaint, which demurrer was sustained by the court. Prom the action of the court in sustaining the demurrer and dismissing the third party complaint, comes this appeal.
Let it first be said that it is not necessary that the parties act in concert in order to be liable as joint tortfeasors, and appellee concedes this to be the general rule. See Giem v. Williams, 215 Ark. 705, 222 S. W. 2d 800. The sole question to be determined is simply whether Dr. Riggall is a proper party defendant in this action. Appellee argues that the two doctors cannot be held to be joint tortfeasors, because any alleged injuries received from either by plaintiff, were separate and distinct injuries; that under the law, tortfeasors, acting independently, are jointly liable to a plaintiff, and liable to each other in contribution, only when the independent acts of each, cause or contribute to the same injury obtained by a plaintiff. We consider the latter assertion to be a correct statement of the law, but even so, we do not agree that Applegate is precluded from filing his third party complaint. While it is true that a part of plaintiff’s complaint deals with alleged injuries occurring before Dr. Riggall entered the picture, nonetheless, it is apparent from reading the portions of the complaint heretofore quoted, that a substantial part of the damage complained of was allegedly caused by the loss of the kidney. In other words, the suit is based upon all the injuries received by plaintiff, and suffering occasioned thereby. Dr. Applegate is being sued because of the removal of the kidney, and pain resulting, as well as for suffering occasioned by the earlier operation performed by him; and according to his third party complaint, the removal of the kidney was unnecessary. While Dr. Applegate denied any liability whatsoever, his alternative prayer was:
“# # * that if the plaintiff should recover on her complaint against this defendant, that this defendant and cross-complainant have judgment over against the third party defendant, and for all other proper relief. ’ ’
Arkansas Statutes, Section 34-1007, provides:
“Before answering, a defendant seeking contribution in a tort action may move ex parte or, after answering, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable as a joint tortfeasor to him or to the plaintiff for all or part of the plaintiff’s claim against him? * * 5 J
By Arkansas Statutes, Section 34-1001, the term joint tortfeasors is defined to mean, “two or more persons jointly or severally liable in tort for the same injury to person or property.” Therefore, it would appear that the pivotal phrase in Arkansas Statutes, Section 34-1007 (italicized above), means: “. . . who is or may be liable jointly or severally to him or to the plaintiff for all or part of the plaintiff’s claim against him.” Of course, if plaintiff has no cause of action against Rig-gall, the latter could not be liable as a joint tortfeasor, but clearly, if appellant’s third party complaint be taken as true (as admitted by the demurrer) , it would appear that a cause of action was stated against Dr. Riggall as a third party defendant.
The judgment of the court sustaining the demurrer and dismissing the third party complaint is reversed, and the cause is remanded with directions to overrule the demurrer and to reinstate the third party complaint.
This second operation was performed by Dr. Frank Riggall, appellee herein.
Emphasis supplied.
For the purpose only of determining the sufficiency of the pleadings. | [
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SMITH, J.
The General Assembly, at its 1917 session passed an act, Act No. 100,p.478, entitled, “An Act to borrow money to cover deficiencies in the State’s General Revenue Fund, to issue interest-bearing evidences of indebtedness therefor, to levy a tax to create a sinking fund to pay the interest and principal of said loan, and for other purposes.”. The State Debt Board is charged with the performance of certain duties in the execution of the provisions of the act, but the persons composing this board are not named in this act. The Treasurer of State, eio nomine, is charged with the duty of registering negotiable promissory notes which the act provides shall be issued by the State Debt Board in the negotiation of the loan of money there authorized, and the act imposes certain other duties upon the State Treasurer. Appellant, who is a citizen and taxpayer of the State, filed a complaint, in which he alleged that the Treasurer of the State is about to perform the duties imposed upon him by sáid act, and will do so unless enjoined from .so doing, and the complaint contained a prayer for this relief.
As ground therefor, it is alleged that the act is unconstitutional, being violative of Section 1 of Article 16 of our Constitution. It is further alleged that the act is void for indefiniteness, in that it does not designate the members of the State Debt Board and the membership of said board is not otherwise designated.
The section of the Constitution referred to 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.”
This section contains three inhibitions, as follows:
First, that neither the State, nor any city, county, town or other municipality therein, shall ever loan its credit for any purpose whatever.
The second inhibition is that no county, city, town or municipality shall 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 indebtedness existing at the time of the adoption of the Constitution.
The third is that the State shall never issue any interest-bearing treasury warrants or scrip.
The act of the Legislature under consideration does not violate the first subdivision of this section 1 of article 16 of the Constitution, because the act does not contemplate any loan of the State’s credit. No ordinary definition of the word “loan,” nor ordinary construction of the language of the clause in which it appears, can make it cover the act which the State is here seeking to do. The State is not lending its credit, but is proposing to use its credit for its own purposes. The State is -not undertaking, in any manner, to assume any obligation for any purpose other than its own use, and this use of its credit can not be called a loan thereof. The construction of the language employed, which we think is ambiguous, is reinforced by a consideration of the contemporaneous history, which discloses the evil against which the Constitution was providing. The State had loaned its, credit, and in a manner which had largely destroyed this credit, whether employed for its own use, or loaned in promotion of interests which it had undertaken to foster. It appears that the Constitution-makers have employed a word which denies to the State the right to permit an other agency to use its credit, but which does not deny the State its right to use this credit for its own purposes.
The second inhibition is, that no county, city, town or municipality shall 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 indebtedness existing at the time of the adoption of the Constitution. It is said that the word “municipality” here employed, includes the State. But we do not agree with counsel in this contention. If it be conceded that the word municipality has sometimes been used by courts and text-writers as of sufficient breadth to include a sovereign State, it does not follow that it was so employed here. The framers of the Constitution were dealing with a subject of the highest importance and evidently chose their language with great discrimination, and we can not assume that they intended the word “municipality” to embrace the State. To do so would render meaningless and wholly unnecessary the third clause of this section, which provides that the State shall never issue any interest-bearing treasury warrants or scrip. This second clause inhibits the issuance of any interest-bearing evidences of indebtedness. Treasury warrants and scrip are evidences of indebtedness, and it would have been an idle thing to do to prohibit the State,' along with the counties, cities and towns therein, from issuing any interest-bearing evidences of indebtedness, and then, in the following clause of the same section, to repeat the inhibition against the issuance of a form of indebtedness which was inhibited under the preceding clause.
The State is intended and is designated only in the first and third clauses of this section of the Constitution, and the State alone is designated in the third clause, and we must, therefore, conclude that the State would have been named in the second clause had it been intended that its inhibitions should apply against the State.
The Constitution is not a grant of power to the State, and we are not required to look to the Constitution for authority for legislative action. The State, acting through its Legislature, may borrow money for* its own uses unless that right is denied to it by the Constitution and the only inhibition against the State there contained, in this respect, is that it shall not issue any interest-bearing treasury warrants or scrip.
We have more than once said that a statute, enacted shortly after a constitutional convention, by a Legislature containing members of the convention, should be given weight as indicating the construction put upon the Constitution under which the statute is enacted. Speer v. Wood, 128 Ark. 183, 193 S. W. 785. A session of the General Assembly, which convened in the year in which the Constitution was adopted, and which numbered several members of the constitutional convention among its membership, passed an act to provide means for paying the expenses of the State government, and to retire outstanding Auditor’s warrants and Treasurer’s certificates. Acts 1874 (December 23, 1874), page 72. Section 11 of this act is as follows:
“Sec. 11. None of said bonds shall be sold for money for any other purpose than to defray the expenses of the State government and the proceeds of such sales shall be applied to that purpose exclusively, and shall be apportioned by said board among the various appropriations for paying the said expenses in such manner as may best serve the interest of the people, and no money shall be paid out by the Treasurer except in pursuance of such apportionment; provided, that not more than five hundred of such bonds shall be sold for money in any one year.”
The case of Jobe v. Urquhart, 102 Ark. 470, involved the right of the Board of Commissioners of the State Penitentiary, who were acting under the authority vested in them by the act of the General Assembly, approved June 24, 1897, to buy a convict farm for an agreed sum paid in cash and for a balance to be paid annually with interest. The right of the officials acting for the State to enter into a contract involving the payment of interest was there questioned. The court there said:
“The General Assembly has plenary powers to contract for and create interest-bearing indebtedness on the part of the State, except to issue interest-bearing treasury warrants or scrip. But the authority to bind the State to the payment of interest on her indebtedness must be jplainly expressed and not implied. * * * But the appellee insists that, if the board was not authorized to contract for interest, its action in so doing was' ratified by the subsequent action of the Legislature in the passage of the act approved May 31, 1909. In answer to this position, it must be conceded in the outset that the Legislature had the power and the right to extend the legal liability of the State in respect to the item of interest and to provide for its payment by appropriation of a fund for that purpose; but this must be done in the manner pointed out by the Constitution.”
The negotiable promissory notes which the act under consideration authorizes the State Debt Board to sell, are evidences of indebtedness, but they are not treasury warrants or scrip. The meaning of treasury warrants or scrip is well known. The State and many of the counties, then and now, have been and are compelled, through lack of public revenue, to draw these treasury warrants, commonly called scrip. This scrip is an order on the Treasurer to pay the sum named whenever available funds are in the treasury. Sections 3412 and 1459 of Kirby’s Digest. The exigencies of government require the issuance of these treasury warrants or scrip whether they can be cashed upon presentation or not, but, for reasons which the makers of the Constitution thought sufficient, it has been provided that not even the State may issue interest-bearing treasury warrants or scrip. This is the inhibition of the third clause of the section of the Constitution above quoted, and is the only inhibition as against the right of the State to use its credit for its own governmental purposes.
It is finally insisted that the act is void for uncertainty, for the reason that it does not designate the persons composing the State Debt Board. It was not neces sary that the act should do so. Section 6462 of Kirby’s Digest provides that the Governor, Secretary of State, Auditor and Treasurer of State are constituted a State Debt Board for the purposes mentioned in the act there digested. It is said that the purposes of that act have been performed and that, therefore, the board has ceased to exist. We do not stop to inquire whether all duties imposed by law upon this board have, in fact, been performed, for the reason that the act creating the board has never been repealed. The Legislature may have thought that future duties could and would be imposed upon this board and the act under consideration has done so, and we think it unnecessary that the Legislature should have re-created a board which it had never abolished.
Finding no error in the decree of the court below, che same is affirmed. | [
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HUMPHREYS, J.
Appellant instituted a suit against appellee in the Southern District of the Prairie Circuit Court, alleging that appellee, who owned a rice farm adjoining his land, had wilfully, maliciously, negligently and carelessly pumped water from a large well on his rice lands and flooded certain lands of appellant, and thereby destroyed 20 tons of hay; and by a continuation of so flooding the land, prevented him from harvesting 30 tons of growing grass, to his total damage in the sum of $200.00.
Appellee filed answer denying the material allegations of the complaint.
The cause was heard by a jury upon the pleadings, evidence adduced and instructions of the court, which resulted in a verdict and judgment for appellee. The case is now before us on appeal.
Four alleged errors are insisted upon by appellant for a reversal of the judgment.
(1) First. It is contended that the evidence is not sufficient to support the verdict. The evidence is conflicting as to whether the damage to the hay was caused by water pumped from the rice well or by excessive rains. Appellee did not plead that the damage occurred by excessive rainfall, and now it is- contended that the court erred in admitting proof showing that the damage was caused by the rains. No objection was made or exception saved to the admission of this character of evidence at the time. For that reason alone we can not now pass upon the competency of the evidence. A reasonable inference might be drawn from the whole evidence in the case that the hay was damaged on account of excessive rains. We are inclined to the view that a preponderance of the evidence reflects that the damage was caused by floods from the well, but we are also of the opinion that there is sufficient legal evidence of a substantial nature to sustain the verdict on appeal to this court. On account of the superior position occupied by the trial court for weighing evidence and testing the credibility of wit-' nesses, this court will not disturb verdicts of juries because contrary to a preponderance of the evidence, unless the discretion of the trial judge has been obviously abused. The attitude of this court with reference to verdicts of juries and courts sitting as juries is clearly stated in all of its phases in the following cases: Shaufelberger v. Mattix, 85 Ark. 195; Taylor v. Grant Lumber Co., 94 Ark. 566; Blackwood v. Eads, 98 Ark. 304; McIlroy v. Arkansas Valley Trust Co., 100 Ark. 596.
(2) Second. It is insisted that the trial court expressed an opinion in the presence of the jury that appellant was not endeavoring to confine himself to the truth and facts in the case. It is not permissible for the trial judge, in the presence of the jury, during the progress of the trial, to express an opinion touching the weight of evidence. It was so held in the case of Roe Rice & Land Co. v. Strobhart, 123 Ark. 146, cited by appellant. We might add that it is within the exclusive province of the jury to pass upon the credibility of witnesses and not the privilege of the trial judge to directly or indirectly reflect upon their testimony. If the language used by the learned judge in the instant case in any way contravenes the principles just announced, then this case should be reversed and remanded for a new trial.
John Lisko, witness in his own behalf, was recalled, and was being questioned concerning the amount of hay damaged during the second cutting. The court said to the attorney who was examining the witness, “You have gone over that.” The attorney responded that the witness did not say how much. The court responded “He said he did not know how much, he just guessed at it. ’ ’ It is very clear that the court was attempting to restate the testimony given by the witness touching this particular matter when first on the witness stand. By reference to the original testimony it will be seen that the witness .did not himself attempt to definitely state the number of acres or the number of tons of hay damaged. The witness stated he did not know, and referred to the fact that he had procured parties to measure the land. The purpose of the court was to prevent repetitions in the evidence. The remark was not the expression of an opinion on the weight of the evidence, nor a criticism on the testimony of the witness.
(3) Third. It is urged that the court erred in excluding a question propounded to appellant as follows: “I will ask you if on yesterday you and Mr. Medendorff were talking about this case and you offered to get an automobile and take him and any three men he would select and go down there and look at this field of yours, both fields, and let them decide whether or not the water came through there upon your fields from the Uhren place. ’ ’
Medendorff had stated in response to a cross-question by appellant’s counsel that he had no recollection that appellant had made such a proposition to him. The question propounded to and answer given by Medendorff was not material to any issue in the case. It was wholly collateral. It is not permissible for a party to draw out immaterial and collateral matters on cross-examination and afterwards contradict the witness testifying to such matters. Brock v. State, 101 Ark. 147.
No error was committed by excluding the above question propounded to appellant.
(4) Our attention is also called to-the fact that ap-pellee was permitted to establish by Robert Medendorff that appellant attempted to rent the rice land out from under appellee. It is said that this evidence was wholly irrelevant and tended to prejudice the jury against appellant and to discount the weight of his evidence. The evidence did not tend to establish the issue presented by the pleading, and .in that sense was irrelevant, hut no. error was committed by the court in admitting the evidence, if admissible for any purpose. Appellant became a witness in his own behalf, and it was proper for ap-pellee to introduce evidence tending to show that appellant was biased or prejudiced against him. The evidence was admissible as tendings to establish bias. It would have been the duty of the court to limit the evidence to the sole purpose of bias if the appellant had made the request at the time.
(5) Fourth. It is insisted that the court committed error in refusing to grant a new trial on account of newly-discovered evidence. We have read the affidavits in support of the motion for new trial on account of newly-discovered evidence, and find that the evidence is cumulative. We also think appellant might have obtained practically all the alleged newly-discovered evidence before the trial had he exercised proper diligence.
No error appearing in the record, the judgment is ' affirmed. | [
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Sam Robinson, Associate Justice.
Appellants, Olga Hooper and L. Y. Rhine, are in the abstract business at Paragould. One of their competitors is appellee Frances Walls. This action was filed by appellants to enjoin appellee J. Ed Thompson, County Judge of Greene County, from allowing Mrs. Walls to use space in the County Judge’s office in the courthouse to do her abstract work. Mr. Rhine and Miss Hooper have appealed from an order denying the injunction.
Mrs. Walls has been in the abstract business since 1932 and she has owned the business since 1941. During all of this time she has done her abstract work in the courthouse in the same manner in which she is now conducting it. Prior to the election of appellee, J. Ed Thompson as County Judge of Greene County, in 1952, Mrs. Walls did her work in the county clerk’s office. The circuit clerk’s office would have been more convenient for her, but since appellants and one other abstract concern had space in the circuit clerk’s office in which to do their abstract work, there was no room for Mrs. Walls, and she therefore did her work in the coun ty clerk’s office. After Judge Thompson was elected, he reached the conclusion that due to the crowded condition in the county clerk’s office it would he better for Mrs. Walls to do her work in the judge’s private office. He suggested to Mrs. Walls that she move her facilities into his office, and she agreed to this arrangement. It appears that this is a very good arrangement for the county. Mrs. Walls had her own private telephone, and the county judge did not have one. Therefore, an extension was installed under an arrangement whereby the county pays one-half of the regular telephone bill and Mrs. Walls pays one-half. She also pays for her listing and for her long distance calls. It is necessary that the county judge be out over the county a considerable portion of the time, and Mrs. Walls takes messages for him and telephone calls; she also does stenographic work for the county judge — all of this at no cost whatever to the county. She is merely allowed to use small space in the county judge’s office in connection with her abstract work.
Appellants are given space in the circuit clerk’s office to do their abstract work, as required by statute. In fact, appellants sued the county judge in 1951 to compel the county to furnish them space to do their abstract work. As a result of that suit appellants were furnished space in the circuit clerk’s office. Ark. Stat. § 71-108 provides:
“Space for work designated in office of clerk or elsewhere in courthouse. — Upon full compliance with all the provisions of this act (§§ 71-101 — 71-109) by any person, firm or corporation, it shall be the duty of the clerk to designate a reasonable space in his office for such person, firm or corporation to work. Provided, that in any case where space in the circuit clerk’s office shall be insufficient to permit the circuit clerk to assign work space to all abstracters entitled thereto, the County Court or County Judge may assign other space in the Courthouse for such purposes, provided such space so assigned does not interfere with the duties of any public official. Nothing herein contained shall be construed to permit any public records to be taken from the clerk’s office when same shall be in use by the clerk, but when not so required, the public records may be used by the abstracter in the area assigned by the County Court or the County Judge.”
Here the statute was followed to the letter. Since there is not room in the circuit clerk’s office for Mrs. Walls, the county judge assigned her other space in the courthouse in which to work. The fact that Mrs. Walls was permitted to have a telephone in the courthouse in connection with her work as an abstracter was a matter within the discretion of the county judge. According to the undisputed evidence, the other abstracters may also install telephones if they so desire.
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Andree Layton Roaf, Judge.
This is a guardianship case. Appellants Emmett and Frances Jones appeal from the Scott County Circuit Court’s order granting guardianship of their two minor grandchildren to appellees Chester Scott and Barbara Scott, the paternal grandparents. On appeal, the Joneses argue that the trial court erred in finding that the children should be left in the care of the Scotts because there had been no material change of circum stances since the children had been left voluntarily in the Scotts’ care by their mother, Sandra Scott. They also argue that the trial court erred in finding that the minor children should be left in the care of the Scotts because that decision was against the preponderance of the evidence and was not in the best interest of the children. The trial court’s decision is clearly against the preponderance of the evidence and is not in the children’s best interest, and we reverse and remand.
Sandra and Damon Scott are the biological parents of Leanne, now age eight, and Austin, now age six. Sandra and Damon were divorced on September 19, 2002, and Sandra was given custody of the children. After the divorce, she and her children lived in the home of her parents, the Joneses. Sandra admitted that, following her divorce, she began abusing drugs. After finding a syringe in Sandra’s pocket, the Joneses confronted Sandra about her suspected drug problem. They advised her that if she had a drug problem that they would put her in a drug-rehabilitation program and care for her children while she was away. In early October 2002, Sandra left her parents’ home and, rather than leave her children with her parents, left them in the care of the Scotts, the paternal grandparents. When questioned by the Joneses, Sandra denied that she had left her children with the Scotts. In late December 2002, however, the Joneses discovered that Sandra had left her children with the Scotts, and they contacted Barbara Scott regarding visitation with Austin and Leanne. Initially, they were permitted to visit Leanne and Austin; however, Barbara Scott discontinued the visits in April 2003. Concerned that the Scotts had been interfering with Sandra’s parental rights, the Joneses suggested that Sandra try visiting with her children. In May 2003, Sandra attempted to visit her children at the Scotts’ home but was refused visitation. Sandra stated that the last time she visited the Scotts’ home, her ex-husband, Damon Scott, attacked her in Barbara Scott’s presence. Barbara Scott denied this allegation. The Joneses then filed a petition for guardianship.
The following was established at the hearing on the guardianship petition. Barbara Scott is age forty-seven and Chester Scott is sixty-nine. Although Chester and Barbara were divorced in 1996, they continue to reside together. They reside in Scott County in a two-bedroom home, where Austin and Leanne share a bedroom. Barbara Scott has three children, none of whom obtained a high school diploma, and Barbara Scott has only a seventh-grade education. Chester Scott completed the eighth grade. Barbara Scott does not have a driver’s license due to her limited reading ability. She is a homemaker, but Chester Scott is employed outside of the home as a long-haul truck driver. He spends Monday through Friday on the road and returns home on the weekends. Chester Scott has health insurance coverage for himself through his employer but does not have health insurance for Barbara Scott. The insurance provided through Chester Scott’s employer would not cover the children; however, he testified that he could provide health insurance for Leanne and Austin. The Scotts admitted that Chester Scott drinks beer and whisky with his son in the presence of the children, and Barbara Scott admitted that she pled guilty to a charge of third-degree battery against her oldest son.
Frances and Emmett Jones also reside in Scott County. Frances Jones is forty-two years old, and Emmett Jones is forty-four years old. They have been married for twenty-six years and have three children. Their two oldest children have obtained high school diplomas, and their youngest daughter is currently a junior in high school, where she participates in cheerleading and softball. Frances Jones is a special education instructor and is certified to teach mildly handicapped children in grades kindergarten through twelfth. She has a bachelor’s degree in Education and is certified in Early Childhood Development, which qualifies her to teach kindergarten through sixth grade. In her testimony, Frances Jones stressed the importance of education and proper discipline. The Joneses do not consume alcohol, except for the occasional drink on special occasions, and do not keep alcoholic beverages in their home. They reside in a two-story, four-bedroom home and testified that they are physically and financially able to take on the responsibility of having Leanne and Austin reside in their home. Frances Jones stated that, if placed in her home, the children would sleep in their own separate bedrooms.
While in Chester and Barbara Scott’s care, Leanne and Austin attended Waldron Elementary School. Both children had been assigned to Charlene Moudy’s kindergarten class, Leanne one year and Austin the following year. While in Ms. Moudy’s class, Leanne demonstrated low performance but progressed as the year went on. Ms. Moudy recommended tutoring but was not contacted by the Scotts regarding her suggestion. Ms. Moudy did recall, however, that both Frances Jones and Barbara Scott at tended parent-teacher conference day. The Joneses testified that, while in the Scotts’ care, Austin began throwing temper tantrums and using profanity.
At the hearing, Sandra admitted that she had abused drugs and alcohol; that she moved from her parent’s home in October 2002 because she was on drugs; that her parents offered to get her help, but that she refused it; that after she moved she was not able to care for her children; that she feared that if she took her children to her parents’ home, they would have placed her in a rehabilitation facility; and that instead she took them to Barbara and Chester Scott’s home. While the children were at the Scotts’ home, Sandra was only permitted to visit them on three occasions. She testified that she thought she had given up custody of her children because she had signed a form authorizing Barbara Scott to seek medical treatment for the children. Sandra testified that, although she is no longer abusing drugs, she is not able to properly care for her children. She stated that she wanted her parents to have custody of the children because she was concerned with the drinking and “partying” that occurred at the Scotts’ home. During her testimony, the following colloquy occurred between Sandra and the trial court:
Court: Now the Scotts apparently were appropriate people to have — to raise your children back in October of last year. What has changed since October of last year, so that they’re not the appropriate people to raise your children?
Sandra: I want my children in my life, sir.
Court: You can’t raise your children. You don’t even have a home. What has change about the Scotts between October of 2002, and September 2003, where they were appropriate then, and they are not now?
Sandra: Nothing, nothing has changed.
Court: All right. You may stand down.
The trial court entered its order appointing the Scotts co-guardians of the children on September 30, 2003. In the order, the trial court set aside the grant of custody in favor of Sandra Scott as provided in the divorce decree. The trial court also found that the two children were incapacitated due to their minority; that Sandra Scott testified that there has been no change in circumstances since she left them in the care of the Scotts; that Sandra Scott voluntarily left the children in the Scotts’ care; that the children need stability in their lives; and that it is in their best interest to continue in the care of the Scotts. It is from this order that the Joneses appeal.
We review probate proceedings de novo, but we will not reverse the trial court’s decision unless it is clearly erroneous. Moore v. Sipes, 85 Ark. App. 15, 146 S.W.3d 903 (2004). A decision is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been made. Walker v. Torres, 83 Ark. App. 135, 118 S.W.3d 148 (2003). When reviewing the proceedings, we give due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. Moore, supra.
When appointing a guardian, the trial court must be satisfied that (1) the person for whom the guardianship is sought is either a minor or otherwise incapacitated; (2) a guardianship is desirable to protect the interest of that person; and (3) the person to be appointed guardian is qualified and suitable. Id. When the incapacitated person is a minor, the key factor in determining guardianship is the best interest of the child. Id.; see also Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000) (stating that the paramount concern in guardianship cases is the best interest of the child). In a guardianship proceeding, there is a preference for the natural parent, unless it is established that the natural parent is unfit. Id.
In the instant guardianship proceeding, there was a preference for Sandra Scott as the natural parent. She, however, does not appeal from the trial court’s order, which set aside the grant of custody in her favor and effectively determined that she was an unfit parent. We, therefore, need not determine whether the trial court’s decision granting custody of her minor children to a third party was clearly erroneous with respect to Sandra Scott. The trial court also found that Leanne and Austin were incapacitated due to their minority, and that a guardianship was needed to ensure stability in their lives. The Joneses do not challenge these findings. Therefore, we only consider whether the Joneses are suitable guardians, and whether the trial court’s decision was in the best interest of the two minor children.
The Joneses first argue that the trial court applied the incorrect standard by requiring a material change in circumstance before finding that there existed a basis for granting their guardianship petition and awarding them guardianship of the minor children. It is true that, when a trial court modifies an existing custody order, the test is whether there has been a material change in circumstances and whether the modification is in the best interest of the children. Walker, supra. In this case, the trial court was considering a petition for guardianship, and the standard is whether the grant of the petition is in the best interest of the children. Moore, supra. To the extent that the trial court required a showing of a material change in circumstances, that ruling was clearly erroneous. See id. (stating that the standard of review for guardianship cases is the best interest of the child).
The Scotts contend that the trial court did not require a finding of material change in circumstances, but that it merely made a finding of fact that there had been no material change in circumstances in order to stress the fact that Sandra Scott had left the children with them voluntarily, and that the children had continued to live with them at the time of the hearing. We disagree.
During Sandra Scott’s testimony, she expressed a desire to have her children placed in the custody of her parents, the Joneses. The trial court then asked Sandra to explain what circumstances had changed since she left her children with the Scotts that would now make them inappropriate people to raise her two children. Sandra responded that no circumstances had changed. It is clear from the colloquy between Sandra and the trial court that the trial court was requiring Frances and Emmett (and Sandra to an extent) to demonstrate a change in circumstances regarding the Scotts that would make them inappropriate guardians for the two minor children- — an incorrect standard in guardianship proceedings. Moore, supra. The trial court’s use of this standard was clearly erroneous. Moreover, the trial court apparently concluded that, because Sandra Scott voluntarily left her children with the Scotts in the first instance, were appropriate guardians to care for her children. Sandra left her children with the Scotts because she feared facing her parents and her drug addiction. That decision hardly supports a finding that the Scotts were fit and proper guardians for two minor children at the time Sandra left them in their custody. She admitted that, at the time she left her children with the Scotts, she had a drug problem; and that, if she had told her parents, they would have placed her in a drug-rehabilitation facility. Thus, it is clear that, at the time Sandra voluntarily left her children with the Scotts, she was not motivated by the fact that she believed them to be the most fit guardians, but rather by the fact that she could continue her drug use without being held accountable for her actions — conduct that her parents would not allow.
In addition to the colloquy during the guardianship hearing, the trial court reiterated in its written order that there had been no material change in circumstances since the children were placed in the Scotts’ care, and the order also makes reference to the children needing stability in their lives. In custody cases, our courts are often concerned with issues related to stability, and this court has stated that, while custody is always modifiable, our court requires a more rigid standard for custody modification than for initial custody determinations in order to promote stability and continuity for the children and the discourage repeat litigation of the same issues. Vo v. Vo, 78 Ark. App. 134, 79 S.W.3d 388 (2002). This case, however, is not a custody case. The fact that the trial court repeatedly discussed material change in circumstances and the need for stability suggests that it was relying on the standard applicable to custody cases and not the standard used in guardianship cases. The trial court’s reliance on the incorrect standard was clearly erroneous.
We now turn to the Joneses’ second point on appeal: whether the trial court’s grant of guardianship in the Scotts’ favor was in the children’s best interest. We find that the trial court’s decision is clearly erroneous, and that a definite mistake has been committed. Further, it is clearly in the minor children’s best interest to be placed in Joneses’s care. The Joneses have more living space, and the children would have their own bedrooms if placed with the Joneses. In their current situation, they share a bedroom, which may be appropriate during their youth, but may not be so as the children become older. The Joneses have a demonstrated interest in the promotion of educational goals and discipline. Frances Jones is a certified special-education instructor and certified to teach grades kindergarten through twelfth grade. She would be instrumental in assisting the children with their educational goals, especially in Leanne’s case where she had demonstrated low performance skills in Ms. Moudy’s kindergarten class and where Ms. Moudy recommended that she participate in some tutorial program. On the other hand, Barbara Scott has a seventh grade education, and Chester Scott has an eighth grade education; none of her three children have obtained a high school diploma. Barbara Scott is also dependent on another family member, Bonnie Winemiler, to provide tutoring to the children. Barbara Scott stated that Bonnie would “come by from time to time to help Leanne.” The Joneses have been married for twenty-six years, while the Scotts are divorced but living together.
Regarding the children’s day-to-day activities, because Chester is a long-haul truck driver and works Monday through Friday, Barbara Scott would be the children’s primary caregiver. Flowever, Barbara Scott admitted that she has limited reading ability; and that, because of her limited reading ability, she has been unable to obtain a valid driver’s license. Without a valid driver’s license, Barbara Scott is unable to transport the children, legally, even in the case of an emergency. She also pled guilty to a violent crime, which she committed against one of her own children. The record shows that Barbara Scott struck one of her children with a whiskey bottle. Unlike the Joneses, who very rarely consume alcohol, Chester Scott admitted to drinking whisky and beer with Damon in the children’s presence, and Austin has displayed unruly conduct and begun using profanity since being in the Scotts’ care. Based on the foregoing facts and all of the testimony presented in this case, we conclude that the trial court’s decision is not in the children’s best interest and remand. However, we are mindful that two full school years have elapsed since entry of the order that is the subject of this appeal. We reverse and remand to allow the trial court to conduct such further proceedings as may be necessary, see Walker, supra, and for entry of an order that is not inconsistent with this opinion.
Reversed and Remanded.
Griffen and Glover, JJ., agree.
This is the second appeal in this case. In the first appeal, appellants requested four extensions to file their brief, and when the brief was finally tendered, it was rejected due to insufficiencies in the addendum. The brief was submitted on June 15,2004, and this court ordered rebriefing due to deficiencies in the appellants’ addendum in an unpublished opinion delivered January 19, 2005. Thereafter, appellants attempted to tender a brief, which was rejected. Appellants’ corrected brief was finally tendered on February 17,2005. | [
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Humphreys, J.
This is an appeal by the public utility from a judgment of the circuit court of Logan County, Southern District, which, in effect, abrogated the rates under which said public utility was distributing electrical energy in the city of Booneville. The utility had surrendered its franchise under act 571 of the General Assembly of 1919, and prior to July-18, 1921, was operating under an indeterminate permit issued by the Corporation Commission, and had in force a schedule of rates which had been approved by the Commission pursuant to the authority vested in it by said act. On the 18th day of July, 1922, the council of the city of Booneville passed an ordinance reducing the rates, pursuant to the provisions of § 17, act 124, of the General Assembly of 1921. The later act abolished the Corporation Commission and, by § 17 thereof, authorized the municipalities to “fix, promulgate, modify, amend, adjust, readjust or otherwise make and determine fair and reasonable rates to be charged by all public utilities in fur nishing utility service within such municipalities.” Within the time and in the manner provided by the act appellant prosecuted an appeal from the rates fixed by the city council to the circuit court. In petition for appeal appellant conformed its prayer for relief to the statute, asking that the court, in reviewing the action of the council, hear evidence and determine what rates would afford the appellant valid and reasonable compensation for the services rendered, and to enter an order setting out such rates, and to certify same to the council, with directions to fix rates in keeping therewith.
The cause was submitted to the circuit court, without the intervention of a jury, upon the pleadings and testimony, which resulted in a judgment setting aside the rates established by the city council as being confiscatory, and finding fifteen cents per kilowatt hour a fair and just maximum rate for domestic power, and six cents per kilowatt hour a fair and just rate for commercial power. The rates fixed were graded downward to a minimum according to the amount-of power used by the customer. No complaint is made that the grading was out of proportion to the maximum rate, so it is unnecessary to set out the graduated rates.
In accordance with the provisions of the statute, the case is pending before us for trial de novo upon the law and testimony as brought into the record of the trial below.
Appellant’s first contention for a reversal of the judgment is that the circuit court was without power to fix a rate other than the rate fixed by the ordinance. In other words, the contention of appellant is that the court exhausted its judicial power in setting aside the ordinance rate, and that it exercised legislative power authorized by the statute but inhibited by the Constitution in attempting to fix and certify a new rate. The validity of the statute in this respect is assailed as being unconstitutional. We cannot agree with learned counsel in this contention. The statute authorizes a judicial review of the rates fixed by the agency of the Legislature, and, if it had not, it would be void for that reason. A judicial review necessarily involves a correction of the erroneous judgment, else complete justice would not be accomplished. The ascertainment of a confiscatory rate, from a practical standpoint, involves the ascertainment of a fair and just rate. In order to confidently assert a rate is confiscatory, one should know what a fair and just return on the present market value of the property would be. The same method must be adopted to ascertain whether the rate is confiscatory or fair and reasonable, and when one is ascertained the other is implied, therefore a declaration of the conclusion reached is the result of the judicial review, and not the ascertainment of the rate growing out of the exercise of a legislative function. This exact point was decided adversely to appellant’s contention in the case of Van Buren Water Co. v. Van Buren, 152 Ark. 83. In deciding the question the court used the following language: “The fact that the new rates were unreasonable did not justify the court’s order in compelling the company to restore the old rates, which were confiscatory. It was within the power and duty of the circuit court to fix such a rate, according to the testimony in the record, as was reasonable, and which would afford a just return upon the investment.” The fixing and certification of the new rate to the council was not an attempt to exercise legislative authority.
Appellant’s next and last contention for a reversal of the judgment is that, under the law and the evidence, the rates fixed and certified to the council by the court are confiscatory and void.
The rule of law governing is that the rate must be fixed which will give the public utility a fair and just return upon the market value of its property as of the time the inquiry is made regarding the rates.
After a careful analysis of the testimony we have concluded that the evidence introduced by appellant fails to properly reach the issue. The method adopted by appellant’s witnesses to ascertain the present value of property was to estimate the reproduction value of the plant, based upon the cost of labor and material covering the period from 1917 to 1922, and deducting therefrom depreciation of the property occasioned by the use thereof. Treating the reproduction cost as a proper element in arriving at the present market value of the property, it would not be proper to average the cost of labor and material entering into the reproduction of the plant during any given period. In the instant case the period selected embraced the high peak prices of the war. The prices for labor and material prevailing as of the time the inquiry was made regarding the rates would necessarily control. The present market value of the property having been ascertained by appellant’s witnesses upon an incorrect assumption, this renders their conclusion unreliable. When their testimony is eliminated the only testimony of consequence remaining is that introduced by appellee, tending to support the finding of the court. The record reflects that the original cost of the property was about $25,000, and that the certified value thereof by the officers for taxation purposes was about $70,000. The evidence was conflicting as to the value of the real estate, ranging from a few hundred dollars to $5,000. The exhibits covering the utility income and expenses show that for the yeaT ending February 28, 1922, the net income from the Booneville division was $8,815.08, and for the year ending July 31, 1923, was $5,787.70. The exhibits also reflect disproportionate increases of 'expenses compared with the income for operation in the years 1922 and 1923. The plant was an old one, having been in operation for a number of years. We are of opinion that the rate fixed and certified by the court is supported by the weight of the evidence. .
No error appearing, the judgment is affirmed. | [
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Humphreys, J.
Appellant alleged ownership of an undivided 29/44 interest in the N. E. % of section 30, Tp. 6 N., R. 18 W., in Conway County, Arkansas, containing 104% acres, and brought suit in the chancery court of said county to cancel an alleged void tax deed, executed by the Commissioner of State Lands of Arkansas to appellee, J. E. Darr, of date June 8,1915, in. which it was recited that the lands conveyed were forfeited to the State of Arkansas under description as follows: 29/44 of NE%, section 30, Tp. 6 N., R. 18 W., in Conway County, Arkansas, containing 104% acres, and also to quiet title in her to an undivided 29/44 interest in said land.
Appellee filed an answer denying appellant’s ownership of a 29/44 interest in said quarter section and the invalidity of the tax deed from the State to appellee, J. E. Darr, and pleaded in bar of recovery the two-years’ statute of limitations.
The cause was submitted upon the pleadings and testimony, which resulted in a finding by the court that, at the time of the forfeiture for taxes in 1903, the land belonged to the Goodrich heirs, and that thereafter appellant purchased the interest of the other Goodrich heirs and became the owner of the entire 29/44 interest therein; that the tax deed was void, but that, under § 6947 of Crawford & Moses’ Digest, the two-years’ statute of limitation had run against appellant find barred her from recovery of the land. A decree was rendered dismissing appellant’s bill for want of equity, canceling her deeds to the land and quieting title in appellee, J. E. Darr, to that part of the real estate still owned by him, and in N. W. Black to that part conveyed by J. E. Darr to him, from which is this appeal.
As we read the record and brief of counsel, only four questions are presented to this court for determination:
First, has appellant sufficiently established her title?
Second, if so, is the description in her chain of title sufficiently definite to locate the land? '
Third, is the tax deed based upon a valid forfeiture for the nonpayment of the taxes for the year 1903?
Fourth, will the two-years’ statute of limitation bar a recovery?
(1) Appellant testified that her uncle, Lemuel H. Goodrich, devised her father a life estate in the lands in question, with the remainder over to his children;' that, when her father died, the Goodrich heirs, including herself, became the joint owners thereof, and that she afterwards acquired the interest of the other heirs, who were her sisters, by purchase. The will and deeds from her sisters to herself were introduced in evidence. The will devised all of Lemuel H. Goodrich’s estate, both real and personal, to his executor in trust, with power to sell and convey same, directing that said executor pay the income from the lands and proceeds thereof to his brother, Chester B. Goodrich, during his natural life, and, upon his decease, to divide the real estate or proceeds thereof and all his personal estate among the heirs of the said Chester B. Goodrich. Objection is made to appellant’s, chain of title because the will does not describe the land, and because it was not shown that-he owned the land in question at the time of his death. Appellant’s statement that she and her sisters acquired title to the land by devise from her uncle is tantamount to saying that he owned it at his death.
(2) The suggestion that the description contained in the deeds in appellant’s chain of title is defective in case the description in the tax deed is held to be insufficient, is not tenable. The description 29/44 of N. E. % of section 30, Tp. 6 N., R. 18 W., in Conway County, Arkansas, containing 104% acres, in the deed in her chain of title, means an undivided twenty-nine forty-fourths’ interest therein. Any undivided interest in a definitely described tract of land may be conveyed by the owner thereof to the grantee, without first having same segregated from the other lands in the tract.
(3) In the case at bar the land was described in the tax deed as 29/44 of N. E. % of section 30, Tp. 6 N., E. 18 W., in Conway County, Arkansas, containing 104% acres. It must be presumed that the description in the deed followed the description on the delinquent’list and on the assessment roll. This court held, in the case of King v. Booth, 94 Ark. 306, that the following description in a tax deed was defective and rendered the tax deed void: “4/6 of N. W. % section 24, Tp. 6 N., E. 8 W., situate in the county of White, and State of Arkansas.” As a reason for holding the description defective the court said: “When a part of a tract of land is assessed and sold for the nonpayment of taxes, and the description is not sufficiently definite to locate it with reference to the remaining portions of the tract? the sale will be void.” In other words, under the rule announced, in order to give effect to a tax sale of an undivided share in a particular tract of land for the nonpayment of taxes thereon, the whole tract should be described upon the taxbooks and on the delinquent list, under its proper legal subdivision, and the value and amount of taxes set opposite each share. It will be observed that the description in the tax deed in the case at bar is exactly like the description in the tax deed in the case of King v. Booth, supra. In neither case was the whole land described on the taxbooks and the delinquent list, the several parts valued and the assessment apportioned to the several shares. The rule announced in the Booth case is applicable to the facts in the instant case. The tax deed is therefore void on account of the defective description of the land.
(4) It is unnecessary to set out or discuss the testimony in the case tending to show the extent and duration of appellee’s'possession of the lands, for the two-years’ statute of limitation pleaded by them has no application in cases where the tax deed is void on account of a defective description of the. land forfeited for the nonpayment of taxes. This court said in the case of Halliburton v. Brinkley, 135 Ark. 592, that “a tax deed void for insufficient description is not such color of title as will set in motion the two-years’ statute of limitation provided by § 6947, Crawford & Moses’ Digest.”
For the error indicated the decree is reversed, with directions to enter a decree in favor of appellant in accordance with this opinion. | [
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Wood, J.
This action was instituted by the appellee against the appellants to restrain appellants from disposing of certain notes executed by the appellee to the appellants as purchase money for certain personal property which the appellee had agreed to purchase of appellants, and also to recover the sum of $575, which he alleges the appellants had realized on a check given ■to them by the appellee, and the further sum of $200 damages. The appellee, among other things, alleged that she purchased of the appellants all furnishings in a certain rooming-house in Fort Smith, and agreed to pay the appellants the sum of $1,100; that, prior to said purchase, the appellants represented to the appellee that twelve rooms in the rooming-house in which the furnishings were then located were occupied by roomers, and that the rooms paid the sum of $150 per month, 'exclusive of any and-all expenses to be incurred in the conduct of the rooming-house. Appellants represented that they were 'the owners of the furnishings in the rooms, and that there were no claims against them whatever. The appellee alleged that she relied upon the representations made to her with reference to the earnings of the rooming house and as to the ownership of the property mentioned, and by reason of such representations she gave her check to the appellant in the sum of $575 and executed ten notes of $50 each, payable monthly thereafter; that soon after the execution and delivery of the notes and check she ascertained that the appellants were not the .o-wners of a large portion of the furnishings in the rooms in the building mentioned, and that the rooms had not paid, and were not then paying, the sum of $150 per month, all of which facts were well known to the appellants at the time they made such representations; that such representations were false and fraudulent and made for the false and fraudulent purpose of inducing' the appellee to execute the notes and checks, and that she relied upon such representations in doing so; that the appellants had cashed the checks and unless restrained would dispose of the notes. She prayed for a restraining order preventing the appellants from disposing of the notes and for a decree in the sum of $575 for her damages growing out of such false representations.
The appellants answered, denying specifically the allegations of the complaint as to the fraudulent misrepresentations, and they averred, by way of cross-corn-plaint, that the appellants showed the appellee their rooming-house and advised the appellee that the appellants and their family occupied seven of the twelve rooms in said house as their home, and they told appellee that, if. she could rent all of the rooms, including those occupied by the appellants, she could get therefor approximately the sum of $150 per month. Appellants, at the same time, pointed out the furnishings in the rooming-house which did not belong to them, which included certain small articles, and told the appellee that these were not included in the sale, and, with the exception of .these articles so pointed out, the appellants informed the appellee that the furnishings in the house belonged to appellants, and that there were no liens or incumbrances against any of the property. Thereupon the appellants and the appellee closed a deal for the furnishings which appellants pointed out to the appellee as their property; that the appellee thereupon gave to appellants her check in the sum of $575 and executed her promissory notes as alleged in the complaint. They further set up that the appellee had thoroughly inspected the property before purchasing same and fully understood what she was purchasing. They averred .that appellee had not paid one of the notes at the time the same became due, and that, under the terms of the contract, such failure to pay rendered all of the series of notes due and payable. Appellants therefore prayed that the appellee’s complaint be dismissed for want of equity, and, by way of cross-complaint, that they have judgment against appellee for the sum of $500 with interest, balance due of the purchase money as represented by the promissory notes, and also for the sum of $25 represented by check which the appellee had given to appellants as earnest money and on which she had stopped payment at the bank.
Appellee testified that she purchased certain personal property under a bill of sale, which she identified and introduced in evidence. The bill of sale recited that, for the consideration of $1,100, the appellants sold to the appellee “the following property, goods, and chattels, to-wit, all the furnishings used in the conduct of a certain rooming-house located at 412^ Garrison Avenue, Fort Smith, Arkansas.” It was recited in the writing that $600 had been paid in cash, and -ten notes in the sum of $50 each, due monthly thereafter, had been executed. The writing further recited that Mary Manzil was “the true and lawful owner of the property, goods and chattels hereby sold, and has full power to sell and convey the same. The title so conveyed is clear, free and unin cumbered, and that she will warrant and defend the same against the claims of all persons whomsoever.”
The testimony of the appellee was substantially as follows: She examined the house and furniture before purchasing the furniture, in company with Mrs. Manzil, who showed appellee the property, and told her that everything in there was to be hers for the sum of $1,100, except trunks and a graphophone which belonged to people there. They went through the rooms, and Mrs. Manzel showed appellee everything in the rooms, There were six rooms on one side and six on the other. Appellee wanted to know what the income of the house was, and Mrs. Manzil stated they'were getting $150 a month for the place. Those were her exact words. Appellee relied upon these representations, and made the purchase. Appellee paid $575 for the house, and, in addition thereto, executed her notes as set forth in the complaint. The whole consideration amounted to $1,100. After she had purchased and executed the notes and given Mrs. Manzil her check, she returned to the house about 7 p. m. to take possession of it. She received information that appellant did not own all the things that she represented as being hers. Therefore she did not take possession of the house, and endeavored at once to notify the cashier of the bank not to cash the check she had given, but did not succeed that night, and the next morning she tried to stop payment on the cheek, and the bank officials promised not to pay the check. She saw Mr. Manzil, and asked him what he was going to do about the check, and he informed the appellee that he was not going to do anything about it; that he had already taken it to the bank and paid it in on a note that he was due the bank. She told Manzil that certain ladies had informed her that certain property, which Mrs. Manzil had represented as hers, belonged to them, linen, silverware, bedolothing, furniture, rugs, dishes and necessary cooking utensils and things that, according to witness’ understanding, belonged to the house. Mrs. Manzil told witness about these things that belonged to them; that everything belonged to'her except'the trunks and.1 the Edison graphophone. Witness was buying the furnishings for the rooming-house and was going to take a lease thereon. There were two families in the house on the light-housekeeping side, and one roomer and no other boarders in the rooms. Appellants represented to witness that they were getting $25 a month on the light-housekeeping side for the rooms, two rooms for each apartment, and that for the other rooms they were getting $15 per month. They told appellee that the rent would come to ninety some odd dollars for the light-housekeeping* side of the house and $150 for the whole house. Mrs. Manzil further informed the appellee that she was paying $75 per month for the rent of the entire house. Appellants told appellee that she could make arrangements with the .party who owned the house to lease it by the month, and appellee was going to lease it as soon as she took possession.
On cross-examination, the appellee, among other things, testified that she found everything in the kitchen as Mrs. Manzil had represented it. She stated that when she returned to take possession that night, in the last two rooms the people had moved out, and it was the emptiest place she ever saw. She didn’t know what' the property was worth that the people claimed belonged to them. The rugs, carpets, mattresses and springs and things like that were intact. Further along* in her testimony she stated that the woman who had moved out, when she returned to take possession, had moved linen, cooking utensils, dishes and things like that, but she didn’t know what they were. ' '
After this litigation arose A. J. Berry was appointed receiver of the property. He made an inventory of the property. The rent of the rooming-house per month was $65. He identified the inventory of the furnishings of the house which he took over that was embraced in the bill of sale.
A. S. Bullock testified that he was the cashier of the First National Bank, and that, as such cashier, he cashed the check drawn by the appellee in favor of Manzil for $575 some time in May. He cashed the check at 7:18 in the morning — met Manzil coming toward the bank, and went with him to the bank and gave him credit for the amount of the check on his account. Manzil at the time showed the cashier the notes and the contract that he had with the appellee.
Witness Bourland testified, on behalf of the appellants, that he was a real estate agent, and went with the appellee to show her the rooming-house occupied by the appellants with a view of making a deal between the appellee and the appellants for the furnishings. Appellee gave witness her check for $25 to pay to Manzil as earnest money. Among other things witness testified that, when witness and the appellee went to look at the house, Mrs. Manzil told appellee that if she rented all the rooms the place would bring around $150 per month. Everything was shown them as they went through the house. There were a couple of boxes in one of the front rooms which Mrs. Manzil said she would move out. Then she spoke about a victrola in one room that belonged to roomers. She pointed out some dishes, pans, and stuff like that belonged to roomers. All of the furniture belonged to Mrs. Manzil. Mrs. Manzil said something about keeping her own silverware that she had been using herself.
Mrs. Garcia testified that she was one of the tenants in the rooming-house at the time of the transaction in question. She was doing light-housekeeping. She stated that Mrs. Manzil and appellee went in the witness ’ room at the time the sale was made, and that Mrs. Manzil told the appellee that the trunk and the linen belonged to the witness; that is, by the term “linen,” witness meant sheets, pillow-slips, towels and things like'that. Witness owned the dishes and the silverware. Nothing was said about this. Witness had about three pots, seven or eight dishes, three or four forks and four spoons— something like that. Everything else in the róom belonged to Mrs. Manzil. Witness had just one room. On cross-examination witness stated that Mrs. Manzil didn’t say anything’ to the appellee about witness owning the dishes, cooking utensils and things of that kind. Mrs. Manzil stepped to the trunk and .told appellee that that belonged to witness and the linen belonged to witness. When witness moved out she left the mattresses, heating-stove, two chairs and a table. Witness went in another room where the roomer had her things packed to move out, and she had everything she had in two trunks. She took her silverware, dishes and linen. Things like that were about all you could use about a house.
Mrs. Manzil testified that appellee came to her house two or three days before the trade was made, and she showed her through the rooming-house with a view to selling her furnishing’s. Witness went in all the rooms and showed appellee all the beds, rugs and furniture that belonged to witness. Witness didn’t furnish her housekeepers with dishes. The roomers got the linen and dishes. Witness told appellee everything three times. She stated that she told appellee that witness was occupying six rooms, and that if appellee could rent all the rooms she would receive $150 per month. She didn’t tell her that she was getting $150 out of it. Witness was the owner of all the furniture in the house except the talking machine, two pillows and some linen and dishes, and everything that belonged to the roomers. There was no conversation between witness and-appellee as to silverware, except she told appellee that the silverware and everything in the kitchen belonged to witness. Appellee bought the house from witness. Witness stated that, one time before the deal was closed, the appellee was in the room where one of the roomers was ready to move out. Appellee saw the room and everything packed up and in the trunk, and, after that, closed the deal with the annellants. Witness testified that they cashed the check. Witness was receiving on the rooming house at the time of the transaction $85 or $90. Witness stated that she had in the rooms furniture and kitchen stuff, and showed her the things that 'witness owned. When witness left the house she took her clothes, trunk, suitcase and machine. She didn’t take her kitchen furniture. She left everything that she had sold to the appellee. Witness then enumerates the various articles that the roomers possessed, consisting of pillows, blankets, linen, silverware and kitchen utensils. She showed appellee everything that belonged to her and everything that belonged to the roomers, and told her what went into the sale. The articles that she had enumerated as belonging to the roomers were shown to the appellee, and she didn’t tell appellee that anything belonged to witness that belonged to roomers. Witness also enumerated the articles on a list that belonged to witness and which were * sold to the appellee.
Manzil testified that he met the cashier of the bank on the street on his way to work in the morning between 7:15 and 7:20. He gave the cashier the check of appellee, who agreed to place the same to Manzil’s credit.
The court found the facts to be as follows: “That said furnishings had been sold to plaintiff in bulk; that no itemized statement or list of same was made at the time of the sale, which was consummated and the notes signed and check delivered, as aforesaid, between the hours of 4 and 5 o ’clock p. m. on the 1st day of May, 1922; that a considerable portion of the furnishings in said rooms in said rooming-house were owned by said roomers, a fact known by defendants but not known by plaintiff; that the defendant, Mary Manzil, falsely represented to the plaintiff that said rooming-house was paying a net sum of $150 per month, and, by this and other fraudulent representations herein mentioned, plaintiff was induced to sign said notes and sign and deliver to defendant the said cheek for $575; that at about the hour of 7 o’clock p.m. on the same afternoon that said sale was consummated, the plaintiff was advised by tenants occupying said property that she had been deceived by the defendant, Mary Manzil, in the matter of the owner ship of the property and the monthly income derived therefrom; that plaintiff immediately thereafter had a conversation with the defendant, Joe Manzil, in which she made complaint to him in reference to misrepresent-actions as to ownership of the property and its income, and desired to know of him what action he proposed to take in the matter, and he replied that he would do-nothing, that she had purchased the property, and that he had the notes and the check. The court further finds that the defendant, Joe Manzil, on the following morning, May 2, 1922, appeared at the First National Bank long before banking hours, about the hour of 7:1'5 on said morning, and then and there cashed said check, the cashier of said bank, Albert Bullock, mailing payment , thereof; that at the hour of 7:30 a. m., May 2, 1922, plaintiff called said bank, and was advised by the bookkeeper that said check had not been paid, and, upon plaintiff’s request to stop payment thereon, promised to do so; that by reason of the false and fraudulent representations made to the plaintiff by the defendant, Mary Manzil, acting for herself and the defendant, Joe Manzil, and the fraudulent acts of said defendant in concealing from plaintiff the ownership of said property in said rooming-house, and by reason of her reliance on the truthfulness of the representations made as aforesaid, she was induced to and did part with the sum of $575 in cash, and execute and deliver ten promissory notes of $50. each, payable as herein stated; that the false, misleading and deceitful representations made by the defendants were made for the purpose of inducing plaintiff to part with her money and sign and deliver said notes; that said sale should be set aside for fraud, and that plaintiff should have judgment for the sum of $575, payment having been stopped on the check for $25; that said notes and each of them should be canceled; that said property now in the hands of a receiver should be sold and the proceeds appropriated to the payment of .the sums due plaintiff under this decree.
The court thereupon entered a decree in favor of the appellee, from which is this appeal.
In Leach v. Smith, 130 Ark. 465-469, we said: “In determining the issues of fact by this court in chancery causes, no weight is given to the findings of fact by the trial court unless the evidence is so conflicting as to leave the minds of this court in doubt as to where the preponderance lies. Where the evidence is evenly poised, or so nearly so that we are unable to determine in whose favor the preponderance lies, then the findings of fact by the chancellor are persuasive. * * * The findings of fact by the chancery court are allowed to stand unless they are clearly against the preponderance of the evidence.” See also Morrow v. Merrick, 157 Ark. 618.
In reviewing the facts of this record, surely it cannot be said that the findings of fact of the chancery court are clearly against the preponderance of the evidence. On the contrary, it occurs to us that the preponderance of the evidence shows that the chancery court was correct in its findings. Such being the case, the principles applicable to the facts of this record are quite familiar, and have been declared in numerous decisions of this court. Judge Battle, speaking for the court, in Delaney v. Jackson, 95 Ark. 131, 136, quotes language from some of our earlier cases as follows: “In order to vitiate a contract on the ground of fraudulent misrepresentation, the misrepresentation must relate to a matter material to the contract and in regard to which the other party had a right to rely, and did rely, to his injury. If the means of information as to the matters represented is equally accessible to both parties, they will be presumed to have, informed themselves; and, if they have not done so, they must abide the consequences of their own carelessness.” See cases there cited. There are many subsequent cases to the same effect.
The facts of this case bring it well within the doctrine of those cases. The decree is correct, and it is therefore affirmed. | [
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Humphreys, J.
Appellant was indicted1, tried and convicted in tbe circuit court of Nevada County upon an indictment charging him with perjury, and, as punishment .therefor, was adjudged to serve a term of one year in tbe State Penitentiary. Sufficiency of tbe indictment was challenged by demurrer, which was overruled by the ' court, over the objection and exception of appellant. The indictment, omitting formal parts, is as follows:
1 “The grand jury of Nevada Couhty, in the name ' and by the authority of the State of Arkansas, accuses Mann Slay of the crime of perjury, committed as follows, to-wit: The said Mann Slay, in the county and State aforesaid, on the 7th day of July, 1923, A. D. 192— on his * examination as a witness before the justice of the peace within and for Nevada County, Arkansas, duly elected, commissioned, qualified and acting and being duly authorized and empowered to administer oaths to witnesses in said court, and said Mann Slay was duly sworn by said W. J. White, a justice of the peace as aforesaid, the said W. J. White, as justice of the peace, having jurisdiction to try said cause between the State of Arkansas, as plaintiff, and Mann Slay, as defendant, the said Mann Slay unlawfully, feloniously, wilfully, falsely and corruptly testified ‘that he did not have a bottle of whiskey in his hand or ip his possession in Nevada County, Arkansas, on the 6th day of July, 1923.’ The matter so testified to being material and the testimony being wilfully and corruptly false, and the "truth being that he, said Mann Slay, did, on the 6th day of July, 1923, in Nevada County, Arkansas, have in his hand and possession a bottle of whiskey, against the peace and dignity of the State of Arkansas.”
It is contended that the indictment is fatally defective because it failed to contain an allegation that appellant (accused) voluntarily gave the testimony before said justice of the peace upon which the indictment for perjury was predicated. Under the rule announced in the case of Claborn v. State, 115 Ark. 387, the trial court should have sustained the demurrer. In that case it was said (quoting syllabus 4): “An indictment for perjury based upon alleged false swearing in a criminal proceeding pending before the grand jury, against the person himself giving the alleged false testimony, is fatally defective unless it alleges that the accused voluntarily appeared 'before the grand jury to give the testimony upon which the indictment for perjury is predicated.”
Learned counsel for the State attempt to distinguish the instant case from the Claborn case, supra, on the ground that the presumption must be indulged that appellant testified voluntarily, in his own behalf, before the justice of the peace, whereas, had he been testifying before the grand jury on a charge against himself, such presumption would not have been indulged. Had the charge been pending before the grand jury for investigation against appellant alone, he could have claimed his exemption from testifying on the ground that the information elicited would incriminate him, so it might be presumed that, had he testified before the grand jury concerning his own case, he did so voluntarily. The same presumption could be indulged whether the charge against appellant was pending before the justice of the peace or the grand jury. Essential ingredients of the crime must be set out in the charge, and will not be presumed. In other words, presumption will not support criminal charges. Allegations are required.
Indictments for perjury, each of which did’not contain a clause that the accused appeared before 'the grand jury and voluntarily gave false testimony, were upheld in the cases of State v. Roberts, 148 Ark. 328, and Warren v. State, 153 Ark. 497, but in those cases the indictments did not show that the defendants were testifying on charges against themselves only.
For the error indicated the judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Mr. Justice Smith dissents. | [
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Smith, J.
The appeal in this case involves the construction of the following will:
“I devise and bequeath to my wife, Martha Susan Hill, in lieu of her rights of dower and homestead, all my property, both real and personal, to have and hold the same as long as she shall remain my widow, with the right to use and manage said property in any manner she may choose, for her support and maintenance. In case my said wife Martha should remarry, she shall only retain her dower and homestead interest under the law, from what may be' left of said property at the time of said remarriage. In case of the remarriage of my said wife Martha, and after the taking of her dower and homestead from my said estate, I devise and bequeath the residue of my said property as follows: To my daughter, Hattie Blackwood, the sum of one dollar, and after the said one dollar shall be paid to my said daughter Hattie, the remainder of my said property to go, share and share alike, to the rest of my children, Eula Stovall, Leroy Hill, Nettie Leigh and Lottie Kline.
“In case my said wife should not remarry and should die my widow, then I bequeath the residue of my property remaining at her death as follows, to wit: One dollar to my daughter, Hattie Blackwood, if living, and, if she be dead, one dollar to the heirs of Hattie Blackwood, and, after the payment of said one dollar, the residue, share and share alike, to the remainder of my children — Eula Stovall, Leroy Hill, Nettie Leigh and Lottie Kline — or to the heirs, if any be dead.
“In case my said wife, at my death, should elect to take of my property under the law, then the residue of my property I bequeath as follows, to-wit: One dollar to my daughter, Hattie Blackwood, or to her heirs if she be dead, and the residue of my property, after payment of the said one dollar, I bequeath to the remainder of my children, Eula Stovall, Leroy Hill, Nettie Leigh and Lottie Kline, share and share alike, or to the heirs of any of said children as may be dead. ’ ’
Appellant, who was the plaintiff below, claims under a deed from the testator’s widow wherein the fee title was conveyed. Appellees, the defendants below, are the heirs-at-law of the testator, and claim that the widow took only a life estate in the lands. The deed from the widow to appellant’s grantor was a plain warranty deed, and contained no recitation that the land was conveyed for the purpose of raising’ funds with which to support herself, under any power or right given under the will authorizing her so to do.
The court below sustained a demurrer to the complaint, in which the plaintiff undertook to have the title to the land quieted in himself; and this action is defended upon the ground that the will did not convey a fee title to the land, nor grant to the widow the right to dispose of the fee in the land so as to defeat the rights of the testator’s children, the remaindermen.
We concur in this view, as, in our opinion, the widow was given only a life estate in the land, with the right to use and manage the same for the purpose of providing support and maintenance for herself. The right to dispose of the lands is the only question involved on this appeal.
, In our opinion, the will under review is so nearly like the one construed in the case of Patty v. Goolsby, 51 Ark. 61, that'it is to be controlled by the decision in that case. It was there said (to quote a syllabus) as follows: “By the first item of his will a testator gave ‘his entire estate,’ real and personal, to his wife, ‘during- her natural life,’ or until she might ‘think proper to marry, with full power to sell and dispose of such property as she might think proper.’ The second and third items are as follows: 2. ‘It is my desire that, at the death of my said wife, all my worldly effects be equally divided between my children.’ 3. ‘If my wife should marry, it is my will and desire that my estate of all kinds whatsoever be equally divided between my wife and children, thereby each one to share each and each alike.’ By other provisions the wife was made executrix and charged with the payment of the testator’s debts and the education of his children out of the estate. Reid: (1) That the testator gave to his wife a life estate in the real property, with remainder in fee to his children. (2) That while, under the power contained in the will, the wife could dispose absolutely of the personal property of the testator, she could sell only her life interest in his real estate.” 1
It is the contention of appellant that the will in question grants a life estate to the widow, with power to dispose of the fee for purposes of her own maintenance; that'a person given a life estate by will may also, in the same instrument, be granted the power of disposition of the fee.
If such a power is here conferred, it must be found in the first paragraph, for the second and third paragraphs contemplate the contingency of the widow remarrying or of renouncing the will, and provides the disposition to be made of the estate in either of those events, and clearly contemplates there will be an estate undisposed of if it be so divided.
It is the first paragraph of the will .which undertakes to define the estate granted the widow. In it the testator bequeaths to her “all my property, both real and personal, to have and hold the same as long as she shall remain my widow, with the right to use and manage said property in any manner she may choose, for her support and maintenance.”
It is significant that, while the language quoted covers the entire estate, the power given is to “use and manage,” and this during the period of widowhood. The estate consisted of both, real and personal property, and, no doubt, the testator intended to give the widow the right to consume the personal property, for such property, as is pointed out in Patty v. Goolsby, supra, is ordinarily consumed in its use. But, in defining the power granted, the testator employed the word “manage” also, which was no doubt intended to refer to the real estate, which would not be consumed by use. It is significant also that the testator did not use the words “sell and convey,” or other words of similar import, which are usually employed when the power of sale is intended to be granted, but employed only,the words “use and manage.”
Appellant cites and relies upon the case of Archer v. Palmer, 112 Ark. 527. There a testator devised his widow an estate for life only, but he added power to the life tenant to convey the land absolutely, and we held that, because of the grant of this power, the life tenant might defeat the estate of the remaindermen by the exercise of the power. We there distinguished the facts of that case from those in the case of Patty v. Goolsby, supra, and, in doing so, said: “It will be noted that the power of disposition in that case (Patty v. Goolsby) was given in the same clause as that which devised to her the property for her natural life, and in immediate connection with the devise of the life estate, thereby indicating that the power of disposal be limited to the life estate. In other words, the court held that, by the terms of the will, the widow took a life estate, and that, since the power of disposition was annexed to the devise of the life estate,'its presence did not give the widow an unlimited power of disposition, but was restricted to the life estate.” So here, the language which is said to confer a power of sale appears in the same paragraph which grants the estate, and thus apparently refers to the estate there granted, which is the right to use and manage all the property, both Real and personal, during widowhood.
In the will under review there was no provision that the widow might dispose of the property as she saw fit — the power granted is to use and manage during her widowhood, and it appears in the clause which grants the interest itself, and, while that interest (except in the contingencies provided against in the second and third paragraphs) is all the property, both real and personal, the power granted is to use and manage that interest, and not to sell or convey.
Counsel cite and review a number of our cases, as well as a number from other jurisdictions, which construe wills more or less similar to the one under review; but no useful purpose would be served in reviewing those cases and pointing out the differences in the wills construed which induced the courts construing them to hold that the power of sale existed in some cases, but did not exist in others. It was the purpose of the court in each case to ascertain the intention of the testator, and that was gathered from the language employed by him. So here, we must gather the intention of the testator from the language which he has employed, and we have concluded that the power to sell the fee was not granted the widow, and the decree of the court below, based upon that construction of the will, is affirmed. | [
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Hart, J.,
(after stating the facts). The court instructed the jury that, if it should find that' the agent of the insurance company had knowledge that the insured had tuberculosis at the time the policy was written or delivered, the insurance company would be liable.
The court erred in giving this instruction. It is true that the general rule of law imputing to a principal notice of facts learned by his agent in the discharge of his duties applies to insurers; but this principle has no application under the terms of the policy sued on. As will be seen from our statement of facts, one of the conditions of the policy is that no liability is assumed by the company for any accident, illness or disease occurring or contracted prior to the date thereof, or any death arising therefrom.
It is well settled that policies of insurance must be interpreted according to the plain import of the language used in them, where- there is no ambiguity in it. The clause in question, in plain terms, provides that no liability is assumed by the company for death arising from a disease contracted prior to the date of the policy. The testimony of the beneficiary herself, as well as that of the physician who attended the insured in his last illness, shows that he had tuberculosis at the time the policy was applied for and issued, and that he died of that disease. All the attending circumstances corroborate their testimony. The policy was issued about the middle of April and delivered about the middle of May. The insured died of tuberculosis on the 16th day of June thereafter. Thus the undisputed evidence shows that the - insured had tuberculosis at the time the policy was issued to him and died of that disease within a short time thereafter. There is no statute in this State or ground of public policy which would prevent a contract of this sort from being valid. Hence the parties are bound by the provisions of the contract which they made.
This principle was recognized in. Carland v. General Accident, Fire & Life Assurance Corporation, 122 Ark. 168. There a policy of insurance agreed to pay the insured a certain sum monthly in the event of an illness resulting in total disability, if the disability occurred by reason of illness that was contracted and began after the policy had been maintained in continuous force for sixty days. It was held that the insured could not recover under the policy, when the illness was contracted within sixty days after the issuance of the policy, although it continued until after the expiration of the sixty-day period.
In American National Insurance Company v. Otis, 122 Ark. 219, the policy provided that, in case death occurred from any cause within five weeks from the date of the reinstatement of. a policy, the company should not be liable, and it was held- that, under the express terms of the policy, the .company was not liable where the insured died within less than five weeks after the policy was reinstated. See also Metropolitan Life Ins. Co. v. Fitzgerald, 137 Ark. 366.
Inasmuch as the undisputed evidence shows that the insured had tuberculosis at the time he applied for the policy, and it was issued, and that he died from that disease a short time after the policy was issued, under the express terms of the policy the insurance company was not liable, and the circuit court erred in not directing a verdict for it.
For that error the judgment will be reversed, and, inasmuch as it seems to have been fully developed, the cause will be dismissed. | [
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McCulloch, C. J.
Appellant is a domestic corporation, and operates a lumber mill at Farrell, in Pulaski County. It also operates a log railroad extending from the mill to the woods camp in Saline County, and thence to woods where timber is cut for the mill. The cars are moved by a steam engine.
Appellee was employed as a log cutter, and while so employed and while riding on the train between Farrell and the woods camp, was injured on August 6, 1921. This action was instituted by appellee to recover damages on account of said injuries. It is alleged in the complaint that appellee was riding on the train, pursuant to contract with his employer, and that his injuries occurred in a wreck of the train, caused by negligence of the appellant in permitting the railroad track and a flange on a wheel of one of the cars to get out of repair, and in operating the train at dangerous speed.
Appellant, in its answer, denied that appellee had any contractual right to ride on the train, but that he was a mere licensee when so riding; denied that there was any negligence on the part of appellant in any respect, and pleaded contributory negligence on appellee’s own part. ' ¡ i
A trial of the case resulted in appellee’s favor, awarding damages in the sum of eighteen thousand five hundred ($18,500) dollars.
The first contention of appellant’s counsel is that the verdict is not sustained by the evidence, and that the court erred in refusing to direct a verdict in appellant’s favor. In deciding this question we must, of course, give the evidence its strongest probative force in appellee’s favor. Thus viewing the evidence, the established facts are as follows: Appellee was, as before stated, employed by appellant as a log cutter. He resided at the camp, and worked in the woods. At the time of his injury he had been working for appellant for two months, and had worked for appellant during the year 1914, and was conversant with the method of work .and the dealings between appellant and its employees for ten years prior to 'his injury: Under the contract between appellant and its employees, a certain sum each month was deducted' out of the wages of the employees to cover the cost of medical attention, and, for the sum so deducted, appellant bound itself to furnish such attention. A physician residing at Farrell was engaged by appellant to attend the employees when ill or injured, and the deduction from the wages of the men was paid to the physician for his services. The physician attended the men at their homes, when ill or injured and unable to go to Farrell, and the men went to see the physician at his office in Farrell when physically .able to do so. Appellant provided means for the men to go, when necessary. They were permitted to choose their own method of getting to Farrell, and were allowed to ride on the train for that purpose. The men sometimes walked, sometimes rode in other conveyances, and sometimes rode on the train. Persons other than employees were permitted to ride free on the train. The custom had been general for a number of years for the men to ride on the train whenever they wanted to. Appellant also carried the men on the train from the camp to the place of work in the woods. One train ran between the camp and Farrell, a distance of six or seven miles, and another between the camp and the woods. Both trains hauled logs, and to the Farrell train there was attached a box-car, which was used in hauling groceries for the men at the camp, and in which persons were permitted to ride. Appellee had been slightly ill of malaria for about a month before his injury, and had been treated by the physician. On the morning of the day the injury occurred appellee desired to go to Farrell on the train to see the physician, and, as the train was about to leave the camp for Farrell, he mentioned this to the woods superintendent, who directed him to go ahead on the train. This superintendent had general supervision and control over the men who worked in the woods — he employed and discharged them. He controlled all of the operations at the camp and in the woods, caused the railroad track between Farrell and the camp and the woods to be inspected and repaired when necessary, and attended to furnishing medical attention to the men when they became ill. Appellee rode on the engine from the camp to Farrell, and, after seeing the physician and getting medicine, he boarded the grocery car in which passengers rode, for the return trip to the camp. When about two miles out of Farrell tbe train was wrecked on account of rotten cross-ties, which, caused the track to spread. The passenger or grocery car which appellee occupied was overturned, and he was pinned underneath. His left thigh bone, in the middle third, was broken, and his right leg was considerably bruised. He remained under the car an hour before he could be got out. He wa's carried to Farrell, and received surgical treatment. The bone was set, and he remained in bed seven weeks, and was then permitted to get up and walk around on crutches. The evidence shows that, on account of the break being oblique, the bone did not unite _ and heal together, but threw out a callus, and this, with the contraction of the muscles, permitted the ends of the bone to slip. There was not enough strength in the bone to bear the man’s weight. This was hot, according to the evidence, caused by any improper surgical treatment in setting the bone, but was the natural result of the character of the injury. Shortly after getting up, appellee’s crutch slipped so as to throw his weight on his left leg, and the broken ends of bone were again disunited. Appellee was then carried to a hospital, where another operation was performed by taking off a short section on each broken end of the bone so as to square the ends and permit them to properly grow together. This permanently shortened the leg about three inches. Appellee’s left knee was also permanently stiffened. He suffered great pain, which continued up to the trial.
The rotten condition of the railroad ties could' have been discovered by proper inspection. Appellant introduced testimony tending to show proper inspection, but the ties were shown to be mere shells, rotten inside.
• We are of the opinion that the evidence was sufficient to sustain the recovery.
Appellee was not, according 10 the facts which the jury could have found to exist, a mere licensee when riding on the train, but the privilege was a part of his contract of service with appellant. The contract expressly provided that appellant should furnish medical attention to the employees when ill. The proved facts were sufficient to establish ;an implied 'contract on the part of appellant to furnish to the employees means of transportation for them to go to see the physician when necessary. It was the custom to do so, .and the effect of the contract was not lessened by the fact that appellant permitted persons other than employees to ride on the train at will. Such persons were licensees, who enjoyed the privilege with its concomitant perils, but not so with employees who rode under contract. Nor is it important whether the contract to ride on the train was express or merely implied — in either event an employee thus riding op the train was not a mere licensee. Arkadelpbia Lumber Co. v. Smith, 78 Ark. 505.
An employee riding on a train or other mode of transportation, pursuant to contract with his employer, is éntitled to the exercise of ordinary care for his safety, and, when injured on account of negligence, he may recover damages. St. L. I. M. & So. Ry. Co. v. Harmon, 85 Ark. 503.
It is insisted that the facts do' not establish negligence in failing to discover the defects in the railroad track. The testimony shows clearly that the rotten condition of the ties was discoverable on proper inspection, and the failure to discover the defect did not excuse the negligence. Ark. Land & Lumber Co. v. Cook, 157 Ark. 245;
Again, it is urged that the evidence falls short in showing that the woods superintendent had authority to direct appellee to ride on the train or to permit a custom to grow up for the employees to ride on the train for the purpose of obtaining medical treatment. The facts already recited are, we think, amply sufficient to establish such authority. The woods superintendent was the representative of appellant, with complete authority to control the action of the men at the camp and in the woods, and to provide the means of furnishing them medical attention.
Errors are assigned in giving each of the following instructions at the request of appellee:
“No. 1. You are instructed that, if you find from the evidence that plaintiff was on defendant’s log train by the express permission of his foreman, and with the knowledge of those in charge of running the train, for the purpose of going to the plant at Farrell to obtain medical treatment of the company physician, and, at the time of his injury, was on his return trip to the logging camp of the defendant, then you are told that he had a right to be on defendant’s train.
“No 2. You are instructed that, if you find from the evidence that it was the general custom for the defendant to carry its employees from its logging camp to its plant at Farrell, for the purpose of obtaining medical treatment of the company physician, and for other purposes, and if you further find that plaintiff, at the time of his injury, had gone to the plant of the defendant to obtain treatment of the company’s physician, and was on his return trip to the logging camp, then you are told that he had a fight to be on defendant’s log train.”
Each of these instructions is inaccurate in omitting some of the elements which mark the distinction between a mere licensee and an employee riding under contract. We conclude, however, that the testimony was undisputed as to those elements, and that the omissions were not prejudicial. The testimony was conflicting as to the alleged permission granted by the superintendent on this occasion for appellee to ride on the train for the purpose of visiting the physician, but that issue was properly submitted to the jury in the first instruction. There was likewise a conflict in the testimony as to whether or not appellee went to Farrell to obtain treatment, but that issue was also properly submitted in said instruction. The only omission from that instruction was the failure to submit the question of the authority of the superin tendent, and, as we have already said, the testimony on that point was undisputed. The only omission from the second instruction was the failure to submit the question of implied contract on the part of appellant to furnish medical treatment to the employee, but that, too, was undisputed. Appellee’s own testimony tends to establish the contract, and the superintendent’s testimony was to the same effect. He testified that appellant furnished the medical treatment' — that he procured the attendance of the physician at the home of the men, and sent them in to the physician at Farrell when necessary. He testified1 also that it was customary for the men to go on the train, when they desired to do so, for medical attention. This testimony was uncontradicted. This being true, if there was a contract to furnish medical treatment and the means of obtaining it, and if there was a general custom for the men to ride in on the train to visit the physician to obtain medical treatment when needed, this became a part of the contract, and an employee while thus pursuing the journey was not a mere licensee.
It is argued that the use of the word “right” in these and other instructions was erroneous and prejudicial, but we think that, in view of the uncontroverted facts as set forth above, there was no prejudice in the use of that word. The undisputed facts supplied the omission to define or explain the use of the word.
Other assignments of error with respect to the instructions are not well founded.
Finally, it is insisted that the verdict is excessive, but we do not think that the evidence is insufficient to sustain the award.
Appellee was thirty-five years old, in good health, and was earning $2.25 per day in steady work. His right leg. was shortened about three inches, and his knee was stiffened. The evidence warranted the finding that the use of the leg was ' almost totally impaired for life. Appellee is permanently disabled for his usual occupation, and he suffered great pain for a long time, and will suffer for a long time, if not as long as lie lives. The loss of earning capacity, suffering, inconvenience and disfigurement for life, as sliown by the evidence, is sufficient to sustain the award.
Affirmed. | [
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McCulloch, C. J.
Appellee claims that he received severe personal injuries by falling into an uncovered coal-hole in the platform at appellant’s station building at Lonoke, and he instituted this action against appellant to recover damages, alleging negligence in failing to exercise ordinary care to keep the premises safe. There was a trial of the issues before a jury, which resulted' in a verdict in appellee’s favor assessing-dam ages, and an appeal has been prosecuted from the judgment.
It is conceded that the court’s charge to the jury was a correct statement of the law, and the sole ground urged here for reversal of the judgment is that the evidence is not sufficient to establish negligence on the part of appellant or its servants.
According to the testimony of appellee and other witnesses introduced, the injury occurred about one o’clock on the morning of July 11, 1922, when appellee went to the station to meet a passenger train, on which a friend of his was expected to arrive. Appellee had an engagement to meet his friend, and, as before stated, went to the station for that purpose.
On the station platform, near the west wall of the ■ building, there was a hole, or door, for the purpose of depositing coal in the basement. This door was usually kept covered with a metal covering, which fitted over the opening and was about flush with the floor, so that it could not be displaced without lifting it. The covering was not.fastened; it had no lock on it, and the hinges originally on it had been broken off several years prior to this occasion, and had never been replaced. Appellee testified that he did not see the opening, and that, after the signal was given from the approaching passenger train, he stepped .back into the hole, and was injured. His testimony was corroborated by that of a companion who was with him at the time he was injured, and the testimony, of other witnesses tended to show that appellee fell into the hole and was severely injured. This is contradicted by witnesses introduced by appellant, who stated that the covering of the hole was in place the next morning, and that appellee could not have fallen in as- claimed.
The station agent employed by appellant, and the porter, each testified that they left the station each night about seven o’clock, or a little thereafter, and that, before leaving, the porter always placed the baggage trucks parallel with the west wall of the station, so that the coal-hole was covered, and that the wheels of the trucks were spragged so that the trucks would not roll away. After the departure of the station agent and porter, there was no other' servant of the company at the station throughout the night, except the night operators, two of whom were on duty at different hours throughout the night. The night operator who was on duty at the time appellee was injured was introduced as a witness, hut he stated that he knew nothing about appellee’s injury until several days after it was said to have occurred. He testified that it was his custom to switch on the lights outside of the office a few minutes before the arrival of the train, and that on the night in question he did so after the signals were given. Electric lights’were burning in the operator’s office all night, and the other lights were turned on as the train approached. The lights in the office, according to the testimony of this witness, threw a dim lig’ht on the platform.
The porter testified that, on the night in question, he left the trucks in the usual place, over the opening, and that the cover' of the opening was in place. The station agent testified that he usually looked around the station to see that the trucks had been placed before he left. It cannot be said, however, that this testimony is uncontradicted, for there is a positive contradiction as to the condition of the covering of the coal-hole the next morning. We think there was enough testimony to justify the submission to the jury of the issue of negligence. The fact that the coal-hole was uncovered and open when appellee fell into it is established bv positive evidence, and, under all the circumstances, the jury were warranted in drawing the inference that the hole was left uncovered that night. No one else had been seen about there, and one of the night operators was there in the office at all hours. The jury were also warranted in finding that there was negligence on the part of appel lant in failing to have the covering more secure. The proof shows that originally there were hinges on the door, but that they were broken off and were never replaced, and that there was no lock or any other kind of fastening.
Appellee was not a trespasser on the platform, nor even a bare licensee, for, according to the testimony, he went there for the purpose of meeting an expected passenger, and was therefore upon the premises of appellant by its implied invitation, and was entitled to the exercise of ordinary care on the part of appellant in maintaining the premises in a reasonably safe condition. Arkansas & Louisiana Ry. Co. v. Sain, 90 Ark. 278.
There is no complaint made here concerning the correctness of the court’s charg’e to the jury, and, as the evidence is sufficient to sustain the verdict, the judgment should be affirmed, and it is so ordered. | [
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Humphreys, J.
Appellant was indicted in the circuit court of Nevada County for the .crime of murder in the first degree for killing Dee Cook. Upon trial of the charge she was convicted for manslaughter and adjudged to serve a term of four years in the State Penitentiary as punishment therefor, from which is this appeal.
Appellant insists upon a reversal of the judgment, assigning many reasons therefor. Most of the assignments of error are based upon exceptions to instructions given and refused. A careful examination of them reveals that the court erred in refusing to give appellant’s request No. 10 in the form asked, and in modifying and giving it in its modified form. Appellant’s request No. 10 is as follows:
“You are instructed that, before you consider the statements made by the deceased and offered in evidence as his dying declaration, you must believe, beyond a reasonable doubt, that such statements were -made under the belief by the deceased of impending dissolution; and that such statements are to be weighed under the same rules as the statements of other witnesses, and the evidence of the deceased «o given may be contradicted or impeached in like manner as the evidence of any other witness.”
As modified and given it is as follows: “You are instructed that, in considering the statements made by the deceased and offered in evidence as his dying declaration, such statements are to be weighed under the same rules as the statements of the other witnesses.”
The effect of the modification was to withdraw from the jury the question of whether deceased made the dying declaration introduced in evidence, relative to the manner in which he was shot, and by whom, under the belief that he was in extremis. The testimony showed that on July 4, 1923, deceased received a gunshot wound from which his body and limbs were paralyzed; that he died therefrom on July 9 following; that he had been informed he could not live; that in the declaration made by him he said: “They say I am dying as a result of that wound, and I believe that is true, and I make this statement freely and voluntarily in order that the truth may be known. ’ ’ Dying declarations are admitted in evidence by the court upon a prima faoie showing that they were made in extremis, but, notwithstanding their admission in evidence, it is still within the province of the jury trying the case to decide, from the whole evidence and all reasonable inferences therefrom, whether utterances were made under consciousness of impending death. It is error to take this question from the jury. 21 Cyc. pgs. 985-6-7; Campbell v. State, 38 Ark. 498; Evans v. State, 58 Ark. 47; Rhea v. State, 104 Ark. 162; Stewart v. State, 148 Ark. 540.
The other instructions requested by appellant, which correctly declare the law applicable in the case, were sufficiently covered by correct instructions given by the court.
Appellant sought to impeach the dying declaration of deceased, introduced in evidence, by showing that the declarant conld not be believed under oath. “Dying declarations are substituted for sworn testimony” (21 Cyc. p. 987), and may, of course, be impeached in the same manner that other testimony is impeached. Booker Johnson was introduced as a witness by appellant, who testified that the reputation of deceased for truth and morality was bad in the community in which he lived. The appellant then asked him whether, judging from that reputation, he would believe him on oath. The court ruled out the question, and in doing so committed reversible error. This court said, in the case of Cole v. State, 59 Ark. 50: “Another question arises on the objection of the defendant to the manner in which questions are propounded to and answered by witnesses called to impeach another on the ground of bad reputation for truth and morality, and also to sustain the reputation of a witness thus sdught to be impeached. The plain, simple formula in the first instance is essential. The impeaching witness should be interrogated as to his knowledge of the general character and reputation, among his neighbors, for truth and morality, of the witness sought to he impeached, and from that knowledge, if sufficient to support an opinion, whether or not he should believe the person on oath. "Where a witness is introduced to sustain the character of the witness sought to be impeached, similar interrogatories should be propounded to him.” To the same effect see Pleasants v. State, 15 Ark. 624; Snow v. Grace, 29 Ark. 131; Hudspeth v. State, 50 Ark. 534; 28 R. C. L., §. 215; Lodge v. State, 82 A. S. R., p. 28.
We deem it unnecessary to discuss any other assignments of error, as the matters complained of will not likely recur in a new trial of the case.
For the error' indicated the judgment is reversed, and the cause is remanded for a new trial. | [
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Karen R. Baker, Judge.
Appellant was convicted in a jury trial of possession of a weapon by an incarcerated person in violation of Ark. Code Ann. § 5-73-131 (Repl. 1997). He was sentenced to five years in the Arkansas Department of Correction. On appeal, appellant asserts that the trial court erred in denying his motion for a directed verdict because he lacked the requisite culpable mental state. We find no error by the trial court and affirm.
While incarcerated at the Pulaski County Jail, appellant was searched by a Pulaski County sheriff s deputy and found to have an improvised weapon hidden in his sock. An officer testified at trial that the weapon — a “shank” in prison parlance — was made of wire with a cloth handle and had a very sharp point. The officer further testified that the appellant said he possessed the weapon because he was “tired of the brutality, and he had to do what he had to do, because he was tired of being moved for no reason at all.” The appellant moved for a directed verdict, claiming there was a lack of evidence to show that the weapon was intended to be used for the infliction of serious physical injury. The motion was denied and the appellant was subsequently found guilty.
When a defendant makes a challenge to the sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the State. Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000); Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999); Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998); Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998). It is well settled that a motion for a directed verdict is a challenge to the sufficiency of the evidence. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002); Smith v. State, 346 Ark. 48, 55 S.W.3d 251 (2001) (citing Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995)). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Smith, supra. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. Only evidence supporting the verdict will be considered. Id.
Appellant was charged with possession of a weapon by incarcerated persons in violation of Ark. Code Ann. § 5-73-131, which provides in relevant part:
(a) A person commits the offense of possession or use of weapons by incarcerated persons if, without approval of custodial authority, he uses, possesses, makes, repairs, sells, or otherwise deals in any weapon, including, but not limited to, any bomb, firearm, knife, or other implement for the infliction of serious physical injury or death and which serves no common lawful purpose, while incarcerated in the Department of Correction, the Department of Community Punishment, or a county or municipal jail or detention facility.
The substance of this appeal is that there is an additional statutory element requiring the State to offer proof that a weapon seized from a prisoner was intended to be used in an offensive manner. We find this argument without merit.
The primary rule of statutory construction is to give effect to the intent of the legislature, construing the Statue as it reads, and giving the language its ordinary and commonly accepted meaning. Short v. State, 349 Ark. 492, 79 S.W.3d 313 (2002). Yet when the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no reason to resort to the rules of statutory interpretation. Id.
Here, there is clearly no additional element of intent required or intended by the statute. The phrase in question — “or other implement for the infliction of serious physical injury or death and which serves no common lawful purpose” — is plainly intended to include the wide variety of objects that can be fashioned into dangerous weapons in an incarcerated setting without attempting to set them forth in an exhaustive list. Ark. Code Ann. § 5-73-131(a). A length of sharpened wire with a cloth handle is obviously a weapon that could potentially cause serious physical injury and is the sort of object intended by the catch-all phrase.
Both the appellant and the appellee agree that, although there is no specified culpable mental state, § 5-73-131 does not create a strict liability offense. This is correct. A defendant charged with the crime can theoretically offer as a defense that his possession of the weapon was with the approval of the custodial authority or that it had an alternative common law purpose. Knowing possession, however, is plainly all that is necessary to violate § 5-73-131; and if a criminal statute does not indicate a culpable mental state, culpability is established if the person acts purposely, knowingly, or recklessly. Ark. Code Ann. 5-2-203(b) (Repl. 1997).
There was substantial evidence before the jury that a prohibited weapon was found hidden on the appellant’s person, and an officer testified that the appellant said he was prepared to use the weapon to “do what he had to do” in response to the “brutality” and “being moved for no reason at all.” The context of these remarks could have been viewed by the jury as indicating that the use was to be directed at the prison guards and thus offensive in nature. Yet, whether the appellant’s intended use of the weapon was offensive or defensive in nature is irrelevant because possession is criminalized by the statute if the weapon was possessed purposely or knowingly. The State is not required to show how the appellant used or intended to use the weapon.
The jury had the opportunity to hear the testimony of the officer regarding the purpose of the weapon and determine the harm it could potentially cause. It is within the province of the jury to weigh the evidence and assess the credibility of witnesses. Williams v. State, 338 Ark. 178, 992 S.W.2d 89 (1999). We hold that there was substantial evidence from which the jury could have found that the object found on the appellant was a weapon for the infliction of serious physical injury or death, which he possessed purposely or knowingly in violation of Ark. Code Ann. § 5-73-131. Accordingly, we affirm.
Affirmed.
Gladwin and Robbins, JJ., agree. | [
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SMITH, J.
The appellant is a mutual insurance society organized under the laws of this State for the relief of its members, and for the mutual aid of beneficiaries of such members in case of death of the member. It is not based upon any subscribed or paid-up capital .stock, either in whole or in part, but alone upon membership dues and pro rata assessments upon its members. Its business is'conducted substantially as follows: A small membership fee, or policy fee, is charged the applicant npon becoming a member and receiving a certificate thereon. When such party is accepted as a member, and the policy or benficiary certificate issued, the member is assigned to a circle, the membership being divided into circles of not exceeding 1,000. members each. In the event of the death of any member of any given circle, all the members in said circle are assessed a certain stipulated amount, according to the age and length of time such member has belonged to the association, from the proceeds of which the beneficiary named in the certificate of insurance receives payment of the value of the policy. The application, by-laws, and beneficiary certificates of the association all constitute a part of and, together, make up the contract between the parties. No medical examinations are made previous to accepting a member, but the statements of the applicant contained in his application are made warranties and the truth thereof a condition precedent to the right of recovery.
Ben He'gwood was a member of the appellant company and, as such, held a policy payable to Adam Frederick, the appellee, who had no insurable interest in the life of the assured.
Upon the death of Hegwood, appellant refused to furnish necessary blanks for proof of death, it being asserted by the company that the member stood suspended at the time of his death for the nonpayment of an assessment, due notice of which had been given by mail. The application and, certificate provided that notice of assessment should be given Frederick, and he testified that he had paid all assessments of which he had ever received notice. The application contained the following provision in regard to notice:
“It is understood that the value and conditions of this policy to be issued on this application shall be as follows: * * * it is understood that the .secretary of the United Assurance Association is to notify said applicant, by ordinary mail, to the last known address and to that stated, of any death occurring in the circle of which policy-holder is a member, which will make applicant liable for assessment, and of the proper amount of the assessment due thereon, and prompt payment of the same must be made within fifteen days to the Home Office, and failure on the port of appellant to pay the assessment within thirty days from date of notice, as provided by the by-laws, forfeits and voids this policy.”
The policy contained the following language upon this subject:
‘ ‘ Upon the death of any member of the above named circle, the within named member shall within thirty days from the date of the notice thereof, which the secretary of this association shall have mailed to the within named member, pay to this association an assessment which shall be equal to the sum of one cent for each year of the age of the within named member at the time of the issuance of this policy plus the sum of one cent for each month of time the within named member has been a member of this association, provided, that with the eightieth month from the date of this policy the maximum assessment shall have been reached and will amount to $1.34.”
Upon the issue of notice, the court gave the following instruction:
“1. If you believe from a fair preponderance of the evidence that the defendant issued unto Ben Heg-wood the certificate of membership introduced in evidence, and that all assessments of which he received notice were paid by him, or some other person for him, and that the said Ben Hegwood died on the 18th day of July, 1916, then your verdict should be for the plaintiff in the sum provided in the certificate of membership, together with interest thereon at the rate of 6 per cent per annum from the 22d day of August, 1916, to date.”
The correctness of this instruction presents the principal question in the ease, although other questions are presented, and these latter questions will be first considered.
(1) The by-laws of the order provided that no certificate should be issued to any person who was over 55 years of age. And there was offered in evidence the marriage record of Hegwood, which showed that on November 14, 1898, he was 45 years old, and, if this statement of his age was true, he was beyond the insurable age permitted by the appellant company on December 12, 1914, when the certificate sued on was issued. But the proof shows that Hegwood made no statement of his age, and the agent of the company who wrote the application testified that, from questions which he asked Heg-wood, he estimated Hegwood’s age to be 54, and wrote that figure down as being his age, and that Hegwood was an illiterate negro who did not, and could not, read the application, and signed it by mark. This proof being undisputed, there was no issue as to the misrepresentation in regard to age, because the knowledge of the agent who wrote the application is imputed to the company. Hutchins v. Globe Life Ins. Co., 126 Ark. 360, 190 S. W. 446; Fidelity & Casualty Co. v. Meyer, 106 Ark. 91; Maloney v. Maryland Casualty Co., 113 Ark. 174; Mutual Reserve Fund Life Association v. Cotter, 81 Ark. 205.
(2) The right to recover is denied because the beneficiary had no insurable interest in the life of the member. The proof is undisputed, however, that the member took out this policy himself, and that the beneficiary knew nothing of the application until after it had been written. While appellee would have had no right to have taken out this policy himself, because he had no insurable interest in the life of the assured, still the assured had the right so to do. In the case of Langford v. National Life & Acc. Ins. Co., 116 Ark. 527, a syllabus is as follows:
“A person may take out insurance on his own life, and name any one that he pleases as beneficiary, and where there is no understanding between the insured and the beneficiary, at the time the policy is taken out, the policy will be held valid, although the beneficiary had no insurable interest in the life of the insured, and the policy will not be rendered void, if, thereafter, the beneficiary paid the premiums on the policy up to the time of the insured’s death.” See, also, Matlock v. Bledsoe, 77 Ark. 60; Prudential Ins. Co. v. Williams, 113 Ark. 373.
(3) An attorney’s fee, together with a penalty, were assessed against appellant, and this action of the court is questioned as not being authorized by law. We think counsel is correct in this contention. Statutes providing penalties are strictly construed, and the penalty is not charged in any case unless there is express statutory authorization therefor. Under the authority of the case of Knights of Maccabees v. Anderson, 104 Ark. 417, we think the penalty and attorney’s fee should not have been charged.
To return to the consideration of the correctness of appellee’s instruction numbered 1, set out above, on the question of notice of assessments, it may be said that counsel for appellant insists that notice is given when a letter, containing the information in regard to the assessment, is deposited in the mails, and that, if this is done, it is immaterial that the notice was never, in fact, received. Counsel argues that such is the meaning of the language above quoted from the application and the policy, and that this is the effect of our decision in the case of Mutual Aid Union v. Wadley, 125 Ark. 449. But we do not agree with counsel in either contention. In the case cited, there was proof tending to show that notice had been sent by mail, which we held sufficient to warrant the submission of that question to the jury. The trial court had faken the contrary view, and we reversed the judgment on that account. We did not there discuss the presumption arising from proof of the mailing of' a letter. The point in that case is correctly summarized by the syllabus, which is as follows:
“It is a question for the jury, whether notice was sent out to deceased that an assessment against her was due, and whether she received the same, where, by the contract of insurance, deceased’s policy was to become void for failure to pay an assessment after proper notice.”
We there decided only that the facts recited presented a question for the jury to say whether notice was given. Had that question been submitted in the court below in that case, the beneficiary would have been entitled to appropriate instructions on the presumption arising from the proof of mailing a letter, the law of which subject is thoroughly discussed in the following cases: Southern Engine & Boiler Works v. Vaughan, 98 Ark. 388; Bluthenthal v. Atkinson, 93 Ark. 252; Merchants’ Exchange Co. v. Sanders, 74 Ark. 16; Click v. Sample, 73 Ark. 194; Planters’ Mutual Ins. Co. v. Green, 72 Ark. 305.
The question not having been previously decided by us, we proceed to consider it upon its merits. It may be conceded that the contract of insurance might have made the proof of mailing notice conclusive of the fact of notice. But a construction so harsh in its nature, and so disastrous in its practical operation, is not to be adopted unless the language employed requires that construction, for contracts of this character are construed most strongly against the company which chooses the language employed in the .contract. A recent case involving a similar principle is that of Columbian Woodmen v. Hewitt, 122 Ark. 480. There the policy provided that the assured, in the event of injury, should furnish satisfactory proof thereof, and to make this meaning clear, further provided that “satisfactory proof shall be taken to mean an X-ray photograph made and certified by a physician .selected by the Eminent Director. ’ ’ It was there said:
“The contention of learned counsel for appellant is that furnishing an X-ray photograph showing a fracture of the arm is a condition precedent to the right of recovery. We do not so interpret the language of the contract, according to the amended by-laws. The provision undoubtedly constitutes a requirement that satisfactory proof of the injury be furnished, and it undertakes to define what satisfactory proof is. According to its lan guage an X-ray photograph, is defined to be satisfactory proof, but it does not state that the X-ray examination and the photograph thereof must show the fracture. This is an important distinction, for if it had been intended to make the right to recover depend upon the fact that an X-ray photograph revealed the existence of a fracture, then it could have been expressed in more appropriate language. *- * * Unless the contract itself expressly makes the right of recovery depend upon the existence of the loss as disclosed in the proof furnished, the assured has the right to resort to other proof in the trial of his suit. ’ ’
(4) The insurance company may write into its contract a requirement that certain proof, and that only, shall be considered, just as it might prescribe that notice given in a certain manner shall be conclusive of the question that notice was given, or that notice shall be given in a certain way, and that no other notice shall be required. But unless it is so provided, the question, whether notice of a particular assessment was given to a member liable therefor, is to be decided by a consideration of the applicable rules of evidence.
Under the terms of the contract involved in the instant case, the undertaking and agreement on the part of the insurance company was to notify the insured. It was not provided that, upon the maturity of an assessment, the company, through its proper officer, should deposit in the mail a notice of the levy of an assessment, and the amount thereof, and that the policy should forfeit if the assessment was not paid within a certain number of days from the date of mailing; but its language is that they shall notify the insured, and the insured was not in default, nor was his. policy liable to cancellation or forfeiture, until the lapse of the time limited from the date of the notice of the assessment.
The question under consideration was involved in the case of Home Benefit Association v. Jordan, 191 S. W. 725, Tex. Court of Appeals. The duty of the company to notify its members of the levy of assessments was there expressed in the following language:
“He (the secretary) shall keep the books of the society, make record of all bonds on the minute book, notify all members by postal card of assessments regularly made by the board of directors. ’ ’
And the constitution of the insurance company in that case, among other things, provided that “All assessments must be paid within fifteen days from the date of the call. Members failing to pay same within the time prescribed shall stand suspended, and will no longer be entitled to any of the benefits of the society.”
It was there said (to quote from the syllabus):
“Where the constitution of a mutual benefit association which levied assessments only upon death of a member required the secretary to notify by postal card all members liable, the word ‘notify’ should be construed ‘to make known,’ so that, where the insured failed to receive a postal card mailed by the secretary, notifying him of an assessment, such failure excused insured’s failure to pay the assessment, and his beneficiary could recover.
(5) Appellee’s instruction numbered 1, set out above, conforms to the views here expressed, and it is, therefore, approved as correctly construing the language of the application and policy set out in reference to the giving of notice.
The judgment will be modified by striking out the allowance of penalty and attorney’s fee, and in all other respects is affirmed. | [
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Olly Neal, Judge.
Appellants, Searcy Industrial Laundry, Incorporated and Mid-Century Insurance Company, appeal from a decision of the Arkansas Workers’ Compensation Commission (Commission) awarding appellee Sharon Ferren additional temporary-total-disability benefits. On appeal, appellants argue that appellee’s claim for temporary-total-disability benefits was barred by the doctrine of collateral estoppel. They argue, in the alternative, that appellee failed to prove entitlement to temporary-total-disability benefits. We affirm.
On January 13, 2000, appellee sustained an admittedly compensable injury to her back. Four months later, appellee began complaining of a possible cervical-spine injury. Appellants controverted the injury to appellee’s cervical spine. The administrative law judge (ALJ) found that appellee had failed to prove by a preponderance of the evidence that she sustained a compensable injury to her cervical spine. The Commission reversed the decision of the ALJ, finding that appellee proved a compensable neck injury by a preponderance of the evidence. Appellants appealed the decision to our court. In Searcy Industrial Laundry Inc. v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003), we affirmed the decision of the Commission.
Thereafter, appellee filed a claim for additional temporary-total- disability benefits for the period of June 7, 2000, to March 19, 2003. Appellants argued that the claim was barred by the doctrine of res judicata. The ALJ found that the claim was barred. The Commission reversed, finding that the issue of entitlement to temporary-total-disability benefits had not been litigated during the previous proceedings. From that decision comes this appeal.
Appellants argue that appellee’s claim for temporary-total-disability benefits is barred by the doctrine of collateral estoppel. In support of their argument, appellants raise the following sub-points: (1) appellee is impermissibly seeking to relitigate her claim to temporary-total-disability benefits despite the fact that the same issue was presented and decided upon before; (2) appellee’s claim for temporary-total-disability benefits was fully litigated during the hearing, the appeal to the Commission, and the appeal to this court; (3) once affirmed by this court, the Commission’s decision after conducting de novo review became a final ruling and is therefore res judicata; (4) no matter what the current position of the Commission is, its original award ofbenefits to the appellee is final and represents the law of the case for res judicata purposes.
Collateral estoppel, also known as issue preclusion, bars relitigation of issues of law or fact previously litigated by a party. Johnson v. Union Pac. R.R., 352 Ark. 534, 104 S.W.3d 745 (2003). The elements of collateral estoppel are: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) the issue must have been actually litigated; (3) it must have been determined by a valid and final judgment; (4) the determination must have been essential to the judgment. Id. Collateral estoppel is applicable to decisions of the Workers’ Compensation Commission. See Craven v. Fulton Sanitation Serv., Inc., 361 Ark. 390, 206 S.W.3d 842 (2005).
In finding that the appellee’s claim was not barred the Commission wrote the following:
In the present matter, the Full Commission finds that the administrative law judge was correct in finding that the claimant is making the same claim for additional temporary total disability compensation for the exact time frame, based on the same circumstances, as were requested at the hearing in March of 2001. However, we do not find that the claim is barred by the doctrine of res judicata because although the prior administrative law judge found in his opinion of March 28,2001, that the claimant’s neck injury was not causally related to her compensable back injury, he did not reach the issue of additional temporary total disability compensation once he found the neck injury not to be a compensable injury. Moreover, we note that once the case was appealed to the Full Commission and the Arkansas Court of Appeals, they did not adjudicate, and nor did they address the issue of temporary total disability compensation. As such, we find that the claimant has not had an opportunity to litigate her entitlement to additional temporary total disability compensation. Therefore, we further find that the doctrine of res judicata does not preclude the claimant from claiming entidement to additional temporary total disability compensation from June 7, 2000, through March 19,2003.
We agree with the Commission’s findings. Therefore, we hold that appellee’s claim was not barred by the doctrine of collateral estoppel.
In the alternative, appellants argue that appellee failed to prove entitlement to temporary-total-disability benefits. Temporary-total-disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002). When an injured employee is totally incapacitated from earning wages and remains in his healing period, he is entitled to temporary-total-disability. Id. The healing period ends when the employee is as far restored as the permanent nature of his injury will permit, and if the underlying condition causing the disability has become stable and if nothing in the way of treatment will improve that condition, the healing period has ended. Id. The determination of when the healing period has ended is a factual determination for the Commission and will be affirmed on appeal if supported by substantial evidence. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). These are matters of weight and credibility, and thus lie within the exclusive province of the Commission. Id.
We hold that the Commission’s finding that appellee’s healing period had not ended is supported by substantial evidence. Appellee testified that, following her accident, she went back to work the following Monday and worked the entire week. During that time, due to pain, appellee also saw her doctor. The following week, appellee was only able to work two days and her doctor took her off work. Appellee testified that she was initially paid temporary-total-disability benefits through June 7, 2000. She said that she began receiving benefits again in March 2003. Appellee testified that from June 7, 2000, to March 14, 2003, she was unable to work. She said that she had not worked since the accident.
The medical evidence further established that appellee was in her healing period. In a letter dated April 23, 2001, Dr. John Wilson states that, due to pain, appellee had not been released to work. A letter dated November 11, 2003, further indicates that appellee was still in her healing period. Because appellee has yet to be released to work she remains in her healing period. Accordingly, the Commission did not err when it awarded appellee additional temporary-total-disability benefits.
Affirmed.
Baker, J., agrees.
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Andree Layton Roaf, Judge.
Lovella Thomas was convicted in a jury trial of Abuse of an Adult, a Class B felony, and was sentenced to twenty years’ imprisonment and assessed a $1500 fine. On appeal, Thomas challenges the sufficiency of the evidence supporting her conviction and asserts that (1) the evidence is insufficient to show that the victim was an endangered or impaired adult; (2) the evidence does not show that she purposely abused the victim; and (3) the evidence does not show that her conduct caused serious physical injury or substantial risk of death. We affirm.
On February 7, 2003, paramedics were called to Thomas’s home. There they found the victim, Andrew Kaelin, a seventy-seven-year-old man, lying on a mattress in an unheated room. Kaelin’s clothes were wet with urine, and he was barely responsive. Michael Deately, one of the responding paramedics, testified that Kaelin attempted to respond and make hand gestures but that the only word Kaelin could manage was “cold.” After one of the paramedics commented about how cold it was in Kaelin’s room, Thomas brought a space heater from the living room into Kaelin’s room. The paramedics were unable to find a pulse in Kaelin’s wrist, arm, or neck, and he was transported to the hospital. The paramedics described Kaelin as “very dehydrated,” “almost emaciated,” “thin,” and “pale.” Except for the fact that Kaelin was trying to speak, he did not appear to be alive.
When he arrived at the hospital, Pamela Rice, a registered nurse, treated Kaelin. She noted that Kaelin had cuts on both of his hands and pressure ulcers on his body. The pressure ulcers were at stages two and three of a possible four. She, too, noticed that Kaelin’s clothes were wet; that his body temperature was only eighty-four degrees, which amounted to hypothermia; and that Kaelin was unable to talk. She opined that Kaelin’s condition probably occurred gradually, and based on his condition, Rice contacted Adult Protective Services. Steve McDonald, another of Kaelin’s treating nurses, testified regarding Kaelin’s condition. His testimony established that Kaelin was in critical condition, was malnourished, had low blood pressure, with an irregular heartbeat, and had a low body temperature. Kaelin was also in renal failure and was diagnosed with hypothyroidism. McDonald testified that the skin breakdowns and lesions about Kaelin’s body would have taken a considerable amount of time to develop — perhaps several weeks, and that it would take a period of months to become as malnourished as Kaelin was upon entering the hospital.
Cindy Sorrells, an employee with Adult Protective Services (APS) with the Arkansas Department of Health testified that APS took custody of Kaelin on March 4, 2003. She spoke with Thomas regarding Kaelin’s condition, and Thomas stated that Kaelin had gotten sick the day before the paramedics were called but that he was up walking about before that. Thomas explained that she was Kaelin’s caregiver; that she paid his bills and expenses with his $648 monthly social security check; and that she was unaware of the decubitis. Thomas told Sorrells that Kaelin had urinated and defecated on himself shortly before paramedics were called; that she bathed him in warm water; however, Thomas was unable to explain to Sorrells how she was able to heat the water when there was no gas or heat in the house. Later, another witness explained that they had heated the water in an electric crockpot. Sorrells stated that Kaelin died approximately one month after being taken into custody.
Dr. William Sturner performed the autopsy on Kaelin’s body and concluded that the cause of death was bilateral bronchial pneumonia due to a subdural hematoma. He attributed the sub-dural hematoma to blunt trauma to the left side of the head. The injury appeared to be several weeks to perhaps months in age. Sturner stated that Kaelin also had several other conditions which contributed to, accelerated, or aggravated his death. He listed decubitus pressure sores, purpuric hermorrhages, statis post-hypothermia, and arteriosclerotic cardiovascular disease. He also opined that these conditions, depending on the underlying circumstances, would take from weeks to months to develop.
Following Stumer’s testimony, the State elicited testimony from six witnesses who all testified extensively about the abuse Thomas inflicted upon Kaelin. These witnesses’ testimony established that Thomas repeatedly hit Kaelin in the face, head, back, and body; pushed him down; and withheld food from him. Some of the witnesses testified that they recalled seeing Kaelin with black eyes and busted lips. They also testified that Thomas verbally abused Kaelin and forced him to stay in his bedroom for hours. One of the witness told of how Thomas forbade Kaelin to leave his room even to use the bathroom and that she placed a bucket in his room so that he could relieve himself. That witness also told of how Thomas and another woman sat Kaelin in front of the door in the middle of winter, placed a fan on him, and poured buckets of water on him. Despite the testimony that Thomas physically and verbally abused Kaelin, some of the State’s witnesses testified that Kaelin was mobile, and that he would walk around the house asking for food and cigarettes. One of the witnesses testified that Kaelin could bathe and dress himself and that he could fix his own plate at mealtimes.
At the close of the State’s case, counsel for Thomas made the following motion for directed verdict:
Your Honor —Just a moment —Your Honor, first of all, we would challenging [sic] the charging of Ms. Kaelin under the information as she is charged. It reads that she did purposely abuse, neglect or exploit Andrew Kaelin and she is charged with a B felony.
A B Felony under this statute does not require that she neglect or exploit. Therefore, we would ask that this be at least reduced to a D Felony which more matches the elements of the statute. Neglect is not required; exploitation is not required; exploitation is not required. She is not properly charged.
In addition to that, the elements that have been left off of the B Felony are “endangered or impaired adult” That is required for a B Felony. So we would move to quash these charges, or in the alternative have this reduced to a D Felony and ask for a directed verdict of acquittal on the B Felony.
(Emphasis added.) The trial judge then made the following comments:
There is some concern that the Court has. The statute reads, “In order to be an endangered adult it means an adult 18 years of age or older who is found to be in a situation or condition which poses an eminent risk of death or serious bodily harm to that person and who demonstrates a lack of capacity to comprehend the nature and consequences of remaining in that situation or condition.” What says the State?
The State responded that the statute requires that the abused adult be endangered or impaired, and that the question of whether or not Kaelin was endangered or impaired was a fact question that should be left up to the jury. Thomas in turn stated that there was no testimony that Kaelin could not care for himself and pointed to the testimony showing that Kaelin had his own room, bathed himself, and prepared his own plate at mealtimes. The trial court denied the motion for directed verdict, stating that he would revisit the issue at the close of the defense’s case. Thomas also moved for directed verdict on the lesser-included offense. This motion also attacked the State’s proof supporting the endangered-or-impaired-adult element of the offense. Counsel again asserted that there was no testimony establishing that Thomas was an endangered or impaired adult.
The defense presented six witnesses, including Thomas. These witnesses in essence countered the testimony of the State’s witnesses. They testified that Kaelin was in fair condition and healthy before his hospitalization. One of the witnesses testified that Kaelin would go outside regularly, feed and water the dogs, and pick pecans. That witness also testified that Kaelin would fight with other members of the household. Another witness testified that she lived on the same street as Thomas; that Kaelin looked fine when he wasn’t beaten up; that Kaelin got around on his own; and that she would see him out in the yard, raking leaves and walking about.
Thomas testified regarding Kaelin’s ability to care for himself and his daily activities. She stated that Kaeiin was active and wanted to be independent. She said that he rode a bike and played with the dog and her children. Thomas admitted, however, that Kaelin had a bike accident in January; that he had a rod placed in one of his legs; and that she had told the investigating officer that the reason she picked up Kaelin’s social security check was because he was unable to get around due to the rod in his leg and his age. Thomas also told the officer that Kaelin was a danger to himself and that he had set his own pants on fire on more than one occasion by standing too close to the gas heater. She also admitted that Kaelin ate dog food and scraps from the garbage and that he would find old cigarette butts to chew on. She denied abusing Kaelin, locking him in his room, withholding food from him, or forcing him to use a bucket to relieve himself.
At the close of the defense’s case, counsel for Thomas made the following renewed motion for directed verdict:
Your Honor, Defendant would have Motion for Directed Verdict, again citing that on the B felony charge requires that a person purposely abuse an engendered or impaired adult causing serious physical injury or substantial risk of death. There is conflicting testimony about the abuse, Judge, but the endangered or impaired adult portion of that statute is defined in the definition section. We’ve previously discussed those definitions and I don’t believe that the State has met its burden as to those two elements. There has been testimony by both the defense witnesses and the State’s witnesses that Mr. Kaelin was mobile up until the time he became sick, and I believe that Mr. Sturner, one of the last questions I asked him was it possible that he could have been injured and remain mobile and then fell ill, and he said that was a possibility, so I don’t think the State has met its burden and we would ask for a DirectedVerdict of Acquittal at this point on the B Felony charge.
The State again argued that the issue of whether Kaelin was endangered or impaired was a fact question for the jury and pointed to testimony showing that Kaelin was seventy-seven years old, never left the home, ate dog food and scraps, and could not defend himself. The trial court agreed that the issue was a fact question for the jury and denied the motion. Thomas brings this appeal.
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.
In this appeal, Thomas challenges the sufficiency of the evidence and raises three sub-arguments. They are: (1) the evidence is insufficient to show that the victim was an endangered or impaired adult; (2) the evidence does not show that she purposely abused the victim; and (3) the evidence does not show that her conduct caused serious physical injury or substantial risk of death. Only the first of these three arguments is preserved for appellate review.
Arkansas Rules of Criminal Procedure 33.1(a) and (c) (2005) govern the procedure for challenging the sufficiency of the evidence at a jury trial and provides in pertinent part:
(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. The motion for directed verdict shall state the specific grounds therefor.
* * *
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. . . .
(Emphasis added.)
At trial, Thomas challenged only the State’s proof regarding the endangered-or-impaired-adult element of the statute in her motion requesting directed verdict on the felony charge or reduction to a lesser offense. Thomas did not assert, as she now does on appeal, that the State failed to show that she purposely abused Kaelin or that the State failed to prove that her conduct caused serious physical injury or substantial risk of death. It is well-settled that this court will not consider arguments raised for the first time on appeal, and that a party is bound on appeal by the nature and scope of the objections and arguments presented at trial. Simmons v. State, 90 Ark. App. 273, 205 S.W.3d 194 (2005); Houston v. State, 82 Ark. App. 556, 120 S.W.3d 115 (2003). Consequently, we do not address Thomas’s second and third sub-arguments.
We conclude that, despite the State’s contentions to the contrary, Thomas’s argument that substantial evidence does not support the jury’s finding that Kaelin was an “endangered or impaired adult” is preserved for our review. Arkansas Code Annotated section 5-28-103 (Repl. 1997) provides in relevant part:
(a) It shall be unlawful for any person or caregiver to abuse, neglect, or exploit any person subject to protection under the provisions of this chapter.
(b)(1) Any person or caregiver who purposely abuses an endangered or impaired adult in violation of the provisions of this chapter, if the abuse causes serious physical injury or substantial risk of death, shall be guilty of a class B felony and shall be punished as provided by the law.
(2) Any person or caregiver who purposely abuses an endangered or impaired adult in violation of the provisions of this chapter, if such abuse causes physical injury, shall be guilty of a Class D felony and shall be punished as provided by law.
“Endangered adult” means an adult eighteen years old or older who is found to be in a situation or condition which poses an imminent risk of death or serious bodily harm to that person and who demonstrates a lack of capacity to comprehend the nature and consequences of remaining in that situation or condition. Ark. Code Ann. § 5-28-101(1)(A) (Repl. 1997). An “impaired adult” is an adult eighteen years old or older who suffers from mental or physical disease or defect and as a consequence thereof is unable to protect himself from abuse, neglect, or exploitation. Ark. Code Ann. §5-28-101(11) (Repl. 1997). A “caregiver” means a related or unrelated person, owner, agent, high managerial agent of a public or private organization, or a public or private organization that has the responsibility for the protection, care or custody of an endangered or impaired adult as a result of assuming the responsibility voluntarily, by contract, through employment, or by order of the court. Ark. Code Ann. § 5-28-101(3) (Repl. 1997). (Emphasis added.)
Accordingly, the State needed to present evidence that (1) Kaelin was older than eighteen; (2) that he was in a situation that posed imminent risk of serious injury or death; and (3) that he lacked capacity to comprehend the nature and consequences or remaining in that situation, or (1) that Kaelin was older than eighteen years of age; (2) that he suffered from mental or physical defect; and (3) as a consequence thereof that he was unable to protect himself. We have found no cases discussing the elements of the offense at issue, and the State either does not comprehend the substance of Thomas’s argument or has chosen not to respond to it, and has simply narrated all of the facts regarding the abuse suffered by Kaelin as a basis for affirmance on this point. In this regard, we conclude that logic and the requirement of strict construction of criminal statutes dictate that the abuse itself or the conditions which resulted from the abuse cannot substitute for proof of the victim’s statutorily-required status as either an endangered adult or impaired adult. Thus, the condition that Kaelin was found to be in at the time of his hospitalization, although dire indeed, along with the description of his various injuries and the cause of his death do not constitute proof of either alternative status of an “endangered” or “impaired” adult. Moreover, although it is undisputed that Kaelin was seventy-seven years old at the time of these events, Kaelin’s age alone is insufficient evidence of the vulnerable status required for commission of the offense.
Nonetheless, there was other evidence of Kaelin’s status presented to the jury. There was testimony from Thomas that Kaelin had broken his leg and hip in a bicycle accident, walked with a cane, and was unable to attend to his financial affairs. Thomas told officers that she took care of Kaelin’s banking because of his age and his inability to get around, although she stated at trial that this was not correct. Thomas also told officers that Kaelin was a danger to himself and would often set his pants on fire. At trial, she testified that Kaelin “caught his pants on fire a “bunch” by standing too close to the gas heaters. She also admitted that Kaelin ate dog food and that he “liked it.” Moreover, the medical witnesses testified that Kaelin’s injuries and condition took a considerable period of time to develop. We, therefore, conclude that there was sufficient evidence from which the jury could have found that Kaelin was an endangered or impaired adult, or both; that he suffered from a physical or mental defect, or both, and that as a consequence was unable to protect himself from the repeated abuse that he was subjected to or to remove himself from Thomas’s care and control, a situation in which he was quite literally placed at risk of serious injury and which persisted over a considerable period of time.
Affirmed.
Baker, J., agrees.
Bird, J., concurs. | [
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WOOD, J.,
(after stating the facts). The petition for dower alleged that the administrator has sold land belonging to the estate of J. A. McCandless, and that ap-pellee as the widow was entitled to one-third of the proceeds of such sale.
The affidavit for appeal set up that the appeal was prayed “from the order of the White Probate Court, allowing and setting aside to Mrs. M. J. McCandless the sum of $577.45 as her dower interest in the sale of certain lands made by the administrator. '
The order of the probate court shows that the case was heard upon “the petition of M. J. McCandless, as widow of J. A. McCandless, praying an allotment of dower to funds in the hands of B. F. Davis, administrator,” and that the sum in his hands was $1,732.35, the proceeds of the sale of lands “belonging to the estate of her husband. ’ ’ '
The judgment of the circuit court shows that the cause was “submitted to the court upon the pleadings and the testimony of witnesses.” And the circuit court found that there was,$1,732.35 in the hands of the administrator, and affirmed the judgment of the probate court allowing appellee $577.45 as dower.
(1) The court erred in granting to appellee the absolute title to one-third of. the amount of the proceeds from the sale of these lands, and this error appears on the face of the record. It was, therefore, unnecessary for the appellant to' have filed a motion for a new trial and to have presented a bill of exceptions in order to have this court review the error on appeal. Where an error appears upon the face of the record no motion for a new trial and bill of exceptions is necessary. Anthony v. Sills, 111 Ark. 468, 474, and cases cited; Baucum v. Waters, 125 Ark. 305, 308, and cases cited.
(2) Mr. Woerner says: “The surplus of the proceeds of a sale (of real estate) ordered for the payment of debts remaining after the debts and expenses of administration have been discharged retains the character of real estate for the purpose of determining who is entitled to receive it, and goes to the persons to whom the real estate would have gone but for the conversion. ’ ’ 2 Woer-ner on Administration, p. 481.
In Kitchens v. Jones, 87 Ark. 502, we held (quoting syllabus): “"Where decedent left real property subject to a mortgage, which was subsequently foreclosed by order of court, the surplus of the proceeds of the foreclosure sale retained the character of real estate for the purpose of determining who was entitled to receive it.”
The Chief Justice, after reviewing the authorities, concludes his opinion as follows: “In this case his equity of redemption descended, at his death, to his widow and children, according to the statute of descent and distribution, as realty. Its subsequent conversion to pay the debts against it does not let them in to share in it as personal property, for the only purpose of the conversion was to pay the mortgage debt, and not to change the status of the property.”
The doctrine announced in that case rules this. It follows that the appellee was entitled to her dower in the surplus proceeds of the sale of the lands belonging to the estate of her deceased husband, but the court, by appropriate order, should have assigned her dower interest as in realty, and not absolutely as in personalty. The court should have ascertained the amount of her dower interest in the proceeds and should have awarded to her such interest for her use and benefit during her life.
Appellee contends that the court below may have found from the evidence that the funds in the hands of the administrator was the result of the collection of land notes in the possession of the administrator, or that the sale was made by the commissioner of the chancery court under an agreement that the widow should have one-third of the proceeds of the sale. The answer to this is, that this court can not assume that evidence was adduced beyond the scope of the issues set forth in the pleadings. The petition, as we have seen, shows that appellee sought dower out of the proceeds of the sale of lands belonging to the estate of her husband. The administrator had no right to sell the lands except for the payment of debts, and her dower in any surplus went to her, as real estate and not personalty.
It appears on the face of the judgment that it was not responsive to the issues raised by the pleadings, and the judgment will therefore be reversed and the cause remanded with directions for further proceedings according to law and not inconsistent with this opinion. | [
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HART, J.,
(after stating the facts). (1) This court has recognized that there is a difference between a case where a party admits the acknowledgment of a deed or mortgage, and claims that such acknowledgment was procured by fraud or duress and a case where the grantor denies that he or she ever acknowledged the instrument. It is always admissible to show that a grantor in a deed or mortgage never actually appeared before the officer purporting to have taken his acknowledgment, and that the grantor made no acknowledgment at all. Polk v. Brown, 117 Ark. 321. In that case the court said that where there is a claim that the grantor did not make any acknowledgment whatever before the officer, the weight of the evidence should not be affected by any particular yule peculiar to the subject, but that the court should be left to determine from all the circumstances disclosed whether the certificate of acknowledgment is true or false. The court said:
“In our opinion, the weight of the evidence should not be affected by any particular rule peculiar to the subject, but rather the court should be left to determine from all the circumstances disclosed whether the certificate of acknowledgment is true or false. This much may be said, however, under chapter 29 of Kirby’s Digest, a proper acknowledgment is an essential part of the execution of a conveyance. The acknowledgment is an official act done under an official oath and is protected under the presumption the law necessarily indulges in favor of the acts of its own officers. Under our statute, one of the means of evidence upon which a deed can be admitted to record is a certificate of proof or acknowledgment of an officer authorized by our statute to take such proof or acknowledgment. The burden of proof undoubtedly rests upon the person denying the falsity of the certificate which carries with it the usual presumption that the officer making it ■has certified to the truth, and has not been gulity of a wrongful or criminal action.”
(2) The notary or other officer before whom an acknowledgment is taken performs a very important duty when he takes and certifies an acknowledgment of a deed or any instrument affecting the title to real estate. For that reason great weight is given to his official act in certifying to the validity of such instruments. The impeachment of his certificate involves a charge of criminal violation of duty on the part of the certifying officer. This brings us to a consideration of the evidence on the facts in the case. Notice may be first taken of the fact that it is contended that Gordon, the certifying officer, was a 'stockholder in the bank, and on this account, under the rule announced in Davis v. Hale, 114 Ark. 426, his certificate does not import the same verity as the certificate of an officer who was not a stockholder in the corporation affected. In response to this argument, we are of the opinion that a preponderance of the evidence does not show that Gordon was a stockholder of the bank at the time he took the acknowledgment. It is true that at one place, the record recites that he was a stockholder at that time, and that he admitted snch to be the fact when he first testified. After refreshing his memory, however, he testified that while he had been cashier of the bank for many years and had formerly owned stock in it, that at the date of the acknowledgment he was not a stockholder in the bank. He said that he disposed of his stock and only held forty shares of stock belonging to his brother as collateral security for a debt which his brother owed the bank, and for which he was surety for his brother to the bank. At the time he testified, Gordon was not in any way connected with the bank, but was the receiver of the United States Land Office located at Camden, Arkansas. His explanation of the matter was reasonable and consistent, and there is nothing in the record which in our minds contradicts his explanation. Therefore, we are of the opinion that he was not a stockholder in the bank at the time he took the acknowledgment, and that his certificate of'acknowledgment is entitled to the same verity as would be attached to the certificate of any disinterested officer.
From the testimony set out in the statement of facts, we think it is fairly deducible that Gordon prepared the deed and delivered it to Gee on the second day of April; that Gee carried it home and after some words with his wife, procured her signature to it; that she became nervous after' signing the deed, and was confined to her bed for several days, and that the acknowledgment to it was not taken for several days after she had signed it; and that she acknowledged it of her own free will.
(3) It will be noted that it appears from the testimony of Gee and "White, both members of the firm, and of Gordon, the cashier of the bank, that the deed was prepared by Gordon and delivered to Gee on the second day of April, 1913. White said that Gee took the deed home with him and brought it back to the store and kept it for several days before it was delivered to Gordon to take the acknowledgment; that Mrs. Gee was sick for 'several days following the first day of April. The physician who attended her at that time also stated that she was in a very nervous condition. It is fairly inferable from all the circumstances that Mrs. Gee became very nervous when her husband first informed her that it was necessary to mortgage their home to secure the overdrafts at the bank. She admits that she knew the mortgage was given for that purpose. After signing the deed she became prostrated and was confined to her bed for a few days on account of her nervous condition. Her daughters think she was' confined to her bed for perhaps a week and say that they were constantly with her during that time, and she did not sign the deed. They were doubtless mistaken as to the length of time their mother was sick. The physician who attended her stated that her husband paid him $3.00 on account of attending her on the 4th or 5th of April, 1913. It is not likely that this payment was made until her husband at least thought that she no longer needed the services of a physician and the amount indicates that not more than one or two visits were made by the physician. So it may be said that she was not confined to her bed after the 4th, or, at the furthest, the 5th, of April. This fact is corroborated by the testimony of both Gee and White. They both testified that Gordon said that he would take Mrs. Gee’s acknowledgment over the telephone. White testified that the deed was kept in the store several days after it was first delivered to Gee before this conversation occurred. It is not at all probable that they would have acquiesced in Gordon’s calling her up over the telephone to take her acknowledgment if she had been confined to her bed or was sick. While Gordon states that his recollection is that he took the acknowledgment on the evening of the 2d, or the morning of the 3d, of April, it is fairly deducible from the circumstances before stated that he was mistaken in this regard. It is very likely that he filled in the date of the deed when he prepared it, thinking that it would be acknowledged at the time it was signed. As above stated, the deed was kept at the store by Gee for several days after it was signed before it was given back to Gordon for Mm to take the acknowledgment. Gordon then doubtless signed the acknowledgment leaving the date which had already been pnt in there when the deed had been prepared and delivered to Gee. It must be remembered that all the witnesses'who testified to impeach the acknowledgment were directly interested in the result. When all the facts and circumstances in evidence are considered in the light of each other, we think the learned chancellor erred in holding that the certificate of acknowledgment was impeached and that Mrs. Gee did not acknowledge the deed.
It follows that the decree must be reversed and the cause will be remanded with directions to dismiss the complaint for want of equity and to decree a foreclosure of the mortgage in conformity with the prayer of the cross-complaint. | [
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Sam Robinson, Associate Justice.
The issue is whether a contract for the sale of a printing press is usurious. On July 23,1956, appellant, Heidelberg Southern Sales Company, sold a printing press to appellee, James R. Tudor, under a title retaining contract. The purchaser made a part payment in cash and the balance was to be paid in monthly installments. Tudor refused to make the monthly payments, and Heidelberg filed this suit to replevy the machine. A jury was waived and the canse submitted to the court. From a finding by the court that the sales contract is usurious, the Heidelberg Company has appealed.
The sales contract shows a selling price of $4,823.84, with $1,062 being paid in cash, leaving a balance of $3,-761.84, to be paid in 36 monthly installments with no interest. But this is not the entire picture. Ordinarily parol evidence is not admissible to vary the terms of a written contract, but there is an exception when such evidence is for the purpose of showing usury. Tillar v. Cleveland, 47 Ark. 287, 1 S. W. 516; Prickett v. Williams, 110 Ark. 632, 161 S. W. 1023; Crisco v. Murdock Acceptance Corp., 222 Ark. 127, 258 S. W. 2d 551.
Here the trial court made a finding that the actual sales price was $4,250. From the evidence it does not appear that any other price was ever discussed. In fact, the invoice shows a selling price of $4,250, and a cash payment of $1,062, which would leave a balance owed of $3,188. The invoice also shows a finance charge of $573.84, and the entire balance to be paid in 36 monthly installments of $104.50 each. As pointed out by the trial court, this arrangement amounts to usury. Crisco v. Murdock Acceptance Corp., 222 Ark. 127, 258 S. W. 2d 551.
In the case at bar the trial court said: “From the pleadings and the testimony it appears that three written instruments were executed by the plaintiff in connection with this sale: First, the sales order dated July 13 signed by the defendant and by G. Martin as salesman; second, the conditional sales contract dated July 23, 1956; third, the invoice of the shipment. From these instruments and other evidence it appears that the basic cash price of the printing press was $4,250.00; that an old press was traded in and valued at $700.00 and that the defendant at that time paid $100.00 in cash leaving a balance due at the time the sales order was executed of $3,450.00. It is undisputed that the defendant later paid the additional sum of $262.00 in cash leaving a balance cash price of $3,188.00. This is the amount the purchaser could have paid and discharged his full obligation to the plaintiff. However, as the contract indicates, he elected to pay the balance in 36 monthly payments. It was then that the sum of $573.84 was added to the net cash price as ‘finance charges’, making the total deferred payment $3,761.84. The question before the Court then is what goes to make up this sum of $573.84 and does it include an excessive amount of interest. The Court finds the interest on the net cash balance $3,188.00 for the three year period at the rate of 10 per cent per annum to be $507.58. Therefore, the amount of the finance charges is $66.26 in excess of the maximum rate of interest allowed.
“Since the contract and the other written instruments in connection therewith were prepared by the plaintiff and on forms furnished by it, the plaintiff had ample opportunity to set out in detail the amounts that constituted these ‘finance charges’, but it failed to do so. It is the opinion of the Court that the burden of explaining the various amounts that go into this finance charge rests upon the plaintiff, and in the absence of such explanation, the Court must assume that the entire amount is interest. The plaintiff’s witness Mr. Huddles-ton did offer some explanation of this item and of what is included in the monthly payments when he stated that ‘each installment covers a monthly payment of the value of the press itself, a part of the financing charge, Heidelberg Southern’s monthly cost of overriding insurance carried by Heidelberg Southern until the buyer’s obligation is fully discharged and pro-rated share of periodic service visits’ . . . However, no definite amounts are given for any of these items, and the Court thinks that they do not meet the burden that rests upon the plaintiff to explain this ‘finance charge’.”
In Jones v. Jones, 227 Ark. 836, 301 S. W. 2d 737, we pointed out in a similar situation that the trier of 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”.
Appellant next contends that the instrument involved is a Texas contract and that therefore the law of Texas should be applied, and that according to the law of that state the charge of a usurious rate of interest does not forfeit the principal. True, the order for the machinery was accepted in Texas, and it was shipped from that state, but the monthly installments were payable in New York, Chicago or San Francisco; the delivery and acceptance were performed in Arkansas, and the chattel, until paid for in full, was to be located in Arkansas, where fire insurance was to be carried and taxes were to be paid. In these circumstances, the place of performance of the contract was in this state, and the validity of its provisions will be construed according to the law of this state. Summers, Rec’r. v. Carbondale Machinery Co., 116 Ark. 246, 173 S. W. 194.
Affirmed. | [
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Carleton Harris, Chief Justice.
This is a will contest. K. W. Bullion of El Dorado died on February 12, 1957. Among Ms effects was found the will here in question. Under tbe terms of this instrument, $2,500 was left to the Roman Catholic bishop of Little Rock to be used for the best interest and welfare of the Church of the Holy Redeemer in El Dorado, and the balance of the estate was devised to appellee herein, M. E. Mullins. Appellants, a niece and nephew of the deceased, filed a petition objecting to the admission of the said document to probate as the Last Will and Testament of K. W. Bullion, alleging that K. W. Bullion lacked the mental capacity to make a will on April 16, 1954 (execution date of the will), and later amended the petition to further allege that appellee exerted and exercised undue influence on the deceased, “causing him to disinherit his kin and devise his entire properties to her.” The court was asked to declare the instrument null and void. Following the filing of a response to the petition and amendment, denying such allegations, and after various other motions and orders, the cause proceeded to trial. Subsequent to a lengthy and extended hearing, the court found that K. W. Bullion was mentally competent to make the will, that no undue influence was exercised upon him, and that the instrument should be admitted to probate as the Last Will and Testament of the deceased. From such order, comes this appeal. Five points are relied upon by appellants for reversal, the first three relating to the alleged lack of testamentary capacity, and the allegation of undue influence. Point four deals with the failure of the trial court to admit the deposition of Judge George LeOroy, a close friend of Bullion for a number of years, and it is finally contended that the purported will was not executed, witnessed, or published in accordance with law.
Before examining these specific points, it might be said that we see no need to relate the testimony in detail. Twenty-nine witnesses testified, nine for appellants, including one of the contestants, and twenty for appellee, including contestee. Some of the evidence was near revolting (certain letters from appellee to deceased), and a detailing of such evidence, and a pro longed discussion of the testimony of the various witnesses, could serve no useful purpose, since there is no unusual point in the litigation, nor any phase that could make this opinion worthwhile as a precedent. After all, the law governing testamentary capacity and undue influence has long been established in this state, and the outcome of this litigation, as far as appellants' first three points are concerned, depends entirely upon the weight of the evidence. With this preliminary statement, we proceed to a discussion of whether K. W. Bullion possessed the mental capacity to execute the will in question.
Appellants’ evidence reflected that K. W. Bullion divorced his wife in 1945. According to some witnesses, a gradual personality change began in 1946. Though having formerly been a meticulous and neat dresser, he became slovenly in his dress and habits . . . extremely hard to please . . . careless with his insurance business . . . though formerly a member of the country club and an attendant at parties, he subsequently abandoned his close friends and pulled away to himself . . . was forgetful . . . had delusions of persecution. According to Dawson Hawkins, an insurance agent in El Dorado, and formerly associated with deceased, Bullion had the idea that people were entering the office at night, and he stated that Bullion had locks changed on the doors of both the office and his home . . . witness was told by Bullion that people were coming into his home . . . this knowledge was gained by stretching wires across the backyard and observing where someone had tripped over the wires and fallen . . . people followed him in his car . . . in 1948 or ’49, Bullion began to carry a gun ... he would get mad at a waitress and require her to bring him additional glasses of water, but would then tip her $5 or $10. It was the witness’ opinion that Bullion was not mentally competent to make a will after the middle of 1949. Appellants’ evidence reflected that Bullion became interested from time to time in several young women (hereafter mentioned), in their 20’s, and in 1952, he married a yonng woman named Madolyn. She almost immediately divorced him, and received a property settlement of $50,000 and a Cadillac. According to the testimony, he became enamored, in the early part of 1953, with a yonng’ woman named Beth, and sent his nephew to determine whether this woman would marry him. The nephew, one of the appellants herein, discovered that Beth was holding $1,500 belonging to his uncle, and insisted that it be returned. This fact was later learned by Bullion, who apparently considered the nephew’s action as interference in his personal affairs, and was deeply resentful. Bullion subsequently became interested in two young women, sisters, named Duke, and sent each large sums of money. Among other witnesses, in addition to the appellant nephew, who testified that in their opinion, Bullion was not competent in 1954, were Lizzie McClellan Davis, Bullion’s part-time housekeeper (this testimony was rather weak evidence), Tom Moore, a long time friend, Dr. E. J. Munn, family physician for many years, and Carolyn Price, who was Mr. Bullion’s secretary for ten years. Father Thomas TValshe, a Priest, formerly of El Dorado, also a friend of Bullion’s, testified that he considered Bullion incompetent, and observed personality changes as early as 1938; however, he had only seen Bullion approximately a half dozen times since 1940, and had not seen him at all since sometime in 1952, just prior to his marriage to Madolyn. Probably appellants ’ strongest evidence, relative to the alleged incompetency of Bullion, was the testimony of Dr. Munn. Dr. Munn testified that in his opinion, Bullion was not competent, because of senility , to make a will in the spring of 1954. He stated that the latter had suffered from hypertension and arteriosclerosis , the latter a progressive hardening of the arterial system, causing the muscular walls of the arteries to become less pliable, and affecting the blood supply to the brain. According to his testimony, this condition is progressive, and increasingly slows down the physical and mental reactions of the person affected. Dr. Mnnn is a general practitioner, and admittedly has never specialized in mental diseases. Actually, we do not consider the Doctor’s testimony to be overly impressive. He appeared, on cross-examination, to be somewhat reluctant to give direct answers, and some of his statements were a bit surprising. For instance, he stated that “old age” might commence at the age of 40. It was his opinion that the average person 60 years of age, suffers from some degree of senility. Further, from his testimony:
“* * * Your position, as I understand, as having been stated by you, is that when a man arrives at the age of sixty-five years of age, senility has set in?
'A. Sixty-five?
Q. Yes. And this senility has set in to the point that the average person, now, now the average person, having arrived at the age of sixty-five, does not have the capacity to understand his properties and his (interrupted)
A. The valuation of everything he does, now?
Q. He doesn’t have the proper evaluation of things —(interrupted)
A. In a true business way.
Q. And he doesn’t, then, have the capacity to make a will after that time, without help?
A. Help in some way.
Q. Help in some way?
A. Is going to have to get help in some way. He is going to consult somebody. He is going to have an advisor.
Q. Suppose he doesn’t have an advisor, what do you say about that?
A. He better find one.
Q. He better find one?
A. Yes, sir.
Q. Because the average person, if he doesn’t do it, you say that that instrument is such — subject at all times to attack because he did not have the capacity, standing alone, to make that?
A. The average person.
Q. That is true, is it?
A. That’s true.”
We are prone to feel that this witness’ opinion as to the senility of Bullion was based to some extent upon his opinion as to when senility commences, rather than solely upon Bullion’s apparent mental condition at the time.
On the other hand, numerous witnesses testified that Bullion appeared normal in 1954 and thereafter, and they noted no change from his previous mental condition. Among those so testifying, were Mrs. Mary Engelke, a neighbor, Mrs. Marshall Craig, Jr., a next door neighbor, Tom Plair, who had some business dealings with Bullion, Mrs. Margaret Craig Parham, a neighbor, Joe Dunn, yard boy, T. P. Oliver, attorney of El Dorado, Sam D. Babb, president of the National Bank of Commerce of El Dorado, Jimmy Wilkins, operator of a laundry and dry cleaning plant at El Dorado, who had been acquainted with Bullion for 25 years, Eddie String-fellow, shop foreman for the Greorge Morgan Pontiac Company, who serviced Bullion’s automobile, Ned Wilfong, in the oil production business, who had transacted business with Bullion in 1953 or 1954, and Henry Crook, grocerman, who had known Bullion from 1944, and saw him nearly every day. Their testimony reflected his conduct to be entirely normal . . . the reading of daily newspapers, Reader’s Digest and Life magazines . . . listening to the radio . . . playing cards and dominoes. Witness Oliver testified that they discussed politics, baseball, and that he noted but little deterioration in Bullion’s physical appearance until five or six months before the latter’s death . . . witness noted no change in Bullion’s mental status, even on the last oe casion when they talked together, which was only a few days before Bullion’s death. Neighbors testified that he talked about current events, children, and flowers, that his conversations seemed to be normal, and he appeared entirely clear in his thinking.
While according to appellants’ evidence, Bullion did commit some acts which, to the average mind, would appear rather eccentric, and perhaps indicate an overwrought imagination, such acts would not necessarily establish an impairment of testamentary capacity. There does not appear to be any connection between the alleged delusions (if such there be), and the making of the will. In probably one of the longest opinions ever handed down by this Court, Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405, a case with 51 headnotes, the subject of testamentary capacity, insane delusions, and insanity, generally, is thoroughly discussed. Relative to delusions, the Court, quoting other Arkansas cases, said:
“The law now recognizes the fact, well established by the investigation and observation of medical experts, that there may be a derangement of mind as to a particular subject and yet capacity to comprehend and intelligently act on other subjects. * * * The fact that the grantor was a monomaniac, and possessed of insane delusions on some subjects not connected with the conveyance or the matters out of which it grew, is not sufficient to invalidate his deed. To have that effect, the insane delusion must be such as to disqualify him from intelligently comprehending and acting upon the business affairs out of which the conveyance grew. * * * It is unquestionably true that one may be possessed of a delusion concerning one subject and yet be of sound mind on all other subjects, according to the weight of modern authority, and this should be so declared as a proposition of law. * * *”
However, irrespective of this established law, in the litigation before us, as previously stated, numerous people who had daily contact with Bullion testified as to his normal behavior and mental competence, and, as stated by tbe trial court, “In addition, there is in evidence the personal records which he kept up to a short time before his death in which he minutely detailed his every day business affairs.” While irritability and an overfondness for young women are not admirable characteristics, such traits do not establish incompeteney. From a careful reading of the testimony, we are unable to say that the Chancellor’s finding that K. W. Bullion was possessed of testamentary capacity at the time of the making of the will, is contrary to the weight of the evidence.
The testimony reflects that appellee lived in Union County from the time she was ten or eleven years of age, except for several years in college, until 1944, when she joined the army as a WAC. According to her evidence, she began keeping company with Bullion in December, 1942, at which time she was 25 or 26 years of age and Mr. Bullion was in his late 50’s, and continued to keep company with him until she entered the army. Upon returning, the previous relationship was resumed, except for the period of his marriage to Madolyn in 1952. In October, 1955, appellee went to New Orleans, and subsequently to Tulsa, Oklahoma, during which time, almost daily letters were written between the parties. According to her testimony, she last saw Bullion during Christmas, 1956, and learned, for the first time, of the existence of the 1954 will. It was during this period of courtship and correspondence between the parties, that Bullion became interested, from time to time, in the other young women previously mentioned. While the evidence reflects that gifts of money were made to some of the others, appellee contends that she only exchanged gifts with Bullion, giving as much as she received. Appellants’ evidence does not establish otherwise. The contention of undue influence is principally based upon the letters written by appellee to Bullion, establishing that the two had been sexually intimate. However, the letters make no demand upon Bullion concerning money or property, and clearly establish that she knew he was interested in, and spending his money-on other women.
Our views, relative to the issue of undue influence, are well expressed in the Chancellor’s written opinion, wherein he said:
‘ ‘ In view of the letters introduced, which were written by the beneficiary under the Will, the second count of the exceptions to the Will, vis., “Undue Influence”, presents a more serious problem. However, our Supreme Court has often said that one having the testamentary capacity to make a will, is not required to mete out equal and exact justice to relations, and the motives or partiality, affection or resentment by which they are influenced are not reviewable; and if one has the capacity to make a will, he may make it as eccentric, injudicious and unjust as caprice, frivolity or revenge can dictate.
“No doubt there existed an illicit relationship between the deceased and the beneficiary, but it is also apparent that she, at no time,- over the years, took advantage of deceased by reason thereof. The testimony disclosed that when a gift was made to beneficiary by the deceased, she reciprocated by giving him a gift of comparable value. The evidence also disclosed that deceased had given other women friends large gifts from time to time, and there is no evidence that either of them gave gifts in return. It also appears from the evidence that shortly before or about the time of the execution of the Will in question, one of those women friends to whom a large gift was made was contacted by one of the contestors of this Will, and the gift was recovered by him, which no doubt, was the reason for the “falling out” of the deceased and the contestor.” As did the Chancellor, we likewise hold that such contention was not established.
It is next alleged that the court erred in refusing to admit the deposition of Judge George LeCroy, an attorney of El Dorado, a close friend, and attorney for deceased. Judge LeCroy was in bad health (which was the reason for taking the deposition), and in fact, died before the trial of the case. The court’s refusal to admit this evidence was based upon the fact that appellee did not receive sufficient notice of the taking of the deposition. While we agree with the holding of the trial court, a discussion of this contention is deemed unnecessary, since we do not consider that this evidence would have added sufficiently to appellants’ case to establish the preponderance necessary for a reversal.
This brings us to consideration of appellants’ final contention. K. W. Bullion’s will recites inter alia that he is of sound and disposing mind and memory, and the attestation clause recites that the will “* * * was signed by the said K. W. Bullion in our presence and by him published and declared as and for his Last Will and Testament and at his request and in his presence, and in the presence of each other, we hereunto subscribe our names as attesting witnesses at El Dorado, Arkansas, this 16th day of April, 1954.” The attesting witnesses are Robert H. Archer and D. M. Hawkins, and their respective addresses in El Dorado are listed. Neither of the witnesses, in their testimony, seemed to have much recollection about the occurrence. Archer testified that it appeared to be his signature, and that he had attested a will for Bullion. He stated that as far as his personal relationship with the latter was concerned, he had no reason to question the mental capacity of Bullion, and that he really could not say whether Bullion -was competent or incompetent at the time. Hawkins testified that he had witnessed several wills for Bullion between 1948 and 1954. He identified his signature to the will in question, but stated he did not think any will made by Bullion after mid-1949 was any good. We consider appellants’ contention to be without merit. The testator’s signature on the will is not questioned, and the evidence shows that the will was found among his effects. Of course, after several years, attesting witnesses rarely remember any details or circumstances surrounding the witnessing of a will, and the testimony of the attesting witnesses is not unusual in that respect. Both recognized their signatures, and Archer stated that he had no reason personally to question the testator’s competency. While Hawkins stated that he did not consider Bullion competent after 1949, it will be noted that this statement covers a general period of time, rather than the particular occasion on which the will was executed. Further, such evidence is due to be closely scrutinized. As stated in American Jurisprudence, Volume 57, page 133, paragraph 145:
“It is generally held that when an attesting witness attempts to impeach a will by testifying that the testator did not have testamentary capacity, his evidence will be received with suspicion and the utmost caution, # # *. Such testimony is deemed to reflect on the credibility of the witness. The theory is that the fact that a person voluntarily identifies himself with the execution of a will and a witness, is an indication that, in his opinion, the person executing the instrument is competent so to do.”
To the same effect is our holding in Leister v. Chitwood, 216 Ark. 418, 225 S. W. 2d 936.
Concluding, let it be remembered that approximately three years elapsed from the time of the making of the will until Mr. Bullion’s death. During a good portion of that time, appellee was away, in New Orleans or Tulsa, without opportunity to personally exert any influence upon the testator. He had every opportunity to revoke the will had he desired to do so, and the evidence reflects that he had several times revoked other wills executed by him. Also, this is not a ease wherein a child, or one living in the home and closely associated with the testator, is disinherited. The relationship of nephew and niece to uncle is not, within itself, a particularly close relationship, nor is theire evidence that would establish an unusually close connection between the parties herein. There is no evidence that would establish such a relationship between the niece and Mr. Bullion, and the record reflects that Bullion never had anything further to do with his nephew after the inci dent concerning Beth, hereinbefore referred to. On the whole, appellants have fallen short in meeting the burden of proof necessary to invalidate the will.
The judgment of the Probate Court is affirmed.
Justice Johnson not participating.
Justice Holt dissents.
The will had been discovered by the nephew, who had previously-been appointed administrator of the estate.
On re-direct examination, he testified that Bullion’s senility was more than normal senility; he was suffering from senile dementia.
Numerous physical ailments were also mentioned. | [
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George Rose Smith, J.
This is a representative suit brought by the three appellees, as officers of the Little Rock policemen’s union, to enjoin the city officials from enforcing Act 30 of 1957, it being asserted that the act is contrary to Amendment 34 to the Arkansas Constitution. William W. Leigh, as a citizen and taxpayer, filed an intervention and offered proof in defense of the statute. The chancellor held the act to be unconstitutional and issued a permanent injunction against its enforcement.
The evidence need not be recited in .detail. The city and the intervenor adduced proof to show that the declared policies of the. labor union contemplate that its members will support authorized strikes, refuse to cross picket lines, and in other respects adhere to a course of action contrary to the attitude of impartiality that the city expects on the part of its policemen. There was also testimony that 35 of the 162 members of the police force belong to the union and that the department as a whole suffered a loss of public esteem as a result of the union’s having made a $500 contribution in support of a busmen’s strike against their employer.
Amendment 34 reads in part: “No person shall be denied employment because of membership in or affiliation with or resignation from a labor union, or because of refusal to join or affiliate with a labor union, nor shall any corporation or individual or association of any kind enter into any contract, written or oral, to exclude from employment members of a labor union or persons who refuse to join a labor union.” Section 1 of Act 30 declares that union membership by police officers is inconsistent with the discipline which their employment requires. Section 2 of the act provides that no person who is a member of a policemen’s union shall be eligible to serve on any municipal police force and that union members currently serving shall be dismissed unless they sever their relationship with the union within thirty days.
If the constitutional amendment applies to public employees it cannot be doubted that the act is unconstitutional. The amendment requires that no person be denied employment because of membership in a labor union. The act requires that persons be denied employment as policemen because of membership in a labor union. The conflict is irreconcilable; the act must fall unless it can be said that public employment is not within the purview of the amendment. •
In insisting that an implied exception should be read into the amendment the appellants rely upon a rule of statutory construction, that in certain kinds of statutes general words do not include the state or its subdivisions unless that intention is stated expressly or by necessary implication. Cole v. White County, 32 Ark. 45; Linwood & Auburn Levee Dist. v. State, 121 Ark. 489, 181 S. W. 892. Although the rule is followed primarily in the interpretation of statutes, we recognized its applicability to a constitutional question in State v. Williford, 36 Ark. 155, 38 Am. Rep. 34. There the two appellees asserted the constitutional exemption of personal property to defeat a writ of execution upon a judgment in favor of the state. We concluded that no harm could come to the state if the debtors were permitted to claim their exemptions and accordingly held that the exemption clause in the constitution included the state by implication.
We perceive no compelling reason to believe that the people intended to exclude public employment from the positive, unequivocal command of Amendment 34: “No person shall be denied employment because of mem bership in . . . a labor union.” The suggestion made by the appellants, that the public interest will suffer if policemen are allowed to exert “union pressure” upon the city, fails to take into account the relatively slight extent to which Amendment 34 restricts the power of the legislature.
The pertinent clause of the amendment deals only with the denial of employment on the basis of union membership. Nothing is said one way or the other on the subject of union pressure. Left untouched, for example, is the matter of striking against the government. As the Connecticut court pointed out, after a thorough review of the cases, every judicial decision on the subject holds that there is no right to strike against the government. Norwalk Teachers’ Assn. v. Board of Education, 138 Conn. 269, 83 Atl. 2d 482, 31 A. L. R. 2d 1133. Yet in the same case the court was able to say, with complete consistency: “In the absence of prohibitory statute or regulation, no good reason appears why public employees should not organize as a labor union.” In like manner a Texas statute has been upheld which provides, on the one hand, that no person shall be denied public employment by reason of membership in a labor union, and, on the other, that collective bargaining contracts with public employees are void and that any public employee who participates in a strike forfeits his employment. Beverly v. City of Dallas, Tex., Civ. App., 292 S. W. 2d 172.
We are not convinced that the bare fact of union membership on the part of police officers presents such a threat to the public welfare that an implied exception must be written into the unqualified language of Amendment 34. Quite the contrary, when the full implications of the appellants’ argument are carefully examined, it seems clear that the suggested exception was not intended. One result of the amendment, perhaps the principal one, was to outlaw the closed shop. Self v. Taylor, 217 Ark. 953, 235 S. W. 2d 45. If the state and its subdivisions were meant to be exempted from the mandate of the amendment, there would be nothing in the con stitution to prevent the legislature from permitting policemen to maintain a closed shop, even though that type of organization is forbidden in private employment. Inconsistencies such as this can be avoided only by giving the amendment the effect that its plain words demand.
Affirmed.
McFaddin, J., concurs. | [
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Sam Robinson, Associate Justice.
Tbe issue is whether under the terms of a “binding receipt” appellant insurance company is liable on a policy of insurance, the applicant having died before the policy was issued or the premium was returned to the applicant. There is no substantial dispute as to the facts, and from a judgment in favor of the beneficiary named in the application the insurance company has appealed.
On the 12th day of October, 1953, an agent for appellant, Union Life Insurance Company, procured from Edgar Hamilton Thomas an application for a $5,000 policy of life insurance. Thomas paid $119.00 as a year’s premium in advance. The agent told him he was insured from that date and issued to Thomas what is called a “Binding Receipt”, which provides: “This receipt must not be detached unless first premium is collected in full at the time of application and shall operate as a BINDING RECEIPT under the conditions set forth below and on the reverse side hereof. Received from . . . representing premium in connection with this application for insurance in Union Life Insurance Company, said application bearing the same date and number as this receipt and which application contains applicant’s declaration that he has paid the sum hereby receipted for and that he assents to the terms of this receipt. This receipt is subject to the terms and conditions shown on the reverse side hereof and agreed to by the applicant in the application. NOTICE: This receipt shall not cover insurance protection in excess of $75,000 on any one applicant nor for any premium for the insurance applied for except the first premium thereon which in no event shall be less than the premium for two months or more than one annual premium for such insurance together with the premium for preliminary term insurance if any.”
On the reverse side: “FIRST — If a full first premium for the type of policy and amount of insurance applied for has been paid at the time of making this application, and as stated in this application, then the insurance so applied for (subject to all provisions of the policy contract applied for and in use by the company at this date) shall be effective as of the date of this application PROVIDED the applicant is on the date of this application or date of last examination, whichever is later, a risk acceptable to the Company on the plan and for the amount of insurance applied for, otherwise the payment evidenced hereby shall be returned and this receipt shall be considered null and void. (Emphasis supplied)
“SECOND — This receipt shall operate as a conditional receipt if the insurance is not effective coincident herewith under the exact conditions heretofore stipulated. If the application is not accepted exactly as made, then no insurance shall be considered in effect under the application. . . .”
In the application Thomas stated that he has or had been told that he had disorder of digestive organs such as appendicitis, stomach trouble, ulcer, etc., and heart disease or high blood pressure; that he had been confined to a hospital; that he had undergone a surgical operation; and that he had been rejected for military-service because of hypertension. No medical examination was to be made in connection with the application. The application further provides that “any policy issued shall not take effect unless and until the first premium has been paid and the policy delivered to the applicant during the good health of applicant excepting only such conditions as may be disclosed in this application and during the lifetime of the applicant (except if there is a receipt on the company’s form and bearing the same number as this application given at the time of making this application and showing that the full first premium has been paid in cash, the terms and conditions of said receipt being hereby agreed to and accepted by the applicant). That the acceptance by the applicant of any policy issued shall constitute ratification by the Applicant of any provision therein regarding war service and aviation and that the Company shall have the right to reject or amend this application and shall not be required to give cause to anyone for such action; that the company shall have sixty days from the date hereof within which to consider and act upon this application and if within such period a policy has not been received by me or if I have not received notice of approval or rejection, then this- application shall be deemed to have been declined by the Company.” (Emphasis supplied)
Soon after receipt of the application and annual premium, the insurance company notified its soliciting agent, who in turn notified Thomas, that a medical examination would be required. Thomas never submitted to a medical examination, and died on December 3, 1953, and it is agreed by the parties that if Thomas had lived sixty days the premium would have been returned to him.
The binding receipt certainly binds the insurance company to something. The applicant didn’t need to be bound by the receipt; he paid the premium in advance. The words “binding receipt” imply that the insurance company is obligated in some manner. When all of the terms and conditions of the binding receipt and the application are considered, there is some ambiguity, which must be construed against the insurance company, as the receipt and application were on the printed forms of the company.
Litigation involving similar binding receipts has been before the courts many times and the decisions are far from harmonious. There is a long annotation on the subject in 2 A. L. R. 2d 943. As an introductory statement the annotator says: “It is the practice of most life insurance companies to state in their applications that the contract of insurance shall not take effect until the application has been approved by the company, the first premium paid by the applicant, and the policy delivered.
“Since, in the absence of a specific agreement, the payment of the first premium and the delivery of the policy are concurrent acts, a period intervenes between the signing of the application by the applicant and the delivery of the policy. During this period no money has been advanced to the insurance company, and no insurance is in effect. This interval, of a few days to several weeks, depending upon the time consumed in investigation and physical examination of the applicant, in passing upon his application at the home office, and in the traveling of the application and policy to and from the home office, is highly undesirable from the point of view of the insurer as well as of the applicant. The disadvantage to the applicant consists in the fact that he is not covered by insurance during this period, while the disadvantage to the insurer consists in the fact that during the period the applicant possesses the power to revoke the offer made in his application. This disadvantage is a very real one as far as the insurer is concerned, since if the applicant decides to exercise his power, either because he chooses not to carry any insurance at all, or because he chooses to purchase it of a rival com pany, the company suffers a loss of what it has expended for the investigation and medical examination of the applicant, aside from the loss of business itself.
"To obtain some measure of protection against the applicant’s arbitrary withdrawal of his offer during the company’s extensive investigation of his insurability, the insurance companies have hit upon the idea of issuing-so-called binding receipts to the applicant upon the payment of the first premium. These binding receipts, or conditional binding receipts, as these instruments are sometimes, though less frequently, called, usually contain a provision which, in some instances, is duplicated in the application itself, to the effect that the insurance shall be considered as in force from the date of the receipt, or the date of the medical examination, provided the application is approved and accepted at the home office of the insurer. Sometimes the date of approval or of issuance of the policy is chosen as the date the policy shall become effective, and in some instances no condition is imposed upon the applicant. The exact language of these provisions varies greatly.
"The issuance of these binding- receipts effectively does away with the disadvantage threatening the insurer. They protect it in two ways: The applicant to whom a binding receipt is issued feels, as a rule, contractually obligated to perform and, should he withdraw his application, he is unlikely to resort to a law suit to recover the relatively small sum paid. In addition to achieving this primary object, the issuance of a binding- receipt has the incidental advantage for the insurer that it serves to give the insurer the use of the premium money at the earliest date possible and that it offers a selling point of which no agent fails to make the utmost in his talks with prospective customers.”
The validity of contracts- for temporary insurance in the nature of binding receipts is well established. In Cooksey v. Mutual Life Ins. Co., 73 Ark. 117, 83 S. W. 317, the court said: "It is not an unfamiliar custom among life insurance companies in the operation of the business, upon the receipt of an application for insur anee, to enter into a contract with the applicant in the shape of a so-called ‘binding receipt’ for temporary insurance pending the consideration of the application, to last until the policy be issued or the application rejected, and such contracts are upheld and enforced when the applicant dies before the issuance of a policy or final rejection of the application. It is held, too, that such contracts may rest on parol.” It will be recalled that in the case at bar the insurance went into force as of the date of the application unless the application was rejected and the premium returned to the applicant.
Appellant cites quite a few cases which it is claimed sustain the contention that under the terms of the binding receipt in the case at bar the insurance was not in force at the time of applicant’s death, but most of these cases are distinguishable from the case at bar. In Reynolds v. Northwestern Mut. Life Ins. Co., 189 Iowa 76, 176 N. W. 207, there is no showing of the failure to return the premium, as in the case at bar. In fact, just the contrary is indicated. Warren v. New York Life Ins. Co., 128 F. 2d 671, provides for medical examination, and there was no return of premium clause in the binding receipt in that case. Gonsoulin v. Equitable Life Assur. Soc., 152 La. 865, 94 So. 424, provides that the premium shall be returned on demand and surrender of receipt. There is no such provision in the receipt involved in this case. And to the same effect are other cases, such as State ex rel. Equitable Life v. Robertson, Mo., 191 S. W. 989; New England Mut. Life Ins. Co. v. Hinkle, 248 F. 2d 879. In Kronjaeger v. Travelers Ins. Co., 124 W. Va. 730, 22 S. E. 2d 689, no binding receipt was given. The applicant was given an “informal receipt”, but the terms of that receipt are not shown. In Paulk v. State Mutual Life Ins. Co., 85 Ga. App. 413, 69 S. E. 2d 777, applicant was required to take a medical examination. In that case it was said: “Since the applicant was required to take the medical examination, after which the company would determine whether or not the applicant was an acceptable risk, no valid contract of insurance arose in the absence of approval by the company.” In Leube v. Prudential Ins. Co., 147 Ohio St. 450, 72 N. E. 2d 76, 2 A. L. R. 2d 936, the receipt con tained no provision for cancellation by return of premium, and in that case the court said: ‘ ‘ Where a preliminary or temporary contract provides that it shall be operative from its date or other specified date subject to acceptance of the application or approval of the risk, it is effective from the specified date according to its terms where the company accepts the application or approves the risk; but where the company exercises its rights of disapproval in the manner specified the insurance ceases instantly, and no liability arises thereunder.” (Emphasis supplied) In the case at bar the company did not exercise its right of disapproval in the manner specified in the receipt, which was by the return of the premium.
Stonsz v. Equitable Life Assur. Soc., 324 Pa. 97, 187 A. 403, 107 A. L. R. 178, is very similar to the case at bar. In speaking of the binding receipt the court said: ‘ ‘ The purpose of this clause, ‘insurance ... shall take effect as of the date of this receipt’ was to provide an inducement for the payment by appellee of the first premium in advance and to give preliminary protection to the insured until the issuance of the policy. ... If this clause of the receipt was not intended to provide interim insurance to appellee as a separate and distinct contract from the policy to be issued, what is its effect1?” No answer has been suggested in any of the cases except that the binding receipt is a form of temporary insurance, which goes' into effect as of the date of the receipt.
In Albers v. Security Mut. Life Ins. Co., 41 S. D. 270, 170 N. W. 159, the court said: “If the company did not intend that there should be insurance effective pending the date of the application and the date of the approval of the risk and the issuance of the policy, then the company would be charging and obtaining the full amount of the premium for one year, while the period of actual insurance would be as many days less than one year as there were days intervening between the date of the application and the approval. This would not be dealing honestly with the insured. By the payment of the premium for one year an insured is entitled to insurance for one year.” And the court said, in Starr v. Mutual Life Ins. Co. of N. Y., 41 Wash. 228, 83 P. 116: “If there was to be no contract of insurance in any event until the application was approved at the home office and a policy issued thereon, it would seem entirely immaterial to the insured whether the contract related back to the date of the application or not. If he lived until the application was approved and a policy issued, it would seem a matter of indifference to him whether he had been insured during the interim between the date of the application and the date of the issuance of the policy. On the other hand, if he died before the application was approved and the policy issued, his beneficiaries would derive no benefit from the insurance. The chief object of the provision would, therefore, seem to be to enable the insurance company to collect premiums for a period during which there was in fact no insurance, and consequently no risk. ’ ’
Appellant insurance company contends that the application for insurance was rejected and the applicant so notified, and that since the application was not accepted there is no liability on the part of the insurance company. It is admitted, however, that the premium was not refunded to the applicant. The binding receipt specifically sets out the terms and conditions upon which the receipt can be considered void, and that was by a return of the premium. The binding receipt put the insurance into effect as of the date of the receipt (there was to be no medical examination) provided the applicant was a risk acceptable to the company, and if the applicant was not an acceptable risk the premium was to be returned. The premium was not returned. True, the insurance company had sixty days in which to decide whether to issue a policy, but in the meantime the temporary insurance was in force unless the company avoided that risk by returning the premium. This was not done.
Affirmed.
George Rose Smith, J., dissents. | [
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Ed. F. McFaddin, Associate Justice.
This appeal stems from an action for breach of warranty. On April 7, 1951 appellant, J. B. Wood, for a consideration of $14,000.00, executed a General Warranty Deed to the appellees, J. Paul Setliff and Mary Dean Setliff, his wife. The deed described by metes and bounds a tract of land in the City of El Dorado fronting eighty feet on Northwest Avenue and having a depth of 220 feet. On April 5, 1956 (just a few days prior to five years from the date of the above deed) the Setliffs filed this action against Wood for breach of warranty.
The complaint alleged that a considerable portion of the property described in the deed from Wood to Setliff was at the time of the conveyance and at all times thereafter a public street or parkway; and that as to such portion there was a breach of the covenant of warranty. Damages were claimed in the sum of $7,650.00 and interest. The defendant’s amended and substituted answer admitted some of the allegations in the complaint and denied other allegations. Wood cross-complained against his grantor, Haas, for breach of the covenant of warranty in the deed under which Wood held.
On Wood’s motion, the entire proceedings were transferred to the Chancery Court, where Haas pleaded the 5-year statute of limitation against Wood’s cross-complaint. The Chancery Court tried all issues; and the results were: (1) a decree in favor of the Setliffs and against Wood for $7,650.00 damages, plus interest from January 6, 1958 (the date of the decree), plus $1,000.00 attorney’s fee; and (2) a decree sustaining Haas’ plea of limitation against Wood’s cross-complaint. From that decree two appeals have resulted. Case No. 1709 in this Court is the appeal by Wood in the Setliff matter; and in that case the Setliffs have cross-appealed. Case No. 1710 in this Court is the appeal by Wood in the Haas matter. We dispose of both appeals in this one opinion.
Case No. 1709 — Wood v. Setliff
I. Dedication. Wood now challenges the prior dedication of a portion of the 80x220-foot tract. He does not deny that the tract is in Block “A” of the Plat, but claims — here for the first time — that the parties who signed the dedication and placed the Plat of record in 1942 were not shown to have been the owners of Block “A.” This contention in this Court comes too late in view of the admissions contained in Wood’s answer. The tract of 80x220 feet, as described in the deed from Wood to the Setliffs, contained 17,600 square feet; but when the previously dedicated public streets and park ways are taken from the described 80x220-foot tract, there is left a tract only 50x100 feet or a total of 5,000 square feet; so the Setliffs did not receive what was described in the deed to them because the public streets and parkways had admittedly been dedicated.
II. Eviction. Wood claims there was no eviction of the Setliffs from the streets or parkways. It was proved that the City of El Dorado accepted the dedication of the public streets and parkways. Our cases hold that when title is in the sovereign the eviction is as of the date of the conveyance. Abbott v. Rowan, 33 Ark. 593; Selden v. Dudley E. Jones Co., 74 Ark. 348, 85 S. W. 778; Thompson v. Dildy, 227 Ark. 648, 300 S. W. 2d 270. In the case at bar the title to the public streets and parkways was in the City of El Dorado; and adverse possession could not be acquired against the City. City of Magnolia v. Burton, 213 Ark. 157, 209 S. W. 2d 684. The municipality is a creature of the State; and because of legislation as to the impossibility of adverse possession of streets {% 19-3831 Ark. Stats.) a municipality now occupies, insofar as the said streets and public parkways are concerned, the same status as the State occupies. Therefore, the warranty was breached as of the date of the conveyance from Wood to the Setliffs; and this action was brought within five years thereafter. See § 37-213 Ark. Stats.; Bird v. Smith, 8 Ark. 368; and Smiley v. Thomas, 220 Ark. 116, 246 S. W. 2d 419.
III. Damages. Witnesses testified, and the Court found, that the amount the Setliffs paid for the entire 80x220-foot tract was $14,000.00; and that the 50x100-foot tract (which was left after the streets and parkways were excluded) was worth only $7,750.00. So the Setliffs’ damage for actual loss of land was $6,250.00; and this portion of the decree was correct.
As to damages for required removal of a building, the situation is different. The evidence disclosed that when Wood conveyed to the Setliffs there was a “drive-in” building located on the 50xl00-foot tract as to which the title was good. Shortly thereafter, the Setliffs moved this “drive-in” building several feet and located it on what was and is a portion of the public street or parkway. In this suit, the Setliffs claim that it will cost them $1,400.00 to move the “drive-in” building back to the 50xl00-foot strip. They prayed and received judgment for $1,400.00 for such expense of removal. The Trial Court was in error in allowing such recovery. The Setliffs had constructive notice of the public street or parkway, and moved the “drive-in” to such location of their own volition. Other reasons exist for such refusal to award re-removal damages; but the factual situation as detailed is a sufficient answer. So, as to the $1,400.00 item, the decree must be reversed.
IV. Attorney’s Fee. The Setliffs claimed, and the Trial Court allowed them, $1,000.00 for attorney’s fee in bringing and prosecuting the present suit against Wood for breach of the covenant of warranty. The Trial Court was in error in allowing such fee. It is true that generally a grantee who pays a reasonable attorney’s fee, in unsuccessfully defending his title against a third party, may recover such attorney’s fee from his grantor in an action for breach of warranty. Brawley v. Copelin, 106 Ark. 256, 153 S. W. 101; Ark. Trust Co. v. Bates, 187 Ark. 331, 59 S. W. 2d 1025; and Bridwell v. Gruner, 212 Ark. 992, 209 S. W. 2d 441.
In the case at bar the Setliffs did not pay any attorney’s fee in defending their title against a third person. The Setliffs conceded that the title to the public streets and parkways was in the City of El Dorado. There has been no other litigation; and the Setliffs are here seeking to recover damages from Wood for breach of the covenant of warranty. They are not entitled to have Wood pay their attorney’s fee for establishing such a breach in this direct proceeding. O’Bar v. Hight, 169 Ark. 1008, 277 S. W. 533. The decree must be reversed insofar as it allowed $1,000.00 for attorney’s fee.
V. Interest. The Setliffs claimed that they were entitled to interest at 6% from 1951, the date of their deed. The Trial Court allowed the interest only from January 6, 1958, the date of the decree, and the Setliffs have cross-complained on this matter of interest. To sustain their cross-appeal the Setliffs, inter alia, quote (1) from the case of Quinn v. Lee Wilson & Co., 137 Ark. 69, 207 S. W. 211, wherein we said: “. . . where title is in the Government the covenant of warranty is deemed to he broken as soon as it is made . . and (2) from our case of Fox v. Pinson, 182 Ark. 936, 34 S. W. 2d 459, 71 A. L. R. 583, wherein we said: “. . . we think she should be entitled to recover under the facts in the record the sum of $11,950.00 and interest thereon, from May 21, 1925, the date of her constructive eviction . . From these cases, and others, appellees contend that interest runs from date of the constructive eviction, which was the date of the deed.
But the facts in the case at bar make it clearly inequitable for the Setliffs to recover any interest except from the date of the decree. We mention the following: (a) the Setliffs at all times enjoyed possession of the entire 80x220-foot tract; (b) there is no showing that they have paid out any amount to the City of El Dora-do for either lawful or unlawful use of the public streets or parkways; and (c) the amount of the Setliffs’ recovery for breach of warranty was for only a portion of the conveyed premises and the amount of the damages to be recovered was unliquidated until the entry of the decree. So the cross-complaint of the Setliffs, on the matter of interest, is without merit.
CONCLUSION
Prom the foregoing, it follows that the Chancery decree in the case of Wood v. Setliff (No. 1709 in this Court) is affirmed, except as to (a) the item of $1,400.00 for removal of the building; and (b) the item of $1,000.00 for attorney’s fee. As to these items the decree is reversed. This being an equity case, we adjudge the costs of the appeal against the appellant; and the cause of Wood v. Setliff is remanded to the Chancery Court to reinvest it with jurisdiction.
Case Ho. 1710 — Wood v. Haas, et al.
Setliff sued Wood for breach of warranty on April 5, 1956; and on May 28, 1956 Wood filed his cross-complaint against Haas, et al., as his grantors. Wood alleged that on February 2, 1948 Haas et al. conveyed to him by General Warranty Deed, and he sought damages from his grantors for breach of covenant of warranty (since the dedication to the City of El Dorado was in 1942). Haas et al. demurred to Wood’s complaint, saying, inter alia:
“If there has been a breach of the warranty contained in the Deed, dated February 2, 1948, said breach occurred at the time of the delivery of the said Deed, and same occurred more than five years prior to the filing of said cross-complaint, and any right of action thereunder is barred by the Statute of Limitation. ’ ’
The demurrer was sustained; the cross-complaint dismissed when Wood declined to plead further; and Wood has appealed. The Trial Court was correct in sustaining the demurrer. In the case of Wood v. Setliff (No. 1709 supra), we held that the rule of constructive eviction — when title was in the sovereign — applied when the title was in the City. So, when Haas et al. conveyed to Wood in 1948 there was instantly a breach of warranty. Wood’s cause of action against Haas et al. matured in 1948, and was governed by the 5-year statute of limitation (§ 37-213 Ark. Stats. and Bird v. Smith, 8 Ark. 368) and was barred by limitation when Wood cross-complained against Haas et al. in 1956. Limitation appeared on tbe face of tbe cross-complaint, and, therefore, conld be raised by demurrer. See Cullins v. Webb, 207 Ark. 407, 180 S. W. 2d 835.
The decree in Case No. 1710 is affirmed.
Johnson, J., not participating.
In his answer Wood specifically admitted all of the following allegations in the Setliff complaint: “That Parkview Realty Corporation, Marguerite Trull McWilliams, W. H. Hanna and Mary Sue Hanna, his wife, and F. L. Dumas dedicated by Deed to the City of El Dorado, Arkansas, and to the public use therein forever, all the streets, pai’k area, travel ways and/or drive-arounds of the width, length and location as reflected by Plat attached thereto and recorded in Plat Book 2, Page 28 of the Record Books of Union County, Arkansas. That this Dedication Deed was dated May 11, 1942, and filed for record in the office of the Circuit Clerk of Union County, State of Arkansas, on May 11, 1942. That the said Dedication Deed was properly accepted by the City Council of El Dorado, Arkansas, on May 24th, 1942. That the Plat was later corrected as reflected by the Plat recorded in Plat Book 2, Page 33, of the Record Books of Union County, Arkansas. That a copy of said Dedication Deed and corrected Plat is attached hereto marked Exhibits B, C and D respectively and made a part hereof. In the Deed of Dedication and Plats hereinbefore referred to, included amongst the lands dedicated as streets, park area, travel ways and/or drive arounds, was an area around Block A and the said Block A was designated as business property; that this land for public use around said Block A was 70 feet on the West, 30 feet on the North and South and 50 feet on the East of the said Block A.”
In 61 A.L.R. 10 there is an exhaustive annotation entitled, “Measure of damages for breach of covenants of title in conveyances or mortgages of real property”; and on page 174 and following of said annotation, this statement appears: “Of course, where the damages are assessed at the value of the land at the time of the eviction, the question of allowance of interest is of no importance, since it is clear that no interest is recoverable, the damages not being liquidated and capable of ascertainment prior to judgment.” And on page 180 of the same annotation, this statement appears: “Where the covenantee has had possession of the land under an instrument containing a covenant of seisin, he cannot, as part of the damage for breach of this covenant, recover interest for any period prior to his eviction, without proof that he had to account to the holder of the paramount title for mesne profits, and his recovery of interest is limited to such period of time for which he may show that he had to account for these profits.” | [
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Sam Robinson, Associate Justice.
The amount of an attorney’s fee is involved here. Appellant, Victor G. Gordy, retained H. B. Stubblefield, an attorney, to attempt the collection of disability benefits on six policies of insurance. Gordon contends that Stubblefield was to receive as his fee one-third of the accrued benefits, and Stubblefield contends that he was to receive one-third of the full amount collected on the policies, including the amount to be paid in the future, less the amount payable in the event of death. Prom a judgment in favor of Stubblefield, Gordy has appealed.
Three policies were issued to Gordy by The Equitable Life Assurance Society of the United States. Two of these policies are involved in this appeal; these policies provide for waiver of premium and for disability benefits of $100 per year each. . Suits were filed on the Equitable policies, but the insurance company made a settlement before the trial for the full amount the policyholder claimed was due, and judgment was entered for the accrued benefits less that part barred by the statute of limitations. The trial court assessed a 12% penalty and an attorney’s fee of $750. The insurance company appealed to this court, contending the attorney’s fee was excessive, and Gordy, represented by Stubblefield, cross-appealed, contending it was not enough. The judgment was affirmed. Equitable Life Assur. Society of U. S. v. Gordy, 228 Ark. 643, 309 S. W. 2d 330.
The present action pertains to future benefits payable under two of the policies. The judgment in the circuit court established the validity of Gordy’s claim for disability benefits. When payment of benefits accruing subsequent to the judgment became due, the insurance company filed an interpleader in chancery court and deposited in court the amount due under the policies. The interpleader alleged there was a controversy between Gordy and his attorney, Stubblefield, regarding the amount due each. Stubblefield contends that he should have as his fee one-third of all sums collected and to be collected, including future benefits, but exclusive of death benefits, and that Gordy was to get two-thirds of everything, including the attorney’s fee and penalty. Gordy contends that the attorney’s fee was to be one-third of the accrued benefits and one-third of the attorney’s fee and penalty. The chancellor held that Stubblefield is entitled to one-third of the future bene- ■ fits, as well as one-third of the accrued benefits, and Gordy has appealed.
Stubblefield maintains that if his agreement with Gordy is not a binding contract, he is entitled to one-third on a quantum meruit basis. So far as the terms of the agreement are concerned, the parties were before the chancellor, and that court was in much better position than this court to judge their credibility; and we cannot say a finding that the agreement was for an attorney’s fee of one-third of future benefits, as well as those which had accrued, is against the preponderance of the evidence. Moreover, if the agreement is disregarded and the attorney’s fee is assessed on a quantum meruit basis, one-third of everything recovered, including future benefits but excepting death benefits, is not too high, considering all the circumstances. In fact, it appears that the odds were greatly against Stubble-field’s being able to bring the matter to a successful conclusion. The courts have approved many contracts for attorneys’ fees calling for 50% of the amount recovered where the prospects of making recovery were much greater than were Gordy’s for collecting disability benefits under the terms of the policies. In order to collect on the policies, it was necessary to show that Gordy’s disability began before he reached age 60. He had reached that age in 1952, and his alleged disability began in 1949. He did not employ Stubblefield, however, until 1955. Undoubtedly the statute of limitations had run on part of the claim; the whole thing had become somewhat stale, and many lawyers would not have accepted employment on a contingent basis. Stubblefield was faced with the prospect of long, drawn out, strongly contested and expensive litigation, with a good chance of finally receiving no fee at all.
The record shows that Stubblefield advanced a large part of the necessary expenses of the litigation, and there is no showing he would have recovered this money if he had lost the case. Apparently he did a tremendous amount of work on the case. It was shown that his files pertaining to the matter were voluminous. Some of the litigation was in federal court, and after winning his case there before a jury, Stubblefield had to go to the circuit court of appeals; and, as heretofore mentioned, he had to handle one angle of the case in this court. All of this work could have been anticipated from the beginning. In addition, it appears that there must have been grave doubt about being able to prove Gordy’s alleged disability. In short, it appears to have been a pretty weak case. And, in agreeing to handle it on a contingent basis, Stubblefield was taking a long gamble on collecting a fee.
Appellant cites Johnson v. Rolf, 208 Ark. 554, 187 S. W. 2d 877, and other cases, to the effect that equity regards the relation of attorney and client in much the same light as that of guardian and ward, and will relieve a client from hard bargains from an undue advantage secured over him by his attorney. But the rule announced in those cases has no application to the facts in the case at bar. Here it does not appear that Gordy was overreached in any particular. On the contrary, it appears that he was very fortunate in being able to engage, on a contingent basis, the services of a very able lawyer who, through energy, perseverance and tenaeiousness, brought his client’s litigation to a successful conclusion. The future disability benefits Gordy will receive are just as much the result of the lawyer’s work as the accrued benefits.
Affirmed. | [
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Carleton Harris, Chief Justice.
The question in this case is whether, under the facts hereinafter enumerated, the State of Arkansas was entitled to forfeiture on the bond of James A. “Dock” Bowling, said bond having been executed by appellants, Russell James and Earl Bell, along with Bowling.
Appellant Bowling was arrested in the Western District of Clay County on a charge of possessing stolen goods, and was released upon making bail in the sum of $5,000, said bond being executed by appellants J ames and Bell. Upon his release, Bowling left Clay County, and went to his home in Missouri. The trial was set for January 21, 1957, but was continued and reset for April 22, 1957, due to the illness of one of Bowling’s attorneys. Prior to the new date for trial, Bowling was arrested in Missouri on a fugitive warrant from Arkansas (relating to a different charge from the one for which the bond had been executed), and refused to waive extradition. Subsequently, he was charged with Burglary and Larceny in Dunklin County, Missouri, and with Receiving Stolen Property in Pemiscot County, Missouri. On April 22nd, when Bowling’s case was set for trial in Clay County, said appellant was in the Dunklin County jail at Kennett, Missouri, having failed to make a $2,000 bond. Forfeiture on the bond in the Clay County case was declared by the court, but the cause was set for hearing on June 10, 1957, for appellants to show cause why said bond should not be forfeited. Following a continuance until July 1st, the court ordered, after a hearing, that the forfeiture should not be set aside, and entered judgment for the State of Arkansas against appellants, both jointly and severally, in the sum of $5,000. From snch judgment comes this appeal.
For reversal of the court’s judgment, appellants first assert that the bond should not have been forfeited because “it was no fault of the principal in said bond, or his bondsmen, that the principal did not appear for trial on the 22nd day of April, 1958,” and secondly, that the bondsmen were excused for the appearance of the principal of this bond by reason of an act of law.
The bondsmen contend that they did everything within their power to have Bowling present in Clay County on the day of the trial. The record reflects that the sheriff of Dunklin County was contacted by James, in an effort to persuade the sheriff to permit Bowling to return to Clay County for trial. Tester Robinson, a resident of Frisbee, Missouri, at the request of James, talked with the sheriff, and the judge of Dunklin County, in an attempt to get Bowling released, but was also unsuccessful. A like request was made of the sheriff and prosecuting attorney of Pemiscot County by Clyde Maloney of Pascóla, Missouri, and J. B. Light of Haiti, Missouri. According to appellant James, Bowling was willing to return to Clay County, stand trial, and return to Dunklin County for trial if acquitted in Arkansas; if convicted in Arkansas, Bowling had agreed to voluntarily go back for trial after serving his sentence.
Admittedly, a bail bond was fixed, as prescribed by law, by the Missouri authorities, prior to the forfeiture taken in the Circuit Court of Clay County. Appellants state that this bond was not made because Sheriff Scott of Dunklin County stated that if Bowling made the bond, another charge would be filed against him. According to witness Robinson, “he said he was going to keep him. Said, ‘Yes, if you want to make a bond to release him, but there will be others.’ ” That he “* * * would file on him as fast as he would get loose, be $6,000 in bonds to get him over here.”
It is argued that the Missouri officials held Bowling in jail without just cause, and that his rights under the Missouri constitution, relative to hail, were violated. Suffice it to say that we have no jurisdiction of the Missouri counties, nor any control over the action of their authorities; however, we certainly see nothing unreasonable in the sheriff’s refusal to permit Bowling to leave without first making proper bond to assure his return to Missouri. No application for a writ of habeas corpus was made by appellants’ counsel, nor was any bond offered. Likewise, Bowling refused to waive extradition on the second warrant from Arkansas. Appellants’ position is unsound principally, however, for the reason that the bondsmen made no attempt to keep the principal within the jurisdiction of the state of Arkansas. Upon the making of the bond, Bowling, without any protest from his bondsmen, as far as the record shows, forthwith went to Missouri. In becoming sureties on the bond, James and Bell, of course, assumed the risk of Bowling’s failure to return to Clay County for trial. A bondsman may well consider, when executing bail, many factors that might prevent the return of the principal, vis., the general character and reputation of the defendant, the seriousness of the charge against him, the probabilities or improbabilities of successful prosecution, and the possibility of the principal becoming involved in further trouble, as happened in this instance.
As authority for their contention that the bond should not have been forfeited, appellants cite the case of Belding v. State, 25 Ark. 315. That case is readily distinguishable from the instant cause. In the Belding case, the federal government arrested the principal within the state of Arkansas; furthermore, there was only a provisional civil state government at the time, which was subject to military authority. In the litigation before us, appellant voluntarily left this state, thus depriving Arkansas of its jurisdiction over him.
While there are a few cases to the contrary, the general rule is that in order for a surety to be discharged on his bail bond for the reason of an act of law, the act of law must be operative and obligatory in the state where the bond is given. As stated in American Jurisprudence, Volume 6 (Revised), page 133, paragraph 174:
“Generally, sureties on a bail bond or recognizance are excused, and a judgment of forfeiture will be vacated, where fulfillment of the requirements of the bond is prevented by an act of law. An example of an act of law discharging the sureties on a bail bond or recognizance is the abolition of the court in which the accused is obligated to appear. However, an act of law which will relieve the sureties as a matter of right must be an act of law operative in the state where the obligation was assumed, and obligatory in its effect upon her authorities. ’ ’
In the Re-statement of the Law of Security, page 559, paragraph 207, we find:
“Where at the time for the principal’s appearance he is in custody in another state, the surety on his bail bond is not discharged unless the principal has been delivered to the other state by action of the first state, or removed there by federal authority.”
The following comment is made:
‘ ‘ The surety, having custody of the principal, should prevent his leaving the jurisdiction. If the principal nevertheless leaves, and is arrested in another state, the surety remains liable on his bond. If, however, the principal has been surrendered to another state, either as the result of extradition or by the voluntary action of the officers of the jurisdiction in which the bond has been executed or has been removed by federal authority to another jurisdiction, the surety has a defense because the non-appearance of the defendant is due to the state itself or to another authority which the surety cannot oppose.”
The same view was taken by this Court in Adler v. State, 35 Ark. 517, wherein Chief Justice English, speaking for the Court, said:
“Imprisonment of the principal for crime, therefore, will generally release the bail, the state having taken him out of their possession; and so will the surrendering of him to the authorities of ahother state as a fugitive from justice. But if they permit him to go into another jurisdiction, and there he is arrested and imprisoned, they will not be released; for they should have kept him within his and their own state. ’ ’
The Chief Justice then commented on the Belding case, (heretofore mentioned as being largely relied upon by appellants), as follows:
"Belding v. The State, 25 Ark. 315, the only case cited by counsel for appellants to sustain the defense set up in the third paragraph of the answer, is not in point. There the principal in the recognizance was seized by the military authorities of the United States of this department, and imprisoned in Little Bock, and then sent to Vicksburg and imprisoned there, and so prevented, without the fault of the surety, from appearing in the circuit court of Hot Spring county, at the September term, 1867, to answer an indictment, as required by the condition of the recognizance; and this was held to be a valid defense for the surety. There the principal was not prevented from appearing by the act of the obligee in the recognizance (the state), but by a force claiming to act under authority of the federal government, which neither the state nor the surety could control.”
It appearing that appellants, under the law, are not entitled to the relief sought, the judgment of the Circuit Court is, in all things, affirmed.
Also, a holdover warrant had been placed with Dunklin County by the sheriff of Pemiscot County relating to the Receiving Stolen Property charge.
Sheriff Scott stated he told those who inquired about the bond, that though it were made, he would still have to turn Bowling over to the Pemiscot County sheriff, because of the holdover warrant. Bond in the Pemiscot County case had been set at $4,000. | [
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George Rose Smith, J.
This is a three-sided lawsuit arising from a traffic collision involving a car owned by the appellees Hudspeth, a truck owned by the appellee Steen, and a car owned by the appellant Conway and being driven by his employee, the appellant Bert Smith, Jr. By the pleadings each set of parties charged the other two with negligence and sought damages from the other two. The jury attributed the collision solely to the negligence of Conway’s employee, Smith, and judgments were accordingly entered in favor of the Hudspeths and in favor of Steen and his daughter, who was riding with him at the time. The appellants question the sufficiency of the proof, the court’s rulings upon the admissibility of evidence, and one of the instructions to the jury.
The accident happened on the afternoon of January 28,1957, at a point on Highway 65 near the western edge of the city of Marshall. Steen was traveling west in his truck and had slowed down with the intention of turning to his left across the highway to enter a service station. The Conway car was following Steen and the Hudspeth car was approaching from the opposite direction. The pivotal question of fact at the trial was the order in which Steen’s truck collided successively with the two cars. That is, did the Conway car strike the truck from behind and knock it into the path of the Hudspeth car, or did Steen himself drive slightly across the center line into the lefthand traffic lane, where his truck was hit by the Hudspeth car and thrown back into the path of the Conway vehicle? The jury evidently adopted the view first mentioned.
In questioning the sufficiency of the evidence the appellants insist that Steen’s testimony cannot be reconciled with the physical facts. Steen testified that he had not begun Ms turn when he was struck from behind, and from this statement the appellants argue that a blow from the rear would have thrust the truck straight ahead instead of leftward. This reasoning is sufficiently answered by the fact that the Conway car’s damage was to the left front end and the truck’s damage to the right rear end. The jury doubtless concluded that the truck received a glancing blow which caused it to swerve to the left.
Conway asked for a directed verdict, contending that his adversaries had not proved that Conway’s employee, Smith, was acting within the scope of his employment when the collision occurred. We thiMt the court was right in holding that the proof made this an issue for the jury’s determination.
Smith, a boy of seventeen, was employed from time to time to wash cars and do odd jobs at Conway’s used car lot. On the afternoon of the accident a man named Karns had become ill at Conway’s place of business. Conway and Smith drove Karns to a hospital, where he obtained medicine. After leaving the hospital Conway alighted from the car and instructed Smith to take Karns home “and come right back.” Smith says that he drove Karns to his home, and then “I started out to see about my granddad,” who lived perhaps a half mile west out Highway 65. Smith states that he was on his way to his grandfather’s house when the accident happened.
We are unable to say that the undisputed proof required the jury to find that Smith had left the course of his employment. In the first place, the geograpMcal setting is not clearly disclosed by the proof. Conway’s used car lot, to which Smith was to return, is in the downtown business district of Marshall, and the collision took place within the city limits, near the western edge of town. We are not told, however, where the Karns house is, except that it is in the north part of town, north of Highway 65. If the house were due north of the point of the accident Smith’s deviation from the most direct return route might have been so slight as to support a finding that there had been no departure from the master’s business. Cahill v. Bradford, 172 Ark. 69, 287 S. W. 595.
In the second place, Conway testified that he had another place of business on beyond the point of the accident and that he himself made numerous trips there every day. Since both Conway and Smith were interested parties, the jury was not required to accept Conway’s uncorroborated statement that he instructed Smith to come right back or to accept Smith’s unsupported testimony that he had started to see about his grandfather. Bullock v. Miner, 225 Ark. 897, 286 S. W. 2d 328. Inasmuch as the route that Smith was traveling led both to the object of his personal mission and to his employer’s second place of business, it was for the jury to say which destination Smith had in mind when he began the trip.
Several contentions relate to the admissibility of evidence. Thomas Martin, who was the driver of the Hudspeths’ car, testified on direct examination that after the accident he asked-Steen whether he had driven across the center line or had been knocked across, and Steen said he believed he was knocked across. No objection was made at the time, but at the close of Martin’s cross examination counsel for Conway and Smith asked that the testimony be excluded. The court instructed the jury that Martin’s statement of what Steen had said should not be considered as evidence against Conway and Smith, but it might be considered for any other purpose.
We perceive no error in the court’s ruling. Since the objection was not interposed in time to prevent the jury from hearing the statement, the court’s later admonition to the jury was as favorable a ruling as the appellants could then expect and in effect sustained their objection. Their present argument is that the statement should have been excluded altogether; but the statement was competent against Steen as an admission, for there is no requirement that the admissions of a party to the suit must also be declarations against his interest in order to be admissible. Wigmore on Evidence (3d Ed.), § 1048. What we have said also disposes of a similar objection that was made during the testimony of Gerald Bert Hudspeth.
The appellants called as a witness a trained state police officer, who had investigated the accident before the vehicles were moved, and attempted to elicit his opinion as to the order in which the collisions occurred. When the court sustained an objection to this testimony, counsel stated that the officer would have testified that in his opinion the Hudspeth car struck the Steen truck and knocked it backwards against the Conway car.
We do not agree with the appellants’ contention that the proffered testimony was admissible as the opinion of an expert. It has been said that the courts look with disfavor upon attempts to reconstruct traffic accidents by means of expert testimony, owing to the impossibility of establishing with certainty the many factors that must be taken into consideration. Moniz v. Bettencourt, 24 Cal. App. 2d 718, 76 P. 2d 535. In the case at hand the officer was not asked to describe every physical fact that he had seen and then to explain his deductions, in the manner that ballistic experts often explain their conclusion that a certain weapon fired a certain bullet. Here the officer was asked his opinion on the basis of the position of the vehicles, the damage to them, “and other physical evidence found at the scene.” In the absence of anything to indicate that it was beyond the jurors’ ability to.understand the facts and draw their own conclusions, there was no need to resort to expert opinion. Mo. Pac. R. Co. v. Barry, 172 Ark. 729, 290 S. W. 942.
The appellants sought to show that Steen, after the Hudspeths had filed suit, said to Conway: “I don’t want to get in a lawsuit over this; he said my pickup is a total wreck, and I am willing to sell the salvage and pay it on it, if we can get it stopped.” The trial court correctly ruled the statement to be inadmissible, for it in dicates only a willingness to compromise and does not amount- to an unqualified confession of fault. Folsom v. Watson, 217 Ark. 158, 228 S. W. 2d 1006.
J. L. Hensley, a witness for the appellants, testified that he was following the Conway car and saw the collision. On cross examination he denied having told Steen that he had not seen the collision. On rebuttal Steen was permitted to testify that he had talked with Hensley and that Hensley had said that he did not see the accident happen.
It is now insisted that no proper foundation for Steen’s rebuttal was laid, in that Hensley was not informed of the exact time and place of his asserted statement to Steen. In fairness to the trial court this contention cannot be sustained. The only objection to Steen’s rebuttal was this: “If the court please, the statement to him by J. Lee Hensley is not admissible.” The court ruled that the evidence was competent for the sole purpose of going to Hensley’s credibility, and the objection was pursued no further. We think the court reasonably understood the objection as being based upon the hearsay rule, and upon that understanding the ruling was correct. If counsel thought that no proper foundation had been laid, the point should have been brought specifically to the court’s attention. Had that course been followed the omission now complained of might readily have been supplied in the trial court. See Degen v. Acme Brick Co., 228 Ark. 1054, 312 S. W. 2d 194.
Finally, it is contended that the court should not have given an instruction on the issue of Smith’s possible negligence in following too closely behind the Steen truck. It is true that no eyewitness testified that Smith was too close, as neither Martin nor Steen saw the Conway car before the accident. But Smith testified that he applied his brakes as soon as he saw the truck coming back toward him, and the proof is that his skid marks were only twelve feet in length. From this evidence the jury may have concluded that Smith was not keep ing a reasonable distance behind the vehicle ahead of him.
Affirmed.
William J. Smith, J., not participating. | [
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George Rose Smith, J.
The appellee owned a truck and a trailer that were almost completely demolished in a collision in May of 1954. He contended that the appellant had insured the property, hut the appellant denied that a policy of insurance was in force upon either vehicle at the time of the collision. This action against the insurance company was filed in the latter part of 1954, but the case was not brought to trial until April, 1958. The jury’s verdict for the plaintiff was for slightly less than half of the sums sued for.
We are unable to agree with the appellant’s principal contention, that it was entitled to a directed verdict. The two vehicles were assertedly insured separately and must be discussed separately. The appellant had previously insured the truck, but Mitchell canceled that coverage in November, 1953. He says that about three days before the collision in the following May the appellant’s general agent, Gibbs, stopped at Mitchell’s place of business, mentioned a collision that Mitchell’s brother had been involved in, and asked if Mitchell was still insured by Gibbs’ company, the appellant. Mitchell testified: “I said, ‘Bill, I have canceled the fifty dollar deductible on my truck and I would like to put it back on there,’ and he said, ‘All right,’ and he got about fifty feet away and he said, ‘Bob, do you still want the same coverage you had before,’ and I said, ‘Yes,’ and he said, ‘O.K., I will see you in a few days.’ ” This testimony is corroborated by a man who was then working for Mitchell. Gibbs remembers the discussion about Mitchell’s brother, but he says that the renewal of Mitchell’s policy was not mentioned.
We think the issue was properly submitted to the jury. It is conceded that Gibbs was a general agent and had the power to bind his principal by an oral promise to insure the truck. An agreement to renew a prior policy upon the same terms is sufficiently definite to constitute a valid contract. King v. Cox, 63 Ark. 204, 37 S. W. 877; Aetna Ins. Co. v. Short, 124 Ark, 505, 187 S. W. 657. The jury were justified in interpreting Gibbs’ statement, “O.K., I will see you in a few days,” as an acceptance of Mitchell’s offer and as an indication that a written policy would be issued in due course. It was not essential for the plaintiff to introduce a copy of the earlier policy, so that the jury might know its terms; for the appellant does not contend that the collision loss would not have been covered by that policy.
The trailer was mortgaged to a bank, which required its borrowers to carry insurance. The trailer was undoubtedly insured by the appellant during the year ending January 19, 1954, but the appellant contends that the policy then lapsed for nonpayment of the renewal premium. Mitchell’s statement that he paid the premium is bolstered by the fact that the bank received no notice that the policy had lapsed and by the further fact that the appellant recognized its liability after the collision by paying the bank the amount of its loan. This phase of the case involved only a question of fact, to be decided by the jury.
Two days after the loss occurred the insurer took a written statement from Mitchell about his conversation with the general agent, Gibbs. It is now contended that the trial court erred in refusing to permit the appellant to introduce this statement: It does not appear, however, that the court actually refused to admit the statement. During Mitchell’s cross-examination the appellant’s counsel questioned him in detail about the contents of the statement and at one point asked Mitchell if he would agree to introduce the document with his testimony. Upon objection by Mitchell’s attorney the court ruled that the statement would not be introduced with Mitchell’s testimony unless Mitchell agreed to it, but the court added: “Of course, you understand the court is not holding that it is incompetent.” Despite the court’s apparent willingness to allow the written statement to be introduced later, counsel did not pursue the matter further and hence cannot now contend that an error was committed.
Complaint is also made of an instruction which stated in substance that if Mitchell and Gibbs both knew the description of the truck, its value, the risks to be covered, and the amount of the premium, and if upon that knowledge Gibbs unconditionally agreed that his principal would indemnify in return for Mitchell’s promise to pay the premium, then a contract of insurance was completed even though its terms were not reduced to writing. Only a general objection was made to this instruction, and we do not perceive that it is inherently erroneous in any respect.
Affirmed.
Johnson, J., not participating. | [
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Paul Ward, Associate Justice.
By this appeal Alma G-ood Brigham challenges a decree of divorce granted to her husband, Earl Jesse Brigham.
Since the parties were married in New Orleans, April 2, 1942, while Earl was in the Navy, they have apparently had marital difficulties on numerous occasions. For a large part of the intervening years they did not live together because appellee was serving in the Navy, having re-enlisted some 2 or 3 times. Appellee’s home had always (at least up to 1954) been in Pope County where his parents also resided.
After appellee’s first discharge from the Navy he returned to his home, with his wife, in Pope County and served two terms as Circuit Clerk of that County for the years 1947 to 1950 inclusive. Having been defeated for a third term in 1950 he soon thereafter re-enlisted in the Navy and served for about 18 months. After a few months he again re-enlisted and served until the early part of 1954. During all of these periods of service appellee served away from his home, traveling to various parts of the world. Shortly after appellee’s last discharge from the Navy he and his wife went to Benton in Saline County where they lived together and together they established a real estate agency. Although the agency appeared to be moderately successful financially, after some 7 or 8 months appellee once more re-enlisted in the Navy, about the first of January, 1955, and has remained in service up until the present time.
On January 13, 1956 appellee filed a complaint and later an amended complaint in which he alleged two grounds for a divorce. One: Indignities, in that appellant treated him with studied contempt amounting to severe mental cruelty, consisting of quarrelling, abuse, etc. Two: Desertion, in that appellant refused to live with him. Appellant denied all the above allegations and prayed for attorney fees, and costs. No children are involved and apparently there are no property rights to be settled.
The trial court found that appellee was entitled to a divorce on both alleged grounds, and gave appellant her costs and attorney fees.
Much of the testimony is conflicting and irrelevant, but a careful examination of the same forces us to the conclusion that it does not sustain the decree of divorce.
One. As to indignities. There is in the record some testimony by appellee, weakly supported, that appellant was disagreeable and quarrelsome while they lived together prior to 1954. However we deem it unnecessary to recount this testimony because we think any such alleged indignities were condoned by appellee by living with his wife for some 7 or 8 months at Benton. This court has held to this effect many times. In Buck v. Buck, 205 Ark. 918 (at pages 921 and 922), 171 S. W. 2d 939, we said:
“This court, in a long line of decisions, has consistently held that one spouse may condone the misconduct of the other and in the absence of acts of subsequent misconduct, all grounds for divorce prior to con-donation by the injured spouse are wiped out.”
Appellee attempts to avoid the application of the above rule by stating he agreed to live with his wife at Benton only on the condition she would “stop demanding that I move to Little Bock and that she make me a dutiful and loyal wife”. He must fail in this attempt, however, because there is no evidence she later violated that condition.
There is no evidence of personal indignities on the part of appellant after appellee last entered the Navy, nor could there well be, because they have not lived together since that time.
Two. Desertion. This ground is based solely on the contention by appellee that appellant refused to live with him. All acts supporting this contention must likewise rest on what occurred after the last enlistment in the Navy which, as stated before, was about the first of the year 1955. A careful search of the record fails to support appellee’s contention.
When appellee left for the Navy the last time, he did so, according to the nncontradicted testimony, without the knowledge of his wife and also without winding up his business affairs or making any arrangements with reference to his wife or household furniture. Upon appellee’s last enlistment he went or was sent to a station in California. He remained there about 10 months when he was transferred to Alaska. Appellee states that soon after he landed in California he requested his wife to join him and she refused. Appellant says that while she was willing and anxious to join him there, yet it was impractical if not impossible for her to do so at that time, for several reasons. She had the responsibility she says, of winding up their business affairs in Benton, she had the household goods to store or dispose of, and appellee had made no definite plans for her to travel to California or a place to live after she got there. She says she was very nervous and asked appellee to come back and drive through with her but he refused to do so. The uncontradicted testimony is that appellant did not even know when appellee left California for Alaska, and that she had to make several calls to find out. Appellee says he asked his wife to join him in Alaska, but the uncontradicted testimony is that he made no arrangement for her to make the trip. Appellant says she understood that it would have been necessary for travel arrangements to be made through the Navy or the Government, but none were ever made.
Since appellee’s suit for divorce was, in this connection, based on desertion and not on 3 years separation, the vital issue is not whether parties lived separate and apart for little over a year. Certainly it is not uncommon to find such extended separations where the husband is away on military service with no suspicion of desertion, especially on the part of the wife. The real issue here is whether appellant willfully and without good cause refused to live with her husband. It is on this issue that we find no convincing evidence. Moreover, viewing the evidence most favorably to appellee, his cause must fail on the vital issue because there is no corroborating evidence to support it. In Sutherland v. Sutherland, 188 Ark. 955, 68 S. W. 2d 1022, this court said: “It is the established doctrine of this State that a divorce decree will not be granted upon the uncorroborated testimony of one of the parties.” See also Highsmith v. Highsmith, 219 Ark. 123, 210 S. W. 2d 5.
Much of appellant’s testimony and argument challenges the trial court’s finding that appellee’s residence was in Pope County for the purpose of maintaining this suit. In view of our conclusions heretofore expressed we deem it unnecessary to go into this question at length. There is, we think, sufficient evidence to support the trial court on this issue. As this court has stated on previous occasions, every person is entitled to have a residence somewhere. It is undisputed in this case that appellee’s residence has been in Pope County all his life, except for the few months he lived at Benton. We do not think that one incident is decisive here. Residence, in a case of this kind, is largely a matter of intent, and a person has a right to • change it when he pleases. See McGill v. Miller, 183 Ark. 585, 37 S. W. 2d 689. Appellee’s testimony is to the effect that he went to Benton and lived with his wife conditionally, hence he may not have intended to abandon Pope County as his residence. The record also shows that while there he voted in Pope County. Therefore we cannot say that the Chancellor’s finding, under all the facts and circumstances of this case, is against the weight of the evidence.
Appellant, who is receiving an allotment from the Government, has asked only for an additional attorney fee incident to this appeal, to which we think she is entitled.
In accordance with the above the decree of the trial court is reversed, and the cause is remanded with directions to dismiss appellee’s petition and to allow appellant an additional attorney fee of $100 for this appeal.
Reversed with directions. | [
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Paul Ward, Associate Justice.
This is an appeal by Ivan C. Wright, appellant, from an adverse judg ment in an ejectment action brought against him by Homer Vincent, appellee. The decisive issue relates to the sufficiency of the description of the parcel of land involved.
In March, 1957 appellee filed a complaint in ejectment against appellant in which it was alleged: He is the owner of and entitled to possession of “A part of the NE% of NW% of Section 26, Township 19 North, Range 7 East, more particularly described as Lot 5 of the NE^ of the NW]/i of Section 26, Township 19 North, Range 7 East of Laffler’s Survey to the town of Rector, Arkansas”; He is the owner of said property by virtue of a chancery court decree, dated December 6, 1956, quieting title in him, a copy of which decree is attached and marked Exhibit “A”; On December 7, 1956 appellant took possession of said property by placing a fence around it, is still in possession, and refuses to surrender possession thereof to appellee. The prayer was for possession, costs, and a Writ of Assistance.
Later in March, 1957 appellant filed his answer to the above complaint, entering a general denial, and also stating: He admits the chancery decree of December 6, 1956 mentioned before which quieted title in appellee by the description set forth in the previous paragraph; He specifically denies that he is in possession of the land described in said chancery decree, and; He admits he did on December 7, 1956, fence and take possession of a certain parcel of land described as follows: “That part of the Northeast Quarter of the Northwest Quarter of Section 26, Township 19 North, Range 7 East, more particularly described as follows: Begin at the Northeast Corner of the Northeast Quarter of the Northwest Quarter of Section 26, Township 19 North, Range 7 East, thence West 837.3 feet to point of beginning proper; thence South 3 degrees 05 feet West 378.2 feet; thence North 45 degrees 31 feet West 326.7 feet to Railroad right of way; thence North 43 degrees 26 feet East 204.6 feet to-Section line; thence East 112.6 feet to point of beginning proper, less and except the right of way of State Highway Nos. 1 and 39 crossing said tract.” Further an swering appellant states lie has occupied and claimed the land above described since June 24, 1946 and is still in possession thereof, and that the description under which appellee claims title is void and describes no land that can be identified or located by use of said description. Other pleadings were filed but they are not material to the issue.
A lengthy trial ensued upon the pleadings thus joined, and many exhibits, including an abstract of title, were introduced in evidence. Under the view we take most of the testimony and exhibits are not material, and we shall refer to them only as is deemed necessary.
The trial court, sitting as a jury by agreement, found “that the two above described parcels of land are one and the same and that the plaintiff (appellee here) has deraigned sufficient title to be entitled to possession thereof . . .”, and gave appellee judgment against appellant “for possession of the above described premises under either of the two aforesaid descriptions.” It is our conclusion that the judgment of the trial court should be affirmed.
Exhibit “A” to appellee’s complaint shows, and appellant admits, that on December 6, 1956 the chancery court entered a decree quieting title in appellee to the parcel of land first above described. Prom that decree we find that Ivan C. Wright (appellant here) was made a party defendant, that he filed an answer and that he was represented by counsel. In the decree it also appears the court found “that neither the plaintiff (appellee here) nor defendant (appellant here) is in physical possession of the above described premises, but that plaintiff is in constructive possession.” The chancery court then decreed “that the title to the above described premises is hereby quieted in the plaintiff against all persons whatsoever . . .”, and adjudged all costs against Ivan C. Wright. Ivan C. Wright prayed an appeal from the chancery decree to the Supreme Court, but none was ever taken.
The record discloses that on December 7, 1956 (the next day after the above decree was rendered) appellant took possession of the parcel of land in question by placing a fence around it and placing thereon certain items of personal property.
We think the decree of December 6, 1956 settles the issue in this case in favor of appellee. In Thomason v. Abbott, 217 Ark. 281, 229 S. W. 2d 660, this court said: “It has long been recognized, in cases like this, that the plaintiff must recover on the strength of his own title, whether the case be in ejectment or one to quiet title.” This burden, therefore, was on Vincent when he sued Wright to quiet his title to this parcel of land, and the court there held that Vincent sustained that burden. Any defenses available to Wright should have been made at that time, and they are not available to him now.
Appellant strenuously contends that the present cause in ejectment should be reversed because he and appellee are talking about two entirely different parcels of land, and that appellee’s description is so indefinite that it locates no certain parcel of land. The testimony of two surveyors was to this effect. We think, however, there are several facts and circumstances which constitute substantial evidence to sustain the finding of the circuit judge (sitting as a jury) that both descriptions describe the same parcel of land.
One. It will be noted that appellee’s land, in addition to being a part of NE^ of NW1/^, Sec. 26, Twp. 19 N. E. 7 E, is described as Lot 5 of Laffler’s Survey of the Town of Sector, Arkansas. This record contains a Plat of this Addition, shown to be of record in the circuit clerk’s office since 1935. Lot 5 appears on that Plat to be plainly indicated. The southwest border is a straight line 270 feet long (the dividing line between Lot 5 and Lot 6), it is bounded on the east by an alley, and on the north and west by a state highway. The highway on the west runs along the east side of the tracks of the St. Louis S. W. Ry. Co. The Plat also shows some dozen blocks, each divided into Lots with all dimensions given. The testimony shows that several families live in this addition. Prom all this we are led to believe that Lot 5 can be located with reasonable certainty.
Two. It is unrealistic to believe Wright and Vincent are talking about two separate parcels of land. This is demonstrated by the record in various ways, (a) The day after the chancery court quieted appellee’s title to Lot 5 appellant put a fence around the exact parcel of land in question, (b) All parties must have known where the land was located because appellee had a fence around it and pastured it for 7 or 8 years prior to 1946. (c) Appellant evidently knew where the land was located because he must have pointed it out to the surveyor he employed to run the metes and bounds description in December, 1956. Otherwise, how could the surveyor have known what land to describe? (d) The record shows that several persons knew where the land was located long before it was described by a surveyor. They testified as to who had and who had not occupied it.
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George Rose Smith, J.
Tbis is a condemnation case in which the State Highway Commission called upon the county court to provide the right of way for the rehabilitation of Highway 67 in Hot Spring county. Ark. Stats. 1947, § 76-510. The appellees, Carl Fowler and his wife, filed a claim against the county for damages of $6,000. The county court denied the claim, as excessive, but in the circuit court the appellees were awarded damages of $4,150. The sole question on appeal is whether the county’s plea of limitations should have been sustained.
On April 10,1956, the county court entered an order condemning the right of way in accordance with the plans of the Highway Commission. The landowners did not originally have notice of the order, but the Fowlers’ land was actually entered in April or May of 1956. In those months the Highway Department removed the Fowlers’ fence along the old highway, cleared the right of way for the widening of the roadbed, and erected a new fence farther back on the Fowlers’ property. The plans contemplated that the grade of the highway would be lowered, and this grading was completed in October, 1956. The new pavement was finished in September of 1957, and the appellees filed their claim in the county court on November 19,1957. The question is whether the claim is barred by the one-year statute of limitations. Ark. Stats., § 76-917.
This statute has been construed in a number of eases. Although it provides that the time runs from the date of the county court order, we have held that when, as here, the landowner is not given notice of the entry of the order, the time runs from the actual taking of the property. Greene County v. Hayden, 175 Ark. 1067, 1 S. W. 2d 803. In a more recent case, State Highway Com’n v. Holden, 217 Ark. 466, 231 S. W. 2d 113, it was indicated that the taking occurs when the owner can no longer use his land for its normal and natural purposes.
If these cases are controlling, the appellees’ claim was filed too late. By May of 1956 their boundary fence had been moved back and the new right of way had been cleared. From that time on the Highway Department’s possession was exclusive, but the claim was not filed until more than seventeen months later.
In seeking to avoid the statutory bar the appellees present a twofold argument. First, it is insisted that the statute did not begin to run until the exact extent of the appellees’ damage could be ascertained. Counsel would limit the effect of our prior holdings to the sitúa tion in which, the county simply takes a particular tract of land without damaging the rest of the owner’s property. An effort is made to distinguish the case at bar on the ground that the appellees suffered consequential damage from the lowering of the grade, and that loss could not be determined with complete certainty until the pavement had been finished and the Highway Depártment had provided an access road to the appellees’ land.
This distinction is not supported by our earlier cases and is not sound law. Uncertainty about the extent of one’s damage is not a basis for staying the operation of the statute of limitations. In personal injury cases, for instance, juries often make awards for future pain and suffering or for a loss of earning power. In Field v. Gazette Pub. Co., 187 Ark. 253, 59 S. W. 2d 19, the plaintiff’s cause of action for lead poisoning was barred even though the nature of the malady and its injurious effects could not be immediately determined.
It is a familiar rule that, when land is damaged by a nuisance of a permanent character, the loss is original and must be fully compensated in a single action. “But it may be added that the fact that the extent of the injury is difficult to determine, or its ascertainment is inconvenient or expensive, does not prevent the injury from being original so as to permit recoveries for recurring injuries.” Davis v. Dunn, 157 Ark. 125, 247 S. W. 793. A narrow exception to this principle was recognized in Arkebauer v. Falcon Zinc Co., 178 Ark. 943, 12 S. W. 2d 916, but that exception is not pertinent here.
When the appellees’ land was taken in May of 1956 the extent of their eventual loss could have been demonstrated with much more accuracy than is possible in many cases involving contracts or torts. The record shows that the Highway Commission’s plans were detailed, embracing a profile of the rehabilitated road and topographical information about the old and new rights of way. Even the physical grading was completed more than a year before the claim was filed. It does not ap pear that the proof of damage would have involved any serious difficulties whatever, much less such insurmountable obstacles as to justify a rule that would indefinitely postpone the running of limitations. It goes without saying that a substantial change in the Commission’s plans, resulting in increased injury to the landowners, would have constituted a separate taking, as to which the statute would run anew.
Second, it is asserted that the county is estopped to rely upon the defense of limitations. Fowler testified that in the spring of 1956 he had a conversation in front of his house with the county judge. Judge Wallace stated that there would be someone to settle with Fowler for his damages, and also: “I would wait until the highway is completed before you try to settle with them. You don’t know how much damage they are going to do, and I don’t know, and you have plenty of time after the road is completed.” Fowler says that he relied on these statements in not filing his claim promptly.
This testimony is insufficient to give rise to an estoppel. It does not appear that Judge Wallace promised that the county would not plead the statute; he was merely mistaken in his understanding of the law. An estoppel must generally be based upon a material statement of fact; an erroneous expression of opinion about a rule of law does not usually result in an estoppel. Bigelow on Estoppel (6th Ed.), p. 634. In the leading-case of Andreae v. Redfield, 98 U. S. 225, 25 L. Ed. 158, both the collector of customs and the Secretary of the Treasury mistakenly assured the plaintiff that the presentation of his claim to the auditor would prevent the running of the statute of limitations. Despite the plaintiff’s reliance upon these assurances the court held that the collector was not estopped to plead the statute. See also Hilliard v. Pennsylvania R. Co., 6th Cir., 73 F. 2d 473.
It must also be remembered that the statute requires that the claim be presented to the county court. Ark. Stats., § 76-917. The county judge is not synonymous with the county court. We have held that a contract made by tbe county judge alone, without an order of the county court, is not binding upon the county even though the other party to the agreement has performed his part of the bargain. Rebsamen, Brown & Co. v. Van Buren County, 177 Ark. 268, 6 S. W. 2d 288. If the county judge cannot impose liability upon the county by a formal written contract we do not think it can be said that he can bind the county by a casual conversation in the street.
Reversed and dismissed.
Johnson, J., dissents. | [
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Paul Ward, Associate Justice.
The trial court made two findings from which appellant appeals. One. It reformed a certain deed, changing it to describe a homestead of % of an acre. Two. It held that the signature on another deed was not a forgery. The facts leading to a presentation of these issues are set out below.
Charles T. Tetrick owned and maintained his home in Pea Ridge, Benton County, for many years before his death on December 1, 1955. Previous to 1949 he was engaged in raising chickens, financed by appellant, the Bank of Pea Ridge. In the year last mentioned the appellant secured a judgment against him for about $20,000. In May, 1950 Tetrick was adjudged a bankrupt, but was denied a discharge because, as the Referee found, of the questionable manner in which he had handled his finances with appellant. The Referee, however, found that Tetrick’s homestead could not be subjected to the payment of his debt to the bank. When Tetrick died in 1955 appellant filed its claim against his estate in the amount of $18,609.61, the balance due at that time.
In order to properly understand the issues involved it is necessary to describe the property which Tetrick owned in Pea Ridge on which his home was situated. Parts of it can only be described by tedious metes and bounds measurements, but, for simplification and convenience, we describe it in this manner: Parcel (a) Lot 3 Block 1, which is in the shape of a parallelogram, 125 feet east and west and 144% feet north and south; Parcel (b) Lot 10, Block 1, which is in the shape of a parallelogram, 40 feet east and west and 80 feet north and south, and which adjoins Lot 3 on the south at the southwest corner thereof, and; Parcel (e) which can only be described accurately by metes and bounds, but is an extension of Lot 3 on the west side for a distance of 87 feet, and also a small triangular parcel on the south side of said extension, and on the west side of Lot 10. This was all the land owned by Tetrick, and consisted of approximately an acre.
On January 1,1951 Tetrick (his wife having previously died) executed a deed to his daughter, appellee, to Parcel (a), or Lot 3. This deed was recorded 5 days after his death. We shall refer to this deed as deed No. 1. The record also contains a deed, same date, purporting to be signed by Tetrick conveying to appellee all of his property, i.e. Parcels (a), (b), and (c). This deed, never acknowledged or recorded, will be referred to as deed No. 2.
The land comprising the homestead of Tetrick, which it is conceded here can consist of no more than % of an acre, was determined by the trial court (with the assistance of a survey) to include a strip of land 54.68 feet wide of uniform width lying along the west side of Lot 3, and also a small portion of Lot 3 in the northwest corner thereof, being 25 feet wide and 119% feet north and south. The court and the surveyor, of course, described the % acre accurately by metes and bounds.
Appellant, on January 25, 1956, filed a suit against appellee to cancel deed No. 1 in order that the property might be applied to the satisfaction of his judgment heretofore mentioned. Replying to the above appellee contended that it was the intention of her father, by deed No. 1 to convey to her his homestead, and asked to have the said deed so reformed, and also (later) pleaded the execution of deed No. 2. In turn, appellant answered that deed No. 2 was never delivered to appellee, and that the signature on the deed was forged and not the genuine signature of Tetrick, and that there was no consideration for deed No. 1. There were other pleadings and other parties, but none of them have any bearing-on the two issues here raised.
One. We think the evidence supports the trial court’s decree ordering deed No. 1 reformed to convey to appellee the homestead. In fact there is no testimony to the contrary. The genuineness of deed No. 1 is not questioned, nor does appellant contend that Tet-rick’s homestead was not exempt from execution for payment of its judgment. On the other hand the evidence and circumstances are convincing that Tetrick did intend to convey his homestead to appellee and that he most likely did not know how to correctly describe the homestead. Appellee testified that when her father gave her deed No. 1, he stated it was intended to convey the homestead. Appellee had lived there and had helped her father in many ways. Much of this was corroborated by her husband. The deed was drawn by Tetrick’s attorneys in Harrison using the description given them. However, sometime later the attorneys wrote Tetrick a letter stating the wrong description had been used, inclosing a new metes and bounds description describing parcel (c) above and also the 25 feet by 119% feet strip heretofore mentioned. The letter, dated April 7, 1951 and addressed to Tetrick, reads as follows: “Herewith enclosed copy of revised description of property claimed as homestead. This description consists of considerably more than one-quarter acre — in fact, about .39 of an acre, but was approved by the Referee.” The only reasonable conclusions deducible from the above letter are that Tetrick had instructed his attorneys to prepare a deed conveying his homestead to appellee, that they later recognized a mistake had been made in the description of the homestead, and that they attempted to correct it.
We do not agree with appellant’s contention that there was no consideration for the conveyance, and therefore not subject to reformation. On the contrary the evidence shows that appellee had advanced money to and on behalf of her father on numerous occasions. It may be the appellee did not expect or demand repayment, but that could have been the father’s motivation in the execution of the deed. Appellee’s testimony is undisputed that she deposited money in the bank to her father’s account when he was in financial straits, that she paid $1,000 for her mother’s funeral and also paid for the tombstone, and that she advanced approximately $1,500 to help build the very home which her father attempted to deed to her.
It is our conclusion therefore that the evidence clearly supports the trial court’s decree in reforming deed No. 1 so as to convey to appellee the homestead by a description which was furnished him by a surveyor, the correctness of which is not challenged.
Two. In view of what we have already said, it would serve no useful purpose to discuss at length the validity of deed No. 2. If it is conceded that deed No. 2 was a fraud, it would not necessitate a reversal. In our opinion, however, the evidence supports the trial court’s finding that the deed was genuine. It is true that appellant’s expert witness pointed out dissimilarities in the signatures on deed No. 1 (admitted to be genuine) and deed No. 2, but as noted by the trial court, dissimilarities also appeared in other genuine signatures of Tetrick. In addition, the positive and uncontradicted testimony of appellee and her husband was that her father delivered the deed to her at his home. It does not seem reasonable that he would have done so if he had not signed it.
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Sam Robinson, Associate Justice.
Appellant, Mrs. Lena Fox, and appellee, Dr. Y. R. Fox, were married in April, 1942. Mrs. Fox was 39 years of age and Dr. Fox was 59. In September, 1956, Mrs. Fox filed suit for divorce, alleging adultery and indignities. She also alleged that a clinic operated by her husband was in fact a partnership arrangement and that she was entitled to 50% of the proceeds of the clinic. She also alleged that ap pellee had fraudulently transferred some of his property to his children by a former marriage, and asked that the deeds be set aside. In addition, she alleged that a deed to her from Dr. Fox conveyed only a life estate in certain property, with the grantor retaining a life estate, when this deed should have conveyed a fee simple title, and she asked that the deed be reformed.
As heretofore mentioned, the suit was filed in September, 1956. In October, 1956, the defendant answered with a general denial. The case was not tried within a year, and in November, 1957, the defendant filed a cross-complaint asking that he be granted a divorce on the ground of desertion. The chancellor granted a divorce to Dr. Fox and granted Mrs. Fox the rents from 40 acres of land which produced an annual rental of $25 per acre, and granted her additional alimony in the sum of $50 per month.
The record contains no substantial evidence to sustain appellant’s allegation of adultery on the part of appellee, and we cannot say the court’s finding in favor of appellee on the question of indignities is contrary to a preponderance of the evidence. The evidence of indignities is very meager. There is some evidence that Dr. Fox was rude to Mrs. Fox occasionally in the presence of other people. But this is not evidence of such indignities habitually pursued to the extent of constituting grounds for divorce. Also, Mrs. Fox testified that on one occasion appellee slapped her. There is no evidence corroborating the alleged physical abuse, and it is said to have occurred a long time prior to the filing of the divorce action.
We do not think the evidence supports the theory that appellant was a “partner” in the operation of the clinic. True, the evidence shows that Mrs. Fox worked harder in helping the doctor'with his practice than the average wife is called upon to work, but it appears that she was fully capable of doing the work and never objected to it until the filing of the divorce suit.
The evidence does not justify a conclusion that appellee practiced a fraud upon Mrs. Fox in conveying some of his property to his children. The deeds were executed by both appellant and appellee in August, 1951, and Mrs. Fox made no complaint of the alleged fraud until 1956. She attempts to explain the delay by saying that she did not realize the full import of the deeds until shortly before she filed this action. The evidence is convincing, however, that all concerned must have known that appellee was conveying his property to his children and to his wife because of the condition of his health. He had suffered a stroke, his condition was not good, and in anticipation of death he was dividing his property to avoid litigation by his heirs. He conveyed to his wife practically the same interest in his real property which she would have received by operation of law if he had died at that time, before the execution of any deeds.
Appellant also complains of appellee’s failing to complete the taking of depositions within the time fixed by Ark. Stat. § 28-308. It is suggested that the depositions should be quashed. However, it does not appear that there was any willful or negligent failure to take proof within the time fixed by the court or the law. This is a matter within the discretion of the trial court and we cannot say the court abused this discretion.
Finding no error, the decree is affirmed. | [
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Minor W. Millwee, Associate Justice.
Lonnie Neal, James George Reaves and George P. Garner - were charged with burglary and grand larceny in Poinsett County in April, 1957 and placed in jail at Harrisburg, Arkansas. At that time John G. Powell of Sikeston, Missouri was an agent of the appellant, General Casualty Company of America, which was subsequently consolidated with the other appellant, General Insurance Company of America, and will be hereafter referred to as “General.”
On June 25, 1957 John G. Powell came to Harrisburg and executed bail bonds of $12,500 for each of said defendants as attorney-in-fact for General as surety on said bonds. Trial of the three defendants was set for September 30, 1957, when Neal and Reaves failed to appear and forfeitures were declared on their bonds and summons was issued and served on General as surety. After a hearing on November 8, 1957, the trial court entered judgment against Neal personally but the matter of the liability of Reaves and General was taken under advisement. On January 28,1958 judgment was entered for appellee, State of Arkansas, against General as surety on the Neal bond for $12,500, but the forfeiture against Reaves was set aside and General was released and discharged under his bond. Hence this appeal by General in the Neal case and cross-appeal by the State in the Reaves case.
I. The Direct Appeal. For reversal of the judgment against it on the Neal bond, General earnestly insists that its agent, John G. Powell, exceeded both the real and apparent scope of his authority in executing the bail bonds in question in Arkansas, and the surety he purportedly represented is not liable thereon. On this point Sheriff C. T. Sullivan testified that when he questioned Powell’s authority to execute bonds in Poinsett County, Arkansas in June, 1957, the latter showed him a power of attorney attached to each of the bonds, which reads in part as follows: “KNOW ALL MEN BY THESE PRESENTS: That the GENERAL CASUALTY COMPANY OF AMERICA by ANTONY PAN-ELLA its Vice-President,' in pursuance of authority granted by Sections 3 and 4, Article V of the By-Laws of said Company, a copy of which sections is hereto attached, does hereby nominate, constitute and appoint JOHN G. POWELL, Sikeston, Missouri its true and lawful attorney-in-fact, to make, execute, seal and deliver for and on its behalf, and as its act and deed any and all bonds and undertakings, in its business of guaranteeing the fidelity of persons holding places of public or private trust, and in the performances of contracts other than insurance policies, and executing and guaranteeing bonds or other undertakings required or permitted in all actions or proceedings, or by law required or permitted.
“All sucb bonds and undertakings as aforesaid to be signed on bebalf of tbe General Casualty Company of America and the corporate seal of tbe Company affixed thereto by John G. Powell, individually.
“And tbe execution of sucb bonds or undertakings in pursuance of tbes¿ presents, shall be as binding upon said Company, as fully and amply, to all intents and purposes, as if they bad been duly executed and acknowledged by tbe regularly elected officers of tbe Company at its Home Office, Seattle, Washington, in their own proper persons.
“IN WITNESS WHEREOF, tbe said ANTONY PANELLA has hereunto subscribed bis name and affixed tbe Corporate Seal, of tbe said General Casualty Company of America this 13 day October 1952.
(Signed) Antony Panella Vice-President.”
Following this on tbe foregoing document was an acknowledgment of tbe execution of tbe instrument by Panella in his capacity as Vice President before a notary public of King County, Washington, together with the two sections of tbe by-laws of tbe company authorizing him to appoint and designate individuals “to execute on bebalf of tbe Company fidelity and surety bonds and other documents of a similar character . . .”
General’s principal offices are in Seattle, Washington with a division office at St. Louis, Missouri. Tbe manager and a claim adjustor of tbe St. Louis office gave testimony tending to show that a written “Limit of Authority” was issued to Powell in 1952 which provided that before executing bail bonds an agent should first submit tbe proposal to tbe Company for approval; that this procedure was not followed by Powell in executing tbe bonds in question; and that tbe witnesses first learned of tbe execution of tbe bonds in October, 1957. When contacted by representatives of General at that time Powell showed them copies of execution reports of the bonds in question which he claimed were duly made and forwarded to the St. Louis office in June, 1957. Powell also turned over to them at that time a note for $28,000.00 and deed of trust which were executed by Neal and Reaves and their wives to General on May 24, 1957. While Powell had statewide authority to represent General in Missouri, he held no Arkansas license as an insurance agent.
The applicable principles of agency were well stated by Chief Justice McCulloch in Three States Lumber Co. v. Moore, 132 Ark. 371, 201 S. W. 508, as follows: “The law is that an agent acting within the apparent scope of his authority, though in violation of specific instructions, may bind his principal in dealing with one who has no notice of the restrictions upon the agent’s authority. Parsel v. Barnes, 25 Ark. 261; Jacoway v. Insurance Co., 49 Ark. 320; Liddell v. Sahline, 55 Ark. 627; Forrester-Duncan Land Co. v. Evatt, 90 Ark. 301; Brown v. Brown, 96 Ark. 456.
“An exception to that rule is that where the agency is special, and not general, that is to say, where his authority is to be confined to a single transaction or to a particular act, there is no presumption as to general authority, and one dealing with him must ascertain the extent of his authority. Liddell v. Sahline, supra; Mutual Life Insurance Co. v. Reynolds, 81 Ark. 202; Jonesboro, Lake City & Eastern Rd. Co. v. McClelland, 104 Ark. 150. But one dealing with an admitted agent has the right to presume, in the absence of notice to the contrary, that he is a general agent clothed with authority coextensive with its apparent scope. Oak Leaf Mill Co. v. Cooper, 103 Ark. 79.”
In support of the contention that the writing of bail bonds in Arkansas was wholly without the apparent scope of Powell’s authority, General relies on New Hampshire Fire Insurance Co. v. Walker, 178 Ark. 319, 11 S. W. 2d 772, and Central Surety & Insurance Corporation v. O. & S. Wholesale Co., Inc., 193 Ark. 523, 101 S. W. 2d 167, which hold that the fact that one is an agent of an insurance company for a defined territory gives him no power to bind the company by contracts entered into covering property outside of the territorial limits. The Walker case involved the authority of a local agent whose authority was clearly restricted to one city and did not involve the agent’s use of a power of attorney furnished by his principal like the one used in the instant case. The second case relied on involved the authority of a local soliciting agent to make a verbal surety contract where the power of attorney under which he acted clearly negatived such authority.
We hold the evidence in the instant case sufficient to sustain the trial court’s finding that John G. Powell acted within the apparent scope of his authority as the agent of General in executing the bail bonds. The broad . power of attorney issued by General to Powell, and used by him in convincing third parties of his authority to execute the bail bonds in question, contained no territorial limitations on his power to do so. Appellee had no notice of the secret restrictions issued to Powell by General. It had a right to rely on the power of attorney which clearly clothed Powell with apparent authority to execute the bonds.
We do not agree with General’s contention that its agent acted without authority, real or apparent, because he was unlicensed and prohibited by our statutes (Ark. Stats., Sec. 66-603 and 66-314) from executing bonds in Arkansas. These statutes prohibit insurance or surety companies from authorizing a non-resident of Arkansas to issue policies on property or persons located in this state. In construing similar statutes we have said, they are not intended to, and do not, have any effect upon the agent’s power to bind the principal, nor do they change the general laws of agency. See Continental Casualty Co. v. Erion, 186 Ark. 1122, 57 S. W. 2d 1025 and Fireman’s Fund Ins. Co. v. Leftwich, 192 Ark. 159, 90 S. W. 2d 497.
Since we conclude that a valid surety contract was entered into by the parties, we find no merit in the further argument that enforcement of the instant judgment will deprive General of its property without due process of law in violation of the Fifth and Fourteenth. Amendments to the U. S. Constitution.
II. The Gross-Appeal. The State insists that the trial court erred in granting the motion to set aside the forfeiture of the bond of James George Reaves. Under Ark. Stats. Secs. 43-724 and 43-729 it is within the court’s discretion to discharge the forfeiture if the defendant; appears and satisfactorily excuses the failure before, final adjournment of the court, or the court may remit any portion of the sum specified in the bond if the defendant is surrendered before judgment is entered. At the hearing on November 8, 1957, Reaves appeared and offered testimony tending to show that he was unavoidably confined to a hospital in Texarkana, Arkansas, after undergoing an operation for appendicitis when the forfeiture was declared on his bond on September 30, 1957. There was no abuse of judicial discretion in discharging the forfeiture under this proof.
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Carleton Harris, Chief Justice.
Pine Crest Memorial Park is a privately owned cemetery, organized and operated under the terms of a certain declaration of trust, dated January 30, 1930. The management of the cemetery is the responsibility of a board of trustees. Under the authority of the Declaration, the trustees are empowered to make rules and regulations for the operation of the property, and rule 42 provides that only bronze markers shall be used. In 1936, appellee’s mother purchased from appellant a cemetery lot having four grave spaces. Appellee’s father was buried on this lot in 1936, and in 1955, the mother was buried in one of the spaces. Appellee, M. P. Burton, decided to purchase a double marker for the graves of his father and mother, and found a satisfactory marker at the WyattMonahan Monument Company for the installed price of $173.40. Appellant refused to permit the installation of this marker, contending that certain rules of Pine Crest had not been complied with. Upon hearing the case, the Chancellor held that the rules in question were unreasonable and arbitrary, and perpetually enjoined and restrained appellant and its board of trustees from enforcing or attempting to enforce such regulations. Prom such decree of the court, comes this appeal.
The deed conveying the cemetery lot to Mrs. Burton provides as follows:
“It is expressly agreed and understood that this conveyance is made subject to the provisions and restrictions specified in the Rules and Regulations of said Memorial Park at the present time, and which are made a part of this conveyance or which said Trust may hereafter make in conformity with the laws of the State of Arkansas, one of which Rules and Regulations, among other things, reserves to the Trust the exclusive right to control, regulate, install or have installed, all markers, and further reserves to the Trust the right to ap prove and supervise all construction, care and up-lceep of all lots, burial spaces and graves in said PINE CREST MEMORIAL PARK.
Tbe said Trust hereby covenants and agrees with the said grantee to set aside ten per cent of the gross sale price of this and all other deeds by it issued for lots and burial spaces in said PINE CREST MEMORIAL PARK, said fund so constituted to be known as the PERPETUAL CARE FUND, the principal of which shall remain intact and the income of which shall be applied toward the cost of the care, up-keep, and maintenance of said PINE CREST MEMORIAL PARK forever. ’ ’
It is admitted by appellee that appellant has the right to make reasonable rules and regulations. It is, on the other hand, admitted by appellant that appellee would not be bound by an arbitrary or unreasonable rule. The issue therefore, in this case, is whether the particular rules and regulations of Pine Crest Memorial Park, herein under attack, are arbitrary and unreasonable.
The controversial regulations, applying to grave markers, are as follows:
“48. (b) The Bronze Alloy shall consist of:
Not less than....................................................................................87% Copper
Not less than................................................................................................5% Tin
Not more than....................................................................................2%% Lead
Not more than.............................................................................................5% Zinc
All other elements in total not to exceed..............................1%
49. With all bronze markers or memorials not purchased through the Park, the Owner offering such marker or memorial for installation must furnish the Park an affidavit of analysis from an independent laboratory made on a test bar run from the heat from which the specific memorial or marker offered for acceptance by the Park was east. Analysis of smelter of ingot supplied to the manufacturer is not acceptable.
52. All markers or memorials shall be installed by the Park, on foundations built by the Park, at the cost of the Owner, and the Park shall assume responsibility for the proper construction of the foundation and the proper installation of such marker or memorial; but the Park shall not be liable for any defective materials or defective workmanship beyond replacement or repair of such defective materials as have been furnished by the Park. All foundations shall be of the size and material specified by the Park.
54. If the marker or memorial is purchased from an outside agent and is approved by the Park as herein-before more particularly set forth, the charge for service and installation shall be on the basis of seven cents (7c) per square inch of the size of the marker and an additional charge or contribution of seven cents (7c) per square inch of the size of the marker to the Perpetual Care Fund, to be used for the maintenance and operation of the Park. No installation shall be made until both the service charge and the contribution to the Perpetual Care Fund have been paid in cash in advance.” We proceed to a discussion of each regulation.
The marker purchased by Mr. Burton from WyattMonahan has an alloy content of: 85 per cent copper; 5 per cent lead; 5 per cent tin; 5 per cent zinc. Appellee argues that such content substantially complies with the regulation mentioned above. Mr. D. A. Newman, secretary of Newman Brothers, Inc., manufacturer of the marker, testified that his firm has, for many years, used the 85-5-5-5 alloy for casting markers. He stated that each manufacturer has his own preference for a certain analysis, some using the same alloy as Newman Brothers, and others using a different formula . . . there is no set formula from which bronze markers should be cast . . . among twelve manufacturers of bronze markers, nine different alloys were being used, ranging-in copper content from 83 per cent to 88 per cent; tin, 2 per cent to 6 per cent; lead, 1.5 per cent to 5 per cent; zinc, 4.25 per cent to 11 per cent . . . tests at the company indicated their markers would meet all reasonable standards for durability, corrosion and discol oration resistance. Mr. Newman is 32 years of age and holds a bachelor of laws degree from Cincinnati University. He received no metallurgical training in college, and testified that his knowledge of the subject has come from association in the business, and the reading and studying of various materials. Mr. William E. Hockenberger of Pittsburgh, Pennsylvania, was an important witness for appellant. Mr. Hockenberger is vice-president, metallurgist, and metallurgical engineer of the Pennsylvania Industrial Supply Company, a copper, brass, and aluminum •warehouse. He graduated as a metallurgical engineer from the Carnegie Institute of Technology, following which he served as research engineer and subsequently as metallurgical engineer for Chase Brass & Copper Company before entering his present employment. Mr. Hockenberger testified that copper, tin, and zinc form a true alloy, i. e., one which will mix together in any proportion and their components are not discernible. He stated lead does not enter ini o any composition at all . . . “* * * does not enter into alloys. It separates in the matter and can readily be seen under the microscope.” He stated lead served no useful purpose other than to “make it more machineable.” Mr. Hockenberger testified that he had examined the Pine Crest rules and regulations, and that this particular regulation contained the minimum for bronze. When asked if he was familiar with the composition of 85 per cent copper, 5 per cent zinc, 5 per cent tin and 5 per cent lead, he stated:
“A. 85 and three five’s is widely used ingot due to the fact that it is easy to fabricate. It is easy to case and is a fast color, used in plumbing materials, various jobs in castings. I would say it is an industrial alloy more than anything else. It is known as leaded red brass.
Q. It is widely used for plumbing fixtures?
A. Yes, probably the most common one it is used for.
Q. In these books yon have here, which I understand from yon to be the leading books on standards, how is the composition 85,5,5,5 listed?
A. 85,5,5,5 is listed in A. S. T. M. and all books as leaded red brass. It is not bronze.
Q. What would be the effect of five per cent of lead in there on weather?
A. In case of weathering I would say it would be a detriment in large quantities of lead, some of which would be on the surface, it would probably weather out. I would say it would certainly weather out. The corrosion products are undesirable.”
On cross examination, Mr. Hockenberger further testified :
“A. Repeating again, 5 per cent lead in there is a detriment. It is a detriment to the alloy, performs no function. It just discolors it after weathering.
THE COURT: Makes it cut easier?
A. Yes. I am sure somebody that buys a marker is not interested in how it cuts. The manufacturer would be.
Q. That small a difference in the percentage makes a whale of a difference in the marker?
A. What percentage ?
Q. 85 per cent copper and 87 per cent copper and 5 per cent tin in both — in other words, Newman requires 85 per cent copper, Pine Crest requires 87 per cent, two per cent difference in copper. Newman requires 5 per cent tin, so does Pine Crest. Newman requires 5 per cent lead and Pine Crest requires 2 1/2 per cent. Would that make all that difference of softness and discoloration?
A. You are doubling the quantity.
Q. There is 100 per cent in that marker and 2 1/2 per cent is not going to soften and discolor 97 1/2 per cent, is it?
A. If it was in the alloy, no, but it is not in the alloy, and the more lead in the mixture, the more difficult it is to get it finally disbursed.
Q. What I am getting at, there is only 2 1/2 per cent difference in the Pine Crest marker and in the Newman marker with reference to lead?
A. That’s right.
Q. Newman has 2 1/2 per cent more lead?
A. That’s right.
Q. Would that additional 2 1/2 per cent prevent the disbursal of all the other alloys to the extent it would soften it or make it accessible to discoloration to any great extent.
A. You are doubling the lead content. You have more chance of it being on the surface and be in larger globules.”
According to the testimony, the Battelle Memorial Institute at Columbus, Ohio, an independent research laboratory, has done various tests on bronze alloys in connection with bronze memorials, and on the basis of such tests, has made the following recommendation as to mixture: 86 per cent to 90 per cent copper, 5 1/2 per cent to 6 1/2 per cent tin, 1 per cent to 2 per cent lead, and 3 per cent to 5 per cent zinc. The principal objection to the formula used in the Wyatt-Monahan monument seems to be the amount of lead contained in same, and we are persuaded that the 2 1/2 per cent difference in the amount called for under the regulations, and the amount contained in the purchased marker, is great enough to make a difference in the durability of the monument. It might be said here that this case has been well briefed by both sides, and numerous authorities cited, in support of their respective positions as to each rule herein contested, some being favorable to appellant and some to appellee. Practically all the pertinent cases deal with particular requirements of various cemeteries, and all were determined on the basis of discrimination or the reasonableness or unreasonableness of the particular regulation in question. We are of the opinion that the rule here under discussion is reasonable. Appellee is not compelled to purchase a monument of this specific content. It is only a minimum standard. For instance, one containing 90 per cent copper would be permissible. A marker prepared under the required formula can certainly be obtained. As the evidence shows, there are dealers who would prepare this particular alloy. Appellee says that the content of 85-5-5-5 is substantial compliance with the Pine Crest regulation, but, under the proof, we cannot agree.
To the contrary, we consider rule 49 to be unreasonable. The requirement that an affidavit of analysis from an independent laboratory made on a test bar run from the heat from which the specific marker was east, would be most difficult to obtain. The rule provides analysis of smelter and ingot supplied by the manufacturer is not acceptable. Not only does this provide an extra burden and expense, but, likewise, is discriminatory. This requirement relates only to markers “not purchased through the park.” As stated in Vol. 14, Corpus Juris Secundum, Sec. 30, page 89:
‘ ‘ The proprietors of a cemetery may make rules and regulations for the care and management of lots in the cemetery, * * *. The rules and regulations must be reasonable, equal in their operation and uniform in their application to all owners of lots in the cemetery.”
It appears that the particular effect of this rule is to practically give appellant a monopoly on supplying grave markers in the cemetery, and we hold the Chancellor was correct in holding this requirement to be unreasonable and arbitrary, and thus unenforceable.
After purchasing his marker from Wyatt-Monahan, Mr. Burton selected that company to install same. Pine Crest refused to permit this to be done, contending that under their regulations, they had the exclusive right to install monuments. The trial court held this regulation to be unreasonable and enjoined appellant from enforcing or attempting to enforce such rule. Under the facts of this case, we approve rule 52, though in doing so, we should like to clearly emphasize that we are not, in general, approving a regulation which gives a cemetery the exclusive right to install monuments. Here, the cemetery regulations provide that the marking of each grave is ‘ ‘ restricted and limited to flat bronze tablets, set flush with the turf.” The testimony reflects that after a period of years, these monuments may shift or tilt from their original position, and it is necessary to reset them. Pine Crest, having agreed with the lot purchaser, to furnish perpetual care, may well be required at some time in the future, possibly even several times, to reset any marker installed by Burton. This being true, the cemetery should have the privilege of originally installing the' monument in a manner that, from its experience, will least necessitate an early resetting.
Having decided rule 52 to be valid, we conclude that, the charge of 7c per square inch for installation, set out. in rule 54, is also reasonable. Certainly, the charge is-not exorbitant.' Appellee states that this provision is-discriminatory in that it only applies to persons who' purchase their markers from outsiders, but the testimony reflects that the installation charge is included in the price of the monuments sold by Pine Crest. In other words, all lot owners pay this charge, irrespective of the source from which their monument is purchased. However, we do not agree that the 7c per square inch charge for the Perpetual Care Fund is valid, for the reason that Mrs. Burton, in purchasing this lot, had already contributed to this fund. As previously set out, the trust agreed with the grantee to set aside 10 per cent of the gross sale of the lot as a “PERPETUAL CARE FUND, the principal of which shall remain intact and the income of which shall be applied toward the cost of the care, np-keep, and maintenance of said PINE CREST MEMORIAL PARK forever.” Appellant argues that the intent of rule 54 is to provide a fund “for the perpetual care of markers rather than for the park,” but the regulation plainly states otherwise. We conclude that this portion of rule 54 constitutes a duplicate charge.
Summarizing, we hold:
(1) Rule 48 (b) is reasonable, and therefore valid.
(2) Rule 49 is unreasonable and discriminatory, and therefore invalid.
(3) Rule 52 is valid.
(4) The portion of rule 54 providing for a charge for service and installation is valid; that portion providing for a charge to the Perpetual Care Fund is invalid.
It is so ordered.
Justice Ward dissents, being of the opinion that all regulations are proper. Justice Robinson dissents.
This particular regulation is not under attack.
One exception to the content is permitted — a marker furnished a veteran by the United States government.
American Society for Testing Material.
Among such cases are: Orlowski v. St. Stanislaus Roman Catholic Church Society, 161 Misc. 480, 292 N. Y. S. 333; Roanoke Cemetery Company v. Goodwin, 101 Va. 605, 44 S. E. 769; Wetherby v. City of Jackson, 264 Mich. 146, 249 N. W. 484; A. W. Carlson, Inc. v. Judd, 133 Conn. 74, 48 A. 2d 269; Chariton Cemetery Co. v. Chariton Granite Works, 197 Iowa 403, 197 N. W. 457; Roselawn Memorial Park v. DeWall, 11 Ill. App. 2d 66, 136 N. E. 2d 702; Johnson v. Cedar Memorial Park Gem. Assn., 233 Iowa 427, 9 N. W. 2d 385; Zimmer v. Congregation of Beth Israel, 203 Cal. 203, 263 P. 232; Abell v. Proprietors of Green Mount Cemetery, 189 Md. 363, 56 A. 2d 24, 174 A. L. R. 971.
Rule 47.
This rule was adopted in 1955. | [
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Ed. F. McFaddin, Associate Justice.
The question in this case is whether usury tainted the sale of the automobile involved.
On July 20, 1951 Tony Morris contracted to purchase a 1949 Ford automobile from Rebsamen Motors, Inc. Here are the figures as reflected in the Conditional Sales Contract:
Total Cash Price $1,345.00
Total Time Price 1,608.25
Less Trade-in of Old Car 535.00
Unpaid Balance of Time Price 1,073.25
Morris signed a note for $1,073.25, payable in fifteen monthly installments of $71.55 each. He paid some of these monthly installments and then sued to cancel the contract because of usury (§ 68-602 et seq. Ark. Stats.).
Morris claimed that the difference between the $1,608.25 (total time price) and $1,345.00 (total cash price) was $263.25; that $101.50 of this was for insurance; and that the balance of $161.75 was for “finance charges”, which amount was in excess of 10 per cent per annum, the interest on the amount actually due if calculated on the total cash price instead of the total time price. In other words, Morris claimed that the “finance charge” was a cloak for usury. The Trial Court agreed with Morris and entered a decree cancelling any balance claimed by Rebsamen. This appeal ensued.
We call particular attention to the fact that this transaction was on July 20,-1951. We also mention that the date of finality of our holding in the case of Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973, was June 30, 1952. If the transaction here involved had been after the final date of the Hare case, then the decree herein would be affirmed. In the Hare case we pointed out that the “time price differential” which had allowed finance charges and other charges in excess of 10 per cent had been approved in a long line of cases and we would not upset those holdings retrospectively; and then we said:
“But the time has come when we must re-examine these holdings, so we now give the public a caveat that the effect of transactions, such as in the case at bar, may impinge on the constitutional mandate against usury, and transactions entered into after this appeal becomes final, may be subjected to the taint of usury with the aforementioned decisions affording no protection. ’ ’
In numerous cases since the Hare case we have upheld, as against the claim of usury, contracts like the one here involved tvhich were entered into before the date the Hare opinion became final. Some of these cases are: Crisco v. Murdock, 222 Ark. 127, 258 S. W. 2d 551; Universal C.I.T. Credit Corp. v. Crossley, 222 Ark. 200, 258 S. W. 2d 562; Murdock Acceptance Corp. v. Clift, 222 Ark. 313, 259 S. W. 2d 517; and Universal C.l.T. Credit Corp. v. Hall, 225 Ark. 78, 279 S. W. 2d 281. The case at bar cannot be distinguished from the cases last cited.
Therefore, the decree is reversed and the cause is remanded, with directions to enter a decree for appellant for the unpaid balance of principal and interest due on said contract involved, together with costs. | [
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Sam Robinson, Associate Justice.
Appellant, Luther Bailey, was convicted in the Pulaski Circuit Court, First Division, of the crime of rape, and was sentenced to death. On appeal to this court the judgment was affirmed. Bailey v. State, 227 Ark. 889, 302 S. W. 2d 796. Certiorari to the United States Supreme Court was denied. Bailey v. Arkansas, 355 U. S. 851. Later, appellant filed in the same court where he was convicted a petition for writ of habeas corpus alleging that certain of his constitutional rights had been violated. He alleged specifically that he was denied compulsory process to obtain witnesses, in violation of Art. 2, § 10, of the Constitution of Arkansas, and the Fourteenth Amend-, ment to the Constitution of the United States, and fur ther that he is a member of the Negro race and that his conviction is void because Negroes have been systematically limited in selection of petit jury panels in the court where he was tried. He prayed that a writ of habeas corpus be issued to the end that the conviction be set aside. The trial court granted the petition to the extent of ordering the superintendent of the penitentiary, where petitioner was confined awaiting execution, to produce the petitioner in court. The petitioner then filed an amendment to the petition for writ of habeas corpus and stated: “. . . this is a petition under Act 419 of the 1957 Acts of Arkansas, known as the Uniform Post-Conviction Procedure Act . . . That your petitioner has heretofore sought relief from his conviction by appeal to the Arkansas Supreme Court and by application for writ of certiorari to the United States Supreme Court. That the conviction under which the plaintiff is held and was sentenced is void and/or voidable in that he was denied the right of having compulsory process for obtaining witnesses in his favor in violation of Article 2, Section 10 of the Constitution of the State of Arkansas, the Fourteenth Amendment to the Constitution of the United States”; and prayed that his conviction be set aside.
The State, by the Attorney General, resisted the petition and affirmatively pleaded that Act 419 of 1957 is unconstitutional; that the Act would nullify Art. 2, § 11, of the Constitution of Arkansas, providing that the writ of habeas corpus shall not be suspended. At a hearing on the petition it was shown that prior to the trial the attorney for the defendant had requested the clerk of the court to issue subpoenas for the jury commissioners who had served as such from 1952 to the March term, 1956, inclusive, and that the court had refused to allow the clerk to issue the subpoenas. The trial court denied the petition, and the petitioner has appealed.
Act 419 of 1957 provides: “Section 1. Any person convicted of a felony and incarcerated under sentence of death or imprisonment who claims that the sentence was imposed in violation of the Constitution of the Unit ed States or the Constitution or laws of this State, or that the court was without jurisdiction to impose the sentence, or that the sentence exceeds the maximum authorized by law, or that the sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under a writ of habeas corpus, writ of cor am nobis, or other common law or statutory remedy, may institute a proceeding under this Act to set aside or correct the sentence, provided the alleged error has not been previously and finally litigated or waived in the proceedings resulting in the conviction or in any other proceeding that the petitioner has taken to secure relief from his conviction . . .”
It will be noticed that the Act does not apply where the alleged error has been finally litigated or waived in the proceedings resulting in the conviction. Without a doubt the question of whether the trial court erred in refusing to permit the jury commissioners to be subpoenaed was either finally litigated or the point was waived. In the trial of the case on its merits, the attorney for the defendant requested that subpoenas be issued for the jury commissioners who had served over a period of years, and the trial court refused to allow the clerk to issue the subpoenas. If the trial court erred, it was at that point. The defendant was represented by . able counsel who had every opportunity to make his record on the point and bring it up on appeal. If he did so, the alleged error was finally litigated. If this was not done, then the alleged error was waived. (As a matter of fact, the question of permitting the jury commissioners to testify was dealt with and disposed of on the first appeal.) If the defendant could at this time take advantage of the alleged error, likewise he could now litigate any other alleged error such as might be alleged to have occurred in the selection of the jury and admission of evidence or in the giving of instructions.
We do not reach the question of the constitutionality of Act 419 of 1957, because constitutional questions are not decided unless the case cannot be disposed of on any other ground. Duncan v. Kirby, 228 Ark. 917, 311 S. W. 2d 157, and cases cited therein.
Affirmed. | [
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Minor W. Millwee, Associate Justice.
This is an original proceeding by Ruben Cleveland Moore, a citizen and taxpayer of this State, questioning the sufficiency of the popular name and ballot title of Proposed Constitutional Amendment No. 50 and to enjoin the Secretary of State from placing the proposed amendment on the ballot to be used in the general election on November 4, 1958.
The proposed popular name, ballot title and amendment read as follows:
(Popular Name)
“FREEDOM TO HIRE AMENDMENT”
(Ballot Title)
“AN AMENDMENT PROHIBITING PRACTICES THAT REQUIRE OR INDUCE AN EMPLOYER TO EMPLOY A GREATER NUMBER OF PERSONS THAN THE EMPLOYER DEEMS NECESSARY TO CARRY ON HIS BUSINESS.”
(Amendment)
“BE IT ORDAINED BT THE PEOPLE OF THE STATE OF ARKANSAS THAT THE FOLLOWING SHALL BE AN AMENDMENT TO THE CONSTITUTION:
SECTION 1. Practices known as “featherbedding” are contrary to the public policy of this State.
SECTION 2. No employer may be required to employ a greater number of persons than the employer deems necessary to carry on his business. Courts of chancery are empowered to enjoin any person, association or corporation attempting, directly or indirectly, to require, induce, coerce, or compel an employer to employ a greater number of persons than the employer deems necessary to carry on his business.
Petitioner alleges and earnestly contends that the popular name and ballot title of the proposed amendment are insufficient and invalid because they do not convey a fair, full and reasonably intelligent idea of the scope and import of the measure to be voted on, and fail to give the elector information concerning the choice he is called on to make between the retention of the existing law and the substitution of the proposed amendment. It is also argued that they contain partisan coloring and fail to give the elector a fair idea of the far reaching effects of the measure; and that the popular name especially is invalid because it is calculated and intended to give exactly the opposite impression of the contents of the proposed amendment from the true contents thereof and to induce the electorate into believing that the proposed amendment does something that it does not do.
We recently restated the rules to be applied in determining the sufficiency of ballot titles in Bradley v. Hall, Secretary of State, 220 Ark. 925, 251 S. W. 2d 470: ‘ ‘ On the one hand, it is not required that the ballot title contain a synopsis of the amendment or statute. Sturdy v. Hall, 204 Ark. 785, 164 S. W. 2d 884. It is sufficient for the title to be complete enough to convey an intelli gible idea of the scope and import of the proposed law. Westbrook v. McDonald, 184 Ark. 740, 43 S, W. 2d 356, 44 S. W. 2d 331. We have recognized the impossibility of preparing a ballot title that would suit every one. Hogan v. Hall, 198 Ark. 681, 130 S. W. 2d 716. Yet, on the other hand, the ballot title must be free from ‘any misleading tendency, whether of amplification, or omission, or of fallacy, ’ and it must not be tinged with partisan coloring. Walton v. McDonald, 192 Ark. 1155, 97 S. W. 2d 81.
“It is evident that before determining the sufficiency of the present ballot title we must first ascertain what changes in the law would be brought about by the adoption of the proposed amendment. For the elector, in voting upon a constitutional amendment, is simply making a choice between retention of the existing law and the substitution of something new. It is the function of the ballot title to provide information concerning the choice that he is called upon to make. Hence the adequacy of the title is directly related to the degree to which it enlightens the voter with reference to the changes that he is given the opportunity of approving.”
Petitioner argues that the ballot title is fatally defective in that it would repeal or render unconstitutional the so-called “Full Crew Laws” (Ark. Stats., Secs. 73-720, 723 and 726), and numerous other acts and regulations designed to safeguard the public safety and health, without enlightening the voter with reference to the drastic changes that he is given the opportunity of approving. While there may be considerable merit in this contention, we would not strike the ballot title down on that basis alone. In this connection it should perhaps be noted that Section 1 of the amendment condemns all practices known as “featherbedding.” This term embraces numerous types of coercion of an employer by a labor union in which the employer is forced to pay for services not performed. “Featherbed rule” is defined in Webster’s New International Dictionary (Second Edition) as follows: “A union rule requiring an employer to pay unneeded workmen, or to pay for unnecessary or duplicating jobs, or setting limits to the amount of work that workmen may do in a day; for example, a rule requiring a union musician to be paid for standing by idle during the playing of records for broadcasting. ’ ’ Now the term “featherbedding” is not mentioned in the ballot title, which does not inform the voter that all such practices are condemned, but only those requiring more employees than are deemed necessary by the employer, who is made the sole judge of such necessity. While we may not be concerned with the wisdom of a measure that would require one man to do the work of three provided the employer deemed it necessary, this does not relieve the draftsman of the duty to provide an impartial summation of the measure in the ballot title without any misleading amplification, omission or partisan coloring.
When the above mentioned omissions are considered in connection with the proposed popular name, “Freedom to Hire”, which is to be construed along with the ballot title in determining its sufficiency, we hold the ballot title defective and that the prayer of the petitioner should be granted. When the popular name is considered in the light of the true purpose of the proposed amendment which is actually to restrict and curtail the number and hiring of employees, we think it has a manifest tendency to mislead the voter and contains partisan coloring. “Freedom” is an enchanting and bewitching word to every citizen of a democracy. There is some merit in the suggestion that the proposed popular name might leave the erroneous impression with the voter that by passage of the amendment some new freedom to hire rather than to refrain from hiring would be brought about. Similar catch' phrases and slogans which tend to mislead and to color the merit of a proposal on one side or the other have been rejected, or held fatally defective, by other courts. See Say v. Baker, 137 Colo. 155, 322 P. 2d 317; In re Petition of Idaho State Federation of Labor, 75 Idaho 367, 272 P. 2d 707.
The petition for an injunction is granted. | [
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McCULLOCH, C. J.
In each of the two actions now under review John M. Davis, as Bank Commissioner of the State, was the plaintiff seeking to enforce against one of the stockholders in a bank the liability imposed by the banking law for the debts of the banking corporation to the extent of an amount equal to the par value of the stock held in such corporation. In the Moore case the Bank Commissioner sued the stockholders of the Bank of Leola, a defunct banking corporation, and in the Graham case the Bank Commissioner sued the stockholders of the defunct Bank of .Pine Bluff.
The Bank of Leola was incorporated and began business in the year 1907, and was found to be insolvent and was turned over by the board of directors to the Bank Commissioner on January 15, 1915. On April 29, 1915, the Bank Commissioner made a call on the stockholders for the full amount of the double liability prescribed by statute, and upon the defendant’s failure to respond he instituted this action on July 23, 1915. The evidence shows beyond substantial dispute that The Bank of Leola was insolvent at the time that its affairs were taken over by the receiver appointed by the Bank Commissioner; that its liabilities, exclusive of the liability to stockholders on their shares of stock, was $45,862.82, and that the -assets of the bank, according to the appraisement of the fair market value amounted only to the sum of $25,306.96, thus showing insolvency to the extent of the sum of $20,-555.86 of liabilities over the assets. The evidence shows that a considerable portion of the liabilities of the bank existing at the time it was taken over by the Bank Commissioner was incurred prior to January 1,1914, the date on which the present banking law went into effect. The conclusion reached by the court with respect to the imposed liability under the statute renders unnecessary to inquire how much of the indebtedness was incurred prior, and how much subsequent to the said date on which the banking law went into effect. The ease was tried before the court sitting .as a jury and there was a finding by the court in favor of the defendant. The Bank Commissioner appealed from the judgment rendered by the court on its finding.
The Graham case was transferred from the circuit court to the chancery court, and was heard by the chancellor upon the pleadings, the decree being in favor of the Bank Commissioner, from which the defendant prosecuted an appeal.
The same questions arise in each case, and may be disposed of in one opinion. The statute under which this litigation arose was an act of the General Assembly of 1913, approved by the Governor March 3, 1913, Acts of 1913, page 462. The last section, however, provides that the act should not take effect until January 1, 1914. The sections of the statute which, are necessary to notice in the consideration of these cases read as follows:
“Section 4. The Secretary of State shall turn over to the State Bank Department all papers, hooks, records, charters, articles of partnership, articles of agreement and amendments thereto, in his office relating to hanks, trust companies and savings banks. It shall he the duty of each hank heretofore organized and doing business in this State to report within thirty days after this act goes into effect to the Bank Department, a full and complete list of its stockholders, or members, as the case may be, showing the residence and the amount of stock or interest owned by each, and all such banks as shall make such report and declare its purpose to continue business under this act shall be authorized to do so without the payment of any additional fee, or without the filing of any additional articles of agreement or articles of partnership, providing the legal fees have once been paid-for such service. Any bank, trust company or .savings bank that shall fail to make report and declare its purpose to continue business, shall not be allowed to do business in this State, and all such as have not paid fees shall pay the same fees as are provided for herein.”
“Section 20. Any bank organized under the laws of this State shall be permitted to receive money on deposit, and to pay interest thereon; to buy and sell exchange, gold, silver, coin, bullion, uncurrent money, bonds of the United States, or of this State, or of any city, county, school district, or other municipal corporation or improvement district thereof, and State, county, city, township, school district, or other- municipal or improvement district indebtedness; to lend money on chatttel and personal security, or on real estate secured by deeds of trust; provided, that all such institutions now organized and doing business in this State are hereby permitted to continue such business; but in all other respects their business, and the manner of conducting same, and the operation thereof shall be carried on subject to the laws of this State, and in accordance therewith. ’ ’
Section 36 reads in part as follows:
“The stockholders of every bank doing business in this State shall be held individually responsible equally and ratably, and not one for another, for all contracts, debts and engagements of such bank, to the extent of the •amount of their stock therein, at the par value thereof, in addition to the amount invested in such stock. ’ ’
Other sections provide for the Bank Commissioner taking charge of a bank when found to be insolvent, either on the initiative of the directors of the bank, or on the initiative of the commissioner himself, and full authority is conferred by the statute upon the Bank Commissioner to wind up the affairs of the bank by collecting the debts due and claims belonging to it, and assets, converting the same into money and discharging its liabilities. The concluding paragraph of section 53, which sets forth the power and duties of the commissioner, reads as follows:
“The commissioner shall collect all debts due and claims belonging to it and upon the order of the chancery court of the county in which it is doing business, may sell or compound all bad or doubtful debts, and on like order may sell all its real and personal property on such terms as the court shall direct; and if necessary to enforce the liabilities of its stockholders.”
It is contended that the statute is unconstitutional, especially if construed to have a retroactive effect so as to make stockholders liable for debts of the bank incurred prior to the time that the statute went into effect, for the reason that it would constitute an impairment of the obligation of the contract between a bank and its stockholders. We are unwilling to give assent to that view of the question at issue, for to do so would disregard prior decisions of this court.
(1) The Constitution of 1874 (article 12, section 6) reads as follows:
“Corporations may be formed under general laws, which laws may, from time to time, be altered or repealed. The General Assembly shall have the power to alter, revoke or annul any charter of incorporation now existing and revocable at the adoption of this Constitution, or any-that may hereafter be created, whenever, in their opinion,, it may be injurious to the citizens of this State, in such a manner, however, that no injustice shall be done to the corporators.”
That provision of the Constitution has been con-; strued by this court to empower the lawmakers of the.State to amend or revoke charters granted to corporations, without any restrictions except that “no injustice, shall be done to the corporators.” Railway Company v. Gill, 54 Ark. 101; Leep v. Railway Company, 58 Ark. 407; Railway Company v. Paul, 64 Ark. 83; Woodson v. State, 69 Ark. 521; Ozan Lumber Co. v. Biddie, 87 Ark. 587; Arkansas Stave Co. v. State, 94 Ark. 27.
In each of those cases it was held to be within the,, province of the Legislature to impose new terms and obli-. gations upon corporations under the reserve power to. amend or revoke charters, and it was held that it was a; matter for determination in each case as to whether the. legislation came within the constitutional inhibition that “no injustice shall be done to the corporators. ’ ’ The doctrine was so carefully and learnedly elaborated by Judge Battle in the Leep case, supra, that it is unnecessary to. renew the discussion.
The doctrine clearly applicable to the present case was summed up in that opinion as follows:
“Natural persons do not derive the right to contract: from the Legislature. Corporations do. They possess only those powers or properties which the charters of. their creation confer upon them, either expressly, or as. incidental to their existence; and these may be modified: or diminished by amendment or extinguished by the repeal of the charters. ’ ’
The same doctrine was forcefully reiterated by Judge Riddick in the case of Woodson v. State, supra.
But it is argued that those cases have no application: to the questions now presented for the reason, it is stated,: that the court was dealing solely with the question of the: relative rights of the public and of the corporation itself, - whereas in the present cases we deal with the rights of the stockholders and that the statute operates as an impairment of the contract between the corporation and its stockholders. The fundamental error of the argument is in the assumption that the statute deals with the contract between the stockholder and the corporation. We think, on the contrary, that the statute deals entirely with the rights of the public as against the corporation and its stockholders, fixing the terms under which the franchise may be operated. The liability of stockholders for the debts of the corporation arises altogether by force of the statute and not out of the contract between the stockholders and the corporation. The obligation of that contract is merely that the corporation shall answer to the stockholders to the extent of the par value of the stock and the accumulated profits. In other words, the value of the stock is the measure of the contractual liability of the corporation to its stockholders. The Supreme Court of the United States in Christopher v. Norvell, 201 U. S. 216, in discussing the question of liability of stockholders under the National Banking Law, said that “although in a limited sense there is an element of contract” in a person having become a shareholder in a corporation, the liability of a shareholder as such “has its sanction in the statute creating liability against each shareholder. ’ ’
We think that our own cases cited supra, deciding as to the validity of other statutes, are conclusive of the question now before us, but there are decisions of other courts on statutes similar to the one now involved which hold that such statutes are free from the objections now urged. Williams v. Nall, 108 Ky. 21; McGowan v. McDonald, 111 Cal. 57; Bissell, Receiver, v. Heath, 98 Mich. 472.
(2) The effect is the same, so far as concerns the validity of the statute, even when it is construed retrospectively so as to make the stockholders liable for debts already incurred before the statute went into effect. The statute constituted an imposition of new terms upon which corporations of this character may continue to do business, and, as before stated, the power to amend or revoke the charter includes the power, of course, to impose any new terms which work no injustice to the stockholders within the meaning of the provisions of the Constitution. Subscribers for or purchasers of stock in a banking corporation prior to the enactment of the statute now under consideration took their stock charged with notice of the power of the law-makers to amend the provisions of the law with respect to the terms upon which corporations may do business.' This is so by virtue of the express reservation in the Constitution of the power of the law-makers to amend or revoke charters, and there can be no legal objection to legislation of this kind which does no injustice to the holders of shares of stock in a corporation. They took the stock with notice of the power of the Legislature and must abide by any reasonable provision which the Legislature may from time to time prescribe. The statute does not, it must be remembered, impose any unconditional liability on the stockholders. The liability arises,- not .by virtue of the -statute alone, but it arises upon the acceptance of those terms by a continuation óf the corporation in. the banking business. Section 4 declares a period of time within which all banking corporations had after the act went into effect to signify acceptance of the new terms prescribed by the statute . or to discontinue the business sought to be regulated by the statute. Section 20 defines the banking business and the proviso therein preserves the corporate status of all such concerns, whether the charter powers were the same as prescribed by the new statute or not, but compels them in all other respects to comply with the terms of the new statute.
(3) It is thus -seen that the statute was intended only to prescribe terms upon which banking corporations might thereafter continue in business, and it imposed no additional liability upon the stockholders unless those terms were accepted by a continuance of the corporation in that business. So the -statute falls within the principle announced so often by this court, that the Con 'stitution reserves the power of the law-makers to amend •charters of corporations by prescribing new terms upon ■which they may do business, or even to revoke charters of corporations found to be injurious to the public inter? est, either an amendment or revocation, being without ini-justice to the stockholders.
We do not think that this statute falls within thé •'terms of the limitation upon the power of the Legislaturé with respect to confining amendments to those which do ho injustice to the corporators. The statute, as we have already seen, does not impose an absolute -liability on the shareholder of stock, nor does it compel the corporation ;or its stockholders to accept the provisions of the statute. It does not operate in any sense as a confiscation of the shares of stock, for the corporation may be wound up and in that way the property interest of the stockholders preserved or an individual stockholder may sell his stock if he objects to the corporation continuing business under the new terms prescribed. It can not be assumed that the new terms prescribed by the statute operate as an impairment or depreciation of the value of the stock, and that an objecting stockholder would be unable to dispose of his shares of stock at full value. The statute is reasonable and just alike to the public and to stockholders in banking corporations, and for that reason, if for no other, it can not be assumed that the imposition of new methods of business and new terms upon which a corporation, may operate business would depreciate the market’ value “of stock in such corporation.
It is evident, we think, that the Legislature intended to give a retroactive effect to this statute so as to make it apply to all banking corporations which continue in business. We do not ignore the well-known presumption against giving, by implication, a retrospective effect to ■statutes. The rule is, we know, that every statute is presumed to have been intended to act prospectively unless" otherwise expressed, but when this statute is considered as a whole, it is obvious that the Legislature intended to impose liability for all the indebtedness of a bank whether it accrued prior to the time the act went into ; force- or thereafter. It is difficult to separate, the obliga-' tions of a going business concern like a bank. Of course, ■ after it becomes insolvent it would be possible for the Bank Commissioner to ascertain and separate the obligations of the bank which accrued subsequent to a certain date and impose the statutory liability against stockholders only as to such indebtedness. But that would not be • the convenient or orderly method of winding up the affairs of -such a corporation and applying its assets rata-; bly among the creditors. The statutory scheme would, not, we think, be complete and efficacious unless construed t to impose liability on the stockholders for its debts. irre: , spective of the time when contracted,, and this affords a.strong reason for construing the statute as operating. retroactively. At any rate, the statute declares that, stockholders of “every bank doing business in this, State” — that is to.say, all who did business in the State, after the statute went into effect — ■“ shall be liable for all. contracts; debts and engagements of such bank” to the: extent of their stock, etc., and. the clear inference from¡ this language is that from and after the period stated the stockholders should be liable for all debts of the bank whether contracted before or after that time.
Our conclusion, therefore, is that the statute applies retroactively, and that as such it is not in conflict with the Constitution-of this State or of the United States.
(4-5) There are still other important questions involved in these appeals. It is claimed that under the peculiar language of section 23, hereinbefore quoted, which is the. only part, of the statute conferring authority on the commissioner to sue a stockholder to enforce the double liability for indebtedness of the bank, he can do so only when ordered by the chancery court. The language of this section, as well as that of many other provisions of the -statute, are copied from the National Banking Act of Congress, which had been construed by the Supreme Court of the United States prior to the passage of our statute. In other words, our statute is a borrowed one, and, according to established canons of construction, we take the statute with its judicial interpretation. It seems clear to us from analysis of the language of this section that that part of the statute which relates to the enforcement of double liability is not dependent upon an order of the chancery court, but the duty is imposed upon the Bank Commissioner, independently, to enforce that liability.
The further question is raised whether or not the action of the Bank Commissioner in levying the assessment for the stockholders is conclusive as to the necessity for the call and the amount thereof. In other words,-is it open to inquiry whether or not the corporation is insolvent, and, if so, to what extent is it necessary to impose liability on the stockholders, or is the act of the Bank Commissioner conclusive of those questions in a suit to enforce the liability? That question-is, we think, concluded under the doctrine of the effect of borrowing a statute with its interpretation from another jurisdiction. The provisions of our -statute are almost identical with the National Banking Act with regard to the enforcement by the Bank Commissioner of the double liability of stockholders. Neither of the statutes provide in detail how the liability shall be enforced, but each of them do provide that it shall be enforced, under our statute by the Bank Commissioner, and under the National Banking Law by the receiver appointed by the comptroller. Each of the statutes declares the double liability in precisely the same language and authorizes the Bank Commissioner, or the receiver appointed by the comptroller, as the case may be, to take charge of the assets of the bank and distribute the same. The Supreme Court of the United States in a number of cases, beginning with the case of Kennedy v. Gibson, 8 Wall. 498, has decided that the decision of the comptroller as to the insolvency of the bank, the necessity for imposition of double liability on the stockholders and the amount thereof, is conclusive and can not be controverted by the stockholders in a suit brought by the comptroller to enforce the liability.
(6-7) Giving effect, as we should, to this interpretation of the borrowed statute, we must hold that the action of the Bank Commissioner in making the assessment of liability of individual stockholders is conclusive in an action to enforce that liability. The remedy of a stockholder for the correction of mistakes of the Bank Commissioner in declaring an excessive amount due, must arise in the distribution of the funds. Of course, we are speaking now with reference to an assessment made by the commissioner free from any charge of fraud or collusion. It is unnecessary to determine now what the remedy of a stockholder would be where a charge of that kind is made against the good faith of an assessment.
It follows from what we have 'said that the circuit court erred in its decision of the Moore case, and that the judgment in that case is reversed and the cause remanded for further proceedings in accordance with this opinion. The decree of the chancery court in the Graham case was correct and the same is affirmed. | [
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WOOD, J.,
(after stating the facts). I. This court, in cases too numerous to mention here, has held that continuances, in criminal as well as civil cases, are, as a general rule, within the sound discretion of the trial court, and a refusal to grant a continuance is never a ground for a new trial unless it is made to appear that such discretion has been abused to the prejudice of the defendant. In some of our cases much stronger language is used in announcing the law to the effect that in passing on motions for continuance this court will not disturb the ruling of the trial court unless it appears that such ruling, in denying the same, is arbitrary and capricious, thereby manifesting such an abuse of the court’s discretion as results in the denial of justice. Smedley v. State, 130 Ark. 149.
Perhaps the most cogent language used in this connection in any of' our cases is that by Mr. Justice Smith in Loftin et al. v. State, 41 Ark. 153, where he says: “It must be a flagrant instance of the arbitrary or capricious exercise of power by the circuit court, operating to the denial of justice, that will induce us to interfere.”
But see the language of Judge Lacey, in the very earliest case upon the subject, in Burrus v. Wise & Hyman, 2 Ark. 33, 42.
In some of the cases the rule is expressed in this way: “Continuances are largely in the discretion of the trial court, and their discretion will not be controlled except in cases of manifest abuse.” Puckett v. State, 71 Ark. 62, and cases there cited. While in other cases it is stated: “Motions for continuances in the cases are matters resting largely in the sound discretion of the trial court, and rarely afford grounds for reversal unless it is made to appear that such discretion has been abused.” Vannetta v. State, 82 Ark. 203.
Whether the milder or the stronger language employed by our oases to express the rulings in regard to controlling the discretion of the trial court in matters of continuances be applied to the facts of this record, it seems clear to a majority of us that there was no abuse of the court’s discretion in .overruling the appellant’s motion for a continuance. In the first place, the court might have very well concluded that inasmuch as the sheriff of Mississippi County had returned a non est, it would be confronted with the same conditions at the next term. Public officers will be presumed, until the contrary is shown, to have faithfully discharged their duty, and we can not assume that the sheriff, in making a non est return, did so without any attempt upon his part to obey the mandate of the subpoena in making an honest éffort to find the witness and serve the same upon him. In the second place, the court did not abuse its discretion in concluding that the testimony of Toms would have been cumulative. The appellant himself and two other witnesses testified to all the facts that appellant claimed in his motion for a continuance would have been shown by the testimony of Toms, towit: ' That the appellant purchased the sow in good faith from Toms. We have over and over again announced that it is not error to overrule a motion for a continuance on account of the absence of a witness whose testimony would be merely cumulative. Goddard v. State, 100 Ark. 149; Johnson v. State, 89 Ark. 46, and other cases cited in the Attorney’s General’s brief.
II. The action of the court in taking up the motion for a continuance after ten of the jury had been selected .and permitting evidence to be adduced for and against the motion was not in regular order, but we fail to discover that anything was said or done by the witnesses, the attorneys or the court that was calculated in the least to cause any sensible juror to forget the obligation of his oath to try the case according to the law and the evidence.
III. There was no abuse of the discretion of the court in permitting the jury to take with them to the jury room for examination in their deliberations the bill of sale. Appellant introduced tbis bill of sale bimself. By so doing be vouched for its authenticity. He was relying upon it as a most convincing piece of evidence, and such being the case be certainly could not be prejudiced, at least would have no right to complain, that the paper was subjected to the most crucial inspection that the jury might make of it to test its genuineness. See Harshaw v. State, 94 Ark. 343. If it could not stand the test it was not competent evidence at all.
IY. It does not seem to us that the facts present a very strong case for conviction, but after a careful consideration of the evidence, which speaks for itself, and is fully set forth in the statement of the case, we can not say that the verdict is wholly without substantial evidence to sustain it. It was the province of the jury to weigh it and give it such credit as they believed the witnesses were entitled to, and when considered from the viewpoint of the strongest inference of guilt that might be drawn from it, it can not be said that there is no substantial evidence to sustain the verdict.
Finding no error, therefore, in the record, the judgment must be affirmed. | [
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HUMPHREYS, J.
Appellee instituted suit against appellant in the-Jackson Circuit Court to recover $2,900 for an injury to his hand received on the 31st day of May, 1916, while operating a cut-off saw in appellant’s handle factory located at Newport. The gist of the complaint was that the injury occurred on account of the negligence of appellant in furnishing a saw with two teeth out, which rendered the saw unsafe and dangerous. Appellant answered that appellee was guilty of contributory negligence, and had assumed all risk incident to the employment. The cause was heard upon the pleadings, oral evidence and instructions of the' court. The jury rendered a verdict in favor of appellee for $2,500. From the judgment rendered thereon, an appeal has been prosecuted to this court.
The saw was circular, containing eighty teeth, and so arranged that material was fed to it by means of a sliding table on the right. The trimmings from the handles and block-saws were put into bundles, laid upon the table, then pushed by the operator so as to bring the material in contact with the saw. In this way, the bundles were sawed into stove wood which fell into a chute on the left of the saw. Appellee was engaged in sawing one of these bundles into stove wood at the time the injury occurred. He sawed one end of the bundle off and turned it to saw the other end off. The bundle was laid upon the table and with his hands resting upon the bundle he pushed it and the sliding table toward the saw. Instead of sawing the bundle in two, the saw hung and pressed the left end of the bundle downward and the right end upward; and in the upward movement his left hand was thrown against the saw. Appellee had worked twenty-two months, during a period of four years, in and about the handle factory. During that time he had operated the cut-off saw about four months. When operating the saw, he filed and shaped the teeth. Two teeth, quite a little distance apart, were broken out of the saw. When appellee discovered one tooth missing, he consulted the superintendent with reference to- the danger, and was informed the broken tooth made no difference and advised to continue work. When he discovered the second missing tooth, he again consulted the superintendent who reiterated his. former statement, and promised to replace the saw as soon as the new one arrived. A new one had been ordered. Relying upon this promise, appellee continued to operate the saw until tlie next morning when the injury occurred. In response to hypothetical questions, the opinions of three witnesses, experienced in the use of a cut-off saw, were admitted as evidence in the case over the objection of appellant. Many other facts pertaining to the injury and extent thereof appear in the record, but we content ourselves with reciting only such facts as we deem necessary in passing upon the vital questions in the case.
It is insisted that the undisputed facts bind appellee as a matter of law to the assumption of the risks connected with the operation of the saw. It is true appellee was skilled in the use of the saw, had complete control of same when operating it, knew how to file and shape the teeth and had knowledge that two teeth were broken; but he informed appellant of the condition of the saw and sought advice from appellant’s superintendent. He continued work at the insistence of appellant, and upon the distinct promise that appellant would replace the - saw with a new one which had already been ordered. These facts differentiate the instant case from Erdman v. Illinois Steel Company, 95 Wis. 6, cited by learned counsel for appellant, and harmonizes the ease with the rule laid down in the following Arkansas cases: St. L., I. M. & S. Ry. Co. v. Mangan, 86 Ark. 507; Marcum v. Three States Lumber Co., 88 Ark. 28; St. L., I. M. & S. Ry. Co. v. Holman, 90 Ark. 555.
(1) The cases last cited clearly announce the rule that an employee may continue, in the exercise of due care, to use a tool or defective piece of machinery for a reasonable time, upon promise of an employer to repair it, unless the defect renders the tool or machinery so obviously dangerous that a reasonably prudent person would not use it at all. This rule as applied to the facts also disposes of appellant’s contention that the physical facts and evidence fail to establish negligence on the part of appellant.
(2) It is also insisted that the three witnesses who gave expert testimony were not sufficiently qualified. T. E. Grillará, the first expert witness, had worked around mills for seventeen years, and had four years’ actual experience in operating circular saws. D. F. Woodruff, the second expert witness, had about twelve years ’ experience in working around mills, and during ten years of that time operated saws of different kinds, and operated a saw of this particular kind a year and one-half. J. A. Falana, the third expert witness, had operated saws of all kinds for forty years. This court has laid down the rule in cases where expert evidence is applicable, that the opinion of a witness is admissible in evidence — “Where experience and observation in the spécial calling of the witness gives him knowledge of the subject in question beyond that of persons of common knowledge.” Dardanelle, P. B. & T. Co. v. Croom, 95 Ark. 284, and cases cited therein on this point.
The matter in issue was not within the knowledge and experience of the ordinary juror, so we think it that character of case in which expert evidence is admissible. The case last cited is also authority upon this point.
(3) Lastly, it is insisted that the court erred in approving the hypothetical questions propounded to the expert witnesses. It is necessary to include in hypothetical questions the undisputed facts, and the facts assumed to have been established by the party propounding the question may be included, if within the issues. The allegation here was that appellant failed to furnish a safe appliance with which to work, the installed saw being dangerous by reason of the teeth being out. The hypothetical question contained a suggestion of danger on account of the teeth being filed and shaped with a hook in them instead of being filed and shaped straight out. The breadth and scope of the questions not only covered the saw as described with reference to the teeth being out, but with reference to any other defect. It also covered dangers generally qn account of installation. Specific objections were made to the questions at the time on account of their unwarranted breadth and scope. We think the dangers suggested on account of installation and operation were not included in the pleadings, and the questions and answers thereto prejudicial to the rights of appellant. The questions should have been limited to the defect alleged.
As the case must be reversed, we deem it inappropriate to discuss the question of whether the verdict was excessive.
For the error indicated, the judgment is reversed and the cause remanded for a new trial. | [
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HART, J.
C. E. Shiffer brought suit in the Pulaski Circuit Court against the Minnequa Cooperage Company for false imprisonment. The case went to trial before a jury of twelve duly qualified electors of Pulaski County. At the conclusion of the trial the cause was submitted to the jury and it retired to consider of its verdict. After deliberating for some time, the jury returned into court and reported that it was unable to agree upon a unanimous verdict. Whereupon the court called the attention of the jury to an act of the Legislature for the year 1917, empowering nine or more jurors to return a verdict in civil cases. The jury again retired to consider of its verdict and returned into court with a verdict signed by ten jurors. The court declined to accept the verdict on the ground that the act in question is unconstitutional. The so-called verdict was in favor of the defendant and the Minnequa Cooperage Company filed a petition in which the foregoing facts are set forth and .asks this court to make an order requiring the circuit judge to accept said verdict and render judgment upon it.
The parties might have waived a jury in this case or they might have agreed that a less number than the whole might render a verdict in the case, but they did not do so. This is so because the court never permitted the verdict to be returned and judgment to be rendered upon it. So it can not be said that the plaintiff in the ease waived a unanimous verdict, op that his conduct amounted to an agreement that a less number than the whole might return a verdict. If the court had accepted the verdict .and he had made no objections, it might be said that he could not speculate on the verdict by allowing it to be returned without objection, and then when he found that it was against him, object to it. Here, however, the court refused to receive the verdict.
This brings us to the question of whether the Legislature has the power to provide-that a number of the petit jury less than the whole may render a verdict in a ease where the Constitution gives to the party a right to a trial by jury. This was a common law action and the right of a trial by jury is guaranteed by our Constitution. Govan v. Jackson, 32 Ark. 553, and State v. Churchill, 48 Ark. 426.
Section 7 of the Declaration of Rights of our Constitution reads as follows:
“The right of trial by jury shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy; but a jury trial may be waived by the parties in ¡all cases in the manner prescribed by law. ”
This court, in construing a similar provision of .an earlier Constitution of this State, said that the trial by jury is a great constitutional right, and when the convention incorporated the provision into the Constitution of this State, it must unquestionably have had reference to the jury trial as known .and recognized by the common law. The court further held that the word, “jury,” at common law, means twelve men, and that the Legislature can not abridge the number. Larillian v. Lane, 8 Ark. 372; State v. Cox, 8 Ark. 436; Cairo & Fulton Railroad Co. v. Trout, 32 Ark. 17.
These decisions settle beyond controversy that the words “trial by jury,” as used in the section of the Constitution under consideration, must be given their common-law meaning. At common law the essential elements of a trial by jury are and always bave been, number, impartiality and unanimity, On tbis question tbe great English commentator said:
“Upon these accounts tbe trial by jury ever has been, and I trust ever will be, looked upon as the glory of tbe English law. And if it has so great an advantage over others in regulating civil property, bow much must that advantage be heightened when it is applied to criminal cases. But this we must refer to the ensuing book of these commentaries; only observing for the present that it is the most transcendent privilege which 'any subject can enjoy, or wish for, that he can not be affected either in his property, his liberty, or his person, but by the unanimous consent- of twelve of his neighbors, and equals.” Lewis’ Blackstone, Book 3, page 379, vol. 2, page 1340.
Mr. Proffatt, the well known author on Jury Trial, recognizes that the unanimity of the twelve members constituting the jury is an essential attribute of a trial by jury. Proffatt on Jury Trial, sec. 76, et seq. The author goes on to give the reasons for and against the requirement, but we are not concerned with that, for, as already seen, our Constitution has used the word in its common-law sense.
In Lommen v. Minneapolis Gas Light Co., 60 A. S. R. 450, the Supreme Court of the State of Minnesota held that a statute providing for struck jurors does not infringe a constitutional mandate that, “the right of trial by jury shall remain inviolate.” The learned judge in that case, however, in discussing the question of what is a trial by jury within the meaning of the Constitution, said:
“The expression ‘trial by jury’ is as old as Magna Charta, and has obtained a definite historical meaning, which is well understood by all English-speaking peoples; and, for that reason, no American Constitution had ever assumed to define it. We are, therefore, relegated to the history of the common law to ascertain its meaning.
“The essential and substantive attributes or elements of jury trial are and always have been, number, impartiality and unanimity. The jury must consist of twelve; they must be impartial and indifferent between the parties; and tbeir verdict must be unanimous.” The decision in tbe case was based on tbe ground that the statute did not affect either of these three essential attributes of a trial by jury. The cases cited below are express authority for the proposition that unanimity was one of the essential features of a trial by jury at the common law. They also hold, in construing a similar provision of their Constitutions that the expression ‘trial by jury’ takes its common-law meaning, and that statutes adopting less than a unanimous verdict are unconstitutional. Work v. State, 2 Ohio St. 296, 59 Am. Dec. 671; Opinion of the Justices, 41 N. H. 550; Jacksonville, etc., R. Co. v. Adams (Fla.), 24 L. R. A. 272, and case note; City of Denver v. Hyatt (Colo.), 63 Pac. 403; Carroll v. Byres (Ariz.), 36 Pac. 499; Lawrence v. Stearns, 11 Pick. (Mass.) 501; American Publishing Co. v. Fisher, 166 U. S. 464; Kleinchmidt v. Dunphy, 1 Mont. 118; First National Bank of Rock Springs v. Foster (Wyo.), 54 L. R. A. 549; Bradford v. Territory (Okla.), 34 Pac. 66, and 16 R. C. L., p. 181.
The Seventh Amendment to the Constitution of the United States provides:
“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. ’ ’
In Springville v. Thomas, 166 U. S. 707, the Supreme Court of the United States, in construing an act of Congress authorizing the territorial Legislature of Utah to provide for verdicts in civil cases by less than the whole number of jurors, held that the act was clearly prohibited by the Seventh Amendment to the Constitution of the United States. Chief Justice Fuller, in reviewing the construction placed upon the act by the territorial court of Utah, said:
“In our opinion the Seventh Amendment secured unanimity in finding a verdict as an essential feature of trial by jury in common-law cases, and the act of Congress could not impart the power to change the constitu tional role, and could not be treated as attempting to do so.”
In M. & St. L. R. R. Co. v. Bombolis, 241 U. S. 211, Chief Justice White said:
“It has been so long and so conclusively settled that the Seventh Amendment exacts a trial by jury according to the course of the common law, that is, by a unanimous verdict (citing cases), that it is not now open in the slightest question that if the requirements of that amendment applied to the action of the State of Minnesota in adopting the statute concerning a less than unanimous verdict, * * * both the statute and the action of the court were void because of repugnancy to the Constitution of the United States. ’ ’
In that ease, the court held that the requirement of the Seventh Amendment did not control the State courts, even when enforcing rights under a Federal statute like the Employer’s Liability Act. By the Constitution of Minnesota in civil causes, after a case has been under submission to -a jury for twelve hours without .a unanimous verdict, five-sixths of the jury are authorized to reach a verdict, which is entitled to the legal effect of a unanimous verdict at common law. In several of the States majority verdicts may be rendered in civil oases, but this is the result of express constitutional authority. In construing sections of the Constitution similar to the one under consideration the courts have uniformly held that any legislation authorizing a verdict by less than the whole number of jurors in .any case where a jury trial is a matter of right is unconstitutional, unless such legislation is expressly authorized by a constitutional provision.
On this point in addition to the authorities cited above, see 24 Cyc., p. 186, and cases cited. The reason is that the words “trial by jury” were used by the framers of the Constitutions of the various States in their common-law sense.
It follows that the act of the Legislature under, consideration is unconstitutional and the prayer of the petition will be denied. | [
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WOOD, J.,
(after stating the facts). Appellees demurred to the complaint on the ground that the court did not have jurisdiction, and the demurrer was overruled and they excepted to the ruling, but they did not stand on the demurrer, and afterwards answered and have not urged in their brief that the court erred in taking jurisdiction of the case. While the complaint does not state expressly that the appellants, or any of them, are in possession of the land, it does set up that improvements were made, and taking the complaint all together, it should be treated as one where the appellants, or some of them, were in possession of the lands in controversy, holding the same for the others, who are appellants, and who were tenants in common. But the suit, so far as the appellees are concerned, can not he treated as a suit merely in partition, because appellants, in their complaint, alleged that the appellees had no right or claim to any of the land, and in their response to appellees’ answer they denied that appellees “acquired or had any rights in said land.”
(1) Therefore, while the complaint could be treated as one for partition so far as the tenants in common were concerned, whose interests or title were not disputed, so far as the appellees are concerned, it is more in the nature of a suit on the part of the appellants to quiet the title as against them, and it must be so treated in order to give the court jurisdiction. It is well settled by numerous decisions of this court that a bill in equity will not lie to partition lands the title to which is in dispute. Cannon v. Stevens, 88 Ark. 610.
(2) In Maupin v. Gaines, 125 Ark.-181, 185, we said: “Unless a tenant in common is in possession, or his title is admitted, he can not maintain a bill in equity for the partition thereof. But it is equally as well settled that when a court of chancery has possession of a case on some ground of equity jurisdiction wholly distinct from partition, the cause will be retained for that purpose. ’ ’
(3) Under the allegations of the complaint that appellants were the owners of the land, and treating the allegations as sufficient to show that they were in possession, and that the appellees were asserting a claim of title to which they had no right, and praying that a decree be rendered declaring and defining the rights of all the parties to the action, the court had jurisdiction of the cause on a ground wholly distinct from that of partition, and could therefore retain the cause for the purpose of partitioning the land among the owners after the rights of all parties were settled and determined by the decree. Such being the issues raised by the pleadings, the decree rendered February 1,1915, was a final decree from which an appeal could have been prosecuted. That decree set- tied the issues raised by the pleadings and finally determined the titles and interests and declared the rights of the parties to the lands in controversy.
“A decree which determines the issues set forth in the pleadings, mid directs a partition of the property accordingly and in accordance with the rights of the parties as determined by such decree, is regarded as final, for such decree leaves nothing to be done but execute the directions therein contained.” Knapp on Partition, p. 497. See also Black on Judgments, section 39.
Under our statute for partition and sale of land, Kirby’s Dig., chap. 120, it is provided that the court “shall declare the rights, titles and interests of all the parties to such proceedings, * * * and shall determine the rights of the parties in such lands and tenements, and give judgment that partition be made between such of them as shall have any right therein, in accordance with such right thus ascertained.” Section 5776.
(4-5) After the court had rendered this judgment, its functions, under the statute, in appointing commissioners and giving them directions to make the partition so adjudged, and the duties of the commissioners to make partition according to the judgment of the court, or to ascertain and report that the partition could not be made without great prejudice to the owners, and other duties as defined by the statute are all of a ministerial, rather than a judicial, character. Kirby’s Digest, § 5777, et seq. 5782, inclusive. The functions of the commissioners in carrying out the judgment are analogous to those of a master in chancery who is appointed to state an account in accordance with the findings and decree of the court. In Young v. Rose, 80 Ark. 513, there was a decree which adjudged the rights of the parties and a master was appointed and directed to state an account in accordance with the decree. The master performed his duties and made a report, which followed the decree. The judgment in the case was rendered over a year before the appeal was taken, and the question was whether the judgment declaring and fixing the rights of the parties was final, or whether it was subject to review on appeal from the subsequent decree confirming the report, of tbe master. The court said: “A decree which settles the rights of the parties and leaves nothing to the master but a statement of an account fixed by the decree is a final judgment. As no appeal was taken from this judgment within the time allowed by statute it must be treated on this appeal as the law of the case, and that being so, the subsequent decree confirming the report of the master made in obedience to the first decree can not be questioned. ’ ’
In Clark v. Lesser, 106 Ark. 207, Lesser brought suit against Clark and others to quiet title and for partition of certain land. A decree was rendered against appellants quieting title in the appellee and ordering a partition of the land, from which decree an appeal was prosecuted. The appellants contended that the appeal was premature, and we said (p. 213): “The decree of the chancery court was a final decree as to the title to the land in controversy and the appeal was therefore not premature.” See also Bradley Lumber Co. v. Hamilton, 109 Ark. 598.
In Davie v. Davie, 52 Ark. 224, we held: “Where a decree determines the right to property, and directs it to be delivered up, or directs its sale, and the plaintiff is entitled to have the decree carried into immediate execution, it is to that extent final and may be appealed from, although a further decree may be necessary to adjust an account between the parties. ’ ’
(6) Whatever may be the rule in other jurisdictions, the facts of this record bring it strictly within the rule of our cases which hold that where a judgment or decree which finally settles the rights, title and interests of the parties under the issues raised by the pleadings, and is in such form as to be complete and final, giving the right to have the same put into execution, that such judgment or decree is final and may be appealed from. We are of the opinion, however, that the weight of authority in other jurisdictions is in harmony with the view we here express. See oases cited in brief of counsel for appellees. There is another line of cases which hold that where the judgment on its face shows that it is interlocutory and not complete, but leaves open issues for further judicial determination, that such judgment is not final and no appeal can be taken from it. Hargus v. Hayes, 83 Ark. 186; Brown v. Norvell, 88 Ark. 590; Sennett v. Walker, 92 Ark. 607.
It follows that since no appeal was prosecuted within the time prescribed by law from the original judgment adjudicating the rights of the parties and directing partition, that the present appeal from the order confirming the report of the commissioners, by which the original judgment is sought to be reviewed, must be dismissed.
The proceedings on the bill of review were really in the nature of an independent suit. The bill, in substance, alleged that the appellants were the owners of certain lands by reason of an alleged deed from P. A. Douglas; that M. S. Branstetter is the owner of an undivided one-half interest; that by survivorship appellants were owners of all of it; that the action was to construe the will of S. M. Branstetter, and to have the interests of the parties determined; that the court, in rendering its decree, overlooked the deed of Douglas to S. M. Branstetter and M. S. Branstetter; that S. M. Branstetter owned one-half of said.land, and the other half was in M. S. Branstetter; that the court erred in determining what was the will and what were the interests of the parties to the suit; that the estate was divided under the terms of the will erroneously, and prayed that the decree be vacated, the errors corrected in a new decree drawn in accordance with the facts and the law of the case.
(7) The appellees demurred and answered. The decree on this bill of review shows that the same was heard on the bill of review, the answer and demurrer of the defendants, and that the court dismissed the same. In this state of the pleadings the burden was upon the appellants to show error as a matter of law upon the face of the decree. The bill, on its face, shows an effort to have the chancery court reconsider its original decree in parti tion, and to review tlie evidence and change its conclusions. This can not he done on a hill of review.
In Long v. Long, 104 Ark. 562, 568, we said: “Where ■a former decree is attacked upon the ground that errors of law are apparent on the face of the record, the court is confined to the pleadings, proceedings and decree in the case in which the decree was rendered. It can not look into the evidence to see whether or not the decree is based on a correct finding of facts. ”
In Wood v. Wood, 59 Ark. 441, 445, Judge Battle, speaking for the court, used this language: “In an attack upon a decree by a hill of review for errors of law, a court can not' look into the evidence to see whether the decree is based upon a correct finding of facts. That is the proper office of a court of competent jurisdiction upon an appeal. But, assuming that the facts upon which the decree rests have been properly found, it is the sole duty of a court to inquire whether the record, exclusive of the evidence, contains any substantial error of law pointed out by the bill of review.”
We can not therefore enter upon a consideration of the evidence upon which the original decree was .grounded, even if appellants had brought the same into their record on the bill of review, which they have not done.
Assuming that the facts upon which the original decree rests have been properly found, which we must do, certainly there is no error of law appearing in the record of the original proceedings upon which that decree was based which would warrant this court in setting aside the decree. We must assume that, notwithstanding the exhibit of the Douglas deed, the court, in determining the rights of the parties, ascertained and found facts which justified it in rendering the decree in favor of the appel-lees. The court might have found that what appellants allege and refer to as the codicil to the will of S. M. Bran-stetter was not a codicil at all, but was a provision in the will itself, and that it had been so found and adjudicated by the probate court.
It can readily be seen that facts showing the correctness of the original decree might have been proved. If such facts were not proved, they were matters to be reviewed on appeal from the original decree, and not by bill of review.
There were no errors of law appearing on the face of the record pointed ont in this bill of review. The alleged errors which it seeks to have corrected are errors in the conclusions of the court upon the evidence, and in the construction that it placed upon the evidence. If there were such errors these could and should have been corrected on appeal. The decree of the court was therefore correct in dismissing the bill of review.
Finding no error in the record, the decree is in all things affirmed. | [
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McCULLOCH, C: J.
The bill of exceptions which appears in the record in this case has heretofore been stricken out by an order of the court on the ground that it was not properly certified by the trial judge. We have before us, therefore, a case tried by a jury without the proceedings at the trial being preserved in a bill of exceptions, and we can only look to the state of the record itself to determine whether or not error was committed by the trial court.
It is urged that, notwithstanding the absence from the record of a bill of exceptions, there is error apparent on the face of the record in the ruling of the court striking out the second paragraph of appellant’s complaint.
Appellant sued appellee in the circuit court of Baxter County, the subject-matter of the cause of action in each paragraph of the complaint being commissions alleged to have been earned by appellant on a sale of ap-pellee’s timber. The first paragraph of the complaint sets up a written contract between appellant and appellee whereby the latter employed the former to sell his land or timber for a commission of fifty cents per acre; and the second paragraph sets up an oral contract between said parties on the same date as the written contract set forth in the preceding paragraph for a sale of the same land and timber, and that it was a part of the agreement that appellee was to pay appellant for his services “whatever the services of the plaintiff to the defendant were really worth.” It is alleged in each paragraph that the two contracts referred to were entered into between the parties “on or about the first day of March, 1909,” and that appellant effected a sale of the timber on April 15, 1910. The present action was instituted February 24, 1913, although process was not served on appellee until August 23, 1913. Appellee filed a motion to dismiss the complaint on the ground that the litigation instituted by appellant was vexatious and without merit. It is alleged in the motion that appellant had previously brought an action against appellee in the circuit court of Searcy County on the same cause of action, and dismissed the same after all the testimony had been adduced before the jury, and subsequently instituted another action against appellee in the circuit court of Pulaski County on the same cause of action and dismissed that action, too, after the trial of the cause had progressed beyond the introduction of evidence and approached a point of final submission to the jury.
It was further alleged in the motion that each of said prior actions had been instituted in counties other than that of appellee’s residence, and that appellant had practiced deceit and had resorted to fraudulent artifices to induce appellee to come into those counties for the purpose of serving process on him, and that the present action, as well as the two prior ones, were instituted by appellant for vexatious purposes and solely to harass and annoy appellee into submitting to a compromise. It is alleged that there was no merit in the cause of action set forth in the complaint, and that the same were then barred by the statute of limitations.
The court heard the motion and entered an order overruling the motion so far as it related to the first paragraph of the complaint setting up the cause of action on the written contract, but sustaining the motion and dismissing the action as to the second paragraph, setting up an oral contract.
It appears from the record of the former proceedings that the complaint in the other action had been based upon the .same cause of action as that set forth in the second paragraph. The cause then proceeded to trial on the first paragraph, appellee having filed his answer, and there was a verdict of the jury in appellee’s favor. Appellant filed his motion for new trial, alleging, as one of the errors of the court, the ruling striking out the second paragraph of the complaint. The motion for new trial was overruled, and ninety days was given within which to file a bill of exceptions.
(1) In this state of the record we must assume that the ruling of the court upon the motion to dismiss was supported by sufficient evidence. If the court had the authority to dismiss the action on the allegations set forth in the motion, we must, in other words, assume that the evidence was sufficient to support the finding of the court upon the issue of fact presented by the motion. Billingsley v. Adams, 102 Ark. 511; Armstrong v. Lawson, Admr., 128 Ark. 39, 193 S. W. 258.
(2) The only remaining question is whether or not a circuit court has the power to dismiss an action which is shown to he without merit, and brought for vexatious purposes. The court in which an action is brought has that power if the facts just stated constitute grounds for abatement or dismissal. The fact that an action is brought through had motive or for vexatious purposes is not sufficient to justify a dismissal, but where, in addition to that, it is shown that the cause is without merit and is brought solely for the purpose of harassing and annoying the person sued, then it may be dismissed by the court, for such conduct constitutes an abuse of the privilege of having an adjudication of asserted rights. 14 Cyc. 432. This principle was recognized in Turrentine v. St. L. S. W. Ry. Co., 96 Ark. 181, and Floyd v. Skillern, 121 Ark. 454.
In the Turrentine case, supra, after holding that it was error for the trial court to dismiss an action solely on the ground that plaintiff had not paid the costs of a former action, we said: “We do not mean to say that it is beyond the power of a trial court to dismiss an action found to have been instituted not in good faith, but vexatiously, for the purpose of harrassing and annoying the adversary party. This would be an abuse of process, which the court could correct by dismissal of the action. ’ ’
Giving the presumption, which we must, from the silence of the record, we hold that there is no error of the court shown in dismissing the second paragraph of appellant’s complaint.
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J. Seaborn Holt, Associate Justice.
Appellee, Mahry, a resident of Faulkner County and a user of the ferry in question, on December 2, 1957, filed his petition alleging “Petitioner lives in a portion of Faulkner County near the Arkansas River and near State Highway 60. The river crossing at this point is by ferry known as Toad Suck Ferry presently being operated by a private contractor charging toll. Petitioner frequently uses such ferry and under exacting circumstances pays toll therefor. Act Number Three, First Extraordinary Session, 1957, Sec. 3 appropriated, payable out of the State Highway Department fund, for ferries in the state highway system ‘ $25,000.00 which shall be paid for the purchase of the ferry on the Arkansas River which connects Highway 60 between Faulkner County and Perry County.’ Petitioner alleges that such act is mandatory but that the State Highway Commission has refused to comply with the terms thereof. Compliance would result in purchase by the state and free operation of the ferry. Wherefore, petitioner prays for a writ of mandamus directed to the State Highway Commission compelling it to issue a voucher to the Auditor of the State upon which a warrant for the purchase of the above mentioned ferry may be completed; and in the alternative for a declaratory judgment defining the obligations of the State Highway Commission with reference to the foregoing act.”
Appellant, Highway Commission, demurred to the petition on the grounds that the trial court lacked jurisdiction, that appellee lacked legal capacity to sue, and that his petition did not state a cause of action. From a decree holding that the provision in Act 3 of 1957, which recites that there shall be paid out of the State Highway Department Fund for ferries in the State Highway System “$25,000 which shall be paid for the purchase of the ferry (known as Toad Suck Ferry) on the Arkansas River which connects Highway 60 between Faulkner County and Perry County” was mandatory and directing appellant to procure issuance of the. voucher for $25,000 payable to Clay Cross for the purchase of the ferry, comes this appeal.
All evidence presented in the trial court was contained in the following stipulation of the parties: ‘ ‘ Section 2-A of Act 451 of 1953, Arkansas General Assembly provided $20,000.00 for the construction, operation and maintenance of a river toll ferry on the Arkansas River to connect State Highway No. 60 between Faulkner County and Perry County, by State Highway Commission Minute Order No. 570, dated January 24, 1954, the State Highway Director was ordered to prepare specifications and request bids for construction, maintenance and operation of toll ferry services at said location . . . Plans and specifications were prepared and by duly advertising, bids on the contract for the ferry operation were asked for . . . The only bidder was Mr. Clay Cross, who was notified of his award of the contract on October 5, 1955. The contract between the Highway Commission and Mr. Clay Cross for the construction and operation of the ferry was signed and the performance bond executed on October 17, 1955. The Work Order for the construction of the ferry to begin was issued on November 8, 1955. The ferry barge was accepted by the Highway Department and put in operation by Clay Cross in June, 1956. Under Item 12 of the contract the State had agreed to contribute $20,-000.00 toward the payment of the floating equipment and under Item 22 the payment was to be made to the contractor based upon certified paid invoices presented by the contractor showing sums actually expended for the floating equipment. (Payment of the $20,000 was made to Cross on receipt of the invoices) . . . The ferry began operation in June 1956, and is presently in operation. The traffic count for 1956 showed a daily average vehicle traffic of 21. ... The traffic count for 1957 is attached as Exhibit O and shows the average daily traffic of 11 vehicles. . . . Act 3 of the 1957 Extraordinary Session of the Arkansas General Assembly, the Highway Department’s biennial appropriation, provided ‘for maintenance, construction and repair . . .; and $25,000.00 which shall be paid for the purchase of the ferry on the Arkansas Eiver which connects Highway 60 between Faulkner and Perry Counties . . .’ On January 8, 1958, by letter to the State Highway Commission, Mr. Clay Cross offered to sell his interest in the ferry to the State for $25,000.00 and submitted thereon certain items as being in excess of the $20,000.00 expenditure on behalf of the State which was contributed toward the acquisition of physical assets necessary for the operation of the ferry . . . The Commission officially rejected this offer to purchase on January 24, 1954. The Highway Department inventoried and valued the assets of the ferry at $3,-035.15, . . .”
Act 3 above was “An Act to make appropriation for the State Highway Department from the State Highway Department fund for the construction, reconstruction, and maintenance of roads and bridges in the State Highway System for the biennial period ending June 30, 1959, and for other purposes. Be it enacted by the General Assembly of the State of Arkansas: Section 1. There is hereby established for the State Highway Department, for the biennial period ending June 30, 1959, the following maximum number of regular employees and the maximum salary of such employees; and no greater salary than established herein, except as modified in Section 2 hereof, shall be paid to any employee from appropriations hereinafter made for said Department. Provided further, that it is the intention of this act to make available the maximum salaries provided herein to secure efficient, skilled employees; and in determining the annual salaries of such employees the administrative head of such Department shall take into consideration ability and length of service, but it is not the intention of this act that the maximum salaries shall be paid unless such qualifications are complied with and then only within the limitations of the appropriations and funds available for such purpose.” Then follows the “Maximum number of employees and the maximum annual salary rates,” to be paid for the periods 1957-58 and 1958-59. Section 2 provides for payments for overtime work of certain employees. Section 3: ‘ ‘ There is hereby appropriated, to be payable out of the State Highway Department Fund, for the operation of the State Highway Department, for construction, reconstruction, maintenance, betterment and replacement of roads, bridges and ferries in the State Highway System for the biennial period ending June 30, 1959, the following:
Item Fiscal Years
1957-58 1958-59
(1) Regular Salaries...........................$ 8,662,900 • $ 9,727,600
(2) Extra Help .............................................4,700,000 4,800,000
(3) For maintenance, construction, reconstruction, repair, replacement, relocation, betterment, and operation of roads, bridges and ferries in the State Highway System; including the acquisition of necessary rights-of-way; the purchase, repair and operation of equipment; the purchase of materials and supplies; the payment of departmental current expenses, and the payment of travel expenses, and $25,000.00 which shall be paid for the purchase of the ferry on the Arkansas River which connects Highway No. 60 between Faulkner and Perry Counties, ............................................................$65,280,000 $71,395,000
Total amount appropriated ......$78,642,900 $85,922,600”
Section 4 has to do with the minimum wage scale paid certain employees. Section 5 relates to holidays allowed employees. Section 6. “Provided that any unexpended appropriation balance remaining on June 30, 1958, in the appropriation authorized in Section 3 hereof for Item (1) Salaries, Item (2) Extra Help, and Item (3) Construction, Maintenance and Operation shall, upon resolution of the State Highway Commission, be brought forward and made available for the purposes provided for in Item (3), in Section 3 hereof, during the fiscal year beginning July 1, 1958 and ending June 30, 1959.” Section 7 provides that should any provision of the act be found unconstitutional or void it should not affect the remainder, declares the provisions of the act severable and repeals all laws in conflict therewith.
The primary and decisive question presented is whether Act 3 of 1957 above made it mandatory on the Highway Commission to pay for “Toad Suck Ferry” $25,000,-no more and no less-, by using the following language: “. . . $25,000 which shall be paid for the purchase of the ferry on the Arkansas River which connects Highway No. 60 between Faulkner and Perry Counties.”
After a careful review of the record presented we have concluded that the trial court erred in refusing to sustain appellant’s demurrer. In reaching this conclusion we hold that the above provision in Section 3 of Act 3 above, is not mandatory on the highway commission, but is discretionary and it was the intention of the legislature that it be so in the circumstances. Clearly Act 3 above was an appropriation act only, fixing maximum amounts to be expended by the Highway department for salaries of employees, for payments for highway bridges, ferries, etc., and was not a requirement or mandate to spend specific amounts. In other words, the highway department (or state agency) was not required to spend all the monies appropriated. This act clearly was in compliance with article 5, Sec. 29 of our State Constitution, which requires the maximum amount of any appropriation act to be stated specifically in dollars and cents. As we view this case, the amounts to be spent were discretionary. Our rule is well established that mandamus may be resorted to only when an official or agency refuses to perform a purely ministerial act which a statute imposes upon them. See Pitcock v. State, 91 Ark. 527, 121 S. W. 742.
As pointed out Act 3 above was purely an appropriation act. It appears not to be contended by appellee that in spending the maximum allotments for every purpose specifically set forth in the act, — except for the one purpose here involved- — , the highway department could not use its discretion. But, says appellee, the appellant had no choice or discretion in the purchase of this ferry but to spend $25,000 of the taxpayers’ money for it, regardless of whether it was worth that amount or could be procured for less money. As indicated, it was stipulated that the Highway Department’s inventory showed this ferry to be worth only $3,035.15. Had this directive to provide and spend this amount been provided in a separate act, — as was done in Act 451 of 1953, above, providing for the purchase of the barge — , then we would not hesitate to hold with appellee’s contention for the reason that the intent and purpose of the legislature would be clear. It becomes necessary, therefore, to construe the meaning of this Act 3 above and in doing so one of our cardinal rules is first to endeavor to ascertain the intent of the legislature from the language used in the statute. See McDaniel v. Ashworth, 137 Ark. 280, 209 S. W. 646. Further, the rule is well established that where the language is ambiguous, we may not only look to the language but to the subject matter of the act, the object to be accomplished, pur pose to be served, the expediency of the act, the remedy provided, the consequences following its enactment and various extrinsic matters which may throw some light on the legislative intent. See Holt v. Howard, 206 Ark. 337, 175 S. W. 2d 384. “The primary rule in the construction of a statute is to ascertain and give effect to the intention of the lawmakers, and this intention is to be ascertained from a consideration of the entire act. In arriving at the intention of the lawmaking power it is proper to consider the object to be secured, the circumstances attending the adoption of the measure, and its relation to other laws,” Perry County v. House, 196 Ark. 317, 117 S. W. 2d 342. “In construing a statute, the intention of the legislature is to be ascertained not merely from the language of the act taken as a whole, but, where the language is not free from ambiguity, from the application of the act to existing circumstances and necessities. When the words of a statute are not explicit, the intention of the legislature is to be collected from the context, by considering the subject matter, by looking to the occasion and necessity for the law and the circumstances under which it was enacted, to the mischief to be remedied, the object to be obtained and the remedy in view, by comparing one part with the other, and giving effect to the whole, by looking to the old law upon the subject, if any, and other statutes upon the same or similar subjects, by considering the effects and consequences of a particular construction, and by looking to contemporaneous legislative history and contemporaneous construction of the statute. 25 R. C. L. 1012, 1013,” Cooper v. Town of Greenwood, 195 Ark. 26, 111 S. W. 2d 452. We do not think that here the legislature ever intended that the Highway Department should pay the maximum of $25,000 allotted for the purchase of the ferry, in any event. “When the courts are called on to review and control the official acts of an officer in a co-ordinate branch of the government, they should proceed with extreme caution and circumspection, and the right of the courts to exercise this power should be manifestly clear and free from doubt and not made to depend upon uncertainties or the doubtful construction of a statute,” Jobe v. Urquhart, 102 Ark. 470, 143 S. W. 121.
To carry out the legislative intent the word “shall” may in certain circumstances, we think, as here presented, be construed as the equivalent of “may”. “Ordinarily the words ‘shall’ and ‘must’ are mandatory, and the word ‘may’ is directory, although they are often used interchangeably in legislation. This use without regard to their literal meaning generally makes it necessary for the courts to resort to construction in order to discover the real intention of the legislature. Nevertheless, it will always be presumed by the court that the legislature intended to use the words in their usual and natural meaning. If such a meaning, however, leads to absurdity, or great inconvenience, or for some other reason is clearly contrary to the obvious intention of the legislature, then words which ordinarily are mandatory in their nature will be construed as directory, or vice versa. In other words, if the language of the statute, considered as a whole and with due regard to its nature and object, reveals that the legislature intended the words ‘shall’ and ‘must’ to be directory, they should be given that meaning,” Crawford-Statutory Construction, Sec. 262, p. 519.
Accordingly, the decree is reversed and the cause remanded with directions to sustain appellant’s demurrer.
Harris C. J., and Ward and Robinson, JJ., dissent. | [
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J. Seaborn Holt, Associate Justice.
Appellee, J. C. Blauser, sued appellant, Montene Blauser, for divorce on October 24, 1955. They were married in October 1953. Montene answered denying appellee’s right to a divorce, and asked for support, separate maintenance and costs. A hearing resulted in an award to Montene of $25 per month, beginning on April 15, 1956, and eaeh month thereafter, for her support and maintenance, during the pendency of the above divorce action, plus $50 fee for her attorney.
On March 25, 1957, appellant was given a judgment in the amount of $275 against appellee for arrearage in support payments and an attorney’s fee of $75 and on appellee’s motion his complaint for divorce was dismissed. Thereafter, on April 2, 1957, Mrs. Blauser filed suit for divorce and asked that she be awarded her property rights in 12 head of cattle owned by her husband on which she alleged “that there is a mortgage on said cattle in favor of First State Bank of Conway in the sum of $700 with an unpaid balance of approximately $500 and that defendant is earning approximately $300 per month.” Summons was duly served on appellee April 8, 1957. On April 10, 1957 execution was issued on the March 25 judgment against the above cattle and the above bank was made a party to the process. The sheriff’s return showed a chattel mortgage dated April 4, 1957, properly filed on April 6, 1957, and made to H. M. Castleberry in the amount of $1,220 on the above cattle.
On November 6, 1957, trial was had on appellant’s divorce action above, which resulted in a decree awarding her a divorce, and a one-third interest in appellee’s cattle, subject, however, to the two mortgages held by the bank and H. M. Castleberry. This appeal followed.
For reversal appellant relies on the following point: ‘ ‘ The lower court erred in failing to set aside the mortgage from appellee to H. M. Castleberry in the sum of $1,220 filed for record April 6, 1957 after appellant filed suit for divorce and property rights on April 2, 1957.”
We hold that the trial court was correct in refusing to set aside the mortgage from appellee to H. M. Castle-berry, on the cattle in question, for the reason that H. M. Castleberry was not made a party to appellant’s suit. On this issue the court found: . . the court holds . . . that the mortgagee, H. M. Castleberry, who holds a mortgage on the cattle described in the mortgage . . . , not being made a party to this action, . . . the plaintiff, although decreed to own a one-third interest in the property of the defendant, is not entitled by reason of H. M. Castleberry not being made a party here in order that his rights under the mortgage might be adjudicated, ... to proceed against the cattle described in said mortgage for the reason that Castleberry is not a party to this suit.”
The governing rule in the situation here presented, is stated in Peebles Garage v. Downey, 195 Ark. 31, 111 S. W. 2d 454. In that case there was involved an automobile sales contract and a purchase money note and mortgage which had been hypothecated with a bank and the bank’s interest was attacked, without having made the bank a party to the suit. We there said: “It appears to be undisputed that the note and mortgage given by appellee to appellant were hypothecated with the Portland bank. The Portland Bank is not a party to this litigation and its interest could not be affected by the decree of the court which attempted to cancel the said note and mortgage. So far as this record discloses, the Portland bank is an innocent holder, for value and in due course of business, but whether so or not, that part of the decree cancelling same in the hands of the bank cannot be sustained.” See also Avera v. Rice, 64 Ark. 330, 42 S. W. 409. Castleberry has not had his day in court, to which he was entitled.
Accordingly the judgment is affirmed. | [
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Leon B. Catlett, Special Associate Justice.
Act 530, which became effective on July 1, 1957, created the Arkansas Motor Vehicle Commission, composed of a Chairman and six members, and provided for the regulation by such Commission of the sale and distribution of new motor vehicles in Arkansas. On June 27, 1957, six automobile dealers, including franchised new car dealers and non-franchised new car dealers, filed suit in the Pulaski Chancery Court seeking a declaratory judgment that Act 530 was unconstitutional in multiple respects under the State and Federal Constitutions and for an injunction against its enforcement. On August 27, 1957, General Motors Corporation, a nonresident automobile manufacturer, filed suit in the same Court praying the same relief as asked in the case of the six automobile dealers for substantially the same reasons. The two cases were consolidated for trial, and on January 14, 1958, the Court below held the Act “unconstitutional in its entirety because it contravenes the Constitution of Arkansas and the Constitution of the United States in several respects, particularly: 1. The Act contains arbitrary classifications among persons following the same calling and trade. 2. The Act is not a valid exercise of the police power. 3. The Act fails to provide for an impartial tribunal. 4. The standards set out in the Act are not sufficiently definite. 5. The Act constitutes a prohibited delegation of legislative powers. 6. The Act imposes unreasonable burdens and restrictions on interstate commerce.”
Excellent briefs have been submitted by the parties and by Ford Motor Company and Chrysler Motor Corporation as amici curiae.
The legislation and ensuing litigation are a sequel to a similar Act, No. 182 of 1955, reviewed and declared unconstitutional in Rebsamen Motor Company v. Phillips, 226 Ark. 146, 289 S. W. (2d) 170. In the Bebsamen case the Court found that Act 182 contravened Section 18, Article 2 of the Arkansas Constitution by arbitrarily classifying dealers in new and unused cars' as subject to the required license, while exempting dealers engaged in the sale of new and used cars. The question presented is whether Act 530 of 1957 is sufficiently different from Act 182 of 1955 to eliminate unconstitutional features.
Section 2(a)'of Act 530 of 1957 defines-a “New Motor Vehicle” as “any motor vehicle transferred for the first time from a manufacturer, distributor or wholesaler, factory branch or distributor’s branch, and which motor vehicle has theretofore not been used.” The remainder of Section 2 is devoted to defining, among other terms, “Motor Vehicle Dealer,” “Commission,” “Manufacturer,” “Distributor,” “Wholesaler,” “Factory Bránch” and “Distributor Branch.” Section 3 creates the Arkansas Motor Vehicle Commission and empow ers it to “make and enforce all reasonable rules and regulations” necessary to accomplish the purposes of the Act. Section 4(a) specifies that on or after July 1, 1957, engaging in business as a motor vehicle dealer, or manufacturer, distributor or wholesaler of motor vehicles without first obtaining the license required by the Act, constitutes a misdemeanor with each day of violation a separate offense, and Section 4(b) requires an applicant to execute a form prescribed by the Commission containing information relating to the applicant’s financial standing, business integrity, whether applicant has an established place of business and is primarily engaged in the pursuit of the business for which a license is sought, and whether the applicant is able to conduct properly such business and such other pertinent information consistent with the safeguarding of the general economy, public interest and public welfare. Section 4(c) sets forth a schedule of license fees and Section 4(d) provides that a change of location must be sanctioned by a new license. Section 5 enumerates the grounds for denying, revoking, suspending or delaying the issuance of a license, and specifies that such action may be taken by the Commission if a “Motor Vehicle Dealer” (a) has required a purchaser of a new motor vehicle, as a condition of delivery thereof, to also purchase special features, appliances, accessories or equipment not desired by the purchaser; (b) has represented and sold as a new and unused motor vehicle any motor vehicle which has been used and operated for demonstration purposes, or which is otherwise a used motor vehicle; or (c) resorts to or uses any false or misleading advertising in connection with his business as a “Motor Vehicle Dealer.”
Customarily, manufacturers of automobiles sell new motor vehicles, through their distribution systems, only to dealers with whom they have a franchise or contract.
A careful and painstaking comparison of the provisions of Act 530 of 1957 with those of Act 182 of 1955 fails to disclose any real difference in the basic requirements imposed by Act 530 in connection with “any mo tor vehicle transferred for the first time from a manufacturer, distributor or wholesaler, factory branch or distributor branch, and which motor vehicle has theretofore not been used,” and the requirements imposed by Act 182 in connection with “the sale of new and unused motor vehicles” by a dealer holding a bona fide contract with or franchise from a manufacturer of such vehicles. Nor has any difference been discerned between the sale of a “motor vehicle transferred for the first time” and the sale of “a new and unused motor vehicle.” Both Acts regulate and require the payment of license fees by identical classes, while the competitors of such classes engaged in the same business are not regulated or required to pay such fees. There is no reasonable basis for placing the franchised dealers under regulation and requiring them to pay license fees, while not making the same requirements of the non-franchised or independent dealers.
In the case of Rebsamen Motor Company v. Phillips, supra, this Court pointed out that while the manufacture and sale of motor vehicles constitutes an area by no means exempt from regulation under the police power of the State, such regulation may not extend to a point where competition is circumscribed in an unreasonable manner. Act 530 and Act 182 reach an identical result in this respect.
In reaching this decision we do not desire to create an impression that the wisdom of legislation has or will become a factor in judicial appraisal where attack is made on constitutional bases. However, as we have often held, the police power may not be applied to a class without equal application to all members of such class.
While additional grounds of unconstitutionality are urged, some of which are meritorious, in view of our conclusion, a discussion of these points is unnecessary. Act 530 of 1957 is unconstitutional in its entirety.
A ffirmed.
The Chief Justice and Mr. Justice Ward dissent.
George Rose Smith and William J. Smith, JJ., not participating. | [
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ohn B. Robbins, Judge.
Appellant Patricia Stultz pleaded J guilty to possession of methamphetamine and possession of drug paraphernalia and was given a four-year suspended imposition of sentence on March 14, 2003. On March 31, 2004, the trial court entered a judgment and commitment order sentencing Ms. Stultz to three years in prison with an additional seven-year suspended imposition of sentence, which was pursuant to Ms. Stultz’s plea of guilty to conspiracy to deliver methamphetamine, which she entered on March 24, 2004. On April 6, 2004, the State filed a petition to revoke all of the suspended sentences on the grounds that Ms. Stultz violated her conditions on March 31, 2004, by committing several criminal offenses. After a hearing, the trial court announced that it was revoking the suspended sentences, and on August 13, 2004, an order was entered sentencing Ms. Stultz to a ten-year suspended imposition of sentence for possession of methamphetamine and for possession of drug paraphernalia, as well as a twenty-year prison term for conspiracy to deliver methamphetamine. Ms. Stultz now appeals from the order revoking her suspended sentences, arguing that there was insufficient evidence that she violated her conditions. We affirm in part and reverse in part.
In a hearing to revoke, the burden is on the State to prove a violation of a condition of the suspended sentence by a preponderance of the evidence. Hyde v. State, 59 Ark. App. 131, 953 S.W.2d 911 (1997). On appellate review, the trial court’s findings are upheld unless they are clearly against the preponderance of the evidence. Id. Because a determination of the preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the trial court’s superior position in this regard. Id.
At the revocation hearing, Stan Ames testified that Ms. Stultz came to his residence at around noon on March 31, 2004. Donnie and James Kramer were already there when she arrived. According to Mr. Ames, he was in his garage when he heard his truck windows being busted out, and Donnie and James contained him in the garage. Mr. Ames stated that “Donnie busted me in the mouth,” and that Ms. Stultz started beating him with a steel pipe while accusing him of burning her house down and stealing from her. Mr. Ames indicated that Ms. Stultz hit him multiple times with the pipe, first hitting his leg and then hitting him in the face when he fell to the floor. Ms. Stultz then threw gasoline on Mr. Ames, and he managed to run into his house and call the police before “they followed and tackled me again and went to beating me again.”
By the time Officer Roger Green arrived at the scene, Donnie and James had fled, but Ms. Stultz was still there attempting to leave the driveway in a pickup truck. Officer Green stopped her, and noticed she had blood on her hands. Mr. Ames emerged from the garage and was bleeding from his mouth and nose. Officer Green observed a puddle of blood in the garage, and upon inspecting the interior of the house he found it to be “total destruction.” Mr. Ames advised Officer Green that Ms. Stultz had taken some items from his residence, including some knives that were found in Ms. Stultz’s purse.
Mr. Ames testified that he was afraid he was going to be killed that day and that Ms. Stultz threatened him the entire time she was beating him. After the episode ended, Mr. Ames went to the hospital to make sure that no bones were broken, and he was examined but not admitted. However, he testified that his face and nose were “pretty busted up.”
At the conclusion of the revocation hearing, the trial court found that Ms. Stultz violated her conditions by committing second-degree battery, attempted first-degree battery, and burglary. Ms. Stultz argues on appeal that these findings were clearly against the preponderance of the evidence. She contends that the evidence presented by the State was circumstantial and did not support the trial court’s decision to revoke.
We hold that the trial court’s finding that Ms. Stultz violated a condition of her suspended sentences was not clearly against the preponderance of the evidence. In order to revoke a suspended sentence, the State need only prove one violation. Ramsey v. State, 60 Ark. App. 206, 959 S.W.2d 765 (1998). Contrary to Ms. Stultz’s argument, there was direct evidence that she violated a condition by committing second-degree battery.
Pursuant to Ark. Code Ann. § 5-13-202(a) (2) (Supp. 2003), a person commits battery in the second degree if, with the purpose of causing physical injury to another person, he or she causes physical injury to any person by means of a deadly weapon other than a firearm. A steel pipe is considered a deadly weapon. See Releford v. State, 59 Ark. App. 136, 954 S.W.2d 295 (1997). The victim testified that Ms. Stultz beat him repeatedly with a steel pipe, resulting in his face and nose being “busted up” as well as considerable facial bleeding. “Physical injury” is defined as “infliction of substantial pain,” see Ark. Code Ann. § 5-1-102(14)(B) (Supp. 2003), and in deciding whether this has been proved the trier of fact may consider the sensitivity of the area of the body to which the injury is inflicted and the severity of the attack. See Holmes v. State, 15 Ark. App. 163, 690 S.W.2d 738 (1985). We conclude that the trial court committed no error in finding that Ms. Stultz’s purpose was to inflict substantial pain with the pipe and that this was accomplished.
While we disagree with the only issue raised in Ms. Stultz’s brief, we nonetheless reverse the revocation and twenty-year prison sentence related to the March 31, 2004, conviction for conspiracy to deliver methamphetamine. 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. That is exactly what happened in the present case. As in Harness v. State, supra, Ms. Stultz was sentenced to prison and a suspended imposition of sentence for an additional term, but the violation of her condition occurred before she served any of her prison sentence. Because Ms. Stultz had not been lawfully set at liberty from the imprisonment, her period of suspension had not yet commenced to run. See Ark. Code Ann. § 5-4-307(c) (Repl. 1997); Harness v. State, supra. Although Ms. Stultz does not challenge the legality of her 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.
However, we affirm the trial court’s revocation of Ms. Stultz’s suspended sentences, and resulting ten-year impositions of suspended sentences, as relates to her guilty pleas for possession of methamphetamine and possession of drug paraphernalia as reflected on the March 14, 2003, judgment. This is because she committed a violation during the period of those suspensions.
The State notes in its brief that the trial court pronounced ten years’ imprisonment from the bench, but the judgment being appealed from reflects a ten-year suspended imposition of sentence for each offense. This discrepancy is resolved by Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003), where our supreme court held that judgment and commitment orders are effective upon entry of record, and that the trial court is within its authority to modify the sentence pronounced in open court prior to entry of judgment so long as it complies with other pertinent criminal rules.
The August 13, 2004, order being appealed from reflects ten-year suspended impositions of sentences, which were authorized by law and are hereby affirmed. However, that portion of the order that imposed the unauthorized twenty-year prison term is reversed and dismissed.
Affirmed in part; reversed and dismissed in part.
Pittman, C.J., and Vaught, J., agree. | [
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HART, J.
Appellees sued appellants to recover damages alleged to have been sustained by the appellants negligently raising their roadbed, which changed the flow of the water in front of appellees’ premises and caused it to overflow the same. Appellants denied liability and pleaded the statute of limitations in bar of the action.
The present action was commenced April 20, 1916. J. M. Jackson, one of the appellees, testified that he, Lydia Daggett, and Martha Green, the other appellees, each owned a one-ninth interest in lots 1, 2, 3, 4 and 5 on the west side of Natchez street, between Arkansas and Missouri streets; that there is a one-story brick building on lot 1 and two frame store buildings on lot 2, and six frame one-story houses on lots 3, 4 and 5; that the Louisville, New Orleans and Texas Railroad Company has a part of its roadbed on Natchez street in front of these store houses and that the Yazoo & Mississippi Valley Railroad Company has leased the road of its co-appellant and operates a railroad over the same; that in October, 1913, they raised their roadbed along Natchez street in front of appellees’ store houses two or three feet and also obstructed a ditch or drain which had formerly carried off the water on the west side of Natchez street; that prior to the raising of the roadbed the waters had never overflowed their property or gotten under their houses; that the ditch or drain on the west side of the street had been sufficient to carry away all the surface water which flowed along there; that since the raising of appellants’ roadbed appellees’ store houses overflow every time there is a hard rain and that thereby causes water to stand under the floors of their store houses nearly all the time. The city engineer of the city of Helena* in which this property is situated, corroborated the testimony of Jackson in every respect. Other witnesses placed the whole amount of damages to the property at between nine and ten thousand dollars.
On the other hand evidence adduced by appellants tends to ¡show that the work of raising the roadbed along Natchez street in front of appellees’ store houses was completed in January, 1913, that the only work done in October, 1913, was raising the crossing at Missouri .street and that this had no effect whatever in causing the waters to flow or accumulate under appellees’ store houses.
It was also shown that in raising the roadbed appellants did not obstruct the ditch or drainage on the west side of Natchez street and that the work done by them did not cause water to flow or accumulate on appellees’ premises after every hard rain.
The jury returned a verdict in favor of appellees in the sum of $3,000, and from the judgment rendered appellants prosecute this appeal.
J. M. Jackson originally instituted an action against these appellants to recover damages based upon this same cause of action. On appeal the court held that the raising of the embankment along Natchez street in front of these business houses was a permanent injury to the land and that the whole damage could not be recovered by one of the tenants in common. In other words the court held that in case of a tenancy in common, where there is a holding in severalty, each separate owner must sue for his share of the property or injury thereto. Louisville, N. O. & Tex. Rd. Co. v. Jackson, 123 Ark. 1. Lydia Daggett and Martha Green then joined with Jackson in instituting the present suit to recover the damages to their three-ninths interest in said premises. There was a sharp conflict in the testimony on all points. The witnesses for appellees testified in positive terms that the embankment along Natchez street in front of appellees’ store houses was raised in October, 1913, and the witnesses for appellants were equally positive that this work was completed in January, 1913, more tlian three years before this snit was instituted. The testimony of the witnesses for appellees also showed that when appellants raised their roadbed they obstructed the ditch or drain in front of the store houses of appellees, which had formerly carried off all the surface water on the west side of Natchez street and that now after every hard rain the water flows into their stores and accumulates in the low places under the floors.
On the other hand witnesses for the appellants testified that no ditch or drain was obstructed by the raising of the roadbed along Natchez street and that the store houses of appellees were not overflowed by the waters from Natchez street unless the gutters were stopped up; that when the gutters in front of the houses were free from obstructions no water flowed over the sidewalks and into the houses of appellees after every hard rain. Some testimony was adduced by appellants tending to show that the ground in the alley in the rear of the stores was higher than the floors of the stores and that water flowed from there into the houses.
(1) The amount of damages recovered by appel-lees was also proved. The jury were the judges of the credibility of the witnesses and by its verdict settled the conflict in the testimony. Under the settled rules of this court we can not disturb on appeal the verdict of a jury where there is substantial evidence to support it.
(2) Counsel for appellants insist that the judgment should be reversed because the court refused to give instruction number 2, dsked by appellants. The instruction is as follows:
“The court instructs the jury that if it finds from the testimony in. this case that the plaintiffs were not the owners of the property mentioned in the complaint at the time the alleged acts of negligence were committed by the defendant, then your verdict will be for the defendant. ’ ’
It is true on the former appeal the court said that a precisely similar instruction was correct and that the court erred in refusing to give it. While tlie court refused the instruction requested, it did give instruction number 4, which is as follows:
“The court instructs the jury that if it finds from the testimony that the plaintiffs were the owners of the property mentioned in the complaint at the time of the commission of said acts of negligence jointly with other owners as tenants in common, then you will find for the plaintiffs only such pro rata parts of- the damages sustained by the property through the negligent acts of the defendants, as their interest in the property bears to the whole interest in the property.” The instruction given limited the right of appellees to recover for the injury done to their share of the property. It is well settled that the court is not required to multiply instructions on the same point and the court, therefore, did not err in refusing to give instruction No. 2, as requested by appellants.
(3) Again it is insisted that the court erred in refusing to give instruction number 15, which is as follows:
‘ ‘ The court instructs the jury that the plaintiffs are not entitled to recover in this suit any sum that they might be required to expend for the purpose of filling up the low places beneath their buildings in such manner as to prevent water from standing thereunder and becoming stagnant.’’
There was introduced in evidence an ordinance of the city of Helena which requires the owners of all lots in said city to drain all places where water stands for twenty-four consecutive hours after raining has ceased, if drainage can be secured, and if not, it requires such owners to fill such places with dry, clean earth.
Counsel for appellants insist that inasmuch as a material part of the damage recovered in the present action was the cost of filling up low places under the floors, that appellees should be prevented from recovering this item of damages on account of the ordinance just referred to. We do not agree with counsel in this contention. The duty of appellees to the city of Helena under that ordinance was a collateral matter and had no connection with the damages suffered by them on account of appellants raising their roadbed.
According to the testimony of appellees no water had been accustomed to flow or accumulate on their lots until the roadbed in front of the houses was raised and the ditch obstructed. If this act on the part of appellants caused water to stand on appellees’ lots for more than twenty-four hours after a rainfall, appellees, under the ordinance would either be required to drain this water from their lots or to fill their lots up so that the water would not stand there. But because appellees would be required to do this under the police power of the city, such act affords no reason for releasing appellants from liability to appellees.
It follows that the judgment will be affirmed. | [
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WOOD, J.,
(after stating the facts). (1-2) The court was correct in vesting the title in the appellee, but was in error in grounding its decree on the theory that the appel-lee had acquired title by adverse possession for more than seven years. There had been no visible change in the possession of appellee since the death of her husband. Her possession was amicable in its origin insofar as the appellant, Jas. J. Miller, was concerned. In order to have set the statute of limitation in motion it was necessary for the appellee to have held the title adversely and to have exercised such acts of ownership as to indicate an intention on her part to hold the land adversely to appellant, who was the remainderman. Appellee’s possession was permissible so far as the appellant was concerned and it remained so until the appellee indicated a purpose to sell the land and nothing was done by the appellee herself until that time that was calculated to bring home to the appellant any knowledge of the fact that it was her purpose to hold the land adversely to him. Such we think is the correct conclusion.
The testimony of appellee is clear and convincing to the effect that after the death of her husband, she and her step-son, the appellant, entered into a contract by which the appellant was to deed her his interest in the old home place in consideration of her in turn deeding to him her dower in certain other tracts of land. As she understood it, it was the land on which she had resided with her husband since their marriage, in 1898. She said she had no experience in land descriptions and never measured the land as described in the deed, but she thought that it was all hers under the contract. Appellant admits there was a contract to convey the old homestead, but says there was no mutual mistake in making the deed but he does not enter into detail in explaining the terms of the contract. He simply states that it was agreed that Mary J. Miller was to have one acre and that he was to have the other property, but he states also that the west fence, a part of the fence enclosing the homestead was continued where it was when the deeds were exchanged. He visited his step-mother at least twice a year and observed that she was using the property that enclosed the homestead.
This testimony convinces ns that the terms of the contract between Mrs. Miller and her step-son, Jas. J. Miller, the appellant, was as she states it. The testimony is clear, unequivocal and convincing that the contract contemplated that appellant was to convey his interest in the homestead, and that the old homestead ás' the parties then understood, consisted of the land that was' enclosed and occupied as a homestead, which embraced the parcel now in controversy. The testimony of Mrs. Jas. J. Miller is of no probative effect and does not contradict or lessen the weight to be allowed to the testimony of the appellee. For although ishe says she was present at the time the deeds were made, she does not say that the contract between her husband and the appel-lee contemplated that her husband should deed to the appellee, only one acre. She says that it was her understanding but does not say that it was the understanding between the parties to the contract. The testimony upon the whole meets every requirement of the law to entitle the appellee to a reformation of her deed in accordance with the contract as she stated it to be.
(3) In the recent case of Dawkins v. Petteys, 121 Ark. 498, we said, “The ultimate fact to be determined on appeal in chancery cases is not whether the chancellor pursued correct and logical mental processes in reaching his conclusion, but whether the conclusion itself is correct. Harriage v. Daly, 121 Ark. 23; Dicken v. Simpson et al., 117 Ark. 304, 174 S. W. 1154.”
Although the chancellor did not base his conclusion upon sound reasons, the decree was nevertheless correct and is therefore in all things affirmed. | [
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Sam Robinson, Associate Justice.
This is a rate case. On the 5th day of October, 1956, the Port Smith Gas Corporation (the Gas Company) filed an application for a change of rates for a supply of gas to industrial consumers in the city of Port Smith, the surrounding area and other communities. The Gas Company sought to increase the price from 16.38 cents per Mcf to 20.62 cents. After extensive hearings the Commission granted the requested new schedule of rates on May 17,1957. The protestants took an appeal to the Pulaski Circuit Court, where the action of the Commission was affirmed, and the protestants have appealed to this Court. The principal contention of appellants is that the Commission accepted the contract price for gas supplied by the Stephens Production Company (Stephens) to the Gas Company, the Commission refusing at the time of the hearing to investigate the merits of that contract. Appellants maintain that Stephens is an affiliate of the Gas Company and in these circumstances the Commission should not have accepted the contract price as between Stephens and the Gas Company as a bona fide operating expense.
In 1945 W. R. Stephens bought the controlling interest in the Gas Company. At that time and up until 1953 the Gas Company bought more than 97 per cent of its gas from the Arkansas-Oklahoma Gas Corporation (Arkansas-Oklahoma). This company owned gas production properties and owned a distribution system whereby it supplied gas to the Gas Company at the city gates of Port Smith and supplied gas and distributed the same in several small towns in Oklahoma and Arkansas. In 1953, the owners of the Arkansas-Oklahoma decided to liquidate that company and put up for sale all of its properties, including the production properties and the distribution systems. In that connection, in an order made on December 22, 1953, which will be referred to again, the Commission made a finding of fact as follows: “The majority of the common stock of Arkansas-Oklahoma Gas Company has for many years been owned by a group of residents of Port Smith, Arkansas, and these stockholders have recently expressed a desire to sell the stock and have offered such stock for sale to various interests, including persons not residents of the areas served by the two companies, which caused the owners of the stock of the Port Smith Gas Corporation and its officers and directors to become concerned as to the continuation of their source of supply of gas from the Arkansas-Oklahoma Gas Company at the termination on December 31, 1965, of the service agreement between the two companies.”
Por its supply of gas the Gas Company was almost wholly dependent on a contract with Arkansas-Oklahoma which had only twelve years to run. To protect his Port Smith Gas Company’s source of gas supplies, Stephens made a deal whereby the Port Smith Gas Company bought the distribution system of Arkansas-Oklahoma, and he and his brother, J. T. Stephens, along with the Northwestern Mutual Life Insurance Company, bought the production properties. Stephens assumed heavy obligations by contracting to maintain and develop the properties and explore for gas at his own expense. This is a hazardous business. There are many dry wells; production may be obtained or it may not. The North•western Mutual Life Insurance Company put up $4,- 333,000 to pay Arkansas-Oklahoma. Stephens contracted with the Gas Company to supply gas at the wellhead at 12.7819 per Mcf. The Gas Company had been paying Arkansas-Oklahoma 17.38 at the city gate. All of these transactions were aboveboard and the whole plan was laid before the Oklahoma Public Service Commission, the Arkansas Public Service Commission, and the Federal Power Commission. The Arkansas and Oklahoma Commissions approved the sale, and the Federal Power Commission held hearings and granted the application. The contract between the Gas Company and Stephens was made on March 2, 1954, after the Arkansas Commission, in Docket No. U-902, had found in December of 1953 that the price of 12.7819 per Mcf was reasonable. In its findings and order of May 17, 1957, in the case at bar, Docket No. U-1169, approving the new rate schedule, the Commission referred to its order in Docket No. U-902, wherein the contract was approved. The Commission said: “This Commission, after full investigation and hearing, from which it was fully developed, as shown by the contract itself, and the exhibits attached to the Company’s response to protestants’ motion, found that the dedication of the large gas reserves, made a condition of the contract, was essential to the Fort Smith area. The Commission further found that therefore the contract and the contract rate was fair and reasonable, and that in the public interest it was necessary that the contract and the contract rate be approved and the transfer of properties proposed be authorized. Therefore, the Commission, by its order of December 29, 1953, in our Docket No. U-902, approved the contract and the contract rate of 12.7819 cents per Mcf which the protestants here seek to attack.
“Northwestern Mutual Life Insurance Company of Milwaukee, Wisconsin, owner of the Production Payment supported by the gas reserves dedicated under the contract in question, obviously relied on our order in this docket and on the order of the Federal Power Commission approving the transaction in Docket No. G-2332-33 as a basis for accepting the production payment which, made the transaction possible. We have no reason now to recede from the position originally taken by us that our approval of this contract and this transaction was then and now is in the public interest. . . . ’ ’
The Commission points out that by reason of the Supreme Court decision in the case of State of Wisconsin v. Federal Power Comm’n., 205 F. 2d 706 (Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672, 74 S. Ct. 794, 98 L. Ed. 1035) (the Phillips Petroleum Company case), it has no jurisdiction over the Stephens Production Company, but that it does have jurisdiction over the rates charged by the Gas Company to its customers. The Commission said: “Moreover, even though we do not consider that we have jurisdiction over the price charged the Company under the contract, we do have jurisdiction over the Company’s rates to its customers, and having already found the contract price fair and reasonable, we still would consider it so for the purpose of the application here under consideration.” Furthermore, the Commission had knowledge of the fact that subsequent to 1953, when the 12.7819 per Mcf was approved, a wellhead price of 16 cents per Mcf had been allowed for gas produced in the same area. The Commission may take notice of a fact of that kind. Acme Brick Co. v. Arkansas Public Service Comm’n., 227 Ark. 436, 299 S. W. 2d 208.
Appellants say: “It is not enough that money ($4,-333,000) has in fact been spent; there must be proof that it was wisely, reasonably, and necessarily spent.” The spending of this money was approved by the Arkansas Public Service Commission, the Oklahoma Public Service Commission and the Federal Power Commission. It is hard to see how any stronger proof could be produced that the money was wisely, reasonably and necessarily spent.
Appellants further contend: “In view of the ownership and control of Fort Smith and Stephens Production Company, the record in this case in sufficient to support the conclusion that there is in practical effect one organization and that for the purpose of fixing rates in this case, the amount to be allowed for gas purchased in the cost of service is not the contract price of 12.7819 cents per Mcf, which was not the product of arm’s-length bargaining, but only the cost of production of the gas at the wellhead.” Even under this theory the Commission must be sustained, because, according to the undisputed testimony in the case, the gas cost Stephens and Northwestern $4,333,000, and when the formula used by Mr. Williams, appellants’ expert, is applied to the cost of the gas at the wellhead, $4,333,000 would result in a price for the gas of 13.185 per Mcf.
Appellants say Stephens should have acquired the gas reserves for the Gas Company. According to this theory, some other gas distributing company of which Stephens may be the president could make the same claim. If the Gas Company owned the reserves of gas it would be at the price of $4,333,000, and this amount would be a part of the rate base supporting a price of 13.185 per Mcf. If the $4,333,000 were put in the rate base of the Gas Company and the gas ran out before that much was produced, surely there would be a hue and cry, and rightfully so, about the gas ever having been made a part of the rate base in the first place. The gas purchased by Stephens is under the ground. It cannot be seen, and the amount there is only speculative. Paying $4,333,000 for gas properties that may be depleted before anything like that much is produced is a big gamble, and one that in all probability the Gas Company’s customers would not want to take and certainly should not be compelled to take.
There is no serious contention that the rate of 20.62 per Mcf is not fair and reasonable if the price of 12.7819 paid by the Gas Company for gas at the wellhead is fair and reasonable. The order approving the contract, in Docket No. U-902, is made a part of the record, and that order itself shows that the Commission went into the matter thoroughly. Among other things there is this finding: “In order to obtain a dedication of the present gas reserves of the Arkansas-Oklahoma Gas Company and those gas reserves hereafter developed from its gas properties for the use of the Port Smith Gas Corporation and the area presently served by it from gas acquired from Arkansas-Oklahoma Gas Company, W. R. Stephens has entered into a contract for the purchase of approximately 82 per cent of the outstanding common stock of the Arkansas-Oklahoma Gas Company, and Arkansas-Oklahoma Gas Company has entered into a contract with Port Smith Gas Corporation for the sale of its gatherings, transmission and distribution systems. Simultaneously with the transfer of these facilities of the Arkansas-Oklahoma Gas Company to the Port Smith Gas Corporation, there will be effected a transfer of the gas production properties of Arkansas-Oklahoma Gas Company in liquidation of that company to the Arkansas Valley Mineral Company, Inc., and the Wilt ex Corporation, which companies have contracted to furnish gas at the well head to Fort Smith Gas Corporation at the price of 12.7819 cents per m.c.f. . . .” (The Arkansas Valley Mineral Company, Inc., and Wiltex Corporation contracts were assigned to Stephens.)
The gas purchase contract has been filed as a tariff with the Federal Power Commission. True, the Arkansas Commission may not be bound to accept as part of the rate base of the Gas Company the price named in the contract filed with the Federal Power Commission, but here the Commission had already made a finding that the price named in the contract is reasonable. There is no suggestion that there has been any change in conditions since the Commission approved the contract that would justify a lowering of the price at this time. Under the terms of his contract, which is a part of the record, Stephens must explore and drill for gas. This is necessary to maintain the supply, and it is a matter of common knowledge that labor and materials are much higher now than in 1953, when the contract price of 12.7819 was approved. Even though it costs more to produce gas now than it did in 1953, the contract price of 12.7819 is not being changed, and the increase in rates is due to the Gas Company’s increase in the cost of doing business because of factors other than the cost of gas, which price remains as fixed by the 1953 contract. It is hard to understand how the 12.7819 price paid by the Gas Company could be excessive when, according to the undisputed evidence, in an arm’s-length deal, Arkansas-Oklahoma received $4,333,000 for its gas production properties. And when the price of gas sold by Stephens to the Gas Company is based on the $4,-333,000 cost, the price, figured by a formula about which no one complains, is 13.185, instead of 12.7819, the price the Gas Company is paying.
Appellant cites authority for the proposition that the Arkansas Commission has the power to fix the rates at which the Gas Company must sell its gas, notwithstanding the Arkansas Commission has no authority to fix the price at which Stephens, who is operating in interstate commerce, must sell to the Gas Company. Authority also is cited to the effect that the Commission’s order approving the 12.7819 rate is not res adjudicata. But even though the Commission does have the authority to fix the Gas Company’s rate, regardless of the price it may be paying Stephens for gas, and notwithstanding the order approving the 12.7819 rate is not res adjudicata, still the Commission does not have to disregard the contract price just because it has the power or authority to do so. True the Commission could disregard the contract price between Stephens and the Gas Company and refuse to grant an increase in rates. But, in order to do this the Commission would have to ignore completely the contract it has heretofore approved for the sale of gas to the Gas Company. And, moreover, it would have to ignore the fact that $4,333,000 was paid for the gas properties. Assuming that the Commission could disregard its approval of the contract, the Oklahoma Commission’s approval of the contract, the Federal Power Commission’s approval of the sale of the properties, and all that, has been done on the strength of the contract, the fact remains that $4,333,000 was paid for the gas. When this purchase price is considered, a wellhead price of 13.185 per Mcf is reached. This is more than the Gas Company is now paying.
It has been suggested that perhaps Arkansas-Oklahoma sold the distribution system for less than it was worth and balanced the transaction by selling the gas properties for more than a fair value. This suggestion is wholly unsound. In the first place, the Commission made a determination of the fairness of the price of the distribution system and set out in its order of December 22, 1953 just how the price was determined. The order provides: “The price of the properties to be acquired by the Port Smith Gas Corporation from the Arkansas-Oklahoma Gas Company will be the depreciated book value of such properties, as reflected by the books of the Arkansas-Oklahoma Gas Company at the date of the transfer. This depreciated book value is also the depreciated original cost of such properties as determined by the Federal Power Commission and appears to reflect the fair value of the properties to be transferred.” In the next place, the Gas Company and its alleged affiliate, Stephens, could not gain by a maneuver of that kind, because if the distribution system were sold to the Gas Company for less than its worth, this low price would go into the rate base.
As authority for the contention that the Commission should not accept the contract price for gas between affiliates, appellants cite Western Distributing Co. v. Public Service Comm’n., 285 U. S. 119, 52 S. Ct. 283, 76 L. Ed. 655; Dayton Power & Light Co. v. Public Utilities Comm’n., 292 U. S. 290, 308, 54 S. Ct. 647, 78 L. Ed. 1267; Mississippi River Fuel Corp. v. Federal Power Commission, 252 P. 2d 619; and Re Amere Gas Utilities Co., 1 P. U. R. 3rd 230. It will be observed, however, that in every one of those cases except the Amere case there is nothing* in the record to show the cost of the gas to the affiliate on the production end of the contract, whereas in the case at bar the Commission knows what the gas cost the affiliate. The distinction is obvious. In the Amere case, in an opinion written, not by a court bnt by a public service commission, it is not at all clear just what the commission found the facts to be, but in any event the facts in the case at bar bear no resemblance to that case.
This Court, along with the great weight of authority, has held many times that the Commission has broad powers and is vested with wide discretion; that if the order of the Commission is supported by substantial evidence, is free from fraud and not arbitrary, it is the duty of the court to let it stand. In Dept. of Public Utilities v. Arkansas-Louisiana, Gas Co., 200 Ark. 983, 988, 142 S. W. 2d 213, it is said: . . if the Department’s order is supported by substantial evidence, free from fraud, and not arbitrary it is the duty of the courts to permit it to stand, even though they might disagree with the wisdom of the order. In such a case our judgment will not be substituted for that of the Department. ’ ’
And in Arkansas Power & Light Co. v. Arkansas Public Service Gomm’n., 226 Ark. 225, 226, 289 S. W. 2d 668, it is said: “At the outset we point out certain well defined rules governing this court in reviewing the powers and actions of the Arkansas Public Service Commission in a utility rate case such as is presented here. The Commission must and does have broad powers and is a fact finding body. Our Legislature has delegated and entrusted the administration of Act 324 to the Commission, and not to the courts. . . . Apart from the judicial review that may be resorted to under the Act, it is not for us to advise the Commission how to discharge its functions. When an appeal is taken to the circuit court, that court, as well as this court on appeal from the circuit court, shall not extend the review of the Commission’s findings and actions ‘further than to determine whether the Department (Commission) has regularly pursued its authority, including a determination of whether the order, or decision under review, violated any right of the complainant under the Constitution of the United States or of the State of Arkansas.’ (Sec. 73-233(d) Ark. Stats.) The circuit court, and this court on appeal, reviews the Commission’s findings on the record before the commission, and if we find any substantial evidence to support it, it is our duty to permit the Commission’s order to stand if it is not arbitrary and is free from fraud. * * *”
In Petition of Central Vermont Public Service Corp., 116 Vt. 206, 71 A. 2d 576, 578, the court said: “An administrative agency performing the delegated legislative function of rate making has a broad discretion. Mr. Justice Cardozo, speaking for the United States Supreme Court, said of it: ‘Regulatory commissions have been invested with broad powers within the sphere of duty assigned to them by law. Even in quasi-judicial proceedings their informed and expert judgment exacts and receives a proper deference from courts when it has been reached with due submission to constitutional restraints. . . . Indeed, much that they do within the realm of administrative discretion is exempt from supervision if those restraints have been obeyed.’ ”
In the case at bar there is no suggestion of fráud, and it cannot be said that the Commission’s action was arbitrary in any respect. The only real issue in this case is whether the price of 12.7819 for gas paid by the Gas Company to Stephens is reasonable, taking into consideration that the gas cost $4,333,000. The Commission had full knowledge of what the gas cost Stephens and approved as reasonable and fair the price of 12.7819 per Mcf based on substantial evidence of the cost of the gas.
Affirmed.
George Rose Smith, J., dissents. | [
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HUMPHREYS, J.
Appellant was convicted of manslaughter in the Southern District of Prairie County for killing Munny Snow, and has appealed the case to this court. The indictment was for murder in the second degree. The evidence of the State tends to show that on the evening of April 29,1916, appellant entered the drug store of Elijah Odom, his brother-in-law, situated in the town of Biscoe, and killed Munny Snow by shooting him seven times with a rapid-firing automatic pistol. Two of the shots, presumably the first two, entered his back; one entered his side, the others entered various parts of his body from the front. Snow was not armed, and, according to the State’s witnesses, said nothing to nor made any demonstration toward appellant. The evidence on the part of appellant disclosed that Snow had severely abused and threatened to kill him a few days before the tragedy occurred; and tended to show that as appellant entered the store, Snow renewed the abuse, and with his left hand upraised and right hand to his pocket, advanced upon appellant before appellant began to fire.
Appellant insists upon seven assignments of error for reversal. Five of them relate to the exclusion of evidence by the court.
It is sought to establish by J. Umsted that Munny Snow had stated to him several months before the killing that appellant should never serve as postmaster, because lie had beat him out of three hundred dollars; also that Snow had changed his family physician from Fowler to another. In answer to a question by the court as to when the statement was made, Umsted said, “It was made year before last.” The threat, if threat at all, was both ambiguous and remote. The court properly excluded the testimony. Billings v. State, 52 Ark. 303.
(1) During’ the examination of L. Hall, attorney for plaintiff asked witness if he made a statement to the appellant about deceased carrying a pistol. Objection by the State to the question was sustained by the court, and appellant was granted permission to state to the. stenographer what he desired to prove, in order that it might be incorporated in the record. Appellant failed to state what he expected to prove by the witness. The evidence was afterwards reduced to affidavit form and filed in support of a motion for new trial. The substance of the evidence offered should have been stated to the court at the time offered, in order that the court might pass upon its competency. 1 Thompson on Trials, § § 703-4; Meisenheimer v. State, 73 Ark. 407; Boland v. Stanley, 88 Ark. 562.
(2) An attempt was made to prove that Munny Snow had killed several men and committed various turbulent acts. This evidence was clearly inadmissible under the rule laid down in Campbell v. State, 38 Ark. 498, and Coulter v. State, 100 Ark. 561, to the effect that in prosecutions for homicide the violent and turbulent character of deceased can not be shown by proof of particular acts of violence. But it is insisted that the court erred in refusing to permit appellant to prove that Munny Snow was very dangerous; that he would kill on slight provocation. The record discloses that witness O. P. Nall was permitted to testify that Munny Snow was considered a very dangerous man; and that his reputation for peace and quietude in the community was very bad. The testimony admitted seems to fulfill every requirement of the law.
In the course of the examination of O. P. Nall, appellant asked him the question, “Did you cite to him any instances of the acts of Munny Snow!” The question was excluded by the court. The exception to this ruling can not be urged here for reversal, because it was appellant ’s further duty, in order to save the exception, to state to the trial court what he expected to prove by the wit-néss. This he failed to do. The evidence expected to be established by this witness was set out in affidavit form in the motion for new trial, and we think the court properly excluded that part of the evidence relating to the statements of particular instances of violence.
(3-4) It is insisted that the court erred in refusing to permit appellant to state whether he had reasonable grounds to believe that Munny Snow would carry out threats he had made to kill him. It is true the good faith of appellant was an issue in the case.- It was all-important to determine whether appellant had reasonable grounds to fear violence and to believe Snow was about to shoot him when he killed Snow; and this was a question to be determined by the jury from all the facts and circumstances' leading up to and involved in the killing. Appellant’s abstract statement that at the time of firing the fatal shots he had reasonable grounds for apprehending great bodily harm at the hands of deceased might have been an opinion or conclusion based wholly on unreasonable grounds. Such a ruling would invite every defendant to hold such opinions and to draw such conclusions. Neither did the trial court commit error in declining to permit appellant to relate specific instances of violence within his own knowledge or which had been communicated to him tending to establish the dangerous character of deceased, nor was error committed in refusing to permit appellant to testify to specific acts of violence related to appellant by deceased several years before the killing. This court said in Coulter v. State, supra, that “it is. not competent to prove that the decedent said he had been sentenced to the penitentiary or that he was a desperate ‘nigger.’ ”
Appellant gave testimony to the effect that A. E. Walker informed him that Mnnny Snow was unfriendly to him. He was then asked what Walker told him and the question was excluded by the court. It is insisted that the court erred in this regard. The information given by Walker was not disclosed to the trial court, therefore it is not before this court for consideration.
(5) Appellant testified fully and particularly on direct examination as to his whereabouts and movements on the afternoon prior to the killing in the evening. He stated positively that he was inside, the postoffice building from 3 o ’clock in the afternoon until about 7 o ’clock in the evening; and just as positive that he did not follow Snow to Odom’s store or know Snow was there when he went to the store to buy mucilage. After witnesses in rebuttal for the State testified that he was on the front porch of the postoffice building and had seen Snow go to the store and in a short time followed him there, appellant sought to deny the testimony of these witnesses. It is insisted that the court committed error in excluding his testimony. The question propounded involved appellant’s whereabouts and movements at a particular time already fully and positively covered in his direct testimony. It was not error to exclude a mere repetition of testimony.
(6) Appellant sought a new trial on account of alleged newly discovered evidence in corroboration of his own testimony touching the necessity for killing Munny Snow in order to protect his life. The witnesses claimed they were present, in conversation with Munny Snow, when the difficulty began. If this is true, there is no reason why appellant could not have seen them at the time. No other person was standing near him. While the witnesses claim to have left the town immediately after the tragedy for their home in Woodruff County, they returned and were living near Biscoe four months prior to the trial. No diligence in securing them as witnesses is shown. No satisfactory explanation was made by appellant as to why he did not discover their presence on the scene of the difficulty. He certainly had the opportunity to know they were there. Having such opportunity, it was Ms duty to take steps to procure them as witnesses before the trial.
(7) It is insisted that prejudicial error was committed in refusing to give the sixth, seventh and eighth instructions requested by appellant. Appellant’s sixth' request is embodied in substance in the instructions given by the court. The seventh and eighth requests single out and emphasize the previous good character of appellant as evidence to create a reasonable doubt. This court has held in a number of cases that it is not error to refuse an instruction which singles out a particular class of testimony in the case and directs the jury to consider it in connection with the other facts. Jenkins v. Quick, 105 Ark. 467, and cases cited therein.
No error appearing in the record, the judgment is affirmed. | [
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Carleton Harris, Chief Justice.
This is a child custody case. Appellant, Dixie Sindle, and appellee, Charles L. Sindle, were married January 14, 1955. On August 10, 1955, a child, Charles Randle Sindle, was horn. Appellee was granted a divorce on October 17, 1955; custody of the child was given to appellant, and appellee was directed to pay the sum of $40 per month for child support. The order further provided appellee should have the right to visit the child ‘ ‘ and when it became older, to have it visit him.” On July 9, 1957, Mr. Sindle filed a petition for modification of the decree, alleging that he had never been allowed to visit the child or have the child visit him, asked that he be granted the custody of Charles Randle for not less than one-half the year, and that the child support payment be reduced to $20 per month during the period in which the child remained in the custody of appellant.
At the conclusion of the hearing on such petition, the court granted appellee the custody of Charles Randle during the months of March, July and November, for the years 1958 and 1959, and reduced the support payments from $40 per month to $35 per month for the remaining 9 months of each year. From such action of the court, comes this appeal.
As has been so often stated by this Court, the paramount and controlling consideration in all custody cases is the child’s best interest and welfare. Cushman v. Lane, 224 Ark. 934, 277 S. W. 2d 72. Holt v. Holt, 228 Ark. 22, 305 S. W. 2d 545. The proof shows that appellee is an itinerant construction worker, presently located in Senatobia, Mississippi, though he claims Hampton, Arkansas, as his legal residence. Subsequent to the divorce, he married again on January 31,1957. His present wife is 18 years of age. Appellant has not remarried, is unemployed, and lives with her parents.
Appellee contends that appellant has deprived him of his right of visitation with the child. According to the evidence, he has gone to the home where she resides four or five times, the last occasion being about a year before this trial, for the purpose of visiting his son, and appellee refused to let him take the child away from the house, and according to his testimony, took it into another room. The mother contends that she is perfectly willing for Mr. Sindle to see and visit with the child, but that on the occasions of his coming to the home, he has been drinking, and at times has come to the house after the family had retired for the night; that she would not permit visitation under those circumstances. This testimony was corroborated by her father. The proof shows that appellant had gotten behind with his child support payments, and Mrs. Sindle had had him arrested, following which, no further visits were made. At the present time, he is current in his payments.
It is contended that appellant leaves the child with her parents, and does not stay with it. After a close search of the record, we are unable to find the basis for this contention. The only testimony that even slightly indicates such a fact, was given by appellee.
“Eight after the baby was born I could go over. Not long after she went to El Dorado and stayed a good while. Then it started raining, and I couldn’t keep up with the payments. She had to leave El Dorado and come back home.”
Further:
“You said something about Dixie wanting to take some kind of trip, what do you mean by that?
A. Every time she gets a check she goes somewhere. The last one, she went up to Booneville.
Q. Do you know what she was doing up there?
A. No, I don’t, because I wasn’t up there with her. I have a bud up there in the hospital. She went in there to see him. That might have been what she went for, I don’t know.”
Appellant also testified that she went to church one night and left Charles Eandle with her parents. These statements by appellee are rather general, and in fact, it is not shown but what she took the child with her. . Of course, there could be no objection to her leaving Charles Eandle at home to attend a night church service. It might be added that we cannot visualize extensive travel on $40.00 per month. At any rate, since no alimony is being paid, Mrs. Sindle might well be forced to obtain employment, in which event the child would certainly have to stay with her parents. Appellee recognizes that he would not be able to be with the child at all times, and plans for his present wife to look after Charles Eandle while he is at work.
The court awarded Mr. Sindle custody of this child during the months of March, July, and November, for the years 1958 and 1959. The reason for choosing these particular months is not shown in the record. As we stated in Aaron v. Aaron, 228 Ark. 27, 305 S. W. 2d 550:
“Divided custody of a minor child is not favored unless circumstances clearly warrant such action.”
We are unable to see that such action is warranted in this instance. As previously mentioned, appellee is an itinerant construction worker, and the record does not reflect where he will be during the months he was awarded custody of the child, nor what kind of home, or surroundings he will be in. It may well be that he does not know where he will be located during those periods, but we are of the opinion that before the child is placed in his custody, the environment and home surroundings should be ascertained. There is not one line of evidence in the record to indicate the type of neighborhood, or atmosphere, to which appellee and his wife intend to take the boy. We do not know whether they rent a house, live in a trailer, or reside at a hotel. The present wife did not testify, and her attitude toward the child, or ability to care for and look after it, is not shown, except that her husband testified as to her willingness to take Charles Randle. Of course, it is recognized that a child of tender years, under normal circumstances, belongs with its mother, and as stated in Perkins v. Perkins, 226 Ark. 765, 293 S. W. 2d 889:
“* * * It is a matter of common knowledge that usually there is no love like a mother’s love; this is a law of nature that is almost invariable, and unless there are compelling reasons for giving someone other than the mother custody of a small child, it should not be done. ’ ’
There is no evidence here that comes close to establishing that this mother is not devoted to her child. We are unwilling to approve a transfer of part-time custody of this little fellow, still less than three years of age, from his mother, who has had the custody from the time of his birth, to the father, where he would largely be under the care of an 18 year old stepmother. This, in our opinion, would not he for the best interest of the child. Certainly appellee is entitled to visit Charles Randle, and arrangements can be made for him to take the little boy away from the house, if visiting conditions are presently unpleasant. Mr. Sindle could take the child to town, or on a picnic, or numerous places where he would have no occasion to be annoyed or disturbed by appellant. It goes without saying that on such occasions, he should be entirely sober.
The court reduced the monthly support payments from $40 to $35 for the nine months period during which it was ordered that the mother have custody of Charles Randle. Again, we find no evidence upon which to justify a reduction. No one testified as to appellee’s salary or wages. The only evidence relative to Mr. Sindle’s income is as follows:
“You are asking for this decree to be modified to where you will only pay $20 a month while the child is with its mother. On what are you basing that petition?
A. Because I think I could take it and raise it for $20 a month.
Q. You think that is too much?
A. Yes, I do.
Q. Are you working for the same company you were working for at the time the decree was rendered?
A. What do you mean?
Q. This decree was rendered back in October, 1955. Were you working for that same company then?
A. Yes, sir.
Q. Are you making the same money?
A. No, sir.
Q. You are not?
A. No.
Q. How much more now than then?
A. I am not making more. ”
So it is not shown that his earnings are less, nor his expenses greater, than at the time of the granting of the divorce decree. To justify a reduction in support payments, changed circumstances must be shown. Clinton v. Morrow, 220 Ark. 377, 247 S. W. 2d 1015. Of course, we know that appellee has remarried, but this is not emphasized in the testimony, nor argued as justifying a reduction in the support payments.
Appellant asks that she be allowed a reasonable attorney’s fee, and we think this request should be granted. We approved an attorney’s fee for the ex-wife in a child custody proceeding in Vilas v. Vilas, 184 Ark. 352, 42 S. W. 2d 379, and Aaron v. Aaron, supra. In those instances, the proceedings for modification were instituted by the divorced wives. Here, the proceeding was instituted by the ex-husband, and appellant, apparently without funds of her own, was certainly entitled to defend against the petition. We accordingly allow an attorney’s fee of $100.
The decree is reversed and remanded with directions to enter a decree consistent with this opinion, and to enter an order allowing appellant’s attorney a fee of $100. | [
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Sam Robinson, Associate Justice.
In 1947, Nettie Hatridge Parker executed her will. In 1953 she married the appellee herein, Doyle E. Parker. She died March 26, 1957, and appellant, Barney Anderson, is the sole beneficiary under her will. Pie has appealed to this Court from an order of the probate court allowing Parker curtesy in the estate of the deceased.
Ark. Stat. § 61-229 provides that curtesy shall be assigned the same as dower. Section 62-704 provides that if dower be not assigned to the widow within one year after the death of her husband, or within three months after demand made therefor, she may file in the court of probate a petition for allotment of dower.
On June 18, 1957, Parker made demand upon Anderson for the allotment of curtesy. The demand was addressed to Anderson as. executor. On September 5, 1957, a petition for assignment of curtesy was filed in probate court by Parker. On September 24th Anderson filed a motion to quash service, alleging that the notice was addressed to his attorneys, and he appeared specifically and only on the motion. On October 14th Anderson filed a motion to dismiss the petition for curtesy because the petition was filed September 5th, which was less than three months after demand for curtesy had been made on June 18th. On October 22nd Anderson demurred to the petition for curtesy, alleging that the demand was on the executor, and, further, that the petition did not allege that the Parkers had a child born alive to them.
On November 4th there was a hearing on the petition to dismiss and there was a finding by the court that the petition was refiled September 25th, which was more than three months subsequent to the notice given on June 18th. Also on November 4th the court made a finding that although the notice was directed to Anderson as executor, it was served on him personally and it is not necessary in order for curtesy to attach that a child be born to the marriage. The court overruled the demurrer. On November 4th Anderson filed a response to the petition for assignment of curtesy, without saving the point on the question of proper service. But even if Anderson had preserved his objection to the court’s refusal to quash service, he could not prevail on that point, because of the court’s finding that Anderson was actually served individually.
Appellant’s second contention, that a child must be born alive to the husband and wife before curtesy will attach, is without merit. Our statute establishing the right of curtesy, Ark. Stat. § 61-228, is a part of Act 313 of 1939. Section 5 (Ark. Stat. § 61-232) of the Act provides: “The purpose of this measure is to give a surviving husband the same interest in the deceased wife’s estate as a widow now has in the estate of her husband, so far as Section 7 of Article 9 of the Constitution permits.” Certainly it is not necessary that a child be born alive to a husband and wife before the widow is entitled to dower.
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J. Seaborn Holt, Associate Justice.
On a charge of wife and child abandonment appellant Castle was convicted by a jury and his punishment assessed at three years in the Arkansas State Penitentiary. This appeal followed.
For reversal appellant first earnestly contends that the trial court erred in permitting the state to amend the information after the jury had been selected and sworn. We do not agree. The information as originally drawn charged that Castle “did unlawfully, wilfully and feloniously desert his wife and seven minor children under the age of sixteen years and did fail, refuse and neglect to support said children and did flee the State of Arkansas.” As amended it charged that Castle “did unlawfully, wilfully and feloniously desert his wife and seven minor children under the age of sixteen years in destitute circumstances and did flee the State of Arkansas.” Our statutes under which the charge was based provide: Arkansas Stats. 1947, Sec. 41-204: “When a man, without cause, abandons or deserts his wife, or legitimate minor child under the age of 16 years — in destitute or' necessitous circumstances, or wilfully neglects or refuses to provide for the support and maintenance of the wife or child, he shall be imprisoned in the county jail or on the county farm for not more than six (6) months, or fined not less than fifty ($50) nor more than five hundred ($500) dollars, or both.” Sec. 41-205. “If such person after leaving his wife or child leaves the State of Arkansas, he is guilty of a felony and shall be imprisoned in the penitentiary for a period of time of not less than one (1) year nor more than five (5) years.”
As indicated, defendant was convicted on the charge as amended. Our statutes, Ark. Stats. 1947, See. 43-1008, further provide that an indictment must be direct and certain as regards: “First, the party charged. Second, the offense charged. Third, the county in which the offense was committed. Fourth, the particular circumstances of the offense charged where they are necessary to constitute a complete offense. (Crim. Code, Sec. 123; C.&M. Dig., Sec. 3012; Pope’s Dig. Sec. 3834.)” Also, Sec. 43-1006 provides: “Contents of indictments. —The language of the indictment must be certain as to the title of the prosecution, the name of the court in which the indictment is presented, and the name of the parties. It shall not be necessary to inclucle statement of the act or acts constituting the offense, unless the offense cannot be charged without doing so. Nor shall it be necessary to allege that the act or acts constituting the offense were done wilfully, unlawfully, feloniously, maliciously, deliberately or with premeditation, but the name of the offense charged in the indictment shall carry with it all such allegations. The State, upon request of the defendant, shall file a bill of particulars, setting out the act or acts upon which it relies for conviction.” Sec. 43-1024 sets out the method by which an indictment or information may be amended in this language, “The prosecuting attorney or other attorney representing the State, with leave of the court, may amend an indictment, as to matters of form, or may file a bill of particulars. But no indictment shall be amended, nor bill of particulars filed, so as to change the nature of the crime charged or the degree of the crime charged.” We said in Underwood v. State, 205 Ark. 864, 171 S. W. 2d 304, that this section, Sec. 43-1024, (Act 3 of 1936) was enacted . . . “for the very purpose of simplifying procedure in criminal cases, and eliminating some of the technical defenses by means of which criminals had often in the past escaped punishment for their crimes.”
We hold that the amended information did not change the nature of the offense charged, since the willful desertion of appellant’s wife and children and that he had fled the State of Arkansas, were still charged in the amended information. The amendment, as indicated, only added “in destitute circumstances” to describe the condition of appellant’s family and struck out the charge “and did fail, refuse and neglect to support said children.” We think appellant was sufficiently put on notice of the nature of the charge on which he was called on to defend, that is, the crime of wife and child abandonment in destitute circumstances. It is difficult to see how he could have been misled or prejudiced.
Next appellant challenges the sufficiency of the evidence. Again we do not agree. Appellant, the father of seven minor children, while his wife was in the field working to help support the family, without as much as telling his wife of his intentions, and after a month’s secret planning, wilfully left his family, and in company with his neighbor’s wife, Ercile Mae Thompson, who was herself the mother of three minor children, drove in his car to Floydada, Texas. Appellant and Mrs. Thompson lived together in a tourist court in that Texas town for approximately one month and until they were arrested and returned to Arkansas. Further evidence bearing on appellant’s intention to abandon his family was the testimony of Mrs. Thompson and appellant that Mrs. Thompson, after she and appellant had reached Texarkana, Arkansas, on their journey to Texas, got out of the car and walked across the state line. A fair inference it seems to us that the jury might have drawn from this act on her part, was that she was attempting to avoid violation of what is commonly known as the Federal White Slave Traffic Act (Title 18 USCA Sec. 2421). On this issue of sufficiency of the evidence, appellant says: “It is true that the state proved the defendant had left the state, that he has taken another woman with him, and that his family was in destitute and necessitous circumstances, a fact proved by detailed and numerous testimony . . .” Viewing the evidence in the light most favorable to the state, as we must do, we must affirm the judgment if we find any substantial evidence to support it. We hold that the evidence was substantial and sufficient.
Finally, appellant contends that the trial court erred in permitting the state, over appellant’s objections, while cross examining appellant to ask him whether he had paid certain fines in a justice of the peace court in Nashville, Arkansas. On this point the record reflects the following testimony of appellant on cross examination: “And you didn’t waste your money? A. No. Q. Did you pay a fine in Nashville for public drunkenness just prior to your leaving here? A. (no answer) Q. You did, didn’t you? A. I don’t recall it was for public drunkenness. Q. What was it for? A. I don’t know. Q. Did you pay á fine to the city? A. Yes. —Did you pay a fine for disturbing the peace? A. No. Q. Are you just as sure of that as you are of everything else you have testified to? A. Yes, sir. Mr. Kidd: If the court please, that’s not proper cross-examination. If he’s going to ask him along that line, I want him made his own witness. He isn’t pursuing proper cross-examination. The Court: I believe you invited it, Mr. Kidd, by asking if he spent his money properly. Now, he’s attempting to show that he probably didn’t do that. Mr. Kidd. Save our exceptions. Q. (cont’d.) I will ask you if you are sure you didn’t pay a fine — A. I never paid a fine for disturbing the peace in my life. Q. Did you pay a fine in Howard County two months before you left for Texas ? A. I think I did. Q. What was it for ? Do you know? A. No, sir. Q. It was for violation of the criminal law, wasn’t it? A. Yes, I suppose it was. Q. Did you on the 24th of April, 1957, pay a fine of $15.00 for public drunkenness, to Howard County? A. What’s the date? Q. The 24th of April, 1957. A. I paid one back there somewhere.”
We think the above examination of appellant was within the scope of proper cross-examination as affecting defendant’s credibility as a witness. It is onr well established rule that when the defendant takes the witness stand in his own behalf the same rules apply to him as to any other witness. We said in Shinn v. State, 150 Ark. 215, 234 S. W. 636, “Appellant was asked all sorts of questions about having been a gambler and about other offenses and immoralities. This was merely for the purpose of testing his credibility and was admissible as such. This court so decided in the case of Hollingsworth v. State, 53 Ark. 387. This was with regard to a witness other than the accused himself, but we have since then frequently held that the same rule applies to a defendant in a criminal prosecution when he takes the witness stand in his own behalf. Ware v. State, 91 Ark. 555 ; Hunt v. State, 114 Ark. 239; Nelson v. State, 139 Ark. 13.” Also see Hays v. State, 219 Ark. 301, 241 S. W. 2d 266.
Finding no error, the judgment is affirmed. | [
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George Rose Smith, J.
This appeal is from a decree by which the appellee was granted a reduction in .the amount of alimony that he is required to pay the appellant. It is contended by the appellant that the proof fails to show a sufficient change of circumstances to warrant the reduction and, further, that the chancellor erred in refusing to allow the appellant her costs and an attorney’s fee.
After having been married for about thirty years the parties were divorced by a decree entered as of October 5, 1953. Gusewelle was then, and still is, the manager of a retail store in Little Rock, earning a salary of $10,000 a year and an annual bonus, based upon the profits of the store, that ordinarily comes to between fifteen and twenty thousand dollars. The original decree awarded to Mrs. Gusewelle the possession of the family home, title to the furniture and household goods, and one third of her husband’s other personal property. In addition to fixed alimony of $250 a month Mrs. Gusewelle was awarded a third of her husband’s annual bonuses, before the deduction of taxes but subject to the contribution that Gusewelle is required to make to his employer’s retirement pension plan. The only change effected by the present decree is that Mrs. Gusewelle’s share in the bonuses is to be computed after the deduction of taxes. This modification amounts to a reduction of about $100 a month.
We are of the opinion that the proof supports the chancellor’s decision to modify the original award. It is shown that the appellee’s employer, a corporation operating a chain of retail stores, expects its local managers to take an active part in community affairs and to entertain extensively at their own expense. In this connection Gusewelle testified that at the time of divorce he was living in a hotel room, at a rental of $90 a month, hut to meet his employer’s requirements he deemed it necessary to occupy an apartment costing about $200 a month. There is no reason to doubt the fact that the appellee’s income, which depends in part upon the profits of the store that he. manages, is at least indirectly affected by the standard of living that he maintains.
Another change of circumstance that we regard as important is the appellee’s remarriage. The cases on this point were recently reviewed in McCutcheon v. McCutcheon, 226 Ark. 276, 289 S. W. 2d 521, where we said that the husband’s remarriage is a matter that may be considered in weighing the equities of the situation. The case at bar is an instance in which this factor cannot fairly be disregarded. Gusewelle’s net income, after the deduction of taxes and his contribution to the pension plan, averages about $18,000 a year. Under the original decree his first wife received almost $8,000 of that income, upon which her federal and state income taxes were more than $1,000. What was left for the appellant’s use was substantially more than her actual needs, as she lives alone, in the former family home, without dependents. It is not indicated that the reduction allowed by the chancellor will work any hardship upon the appellant; at most it will diminish the amount that she is able to put aside as savings. In view of these facts we are not convinced that the chancellor’s modification of the original award is without justification. See Boniface v. Boniface, 179 Ark. 738, 17 S. W. 2d 897. By cross appeal the appellee urges us to reduce the allowance even more, but the evidence does not warrant the granting of this request. If the apportionment of the appellee’s income can be considered to be inequitable even after the readjustment put into effect by the chancellor, this condition is due to the original decree rather than to any change that has taken place since then.
With respect to the claim for attorney’s fees, the allowance is within the court’s discretion, even though the governing statute does not refer specifically to a proceeding in which the husband asks for a reduction in alimony. Cf. Feazell v. Feazell, 225 Ark. 611, 284 S. W. 2d 117; Finkbeiner v. Finkbeiner, 226 Ark. 165, 288 S. W. 2d 586. In this case we have concluded that the appellee should contribute $250 toward the payment of the fee for the appellant’s attorney and that the appellant should be permitted to recover her costs. With this modification the decree is affirmed. | [
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William J. Smith, Associate Justice.
This case grew out of an automobile accident that occurred on U. S. Highway 62 in Carroll County at a place known as Mockingbird Hill on March 23, 1956 at approximately 10:30 o ’clock in the evening.
All of the appellees, E. O. Thomason, his wife, Imogene Thomason, his son, David Thomason, Pearl Boren and Freda Boren, were riding in an automobile traveling to the east and being operated by E. O. Thomason, when at the crest of Mockingbird Hill it collided with an automobile traveling to the west on the south side of the highway being operated by appellant Joe R. Hosley, and also occupied by Roy Larimer. The Hosley automobile had come up the hill almost abreast of an automobile being operated by appellant Jerral Smith, and also occupied by David Gooley, Leon Hudson, Raymond Bunch and John D. Lively. The Smith automobile remained on the north side of the highway and did not collide with either of the other two automobiles. Appellant Arthur C. Berry had signed for a driver’s license for his stepson, Joe R. Hosley, who was 16 years of age, and appellant Joseph H. Smith had signed for a driver’s license for his son, Jerral Smith, who was 17 years of age. Sec. 75-315, Ark. Stats. 1947.
Appellees filed a complaint against appellants in which they alleged that Hosley and Jerral Smith were negligent in speeding and racing; that Hosley was negligent in attempting to pass the Smith automobile; that Jerral Smith was negligent in speeding up to prevent Hosley’s passing; that Jerral Smith was negligent in crowding Hosley’s automobile; and, that Hosley was negligent in operating his automobile on the left-hand side of the highway. Appellees prayed a judgment against appellants for damages to compensate for personal injuries and property damage. The cause was tried to a jury and was submitted on interrogatories. Pursuant to the jury’s answers to the interrogatories the court entered a judgment for appellees for a total of $21,500, together with costs.
Appellants rely upon ten points for reversal of the trial court’s judgment and we have determined that at least one of these points requires that the cause be remanded for a new trial. We agree with appellants’ contention that it was prejudicial error to permit appellees to impeach their own witness, Roy Larimer, by in troducing a statement previously signed by him. This witness was called by appellees and on direct examination testified in part as follows: “Q. Did Jerral Smith speed his car up? A. I can’t say. Q. Did you succeed in passing the Jerral Smith car? A. No, sir. Q. What prevented it? A. Either our car lost speed or he speeded up. * * * Q. Do you know why you didn’t get ahead of him? A. No, sir. * * * Q. It just happened instantly? A. It happened pretty fast. Q. Roy, to refresh your memory I want to ask you if you signed this statement? Mr. Adams: We object to the impeachment of the witness. Mr. Willis: I am not impeaching him. The Court: Is it contradictory to what he has testified? Mr. Willis: No, because he says he doesn’t know whether his car slowed or whether Jerral Smith speeded up. ” Thereafter the court permitted appellees to show this witness his previous statement and then ask if it refreshed his memory. When the witness answered “not too much”, appellees announced to the court that they were taken by surprise and the court ordered the matter argued out of the presence of the jury. After the jury retired testimony and argument were heard by the court relative to Larimer’s statement and the circumstances under which it was signed. The jury was recalled and over the continuing objection of appellants this procedure was followed: “Further examination by Mr. Willis: Q. Roy, did you sign a written statement presented to you by the Deputy Sheriff of Carroll County in regard to this accident here about 3 months ago? A. Yes, sir. Q. Is this the statement which you signed? A. Yes, sir. Mr. Willis: May I read it to the jury? The Court: Very well (reading from the written statement) ‘I was a passenger in an automobile driven by Joel Hosley; that about half way between Alpena and Green Forest the Hosley car overtook a car driven by Jerral Smith. Hosley attempted to pass the Smith car on the west slope of the hill. Smith speeded up to prevent Hosley from passing and there was a race through the hollow and on up the Mockingbird Hill. We were traveling side by side when we reached the top of the hill. The Hos ley car struck a car at the top of the Hill. ’ Signed Roy Larimer. The Court: Mr. Willis, I think the court should mention to the jury at this point the statement that you have read, which the witness has stated he signed previously, if you find that it contradicts the testimony that he is giving now, or has given, you will consider it solely and only for the purpose of going to the credibility of this witness, and in determining how much credit should be given to his testimony, not to prove any facts in issue.”
Prior to the introduction of this statement, Larimer had given no positive testimony relative to the allegations that the boys were speeding and that Smith had speeded up to prevent Iiosley from passing. These questions were vital and all important and had a direct bearing upon the liability, if any, of appellants. The use of Larimer’s statement served to supply a deficiency at that point in the trial in appellees’ evidence. Under these circumstances appellees were permitted to introduce a statement containing substantive evidence not otherwise admissible by contending it was for impeachment purposes, Sec. 28-706, Ark. Stats. 1947, at a time when there was nothing to impeach and nothing to contradict. We hold that this was prejudicial and was error, even though the court instructed the jury that the statement was to be considered as only going to the credibility of the witness. It is significant that appellees admitted (see counsel’s statement above) that Larimer had not testified to the contrary and it is to be noted that he had not testified to anything prejudicial to appellees. The mere fact that he did not give the positive testimony anticipated by appellees did not render his previous statement admissible, and enable them to use his statement to supply evidence they had failed to elicit from him.
In the recent case of Milum v. Clark, 225 Ark. 1040, 287 S. W. 2d 460, this court stated: “For such evidence to be admissible, however, the witness to be impeached must have given substantive testimony damaging to the party who seeks to attack his credibility. It is settled that inconsistent prior statements cannot be used to impeace a witness who merely fails to give the positive testimony that the party expected from him. Doran v. State, 141 Ark. 442, 217 S. W. 485; Murray v. State, 151 Ark. 331, 236 S. W. 617; Williams v. State, 184 Ark. 622, 43 S. W. 2d 731. The reason is that the prior statements are not competent evidence of the basic fact, being hearsay, and are admissible only as bearing on the issue of credibility. Comer v. State, 222 Ark. 156, 257 S. W. 2d 564. But if the witness has testified to nothing his credibility is immaterial.”
The test for determining when a party may impeach his own witness by the use of contradictory statements requires two conditions: First, the witness must give testimony at variance with that anticipated by the party calling him; and, second, such testimony must be prejudicial or detrimental to the case of the party calling him. Here the witness testified to nothing in favor of or against the party calling him. 58 Am. Jur., “Witnesses”, Secs. 799 and 800.
Ordinarily we would not refer to the other points argued in the briefs, but since this ease is being remanded for a new trial, we think it proper for us to discuss certain of the points raised.
The first four points argued by appellants pertain to the voir dire■ examination of the veniremen on the subject of insurance. The rules governing voir dire inquiry into this subject were set forth in the case of DeLong v. Green, 229 Ark. 100, 313 S. W. 2d 370, and we do not consider it necessary for us to further elaborate on the rules laid down in that case.
During the trial of this cause the appellants who are minors moved for a directed verdict because a guardian had not been appointed to defend them, as required by Sec. 27-825, Ark. Stats. 1947. We do not think they were entitled to a directed verdict, but a mistrial, as to these minors, should have been ordered. This would have halted the proceedings against these minors until there was a compliance with the statute.
The only other point we deem it necessary to mention is appellees’ closing argument in which counsel stated: “* * * Mr. Adams didn’t call them — he asked why we didn’t call them, because gentlemen of the jury we have got their statements in the file and their statements are they were racing and that car increased his speed.” Appellants objected and requested the court to admonish the jury not to consider the statement, and this was done. We are constrained to say that in our opinion this statement was highly improper and grossly prejudicial and would have called for a mistrial upon proper motion by appellants. Gregory v. Rees Plumbing Co., Inc., 222 Ark. 908, 263 S. W. 2d 697.
The judgment is reversed, and the cause is remanded. | [
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Paul Ward, Associate Justice.
A jury failed to award treble damages against appellee under Ark. Stats. §§ 50-105 and 50-107 for cutting and removing timber (alleged to be wilfully done) from land belonging to appellant. It is the contention of appellant here that the cause should be reversed because the trial court gave two instructions which were erroneous.
There is hardly any dispute over the essential facts. Appellant, T. E. Freeze, and appellee, Alva Hinkle, each own considerable acreages of timber land which have a common boundary line of approximately one-half mile. This mutual line had not been surveyed when the. timber was cut, and its exact location was apparently not known to either and certainly not known to Hinkle. On two different occasions the- employees of Hinkle entered upon Freeze’s land, at places pointed out by Hinkle, and cut and removed timber. The actual value of this timber, according to the allegations in Freeze’s complaint, was $146.20. It was further alleged by Freeze that said timber .was cut and removed by Hinkle “wilfully and without right or authority,” and judgment was prayed- for treble the actual value of said timber.
The jury returned a verdict in favor of Freeze for the sum of $94.00 -and judgment' was entered for that amount. The- only grounds designated.by appellant for a reversal are that the trial court erred in giving ap pellee’s requested instructions No. 3 and No. á. We will consider these grounds separately and in the order mentioned.
Instruction No. 3. By this instruction the trial court in effect told the jury it would be authorized to return a verdict for the actual value only if it found Hinkle “honestly believed, or had probable cause to believe that the timber was on his own land, and said cutting was not done knowingly and intentionally.” It is not contended by appellant that the instruction is inherently wrong, but he bases his objection solely on the ground that there is no testimony to support it. If appellant is right it was epror for the court to give the instruction. After a careful survey of the record we have arrived at the conclusion that it does contain substantial evidence to support the instruction. Appellee testified in part as follows: Q. “At the time you cut this timber, this oak and cedar, did you honestly believe it was on your land?” A. “Yes, I did.” Q. “Why did yon believe it was your land?” A. “The line didn’t go anywhere near where I thought. I was mistaken about where the corner was at.” It is noted that sometime after the timber was cut the true line was surveyed and definitely determined. It shows that the timber was in fact on Freeze’s land. It further appears from the record that appellee readily admitted cutting the timber, that he offered to pay appellant its value after the survey, and that the matter might have been settled at that time if an agreement as to the amount had been reached. It is admitted that there was nothing to indicate the true line when the timber was cut. Section 50-107 mentioned at the outset states in substance that only single damages shall be recovered in an action of this kind if it appears that the trespasser (appellee here) “had probable cause to believe that the land on which the trespass is alleged to have been committed . . . was his own.”
Considering all these facts and circumstances, together with Hinkle’s positive statements, we cannot say, as a matter of law, that he did not have probable cause to believe tbe land was Ms. In other words, we think there is substantial evidence to justify the trial court in submitting the question to the jury.
Appellant says the testimony shows positively that Hinkle could not have had probable cause to believe the land was his. This is based on Hinkle’s admission that he did not know the exact location of the line when he cut the timber. We cannot agree that appellant’s deduction necessarily follows. We think Hinkle could have honestly believed he was on Ms own land even though he did not know exactly where the true line ran. In fact it seems that the question of good faith or “probable cause to believe” could only arise where the trespasser did not know the location of the true line.
Instruction No. 4. This instruction is essentially the same as No. 3 discussed previously, except as hereafter indicated. It told the jury in effect that before appellant could recover it must find that the timber “was wilfully and intentionally cut and removed . . . and that it was not a mistake on the part of the defendant” (our emphasis). The principal objection is to that portion of the instruction which is emphasized. Appellant has not pointed out, and we fail to see, how the jury was misled by the questioned portion of this instruction. We think the jury understood that cutting timber by mistake by appellee meant the same thing as cutting with probable cause to believe he was cutting his own land.
In addition to the above appellant argues to the effect that the trial court should have instructed a verdict in his favor for treble damages because of Ark. Stats. § 54-201, but we find no merit in this argument. The above section provides in substance that anyone cutting timber on land must first have it' surveyed, and the succeeding section provides a penalty for its violation. These sections do not deal with the wilful cutting of timber or the amount of damages. It is true that Hinkle’s failure to have a survey made before cutting the' timber could, be' considered, by- the 'jury as going to the wilfullness of his- act, and the jury was so told in appellant’s instruction' No. 2. This' was all appellant was entitled to. This same question was settled against appellant’s contention in the case of Case v. Hunt, 217 Ark. 929, 234 S. W. 2d 197, at page 931 of the Arkansas Reports.
Affirmed.
William J. Smith, J., not participating. | [
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J. Seaborn Holt, Associate Justice.
Appellant, Carrie Cloman, and appellee, Marion Cloman, negroes, were married in November 1922 in El Dorado, Union County, Arkansas. They separated, in May 1953 and appellant brought the present suit June 27, 1957, alleging in her complaint that appellee “without just cause and without any explanation to the plaintiff left their home at 130 Rock Island Avenue in El Dorado, Arkansas, where they had been living as husband and wife for years and moved a few blocks away from their said home and began living with a younger woman, namely, Rosie Lee Hardy, with whom the defendant soon thereafter went through a marriage ceremony on June 9, 1953, at Magnolia, Arkansas. This purported marriage between the defendant and the said Rosie Lee Hardy took place after the defendant had fraudulently, and upon false and fraudulent affidavits and perjured testimony, obtained a decree for divorce (in Columbia County). In order to obtain said fraudulent and void decree for divorce the defendant made affidavit for warning order in which he swore that the plaintiff was a non-resident of the State of Arkansas, when at the time said affidavit was made said defendant well knew that the plaintiff' was still residing in their home in El Dorado, Union County, Arkansas, where the plaintiff and the defendant had lived as husband and wife for many years. Said defendant further falsely swore and the witnesses on his behalf falsely swore that this plaintiff was a non-resident of Arkansas, and that the defendant was a resident of Columbia County, Arkansas, when in truth and fact defendant was at the time residing in El Dorado, Arkansas within a few blocks from the home where he had lived with the plaintiff and where the plaintiff was still residing . . . Plaintiff states that she is in very poor health and is unable to work and earn a living and is under care of doctors, and that the defendant is a veteran of World War I and is also a retired railroad worker and has ample means with which to support and maintain this plaintiff as his legal wife. Plaintiff states that defendant has had a stroke, and is in a wheel chair. That plaintiff is willing for defendant to return to their home, where defendant can be cared for during his lifetime.” She prayed for suit money, including attorney’s fees, and for reasonable maintenance and support.
Appellee answered with a general denial and pleaded laches and estoppel. Trial resulted in a decree dismissing appellant’s complaint for want of equity. The decree in part recites: “. . . this court does not have jurisdiction to annul a decree rendered at a former term of court of the Columbia Chancery Court, First Division; that this court further finds that if this court had jurisdiction the plaintiff is estopped and the plaintiff’s petition to annul and for maintenance, attorney’s fee, and costs should be denied.” This appeal followed.
It appears undisputed in this case that at the time appellee secured a decree of divorce from appellant in Columbia County that neither of the parties was a resident of Columbia County or had either of them ever lived or resided in that county. In fact, both had lived, all their lives in Union County. We hold, therefore, that the Columbia County divorce decree was absolutely void for lack of jurisdiction of the Columbia Chancery Court. It is well settled that the decree of a court that had no jurisdiction of the subject matter or of the parties has no legal force and effect. It is a nullity. See Cooper v. Cooper, 225 Ark. 626, 284 S. W. 2d 617. Under the topic Divorce and Alimony, Ark. Stats. 1947, Sec. 34-1204, Venue-Service of process, provides: “The proceedings shall be in the county where the complainant resides, and the process may be directed in the first instance to any county in the State, where the defendant may then reside.” So at the time the present suit was filed the parties here had never been legally divorced and were still husband and wife. Our law is so well established that it is the duty of the husband to furnish maintenance and support for the wife that citation of authorities seems unnecessary. We think that the preponderance of the testimony shows that immediately after appellant learned of the Columbia County divorce decree she immediately employed an attorney and filed the present suit in Union County.
We do not agree that laches is a defense to the present suit. “Generally, laches does not bar such a suit (for support and maintenance) the right of suit being continuous, although condonation may have such effect. ’ ’ Vol. 27 Am. Jur., Sec. 407, p. 15. We find no sufficient evidence to support condonation here. We think the preponderance of the evidence in this record fails to support the alleged separation agreement and we find nothing that would prevent appellant, who had lived with appellee from their marriage in 1922 until he left her in 1953 — without just cause, from claiming her legal rights as his lawful wife.
The evidence shows that appellant was 53 years old, in poor health, without funds and unable to support her self. Appellee is a disabled war veteran, and receives monthly a check from the federal government in the amount of $314 in addition to his social security and some other income. Accordingly, the decree is reversed with directions to allow appellant reasonable support and maintenance as appellee’s wife, together with all her costs, and a reasonable amount for her attorney’s fee.
Chief Justice Harris and Justices McFaddin and Millwee dissent. | [
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Sam Robinson, Associate Justice.
This is an appeal from a judgment of the circuit court affirming a decision of the Board of Review holding that certain former employees of appellant, Rainfair, Inc., are not disqualified under Ark. Stat. § 81-1106(a), as amended by Act 162 of 1953. This section provides for ten weeks’ disqualification if employee voluntarily and without good cause connected with the work left his last work.
Appellant, Rainfair, employs about 107 workers. On the 2nd day of May, 1955, about 25 of the employees did not show up for work. On that same day Mr. James E. Youngdahl, director of organization for the Amalgamated Clothing Workers of America, notified Rainfair by letter that the employees had gone on strike because of unfair labor practices. The letter from Mr. Youngdahl to Rainfair further states: “We are ready and willing to meet with representatives of your company at any time or place to make arrangements to have our majority status at Wynne, Arkansas, checked against your payroll by some neutral person as previously requested by myself of your officials at Wynne several weeks ago.”
The issue between the workers and Rainfair was whether the Amalgamated Clothing Workers Union would be recognized by Rainfair as a bargaining agent for the employees, who were not at the time members of a union. On the same day, May 2nd, Rainfair sent the employees who had not come to work that day the following letter: “We notice that you did not come to work today. We do not know what the cause is for your being absent. You realize that it is necessary for us to have a full complement of employees in order to get our necessary production. Therefore, if you do not return to work by Thursday, May 5, 1955, we will assume that you have resigned and no longer wish to work for us. In that case it will be necessary for us to replace you. We hope that you return to work.”
On May 18th the employees abandoned the effort to have the Clothing Workers Union recognized as the bargaining agent and offered to return to work unconditionally. On May 19th they went to Rainfair’s place of business to go to work, but were told that no work was available. On June 20, 1955, they again informed Rain-fair that they were on a strike. This second notification of being on strike was completely meaningless, because prior to that time they had been discharged.
The appellant, Rainfair, contends that the employees voluntarily quit their jobs and are therefore disqualified to receive unemployment compensation for a period of ten weeks as provided by Ark. Stat. § 81-1106, as amended by Act 162 of 1953.
The appellees contend that they did not voluntarily quit their work on May 2nd, but went out on strike; that there was a labor dispute. They make no contention that they were entitled to compensation during the time they were on strike, as provided by Ark. Stat. § 81-1106 (d). But they do contend that when they called off the strike and offered to return to work on May 18th and were refused work by Rainfair, they immediately became eligible for unemployment compensation.
This case is controlled by Little Rock Furn. Mfg. Co. v. Commr. of Labor, 227 Ark. 288, 298 S. W. 2d 56. There the court said: “When the claimants offered to return to work on November 30th, they removed themselves from the disqualification of Sub-division (d) of § 81-1106 . . .”
Appellant attempts to distinguish the case at bar from the Little Rock Furniture Manufacturing Company case on the theory that in the cited case the unemployment grew out of a labor dispute and that in the case at bar it is simply a situation where some employees voluntarily quit their jobs without a just cause. It is clear from the evidence that the employees did not quit their jobs in the usual sense of the word. They simply went out on strike, hoping thereby to prevail on the employer to recognize a union of their choice as their bargaining agent. When it was apparent that their strike would not succeed, they attempted to return to work, but the employer in the meantime had arranged to do without their services and the jobs they left were no longer available to them. This is the same situation as existed in the Little Rock Furniture Manufacturing Company case, and it ivas held that the employees were not disqualified under Ark. Stat. § 81-1106(a).
Affirmed.
Holt and Ward, JJ., dissent. | [
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Ed. F. McFaddin, Associate Justice.
This is the second appearance of this litigation in this Court. The first appeal was Baker et al. v. Kansas City Fire & Marine Ins. Co., 227 Ark. 532, 300 S. W. 2d 264, wherein the facts were recited in considerable detail. Baker, Houston, and the First National Bank of Paragould (all hereinafter called “Baker”) had a fire loss of $2,-214.35 and sued the Kansas City Fire & Marine Insurance Company (hereinafter called “Kansas City Company”) for the amount of that loss since the Kansas City Company had issued a $4,000 policy to Baker. The Kansas City Company claimed that there was another policy on the same property issued by the Consolidated Underwriters of South Carolina Insurance Company (hereinafter called “Consolidated Underwriters”) for the sum of $6,000; that the total insurance was $10,000 and that the Kansas City Company was liable for only $885.74, which, was 40 per cent of the total loss of $2,-214.35.
On the first trial the Circuit Court agreed with the Kansas City Company and rendered judgment in favor of Balcer for only $885.74; and Baker appealed. The Consolidated Underwriters were not made parties defendant in the first trial. We said on the first appeal:
“The Kansas City Company defended on the basis that there was . . . ‘other valid and collectible insurance ’. The burden was on the Kansas City Company to prove that as regards the plaintiffs, there was outstanding a valid and collectible policy issued by the Consolidated Underwriters. . . . The Kansas City Company never showed that the plaintiffs could have recovered on the $6,000 policy issued by the Consolidated Underwriters. . . . The Kansas City Company alleged the affirmative defense that there was other valid and collectible insurance; and the burden was on the Kansas City Company to sustain the allegation. . . . Therefore, we conclude that the Trial Court was in error in holding that the Kansas City Company was liable for only a pro rata part of the loss. The judgment is reversed and the cause remanded for a new trial; and upon remand the Consolidated Underwriters may be brought in and the issues litigated with all parties before the Court. ’ ’
After the mandate containing our opinion was filed in the Trial Court Baker (the plaintiffs) made no effort to have Consolidated Underwriters made a party defendant. Instead, it was the Kansas City Company that had the Consolidated Underwriters made a third party defendant; and that Company (Consolidated Underwriters) admitted its liability for 60 per cent of the total loss of $2,214.35 and deposited with the Court the sum of $1,341.90 representing 60 per cent of the loss with interest until the date of the deposit, and asked that the Court direct payment to the person or persons entitled thereto.
The case was then tried by the Circuit Court on the testimony offered on the first trial, together with the subsequent pleadings, as hereinbefore mentioned; and the Circuit Court, in the trial from whence comes the present appeal, rendered judgment against the Kansas City Company for the full loss of $2,214.35, together with penalty and attorneys’ fees, but allowed the Kansas City Company, upon payment of the full judgment, to receive the amount deposited by the Consolidated Underwriters. From that judgment the Kansas City Company brings the present appeal.
We reach the conclusion that the judgment must be reversed. In the first trial the Kansas City Company pleaded the existence of other valid insurance (to-wit, the policy issued by the Consolidated Underwriters) as a defense to any liability by the Kansas City Company for more than 40 per cent of the total loss. The burden of proving this defense of “other insurance” was on the Kansas City Company; and on the first appeal we held that such burden had not been discharged: so we reversed and remanded. Then, on the second trial in the Circuit Court, the Kansas City Company sustained its burden of proving “other insurance” because the Consolidated Underwriters admitted liability and paid into the Court 60 per cent of the total loss. With the 60 per cent paid into Court, then the existence of ‘ ‘ other insurance” was established and the Kansas City Company became liable for only the remaining 40 per cent of the loss.
The real battle is over the matter of penalty and attorneys’ fees, which the Trial Court awarded Baker against the Kansas City Company. But what we have said, as to the Kansas City Company’s liability for only 40 per cent of the loss, points to the disposition that we make of the items of penalty and attorneys’ fees. Our applicable statute on these matters is § 66-514 Ark. Stats.; and onr cases hold that to he entitled to recover penalty and attorneys’ fees the plaintiff must recover from the defendant insurance company the amount for which the plaintiff sued. See Pacific Mut. Life Ins. Co. v. Carter, 92 Ark. 378, 123 S. W. 384, 124 S. W. 764; Fidelity Phenix Fire Ins. Co. v. Roth, 164 Ark. 608, 262 S. W. 643; Lincoln Reserve Life Ins. Co. v. Jones, 178 Ark. 466, 10 S. W. 2d 910; Mutual Life Ins. Co. of New York v. Marsh, 186 Ark. 861, S. W. 2d 433; Service Fire Ins. Co. v. Horn, 202 Ark. 300, 150 S. W. 2d 53; Liverpool & London & Globe Ins. Co. v. Jones, 207 Ark. 237, 180 S. W. 2d 519.
At all times in this case the Baker plaintiffs prayed that they recover from the Kansas City Company the sum of “$2,214.35 together with 12 per cent penalty and reasonable attorneys’ fees, as required by law . . .” After the remand of the case and after Consolidated Underwriters paid its money into the Court, the plaintiffs were not entitled to recover the full $2,214.35 from the Kansas City Company; and, therefore, the Kansas City Company was not liable for penalty and attorneys’ fees.
The judgment is reversed and the cause is remanded with directions to the Trial Court to enter judgment as follows: that the plaintiffs may have and receive the money paid into Court by the Consolidated Underwriters, and then have judgment against the Kansas City Company for the sum of $885.74 plus interest and all costs of the Trial Court, but not for penalty and attorneys’ fees. The costs of this appeal are taxed against the appellees.
There is no controversy as to the fact that interest is to he charged. So we omit any further calculation or reference as to interest.
That these amounts bear interest is not denied and interest was tendered by the Consolidated Underwriters and offered to be confessed by the Kansas City Company, so we omit any further calculation or reference as to interest. | [
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Minor W. Millwee, Associate Justice.
Appellants are F. H. Olmstead Company, Inc., and Frank H. Olmstead, its president and principal stockholder. Appellees are Rosedale Building & Supply Company, Inc., and C. C. Hudgens, its principal stockholder. On April 1, 1954, appellants bought certain assets of a building supply business from appellees located at 8108 Asher Avenue in Little Rock, Arkansas, executing secured notes for the greater portion of the purchase price. In the sales contract appellees agreed, as a part of the consideration for said sale, not to engage directly or indirectly in any business competition with appellants in the Rosedale Area of Pulaski County, as defined in the contract, for a period of three years.
A suit brought by appellants on August 12, 1955, for alleged breaches of the non-competitive agreement resulted in a decree entered May 2,1956, enjoining appellees until April 1, 1957, from “directly or indirectly furnishing any building materials for the erection of, or erecting, any structures on any lands” in the restricted area and from engaging in any business competition with that of appellants in the area during said period. The cross-complaint of appellees seeking judgment against appellants for $1,470 in damages was ordered dismissed. We affirmed the decree in Hudgens v. Olmstead Manufacturing Company, 227 Ark. 475, 300 S. W. 2d 26.
Appellants defaulted on the monthly payments due on the purchase money notes which had been paid down to approximately $8,000 on July 12, 1957, when appellees brought the instant suit to foreclose their liens on the assets of the building supply business securing the payment of said balance. In their answer and counterclaim, appellants claimed actual and punitive damages in excess of the unpaid balance of said purchase money notes on account of alleged breaches of the non-competitive agreement by appellees, and asked for cancellation of said notes and the mortgages executed to secure them. The reply of appellees contained a general denial and affirmatively pleaded the former suit and decree as res ■judicata and a complete bar to all matters alleged and relief sought against them in the counterclaim. By agreement, appellants paid $8,500 into the registry of the court and the liens held by appellees on the business assets were transferred to said fund and the assets released. This appeal is from a decree dismissing appellants’ counterclaim and directing that their indebtedness to appellees in the amount of $8,366.80 be paid from the funds in the registry of the court.
It is first contended that the chancellor erred in holding that the prior suit between the parties precluded appellants from introducing evidence of breaches of the non-competitive agreement by appellees which occurred prior to May 2, 1956, the date of the former decree. This proof was offered in support of appellants’ plea that such breaches resulted in a partial failure of consideration for the purchase money notes sued on. In this connection it was shown on the former trial that C. C. Hudgens was the principal stockholder in two building material businesses at the time of the sale of the assets of Rosedale Building & Supply Co., Inc., to appellants; and that the other corporation was then inactive but was reactivated by Hudgens shortly after the sale when he began constructing and selling homes on lots he owned in the restricted area, the materials being furnished by the reactivated corporation. Appellants’ offer of proof in the instant suit related to the same alleged breaches of the agreement which were fully explored and enjoined in the prior suit. Appellants insist that since there was no specific prayer for damages in the former suit as to such breaches, they were entitled to litigate that issue here.
This presents a question upon which there is a sharp division of authority, particularly where the second suit is one at law for damages. A statement by the text-writer in 28 Am. Jin\, Injunctions, Sec. 309, indicates that most courts favor the proposition that, where damages are not sought as incidental to an injunction, the decree granting the injunction is not a bar to an action at law for past damages on account of the thing enjoined. However, other courts hold that an injunction decree is a bar to an action at law for past damages regardless of whether the plaintiff in the injunction suit pleaded damages, and regardless of whether there was an attempt to recover damages in that suit. The text-writer’s statement as to the majority rule is based upon an annotation in 14 A. L. R. 543. A more recent annotation on the question in 26 A. L. R. 2d 446 indicates that most courts, including our own, hold that a decree deciding an injunction suit is res judicata in a subsequent action for damages of all issues determined in the injunction proceeding. Our own cases go further and hold that the decree in the injunction suit is also res judicata of all issues in a subsequent action' for damages which could have been interposed in the injunction suit.
In Gosnell Special School Dist. v. Baggett, 172 Ark. 681, 290 S. W. 577, this court reversed and dismissed a circuit court judgment awarding damages to plaintiffs for breach of their contract to teach school and sustained the defense of res judicata interposed by the school district by virtue of a former injunction suit involving the same contract. In so doing, the court said it was unimportant that the plaintiffs did not ask the affirmative relief of damages for breach of the contract in the injunction suit and reaffirmed the following statement from Taylor v. King, 135 Ark. 43, 204 S. W. 614: “The rule has been often announced in this court that the judgment or decree of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which could have been interposed in the former suit.” The court also approved the following statement in 15 R. C. L. Judgments, Sec. 439: “If it is doubtful whether a second suit is for the same cause of action as the first, it has been said to be a prop er test to consider whether the same evidence would sustain both. If the same evidence would sustain both, the two actions are considered the same, and the judgment in the former is a bar to the subsequent action, although the two actions are different in form.” Many cases from other jurisdictions are cited in support of this general rule in 30A Am. Jur., Judgments, Sec. 365.
In Robertson v. Evans, 180 Ark. 420, 21 S. W. 2d 610, we affirmed a decree holding a former suit to redeem land and declare a deed a mortgage to be res judicata of a subsequent suit by the grantor to recover rents and damages for waste by defendants, although the grantor failed to assert such claim in the original suit. We there said: “The test in determining a plea of res judicata is not alone whether the matters presented in a subsequent suit were litigated in a former suit between the same parties, but whether such matters were necessarily within the issues and might have been litigated in the former suit. Gosnell Special School District No. 6 v. Baggett, 172 Ark. 681, 290 S. W. 577; Cole Furniture Co. v. Jackson, 174 Ark. 527, 295 S. W. 970; Prewett v. Waterworks Imp. Dist. No. 1, 176 Ark. 1166, 5 S. W. (2d) 735.” See also, Coley v. Westbrook, 208 Ark. 914, 188 S. W. 2d 141; Crump v. Loggains, 212 Ark. 394, 205 S. W. 2d 846; Timmons v. Brannan, 225 Ark. 220, 280 S. W. 2d 393.
In the fourth subdivision of Ark. Stats., Sec. 27-1121, it is also now provided that a defendant must set out in his answer as many grounds of defense, counterclaim, or set-off as he shall have, and we have held the provision mandatory. Shrieves v. Yarbrough, 220 Ark. 256, 247 S. W. 2d 193. The manifest purpose of this and similar statutes is to enable litigants to settle all matters in dispute between them in a single suit. Troxler v. Spencer, 223 Ark. 919, 270 S. W. 2d 936.
In Hatch v. Scott, 210 Ark. 665, 197 S. W. 2d 559, relied on by appellants, a judgment for a tenant in an unlawful detainer action involving the issue as to service of a notice to quit, was held not res judicata of tenant’s rights under renewal provision of lease presented in a subsequent suit by the landlord to construe the lease, and for its cancellation and a writ of possession, in the absence of a showing that such issues were in fact decided in the first action. "We there pointed out that there was nothing in the record of the former proceeding to show what the circuit court’s judgment was based on. Nor was there any showing that the former judgment involved a decision of the merits of the case. In the case at bar the matter of the repeated breaches of the noncompetitive agreement prior to May, 1956, constituted the primary and controlling issue in the prior injunction suit and was there very definitely and directly adjudicated on the same proof that was offered here. Any claim that appellants had for damages on account of these repeated breaches of the contract could and should have been interposed in that suit. Under the foregoing-rules, we conclude that the chancellor did not err in sustaining appellees’ plea of res judicata to the counterclaim for any damages by reason of breaches of the contract occurring prior to May 2, 1956.
The question whether appellants introduced sufficient evidence to sustain a judgment against appellees for damages by reason of Hudgens’ breach of the contract after May 2, 1956 and prior to April 1, 1957, has given us much concern. It was shown that in several instances after May 2, 1956, Hudgens sold lots in the restricted area to the Commercial Corporation, which took mortgages back from its vendees for part of the sale price and in some instances assigned said mortgages to Hudgens. F. H. Olmstead also testified that he saw Hudgens “very active” in the restricted area after May 2,1956, but did not know just what he was doing. Hudgens ’ brother and nephew owned stock in the Commercial Corporation but there was neither allegation nor direct proof that Hudgens conspired with the corporation’s stockholders to circumvent and violate the noncompetitive agreement. Commercial Corporation is not a party to the instant suit and there is no showing that Hudgens, or any corporation he was interested in, fur nished any of the materials for the houses constructed after May 2, 1956. The former decree did not enjoin Hudgens from selling lots in the restricted area. In these circumstances, we cannot say the chancellor erred in holding the evidence insufficient to assess damages against appellees on account of alleged breaches of the contract occurring after May 2, 1956.
After termination of the non-competitive contract on April 1, 1957, Commercial Corporation opened a building material yard in the restricted area near that of the appellants and Hudgens subsequently became a stockholder in the corporation. Olmstead testified that he observed a dual sign post on the business premises in September, 1957, reading “Commercial Corporation” on one side and “Rosedale Building & Supply Company” on the other. It is argued that appellees should be perpetually'enjoined from using the name “Rosedale” in the rather extensive area involved; Since appellants’ own business is called “Rosedale Lumber and Paint Co.,” it is insisted that appellees’ use of the word “Rose-dale” is misleading and tends to create confusion and an infringement on appellants’ trade name. This was not made an issue in the pleadings nor is there any proof to sustain appellants’ contention that use of the word would be misleading or confusing.
Appellants’ other contention is that they were entitled to damages of $1,600 for attorney fees and other costs incurred in litigating the first suit. In the first place, there is no provision under our statutes and decisions to allow attorney fees and miscellaneous expenses as elements of damage in an action for breach of contract. Evans v. Ozark Orchard Co., 103 Ark. 212, 146 S. W. 511; Romer v. Leyner, 224 Ark. 884, 277 S. W. 2d 66. Even if such items were recoverable, the right to them could and should have been asserted in the prior suit under the principles already announced.
The decree is affirmed. | [
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Ed. F. McFaddin, Associate Justice.
This is an eminent domain proceeding; and the jury verdict in favor of the landowner must be reversed because of the admission of improper evidence in the matter of the damages.
The County Court of Hot Spring County made an order for the widening of TJ. S. Highway No. 67, and thereby took one and one-fifth acres of land of the appellees, Mr. and Mrs. Crawford. The land was on both sides of the highway, which separated the Crawford’s home from their place of business, called “Blue Top”, a restaurant and truck stop, about three miles north of Malvern. When the County Court disallowed the Crawfords’ claim, they appealed to the Circuit Court where the case was tried to a jury, with a verdict and judgment in favor of the Crawfords; and Hot Spring County has appealed.
In the trial in the Circuit Court the Crawfords claimed that the highway had been lowered .to such an extent that their patrons could no longer use the “Blue Top” as a truck stop, and that as a consequence the business was ruined, to the Crawford’s permanent darn-age. As one method of establishing the damages for the taking of their land and the damages to the lands remaining, the Crawfords were allowed to show — over objections of appellant — (a) that their net profits from the operation of the “Blue Top”, restaurant and truck stop, were $4,000.00 per year; and (b) a real estate appraiser testified that in determining damages to the Crawford land he capitalized this $4,000.00 net profit per. annum and used the result as a factor in fixing the Crawfords ’ damages at $48,350.00. The greatest amount that any witness for the County said the Crawfords were entitled to receive was $10,065.00; the jury verdict was for $28,000.00.
The Court allowed the jury to consider net profits from the business operated on the land as a factor in arriving at the land damages the Crawfords claimed; and this was an error fatal to the verdict and judgment. . Our Constitution says in Art. 2, § 22, “. . . and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor”. We have many cases on damages in eminent domain proceedings. Some of them are: Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792; Stuttgart & R. B. RR. v. Kocourek, 101 Ark. 47, 141 S. W. 511; Kirk v. Pulaski County Road Imp. Dist., 172 Ark. 1031, 291 S. W. 793; Miller Levee Dist. v. Wright, 195 Ark. 295, 111 S. W. 2d 469; Sewer Imp. Dist. v. Jones, 199 Ark. 534, 134 S. W. 2d 551; and Pulaski Coun ty v. Horton, 224 Ark. 864, 276 S. W. 2d 706. But we have directly held that the net profit of the business operated on the damaged land is not a proper factor for consideration by the jury in assessing the damages. In K. C. So. Ry. Co. v. Anderson, 88 Ark. 129, 113 S. W. 1030, in discussing the damages for taking of property, this Court said:
“But this does not reach to damages to the business of the landowner which are incident to the enforced purchase of his property. Thesé are not subjects for assessment in condemnation proceedings, under the weight of authority and the sounder reasoning on the subject.”
In Desha v. Independence County Bridge Dist., 176 Ark. 253, 3 S. W. 2d 969, land at or near a ferry site was condemned for the location of a bridge. The Trial Court allowed the ferry owner to show the net profits received from operating the ferry. This Court on rehearing said: “A majority of the Court are of the opinion that the evidence as to the amount of revenue or income from the ferry was not competent testimony.”
The holding of our Court, as above quoted, is in line with the great weight of authority. In 7 A. L. R. 163 there is an annotation, “Profits derived from business conducted on property taken by eminent domain as evidence of market value”; and the annotator cites cases from fifteen jurisdictions to sustain this statement: “With remarkable unanimity the American jurisdictions hold that evidence of profits derived from a business conducted on property is too speculative, uncertain, and remote to be considered as a basis for computing or ascertaining the market value of the property in condemnation proceedings.” In Nichols on “Eminent Domain”, Third Edition § 19.3 (Vol. 5, p. 222), the text writer sums up the holdings in the following language:
“It is, accordingly, well settled that evidence of profits, of a business conducted upon land taken for the public use is not admissible in proceedings for the determination of the compensation which the owner of the land shall receive. The profits of a business are too uncertain, and depend on too many contingencies to safely be accepted as any evidence of the usable value of the property upon which the business is carried on. Profits depend upon the times, the amount of capital invested, the social, religious and financial position in the community of the one carrying it on, and many other elements which might be suggested. What one man might do at a profit another might only do at a loss.”
We, therefore, conclude that the Trial Court was in error in allowing net profits from the business operated on the damaged land to be shown to the jury as an element or circumstance to be considered in arriving at a verdict. There are other assignments urged in the briefs, But as those matters may not occur on a new trial, we find it unnecessary to list or discuss them.
For the error indicated, the judgment is reversed and the cause remanded.
Here is the record when Mr. Crawford was questioned on the point:
“Q. About what was the average gross income that was being produced by that property out there over those three years?
A. I will have to refresh my memory.
Q. Well, get it just as accurately as you can estimate it, you don’t have to get it exact. The average gross income, total amount of income?
A. Around $42,000 a year.
Q. And about what was the net profit to you from that income?
MR. DEMMER: Your honor, I am going to object to this. I am going to object on the grounds, that profits on a business operated by a person who owns the land is entirely not proper for the establishment of ány type of value of compensation.
MR. COLE: We are merely trying to prove, Your Honor, the productive value of the land as an element in arriving at its value.
MR. DEMMER: Sir, I am saying that profit as far as income is concerned is not a proper element to consider.
MR. COLE: Not as such, but is so far as it affects market value.
MR. DEMMER: I don’t believe it is, the only time it can show income is when it shows the highest and best use for business purposes.
THE COURT: Objection overruled.
Q. What would be the approximate average net income that the property produced?
A. About $4000 a year.”
Here is the appraiser’s testimony on the point:
“A. Yes, sir, I took a number of things into consideration. I took into consideration the net income that the property produced for Mr. and Mrs. Crawford.
Q. You did consider the net income in arriving at your value?
A. As one approach to my value.
Q. Would you tell me how you did that?
A. I capitalized the net income from the property.
MR. DEMMER: I am going to request that this witness’ testimony be stricken from the record and the jury be requested to disregard it, because capitalization of a net income of a situation of this kind is not proper at all in evaluating as far as market value of a piece' of property is concerned.
THE COURT: Motion denied.”
There is an annotation in 134 A.L.R. 1125 entitled, “Distinction between income or profits from business on land and income or profits from use of land, as affecting admissibility of evidence in that regard on question of damages in eminent domain”, which is worthy of consideration by anyone studying the point herein discussed. | [
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Ed. F. McFaddin, Associate Justice.
From a conviction for grand larceny (§ 41-3907 Ark. Stats. as amended by Act 243 of 1949) appellant brings this appeal. The motion for new trial contains eight assignments, which we group and discuss in. suitable topic headings. ■
I. Sufficiency Of The ■Evidence. The specific charge was, that appellant and Cordell Powell had stolen a horse, the property of Mr. John Hawkins. Reciting the facts in the light most favorable to the verdict, as is our rule on appeal, there was evidence that Hawkins’ employee, Dave Moon, put the horse in question in a pasture in Little, River County, Arkansas, on the night of September 8, 1957; that the fair market value of the horse was $100.00; that the horse was not in the pasture the next morning; and.that Moon tracked the horse to the Lewis Ferry, which operates over Red River between Little River County, Arkansas,' and Bowie County, Texas. The ferry operator, Mr, Polk, testified that appellant and “another man” crossed the ferry the night of September 8th from Little River County, Arkansas to Bowie County, Texas; that appellant was in an automobile and the other, man was riding a horse; and that the description of the horse owned by Hawkins matched the description of the horse that appellant and the other man took across the ferry.
It was shown that the horse in question was taken to Bowie County, Texas,. and placed in a pasture, and appellant claimed ownership of the horse until it was later identified and recovered by Dave Moon for Hawkins, Appellant claimed that Cordell Powell took the horse and that appellant was only accessory after the fact; but appellant did not deny that he claimed ownership of the horse by some sort of purchase from someone. It was the prerogative of the jury to pass on the fact question; and the evidence is sufficient to support the verdict of guilty as rendered by the jury because there was sufficient evidence to make a fact question as to whether the appellant was an accessory before the fact.
II. Venue. Appellant claims that no crime was committed in Little River County, Arkansas, because the appellant laid no claim of ownership to the horse until it had been carried to Bowie County, Texas. There is no merit to this argument. The testimony of the ferry operator, that appellant accompanied the “other man” and the horse across the ferry from Little River County, Arkansas to Bowie County, Texas, when coupled with appellant’s subsequent claim of ownership of the horse, made a jury question as to appellant’s participation in taking the horse from Little River County, Arkansas.
III. Failure To Give The Written Instructions To The Jury. At the proper time the Court instructed the jury, and it is conceded by appellant that the instructions were typewritten on four pages of legal size paper. When the jury retired to consider its verdict, appellant’s counsel moved the Court to allow the jury to take the written instructions into the jury room. The Court refused this motion since the jury had made no such request. Appellant assigns as error the refusal of the Court to allow the jury to take the typewritten instructions into the jury room. There is no merit to this assignment. We have repeatedly held that it is within the sound discretion of the Trial Court to grant or refuse defendant’s request that the jury take the written instructions into the jury room. Hurley v. State, 29 Ark. 17; Benton v. State, 30 Ark. 328; Culbreath v. State, 96 Ark. 177, 131 S. W. 676; and Rutledge v. State, 222 Ark. 504, 262 S. W. 2d 650. No abuse of discretion is shown in the case at bar.
IV. Newly Discovered Evidence. In one assignment in the motion for new trial, appellant claims that he had discovered some new evidence. The assignment reads as follows:
“Newly Discovered Evidence. It having come to the attention of the Attorneys for the Defendant that testimony heretofore non-discovered would be available to the Defendant to the effect that the horse being the sub ject matter of the alleged larceny did not belong to John Hawkins, Sr. as such witness testified for the prosecution and that consequently the agency of Dave Moon, witness for the prosecution, would also fail, leave of the Court to hereafter attach affidavits of credible witnesses to sustain such position being requested as on the date of the filing of this Motion the Attorneys have not yet procured such affidavits but anticipate such procurement shortly. ’ ’
All we know about this assignment is what is copied above: the record does not contain any affidavits as mentioned, and no diligence is shown; so this assignment fails for lack of support.
Affirmed.
Some cases so holding are: Allgood v. State, 206 Ark. 699, 177 S. W. 2d 928; and Eddington v. State, 225 Ark. 929, 286 S. W. 2d 473.
Act No. 128 of 1957 is not applicable here, because the State did not join in the request made by defendant. | [
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Ed. F. McFaddin, Associate Justice.
This appeal necessitates a study and determination of the meaning of certain portions of the Arkansas State Highway Employees’ Retirement System Act, being Act No. 454 of 1949, as amended by Act No. 403 of 1953, being now found in §§ 76-1901 et seq. Ark. Stats. Appellee, Greer, filed this proceeding against the appellants, who are the Trustees of the said Arkansas State Highway Employees’ Retirement System (hereinafter called “Retirement System”) to compel appellants to award Greer his claimed retirement pay. The appellants urged that Greer was not entitled to retirement pay because of the matters hereinafter stated. The Circuit Court granted Greer his prayed relief; and this appeal ensued.
The facts in this case are not disputed: Mr. Greer was born August 26, 1882; he was continuously employed by the Arkansas State Highway Department (hereinafter called “Highway Department”) from January 20, 1947 to December 31, 1957. During all of such period he received a salary in excess of $2,400.00 per year. The said Highway Retirement Act became effective on July 1, 1949; and participation was compulsory for Mr. Greer because of his salary scale. Deductions were withheld by the Highway Department from Mr. Greer’s salary and paid to the Retirement System at all times from July 1, 1949 to December 31, 1957, or a total of 8y% years. Furthermore, under the terms of the said Eetirement Act, employees with service antedating the effective date of the Act were given the option to pay into the Eetirement System a calculated amount for the period of service in the Highway Department previous to the beginning of the Eetirement Act; and Mr. Greer took advantage of that provision and paid the Eetirement System $251.24 as the calculated amount to cover his Highway service employment from January 20, 1947 to July 1, 1949, which was 2.46 years. Thus, on December 31,1957 Mr. Greer had paid into the Eetirement System the correct amount to cover a total of 10.96 years, being 2,46 prior to July 1, 1949 and 8.50 after July 1, 1949.
On May 1,1957 the Highway Department, acting under authority not here questioned, decided to retire on December 31,1957 all employees 75 or more years of age on said last mentioned date. Mr. Greer, having been born on August 26, 1882, was, of course, over the age of 75 years on December 31, 1957, and was, therefore, retired from employment under said decision of the Highway Department.
The said Eetirement Act provides in § 76-1911 (a) that a member of the Highway System may voluntarily retire and be eligible for retirement benefits at the age of 65 if he has ten years of creditable service. When Mr. Greer applied for retirement benefits, the appellants, as Trustees of the Eetirement System, discovered that under the provisions of the law, Mr. Greer was ineligible for retirement benefits; and he was tendered the sum of $1,531.91, which was the total amount that he had paid into the System, including interest. Mr. Greer refused the tender and instituted this litigation with the result previously stated. So the question is, whether Mr. Greer is entitled to retirement benefits from the Eetirement System.
Estoppel. At the outset, we emphasize that no element of estoppel enters into this case: because the appellee’s counsel stated in oral argument before this Court that he had not pleaded estoppel in the lower Court and was not relying on estoppel in any way in this case. This admission and concession in this Court renders it unnecessary for us to consider any matter of estoppel and leaves us to the unfettered determination of the meaning of said Betirement Act.
The Claims Of The Parties. Mr. Greer claims that he is entitled to the retirement benefits because of the first sentence of § 76-1911 (a) Ark. Stats., which reads: “A member may retire voluntarily at the age of 65, or during any year thereafter, until the age of compulsory retirement has been attained, provided such member has a minimum of 10 years creditable service in the Arkansas State Highway Department.”
The appellants defend against Mr. Greer’s claim by pointing to the last sentence of § 76-1911 (a) Ark. Stats., which reads: “Betirement from the System shall be compulsory to all members on July 1st following their 70th birthday, except that any employee who is 70 years or more of age as of the effective date of this act shall not be excluded from its benefits.” In making their claims under the last quoted sentence, the appellants point out: (a) that the effective date of the Act was July 1, 1949, and that Mr. Greer was not 70 years of age at that time; (b) that Mr. Greer became 70 years of age on August 26, 1952, and that under the last quoted sentence he was compulsorily retired on July 1, 1953 from the “Retirement System,” as distinct from employment in the Highway Department; (c) that under the plain wording of the quoted sentence, Mr. Greer was not entitled to continue in the Betirement System after July 1, 1953; (d) that on that date he had only 6.46 years of service credit (being 4 years from July 1, 1949 to July 1, 1953, and 2.46 years for service credit prior to July l, 1949); and (e) that through error of the bookkeeping section of the Highway Department, deductions were withheld from Mr. Greer’s monthly salary and paid to the Betirement System, the return of all of which deductions, with interest thereon, has been tendered to Mr. Greer.
In rebuttal to tbe defense of tbe appellants, Mr. Greer points out tbe definitions found in § 76-1901 Ark. Stats, as follows:
“ (e) ‘Employees’ shall include all employees of the Arkansas State Highway Department whose compensation is or was payable on an hourly, monthly, or annual basis by the State Highway Department, including employees of the State Highway Department whose salaries are paid or reimbursed in whole or in part from Federal funds . . .
“(i) ‘Prior Service’ means all service as an employee of the Arkansas State Highway Department prior to the date of the establishment of the System . . .
“(1) ‘Creditable Service’ means the current service of the member plus such portion of Prior Service time for which contributions have been made or elected to be made by the member. Retirement benefits shall be computed upon the Creditable Service of the member . . .”
Mr. Greer also points out that § 76-1908 provides how membership in the System may be terminated; and claims that the sentence in § 76-1911 (a) relied on by the appellants, relating to compulsory retirement, means those who retire on retirement benefits.
It is clear from these contentions, and from a careful study of the Retirement Act, that “System” means one thing, and “Highway Department Employee” means another thing: that is, a person may be employed by the Highway Department and draw pay as such employee and still not be a member of the Retirement System. For example, under § 76-1907 an employee earning less than $2,400.00 per year has the option to come under the System, but is not required to. It is appellants’ contention that on July 1st following his 70th birthday, every employee of the Highway Department was compulsorily retired from the Retirement System, even though such person continued to be employed by the Highway Department. We can see no answer to this last stated contention of the appellants.
It is true that retirement acts and pension acts are to be liberally construed to effectuate their humane purposes. We so held in Looper v. Gordon, 201 Ark. 841, 147 S. W. 2d 24. But it must also be recognized that the State has the right to prescribe the terms and conditions under which persons may come under, or be excluded from, the benefits of a retirement system. As stated in 40 Am. Jur. 980, “Pensions” § 23: “The right to a pension depends upon statutory provision therefor, and the existence of such right in particular instances is determinable primarily from the terms of the statute under which the right or privilege is granted. The right to a pension may be made to depend upon such conditions as the grantor may see fit to prescribe.”
When we see the respective claims, defenses and rebuttals as stated, it appears that there is a conflict between the definition sections relied on by Mr. Greer, and the sentence in § 76-1911 Ark. Stats. relied on by appellants, which sentence is: “Retirement from the System shall be compulsory to all members on July 1st following their 70th birthday, . . .”
Which section governs? That is the problem; and in solving the problem we are not without certain rules of statutory construction. One of these rules, recognized and applied by this Court for many years, and applicable here, is: “Where general terms or expressions in one part of a statute are inconsistent with more specific or particular provisions in another part, the particular provisions will be given effect as clearer and more definite expressions of the legislative will.” We have quoted the above rule from Hodges v. Dawdy, 104 Ark. 583, 149 S. W. 656. It was also recognized in Wiseman v. Ark. Util. Co., 191 Ark. 854, 88 S. W. 2d 81. In 50 Am. Jur. 371 “Statutes” § 367, the text states: “It is an old and familiar principle . . . that where there is in the same statute a specific provision, and also a general one which in its most comprehensive sense would include matters embraced in the former, the particular provision must control, and the general provision must be taken to affect only such cases within its general language as are not within the provisions of the particular provision.” To the same effect see also 82 C. J. S. 720; and Crawford on “Statutory Construction” § 189.
When we view the conflict between the general definition of terms and the specific provision in § 76-1911 (a) Ark. Stats, as relied on by the appellants, we reach the conclusion that the Legislature definitely prescribed that a Highway Department employee, though he might continue to be employed after July 1st following his 70th birthday, was nevertheless compulsorily retired from the Retirement System on July 1st following his 70th birthday. Under that view, it follows that on July 1, 1953, when Mr. Greer was compulsorily retired from the Retirement System he had only 6.46 years of creditable service; so he was not eligible to pension. However, under § 76-1912 (c) Ark. Stats, he is entitled to the return of all of the money that he had paid into the System, together with interest; and the record shows that such amount was tendered to Mr. Greer.
It, therefore, follows that the judgment is reversed and the cause dismissed, upon payment of the tendered amount.
Johnson, J., dissents.
It was stated by both sides in the oral argument that Act 454 of 1949 was not copied from any other State, but is rather a composite of various acts of other jurisdictions. A study of the legislative history of the Act No. 454 of 1949 shows that it passed both Houses of the Legislature without any amendment, so the Act was passed just as it was introduced.
Mr. Greer’s proceeding is for writ of mandamus; but all parties concede that it may be treated as certiorari, or action for declaratory judgment, or any other appropriate proceeding to obtain a decision of the case on the merits; so we forego any decision as to what might be the correct proceeding in a situation such as the one here.
In connection with estoppel, we call attention to the case of Powell v. Board of Commissioners, 210 S. C. 136, 41 S. E. 2d 780, 1 A.L.R. 2d 330.
For cases construing various pension plans, see annotation in 42 A.L.R. 2d 461: “Rights and liabilities as between employer and employee with respect to general pension or retirement plan.” | [
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Smith, J.
The plaintiff in this case alleged that he shipped eight show-cases over the defendant railroad, and that “said show-cases were so badly damaged and broken when delivered that it cost plaintiff, on account of such damage and breaking, to repair the same, in actual cash the sum of $273.35, to his damage in that amount,” wherefore he prayed judgment in that amount.
The show-cases were second-hand, and plaintiff testified that he bought them at a bargain, and that he paid $442 for them and $100 freight,' and that he “figured their value at $750,” and in answer to a question from his attorney he stated the market value of the cases to be $750.
After describing the manner in which the cases were broken, the witness proceeded to relate how he had repaired them, and that the cost thereof had been $273.35, whereupon counsel for the railroad objected to this answer, because “ (1), there was no legal damage alleged in the complaint, and (2), because that would not be the measure of damage under the law, the true damage being the difference between the market value of the property at Center, Missouri (the point of shipment), and its value when tendered him. ’ ’
The witness was then asked the market' value of the show-cases in the condition in which they were received. He answered that the cases, in their crates, looked like a car of junk, and looked so bad he didn’t want to receive the shipment at all, but he did receive it because he realized he could get more out of it than any one else. He then .answered that the value was $200.
Under the direction of the court the jury returned a verdict for the plaintiff for $273.35, and the railroad company has appealed.
It is obvious that the plaintiff stated his cause of action and the measure of his damages defectively; but there was neither demurrer to the complaint nor motion to make it more definite, and his testimony made a case which entitled him to recover damages.
The plaintiff was right in assuming that it was his duty to receive the cases, notwithstanding their injured condition, and it was his duty to minimize the damage, if this could be done at a reasonable cost, and the sum expended for that purpose does not appear to have been unreasonable, in comparison with the value of the property in the restored condition.
In the case of St. L. I. M. & S. Ry. Co. v. Laser Grain Co., 120 Ark. 119, we said: “The rule for computation of damages for delay arid injury in transportation of goods is the difference between the market price of the goods at the time and place when and where they should ■ have been delivered and their value when and in the condition in which they were delivered. St. L. I. M. & So. Ry. Co. v. Tilby, 117 Ark. 163, 174 S. W. 1167.”
The -undisputed testimony in this case i^ to the effect that the plaintiff had paid $542 for the cases, including the freight, and- he stated the market value, at the time and place of delivery, to be $200, the difference of $342 being greater than the cost of restoration, for which amount the jury’s verdict was returned.
In some eases the cost of restoration is itself the proper measure of damages. This would be true in a case where the article damaged had actual value but no market value. In the case of St. L. I. M. & So. Ry, Co. v. Dague, 118 Ark. 277, the carrier lost a machine valuable to the owner, but without market value. We there quoted with approval from the case of Southern Express Co. v. Owens, 146 Ala. 412, 9 Am. & Eng. Ann. Cas. 1143, the following statement of the law: “In an action to recover for the loss of an article which had no market value, the measure of damages should be the value of the article to the plaintiff, and, in ascertaining this value, inquiry may be made into the constituent elements and the cost to the plaintiff of producing the article.” We further quoted from that opinion .as follows: ‘ ‘ Ordinarily, where property has a market value that can be shown, such value is the criterion by which actual damages for its destruction or loss may be fixed. But it may be that property destroyed or lost has no market value. In such state of the case, while it may be true that no rule which will be absolutely certain to do justice between the parties 'can be laid down, it does not follow from this, nor is it the law, that the plaintiff must be turned out of court with nominal damages merely. Where the article or .thing is so unusual in its character that market value cannot be predicated of it, its value, or plaintiff’s damages, must be ascertained in some other rational way, and from such elements as are obtainable.”
In volume 2, Moore on Carriers (2 ed.), § 4 of the chapter (XV) on Damages deals with the measure of damages against carriers where the shipment is only injured, and, after stating the ordinary measure of dam ages, it is there said: “Reasonable costs and expenses incurred in repairing damage and compensation for the loss of the use of the goods during such time * * * have been held to be recoverable, in addition to the actual loss, where the injury to the goods was lessened by the action of the plaintiff. The law, for wise reasons, imposes upon a party subject tó injury from a breach of contract the active duty of making reasonable exertions to render the injury as light as possible.”
We conclude therefore that there was no error in directing the jury to return a verdict in favor of the plaintiff for the cost of the repairs, because the sum thus expended was less than the depreciation in market value was shown to have been. The plaintiff made no objection to the court fixing the cost of repair as the measure of damages, and1, in the absence of objection on the plaintiff’s part, his attitude is that of acquiescing in the assumption that the repair of the cases restored them to their former value, and no prejudice resulted to the railroad in doing this.
No error appearing, the judgment is affirmed. | [
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Smith, J.
Appellant was convicted of aggravated assault, alleged to have been committed by striking and beating an eleven-months-old child with a large comb.
Cecil McAfee, the mother of the child, testified that she lived with her child at appellant’s home, and was employed by him as cook, and that one Sunday morning the child, at the breakfast table, turned over a cup of coffee, which burned appellant on the arm as it spilled out of the sup, and that in his anger appellant picked up the comb and struck'the child over the shoulder, hip and leg and on the side of its face, and that the prints of the teeth of the comb were plainly visible, and these places later turned black, and appellant said he whipped the child to break it from being stubborn. After breakfast appellant went to Fort Smith to deliver milk, as was his custom, and about an hour and a half later the witness, on the advice of the neighbors, followed with the baby, and the baby was carried to the office of the public welfare commission, where the nurse in charge saw it, and .called the doctor, who examined the baby that morning and prescribed for it, and he came again to see it that evening. She took the baby away at noon the following day. Appellant learned where the witness was, and came to the office of the welfare commission, and offered to employ a doctor, and offered witness two hundred dollars not to testify against him. Witness told appellant a doctor had seen the baby, but appellant proposed to employ another physician if witness desired this, and appellant told witness to bring the baby and come back to his house. Appellant had always previously been good to her, and to the baby also.
The nurse testified that the child was bruised, and. there were discolorations which looked like the child had been struck with something like a comb. The child had from one and a half to four degrees of fever, and was breathing hard and rapidly, and she called the doctor. Appellant came to the welfare building to see the child, and asked what was the matter with it, and offered to get another doctor if one was needed.
Doctor Parks was the physician who visited the child, and he testified that he found it 'suffering from external injuries about the chest, face and hips, and the child looked as if it had been struck with something, witness would not say with a comb, but the injuries could have been inflicted with a comb. He also stated that the injuries to the child might have been caused by its being carried by a drunken man on a mule, and by the face, chest and hips of the child coming in contact with the short stubby hair of the mule. It was the theory of the defense that the child had been injured by being carried by Jim Thompson on a mule while Thompson was drunk.
Appellant denied that the baby had spilled coffee on him, and denied that he had ever struck the baby or had been angry with it. He testified that the baby’s mother and Jim Thompson took one of his teams, without his permission, and drove it to Fort Smith, and took the baby with them, and returned without the baby, and were drunk when they returned, and that both became angry when he told them to not again take his team, and Thompson went back to Fort Smith that night and brought the baby home with him on the mule which he rode. Appellant further testified that he left home about 8 a. m. for Fort Smith, and, while at the Goldman Hotel in that city, where he was delivering milk, he met his father, who told him the officers were looking for him, and that he was charged with having whipped a baby, and that he then went to the welfare building, where he asked Mrs. McAfee what it all meant. That Mrs. McAfee did not give him any direct answer; neither did she intimate that he had beaten the child. He asked the mother if another doctor was necessary, and told her to bring the baby to his house as soon as it was well.
A Mrs. Harris testified, on behalf of the appellant, that she saw Mrs. McAfee and Thompson as they returned from Fort Smith, and that they were drunk and were singing vulgar songs, and did not then have the baby with them. Mrs. McAfee admitted leaving the baby, and that Thompson had brought it home on a mule, but denied drinking or having been drunk.
Foster Yertrees, a special policeman, testified that he arrested appellant and carried him to jail. The jailer recognized appellant and said, “Well, Jess (the appellant), I see you are in trouble again — it is pretty bad to beat up a baby like that,” and appellant answered, “Yes, and the next time I will kill it.” Appellant denied having made this statement, and testified that what he did say to the jailer was, “Yes, it is pretty had. to beat up a baby, and if I knew the man who did it I would kill him.”
The trial occurred July 7, and on July 12 Mrs. McAfee made an affidavit in which she repudiated the testimony given by herself at the trial, and this affidavit was filed with the motion for a new trial. On the hearing of this motion this affidavit was read, and Mrs. McAfee was called as a witness and orally examined, her oral testimony being substantially the same as that contained in the affidavit. This testimony was to the effect that appellant had 'always been kind to witness and to her baby, and that her testimony at the trial that appellant had struck the baby was false, and that she had not fully realized the effect of her testimony when she g*ave it, and that said testimony was made “in the belief that if I would do so my baby would be returned to me, and that I now desire to tell the whole truth, to the end that an innocent man may not suffer on account of my conduct in said trial in giving testimony against him. ’ ’ That on Tuesday, after the ■ trial on Saturday, she went to appellant’s wife and sister and told them she had sworn a lie, and why she had done so, and they talked to appellant, and he said for her to come back'to his house, and she did so, and was then living at appellant’s house. Witness was told by the doctor and the nurse and a Mr. Strozier that, if she did not swear against appellant, “they would adopt my baby clean out of the relation and that I could never get to see it any more, ’ ’ and that she gave the testimony she did because she was afraid they would take the baby away from her. Witness was in possession of the baby at the time of the trial, and three days after the trial she went back to appellant’s house, where she has since lived. The witness did not say the baby had not been whipped, but did testify that appellant had not whipped it.
The court refused to grant the motion for a new trial, hence this appeal.
The case of Bussey v. State, 69 Ark. 545, discussed the duty of the trial court in granting a new trial, where a witness whose testimony was essential to support a conviction repudiated the testimony on which the conviction was obtained. That was a rape case, and the conviction was based almost entirely on the testimony of the prosecuting witness. It was pointed out that, with the testimony of this witness eliminated or discredited, the result of another trial would be an acquittal, unless additional evidence -could be produced; and it was also pointed out that the circumstances under which the retraction was made were such as to raise the belief that the retraction, and not the testimony, was true.
A similar condition existed in the record in the case of Myers v. State, 111 Ark. 399. This was also a rape case, and it was there said that the jury would not have been warranted in convicting the defendant without the testimony of the prosecuting witness who had. repudiated her testimony.
The Bussey case was cited and followed in the case of Shropshire v. State, 86 Ark. 481. Witness Faucette repudiated testimony which he had given at the trial of the defendant, and explained that he had testified under a misapprehension as to which of two brothers was on trial on a charge of gaming. The testimony of •this witness, as the opinion says, “was of gravest moment, and doubtless largely contributed to the -conviction of the defendant.” The court held that a new trial should have been granted for newly discovered evidence, and, in doing so, said: “If any issue of fact had been made on it, or his affidavit had been in conflict with any of the established facts of the case, or had been made under circumstances throwing suspicion upon it, then the circuit judge should be sustained in disregarding it.”
In the case of Osborne v. State, 96 Ark. 400, Bradley, a witness for the State, recanted by saying that he had answered a certain highly important question adversely to the accused under a misapprehension as to its purport, and that his answer would have been favorable to the accused had he understood it. The court there said the testimony of Bradley was only cumulative, and that the changed testimony would, upon a new trial, be only • cumulative, and that such evidence was not sufficient ground for a new trial. The court then quoted from Bussey v. State, 69 Ark. 545, as follows: “In this latter case it is said: ‘And even a confession of perjury on the part of a material witness does not necessarily call for a new trial when, eliminating his evidence, there is still other evidence to support the judgment/ ”
The case of Brown v. State, 143 Ark. 523, was one in which the accused was convicted on the testimony of Simmons, his accomplice. One of the errors assigned was that the testimony of the accomplice was not corroborated; but we held otherwise. Another assignment of error was that a new trial should have been granted because of the recantation of Simmons. We there said: “In the present case Simmons was before the court when he testified at the trial of the defendant, and the court had the opportunity to examine his testimony and demeanor on the witness stand and compare them with the statements made by him in his affidavit after the trial was ended and the defendant had been convicted by the jury. Simmons’ testimony was corroborated in several important details, and it cannot be said that the trial court, under the circumstances, abused its discretion in not granting the defendant a new trial because Simmons made a written retraction of his former testimony and swore to the truth of it.”
In 16 C. J., § 2715 of the article on Criminal Law, pp. 1188-1190, it is said: “A material error or misstatement in the testimony of a witness for the prosecu-' tion may constitute ground for a new trial. Where, therefore, it appears that, on a new trial, the witness will change his testimony to snch an extent as to render probable a different verdict, the new trial will be granted. Bnt recantation by witnesses called on behalf of the prosecution does not necessarily entitle defendant to a new trial. The question whether a new trial shall be granted on this ground depends on all the circumstances of the case, including the testimony of the witnesses submitted on the motion for the new trial. Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it -is not satisfied that such testimony is true. Especially is this true where the recantation involves a .confession of perjury. * * * But where it appears, from competent and satisfactory evidence, that a witness for the prosecution has deliberately perjured himself, and that, without his testimony, defendant would not have been convicted, a new trial will be granted. Usually a new trial will not be granted because of perjury an an immaterial issue, or on a collateral issue, nor generally where the false testimony may be eliminated without depriving the verdict of sufficient evidentiary support.”
The annotator’s notes cite many cases in support of the text, among them being our own cases of Bussey, Myers and Shropshire, supra.
A very instructive case is the decision of the Court of Appeals of New York in the case of People v. Shilitano, 218 N. Y. 161, 112 N. E. 733, 1916-F, L. R. A. 1042. It was there said: “In determining the weight to be given to the statements of these witnesses affirming the guilt of the defendant and recanting their testimony, we must endeavor to discern the motives which actuated them. If, upon examination, it should appear that their testimony upon the trial was given without any motive to falsify and that their statements recanting their testimony were prompted by corrupt or unworthy motives, but little weight should be given to the recanting statements. There is no form of proof so unreliable as recanting- testimony. In the popular mind it is often regarded as of great importance. Those experienced in the administration of the criminal law know well its untrustworthy character.”
Two other instructive cases on the subject are State v. Blanchard, 92 N. W. (Minn.) 504 and Lucia v. State, 59 Atl. (Vt.) 1016.
We have concluded that the court did hot err in refusing to grant the motion for a new trial. The court might well have refused to believe the testimony of Mrs. McAfee, offered at the hearing of the motion for a new trial. There appears to have been no reason why the doctor and the nurse and Mr. Strozier would have desired Mrs. McAfee to falsely accuse appellant. On the other hand, the testimony shows that Mrs. McAfee had gone back to the home of appellant, and was living with him as a member of his family, and consequently under his influence, and it was, of course, very much to the interest of appellant to have the witness change her testimony. Moreover, it does not appear that the conviction in this case rested entirely upon the testimony of Mrs. McAfee, nor that a verdict of conviction could not be had without her testimony. It has been pointed out that the witness did not state that the child had not been whipped, but that she only said that appellant had not whipped it, and all the 'circumstances in the case tend to indicate that, if the baby was whipped, the whipping-had been administered by appellant. Indeed, the testimony of Yertrees alone, if accepted by the jury, would sustain the conviction, and, if this be true, the.testimony of Mrs. McAfee, while itself sufficient to sustain the conviction, is cumulative of other testimony, which was also sufficient for that purpose.
• No error appearing, the judgment is affirmed. | [
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Hart, J.,
(after stating the facts). It appears from the record that the cause of action arose out of the operation of the railroad of the Missouri Pacific Bailroad Company by the Director General of Bailroads under the Federal Control Act. Therefore it is claimed by the railroad company that it is not liable for the alleged negligence and consequent damage.
It is now finally settled by a decision of the Supreme Court of the United States, which this court has followed, that no liability for negligence arising out of the operation of a railroad by the Director General under the Federal Control Act is imposed upon the owner company, and that an action for damages therefor cannot be maintained against it for a cause of action arising out of the operation of the property of the railroad company under governmental supervision. Mo. Pac. Rd. Co. v. Ault, 256 U. S. 554, and Ark. Cent. Rd. Co. v. Walker, 150 Ark. 514.
It is contended by counsel for the plaintiff, however, that the railroad company is estopped by its conduct from denying liability. It appears that, after the United States returned the railroads to their owners, the plaintiff filed a claim of loss for the box of dry goods in question with T. S. Walton, freight claim agent of the Missouri Pacific Bailroad Company, and that the plaintiff and Walton carried on a correspondence about the claim for about a year. In April, 1920, the agents of the Kansas City Southern Bailroad Company discovered a box of dry goods at its station at Bates, Ark., marked “B. E. Loving, Loving, Oklahoma.” When the box was opened the marks or brands on the goods indicated that the plaintiff was the shipper. The claim agent of the Kansas City Southern Bailroad Company went to Fort Smith and talked with the plaintiff about the box, and told him that it was at Bates, Ark. The claim agent says that the plaintiff told him that he would have nothing to do with the matter, because he had already filed a claim of loss with the Missouri Pacific Bailroad Company and looked to that company for the payment of the box of goods.
On the other hand, the plaintiff and the assistant manager of the plaintiff’s firm testified that they told the claim ageiit of the Kansas City Southern Bailroad Company that the goods should be shipped to “B. E. Loving, Allen, Oklahoma,” and that he would doubtless receive them. In this connection it may be stated that the conversation between the plaintiff and the claim agent of the Kansas City Southern Bailroad Company could not in any manner create liability on the part of the Missouri Pacific Bailroad Company where none existed before.
But it is insisted by counsel for the plaintiff that the Missouri Pacific Bailroad Company is liable under a letter written by its claim agent to the plaintiff on May 21, 1920. In this letter the plaintiff is informed that the railroad company is in receipt of information from the Kansas City Southern Railroad Company that the box of goods in question was at its station at Bates, Ark., having arrived there on February 1,1920, marked “B. E. Loving, Loving, Oklahoma.” The letter concludes with the following: “Advise what disposition you wish made of this shipment as promptly as possible.” On May 24, 1920, the plaintiff answered this letter, and the answer states that the plaintiff had already been informed by a representative of the Kansas City Southern Railroad Company that the box had been located, and that the plaintiff had instructed that railroad company to forward the box to its proper destination. The box was never forwarded by the Kansas City Southern Railroad Company, and never came into the possession of the Missouri Pacific Railroad Company after the United States returned the railroads to their owners. The mere fact that the claim agent of the Missouri Pacific Railroad Company asked the plaintiff what he wished to be done about forwarding the box would not make it liable for the damages which had been suffered by the negligence of the servants of the United States while the railroad was being operated under the Federal Control Act. If the Missouri Pacific Railroad Company had received the goods on its line of railroad and then ■ refused to forward them to their proper destination, there would have been liability on this account. The undisputed facts, however, show that the possession of the goods was never relinquished by the Kansas City Southern Railroad Company. That company refused to forward the goods, or to deliver them to the plaintiff or anyone else, unless the plaintiff would pay the freight charges. This the plaintiff refused to do, and the goods were sold by the Kansas City Southern Railroad Company for the nonpayment of the freight charges. The Missouri Pacific Railroad Company, under these circumstances, was in no wise guilty of negligence in the premises, and there was nothing in its conduct to create liability on its part. There was an offer of compromise made by the claim agent of the Missouri Pacific Railroad Company, but the letter also carried with it a denial of liability. We do not think that the mere fact that the Missouri Pacific Railroad Company endeavored to trace the misdirected bos of goods and to adjust a claim of loss therefor would create liability on its part. -
Therefore, under the undisputed facts as they appear in this record, there was no liability on the part of the Missouri Pacific Railroad Company, and the circuit court should have instructed a verdict in its favor.
For the error in refusing to direct a verdict in favor of the defendant the judgment will be reversed, and the cause remanded for a new trial. | [
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Hart, J.,
(after stating the facts). We think the conclusion of the circuit court was correct. It is true that, in passing upon contracts of insurance or indemnity like the one now in hand, courts will resolve all doubts as to the meaning of the language used in favor of the insured. The reason is that the contract of insurance is made upon the written form of the insurer, and the insured has nothing to do with the language of the contract. Home Mutual Benefit Assn. v. Mayfield, 142 Ark. 240.
We do not think, however, that the terms of the contract in the instant case are ambiguous, and are of the opinion that the claim of the plaintiff does not fall within the liability provided for in the contract of insurance as expressed by its language.
It will be noted that in section 5 of the contract of insurance, which is copied in our statement of facts, the estimated compensation includes that of all persons employed, whether compensated by salary, wages, for piece work, overtime, or allowances, and whether paid in cash or otherwise.
The evident purpose of the contract was to include within the terms of the policy all employees employed by the plaintiff to whom compensation of any kind was paid. The word “compensation” is evidently used as an equivalent for recompense for services rendered to the plaintiff in the operation of its business by its employees. Ezell was first injured in April, 1921. We do not think he thereafter received any compensation at the hands of the plaintiff for services rendered it in the operation of its business. It is true that the representative of the plaintiff speaks of his being employed after that time, but he also explains what he meant by the use of this expression. After he was' injured in April, 1921, Ezell was sent to the hospital and kept there at the expense of the plaintiff until the morning before he was injured in the following July. Advances were made to him from time to time to support his family, and the representative of the plaintiff states that It was its intention to deduct these advances from the sum it should pay him as damages for his injury.
According to the testimony of Ezell, he left the hospital and went to the mill of the company on the morning of the day in July when he received his second injury. He was told to go in the boiler room and watch the work there, in order to familiarize himself with it. While watching the work there, on the afternoon of the same day, he was injured by a pile of slabs falling on him. He was not being paid for the services that he was rendering the plaintiff on that day. According to his testimony, he was merely there at the invitation of the plain tiff to watch the work. Hence he was not receiving compensation, within the moaning of the policy, at the time lie received his second injury.
As we have already seen, the evident intention of the parties as expressed by the terms of the contract was to insure the plaintiff from liability by reason of injuries which its servants might receive in the operation of its business and while they were being paid a compensation for their services. Ezell was not working for the company and receiving compensation therefor at the time he received his second injury in July, 1921.
Therefore the defendant was not liable, under the policy sued on, for the injury to Ezell, and the circuit court properly directed a verdict in its favor.
It follows that the judgment of the circuit court was correct, and should be affirmed. | [
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Wood, J.
The appellant was indicted for the crime of selling intoxicating liquor, and also for the crime of procuring intoxicating liquor. He was tried for both offenses and convicted of the crime of procuring intoxicating liquor, and was fined in the sum of $500.
The testimony adduced by the State was to the effect that O. D. Knapp, a prohibition agent, had received information that appellant was selling whiskey. Knapp and another agent went over to appellant’s barber shop in North Little Rock. Knapp went in and asked appellant if he could get some whiskey. Appellant said he didn’t have any. Appellant and another negro were playing poker at a nickel ante. Knapp thought if he ■ could get in the game with them he would gain appellant’s confidence and get him to sell him some whiskey. Knapp got in the game and played two or three minutes, when the appellant asked him how much whiskey he wanted. Knapp told him that he wanted a pint. Appellant told another negro to go somewhere and get the whiskey. Appellant asked Knapp about the money, and Knapp asked to whom he should give the money, and appellant replied that he was responsible for everything that happened in the shop. Knapp gave him a five-dollar bill. The negro he had told to get the whiskey went out and was gone a few minutes, and came back and said that he could not get any. Appellant then told another negro to get it. That negro went out and came back without it. Appellant took that negro and walked out, was gone about a minute, and came back with another negro right behind him, who set the whiskey down on the table. At first the appellant got mad when they didn’t bring it in. "When it was brought in one of the negroes took a drink. Appellant gave Knapp $2.50 out of the five-dollar bill. Knapp didn’t see appellant give any of the negroes any of the money when they went out after the whiskey. Knapp gave the appellant the money, and appellant didn’t give it to any of the negroes. Knapp had the whiskey analyzed by some of the government chemists, and it was moonshine whiskey. Knapp and some other officers made a search of appellant’s premises that afternoon, and found sixteen empty pint bottles and a gallon jug that had contained whiskey, in drawers and other places. The large tall negro who brought in the whiskey was not there. Knapp asked the appellant the name of the negro, and appellant refused to tell, stating that it was his business; told Knapp that, if he wanted to know, to find out. They thereupon arrested the appellant.
Appellant testified in his own behalf, and his testimony as to the circumstances did not differ materially from the testimony of witnesses for the State, except that appellant stated that he told Knapp that he would send and get him some whiskey if he would tell appellant where to get it. Knapp put down a five-dollar bill and asked for change. Appellant put four one-dollar bills and two halves on the table, and the other negro reached for it and went out. When the whiskey came back that Knapp had sent for, they took a drink. Appellant told Knapp that he would give him $1 for what he had left in the bottle. Knapp came back that afternoon and asked appellant for “Big Boy.” Appellant told him he didn’t know where he was, and they then arrested appellant for selling whiskey. Knapp admitted there that he sent the fellow himself for the whiskey. Appellant stated that he did not .see any empty bottles in his place. They stated that they had found empty bottles in the back. “Big Boy” brought in the whiskey. Appellant was not interested in him. Appellant wanted a drink, and “Big Boy” volunteered to go for it, after the first man couldn’t get it.
The court instructed the jury on both counts of the indictment. The appellant excepted to the instructions of the court based on the charge of selling liquor, but, as the jury acquitted appellant of that charge, it is unnecessary to set out and comment on the instructions.
The appellant asked the court to instruct the jury as follows:
“No. 1. The jury are instructed that one who assists in buying intoxicating liquors, and confines his participation in the transaction exclusively to the buying, and not to the selling, is not guilty of any offense. And if you find that the defendant acted solely as the agent or messenger of the purchaser, and did not in any manner assist the seller, if you find there was a sale, and that he had no pecuniary or other interest in the sale, he would not be guilty under the law, or, in other words, if the defendant’s interest, if any, was solely in the purchase, and his efforts, if any, were directed solely to the buying or aiding in tlie purchase, if you find there was a purchase, then you will find him not guilty.”
The court refused the above prayer, and the appellant duly excepted to the ruling of the court..
The court, among other instructions, gave the following : - '
“No. 2. Defendant is charged in the second count of the indictment with the offense of procuring liquor for another, which is a misdemeanor, the punishment for which is a fine of not less than one hundred dollars nor more than five hundred dollars. If you find in this case that the defendant had nothing to do with the sale of liquor as principal or as agent, and got none of the proceeds of the sale, if any, and was not interested in the same except as a matter of accommodation for the purchaser, and acted solely and entirely for the purchaser, the witness Knapp, and did not in any way, either directly or indirectly, act as principal or agent of the seller, and was not interested in the sale of it, if you find this beyond a reasonable doubt, then convict him of the misdemeanor and fix the punishment as indicated.”
The appellant did not except to the giving of this instruction.
1. The appellant contends that there was no evidence to sustain the verdict, but we are convinced that the testimony, as above set forth, was sufficient to warrant the jury in finding that appellant procured liquor for another.
2. Appellant contends that the court erred in refusing his prayer for instruction No. 1, supra, and in granting instruction No. 2, supra. The court did not err in refusing to grant appellant’s prayer. It was based on the theory that the transaction was the purchase and sale of liquor, and that, if appellant’s efforts were directed solely to aiding the purchaser in buying, then the jury should find appellant not guilty. The vice of the instruction is that it confined the inquiry to. the first count of the indictment. It ignored entirely the charge in the second count and the testimony which warranted a finding that the appellant procured whiskey for another. Besides, the court covered the theory advanced by the appellant in instruction No. 2. While this instruction was a peremptory instruction to find appellant guilty on the second count in the indictment, if the jury found that he had nothing to do with the sale and did not in any way, either directly or indirectly, act as principal or agent of the seller, and was not interested in the sale, nevertheless appellant did not object to the instruction in this form. Appellant seemed to have grounded his defense solely on the notion that what he did was only as an accommodation or friendly assistance to Knapp as the purchaser, and not in any manner to aid the seller, and that therefore he was not guilty, relying on those cases wherein we hold that where one is-charged with the crime of selling intoxicating liquor, he cannot he convicted where the proof only shows that he did not participate, and was not interested, in the sale, and took no part therein except to purchase for himself or to act solely for the buyer. Foster v. State, 45 Ark. 361; Whitmore v. State, 72 Ark. 14; Dale v. State, 90 Ark. 579; Phoenix v. State, 90 Ark. 589; Wood v. State, 114 Ark. 391; Payne v. State, 124 Ark. 20; Ellis v. State, 133 Ark. 542; Sneed v. State, 134 Ark. 303. But the doctrine of those cases has no application whatever in a case like this, where the appellant is charged and convicted of the crime of unlawfully procuring and purchasing intoxicating liquor, under § 6163 of Crawford & Moses’ Digest. The verdict of the jury has eliminated the charge of selling intoxicating liquor. Therefore the rulings of the court must he tested solely in the liglit of the testimony adduced and the instructions of the court on the charge of unlawfully procuring intoxicating liquor. When viewed in this light, we find no reversible error in any of the rulings of the trial court.
Tlie judgment is affirmed. | [
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HART, J.
This is a suit instituted by Lottie Strope, administratrix of the estate of Fred Strope, deceased, against the Sterling Anthracite Coal Company for damages to the estate of Fred Strope, deceased, and to his widow and children for his death, alleged to have been caused by the negligence of the coal company. The facts are as follows:
In February, 1916, the Sterling Anthracite Coal Company was operating a coal mine near Clarksville, Arkansas, and Fred Strope was one of its employees engaged in mining coal. According to the testimony of the plaintiff, on the morning of the 18th day of February, 1916, the fire boss of the company went down into the mine and inspected the working places for gas. After finishing his inspection he came back to the entry of the mine and marked the working places O. K., which meant that they were free from gas and safe for the miners to commence work. It was the duty of the fire boss to make this inspection and mark the results upon the board. If the working places are found to contain gas so as to be unsafe it was the duty of the fire boss so to mark them on the board in order to warn the miners not to go to work there. On the morning in question, Fred Strope came to the entry of the mine to go to work as usual. The board was marked O. K. and he proceeded down into the mine to go to work. When he got near the face of his working place he lighted his lamp and placed it on his cap. This caused an explosion of the gas and he was severely in jured and died in eleven days thereafter. A more particular description of his injuries will be stated later.
On the part of the defendant company it was shown that on the morning in question the fire boss made an inspection of the mine as usual and found the working place of Fred Strope to contain gas. Before the miners came to work he went to the entry of the mine and made his report on the board which was there for that purpose. He made a report that the working place of Fred Strope contained gas and was unsafe. This was done in the usual manner and served as a notification to the miners not to go to work at their usual working place.
The jury returned a verdict for the plaintiff and the defendant company has appealed.
(1) The ground of negligence relied upon for a recovery by the plaintiff was the negligence of the company in marking the working place of Fred Strope safe on the morning in question when in fact it was unsafe. We have only attempted to give the substance of the evidence on this phase of the case and it is not necessary to set it out in detail or to determine where the preponderance of the evidence lies. This question has been settled by the jury in favor of the plaintiff and under the settled rules of this court we can not disturb its verdict, there being evidence of a substantial character upon which to base it.
(2) At the request of the plaintiff the court gave the following instruction:
“If Strope died from pneumonia and the pneumonia was wholly or in part caused or superinduced by the burns then Strope’s death was in law caused by the burns. In such case if you find for the plaintiff you should find for her for both the suffering and death of Strope.”
It is contended first by counsel for the defendant that there is no testimony to warrant the jury in finding that the pneumonia was caused by the burns, and, second, that if the pneumonia was caused by the burns, the burns were only a remote and not the proximate cause of Strope’s death
It was shown that Strope'was thirty-one years of age at the time he was injured and was an exceedingly stout and healthy man, never having been addicted to any kind of dissipation. After he was burned Dr. Earl Hunt examined him and attended him until his death which occurred eleven days later.
Doctor Hunt testified that Strope was suffering intensely when he went to see him; that he was burned on both arms and across the chest and neck and all of his face and back of the neck and on his back lower than the shoulder blades; that further down there were two or three spots as large as a man’s hand on the small of his back; that all of the skin on both arms came off; that his whole face and ears were burned and his hair singed; that his finger tips were charred a little, that he saw that Strope was a big, strong fellow and was not dissipated; that he told Strope’s wife that he thought he had a chance to recover from the burns; that Strope liad to lie on his back and couldn’t turn over; that on the day he died,he developed hypostatic pneumonia; that this was a secondary condition which might develop after any serious injury that necessitates a patient staying in bed; that it is a secondary pneumonia which comes after injuries which necessitates a patient staying in bed. He was asked, “What did that pneumonia result from in this particular instance?” He answered, “Well, I should say it resulted from the fact that he was lying in bed and was in a burnt condition.” He stated further that if persons are burned over the chest they are more likely to have pneumonia; if over the bowels they are more likely to have a very violent diarrhoea, and if they are burned over the kidneys they are likely to have inflammation of the kidneys; that Strope was burned over the chest, arm and face and that he attributed the pneumonia to these burns and to the necessary recumbent position.
Again he stated that hypostatic pneumonia is necessarily secondary pneumonia following something that has preceded it; that the burns and the necessary recumbent position caused the pneumonia.
This testimony brings the case clearly within the rule laid down in the case of St. Louis, Iron Mountain & Southern Railway Company v. Steel, 129 Ark. 520. In that case the court held (from syllabus):
“Where two concurring causes produce an injury which would not have resulted in the absence of either, the party responsible for either cause is liable for the consequent injury. A railway will be liable for the death of its servant whom it negligently injured, where both the injury and typhoid fever contributed to cause his death.” Therefore the court did not err in giving this instruction.
(3) It is next insisted that the court erred in refusing to give instruction number two, asked by the defendant. The instruction is as follows:
“Negligence is not presumed, but the burden is upon the plaintiff to make out her case by a preponderance of the evidence. The fact that deceased was injured in the mine, if you find that he was so injured, and later died, raises no presumption whatever that the defendant was negligent. ’ ’
At the request of the defendant, however, the court did give instruction number eleven, which is as follows:
“Proof that the mine, rooms and entries were in the condition alleged in the complaint would not justify a verdict for the plaintiff without proof that such condition was caused by defendant’s negligence as charged. You cannot presume or infer negligence alone from the condition or the accident or both. ’ ’
Besides this the instructions given by the court at the request of the plaintiff bases the right of the plaintiff to recover upon proof by her of the acts of negligence alleged in her complaint. In one of the instructions given, the court, after stating the assignments of negligence, said:
“Now, if any one or more of these assignments of negligence are proven and you believe that such negligence so proven caused the injuries to S-trope, and as a result of such injuries lie died, your verdict will be for the plaintiff.”
So it will be seen that the instruction in question was covered by the instructions given by the court.
It is next insisted that the court erred in refusing to give instruction number eight,' asked by the defendant. It reads as follows:
“You are instructed that the plaintiff can recover only upon proof of the negligent acts complained of, that such acts were negligent, that they were a cause of the injury to the deceased, that such injuries directly caused his death. Proof of other acts, although negligent, would not justify a recovery by plaintiff. ’ ’
The court gave instruction number three, asked by the defendant. It reads as follows:
“The plaintiff alleges that the deceased was injured in a mine by the explosion of gas; that he lived for a period of eleven days thereafter and then died from the effects of the injuries received in the explosion. In order to justify you in finding for the plaintiff you must find from a preponderance of the evidence that the death of the deceased was the direct or proximate result of the injuries received, and you must further find that the injuries alleged to have been received in the explosion were caused by the negligence of the defendant as set out in the complaint.”
In this instruction the jury was substantially told that the negligence warranting a recovery is the negligence charged in the complaint. In the instructions given for the plaintiff the plaintiff’s right of recovery was based upon the allegations of negligence alleged in the complaint and the allegations of the complaint are substantially referred to and stated to the jury. Thus it will be seen that there could have been no mistake on the part of the jury as to upon what acts of negligence it must base its findings against the defendant.
It is also insisted that the court erred in refusing to give instruction number twelve, as requested by the defendant. The instruction reads as follows:
“The defendant was not required to use every possible precaution to avoid injury to the deceased, but was only required to use such reasonable precaution to avoid accidents as would have been adopted by prudent persons prior to the accident; and before you could find for the plaintiff the proof would have to show that defendant failed to use such care and that such failure was a cause of the injury alleged and that such injury resulted directly in the death of the deceased.” /
At the request of the plaintiff the court gave instruction number six. It is as follows:
“The defendant was not an insurer of the safety of Strope, but it owed him the duty to exercise ordinary care to provide him a safe place in which to perform his duties and this includes the entry ways in its mine to his place of work and to keep same free from dangerous accumulations of gas. This duty to use ordinary care to provide Strope a safe place to perform the duties of his employment included the duty of reasonable inspection of the mine, its entries, rooms and working places, and of using such means as ordinary prudence dictates as proper to safeguard the lives and limbs of its employees. If defendant, its agents, servants or employees failed to perform such duty, then such failure' was negligence.”
The court also gave instruction number five. It reads as follows:
“Before you can find for the plaintiff the proof must show not only the acts complained of and that they were negligent as defined in these instructions, but the proof must further show that such negligence directly caused the injury and that such injury resulted directly in the death of deceased and unless you have such proof you should find for defendant.”
Thus it will be seen that the duty of the defendant to the plaintiff was fully explained to the jury in these instructions.
No further grounds for a reversal of the judgment are set out in the defendant’s motion for a new trial.
It follows that the judgment must be affirmed. | [
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J. Seaborn Holt, Associate Justice.
Proceeding under our Workmen’s Compensation Law, (Secs. 81-1301— 1349 Ark. Stats. 1947) appellant, Shipp, sought an award of compensation for an alleged injury while in the employ of H. G. Tanner, now deceased, and while in the course of such employment. On a hearing before a referee of the commission, his claim was disallowed. It was again denied on appeal to the full commission and this action of the full commission was affirmed on appeal to the circuit court. This appeal followed.
For reversal appellant contends that: “ 1. The trial court erred in refusing to rule that appellant received an accidental injury in the course of his employment. 2. The trial court erred in ruling that appellant failed to give sufficient notice of his injury. ’ ’
Since we have concluded, after a careful review of all the testimony, that the commission, and the circuit court on appeal, correctly found that there was no substantial evidence that Shipp (the claimant) had received any accidental injury arising out of, and in the course of his employment, it becomes unnecessary to consider appellant’s second contention above. “Since the enactment of our Workmen’s Compensation Law, we have consistently held that we do not try compensation cases here de novo, we are, therefore, not concerned with where the weight of the evidence may lie. When we find any substantial evidence to support the findings of the commission, we must affirm. We said in the recent case of Grimsley, Adm’x. v. Manufacturers Furn. Co., 224 Ark. 769, 276 S. W. 2d 64: ‘Findings of fact by the Workmen’s Compensation Commission are given the same verity as attach to the verdict of a jury and this applies on appeal to the circuit court as well as to the supreme court from the judgment of the circuit court . . . On appeal, the supreme court must view testimony in its strongest light in favor of the commission’s findings . . . Where the commission acting upon sufficient evidence sustains or rejects an award, such findings will not be disturbed on appeal,’ ” McKamie v. Kern Trimble Drilling Co., 229 Ark. 86, 313 S. W. 2d 378. “. . . there is no prima facie presumption that the claim comes within the provisions of the law ’ ’ (Workmen’s Compensation Act), Duke v. Pekin Wood Products Co., 223 Ark. 182, 264 S. W. 2d 834.
Shipp claims that he experienced a pain in his chest, a heart attack, on February 3, 1956, while he was delivering gasoline to Easley Service Station, the pain became worse, and he went to the office of Dr. Kittrell, who sent him to Dr. Baskett for an electrocardiogram. He was sent home for rest. He states his contention in this language: “It is our contention that Mr. Shipp was suffering from a heart or other condition more than a year prior to February 3, 1956, and that because of the undue strain and hardship due to his fellow employees being off from work placing the burden on him which he hadn’t been used to carrying, because of his nervous condition, his mental condition and physical exertion, that it brought about this eventual heart attack on February 3, 1956, it being our contention that he was suffering from an ailment prior to that time, and that heavy work contributed to the eventual heart attack. ’ ’
We think the testimony clearly supports the following findings of the commission: “The facts in this case disclose that claimant had previously suffered at least one incident which led him to suspect that he suffered a coronary involvement. We find the evidence supports the conclusion that claimant’s breakdown stems from natural progression of disease as opposed to the result of strain or debilitating working conditions. The facts also disclose that claimant suffered at least one coronary episode subsequent to date of alleged injury, and this while he was at rest. The most that can be said relative to events of February 3, 1956, the date claimant alleges the suffering of accidental injury, is that claimant was beset by chest pains and as a result thereof quit work that morning and sought medical ad vice. The history on onset of these pains, even in the light of subsequent coronary developments, was not such as to cause testifying physicians to associate claimant’s work with his disability on other than a speculative possibility. We do not deem such to be evidence of a character which will sustain a finding that a casual relation actually exists between claimant’s breakdown and his work. ’ ’
Dr. Goesl, a practicing physician who specialized in diseases of the heart (appellee’s witness) testified: “I have heard the testimony with respect to the particular situation of Mr. Shipp. I believe that his employment had nothing to do with the development of the infarct, and I believe his condition would have developed in spite of the particular employment.” Two other doctors testified (witnesses for claimant Shipp) and both were not in material disagreement with Dr. Goesl. For example, Dr. Baskett testified:
“Q. Can you say with medical certainty what caused Mr. Shipp’s condition? A. No.” Dr. Kittrell, who treated Shipp, also testified to the same effect, and further that most attacks of this nature occurred after a big meal or what would be called rest, which would indicate that probably exertion played no part in the development of these conditions. He also testified: “Q. In your opinion, would that heavy exertion contribute to the condition which he was suffering and aggravate it? A. I wish I could answer it but I don’t think I could answer it honestly. I don’t think anybody would know.”
It appears that Shipp did suffer some heart damage about March 9, 1956 and again in July 1956, however, he was not working for Tanner at either time and was in fact resting on both occasions. Prior to his July attack he had begun working for another employer. As indicated, we hold there was substantial evidence to support the judgment and accordingly it is affirmed.
Mr. Justice McFaddin concurs. | [
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Sam Robinson, Associate Justice.
On October 21, 1955, the parties were divorced. The decree gave the wife possession of the home owned as an estate by the entirety, and the husband was ordered to pay $50.00 per month as alimony and as support for a minor son. The appellant, Thurmon B. Harbour, became delinquent in the monthly payments to the extent of $425.00 as of April 1,1957. In the meantime, the State in a condemnation proceeding acquired, for the sum of $7,825, the property owned by the parties, the possession of which had been given to Mrs. Harbour in the divorce proceedings. In addition to the property owned by Mr. and Mrs. Harbour, there was an adjoining lot also taken in the condemnation proceedings, which belonged to Mr. Harbour. The price paid for that lot was $1,025. The money was paid into court.
This action was instituted when Mrs. Harbour filed a motion for modification of the decree fixing the alimony and support and to collect the alimony and support payments then in arrears. In a hearing on the motion the court held that she was entitled to $3,912.50 covering her interest in the money then in court and owned as an estate by the entirety; also $233.27 for her dower interest in the adjoining lot; and $709.67 covering accrued and delinquent alimony and maintenance payments for the period ending October 17, 1957. The court also held that Mrs. Harbour was entitled to $2,100 because she had been dispossessed of the home place, which not only deprived her of a place to live, bnt also caused her to lose income in the amount of $35.00 per month which she had been receiving as rent for a garage apartment located on the property. It appears that this $2,100 was to be considered as a lump sum payment of an additional monthly award until such time as the minor child should become of age.
On appeal Mr. Harbour contends that the court erred in ordering a lump sum payment of alimony and maintenance to Mrs. Harbour, and that all funds should be held in the registry of the court as an estate by the entirety until the death of one of the parties or until there is an agreement for distribution. Appellant also contends that he should have credit against the alimony in arrears for about $295.00 given to his son; that the alimony and support payments should be reduced; that the order for alimony and support should designate what portion of the monthly payments should be considered as alimony and what part maintenance for the child; and that he is entitled to recover two-thirds of the household furniture.
We think the appellant is right in his contention that he should not be required to pay $2,100 in a lump sum as alimony or maintenance. It is not a debt that has accrued, but something that may or may not accrue in the future. There are several contingencies, the happening of which would bring an end to the monthly payments. No doubt the trial court was completely justified in reaching a conclusion that since the house in which Mrs. Harbour lived was no longer available to her, and since she had lost the income from the garage apartment, the alimony should be increased, and we completely agree with that view. But Harbour cannot be required to pay part of the alimony and support in a lump sum in advance. McIlroy v. McIlroy, 191 Ark. 45, 83 S. W. 2d 550; Walker v. Walker, 147 Ark. 376, 227 S. W. 762.
Next, Mr. Harbour contends that the funds in the registry of the court from the sale of the land held by the entirety should remain in court as an estate by the entirety for the benefit of the survivor of the two or until there is an agreement as to distribution.
The condemnation proceeding had the effect of converting the real estate into personalty by operation of law. Union & Mercantile Trust Co. v. Hudson, 147 Ark. 7, 227 S. W. 1. Prior to Act 340 of 1947, it was held that a divorce did not dissolve an estate by the entirety in realty. Ward v. Ward, 186 Ark. 196, 53 S. W. 2d 8. And in Jenkins v. Jenkins, 219 Ark. 219, 242 S. W. 2d 124, it was held that the Act (340 of 1947), providing for the dissolution of an estate by the entirety, did not affect such estates created before the effective date of the Act. However, such an effect has never been given to an estate by the entirety in personalty. See O’Quin v. O’Quin, 219 Ark. 247, 241 S. W. 2d 117, where a joint bank account held as an estate by the entirety was divided equally between the parties. It follows that appellant’s argument, that the proceeds from the condemnation proceedings remain in court as an estate by the entirety for the benefit of the survivor of the two or until there is an agreement relative to distribution, is without, merit.
We do not think that Mr. Harbour is entitled to credit: money he gave his son against the alimony and support: payments ordered by the court, nor do we think that the alimony and support payments should be discontinued or reduced. On the contrary, now that Mrs. Harbour no longer has possession of the home and does not have the $35.00 per month rent from the garage apartment, and the $2,100 in controversy will be paid to Mr. Harbour, the alimony and support payments should be increased to $100.00 per month, and it is unnecessary to designate the exact amount that is to be considered as alimony and the amount to be regarded as support for the minor child.
Mr. Harbour contends that under the provision of the original decree he is entitled to two-thirds of the household furniture, but subsequent to the decree he entered into an agreement whereby in consideration of the relinquishment by Mrs. Harbour of all claims to an auto mobile she was given the use of all the furniture as long as she remains unmarried. She has not remarried. The decree is modified to the extent of allowing the $2,100 now in the registry of the court to be paid to Mr. Harbour and increasing the alimony and support to $100.00 per month, and as modified the decree is affirmed. | [
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Minor W. Millwee, Associate Justice.
The principal question for decision is whether homestead property is exempt from a judgment for unemployment contributions, interest and penalty assessed pursuant to the provisions of the Arkansas Employment Security Act (Ark. Stats. Secs. 81-1101 — 81-1108, 81-1111 — 81-1122).
Appellants, W. B. Rainwater and wife, have owned and occupied their rural homestead in Sebastian County since 1949. In 1951 and 1957 the appellee, Commissioner of Labor, obtained assessments of contributions, penalty and interest against Mr. Rainwater as a delinquent employer under Ark. Stats., Section 81-1117 which provides that said assessments ‘ ‘ shall have the force and effect of a judgment of the circuit court.” These judgments appear of record in Sebastian County.
The Rainwaters, while still residing on their homestead, conveyed three different parcels thereof to three other appellants and desire to convey another parcel to another appellant if they can do so free of said judgments. They and the other appellants brought this suit to remove any cloud on their titles by reason of said judgments, to quiet title in the grantees to the parts already conveyed; and for a declaration that said judgments are not liens either on the tracts conveyed or the remainder of the homestead still owned and occupied by the Rainwaters.
Appellee demurred to the complaint on the grounds that it did not state facts sufficient to constitute a cause of action either for a declaratory judgment or for the relief sought. This appeal is from a decree dismissing appellants’ complaint after they declined to plead further when the court sustained the demurrer filed by appellee. The court found that appellants had an adequate remedy at law and could not invoke the Declaratory Judgment Act. The court further found: “That the contributions levied under and pursuant to the provisions of the Arkansas Employment Security Act are taxes for which the State of Arkansas has a lien upon all of the property owned by the plaintiff W. B. Rainwater, and under § 3 of Article 9 of the Constitution of Arkansas the homestead of plaintiff W. B. Rainwater is not exempt from the judgment and lien for said taxes.”
We find it unnecessary to determine the applicability of the Declaratory Judgment Act (Ark. Stats., Secs. 34-2501, et seq.). Aside from that act, the chancery court had jurisdiction of the instant suit under its traditional equitable jurisdiction to remove clouds on title to real estate. Equity jurisdiction to quiet and remove clouds from title to real estate was recognized long before such proceedings were authorized by statute (Ark. Stats. Secs. 34-1001, et seq.). See Patterson v. McKay, 199 Ark. 140, 134 S. W. 2d 543, and cases there cited. If the homestead is exempt from the judgments and liens for the unemployment contributions involved here, then such judgments clearly constitute clouds on the title of appellants, and jurisdiction to remove such clouds is purely of equitable cognizance. Sanders v. Flenniken, 180 Ark. 303, 21 S. W. 2d 847. The fact that appellants might defend against an attempt by appellee to execute on said judgments in the circuit court does not preclude them from proceeding to remove the clouds from their respective titles. Moreover, the Employment Security Act (Ark. Stats., Sec. 81-1117 (e)) expressly authorizes a review of the assessment for contributions in the chancery court.
We proceed to the main issue as to whether the homestead is exempt from the judgment and lien for unemployment contributions under Art. 9 Sec. 3 of the Constitution of Arkansas, Avhich reads: ‘ ‘ The homestead of any resident of this State who is married or the head of a family shall not be subject to the lien of any judgment, or decree of any court, or to sale under execution or other process thereon, except such as may be rendered for the purchase money or for specific liens, laborers’ or mechanics’ liens for improving the same, or for taxes, or against executors, administrators, guardians, receivers, attorneys for moneys collected by them and other trustees of an express trust for moneys due from them in their fiduciary capacity.”
If the contributions in question are “taxes” within the meaning of this constitutional provision, then they come within the exception exempting said homestead. We are cited to only one decision bearing on this question. In Lafayette Building Ass’n v. Spofford, 221 La. 549, 59 So. 2d 880, the state obtained judgment against the homestead owner for public Avelfare taxes and chain store taxes authorized by statute and sought to subject the homestead to the payment of said judgment. The court held that the word “taxes” used in a constitutional provision very similar to Art. 9, Sec. 3, supra, referred to property taxes relating directly to the homestead and did not include such excise taxes as were there involved. After pointing out the issue involved and the general object of the exemption proviso, the court said: “In the light of the foregoing, it necessarily follows that in order for the homestead exemption to be set aside and not apply to a certain debt, the provision of the Constitution which disallows the exemption insofar as certain debts are concerned must be strictly construed and it must be clearly shown that the debt comes within the meaning of the aforesaid provision. It is clear that the word ‘taxes’ as used in the constitutional provision refers to property taxes and was intended to relate directly to the homestead property and did not embrace excise taxes. As evidenced by the judgments obtained by the State of Louisiana, its claims are for Public Welfare Revenue Taxes and for Chain Store Taxes assessed against a former bankrupt business operated by defendant do not relate to taxes pertaining to nor levied on, nor assessment levied against the homestead in question. We reiterate that the word ‘taxes’ as set out in the constitutional exception embrace no other type of taxes than that assessed directly against the homestead property.”
The reasoning used and result reached by the Louisiana court appear to be in harmony with our own decisions. This court has traditionally declined to recognize inroads upon the homestead exemption except such as are clearly in accord with the constitutional' mandate. We have repeatedly said that the protection of the family from dependence and want is the object of all homestead laws. In Hollis v. State, 59 Ark. 211, 27 S. W. 73, the court held the homestead exempt from the lien of the State for costs in a criminal prosecution, saying: “The lien of the State for costs in a criminal prosecution is not a specific lien, nor does it come within the meaning of either of the other exceptions named. Homestead laws are intended for the protection of the families of those who are poor or unfortunate, and, in cases of this kind, there are no reasons why the State should be exempt from their operation.” This holding is in line with the general rule that it is only in case the homestead statute expressly subjects the homestead to debts due the state or the United States that an exemption therefrom is denied. 40 C. J. S., Homesteads, Sec. 108. Also in Arnold v. Stephens, 173 Ark. 205, 296 S. W. 24, we held a tax collector’s homestead exempt from the lien of a judgment in favor of his sureties who were compelled to pay money which he had collected and failed to pay to the State.
Employment Security Acts were unknown at the time of the adoption of our constitution. Our act is primarily a public welfare measure, and not a taxing statute. It was not enacted under the general taxing powers requiring uniformity of assessments according to value, but under the general police power as provided in Ark. Stats., Sec. 81-1101. The contributions here involved do not constitute a property tax nor one that is assessed directly against the homestead property such as the “purchase money,” “laborers” and other specific liens mentioned in the constitutional provision immediately preceding the word “taxes.” Obviously a homestead is not subject to the lien of a judgment for the “purchase money” of a car or a “specific lien” on some other chattel. In our opinion a proper construction of the constitutional provision warrants the conclusion that the word “taxes,” as used therein, refers to taxes against the homestead and not to contributions assessed against an employer under the Employment Security Act. The decree is accordingly reversed and the cause remanded with directions to overrule the demurrer and for further proceedings consistent with this opinion.
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Carleton Harris, Chief Justice.
This appeal involves the construction of ordinance No. 757 of the city of Jonesboro, Arkansas, which provides for payment of an annual occupation tax by persons, firms, and corporations engaged in certain occupations, vocations, professions, etc. Appellant was charged on March 8, 1957, with “engaging in or carrying on the profession of an attorney without first procuring an occupation license for year 1956 * * * , and did fail, neglect or refuse to pay said occupation tax for year 1956 * * * ,” was convicted of said offense in Municipal court on April 1, 1957, and fined $37.50 and costs. On appeal to the Circuit court, this judgment was affirmed. Appellant is a member of the bar, duly licensed to practice, resides in Jonesboro, and is associated with other attorneys un der the firm name of McConrtney, Brinton, Gibbons and Segars. The case was submitted upon an agreed statement of facts, such stipulation providing inter alia that
‘ ‘ McConrtney is the head of the firm in general, controls all litigation, makes the business arrangements with clients, makes the decisions in general and in the conduct of each litigation, determines the retainers and fees, maintains the office space, owns and maintains the library, buys the books and stationery, is responsible for the payment of all contractual obligations of the firm, the fees are paid to him and he pays the costs and expenses of the litigations, the profit or loss is his on each case and upon the general business. (5) Brinton, Gibbons and Segars do not share in the profits and receive no division of the fees; each receive a salary for services; the head of the firm pays social security on each of them. (6) That there are four stenographers, one bookkeeper and accountant, two investigators or collectors and one janitor connected with the firm and Mr. McCourtney pays salary or other remuneration to each of them. (7) It is conceded that the defendant did not pay the occupation tax for 1956.”
It is also stipulated that during the year 1956, Brinton appeared in the Municipal, Circuit, Chancery and Federal courts for litigants.
The constitutionality of the ordinance is not questioned. Appellant simply contends that he is not liable for the payment of the tax under the stipulation, ordinance, or the statute authorizing the ordinance. It is also contended that even if appellant is liable for the tax under the provisions of the law, this particular prosecution is barred by the Statute of Limitations. There are, accordingly, two issues before the Court on this appeal'. 1. Is appellant liable for the occupation tax? 2. If liable, does the Statute of Limitations bar this prosecution?
The ordinance, authorized by Section 19-4601, Arkansas Statutes (1947) Annotated, provides that it shall be unlawful for any person, firm or corporation, in the city of Jonesboro, to engage in or carry on certain busi nesses, occupations, vocations, professions, trades, or callings without first having obtained and paid a license, the amount of such license being fixed by the ordinance. The license, or tax, for lawyers is fixed at $25. Subsequent sections provide that each day of delinquency shall constitute a separate violation, provide a penalty of 20% of the amount of the tax, and subject the violator to a fine. Appellant asserts that under the stipulation, he is not engaged in the practice of law for himself, is only an agent for Mr. McCourtney, and is therefore not liable for the tax. In other words, he is simply McCourtney’s employee, receiving a salary, and accordingly occupies the same status as the stenographers and other employees. Cases involving other occupations are cited, but we do not consider such cases pertinent to the issue at hand. Appellant is certainly engaged in the practice of law, as evidenced by his appearance in the various courts mentioned in the stipulation; the representation of litigants in court is practicing law, whether done as an individual, or under a firm name. One can only engage in the practice of this profession by being licensed to practice in his own right. He receives no license as an employee of another attorney. Individually, he stands as an officer of the court. In Blanchard v. the State of Florida, ex rel., 30 Fla. 223, 11 So. 785, 18 L. R. A. 409, the question was whether two lawyers, associated as partners, were entitled to a license as a firm or partnership upon paying the license tax prescribed for one lawyer, or whether each was required to pay the prescribed tax. The Court, in its opinion, stated:
“The assertion that a firm or copartnership is in law one person is mistaken; it, on the contrary, is an association of several persons, and their firm name is but a short way of designating the several persons for the purposes of their association. Their separate personality is not lost, * * * .”
We consider appellant’s contention to be without merit, and hold that he is subject to, and liable for the tax.
Section 10 of the ordinance provides as follows:
“All persons, firms or corporations failing or neglecting or refusing to pay their license or occupation tax between the first day of January and the 20th day of January of each year or within 20 days after the license or occupation tax becomes due, shall be subject to a penalty of twenty per cent (20%) of the amount of the license fee or occupation tax, as well as subject to a fine for having violated the Ordinance. ’ ’
Appellant contends that the misdemeanor was completed on the day that Brinton became subject to the penalty, i. e., January 21,1956. The Information was filed March 8, 1957, more than one year after the aforementioned date, and he accordingly asserts that the offense is barred by the Statute of Limitations, citing Section 43-1603. We do not agree. The Information charged that the offense was committed on December 31, 1956. While it is true that Brinton violated the provisions of the ordinance on January 21,1956, it is equally true that he also violated the ordinance on December 31, 1956, and, for that matter, each day in between. The pertinent fact is that he did not pay a tax for the year 1956 — that is the offense with which he is charged. The offense having been committed prior to the filing of the information, and on a day within the Statute of Limitations, appellant’s contention must fail.
Judgment affirmed.
Section 43-1603: “No person shall he tried, prosecuted and punished, for any offense less than felony, or any fine or forfeiture, unless the indictment be found or a prosecution instituted within one (I) year after the commission of the offense, or incurring the fine or forfeiture.” | [
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Sam Robinson, Associate Justice.
Appellant, Wheeler, filed suit in the Pulaski Circuit Court on February 2, 1954, against appellee, Wallingsford, a resident of Union County, and others, for a debt accruing February 16, 1949. The summons issued for Wallingsford was directed to the Sheriff of Union County. The trial court overruled a motion to quash service. On a petition to this court for a writ of prohibition, it was held, in the decision handed down on February 7, 1955, that the action was transitory and that the service of summons in Union County was invalid. Barr v. Cockrill, 224 Ark. 570, 275 S. W. 2d 6.
About six months later, on August 18, 1955, Wheeler took a nonsuit in the Pulaski Circuit Court, and on August 9, 1956, a little less than a year thereafter, he filed a new suit against appellee in Union County. Appellee pleaded the statute of limitations as a defense to that action. It is conceded that the alleged debt on which Wheeler based his cause of action accrued on Feb ruary 16, 1949. It was barred by the statute of limitations when the present suit was filed on August 9, 1956, unless the time in which a new suit could be filed was extended by Ark. Stat. § 37-222, which gives the plaintiff a year in which to commence a new action after suffering a nonsuit. In the present action the trial court held that the one year period in which a new suit could be filed began to run on February 7, 1955, when the decision of the Supreme Court became final, wherein it was held that the summons served in Union County was invalid in the action that had been filed in Pulaski County.
Appellant contends that the one year period in which he could file a new suit after a nonsuit had been suffered, should date from August, 1955, when he was actually granted a nonsuit by the Pulaski Circuit Court. The question is: Just when did appellant suffer a non-suit in the action filed in the Pulaski Circuit Court? We think the one year period began to run when this court held invalid the summons issued by the Pulaski Circuit Court and directed to the Union County Sheriff. When the Supreme Court reached the decision that the summons was invalid, the plaintiff’s action in Pulaski County came to an end. There was no possible way the summons issued theretofore could be served that would bring the defendant into court. The summons issued by the Pulaski Circuit Court was directed to the Sheriff of Union County; the action was transitory; there were no codefendants that would hold the case in the Pulaski court. Before the defendant could be brought into court he would have to be served in Pulaski County; the Sheriff of Union County had no authority to serve him in Pulaski County. Of course, a new summons could have been issued directed to the Pulaski County Sheriff, but appellant concedes that if such procedure had been adopted, even if the defendant could have been served in Pulaski County, the action would have been barred by the five year statute of limitations because the summons would have been placed in the hands of the sheriff more than five years after the cause of action accrued, and the time would not have been extended by a non-suit. An action is commenced when the complaint is filed and the summons is placed in the hands of the sheriff. Goodyear Tire & Rubber Co. v. Meyer, 209 Ark. 383, 191 S. W. 2d 826. No other conclusion can be reached than that the plaintiff’s case came to a complete and final end in Pulaski County when this court granted prohibition, and it was more than a year later that the suit was, filed in Union County. , To suffer a nonsuit it is not necessary that a suitor actually ask for and be granted a nonsuit in the trial court. State Bank v. Magness, 11 Ark. 343; Jernigan v. Pfeifer Brothers, 177 Ark. 145, 5 S. W. 2d 941.
Young v. Garrett, 212 Ark. 693, 208 S. W. 2d 189, was very similar to the case at bar on the point involved here. There, in speaking of the nonsuit statute, Ark. Stat. § 37-222, the court said: “But wording of the Act does not justify belief that it was the legislative purpose to so liberalize this gratuity (permitting a new suit to be filed within a year of suffering a nonsuit) that irrespective of adverse judicial decisions in a given case that the controversy in that jurisdiction had been terminated, a period of one year would yet remain while courts were reaffirming what had already been explicitly held.”
As heretofore pointed out, when this court granted prohibition, the action in the Pulaski Circuit Court came to an end. The plaintiff had suffered a nonsuit, and the present action was not filed within one year thereafter. Appellant relies heavily upon the case of Myers v. Union Elec. L. & P. Co., 233 Mo. App. 730, 125 S. W. 2d 950. In the peculiar circumstances of that case it was held that a nonsuit did not date from the granting of prohibition, but there the court said: ‘ ‘ The test of whether or not a nonsuit has been 'suffered’ is whether or not the order or judgment of nonsuit has finally terminated the suit.” Here the order granting prohibition terminated the action in the Pulaski Circuit Court just as effectively as it could be done. Therefore, appellant in the case at bar suffered a nonsuit at that time and it was more than one year before a new suit was commenced. Hence, the new suit could not be saved from a successful plea of the statute of limitations by the one year nonsuit statute.
Affirmed. | [
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J. Seaborn Holt, Associate Justice.
On March. 18, 1957, appellees filed their petition in the Greene County Court praying for an order granting a certain county road, and on the same day the county court granted their petition. On April 29, 1957, appellant, Garner, an interested citizen and taxpayer, who was not however a party litigant, filed an affidavit and prayer for an appeal to the circuit court of Greene County, and on April 30,1957, the circuit cleric ordered the appeal. On August 17, 1957, appellees filed motion to dismiss Garner’s appeal and thereafter, on August 28, 1957, the circuit court granted appellees’ motion and dismissed Garner’s appeal. On August 31, 1957, Garner, who was not then a party, for the first time filed in the county court his verified petition to be permitted to intervene and become a party to the action under which appellees’ petition for the road had been granted. He further asked that the March 18, 1957, order granting the road he set aside and on September 4, 1957 the county court denied Garner’s petition to intervene. On September 7, 1957, Garner appealed from the county court’s order denying his petition to intervene and upon appellees’ motion, the circuit court on November 7, 1957, thereafter, dismissed Garner’s appeal and from this order of dismissal comes this appeal.
Appellant stoutly insists that the trial court erred in denying him the right to appeal from the order of the county court on March 18, 1957, and we agree. Appellant was an interested citizen and taxpayer of Greene County and his right to appeal here is based on Article 7, Section 33, of the constitution of this state, which provides: “Appeals from all judgments of county courts or courts of common pleas, when established, may be taken to the circuit court under such restrictions and regulations as may be prescribed by law.” And, under the provisions of Sec. 27-2001 Ark. Stats. 1947, relative to appeals, which provides: “Appeals shall be granted as a matter of right to the circuit court from all final orders and judgments of the county court, at any time within six (6) months after the rendition of the same, either by the court rendering the order or judgment or by the clerk of the circuit court of the proper county, with or without supersedeas, as in other cases at law, by the party aggrieved filing an affidavit and prayer for an appeal with the clerk of the court in which the appeal is taken; and upon the filing of such affidavit and prayer the court rendering the judgment or order appealed from or the clerk of the circuit court shall forthwith order an appeal to the circuit court at any time within six (6) months after the rendition of the judgment or order appealed from, and not thereafter. The party aggrieved, his agent or attorney, shall swear in said affidavit that the appeal is taken because the appellant verily believes that he is aggrieved, and is not taken for vexation or delay, but that justice may be done him.”
In the present case Garner by his verified petition to intervene and to be made a party to the action on August 31, 1957, as of that date became a party to the record in the county court and had the right to appeal, from any adverse decision, to the circuit court at any time within six months after the decision, (March 18, 1957) in accordance with the provisions of the above statute, and, as indicated, the circuit court erred in denying appellant the right to intervene and to become a party. We said in McMahan v. Ruble, 135 Ark. 83, 204 S. W. 746, “It is first insisted that the appeal was properly dismissed because appellant was not a party aggrieved within the meaning of the law. But that contention cannot be sustained. Appellant made himself a party to the record in the county court, and he was, therefore, entitled to appeal from an adverse decision . . . As a citizen and taxpayer he had the right to be made a party to the proceeding in the county court.” And, in the early case of Lee County v. Robertson, 66 Ark. 82, 48 S. W. 901, we said: “. . . the motion by appellee to be made a party for the purpose of protesting against this illegal proceedings does not manifest the impertinent interference of a stranger without interest, and, when made a party, by order of the court, he may prosecute an appeal from the judgment thereafter rendered. ’ ’ Also, in Huddleston & Taylor v. Coffman, 90 Ark. 219, 118 S. W. 1010, we said: “The order of the county court, if improperly made, amounted to an illegal exaction, and Coffman, being individually interested in the order, had the right of appeal. This seems to us to be the plain and natural construction of these clauses of the Constitution (Sec. 33, Art. 7 & Sec. 13, Art. 16). To hold otherwise would be to place the interested parties at the mercy of the county court, and might have the effect of imposing a grievous burden upon them without any right whatever of appeal.”
We hold that when Garner filed his petition in the county court to intervene and became a party to the liti gation, from that time he was a party and stood in the shoes of an aggrieved party to the action, and had the right to appeal from the county court’s ruling at any time within six months (from March 18, 1957) which he did. But, says appellees: “The circuit court’s order of dismissal dated August 28, 1957, was res judicata or law of the case with respect to the circuit court’s order of dismissal dated November 7,1957, and appellant’s failure to prosecute an appeal from the first order of dismissal by the circuit court constitutes a complete bar to this appeal.”
We do not agree, for the reason that on the date (August 28, 1957) that the order of dismissal was made by the circuit court Garner was not then a party to the action, and that judgment could therefore have no effect on his rights. “. . . the doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.” Csrrigan v. Carrigan, 218 Ark. 398, 236 S. W. 2d 579.
Accordingly, the judgment is reversed and the cause remanded for further proceedings consistent with this opinion.
Mr. Chief Justice Harris dissents. Mr. Justice McFaddin not participating. | [
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HUMPHBETS, J.
Appellant, administratrix of the estate of J..E. Tyler, deceased, instituted this suit in the circuit court of Hot Spring County for the benefit of herself, as widow, and his two children, .as heirs, against ap-pellees, to recover damages on account of the alleged negligent killing of J. E. Tyler, deceased, on the 11th day of October, 1916, about 1,224 feet south of the Twenty-sixth street railroad crossing in Little Bock, Arkansas. The negligence charged and insisted upon for reversal consisted, first, in the alleged failure of appellee to whistle at the whistling post immediately north of where deceased was killed; second, in failing to properly warn him of the approach of the train.
Appellee denied both allegations of negligence and invoked the Federal Employers’ Liability Act in order to place the bnrden of proving the alleged negligence npon appellant; and, by way of further defense, pleaded both contributory negligence and assumed risk on the part of deceased.
The cause was heard upon the pleadings and evidence adduced. At the conclusion of the evidence, a verdict was instructed for appellee and judgment rendered in accordance therewith, from which an appeal has been prosecuted to this court.
J. E. Tyler was killed at 1:15 o ’clock on the 11th day of October, 1916, by appellees’ fast mail train-Fo. 7. He was one of a section force consisting of five workmen and the foreman. The train whistled for the Twenty-sixth street crossing, at which time the attention of the foreman and workmen who testified was attracted. The men were working on the north main track and between the north and south main tracks, J. E. Tyler being'engaged at the time midway between the two tracks aforesaid, picking gravel on a cross track owned by the Dickinson company. This placed him, when standing erect in the clear of the southbound train, which was approaching at the rate of fifty or sixty miles an hour. The foreman was ■standing about five feet from Tyler when the train reached the Twenty-sixth street crossing and he gave warning to him by saying, “Watch him, boys,” and in a louder tone warned the other men who were working over a space of about thirty feet. The other men understood the meaning of the words, and either straightened up or moved out of the way. It was not known whether Tyler understood the expression used by the foreman to be a warning. It was his first day’s work for this particular foreman, but he had worked as a section hand before. At that particular time Tyler, who was facing the approaching train, raised up and looked at it. The train was then 1,224 feet from him. The foreman started away but discovered that Tyler had returned to his work, and in a firm voice said, w Come out of there. ’ ’ The foreman then went to the north track. When Tyler was next seen he tvas crossing the sonth track in front of the moving train. All agreed that the approaching train was only 212 feet from him when he started across the sonth track. He was struck by the pilot beam on the east side of the sonth track and killed. The facts as thus far stated are undisputed. There was material conflict in the evidence as to whether the whistle was blown as the train approached the whistling post a short distance north of where the killing occurred. The evidence is conflicting in other particulars, but it is unnecessary to a determination of this question now before us to set out or discuss the conflicting evidence. An instructed verdict can not be sustained unless the undisputed evidence warranted the trial court in saying, as a matter of law, the injury and death resulted directly from the negligence of the deceased. If the undisputed evidence revealed the fact that the negligence of deceased was the proximate cause of his injury and death, it is immaterial whether appellees were negligent in failing to blow the whistle, or in failing to notify him more definitely, through the foreman, of the approach of the train. The theory upon which appellant contends for reversal is, that deceased had a right to concentrate his mind upon his duties, and to rely for protection upon proper warnings from his foreman of approaching danger, and upon danger signals provided by law and the rules of the company. This theory in law is sound, but applicable only when the injured servant is unaware of the approaching danger. If aware of the danger, notice by word of mouth or signal could avail him nothing. This court has said, quoting the syllabus, “The railroad company is not liable for the accidental killing of a person upon its track because those in charge of the train did not give signals to apprise deceased of the approach of the train if he knew that the train was approaching.” St. Louis & S. F. Rd. Co. v. Ferrell, 84 Ark. 270. The same rule would apply in case a foreman failed to correctly or distinctly notify a section hand of the approach of a train, if the servant knew the train was coming.
Then the whole question here is dependent upon whether the deceased saw the train coming at the Twenty-sixth street crossing. His co-laborers heard the whistle and saw the approaching train even before it reached the Twenty-sixth street crossing, and easily found a place of safety. Tyler quit work and looked at the approaching train. He was of mature age and was an experienced section hand. It is true he was standing further south in the curve than the other men, but the distance between them was not very great. All were working within a thirty-foot space. The foreman was standing only five feet from him and heard and saw the approaching train. A discussion arose amongst the men as to what train was coming. No contention was made that Tyler’s sense of sight or hearing was impaired. It was not shown that his view of the train was obstructed, or that it was more difficult for him than the other men to see and hear it. The only natural conclusion from the undisputed facts is that after hearing and seeing the train, Tyler concluded he could strike a few more licks and then avoid injury. The court correctly held that, as a matter of law, Tyler was guilty of contributory negligence under the undisputed facts in the case, and committed no error in instructing the verdict.
Under this view of the case, it is wholly immaterial whether the facts bring the case within the Federal employers’ liability act, for no liability exists either under that act or the State law.
The judgment is affirmed. | [
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McCTJLLOCH, C. j.
This is an action instituted by the appellee suing as an infant by next friend to recover the sum of $50, alleged to be due him from appellant. The case was instituted before a justice of the peace and was tried in the circuit court on appeal, resulting in a judgment in favor of appellee for the amount claimed. No written pleadings were filed, appellee merely filing an account setting forth that appellant was indebted to him in the sum of $50.
It appears from the evidence adduced that in January, 1916, appellee purchased a team of horses from appellant and paid the sum of $50 on the purchase price, the remainder to be paid in monthly installments. Appellee testified that he was under the age of majority at that time, and is now. There was a conflict in the testimony as to the age of appellee, but that issue was properly submitted to the jury and must be treated as settled by the verdict. The agreement between the parties concerning the purchase was that if the team did not prove satisfactory to appellee in the logging operations which he was prosecuting at the time, appellant would rescind the sale and take the team back. The contention of appellee is that the horses were not satisfactory and that he offered to return them to appellant. Appellee .sued on two theories ; one that he is entitled to recover the sum demanded because he offered to return the horses, and the other theory that he was an infant and is entitled to disaffirm the contract and recover the amount paid. Both of those theories were submitted to the jury in the instructions of the court and tlie jury lias found in favor of appellee on each of them.
The sole contention of counsel for appellant now is that appellee in asserting the two theories for the recovery of the money is occupying an inconsistent position, and that by suing on the contract for the return of the money he has elected to treat the contract as being in force, and has thereby waived the right to disaffirm it. Counsel is in error in treating this as a suit for damages on breach of warranty. If such were the state of the case, there might be something in the argument, but the suit is not one for breach of warranty. Appellee sues to recover the amount of money paid as a part of the price of the purchased article, and he puts forward two reasons why he is entitled to recover, and the two are not inconsistent, for they both relate to the same thing. The fact that one theory is based upon the rescission of the contract according to its terms, and the other upon a dis-affirmance because of the incapacity of one of the parties, does not make the two theories inconsistent.
The authorities cited by appellant’s counsel in support of his contention are, therefore, not applicable to the present case.
Judgment affirmed. | [
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McCULLOCH, C. J.
This is an action instituted by the plaintiff, Harger, against the Spadra Creek Coal Company to recover damages on account of personal injuries received by plaintiff while working for defendant in its coal mines in Johnson County, Arkansas. Plaintiff was employed as a driver, and alleges that while working in the mine he was injured as a result of the negligence of two other employees of the defendant company. The answer contained denials of the charge of negligence and the cause was tried before a jury upon the issues involved, and there was a verdict and judgment in favor of plaintiff for the recovery of damage s¡ and defendant has appealed.
Defendant’s motion for new trial contained numerous assignments, among which was one that the verdict was against the preponderance of the evidence. The bill of exceptions recites a finding by the court in overruling the motion for new trial in the following language:
“My opinion is that the plaintiff probably did not prove'the liability of the defendant by a preponderance of the evidence; and I think the evidence probably does no.t justify the amount of damages returned. But these questions were submitted to the jury and I do not feel disposed to interfere with the verdict.”
It is contended by defendant’s counsel that the above statement of the court constituted a finding that the verdict of the jury was against the preponderance of the evidence, and that it therefore became the duty of the court to sustain the motion and grant a new trial. We think that the contention of counsel is correct and that the court erred in refusing to grant a new trial upon its finding that the verdict was not 'supported by the preponderance of the evidence. The case is controlled by the decision of this court in the case of Spadra Creek Coal Co. v. Callahan, 196 S. W. 477, 129 Ark. 448. The language of the court in reciting its finding in each case is identical, except in the present case the word “probably” was inserted so as to recite that “the plaintiff probably did not prove the liability of the defendant by a preponderance of the evidence.” The use of the word “probably” did not lessen the effect of the language used as constituting a finding that the verdict was against the preponderance of the evidence. The words used clearly indicate a belief or conclusion on the part of the court that the verdict was contrary to the preponderance of the evidence, and under those circumstances it was the duty of the court to grant a new trial. The word “probably” is defined as “likely as far as the evidence shows,” and “having more evidence for than against,”.or “apparently true, yet possibly false.” The difference in the precise language used, therefore, does not put the ease outside the operation of the rule announced by this court in the Callahan case, sufra. The judgment is, therefore, reversed and the cause remanded with directions to grant a new trial. | [
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'McCULLOCH, C. J.
The defendant was indicted for the offense of 'cutting down and destroying growing timber, of the value of $100.00, on certain lands of another, which constituted a felony under the statute providing that if any one shall, without lawful authority, etc., enter upon land belonging to the State, or any corporation or person “and shall cut down or destroy, or cause to be cut down or destroyed, any tree or trees standing or growing thereon, of the value of more than ten dollars * # * shall be deemed guilty of a felony.” Kirby’s Digest, Sec. 1902.
(1) The trial jury returned a verdict finding the defendant guilty of a misdemeanor and assessed his fine at the sum of $50.00. The statute under which the conviction was had is a part of the Revised Statutes, and is found in Kirby’s Digest as Sec. 1901, and provides that every person who shall wilfully commit any trespass “by cutting down or destroying any kind of wood or timber * * * shall upon conviction be adjudged guilty of a misdemeanor and be fined in any sum not less than fifty dollars.” This court held in State v. Malone, 46 Ark. 140, that the Act of 1883 (Kirby’s Digest, Sec. 1902, referred to above) did not repeal the former statute, and that there was no inconsistency between the two statutes. The defendant was, therefore, properly convicted of a misdemeanor under this indictment.
(2) It is insisted that the judgment should be reversed for the reason that the record fails to show affirmatively that the jurors were specially sworn as provided by statute. Kirby’s Digest, Sec. 2373. The record is entirely silent as to any oath being administered to the jurors, or as to any objections or requests of the defendant on that subject, and the motion for hew trial does not contain any assignment of error in that respect. The question is raised here for the first time in the case. This court held in Ruble v. State, 51 Ark. 126, that in a prosecution for misdemeanor it is too late after verdict to object for the first time that the jurors were not sworn in accordance with the statute. It was held that the defendant under those circumstances is deemed to have waived his objections to the failure of the court to have the oath administered to the jurors. The present ease is ruled by that decision, for the verdict of the jury eliminated the felony charge and brings the case within the rule governing trials of misdemeanor cases. ¥e are not called upon to decide whether or not this would constitute a waiver in a felony ease.
(3) It is next insisted that the court erred in one of its rulings on the question of admissibility of certain testimony. One of the witnesses introduced by the State testified that he saw the defendant peeling some locust posts at a certain place, but he did not know whether it was on the land mentioned in the indictment. Two other witnesses were permitted to testify that the other witness, Norris by name, pointed out to them the spot where he said that he saw the defendant peeling the trees, and those witnesses testified that the spot so designated by Norris was on the land described in the indictment. This did not constitute hearsay testimony within the meaning of the law, for it tended to identify the particular place where the offense was alleged to have been committed. The testimony of Norris showed that the timber was cut, and his designation of the particular place in connection ■with the testimony of the other two witnesses completed the identification. Smith v. State, 90 Ark. 435.
It is also contended that the evidence is not sufficient to sustain the verdict, but the testimony above referred to was, we think, sufficient to make out the ease if accepted by the jury as true.
Judgment affirmed. | [
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McCULLOCH, C. J.
This is an action instituted by the receiver of the Chicago, Rock Island & Pacific Railway Company against the tax collector of Garland County to recover taxes alleged to have been assessed in excess of the amount legally authorized, which were paid to the collector under protest. The cause was heard upon an agreed statement of facts, and the court rendered judgment in favor of the defendant, from which the plaintiff has prosecuted an appeal.
The facts, as recited in the agreement, are that the State Tax Commission assessed the property of the railroad for the taxes of 1916 and certified to the assessor of Garland County the apportionment to that county of its part of the aggregate value of the' railroad and the assessor of Garland County entered the same upon the tax books, but subsequently the board of equalization raised the assessment for county purposes and road and bridge purposes 50 per cent, of the value as certified by the State Tax Commission. In other words, the State Tax Commission apportioned to Garland County the value of the railroad property amounting to $189,957, which was entered on the tax books by the assessor, but the board of equalization raised the value to $284,953, and the taxes were extended on the last mentioned valuation fixed by the board of equalization. The receiver of the company applied to the collector to pay the taxes according to the valuation made and apportioned by the State Tax Commission, but the collector refused to accept the amount and the receiver paid the full amount demanded under protest, and brings tbis snit to recover the amount paid in excess of the amount extended according to the value fixed by the State Tax Commission.
(1) It is agreed that the money was in the hands of the tax collector at the time of the commencement of the suit and was retained by him to await the final decision in the cause, so, if it be found that the amount demanded by the collector was in excess of the legal amount of taxes due on the property, the plaintiff is entitled to recover. Sanders v. Simmons, 30 Ark. 275; First National Bank of Fort Smith v. Norris, 113 Ark. 138.
(2) The validity of the increase of the assessment is sought to be sustained under authority of a judgment of the United States District Court for the Western Division of the Eastern District of Arkansas in an action instituted by one of the creditors of G-arland County against the assessor and board of equalization of that county, commanding those officers to assess all property in the county at its true value in money. The judgment of the Federal court was rendered by consent of the parties thereto. The members of the State Tax Commission were not parties to that action. Conceding, without deciding, that a judgment of that kind against the assessor and board of equalization of the county was binding on taxpayers as to the validity of the assessment made pursuant to the judgment, it certainly did not bind railroad property which is, under the statute, assessable only by the State Tax Commission. The statutes of this State (Acts of 1911, page 235) provide that the property of railroad, express, sleeping car, telegraph, telephone and pipe line companies shall be assessed by the State Tax Commission and that the value shall be apportioned by that commission to the several counties in the State. This is the only authority for the assessment of that kind of property, and the statute does not confer authority upon the county boards of equalization to raise or lower the values of the property thus assessed. Both the assessor and the board of equalization being without power to alter the assessments of railroad property made by the State Tax Commission, it necessarily follows that a judgment giving a command to those officials with respect to the assessment of that kind of property is not binding on a taxpayer in- a collateral suit to recover the amount illegally exacted.
(3) We have already decided that assessing officers can not be compelled to adopt a rate of assessment in a given county not in conformity with the rate of valuation fixed generally throughout the State. Nelson v. Meek, Assessor, 127 Ark. 349, 192 S. W. 202.
It is contended, however, that the statute authorizing assessments of railroad property by the State Tax Commission is unconstitutional for the reason that there is a provision in the Constitution for the election of a county assessor, and that it is necessarily implied from that provision that the Legislature can not authorize an assessment made by any other officers. Formerly the assessment of railroad property was made by the State Board of Railroad Assessors, composed of the Governor and certain other State officials, and in the case of Little Rock & Fort Smith Ry. v. Worthen, 46 Ark. 312, the constitutionality of that statute was assailed on the ground that it provided for a different method of assessing that character of property from that authorized for the assessment of property generally. This court sustained the method of assessment and in effect held that the Legislature had the power to create a State board to assess that kind of property. The question was again raised in St. L., I. M. & S. Ry. Co. v. Worthen, 52 Ark. 529, where the court again declared the constitutionality of that method of assessing railroad property. The subject was again discussed in the case of Railway v. Williams, 53 Ark. 58, and the other cases were referred to as upholding that method of assessment of railroads on the ground that such.property should be assessed as a unit. It does not appear that in any of those cases it was insisted, as in the present case, that the provision of the Constitution with reference to the election of a county assessor was the exclusive method of assessing property of all kinds.
(4-5) We must, however, treat the question as settled that the statute authorizing the assessment of this kind of propery by a State board created for that purpose is not in conflict with the Constitution. The increase of valuation by the board of equalization was, therefore, unauthorized and illegal, and plaintiff,' having paid the amount under protest, it follows that he is entitled to recover from the collector, who still has the funds in his hands. The judgment of the circuit court is, therefore, reversed and the cause is remanded with directions to enter a judgment in favor of the plaintiff for the amount illegally exacted as set forth in the complaint. | [
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WOOD, J.,
(after stating the facts). A municipal corporation has no powers except those expressly conferred by the Legislature, and those necessarily or fairly implied as incident to or essential for the attainment of the purposes expressly declared. Willis v. City of Fort Smith, 121 Ark. 606; Bain v. Fort Smith Light & Traction Co., 116 Ark. 125, 134; Morrilton Waterworks Imp. Dist. v. Earl, 71 Ark. 4.
In Willis v. City of Fort Smith, supra, we said: ‘‘ The State has the right to regulate and control the use of motor vehicles except as it has granted such right to other governmental agencies, and it expressly recognizes in the motor vehicle law the exclusive right of municipal corporations to make and enforce rules and regulations for motor vehicles used for public hire.”
The motor vehicle law referred to is act 134 of the acts of the General Assembly of 1911, page 94. The purpose of the act, as expressed in its title, is “to provide for the registration of motor vehicles, and uniform rules regulating the use of automobiles and other horseless conveyances upon the public streets, roads and highways of ■the State of Arkansas.” Section 13 of the act provides as follows: “No owner of a motor vehicle who shall have obtained a certificate from the Secretary of State, as here-inbefore provided, shall be required to obtain any other license or permits to use and operate the same, nor shall such owner be * * * excluded, or prohibited, or limited in the free use of his said motor vehicle, nor limited as to speed upon any public street, * * * nor be required to comply with other provisions or conditions as to the use of said motor vehicle except as in this act provided. ’ ’ Then follows a provision that nothing in the section shall be construed to apply to or include any speedway created and maintained by the local authority or any municipal corporation within the State. And a further provision that the local authorities having jurisdiction over public parks and boulevards connecting or pertaining thereto' shall not be prohibited from enforcing ordinances concerning the speed at which motor vehicles may be operated “within or upon such parks, highways or boulevards.” Then follows a provision conferring the power upon the local authorities having jurisdiction over cemeteries to exclude motor vehicles therefrom; and a further provision restricting the power of municipalities to limit the speed of motor vehicles except in the manner provided for in the act. And the section concludes as follows: “Provided, that nothing in this act shall be construed to affect the power of municipal corporations to make and enforce ordinances, rules and regulations affecting motor vehicles which are used within their limits for public hire. ’ ’
Counsel for appellant contend that the last paragraph above quoted confers upon appellant power to pass the ordinance under review. But when the whole act is considered, and especially the context of the above paragraph, as found in section 13, it is plain that the Legislature intended that municipal corporations should have the power to make and enforce ordinances, rules and regulations affecting motor vehicles which are used for public hire exclusively within the territorial limits of such corporations. It is equally plain, from the language of the whole section, taken in connection with the language of the last paragraph, that the Legislature did not intend by the language of the last paragraph to delegate to municipal corporations the power to make and enforce ordinances, rules and regulations affecting motor vehicles which are used only for traffic from points within the city to points without, and vice versa, or to and from points without the city limits, but passing through the city en route, and which are not at any time used for traffic between points within the city. Such is the effect of the holding of this court in McDonald v. City of Paragould, 120 Ark. 226, and the present case, in principle, is ruled by the decision in that case. In that case the city of Para-gould enacted an ordinance requiring every person owning an automobile “for the transportation of passengers for hire within the limits of the city of Paragould” to procure a license. McDonald resided in the city and kept an automobile upon which he had paid the State license and which he used in carrying passengers for hire from points within the city limits to points outside of the city. He at no time carried persons for hire from one point to another within the city limits.
He was convicted for the refusal to pay the license required by the ordinance. In that case we said: ‘ ‘ The ordinance, properly construed, means only to require the owner or keeper of an automobile for' the transportation of passengers for hire within the limits of the city to pay the license fee, and, since the appellant did not keep or operate his automobile for the transportation of persons for hire from and to points within the city, he was not using it for the transportation of passengers for hire within the limits of the city, in violation of the ordinance. The terms of the ordinance are satisfied by holding that license taxes are to be imposed only by that municipality in which the business or occupation is carried on or conducted. Appellant’s business not being conducted within the city limits, a refusal to pay the license did not constitute a violation of the ordinance. ’ ’
The words “within the limits of the city” in the ordinance in that case followed the language of the statute. If we were correct in our construction of the ordinance in that case it necessarily follows that we are also correct in our construction of the statute in this case. The authority of municipal corporations to exercise powers beyond their territorial limits must be derived from some statute, either expressly conferring such powers or granting them by necessary implication. City of Coldwater v. Tucker, 36 Mich. 474; Pegg v. Columbus, 80 Ohio, 367; White Oak Coal Co. v. City of Manchester, 64 S. E. 944.
Since the appellant had no authority to enact an ordinance broader than the terms of the statute, it follows that the ordinance requiring appellant to pay a license fee for the business conducted by him, as shown by the .pleadings and proof was invalid.
Appellant relies upon Willis v. City of Fort Smith, supra, and upon Arkadelphia Lumber Co. v. Arkadelphia, 56 Ark. 350. In Willis v. City of Fort Smith, an attack was made upon the ordinance generally. The specific question as to whether the ordinance was invalid as to those operating motor vehicles both within and without the city limits was not raised nor decided. In Arkadelphia Lumber Co. v. Arkadelphia the court held that: “The right to operate a ferry over a stream (one of whose banks was situated in the town of Arkadelphia) was incident to and dependent upon the ownership of the banks on •which, the landing is made, and not on the possession or jurisdiction of the waters of the stream. The holding is predicated upon the fact ’that the western ' bank of Ouachita river, one of the landings was within the corporate limits of the city, and the right to levy the license tax was placed solely upon the power of the city under the statute to regulate ferries “within its boundaries.” The case is not in conflict, but in harmony with the present holding. Here the attempt is to construe the ordinance so as to give the city of Argenta the right to regulate motor vehicles for hire not exclusively within its boundaries.
In addition to the cases cited in McDonald v. City of Paragould, supra, the following case, cited in appel-lee’s brief, towit, City of Cairo v. Adams Express Co., 54 Ill. App. 87, is in point, all of which cases show that our construction of the ordinance and the statute upon which it is based is sustained by excellent authority.
The decree is therefore correct, and it is affirmed. | [
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HART, J.
.Laser Grain Company, a corporation organized under the laws of the State of Arkansas, and doing business at Clarksville, in said State, entered into a contract with the Brown Grain Company, a corporation organized and doing business at McKinney, Texas, whereby the former purchased from the latter five carloads of seed oats which were to be of the quality and character of the sample furnished. A part of the oats shipped were of a quality inferior to the sample. There was also a shortage in the quantity of oats purchased. The Laser Grain Company instituted a suit against the Brown Grain Company to recover damages. A writ of attachment was prayed for on the ground that the defendant was a non-resident and a writ of garnishment was issued against the Bank of Clarksville, the plaintiff alleging that the bank had in its hands money belonging to the defendant, towit: The money which had been paid for the oats.
The Collin County National Bank, a banking corporation doing business at McKinney, Texas, interpleaded in the action and alleged that the Brown Grain Company had assigned to it the draft which had been given it by the’ Laser Grain Company in payment of the oats and that it had sent said draft to the Bank of Clarksville for collection. There was a verdict and judgment against the in-terpleader and the case is here on appeal.
It is earnestly insisted by counsel for the Collin County National Bank, the appellant, that the evidence is not sufficient to warrant a verdict against it, and that the court erred in not directing a verdict in its favor-.
The cashier of the Collin County National Bank and the manager of the Brown Grain Company both testified that the Collin County National Bank and the Brown Grain Company had no connection with each other except that the grain company was a customer of the bank. . They said that the Brown Grain Company received a draft for $557.50 from the Laser Grain Company in payment .of oats sold by the former to the latter and that the Brown Grain Company sold and transferred this draft to the Collin County National Bank for its face value, less exchange of $1.50. They testified that the bank purchased this draft outright and owned it at the time the garnishment in this case was issued. They insisted that this testimony was uncontradicted and in support of their contention cited-the case of Collin County National Bank v. Harris, 90 Ark. 439. Counsel point out that in that case the court held a similar state of facts to be undisputed. That is true and if nothing more appeared in the record in this case we would hold that the facts were undisputed. There are other facts and circumstances in the record however, which we think tend to show that the testimony above referred to is. not undisputed ox at least that the testimony of the witness is not consistent in itself. .
The draft in question contained the following:
“To Laser Grain Company, Clarksville, Arkansas. Bill of lading attached. Brown Grain Company, collect through Bank of Clarksville bank, collection No. 11,958, Collin County National Bank, McKinney, Texas.” -Endorsement on'the back: “ Pay to the order of any banker, March 4,1916. Collin County National Bank, McKinney, Texas.”
(1) The cashier of the Bank of Clarksville testified that his hank received it for collection for the Collin Connty National Bank and that the stamp on the face of it, just referred to above, seemed to be the Collin County' National Bank’s collection number. He stated that the words stamped on the draft, towit: “Collin County National Bank, collection No. 11,958, McKinney, Texas,” indicated that the Collin County National Bank held the draft for collection. He also testified that it was not the custom of banks to purchase drafts outright from their customers and that in a case a purchase was made of a draft or note, ten per cent, of the face value thereof was the discount charged by the bank; that one dollar and a half would be about the exchange on a draft of $557.50. His testimony was corroborated by that of the cashier of another bank in the town of Clarksville. The facts and circumstances just recited tend to contradict the testimony of the interpleader and made it a question for the jury to determine whether or not the Collin County National Bank was the owner of the draft at the time of the writ of garnishment herein.
It is next insisted that the court erred in refusing to give at the instance of appellant the following instruction:
1‘ The court instructs the jury that by the transfer of the bill of lading for the car of oats to the interpleader by the Brown Grain Company all of the title, right of the Brown Grain Company to said car of oats was transferred to said interpleader and remained in it until accompanying draft was paid by the Laser Grain Company. ’ ’ '
The sole contention of appellant was that it had purchased the draft in question and owned it at the time of the issuance of the garnishment herein. The court had so instructed the jury in other instructions to which appellant made no complaint on that ground.
The only objection made by the appellant to the instructions given by the court was that the undisputed testimony in the case was that the interpleader bought the draft in controversy and was the owner thereof. Therefore the instructions in question would have tended to confuse and mislead the jury by bringing into the case an issue that the interpleader did not rely upon for a recovery.
It is next contended that the court erred in admitting the testimony of witnesses on the attachment branch of the case. When the record is considered in its entirety we think it shows an agreement upon the part of the parties to try both the attachment and interplea together. The evidence was competent against the defendant to sustain the attachment and it was not error'to admit it because the parties had consented to try the attachment and interplea together. Carl & Tobey Co. v. Beal & Fletcher Co., 64 Ark. 373.
(2) Counsel for appellant asked the court to permit it to open and close the argument in the case, which request the court refused.
Counsel for áppellee rely on the case of Metropolitan Life Insurance Co. v. Shane, 98 Ark. 132, to sustain the ruling of the court. In that case the insurance company had issued a life policy to L. V. Shane in which Louisiana Shane was named as the beneficiary. L. V. Shane died and his administrator instituted a suit against the insurance company and against the administrator of the estate of Louisiana Shane alleging that she had forfeited all rights under the policy because she had unlawfully killed the insured. The administrator filed an answer and intervention in which he admitted that his decedent had killed the insured but alleged that at the time she was insane and not responsible for her acts. He asked for judgment against the insurance company because she was the beneficiary named in the policy. The insurance company denied all liability on the policy, on the ground that it had issued the same by reason of certain false warranties made by the insured which avoided the policy. The court held that against the insurance company the original plaintiff and the intervener were equally plaintiffs and each was a defendant against the other as to their rival claims for recovery against the insurance company.' Under these circumstances the court held that it was within the sound discretion of the trial court to determine the order of the argument. This was so because each plaintiff would he entitled to begin and close the argument equally with the other in their actions against the insurance company. No such ease is presented here. It is true that by consent of the parties the attachment and interplea were tried together. The principal contention, however, was between the plaintiff in the attachment ease and the interpleader. According to the rule laid down in Jones v. Seymour, 95 Ark. 593, the burden of proof was on the-intérpleader and he was therefore entitled to the opening and conclusion of the argument. This holding is in accord with our earlier decisions on the question. Bergman v. Sells, 39 Ark. 97, and Excelsior Mfg. Co. v. Owens, 58 Ark. 556.
The parties here seemed to have gone to trial mainly upon the general issue on the interplea and the burden was upon the appellant as interpleader to prove that he acquired by valid sale and transfer, title to the draft in question.
For the error in not so ruling the judgment must he reversed and the cause remanded for a new trial. | [
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WOOD, J.
Appellant was indicted at the March term, 1917, of the Pike Circuit Court for the crime of seduction, the indictment charging that Will Smedley, ‘ ‘ on the 1st day of April, 1916, being a single and unmarried man, did unlawfully and feloniously obtain carnal knowledge of one Rosa Jackson, a single and unmarried female, by false expressed promise of marriage, ’ ’ etc.
I. The indictment was returned on the 21st of March. Appellant was arrested on that day. The case was called for trial on March 26. Appellant moved for a continuance, setting up that one Mike Hamilton was a material witness in his behalf; that he resided within four or five miles of Murfreesboro, in Pike County; that he had a subpoena issued for him on the morning of the 24th of March, 1917; that he was temporarily absent, but would return in a short time to his home; that if. present he would testify that he had had sexual intercourse with Eosa Jackson two times in January, one time in February and three times in March, of the year 1916, and a number of times since that date. The motion was in due form. The court overruled the motion, and this ruling is made one of the grounds of the motion for a new trial.
(1) The motion discovers that the'absent witness lived within four or five miles of the courthouse. Three days elapsed after the warrant was served on appellant before he asked for a subpoena for this witness. While the motion discloses that he was temporarily away, it-does not show that the witness was beyond the jurisdiction of the court. The burden was upon appellant to show that he had exercised due diligence, and the showing is not sufficient, at least to convince us, that the trial court abused its discretion, that is, that he acted arbitrarily or capriciously, upon the showing made, in overruling appellant’s motion. Lofton et al. v. State, Use, etc., 41 Ark. 153, 155; Jackson v. State, 94 Ark. 169; Morris v. State, 103 Ark. 352 Stripling v. State, 100 Ark. 132.
II. Counsel for appellant next contend that, inasmuch as the indictment alleged that the appellant was a single and unmarried man, and that the prosecutrix, Eosa Jackson, was a single and unmarried female, and that inasmuch as the statute is leveled at the crime of obtaining carnal knowledge of a female by virtue of any feigned expressed promise of marriage, that to sustain the charge it was necessary for the State to prove that the man and the woman involved were single persons, and that there was no such proof.
(2) The statute provides: “Any person who shall be convicted of obtaining carnal knowledge of any female by virtue of any feigned or pretended marriage, or of any false or feigned expressed promise of marriage, shall, on conviction,” etc. Kirby’s Digest, § 2043. “The statute,” says this court in Davis v. State, 95 Ark. 555, 557, “is leveled at the seducer, whether he be a married man or a single man. It was not necessary, therefore, that the indictment should allege that the defendant was a single/ and unmarried man. ’ ’ Such an allegation is in no manner descriptive of the offense, and it therefore may be treated as surplusage, and proof that the alleged seducer was unmarried was not essential to conviction.
(3) Conceding, without deciding, that it was essential for the State to prove that the female was unmarried, there is ample testimony in the record to warrant the conclusion that the prosecutrix was unmarried. The prosecutrix, at the time of the' alleged intercourse, was but a little over sixteen years of age, and she is referred to by appellant’s counsel, throughout her examination as a witness, as “Miss Rosa.” The testimony of the prose-cutrix tends to show that her intercourse with the appellant was the first, act of the kind. The prosecutrix speaks of the appellant’s promise to marry her, and her whole testimony is predicated upon the idea that she was not a married person.
The mother of the prosecutrix testified concerning the association of appellant with the prosecutrix for •nearly a year, visiting her every Sunday. One of the witnesses spoke of the young people associating together, including ‘ ‘ Miss Rosa. ’ ’ And there are references in the • testimony to appellant’s promising to and obtaining a license to marry the prosecutrix.
From all the circumstances the jury were warranted in finding that the prosecutrix was an unmarried person.. Whether or not she was married could be proved by cir-. cumstances. Nichols v. State, 92 Ark. 421; Davis v. State, 95 Ark. 555.
III. The prosecutrix testified that she met Will Smedley in January, 1916, and began having intercourse with him about May, 1916. He promised that if she would have intercourse with him that he would marry her. She did not at first consent, but the next time he visited her, about two weeks after the promise, she yielded and the, act of intercourse took place.
(4) On a charge of seduction, corroboration of the female is required both as to the promise of marriage and. the act of sexual intercourse. Kirby’s Digest, § 2043; Cook v. State, 102 Ark. 363; Nichols v. State, 92 Ark. 421 and cases cited.
(5) Appellant contends that there was no corroboration. The appellant, when asked how many times he had intercourse with Rosa Jackson in 1916, replied: “I never tried to keep up with them. ’ ’ This was sufficient corroboration of the act of intercourse. Wilhite v. State, 84 Ark. 67. Appellant testified that he began going with the prosecutrix in February, 1916, and had kept her company at different times throughout the year. The mother of the prosecutrix testified that appellant kept the company of the prosecutrix every Sunday from February 5 until December 28, 1916. One of the prosecutrix’s relatives testified to the same effect, and also that he had not seen any other boys keeping her company during that time. The prosecutrix’s mother also testified that when she told appellant that he had ruined her daughter through a contract of marriage that appellant replied: “You are mistaken; I know I did; I am going to take her.” Witness replied: “Now is the time.” Appellant turned and came to the clerk’s office and got his license right along with the witness.
Another witness testified that he asked appellant if he promised to marry the girl and appellant answered, “Yes.” This witness further testified that when Mrs. Hathcoek, the mother of the prosecutrix, in his presence, was demanding that appellant should marry the prosecu-trix the appellant said, ‘ ‘ That is what I have been aiming to do.”
This testimony was sufficient corroboration of the prosecutrix of the promise of marriage.
IV. But the appellant contends that the above testimony, tending to show the admissions of appellant as to the sexual intercourse and promise of 'marriage, was obtained under duress, and that the court erred in overruling appellant’s motion to exclude the same.
(6) It was elicited on cross-examination of the mother of the prosecutrix that on the occasion when she met appellant and when she was going with him to the clerk’s office for the purpose of getting a license that she had a pistol in her satchel and had armed herself with the pistol with the intention of looking for Smedley. She stated that her husband, while they were on the way, had called the constable, and that they all walked on together. She brought the pistol because-she didn’t know what she might need it for. He didn’t'know anything about her having the pistol.
The constable testified that he heard Mrs. Hathcock, on that occasion, say to Smedley, “You know what you have got to do.” Smedley replied, “No.” She said, “You have got to go to the courthouse and get your license and marry my girl,” and Smedley replied, “I am not ready, I have got to have some more clothes,” and she said, “Your clothing is better than the shape you left my daughter in, and you have got to go and get your license and marry the girl.” He replied, “I have been aiming to do that. ” The appellant was not under arrest.
The appellant himself testified that on that occasion he told Mrs. Hathcock that if he had to marry the girl he guessed he could do so, because “she said I had to or take the consequences.” He expected her to use the gun she had. He did not see the gun but knew she had one as he had seen one down at the house. He was not scared when she opened the purse, and did not go to the courthouse scared. *
Conceding that the above testimony tended to show conduct on the part of the appellant in the nature of a confession of guilt, the court nevertheless, under this testimony, did not err in holding that what appellant said and did was free and voluntary. The competency of the evidence was primarily for the court to determine, and his finding on the issue has substantial evidence to sustain it. We can not say that the court erred in admitting the evidence. Its weight was for the jury. McLemore v. State, 111 Ark. 457; Brewer v. State, 72 Ark. 145.
(7) Y. On cross-examination the prosecuting attorney, over the objection of appellant, asked appellant the following questions: “Isn’t it a fact that yon left Pike County before this for seducing another girl? Isn’t it a fact yon did seduce another young lady in Pike County and it hung in the courts until it was worn out and during the principal part of the time you were a fugitive from Pike County;” and similar questions. These questions were proper, on cross-examination, as affecting the appellant’s credibility as a witness. Younger v. State, 100 Ark. 324.
(8) VI. The court refused to permit witness J. A. Westfall, on the part of the' appellant, to testify that Mike Hamilton told him that he was in trouble with the prosecutrix and had been intimate with her. Such testimony was pure hearsay and incompetent.
(9) VII. Appellant urges that the cause should be reversed because the court told the jury that if they found beyond a reasonable doubt that appellant obtained carnal knowledge of the prosecutrix by reason of a false promise of marriage, etc., they should convict. Appellant contends that the instruction should have used the words “false express promise of marriage.”
No specific objection was made to the instruction on account of the omission of the word express. Teel v. State, 129 Ark. 182, and cases there cited. Besides, if it was error to omit this word, the error was cured because the court granted appellant’s prayer for instruction in which the jury were told that unless the prosecutrix is corroborated “both as to the act of intercourse and the express promise of marriage, if any, your verdict must be for the defendant. ’ ’ There was no conflict in the instructions.
(10) VIII. The court refused to grant appellant’s prayer for instruction telling the jury, in effect, that if the prosecutrix consented to sexual intercourse, either through passion or curiosity, even though there had been a promise of marriage, their verdict should be for the defendant.
In Taylor v. State, 113 Ark. 520, 527, we said: “But this statute can only be invoked by the female who to the very time of her fall had held her virtue, so to speak, as ‘the immediate jewel of her soul,’ and who was only induced to surrender it through the promise of the man whom she trusted to marry her and solely from a desire to have him keep that promise. The woman who yields her virtue for sexual pleasure and uses the promise of marriage only as a cloak or subterfuge to hide her disgrace is not within the pale of the protection of this particular statute.”
“Curiosity” is defined as “Eager concern to get knowledge of, or a wish to engage the mind with, anything novel, odd, strange or mysterious.” Funk & Wag-nail’s New Standard Dictionary.
While it is generally supposed, at least among men, that the gentler sex are possessed of almost boundless curiosity, yet it has not hitherto been conceived or suggested by any author on criminal law, so far as the writer is aware, that a woman might be prompted to yield her maidenhood and sacrifice her virtue out of mere curiosity. Certainly, therefore, no such issue should be submitted to a jury to determine unless there was some evidence to justify it. In this case there was none, and the instruction in this particular was wholly abstract and well calculated to lead the jury into the realm of specula-: tion as to the motive that prompted this young girl to surrender her virtue to the man she loved, when, according to her testimony, there was only one motive, towit, the express promise of marriage.
There is no error in the record, and the judgment must therefore be affirmed. | [
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McCULLOCH, C. J.
Appellee, W. J. Johnston, instituted this action in the chancery court of Sebastian County, Port Smith District, against the administrator and heirs of W. R. Abbott, deceased, to foreclose a vendor’s lien on a certain tract or lot of real estate in the city of Port Smith, which appellee conveyed to said decedent on February 28, 1907. The action was instituted as aforesaid on December 14, 1915, and the only defense offered is a plea of the statute of non-claims and of the five-years statute of limitations. The note in suit was for the sum of $1,000.00, executed by the decedent, W. R. Abbott, contemporaneously with the execution of the deed to him by appellee, and was due and payable two years after date. Abbott died in June, 1907, leaving a large estate, considerably encumbered, however, with debt, and still being the owner of the lot conveyed to him by appellee. The total consideration for the conveyance to appellee by Abbott was tbe sum of $2,500.00, of which $625.00 was paid in cash, and Abbott executed the note in suit, and also another note for the sum of $875.00, payable one year after date. Letters of administration on the estate of said decedent were duly issued by the probate court of Sebastian County to C. W. Jones, and he proceeded with the administration of the estate.
Appellee did not probate either of the notes against the estate, but the administrator paid the first note without the same having been probated, and also made two interest payments on the note in .suit. The first interest payment was made by Jones on March 15, 1909, when he paid the interest for two years, and the second payment was made by the administrator on June 18, 1910, when he paid $80.00, the interest for one year, up to February 28,1911. It is alleged in the complaint, and the evidence shows, that at the time those interest payments were made the administrator was endeavoring to conserve, as best he could, the interests of the estate of the decedent, and that he requested appellee not to institute proceedings to foreclose the vendor’s lien on the land until the expiration of the period for which the interest was paid, and that appellee acceded to that request and agreed that he would not seek to foreclose his lien until after the period covered by the interest payments. The various payments made by Jones as administrator were reported to the probate court in his annual accounts current, and those accounts were approved by the court. Jones filed with the probate court his final account current as administrator on August 16, 1911, and in that account appears an item among the liabilities of the estate as follows: “W. J. Johnston, lien note, balance due $1,000.00 on note not probated;” and in the list of assets of the estate the lot purchased by the decedent from appellee was described in connection with the statement that “there exists a lien note of $1,000.00” In connection with his account the administrator tendered his resignation, and there is in the present record a copy of the order of the probate court showing the appearance of said administrator and the widow and heirs of said decedent, by their several attorneys, that the widow withdrew her objections previously filed against said account current, and that there being no other objections, the account current was approved by the court, and the resignation of Jones as administrator was accepted, and that S. H. Abbott, the present administrator in succession, was appointed.
It is thus seen that both the statute of non-claims and five years statute of limitations bar appellee’s right of recovery, if applicable under the facts of the present case. Learned counsel for appellee insist that neither are applicable on account of the action of the administrator in making payments on the notes, notwithstanding the fact that the same had not been probated in accordance with the statute, and that by entering into an agreement with appellee for an extension of time, and the conduct of the heirs in consenting to the approval by the probate court of the account current filed by said administrator containing a report of said payments, the statute bar was waived. The Act of IJarch 25,1889 (Kirby’s Digest, § 5399), relates only to limitation of actions to foreclose mortgages or deeds of trust, and has no application to actions to foreclose an equitable lien held by a vendor of real estate. Limitations on actions of the latter class come within other statutes. In the case of Linthicum v. Tapscott, 28 Ark. 267, it was held (quoting from the syllabus) that “a vendor’s lien is a remedy or security, not a right of property, and does not vary the nature of the debt or take it out of the operation of the statute of non-claim, and can not be enforced after the bar of the statute has attached to the debt.” The case of Allen v. Smith, 29 Ark. 74, seems to conflict with the rule announced in the case just cited, for the court there said that in proceedings to foreclose a vendor’s lien it was unnecessary to probate the claim before the commencement of the suit. In the latter case, however, the court was considering, not the bar of the statute of non-claim, but the question of necessity for probating the claim before instituting an action to enforce the lien. It does not appear from the opinion whether or not the time for probating the claim against the estate of decedent had expired, but the court merely held that if the proper affidavit of non-payment was made before the commencement of the suit, it was not essential that the claim should first be allowed by the probate court. The apparent conflict, therefore, disappears upon a careful analysis of the ruling of the court in the two cases. At any rate, the law announced in Linthicum v. Tapscott, supra, is the settled rule in this State, and has been subsequently followed, and the same reasons stated in that case are given for the rule. For instance, in Waddell, Admr. v. Carlock, 41 Ark. 523, Mr. Justice Eakin, speaking for the court, in distinguishing the rule of limitations with respect to suits to foreclose vendor’s liens where the legal title had been conveyed to the vendee, and in cases where the vendor had merely executed a title bond and reserved the legal title as security, said:
“Although the legal title vested in a mortgage, and that retained by a vendor by title bond, are securities for money, and dissolve away on payment; yet they are something more than the equitable lien raised by a court of equity. They, to some extent, give a right in the property itself by virtue of a legal title, which can not be taken from them, until the vendor fulfills his own obligations. They are legal liens, and may outlive the debt. That is, may be enforced after the debt is barred by the statute, but not after it has been satisfied. The possession of the mortgagor, or vendee is consistent with this jus in re of the creditor, and the bar to its enforcement does not arise until the person in possession has, for the statutory period, asserted a right to the land, adverse to the lien, or done acts from which his intention to claim adversely may be implied. * * * The equitable vendor’s lien is of a different nature. It rests upon no legal or contractual right, and is supported by no legal estate. It is the pure creation of the courts of equity, having really no substantial existence until the courts are invoked to declare it, for the purpose of satisfying a debt. They will not raise it to galvanize a corpse, and revive a debt already declared dead by the policy of the law.”
(1) The effect of the rule announced and adhered to by this court is that in suits to foreclose vendor’s liens where the legal title has been conveyed to the vendee, the lien is barred when the debt is barred. That is the rule now in suits to foreclose mortgages as a result of the statute already mentioned, passed to change the rule with respect to such foreclosures.
(2) The first contention is that the act of the administrator in making payments on the note and in entering into an agreement with appellee for an extension of time waived the operation of each of the statutes pleaded. This contention would be sound if the administrator possessed authority to waive the operation of the statute, but it has been decided by this court with respect to both the statute of non-claim and to the general statute of limitations that an administrator has no ,such authority. The court so decided with regard to the waiver of the statute of non-claims in the case of Rhodes v. Cannon, 112 Ark. 6, and as to a waiver of the general statute of limitations in Cox v. Phelps, 65 Ark. 1. There seems to be very little authority on the question of power of administrator to waive the statute of limitations, and there is conflict in the little authority we have on that subject, but this court has taken a position on the question, and we must treat it as settled in this State that an administrator has no authority to waive the operation of the statute of limitations. In the opinion in Cox v. Phelps, supra, it was first pointed out that the basis of the rule that partial payments revive a debt barred by limitations or form a new point from which the statute will begin to run as to debts not then barred, is that the payments are treated as “an admission of the continued existence of the debt and an implied promise to pay the balance.” Then the opinion proceeds to hold that .since the administrator has no authority under the statutes of the State to enter into an express agreement for the waiver of the period of limitations, it follows that an agreement can not be implied from a payment made by him on the debt. The question seems to have been thoroughly considered by the court at that time, and there was a dissenting opinion filed, holding that the payments by the administrator operated as a waiver of the statute and formed a new point for the running of the statute. The doctrine of our decision on the subject is in accord with a statement of the law by Mr. Wood in his work on Limitations (Yol. 1, § 101), where the law on the subject is stated as follows:
“Not only must the debt be identified, and the payment be shown to be a part payment, but * * * It must have been made by the debtor in person, or by some one authorized by him, to make a new promise on his behalf. A part payment, whether made before or after the debt is barred by the statute, does not revive the contract, unless made by the debtor himself, or by some one having authority to make a new promise on his behalf for the residue.”
The question is, therefore, settled against the contention of appellee, and we must hold, following the former decisions, that an administrator has no authority to waive the operation of either of the two statutes pleaded.
There being an entire want of authority on the part of the administrator to deal with the matter in any agreement with appellee with respect to the extension of the debt, a mutual mistake of the two parties to such an agreement would not afford grounds for equitable relief against the operation of the statute, nor would it be sound to hold, as contended by counsel for appellee, that the heirs waived'the operation of. the statute by consenting to the approval by the probate court of the adminis-' trator’s account current, containing the references to the payments on the note and the balance due thereon. The heirs were not parties to the agreement with appellees for extension of time, nor were they connected with it in any way that would bind them. They did not occupy any situation with, relation to appellee which imposed on them the dnty of repudiating the alleged agreement between appellee and the administrator. It is not alleged, or proved, that they even knew that the administrator entered into an agreement with appellee for an extension of the time or a waiver of the statute of non-claim. All that the heirs did was to refrain from filing exceptions to the accounts current and to consent that the final account should he approved by the probate court. We discover nothing whatever in that act which would call for the application of the equitable doctrine of estoppel so as to prevent the heirs from pleading the statute of non-claim, and the statute of limitations.
There is no suggestion in the record of lack of merit in. the claim of appellee except that the enforcement of his lien is barred by the statute of limitations. The statutes on that subject apply with full force to the most meritorious claims, and courts can not refuse to give the statute effect merely because it seems to operate harshly in a case involving an obviously meritorious claim. Our conclusion, therefore, is that the chancellor erred in declaring a lien in appellee’s favor for the amount of the note.
(3) It appears further that the administrator failed to pay the improvement taxes on the lot in question, and that appellee has since his conveyance to the decedent, paid said assessments, amounting in the aggregate to the sum of $137.88, and the chancellor decreed appellee a lien on the lots for that amount. The payments were made by appellee to protect the lien on the property and the fact that his remedy for the recovery on his note is barred does not prevent him from recovering the amount paid out in protection of that lien.
We are of the opinion, therefore, that the chancellor was correct in decreeing a lien for the amount paid out for the improvement taxes, and this is so irrespective of the statutory bar against recovery on the note. The decree is, therefore, reversed, and the cause is remanded with directions to enter a decree dismissing the com plaint as to recovery on the note, but decreeing in favor of appellee for amount paid out by him in discharge of improvement assessments on _ the property. It is so ordered. | [
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WOOD, J.,
(after stating the facts). The appellant contends that the proof shows that Jolly believed in good faith that he was the owner of the timber which he had-cut and manufactured into stave bolts from the appellees ’ land, and that appellant was an innocent purchaser thereof from him; that appellant, at most, would be only liable'for the value of the timber per cord in its original form, and not for the market value per cord of the stave bolts at appellant’s plant. We can not sustain this contention, for a preponderance of the evidence justifies a finding that J. E. Jolly was a wilful trespasser in cutting and removing the timber from the land of the appellees. He testified that he cut the oak timber on the land in controversy; that in reference to the timber he dealt with Henly S. Turner. He did not know whether Turner had a deed or not, but Turner told witness that it was his timber, and he went to working it up. He told the Warren Stave Company that he bought the timber from Turner.
Turner testified that he sold the oak timber on the tract of land to J. E. Jolly. He stated that he purchased it, but refused to reveal the name of the one from whom he claimed to have purchased. He stated that he paid for the timber on the land.
The manager of the appellant testified that his company bought thirty-two cords of stave bolts from J. E. Jolly. He did not know what land the bolts came from. Jolly told him where he got the bolts. He understood from his statement that Jolly had title to the land from which the stave bolts were made. He valued the oak at $2.50 to $3 per cord. The value of the finished product of the stave bolts in 1912 would bring in the market listed and dried from $25 to $30 for oil staves. The wine staves, which were a small proportion, would bring $45 or $50 per thousand pieces.
The testimony of Jolly shows clearly that when he bought this timber from Turner he did not know and made no effort to ascertain whether Turner had any title to it. He simply purchased it on Turner’s statement that it was his timber. He did not know whether Turner had a deed to it or not. While Turner testified that he purchased the timber, he refused to disclose the name of the person from whom he purchased.
One who converts to his own use the timber of another without making any other or further investigation as to the ownership than that discovered by this evidence must be held to be a wilful trespasser. There is no basis in the evidence for an honest belief on the part of Jolly that he was the owner of this timber and had the right to convey the title to the same. Neither he nor Turner had any color of title or shadow of right. Since Turner was unwilling to disclose the source of his title, we must assume that he did so for the reason that he knew that he had no title. If Jolly had exercised any diligence to find out who was the owner of the lands from which he cut and removed the timber he could easily have ascertained that Turner, from whom he claimed to have purchased, had no title. It was at least incumbent upon him to put forth some honest endeavor in that direction before he went upon and cut valuable timber from the lands belonging to the appellees. Under the circumstances Jolly would not be heard to say that he went upon the lands in good faith and was innocent of any wrong doing.
Since Jolly was a wilful trespasser, he acquired no right or interest in the timber cut and removed by him from the lands of the appellees, and, although the appellant may have innocently purchased the timber from Jolly, it acquired no greater right or title than Jolly had. Jolly having no right or title, conveyed none to the appellant. Griffith v. Ayer-Lord Tie Co., 109 Ark. 223. See, also, Foreman v. Holloway & Son, 122 Ark. 341; 2 Cooley on Torts, p. 866.
Jolly being a wilful trespasser in cutting and removing the timber from appellees’ lands, if the suit had been against him he would not have been entitled to any deduction from the market value of the stave bolts on account of labor and expenses in reducing the timber from its original to its present form. He would have had to pay ¿or the value of the timber in the form in which it was found in his hands; and, although appellant innocently assisted him in converting the timber to his own use, it stands in his shoes so far as liability to the appellees is concerned. McKinnis v. Little Rock, Miss. River & Texas Ry. Co., 44 Ark. 210; Central Coal & Coke Co. v. John Henry Shoe Co., 69 Ark. 302; U. S. v. Flint Lumber Co., 87 Ark. 80; Nashville Lumber Co. v. Barefield, 93 Ark. 353.
Without discussing the evidence in detail, it suffices to say that a preponderance thereof sustains the finding of the chancellor to the effect that stave bolts of the character of those in controversy, at the time of the purchase, were worth $12 per cord, and even more, on the market at Warren where appellant’s plant was located, after deducting the cost of transporting the same to such market.
The decree is therefore correct, and it is, in all things, affirmed. | [
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SMITH, J.
Appellee ran a butcher shop in the town of Paris, and on November 11,1916, bought from appellant a hog, to be butchered and sold to his customers. He now says that the hog was sick and diseased, and that he bought it without knowledge of that fact, and sold the meat to his customers, and that he learned its condition only when some of his customers, who had been made sick, complained to him about the meat. He sued for damages, both compensatory and punitive, and recovered compensatory damages in the sum of $23, which was the amount paid for the hog, and punitive damages in the sum of $100.
There was evidence that the hog was not in condition, and appellant says the hog was choked. He applied to a Doctor Weisly for advice, and was told to kill the hog, that if there was only a choke the meat would be all right and that he would find the object which was choking the hog, but that if there was some other trouble he would find the lungs black or spotted, in which event the hog should be burned or destroyed. The man who butchered the hog testified that he found the knuckle of a bone, about the size of a pea, in the windpipe, and that he found spots, the size of a pea, on the lungs. The county health officer testified that the spots found indicated a diseased condition. Appellant undertook to sell the hog to several persons whom he told that it had choked, but none would buy, when finally he sold it to ap-pellee without mentioning the circumstances under which it was killed.
It was shown that appellant killed only the hog in question on the 11th, and that pork bought at appellee’s shop the next day had an offensive odor while being cooked, and four members of one family wlio ate portions of it became ill. Appellant testified that the hog was not diseased except that it was choked, but that if it was, in fact, diseased, he was unaware of that fact when he sold it to appellee.
(1) The appellant requested an instruction which told the jury that, if appellee had sold the hog for more than he paid for it, and had not refunded the money so received, there could be no recovery of the purchase price of the hog. This instruction was properly refused. By section 1701 of Kirby’s Digest, it is made a misdemeanor to knowingly sell unwholesome meat. But, whether knowingly sold or not, if it was, in fact, unwholesome, the sale was without consideration, and there was a breach of the implied warranty that the meat was fit for food, as it had been sold for that purpose. Appellant could not, therefore, refuse to refund the price of the hog because appel-lee’s customers did not also require appellee to refund.
Over appellant’s objection, the court gave the following instruction on the subject of punitive damages :
“No. 4. If you find from the evidence fairly preponderating that defendant sold to plaintiff the diseased meat of a certain diseased hog, without making fully known to plaintiff said diseased condition and the fact that it was so diseased, and further find from the evidence fairly preponderating that said sale was made by defendant maliciously or that defendant at the time knew or had reason to believe that his act in so selling said meat and said hog to plaintiff was about to and would cause plaintiff injury, and so knowing or having reason to believe continued to and did sell the same to plaintiff with a conscious indifference to the consequences, then in that event plaintiff must have a verdict for punitive damages.”
(2) It is insisted that this instruction is not the law, and that it is abstract. We think, however, that it correctly declares the law, and that it is not open to the objection of being abstract. Certainly, if one sells diseased meat without making that fact known to his vendee, and does so maliciously, or with knowledge or reason to be lieve that the sale of the meat would cause injury, and, so knowing, or having reason to so believe, sells the meat with a conscious indifference to the consequences, he should pay some damages as punishment for such conduct. The instruction set out imposed these requirements, and if the jury found the facts to be as there hypothetically stated, the verdict returned was one against which appellant has no right to complain.
The instruction does not appear to be abstract, because the testimony shows that appellant failed to sell the hog to persons to whom he stated that the hog had choked, and that the hog was sold to appellee without any disclosure of facts concerning its condition. It was shown that appellee sustained a loss of customers in his business by the report which gained currency that he had sold diseased meat to his customers. Nothing was found in the hog’s throat which was apparently sufficient to choke it. Appellant himself stated that the object found in the hog’s throat was not apparently sufficient to choke it. And spots were found on the lungs which appellant had been told would indicate disease. These were questions of fact for the jury, which have been resolved against appellant.
It is insisted that the testimony shows that the hog was sold to appellee and one Pearson, who were at the time of its purchase associated together in the butcher business, and inasmuch as Pearson was not made a party to this suit, there was a defect of parties plaintiff. But no such question was raised by the pleadings, or in the trial below, and it can not, therefore, he raised here for the first time. Jones v. Seymour, 95 Ark. 593.
The instructions given submitted the case to the jury in accordance with the views here expressed, and, as we find no prejudicial error in the record, the judgment is affirmed. | [
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WOOD, J.,
(after stating the facts). (1) Appellant contends that there was no evidence to show that the alleged offense was. committed after the passage of the act under which the appellant was indicted and convicted. This contention the Attorney General concedes to be true, and we find upon examination of the record that the confession of error of the Attorney General is well taken. The testimony fails to show the date upon which the sale is alleged to have taken place. There is no testimony to prove that the alleged sale occurred after the passage of the law under which appellant was convicted. The burden was upon the State to show this. Gill v. State, 38 Ark. 524. The act took effect the first of January, 1916. The indictment charges that the sale was in March, 1916, but there is no proof of the allegation. Steel v. State, 77 Ark. 441.
(2) In view of a new trial it is sufficient to say that we find no error in the rulings of the court in giving or refusing instructions. The instructions given conform to the law as already announced by this court in several cases. Williams v. State, 129 Ark. 344; Stuart v. State, 125 Ark. 232; Bobo v. State, 105 Ark. 462, and cases there cited.
The court did not err in refusing appellant’s prayer for instruction No. 1, for the reason that it' was covered by the instructions which the court gave. The prayers for instructions on the part of the appellant were not in correct form and were calculated to mislead the jury.
As one who acts as the intermediary between the purchaser and the seller is a necessary factor, without which the sale could not have been consummated, he is interested in the sale in the sense of the law, whether he had any pecuniary interest or not. But if one who is intermediary between the purchaser and the seller in effecting a sale of liquor acts solely as the agent or messenger of the purchaser, and does not in any manner assist the seller, and has no pecuniary or other interest in the sale, he is not guilty under the statute. In other words, if his interest is solely in the purchase and his efforts are directed solely to buying or aiding in the purchase and not in the sale, he is not guilty, for our statute does not make it unlawful to purchase liquor. Dale v. State, 90 Ark. 579; Fenix v. State, 90 Ark. 589; Whitmore v. State, 72 Ark. 14; Payne v. State, 124 Ark. 20, 24.
To be interested in the sale of liquor in the sense of the statute, is any interest whatever, pecuniary or otherwise, that operates as a motive and induces one to sell or to play a part in bringing about the sale of the prohibited liquors.
The remarks of the court to which objection is urged will not likely be repeated on another trial, and therefore we do not comment upon them.
For the error indicated the judgment is reversed and the cause remanded for a new trial. | [
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McCULLOCH, C. J.
Appellees, who are citizens and landowners of Prairie County, presented their petition to the county court of that county for the establishment of a public road. Notice was duly given of the presentation of the petition, which was heard by the court on February 7,1916, a day of the January term. The court appointed viewers in accordance with the provision of the statutes, and fixed the' day on which they were to view' and lay out the road, and assess damages to the' property owners, and directed the viewers to make report on March 1, to which date the court was adjourned. The viewers made report, which was taken up for consideration on March 2, 1916, and W. H. Rust, one of the appellants, appeared and remonstrated against the establishment of the road. The county court, after hearing the matter, approved the report of the viewers and made the order establishing the road in accordance with the prayer of the petition, and also approved the award of damages made by the viewers to appellant Rust, who thereupon filed his affidavit and bond for appeal to the circuit court. The appeal was granted and perfected, and when the cause came up in the circuit court appellant Rust filed a written remonstrance of numerous other land owners in the locality against establishing the road, and the court proceeded to hear the matter upon the evidence, oral and otherwise, adduced before the court. The finding of the circuit court was in favor of the establishment of the road, as adjudged by the county court. An appeal was taken'to this court in the names .of Rust and the other parties, whose names appear upon the remonstrance.
(1-2) Appellant Rust was the only party properly, before the circuit court remonstrating against the judgment establishing the road. He was the only one who appeared in the county court, and his was the only appeal taken to the circuit court. The appeal of Rust did not give other interested parties the right to join in the circuit court. In fact, the record did not show that the other persons named in the remonstrance were made parties, as the written remonstrance was filed by Rust himself in the circuit court. But, even if those parties had appeared, it was, as before stated, too late for them to get into the controversy as appellants from the order of the county court. If they had any remedy at all it was by application to the circuit court for certiorari to review the proceedings in the county court, and an application to the circuit court for that writ would have brought up for consideration different questions from those involved in this appeal. Certiorari is not a writ of right, but one of discretion and the allowance rests in the discretion of the court, and the writ should be refused “when the party seeking it fails to show that he has proceeded with expedition after discovering that it was necessary to resort to it, especially where great public inconvenience will result from its issuance.” Johnson v. West, 89 Ark. 604
Treating Rust as the only complaining party, we proceed to consider whether or not there is any error in the record of which he can complain. In the first place, it is insisted that the county court was without jurisdiction, and consequently that the judgment establishing the road was void because the court proceeded prematurely in hearing the report of the viewers. The statute does not specifically provide when, or at what term of court, the report of the viewers shall be made. It is provided in the statute that on presentation of the petition the court may appoint the viewers and shall fix the day on which the view and assessment of damages shall be made. Kirby’s Digest, § 2996. The viewers are required by statute to make report, and it is provided that the court “on receiving the reports of the viewers aforesaid, shall cause the same to be read publicly on the second day of the term, and if no legal objections shall be made to said reports, and the court is satisfied that such road, or any part thereof, will be of sufficient importance to the public to canse the damages and the compensation which have been assessed as aforesaid to be paid by the county, and that the amount so assessed is reasonable and just, and the report of the viewers being favorable thereto, the court shall order,” etc. Kirby’s Digest, § 3003.
(3) It appears to be clearly contemplated by the statute that the report of the viewers shall not be considered until the succeeding term of the court after the term at which the viewers are appointed. No other interpretation can reasonably be put upon the language of the statute, for it is stated therein that the report shall be read publicly ‘ ‘ on the second day of the term. ’ ’ The design of the law-makers was to provide a definite time so that complaining property owners might know when to appear, as there is no provision for notice to be given of the filing of the report.
(4) It does not follow, though, that the judgment of the county court is absolutely void because the report of the viewers was heard prematurely. The action of the court, though premature, was not void, as the filing of the original petition for the establishment of the road and giving notice in accordance with the terms of the statute conferred jurisdiction, and the premature consideration of the report of the viewers was merely an error committed in the exercise of jurisdiction. Lonoke County v. Carl-Lee, 98 Ark. 345. The premature entry of a judgment in an adversary proceeding is declared by our statutes to be a clerical misprision, and not affecting the jurisdiction of the court. Kirby’s Digest, § 4430. The statute does not apply to ¡special proceedings of the county court for the establishment of public roads, but the principle is the same as declared by this court in the case just cited.
While the hearing of the report was irregular on account of being premature, the rights of appellant Rust were not prejudiced because he appeared there and resisted the order and took an appeal to the circuit court. He represented no one but himself, and can not complain on the ground that other property owners may have been deprived of the opportunity to be heard on account of the premature consideration of the report.
Therefore, in disposing of the case so far as it concerns appellant Rust, we hold that he has not been prejudiced, and, therefore, the judgment as to him is correct, the other appellants are not properly parties. The evidence was conflicting concerning the public necessity for the opening of the road, but we feel bound by the finding of the circuit judge on that issue.
Judgment affirmed. | [
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HUMPHREYS, J.
Appellee brought suit on April 8, 1916, against appellant in the Johnson Circuit Court to recover $500 damages on account of an alleged breach of contract in refusing to accept 145 tons of Cremo cotton seed meal purchased by appellant from appellee on the 12th day of January, 1916. Appellee alleged that 45 tons were to he delivered on February 1, and 100 tons on March 15 thereafter; that in fulfillment of the contract, appellee shipped two cars of the feed to appellant at Clarksville; that appellant refused to accept same and notified appellee it had no intention of carrying out the contract.
On December 7, by leave of court, appellant filed a substituted answer, denying the material allegations of the complaint.
The cause was tried upon the pleadings, oral evidence and instructions of the court. The jury returned a verdict for $412.50. Judgment was rendered in accordance therewith and an appeal has been prosecuted to this court.
On January 12, 1916, T. B. Young, salesman of ap-pellee, called on Tom Laser, secretary and manager of appellant, and sold appellant one car of Cremo cotton seed meal for immediate delivery and took order No. 7 for 45 tons for delivery on February 1, and order No. 8 for 100 tons for delivery on March 15. Young had no authority to sell for future delivery, so the orders were telephoned over long distance to appellee and by it accepted. Thereupon, appellant wrote appellee as follows
“Clarksville, Ark., Jan. 12, 1916.
“Tennessee Fiber Company, Memphis, Tenn.
“Gentlemen: We gave your Mr. Young an order today for ten cars cotton seed feed meal, like sample, at $24.00 per ton f. o. b. Memphis, shipment within sixty days.
“Will you please rush one car, containing three hundred sacks, to us here immediately, making arrival draft through Bank of Clarksville? Please rush this car without tags as we will tag the sacks here, and in the future, we stall send our tags to be placed on at your plant, as we will want this feed under our own brand.
“Very truly yours,
“Laser Grain Company, By Thos. D. Laser.”
“Please send 5-pound sample by parcel post. We want to remail small samples from here. ’ ’
In further confirmation, appellee wired appellant as follows:
“Memphis, Term., 10:45 a. m., 1-13-16.
“Laser Grain Co., Clarksville, Ark.
“Confirm three cars of Cremo 24 dollars Memphis shipment Feb. first also one hundred tons same price shipment March fifteen sale by Mr. Young.
“Tenn. Fiber Co. 11:35 a.”
As an inducement for making such a large purchase, appellant was given the exclusive sale of said product from Russellville to Ozark, inclusive of both places. The evidence adduced by appellant tended to show that the order taken from Homer Elliott on the same date for one car of the same product was not effective and would not be shipped; that adduced by appellee tended to show that the Elliott shipment depended on whether appellee approved the terms contained in the Elliott order. Ap-pellee confirmed the Elliott order and shipped a car of the product to him. Subsequently, two cars were shipped to appellant and declined because appellee had shipped a car to Elliott, claiming this act an infringement upon its esclusive right of sale between Russellville and Ozark. Salesman Young was sent to interview appellant, and, being unable to prevail on it to take the cars, disposed of one of them in Little Rock for $22.00 per ton. The other was shipped to Van Burén. On February 29 appellee notified appellant that it would not accept the cars on track nor any future shipments, and that the contract was closed for the reason that it had shipped a car to Elliott. The evidence is conflicting as to the market value of the meal on that date or on the dates provided in the contract for shipment. Young, who was in daily touch with the market, testified that the price had depreciated from $24 to $22 per ton. Appellant’s testimony tended to show that it was then worth $24 per ton.
(1) It is insisted that the two canses of action were embraced in the contract, or that the two orders constituted two separate contracts, and hence a fatal variance between the single contract alleged and the contract or contracts proved; and also insisted that if the two orders constituted separate canses of action, the court erred in overruling appellant’s motion to require appellee to paragraph its complaint under Sec. 6092 of Kirby’s Digest. We think the facts, circumstances and conduct of the parties point unerringly to the conclusion that the transaction constituted one contract. The contract was for 145 tons of cotton seed meal to be delivered in two shipments, 45 tons thereof on February 1, and 100 tons on March 15. The letter and telegram pertaining thereto so indicate. Appellant itself treated the alleged breach as a breach of the entire contract. There was no variance between the alleged contract and proof thereof. It was admissible to introduce both order sheets in evidence. Being one cause of action for damages for breach of the entire contract, Sec. 6092 of Kirby’s Digest did not apply. It is only where the complaint alleged separate causes of action that plaintiff can be required to paragraph his complaint.
It is insisted that the court erred in refusing to tell the jury that a confirmation of the Elliott order and shipment to him of a ear of the meal after the confirmation of appellee’s order constituted a breach of the contract on the part of appellee. It is admitted that appellant was given the exclusive sale of the meal from Ozark to Russellville and that after this provision was incorporated in the contract appellee shipped a car of the product to Elliott. There is a conflict in the evidence as to whether the Elliott sale was excepted from the provision of exclusive sale in the contract between appellant and appellee. If excepted from the provision, then the shipping of the car would not constitute a breach of the contract. This was an issue to be determined by the jury and the issue was properly submitted to the jury by the court. The court did not err in refusing to give Instruction No. 5, asked by appellee, touching this point.
(2) The court gave an instruction on its own motion as to the measure of damages and also gave one at the request of appellee upon the same subject. The one given by the court on its own motion is as follows: “If you find for the plaintiff, you will assess his damages at the difference between the market price paid for the meal and the market price of the meal at the time the contract was breached, if you find it was breached by the Laser Grain Company, together with any freight which the Tennessee Fiber Company was required to pay by reason of the breach of the contract.”
The one requested by appellee and given by the court is as follows: “If you find for the plaintiff, the measure of damages would be the difference between what the defendant agreed to pay for the article sold and the price at which plaintiff sold the same, together with such freight charges or bills as the plaintiff was caused to pay by reason of the defendant’s failure to accept said product.”
There is a direct conflict between the measure of damages fixed in these instructions. The instruction given by the court on its own motion is inaccurate and misleading. The words “contract price” should be substituted for “the market price paid for the meal.” The instruction should also limit the damages for freight to the freight paid by appellant on the cars actually shipped to Clarksville and the additional freight necessary to reship the product to a market. With the modifications suggested, the instruction will correctly .define the measure of damages. There is a conflict in the evidence as to the market value of the meal at the time of the alleged breach of contract. This being the case, the giving of conflicting instructions was prejudicial to the rights of appellant.
As the case must be reversed and remanded, we deem it unnecessary to pass upon the remarks of counsel suggested by appellant as grounds for reversal.
We presume upon new trial the attorney will not repeat the remarks.
On account of the error pointed out, the judgment is reversed and the cause remanded for a new trial. | [
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HUMPHREYS, J.
On August 4, 1915, appellee brought ejectment against appellant in the Dardanelle District of Yell Circuit Court to recover a strip of land 65 links wide across the north side of the N. % of the N. W. Sec. 4, T, 5 N., R. 19 W., alleging that she owned the strip of land and that appellant was in the wrongful possession thereof and had collected rent thereon without right for three years next before the commencement of the action.
Appellant answered denying the material allegations of the complaint, and by way of further defense, claimed title by limitation.
The cause was heard by a jury upon the pleadings, oral evidence and instructions of the court, and a verdict returned in favor of appellee for the land and $50.00 for rent. An appeal has been lodged in this court from the judgment rendered thereon.
(1) A motion for new trial does not appear in the abstract filed by appellant. This court is therefore precluded from considering assignments of error with reference to the admission of testimony on account of incompetency or irrelevancy. As originally abstracted no objections were made or exceptions saved to the instructions given on the court’s own motion, nor to his refusal to give instructions asked by appellant. Appellant was permitted to bring objections and exceptions to said instructions into the record by writ of certiorari. The record as amended discloses that the objections and exceptions were in gross except as to a certain unnumbered instruction given by the court. Separate objections were made and exceptions saved to that instruction. The instruction referred to is as follows:
‘ ‘ The burden of proof is usually and always upon the plaintiff to establish his case by a preponderance of the testimony and the burden is on the plaintiff in this case in the whole to establish the correctness of the survey, and I think there is no question about the ownership of the land, but on the question of adverse possession the burden shifts to the defendant and the burden is then on the defendant alone to show his title by adverse possession according to these instructions.”
(2) It is contended that this instruction is erroneous because it violates the well established rule that the burden of the whole case rests upon the plaintiff. The rule cannot be gainsaid, but it does not enforce upon the plaintiff the necessity of proving a negative. In ejectment the burden is upon the plaintiff to establish his title and right of possession incident thereto. In the instant case, appellee was relieved from making proof of her title papers by the following agreement: “It is agreed by all parties that Miss Annie Cowger is the owner of the N. % of the N. W. % of Sec. 4, T. 5 N., R. 19 W., and Mr. Love is the owner of the S. W. Sec. 33, T. 6 N., R. 19 W.” It then became necessary for her to prove by a preponderance of the evidence the exact location of her boundary line. When this burden was discharged she could well afford to rest her case. Another issue, however, was injected into the case by answer of appellant. In substance he said: Notwithstanding you own the strip in question by your title papers and survey, yet I claim it by seven years’ adverse possession. It follows, as night follows day, that it was incumbent upon appellant to establish his possessory title by the burden of proof. This court has frequently said that the burden is on the defendant to sustain his plea of adverse possession. Brown v. Bocquin, 57 Ark. 97; McConnell v. Day, 61 Ark. 464; Calhoun v. Moore, 79 Ark. 109; St. L., I. M. & S. R. Co. v. Berry, 86 Ark. 309.
We think the instruction as^given clearly stated the law. In effect, the instruction placed the burden of the whole case upon appellee, but shifted the burden to appellant to establish his plea of seven years’ adverse possession. The following clause in the instruction — “and I think there is no question about the ownership of the land” manifestly referred to the agreement of parties set out above with reference to the ownership of the respective tracts of land, and was not an expression of opinion by the court upon the merits of the case.
No error appearing in the record of which this court can take cognizance under its rule, the judgment is affirmed. | [
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Terry Crabtree, Judge.
Appellant Rebecca Chandler, a certified residential appraiser, appeals from an order of the Pulaski County Circuit Court affirming an order by the appellee Appraisers Licensing & Certification Board. The Board suspended Chandler’s license for six months, to be followed by a six-month probationary period. The Board also ordered Chandler to pay a civil penalty of $2,000 and complete two remedial courses and examinations. We reverse and remand without reaching the merits of this appeal because the Board’s decision does not contain sufficient findings of fact to allow for properjudicial review.
The Board’s findings can be summarized as follows: (1) Chandler is a licensed residential appraiser; (2) Chandler conducted appraisals for Guaranty Lending, Inc. (Guaranty) on six specific properties between October 2000 and April 2001; (3) the Board received a letter from the Arkansas Securities Department referencing four of the appraisal reports resulting from the Securities Department’s investigation into Guaranty, together with a letter to the Securities Department from another appraiser, Tom Ferstl; (4) the Securities Department indicated that the FBI was requesting the Board to delay its investigation, the FBI authorized the Board to continue its investigation in May 2002 and provided the Board with additional information, and Chandler was notified of the complaint in a letter dated May 31, 2002; (5) the Board received a complaint concerning the appraisal of one of the specified properties. The Board then summarily concluded that Chandler had violated certain rules contained in the Uniform Standards of Professional Appraisal Practice (Standards), but it did not state how Chandler may have violated those rules.
The Administrative Procedures Act requires that a “final decision shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.” Ark. Code Ann. § 25-15-210(b)(2) (Repl. 2002). This court has described a “finding of fact” as:
[A] simple straightforward statement of what happened. A statement of what the Board finds has happened; not a statement that a witness, or witnesses, testified thus and so.... [W]hen the reader is a reviewing court the statement must contain all specific facts relevant to the contested issue or issues so that the court may determine whether the Board has resolved those issues in conformity with the law.
Nesterenko v. Arkansas Bd. of Chiropractic Exam’rs, 76 Ark. App. 561, 566, 69 S.W.3d 459, 461 (2002). Here, the Board does not set out the facts supporting its conclusion that Chandler violated the Standards. The Board’s findings are more of a procedural history rather than what Chandler did to warrant professional discipline.
The long-standing rule is that, when an administrative agency fails to make a finding upon a pertinent issue of fact, the courts do not decide the question in the first instance. The cause is remanded to the agency so that a finding can be made on that issue. Hays v. Batesville Mfg. Co., 251 Ark. 659, 473 S.W.2d 926 (1971); Reddick v. Scott, 217 Ark. 38, 228 S.W.2d 1008 (1950); Alcoholic Beverage Control Bd. v. Hicks, 19 Ark. App. 212, 718 S.W.2d 488 (1986); Lawrence v. Everett, 9 Ark. App. 138, 653 S.W.2d 140 (1983).
Accordingly, we reverse and remand this cause to the circuit court, with directions to remand it to the Board to make findings of fact supporting its decision.
Reversed and Remanded.
Robbins and Griffen, JJ., agree. | [
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John Mauzy Pittman, Chief Judge.
The appellant in this criminal case was charged with sexual indecency with a child, a violation of Ark. Code Ann. § 5-14-110(a)(l) (Supp. 2003). After a jury trial, he was convicted of that offense, fined, and sentenced to imprisonment and community service. On appeal, he argues that his conviction is not supported by substantial evidence because there was no evidence that he “solicited” sexual contact with the victim. We disagree, and we affirm.
The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Heape v. State, 87 Ark. App. 370, 192 S.W.3d 281 (2004). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. A person commits sexual indecency with a child if, being eighteen years old or older, the person solicits another person who is less than fifteen years of age or who is represented to be less than fifteen years of age to engage in sexual intercourse, deviate sexual activity, or sexual contact. Ark. Code Ann. § 5-14-110(a)(l). Appellant admits that he had sexual intercourse with the victim and that their ages meet the statutory requirements for the offense. The issue is simply whether appellant’s conduct constituted “solicitation” of the victim to engage in sexual intercourse, deviate sexual activity, or sexual contact.
In Heape v. State, supra, we adopted a definition of “solicitation” for Ark. Code Ann. § 5-14-110, stating that:
The definitions of the verb “solicit” in Webster’s Third New International Dictionary 2169 (1993) include the following:
3: to make petition to: ENTREAT, IMPORTUNE . . .; esp: to approach with a request or plea (as in selling or begging)
4: to move to action ...
7: to endeavor to obtain by asking or pleading: plead for ...; also to seek eagerly or actively
10: to serve as a temptation ...[.]
The gravamen of the offense set out in Ark. Code Ann. § 5-14-110(a) is the inducement of a child to engage in a sexual act. Compare Gattem v. Gonzales, 412 F.3d 758 (7th Cir. 2005). We do not think that the statute should be read so narrowly as to require that inducement be expressed verbally where there is evidence of unambiguous nonverbal inducement. Here, appellant admitted at trial that he and the victim were alone in the attic of a garage when he pulled the victim’s pants down and had sexual intercourse with her. The victim testified that she did not consent, repeatedly said “no” and attempted to pull her pants back up, but that appellant pinned her arms down by her side. We think that the finder of fact could reasonably conclude that the act of forcibly and persistently pulling a girl’s pants down against her wishes while alone with her in a garage attic is unmistakably importuning her to commit sexual indecency, and we affirm.
Affirmed.
Gladwin and Glover, JJ., agree.
A nonverbal act was held to constitute solicitation in People ex rel. Friedman v. Framer, 208 Misc. 236, 139 N.Y.S.2d 331 (N.Y.Mag.Ct. 1954), where the court held that“[t]he only thing that is necessary is that the means employed for the asking of something, whether by oral or mute conduct,justify the person importuned or implored in treating the request as a serious request that such person be moved to action.” 208 Misc. at 242, 139 N.Y.S.2d at 337. | [
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Sam Bird, Judge.
On August 27, 2003, the Perry County Circuit Court entered a default judgment against appellant Grand Slam Stores, LLC, after Grand Slam failed to file an answer to a third-party complaint filed against it by appellee L&P Builders, Inc. Grand Slam later filed a motion to set aside the default judgment on the ground that it was void due to defective service of process. The trial court denied Grand Slam’s motion and this appeal followed. We hold that service of the third-party complaint on Grand Slam was not properly effected, and we reverse and remand.
On January 21, 2003, Blaylock Heating and Air Conditioning, Inc., filed suit against L&P Builders for breach of contract. On February 28, 2003, L&P Builders filed a third-party complaint against Grand Slam seeking $33,262.53. In an affidavit filed on April 4, 2003, counsel for L&P Builders stated that Grand Slam was served with a certified letter dated February 28, 2003. Attached to the affidavit was a copy of a letter addressed to “Grand Slam Stores LLC,” which stated that a third-party complaint and summons were enclosed. The return receipt was signed by “Missy Johns” and showed a delivery date of March 3, 2003. A check-marked box on the receipt indicated that Missy Johns was the “agent” for Grand Slam.
Grand Slam did not file an answer to the third-party complaint, and the court entered a default judgment against it on August 27, 2003. On July 20, 2004, Grand Slam filed a motion to set aside the default judgment, claiming that it had not been served in the manner required by Rule 4(d)(5) of the Arkansas Rules of Civil Procedure. Specifically, Grand Slam contended that Missy Johns “was not and has never been an officer, partner, member, manager, [or] director” for Grand Slam, and that she “has never been an agent authorized by appointment or by law” to receive service of summons on behalf of Grand Slam.
At the hearing on the motion to set aside the judgment, Ronald Calhoun testified that he owned fifty percent of Grand Slam and that he never had an employee named “Missyjohns.” He also said that he had an employee named “Missy Johnson,” who was the receptionist for Ron Calhoun and Associates, a real estate company. Calhoun said that Johnson answered the phone, but that she was not an officer of Calhoun and Associates and that she had “no connection” with Grand Slam. According to Calhoun, Missy Johnson was twenty-three years old at the time she worked for his company and was there for approximately eight months. Furthermore, Calhoun said that Johnson was not the registered agent for service of process for Grand Slam.
The trial court denied the motion to set aside the default judgment and ordered Grand Slam to pay $27,329.37 to L&P Builders. On October 5, 2004, Grand Slam filed a motion for reconsideration, again claiming that the default judgment was void because service of process had not been properly effected in accordance with Ark. R. Civ. P. 4(d). The trial court also denied this motion.
On appeal, Grand Slam contends that the court erred in denying its motion to set aside the default judgment and its motion for reconsideration because L&P Builders failed to comply with service of process requirements under Rule 4(d) of the Arkansas Rules of Civil Procedure. Rule 4(d) states, in relevant part:
(d) Personal Service Inside the State. A copy of the summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made upon any person designated by statute to receive service or as follows:
(5) Upon a domestic or foreign corporation or upon a partnership, limited liability company, or any unincorporated association subject to suit under a common name, by delivering a copy of the summons and complaint to an officer, partner other than a limited partner, managing or general agent, or any agent authorized by appointment or by law to receive service of summons.
(8)(A)(i) Service of a summons and complaint upon a defendant of any class referred to in paragraphs (1) through (5), and (7) of this subdivision (d) may be made by the plaintiff or an attorney of record for the plaintiff by any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee. The addressee must be a natural person specified by name, and the agent of the addressee must be authorized in accordance with U.S. Postal Service regulations. However, service on the registered agent of a corporation or other organization may be made by certified mail with a return receipt requested.
(ii) Service pursuant to this paragraph (A) shall not be the basis for the entry of a default or judgment by default unless the record contains a return receipt signed by the addressee or the agent of the addressee or a returned envelope, postal document or affidavit by a postal employee reciting or showing refusal of the process by the addressee. If delivery of mailed process is refused, the plaintiff or attorney making such service, promptly upon receipt of such notice of such refusal, shall mail to the defendant by first class mail a copy of the summons and complaint and a notice that despite such refusal the case will proceed and that judgment by default may be rendered against him unless he appears to defend the suit. Any such default or judgment by default may be set aside pursuant to Rule 55 (c) if the addressee demonstrates to the court that the return receipt was signed or delivery was refused by someone other than the addressee or the agent of the addressee.
(Emphasis added.)
The standard of review for denial of a motion to set aside a default judgment is whether the trial court abused its discretion. B&F Eng’g, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992). It has long been recognized in Arkansas that service of process requirements, being in derogation of common law rights, must be strictly construed and compliance with them must be exact. See Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996). Furthermore, Arkansas courts have recognized that judgments by default rendered without valid service are judgments rendered without jurisdiction and are therefore void. See Lawson v. Edmondson, 302 Ark. 46, 786 S.W.2d 823 (1990).
In this case, L&P Builders clearly failed to comply with Ark. R. Civ. P. 4(d)(8). Here, counsel for L&P Builders stated that Grand Slam was served by certified letter dated February 28, 2003, and the letter was addressed to “Grand Slam Stores LLC.” We hold that this does not comply with our service of process requirements under Ark. R. Civ. P. 4(d)(8), which requires that an addressee be a “natural person specified by name.” A “natural person” is a “human being.” See Black’s Law Dictionary 1178 (8th ed. 2004). A limited liability company is clearly not a “natural person” within the meaning of Ark. R. Civ. P. 4(d)(8), and the letter did not name any human being as an addressee. Thus, Grand Slam was not properly served under our rules of civil procedure, and the trial court abused its discretion by failing to grant Grand Slam’s motion to set aside the default judgment and its motion for reconsideration. We therefore reverse and remand for further proceedings.
Reversed and remanded.
Hart and Crabtree, JJ., agree. | [
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Olly Neal, Judge.
This appeal is from a jury verdict awarding appellees Frank Burnett and Dennis Joslin Company 2000, Inc., damages in the sum of $2,500,000 for breach of warranty on a defective product used to seal boats. Appellant Neste Polyester, Inc., raises four points concerning Viper’s amendment of the complaint to conform to the proof, the trial court’s striking of its affirmative defenses, the trial court’s failure to submit the case to the jury on interrogatories, and the trial court’s failure to award a new trial. Finding no error, we affirm.
Viper is a manufacturer of fiberglass recreational boats. Neste manufactures the clear coat Viper used to protect the finish of its boats. From June 1994 until April 1999, Viper purchased all of its clear coat from Neste. In April 1999, Neste informed Viper that all of its clear coat purchased since April 1998 was defective. Viper had manufactured 784 boats using the defective product and, by May 1999, had received twenty-seven complaints. Neste paid for the replacement of these twenty-seven boats. Viper thereafter determined that the only way to remedy the remaining defective boats was to replace them. Neste refused to pay for the replacement of the remaining boats.
On October 23, 2000, Viper filed suit against Neste alleging breach of express and implied warranties, negligence, breach of contract, and fraud. Viper alleged that Neste was liable for the replacement of all 784 boats and that its damages could exceed $10,000,000. In both the complaint and first amended complaint, Viper alleged that the problems with the clear coat threatened to destroy its business reputation and goodwill. Neste denied the allegations.
At a November 25, 2003, pre-trial conference, Viper’s attorney disclosed its expert economist, Robert “jay” Marsh, and announced that Viper was pursing a new approach to damages. That approach was to seek damages for its loss of business and loss of future profits. Neste’s then-attorney, Alfred Angulo, recognized that this announcement changed Viper’s theory of the case and placed Neste on notice that Viper was seeking damages for the loss of its entire business. Angulo did not object to this change in theories, nor did he move for a continuance.
Following the November conference, a scheduling order was entered providing that Viper was to amend its discovery responses so as to provide the substance of Marsh’s opinion by February 5, 2004. Neste was to disclose its expert, together with the substance of its expert’s testimony by March 8, 2004. Neste disclosed its expert, Richard Schwartz, after the deadline in the scheduling order and did not provide Schwartz’s report. The scheduling order also provided that all exhibits and witness lists were to be exchanged by March 16, 2004. All motions, except for motions in limine, were to be filed by May 2, 2004, with all motions in limine filed by May 25, 2004.
Viper moved for partial summary judgment as to liability. After Neste failed to respond to the motion, an order was entered granting Viper summary judgment as to the issue of liability. The issue of damages was to be tried.
Later, Viper timely moved for summary judgment on the issue of damages, alleging that, as a result of the problems with Neste’s clear coat, Viper’s business declined until Viper ceased operations in 2003. The motion was supported by Marsh’s affidavit and report, stating that he had calculated Viper’s economic loss at $6,452,259. This motion was denied.
After the motion for summary judgment as to damages was denied, Neste filed a timely motion in limine seeking to prevent Marsh from testifying at trial because Marsh had no personal knowledge of the matter and because he was addressing a measure of damages that Neste alleged was improper and inapplicable. In an accompanying brief, Neste argued that the proper measure of damages was the difference in the fair market value of the business before and after the event. The court denied the motion.
At trial, Neste also made an oral motion seeking to limit Viper to the damages mentioned in its complaint and amended complaint, arguing that the lost profits discussed were not specifically pled by Viper. The trial court reserved ruling on the issue of the type of damages upon which it was going to instruct the jury and noted that Neste could object to evidence on the different types of damages.
In addition, during trial, Neste filed an answer to Viper’s new claim for special damages, asserting that Viper had not pled the issue of special damages for lost profits, as required by Ark. R. Civ. P. 9(g). The answer also asserted other defenses such as release, limitation of damages pursuant to a clause in the invoices, improper party plaintiff, and failure to state a claim upon which relief can be granted. Viper moved to strike the answer as untimely. The trial court ordered the answer stricken.
Neste sought to have the jury return a verdict on special interrogatories while Viper sought a general verdict. Neste’s proffered instructions were as follows:
3.Do you find that the defective gel clearcoat sold by Neste was the proximate cause of the demise of Viper Boats, Inc.? _YES _NO
4.Do you find the plaintiff is entitled to recover from the defendant lost profits that may have been suffered by Viper Boats, Inc.? _YES _NO
5. What amount of past lost profits, if any, do you determine the defendant should pay to the plaintiff because of the demise of Viper Boats, Inc.? $_
6. What amount of future lost profits, if any, do you determine the defendant should pay to the plaintiff because of the demise of Viper Boats, Inc.? $_
The trial court decided without explanation to submit the case to the jury on a general verdict form. The trial court also instructed the jury that it should consider two elements of damage: the amount of lost profit, or economic loss, to Viper from any decline in sales and the cessation of its business; and the amount of loss in value of Viper’s business assets due to its cessation of business.
The jury returned a general verdict in favor of Viper and awarded damages of $2,500,000. Judgment was entered on the jury’s verdict on June 16, 2004. Neste timely filed a motion for judgment notwithstanding the verdict or a new trial, alleging that Viper failed to present legally sufficient evidence to support the damage award or to show a causal link between Neste’s actions and Viper’s lost profits or demise of its business. Although the motion for judgment notwithstanding the verdict was deemed denied as of July 30, 2004, the trial court entered an order denying the motion on August 4, 2004. This appeal followed.
Neste raises four issues on appeal: (1) that the trial court erred in not requiring Viper to comply with Ark. R. Civ. P. 9(g) and in permitting Viper to present evidence concerning special damages that had not been raised in the pleadings; (2) that the trial court erred in granting Viper’s motion to amend the pleadings to conform to the proof and in striking Neste’s answer to the claim for special damages because the issue of special damages had not been raised by amendment to the complaint; (3) that the trial court erred in overruling Neste’s objection to the general verdict form and refusing Neste’s requested verdict on special interrogatories; (4) that the trial court cumulatively erred by refusing to grant Neste a new trial based on the error in instructing the jury, the jury’s error in assessing the amount of recovery, and the irregularity resulting from Viper’s change in theories without amendment to the complaint.
In its first point, Neste argues that the trial court erred in permitting evidence to be presented concerning Viper’s lost profits because lost profits are special damages which Ark. R. Civ. P. 9(g) requires to be specifically pled and Viper did not comply with that requirement. We disagree.
The parties dispute whether Viper’s lost profits were or were not special damages. However, we need not answer the questions of whether lost profits are special damages or whether Viper’s complaint was sufficient to plead special damages because, assuming that lost profits are special damages, we hold that the parties tried the issue without objection and, thus, the complaint was properly amended to conform to the proof so as to allege special damages. The purpose of requiring special damages to be specifically pled is to avoid surprise at trial. Arkansas La. Gas Co. v. McGaughey Bros., Inc., 250 Ark. 1083, 468 S.W.2d 754 (1971); Arkansas State Highway Comm’n v. Dixon, 247 Ark. 130, 444 S.W.2d 571 (1969). However, if there is no surprise to the defendant, evidence relating to the special damages may be introduced. McGaughey Bros., supra.
We hold that Viper substantially complied with Rule 9(g) because the pleadings were amended to conform to the proof by presenting Marsh’s summary-judgment affidavit and trial testimony. In Harrington v. City of Greenbrier, 262 Ark. 773, 561 S.W.2d 302 (1978), the supreme court assumed, without having to decide, that a plaintiff could assert a new cause of action in his summary-judgment affidavit, without amending his complaint. See Bonds v. Littrell, 247 Ark. 577, 446 S.W.2d 672 (1969); National Sec. Fire & Cas. Co. v. Shaver, 14 Ark. App. 217, 686 S.W.2d 808 (1985); Miller v. Hardwick, 267 Ark. 841, 591 S.W.2d 659 (Ark. App. 1980) (all holding that, while information disclosed during discovery is not a pleading or a defense to a pleading, such information may give rise to amendments to pleadings).
Neste failed to object to Marsh’s testimony at any time on the basis that Viper had failed to specifically plead its lost profits. Neste’s response to Viper’s summary-judgment motion on damages did not indicate that the lost-profits issue was not properly pled. When Neste sought to prohibit Marsh’s trial testimony through a motion in limine, its motion and supporting brief did not raise the issue of the lost profits not being properly pled. Instead, it merely questioned Marsh’s qualifications. It was not until Neste’s oral motion at trial seeking to limit Viper to the damages mentioned in its complaint and amended complaint that the issue of lost profits not being specifically pled by Viper was raised. However, the trial court allowed Marsh to testify and noted that Neste could object to evidence on the different types of damages. The result of the trial court’s ruling was to require Neste to make a specific objection to Marsh’s testimony at trial. See Casteel v. State Farm Mut. Auto. Ins. Co., 66 Ark. App. 220, 989 S.W.2d 547 (1999).
At trial, Neste objected when Marsh was tendered as an expert witness on the basis that he lacked the qualifications to testify as to any issue in the case. The trial court overruled the objection and qualified Marsh as an expert. Later, as Marsh was about to give his opinion on Viper’s lost profits, Neste objected on the basis of “the same objection we made before the court before as to the appropriateness of this testimony and the measure of damages.” The trial court overruled the objection, and Marsh proceed to give his opinion as to Viper’s lost profits. The objection that was raised went to Marsh’s qualifications as an expert and the appropriate measure of damages, i.e., whether the measure of damages is the difference in fair market value, not that the lost profits had not been specifically pled. Therefore, without the objection now being urged on appeal, the trial court could have, under Ark. R. Civ. P. 15(b), properly considered the pleadings as amended to conform to the proof. Moreover, there is no claim of surprise by Neste. In fact, Neste conceded at oral argument that it could not claim surprise, based on Angulo’s statements at the November 2003 pre-trial conference. Permitting the introduction of proof on an issue not raised in the pleadings constitutes an implied consent to trial on that issue. Ison Props., LLC v. Wood, 85 Ark. App. 443, 156 S.W.3d 742 (2004). We will not reverse a trial court’s decision regarding the amendment of pleadings to conform to the evidence in the absence of a manifest abuse of discretion. Id. Here, we cannot say that the trial court abused its discretion in this regard. Therefore, we affirm on this point.
Neste next argues that it was prejudiced because the trial court refused to allow it to submit its affirmative defenses to Viper’s evidence concerning lost profits. As noted above, Viper disclosed that it was seeking lost profits at a November 2003 pretrial hearing. Neste did not object or seek a continuance at that time. Rather, Neste waited until May 6, 2004, to move for a continuance and did not file its affirmative defenses until the day of trial. Any prejudice to Neste comes from its own failure to comply with the trial court’s scheduling order and deadlines and not from any failure by Viper to properly plead that it was seeking lost profits. A trial court’s decision regarding the striking of a pleading will not be reversed in the absence of an abuse of discretion. Ison Props., supra. We cannot say that the trial court abused its discretion by striking Neste’s affirmative defenses first raised on the morning of trial.
The third issue is whether the trial court erred in rejecting Neste’s request to submit the verdict on interrogatories to the jury. It is within the trial court’s discretion whether to submit a case to the jury on a general verdict or on interrogatories. Ark. R. Civ. P. 49(a); Hough v. Continental Leasing Corp., 275 Ark. 340, 630 S.W.2d 19 (1982). The complaining party should show how the trial court abused its discretion in failing to submit the proposed interrogatories. National Sec. Fire & Cas. Co. v. Williams, 16 Ark. App. 182, 698 S.W.2d 811 (1985). The form of the special verdicts submitted to the jury is also within the trial court’s discretion. See Ark. R. Civ. P. 49(b).
The trial court did not abuse its discretion in rejecting Neste’s proffered special interrogatories. “The essential purpose to be served by interrogatories is to test the correctness of a general verdict by eliciting from the jury its assessment of the determinative issues presented by a given controversy in the context of evidence presented at trial.” Cincinnati Riverfront Coliseum, Inc. v. McNulty Co., 504 N.E.2d 415, 418 (Ohio 1986); see also Argo v. Blackshear, 242 Ark. 817, 416 S.W.2d 314 (1967); David Newbern and John Watkins, Arkansas Civil Practice and Procedure § 25-3 (3d ed. 2002). Neste’s proposed interrogatories did not address ultimate or determinative issues. The relevant ultimate or determinative issue is the amount of lost profits Viper suffered due to the defective clear coat. Neste, in effect, sought to have the jury “itemize” those damages according to arbitrary dates. Such itemizations are not determinative and would not test the ultimate verdict in this case regarding the appropriateness of an award of lost profits. UZ Engineered Prods. Co. v. Midwest Motor Supply Co., Inc., 770 N.E.2d 1068 (Ohio App. 2001). Also, the interrogatories submitted omitted some of the elements of damage claimed by Viper. Like jury instructions, special interrogatories should accurately reflect the evidence and the damages claimed. McDaniel Bros. Const. Co. v. Mid-State Const. Co., 252 Ark. 1223, 482 S.W.2d 825 (1972); see also Pineview Farms, Inc. v. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989); Property Owners Improvement Dist. v. Williford, 40 Ark. App. 172, 843 S.W.2d 862 (1992).
The final issue raised by Neste is that it should be awarded a new trial because of the cumulative errors alleged in the first three points. We do not reach the merits of this cumulative-error argument, as Neste failed to make a cumulative-error objection below. The supreme court has previously held that an appellant asserting a cumulative-error argument must show that there were individual objections to the alleged errors and that the cumulative-error objection was made to the trial court and a ruling was obtained. Southern Farm Bureau Cas. Ins. Co. v. Daggett, 354 Ark. 112, 118 S.W.3d 525 (2003); Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998).
Affirmed.
Vaught, J., agrees.
Hart, J., concurs.
The original plaintiff was Viper Boats, Inc. Viper’s board of directors adopted a resolution calling for the execution of an assignment granting Burnett and Dennis Joslin Company 2000, Inc., all ofViper’s right, title, and interest in the lawsuit. Thereupon,Burnett and Dennis Joslin Company 2000, Inc., were substituted as the real parties in interest. For convenience and clarity, we will refer to appellees as Viper.
Suit was originally filed in Baxter County, Viper’s principal place of business, and later transferred to Sebastian County, Neste’s principal place of business.
Neste also filed a third-party complaint against the manufacturers of one of the components of its clear coat. This third-party complaint was later voluntarily dismissed by Neste. | [
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Carleton Harris, Chief Justice.
This is an original action questioning the sufficiency of the ballot title of proposed constitutional amendment No. 51, which bears the popular name, “Trainmen Crew Amendment.” The ballot title for the proposed amendment, and which is under attack, is as follows: “An Amendment Prohibiting Operation of Trains with Unsafe and Inadequate Crews.” Plaintiff contends that the ballot title is defective for the following reasons:
I.
The ballot title of the petition is defective and insufficient in that it does not convey a complete and intelligent idea of the scope and import of the proposed amendment.
II.
The ballot title is misleading in that it conveys a false idea as to the meaning and effect of the proposed amendment.
III.
Tbe ballot title omits the true nature and effect of the proposed amendment and contains partisan coloring.
' The purpose of this amendment is to write into the constitution, provisions substantially similar to Act 116 of the General Assembly of 1907, Act 298 of the General Assembly of 1909, and Act 67 of the General Assembly of 1913. These acts have been generally labeled the “Full Crew Laws.”
This Court has had occasion, in several instances, to lay down rules governing the sufficiency of a ballot title. One such case is that of Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356. There, the Court, quoting from a Massachusetts case, said that “ * * * the ballot title should be complete enough to convey an intelligible idea, and scope and import, of the proposed law, and that it ought to be free from any misleading tendency, whether of amplification, of omission, or of fallacy, and that it must contain no partisan coloring. * * *” Inasmuch as the instant proposed ballot title obviously fails to meet the last requirement (that it must contain no partisan coloring), we deem it unnecessary to enter into a discussion of the sufficiency of the proposed title in other respects.
Let us remember that the voter, getting ready to east his ballot in the polling booth, will see only the popular name, and the title of the proposed amendment. Neither the body of the amendment, nor any of its provisions, appear on the ballot. The popular name herein used, “Trainmen Crew Amendment,” would appear to have no effect upon the voter’s thinking, one way or the other, and certainly it conveys no information as to what the proposal contains. Accordingly, the voter who has not previously read the proposed amendment will derive all of his information from the ballot title, “An Amendment Prohibiting Operation of Trains with Unsafe and Inadequate Crews.” We think it can safely be said that all citizens are against the operation of trains that do not carry sufficient crews to reasonably assure safety. We cannot conceive that anyone would vote the contrary of this proposition, vis, to permit the operation of trains with unsafe and inadequate crews. The amendment itself seeks to declare that to operate trains with inadequate crews, (meaning, of course, a crew less than that provided in the act), “is detrimental to the safety and welfare of the people. * * * ” But there has been no prior determination that this assertion is always true. Actually, this is a fact question, depending upon the circumstances in each case. Such reasoning is in the nature of “begging the question,” which is defined as “founding a conclusion on a basis that needs to be proved as much as the conclusion itself.” Here, the voter is urged to support a measure which provides for a particular crew in the operation of trains, because to operate with a smaller crew is, according to the ballot title, “unsafe and inadequate” — but the “unsafe and inadequate” remains to be proved. As was stated in Bradley v. Hall, 220 Ark. 925, 251 S. W. 2d 470, “In studying his ballot, the voter is not bound by the rule of caveat emptor. He is entitled to form Ms own conclusions, not to have them presented to him ready-made.”
As previously stated, other alleged deficiencies in the proposed' title need not be discussed, since this title so obviously contains strong partisan coloring, and con sequently, fails to meet the test of sufficiency heretofore established by this Court.
Accordingly, plaintiff’s petition for injunction is granted.
The proposed act provides as follows:
Section 1. The practice of operating high speed diesel trains and locomotives over the railroads in this state with inadequate crews creates undue hazards, jeopardizing and imperiling life and property, and is detrimental to the safety and welfare of the people and contrary to the public policy of this state.
Section 2. Any railroad company, officer of court, or any other person or corporation owning or operating any railroad line or lines in this state, whose line or lines are more than one hundred miles in length, engaged in the hauling of passengers, shall equip any of its said passenger trains consisting of two or more ears or more with a crew consisting of not less than an engineer, a fireman, a conductor, a porter, and a flagman or brakeman.
Section 3. Any railroad company, officer of court, or any other person or corporation owning or operating any railroad line or lines in this state, whose line or lines are more than one hundred miles in length, engaged in the hauling of freight, shall equip any of its said freight trains consisting of twenty or more with a crew consisting of not less than an engineer, a fireman, a conductor, a flagman, and two brakemen.
Section 4. Any railroad company or corporation owning or operating any railroad line or lines in this state, whose line or lines are more than one hundred miles in length, where switching, pushing or transferring of cars are made across public crossings within this state shall operate their switch crews with not less than an engineer, a fireman, a foreman and three helpers, regardless of any modern safety device.
There are some differences in the proposed amendment and the provisions of these acts. For instance, Act 298 of 1909, dealing with passenger trains, provides that the act shall apply to all trains with as many as three cars. The proposed amendment, as will be noted in Footnote 1, changes this to trains consisting of two or more cars. Act 116 of 1907, dealing with freight trains, provides for a crew consisting of an engineer, fireman, conductor, and three brakemen. The proposed amendment provides for an engineer, fireman, conductor, a flagman, and two brakemen. Act 116 applies to all railroad companies whose lines are more than fifty miles in length in this state, and where the train shall consist of as many as twenty-five cars. The proposed amendment applies to railroads who operate lines in this state of more than one hundred miles, and where such trains consist of as many as twenty cars. | [
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