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J. Seaborn Holt, Associate Justice.
Properly proceeding under the provisions of our Workmen’s Compensation Statutes (Secs. 81-1301 — 1349, Ark. Stats. 1947), appellant, Carty, was awarded compensation, resulting from an injury, for permanent partial disability to the extent of 30 per cent of his body as a whole. His claim was first heard before a referee of the commission, who, on January 2, 1957, awarded Carty compensation on the basis of permanent partial disability to the extent of 25 per cent of his body as a whole. On appeal the full commission increased the amount of such disability allowed by the referee to 30 per cent. The Sebastian Circuit Court affirmed the action of the full commission and this appeal followed.
For reversal appellant says: “First: Appellant was injured while in the employment of the appellee on the 14th day of September, 1954 — a primary injury, traumatic in nature. (1). The award and opinion of the commission and order of the circuit judge were insufficient, and did not fairly recompense appellant for injury sustained as to healing period, (2). Did not fairly recompense appellant as- to total permanent disability, and/or the per cent thereof. Second: Appellant sus.tained a secondary injury, permanent in nature, which resulted from the use of iodized oil in the form of myelogram administered by the doctors in their efforts to diagnose and operate his injuries* for which he never was treated. That said injuries sustained by the use of iodized oil were never diagnosed and never rated as to disability by the Arkansas 'Workmen’s Compensation Commission nór the circuit court.”
"Since the enactment of our Workmen’s Compensation Law, we have consistently held that we do not try compensation cases here ele 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 Furniture 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.
After a careful review of the testimony presented, we think a fair summation thereof was made by the commission and that its conclusions were based on substantial evidence. The commission’s findings and conclusions contained these recitals: "On September 14, 1954, claimant sustained an accidental injury to his low back, and’in an opinion filed January 2, 1957, by a referee, it was found that claimant’s temporary total disability and/or healing terminated July 17, 1956; that the claimant- has a permanent partial disability of 25 per-cent-'to the body as a whole; that the payment of temporary total disability and permanent partial disability of 25 per cent to the body as a whole has not been controverted by respondents. The referee made an award in keeping with his findings and in addition thereto allowed claimant’s attorney an attorney’s fee of $200 to be deducted from the award.
“Upon review additional evidence was presented, it consisting of the following: testimony of Dr. Hoyt Kirkpatrick, Jr., Holt-Krock Clinic, Fort Smith, Arkansas, who specializes in orthopedics; testimony of Dr. Frank Padberg, Little Rock, who specializes in neurosurgery and who examined and operated on claimant for a herniated disc and who re-examined claimant on May 3, 1957, at the suggestion of this commission; additional testimony of claimant and his wife; reports of Dr. Frank Padberg dated May 4 and 27, 1957; report of Dr. John D. Christian, orthopedist of Little Rock, dated May 11, 1957; x-ray report of Dr. George Regnier dated May 22, 1957.
“We find from a study of the evidence of record presented before the referee that the ‘Statement of the Case’, as set forth ... is a fair statement of such evidence; therefore, in the interest of avoiding repetition, we herewith adopt said statement ás our own.
“Briefly stated, the additional evidence presented before the full commission is substantially to the following effect: Dr. Padberg re-examined claimant on May 3, 1957, at the suggestion of this commission, and after that examination it is his opinion claimant’s permanent partial disability is 25 per cent to the body as a whole, and he finds no evidence of any disability resulting from the myelographic examinations given the claimant. Claimant continues to assert that he is unable to do any work and is 100 per cent disabled, but he also continues to refuse any additional operative procedure. Dr. John D. Christian of the orthopedic firm of Drs. Thompson, Christian and Steele, examined claimant on May 3, 1957, and he concludes his report of May 11, 1957, with the statement that he would estimate claim ant’s permanent partial disability in the neighborhood of 30 per cent to the body as a whole, and he does not feel that any further treatment is indicated, and it is his further opinion that claimant’s healing period ended prior to that time. Dr. George Regnier, radiologist of Little Rock, states in his report of May 22, 1957, that he reviewed films of claimant’s spine made May 13, 1957, July 11, 1955, and December 6, 1954, and there is no evidence of a destructive process in any of the films, nor is there evidence of acute injury and no appreciable change in disc interspace which can be seen in these films, and the sacroilee and hip joints are normal radio-graphically.
“Upon consideration of all of the évidence presented herein, the commission, in partially affirming and partially amending the opinion of the referee, makes the following — Findings — 1. That on September 24, 1954, claimant sustained an accidental injury to his low back that arose out of and during the course of his employment; 2. That on July 17, 1956, claimant’s period of maximum recovery or healing period from the aforesaid injury terminated, leaving him with a 30 per cent permanent partial disability to the body as a whole; 3. That 65 per cent of claimant’s average weekly wage exceeded $25; 4. That the payment of compensation for temporary total disability and for permanent partial disability as found above has not been controverted by respondents. — Conclusions —■ Concisely stated, the questions for decision herein are the duration and extent of disability. When did claimant achieve maximum recovery from his admitted compensable accidental injury to his back? There is some conflict in the evidence as to exactly when claimant reached such a physical state. We believe that there is competent evidence to establish that claimant’s maximum recovery, particularly in view of claimant’s refusal to submit to any further operative procedures, terminated on or before July 17, 1956. We, therefore, affirm the referee’s finding that claimant’s healing period terminated on the foregoing date.
“What is the extent of claimant’s permanent partial disability resulting from instant injury? As opposed to claimant’s assertion that he is unable to do any work, we have the medical opinions of three medical specialists that claimant is able to do certain types of work, and that in their opinions claimant’s permanent partial disability to the body as a whole is from 25 to 30 per cent. One orthopedist and a neurosurgeon expressed the opinion that claimant’s permanent disability is 25 per cent, while one orthopedist states claimant’s disability is about 30 per cent of the body as a whole. There is also other medical opinion on the part of two general practitioners that claimant’s disability is greater than that found by the medical specialists. When consideration is given, however, to the qualifications of the doctors and their opportunities to know claimant’s condition, we believe that the opinions of the specialists should be given more weight than that accorded the general practitioners in this case. At the time the referee made his findings of a 25 per cent permanent partial disability to the body as a whole, he did not have the benefit of the findings of Dr. John D. Christian as set forth in Dr. Christian’s report of May 11, 1957, which is now before the full commission.
“By the terms of this opinion, we, therefore, amend the referee’s finding as to permanent partial disability, and herein find same to be 30 per cent to the body as a whole ...
“Award — It appears that respondents have paid claimant for his periods of temporary total disability and/or temporary partial disability from the date of the injury at least down through July 17, 1956, and there is no dispute about payment of compensation for that period of time; therefore, beginning July 18, 1956, and continuing for a period of 135 weeks, respondents will pay to claimant compensation at the weekly rate of $25 for a 30 per cent permanent partial disability to the body as a whole. Respondents will take credit for any com pensation paid to claimant since July 17, 1956, to apply on his award for permanent partial disability.”
Accordingly the judgment is affirmed. | [
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WOOD, J.,
(after stating the facts). In Bell v. Phillips, 116 Ark. 167, quoting from Kraft v. Smothers, 103 Ark. 269, 272, we said: “The foundation of the improvement was the petition of the owners of real property situated in the proposed district. Under the statute, the extent and character of the improvement as expressed in the ordinance must substantially comply with the terms of the petition upon which it is based.”
We also quoted from Smith v. Improvement Dist., 108 Ark. 141, 144, as follows: “Our statute requires, as a prerequisite to the exercise of the authority conferred upon the city council, that a petition be first filed designating the boundaries of the district so that it maybe easily distinguished. This is for the benefit of the property owners. * * * A special limited jurisdiction is conferred upon the city council to lay off the district as designated by the property owners in the first petition, and the council must conform strictly to the authority conferred upon it.”
In Board of Improvement No. 60 v. Cotter, 71 Ark. 556, we held that, “the filing of the required petition signed by ten resident property owners was mandatory and jurisdictional.” See, also, Whipple v. Tuxworth, 81 Ark. 403; Boles v. Kelley, 90 Ark. 29.
In Voss v. Reyburn, 104 Ark. 298, we held; quoting syllabus, “Where an attempted publication of an ordi nance creating an improvement district omitted two half blocks from the proposed improvement district, the variance is material and destroys the validity of the attempted organization.”
And in McRaven v. Clancy, 115 Ark. 163, we held, quoting syllabus: “In the organization of a local improvement district under Kirby’s Digest, section 5666, a’ certain lot was omitted from the publication, although it was included in the original petition and the ordinance. Held, the statute is mandatory and a proper publication being jurisdictional, the statute must be strictly complied with, and the district held not to be properly organized.”
It would seem from the doctrine of these cases that as the petition for the establishment of the district is jurisdictional, the city council has no authority to establish a district, the boundaries of which are not in conformity with the territory as described and set up in the petition. It is not within the power of the council to amend the petition of the property owners. This the property owners could do themselves and conform their petition by way of description to such property as they might ascertain would meet with the approval of the council and insure the creation of the district in accordance with their wishes. ' But here this was not done, and the ordinance creating the district and all proceedings thereunder are therefore void.
We do not reach the question as to whether or not the lands included in the original petition, but omitted from the ordinance, were subject to assessment for local improvements, and we therefore leave that question where it was under our statute and decisions prior to the lodging of this appeal.
It was for the property owners, and not the council, to determine what property they desired to have included within their improvement district, and the council could not determine that question for them without their consent as expressed in a petition in conformity with the statute. Neither had the chancery court any jurisdiction to determine that question for the property owners.
It follows that the court erred in holding that the ordinance establishing the district- as indicated was valid, and for this error the decree is reversed and the cause remanded with directions to enter a decree granting the appellant the relief prayed for in his complaint. | [
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David M. Glover, Judge.
Appellant,Jane Chitwood, and appellee, Gordon Chitwood, were divorced by decree entered on October 21,1993. They had two children, A.C. and K.C. Appellant subsequently moved with the children to Tulsa, Oklahoma, and visitation problems ensued. In a February 19, 1999 letter to appellant, appellee wrote: “I give up. As per your request, my parental rights are hereby surrendered and child support payments are terminated. You and the children will never see or hear from me again.” For the next five years, appellee did not see the children nor pay support after that date until the current proceedings were initiated. On April 21, 2003, appellant filed a motion for contempt and complaint for money damages in which she sought to have appellee held in contempt and ordered to pay back child support. Appellee counter-petitioned to modify the support order. At the hearing, it was stipulated that the amount of accrued arrearage was $189,226 and that the amount of child support to be paid by appellee to appellant, beginning June 1, 2004, was $4,512 a month. Following the hearing on the matter the trial court found that appellant was prohibited by the doctrine of equitable estoppel from seeking to collect child-support arrearages or to enforce any child-support judgment that had accrued through the date of May 25, 2004. For her sole point of appeal, appellant contends that the trial court erred in finding that appellee proved the elements of equitable estoppel and thus erred in barring her from recovering the child-support arrearage on that basis. We disagree and affirm.
At the hearing in this matter, appellant testified that appellee paid his child support in a timely fashion until January 1999. She stated that on or about February 24, 1999, she received a letter dated February 19, 1999, from appellee, which stated that he was surrendering his parental rights and that child-support payments would be terminated per her request, and further that neither she nor the children would ever see or hear from him again. She explained that she sent the letter to her attorney and that, in return, she received from her attorney “some research regarding Arkansas law as it pertained to voluntary termination of parental rights and release of child-support obligations.” She testified that based upon the legal research that she received, she believed at the time that appellee owed a continuing obligation of child support and that he continued to be entitled to visitation, but that she never told him either of these things. She stated that she changed her tax returns to claim both children as dependents after the child-support payments ceased.
Appellant testified that she did not file a contempt action for child support in 1999 because her children were “emotionally drained” and she felt as if she had to choose between money and her children’s mental well-being. She stated that she borrowed money from the bank to make ends meet.
Appellant acknowledged that on August 24, 2001, she sent a letter to appellee’s parents, and she described her letter as stating that she did not think appellee was serious and that he could show up at any time to visit the children. She told the grandparents that the children could visit with them overnight only if there would be no contact with appellee. She stated that she filed the contempt action in April 2003 primarily for financial reasons to recover child support, but also because the children were older and mature enough to handle a relationship with their father. She stated that she had never refused appellee’s visitation.
Appellant testified that there was a contempt action against her in 1997 and that it was settled by her agreeing not to prevent visitation with appellee and to use her best efforts to facilitate visitation. She stated that she allowed appellee overnight visitation with the children until an incident on December 18, 1998, which occurred in Tulsa, Oklahoma. She explained that appellee came to Tulsa to exercise his visitation for Christmas and that she would not allow the children to go with him. She denied that she discussed with appellee at that time “doing away with visitation and child support.” She acknowledged, however, that during a prior incident in 1997, when appellee was angry because the children’s suitcases were not ready when he came to get them, that she said, “Why don’t you just give them up?” She testified that when she received appellee’s February 1999 letter that began, “Per your request,” she “did not have any idea what he was talking about.” She denied discussing with her attorney, prior to receiving appellee’s letter, whether she and appellee could make a deal whereby appellee agreed not to exercise visitation in exchange for not paying child support.
Appellant stated that both children had problems seeing their father. She said that A.C. had panic attacks and that visiting with his dad made his anxiety worse, “although he had anxiety as a little boy and had continued to have anxiety.” She explained that she had just bought a new house in 1999 and that she was able to make house payments by borrowing money at first and that she then inherited around $350,000. She stated that once most of the inheritance money was depleted, she initiated the action to recover the outstanding child support from appellee. She stated that by the time the action was filed, she did not have enough money to take care of the children. She acknowledged that when that fact was communicated to appellee, he began paying child support again. She also acknowledged that in the opinion letter that she received in 1999 from her attorney, one of the available options that was noted was for appellee “to pay no child support and in return, exercise no visitation.”
With respect to the events of December 1998, appellant testified that around the first of December 1998, she received a letter from appellee in which he stated that he would exercise his Christmas visitation and that he would pick up the children on December 18 for eight days of visitation. She stated that prior to that time, appellee had not exercised overnight visitation with the children for the previous seventeen months and that he had only exercised daytime visitation on limited occasions. She stated that she pleaded with him not to take the children for eight days and nights, but that he told her he would be there to pick them up on Friday for eight days of visitation. She stated that on Friday, December 18, she was driving up to the house with the children in the car when she noticed that appellee was backing out of the driveway. She stated that she continued to drive to a friend’s house and that she and the children went into the friend’s house. She explained that appellee followed them and came to the front door of the house. She stated that he was not allowed in and that she did deny him visitation. She stated that he filed a contempt action against her the following Monday.
Appellee also testified at the hearing in this matter. He explained that following his divorce from appellant, he was never able to exercise visitation with the children without there being some controversy. He stated that those controversies caused him to return to court on occasions between 1994 and 1999. He explained that there was a period of approximately seventeen months prior to December 1998 when he did not exercise overnight visitation with the children. He testified that many times he would attempt to exercise visitation, but for different reasons would be unsuccessful. He stated that sometimes he would drive to Oklahoma and there would be no one at home, and that at other times, appellant would tell him that the children were not feeling well and did not want to come for a visit. He explained that his son, A.C., was being seen by a psychologist for his anxiety and that the doctor had asked that visitation cease for a period until the doctor completed her sessions with A.C. Appellee stated that he was not informed by appellant until December 1998 that the sessions had ended in May 1998, accounting for the approximate seventeen-month period where he exercised limited visitation.
Appellee testified that appellant called him after she received his letter concerning Christmas 1998 visitation and that she wanted to modify visitation from eight days and nights to one day and one night. He said that he told her such a modified arrangement was not acceptable and that she became angry. He testified that she asked him, “Why don’t you give up your visitation, stop paying child support, and leave us alone,” and then she hung up.
Appellee explained that he arrived at appellant’s house on December 18 at five minutes before six o’clock in the evening. He stated that he sat in his car until 11:00 p.m. when he decided that he would leave to use the bathroom, get something to eat, and then come back. He stated that as he was pulling out of the driveway, he saw appellant and the children drive by the house. He said that he followed her car to a friend’s house, which was about three miles away. He explained that he went to the front door and told her that he was there to exercise his visitation, that she told him he was not taking the children, and that there was nothing he could do about it. He stated that he called the police, that they arrived, and that they told him because his papers were from Arkansas, there was nothing they could do. He said that he drove home and had a contempt action filed.
Appellee explained that the contents of the February 17, 1999 order, which was entered by a special judge further hamper ing his visitation, “was the straw that broke the camel’s back.” He stated that he was totally frustrated; that he saw no hope of having a meaningful relationship with his children; and that he wrote the February 1999 letter, beginning “Per your request,” in reference to appellant’s December 1998 phone call. He testified that he thought the February 1999 letter represented a binding agreement and that he had no contact with appellant or the children after that date until this action for child support was initiated. He said that he did not know that child-support arrearage was accruing. He explained that he believed that he was set up to take a fall; that appellee knew everything that was going on; that she just wanted “to play me out until she ran out of her inheritance and then come and hit me for all this money”; and that there was no way that he could go back and get that time with his children.
Appellee testified that he has another daughter from an earlier marriage and that he has a good relationship with her mother. He stated that he has always exercised visitation with her and that he has paid and continues to pay child support and college expenses, even though it is no longer required. He also explained that he continued to provide insurance coverage for A.C. and K.C. after the February 19, 1999 letter because he did not trust appellant to continue to work. He stated that he was not concerned about appellant’s and the children’s monetary condition because he knew that appellant had “inherited an extremely large sum of money from her father.”
Appellant’s former attorney testified by deposition, after appellant waived the attorney-client privilege, that he received a letter from appellee’s attorney dated March 22, 1999, which indicated that appellee and appellant had agreed that appellant would no longer have visitation and would no longer pay child support. He stated that he forwarded the letter to appellant and had conversations with her about the substance of the letter. He explained that an attorney, who worked for him at the time, prepared a research memo concerning whether appellee could relinquish his parental rights and obligations in that fashion and that the attorney drafted an opinion letter to appellant on the same subject. The research memorandum was dated May 21, 1999, and he explained that it was his belief that the opinion letter that was sent to appellant would have followed preparation of the memorandum. He further testified, however, that he recalled discussing with appellant the notion of swapping visitation for money before appellee’s February 19, 1999 letter was received by appellant.
The opinion letter that the attorney wrote to appellant was introduced as an exhibit. It provided in pertinent part:
As we discussed during our telephone conference on Friday, it is my opinion, after reviewing Arkansas law, that an agreement to terminate parental rights in exchange for a waiver of child support would not be enforced by an Arkansas court if the agreement was challenged at a later time. In fact, it is my opinion the agreement would be voided, i.e., held never to have existed. If the agreement is not enforced, your attorney would certainly assert that a judgment for past-due child support should be entered against Dr. Chitwood. However, there is no guarantee that a court would award you the past-due support as I suspect Dr. Chitwood would raise equitable defenses in hopes the court would not enter a judgment against him.
The other option, as you noted, is that you can do nothing. If Dr. Chitwood is not exercising his visitation, that is his problem so long as you are not denying it. Child support payments that he does not make become individual judgments once he does not make the payments. Therefore, you can collect them by garnishment or by obtaining an income withholding order.
A trial court’s ruling on child-support issues is reviewed de novo by this court, and the trial court’s findings are not disturbed unless they are clearly against the preponderance of the evidence. State v. Burger, 80 Ark. App. 119, 92 S.W.3d 64 (2002). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Rigsby v. Rigsby, 356 Ark. 311, 149 S.W.3d 318 (2004). We give due deference to the superior position of the trial court to view and judge the credibility of the witnesses. Id.
Once a child-support payment falls due, it becomes vested and a debt due the payee. Office of Child Support Enforcement v. King, 81 Ark. App. 190, 100 S.W.3d 95 (2003). However, enforcement of child-support judgments are treated the same as enforcement of other judgments, and a child-support judgment is subject to the equitable defenses that apply to all other judgments. Id. If the obligor presents to the court or administrative authority a basis for laches or an equitable-estoppel defense, there may be circumstances under which the court or administrative authority-will decline to permit enforcement of the child-support judgment. Id.
The elements of equitable estoppel are (1) the party to be estopped must know the facts; (2) the party must intend that its conduct shall be acted on or must so act that the party asserting estoppel had a right to believe the other party so intended; (3) the party asserting estoppel must be ignorant of the facts; and (4) the party asserting estoppel must rely on the other party’s conduct to his detriment. Burger, supra.
The trial court specifically noted in its order that the credibility of the witnesses was the crucial factor in deciding this case. The court made the following pertinent findings: 1) that appellant initiated the conversations concerning the agreement that appellee would surrender his parental rights and terminate his child-support payments; 2) that appellant was aware that such an agreement was unenforceable and void as against public policy in Arkansas, but that she intentionally, by her words and especially by her actions, induced appellee to give up his visitation privileges in exchange for her agreement not to seek child support; 3) that appellant had received legal advice on the consequences of her actions; 4) that she intended that her conduct be acted upon and that appellee believed that she so intended; 5) that appellee was ignorant of the facts; 6) that appellee relied upon appellant’s conduct to his detriment. In announcing her decision from the bench, the trial judge further explained that appellee’s detrimental reliance was not monetary, but rather that appellee “let go of five years [of visitation] that never gets made up, five years of time that is just gone, five years of time that nobody gets to recapture.”
We find no clear error with respect to any of the trial court’s findings. First, as noted by the trial court, credibility was a crucial factor in this case, and we give due deference to the trial court’s credibility determinations. Second, we hold that the elements of estoppel were established.
(Í) Appellant knew the facts
Appellant knew that the “agreement” by which appellee gave up his parental rights and stopped making support payments was not enforceable and that the child-support obligations would continue to accrue. The deposition of appellant’s attorney disclosed that he believed he discussed with appellant the notion of swapping visitation for money before the February 19, 1999 letter from appellee, and that he distinctly remembered discussing the February 19, 1999 letter with appellant concerning its validity. Moreover, the opinion letter that was subsequently prepared for appellant explained that under Arkansas law, an agreement to terminate parental rights in exchange for a waiver of child support would not be enforced by the courts and that a judgment for past-due child support would presumably be entered, but cautioned that her ex-husband might raise equitable defenses.
(2) The party must intend that its conduct shall be acted on or must so act that the party asserting estoppel had a right to believe the other party so intended
The trial court clearly believed appellee’s testimony that appellant initiated the conversations by asking appellee to give up his visitation, to stop paying child support, and to leave them alone. The trial court also recognized that after receiving the February 19, 1999 letter from appellee and the opinion letter from her attorneys, appellant did not contact appellee about paying child support or about visitation, and, in fact, wrote to the paternal grandparents two years later, requiring assurances that appellee would not be allowed to visit the children if they went to visit the grandparents. Appellee had every right to believe that appellant intended for her conduct to have the result that it did.
(3) The party asserting estoppel must be ignorant of the facts
Appellee testified that it was his belief that the agreement relinquishing his parental rights and stopping child-support payments was enforceable. His conduct supported that testimony in that he did not see his children nor pay support after the date of the letter until these proceedings began. Moreover, the trial court clearly credited appellee’s testimony that he was not informed by his attorney about the invalidity of the agreement. Consequently, appellee was not factually aware that child support was legally accruing, and he was obviously not aware that appellant had specifically sought legal opinions regarding the validity of the agreement.
(4) The party asserting estoppel must rely on the other party’s conduct to his detriment
Finally, as noted by the trial court, the detriment in this case is not monetary. Rather, it is the amount of time that appellee went without seeing his children, which is time that can never be regained.
In Arkansas Department of Human Services v. Cameron, 36 Ark. App. 105, 818 S.W.2d 591 (1991), which has been overruled to a limited extent under circumstances not applicable in this case, the appellee ex-husband, Richard Cameron, signed a consent to adoption, giving his consent for appellant’s new husband to adopt appellee’s child. Cameron testified that he stopped paying child support when he signed the adoption papers because he believed that signing the consent for adoption had the effect of terminating his parental rights and obligations. He also stopped visitation with his child. However, the adoption was never completed, and he was never informed of that fact. The trial court found that the mother was “’estopped because of her actions into leading this man into thinking there was or was going to be an adoption . . . from collecting the arrearages and support.’” 36 Ark. App. at 107, 818 S.W.2d at 593. Our court affirmed:
Appellee testified that [the mother] contacted him concerning the adoption and wanted him to sign the consent. He said it was his understanding that when he signed he did away with his legal rights and his obligation to pay child support, and because of this belief, he no longer sought to exercise his visitation rights. We believe these circumstances are sufficient to establish the elements of estoppel, and we cannot say that the chancellor’s finding is clearly erroneous.
36 Ark. App. at 109, 818 S.W.2d at 593. The situation presented in Cameron, supra, is similar to that presented here.
In short, the trial court’s findings of fact in the instant case are not clearly erroneous. Those facts satisfy the elements of equitable estoppel. The case law of this state holds that the enforcement of child-support judgments are treated the same as enforcement of other judgments, and that a child-support judgment is subject to the equitable defenses that apply to all other judgments, including equitable estoppel. Our supreme court has defined equitable estoppel as “a judicial remedy by which a party may be precluded by its own act or omission from asserting a right to which it otherwise would have been entitled, or pleading or proving an otherwise important fact.” R.N. v.J.M., 347 Ark. 203, 216, 61 S.W.3d 149, 157 (2001). Appellant had a large source of money available to her during the period that she was not receiving child support from appellee, so the children did not suffer under these circumstances. Moreover, when these proceedings began and appellee learned that the money had dissipated, he immediately began paying child support again. The trial court, which was in the best position to evaluate this situation, invoked the judicial remedy of equitable estoppel, and we find no error in its having done so under the circumstances of this case.
Affirmed.
Pittman, C.J., Robbins, Vaught, and Crabtree, JJ., agree.
Bird, Griffen, Neal, and Baker, JJ., dissent.
See Arkansas Dep’t of Human Servs. v. Robinson, 311 Ark. 133, 842 S.W.2d 47 (1992) (Robinson explains that a court may not do indirectly that which it is direcdy prohibited from doing, and that under RURESA, the Arkansas court could not direcdy determine visitation nor could it be raised as a defense; therefore, supreme court held that the trial court could not indirecdy determine visitation by making payment of child support dependent upon visitation). | [
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Josephine Linker Hart, Judge.
Michael Wrenn was convicted in a Jefferson County jury trial of first-degree domestic battery, kidnapping, and first-degree terroristic threatening for which he received concurrent sentences of240 months, 180 months, and 72 months, respectively, in the Arkansas Department of Correction. Previously, Wrenn’s appellate counsel filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals. However, based upon our review of the record and the law concerning the offense of first-degree domestic battery, we concluded that an argument addressing whether Wrenn was a “family or household member,” as contemplated by the sections of our criminal code dealing with domestic battery and assault, see Ark. Code Ann. § 5-26-301 et seq. (Supp. 2003), would not be wholly frivolous. Wrenn now raises that argument on appeal, asserting that the trial court erred in failing to direct a verdict on the charge of domestic battery in that the State failed to prove that he was a household or family member. Wrenn does not contest his conviction on the other charges, and we affirm those convictions. However, we find merit in his argument concerning the domestic-battery conviction and reverse and dismiss.
Wrenn’s convictions stem from the events of January 30, 2003, when a social encounter with the victim, Goldie Diane Whitaker, devolved into a physical altercation. In the course of the evening, after visiting a night club, Wrenn allegedly wrapped a belt around Ms. Whitaker’s neck and forced her into the van that she had previously been driving with Wrenn as the passenger. She eventually escaped by leaping from the moving vehicle.
Because this appeal only concerns the issue of whether Wrenn was properly convicted under our domestic-battery statute, we will focus on that part of the testimony that relates to Wrenn’s and Whitaker’s status as “family or household members” under our domestic- battery statute. Under Arkansas Code Annotated section 5-26-302 (Supp. 2003), “family or household members” are defined as
(1) Spouses;
(2) Former spouses;
(3) Parents;
(4) Children, including any minors residing in the household;
(5) (A) Persons related by blood within the fourth degree of consanguinity.
(B) Degrees of consanguinity shall be computed pursuant to § 28-9-212;
(6) Persons who presently or in the past have resided or cohabited together; and
(7) Persons who have or have had a child in common.
At Wrenn’s trial, Anita Stennis testified that Wrenn and the victim Goldie Diane Whitaker had dated for four or five months, but she thought that they had “split up.” In her testimony, Whitaker confirmed that her relationship with Wrenn had ended. She stated that they met in July 2002 and would “see each other three or four times a week.” When asked if there were occasions when the two would spend the weekend together, Whitaker denied that they would spend “the whole weekend” but noted that Wrenn would drive to her residence on Sunday morning and attend church services with her and her family. According to Whitaker, in September, Wrenn asked her to marry him, but she told him that she was not ready. However, she claimed that the relationship ended in November 2002, when Wrenn moved to North Carolina.
Whitaker further testified that on or about January 15, 2003, Wrenn called her suggesting that they get back together. He claimed he had an interview at the Pine Bluff Arsenal and would arrive on January 24. Whittaker stated that when she picked him up at the bus terminal on Friday, Wrenn told her that he did not have money for a hotel. She took him to her home, and her mother agreed to “put him up till Monday.” According to Whitaker, Wrenn did not go to the arsenal on Monday or any other day that week. Nonetheless, Wrenn told her that he would leave on Friday. The events in question occurred on Thursday evening.
Whitaker stated that she invited Wrenn to accompany her to the “Y-Not Jazz and Blues” club because “since he was at my house it would be nice to invite him to go.” She testified that on Tuesday, “we had talked that we would just be friends” and that they would not try to go on with their relationship. Whitaker concluded her testimony by confirming that, in the course of her relationship with Wrenn, they had “physical relations together.”
Wrenn moved for a directed verdict, arguing that the State failed to prove cohabitation or that he resided with the victim sufficiently to qualify as a household or family member. The motion was denied, and Wrenn testified on his own behalf. Wrenn confirmed that he and Whitaker had a relationship that lasted from July until he moved to North Carolina in early December and that he intended to return to North Carolina on Friday. Wrenn timely renewed his directed-verdict motion at the close of all the evidence.
On appeal, Wrenn argues the trial court erred in finding that he fit the description of “family or household member” as defined by Arkansas Code Annotated section 5-26-302. He contends that the testimony proved only that he was a short-term guest and that the purpose of his visit was to seek employment. Wrenn argues further that there was no “intent” by him or the victim that he become a family or household member, and therefore his conviction on this count should be reversed and dismissed. We agree.
The record indicates that Wrenn’s relationship with the victim had ended. While it is true that he was staying in the victim’s home, it was uncontroverted that at the time he assaulted the victim, he had already decided to return to his home in North Carolina the next day. Furthermore, while it was true that Wrenn and Whitaker had a sexual relationship in the past, Whitaker made it very clear in her testimony that they had not cohabited. Under these facts, we hold that the State failed to prove that Wrenn was a household member, and therefore, we reverse and dismiss his conviction for first-degree domestic battery.
Affirmed in part; reversed and dismissed in part.
Bird and Crabtree, JJ., agree. | [
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Andree Layton Roaf, Judge.
James E. Nelson was convicted of possession of drug paraphernalia with intent to manufacture methamphetamine and illegal possession of pseudoephe- drine in a jury trial and was sentenced as an habitual offender to fifty years’ imprisonment. On appeal, Nelson argues that (1) the trial court erred in denying his motion to suppress evidence; (2) substantial evidence does not support his convictions; and (3) the trial court erred by allowing the State to introduce his fourteen-year-old prior methamphetamine-related convictions during the guilt phase of his trial pursuant to Ark. R. Evid. 404(b). We agree that the trial court erred in admitting the prior convictions, and reverse and remand.
After being charged, Nelson filed a motion to suppress evidence obtained during a search of the vehicle he was driving. The following was established at the suppression hearing.
On November 4, 2002, Officer Daniel Robbins observed a silver Ford Taurus pull into the Wal-Mart parking lot in the early a.m. hours. One of the occupants went into Wal-Mart for approximately ten minutes. Robbins drove past the vehicle and noticed that it had a cracked windshield. Robbins parked his patrol car across the street from Wal-Mart and observed the car leaving the parking lot at approximately 3:30 a.m. The driver failed to stop at the stop sign as he exited the Wal-Mart parking lot. Robbins testified that the driver’s failure to stop at the stop sign raised his suspicion and that he had planned to at least stop the car and confront the driver about running the stop sign. He also noted during his testimony that a person sitting in a vehicle in a Wal-Mart parking lot at 3:30 a.m. raised his suspicions because he regularly received calls about people going into Wal-Mart to purchase items to manufacture methamphetamine. He admitted, however, that he did not know he would find any such items in Nelson’s car and claimed that he was not searching for methamphetamine. While following the vehicle, Robbins ran the license plate, and the tags did not return to the vehicle; Robbins initiated a traffic stop.
Robbins discovered that Nelson was the driver of the vehicle and that Kurt Stanley was the passenger. There was also a bulldog in the back seat. Robbins asked Nelson for his driver’s license, registration, and proof of car insurance. Robbins testified that Nelson was nervous and that his hands were shaking as he retrieved his driver’s license from his wallet. Nelson could not locate the proof of insurance. At that time, Robbins asked Nelson to step out of the vehicle, arrested him for “no insurance,” placed Nelson in handcuffs, and escorted him to his patrol car. Robbins admitted that although he sometimes arrests for failure to provide proof of insurance, most of the time he only writes a citation. He also admitted that Nelson had told him that the vehicle belonged to his mother, and provided her telephone number. While placing Nelson in the patrol car, Robbins asked whether he had any drugs, weapons, or anything illegal in the vehicle. Nelson said that he did not, and Robbins asked whether Nelson “would care if we took a look.” According to Robbins, Nelson either said, “he didn’t care,” “okay,” or “yes,” but Robbins could not be certain that Nelson used the word “yes.” Robbins stated that he took Nelson’s response as “yes you can search the vehicle.” Robbins stated that it was not possible that Nelson said he did mind if he searched the car. Robbins further stated:
I am not saying that the reason I searched the car was because Mr. Nelson gave me permission to search it. Any time we make an arrest out of a vehicle, whether it be the passenger’s side or the driver’s side — I arrested the driver from the vehicle and I had probable cause to search the scope of his area.
Robbins returned to the vehicle and instructed Stanley to take the dog out of the vehicle and wait until Animal Control could arrive and remove the dog. Officer Christopher Webber waited with Stanley and the dog until Animal Control arrived twenty or thirty minutes later, and the dog was taken away.
After Animal Control left, Robbins and Webber began a search of the vehicle. Behind the driver’s seat, Robbins found a plastic Wal-Mart bag containing a juice bottle with white pills inside, a torn Actifed package, two bottles of Heet, a propane bottle, two Wal-Mart receipts, one dated the same day as the traffic stop and another dated the day before, and twenty-five feet of clear plastic tubing. On the passenger-side visor, he located a Marlboro cigarette box with the lid taped shut. Robbins removed the tape and found more white pills. At that point, Stanley was arrested and was placed in Webber’s patrol car. During the search, Webber found the vehicle’s proof of insurance on the floor mixed in with other papers. After the search, Nelson and Stanley were transported to the police station. No further inventory search was conducted, and the vehicle was locked and left on the Wal-Mart parking lot. Nelson’s mother was called and notified that she could come and retrieve her vehicle.
Nelson testified that he was on his way to visit his fianceé and that he had given Stanley a ride from Rogers to the Farming-ton Exit in Fayetteville. He stated that Stanley wanted to stop by Wal-Mart; that he did not know why Stanley wanted to go to Wal-Mart; and that, until the search, he did not know what was in the Wal-Mart bags. Nelson denied running the stop sign. Nelson said that he was immediately arrested once he told Robbins that he could not locate the insurance papers, even though he had explained that the car belonged to his mother and that he was only borrowing it. He also said that he never gave Robbins consent to search the vehicle and that, when asked whether he would mind if the officers took a look inside his vehicle, he replied, “Sure do.”
In denying the motion to suppress, the trial court noted that probable cause supported the stop because Robbins observed a violation of the traffic laws in his presence. The trial court also found that the search was a proper consent search, crediting the officer’s testimony against Nelson’s as the person most interested in the outcome of the case.
On April 22, 2003, another pretrial hearing was held regarding the admissibility of Nelson’s prior convictions. The State sought permission to introduce prior convictions for possession of methamphetamine, illegal delivery of methamphetamine, and possession of drug paraphernalia. The offenses occurred in 1987, and the convictions were entered on November 18, 1988. The State argued that the prior convictions were independently relevant to show intent, plan, preparation, knowledge, and absence of mistake. Regarding the age of the convictions, the State argued that remoteness of time is merely one factor for the trial court to consider under the 404(b) balancing test and that, in this case, the probative value of the prior convictions was not substantially outweighed by any prejudicial effect, even considering the remoteness of time. Nelson objected to the admission of the prior convictions, arguing that, due to their remoteness, they were not independently relevant and that the prejudicial effect far outweighed any probative value. Nelson argued that the effect of admitting the convictions would be to prove that he had bad character. The trial court ruled that the prior convictions for possession of methamphetamine and for delivery of methamphetamine were admissible to show intent, knowledge, and lack of mistake.
During the trial, Officer Robbins’s testimony was substantially the same as his testimony at the pretrial hearing on the motion to suppress. The contents of the Wal-Mart bag and the Marlboro Ultra Lights cigarette box containing the white pills were admitted into evidence, during his testimony. Robbins testified that those items were associated with manufacturing methamphetamine and that the number of pills found in the car exceeded the legal limit for possession of psuedoephedrine. The police report indicated that there was a total of 497 pills.
The two Wal-Mart receipts were also entered into evidence. One of the receipts showed purchases made at the Rogers Wal-Mart on November 3, 2002, at 11:30 p.m., and the other receipt showed purchases made at the Fayetteville Wal-Mart on November 4, 2002, at 2:40 a.m. The receipt for November 3 showed purchases for paper towels, toilet paper, and light bulbs; however, the receipt did not show a purchase for the juice, and none of the other items from the receipt were found during the search.
Officer Webber’s trial testimony was also similar to his pretrial testimony. He testified that, based on his experience and training, the items recovered during the search can be used to make methamphetamine. He also stated that the items could be considered drug paraphernalia, but he admitted that all of the things found had legitimate uses.
Jeff Bruce, a forensic chemist for the Arkansas State Crime Lab, testified that he received the juice bottle and that it contained two types of pills. He testified that each pill contained sixty milligrams of pseudoephdrine, and that there was a total of 310 pills in the juice container, which amounted to approximately 18.6 grams of psuedoephedrine. Bruce testified that the Marlboro cigarette box also contained two different types of pills. There was a total of 186 sixty-milligram tablets in the cigarette box, which amounted to approximately 11.1 grams of pseudoephedrine. The total amount of pseudoephedrine recovered from the two State’s exhibits was 29.7 grams. According to Bruce’s testimony, pseu-doephedrine is precursor that can be converted into methamphetamine by extraction. He admitted that the ephedrine pills could be used for a sinus cold, but stated that no one would use 29.7 grams at one time to treat a sinus cold.
Detective Mike Henderson testified on behalf of the State about the process used to make methamphetamine from pseu-doephedrine and about the use of the other items found in the car. Henderson explained that Wal-Mart has become active in identifying people who purchase items that may be used to manufacture methamphetamine. As a result, persons seeking to purchase these items either purchase a few and then wait a while before returning to purchase more, or visit more than one Wal-Mart in an effort to escape detection by Wal-Mart’s employees.
Following Henderson’s testimony, the trial court admitted State’s Exhibit Eleven, entitled “Prior Methamphetamine Convictions of Jimmy Nelson” into evidence, and the State rested. Nelson then moved for a directed verdict on both counts, arguing that the State had failed to prove the elements of possession of drug paraphernalia with intent to manufacture and, as to the possession ofpseudoephedrine, the State failed to prove that he possessed the pills. His motion was denied, and Nelson raised an objection to the jury instruction setting out accomplice liability. This motion was also denied.
Florence Morrison testified on Nelson’s behalf. She testified that she was his fiancée and that she was expecting Nelson sometime around 4:30 a.m., that she did not know Kurt Stanley, and that he and Nelson did not have a relationship. Layvon Clark, Nelson’s mother, testified that the Ford Taurus that Nelson was driving on the night of his arrest belongs to her and her boyfriend. She said that she rarely drove the car, and that her boyfriend used it most of the time. She stated that she had loaned the car to several other people in November 2002, including Wayne Beck who, according to Clark, is currently incarcerated for methamphetamine-related crimes. She denied that she owned the items seized during the search of her car.
Nelson testified on his own behalf. He testified that he was familiar with Stanley, but that they were not friends. He said that Stanley had asked for a ride to Fayetteville, and that he agreed to give him a ride because he was planning on visiting his fiancée in Fayetteville the next day. Nelson stated that Stanley had a backpack that was present in his car during their ride to Fayetteville and that it contained Stanley’s tools and a propane tank that he carried around with him. The backpack was admitted into evidence during Nelson’s testimony. Nelson stated that, when he picked Stanley up in Rogers, Stanley said that he needed to go to Wal-Mart. Nelson testified that he did not enter the store with Stanley and that he did not know what Stanley purchased. Nelson said that, when Stanley returned to the car from the Wal-Mart in Rogers, he had four or five Wal-Mart bags and that he just threw them on the back-seat floorboard. During this testimony, counsel for Nelson showed him a check apparently written to the Rogers Wal-Mart for the items that were identified on the receipt from that location. Nelson testified that the check did not belong to him and that he did not write the check.
When they arrived in Fayetteville, Stanley told Nelson that he was not able to get something that he needed from the Rogers Wal-Mart, and Nelson took him to the Wal-Mart in Fayetteville. Nelson testified that he sat in the car while Stanley went into the store and that he did not know what Stanley had purchased. Nelson said that as the two were leaving Wal-Mart, he was pulled over by the police. Nelson said that, until the police found the juice container with the pills and the other items found in the car, he had never seen them before, and that the items did not belong to him. On direct examination, Nelson admitted that he had pled guilty to three charges involving methamphetamine in 1988 and was sentenced for those crimes.
After Nelson rested, he renewed his directed-verdict motions, which were denied, and the State recalled Officer Robbins, who testified that he had not seen the backpack that was admitted into evidence during Nelson’s testimony on the night he searched the vehicle. He also stated that he did not find several Wal-Mart bags and that he did not find any paper towels, toilet paper, dish soap, or any of those items that were on the Rogers Wal-Mart receipt in the car. Following this testimony, Nelson renewed his directed-verdict motions, which were again denied. The jury returned a guilty verdict on both counts, and Nelson appeals.
On appeal, Nelson challenges the sufficiency of the evidence supporting his convictions. Although he raises these arguments as his second point on appeal, preservation of Nelson’s freedom from double jeopardy requires us to examine his sufficiency arguments before addressing trial errors. Brown v. State, 74 Ark. App. 281, 47 S.W.3d 314 (2001). A motion for a directed verdict is a challenge to the sufficiency of the evidence. Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003). On appeal from a 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. 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. Id. Only the evidence supporting the guilty verdict need be considered, and the evidence is viewed in the light most favorable to the State. Id. It is well-settled that matters of credibility are within the sound province of the jury and will not be disturbed on appeal. Johnson v. State, 71 Ark. App. 58, 25 S.W.3d 445 (2000). Further, it is for the jury to resolve matters of inconsistencies in a witness’s testimony. Id.
The record and abstract show that Nelson failed to make a proper directed-verdict motion. Arkansas Rules of Criminal Procedure 33.1(a) and (c) (2004) govern the procedure for challenging the sufficiency of the evidence at a jury trial. Rule 33.1(a) requires that the motion for directed verdict shall state the specific grounds therefor, and Rule 33.1(c) provides that a motion must specify the respect in which the evidence is deficient.
Moreover, an appellant must make a specific objection that apprises the trial court of his current argument and may not change the argument on appeal. Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997). Absent such a specific objection informing the trial court of the nature of the error alleged on appeal, this court will not reverse. Id. Furthermore, general objections are not sufficient to apprise the trial court of the specific deficiency, and therefore, are not sufficient to preserve an issue on appeal. Ashlock v. State, 64 Ark. App. 253, 983 S.W.2d 448 (1998). Finally, this court will not consider arguments raised for the first time on appeal. Simmons v. State, 90 Ark. App. 273, 205 S.W.3d 194 (2005).
In his motion made at the close of the State’s case, Nelson made only a general directed-verdict motion on the charge of possession of drug paraphernalia with intent to manufacture. Nelson stated “the State has not met the burden of the elements of that offense.” On appeal, he argues in essence that because all of the items found had legitimate uses and because there was no methamphetamine residue or instructions for making the drug found, the conviction was based upon speculation and conjecture. Flowever, the general motion made at trial was insufficient to apprise the trial court of any alleged deficiencies of the State’s case, and we cannot address the merits of this argument on appeal. Ashlock, supra. Regarding the possession of pseudoephedrine charge, Nelson’s motion merely stated that the State failed to prove “that Jimmy Nelson possessed those pills.” Again, this general motion does not apprise the trial court of a specific deficiency. Id. On appeal, Nelson argues that the State failed to show constructive possession or accomplice liability. These specific arguments were not made to the trial court, and we thus do not consider them. Simmons, supra.
Nelson also argues that the trial court erred in denying his motion to suppress the evidence found in his car because the search violated his right to be free from unreasonable searches and seizures pursuant to the Fourth and Fourteenth Amendments to the United States Constitution and Article 2 § 15 of the Arkansas Constitution.
When reviewing the trial court’s denial of a motion to suppress, this court makes an independent determination based on the totality of the circumstances. Lancaster v. State, 81 Ark. App. 427, 105 S.W.3d 365 (2003). The appellate court will reverse a denial of a motion to suppress only if the trial court’s ruling was clearly against the preponderance of the evidence. Id.
Nelson argues that the trial court erred in not finding that his arrest was pretextual and in failing to suppress the evidence obtained as a result of the pretextual arrest. In Arkansas v. Sullivan, 522 U.S. 769 (2001) (Sullivan I), the Arkansas Supreme Court had affirmed the suppression of evidence obtained as a result of pretextual arrest, rejected the State’s argument that the holding in Whren v. United States, 517 U.S. 806 (1996) makes the “ulterior motives of police officers irrelevant so long as there is probable cause for the traffic stop,” and denied the State’s petition for rehearing. The Supreme Court accepted the State’s petition for a writ of certiorari. Id.
The Supreme Court held that the Arkansas Supreme Court’s decision was contrary to controlling precedent and reversed and remanded. The Supreme Court stated that its decision in Whren makes it clear that it will not entertain Fourth Amendment challenges based upon the subjective motivations of the officers. Id. The Court noted its decision in United States v. Robinson, 414 U.S. 218 (1973) wherein it stated, “a traffic-violation arrest. . . [will] not be rendered invalid by the fact that it was ‘a mere pretext for a narcotic search.’ ” Id.
Accordingly, Nelson’s challenge to his pretextual arrest under the Fourth and Fourteenth Amendments to the United States Constitution is without merit. Here, Robbins testified that he stopped Nelson because he ran a stop sign while leaving the Wal-Mart parking lot. Further, Nelson was unable to locate his proof of insurance when asked to do so, and was arrested for lack of proof of insurance. As stated in Robinson, supra, and reiterated in Sullivan I, supra, Nelson’s traffic-violation arrest will not be invalidated under the federal Constitution by the fact that it was a mere pretext for a narcotics search. Sullivan I, supra.
Nelson also refers to Article 2 § 15 of the Arkansas Constitution in the caption of his suppression argument. In State v. Sullivan, 348 Ark. 647, 74 S.W.3d 215 (2002) (Sullivan II), on remand from the Supreme Court, our supreme court determined that, under Article 2 § 15 of the Arkansas Constitution, pretextual stops are unconstitutional. The supreme court noted that there is no longer a pretext inquiry under federal law, but concluded that it could interpret the Arkansas Constitution more broadly than the federal court interprets the federal constitution. Id. However, Nelson did not raise the issue of the Arkansas Constitutional protection to the trial court. In his motion to suppress, Nelson referenced only the Fourth and Fourteenth Amendments to the United States Constitution and the “Arkansas Rules of Criminal Procedure.”
On appeal, he now contends that the search was not authorized under the Arkansas Rules of Criminal Procedure and was “therefore in violation of [Nelson’s] State Constitutional rights.” Nelson cites to Ark. R. Crim. P. 12.1 and 12.4 concerning warrantless searches of a person or vehicle incident to lawful arrest, but makes no argument regarding the Arkansas Constitution. However, the trial court found that Nelson consented to the search after a valid, custodial arrest, and did not rely upon the rules cited by Nelson. Although the officer also testified that he believed that he had authority to search the vehicle incident to arrest, he testified unequivocally that it was not possible that Nelson objected to the search. Here, the testimony of the officer and Nelson was in conflict, and the trial court determined that Officer Robbins was more credible than Nelson on the issue of whether consent was given. Conflicts in testimony are for the trial judge to resolve, and the judge was not required to believe any witness’s testimony, especially that of the accused, since he has the most interest in the outcome of the proceedings. Sanders v. State, 76 Ark. App. 104, 61 S.W.3d 871 (2001).
For his final point on appeal, Nelson argues that the trial court erred when it permitted the State to introduce his prior convictions from 1988 in its case in chief. The general rule is that evidence of other crimes by the accused, not charged in the indictment or information and not a part of the same transaction, is not admissible at the trial of the accused. Smith v. State, 351 Ark. 468, 95 S.W.3d 801 (2003). It is axiomatic that evidence of prior misconduct is not admissible to show that the person on trial is a bad person and is therefore more likely to have committed the act in question. Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994).
However, pursuant to Arkansas Rule of Evidence 404(b), evidence of other crimes may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, and identity, or absence of mistake or accident. Smith, supra; Ark. R. Evid. 404(b) (2004). To be admissible under Ark. R. Evid. 404(b), the evidence must be independently relevant to the issue at hand, meaning that the evidence must tend to prove some material point rather than merely to prove that the accused is a criminal. Smith, supra. Then the evidence may be admissible with a proper cautionary instruction by the trial court to the jury. Id. Once it has been established that the evidence has independent relevance, the inquiry does not end. The trial court must then perform the balancing test required pursuant to Arkansas Rule of Evidence 403. “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Ark. R. Evid. 403 (2004). That is, the probative value of the evidence must not be outweighed by the danger of unfair prejudice. The trial court has broad discretion in deciding evidentiary issues and those decisions will not be reversed absent an abuse of discretion. Smith, supra.
In Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976), the appellant was convicted of possession with intent to deliver heroin. The information alleged that the offense occurred on January 10, 1974. Id. On appeal, the appellant argued that the trial court had erred in admitting testimony that he participated in marijuana sales on November 22, 1971; May 3, 1972; and December 20, 1973, because the first two were too remote in time from the date he was alleged to have committed the crime charged. Id. The supreme court stated, “The matter of remoteness is addressed to the sound judicial discretion of the trial judge, which will be interfered with by a reviewing court only when it is clear that the questioned evidence has no connection with any issue in the case.” Id. at 514, 534 S.W.2d at 234. See also Holloway v. State, 293 Ark. 438, 732 S.W.2d 796 (1987) (upholding admission of prior bad acts that had occurred eleven months prior); Lincoln v. State, 12 Ark. App. 46, 670 S.W.2d 819 (1985) (upholding admission of prior bad acts that had occurred one year earlier).
We can find no relevant Arkansas case involving admission of prior convictions after a lapse of fourteen years as occurred in this case, notwithstanding the inapposite Arkansas case cited and relied upon by the dissent. And, we are neither persuaded nor barred by the other precedent put forward in the dissent. Unlike Ark. R. Evid. 609, which involves the use of prior convictions for impeachment, Ark. R. Evid. 404(b) does not have a ten-year limit on the admission of such convictions. However, the underlying rationale behind the exclusion of such old convictions must also apply to Rule 404(b). While it is true that the admission of remote convictions has been left to the sound discretion of the trial court, see Cary, supra, since the adoption of Rule 404(b) our appellate courts have held that remoteness is a factor to be considered when determining the probative value of evidence of a prior crime. Hernandez v. State, 331 Ark. 301, 962 S.W.2d 756 (1998) (holding that two years was not too remote). In this instance a fourteen-year lapse is so remote that the evidence is rendered significantly less probative, and the danger of unfair prejudice correspondingly outweighs any probative value. Here, the State relied on the old convictions to bolster a weak case, without regard to the significant lapse in time.
Moreover, although the 1987 offenses involved possession and delivery of methamphetamine, the 2002 charges were related to possession of pseudoephedrine and possession of paraphernalia with intent to manufacture. In order for evidence of prior bad acts to be relevant, the prior acts must be similar to the offense with which the defendant is charged .Johnson v. State, 333 Ark. 673, 972 S.W.2d 935 (1998). The 2002 offenses are different in nature, as they are related to the actual manufacture, further lessening the probative value of the earlier convictions. We do not agree with the State’s assertion that Nelson’s prior convictions for possession and delivery of methamphetamine were necessarily probative of his intent to manufacture the drug. In sum, we agree that the prior convictions were improperly admitted during the guilt phase of Nelson’s trial, and reverse and remand for new trial.
Reversed and Remanded.
Glover, Neal and Baker, JJ., agree.
Vaught and Crabtree, JJ., dissent.
Brenk p. State, 311 Ark. 579, 847 S.W.2d 1 (1993), involved the admission of testimony about threats made to appellant’s ex-wife “in the late 1970s and early 1980s” to kill her under circumstances similar to the death of the appellant’s current wife in 1990, which the supreme court characterized as having been made “several years earlier.” However, Brenk did not involve the remoteness of the prior acts and contained no discussions whatsoever of this issue. Moreover, the Brenk court relied upon Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), which involved more contemporaneous acts and likewise contained no discussion whatsoever on the issue of remoteness of the prior acts. | [
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Paul Ward, Associate Justice.
Several issues are raised by this appeal, among which are the effect and extent of the notice of appeal and what constitutes contempt of court in a child maintenance proceeding.
General Fact Situation. Appellant, Carlos Rimmer, and appellee, Lillian Rimmer, were divorced by a decree of the Pulaski Chancery Court, 2nd Division, on August 8, 1956. At the time the parties had two children. One was an adult and the other, a son named Ralph, was 17 years of age. This litigation stems from efforts to require appellant to provide for the maintenance and education of Ralph. The only reference to Ralph in the divorce decree is the following: “That by agreement of the parties, adjudication of the custody of Ralph Rimmer is not to be considered herein. ’ ’ Following the divorce decree several orders were made at different times by the same court that rendered the decree. All of these orders, some of which were made after the presentation of testimony, either directly or indirectly bear upon the issues raised on this appeal.
On August 7, 1956 appellant was ordered to be present on August 13, 1956 and show cause why he should not be held in contempt “by reason of violation of its order as to attorney fee, court costs, and support for dependent heretofore rendered on the 14th day of May, 1956.” No hearing was held on the specified date.
On August 22, 1956, appellant was ordered to be present on September 4,1956 for the same purpose above mentioned. Again no hearing shown.
On September 10, 1957 the court entered an order which in substance states: Ralph is a student in A. & M. College at Monticello; appellant is able to contribute the sum of $85 per month for Ralph’s maintenance and education, and; the court retains jurisdiction over the parties regarding Ralph. Then appellant was ordered to make payment. It is not shown that appellant had notice of or was present when the above order was made.
Appellant filed a Motion on October 7, 1957, pointing out: The language in the original decree with reference to Ralph’s custody; that the order of September 10, 1957 was not based on any written pleading or petition by appellee; that he had no notice, except a copy of the said order; that neither party was now a resident of Pulaski County, and; that, therefore, the court had no jurisdiction and should revoke its former order.
On October 29,1957 a hearing was held on the above motion and also (as stated by the court) on the oral petition of appellee and Ralph for maintenance, at which all three parties were present and testified. The court over-ruled appellant’s motion to dismiss, and then found: Ralph has been attending A. & M. College since the first of September, 1957; appellant is gainfully employed and should be compelled to aid Ralph financially while in college; appellant has already paid $65 for said purpose; Ralph is a semi-skilled workman and is able to obtain employment at the school and contribute to his own support, and that Ralph’s grades indicate he should drop the course in Chemistry. In accordance with the above findings the court, under date of November 26, 1957, ordered appellant to contribute the sum of $12.50 each week for the support of Ralph while in school and to pay $140 due the school, and also ordered Ralph to secure employment at the school and to drop the course in Chemistry.
On January 29, 1958 the court entered an order, in which it was stated appellee orally requested a citation for appellant, requiring appellant to appear in court on February 4, 1958 and show cause why he should not be held in contempt of court for failure to comply with the order dated November 26, 1957, and provided for notice to be given appellant by registered mail.
The hearing on the above was apparently held on February 10, 1958, although the order based thereon was dated February 26, 1958. At the hearing all parties were again present and testimony was taken. The court found appellant in contempt of court for failure to comply with the order dated November 26, 1957. Appellant was ordered confined in jail, pending further orders, unless “on or before the 11th day of March, (he) pay all arrearage occurring under the order of November 26, 1957.”
Notice of Appeal. On March 10,1958 appellant gave notice of appeal “to the Supreme Court of Arkansas, from orders and judgments of this court rendered and entered herein on September 10, 1957, November 26, 1957, and February 11, 1958.”
Appellant urges five grounds for a reversal but, in view of the conclusion we hereafter reach, we deem it unnecessary to discuss separately and fully each of these points.
We do not agree with appellant that the trial court lacked jurisdiction to issue the order on November 26, 1957, which required him to make certain payments for the support and education of his son. In this connection it suffices to say appellant entered his appearance by testifying at the hearing. The court already had jurisdiction of the subject matter by virtue of the 1956 divorce proceedings which appellant himself instigated.
The support decree made on November 26, 1957, was a final order from which appellant could have appealed if he had chosen to do so. His notice of appeal given on March 10, 1958 was long after the expiration of the 30 days allowed for such notice under Act 555 of 1953, consequently the order cannot be challenged on this appeal.
However appellant’s notice of appeal from the contempt order made on February 10, 1958 was timely given, and gives us the right to review not only that order but all proceedings and hearings on which the order was founded. See Harrison v. Terry Dairy Products, Inc., 225 Ark. 953 (page 957), 287 S. W. 2d 473.
In the order of February 10, 1958, the trial court adjudged appellant in contempt of court for failure to comply with its order of November 26, 1957, and also ordered him to be confined in jail if he failed within 30 days to “pay all arrearage occurring under” said order.
We are fully cognizant of the inherent power of courts to punish, even by confinement, for willful disobedience to their orders. However a careful review of the pertinent parts of the record in this case leads us to conclude that the contempt order is not supported by the weight of the evidence. Our reasons for this conclusion are set out below.
In the recent case of Griffith v. Griffith, 225 Ark. 487, 283 S. W. 2d 340, the court, in this connection said: “Imprisonment for contempt for failure to pay alimony may be imposed only in those cases where it appears that the defendant was able to pay but willfully and stubbornly refused to do so.” (emphasis ours.) In the same case it was further stated: “Imprisonment in such a case is only justified on the ground of willful disobedience to the orders of the court; and, so soon as it is made to appear that the defendant is unable to comply with the orders of the court, he should be discharged.” Considering the case before us de novo, as we do, we feel the weight of the evidence fails to show that appellant willfully refused to comply with the court’s order. In fact the evidence indicates that appellant had substantially complied with the court’s order.
Appellant is a carpenter with no substantial means. It is undisputed that he was out of work when the order was made and had been for several weeks previously although he said he had sought employment. Ralph, who was 19 years old, and had previously been gainfully employed, entered school at Montieello A. & M. College in the fall of 1957. The record is that he made very poor grades in school, and that he had a car for his own personal use.
Against this background the court, on November 26, 1957, ordered appellant to pay $12.50 per week for Ralph’s maintenance and also to pay $140 due the college. The court at the same time ordered Ralph to drop the course in chemistry and to get a part time job at the school.
At the contempt hearing it was revealed that Ralph had not dropped the chemistry course and that he was not working although a job was available. It was further revealed that appellant had made three payments of $50 each for Ralph’s support, and he had made arrangements, satisfactory to the college, to pay the $140. It seems that the only deviation from a strict compliance with the court’s order was that the college only applied $42 per month (instead of $50) for Ralph’s support, and applied $8 per month to the retirement of the $140. It was explained by the college that it did not know the entire $50 per month was to go to Ralph, and it was not shown that appellant directed the application of payment.
Under the above facts and circumstances we think the weight of the evidence fails to sustain the finding that appellant willfully refused to obey the November order of the court. Therefore the order committing appellant to jail must be reversed.
We point out that nothing we have said relieves appellant from the duty of making the payments imposed by the November order of the trial court when he is able to do so. We leave it to the trial court to decide whether the three $8 payments above mentioned (applied to the college debt) are still a charge against appellant for Ralph’s support and maintenance.
Therefore the order holding appellant in contempt is reversed, and the cause is remanded for further proceedings consistent with this opinion.
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Ed. F. McFaddin, Associate Justice.
This case involves the custody of two little hoys, Larry and Chris Songer. Mr. and Mrs. Songer were married in 1936, and had five children before they were separated on May 4, 1955: Mrs. Songer became enamored of Mr. Halcumb. The five children, and their ages in 1957, are: Caroline Songer McNeill, a woman of full age; Tommy Song-er, a boy aged 17; Larry Songer, a boy aged 10; Chris Songer, a boy aged about 5; and Cynthia Cale Songer, a girl of tender years.
On April 10, 1956 Mrs. Songer obtained a divorce; and the decree, insofar as refers to the custody and support of the children, provided:
“The custody of the minor children of the parties hereto is awarded to the plaintiff (Mrs. Songer), with the right of visitation of defendant (Mr. Songer) at reasonable times. Defendant shall pay $125.00 per month for the support and maintenance of Larry Song-er, Chris Songer, and Cynthia Gale Songer, which sum shall be automatically reduced to $100.00 per month if and when the plaintiff remarries, and to $75.00 per month when Larry Songer is married, becomes of age, self-supporting, or ceases to live in the home of Jewel Songer, and when Chris Songer reaches such status it shall be reduced to $50 per month for the support of Cynthia Gale Songer.”
On May 31, 1957 the foregoing custody order was modified so that Mr. Songer was given the custody of the two boys, Larry and Chris, for all of June, July, and August (except for the period from June 21st to June 29th) and .with right of visitation afforded the mother. On June 4, 1957 Mrs. Songer married the previously mentioned Mr. Halcumb, and we will refer to her as Mrs. Songer-Halcumb.
On August 15, 1957 Mr. Songer petitioned the Court for the full custody of the boys, Larry and Chris, with their mother, Mrs. Songer-Halcumb, to have the right of visitation. Trial on the issue of custody of Larry and Chris resulted in a decree refusing Mr. Songer his prayed relief; and from that decree there is this appeal.
At the outset it is admitted by all parties that the burden on Mr. Songer in the Chancery Court was twofold: (a) to show that it was for the best interests of the two boys, Larry and Chris, that the father have their custody; and (b) that a change of circumstances had come about since the entry of the custody order con- tamed in the divorce decree of April, 1956. In Thompson v. Thompson, 213 Ark. 595, 212 S. W. 2d 8, Mr. Justice Robins stated the law:
“While any order as to custody of a child is subject to future modification by the court making it, the rule, uniformly adhered to by us, is that before such modification may be made it must be shown that after the making of the original order, there has been such, a change in the situation as to require, in the interest of the minor, the change to be made, or it must be shown that material facts affecting the welfare of the child were unknown to the court when the first order was made. ’ ’
To recount all the evidence in this case would present a rather sordid picture and would serve no useful purpose. To discharge the two-fold burden resting on him as aforesaid, Mr. Songer showed, inter alia-, (a) that Mrs. Songer had married Mr. Halcumb, the man who had disrupted the Songer home; (b) that Mrs. Songer-Halcumb worked, away from home, from 7:15 in the morning until 3:45 in the afternoon and it was necessary to leave the children with someone during all of such absence; (c) and that Mr. Songer had married a fine Christian lady who did not work and who testified that she wanted the two Songer boys in her home and that she would look after them and provide them with every possible care.
Mr. Songer also testified that on May 31, 1957, he saw Mrs. Songer-Halcumb’s car, with three of the Song-er children in it parked, in front of a beer joint on East Ninth Street in Little Rock; and that Mr. Halcumb and Mrs. Songer-Halcumb came out of the beer joint and got in a fight; that Larry and Chris Songer got out of . the car screaming and crying; and that Tommy Songer got out of the car and had an encounter with Mr. Halcumb. Mrs. Songer-Halcumb took the witness stand; and did not deny this testimony. Mr. Halcumb —■ although present in Court — did not testify, either to deny the brawl incident or to say that he wanted the two children, Larry and Chris, in his home. Furthermore, it was shown that the two older Songer children (the daughter, Caroline Songer McNeill, and Tommy Songer) have become hostile to their father. We apprehend that if these two little boys, Larry and Chris, remain in the Halcumb home they will be encouraged to develop a like hostility toward their father, who is shown to be devoted to them and to be a regular church attendant. An unfortunate situation envelops the two Songer children, Larry and Chris; but under all the circumstances, we hold that the father, Mr. Songer, is entitled to their care and custody, with the mother to have the rights of visitation.
The lower Court awarded Mrs. Songer-Halcumb $100.00 for attorneys’ fee. We also reverse that portion of the decree; but we hold that the costs of both Courts should be equally divided.
The cause is remanded to reinvest the Chancery Court with jurisdiction to enter and enforce a decree in keeping with our holding herein.
Robinson, J., dissents.
Mrs. Songer had a sixth child born after the separation. The custody of that child is not here involved.
The monthly support payment for the boys was abated during June, July, and August. | [
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Josephine LinKer Hart, Judge.
Appellee Leslie Keeter was injured in a near-fatal motor-vehicle accident while working for Michael Whitlock Trucking Company (Whitlock Trucking), an uninsured subcontractor. On appeal, Jones Brothers, Inc. (Jones), and its insurer, Lumbermen’s Underwriting Alliance, contend that the Arkansas Workers’ Compensation Commission erred in ordering Jones to pay workers’ compensation benefits to Keeter, because Jones was not, as found by the Commission, the “prime contractor” within the meaning of Ark. Code Ann. § ll-9-402(a) (Repl. 2002). On cross-appeal, Journagan Construction Company (Journagan) and its insurer, Builders’ Association Outstates Insurance Plan/Benchmark Insurance Company, contend that the Commission erred in concluding that, in accordance with Ark. Code Ann. § ll-9-402(b), Jones has a lien against moneys due or to become due against its immediate subcontractor, Journagan. Also, as part of Jones’s appeal, we consider whether the Commission should have awarded a Hen against not only Journagan but also its insurer. Further, on cross-appeal, we consider whether the Commission properly found as moot the issue of whether Journagan’s immediate subcontractor, Aggregate Transportation Specialist (Aggregate), possessed workers’ compensation insurance. We affirm the Commission.
In determining whether Jones was the prime contractor, we must briefly state the facts showing the connections between the parties. The record contains a copy of an “Arkansas State Highway Commission Contract” in which Jones, as contractor, agreed to widen 4.5 miles of Highway 412 that were west of Harrison to four lanes. A map in the record shows that the widening was to be made to a portion of Highway 412 between Alpena and Bear Creek Springs. The record further includes a “Subcontract Agreement” between Jones, as contractor, and Journagan, as subcontractor, in which Journagan agreed to perform services related to the same highway project.
In a deposition, James Holt, a senior vice-president of Journagan, stated that his company entered into an oral agreement with Aggregate whereby Aggregate would provide trucking services to haul materials needed for the Highway 412 project. Michael Swearingen, the sole proprietor of Aggregate, in turn stated in his deposition that he provided trucking services to Journagan for delivery of materials related to the project. He further stated that either he or one of his employees was contacted by Michael Whitlock of Whitlock Trucking, and Aggregate hired Whitlock Trucking to provide trucks for the Highway 412 project. In their combined deposition, Michael Whitlock and Rochelle Whitlock presented testimony that they had been hired by Aggregate for the Highway 412 project, that Whitlock Trucking hired Keeter to drive a dump truck, and that Keeter was working on the Highway 412 project at the time of his accident. His accident, they said, occurred on Highway 412 between Alpena and Bear Creek Springs, closer to Bear Creek Springs, where a Journagan quarry and asphalt plant were located, when he was coming back from the job with an empty truck on his way to the plant. Keeter’s wife, Becky Keeter, testified at the hearing that, before the accident, Keeter told her he was on his way to work on that project. And finally, Keeter testified at the hearing that, on the day of the accident, he was driving a dump truck for Whitlock Trucking on the Highway 412 project, where persons from Journagan were present.
The relevant statute for determining the liability for compensation for the employee of an uninsured subcontractor provides in part that “[w]here a subcontractor fails to secure compensation required by this chapter, the prime contractor shall be liable for compensation to the employees of the subcontractor.” Ark. Code Ann. § ll-9-402(a). In order to determine whether Jones was liable as the prime contractor, we must not only construe the meaning of “prime contractor” but also determine whether the Commission properly found that Keeter, as an employee of Whitlock Trucking, was performing services that arose from a subcontract between Whitlock Trucking and Aggregate, which in turn arose from a subcontract between Aggregate and Journagan, which in turn arose from a subcontract between Journagan and Jones, which arose from Jones’s contract with the Arkansas State Highway Commission.
On appeal, we review the Commission’s decision to see if it is supported by substantial evidence, viewing the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings. See, e.g., Riddell Flying Serv. v. Callahan, 90 Ark. App. 388, 206 S.W.3d 284 (2005). Giving due regard to our standard of review, we conclude that substantial evidence supported the Commission’s finding that the necessary links existed between the work Keeter was performing and the Jones contract with the Arkansas State Highway Commission.
Next, we note that there is no statutory definition of “prime contractor” in our workers’ compensation statutes, so we must construe the meaning of the term “prime contractor” and consider whether the Commission properly found that Jones was the prime contractor and thus liable for payment of compensation to Keeter, who was the employee of an uninsured subcontractor. It is well settled that the appellate court reviews issues of statutory construction de novo, as it is for the appellate court to decide what a statute means. See, e.g., Aloha Pools & Spas, Inc. v. Employer’s Ins. of Wausau, 342 Ark. 398, 403, 39 S.W.3d 440, 443 (2000). In construing a statute, we give words their ordinary and usually accepted meanings, and if possible, we give meaning and effect to every word. Id. at 404, 39 S.W.3d at 443.
In Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996), the Arkansas Supreme Court considered the issue of how to define the term “prime contractor.” In its analysis, the court relied on Bailey v. Simmons, 6 Ark. App. 193, 639 S.W.2d 526 (1982), where we observed that, in order for there to be a subcontractor relationship, the person sought to be charged as prime contractor must have been contractually obligated to a third party for the work being done at the time of the injury. Nucor, 326 Ark. at 223, 931 S.W.2d at 430. Also, the Nucor court noted that we defined a subcontractor as a person who agrees to perform part of a contract for a person who has already agreed to perform the contract for a third party. Id. The Nucor court concluded that the status of prime contractor presupposes work to be done for a third party. Id.
Whitlock Trucking — who lacked workers’ compensation insurance — was Aggregate’s subcontractor, Aggregate was Jour-nagan’s subcontractor, and Journagan was Jones’s subcontractor. All subcontractors were performing services that arose from the contract between Jones and a third party, the Arkansas State Highway Commission. Thus, because Jones is the only contractor with an obligation to a third party, we are convinced that Jones was the sole “prime contractor.” Moreover, defining “prime contrac tor” in this manner is in keeping with how the term is generally conceived, as it is defined as “[o]ne who contracts for the completion of an entire project, including purchasing all materials, hiring and paying subcontractors, and coordinating all the work.” Black’s Law Dictionary 351 (8th ed. 2004). We hold that the Commission properly concluded that Jones was the prime contractor and, consequently, was liable for payment of workers’ compensation to Keeter.
The Commission further found that, in accordance with Ark. Code Ann. § 11-9-402, Jones “shall be entitled to a lien against moneys due or to become due” to Journagan, that Journa-gan was entitled to a lien against Aggregate, and that Aggregate was entitled to a lien against Whitlock Trucking. Journagan and its insurer assert in their respective briefs that Jones was not entitled to a lien against Journagan. Arguably, the Commission’s ruling on this issue was premature, as Jones has not yet made a claim against Journagan, Journagan’s insurer, or any other party. Nevertheless, we will consider the propriety of the Commission’s ruling, recognizing that the Commission has concluded that Jones is entitled to a lien against Journagan.
The relevant statutory language provides that “[a]ny contractor or the contractor’s insurance carrier who shall become liable for the payment of compensation on account of injury to or death of an employee of his or her subcontractor may recover from the subcontractor the amount of the compensation paid or for which liability is incurred.” Ark. Code Ann. § ll-9-402(b)(l). Further, the statute provides that “[t]he claim for the recovery shall constitute a lien against any moneys due or to become due to the subcontractor from the prime contractor.” Ark. Code Ann. § 11 — 9—402(b)(2). We acknowledge that (b)(1) refers to an injury to “an employee of his or her subcontractor” when describing against whom a contractor may recover. But we note that (b)(1) grants this right of recovery to a “contractor,” indicating that either a prime contractor or a subcontractor can make claims against its immediate subcontractor. It follows then that a prime contractor, who is ultimately liable, can make claims against its immediate subcontractor, even though the injured employee is not the immediate subcontractor’s employee. Consequently, we construe the Commission’s finding to mean that Jones may recover against Journagan.
In their appeal, Jones and its insurer also ask that the Commission’s decision be modified to include a claim not only against Journagan, but also Journagan’s insurer. We observe that this amendment to the Commission’s decision is unnecessary, as a statute already addresses Jones’s request by providing that “[a]ny requirements by the commission or any court under any compensation order, finding, or decision shall be binding upon the carrier in the same manner and to the same extent as upon the employer.” Ark. Code Ann. § ll-9-405(b)(3) (Repl. 2002). Thus, Jones and its insurer may seek recovery of the amount of the compensation paid or for which liability is incurred not only from Journagan but also from Journagan’s insurer.
Finally, in their cross-appeal, Journagan and its insurer argue that the Commission erred in concluding that the issue of whether Aggregate had workers’ compensation insurance was moot. Specifically, they contend that they may proceed against not only Aggregate but also its insurer, Missouri Employers’ Mutual Insurance Company. In essence, the Commission did not make any findings of fact on the issue. We conclude, however, that for this court or the Commission to make findings of fact on the issue would be premature until Jones makes a claim and recovers from Journagan and Journagan has sought recovery from Aggregate. See generally Ins. Co. of N. Am. v. Ferrell, 234 Ark. 581, 353 S.W.2d 353 (1962) (deeming subrogation claim premature where person claiming subrogation had not had his own liability determined). Nothing herein will prejudice the rights of the parties to future subrogation claims.
Affirmed.
Neal and Vaught, JJ., agree.
The Commission noted that Keeter’s injuries included a severe closed-head injury and a fractured cervical spine at the C-5 level.
In 2005, the Arkansas General Assembly added to the end of this sentence the language “unless there is an intermediate subcontractor who has workers’ compensation coverage.” Ark. Code Ann. § ll-9-402(a) (Supp. 2005). | [
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Larry D. Vaught, Judge.
Appellants Joe Clark, Rex Martin, and William Glass appeal the order of the Poinsett County Circuit Court that quieted title to disputed property in favor of appellee James Casebier following a bench trial. Appellants argue on appeal that the trial court erred in finding (1) that there had been an agreement by acquiescence that the irrigation ditch represented the boundary fine between the two properties and (2) that the north side of the irrigation ditch was the boundary fine between the properties. We disagree and affirm.
In December 2002, appellants purchased a tract of land from Karen and John Hutchison that had been previously owned by the Kennedy family. Prior to purchasing the land, appellants’ bank required a survey of the property. This survey revealed an irrigation ditch running east to west at the southern end of appellants’ property about sixty feet from the surveyed boundary line. The property located between the irrigation ditch and the actual southern boundary line of appellants’ property is the area in dispute. Until the survey was completed, appellants had not been shown any property corners or boundaries on the property.
Butch Hime, the surveyor appellants hired, testified that he did not find all the markers for the property corners establishing appellants’ property boundaries. Instead, he used a proportionate survey technique to establish the corners. The boundary lines were different than the original government survey showed, but this did not cause Hime concern.
Appellee owned the tract of land south of appellants’ property and testified that he used the irrigation ditch to provide water for his crops. He had several pieces of irrigation equipment, including a permanent relift pump, on the disputed property. Appellee had purchased his property from Orville Thomas in March 1986. Orville Thomas testified that his family had owned the land since the 1950s but that he had been familiar with the property since the 1920s. Thomas testified that he helped his father dig the irrigation ditch sometime in the 1960s. He asserted that they had attempted to locate the boundary line, and using monuments from a previous survey, they dug the irrigation ditch on his father’s property. Thomas testified that at the time it was dug, the ditch “wasn’t very wide.” He declared that the ditch was eight or nine feet wide when the water was its highest but that it was not that wide when it was dug. Rather, the ditch had washed out some over time. Thomas stated that the purpose of the ditch was to bring water from the river for irrigation of crops and that it had always been used for that purpose. When appellee purchased the land, an older model relift pump was located near the ditch, and appellee replaced it with a newer model. Thereafter, appellee placed an underground pipe in the ground connected to the relift pump to make taking water from the ditch easier. This pump and pipe became permanent fixtures on the property. Appellee also testified that compared to the first time he was on the property was in 1971 or 1972, the ditch looked the same in the present day as it did then.
Both Thomas and appellee testified that until appellants complained, no adjoining landowner had raised any objection to Thomas’s or appellee’s use of the irrigation ditch and the disputed property. Appellee testified that it was his understanding that his property line was the irrigation ditch. He stated that he used the property up to the irrigation ditch as his own and used the irrigation ditch to water his crops. He stated that he removed silt from the irrigation ditch in 1986 or 1987, he hired the Kennedys to remove silt from in it in 1989, and he removed the silt himself again in 1992 and 1998. He stated that the Kennedys were working under contract for him when they removed the silt and that they did not object to his working on the irrigation ditch.
After the survey was completed and the land purchased, appellants asked appellee to remove the relift pump from the disputed property. Appellee refused, and appellants filed suit. Following a bench trial, the judge found that based on the prior conduct of the landowners, a boundary by acquiescence existed and that the northern edge of the irrigation ditch was the boundary line between the properties.
For their first point on appeal, appellants argue that the trial court erred in finding that there was an agreement by acquiescence to make the irrigation ditch the boundary line between the properties. Whenever adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line and apparently consent to that line, it becomes a boundary by acquiescence. Hedger Bros. Cement & Materials, Inc. v. Stump, 69 Ark. App. 219, 10 S.W.3d 926 (2000). A boundary line by acquiescence is inferred from the landowners’ conduct over many years so as to imply the existence of an agreement about the location of the boundary line. Id. at 222, 10 S.W.3d at 928. The location of a boundary line is a question of fact. Id., 10 S.W.3d at 928. Although equity cases are reviewed de novo on appeal, we will affirm a trial court’s finding of fact with regard to the location of a boundary line unless the finding is clearly erroneous. Id., 10 S.W.3d at 928. A finding is clearly erroneous when, although there is evidence to support it, we are left — after considering all of the evidence — with the definite and firm conviction that a mistake has been committed. Id., 10 S.W.3d at 928. Whether a boundary line by acquiescence exists is to be determined upon the evidence in each individual case. Id. at 222 — 23, 10 S.W.3d at 928. In reviewing a trial court’s findings of fact, we give due deference to the trial judge’s superior position to determine credibility of the witnesses and the weight to be accorded to their testimony. Riddick v. Streett, 313 Ark. 706, 858 S.W.2d 62 (1993).
It is also settled law that a boundary line by acquiescence may well exist without the necessity of a prior dispute. Walker v. Walker, 8 Ark. App. 297, 651 S.W.2d 116 (1983). Nor is there any requirement of adverse usage up to a boundary fence to establish a boundary by acquiescence. Id. at 298, 651 S.W.2d at 117. Instead, whenever adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line and thus apparently consent to that line, it becomes the boundary by acquiescence. Id. at 298-99, 651 S.W.2d at 117. When the adjoining owners occupy their respective premises up to the line they mutually recognize and acquiesce in as the boundary for a long period of time, they and their grantees are precluded from claiming that the boundary thus recognized and acquiesced in is not the true one, although it may not be. Id. at 299, 651 S.W.2d at 117.
There is ample evidence to support the trial court’s findings and conclusions in this case. Since the irrigation ditch was dug in the 1960s, the owners of the southern tract of land have used the disputed property and the irrigation ditch as their own. Orville Thomas testified that when his father dug the ditch, it was with the purpose of doing so on the property line. Thomas, as well as Casebier, testified that no one ever objected to their use of the disputed land. Additionally, Thomas and Casebier were the only people to ever maintain the ditch. The one time the Kennedys removed silt from the ditch was at Thomas’s direction. Appellants offered no testimony to contest appellee’s evidence that the previous owners of the land had acquiesced in the irrigation ditch being the boundary.
Appellants argue that our recent opinion in Robertson v. Lees, 87 Ark. App. 172, 189 S.W.3d 463 (2004), supports their proposition that the trial court erred in finding a boundary by acquiescence. There we stated that our supreme court has held that the mere existence of a physical boundary, without evidence of mutual recognition, cannot sustain a finding of such a boundary as the property line. Id. Additionally, we noted that the intention of the parties, not the physical boundary itself, is what controls when determining whether a boundary line exists through acquiescence. Id. However, in Robertson we affirmed the trial judge’s finding that no boundary by acquiescence existed because the appellant had not produced any evidence that the fence at issue had been intended to be the boundary line. Rather, the appellant attempted to rely on silence from the appellee and his predecessors in title. We specifically noted that the appellee had not been silent on the matter but had asked for persons not to mow the disputed tract and gave permission for a clothesline to be built.
This case is distinguishable from Robertson because we have evidence of the parties’ intent — Orville Thomas’s testimony — and we have silence from appellants’ predecessors in title — no objection was ever made to Thomas or Casebier regarding their use of the irrigation ditch as the boundary line. The trial judge could have correctly found that it had been the previous landowners’ intent that the irrigation ditch serve as the boundary line. We cannot say the trial judge clearly erred on this point.
Appellants’ second point on appeal is that the trial court erred in finding that the north line of the irrigation ditch represented the boundary line between the properties. A boundary by acquiescence is usually represented by a fence, a turnrow, a lane, a ditch, or some other monument tacitly accepted as visible evidence of a dividing line. See Palmer v. Nelson, 235 Ark. 702, 361 S.W.2d 641 (1962). A boundary by acquiescence has been affirmed when the parties tacitly agreed on a line running between two marks, such as concrete stobs, in Disney v. Kendrick, 249 Ark. 248, 458 S.W.2d 731 (1970), and trees in Ward v. Adams, 66 Ark. App. 208, 989 S.W.2d 950 (1999). However, Arkansas law does not support the establishment of a boundary by acquiescence along an invisible line between two large land forms, such as levees, that are not truly capable of being used as accurate markers of a boundary. Stump, 69 Ark. App. at 223, 10 S.W.3d at 928-29. Appellants cite to Stump and Lammey v. Eckel, 62 Ark. App. 208, 970 S.W.2d 307 (1998), to argue that the trial court erred in concluding that the northern edge of the irrigation ditch established the boundary line because that boundary line is not “definite.” However, in both Stump and Lammey, the purported boundary lines were either invisible lines where no physical object separated the property or marked by uncertain physical objects such as stumps, bushes, and trees. That is not the case here. Rather, the irrigation ditch is a definite, physical separator. It creates a definitive physical boundary between the properties. Although the irrigation ditch does not reach the entire length of the boundary between properties, it covers the vast majority of it, with the ditch ending less than one hundred feet from the eastern edge of the properties. Additionally, although appellants argue the ditch widened over time, the testimony presented at trial does not show any appreciable amount of expansion. Appellants cite no authority to support a finding that such an inconsiderable amount of expansion would establish indefiniteness. Based on our prior precedent, we are satisfied that the trial court did not clearly err in using the northernmost edge of the irrigation ditch as the boundary marker.
Affirmed.
Griffen and Roaf, JJ., agree. | [
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HART, J.,
(after stating the facts).
Section 5473 of Kirby’s Digest, among other things, provides:
‘£ On the passage of every by-law or ordinance, resolution or order, to enter into a contract, by any council of any municipal corporation, the yeas and nays shall be called and recorded; and to pass any by-law or ordinance, resolution or order, a concurrence of a majority of a whole number of members elected to the council shall be required.”
(1) Section 5456 provides that they (municipal corporations) shall have power to improve and repair their streets and alleys. Neither the mayor of the town of Plummerville nor the street committee of the council had the authority to make the contract with Venable for the improvement of the streets of the town. The town council alone could make the contract in the manner provided by the statute. City of Mena v. Tomlinson Bros., 118 Ark. 166, and Cutler v. Town of Russellville, 40 Ark. 105.
(2-3) It is not shown by the record that the town council by ordinance or resolution made any contract with Venable to work the streets nor does the record show that the town council authorized either the mayor or the members of the street committee to make such contract. It is claimed, however, that the contract, as made by the mayor, was ratified. Reliance is placed upon Frick v. Brinkley, 61 Ark. 397, and Forrest City v. Orgill, 87 Ark. 389. We do not think, however, that either one of those cases is authority for the position taken by counsel. In the first mentioned case there was a sale of piping to the town by one of its aldermen. Such contract was contrary to the statute. The town kept the piping and a recovery on a quantum valebat was allowed. So, too, in the last mentioned case the city officers purchased some water works machinery and the contract was not authorized by any ordinance, resolution, or order of the council in the manner provided by the statute, but the water works machinery was kept and used by the city. On this account a recovery as upon quantum valebat was allowed.
In the present case there was no ratification of the contract whatever by the town council. Knowledge by individual members of the council by conversations on the street could not be considered as a ratification by the council as a body. There was no action taken by the council in the matter at all. There was nothing to indicate that it accepted the work. Besides the members of the council and the mayor testified that they understood that the county was to pay for the work except the amount which had already been paid by the town. In order for the ratification to 'become effective there must be some affirmative action by the proper officers, or some negative action which of itself would amount to an approval of the matter in question. Texarkana v. Friedell, 82 Ark. 531.
It follows the court was warranted in finding for the defendant, and under the settled rules of this court the findings of fact made by the court sitting as a jury are as binding upon appeal as the verdict of a jury.
Therefore, the judgment will be affirmed. | [
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George Rose Smith, J.
By this original action tbe petitioners seek to enjoin tbe Secretary of State from certifying as sufficient a ballot title for a proposed constitutional amendment, to be voted upon at tbe general election in November. In substance tbe petition asserts that tbe ballot title is so incomplete and so abbreviated that it fails to convey sufficient information to enable an elector to vote upon tbe measure with intelligence and understanding.
Tbe proposed amendment carries as its popular name “Tbe States Rights Amendment” and has tbe following paragraph as its ballot title:
“An Amendment Creating a States Rights Commission and Providing For Its Duties, Qualifications and Operation; Defining an Offense of Barratry and Providing Penalty thereof; Providing for tbe Suspension of State Funds to School Districts in Certain Cases, tbe Redistribution of Public School Funds in Certain Districts, tbe Possible Closing of Schools and Creation of Private Schools in Certain Districts, and tbe Recall of School Board Members, all of which to Be Determined by Special Elections of Qualified Voters; Regulating Voter, Candidate and Party Qualifications; Providing for Certain Penalties; Providing for a Severability Clause; and, Providing for a Repealing Clause.”
The amendment itself is- of such extreme length and touches upon so many different subjects that we shall merely summarize the provisions deemed pertinent to this discussion, with the full text being set out as an appendix to the opinion. Even a casual reading of the measure will disclose that it is the most far-reaching proposal ever offered to the state’s electorate.
Returning to the ballot title, one sees at once that its language is cast in generalities. The voter is told that the amendment is to create a States Rights Commission, but he is given no intimation of its powers or duties. He knows that the schools are to be affected “in certain eases” and “in certain districts,” but he is given no inkling of what those contingencies actually amount to. He realizes that he is to vote for or against changes in the election laws, but the ballot title supplies no clue as to the nature of those changes.
The single question is whether this ballot title meets the requirements of the constitution. The governing rules are well settled and perfectly familiar. The ballot title need not be a complete abstract of the act. Coleman v. Sherrill, 189 Ark. 843, 75 S. W. 2d 248. It must, however, provide the elector with information concerning the choice that he is called upon to make. Bradley v. Hall, 220 Ark. 925, 251 S. W. 2d 470. It was pointed out in our leading case, Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356, 44 S. W. 2d 331, that “the great body of electors, when called upon to vote for or against an act at the general election, will derive their information about it from the ballot title. This is the purpose of the title.”
Especially pertinent here is the decision in Walton v. McDonald, 192 Ark. 1155, 97 S. W. 2d 81, for it dealt with an error of omission. There the ballot title recited that the proposed measure was an act to pro vide for the assistance of the aged and the blind, but it failed to state that this assistance was to be financed by the levy of a sales tax and by the appropriation of a third of the taxes upon horse and dog racing. In holding the title to be misleading and therefore insufficient we said: “The title carries an appeal to all humane instincts. New would object to some provision being made for the support of the aged and blind; but to levy a general sales tax of two per cent, for that, or any other purpose, is a different question altogether, and would furnish the elector, however generous his impulses might be, serious ground for reflection if that information were imparted to him by the title of the question upon which he exercised his right of suffrage. ’ ’
Our inquiry, then, is whether this ballot title conceals matters which, if disclosed, would furnish the elector with “serious ground for reflection” before yielding to his impulse to vote in favor of an amendment ostensibly furthering the cause of states’ rights. After carefully studying the measure as a whole we are unanimously of the opinion that this ballot title fails to supply the voter with the information that the constitution expects him to have. For brevity we shall discuss only the provisions concerning the proposed commission and the election laws.
With respect to the commission the ballot title merely tells the elector that the measure will create a States Eights Commission and provide for its duties, qualifications, and operation. The cause of states’ rights, like that of the aged and the blind, is deservedly a popular one and undeniably appeals to the great body of the electorate. But are there provisions in the amendment which, if made known, would give the voter serious ground for reflection?
We have no doubt that there are. The Commission, created by Article I of the measure, consists of twelve members. Sections 5 and 6 of this article destroy the system of checks and balances that has characterized our government since its birth. Section 5 provides that no court shall be empowered to enjoin the Commission from performing the duties set out in the amendment. Those duties, however, are not clearly defined. By § 7 the Commission is invested with the duty and the power to “perform any and all things deemed necessary and proper” to protect the sovereignty of the several states and to resist the usurpation of the rights reserved to the states. Within the vague limits of this clause it is difficult to conceive of any power — legislative, executive, or judicial — that the Commission might not lay claim to. The ballot title, it may be observed, does not even mention the powers of the Commission, much less does it give a hint of their unlimited scope.
Having immunized the Commission from the action of the state courts, the amendment next frees it from the control of the state legislature. It has traditionally been the function of the legislative branch to exercise some measure of restraint over the other departments, through its power to enact laws and to control the public purse. But here that restraint is swept away. Since the Commission’s powers would be conferred by the constitution, they could not be affected by any laws that might be passed. And by § 6 the General Assembly is deprived of any financial supervision over the Commission. This section makes an annual appropriation of $250,000, which the Commission is at liberty to spend in any way it chooses. It may be noted that the General Assembly, in creating a State Sovereignty Commission that superficially resembles the proposed States Rights Commission without the latter’s unbridled powers, deemed an annual appropriation of $30,000 to be sufficient. Acts 83 and 170 of 1957. It will also be observed that the ballot title does not suggest to the voters that a quarter of a million dollars is to be appropriated every year, without any effective safeguard over its expenditure.
It is really not enough to say that the proposed Commission would have equal status with the other branches of the state government; the amendment contemplates that every other department shall be subservient to the Commission. Section 10 of Article I requires all elective and appointive officers and employees of the state and its subdivisions to cooperate with the Commission and to render such aid and assistance as may be requested by the Commission. By Article Y if any person, public official, or employee of the state fails to carry out “the clear mandates” of the amendment be is subject to a fine of not more than $5,000, to imprisonment for not more than a year, and to automatic forfeiture of Ms office. It is obvious that under the measure before us every public officer and employee in the state, without exception, would live in daily fear of offending the Commission.
Nor is the private citizen to be left untouched by the unlimited powers of the Commission. By §§ 8 and 9 of Article I the Commission is given broad authority to make investigations and to conduct public or secret hearings. It is evident that in the exercise of its inquisitorial power the Commission might interrogate any citizen in the state about his business affairs, his private life, his political beliefs, or any other subject that can be imagined. Although the measure purports to preserve certain fundamental rights of witnesses called before the Commission, these provisions are meaningless in view of the Commission’s immunity from the action of the judiciary. The blunt truth is that, however improper the Commission’s inquiries might be, the witness’s only choice would be to answer the questions or go to jail for contempt.
We have said enough, we think, to demonstrate beyond any question that, with respect to the proposed Commission, the ballot title fails to disclose essential facts that the voter is entitled to know before making up his mind. Much the same situation exists with reference to the changes in the election laws that would be brought about by the measure.
On the latter subject the ballot title simply tells the elector, in six words, that the amendment will regulate voter, candidate, and party qualifications. In fact, however, the proposal embodies such extensive innovations in the election laws that we cannot conscientious ly suppose that the average voter would regard them as immaterial.
In addition to lengthening the period of residence required for qualified electors the measure introduces novel conditions to the right to vote. Section 5 of Article IY specifies that an elector must be “of good moral character,” that he understand the duties and obligations of citizenship under a republican form of government, and that he be able to read and write. It is evident that vague tests such as these leave much to the discretion of the election officers, who are in a position to disqualify any one they choose. Another change in the election laws is a requirement that an applicant for registration give his or her date of birth and exact age in years, months, and days. We have no doubt that this demand would be so distasteful to a substantial number of men and women that they would forego their right to vote rather than comply with this requirement. Yet the ballot title gives no information about these various amendments to the election law.
The wisdom of the measure does not, of course, concern the courts, for the people undoubtedly have the right to amend the constitution in any way they like. It is our duty, however, in a case of this kind, to approve the ballot title only if it represents an impartial summation of the measure and contains enough information to enable the voters to mark their ballots with a fair understanding of the issues presented. Tested by this standard, the ballot title now before us is clearly insufficient.
The petition for an injunction is accordingly granted.
APPENDIX
(Full Text of the Proposed Amendment)
BE IT ORDAINED BY THE PEOPLE OF THE STATE OF ARKANSAS THAT THE FOLLOWING BE ADOPTED AS AN AMENDMENT TO THE CONSTITUTION:
Article I — States Eights Commission.
Section 1. Communism, being an ideology with its purpose to destroy the freedom and liberty of all people throughout the world, its major weapon being the fomentation of strife and disharmony calculated to turn class against class and race against race, thereby upsetting time honored social patterns which have been attained in this country, not by prejudice but by a background of rich experience, all of which interferes with the exercise of rights reserved to the states; therefore, Communism is hereby declared to be against the public policy of the State of Arkansas.
Section 2. There is hereby created the States Eights Commission, which shall be composed of:
The Governor, the Attorney General, the Lieutenant Governor and Speaker of the House of Eepresentatives, each of whom shall be an ex-officio member.
Three citizens of Arkansas who shall be appointed by the Governor; one of whom shall reside East of White Eiver; one of whom shall reside South of the Arkansas Eiver; and one of whom shall reside West of the White Eiver and North of the Arkansas Eiver;
Two members of the State Senate who shall be appointed by the President of the Senate by and with the approval of at least eighteen (18) members of the Senate ;
Three members of the State House of Eepresentatives who shall be appointed by the Speaker of the House of Eepresentatives by and with the consent of at least fifty-one (51) members of the House of Eepresentatives; one of said appointees shall reside South of the Arkansas Eiver; one of them shall reside East of the White Eiver, and one of them shall reside North of the Arkansas Eiver and West of the White Eiver.
The ex-officio members of the Commission and members from the Senate and House of Eepresentatives shall serve during the terms of their respective offices and until their successors are elected and qualified. The members appointed by the Governor shall serve during the term of the Governor who appointed them and until their successors are appointed and qualified.
Section 3. The Governor shall be Chairman of the Commission, and the President of the Senate Vice-Chairman, with authority to act in the absence of the Chairman. Seven (7) members of the Commission shall constitute a quorum for the transaction of business.
Section 4. The Commission shall meet not less than one day each month and at such other times as the majority of the members shall deem it necessary. Should any member willfully fail and refuse to attend two consecutive meetings without reasonable cause, such member shall be removed from said Commission and from any other office he or she might hold under and by the authority of the State of Arkansas.
Section 5. No court in the State of Arkansas shall be empowered to enjoin the Commission from the performing of its duties as set out in this Amendment.
Section 6. The Commission may employ a secretary and such other legal, professional, expert, secretarial, clerical and other help deemed necessary and proper to carry out the objectives and purposes of this amendment; and it is hereby authorized and empowered to fix the compensation for such employees at any reasonable amount, and pay such other fees as from time to time may be required. Ex-officio members of the commission shall serve without remuneration in addition to that otherwise received by them from the State. Other members of the Commission shall receive $35.00 per day for each day spent on the business of the Commission. All members of the Commission shall be reimbursed for actual living and travel expenses incurred by them. In order to defray the expenses of the Commission, the Treasurer of the State shall, before the end of the first quarter of each fiscal year, set aside and credit to a fund hereby designated “The States Rights Commission Fund” the amount of $250,000, which fund shall be drawn on by the Commission to meet its expenses. The Treasurer shall deduct the amount of this fund from money received by him, that would otherwise be credited to the General Revenue Fund. Nothing herein shall be construed to prohibit the Commission from receiving and expending additional funds by way of private gifts or appropriations by the General Assembly. Full and complete accounting shall be kept and made by the Commission of all funds received and expended by it. The state auditors shall annually audit the expenditures of all funds received by the Commission from all sources.
Section 7. It shall be the duty of the Commission, and it shall have power in the name of the State of Arkansas or any political sub-division thereof, to perform any and all acts and things deemed necessary and proper to protect the sovereignty of the State of Arkansas and her sister states from encroachment thereon by the Government of the United States, or by any government of any nation, or federation of nations, or any branch or department or agency thereof, and to resist the usurpation of the right and the powers reserved to this State or her sister states by such governments, branches, departments or agencies.
Section 8. The Commission may make investigations and/or hold hearings (whether public or in executive session) in connection with any investigation made by it pursuant to the provisions of this Amendment. Witnesses at Commission hearings shall have the right to be accompanied by counsel of their own choosing, who shall have the right to advise witnesses of their rights, and to make brief objections to the relevancy of questions and to procedure. At least twenty-four (24) hours prior to his testifying, a witness shall be given a copy of that portion of the motion or resolution scheduling the hearing which copy shall state the subject of the hearing; and at the same time he shall be given a statement of the subject matter about which he is to be interrogated. The privileged character of communication between clergyman and parishioner, doctor and patient, lawyer or accountant and client, and husband and wife, shall be scrupulously observed. Every witness who tes tifies in a hearing shall have a right to make an oral statement and file a sworn statement which shall he made a part of the transcript of snch hearing, but such oral or written statement shall be limited to material relevant to the subject of the hearing.
Section 9. The Commission shall have power to issue subpoenas for witnesses to appear at hearings conducted by the Commission, and to issue subpoenas duces tecum directed to witnesses. Subpoenas shall be issued by the Chairman or Vice-Chairman of the Commission only, upon written notice to all members of the Commission, with a statement as to the identity of the witness or material and their relevancy to the investigation or hearing already authorized. Upon request of any member of the Commission, the question of whether a subpoena shall be issued or remain in force if already issued, shall be decided by a majority vote.
In case of contumacy or refusal to obey a subpoena issued by the Commission, any Circuit Court of the State of Arkansas within the jurisdiction of which the investigation or hearing is to be carried on, or within the jurisdiction of which said person guilty of contumacy or refusal to obey is found, or resides, or transacts business, shall, upon application of the Chairman or Vice-Chairman of the Commission, have jurisdiction to issue to such person an order requiring such person to appear before the Commission, there to produce evidence if so ordered, or there to give testimony touching the matter under investigation; and any failure to obey such order of the Court may be punished by said Court as contempt thereof.
The Chairman, Vice-Chairman or Secretary of the Commission is hereby authorized and empowered to administer oaths to witnesses; and any witness appearing and testifying before the Commission who shall willfully and corruptly testify falsely to any material fact shall be guilty of perjury and shall be subject to prosecution and punishment therefor as provided by law; and if such perjury be manifest, or if the witness shall refuse to testify, or to produce any books, records, papers or documents, lie shall be guilty of contempt of the Commission and shall be punished in cases of contempt of the Circuit Court of the State of Arkansas.
Any person sworn and examined as a witness before said Commission without procurement or contrivance on his part shall not be held to answer criminally or be subject to any penalty or forfeiture for any fact or act touching which he is required to testify; nor shall any statement made, or book, paper or document produced by any such witness be competent evidence in any criminal proceeding against such witness other than for perjury in delivering his evidence. Should any witness refuse to testify to any fact, or refuse to produce any book, document or paper touching which he is to be ex-examined, on the ground that he will thereby incriminate himself, or that it will tend to discredit or render infamous, the Commission shall consider such refusal as part of the evidence and shall inform the public of the refusal of such witness to so testify, and the facts and circumstances under which such refusal was made.
Section 10. All elective and appointive officers and employees of the State and the political sub-divisions thereof, including all public schools, and institutions of higher learning, shall co-operate with the Commission and render such aid and assistance as may be requested by them by the Commission.
Section 11. All persons, corporations, societies, organizations and other groups of persons who are found by a majority of the members of the States Bights Commission to be engaged in activities designed to further the cause of Communism shall be declared subversive and shall be required to file with said Commission a complete report of their activities within the State of Arkansas, including a list of names and addresses of their officers and members, a detailed certified financial report showing names and addresses of their contributors and expenditures, and such other information as the General Assembly shall require.
Article II — Barratry-
Section 1. Any lawyer who shall represent himself to be an attorney for any person, corporation, society, organization or other group of persons who are engaged in activities which foment racial unrest, without having been personally and specifically solicited and employed by said client or clients such attorney holds himself out to represent, or if such attorney or anyone acting in his behalf solicits said client or clients, said attorney shall be deemed guilty of barratry and in addition to the penalties provided by the General Assembly shall be disbarred and forever prohibited from the practice of law in the State of Arkansas.
Article III — School Bequirements
Section 1. No state funds shall be allocated to school districts in which the Negro and Caucasian races are mixed in classrooms, athletic or social activities in any school or schools within said district, except that such mixing of the Negro and Caucasian races shall have been sanctioned by a prior affirmative vote of the majority of the qualified electors in such district.
Section 2. Any school against which a decree, order or proclamation of any court or executive has been rendered, or shall be rendered, causing the mixing of Negro and Caucasian students, and any school or schools from which the students were transferred or were to be transferred in compliance with such decree, order or proclamation, shall be closed forthwith from and after the effective date of this Amendment.
Upon the closing of such school or schools an election shall be held at the earliest possible date in said school district to determine whether or not the qualified electors in said district are for or against mixing of the Negro and Caucasian races in their public schools. Should the majority of the qualified electors in said district favor mixing of the Negro and Caucasian races, the school or schools would be reopened upon an integrated basis. Should less than a majority of the qualified electors in said school district vote to mix the Negro and Caucasian races, then the affected school or schools, both Negro and Caucasian in said district shall be closed, and the physical plants and equipment of such shall be sold or leased for operation of private schools.
Section 3. The tax monies and state aid over and above that portion of said funds set aside for the retirement of bonded indebtedness of such schools shall be divided pro rata among the educable children of school age, regardless of color, who were former students of such affected schools, or who reside in the attendance area of such affected schools. Said money shall be used only for the education of said children, in schools meeting the minimum accreditation standards.
Section 4. Nothing in this amendment shall disturb the status of teacher tenure or teacher retirement benefits.
Section 5. Upon petition of not less than ten per cent (10%) of the qualified electors in any school district in the State of Arkansas, all elected school officials within said school district named in said petition, shall stand for re-election at a special election; the ticket shall be open for other electors to qualify as candidates. Such special election shall be held not later than one month after certification of the recall petition by the county clerk. In no event shall more than one such special election be held in any calendar year.
Section 6. All contracts for school personnel shall be entered into subject to ratification by the school board as it may be constituted following any special election under the provisions hereof.
Article IV — Voting Privileges
Candidate and Party Qualifications
Section 1. The right to vote in Arkansas shall be subject to the provisions of this amendment; provided, however, nothing herein shall be construed as repealing the Poll Tax requirements.
Section 2. Every citizen of this State and of the United States native born or naturalized, not less than twenty-one years of age, and possessing the following qualifications, shall be an elector, and shall be entitled to vote at any election in the State by the people.
Section 3. Each voter shall have been an actual bona fide resident of the State of Arkansas for two years, of the County one year, of the municipality in municipal elections four months, and of the precinct in which he offers to vote three months next preceding the election; provided, that removal from one precinct to another in the same county shall not operate to deprive any person of the right to vote in the precinct from which he has removed until three months after such removal; provided, further, that removal from one county to another shall not deprive any person of the right to vote in the county from which he has removed for district officers to be elected in a district which includes the county to which he has removed, or for state officers, whether the county be in the same district or not, until he shall have acquired the right to vote for such officers in the county to which he has removed.
Section 4. Each voter shall be, at the time he offers to vote legally enrolled as a registered voter on his own personal application, in accordance with the provisions of this Constitution, and the laws enacted thereunder.
Section 5. Each voter shall be of good moral character and shall understand the duties and obligations of citizenship under a republican form of government. He shall be able to read and write, and shall demonstrate his ability to do so when he applies for registration by making, under oath, administered by the registration officer or his deputy, written application therefor, in the English language, which application shall contain the essential facts necessary to show that he is entitled to register and vote, and shall be entirely written, dated and signed by him, except that he may date, fill out, and sign the blank application for registration hereinafter provided for, and, in either case, in the presence of the registration officer or Ms deputy, without assistance, or suggestion from any person or any memorandum whatever, other than the form of the application hereinafter set forth; provided, however, that if the applicant is unable to write his application by reason of physical disability, the same shall be written at his dictation by the registration officer or his deputy, upon oath of such disability.
The application for registration above provided for shall be a copy of the following form with the proper names, dates and numbers substituted for the blanks appearing therein, to-wit:
“I am a citizen of the United States and of the State of Arkansas. My name is Mr............................ Mrs. ...........................Miss............................ I was born in the state (or country) of..........................., County of...........................on the............ day of...........................in the year............................ I am now............ years, and ............ months and ............ days of age. I have resided in Arkansas since..........................., in the county since ..........................., and in Precinct No............................, in Ward No. ........................... of this county continuously since ............................ I am not disfranchised by any provision of the Constitution of this State. The name of the householder at my present address of...........................is............................ My occupation is ............................ My color is ............................ My sex is ............................ I am not now registered as a voter in any other ward or precinct of this State, except ............................ My last registration was in Ward ........................... Precinct .........-................, County............................ I am now affiliated with the...........................Party.
Signature
Sworn to and subscribed before me:
Registration Officer”
Section 6. Each voter must in all cases be able to establish that he is the identical person whom he rep resents himself to he when applying for registration, and when presenting himself at the polls for the purpose of voting in any election, or primary election. At any time of voting he must present his registration certificate for identification. In all instances of voting in any election or primary election the election officials must make proper notation on the elector’s registration certificate as to time and polling place of his appearance and as to the propriety of his party affiliation.
Section 7. The General Assembly shall enact laws to secure fairness in party primary elections, conventions, or other methods of naming party candidates. No person shall vote at any primary election, or in any convention, or other political assembly held for the purpose of nominating any candidate for public office, unless he is at the time a registered voter, and a certified member of the political party holding such election, convention, or assembly, and has such other and additional qualifications as may be prescribed by the party of which candidates for public office are to be nominated. All ballots in any election or primary election must designate the race — either Caucasion or Negro —■ of all candidates appearing thereon. And in all political conventions in this State the apportionment of representation shall be on the basis of population. No person shall be chosen as a delegate by any political party in this State to represent such party in any convention, local, state or national unless such delegate is a duly qualified elector under the provisions of this amendment. No provision of this amendment shall be construed as, nor shall any laws be passed by General Assembly, prohibiting or unreasonably restricting the formation of additional political parties, or binding any political party in this State to any national political party bearing the same name.
Section 8. Any person possessing the qualifications for voting prescribed by this amendment, who may be denied registration, shall have the right to apply for relief to the Circuit Court for the county in which he offers to register. Said court shall then try the cause, giving it preference over all other cases, before a jury of twelve, nine of whom must concur to render a verdict.
Any duly qualified voter of this State shall have the right to apply to the Circuit Court to have stricken off any names illegally placed or standing on the registration rolls of any county within the jurisdiction of said court; and such application shall be tried by preference before a jury of twelve, nine of whom must concur to render a verdict. Such application hereinabove provided for shall be without cost.
Section 9. The following persons shall not be permitted to register, vote or hold office or appointment of honor, trust, or profit in this State, to-wit: Those who have been convicted of any crime which may be punishable by imprisonment in the penitentiary, and not afterwards pardoned with express restoration of franchise; those actually confined in any public prison or county farm; all interdicted persons, and all persons notoriously insane or idiotic, whether interdicted or not.
Section 10. The General Assembly shall further implement this amendment by appropriate legislation. The qualifications herein provided for are in addition to other qualifications as are now required by law except those laws in conflict herewith.
Article Y — Penalties
Section 1. No person, public official or employe of the State of Arkansas or of any political subdivision thereof, shall have immunity from arrest, prosecution and trial for the violation of the provisions of this amendment or penal laws the General Assembly shall provide for the willful failure and refusal to carry out the clear mandates of this amendment, and in addition to the penalties, shall automatically forfeit his or her office.
Section 2. Any person, public official, or employee of the State of Arkansas or of any political subdivision thereof, who shall wilfully fail and refuse to carry out the clear mandates of this amendment shall be deemed guilty of a misdemeanor and shall be punished by a fine of not more than $5,000.00 or imprisonment for not more than twelve (12) months, or by both such fine and imprisonment.
Article VI — Severability
Section 1. If any section, paragraph, sentence or clause of this amendment shall be held to be unconstitutional or invalid, the same shall not affect any other part, portion or provision of this amendment, but such other part shall remain in full force and effect.
Article VII — Repealing Provision.
Section 1. All parts of the Constitution of the State of Arkansas in conflict with this amendment be, and the same are, hereby repealed. | [
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HART, J.,
(after stating the facts). (1) On the question of the application of the payment of the $700 check but little need be said. It is the settled rule of this court not to disturb on appeal the finding of fact made by a chancellor unless such finding is against the clear preponderance of the evidence. Tested by this rule, we can not say that the finding of the chancellor should be disturbed. It is true that both Mr. and Mrs. Houser testified that they directed the credit to be upon the mortgage indebtedness in order that the property might be released from the mortgage. On the other hand, a member of the firm to whom the payment was made testified in positive terms that the payment was made for the express purpose of being applied to the account so that Mr. Houser might purchase other goods. He is corroborated by the bookkeeper of the firm. The other circumstances also tended to corroborate Mm. Houser was beMnd in Ms account to the firm in an amount of over $1,300. He wished to purchase more goods with which to continue his business, and it was necessary that a payment should be made on his account to enable him to do so. When the $500 payment was made on the mortgage it was so noted on the check by which the payment was made. No such notation was made on the $700 check. This and other circumstances were proper to be considered by the chancellor in determining whether or not Houser directed the payment to be applied to the note or agreed that it might be applied upon his account which was unsecured.
(2) By agreement of the parties the contract between Burchart & Levy and Houser made on the 1st day of November, 1910, in regard to the release of Houser was rescinded by the contract of November 10,1910. The parties to an accord and satisfaction may by a subsequent agreement rescind the same, and restore the debt to its original status. Heavenrich v. State (Minn.), 58 N. W. 982. In that case the court said:
‘ ‘ The findings of fact, including the sixth, as to which error is assigned, are fully sustained by the evidence. On those findings the only question is, can creditor and debtor, having made an accord and satisfaction, rescind the same, by a .subsequent agreement, so as to restore the debt to its original status, and so that it may be sued without reference to the accord and satisfaction, or the agreement rescinding it? We can conceive of no reason why they can not. It is true that by the accord and satr isfaetion, so long as it stands, the debt is extinguished. But when it is rescinded, matters stand as though it had never been made. ’
(3) In Feder v. Ervin, 38 S. W. 446, 36 L. R. A. 335, the Supreme Court of Tennessee held that when by mutual agreement a note which has been the subject of an accord and satisfaction is restored to the holder and notes and account^ received by him in satisfaction are returned to the other party, there is a rescission of the ac cord and satisfaction, and each party is restored to his original status.
It follows that the decree must he affirmed. | [
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HUMPHREYS, J.
Appellant, R. C. Cranford, was indicted, tried and convicted in the Saline Circuit Court for assault with intent to kill H. W. O ’Kelly, and his punishment was fixed at one year in the penitentiary.
Prom the judgment and sentence, he has prosecuted an appeal to this court.
It is insisted that the court erred in admitting statements made by appellant during the summer and prior to the alleged assault on the 1st day of September, 1916, as follows:
“If these scabs knew what I know they would be at home with their families.”
“If those damned scabs knew what I know, they would be home with their families if they have any families.”
(1) O’Kelly, who was shot, was one of a class denominated by appellant and other strikers as “scabs.” The witnesses testified that appellant made these statements to them during the summer prior to the shooting on September 1, 1916, and while a strike was on at the Bauxite Company’s plant, at Bauxite, Arkansas. The testimony was clearly admissible as tending to establish bad feeling toward a class of which O ’Kelly was a member, and a probable motive for committing the crime with which appellant was charged.
(2) It is next insisted that the conrt erred in permitting witnesses to testify that a sign was put up in front of appellant’s place during the strike, in words as follows: “No scabs allowed to cross this way.” Parties referred to in the sign had been going to and from their work over a trail way across the land appellant lived on. He had called them “scab's” on several occasions and had assumed a hostile attitude toward some of them. The sign was posted in front of his place. When on the witness stand, he did not deny being the author of the sign. Under all the facts and circumstances, the objection to this testimony on the ground that the evidence did not show appellant knew, or had anything to do with putting up the sign, is not tenable. It is said, however, that it was error to admit parol proof of the inscription on the signboard. Three witnesses testified to the inscription without objection on that ground. Even if the inscription on the board were the primary and best evidence, which we doubt, it was not prejudicial error to permit the third witness to testify to the inscription, when the inscription had been sworn to by two other witnesses without objection for that reason. Castevens v. State, 79 Ark. 453; Crowley v. State, 103 Ark. 315.
We doubt if the inscription comes within the rule of written instruments, but if so, this writing must have been treated as in the possession and control of appellant, if in existence, and, being in his possession, it was admissible to prove the contents by secondary evidence. The witness testified that he did not know where the signboard was, so, if lost or destroyed, it was admissible to establish the inscription by parol testimony.
But it is insisted that the inscription in no way connected appellant with the crime. We think it is a circumstance tending to show animus against a class of which O’Kelly was a member and to establish a motive for the assault.
Again, it is insisted that the court committed reversible error in admitting the action and performance of bloodhounds in trailing the supposed offender. Immediately after O’Kelly was shot, on the morning of September 1, 1916, guards were placed at the scene of the shooting to prevent anyone from walking over the trail. O’Kelly was removed to Bauxite, and Boh King, owner of the bloodhounds, was brought to Bauxite from Conway, arriving at the scene of shooting about ten o’clock on the same day. The dogs took up a hot trail at a hickory tree about twenty yards from where 0 ’Kelly was shot. The trail was not lost by the dogs until they arrived at appellant’s house. The dogs were let in the house and went to a” drawer of a dresser and scratched on it. The drawer was opened and five No. 12 gauge cartridges were found. The dogs then went to the north room in which a 12 gauge double-barrel shotgun was found under the bed. The right barrel had been recently fired. The dogs were then carried in an automobile to Bauxite, where they again took up the trail and located appellant in the office where he was under arrest. The dogs were of a pure strain of blood, registered, and the oldest one was a graduate of a training school for bloodhounds. Both dogs were experienced in trailing offenders of the law. The testimony showed that they were accurate, certain and reliable.
(3) This court has held in two recent cases that the evidence of the performance of bloodhounds in trailing offenders is admissible when the proper foundation for the introduction of such testimony is laid. Holub v. State, 116 Ark. 227; Padgett v. State, 125 Ark. 471.
Preliminary to the introduction of evidence touching the action and performance of the bloodhounds, sufficient proof was given showing that the dogs possessed qualities, training and accuracy in trailing human beings. The proper foundation was laid for the admission of this testimony.
Appellant contends that the evidence is not sufficient to sustain the verdict. The question of whether appellant shot O’Kelly as alleged, was an issue of fact to he determined by the jury. A case will not be reversed on appeal if there is any legal evidence to support, the verdict. If the evidence of the action and performance of the bloodhounds were eliminated, it might he argued with some force, on motion for new trial, that the verdict was contrary to the weight of the evidence. But even then, on appeal, there would he much legal evidence left to support the verdict. When the evidence of the action and conclusion of the bloodhounds is taken in connection with all the other facts and circumstances in the case, it can be said with a degree of certainty that there is ample legal evidence to support the verdict.
(4-5) Lastly, it is insisted that the case ought to be reversed because of the absence of proof of venue. The facts established that the shooting occurred within about two ’miles of the town of Bauxite. Venue may be established by a preponderance of the evidence. Direct evidence is not required. It may be proved by circumstantial evidence. The courts will take judicial notice of the location of cities and towns in the State, as well as boundaries of counties. Bauxite is in Saline County and the circumstances and direct proof, when taken together, clearly show that the crime was committed within that county. The following cases support the conclusion of the 'court that the venue in the instant case was sufficiently established. Holloway v. State, 90 Ark. 123; Lyman v. State, 90 Ark. 596; Douglass v. State, 91 Ark. 492; Farr v. State, 99 Ark. 134; King v. State, 110 Ark. 595.
We find no reversible error in the record, and the judgment is therefore affirmed. | [
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HUMPHREYS, J.
Appellee brought suit against appellant in the Western District of the Clay Circuit Court to recover damages for injuries received through the alleged negligent driving of an automobile by appellant along a public highway so as to frighten the team and overthrow the wagon in which she, her children and husband were traveling. The alleged negligence consisted in dashing up behind them at an unreasonable rate of speed and loudly and repeatedly sounding his horn, and refusing to stop his automobile. Appellant filed answer, denying the alleged acts of negligence. The cause was tried before a jury upon the pleadings, oral evidence adduced by both appellee and appellant, and the instructions of the court. A verdict was returned in favor of appellee for $600 and a judgment rendered in accordance therewith, from which an appeal has been prosecuted to this court.
Three alleged errors committed by the trial court are insisted upon here for reversal of the judgment. The first is- that the verdict is not supported by the evidence. As this case must be reversed for another reason, we refrain from discussing the evidence further than to say that under the rule of this court on appeal, there is sufficient legal evidence to support the verdict. The rule is that if there is some legal, competent evidence to support the verdict, the judgment will not he disturbed on appeal. Robinson v. Swearingen, 55 Ark. 55; Gazola v. Savage, 80 Ark. 249; Harris v. Ray, 107 Ark. 281. Therefore, we have not examined the record with a view of ascertaining where the weight or preponderance lies, but simply for the purpose of ascertaining whether the verdict is supported by sufficient competent legal evidence.
(1-2) The second alleged error consisted in admitting evidence of a previous negligent act by appellant in driving his automobile. On cross-examination appellant was required to testify that he had run by G-eorge Brown’s team in the night time, without any headlight on his automobile, and caused it to run away. Appellant objected to the question and answer and properly saved his exception. This court has adppted the rule, where the sole issue is one of negligence or non-negligence on the part of a person on a particular occasion, .that previous acts of negligence are not admissible. Railway Company v. Harrell, 58 Ark. 454, and cases therein cited on this particular point. But it is said that appellant answered questions of similar import without objections and exceptions, and for that reason no prejudice could result to him on account of this particular question and answer. Upon examination of the other questions and answers, we find that appellant was able to exculpate himself from negligence. The answer to this particular question tended to show negligence on appellant’s part. He was forced to admit that he had driven by a team on another occasion in the night time without a headlight on his automobile. This one previous negligent act may have influenced the jury in finding that the appellant was guilty of negligence on the particular occasion. At least, we cannot say the jury was uninfluenced by it. But it is further said that even if this character of evidence were inadmissible, no prejudice could result for the reason that the alleged negligence was established by other evi dence in the case. The rule contended for by appellant is only applicable where the alleged negligence is established by competent, undisputed evidence. Farrell v. State, 111 Ark. 180; Carter v. Younger, 123 Ark. 266, and cases cited therein on this particular point.
In the instant case, there is a sharp conflict in the evidence as to whether appellant was guilty of negligence in the manner alleged in the complaint. The court should have excluded this character of evidence when properly objected to.
The third and last alleged error consisted in giving Instruction No. 10, which is as follows: “You are instructed that the evidence with the respect to other teams becoming frightened at the automobile of the defendant will not be considered by you in the connection of the alleged negligence at the time of the alleged injury here. You will consider same only as it tends to affect the credibility of the defendant as a witness in this case, and the care ordinarily exercised by defendant in operating an automobile.”
(3) It was improper to instruct the jury to the effect that they should consider this character of evidence for any purpose. Not being competent evidence to establish the issue, joined, it was clearly error for the court to instruct the jury to consider the evidence as affecting the credibility of appellant, or tending to establish the care ordinarily exercised by appellant in operating an automobile.
For the errors indicated, the judgment is reversed an'd the cause remanded for a new trial. | [
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HUMPHREYS, J.
Appellant, as assignee of the Sebastian County Bank, instituted this suit against appel-lees on the 3d day of September, 1915, in the circuit court of the Fort Smith District of Sebastian County, upon a judgment obtained by the Sebastian County Bank against appellees for $137.00 before C. R. Tate, a justice of the peace in Sebastian County, on the 15th day of June, 1910.
Appellee Holland filed answer, pleading payment, and a cross-bill claiming $413 for legal services rendered the Sebastian County Bank before appellant took over its assets and assumed its liabilities.
Appellant filed a reply, denying payment and liability on cross-bill, and invoked the three years’ statute of limitations as a special defense to appellee’s claim on account of legal services.
The cause was tried by the court sitting as a jury, on the pleadings and evidence adduced, upon which it based its findings of fact and law adverse to appellant. .
The original suit was dismissed and judgment rendered on the cross-bill in favor of John H. Holland for $100.00.
From this judgment an appeal has been properly prosecuted to this court.
It is insisted that the evidence is not sufficient to support the finding of the court to the effect that the Sebastian County Bank employed John H. Holland by the year, upon agreement that his yearly retainer of $50.00 per year and special fees should be credited upon any indebtedness that John H. Holland might become obligated to pay said bank, directly or by indorsement on notes for others, during'his employment. The finding of the court will not be disturbed on appeal if there is any substantial legal evidence to support it. The evidence shows that R. O. Herbert, cashier of the bank, employed Holland in the year 1909 as regular attorney for the bank at an annual retainer of $50 per year, with the understanding that he should receive1 a reasonable fee, in addition thereto, for each case in which he represented the bank; and that his annual retainer and other fees should be credited on any indebtedness that Holland might incur to the bank during his employment. This arrangement continued until the 1st day of August, 1912, when Holland moved to Fort Smith from Greenwood. The relationship of general attorney then ceased, but under an agreement that Holland should remain in all cases then pending.
(1) The records of the bank fail to show that the directors authorized the cashier to employ Mr. Holland, and for this reason, it is insisted that the evidence is insufficient to support the court’s finding. Appellant has cited the case of Dent v. Peoples Bank of Imboden, 118 Ark. 157, in support of its contention that an officer of the bank can not employ an attorney by the year without authority from the board of directors. The court so held in that case. But the same case is also authority that a bank is responsible on a contract of employment of an attorney by the year through its officers, if ratified by its directors; and also authority for the doctrine that the president’s and cashier’s authority to employ may be implied from the course of the conduct of the bank’s affairs. There is ample in the evidence relating to the conduct of the bank’s affairs from which to reasonably infer that the directors not only knew that Mr. Holland had been employed by the year, but to infer that they ratified the employment by the cashier. The finding of the court in this regard is supported by the evidence. Under the contract, the court was correct in treating the amounts due Holland for annual retainers as payments upon his indebtedness to the Sebastian County Bank. The amounts due as retainers more than liquidated the judgment upon which this suit is based.
It is insisted that reversible error was committed by the court in finding that appellant was indebted to appel-lee in the sum of $100 as a fee for services rendered in the case of Sebastian County Bank v. T. J. Hughes and the subsequent proceedings growing out of it, wherein Celia Hughes attempted to prevent the sale of property levied upon to satisfy the original judgment. Holland brought suit for the bank and obtained judgment against Hughes in the month of January, 1912, for $2,000. He raised an execution and levied upon real estate supposed to be the property of T. J, Hughes. Celia Hughes, claiming to be the owner thereof, instituted proceedings by injunction to prevent the sale. Holland filed answer to the injunction proceedings. The injunction was dissolved by the chancery court on the 17th day of February, 1914. The decree dissolving the injunction was attacked by motion and bill of review. At the April terms, 1914, of the chancery court, the motion was overruled and a demurrer sustained to the bill of review. The case found its way to the Supreme Court, where it was decided on the 12th day of April, 1915, adversely to Celia Hughes.
(2) The evidence is undisputed that Holland conducted the proceedings in behalf of the hank until the hearing before the chancellor on the 17th day of February, 1914, and that he was present on that date. At that time, Geo. W. Johnson had been retained by the Sebastian County Bank as its regular attorney and became active in the Hughes case. The evidence is conflicting as to the extent of Holland’s participation in the proceedings from February 17,1914, to the 18th day of January, 1915, when the transcript was lodged in the Supreme court. He took no part in the proceedings in the Supreme Court. There is ample in the evidence to support the finding of the trial court to the effect that Holland rendered legal services to the bank in the Hughes cases to the amount of $100 within the .statutory period of limitations, and therefore his claim is not barred. We have read the evidence carefully and can not follow learned counsel in his contention that Holland abandoned the Hughes case. The most that can be said is that by common consent the active control of the proceedings was assumed by the regular attorney of the bank. At the time the case was appealed to the Supreme Court, it may be said that Holland’s connection had been effectually severed, but by assent and acquiescence and not by abandonment. When the entire control of the case passed to Mr. Johnson, the regular attorney for the bank, Holland’s fee matured and his right of action therefore accrued within three years next before he filed his cross-bill.
No error appearing in the findings of fact and declarations of the law by the court, the judgment is affirmed. | [
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SMITH, J.
This suit was commenced by appellee in the court of a justice of the peace to recover a balance alleged to be due upon three cars of lumber shipped to appellant by appellee. The contract of sale was evidenced by a writing, the material portions of which are as follows :
“Potts Camp, Miss., Aug. 12,1913.
“To John M. Goolsby, Myrtle, Miss.:
“Fifty M. Ft. ash lumber at prices named F. O. B 15c rate to Evansville, Ind., for immediate shipment. (Dimensions described.)
“Mr. Goolsby agrees to ship this stock and guarantee the inspection. National lumber rules to govern the inspection. In case of dispute, National man to be called on to go through stock. Terms 80 per cent, upon receipt of B-L and invoice. . Balance when I receive returns from customers. Bill everything to N. A. Webster from N. A. Webster at Evansville, Ind., till further notice (Goolsby has copy of this; mail him formal order) and mail me B-L and invoice, show routing on each B-L. Stock can be either green or dry, but must be well mfg. of good widths and lengths. In event you “ship green oak, put sticks between each course to prevent staining and damaging.
“N. A. Webster,
“Per J. W. Runyan.
‘‘Accepted, J. M. Goolsby.
‘ ‘ Also one or more cars plain and Qtd. oak at prices named delivered on an Evansville rate of frt. same instructions apply as given on ash.
“Plain Bed & W. Green or dry.”
The clause in the contract, “Also one or more cars plain and Qtd. oak, ’ ’ was indefinite, and, according to appellant, this question was taken up with appellee by a Mr. Runyan, who was appellant’s agent and who had acted for appellant in making the original contract of sale, and, after some correspondence and negotiation, it was agreed that the contract should he construed as meaning 100,000 feet of oak at the prices set out in the contract.
Three cars of lumber were shipped under the contract, each containing some oak, and, together, they contained the equivalent of one car of oak. The date of the shipment of these cars is one of the questions of fact involved in the case. Upon the shipment of the first car, appellee drew on appellant, with invoice and bill of lading attached, and payment of the draft was refused by appellant upon the ground that appellee had no authority to draw. The lumber had been shipped under an open shipment, that is, it had not been shipped C. O. D., and all the cars were shipped in the same manner, and, in due course, were delivered to appellant’s customer at their destination. One of the issues in the case was the authority of appellee to draw the drafts with invoices and bills of lading attached. Appellant testified that he had contracted against the right of appellee to draw on him with bill of lading and invoices attached, and that these writings should be mailed to him so that he might have time to thoroughly check over the invoices and ascertain that drafts had not been drawn for more than 80 per cent, of the value of the lumber covered by the invoice and to make it unnecessary to have an inspector on the ground as the lumber was being loaded out.
Whatever may have been the reason leading to the use of the language employed, it appears that appellant’s construction of the contract is correct, and that under its terms appellee had no right to draw on appellant with the invoices and bills of lading attached, and the court should have so told the jury. It is said, however, that after a controversy arose over the first car shipped a conference was had between appellee and Eunyan, when it was then agreed that shipment should continue under the contract, and that appellee might draw for a sum not exceeding 80 per cent, of the invoice price of the lumber shipped. It was competent for the parties to subsequently amend their written contract by changing its provisions, and if it was so changed as to confer the right to draw with invoice and bill of lading attached, instead of mailing them to appellant, then appellee thereafter had the right to draw with invoice and bill of lading attached.
At the trial in-the justice of the peace court the following stipulation was entered into:
“Agreement on Partial Statement of Pacts.
“The undersigned attorneys representing respectively the plaintiff and the defendant in the above styled cause hereby agree upon and admit the following facts and waive formal proof thereof in the trial of this cause: ‘That in the contract between the parties hereto, said John M. Goolsby sold and agreed to furnish said N. A. Webster, 50,000 feet of ash lumber and 100,000 feet of plain and quartered oak lumber, that the contract as to the said ash lumber is the written contract attached hereto marked Exhibit “A” and made a part hereof,’ and that said contract was signed thereon as indicated by said J. M. Goolsby, that said contract was the contract between said parties as to said plain and quartered oak lumber except the phrase in said contract, ‘One or more cars plain and quartered oak,’ was not satisfactory and to explain, make definite, and in lieu thereof it was agreed between the parties hereto, in which agreement J. W. Eunyan represented the defendant as his agent, that said phrase in said contract should read and mean and in lieu of said phrase ‘100,000 feet of plain and quartered oak lumber.’
“That in figuring the amount due on the lumber shipped in three cars shipped a mistake of $100 in the addition was made and that said mistake was first called to J. W. Runyan’s attention in a letter hereto attached marked Exhibit ‘B’ and made a part hereof, and that said Runyan also received two other letters which are hereto attached and said letters were by said Runyan turned over to said .Webster, said two letters being marked Exhibits ‘ C and D ’ hereto.
“W. H. Arnold and H. M. Barney,
“Attorneys for Plaintiff.
“Will Steel,
“Attorney for Defendant.
“Filed 9th of November, 1915.
“ J. C. Edwards, J. P.”
It is admitted that Mr. Barney, acting for Goolsby, was his attorney at the time, and had all the authority possessed by an attorney, and that nothing was said about limiting the use of the stipulation to the trial in the justice court, although Mr. Barney testified this was his intention at the time, and that he entered into the stipulation for the purpose 4only of securing a trial there, as the cause had been pending in the justice court for some time. It is true that, after the trial in the justice court, appellant took the deposition of Runyan; but no part of the deposition related to the matters covered by the stipulation. Appellant’s attorney explains his failure to take a deposition upon these questions by saying that those matters were covered by the stipulation, and he considered it unnecessary to do so.
Three cars of lumber were shipped, and two drafts were drawn, and one of the issues of fact was whether the last draft covered all three of the cars, or only the first two. The relevancy of this question is that, if the draft covered only two cars, instead of three, it was drawn for an excessive amount, in that it exceeded 80 per cent, of the invoice price of the lumber shipped. The quantity and value of the lumber is not now in dispute, but the amount shipped did not equal the amount covered by the. contract, and as appellant had sold the lumber which he had contracted to buy from appellee, he was required to purchase this lumber to fill his own contracts of sale at a price greater than that named in his contract with appel-lee, and he filed a counterclaim in which he asked judgment for this difference in price by way of damages. The quantity of oak covered by the contract became a highly important question, and appellant contends that the stipulation fixed this amount at 100,000 feet, whereas there was admitted in evidence a letter from appellant to ap-pellee confirming the original contract as a sale of one or more cars of oak.
When evidence was first offered tending to contradict the recitals of the stipulation, counsel for appellant objected to any evidence having that purpose upon the ground that the truth of the matters covered by the stipulation was concluded by the recitals of that instrument. Counsel for appellee contended that the stipulation covered only the trial in the justice court, and the court heard the evidence set out above on that issue, but reserved a decision at the time, and finally allowed the jury to consider this stipulation, along with all of the other evidence in the case, as determining what the truth was in regard to the facts there recited. This ruling was made after the introduction of the evidence' was concluded and the instructions were being settled. Counsel for appellant said, “Tour Honor, I understood that the court was to instruct the jury relative to my request that the written agreement of counsel filed in the lower court with the exhibit attached was the contract between the parties hereto, and I would like for the court to instruct the jury that this written agreement is the contract between Goolsby and Webster, and is binding in this trial. ’ ’
This request was refused, and that action of the court is assigned as error. .
(1) We think this action of the court was erroneous. There was either a stipulation or there was none. If there was such a stipulation, it should have been given effect. It would be, and is, an anomalous situation to have litigants stipulate as to what the facts are for the purposes of a trial, and then to admit evidence contradicting the recitals of such stipulation. There was a stipulation. This fact is not questioned; but it is said that it was intended for use in the trial in the justice court only. Presumptively this is not true. The stipulation contained no such limitation, and, in the absence of such limitation, the presumption is that it was intended for use at any stage of the litigation. 16 Cyc., pp. 973, 974. In 1 Ruling Case Law, page 778, paragraph 5, it is said: “Where parties to a case agree to submit the same for decision upon an agreed statement of facts and nothing is said in the agreement to the contrary, each party is absolutely bound and concluded by the statement of facts, thus agreed to, so far as the trial in which the stipulation made is concerned, and where the agreement is not expressly limited to use in the trial in which it is made, it is admissible in evidence as an admission in any other trial or litigation between the same parties where the same issues are involved, but it is not absolutely binding and conclusive upon the parties in other litigation.”
(2) The authorities are to the effect that the court may permit parties who have entered into a stipulation to withdraw therefrom and to annul the stipulation. But permission to this effect must be obtained, and valid cause therefor showni, and, in the absence 'of such permission obtained and cause shown, the stipulation remains binding on the parties thereto, and all the parties thereto have the right to assume that its terms will not be questioned, and the right to its use will not be resisted. The rule, of course, is otherwise where fraud or imposition was practiced in the procurement of the stipulation, for in such cases there is no stipulation. But it is not here contended that any fraud or imposition was practiced in the preparation of the stipulation in this case. A number of cases on this subject are cited in the note to the case of Northern Pacific R. R. Co. v. Barlow, 20 N. D. 197, 126 N. W. 233, 24 Am. & Eng. Ann. Cas., p. 763. These cases hold that the trial courts have a discretion in deter mining when and under what circumstances parties will be permitted to annul their stipulations, and announce the rule to be that the discretion of the court on this subject will not be reversed unless an abuse of litis discretion is shown.
This appears to be the proper, as well as the general, rule. Here the court did not annul the stipulation, but let the jury consider it along with all the other evidence in the case in determining what the agreement between the parties was. And this action was erroneous.
As tending to show the number of cars of lumber covered in one of the drafts drawn on appellant by ap-pellee, appellant undertook to offer in evidence a telegram to him from his stenographer, and his reply thereto, but this evidence was excluded by the court, and that action is assigned as error. We think the court properly excluded this evidence, as appellee was in nowise a party to this correspondence, and the same is objectionable as a self-serving writing.
A number of other questions are discussed in the briefs, but, in view of what we have said, we find it unnecessary to discuss them here.
The judgment will be reversed and the cause remanded for a new trial. | [
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Ed. F. McFaddin, Associate Justice.
The Trial Court sustained the plaintiff’s (appellee’s) motion for judgment on the pleadings; and defendant (appellant) brings this appeal. The ultimate question posed in the case is the effect of the appellant’s bankruptcy discharge on the monthly payments claimed by the appel lee; but we cannot reach this ultimate question because we conclude that the Trial Court was in error in rendering a judgment for the plaintiff on the pleadings, and thereby refusing to hear the evidence.
In May 1956 Mary E. Karoley filed the present suit against John D. Reid in the. Chancery Court, alleging:
“That on or about the 13th day of November, 1951, plaintiff entered into a contract with the defendant, a copy of said contract appearing in the record of the case of Mary E. Karoley v. John D. Reid in the Pulaski County Chancery Court, Case No. 97073; said copy of contract referred to herein is made a part hereof as fully as though set out word for word herein . . .
“Plaintiff further states that the defendant has refused and failed to make any payments from March, 1955, up to and including May of 1956, and that there is now due and owing upon the said contract to the plaintiff the sum of $3,500.00.”
The complaint prayed for judgment in the sum of $3,-500.00 with interest and costs. Reid filed an answer, and three amendments to the answer. The effect of the original answer was to admit a contract and the original delinquencies, but to plead Reid’s bankruptcy as a release from all liability. In the amendments, Reid (1) denied that Karoley was entitled to any judgment; (2) pleaded Reid’s discharge from bankruptcy as a release; and (3) denied that Karoley was still single and unmarried. With the record in this condition, the Trial Court, over Reid’s objections, rendered judgment on the pleadings for Karoley for $6,250.00. On this appeal, we discuss three points.
I. The Rule As To Jiidgment On The Pleadings. The rule is well established that judgment on the pleadings can be rendered only when, after giving every reasonable intendment to the pleadings of the respondent, the pleadings still show on their face that the respondent has no defense. Story v. Cheatham, 217 Ark. 193, 229 S. W. 2d 121. In 41 Am. Jnr. 520, in discussing a motion for judgment on the pleadings, the holdings of various jurisdictions are summarized in this language:
“Being in the nature of a demurrer, a motion for judgment on the pleadings raises an issue of law only . . . But it is proper where there is an entire failure to state a cause of action or defense. In a strict motion for judgment on the pleadings, parol evidence is not admissible.
“In determining the right of a party to a judgment on the pleadings, the real question to be determined is the sufficiency of the admitted facts to warrant the judgment rendered, and the materiality of those upon ivhich issue is joined. A motion for judgment on the pleadings should be sustained when, under the admitted facts, the moving party would be entitled to judgment on the merits, without regard to what the findings might be on the facts on which issue is joined. The motion, however, is not favored by the courts; pleadings alleged to state no cause of action or defense will be liberally construed in favor of the pleader ... If there is joined an issue of fact upon which, if supported by the evidence, a valid judgment may be based, a judgment on the pleadings is improper. The court cannot anticipate what the proof will show.”
Measured by the foregoing, it is apparent that the pleadings in the case at bar did not show that Karoley was single or that the amount of Reid’s default was $6,250.00. It was admitted in oral argument before this Court that admissions outside of the record were made by the attorneys in the course of the hearing before the Trial Court and that it was these admissions which caused the Chancery Court to set the figure at $6,250.00 and to decide that Karoley was single. But these admissions were not in the pleádings; and we must test the correctness of a judgment on the pleadings by what ap pears in the pleadings and not by factual admissions outside the pleadings.
II. Incorporation By Reference. Furthermore, there is another defect in the judgment on the pleadings. The complaint attempted to incorporate by reference a contract, a copy of which is alleged to have been filed in another case in the Pulaski Chancery Court. We have heretofore copied all of the language in the complaint as to the contract. No copy of the contract was attached to the complaint in this case (which was No. 105107 in the Pulaski Chancery Court); and since the judgment was rendered on the pleadings, the only way the Trial Court could have known what the contract was would have been to examine the pleadings in another case.
In 71 C. J. S. 28 “Pleadings” Key § 9, cases are cited to sustain the following textual statement:
" The allegations of a pleading in another independent action ordinarily cannot be adopted, even by agreement of the parties, unless they are copied into the pleading. ’ ’
The language in Karoley’s complaint, as to adoption by reference, was sufficient to have allowed the contract to be introduced in evidence ; but the case never reached the stage for introducing evidence. Karoley moved for judgment on the pleadings; and in considering the pleadings no contract was shown except by reference to some other case. The reference might just as well have been to a contract filed in another State, or a contract in the attorneys’ office, or in some other place. The contract could have been introduced in evidence, but it was not sufficiently shown in the pleadings to support a judgment on the pleadings.
Counsel for appellee tell ns that the contract is set out in full in the case of Karoley v. Reid, 223 Ark. 737, 269 S. W. 2d 322; but that is a separately numbered case. When Karoley v. Reid, 223 Ark. 737, 269 S. W. 2d 322 was reversed and remanded, it came back before us in the case of Karoley v. Reid, 226 Ark. 959, 295 S. W. 2d 767, and was there affirmed. As aforesaid, the present case is not a continuation of either of those cases, but is a new case; and the adoption by reference was fatally defective in the case at bar insofar as judgment on the pleadings is concerned.
III. Designation Of Points In Notice Of Appeal. Appellee says that Reid has waived all of the matters discussed in Topics I and II because in the Trial Court Reid assigned only one error, which was: “Discharge of the defendant, John D. Reid, in the United States District Bankruptcy Court discharges defendant’s obligation under the contract in controversy.”
This contention of appellees requires a consideration of a portion of Act No. 555 of 1953: the portion of which, germane to the point now under discussion is in Section II, which reads: “No motion for new trial and no assignment of errors shall be necessary. If the appellant does not designate for inclusion the complete record and all the proceedings and evidence in the action, he shall serve with his designation a concise statement of the points on which he intends to rely on the appeal.”
It will be observed that “no assignment of errors shall be necessary”; and yet in the Trial Court the appellant assigned as error the point that we have previously copied. The question is, whether such assignment, made in the Trial Court though not required, precludes appellant from listing other assignments in his brief in this Court. The case of Twin City Lines v. Cook, 226 Ark. 657, 291 S. W. 2d 810, is apropos. There, the appellant filed in the lower Court a motion for new trial in which he failed to mention one of the points that he subsequently argued on appeal in this Court. It was urged that since he had not mentioned the point in the motion for new trial, he therefore was prevented from arguing the point in this Court. We held that since the Act No. 555 of 1953 said, “No motion for new trial and no assignment of errors shall he necessary,” the filing of the motion for new trial was a mere surplusage and conld not preclude the appellant from mailing his assignment of points in his brief in this Court. The same rule is applicable here. The law did not require the appellant to file any assignment of errors in the Trial Court in this case, so the assignment that he filed was a mere surplusage, and he is not precluded from raising here the point previously mentioned regarding the failure of the pleadings to support the motion for judgment on the pleadings.
We must emphasize that wThen only a partial record is brought up, there must be filed in the Trial Court a statement of points. The Statute (as quoted) says: “. . . a concise statement of the points on which he intends to rely for appeal . . .” But when — as here —the entire record is brought up by appellant, then any “concise statement of the points on which he intends to rely for appeal” is surplusage; and the appellant can designate his points in his brief filed in this Court, and is not foreclosed by the surplusage filed in the Trial Court.
The judgment rendered on the pleadings is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion; but this being an equity case, we adjudge all costs of this appeal against the appellant.
The briefs herein contain the statement that these sama parties have been before this Court in two previous appeals: being Karoley v. Reid, 223 Ark. 737, 269 S. W. 2d 322; and Karoley v. Reid, 226 Ark. 959, 295 S. W. 2d 767. But the present litigation is not a reappearance of either of the former cases: this is a new case.
To the same effect as the quotation given, see 71 C. J. S. 861 et seq. “Pleadings” § 424.
But oven under our Statute (§ 27-1143), it is necessary to attach a copy of the instrument.
This is found in § 27-2127.5 of the Cumulative Pocket Supplement of Arkansas Statutes. | [
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George Rose Smith, J.
During the year 1956 the appellee Glover raised rice upon his own land and upon fifty-two acres rented from the appellant Finley. This action was brought by Glover to recover for damage inflicted upon the crop by the appellant’s cattle, it being shown that the animals were negligently allowed to enter the fields and graze on the rice. There was a verdict for the plaintiff in the sum of $3,400.
Three points áre relied upon for reversal. First, it is contended that the court erred in striking a cross-complaint that Finley had filed on the day before the trial. The case had been pending for several months and had been set for trial twenty-five days in advance. The cross- complaint averred several new matters, not related to the plaintiff’s cause of action, and would doubtless have resulted in a continuance. In these circumstances we find no abuse of the trial court’s discretion. Butler v. Butler, 176 Ark. 126, 2 S. W. 2d 63.
Secondly, Finley complains of a reference to bad checks that was made by the plaintiff’s attorney in his statement to the jury. Not only did the court at once admonish the jury not to consider counsel’s statement until it was proved, but also Finley admitted on cross-examination that he had paid for feed with a bad check. There was no error.
Thirdly, the appellant makes a dual attack upon the instructions about the measure of damages. In substance the court fixed the measure of damages as the fair market value of the rice at the time of its damage. Finley objected generally and also specifically on the ground that the jury should have been told to consider the expense of planting, cultivating, and harvesting the crop. The cost of planting entered into the value of the growing crop and could not fairly have been deducted. Had the instruction referred to what the value of the crop would have been if it had matured without damage, then it would have been necessary for the jury to be instructed to deduct those production expenses that were eliminated by the partial destruction of the crop. St. Louis S. W. Ry. Co. v. Morris, 76 Ark. 542, 89 S. W. 846. But here the charge referred only to the fair value of the rice at the time of the damage, which is also a correct way of stating the measure of permissible recovery. Miller v. Wheat, 208 Ark. 636, 187 S. W. 2d 176.
Alternatively, it is insisted that if the instructions were correct then there was no proof of the value of the crop at the time it was damaged. There was, however, evidence of what the value would have been at maturity, and we have held that such testimony supports the verdiet even without direct proof of the gathering and marketing expenses. Rogers v. Stillman, 223 Ark. 779, 268 S. W. 2d 614. Since the jury awarded less than two thirds of the estimated maturity value of the lost rice, it is evident that the production costs were taken into consideration.
Affirmed. | [
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Minor W. Millwee, Associate Justice.
■ The appellants, James George Reaves and Lonnie Neal, were jointly charged, tried and' convicted of burglary and grand larceny by breaking into the Bén Powell' Chevrolet Company at Trumann, Arkansas, and stealing certain property valued at more than $1,000.00. The amended information also charged prior felony convictions of both appellants. In their verdict the jury left the punishment to the trial court. Reaves was sentenced to ten years for burglary and ten years for grand larceny, the sentences to run consecutively. Neal was given similar sentences of . ten years for burglary and five years for grand larceny.
We first consider the sufficiency of the evidence to support the verdict. Sherman Coppell operates and lives in the rear of a restaurant located next to, and in the same building occupied by, the Ben Powell Chevrolet Company at Trumann, Arkansas. Coppell testified that he and his son-in-law, Harry Eubanks, were occupying these living quarters on the night of April 21, 1957. About four o’clock the next morning they heard hammering noises in the office of the automobile company and observed a car backed up to the front of the building. When the telephone operator did not respond to his call in an effort to notify the police, Coppell threw a tub out the rear door of his restaurant toward the place where the office safe of the automobile company was located. He wrote down the Illinois license number of the car as Eubanks read it and saw two or three men leave the auto company store in the Ford automobile after putting some object in it.
The owner of the automobile company was notified and found his safe had been broken into and $980.00 in checks, money orders and cash missing in addition to an adding machine worth $50.00 and a 35-horsepower outboard motor and fuel tank. In response to radio alarms, several officers in three automobiles pursued and overtook the Ford automobile in which the appellants and a codefendant, G-eorge F. Garner, were riding. The missing adding machine, outboard motor and fuel tank were in the rear trunk of the car and the checks and money orders were scattered along the route. Three loaded pistols, a glove and a 1957 Alabama automobile license plate were also found in the car. Reaves admitted ownership of the car to arresting officers and had $1,048.96 in his possession and Neal had $48.46 on his person. Both parties had previously been convicted of felonies as charged in the information.
Appellants declined to offer any testimony in contradiction to that adduced by the state. When considered in the light most favorable to the state, this testimony was sufficient to sustain the verdict. Aside from the evidence directly connecting appellants with the bur glary and larceny, we have frequently held that the possession of recently stolen property, if unexplained to the satisfaction of the jury, is sufficient to sustain a verdict of either larceny or receiving stolen property. Sons v. State, 116 Ark. 357, 172 S. W. 1029; Shoop v. State, 209 Ark. 498, 190 S. W. 2d 988.
Appellants next contend that the court erred in the admission of certain testimony regarding the ownership and identification of the adding machine and outboard motor recovered from the car occupied by appellants at the time of their arrest. T. M. Hunn, manager of the Ben Powell Chevrolet Company, testified that he compared the serial number of the adding machine recovered from appellants’ car with that taken from a list of company property kept in his office in the usual course of business and that the two numbers were identical. Another witness gave similar testimony with reference to the serial number of the outboard motor. Appellants now argue that this testimony was inadmissible as hearsay evidence under our holding in Jackson v. State, 226 Ark. 731, 293 S. W. 2d 699. In that case we held that the rule excluding hearsay testimony extends to written as well as oral statements, and that evidence otherwise incompetent as hearsay is not admissible merely because it is written or printed. The only objection made by appellant to the testimony at the trial was that the witness himself did not actually make the list or record and, hence, was not in position to know whether it was correct or not. It should be noted that neither the serial number nor the list of either item was ever offered in evidence. If it had been, the State would perhaps be correct in its contention that it would have been admissible under our statute (Ark. Stats. Sec. 28-928). The statement by the witnesses that they compared the two serial numbers was one of fact and not merely hearsay, although it might have been shown to be based on hearsay by further development of the evidence or cross-examination of the witness. Since this was not done and since the objection now argued was not made at the trial, it may not be raised for the first time on appeal.
It is next contended that it was error to admit testimony regarding the finding of the three pistols and other articles in the car used and occupied by the appellants without a search warrant. We have repeatedly held such evidence by arresting officers admissible in the absence of a search warrant. Knight v. State, 171 Ark. 882, 286 S. W. 1013; Garner v. State, 184 Ark. 1093, 44 S. W. 2d 1092. See also, Banks v. State, 207 Ala. 179, 93 So. 293, Cert. Denied 260 U. S. 736, 67 L. Ed. 488, 43 S. Ct. 96.
Appellants also objected to the introduction of photographs of the automobile company office and safe and the articles found in the automobile. These photographs, which were taken shortly after the burglary, were shown to he true and accurate pictures of the articles and place mentioned by those in a position to know. The admission and relevancy of such matters rests largely in the discretion of the trial court. We cannot say this discretion was abused, and conclude that the photographs enabled the witnesses better to describe, and the jury better to understand, the testimony. See Oliver v. State, 225 Ark. 809, 286 S. W. 2d 17.
Appellant Reaves urges error in the denial of his motion to disqualify the trial judge on account of alleged bias and prejudice against said defendant. The court directed that Reaves, who was on hail, he taken into custody during the trial when it was brought to the court’s attention that he had indicated that he might attempt to fix or tamper with the petit jury. Ark. Constitution, Art. VII, Sec. 20, provides: “No judge or justice shall preside in the trial of any cause in the event of which he may be interested, or where either of the parties shall he connected with him by consanguinity or affinity, within such degree as may be prescribed by law; or in which he may have been of counsel or have presided in any inferior court.” Ark. Stats., Sec. 22-113, fixes the fourth degree of consanguinity or affinity as that “prescribed by law” under this provision of the Constitution. As this court pointed out in Jones v. State, 61 Ark. 88, 32 S. W. 81: “There is no provision of our constitution or statutes that disqualifies a judge for prejudice. If having formed an opinion as to the guilt or innocence of a defendant on trial in a criminal case was a disqualification of a judge presiding at the trial, it would often be a difficult matter to find a judge that would not be disqualified. ’ ’
Whether a defendant remain on bail or be kept in actual custody during his trial for a felony is a matter within the sound discretion of the trial judge under our statutes (Ark. Stats., Secs. 43-710 and 43-2103). We find no abuse of that discretion here, and none of the matters mentioned in the constitutional provision and statute as disqualifying a judge to preside were shown.
Appellant Reaves also argues that the punishment is unreasonable and excessive, but the motion for new trial contains no assignment of error on this ground. Besides, it was within the peculiar province of the trial court to assess the punishment. This was done well within the limits fixed by statute and, under the testimony presented, we do not feel warranted in substituting our judgment for that of the trial court. See Cox v. State, 164 Ark. 126, 261 S. W. 303; Garner v. State, supra; McHenry v. State, 219 Ark. 401, 242 S. W. 2d 707.
The judgment is affirmed.
Robinson, J., concurs. | [
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Jim Johnson, Associate Justice.
This is an appeal from an order of the trial court construing a mandate of this Court.
On June 9, 1958, in the ease of Harbour v. Harbour, 229 Ark. 198, 313 S. W. 2d 830, this Court handed down a decision increasing from $50.00 to $125.00 per month alimony and support payments that Mr. Harbour should make to Mrs. Harbour, or an increase of $75.00 per month. Later, in a Petition for Rehearing, Mr. Harbour asked that such required monthly payments be reduced and that whatever increase was allowed should be effective as of June 9, 1958, the date of the original opinion of this Court.
The Petition for Rehearing was granted to the extent of reducing the monthly payments to $100.00 per month to be effective as of June 9, 1958. This was done "by a per curiam order of this Court dated July 1, 1958, the pertinent parts of which read as follows:
“Appellant’s Petition for Rehearing is granted to the extent of reducing the $125.00 payment per month to $100.00 per month, commencing on June 9, 1958.”
It is our conclusion that the above language is clear and definite and is not susceptible to any different construction other than that the payments should begin on June 9, 1958.
Therefore, we hold that the increase in the payment to $100.00 should be from July 9, 1958, and not from August 1,1957, as held by the trial court. See Watkins v. Ackers, 195 Ark. 203, 111 S. W. 2d 458.
Accordingly, the decree of the trial court is reversed.
PER CURIAM
On Rehearing
When this case was tried in the chancery court on July 25, 1957, there was on deposit in court the proceeds from property owned by Mr. and Mrs. Harbour which had been taken by the Highway Department for highway purposes. $7,825 came from property owned as an estate by the entirety, and there was $1,025 which was in payment of a lot owned by Mr. Harbour, making a total of $8,850 in the registry of the court. Of this sum Mrs. Harbour was given $3,912.50 as her part of the estate by the entirety and $233.27 as her dower interest in the $1,025. She was also given $709.67 as accrued and delinquent alimony and $2,100 in payment of alimony to accrue in the future. This made a total of $6,955.44 that was awarded to Mrs. Harbour out of the total of $8,850. On appeal to this Court it was held, in an opinion handed down June 9, 1958, that Mrs. Harbour was not entitled to the $2,100 in payment of future alimony (Harbour v. Harbour, 229 Ark. 198, 313 S. W. 2d 830) hut that the original allowance of $50 a month as alimony and as support for a child should he increased from $50 to $125 per month.
This Court’s opinion was not specific in stating whether the increase should be effective from the date of the decree of the trial court or from the date the case was decided here. In a petition for a rehearing, Mr. Harbour contended that $125 per month was too much to require him to pay and, further, that whatever increase was allowed should date from June 9, 1958, the date the case was decided by the Supreme Court. In response to the petition for a rehearing, Mrs. Harbour contended that the monthly payments should start as of August 1, 1957. Thus, on the petition for a rehearing there were two principal issues before this Court, both points having been briefed by the parties: (1) The amount of the alimony and support; and (2) when the increase should start. This Court granted the petition for a rehearing to the extent of increasing the alimony and support to $100 per month instead of $125 per month, as had been ordered in this Court’s original opinion. And, in response to both parties’ request that the opinion be clarified by stating the date the increase in alimony and support should start, this Court in a percuriam opinion ordered that the $100 per month be started as of June 9, 1958, the date the original opinion was handed down by this Court. The trial court was of the opinion that the clerk of the Supreme Court by stating in the mandate that the $100 per month payments should start as of June 9,1958, misconstrued the decision of the Supreme Court, and the trial court rendered a decree providing that the $100 per month should start August 9, 1957. Mr. Harbour appealed, again contending that the $100 payments should start as of June 9, 1958.
The clerk made no mistake in construing the per curiam, opinion, which is recorded in Volume C-44, page 88, of the records of proceedings of the Supreme Court of Arkansas signed by all the members of this Court. And on February 2, 1959, the trial court’s decree fixing as August 9, 1957 the date the $100 per month became effective was reversed. On petition for a rehearing Mrs. Harbour insists the $100 per month payments should commence at the time the original decree was rendered by the trial court. But when the amount each party received from the property is considered, we think the $100 per month payments should start June 9, 1958.
Petition for rehearing denied. | [
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George Rose Smith, J.
This suit was brought by the appellant, George Hickerson, to obtain cancellation of a deed by which he conveyed certain business property in Fort Smith to his daughter, Elma Dell Lyon, and her husband, the appellees. It is asserted that the grantees led Hickerson to think that he was executing a will instead of a deed and, further, that the deed is void for want of a proper acknowledgment. The chancellor held the deed valid as between the parties and therefore dismissed the complaint for want of equity.
The preponderating evidence rebuts the charge of fraud. The property was originally purchased in 1945, soon after Elma Dell’s husband, Gloyd Lyon, had returned from military service. Title was taken jointly in the names of Hickerson and his first wife and Lyon and his wife. The two couples improved the property, and for some years Llickerson and his son-in-law, Lyon, together operated a filling station and a liquor store in part of the building that had been put on the land. In 1948 Gloyd and Elma Dell conveyed their half interest in the property to Mr. Hickerson. The parties are not in agreement as to whether any consideration was paid for that conveyance.
Elma Dell’s mother, the first Mrs. Hickerson, died in 1949, and Hickerson remarried three years later. There is evidence, which Hickerson denies, that his second wife left him early in 1956. At that time Hickerson expressed a desire to make a will in favor of' Elma Dell, his only child. According to Elma Dell, it was decided, however, that Hickerson would execute a “life estate deed” instead of a will, to be certain that Hickerson’s second wife would not receive anything more than her dower in the property. An attorney was employed to prepare the deed now in question, by which Hickerson conveyed the property to his daughter and son-in-law, with a life estate being reserved to the grantor. This deed was admittedly signed by Hickerson at the attorney’s office on January 31, 1956, but Hickerson insists that he was induced to believe that the instrument was a will.
The chancellor was fully warranted in rejecting the charge of fraud. It is true that a confidential relation exists between a father and his daughter, but this does not prevent either from making a voluntary gift to the other. Giers v. Hudson, 102 Ark. 232, 143 S. W. 916. Such a gift is closely scrutinized in equity and will be set aside if it appears that the person in the dominant position has overreached the other. Young v. Barde, 194 Ark. 416, 108 S. W. 2d 495. We do not find that the father’s confidence was abused in this instance.
When the deed was executed Hickerson was an experienced businessman, in his early sixties. He had previously bought and sold real estate on several occasions. It cannot be said that he was under his daughter’s influence ; to the contrary, his seems to have been the more forceful character of the two. The other two persons present at the execution of the deed — Elma Dell and the lawyer — both testify that the nature of the conveyance was fully explained to Hickerson and that he understood its effect. In the circumstances it was not unnatural for Hickerson to give a vested remainder to his daughter and son-in-law, in view of Hickerson’s apparent dispute with his second wife and in view of the Lyons’ original interest in the property, which they may well have conveyed to him without receiving any consideration. All these facts are sufficient to overcome Hickerson’s unsupported statement that he believed the instrument to be a will.
The second point involves the effect of an invalid acknowledgment. The attorney who prepared the deed testified that his stenographer had not yet qualified as a notary public and that he, with Hickerson’s consent, took the deed down the street and had it notarized. It is conceded that Hickerson did not appear before the notary. The appellant, citing cases such as Miles v. Jerry, 158 Ark. 314, 250 S. W. 34, and Hall v. Mitchell, 175 Ark. 641, 1 S. W. 2d 59, contends that the invalidity of the acknowledgment rendered the conveyance void.
The cited cases do not apply here, for they involved the effect of a wife’s failure to acknowledge the execution of an instrument affecting the family homestead. In those cases we merely gave effect to the statute which provides that a conveyance affecting the homestead is of no validity unless the wife joins in the execution of the instrument and also acknowledges it. Ark. Stats. 1947, § 50-415. Here the property was not the grantor’s homestead, and consequently the unacknowledged deed was good as between the parties. Williams v. Kitchell, 212 Ark. 114, 204 S. W. 2d 873; McSwain v. Criswell, 213 Ark. 775, 213 S. W. 2d 383. It may he true that the notary public violated the criminal law in executing a false certificate, Ark. Stats., § 41-1818; but titles without number would he upset if we should hold that his wrongdoing made the deed void.
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Paul Ward, Associate Justice.
On August 20 and 29, 1957, pursuant to Ark. Stats. § 20-701 et seq., certain property owners in the vicinity of Crossett filed petitions in the County Court of Ashley County to form two improvement districts. One was Fire Protection District No. 1 and the other was Natural Gas Improvement District No. 2.
On September 9, 1957, after proper notice, the County Court ordered the creation and establishment of the two districts mentioned above. The order states the following findings of fact: “. . . the proposed district includes lands lying adjacent to the City of Crossett, Arkansas, which has a population of more than 5,000 inhabitants . . .”; “. . . all of said lands are situated wholly outside the corporate limits of said city . . .”, and; “. . . said petition is signed by a majority in value and area of the owners of real property within the hereinafter described territory and said proposed district.” The court also appointed appellees as commissioners.
On December 6,1957 an appeal was taken to the Circuit Court, and a hearing was set for December 16, 1957. On the latter date an intervention was filed by two property owners who were given until January 13, 1958 to file pleadings and ask for legal relief.
On the date last mentioned a hearing was held at which time testimony was introduced by both sides. At the conclusion of this hearing the Circuit Court entered judgment affirming the order of the County Court creating the two districts.
For a reversal appellants rely on three grounds, to-wit: The court erred (a) in placing the burden of.proof on appellants, (b) in accepting the testimony of the Tax Assessor, and .(c) in considering the 1956 assessments.
Under the view which we have taken it will not be necessary to discuss all of the above points. The County Court, as has heretofore been noted, found that all statutory prerequisites had been complied with. On appeal it was the duty of the Circuit Court to approve the order of the County Court unless it was shown by the testimony that the County Court order was in error. The burden was on appellants to make this showing. This was not done.
The case of Henry v. Board of Improvement of Paving District No. 3, 170 Ark. 673, 280 S. W. 987 is, we think, conclusive of the above rule. In that case the City Council held that the signers of a petition for the creation of an improvement district constituted a majority in value of the property owners therein. An appeal was taken as provided by the statute, to the Chancery Court. On appeal to this court we held that ‘ ‘. . . in the very nature of things, the finding of the council must be treated as prima facie correct, and the burden rests upon the attacking party to show to the contrary.” The language in the appeal statute in the cited case and in the appeal statute here (§ 20-702) is the same. Precisely the same question was likewise decided in Dunbar v. Street Improvement District No. 1 of Dardanelles 172 Ark. 656, 290 S. W. 372, citing the Henry case with approval.
It would serve no useful purpose to set out the testimony introduced in the Circuit Court. Suffice to say we have read it carefully and find nothing to contradict the findings of the County Court. In fact appellants make no contention to the contrary.
We might add that the County Court and the Circuit Court were correct in using the 1956 assessment as a basis. The 1957 assessment list was not completed on September 9, 1957 when the order of the County Court was entered. See Arkansas Tax Commission v. Ashby, 217 Ark. 759, 233 S. W. 2d 361.
Affirmed. | [
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Sam Robinson, Associate Justice.
This is a suit to quiet title to Lot 7, Block 4, Sunset Heights Addition to the City of Little Rock. The issue is whether appellants have acquired title by adverse possession.
Appellant Roy Morrison testified that in 1946 he cleared the underbrush on the lot and posted a sign there as follows: “Private Property — Roy Morrison, Owner — Keep Off”. He says that he kept the sign up and kept the lot free of brush until 1955. He is corroborated by his wife. Morrison organized a corporation known as National Property Owners Association. In 1955 this corporation obtained from the State a tax deed to the lot, the property having been declared forfeited for the nonpayment of the 1951 taxes. It is conceded that the tax forfeiture is void because of an overcharge. It does not appear that appellants ever paid any taxes on the property. Morrison claims title by seven years’ adverse possession (Ark. Stat. § 37-101) and by two years’ adverse possession (Ark. Stat. § 34-1419).
The trial court held that he had not acquired title on either theory. We agree. Morrison does not claim to have had possession of the property in any manner except by clearing the brush and putting up the sign. The property was not enclosed and there is no showing that the sign conveyed any information as to the area of land which Morrison claimed. No one gave testimony regarding the sign except Morrison and his wife. There is no showing of the size of the sign or how well it could be seen or where it was located on the property. Prior to obtaining the tax deed, Morrison did not have color of title, and without color of title it was necessary that he have actual possession in order to claim the benefits of the seven years adverse possession statute (Ark. Stat. § 37-101). Montgomery v. Wallace, 216 Ark. 525, 226 S. W. 2d 551. Likewise, it was necessary that he have actual possession to claim the benefits of the two years adverse possession statute (Ark. Stat. § 34-1419). McMillen v. East Ark. Investment Co., 196 Ark. 367, 117 S. W. 2d 724. The evidence is not sufficient to show that he had such actual possession at any time. In Culver v. Gillian, 160 Ark. 397, 254 S. W. 681, the evidence was much stronger to show adverse possession than is the evidence in the case at bar. In that case Judge Hart said: “The defendant claims to have gone into possession of the lots in 1907 and to have held adverse possession ever since. He describes his adverse possession, however, and it is not of such a substantial character as to give him title to the lots. At one time he had the underbrush cleared and some of the larger trees cut down. One year he planted and cultivated a few garden seed. He did nothing from that time until the suit was brought, except that, in 1917, a part of the lots were inclosed and rented. It is true that, in the beginning, he put up a sign on the lots forbidding trespassers from coming there. This of itself would not be sufficient to show adverse possession of the lots against the true owner.”
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Carleton Harris, Chief Justice.
The issue in this appeal is whether appellants were acting in a fiduciary relationship to appellee in certain real estate transactions. Appellant, Jeanne Luptak, is a resident of Eureka Springs, Arkansas, where she has operated a motel for several years. Milton Wilhelm is a real estate broker with an office in Eureka Springs. Appellee, Margaret O. McLaughlin, has been a resident of Eureka Springs since September, 1955. Prior to such date, she lived in a Chicago suburb. Mrs. Luptak and Mrs. McLaughlin are cousins. Mrs. McLaughlin, who was nearing the age of retirement, became interested in Eureka Springs. On an occasion when Mrs. Luptak went to Chicago to bring her husband back to Eureka Springs for a vacation, Mrs. McLaughlin returned with them, and purchased property known as the “Baker property.” Wilhelm, a friend of Mrs. Luptak, bought and sold several pieces of property for appellee. On January 31, 1957, Mrs. McLaughlin instituted suit against Wilhelm, alleging that he had represented her in the purchase of certain property, designated as the Vaughn Street or Jeske property, had purchased same with her money (though he received the deed), and had charged her $7,-000 while the actual consideration was only $3,300, and asking that he be made to account for the difference. She alleged other property sales and various loans to Wilhelm, stated she was unable to obtain an accounting, and prayed the court to require him to account for all sums due her from the transactions. On March 23rd, she amended her complaint by joining Mrs. Luptak, J. D. Carter, and Manufacturer’s Casualty Insurance Company as defendants. As to Mrs. Luptak, it was alleged that the latter purchased a piece of property for Mrs. McLaughlin from Mrs. Hazel Baker for the sum of $4,000, but that Mrs. Luptak had represented to Mrs. McLaughlin that the price was $5,500, and appellee asked that Mrs. Luptak be required to account for the difference. She alleged that Carter was a partner of Wilhelm, and had received $1,000 from the Vaughn Street transaction. The insurance company was surety on the bonds of Wilhelm and Carter for the years 1955 and 1956 in the amount of $2,000 each (under the provisions of Act 395 of 1951), conditioned on compliance with Arkansas Statutes 71-1301 through 71-1311. Appellants denied the allegations, as did Carter, who also filed a cross complaint against his co-defendant, Wilhelm, alleging that Wilhelm had sold various properties, including those heretofore mentioned, and had not paid him his proper share of the commission as per the agreement under which they operated. The cause proceeded to trial, and at the close of appellee’s evidence in chief, appellants and Carter filed their separate demurrers to the evidence. The court sustained the demurrer as to Carter, and overruled the demurrers of appellants. On concluding the trial, the court rendered judgment against Wilhelm for $3,700, against Mrs. Luptak for $1,300, and against Manufacturer’s Casualty Insurance Company, as surety on Wilhelm’s bond, in the sum of $2,000, when paid, to apply on the judgment against Wilhelm. From such decree, appellants bring this appeal. Appellee cross-appeals, such appeal being based upon the action of the court in denying recovery for sums she contended were due her from Wilhelm, arising from the purchase of property from one J. E. Pitts, and the purchase from one C. B. Stofregen of property located at 42 Prospect, where she iioav lives. Mrs. McLaughlin contends that she is due $1,175 on the Pitts transaction, and $1,000 on the Prospect Street transaction.
The litigation is purely a fact question, it being admitted by appellants that an agent occupies a fiduciary relationship to his principal, and as such fiduciary, cannot make a profit for himself while serving his principal in a particular transaction without the consent of the principal, and then only after a full and complete disclosure of all material facts. Appellants simply contend that the proof in this case was not sufficient to establish that they were acting under a fiduciary relationship. We see no need to detail the testimony, which was quite lengthy, and which would serve no good purpose since, as previously stated, the law gov erning such transactions is not in dispute, and the litigation was determined purely upon the trial court’s view as to the preponderance of the evidence.
We will first consider the transaction between Mrs. McLaughlin and Mrs. Luptak. Mrs. McLaughlin, in brief, testified as follows: She is 62 years of age . . . a registered nurse . . . her cousin, Mrs. Luptak, called her around the last of April, 1955, advising there was a good piece of property in Eureka Springs that could be bought . . . stated she would buy it herself, but could not afford to, but would make the down-payment for appellee, and witness could pay her back . . . “I said, ‘Well, very well, go ahead’.” . . . Mrs. Luptak first stated the property was selling for $4,250, but, while apparently talking to somebody at her end of the line, said she had made a mistake and it was $5,500. Mrs. McLaughlin was reaching retirement age, and had previously told Mrs. Luptak to look around for a place where she could live . . . She came to Eureka Springs on May 6th or 7th, 1955, with Mrs. Luptak and her husband, by automobile, shortly returned to Chicago to get money, and within a few days, returned to Eureka Springs. She saw Mrs. Baker on May 24th for the first time . . . went with Mrs. Luptak and Wilhelm to the home of Mrs. Baker . . . tried to talk to Mrs. Baker, but her cousin and Mr. Wilhelm would change the subject or have something else they wanted to show her. She gave her check in the amount of $5,500 to Mrs. Luptak on that date, and later learned that her cousin had only paid Mrs. Baker $4,000 for the property.
Mrs. Luptak testified that she was searching for a piece of property for her brother . . . Wilhelm mentioned the Baker property to her and she went out and looked at it . . . she told Mrs. Baker she was buying it for her brother . . . her brother was unable to buy it, and so she bought it herself as an investment. . . . she went to Chicago the next day and went out to visit Mrs. McLaughlin, telling her about the property . . . denied that she had called Mrs. Me Laughlin over long distance in April . . . appellee wanted to go back to Eureka Springs with her and take a look at the country . . . they went to see the Baker property, accompanied by Wilhelm, and later Mrs. McLaughlin wanted to purchase it . . . Wilhelm insisted she let Mrs. McLaughlin have the property, and she agreed, selling it to her for $5,500. Mrs. Luptak insists that she had no thought or intention of buying the property for appellee at the time she (Luptak) entered into the purchase agreement with Mrs. Baker in April; that Mrs. McLaughlin inspected the property on three different occasions between May 9th and May 24th and only decided to purchase same on the latter date, giving her a check for $5,500 at that time. This testimony was disputed by Mrs. Baker (now Doherty) who testified that Mrs. Luptak told her she was buying the property for her cousin. She stated that the transaction was completed before she ever met Mrs. McLaughlin, and further verified appellee’s testimony to the effect that appellants prevented her from having any conversation with appellee.
The most potent evidence in behalf of appellee, however, is the deed itself. This deed is from Hazel D. Baker to Margaret McLaughlin and Brian A. McLaughlin, dated May 9, 1955, and recorded on May 18, 1955. Mrs. Luptak’s explanation is that the deed was originally made to her on May 9th, but that on reconveying it to Mrs. McLaughlin, the name was rubbed out, and Mrs. McLaughlin’s inserted in order to save recording-fees on two deeds. She makes no explanation for the fact that the deed, as recorded on May 18th, showed the Mc-Laughlins to be the grantees. There are obvious erasures where the name of the grantee is inserted, but Mr. Jay Bussell, an attorney of Eureka Springs, gave a much more reasonable explanation. Mrs. Baker had come to his office on another matter, and while she was there, he also prepared this particular deed. From his testimony:
* * j had understood that the deed was to be made to Jeanne Luptak, and I drew the deed to Jeanne Luptak and handed it over for examination. And Wilhelm said, ‘No, I want it made to Margaret McLaughlin and Brian A. McLaughlin. ’ I then rubbed out Margaret McLaughlin and-
Q. You mean Jeanne Luptak’s name.
A. Jeanne Luptak’s name, and put in Margaret McLaughlin and Brian A. McLaughlin, and had Mrs. Baker sign it. I did that on the 9th of May * *
As stated by the Chancellor:
“* * * Now the Court is unable to * * * see how Mr. Wilhelm or anybody else would have the prescience to know, on May 9th, only one day after Mrs. McLaughlin got here, that on May 24 she would decide to buy the property and pay for it, and would know to instruct the scrivener to take the Luptak name out and put the McLaughlin name in’ * * We fully agree. These facts are irreconcilable with Mrs. Luptak’s contention that Mrs. McLaughlin was not interested in the property until after arriving in Eureka Springs sometime around May 8th or 9th, and that appellee did not decide to purchase it until May 24th.
We come now to a discussion of the purchase of the Yaughn Street or Jeske property. Mrs. McLaughlin testified that she returned to Chicago and sold her home, as she. planned to go back to Eureka Springs and stay, and wanted a place there to live. She accordingly wrote a letter to Wilhelm asking him to find a place for her to purchase as a home. According to her testimony, Wilhelm called her on July 31st and told her there was a place to be sold at auction, and he thought it would be a good place to live. At the time, Wilhelm was holding approximately $8,000 belonging to appellee, by virtue of sales of property he had made as her agent. Appellee testified that she asked if she had enough money to buy it, and he replied: “Well, if it costs more than I’ve got, I won’t bny it.” He called her back on August 2nd and reported that he had purchased the place. The record reflects that the property was purchased on August 2nd and deed executed to Wilhelm. Mrs. McLaughlin returned to Eureka Springs on August 14th, and it was not until a few months later that she learned she had been charged $7,000 for the property, while Wilhelm had only paid $3,300 for it.
Wilhelm testified that he and Carter saw the property advertised for sale, took a look at it, and he bid it in for $3,300, with the deed being made to him, though he and Carter were partners in the transaction. He denied any prior conversation with Mrs. McLaughlin . . . stated she had never contacted him about the Vaughn Street property . . . that he had no conversation with her about this property until after she arrived in Eureka Springs. He stated that she wanted to purchase it, and he sold it to her for $7,000 on August 8th . . . that the amount was taken from the money heretofore referred to which he was holding, and which belonged to her. According to Wilhelm, Mrs. McLaughlin signed an “Offer and Acceptance” agreement to purchase the property from him for $7,000, the transaction taking place at the home of Mrs. Luptak on August 8th, and he offered in evidence a copy of such agreement, supposedly signed by appellee. This testimony was corroborated by Mrs. Luptak. Mrs. McLaughlin denied signing such agreement, stated that the signature was a forgery, and testified that she was in Chicago serving on the Cook County Petit Jury on August 8th. She offered in evidence a photostatic certified copy of an “Attendance Master Jury Card.” Apparently, under the procedure in Cook County, the juror is required to sign this card each dajr he or she is present for jury service, and the card shows Mrs. McLaughlin’s signature for each day from August 1st through August 12th. The court rejected this evidence, apparently because it was not properly authenticated. Be that as it may, we think there is sufficient evidence to sustain the chancellor’s finding that Wilhelm was acting for Mrs. McLaugk lin in purchasing the property. As stated by the trial court:
‘ ‘ The evidence is replete that Wilhelm was acting as something more than a mere real estate broker, as to plaintiff; that he actually did have her money, and was actively engaging himself as her agent * *
We are of the opinion, however, that the court erred in one respect. Other lots, which had not been purchased by Wilhelm at the sale, and which were not included in the $3,300 sale price, were conveyed to Mrs. McLaughlin, along with the Vaughn Street property, for the $7,000. The testimony reflects that $1,000 was paid to Carter by Wilhelm for these lots, though the fact that this amount was paid, does not necessarily establish the lots to be of that value. We hold that Wilhelm is entitled to a credit on the $3,700 judgment in the amount of the actual value of these lots at the time they were conveyed to Mrs. McLaughlin.
Turning to the cross appeal, we quote from the trial court’s opinion:
“As to the other properties, the Court finds that Mrs. McLaughlin has failed to meet the burden of proof imposed upon her; in respect of the Pitts property or the Prospect Street property or the Bohlman property, that in no material degree has the plaintiff shown by a preponderance of the evidence that she was misled or had her eyes closed to anything. And even though it might appear that the price received by the seller of the properties was less than that paid by Mrs. McLaughlin, there is nothing in the testimony to indicate that the difference was other than the normal and legal and proper difference. In any event, there is nothing about those transactions to show that Mrs. McLaughlin was misled or deceived or cozened.”
We are unable to say that the court erred in so finding.
As stated in Kelker v. Payton, 227 Ark. 369, 298 S. W. 2d 704:
“This case is almost entirely a question of fact, and if the lower court construed the facts correctly, there could be no contention that the law was erroneously applied. The Chancellor heard the case, had the opportunity to observe the demeanor of the witnesses, and evidently paid close attention to the evidence. * * * The rule, so many times reiterated, is to the effect that while this Court tries Chancery cases ele novo, still it will not reverse a Chancellor’s decree unless his findings are against the weight of the evidence.”
The court further found that the evidence did not reflect with certainty that a balance was owed by Wilhelm to Mrs. McLaughlin, or by Mrs. McLaughlin to Wilhelm, with which conclusion we concur.
Accordingly, the decree should be modified to the extent of giving Wilhelm credit for the value of the lots deeded with the Vaughn street property to Mrs. McLaughlin, and the case is remanded with directions to determine the value of said lots at the time of the conveyance on August 8, 1955, and to enter a decree consistent with this opinion.
These sections relate to licensing of real estate brokers, causes for revocation of license, etc.
The cross complaint was later dismissed by Carter, stating that “* * * his said co-defendant has in all things met and satisfied the demands of this defendant as set out in the cross complaint.”
Mrs. Luptak was given credit for a $200 broker’s fee she had paid.
Son of appellee.
The Baker property was disposed of by Mrs. McLaughlin about two months after the purchase.
The exact amount is in dispute, the testimony ranging from $7,-800 to $8,600.
Upon this finding, the court dismissed a cross complaint (counterclaim) filed by Wilhelm, but which does not appear in the transcript. The counterclaim related to various expenditures which Wilhelm contended he had personally made on Mrs. McLaughlin’s properties. The court’s action in dismissing the counterclaim is not assigned as error, nor argued by appellant in his brief. | [
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George Rose Smith, J.
This is an action by the State, on the relation of the Attorney General, to collect corporate franchise taxes, in the amount of $50 a year, for the past seven years. The merits of the case were not reached in the court below, as the appellant refused to comply with an interlocutory order requiring the production of certain records and permitted judgment to be entered by default as a means of obtaining a review of the production order.
Four days after the complaint was filed the plaintiff attempted to secure information about the appel lant’s activities in Arkansas by propounding interrogatories to the president of the Arkansas State Conference of NAACP Branches. The president refused to disclose a substantial part of the information requested, on the ground that it was privileged under the constitutional guaranties of free speech and assembly. The plaintiff then asked for an order directing the defendant to produce for inspection (1) records listing the names and addresses of the officers, agents, servants, employees, and representatives in Arkansas of the defendant and of its Arkansas Conference, (2) records listing similar information with respect to the defendant’s local branches in Arkansas, (3) records, files, papers, correspondence, deposit slips, canceled checks, reports, and publications of the defendant and its Arkansas Conference, and (4) records listing the persons in Arkansas donating to the defendant and its Arkansas Conference during the past, seven years, and the amount received from each. ;
This motion was resisted on the same ground of privilege. The defendant offered proof to show that if the identity of its officers and members were disclosed they might be subjected to harassment in the form of violence, bombing, the burning of crosses, anonymous telephone calls, and threatening letters. The court found that the requested information was not privileged and granted the plaintiff’s motion for production, except that item (4) was modified to require only a statement of the total donations and contributions from Arkansas for the past seven years. As we have indicated, the defendant refused to comply with the order and permitted the entry of a default judgment. The court found that the refusal was not willful and denied the plaintiff’s motion that the defendant be punished for contempt.
We need consider only the two points argued by the appellant in its brief, for it abandons other errors by failing to argue them. Connell v. Robinson, 217 Ark. 1, 228 S. W. 2d 475. It is first contended that the appellant’s membership lists are privileged under the guar anties of freedom of speech and of assembly. NAACP v. Alabama, 357 U. S. 449. 2 L. Ed. 2d 1488, 78 S. Ct. 1163. In this particular case this contention is sufficiently answered by the fact that we do not construe the court’s order as requiring the production of these lists. That information would doubtless have been available to the plaintiff had the court granted item (4) in the motion for production, for the names of persons donating or contributing to the appellant would have included the names of persons paying dues. But the court refused to order the disclosure of this information, which of course means that it was also excluded from the general language in the rest of the order. The State did not cross appeal from the court’s refusal to order that the membership lists be produced.
Secondly, it is said that the plaintiff should have been required to show good cause for the production of the records. Ark. Stats. 1947, § 28-356. The record reflects, however, that the parties stipulated and orally agreed that the only issue on appeal would be whether the records are privileged. On the basis of this agreement the chancellor refused to impound the records pending appeal. Hence the appellant is not in a position to question the order on the ground now asserted.
Affirmed. | [
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Sam Bird, Judge.
This one-brief appeal arises from a decision of the Workers’ Compensation Commission denying appellant and appellees’ joint motion that the Commission approve a twenty-five percent attorney’s fee to be paid by appellant’s medical service providers on the total amount of his medical bills. Appellant, Joseph Teasley, contends that the Commission erred as a matter oflaw in finding that his attorney was not entitled to attorney’s fees based upon the value of medical services provided to appellant. The case is one of first impression and requires statutory interpretation of Ark. Code Ann. § 11-9-715(a)(4) (Repl. 2002). We hold that the Commission’s interpretation of the statute is correct, and we affirm its decision to deny appellant’s request for an attorney’s fee.
The facts of this case were not disputed in the proceedings that gave rise to this appeal. Joseph Teasley sustained a severe injury to his right hand on the morning of June 10, 2002, while working for the Hermann Companies. He was taken first to Arkansas Methodist Hospital in Paragould, Arkansas, but was then air-lifted to receive out-of-state emergency care at Jewish Hospital in Louisville, Kentucky, where three of his five amputated fingers were surgically reattached in alternative positions that evening. He remained hospitalized until July 19, 2002. Appellees controverted his claim for workers’ compensation benefits upon learning that his drug test was positive for marijuana metabolites, but they accepted liability immediately before a pre-hearing telephone conference on January 22, 2003.
On January 9, 2003, appellant’s attorney filed a notice of attorney’s lien that asserted a lien for attorney’s fees and provided notification to the Commission and medical providers, pursuant to Ark. Code Ann. § 11-9-715, of his intent to charge attorney’s fees for collection of all medical bills related to appellant’s injury. The statute, subsequently interpreted by the Commission and now at issue on appeal, reads in pertinent part:
(a)(1)(A) Fees for legal services rendered in respect of a claim shall not be valid unless approved by the Workers’ Compensation Commission.
(B) Attorney’s fees shall be twenty-five percent (25%) of compensation for indemnity benefits payable to the injured employee or dependents of a deceased employee. Attorney’s fees shall not be awarded on medical benefits or services except as provided in subdivision (a)(4) of this section.
(4) Medical providers may voluntarily contract with the attorney for the claimant to recover disputed bilk, and the attorney may charge a reasonable fee to the medical provider as a cost of collection.
Ark. Code Ann. § ll-9-715(a) (Repl. 2002) (emphasis added).
In a motion for hearing filed on January 27, 2003, appellant requested that the Commission approve a twenty-five percent attorney’s fee on the total of medical bills to be paid. The motion asserted that $133,224.87 in medical bills had been identified and that another $3,000.00 to $5,000.00 yet remained to be identified. On February 3, 2003, appellees filed a response to the motion, asserting that “claimant is not entitled to an award of attorney’s fees under Ark. Code Ann. § 11-9-715 (Repl. 2002) and the lien filed in this case.” Jewish Hospital filed a letter on February 28, 2003, stating that it had no contract with appellant’s attorney and objecting to appellant’s filing the lien and to payment of an attorney’s fee under it.
Despite their initial opposition to an award of attorney’s fees, appellees subsequently joined appellant in submitting to the administrative law judge a joint stipulation of facts and a joint brief in which they agreed that appellant’s attorney was entitled to his requested fees pursuant to the statute. In an opinion dated July 14, 2003, the law judge found that the parties’ agreed statement of law was inconsistent with the clear and unambiguous language of the statute.
The Commission’s Decision
The law judge’s opinion, affirmed and adopted by the Commission in its decision of January 23, 2004, included the following discussion:
The sole issue presented for determination by the parties was whether the Workers’ Compensation Commission had authority to award an attorney’s fee on medical benefits under our law as amended by Act 1281 of2001. It is my opinion that the Commission has the “authority” to approve and award a reasonable fee, but only if the medical providers have voluntarily contracted with the attorney for the claimant to recover disputed bills. Therefore, the real issue is whether the claimant’s attorney is entitled to a fee on medical benefits in the instant case. Because no contract exists between the medical providers and claimant’s attorney, it is herein concluded that he is not entitled to a fee as requested.
The Commission further found that attorney’s fees on medical benefits are a matter of contract and that a claimant’s attorney has no absolute right “to charge a reasonable fee to the medical provider as a cost of collection.” Noting the shift in appellees’ position on the issue of attorney’s fees, the Commission also found that the parties could not create an obligation on a third party without its agreement.
The Commission set forth the history of the present legislation regarding attorney’s fees in workers’ compensation cases:
Since the creation of the Workers’ Compensation Act in 1949, only the parties to the litigation have been responsible for attorney’s fees. Prior to Act 290 of 1986, respondents were responsible for all controverted attorney’s fees. The fee schedule did not change in 1986; however, claimants became responsible for one-half (14) of the fee out of benefits payable to them. The fees were only allowed on compensation controverted and awarded. Act 1015 of 2001 substantially increased the fee schedule for attorney’s fees to twenty-five percent (25%) for indemnity benefits only. Again, claimants and respondents were equally responsible for claimants’ attorney’s fees. The amendment further provided that the fees only applied to indemnity benefits and that attorney’s fees shall not be awarded on medical benefits except as provided by subdivision (a)(4).
(Citations omitted.)
The Commission recognized that a rational argument could be made that the 2001 amendment, increasing attorney’s fees on indemnity benefits only but still providing claimants’ attorneys an opportunity to contract with medical providers to recover disputed bills, was a compromise between labor and management. The Commission found that “medical providers may either voluntarily contract with the claimant’s attorney or elect alternative means of collection.”
Whether the Commission erred as a matter of law in finding that appellant was not entitled to attorney’s fees based upon the value of medical services provided to him
Appellant contends that the Commission incorrectly interpreted Ark. Code Ann. § 11-9-715 to mean that the Commission’s authority to approve and award a reasonable fee exists only if medical providers have voluntarily contracted with the claimant’s attorney to recover disputed bills. He argues that the legislature, by amending the statute in 2001, intended to address problems and inequities that existed for years, and that the purpose of the amendment was to increase fees for attorneys who represent injured workers. Appellant asserts that the statute gave him the absolute right to charge the medical provider a reasonable fee as a cost of collecting payment for medical services, and he asserts that it was the statutory duty of the Commission to approve his reasonable fee.
Much of appellant’s argument centers around the use of the conjunctive “and” in Ark. Code Ann. § 11-9-715(a) (4): “Medical providers may voluntarily contract with the attorney for the claimant to recover disputed bills, and the attorney may charge a reasonable fee to the medical provider as a cost of collection.” The Commission’s opinion included the following discussion of this word:
It must be noted that “and” is a coordinating conjunction in Subdivision (a)(4). Coordinating conjunctions are meant to join logically comparable elements, without turning one element into a modifier of the other. See, The Random House Handbook, 4th Ed. The legislature did not use the conjunction “or” which indicates an alternative, “voluntarily contract or charge a reasonable fee.” Again, the conjunction “and” is used as a word to express a logical modification, consequence, antithesis, or supplementary explanation. . . . The second half of the sentence in Subdivision (a)(4) modifies the potential contract. Claimant’s attorneys may only contract for a reasonable fee. The twenty-five percent (25%) of attorney’s fee asserted under our Act only applies to indemnity benefits and not to medical benefits, one-half (%) of which is the responsibility of the respondents and the other half the responsibility of the claimant out of benefits payable to him.
Appellant argues that the Commission’s interpretation defies common sense and renders the second clause of subsection (a)(4) meaningless. He argues that two letters submitted by the parties, written by individuals closely associated with workers’ compensation legislation, clearly show the legislature’s intent in the 2001 amendment to create a right to fees based upon the value of medical services. We agree with the Commission that any opinion expressed in these letters is not relevant to the interpretation of the statute’s clear and unambiguous language.
We will not substitute our judgment for that of an administrative agency unless the decision of the agency is arbitrary, capricious, or characterized by an abuse of discretion. American Standard Travelers Indem. Co. v. Post, 78 Ark. App. 79, 77 S.W.3d 554 (2002). To reverse an agency’s decision because it is arbitrary and capricious, it must lack a rational basis or rely on a finding of fact based on an erroneous view of the law. Id. Although an agency’s interpretation of a statute is highly persuasive, we will not interpret the statute to mean anything other than what it says when it is not ambiguous. Id.
Arkansas Code Annotated section ll-9-704(c) (Repl. 2002) requires that we construe workers’ compensation statutes strictly. Strict construction requires that nothing be taken as intended that is not clearly expressed, and its doctrine is to use the plain meaning of the language employed. American Standard Travelers Indemnity Co., supra. The basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the legislature. Id. When a statute is clear, however, it is given its plain meaning, and the appellate court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. Cave City Nursing Home, Inc. v. Arkansas Dep’t of Human Servs., 351 Ark. 13, 89 S.W.3d 884 (2002). A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Id. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. American Standard Travelers Indem.Co., supra. The statute should be construed so that no word is left void, superfluous, or insignificant; and meaning and effect must be given to every word in the statute if possible. Id.
Here, appellant asserts a meaning to Ark. Code Ann. § ll-9-715(a)(4) that is counter to giving the word “and” its ordinary and usually accepted meaning in common language. The statutory provision is not open to two or more constructions, nor would reasonable minds disagree or be uncertain as to its meaning; because its language is clear and unambiguous, there is no need to search for legislative intent further than the plain meaning contained in the words of the statute itself. Appellant’s arguments do not convince us that the Commission’s decision in this case was arbitrary, capricious, or characterized by an abuse of discretion. To the contrary, we find the Commission’s decision highly persuasive. We hold that the Commission did not err in interpreting Ark. Code Ann. § ll-9-715(a)(4) to mean that, in the absence of a contract between appellant’s medical providers and his attorney, the attorney was not entitled to attorney’s fees based upon the value of medical services provided to him.
Appellant also asserts that Ark. Code Ann. § 16-22-304 creates an attorney’s lien on the medical benefits in this case. The statute states in pertinent part: “This lien shall apply to proceedings before the Workers’ Compensation Commission. The lien shall attach from the date a notice of claim is filed with the commission.” Ark. Code Ann. § 16-22-304 (Repl. 1999). In its opinion, the Commission disagreed with the parties’ joint argument that section 16-22-304 creates an attorney’s lien on medical benefits. The Commission reasoned that the creation of an attorney’s fee applies from and after service upon the “adverse party” in a cause of action; that medical providers, rather than being adverse parties, are unwilling participants in litigation not of their creation; and that respondents were the only party controverting benefits in this case.
Appellant’s argument regarding Ark. Code Ann. § 16-22-304 is merely a one-sentence conclusory statement. Because his assignment of error is unsupported by convincing authority, it will not be considered on appeal. See Jones Truck Lines v. Pendergrass, 90 Ark. App. 402, 206 S.W.3d 272 (2005).
Affirmed.
Vaught, J., agrees.
Griffen, J., concurs.
The notice of appeal shows Hermann Companies, Inc., as the employer/respondent. The Commission’s order shows the employer/respondent as Her-mann Companies. The law judge’s order, which was adopted by the Commission, identifies the employer/respondent as Hermann Companies, Inc./Anchor Packaging. The brief before us names Anchor Packaging as employer/appellee. | [
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HART, J.
This is the second appeal in this case.' The opinion on the first appeal will be found in 124 Ark., page 154, under the style of Tancred v. First National Bank of Fort Smith. The firm of Harper & Wilson was indebted to the First National Bank in a large sum of money which was secured by a mortgage on real estate. Harper died and M. T. Tancred, who is Mrs. Harper’s brother, became indebted to the bank in the sum o'f $5,000. It was the contention of the bank that Tancred borrowed the money from it and then loaned it to his sister, Mrs. Harper, and Wilson, the surviving partner of Harper & Wilson.' It was the contention of Tancred that he was only a surety on the note to the bank and a mortgage was taken by him from his sister to secure himself. Harper & Wilson had already given a mortgage on the same property to the bank. The bank instituted an action in the chancery court to foreclose its mortgage and Tancred was made a party to that suit. He filed an answer and cross-bill in which he sought to have the $5,000 note canceled on the ground that he had become released therefrom as surety by the action of the bank in releasing Mrs. Harper as principal. Mrs. Harper had been released from certain portions of the debts secured by the mortgage to the bank in consideration that she would not renounce the will of her deceased husband and claim dower in his estate.
In the opinion on the former appeal the court held that under the circumstances of the case the release of Mrs. Harper operated as a discharge of Tancred from liability on the $5,000 note, whether he be treated as a surety according to the real purport of the transaction, or whether he be treated as a joint maker of the note according to the face thereof. The decree was reversed with directions to the chancery court to enter a decree in favor of Tancred. Upon the remand of the case Tancred asked judgment for $200, which he had formerly paid as interest on the $5,000 note. The court denied the relief sought by Tancred and he has again appealed to this court.
The court was right in refusing a recovery against the bank in favor of Tancred for the $200 interest paid by him. The bank claimed that Tancred was a principal on the $5,000 note, and if so, he owed the bank the interest on the note. It does not make any difference that the court afterwards held that he was discharged from all liability on the note by the release of Mrs. Harper. He made the payment of the interest with the knowledge of all the facts. The rule is.well settled that when a person, without mistake of fact, or fraud, duress or coercion, pays money on a demand which is not enforceable against him, the payment is deemed voluntary, and can not be recovered. Ritchie v. Bluff City Lumber Co., 86 Ark. 175; Banks v. Walters, 95 Ark. 501, and Blackburn v. Texarkana Gas & Electric Co., 102 Ark. 155.
Tt follows that the decree will be affirmed. | [
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SMITH, J.
Appellant Russ sustained serious injuries by being thrown from his buggy when the horse which he was driving became frightened at appellee Strickland’s automobile and.ran away. Appellant testified that he saw the automobile when it rounded a curve in. the road, a distance of 150 yards away, and that the occupants of the car could have seen the buggy at the same distance. That the horse was afraid of automobiles, and became frightened as soon as it saw the car. That appellant motioned his hand to Strickland to stop the car, and that Strickland threw up his hand, but the car continued its approach at a slow speed, when a Mr. Hubbard, who was riding with Russ, got out of the buggy and took hold of the horse’s bit, but, by this time, the horse was frantic and unmanageable. The automobile approached to within twenty-five or thirty yards of the horse, when it stopped. By this time the horse was rearing on its hind legs when the rein broke and the horse whirled around and overturned the buggy. Russ and Hubbard testified that Strickland got out of his car, and, when he came up to where Russ was lying on the ground, stated that he did not stop his car sooner because he thought it safer to drive slowly by the buggy. Strickland denied making this statement, and testified that he was driving in low gear on account of a depression in the road which he had just crossed when he saw the horse, and that the car was moving at a speed of not more than ten miles per hour, and that the car stopped as soon as he and his son, who was driving the car, observed that the horse was frightened.
A number of instructions were, given on the subject of due care and contributory negligence, while a still larger number which were requested were refused. The plaintiff requested instructions which, in effect, told the jury to find for the plaintiff if the injury was caused by defendant’s failure to stop his car. An instruction to this effect was given with the following amendment or modification :
“And on the other hand, gentlemen of the jury, if you find from the evidence that, at the time the defendants discovered the frightened condition of the horse, they stopped their automobile and did all they could to prevent the accident, then you will find for the defendant.”
Other instructions were given which embodied the view of the law contained in the amendment set out above, and for this reason the cause must be reversed. We will not set out or discuss all the instructions in this cause, but will state the law applicable to the issues joined between the parties.
The driver of an automobile must exercise ordinary care, in the operation of his car, to avoid the infliction of damages or injury to the person or property of another. He has the right to use the public highways, but his rights there are reciprocal, that is, these rights must be so used as not to interfere with the rights of others to lawfully use the highways. A similar reciprocal duty rests on those others. They must, themselves, exercise care, not only to avoid injuring others, but also for their own protection. They can not be guilty of negligence which proximately contributes to their injury, and yet recover damages to compensate this injury.
The court gave instructions correctly defining the common law rights and duties of the parties in this respect. But we think the court misconstrued the meaning of section 12 of act 134 of the Acts of 1911, page 94, regulating the use and speed of automobiles and other horse less conveyances npon the public streets, roads and highways of this State. This section reads as follows:
“Section 12. Whenever it shall appear that any' horse, ridden or driven by any person upon any of said streets, roads and highways, is about to become frightened by the approach of any such motor vehicle, it shall he the duty of the person driving or conducting such motor vehicle to cause the same to come to a full stop until such horse or horses shall have passed, and, if necessary,assist in preventing accident. Any person convicted of violating this section shall he fined in any sum not to exceed two hundred dollars. ’ ’
(1) The court told the jury to find for the defendant if defendant stopped the car when he discovered the frightened condition of the horse and did all he could to prevent the injury. Under this instruction, it only became the duty_ of defendant to stop his car when he discovered the frightened condition of the horse. But this was not the full measure of his duty. His duty was not limited by what he actually saw, hut is governed by what he would have seen had he been in the exercise of ordinary care.
The section of the act set out above is so similar to the law of Illinois as to suggest that our statute was borrowed from that State. See Session Laws of Illinois, 1903, page 301. Section 2 of that act is substantially identical with the section of our statute set out above, except that our statute has added to it, after the words, “shall have passed,” the phrase, “and, if necessary, assist in preventing accident. ’ ’
The meaning of this statutory requirement is discussed in Berry on Automobiles (2 ed.), § 348. It is there said: “A statutory requirement that the driver of an automobile shall bring his vehicle to a stop whenever it shall appear that any horse ridden or driven by any person is about to become frightened, has been construed to mean that, whenever it might by the exercise of reasonable care and diligence on the part of the driver of the automobile, so appear to him that such horse is about to become frightened, then lie is charged with such knowledge.”
In support of the text, the case of Christy v. Elliott, 216 Ill. 31, 74 N. E. 1035, is cited, and an examination of that case discloses that it gives full support to the text quoted. We are inclined to give special weight to that decision, because it was rendered before our statute was enacted, and if our statute was not borrowed from that State, we have, at least, modeled ours very closely after it. This Illinois case is found annotated in 1 L. R. A. (N. S.) 215. See, also, Babbitt’s Law of Motor Vehicles (2 ed.), § 1120.
(2-3) The court should, therefore, have told the jury that it was defendant’s duty to stop his car when he saw, or when, had he been in the exercise of due care he would have seen, that the horse was frightened, or was about to be frightened. Since the enactment of this statute, the driver of a car can not determine for himself whether it is as safé or safer to proceed than it is to stop. The law has decreed that he must stop his car, and he is under the duty to do so, although, in his opinion, some other course may be safer. His failure to stop the car under these circumstances is, therefore, negligence, and renders him liable for any injury of which it is the proximate cause, provided the party injured is not, himself, guilty of negligence contributing to his injury.
For the failure of the court to charge the jury in accordance with the law as here announced, the judgment of the court below is reversed and the cause remanded for a new trial. | [
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David M. Glover, Judge.
Appellant, Allen Canning Company, appeals the Workers’ Compensation Commission’s adoption of the administrative law judge’s decision finding that appellee, J.D. Woodruff, suffered a compensable injury on July 7, 2003; that appellee was entitled to temporary-total disability for the periodjuly 8-18,2003; and that appellee’s claim was not barred by the Shippers defense. Allen Canning asserts that there is no substantial evidence to support the Commission’s finding that appellee sustained a compensable back injury while in the course and scope of his employment and that the Commission erred in finding that the Shippers defense was inapplicable. Woodruff cross-appeals, arguing that his period of temporary-total disability should not have ceased on July 18, 2003, but instead should continue until a date to be determined because he remained in his healing period. We affirm on direct appeal and on cross-appeal.
The standard of review in workers’ compensation cases is well-settled. We view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm the decision if it is supported by substantial evidence. Geo Specialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Air Compressor Equip, v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Geo Specialty, supra. It is the Commission’s function to determine witness credibility and the weight to be afforded to any testimony; the Commission must weigh the medical evidence and, if such evidence is conflicting, its resolution is a question of fact for the Commission. Searcy Indus. Laundry, Inc. v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003). The Commission’s resolution of the medical evidence has the force and effect of a jury verdict. Jim Walters Homes v. Beard, 82 Ark. App. 607, 120 S.W.3d 160 (2003).
Prior to his employment at Allen Canning, appellee, a forty-eight-year-old man, had an extensive history of work-related back injuries. In 1992, he injured his lumbar spine while employed by Don Youngblood as a truck driver; as a result of this compensable injury, he did not work for over one year and was assigned a permanent physical-impairment rating of nine percent to the body as a whole. Appellee also suffered two compensable back-related injuries while he was employed by Wal-Mart — first on September 28, 2001, and then on July 20, 2002. Additionally, appellee has degenerative-disc disease and small-disc herniations in multiple levels of his lumbar spine.
Following treatment for his last Wal-Mart injury, appellee’s physician, Dr. Kannout, released appellee on August 19, 2002, for return to work without any restrictions. Appellee subsequently went to work for appellant. On July 7, 2003, appellee was loading one of appellant’s trucks with boxes of shoestring potatoes weighing about twenty pounds each when his back began to hurt. He said that he felt fine before he began working, that he must have bent the wrong way while he was picking up a box, that he felt a pop in his lower spine, that he felt severe pain in his back, and that he also felt pain shooting halfway down his right thigh. Appellee reported the incident to the forklift driver, who went to inform the warehouse manager. Appellee continued to work until Don James, the warehouse manager, arrived about ten minutes later and told him to go to the shoestring potato “lidder” line, a job that was not as difficult. Appellee testified that he believed that he needed medical attention, but that James did not offer to fill out an accident report at that time. Appellee worked the “lidder” line until lunchtime, when he told James that he had to go home; he did not fill out an accident report prior to leaving work.
Although he was scheduled to work the following day, appellee called Don James and told him that he was not coming to work, and he went to see Dr. Kannout. Appellee said that James said nothing about an accident report at that time, and such a report was not completed until three or four days later. Appellee said that Allen Canning never offered him medical attention nor paid for his medical visits with Dr. Kannout or for physical therapy, which appellee had to discontinue after July 18 due to a lack of money.
On July 25, 2003, appellee saw Dr. Westbrook, who had treated him during his first workers’ compensation claim, complaining of back pain. He said that Dr. Westbrook gave him an ESI shot and that he had not returned to see Dr. Westbrook since that time because he had not needed him.
Appellee testified that he was always in moderate pain; that some days were worse than others; that his back injury affected the way he walked; and that if he sat, stood, or bent for too long a period, his back hurt. He said that on a good day he could lift twenty pounds comfortably, but on a bad day he did not want to get out of bed. He said that he still needed additional medical attention for his back, but he had not been able to afford it.
Appellee stated that he felt that he could return to Allen Canning in some capacity, but that Allen Canning had not provided him with any work since his injury. He also stated that he had looked for work elsewhere but had not yet found a job.
During cross-examination, appellee asserted that before coming to Allen Canning, he had only experienced slight back pain, “hardly no pain at all,” and he denied experiencing any severe back pain prior to going to work for appellant. He said that he did not think that lifting and bending would cause his slight back pain to become worse because his doctor had told him that he was fine and had released him for full work with no restrictions. He admitted that he had said in his deposition that he knew before he went to work for appellant that lifting could make his back worse, but he said that he was not doing any lifting when he began working for appellant. He had only loaded trucks twice before his injury, and he did not consider loading trucks to be one of his regular job duties. Appellee said that he did not notify anyone at Allen Canning that lifting could make his condition worse because he felt fine, and that when he completed his employment application, he was not asked if lifting would make any physical condition he had worse. In response to the employment application question that asked him to describe his general health, he said that he had checked “good,” but he denied that he had answered the question “Do you have any physical or mental conditions which may limit your ability to perform certain kinds of work?” at all. At the time he completed the employment application, appellee’s doctor had released him to return to full duty work without any restrictions.
Don James, appellant’s warehouse manager, testified that he was informed on the morning ofjuly 7 that appellee had a problem with his back while loading a truck. When he went to check on appellee, he said that appellee told him that it was not a big deal, that it happened “two or three times a year,” and that he just had to get some pills from a doctor to relax it. James said that he could not remember when he completed the accident report, but that he thought it might have been the next day. He said that appellee had never told him he had a bad back prior to July 7, 2003, or that lifting would hurt his back, and if he had known of those limitations, he would not have had appellee loading the truck.
In Heritage Baptist Temple v. Robison, 82 Ark. App. 460, 464, 120 S.W.3d 150, 152-53 (2003), this court set forth the definition of a compensable injury:
Arkansas Code Annotated section 11-9-102(4) (A) (i) (Supp. 1999) defines “compensable injury” as
An accidental injury causing internal or external physical harm to the body ... arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence.
A compensable injury must be established by medical evidence supported by “objective findings.” Ark. Code Ann. § 11-9-102(4)(D). “Objective findings” are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § 11 -9-102 (16) (A) (i).
In the present case, the Commission found that appellee had sustained a compensable injury, even in light of the acknowledgment that appellee had an extensive history of work-related low-back problems dating back to 1992 and that he suffered from degenerative-disc disease and small-disc herniations. Appellant does not argue that appellee did not suffer an injury or that it was not established by objective findings. Rather, appellant argues that it should not be responsible for appellee’s injury because it was nothing more than a recurrence of his prior back injuries.
A recurrence exists when the second complication is a natural and probable consequence of a prior injury. Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996). In support of its argument, appellant points to appellee’s numerous prior back injuries and argues that, contrary to his assertion, appellee had complained of additional back pain after August 19, 2002, because he filed an AR-C form on February 11, 2003, seeking additional medical expenses and benefits from Wal-Mart with regard to a compensable injury he suffered while employed there.
We hold that there was substantial evidence to support the Commission’s finding that appellee suffered a compensable injury and that it was not a recurrence of his prior back injuries. Although acknowledging appellee’s prior history of work-related back injuries, which was admittedly quite extensive, the Commission placed great weight on the fact that after appellee’s last work-related injury appellee was released by Dr. Kannout without restriction to full regular-duty work as of August 19, 2002. Furthermore, the Commission obviously found appellee’s testimony credible that he did not seek any additional medical treatment or take any medication other than aspirin from his release on August 19, 2002, until July 7, 2003, the date of the injury at issue in the present case. The Commission determines witness credibility, and we hold that reasonable minds could arrive at the Commission’s decision that appellee had suffered a compensable injury.
Allen Canning also argues that the Commission erred in finding that the Shippers defense was not applicable to this case. In Shippers Transport of Georgia v. Stepp, 265 Ark. 365, 369, 578 S.W.2d 232, 234 (1979), our supreme court held that
a false representation as to a physical condition in procuring employment will preclude the benefits of the Workmen’s Compensation Act for an otherwise compensable injury if it is shown that the employee knowingly and wilfully made a false representation as to his physical condition, the employer relied upon the false represen tation, which reliance was a substantial factor in the employment, and there was a causal connection between the false representation and the injury.
All three of the factors must be present in order to bar compensation; if any of the three factors is absent, then the employee is entitled to compensation. Id. at 370, 578 S.W.2d at 234.
In the present case, the Commission determined that Allen Canning had failed to prove each element of the Shippers defense by a preponderance of the evidence — specifically, that appellant failed to prove that appellee knowingly and willfully made a false representation as to his physical condition on his employment application. On the employment application, appellant was asked to describe his general health, and he checked the box stating “good.” Appellant was also asked, “Do you have any physical or mental conditions which may limit your ability to perform certain kinds of work?” There is some type of mark through the box stating “no,” although appellee denied at the hearing that he checked either “yes” or “no” in response to that question. Nevertheless, the Commission found that even if appellee had checked the box, the question was insufficient in and of itself to prove that appellee knowingly and willfully made a false representation as to his physical condition.
In support of its decision that the Shippers defense is inapplicable in this case, the Commission cites College Club Dairy v. Carr, 25 Ark. App. 215, 756 S.W.2d 128 (1988), and Knight v. Indus. Elec. Co., 28 Ark. App. 224, 771 S.W.2d 797 (1989). In those cases, this court held that the questions posed to the prospective employees were too general and too broad to support an application of the Shippers defense. In College Club Dairy, the employment application asked the question, “Do you have any physical defects,” and in Knight, the question asked, “Do you have any physical condition which may limit your ability to perform the job applied for?” The Commission found that the question asked on the employment application in the present case, “Do you have any physical or mental conditions which may limit your ability to perform certain kinds of work,” was essentially the same question asked in Knight.
We hold that the question asked on the employment application in the present case was even more broad and general than the question in Knight because it also included mental conditions and asked if the physical or mental conditions limited his ability to perform “certain kinds of work,” without specifying the type of work. Jody Yoakum, appellant’s director of claims services, testified that as a general rule, people hired at the plant were not necessarily interviewing for a specific position, but for a general-labor position, and Yoakum could not say what appellee was told regarding what his job duties or assignment would be at the time he filled out his application. Furthermore, Yoakum testified that it was only after an employee was hired that the employee was asked to fill out a data card listing any conditions that would limit the employee’s ability to perform any type of work. If this inquiry was not made until after appellee was hired, then appellant cannot argue that it relied upon the “false representation” and that it was a substantial factor in the employment decision, another requirement of the Shippers defense. We find no error in the Commission’s determination that the Shippers defense is inapplicable in the present case.
Appellee cross-appeals the amount of temporary-total disability awarded him by the Commission, contending that he remained in his healing period after July 18, 2003, and therefore should be awarded temporary-total disability from July 8, 2003, until a date yet to be determined. We hold that there was no error in the Commission’s determination that appellee’s temporary-total disability benefits terminated as of July 18, 2003.
In order to be entitled to temporary-total disability benefits, a claimant must prove by a preponderance of the evidence that he remained in his healing period and suffered a total incapacity to earn wages. Arkansas State Highway & Transp. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). In the present case, the Commission found that appellee failed to prove by a preponderance of the evidence that he was totally incapacitated from earning wages after July 18, 2003, and there is substantial evidence to support this finding. In arriving at this conclusion, the Commission relied upon several factors that were set forth in its opinion — the physical therapist’s August 8, 2003 discharge report that stated that as of July 18, 2003, the last day appellee was seen, “significant improvement was noted”; the fact that appellee filed for and began receiving unemployment compensation benefits shortly after July 18, 2003; appellee’s own testimony at the hearing that he believed that he could return to some type of work at Allen Canning and that he had made several job inquiries; and the fact that there was no medical evidence indicating that appellee was totally incapacitated from working after July 18. Obviously, if appellee was applying for jobs, he was holding himself out as able to work. All of these findings support the Commission’s decision that appellee was not totally incapacitated from earning wages after July 18, 2003, and therefore was no longer entitled to temporary-total disability benefits.
Furthermore, as pointed out by appellant, appellee’s receipt of unemployment compensation benefits makes him ineligible to receive temporary-total disability benefits. Arkansas Code Annotated section ll-9-506(a) (Repl. 2002) provides in pertinent part that “no compensation in any amount for temporary total disability shall be payable to an injured employee with respect to any week for which the injured employee receives unemployment benefits under the Arkansas Employment Security Law.” The Commission’s determination that appellee’s temporary-total disability benefits terminated as of July 18 is also affirmed.
Affirmed on direct appeal and on cross-appeal.
Griffen and Roaf, JJ., agree. | [
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George Rose Smith, J.
The issue in this case is whether the appellant Wright is entitled to have his name appear on the ballot in a Democratic primary to be held later this summer. It is conceded that the appellee Sullivan duly qualified as a candidate for nomination to the office of county sheriff. The only other candidate who attempted to qualify was the appellant, but by oversight he failed to file his corrupt practice pledge until May 2, the ticket having closed on April 30. Sullivan then filed this action for a declaratory judgment, naming Wright and the members of the Democratic county committee as defendants. The trial court held that the pledge had been filed too late and enjoined the committee from placing Wright’s name on the ballot.
The statute requires that the corrupt practice pledge be filed ninety days before the election. Ark. Stats. 1947, § 3-1304. The difficulty lies in the fact that two primary elections have been necessary since the adoption of Amendment 29 to the constitution, which requires that party nominees receive a majority vote. Wright’s pledge was not filed ninety days before the preferential primary, which will be held on July 29, but it was filed more than ninety days before the general or run-off primary, which will be held on August 12. Wright contends that the latter date should be controlling, since the law provides that when there are, as here, only two candidates for an office the contest is to be determined at the second primary election. Ark. Stats., § 3-212.
We think this question has been determined adversely to the appellant by the explicit language of the statutes. By Act 238 of 1943 the legislature declared that when there are only two candidates for an offiee “the time for filing pledges and payment of fees shall be reckoned from the date of the preferential primary election.” Ark. Stats., § 3-212. In a later section of the same act it is directed that only the general primary shall be held if there are no races involving three or more candidates, “provided, however, the time for filing pledges and payment of fees shall be reckoned from the date on which the preferential primary would have been held had one been necessary.” Ark. Stats., § 3-214. Thus the General Assembly has twice declared that the time is to be calculated from the date of the preferential primary even if only two candidates have qualified.
The appellant contends that in the statutes just quoted the reference to “pledges” should be taken to mean party loyalty pledges only, since those happen to be the only pledges that are mentioned elsewhere in the act. Ark. Stats., § 3-213. We think it reasonable to believe that the legislature meant to include both types of pledge in its mandate and thus to avoid the con fusion that would inevitably occur if the time for filing the corrupt practice pledge should be dependent, as the appellant insists, upon the number of candidates eventually seeking the office. It is conceded that the date of the preferential primary determines the time for the filing of the party loyalty pledge and for the payment of the ballot fee. We are not convinced that the legislature meant to fix a different date for the filing of the corrupt practice pledge, which is equally a requirement to be met by a candidate for office.
The appellant also asks us to hold that the filing of the pledge two days late amounted to a substantial compliance with the statute. This position might be well taken if no objection has been raised until after the election, for then the requirement could be regarded as directory; but we have often held that the provisions of the election laws are mandatory if enforcement is sought before the election. Orr v. Carpenter, 222 Ark. 716, 262 S. W. 2d 280; see also Fletcher v. Ray, 220 Ark. 844, 250 S. W. 2d 734. and Byrd v. Short, 228 Ark. 368, 307, S. W. 2d 871. The appellant cites a number of cases involving the principle of substantial compliance, but only in the case of Fisher v. Taylor, 210 Ark. 380, 196 S. W. 2d 217, was the objection made before the election. That case involved a party loyalty pledge executed on behalf of a member of the armed forces, serving on board ship, and we based our decision on the special consideration that the law accords to soldiers and sailors absent from home in defense of their country. It was specifically stated that the rule there applied would not be controlling ‘ ‘ under ordinary and normal conditions, ’ ’ which are the conditions presented by the case at bar.
Affirmed.
Harris, C. J., concurs. | [
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George Rose Smith, J.
In 1954 the appellee’s predecessor, Lion Oil Company, entered into a labor contract with Local No. 224, International Association of Machinists. That contract provides for the accrual of certain seniority rights on the part of the company’s employees. On August 8, 1955, the company shut down some of its maintenance equipment and temporarily laid off thirty-one of its employees. Nine days later the company decided to make a permanent reduction in its working force and, in that connection, discharged the thirty-one men who had been temporarily laid off and forAvarded to each of them the termination pay provided for in the labor agreement. fej
Later on a number of the discharged employees attempted to assert a grievance through the labor union. It Avas their contention that their seniority rights continued in force for a year after their discharge and that within that year the employer had, in violation of the labor contract, filled certain jobs by retaining or promoting men whose seniority rights were inferior to those held by the discharged employees. The union officers refused to present these grievances, being of the opinion that there had been no breach of contract on the part of the employer. The present suit was then filed by fourteen of the discharged employees. In substance their complaint reneAvs the grievance that Avas submitted to the union and seeks damages from the employer and injunctive relief against the asserted violation of the collective bargaining agreement. The chancellor dismissed the complaint for want of equity.
A number of contentions are urged in the briefs, but Ave find it necessary to discuss only the employer’s contention that, although these appellants would admittedly have been entitled to priority had the company increased its working force by employing additional Avorkers Avithin a year after the appellants were laid off, the contract did not contemplate or require that men already working for the company should be discharged in order to make places for these appellants. In our view this contention is well taken and is decisive of the case.
The labor contract classifies the various jobs under two broad categories and establishes a corresponding system of dual seniority. The upper category includes seventeen specified crafts, such as carpentry, painting, welding, blacksmithing, etc. The lower category is called the Yard Pool and includes all workmen who are not assigned to jobs in one of the seventeen skilled crafts. A new employee enters the Yard Pool and, after a training period of forty-five days, begins to accumulate seniority in the bargaining unit as a whole. When he is promoted to work in one of the crafts he continues to accrue seniority in the bargaining unit and also begins to accumulate seniority in the particular craft to which he is assigned. As between the two, craft seniority is declared to be prior to bargaining unit seniority.
Promotions, demotions, and temporary layoffs are determined on the basis of seniority. Vacancies in the various crafts are filled by promoting men from the Yard Pool according to their seniority, and, conversely, if the company reduces the working force in a particular craft, the employee in that craft who is youngest in seniority is the first to be demoted to the Yard Pool. When it becomes necessary for men to be laid off, those in the Yard Pool with the least seniority must be the first to be let go.
The present dispute goes back to the employer’s decision to lay off thirty-one men on August 8, 1955. By the terms of the labor agreement the employer was required to select for release the thirty-one men then in the Yard Pool who were lowest in seniority, and it is conceded that this selection was properly made. Although all of these appellants had formerly worked in a craft and in some instances had acquired substantial craft seniority, they were unlucky in that they were working in the Yard Pool on the particular day when the company found it necessary to reduce its working force. Hence these appellants were laid off, in accordance with the contract, simply because they happened to be in the Yard Pool on August 8, 1955; while other employees junior in service were retained, simply because they happened to be assigned to a craft on that date.
The contract provides that the accrued seniority of an employee who has been laid off through no fault of his own shall continue to exist for one year after the date of his layoff (or for 180 days if he has less than five years of bargaining unit seniority). After these appellants had been let go the company naturally continued to make promotions and demotions to and from the Yard Pool and within the several crafts. It must be strongly emphasized at this point that the company did not employ any new workmen in its maintenance department during the year following the appellants’ release; there was merely a shifting about of employees who were on the payroll on August 8, 1955, some of whom, as we have said, had less seniority than the appellants but were fortunate in having been assigned to service in a craft on the day when the employer decided to let thirty-one men go.
The appellants now insist that, since their seniority rights continued for a year after they were laid off, the company could not within that time award a promotion to any other employee whose seniority rights were inferior to those of any one of the appellants. On this premise it is argued that, when the occasion for a promotion arose, the contract required the company to discharge a retained employee and to recall one of the appellants to fill the position.
This contention is answered, in our opinion, by the plain language of the contract: ‘ ‘ The employee last employed and not then permanently assigned to a craft shall be the person first laid off in the event there is a reduction in the number of employees. The employee last laid off, through no fault of his own, shall, subject to the following provisions of this Article, be the person first re-employed in the event additional employees are employed . . . ”
Taken as a whole, the contract leaves no real room for donbt about its meaning. The clause preserving seniority rights for a period of a year fixes a reasonable and practical limitation upon the preferred position accorded to former employees. The only preference actually stated in the contract is that the last employee to be laid off is entitled to be the person first re-employed 1 ‘ in the event additional employees are employed. ’ ’ Here there was no occasion for anyone to be re-employed, for no additional employees were added to the working force during the year following the appellants’ release on August 8, 1955. The contract admittedly protects an employee of limited seniority who is fortunate enough not to be assigned to the Yard Pool on the day when the employer takes the major step of laying off a number of workmen. We are unwilling to read into the agreement a further provision, which is certainly not expressed, that this same employee of limited service must be discharged to make a place for the former worker whenever the employer takes the minor step of making a promotion within the existing working force.
Affirmed. | [
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Karen R. Baker, Judge.
A jury in Mississippi County Circuit Court found appellant, Charles Marshall, guilty of murder in the first degree and sentenced him to twenty-five years’ imprisonment in the Arkansas Department of Correction. On appeal, appellant challenges only the denial of his “motion to suppress his custodial statement that is against his interest.” We find no error and affirm.
On August 10, 2003, appellant was involved in an altercation that resulted in the shooting death of Harold Walker. Appellant and three others were riding around in an automobile when they were involved in an altercation with a friend of Mr. Walker’s. After leaving the scene of the altercation, the driver proceeded to an unknown person’s house to obtain a gun. Later, while again riding in the vehicle, appellant and the others again encountered Mr. Walker’s friend, Mr. Walker, and other individuals. At this time, another altercation ensued, shots were fired, and Mr. Walker was hit. He later died from his injuries.
Appellant was arrested in Indiana and returned to Mississippi County on September 3, 2003, the date on which appellant was to be arraigned. However, before he was taken to court, Detective Timothy Bentley advised appellant that he was going to speak to him in reference to the murder case and took him to an interview room. Appellant informed Detective Bentley that he did not have to say anything and that he wanted to talk with his lawyer. Detective Bentley responded that he did not really want to speak with appellant and stated, “I don’t need anything from you. There’s plenty of witnesses and I personally don’t care if I speak with you.” At that point, Detective Bentley proceeded to obtain from appellant basic information for a criminal investigation divi sion (CID) information form. Upon completion of the CID form, appellant was informed that it was time for his arraignment, at which time appellant asked Detective Bentley, “What do you want to know? I will speak with you.” Appellant was then advised of his Miranda rights, he signed the Blytheville Police Department Interrogation Advise of Rights form, and he gave a tape-recorded statement admitting that he had pointed a gun and shot three times in the direction of Mr. Walker and the other individuals.
On October 2, 2003, appellant filed a motion to suppress his statement. Following testimony and arguments by counsel, the court denied appellant’s motion to suppress and admitted his statement into evidence.
Our review of a denial of a motion to suppress evidence is de novo, and we make an independent determination based on the totality of the circumstances, giving due deference to the trial court’s ability to assess the credibility of the witnesses. Davis v. State, 351 Ark. 406, 94 S.W. 3d 892 (2003). In Davis, our supreme court clarified the standard of review by replacing a view of the evidence “in the light most favorable to the State” with a “proper deference to the findings of the trial court,” which was held to be more consistent with the standard announced by the United States Supreme Court. State v. Harmon, 353 Ark. 568, 113 S.W.3d 74 (2003) (quoting Ornelas v United States, 517 U.S. 690 (1996)).
Appellant’s sole point on appeal is that the trial court erred in denying the motion to suppress his statement. Appellant asserts that his Fifth and Fourteenth Amendment Rights of the United States Constitution were violated and once that right is invoked “all interrogation must cease until an attorney is present.” The trial court denied the motion, reasoning that the appellant voluntarily reinitiated the questioning by indicating that he wanted to give a statement.
Appellant correctly asserts that once an individual in custody invokes his right to counsel the interrogation must cease. The term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291 (1980). However, what occurred in this case was not the continuation of an interrogation relating to the charges, rather it was an informational procedure normally attendant to arrest and custody. In fact, there is no indication in the record that appellant was initially questioned regarding the charges against him.
Furthermore, the statements that Detective Bentley made in response to appellant’s decision to remain silent and his request for an attorney were not statements that were reasonably likely to elicit an incriminating response from appellant. Detective Bentley simply responded that he had witnesses to speak with and that he did not need to speak with appellant regarding the charges. The crux of the inquiry is whether Detective Bentley should have known that due to his statements appellant would be moved to make a self-incriminating admission. See Innis, supra. Given the fact that Detective Bentley’s statements appear to have consisted of no more than a few off-hand remarks, we cannot say that Detective Bentley should have known it was reasonably likely that appellant would respond. Nor does the record indicate that Detective Bentley’s comments were particularly evocative. Therefore, Detective Bentley did not subject appellant to words or actions that he should have known were reasonably likely to elicit an incriminating response from appellant.
Our supreme court recently clarified the standard of review for cases involving a trial court’s ruling on the voluntariness of a confession holding that we must make an independent determination based upon the totality of the circumstances. Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004) (citing Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003)). A statement made while in custody is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily and was knowingly and intelligently made. Id. In order to determine whether a waiver of Miranda rights is voluntary, this court looks to see if the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception. Id.
Here, Detective Bentley spoke with appellant in an interview room and said he would like to speak with appellant regarding the case. Appellant invoked his right to remain silent and his right to counsel. Detective Bentley then proceeded to question appellant only regarding the CID form. When informed that it was time for the arraignment to begin, appellant spontaneously asked Detective Bentley what he wanted to know and indicated that he wanted to talk with him about the charges. Detective Bentley testified that at that point he advised appellant of his rights, appellant signed the Advise of Rights form, and Detective Bentley asked appellant to note specifically that he would be speaking to him without an attorney. Furthermore, appellant’s tape-recorded statement evidenced his understanding of his waiver of rights. There is no evidence of coercion, and it is clear that appellant was aware of the consequences of abandoning his right to remain silent and to have counsel present during questioning.
Given the totality of the circumstances in this case, we hold that the trial court did not err in denying appellant’s motion to suppress his custodial statement.
Affirmed.
Gladwin and Neal, JJ., agree. | [
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HART, J.,
(after stating the facts). (1) It is earnestly insisted by counsel that the court erred in not directing a verdict for appellant. We think the question of whether or not the failure to heat the waiting room was the proximate cause of appellee’s injury was one of fact for the jury. Counsel for appellant insists that the verdict could only have been the result of conjecture or surmise on the part of the jury, but we do not agree with them in this contention. Appellee testified that she was perfectly well when she started on her journey and until after she was exposed to the cold for several hours in the waiting room at Dustin. She stated that she had not been exposed to cold at any other time during her journey, but on the other hand that she had been perfectly comfortably situated until she went into the colored waiting room at Dustin. According to her testimony she was exposed to the cold there from 1 o ’clock in the afternoon funjál:4 o’clock in the morning. She was compelled to sit.:mr$ cold room with the window np and the station agent, failed or refused to build a fire for her. She had a severe- chill followed by a fever when she left there for home. She suffered from a severe case of pneumonia, and, according to her own testimony- and that of her physician, her left ovary became affected by reason thereof. The evidence adduced in her behalf was flatly contradicted by that adduced in favor of appellant. This raised an issue of fact for the jury to determine. This court upheld the verdict of a jury under a similar state of facts in Kansas City Southern Raiway Co. v. Cobb, 118 Ark. 569, and St. L., I. M. & S. Ry. Co. v. Hook, 83 Ark. 584.
(2) It is next insisted by counsel for appellant that the court erred in giving instruction No. 4 on the measure of damages. The instruction is as follows:
“You are also instructed that if you find for the plaintiff you will award her such damages as will fairly compensate her for all pain and anguish, if any, both of body and mind, suffered by plaintiff on account of the injuries received and for the diminution, if any, of her physical health and vigor, and also such sums of money as the evidence shows, if any, she was compelled to expend for medicine and medical attention.”
Various objections are raised to the instruction. In the first place, it is urged by counsel that it was the duty of appellee to have gone to some house in Dustin where there was a fire when the agent refused to build a fire in the waiting room. It may be said that this objection does not affect the measure of damages but rather bears on the question of the contributory negligence of appellee. Besides, there were no houses in the town of Dustin whiepe negroes were entertained and the nearest negro residence-was three and one-half miles in the country. Ap-ppjjee-was expecting the train to arrive at any time from 7j:-3,Qijn:the-afternoon until 4:10 o’clock the next morning. Iff.therefore was not practical for her to have gone in search of another place to -stay, even if she had been rea ■sonably certain there was a place of entertainment open to her in the town. According to the testimony of appellee and her physician her exposure to the cold in the waiting room caused her to have pneumonia. She also testified that she contracted acute inflammation of the left ovary by being exposed to the cold in the waiting room; that she suffered severe pain and continued to suffer it at the time of the trial. From this the jury might have found that she would necessarily suffer pain for a period of time in the future. The instruction is in accord with the principles of law laid down in Arkansas Southwestern Railroad Co. v. Wingfield, 94 Ark. 75, and Scullin et al., Receivers, v. Vining, 127 Ark. 183, 191 S. W. 924.
In St. Louis, Iron Mountain & Southern Railway Co. v. Hook, supra, the court held that in an action against a railroad company for injuries resulting from the company’s failure to heat its waiting room, causing the plaintiff to be ill for some weeks from a dangerous malady, it was not error to instruct the jury to compensate plaintiff “for the diminution, if any, of his physical health and vigor occasioned by the alleged wrong sued for. ’ ’
(3) Complaint is also made by appellant at some of the instructions given by the court at the request of ap-pellee and at the refusal of the court to give certain instructions asked by appellant. We do not deem it necessary to set out these instructions or to comment on them at length. In the case of St. L., I. M. & S. Ry. Co. v. Hook, supra, and K. C. So. Ry. Co. v. Cobb, supra, the court held that it was the duty of a railroad to keep its waiting rooms comfortable and to provide reasonable accommodations for passengers at their stations. The court further held that in the discharge of this duty the railroad company must exercise ordinary care .do keep its waiting rooms comfortably wav^'j.a^i'á^if’!^; fails to exercise such care and the ']?ass<ALgbjC injury as a direct result'of .such failure,' the railródd édm-pany will be liable in damages. The court-gafé instructions both at the request of appellant’ and appelléiTía%ttí-cord with the principles of law laid dowh'iidthbfeS Msis. The only issue of fact was whether or not the railroad company failed to heat its waiting room and whether this was the proximate canse of appellee’s injury. Ap-pellee on the one hand testified that there was no fire in the waiting room and that she suffered so much in consequence that she contracted pneumonia. On the other hand, appellant’s agents testified that there was a fire in the waiting room. This disputed question of fact, together with the accompanying question of whether or not this caused appellee’s illness, was fully and fairly submitted to the jury according to the principles of law above announced.
We find no prejudicial error in the record and the judgment will be affirmed. | [
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Ed. F. McFaddin, Associate Justice.
This is an original proceeding, brought by a citizen and taxpayer against the Secretary of State, and challenging (a) the popular name, and (b) the ballot title of proposed Initiated Act No. I, which is to be submitted to the voters at the General Election in November 1958. Our jurisdiction of this proceeding is because of Amendment No. 7 to the Constitution, which reads (§ 16) in part: “The sufficiency of all statewide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction of all such clauses.” (Emphasis supplied). “Sufficiency” means more than a mere numerical count, because Section 18 of the Amendment says that if a petition be “insufficient”, it may be returned “for correction or amendment”.
I. The Popular Name. The complaint says inter alia-.
“That the popular name proposed by the sponsors which defendant has stated he will place on the November General Election Ballot, to-wit: ‘Act to Repeal the Full Crew Laws’, is so worded and so designated for the sole purpose of prejudice since the proposed Act would not in any way repeal a ‘full crew law’. Not one of the Acts proposed to be repealed is, or ever was, a ‘Full Crew Law’, nor does any of said acts concern or deal with a ‘full crew’.”
The proposed Act says it is to repeal three Legislative enactments, being: (a) Act 116 of 1907 (which may be found in §§ 73-720 et seq. Ark. Stats, and captioned, “An Act prescribing the minimum number of employees to be used in the operation of freight trains in this State and providing a penalty for the violation of this Act”); (b) Act 298 of 1909 (which may be found in §§ 73-723 et seq. Ark. Stats. and captioned, “An Act prescribing the minimum number of employees to be used in the operation of passenger trains in this State and providing penalty for the violation of this Act”); and (c) Act 67 of 1913 (which may be found in §§ 73-726 et seq. Ark. Stats. and captioned, “An Act for the better protection and safety of the public”). In several of our cases (K. C. So. RR. v. State, 116 Ark. 455, 174 S. W. 223; and St. L. S. F. Ry. Co. v. State, 215 Ark. 714, 223 S. W. 2d 186), we have referred to one or the other of these Acts as, “The Full Crew Law”, or the “Full Switching Crew Law”. In 44 Am. Jur. 619, ‘‘Railroads’’ § 405, similar statutes are referred to as “full crew acts” in this language:
“Statutes, commonly known as ‘full crew acts’, requiring crews of a certain number of employees on railroad locomotives or trains, have been generally sustained as a legitimate exercise of the police power.”
Anyone familiar with legal parlance could not possibly be misled by the popular name of this proposed Act, which is, “An Act to Repeal the Full Crew Laws”. Furthermore, one not familiar with legal parlance, but with ordinary English, could easily find a definition of the words “full crew law” in Webster’s Unabridged Dictionary, where the words “full crew law” are defined: “Railroads. A law requiring light trains to be manned on the same standard as heavy trains.” So, we conclude that the popular name here challenged is not open to any of the objections urged against it by the plaintiff.
III. The Ballot Title. The ballot title here challenged reads: “A proposed act to repeal acts prescribing minimum numbers of employees to be used in the operation of trains.” The plaintiff states, inter alia:
“That the ballot title as proposed by the sponsors and approved by the defendant is misleading, camouflaged by partisan coloring, inadequate to show the full meaning covered by said Act; fails to fairly allege the purpose of the Act, and is written in such a way that the material facts proposed therein are omitted to the extent that the electors will not and cannot determine the issues involved on which they are requested to east their vote. The ballot title is completely misleading and fails to state the true nature and effect of the Act. The ballot title fails to designate the only vital provisions of the initiated act, to-wit: the acts sought to be repealed which are set forth in Section 1 of the Act . . . The use of the words in the ballot title, ‘minimum number of employees’, is wholly meaningless.”
We have a number of cases which state the rules regarding the validity and sufficiency of the ballot title. Some of these cases are Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356, 44 S. W. 2d 331; Shepard v. McDonald, 189 Ark. 29, 70 S. W. 2d 566; Walton v. McDonald, 192 Ark. 1155, 97 S. W. 2d 81; Newton v. Hall, 196 Ark. 929, 120 S. W. 2d 364; Hogan v. Hall, 198 Ark. 681, 130 S. W. 2d 716; Sturdy v. Hall, 204 Ark. 785, 164 S. W. 2d 884; and Bradley v. Hall, 220 Ark. 925, 251 S. W. 2d 470. This general statement, from Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356, 44 S. W. 2d 331, has been restated in many cases:
“The ballot title should be complete enough to convey an intelligible idea, of the scope and import of the proposed law, and it ought to be free from any misleading tendency, whether of amplification, of omission, or a fallacy, and it must contain no partisan coloring.”
Each of the three Legislative enactments here sought to be repealed deals with the minimum number of employees required to be used in the operation of trains, and the purpose of the proposed Initiated Act here challenged is to repeal these Acts. The ballot title certainly and clearly states that purpose. We have studied all of the arguments advanced by the plaintiff and we conclude that the ballot title is valid as against each and all of the attacks here made on it.
Therefore, we deny the petition of the plaintiff.
Here is the popular name, ballot title, and complete text of the proposed Act:
“Proposed Initiated Act No. 1 (Popular Name)
“ACT TO REPEAL THE FULL CREW LAWS.
(Ballot Title)
“A proposed act to repeal acts prescribing minimum numbers of employees to be used in the operation of trains.
(Proposed Act)
“WHEREAS, Arkansas is one of the relatively few states which by law prescribe minimum crews on certain trains operating in the state, thus resulting in higher operating expenses to the railroads in Arkansas than in neighboring states, all to the detriment of shippers and the traveling public; and
“WHEREAS, railroads now have improved roadbeds and grades and have developed and now use equipment that can be operated with safety to the public and the employees with smaller crews than prescribed by law;
“NOW, THEREFORE, BE IT ENACTED BY THE PEOPLE OF THE STATE OF ARKANSAS:
“Section 1. That Act 116 of the General Assembly of the State of Arkansas, approved March 28, 1907, and Act 298 of the General Assembly of the State of Arkansas, approved May 81, 1909, and Act 67 of the General Assembly of the State of Arkansas, approved February 20, 1918, be and the same are hereby repealed.”
One or the other of these three Acts has been before the Courts in several cases: Act 116 of 1907 was before the Courts in the case of C.R.I. & P. Ry. Co. v. State, 86 Ark. 412, 111 S. W. 456; and the holding of this Court was affirmed by the Supreme Court of the United States in C.R.I.&P. Ry. Co. v. Arkansas, 219 U. S. 453, 55 L. Ed. 219, __S. Ct._____ Act 67 of 1913 was held valid by this Court in St. L.I.M. & So. Ry. v. State, 114 Ark. 486, 170 S. W. 580; and the holding of this Court was affirmed by the Supreme Court of the United States in St. L.I.M. & So. Ry. v. Arkansas, 240 U. S. 518, 60 L. Ed. 776, 36 S. Ct. 443. Both the 1907 Act and the 1913 Act were held valid in the case of Mo. Pac. v. Norwood, 283 U. S. 249, 75 L. Ed. 1010, 51 S. Ct. 458. Other cases involving these Acts are K.C. So. Ry. Co. v. State, 116 Ark. 455, 174 S. W. 223; K.C. So. v. State, 194 Ark. 80, 106 S. W. 2d 163; Mo. Pac. RR. Co. v. Moore, 210 Ark. 643, 197 S. W. 2d 284; K.C. So. Ry. Co. v. State, 213 Ark. 906, 214 S. W. 2d 79; and St. L.S.F. Ry. Co. v. State, 215 Ark. 714, 223 S. W. 2d 186. | [
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McCULLOCH, C. J.
The defendant, J. M. Thompson, was indicted by the grand jury of Pope County for the crime of grand larceny, the charge being that he stole a hale of cotton from U. Gr. Shoptaw, and on trial of the case the jury returned a verdict finding the defendant guilty of the offense charged in the indictment.
The evidence adduced by the State on the trial of the case tended to show that defendant stole three bales of cotton from the gin yard of Shoptaw and carried them to Russellville and sold them. The proof shows that the bales of cotton in question were ginned on October 16 and 17,1916, and Shoptaw testified that he missed them from the gin yard on October 19, 1916, and later found the three bales at the cotton yard in Russellville and identified them as being the same bales of cotton that had been taken from his yard. He identified one of the bales by the number and the peculiarity of the lettering, and testified that the initials which had been stamped on the bale at the gin were rubbed out with dirt. He identified each of the three bales also by peculiarity in shape by reason of the shape of the press. There is little, if any, controversy as to the identity of the three bales of cotton found at the cotton yard in Russellville as being the same which were stolen from Shoptaw’s gin yard, nor is there any controversy as to the fact that defendant took those three bales of cotton to Russellville and sold them. Defendant admitted that fact when he was arrested, and also testified on the trial that he carried the bales of cotton to Rus-sellville and sold them. • He denied, however, that he took the cotton from the gin yard, and testified that they were put into his possession by a stranger who gave the name of Hunt. His narrative of the circumstances is that he was engaged in hauling hay at the time and about daybreak on October 18 started out on his day’s hauling with an empty wagon and came upon a stranger on the road with three bales of cotton on a wagon, and that the man claimed that his team had broken down on him, and offered to pay defendant to haul the cotton to Russellville. Defendant testified that the man told him he would give him $1 to haul the cotton to Russellville, and would pay-more if he (defendant) “was put to any extra trouble.” He testified that he took the cotton on his wagon and offered to let the man ride to town with him, but that the man declined on the ground that he was wet and preferred to walk. Defendant stated that when he got to Russellville the man asked him to sell the cotton for him, and he went around to the cotton buyers and sold it and collected the money (about $265) and carried it back to Hunt at the wagon yard and delivered it to him, Hunt at the same time paying him $1 for the hauling. He testified that he heard that Hunt lived up about Dover somewhere, but had made inquiry and could not find him.
The proof on the part of the State was that defendant on that day paid out the sum of $309 to different parties on debts that he owed. He claimed that he paid the debts with his own money, and that he had accumulated the funds by the sale of cotton out of his own crop gathered and sold before that time. The State made out a strong case of circumstantial evidence against defendant by reason of his possession of the recently stolen cotton. His explanation of his possession is far from satisfactory — at least the jury had the right to so regard it — and defendant’s conduct was, to say the least of it, very suspicious. His narrative of facts concerning his possession of the cotton is 'corroborated to some extent by the testimony of other witnesses, but it can not be said that his evidence entirely breaks the force of the circumstances proved in the case, and we think that the testimony abundantly sustained the verdict.
(1) The first assignment of error in the motion for new trial relates to alleged misconduct of special counsel for the prosecution in the opening statement to the jury, but the bill of exceptions does not show that any such incident occurred as set out in the motion. In that state of the record we can not see that there was any misconduct or that anything prejudicial to defendant in that respect occurred. The facts upon which the assignment of error are based must be .set forth in a bill of exceptions, as the motion for new trial operates only as assignment of error and not as an authoritative narrative of the incidents of the trial.
The next assignment of error relates to the giving of instruction No. 5, on the subject of proof of the general reputation of defendant for honesty. Defendant’s counsel offered testimony to establish his reputation in the community for honesty, and the State on rebuttal made a counter attack on his reputation. The court gave the instruction complained of, but we find no prejudicial error in it. Defendant asked the court to give an instruction in substance the same as the one given, but the court refused to give it on the ground that the refused instruction was already fully covered by the one given. The only objection madehere to the instruction is that its tendency was to minimize the effect of the testimony relating to defendant’s reputation. It is not claimed that the court in express language undertook to instruct the jury on the weight of that testimony, but it is merely claimed that the extent of the details of the instruction might have had the effect on the minds of the jury of minimizing the importance of that feature of the testimony. We do not think that the instruction is open to that attack, and we can discover no prejudicial effect which could reasonably have resulted.
(2) The next assignment of error- is as to the refusal of the court to give instruction No. 2, requested by defendant, as follows:
“You are instructed that if the facts and circumstances in this case are susceptible of either of two constructions, one pointing to the guilt of the defendant and the other to his innocence, it will be your duty to adopt the construction consistent with the innocence of the defendant and acquit him. ’ ’
The court gave an instruction on the subject of reasonable doubt, telling the jury, in substance, that the presumption of innocence attended the defendant throughout the trial and that it devolved upon the State to estab lish his guilt beyond a reasonable doubt. After having given that instruction, it was not error to refuse to give the other one requested by defendant on the same subject. Green v. State, 38 Ark. 304; Reed v. State, 54 Ark. 621. This view of the matter is not in conflict with the decision of this court in Holder v. State, 58 Ark. 473, where it was held that the trial court erred by modifying an instruction so as to tell the jury that although the facts proved were consistent with defendant’s innocence, the jury were not bound to acquit him unless they had a reasonable doubt of his guilt.
(3) The only remaining assignment of error argued on the brief of counsel is that a new trial ought to have been granted for newly-discovered evidence. After the verdict was rendered counsel presented affidavits showing that he had made a mistake in his testimony concerning the times he had sold a part of the cotton out of his own crop that season, and that he had been led into that mistake by an erroneous sales account furnished him by a firm of merchants to whom he sold his cotton. The point of the newly-discovered testimony was that it would tend to strengthen defendant’s contention that he had sold a sufficient quantity of cotton before October 18 to raise the amount of funds which he used on that day in paying his own debts. We have often held that a motion for new trial on the ground of newly-discovered evidence is left to the sound discretion of the trial judge and that this court will not disturb the ruling unless there has been an abuse of that discretion. In this case the trial judge might very well have taken the view that it was defendant’s own fault that he had not possessed himself of accurate information concerning the date of the sales of his own cotton. He was a small farmer and raised only five or six bales of cotton that year and it was a matter within his own knowledge and he ought to have taken the pains to be accurate in his testimony and not wait until after trial to bring forth matter which would operate as a circumstance in support of his claim of innocence. In other words, it was a matter of discretion for the trial court to determine whether he had displayed a sufficient amount of diligence to produce the evidence which he now offers in the event of new trial.
We are unable to find any error in the record, and, as the verdict is supported by sufficient evidence, it follows that the judgment must be affirmed, and.it is so ordered. | [
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Larry D. Vaught, Judge.
This appeal arises from the sexual assault of one nursing-home resident by another resident. Appellant Jennifer Fritz, as special administratrix of the estate of Georgia Fritz Collins, appeals from the jury’s verdict finding appellee Baptist Memorial Health Care Corporation negligent for allowing the assault to occur but not awarding any damages for the assault. Fritz seeks a new trial on damages or, in the alternative, a new trial on all issues. Baptist conditionally cross-appeals from two of the trial court’s evidentiary rulings, as well as from decisions denying motions to dismiss and for a directed verdict. We affirm on direct appeal; consequently, we do not address the cross-appeal.
Georgia Collins was admitted to Baptist’s Blytheville nursing home in 1999. At the time, Collins was alleged to be suffering from dementia. On February 28, 2001, Collins was sexually assaulted by another resident, Theodore Weaver, who was arrested for the crime. On April 1, 2001, Collins left the nursing home. On November 1, 2001, Fritz, as special administratrix of Collins’s estate, filed suit, alleging that Baptist was negligent in allowing the assault to take place and that Baptist violated Ark. Code Ann. §§ 20-10-1201 through 1209 (Repl. 2000 & Supp. 2003), which provide protection and rights for residents of long-term-care facilities. The allegations of the complaint were generally denied.
The jury returned a verdict on interrogatories. In the first interrogatory, the jury found that Baptist was negligent. This interrogatory was signed by the jury foreperson. The second interrogatory found that the plaintiff was not entitled to punitive damages and was signed by eleven jurors. The third interrogatory asked the jury to assess compensatory damages. The jury answered: “Plaintiff court costs and plaintiff attorney’s fees.” A blank was left for an amount to be inserted. Ten jurors signed this interrogatory. When the verdict was returned, the trial court inquired of the jurors concerning interrogatory number three. The court asked whether the jury found any monetary damages, and the jury responded “no.” The court then asked if it was their intention that plaintiff recover court costs and attorney’s fees and not monetary damages and the jury responded “yes.” Fritz then orally moved for a mistrial based on the jury’s failure to properly complete the interrogatories. The court denied the motion for a mistrial but asked the parties to brief the effect of the jury’s answer to the third interrogatory. Judgment was entered on the jury’s verdict. By an “Addendum to Judgment on Jury Verdict,” the trial court denied Fritz’s motion for a mistrial or a new trial on damages. This appeal and cross-appeal followed.
Fritz argues one point on appeal, that a new trial is required because of the jury’s failure to award damages. She subdivides her point into two parts: that the nature of the offense requires an award of damages and that the jury’s answers to the interrogatories are inconsistent because of the jury’s finding of proximate cause.
Rule 59 of the Arkansas Rules of Civil Procedure provides that a new trial may be granted on the ground of error in the assessment of the amount of recovery, whether too large or too small. Ark. R. Civ. P. 59(a)(5). When the primary issue is the alleged inadequacy of the damage award, we will affirm the denial of a motion for new trial absent a clear and manifest abuse of discretion. Depew v. Jackson, 330 Ark. 733, 957 S.W.2d 177 (1997); Fields v. Stovall, 297 Ark. 402, 762 S.W.2d 783 (1989). An important consideration is whether a fair-minded jury might reasonably have fixed the award at the challenged amount. See Depew, supra; Fields, supra. The trial court is not to substitute its view of the evidence for that of the jury. Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982).
Fritz asks this court to award a new trial on damages only. This cannot be done. Even though the alleged error in this case pertains only to damages, a new trial must include both liability and damages issues. See Smith v. Walt Bennett Ford, 314 Ark. 591, 864 S.W.2d 817 (1993); Waste Mgmt. of Ark., Inc. v. Roll Off Serv., Inc., 88 Ark. App. 343, 199 S.W.3d 91 (2004).
Citing such cases as Cathey v. Arkansas Power & Light Co., 193 Ark. 92, 97 S.W.2d 624 (1936); Davis v. Richardson, 76 Ark. 348, 89 S.W. 318 (1905); and Western Union Telegraph Co. v. Glenn, 68 S.E. 881 (Ga. App. 1910), Fritz argues that the assault on Collins requires that some damages be presumed and, therefore, it was error for the trial court not to order a new trial.
Nominal damages may be awarded where a legal right, such as an assault, is vindicated but where an infringement produces no actual present loss, or where some compensable injury is shown but the amount of the injury not proved. Baker v. Armstrong, 271 Ark. 878, 611 S.W.2d 743 (1981). Some damages are presumed to flow from the violation of a legal right. The law in such cases will at least award nominal damages. Baker, supra; Adams v. Adams, 228 Ark. 741, 310 S.W.2d 813 (1958); Barlow v. Lowder, 35 Ark. 492 (1880). To warrant recovery of nominal damages, there must be an unlawful infringement of a property right. Thigpen v. Polite, 289 Ark. 514, 712 S.W.2d 910 (1986).
Here, Fritz did not allege an assault case. She pled and tried this case as a negligence case against Baptist, alleging that, because of its negligence, the attack on Collins was allowed to occur. In negligence cases, the supreme court appears to have adopted a different rule: that the failure to award nominal damages is not reversible error. See Webb v. Thomas, 310 Ark. 553, 837 S.W.2d 875 (1992);Thigpen v. Polite, 289 Ark. 514, 712 S.W.2d 910 (1986); Harlan v. Curbo, 250 Ark. 610, 466 S.W.2d 459 (1971); Wells v. Adams, 232 Ark. 873, 340 S.W.2d 572 (1960).
We conclude that there was testimony from which the jury could have reasonably concluded that Collins did not suffer any injury as a result of the incident with Weaver. When ques tioned by Detective Tim Bentley of the Blytheville Police Department, Collins said she was okay. Collins’s treating physician, Dr. Richard Hester, testified that he examined Collins on March 12, 2001, some twelve days after the incident and that she showed no change in her condition from before the incident. There was also a great deal of testimony from Collins’s caregivers, Betty Harts-field, R.N.; Doris Johnson, a former C.N.A.; and Carolyn Johnson, C.N.A., that Collins did not complain of any pain when she was examined following the incident. Jean Shook, Baptist’s expert and a registered nurse, testified that it was her opinion that Collins was not harmed by the incident because Collins denied having any pain and because Collins, noted in the medical records as being easily agitated, would have complained had she been in pain. Shook also based her opinion on Carolyn Johnson’s testimony that Collins was upset when the nurses entered her room and stopped the encounter.
Fritz also argues that the invasive nature of the rape exam performed on Collins justifies an award of damages. We disagree. First, there was no testimony that the exam was invasive. Second, there was likewise no testimony as to how the exam affected Collins. Fritz had the burden of showing entitlement to compensatory damages, and the jury’s answer to the third interrogatory indicated that she did not meet that burden. We cannot say that the trial court abused its discretion in refusing to order a new trial. In its consideration of the oral motion, the trial court considered the appropriate factors concerning the elements of damage to Collins.
For the second part of her point on appeal, Fritz contends that the jury’s answers to the interrogatories were inconsistent because the jury found Baptist negligent yet failed to award any damages. We disagree. It is the duty of the trial judge to harmonize apparent inconsistencies in arriving at a judgment, if possible to do so. Russell v. Pryor, 264 Ark. 45, 568 S.W.2d 918 (1978). The verdicts should not be set aside if the jury’s intentions were capable of ascertainment with certainty. Id. Here, the trial court recognized the possible inconsistency in the jury’s answers to the interrogatories and appropriately asked the jury if it was the wish of the jury that plaintiff recover court costs and attorney’s fees and not monetary damages, and the jury responded in the affirmative. The trial court then entered a verdict consistent with the jury’s stated intention. Fritz argues that the jury’s answer to the third interrogatory leaving the blank for the amount of damages unfilled and writing in attorney’s fees and costs indicates that the jury intended that she recover. However, the jury had no authority to award attorney’s fees and costs, and the trial court properly entered judgment based on the jury’s answers to the interrogatories as clarified by the trial court’s questioning. Bowen v. Saxton, 255 Ark. 298, 499 S.W.2d 867 (1973).
Fritz also argues that the trial court’s questioning of the jury foreperson was not a proper poll of the jury. The short answer to this is that she did not object to the questioning of the jury.
Finally, Fritz argues that the jury found that Baptist was negligent, thereby justifying an award of damages. However, although a defendant may be shown to have been negligent in some manner, the plaintiff must also prove that he or she suffered damages as a result of that negligence. See Lovell v. Brock, 330 Ark. 206, 952 S.W.2d 161 (1997); Wal-Mart Stores, Inc. v. Kilgore, 85 Ark. App. 231, 148 S.W.3d 754 (2004). Further, the amount of an award of damages rests largely within the discretion of the jury. Coca-Cola Bottling Co. v. Adcox, 189 Ark. 610, 74 S.W.2d 771 (1934).
As noted, the cross-appeal is conditional and needs to be addressed only in the event that the court decides to reverse on the direct appeal. Our decision on direct appeal renders the cross-appeal moot.
Affirmed on direct appeal; cross-appeal moot.
Pittman, C.J., and Robbins, J., agree.
See also Auery v. Ward, 326 Ark. 829,934 S.W.2d 516 (1996); Johnson v. Gilliland, 320 Ark. 1, 896 S.W.2d 856 (1995); Jacuzzi Bros., Inc. v. Todd, 316 Ark. 785, 875 S.W.2d 67 (1994); McVay v. Cowger, 276 Ark. 385, 635 S.W.2d 249 (1982) (collecting cases dating to 1900). | [
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Ed. F. McFaddin, Associate Justice.
This is a controversy between the mortgagees and a lien claimant under § 51-404 et seq. Ark. Stats. The mortgagees are Crump & Rodgers Company and Dabney Crump, the appellants; the lien claimant is Southern Implement Company, Inc., the appellee; and we will refer to the parties by the designations in this Court.
In 1953 O. T. Pickard purchased a John Deere cotton picking machine. Subsequently he mortgaged the machine to the Phillips National Bank, and the mortgage is now held by the appellants. In the cotton picking season of 1956 Pickard had appellee repair his machine on three different occasions. The total bill of the appellee for parts and labor amounted to $2,114.55, which Pickard failed to pay. Appellee filed lien notice on February 9, 1957 under § 51-409 Ark. Stats.; and then filed suit to enforce the lien claim. Judgment by default was rendered against Pickard; but appellants defended by alleging: that appellee was claiming under three separate and distinct repair contracts; and that the lien was in effect for only the last repair job, which amounted to $110.96. They tendered this amount in Court. Trial resulted in a decree for a lien to appellee for the full amount, and this appeal ensued, presenting the points now to be discussed.
I. The-Buie of Werbe v. Holt. When the appellee, as plaintiff, rested its case, the appellants filed motion for judgment under Act No. 470 of 1949, now found in § 27-1729 Ark. Stats. The Trial Court tested the sufficiency of the plaintiff’s case in accordance with our holding in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, and held that the appellee had made a prima facie case. The appellants stood on their motion and judgment final was rendered for the plaintiff (appellee). So, under the rule of Werbe v. Holt, we give the appellee’s (plaintiff’s) case its strongest probative force; and if there be any substantial evidence to support the decree of the Chancery Court, then we must affirm.
II. The Lien Account. The account filed by appellee for $2,114.55 shows that appellee either furnished parts or performed labor on the cotton picking machine on thirty-four different days, beginning on September 8, 1956 and concluding on November 28, 1956. The lien notice under § 51-409 Ark. Stats, was filed on February 9, 1957, which was within the 90-day period from November 28, 1956, but more than 90 days from September 8, 1956. Appellee says that the account was a “running account” and that the 90-day period dates from the last item furnished, citing some of our cases on the mechanics’ and materialmen’s lien statute (§ 51-601 et seq. Ark. Stats.), such as: Geisreiter v. Standard Lbr. Co., 187 Ark. 893, 63 S. W. 2d 347; Whitener v. Purifoy, 177 Ark. 39, 5 S. W. 2d 724; Ferguson Lbr. Co. v. Scriber, 162 Ark. 349, 258 S. W. 353; and Kiser Lbr. Co. v. Mosely, 56 Ark. 544, 20 S. W. 409.
The rule of the cited cases would be applicable if there had been either (a) a definite contract between the parties covering all three of the repair jobs; or (b) the repairs had been under a running or open account for the completion of the work. This is all explained in Streuli v. Wallin etc. Co., 227 Ark. 522, 302 S. W. 2d 522, wherein, in speaking of the “running account”, we quoted the language of Mr. Justice Battle in Kizer Lbr. Co. v. Mosely, supra:
“ ‘. . . If, however, he began to furnish “without any specific agreement as to the amount to be furnished”, or the time within which they were to be furnished, and there was a “reasonable expectation that further material’’ would “be required of him’’, and he was “afterwards called upon, from time to time, to furnish the same”, he should file it within 90 days after the last item was delivered . . .’ ”
The evidence in the case at bar entirely fails to disclose the existence of either of the above requirements. There was never a definite contract between the parties for repairs over any period of time other than the immediate work order involved; and there was never any “reasonable expectation that further material would be required”. As to the definite contract matter, appellee’s managing officer, Mr. J. S. Crow, frankly admitted that Pickard and the appellee had no contract or agreement of any kind whereby Pickard expected, or appellee agreed, to do all of the repair work that might be required on the cotton picking machine during the season of 1956, or any other period of time. Mr. Crow testified:
“Q. And if anything happened to it you didn’t know whether he would come back to you or not, or would go to another implement company?
A. That would have been his privilege.
Q. That would have been his privilege? .
A. Yes.”
We come, then, to the matter of “reasonable expectation that further material would be required”, which is the only other basis on which the appellants can succeed. There were three work orders for repairs on the cotton picking machine. The first work order (No. 1823) was completed on August 24, 1956, and amounted to a total of $842.64. When this work was complet ed Pickard put the machine back into use and there is no evidence indicating that Pickard and appellee had any plans or agreement for any subsequent or further repairs. The second work order (No. 1936) was completed on September 28, 1956 and amounted to a total of $706.35; and when that work order was completed Pickard put the machine back into use and there is no evidence that Pickard or appellee had any plans or agreement for any subsequent or further repairs. Pickard bought some parts for the cotton picking machine which he installed himself; and then on November 28, 1956 there was the third and final repair job (work order No. 2278) for a total of $110.96. Appellee’s witness admitted that this third repair order indicated that the last work order on the cotton picking machine was because “it looks like from the parts list it hit something and bent a bar”.
It is, therefore, clear that there were three separate and distinct repair jobs, each complete in itself, and that the 90-day period, for filing the lien claim under § 51-409 Ark. Stats., ran from the completion of each repair job. In other words, there were three separate repair contracts, and not one contract covering the entire period. The case of Reed v. Horton, 135 Minn. 17, 159 N. W. 1080, involved a claimed lien on an automobile for a series of repairs, adjustments and parts furnished to the car; and the Minnesota Supreme Court held that each repair job was a separate job, saying: “We think the Trial Court held correctly, that when the repairs for such a vehicle are furnished at different times and constitute separate and distinct transactions, the right to claim a lien expires . . . sixty days after each transaction. It cannot be conceived that the Legislature intended lien claims against motor vehicles to have a floating existence for long periods of time without constructive notice thereof being given.”
The case of Reconstruction Finance Corp. v. Kern-Limerick, 192 Fed. 2d 978, when thoroughly analyzed, is not contrary to the Minnesota holding, because in the said Kern-Limerick case Judge Gardner, speaking for the U. S. Court of Appeals for the Eighth Circuit, was careful to point out: “In September, 1945 Shores entered into a contract with appellee to maintain and repair the equipment for use on the Sweet Home job, and from the date of this contract until Shores filed his petition in bankruptcy on July 3, 1946, appellee furnished materials and performed labor on the equipment.” Judge Gardner pointed out, that there was a contract for the continuing performance of repairs during the entire Sweet Home job; and because of the proof of such contract, the lien claimant had ninety days from the date of the last furnishing in which to file his lien claim.
As we have previously said, in the case at bar there was no contract looking toward repair and maintenance during any period; and so we conclude that each repair job was a separate contract. Under such view — and it is the only one that the evidence supports — the amount covered by the lien notice was $110.96 for the third work order (No. 2278), and the Chancery Court should have so held, because — even under the rule of Werbe v. Holt — there is no evidence to the contrary. The personal judgment against Pickard is left unaffected by our holding.
III. The Mortgages Held By The Appellants. The appellee says: “The Appellants, Crump & Bodgers Company and Dabney Crump, having utterly failed to discharge the burden of proof as to their respective mortgages, have no standing in the court below and in this court on appeal”. This point is without merit. The appellee alleged in the complaint that the appellants “. . . claim to have some interest in and to said equipment”. Appellants attached to their answer a copy of the note and mortgage originally executed by Pickard to Phillips National Bank and assigned by the Bank to the appellants. Then Mr. Minton, one of the appellee’s officers, made answers on cross-examination as follows:
££Q. Mr. Minton, did you know that this cotton picker was mortgaged at the time that you did this work on it?
A. I understood he owed on the cotton picker; yes.
Q. Did you know it was mortgaged to the Helena National Bank?
A. Phillips National Bank. I understood it was Phillips National Bank.
Q. Well, to Phillips National Bank. And you also knew that Mr. Crump and Rodgers had a mortgage on it?
A. Well, without a doubt. They take that in the furnish . . .
Q. Did you have any definite knowledge that there was a chattel mortgage outstanding to the Phillips National Bank?
A. Pickard has told me that.
Q. Mr. Pickard had told you that?
A. Yes.
Q. Mr. Pickard had told you that at the time the service was rendered and the materials furnished?
A. Yes.”
Thus, appellee’s own witness admitted that the appellants held a mortgage on the cotton picking machine.
CONCLUSION
The decree is reversed and the cause is remanded, with directions to enter a decree awarding appellee the $110.96 deposited in the Court; but to discharge the cotton picking machine from any lien claimed by appellee. Alj costs accruing after the date of the aforementioned court deposit are taxed against the appellee.
General statements, as to the distinction between a separate contract and a continuing transaction, may be found in 57 C.J.S. 661, “Mechanics’ Liens”, § 144; 36 Am. Jur. 97, “Mechanics’ Liens” § 140; and Blashfield Encyclopedia of Automobile Law and Practice, Permanent Edition, § 5206.
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George Rose Smith, J.
On July 29, 1958, the petitioner, by its attorney, State Senator Guy H. Jones, filed suit in the Faulkner chancery court to enjoin tbe members of a labor union from picketing a construction job at Conway. On the same day a temporary injunc tion against the picketing was issued by the county judge, both the circuit judge and the chancellor being absent from the county. After the issues were joined the chancellor set the case for a final hearing on September 8.
On August 23 the Governor called the General Assembly into a special session that was to begin on August 26. Senator Jones, as a member of the legislature, then asked for a continuance under the provisions of Ark. Stats. 1947, § 27-1401. The chancellor granted the request only to the extent of resetting the case for trial on October 6. The petitioner later filed this application for a writ of prohibition, contending that the legislature will be in continuous session until January 10, 1959, and that the statute therefore requires that the case be stayed until at least thirty days after that date. The chancellor postponed the trial until the petitioner’s application could be passed upon by this court.
The respondent insists that the trial court acted within its jurisdiction in setting the case for trial and that prohibition is accordingly not the petitioner’s proper remedy. It has been held, however, that a court acts in excess of its jurisdiction in proceeding to a trial when the statute in question requires that the case be continued. Barton-Mansfield Co. v. Higgason, 192 Ark. 535, 92 S. W. 2d 841. We do not now re-examine the soundness of the majority’s ruling in that case; for the principal question in the case at bar affects the administration of justice and should, in the public interest, be decided on its merits.
The statute provides that when any attorney in a pending case is a member of the legislature all proceedings shall be stayed “for not less than 15 days preceding the convening of the General Assembly and for thirty days after its adjournment, unless otherwise requested by any interested member of said General Assembly.” Ark. Stats., § 27-1401. The issue here is whether the adjourning order of the August special session of the General Assembly entitles the petitioner’s attorney to invoke the protection of the statute.
The legislature convened on August 26 and remained in session at the state capitol in Little Eock until August 29. On that day the members adopted a resolution of adjournment and returned to their homes throughout the state. The adjourning resolution, after a preamble declaring the need for a continuation of the session, reads as follows:
“1. That on Friday, August 29, 1958, we do adjourn at 12:00 M. (high noon) until January 10, 1959;
“2. That the items within the purview of the proclamation for the convening of the present session have not been completed; and that there are yet numerous bills in committee and various items that we can consider ;
“3. That additional time is needed to study and draft legislation which may vitally affect our school problems;
“4. That we adjourn subject to the call of the President of the Senate and the Speaker of the House; and that we duly forego any compensation for days in which we are not actually in session;
“5. That said adjournment will be at no expense to the State of Arkansas except for days actually served between August 29, 1958, and January 10, 1959;
“6. That on January 10, 1959, we duly adjourn sine die at 12:00 M. (high noon).”
The petitioner argues that the effect of this resolution was to create merely a recess until January 10, 1959, when the true adjournment will take place. On this basis it is contended that, since the statute in question refers only to an adjournment, the petitioner is entitled to a continuance until thirty days after January 10, 1959.
We do not find this argument persuasive. An adjournment may he either to a day certain or without day, while a recess is defined as a suspension of business for a comparatively short time. Webster’s New International Dictionary (2d Ed.). See also Tipton v. Parker, 71 Ark. 193, 74 S. W. 298. Here the intermission appears to have been an adjournment to a day certain, and indeed that seems to have been the understanding of the General Assembly itself, for the resolution uses the words “adjourn” and “adjournment,” with no mention of a recess.
We do not, however, rest our decision upon the technical distinction between a recess and an adjournment. The consideration of primary importance is whether the legislature, in enacting the statute now invoked by the petitioner, intended for it to be controlling in a situation such as this one, when the General Assembly is not actually in session in Little Rock and when its members are free to attend to private business. ■
We are convinced that the statute was not meant to apply to this situation. It requires that proceedings be stayed for a period beginning at least fifteen days before the session and ending thirty days after adjournment. The policy underlying the law was aptly stated in the emergency section of Act 4 of 1931, where it was declared that “it is more important that members of the legislature shall attend to their public duties rather than to their private affairs.” The essential need for the statute lies in the attorney’s duty to be in attendance at the legislative session. See Cox v. State, 183 Ark. 1077, 40 S. W. 2d 427. The periods of grace before and after the session are manifestly intended to enable a lawyer to make advance arrangements for the temporary suspension of his practice and, after adjournment, to interview witnesses and make other preparations for trial.
None of these considerations are involved in the contention now urged by the petitioner. Senator Jones was required to be at the capitol for a special session lasting four days, after which he was free to resume his private practice of law. He was duly granted a continuance of more than thirty days after his return to his home at Conway. Neither the letter nor the spirit of the law contemplates a further postponement.
Our ruling in McConnell v. State, 227 Ark. 988, 302 S. W. 2d 805, goes far toward deciding the present case. There we pointed out that a statute affording reasonable protection to attorneys serving in the legislature is valid. But if the act clearly goes beyond the needs of the situation and in effect transfers the control of judicial dockets from the courts to the attorney members of the legislature, it becomes an unconstitutional invasion of the powers granted to the judiciary.
To construe § 27-1401 as the petitioner would have us do would present a serious question as to its validity. Under this interpretation there would be no limit to the unjust delays that might be demanded. The present General Assembly, the Sixty-First, was convoked in extraordinary session within eleven days after the close of its regular session in March of 1957. Had that special session ended with an adjourning resolution like the one now before us, the petitioner’s argument would have led to mandatory continuances extending to almost two years. Public policy strongly demands the prompt trial of criminal and civil cases. On the criminal side, unnecessary postponements destroy much of the deterrent effect that a conviction should have. On the civil side, it is a truism that justice delayed is apt to be justice denied. Indeed, this case illustrates the principle, for if the temporary injunction cannot be reviewed until thirty days after January 10, 1959, and even then not until thirty days after the adjournment of the regular legislative session that will convene on January 13, the construction job may well be finished before the case is heard. The case would then be moot, so that the defendants would be deprived of their day in court. Although these considerations of public policy must give way to the pressing need for brief continuances in connection with actual sittings of the General Assembly, they cannot he disregarded when the legislators have resumed their private business and can assert no well-grounded plea for a postponement.
It is earnestly urged that, since the adjourning resolution authorizes the President of the Senate and the Speaker of the House to recall the legislators, Senator Jones and others in his situation cannot make preparations for trial, such as the summoning of witnesses, with any assurance that they will not be called away on the eve of trial. This risk, however, is part of the sacrifice involved in this particular type of public service. The Governor has the power under the constitution to convoke the General Assembly at any time. Ark. Const., Art. 6, § 19. The hazard of being recalled by the President of the Senate and the Speaker of the House under the terms of this resolution is precisely similar to the constant hazard of being recalled by the chief executive.
Writ denied.
Harris, C. J., dissents. | [
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McCULLOCH, C. J.
Appellee instituted this action in the chancery court of Searcy County against G. W. Abbott to recover the amount of a balance due on a promissory note alleged to have been executed by Abbott to appellee for the purchase price of a tract of land situated in that county. A vendor’s lien on the land was asserted and there was a prayer in the complaint for the enforcement of the lien by a sale of the land. Appellant’s intestate, I. L. Rainbolt, was made a party defendant under the allegation that he was a junior lienor in that he had accepted from Abbott a mortgage on the land, with full knowledge of appellant’s prior lien. Abbott made no defense, but Eainbolt appeared and defended on tbe ground that appellee was not entitled to a lien on the land. He alleged in Ms answer that the note exhibited with the complaint for the sum of $700, included $400 for the price of the land, and $300 balance due on the -sale to one Carmody of a sawmill and other machinery situated on the land, and that Carmody signed the note as evidence of his liability. The deed executed by appellee to Abbott conveyed the land (120 acres) by proper description and recited the sum of $400 as consideration for the conveyance. The deed does not recite whether or not the consideration was in fact paid, and contains no reference to the note. Eainbolt died during the pendency of the cause in the court below and there was a revivor in the name of appellant as administrator of his estate. On final hearing the court decreed'in appellee’s favor for the recovery of the sum of $249.57, found to be balance due on the note, and decreed a foreclosure of the lien on the land.
The evidence adduced by appellee was to the effect that there was a sale of the land by appellee to Abbott and Carmody and that the sale included the sawmill outfit which was situated on the land, but that there was no sale of the sawmill separately from the sale of the land. Ap-pellee owned the land with the sawmill situated thereon, and sold the whole thing to Abbott and Carmody. One hundred dollars of the purchase price was paid and Abbott and Carmody executed to appellee a promissory note for $700. The deed was executed subsequently and conveyed the land to Abbott alone. No question was raised in the suit about Carmody’s rights in the land, except that it is claimed on the part of Eainbolt that he was separately the purchaser of the sawmill, but the testimony adduced by appellee was sufficient to justify a finding to the contrary.
We have, therefore, a finding of the chancellor upon testimony which appears to preponderate to the effect that the note of $700 executed by Abbott and Carmody was f.or the purchase price of the land, which included the sawmill outfit as fixtures thereto.
(1-2) The evidence adduced by appellee further shows that Rainbolt was fully advised of the fact that the note was given for the purchase price of the land, notwithstanding the recital in the deed of the consideration of $400 without mentioning the note, and that Rainbolt was advised of this fact at the time that he subsequently accepted the mortgage. In other words, the testimony shows that Rainbolt was not an innocent purchaser, but had full knowledge of the fact that the balance of the purchase money on the land was unpaid. A vendor of land has in equity a lien on the land for purchase money, although a deed in absolute form has been executed reciting a different amount paid as purchase price, and this lien is good as against the vendee, or any person purchasing with notice of the fact that the price has not been paid. Scott v. Orbison, 21 Ark. 202; Holman v. Patterson’s Heirs, 29 Ark. 357. It constitutes no violation of the rules of evidence for a vendor to be allowed to show that the price has not in fact been paid and that the amount is different from that recited in the deed.
The contention of Rainbolt that the price of the land was only $400 and that the balance of the amount of the note represented the price of the sawmill machinery .sold to Carmody, was, as before stated, refuted by the testimony adduced by appellee.
(3) There is a further contention by appellant that if Carmody was not separately a purchaser of the sawmill outfit, he must be treated as a surety on the note, and that the acceptance by appellee of security constituted a waiver of the lien. The acceptance of personal security will not necessarily of itself displace the vendor’s equitable lien, nor constitute a waiver of the lien. It raises a presumption of an intention to waive the lien on the land, but the presumption may be rebutted by proof of a contrary intention. Lavender v. Abbott, 30 Ark. 172; Mayes v. Hendry, 33 Ark. 240; Springfield & Memphis Rd. Co. v. Stewart, 51 Ark. 285.
The evidence in the case shows abundantly that there was no intention to waive the lien. In fact, the evidence shows that there was no acceptance of security, as Car-mody signed the note at the time that the purchase was made by him and Abbott, and that subsequently Carmody withdrew from the transaction and the deed was made to Abbott alone.
(4) It is further contended by appellant that appel-lee, on account of having failed to. file a reply to the answer, ought to be treated as having admitted the allegations in the answer to the effect that the purchase money of the land was only $400, and that the balance of the note was for the purchase price of the 'Sawmill plant as a separate purchase. A reply is proper under our Code only when there is a counterclaim or set-off pleaded in the answer. Kirby’s Digest, § 6108.
There was neither a counterclaim nor set-off filed in this action, and the facts just referred to were pleaded by appellant’s intestate is a defense to the cause of action set out in appellee’s complaint. The decree is affirmed.
Humphreys, J., disqualified. | [
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J. Seaborn Holt, Associate Justice.
Appellant, Carl Thomas, and appellee, Yiola Barnett, are.the parents of Sharon Sue Thomas, a little five year old girl. They were divorced in Oklahoma and the District Court of Pittsburg County Oklahoma gave the father (appellant) exclusive care and custody of Sharon Sue. On an appeal by the mother to the Supreme Court of Oklahoma (Alford v. Thomas, 316 P. 2d 185), the child’s custody was, on October 1, 1957, given to her “until after a conclusive showing- and judicial determination have been made as to her unfitness and that by reason thereof the best interest of the child required that she be placed in the custody of someone else.” Thereafter, on November 12, 1957, upon another hearing before the Pittsburg County District Court, appellant (father) again asked for the child’s exclusive custody and his prayer was granted. The judgment contained these recitals. “Wherefore, witnesses are sworn and examined in open court, they being Captain Bob Oliver, Lt. Elmer Durant and Jess Henson of McAlester Police Department; Jack E. Dale, Court Clerk of Pittsburg County, Oklahoma; Mrs. Yada Lawson; Hon. Jay P. Farnsworth, Municipal Judge of McAlester, Oklahoma; Frances M. Powell, Director of Public Welfare in Pittsburg County, Oklahoma; Mrs. Oleta Mitchell, M. K. Barnett and the plaintiff. And the cause having been concluded and the court being sufficiently advised, finds that the defendant is the mother of three children, to-wit, Warren Johnston, age 12 years, Linda Kay Barnett, age 10 years and Sharon Sue Thomas, age 4 years, each being by a separate father; that said defendant has been, during the period of time starting August 25, 1945, and ending April 11, 1957, involved in nine divorce actions filed in this court; that defendant, for a period of time starting at the latest in the year 1950, has been an unfit person to have the care, rearing and custody of minor children; that she has received fraudulent funds from the Department of Public Welfare in the amount of $2,248.00 which she has not repaid; that defendant has abandoned her children to the care and custody of oth- ■ ers; she stands at this time convicted of contempt of this court for disobeying the order of the resident judge, W. A. Lackey; that she bears a bad reputation for morality and she is personally addicted to bad language, to lewd association with various men; that she is a person of violence and one who uses vile and opprobrious language in public. The court finds that said defendant, between February 8, 1955, and March 31, 1957, has been convicted of three separate criminal offenses in municipal court in the City of McAlester, Oklahoma; that she now has custody of the minor child, Sharon Sue Thomas.
“The court further finds that under date of October 18, 1957, the two older children of defendant were adjudged dependent and neglected children based upon jury verdict now final in the County Court of Pitts-burg County, Oklahoma, and that under the order of said County Court, defendant .has been deprived of the care and custody of her two older children, Warren Johnston and Linda Kay Barnett. The court finds, upon evidence submitted herein, and upon evidence submitted on March 26, 1957, that defendant is an unfit person to have the custody or right of visitation of said minor child, Sharon Sue Thomas, and that it is not for the best interest of said child to be in the custody of defendant; that by reason of the emotional instability and bad habits and temperament of the defendant, it is for the best interest of the child, Sharon Sue Thomas, that said child be placed in the custody of someone else. The court finds that since the birth of Sharon Sue Thomas, her father has conducted himself properly, that he has acted as both father and mother to said child; that he has cared for said child on practically all occasions except when said child was in the custody of the Oklahoma Baptist Orphanage at Oklahoma City, Oklahoma, for a period of-nine months under court decree, and when said child was in- divided custody by order of this court, all until on or about the 9th day of January, 1957. The court finds that on January 9th, 1957, at the suggestion of various public officials, judicial officers, welfare agencies and church groups, plaintiff agreed to the. placement' of' his minor - child ■ in the home of a respectable and childless couple in,- Oklahoma .City, where she remained until the decree of the Supreme Court aforesaid, during which time said child was well cared for; the court further finds that said child at this time is not well cared for and that her health and welfare is in jeopardy by virtue of the type and character of her custodian and her relatives; that were it not for the fact that plaintiff has no home nor female relatives to care for said child, he would be a fit and proper custodian for said child. Until such time as the proper court determines the person or institution to have custody of said child, plaintiff should have her custody.” Following the above judgment appellee refused to obey it and removed the child to Little Rock, Arkansas.
The present action was brought on January 13, 1958, in Pulaski Chancery Court by the father (appellant) to enforce the above Oklahoma judgment of the Pittsburg County District Court. On February 21, 1958, following a trial, the Pulaski .Chancery Court entered a decree holding: . . . “that the conditions and circumstances upon which the judgment of the District Court of Pittsburg County Oklahoma was. based have changed and the defendant is entitled to the custody of her child and it will be to the best interest of said child that she be placed in custody and control of defendant. ’ ’ This appeal followed.
For reversal appellant contends: “1. Appellee failed to show a change of conditions since the Oklahoma judgment or any material facts existing at the time of the judgment which were unknown to the Court. 2. The Oklahoma judgment is entitled to be enforced under the full faith and credit clause of the United States Constitution.”
We agree with both of appellant’s contentions. We said in the very recent case of Coder v. Coder, 226 Ark. 478, 290 S. W. 2d 628, “We have repeatedly held that a decree of another state fixing the custody of a child is final on conditions then existing, and should not be changed thereafter by a decree of a court of this state unless on conditions altered since the decree of the other state, or on material facts existing at the time of the decree of the other state bnt unknown to that court, and then only for the welfare of the child, (citing many cases) . . . All of these cases, and many others, also hold that the welfare of the child must be considered. ’ ’
Since coming to Little Rock appellee has been working. She leaves Sharon Sue with her father and mother. She testified: (appellant’s abstract) “We have a four room apartment with two bedrooms. We have one bed in each bedroom. The little boy sleeps on the divan in the front room and Sharon sleeps with me. My mother and father sleep in the other bedroom. My brother and his wife are there temporarily and they sleep in the front room. My brother is a cab driver and he had to move in with us when he lost his job. There is plenty of room in the apartment ... ” The testimony showed that appellee, her father, mother, brother and sister-in-law all drank intoxicating liquor in the apartment. “The court: All of you drink in that family, you and your wife and your son and his wife? A. (appellee’s father) Not excessive.” For most of the time since coming to Arkansas eight people have lived in the crowded apartment. Appellee is not now and it appears has never united with any church and does not attend church. She has never taken, or sent, Sharon Sue to church or Sunday school. It appears certain from the evidence that Sharon Sue has had no religious training. Appellee testified: “Q. Did she (Sharon) attend Sunday School one single time? A. We have not yet, but I don’t know where to go.” We do not attempt to detail all the testimony, it suffices to say that after a review of the entire record we have concluded that the preponderance thereof shows no such change in conditions as would warrant awarding the custody of this little girl to its mother.
The decree is reversed and the cause remanded with directions to award Sharon Sue’s care and custody to her father (appellant) in accordance with the judg ment of tlie Pittsburg County District Court of Oklahoma, to which judgment we must, and do, give full faith and credit.
William J. Smith, J., not participating. | [
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Paul Ward, Associate Justice.
Appellees raised and sold cotton in 1956 to Manila Gin Company, but were unable to cash the gin’s checks given them- for the purchase price. They instituted this action against the Gin Company (i. e. the two partners owning and operating the Gin), The Corning Bank at which the Gin Company did business, and L. G. Black who was connected with the Bank and also was a creditor of the Gin Com pany. There were other defendants originally bnt they are not material to this opinion.
Since one of appellant’s contentions is that the trial court rendered its decision on a question not raised in the pleadings, the material portions of the complaint will be abstracted at length following a statement of the factual background leading up to this litigation. Because of the disposition hereafter made of this case many details will be omitted.
Background. Prior to 1952 the Manila Gin Company was owned and operated as a partnership by L. G. Black (appellant) and K. S. Jackson. In May of that year Black sold his interest to Jackson, resulting in Black holding Jackson’s notes in the amount of $12,642.50, payable in three installments on December 31, 1953, 1954 and 1955 and secured by a second mortgage on the gin property. Nothing had been paid on these notes when this litigation began on November 21, 1956. Before the ginning season started in 1956 Jackson sold an interest in the Gin to U. S. Griffith. Jackson and Griffith, who were in need of financial aid, were doing business with the First National Bank of Blytheville. Later, on about September 14, 1956, at Black’s suggestion, Jackson and Griffith started doing business with The Corning Bank. It seems that it was the policy of the gin company to purchase the cotton which farmers brought to it for ginning. Briefly, the arrangement with The Corning Bank was this: The bank furnished the gin company cash to purchase the cotton; when the gin company made a purchase it would issue its check for the purchase price on the bank, and would then redeem the check with cash; then the gin company would place the cotton in a government warehouse and receive negotiable warehouse receipts, and when the gin company exhausted its cash on hand it would take the redeemed checks to the bank and receive cash to the amount of $100 for each bale of cotton purchased. Apparently the gin company would retain the warehouse receipts or sell them and (presumably) turn the money into the bank. It is apparent that the bank would be required to carry an overdraft •for the gin company since it paid more for the cotton than $100 per bale. On October 6, 1956 Black endorsed Jackson and Griffith’s note to the bank for $6,800 whereupon the bank agreed to advance $125 per bale. It seems that the bank’s, security for the ever increasing overdraft was the warehouse receipts.
Appellees, J. N. Bollinger, W. O. Roach, and Frank Nowlin were farmers in the Manila vicinity and had been customers of the gin company for several years. In the fall of 1956 they sold cotton to the gin company under the arrangement above mentioned, but the gin company was unable to redeem their checks. When these checks were presented to the bank on or about October 16, 1956 payment was refused and they have never been paid. At that time the bank refused to advance any more money to the gin company which (according to the bank statement) owed the bank $19,961.70. On November 3, 1956 the gin company increased its debt or overdraft to the amount of $20,057.70. On December 1, 1956 the bank sold, with the consent of the gin company, warehouse receipts which had been turned over to it and received therefor the sum of $27,390.42. This amount, however was not sufficient to cover the overdraft of $20,057.70 plus the said $6,800 and plus other advances made by Black to help keep the gin in operation. There was of course no money available to take up the checks held by Bollinger, Roach and Nowlin, hence this litigation.
Pleadings. The complaint, in all material parts, states in substance:
“. . . these plaintiffs have reason to believe that a great number of warehouse receipts for cotton belonging to these plaintiffs, and other customers of said Manila Gin Company, have been placed with The Corning Bank; that such a plan and scheme was for the purpose of fraudulently securing money which the said K. S. Jackson and his partner did not intend to use in paying for the cotton they claimed to have bought, but in order to pay the defendant L. G. Black (Laney Black) . . . ; that it was all done with the fraudulent intent to hinder, cheat and delay these plaintiffs; that snch frandnlent scheme was known to the said defendants who benefited or were to benefit from snch fraudulent purchase of said cotton. ’ ’
The amended complaint states:
“The defendants K. S. Jackson, Sam Griffith, L. G. Black and The Corning Bank entered into a scheme and plan whereby said K. S. Jackson and Sam Griffith would buy cotton from the customers of the Manila Gin Company, (owned by said K. S. Jackson and Sam Griffith, and under deed of trust to L. G. Black) and would surrender the warehouse receipts for such cotton to The Corning Bank, get a portion of the price of such cotton paid over to said K. S. Jackson and Sam Griffith, and when the cotton was sold would then pay the balance due on such cotton to L. G. Black, knowing all the time that said K. S. Jackson and Sam Griffith did not have sufficient money to fully pay for the cotton they bought, and knowing that some of said cotton was subject to landlord’s lien for rent and some was under mortgage to the Planters Production Credit Association.”
“That under this plan and fraudulent scheme, the said bank was not an innocent purchaser of said warehouse receipts and cotton and knowing that said K. S. Jackson and Sam Griffith had not paid the producers and owners of such cotton and did not intend to pay for such cotton . . . That the transaction was not in the usual and ordinary course of a banking institution, was not bona fide and without fraud in its inception and accomplishment. ’ ’
“These plaintiffs further allege that in making this fraudulent scheme to get money to pay L. G. Black, and for K. S. Jackson and Sam Griffith to use, the bank was fully aware that the cotton covered by the warehouse receipts were not paid for, and that the checks issued by Manila Gin Company on The Corning Bank would not be paid.”
The prayer was for a marshalling of assets, for subrogation, for judgment against Jackson, Griffith, and Black, and for “full and complete relief.”
After a lengthy hearing the trial court, among other things found: The Manila Gin Company is indebted to each of the plaintiffs (appellees) in the amount sued for; The Corning Bank dealt at arms length with the parties at all times, and; Black did not enter into an intentional and deliberate conspiracy with Jackson and Griffith to defraud the plaintiffs. The court then said that “The real problem ... is whether defendant L. G. Black assumed and exercised such control over the finances of the Manila Gin Company during 1956 that he became liable as a partner to these plaintiffs.” (emphasis supplied.) Following this the court entered a decree against Jackson, Griffith, and Black in favor of Bollinger for $2,681.86, in favor of Roach for $1,073.44:, and in favor of Nowlin for $872.66. Also a decree was rendered against all the above in favor of Borowsky Brothers for $97.77. Black is the only one who has appealed.
It is strongly insisted by appellant Black, and we agree, that the court erred in rendering a decree against him on a ground or theory not contained in the pleadings. Those portions of the complaint copied above show plainly, we think, that appellees sought recovery against Black on the sole ground that he had entered into a fraudulent plan or scheme with Jackson, Griffith, and The Corning Bank to use some of the proceeds from the operation of the gin to repay old debts to himself and consequently thereby make it impossible for the plaintiffs to collect their claims. There were no allegations in the complaint to put Black on notice that he was being sued as. a partner. Nor was any testimony introduced which would have given him such notice. Without detailing the testimony it suffices to say that such testimony was consistent with the alleged ground of a conspiracy or fraudulent scheme and consequently no notice of a partnership. Therefore the action of the trial court cannot be justified by the well established rule that the court may treat the pleadings to conform to the testimony. The rule applicable here is clearly stated in 30 C. J. S., Equity, § 403, pp. 820-821:
“After a hearing and submission of the cause, the court is reluctant to permit an amendment, and an amendment will not then be permitted, the effect of which would be materially to change the issues or introduce new issues, unless, at least, an opportunity is given to introduce further proofs.”
The above rule has been approved repeatedly by this court. In Butler v. Butler, 176 Ark. 126 (at page 128), 2 S. W. 2d 63 we said:
“If appellants had desired to raise the issue of the extent of the homestead on account of its value, they should have done so in their complaint, in apt time, so that it could have been met by pleading on behalf of appellees, and by proof. The court did not therefore err in excluding this evidence and in refusing to permit appellants to amend.” , ,
In the case under consideration the plaintiffs did not offer to amend the complaint. On the other hand, the court not only rendered its decision on an issue not raised by the pleadings but also refused to allow appellant to introduce further proof on that issue. In Price v. Price, 215 Ark. 425 (at page 428), 220 S. W. 2d 1021, the court, referring to Kirby’s Digest § 6145 which corresponds to Ark. Stats. § 27-1160, approved this statement: “Under statutes like this it has been uniformly held that no amendment can be allowed after the commencement of a trial which introduces into the case a new cause of action.” For the error indicated the decree of the trial court must be reversed.
Appellant insists that the cause should not only be reversed but that it should also be dismissed. In support of this appellant says there is no evidence to support the finding of liability on the basis of a partnership, and after a careful examination of the record on this point we are forced to agree. For the reason indi cated below we have concluded, however, that the cause should not be dismissed. Since reaching this conclusion it would serve no useful purpose to detail the testimony. Suffice to say there is no testimony that Black was a partner in that he took any part in actually running the gin, or that he in any way led anyone to believe he was doing so. There is no testimony that he induced appellees or anyone else to patronize the gin or induced them to withhold their checks. All Black did, according to the record, amounted to helping Jackson and Griffith finance their gin operation through The Corning Bank, and there is no showing that he received any gin proceeds to apply on any old debts.
We have concluded that, in the interest of justice to appellees, the cause should be remanded for a more detailed accounting of the proceeds of the operation of the gin, if appellees should so desire. We do this because all parties and the trial court seem to think there should have been sufficient funds from the gin operation to pay all claims, because no attempt was made to account for all the proceeds, and because there is nothing to indicate clearly how the credits given to Jackson and Griffith are tied in with the bank overdraft.
This court has heretofore remanded causes in chancery where it appeared that further development was necessary. See: Langhorst v. Rogers, 88 Ark. 318, 114 S. W. 915, and Massey v. Tyra, 217 Ark. 970, 234 S. W. 2d 759.
Therefore the cause is reversed for the reason above indicated, and it is remanded for further development along the lines indicated if appellees so desire. | [
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Ed. F. McFaddin, Associate Justice.
This appeal involves a strip of land 25 feet wide across the south side of the East Half of the Northeast Quarter of a certain section. The appellees (plaintiffs below) are: (a) the three children of Dr. Cons. P. Wilson (being Lucy Lewis Scott, Jane Wilson Smith, and Cons. P. Wilson III), who claim all his interest in the land; and (b) two sisters of Dr. Cons. P. Wilson, Jr. (being Mrs. Jim C. Wilson Ward and Mrs. Susie C. Wilson Ozment). The appellees, as plaintiffs below, claimed: (a) that they were the owners and entitled to the possession of the land in controversy; and (b) that the defendant had taken possession of the land, erected barricades, and refused to surrender possession. The prayer of the complaint was for .a mandatory injunction requiring defendant to remove the barricades and surrender possession. The defendant — Rose Lawn Cemetery Association, Inc. — denied the plaintiffs’ claim of ownership and claimed title in itself to the land in controversy. Trial in the Chancery Court resulted in a decree for the plaintiffs, and the defendant prosecutes this appeal.
I. Deraignment Of Title The plaintiffs had the burden of proving that they were the owners of the land in controversy. The common source of title to the entire eighty acre tract (E% NE%) was Mrs. Mary J. Collins, who devised the eighty acres and other property, one-half to her son, Elias D. Collins, and the other one-half to the four children of her deceased daughter, these children being the grantees in the deed next to be mentioned. Here are the subsequent conveyances after the devise by Mrs. Mary J. Collins:
(1) In 1912 Elias D. Collins conveyed all his interest in the entire eighty acre tract to his co-tenants, being (a) Dr. Cons. P. Wilson, Jr.; (b) Nellie C. Wilson; (c) Jim C. Wilson; and (d) Susie C. Wilson.
(2) In 1916 Dr. Cons. P. Wilson, Jr. conveyed his one-fourth interest in the eighty acre tract to his three co-tenants, being his sisters, Nellie C. Wilson, Jim C. Wilson Ward, and Susie C. Wilson Ozment. In this deed from Dr. Cons. P. Wilson to his sisters, following the description of the eighty acres, there was this language: “EXCEPT a strip of land 25 feet wide off of the south end of said tract, which is reserved as a roadway for use of the parties hereto.” The above quoted language is the beginning point of this suit. We will discuss it in Topic III, infra.
(3) In 1919 Nellie C. Wilson, Jim C. Wilson Ward, and Susie C. Wilson Ozment (grantees in conveyance No. 2 above) conveyed by general warranty deed to their father, Cons. P. Wilson (Sr.) the entire eighty acre tract (E% NE%) without any exception clause as was contained in the conveyance No. 2, supra. The effect of this deed is discussed in Topic II, infra.
(4) In 1922, for $1.00, Dr. Cons. P. Wilson, Jr., Susie C. Wilson Ozment, and Jim C. Wilson Ward made a deed to Nellie C. Wilson, conveying the East Half Northeast Quarter, “EXCEPT a strip of land 25 feet wide off of the south end of said tract which is reserved as a roadway for use of the parties hereto.” We mention this conveyance only to show that it was three years subsequent to the time when Cons. P. Wilson, Sr. had already received a general warranty deed from his three daughters, with no such exception clause as to the 25 foot strip. The 1922 deed between the children of Cons. P. Wilson could not have affected the title that Cons. P. Wilson had already received, since there is no sufficient showing that Cons. P. Wilson, Sr. acquiesced in this 1922 deed.
(5) In 1930 Cons. P. Wilson, Sr. (grantee in conveyance No. 3, supra), joined with his daughter, Nellie C. Wilson (being one of the grantors in conveyance No. 3 and being the grantee in conveyance No. 4), conveyed to The United Cemeteries of Arkansas, Inc. by general warranty deed the entire East Half Northeast Quarter without any exception clause as to the 25 foot strip.
(6) In 1952 The United Cemeteries of Arkansas, Inc. and its stockholders conveyed to Fentress & Crane the East Half Northeast Quarter, “EXCEPT a strip of land 25 feet wide off the south end reserved for roadway.”
(7) In 1952 Fentress & Crane conveyed to appellant, Rose Lawn Cemetery Association, Inc. the East Half Northeast Quarter, “EXCEPT a strip of land 25 feet wide off the south end reserved for roadway.”
(8) In 1957 the stockholders of the United Cemeteries of Arkansas, Inc. (the corporation being dissolved) conveyed to Rose Lawn Cemetery Association, Inc. the entire eighty acres (E% NE14) for the purpose of con veying whatever had been reserved by the corporation in its deed to Fentress & Crane in conveyance No. 6, supra.
II. The Title Claims Of Mrs. Ward And Mrs. Ozment. From conveyance No. 3 in the deraignment of title, it is apparent that all of the three sisters of Dr, Cons. P. Wilson (Nellie C. Wilson, Jim C. Wilson Ward, and Snsie C. Wilson Ozment, grantees in conveyance No. 2, supra) conveyed all of their interest in the entire eighty acres (E% NE%) to their father, Cons. P. Wilson (Sr.) in 1919, because that deed had no language of exception. We regard the said conveyance No. 3 as completely disposing of all title claims of the appellees, Mrs. Jim C. Wilson Ward and Mrs. Susie C. Wilson Ozment, because their 1919 deed to their fáther contained covenants of general warranty which would pass any rights they might then have or might thereafter have acquired in any part of the entire East Half Northeast Quarter. Section 50-404 Ark. Stats.; Grayson-McLeod Lbr. Co. v. Duke, 160 Ark. 76, 254 S. W. 350; Hayes v. Gordon, 217 Ark. 18, 228 S. W. 2d 464.
III. The Title Claims Of The Children Of Dr. Cons. P. Wilson, Jr. Dr. Cons. P. Wilson, Jr. died in 1932; and whatever interest he had in the eighty acres, i. e., in the exception for the roadway as contained in conveyance No. 2 above, is owned by three of his children, who are some of the appellees herein. Any title claim of the said appellees as children of Dr. Cons. P. Wilson, Jr., must depend on the language their father used in the deed as shown in conveyance No. 2, supra. This language was: “EXCEPT a strip of land 25 feet wide off of the south end of said tract, which is reserved as a roadway for use of the parties hereto.’.’ ■
The question is whether this quoted language created an easement appurtenant (so as to run with the land), or an easement in gross (so as to be personal to Dr. Cons. P. Wilson and the grantees in conveyance No. 2), and to end with the life of the parties — i. e. the grantor and the grantees in the said conveyance No. 2. The distinction between the two kinds of easements (appurtenant and in gross) has been a frequent source of litigation. See Am. Jur. Vol. 17A, p. 624 et seq., “Basements” § 9 et seq.-, and see also annotation in 130 A. L. R. 1253 entitled, “Assignability and divisibility of easement in gross or license in respect of land or water.” We reach the conclusion that the quoted language created a right personal to the parties to the deed. See Field v. Morris, 88 Ark. 148, 114 S. W. 206; and Ft. Smith Gas Co. v. Gean, 186 Ark. 573, 55 S. W. 2d 63. So nothing passed to Dr. Cons. P. Wilson’s heirs in the Bast Half Northeast Quarter. The fact that those heirs thought they acquired something cannot be used to prove their title. The deraignment in Topic I supra establishes that they received no title since their father’s easement was personal and ended at his death.
The question in this litigation is whether appellees proved their title. There is absent here any substantial claim of adverse possession by appellees or appellant; the only issue is the ownership as between the parties; and the appellees fail to prove their title. Any question of the rights of the general public to a roadway by dedication in any of the conveyances, or in any other way, is outside the purview of this litigation.
The decree is reversed and the cause is remanded, with directions to dismiss the complaint.
In addition to the deraignment of title the abstract shows mortgages executed by some of the title holders at various times, but these have no effect on the deraignment of title, and are without significance to the decision herein.
In some places the name is spelled Susie and in others, Susan; but there is no question about the identity. | [
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George Rose Smith, J.
This is a claim filed by the appellee, Mary Walton, for workmen’s compensation. On July 11, 1956, the claimant, a housekeeper at the appellant’s hospital, strained her lower back while lift ing a bed. There is an abundance of evidence to show that Mrs. Walton became disabled five days later and that her incapacity still existed when the full Commission heard the case in March, 1958. The Commission found that the claimant had sustained a compensable injury, that she was temporarily totally disabled from July 16, 1956, through March 17, 1958, and that she has not reached the end of her healing period. The record was left open for further proof of her disability after March 17, 1958.
In contending that the order is not supported by any substantial evidence the employer stresses the fact that the many physicians who have examined the claimant have not been able to arrive at a positive medical explanation for her condition. Despite an extensive exploratory operation and a succession of examinations and treatments the doctors have not discovered an objective cause for the severe pain that Mrs. Walton has suffered in her side, abdomen, back, and right leg.
The physicians’ uncertainty does not, in our opinion, compel the conclusion that the claim must be denied. Dr. Southard and Dr. Thompson attributed Mrs. Walton’s disability to the injury she suffered at the hospital. Their testimony is substantial evidence on which to rest the Commission’s finding of a causal connection between the injury and the incapacity. There is no reason for saying that the Commission, upon concluding that a compensable disability had existed for more than eighteen months, should nevertheless have withheld an award pending an exact determination of the medical cause for the claimant’s condition. See Larson, Workmen’s Compensation, § 79.51. The interim finding of a continuing, temporary, total disability is amply supported by the record.
The appellant questions a statement in the Commission’s formal opinion, to the effect that the medical findings “indicate to us [the commissioners] that claimant is disabled by reason of a nerve root compression in the low back.” We do not regard this passing observation as an attempt by the commissioners to make their own diagnosis without regard to the medical evidence. It merely suggests a possibility to be explored in the course of the further proceedings that the order contemplates. The essential part of the interim order is the finding, supported by substantial proof, that a disability exists and that it was caused by an accidental injury suffered in the course of the claimant’s employment.
The appellee asks that an additional attorney’s fee be allowed in connection with the appeal to this court. This request must be denied, as the statute does not authorize such an allowance. Only the Commission is empowered to award fees for legal services, Ark. Stats. 1947, § 81-1332, and the maximum fee was allowed in this case.
Affirmed. | [
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Sam Robinson, Associate Justice.
It appears from the pleadings in this case that a certain piece of property in Hampton is owned by appellee C. N. -Primm; that Primm leased the property to appellee Magnolia Petroleum Company, and Magnolia in turn subleased it to appellee J. H. Hannegan. According to the pleadings the lease from Primm to Magnolia provides: “In case of destruction of the premises by fire, explosion, storm, or otherwise, Lessors agree to immediately repair same and replace them in good and proper condition for operation of said service station, and Lessee agrees to repair or replace its said equipment with a view to returning said station to its original condition for the operation of a service station as quickly as possible. During the period of said repairs the rents herein provided for shall cease, but as soon as the repairs are finished and Lessee re-occupies the premises, the rent shall resume upon the same terms, and such periods of time shall be deducted in calculating the term of this lease.”
The complaint alleges that on October 9, 1955, a building on the property was destroyed by fire and that a sheet of metal from the roof of the burned building was left protruding over the sidewalk; that on November 2nd Margarett Ann Nowlin, a minor, struck her leg against this piece of metal, causing a serious injury. The complaint alleges that the defendants were negligent in not removing the sheet of metal from the walkway and that as a result of such negligence Margarett Ann was injured. At the conclusion of the testimony presented by the plaintiffs, the court instructed a verdict for Magnolia Petroleum Company and Hannegan. The court allowed the case to proceed against Primm, and the jury returned a verdict in his favor. On appeal appellants contend that the trial court erred in directing a verdict in favor of Magnolia and Hannegan.
The record contains no evidence introduced up to the time the court directed a verdict for Magnolia and Hannegan. Later in the trial the defendant C. N. Primm introduced a witness, one Lawrence Primm, and appellants contend that from this witness’ testimony it can be determined that Magnolia and Hannegan still had some duty in connection with removing the debris from the property after the fire. But even if Lawrence Primm’s testimony could be so construed, it could not benefit appellants, as Primm’s testimony had not been introduced in evidence and was not a part of the record at the time the court gave the instructed verdict in favor of Magnolia and Hannegan. When the court gave the instructed verdict, plaintiffs had closed their case, and the court had the benefit of no evidence except that which had been produced by appellants, and so far as the record shows at that point appellants had failed to make out a ease against Magnolia and Hannegan.
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George Rose Smith, J.
This is a workmen’s compensation case, in which the appellant asserts a claim for disability resulting from a ruptured disc in his back. The compensation commission rejected the claim, holding that Ward had not proved his case by a preponderance of the evidence, and that decision was affirmed by the circuit court.
The issue for the commission was largely one of credibility. Ward was employed at the appellee’s sawmill for three days and a half, ending May 13, 1955. He testified that on the morning of the last day he injured his back as he was using a cant hook in trying to control a log that he was rolling down the skidway. The employer and several of his employees testified that Ward worked only as a handyman around the mill, culling and loading lumber, that Ward never worked on the skidway, and that he did not at any time use a cant hook. Ward also stated that later in the same morning something snapped in his back as he jumped from a truck to the ground. Nolen, the employer, testified that he was within three feet of Ward at the time and that Ward simply stepped down from the truck, without jumping. It is conceded that Ward then complained of a “catch” in his back, professed himself unable to work, and obtained his wages for the brief period of his employment.
In denying the claim the commission referred to proof that Ward had been convicted of larceny, had been guilty of stealing chickens, and had testified falsely about a prior claim for a back injury. The commissioners -went on to say: ‘ ‘ Our decision in the case now before us is based on the fact that we do not believe a preponderance of the evidence establishes that claimant’s breakdown was by reason of events in the employment. The claimant has been shown to be an unreliable individual, and his demeanor on the witness stand was such that we deem him to be evasive and unworthy of belief. We think it definitely proved that this claimant did not work on the skidway with a cant hook as he testified to having done when pain first struck him. We are dubious that his first intimation of back difficulty became apparent to him while he was on the job on May 13, 1955.”
In the matter of credibility the commission’s findings have the binding force of a jury’s verdict. When we lay aside Ward’s own version of how he received his injuries, all that remains is the fact that he complained of a catch in his back and that he is now disabled by a ruptured disc. This proof does not compel the conclusion that the claimant received an accidental injury in the course of his employment.
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J. Seaborn Holt, Associate Justice.
There is involved here an alleged breach of a lease of real property for a filling station and parking lot in El Dorado, Arkansas. On April 11, 1953, the Rileys, owners of the property, entered into a written lease agreement with appellees here, the Davises (hereinafter referred to as Davis). This lease was to run for a term of ten years at a monthly rental of $300, with an option of renewal for another ten year period. The lease further provided: “Sec. 5. Lessees shall have the right to sublet any part or all of the premises, and shall have the right to assign this lease. . . . Sec. 7. This agreement shall extend to and be binding upon the heirs, administrators, executors and assigns of all the parties.” ' On May 21, 1955, Davis sold a bulk sales (oil and gas) business to appellant, Bastón, and on that same date Bastón took possession, including possession of the lease property here, under an assignment by Davis of the above lease of the Rileys to Davis, and Davis quit paying the rental. This assignment was as follows: “For value received we hereby sell, transfer and assign the within lease and all rights and privileges thereunto belonging, to Lloyd C. Bastón, dba Bastón Oil Company, El Dorado, Arkansas, this May 21, 1955.
Eldon A. Davis
Toyee G-. Davis
dba Davis Oil Company
Witness: Douglas A. Ward”
It was stipulated that Davis paid the rental until June 1; 1955, and Bastón paid it from June 1, 1955 until December 20, 1956, when he abandoned the property after having paid for the time he had occupied it.
By another agreement made on May 29, 1957, between the Rileys and Davis, Davis admitted liability to the Rileys, the original lessors, and permitted the Rileys to re-lease the property in. an effort to minimize the damages. The Rileys did re-lease one part of the property to a grocery company for $150 per month, and another part to Mr. Sanders for $100 per month, for terms of 4% years under each lease, with each lease expiring at the same time. These leases were to extend to within 21 months of the expiration date of the original ten year Riley-Davis lease.
The present suit was filed by the Rileys against Davis only. This complaint alleged, in effect, the execution of the original lease between'the Rileys and Davis, its assignment by Davis to Bastón, that Bastón defaulted after paying the rental for 18 months, alleged execution of the two above leases to minimize damages, and (appellant’s abstract) “that on May 21, 1955, Davis sold and assigned said lease and all rights and privileges thereto to one Lloyd C. Bastón, d/b/a Bastón Oil Company, and that Bastón entered upon and took possession of said property and began paying the rental to the plaintiffs and accepting the benefits and privileges of said lease and became in privity of estate with plaintiffs under said lease; that the lease provided the right to assign or sublet all or any part thereof; that in ac cepting said assignment and the benefits and privileges, Bastón assumed all the responsibilities to the plaintiffs; that shortly after the execution of the lease between Riley and Davis, Eldon A. Davis sold and assigned to Toyee G. Davis all his right, title and interest in Davis Brothers Oil Company, including the said lease, and said Toyee G. Davis assumed all liability of said company; Bastón is a necessary party to this suit in order that a complete determination of the issues herein may be had; prays that Bastón be made a party.” Davis answered with a general denial of all matters not admitted and further alleged “that the deficit during the period of these two leases above would be $2,800 and that after the expiration of these two leases that there would be 21% months remaining to the end of the original lease to the defendants, during which liability would accrue in the sum of $6,450; Rileys prayed to have judgment in the amount of $10,550,” and in a cross-complaint prayed that should, he, Davis, be found liable for any amount that he recover from Bastón an identical amount. Bastón answered with a general denial of any liability and specifically pleaded the statute of frauds as a defense.
The cause was brought to trial, and at the close of all of the evidence the court directed a verdict in favor of the Rileys against Davis for $5,175 and a judgment for Davis against Bastón for this same amount. The judgment contains this recital: “After the plaintiffs and the defendants had concluded their evidence, the third party defendant, Lloyd C. Bastón, moves the court to direct the jury to return a verdict in his favor, but same is, by the court, overruled. Thereafter the third party defendant presented his evidence and at the conclusion of all the evidence, the plaintiffs move the court to dismiss their cause of action against defendant Eldon A. Davis, which is granted and defendant Eldon A. Davis moves to dismiss his cause of action in the cross-complaint against the third party defendant, Lloyd Bastón, which is granted.
Whereupon the plaintiffs move the court to direct the jury to return a verdict in their favor against the defendant, Toyee G. Davis, in the amount of $5,175 and the court being sufficiently advised in the premises grants said motion, and thereupon the defendant, Toyee G. Davis, moves the court to direct the jury to return a verdict in his favor against the third party defendant, Lloyd C. Bastón, in the amount of $5,175, and the court being sufficiently advised in the premises grants said motion and at the direction of the court the jury returns from the box . . .” the above verdicts.
Bastón alone has appealed, and for reversal says: “Court erred in refusing to direct verdict for Bastón at the conclusion of Davis’ testimony; court erred in directing verdict for the plaintiff (Davis) against Bastón. ’ ’
There appears to be little if any dispute as to material facts. We have concluded in the circumstances that the court was correct in holding that Bastón was bound for the remaining unexpired term of the original lease of the Rileys to Davis from the time he took possession of the property under the written assignment of said lease from Davis to him. The evidence shows that he received, accepted, and kept in his possession this assignment lease and operated under it for 18 months, although it is conceded he did not sign this assigned lease. Davis testified: “I sold out — I sold the Davis Oil Company to Lloyd Bastón, and I assigned him these leases, not only this lease here of Dr. Riley’s but a lease on the bulk plant and a service station on the Smaekover Highway, and two other service stations. . . . Mr. Bastón mailed me this lease here and said I had failed to sign the assignment to him, Mr. Bastón; and I sent it back to him, and he has had the lease all this time, and I haven’t even had a copy of it.”
The rule appears to be that where a person accepts an assignment of a lease he enters into a privity of estate with the original lessor, and becomes personally liable for the rents, (32 Am. Jur. 320, Sec. 374) and that liability continues despite the fact that the assignee abandons the premises, as Bastón did here. Bastón’s acceptance of the written assignment and performance under it, we hold, was sufficient to make him liable for the rents without regard to the statute of frauds, and that his abandonment of the property did not relieve him from a liability for the remainder of the term. The annotator in 70 A. L. R., page 1103, under the title, — Rent — Liability of Assignee of Lease, — uses this language: “The abandonment of a leasehold by the assignee of the lessee, without any reassignment and without the consent of the lessor, does not relieve the assignee from liability to the lessor for rent accruing for the remainder of the term.” In support of this rule a large number of cases are cited from many jurisdictions, among them that of Chicago Attachment Co. v. Davis Sewing Machine Co., 25 N. E. 669, from the Supreme Court of Illinois. There that court held: “Headnote 1. The assignment of a lease whose unexpired term is longer than a year is within the purview of Rev. St. 111. c. 59, Sec. 2, which provides that no action shall be brought ‘upon any contract for the sale of lands, tenements or hereditaments or any interest in them for a longer term than one year, unless such contract or some note or memorandum thereof be in writing.’ 2. The fact that the assignee, by parol, of a lease takes possession of the demised property, pays rent for a time and is recognized by the lessor as his tenant, constitutes such an execution of the contract of assignment as takes it out of the statute of frauds. 3. The assignee of a lease who has abandoned possession without divesting himself of his title is liable for rent thereafter accruing under the lease. . . .” In the body of the opinion the court said: “The lessee is liable to the lessor both by virtue of privity of estate and privity of contract. We understand that the liability of the assignee to the lessor or reversioner is by reason of the privity of estate, which, by the assignment, has been transferred from the lessee to the assignee. The fact of actual possession is frequently of vital importance, as affording a link which, in connection with the further fact such' possession is derived from the lessee, will raise the presumption that there is privity of. estate between the party in possession and the lessor, or even estop such party from denying such privity, but, after all, it is the privity of estate which imposes the liability. . . . So long as it continued to be owner of the lease estate, and retained the legal title. thereto, and was entitled to immediate and actual possession, such legal title drew to it the constructive possession, and it was still assignee of the term, and responsible as such.”
We have concluded, however, that the court erred in refusing under appellant’s objection to submit to the jury the fact question as to the reasonableness of the rental value of the property in question during the remaining years of the lease term and what amount of damages Davis would be entitled to recover under proper instructions. It was the duty of Davis to use all reasonable efforts to minimize the damages he sustained. The evidence failed to show what Davis did with the property from December 20 to the following May, when the property was re-let for $50 per month less than the $300 per month lease contract rental. We approved the following instruction, in a situation such as here, in LaVasque v. Beeson, 164 Ark. 95, 261 S. W. 49, “The court further instructs the jury that it was the duty of the plaintiffs, when they learned that the contract had been breached, to use all reasonable efforts to minimize the damage which they may have sustained, and, if they failed to do so, the jury should take that into consideration in assessing the amount of damages sustained by the plaintiffs on account of said breach of contract.” For the error indicated the judgment is reversed and the cause remanded. | [
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Ed. F. McFaddin, Associate Justice.
This litigation involves the will of John O’Kane, who died in 1927 survived by his wife, Mrs. Clara O’Kane. Mr. and Mrs. O’Kane, both residents of Sebastian County, had no children or descendants. The appellants are some of the legal heirs of Mr. John O’Kane; and the appellee is the executor of the estate of Mrs. Clara O’Kane, who died in 1957. The appellee filed this action against all the legal heirs of John O’Kane, seeking a construction of his said will; and from an adverse judgment the appellants prosecute this appeal. The portions of Mr. 0’Kane’s will germane to this litigation, are:
“THIRD: I give, devise, and bequeath unto my beloved wife, Clara O’Kane, absolutely, after payment of all of my funeral expenses and just debts and the legacies provided in section two of this will, the one-half part of all of the residue of my estate, real, personal, and mixed, of which I may die seized and possessed, to have and to hold the same unto her and unto her heirs and assigns forever.
“FOURTH: I give, devise and bequeath unto my beloved wife, Clara O’Kane, for and during her natural life, after the payment of my funeral expenses and just debts and the legacies provided for by article two of this will, the one-half part of all of my estate and property, real, personal and mixed of which I may die seized and possessed, to have and to hold the same unto her and to her assigns during her natural life, for her proper use, benefit, support and maintenance, and after her decease said property so devised and bequeathed or the remainder and residue thereof is to be divided among my legal heirs as provided by the laws of this State for the distribution of estates by descent. It being my express will and purpose by the above articles three and four, that after the payment of my debts and funeral expenses and the legacies hereinbefore set forth, that my wife should be invested with the whole of my said estate, one-half of which she shall hold for and during her natural life, and one-half she will hold absolutely in her own right in fee simple, in lieu of dower in my said estate.
“FIFTH: I do hereby authorize and empower my said wife, Clara O’Kane for the estate hereinbefore devised and bequeathed to her during her natural life by said article four of this will, to sell and dispose of the same for such prices and upon such terms as she may deem proper and for the best interests of my said estate, and to make, execute and deliver such deeds and other papers as may become necessary to carry the same into effect, and it will only be necessary for her to refer to this will as her authority for so doing.
‘ ‘ SIXTH: I hereby appoint and constitute my wife, Clara O’Kane, as executrix of this my last will and testament and request that she shall be permitted to qualify and act as such executrix without giving bond. I further desire and request that no probate reports or other annual reports be required from my said wife and executrix.
‘ ‘ SEVENTH: I further will and direct that my said wife shall not be held pecuniarily liable for any loss to or diminution in the said property and funds.”
The net estate of Mr. O’Kane, after satisfying all debts and specific legacies, was $36,804.57, consisting of both realty and personalty. When his estate was completely administered in Sebastian County in 1928, Mrs. O’Kane took charge of all of the said net of the estate. She did not keep her fee portion separate from her life portion; but when she died in 1957 she had remaining a teta] of $19,866.46, after paying all of her debts and specific legacies. There is no showing that Mrs. 0 ’Kane had any separate estate except what she received from Mr. 0 ’Kane.
In its action for construction of the will of Mr. O’Kane, the appellee insisted that the said net of Mrs. 0’Kane’s estate (that is, $19,866.46) should be divided, one-half to Mrs. 0’Kane’s heirs and one-half to Mr. 0’Kane’s heirs. This would mean that Mr. O’Kane’s heirs would now receive slightly less than $10,000.00. The appellants insist that under Mr. O’Kane’s will, his heirs at law are now entitled to receive one-half of the net amount of his estate when it was closed, — i.e., $18,402.28, which was the amount of the life estate which Mrs. O’Kane received under the provisions of Mr. O’Kane’s will, since more than that amount remained after Mrs. O’Kane’s estate had been completely administered. The Probate Court agreed with the contentions of the appellee, and this appeal ensued.
It is crystal clear that Mr. O’Kane provided that his estate should go one-half to his wife in fee and the other one-half to his wife for life only, with the remainder to his legal heirs. The portions of the will heretofore copied definitely so provide. Whether Mrs. O’Kane could have invaded the corpus of the life estate for her necessary self-support is a matter that need not be discussed, because, after paying all of her debts, she left more than the net value of the life estate. What she did with her fee interest is not before us. In short, Mrs. O’Kane received from Mr. 0’Kane’s estate a net of $18,402.28 for life, with power of disposal; and our cases recognize the legality and enforceability of life estates with power of disposition, whether the estate be realty or personalty or mixed. Galloway v. Sewell, 162 Ark. 627, 258 S. W. 655; United States of America v. Moore (and cases therein cited), 197 Ark. 664, 124 S. W. 2d 807; and Weeks v. Weeks, 211 Ark. 132, 199 S. W. 2d 955.
The Probate Court’s judgment in effect treated Mr. 0’Kane’s will as though he had left his entire estate to Mrs. O’Kane with power of disposition for her support, because the Probate Court divided the net remainder which she had at the time of her death into two equal parts. Such a result defeats Mr. 0’Kane’s expressed directions concerning the life estate. He did not give Mrs. O’Kane the entire estate to be divided into two equal parts at her death: he gave her one-half of the estate in fee, and one-half for life, with the remainder to his legal heirs. The fact that Mrs. O’Kane did not segregate the life estate from the fee estate is of no consequence, since there remained, after closing her estate, more than the value of the life estate. (See Chambers v. Williams, 199 Ark. 40, 132 S. W. 2d 654.) So we conclude that the appealing heirs of Mr. O’Kane are entitled to their share of the value of the life estate received by Mrs. O’Kane - — ■ that is, $18,402.28.
The foregoing holding makes it unnecessary to discuss the other matters urged in the briefs. The judgment of the Probate Court is reversed, and the cause remanded for proceedings not inconsistent with, this opinion.
Johnson, J., not participating. | [
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Carleton Harris, Chief Justice.
This is a petition praying this Court to issue its Writ of Prohibition, directed to the Probate Court of Bradley County, prohibiting said court from taking further testimony in the cause, hereinafter discussed. Petitioner was the appellant in the case of Bobbie Jean Robinson v. George W. Hammons, 228 Ark. 329, 307 S. W. 2d 857. George W. Hammons was serving as guardian of the person and estate of Bobbie Jean Robinson. On June 24, 1952, Hammons filed his verified account, in which he charged himself with $1,325 and took credit for various amounts, including $338 paid for the burial of petitioner’s grandfather, and a total of $876.08 paid out in cash and checks to petitioner on various occasions. Petitioner, by her next friend, filed exceptions to the account, claiming that a certain receipt for $50 was a forgery, and that the book of receipts presented by the guardian, and purportedly signed by petitioner, was incorrect for various reasons. The trial court disallowed the $50 item, but allowed all the other claimed credits. On appeal, this Court allowed the item of burial expense, but stated “as to the other expenditures, it was error for the trial court to allow the guardian credit on the showing made in this record. * * * Under the above state of the record, we think the trial court erred in allowing all of the credits in controversy. * # * The cause is therefore reversed and remanded with directions to proceed further not inconsistent with the views herein set forth.”
On January 27, 1958, the Bradley Probate Court entered its order on the mandate, vacating so much of its decree allowing credits in Hammons’ final accounting as has been disallowed by this Court, and directing a further hearing on such items. The petition for Writ of Prohibition followed.
Petitioner contends that the doctrine of res judicata applies, pointing out that the questions to be heard are identical with those tried on January 28, 1957, that the parties are identical, the guardian has had his day in court, and this matter has already been finally adjudicated.
Let it first be pointed out that this is not a proper case for Prohibition. As stated in Corpus Juris Secundum, Vol. 73, paragraph 8, page 26:
“In general, three things are necessary to justify the issuance of a writ of prohibition; that the court, officer, or person against whom it is directed is about to exercise judicial or quasi-judicial power, that the exercise of such power by such court, officer, or person is unauthorized by law, and that it will result in injury for which there is no other adequate remedy.
# * #
The writ ordinarily issues only to prevent great impending present injury or extraordinary hardship, or where the public good demands, or to prevent some great outrage on the settled principles of law and procedure ; unless it is shown that injury would result from the act sought to be prohibited, or that damage is likely to follow such act, prohibition will not lie.”
Our own cases denote the same view. In Lowery, Administrator v. Steel, Chancellor, 215 Ark. 240, 219 S. W. 2d 932, this Court said:
“ ‘The office of the writ of prohibition is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction; but it is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for it has no other protection against the wrong that shall be done by such usurpation. Order of Railway Conductors of America v. Bandy, Judge, 177 Ark. 694, 8 S. W. 2d 448, and cases cited.’ Merchants & Planters Bank v. Hammock, 178 Ark. 746, 12 S. W. 2d 421, and ‘The writ is never issued to prohibit an inferior court from erroneously exercising its jurisdiction, but only where the inferior tribunal is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction.’ Bassett v. Bourland, 175 Ark. 271, 299 S. W. 13.”
See also McClendon v. Wood, Judge, 125 Ark. 155, 188 S. W. 6. In the instant matter, even if petitioner’s assertion that this litigation has already been finally adjudicated, should be correct, the writ sought would not lie. There is no great impending injury, nor extraordinary hardship, and the contention here asserted, could be as well asserted on appeal. In other words, the remedy by appeal is adequate.
The petition is thus disposed of, but to possibly preclude another appeal based on the same contention, we deem it well to state our actual intention at the time of rendering the opinion in Robinson v. Hammons, supra. Possibly such intent could have been stated with more clarity, but when the language is considered, we think it clear that the cause was remanded for further proof relative to the credits claimed by the guardian. We stated “It was error for the trial court to allow the guardian credit on the showing made in this record.”, and remanded the cause with directions “to proceed further not inconsistent with the views herein set forth.” Of course, if we had simply intended to disallow the items, finally and irrevocably, there would have been no occasion to remand, for there would have been nothing left with which to “proceed further.” We would simply have allowed the funeral bill of $338, and disallowed the other items. Petitioner states in her brief, “If this court affirmed the $338 item, then this court disaffirmed all the other expenditures. This court could not affirm one item and remand all the others back for further hearing.” We disagree with this conclusion. While it is true that Chancery and Probate cases are generally determined on the basis of the record before us on a first appeal, occasionally some cases are remanded for further proof where it would appear that the ends of justice require such action. Such procedure, though not the usual action, has been followed in numerous cases by this Court. As stated in American Jurisprudence, Vol. 3, page 712, Sec. 1210:
“It may be stated as a general rule that when the record is in such shape that the appellate court cannot in justice determine what final judgment should be rendered, the case will be remanded for such further proceedings as may be necessary in the trial court, or it may be remanded with directions for further proceedings in conformity to the opinion of the reviewing court, or for proceedings not inconsistent therewith.”
Also, in Corpus Juris Secundum, Vol. 5, page 1447, Sec. 1934, we find:
“The nature and extent of the proceedings which will be ordered upon a reversal and remand is a matter largely within the discretion of the appellate court, which will be exercised according to the exigencies or circumstances of the particular case . * * * Indeed, the directions, instructions, and limitations, imposed or given may be such that the subsequent proceedings in the lower court, whether or not denominated a new trial, fall short of being a full and unrestricted new trial of the original issues.”
Still further, in Sec. 1935, page 1448:
“Whether by reason of statutory provision or otherwise, it is generally held that an appellate court, on remanding a cause, may in its discretion either grant a complete new trial or restrict or limit the purpose of the proceedings or the issues to be tried in the lower court, according to which course is demanded by the circumstances or the ends of justice. ’ ’
The petition is denied.
Justices MoFaddin and Robinson concur.
Bobbie Jean, upon becoming of age, ratified this expenditure. | [
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J. Seaborn Holt, Associate Justice.
Appellee, Watts, brought suit against appellant, Bramlett, to recover for personal injuries caused by collision of a heavily loaded truck, driven by Bramlett, with an automobile driven by appellee, on Highway 65 a short distance out of Marshall, Arkansas. Appellant answered with a general denial and specifically pleaded that any injuries that appellee received were proximately caused by appellee’s own negligence. A jury trial resulted in a verdict for Watts in amount of $12,000 and this appeal followed.
For reversal appellant relies on the following points: “1. Jury’s finding as to interrogatory No. 2 and No. 3 to effect plaintiff was absolutely free of any causal negligence was not based upon any substantial evidence and hence is error of law, 2. Failure to credit testimony showing plaintiff’s negligence indicates mistake by jury in application of comparative negligence statute and this is reversible error, 3. The judgment is excessive, etc.” We do not agree with any of these contentions. Neither party complains about any instructions given. In fact, it appears that all instructions given clearly and fairly submitted the issues, and were agreed to by the parties.
Under our often repeated rule, when an appeal from a judgment on a jury’s verdict reaches us, it is our duty to affirm that judgment if we find any substantial evidence to support the jury’s verdict. Here we are not concerned with where the preponderance of the testimony rested, but only whether, as indicated, there was any substantial evidence to support the jury’s finding and in determining whether the evidence was substantial we must give to the testimony its strongest probative force in favor of the successful party, that it will reasonably bear. “In determining the sufficiency of the evidence to sustain a verdict, the Supreme Court views the evidence in the light most favorable to the appellee, and will not set aside a verdict if supported by substantial evidence,” (and cases there cited) Albert v. Morris, 208 Ark. 808, 187 S. W. 2d 909. Under interrogatories pro pounded to the jury by the court, the jury found that appellee Watts was guilty of no negligence, but that Bramlett was guilty of negligence.
The evidence shows that the collision occurred at about 9:45 p. m. while Watts was driving along Highway 65 well within his proper traffic lane, at a speed of about 30 miles per hour, and that appellant drove his truck across the center line over into appellee’s lane strildng and sideswiping appellee’s car. Watts’ left hand was outside the window holding the little vent glass at the time. Yent glass was about 4 inches wide. Appellee’s witness, Billy Joe Holder, sheriff, who was called to the scene of the collision testified that Watts’ car (appellant’s abstract) “was in ditch on right hand side, and two lumber trucks were north of that on their side of road, on the shoulder. Looked for physical evidence which might show point of impact. Found glass and some dirt in Ford car’s lane which looked like where accident did occur. Would not say how far because did not measure it. Watts’ car pretty well broken up — windshield and door glasses broken out, body of the car injured. Car hit just before it got to the windshield, corner of the bed looked like it hit the car. Examined the truck involved. Truck not damaged. Truck loaded with oak lumber.” This evidence was substantial and ample to support the verdict. As indicated above, we do not think the verdict excessive.
Watts testified (appellant’s abstract) that he lost his forefinger as result of crash; his next finger is bent and cannot be straightened out, while hand was perfect previously; in palm is a heavy seam which is scar; little finger is numb, but some feeling in it has returned. He was under treatment for three months. Complete feeling has not returned to hand. Had pain and suffering for which he took pain pills. Couldn’t sleep for two months. Still has some pain in hand after working. Hand stays cold. Was treated by Dr. Evans at Marshall and sent on to Little Bock to Dr. Kenneth Jones. Stayed in hospital for ten days. Made seven or eight trips back to Dr. Jones for dressing. At time of in jury was working at Gary, Indiana, taping and finishing sheet rock in connection with inside construction of new homes. Is skilled work consisting of putting mud in the crack where joints come together and then placing tape on there twice.. He was earning $4 per hour. Job was waiting on his return. Worked six days a week and made $192 a week before deductions. Company worked for it had lots of houses and work, and that both hands very necessary in doing this work. Used forefinger and thumb of left hand to fold the tape in doing corners. That this is work which requires minute care and attention. Went back to work last of October or first of November; has not drawn same rate of pay because of his left hand. Cannot work as fast and is paid by the hour. Still owes $347.70 to Dr. Jones — hospital bills were covered by his insurance ... he cannot use tools in left hand. Cannot use trowel but can use machine in work since machine has big end which he can grasp. Cannot work on location where machines are not used.
Dr. Kenneth Jones, orthopedic surgeon, Little Kock, Arkansas, testified that he first examined Watts at the Baptist Hospital July 7, 1956, Watts remained hospitalized until July 18, 1956 and was seen subsequently in the doctor’s clinic on 7 occasions, the last October 18, 1956. Dr. Jones testified, relative to the condition of appellee at the time he discharged him, that: “Considering the initial injury I feel that this patient has obtained a very good functional result. However, he does have a loss of the 2nd digit of the involved hand and has considerable limitation of motion in the 3rd digit of that hand. In addition there is a scar in the middle of the palm of the hand and for that reason it may be anticipated that at a later date function of the hand might be improved by turning a pedicle flap into the palm and loosening the adherent flexor digitorium profundis tendon to the middle digit. As it now stands, it is my opinion that the patient has lost approximately 40 per cent of the functional capacity of the hand.”
Appellee Watts was a young man 20 years of age, and a skilled workman earning $4 per hour, with steady employment of approximately 9 months a year. As a result of his injuries he is now handicapped with his left hand permanently injured with a loss of 40 per cent of its usefulness, which will materially affect his earnings. He has lost approximately four months employment, has incurred substantial hospital and surgical bills, and still owes a doctor bill of $347.70. He has suffered much pain and continues to suffer. Commenting on the excessiveness of jury verdicts we said in Phillips Motor Co. v. Rouse, 202 Ark. 641, 151 S. W. 2d 994, “Juries have the same right to pass upon the question of the amount to be awarded as compensation for an injury that they have to pass upon the question of liability for the injury; and we may not set aside a verdict in either case where it is supported by substantial testimony. If, however, there is no substantial testimony to sustain a judgment as to amount, it is our duty to reduce it; and if there is no substantial testimony to sustain a finding as to liability, our duty to dismiss the cause of action is equally certain.”
Having concluded that there was substantial evidence to support appellant’s liability for appellee’s injuries, and that the amount of the verdict was not excessive, we affirm the judgment. | [
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Paul Ward, Associate Justice.
This is a Workmen’s Compensation case and the principal controversy is over what constitutes an accidental injury within the meaning of the Act. The circuit court affirmed the full commission denying compensation, hut we have concluded that the cause must he reversed and remanded.
Set out hereafter are the material facts which are not in dispute unless so indicated. Appellant, Mrs. Ovada Clark, became an employee of the respondent, Ottenheimer Brothers, on August 26,1953 and continued working until she was forced to quit because of a hack injury (ruptured disc) on August 30, 1954. Respondent is engaged in manufacturing wearing apparel, such as dresses. At first appellant was employed as a sewing machine operator, then at making boxes by folding flat cardboard pieces, hut on June 14, 1954 she became what was known as a production line service girl. As such her duties were to keep each sewing machine operator on a production line supplied with materials as they came from the cutting room. It was part of her job in this connection to carry rather large bundles and place or pile them on a cart or platform with rollers. These bundles each contained from 3 to 5 dozen dresses and some of them weighed about 40 pounds each according to the commissioner who first heard the case but, according to other testimony, some weighed as much as 60 pounds each. At times appellant, who was 37 years old and only slightly over five feet tall, lifted the bunles to a height of about 6 feet in order to pile them on the cart, and it was of course a part of her job to remove them for distribution. Appellant noticed her back hurting slightly for about two weeks before it became so severe she had to quit work. She went to several doctors and finally it was determined that she had a ruptured spinal disc which was removed by an operation. The insurance carrier voluntarily paid compensation for 13 weeks and then suspended further payments on the ground that she had not sustained a compensable injury. Appellant was still unable to return to work more than a year after her injury.
It is conceded that appellant is not entitled to compensation unless the record discloses two things: One, that she had an accident as that word is defined by our decisions, and; Two, that there was a causal connection between the accident and the injury.
One. Accident. If there was an accident all the testimony shows it arose out of and happened during the course of her employment. This case was first heard by one commissioner whose opinion denying compensation was brought to us by certiorari. This opinion was adopted by the full commission. We have read the commission’s opinion carefully and we are convinced it was meant to deal only with the question of whether or not there was an accident. The commission found there was no accident, and in doing so, we think, it fell into error.
After setting out the contention of the claimant, the opinion states: “Respondents controvert this claim on the grounds that claimant did not sustain an accidental injury, and that any disability she has had since the last date of her employment is not the result of an accidental injury.” Following this, and after summarizing the facts, the opinion, under the heading FINDING, states: “That claimant did not sustain an accidental injury arising out of and during the course of her employment”. Nothing was said about causal relationship in the commission’s FINDING. This view which we think the commission took of the decisive issue is supported by some of the language it used under the heading of CONCLUSIONS. The pertinent words have been emphasized by us. It said:
“It is the Commissioner’s interpretation of the evidence herein that the nature and volume of work performed, as well as the rapidity with which it was accomplished by claimant while being employed as a service girl remained substantially constant, so that there was no increase in the work load from the time she started on this job until the time she quit.
“The holdings of our State Supreme Court have been such as to include, under certain conditions, an increased work load as constituting an accidental injury within the meaning of the Act; however, in the instant case, the preponderance of the evidence clearly establishes, in the opinion of the Commissioner, that there was no increased work load while claimant was employed as a service girl. ’ ’
Much of the testimony was directed to the issue of whether there was an increased work load placed on appellant just previous to her injury, and we readily agree there is substantial evidence to support the commission’s finding that there was no such increase. We do think, however, the commission erred in taking the view, as it obviously did, that it was incumbent on appellant to show, as a prerequisite to compensability, an increased work load. It is our view that an accident may occur when there is no increase in work load. It is understandable how the commission might have been led into its mistaken view by the language in some of our former opinions. However, we think the law on this point was clearly and unequivocally settled against appellee in the case of Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S. W. 2d 436.
The case above cited is an exhaustive discussion of the very point here under consideration. It comments on Ark. Stats. § 81-1302 (d) pertaining to an accidental injury, on the rule in England where compensation acts originated, on various opinions from this court and other jurisdictions, and on the majority and minority rule. A careful reading of the opinion leaves no doubt as to what it holds, the essence of which appears from a few excerpts. “If we should adopt a requirement that the work or strain be unusual or extraordinary we would reject the construction put on our statute in the jurisdiction from which it was borrowed and read into the law a requirement which greatly increases litigation to determine the elusory difference between usual and unusual strain or exertion.” The opinion further states: “Notwithstanding anything we may have said in prior cases, we hold that an accidental injury arises out of the employment when the required exertion producing the injury is too great for the person undertaking the work, whatever the degree of exertion or the condition of his health, provided the exertion is either the sole or a contributing cause of the injury. In short, an injury is accidental when either the cause or result is unexpected or accidental, although the work being done is usual or ordinary.”
Speaking now solely of what may constitute an accident under the holding in the Bryant Stave case it is clear that it was not incumbent upon appellant to prove an increased work load. This, however, ivas the exact burden which the commission and the trial court placed upon the appellant.
It makes no difference, we think, that appellant felt symptoms of her injury two -weeks before it became so painful she could work no longer, if in fact the usual work load caused the ruptured disc in her spine. For that matter who knows whether the disc was ruptured on August 30 or two weeks earlier, and it would be folly to speculate.
Two. Causal Connection. Judging from the basis of the commission’s finding and from the evidence produced by respondent, it appears to us there was no serious contention that appellant’s injury was not the result of the accident, or, in other words, the result of the work she was doing. There was no evidence and no opinion to the effect that appellant’s injury was not or could not have been caused by the heavy lifting she did. None of the four doctors who treated her, including the one who operated on her and removed the disc, was ever asked'if the injury could have been caused by the work she was doing, and none expressed an opinion about the matter one way or the other. On the other hand the first doctor who treated appellant gave this written statement: “My opinion is the work she was doing at Ottenheimers Bros, was the causative factor to her troubles. As she stated, the work she was doing was carrying heavy bundles of dresses for a service line.” The record shows that appellant did not mislead the doctor as to the nature of her work. This medical testimony is not refuted nor does it seem unreasonable, considering her size, her age, the weight of the bundles, and the height to which she lifted them, working 8 hours a day. Also, one other woman received similar injuries while doing work of a similar nature at the same place.
Since the cause appears to have been fully developed, we find from the undisputed evidence that appellant sustained an accidental injury which arose out of and during the course of her employment, and for that reason the cause is reversed. Also, since it appears that appellant had not fully recovered from the injury at the time of the hearing before the full commission, the cause is remanded to the trial court with directions to remand to the commission for further proceedings consistent with this opinion. | [
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Paul Ward, Associate Justice.
This appeal deals with the restoration of a lost will, and with legal rules and presumptions as related to facts which, for the most part, are undisputed.
Rev. John H. Garrett died on September 26, 1956, leaving no spouse or issue but a number of collateral heirs. When no will was found immediately his brother, George Garrett, was appointed administrator of the estate which consisted primarily of a house and lot valued at $2,500.
On April 19, 1957 Thomas A. Butler (a nephew of the deceased’s late wife), appellee, petitioned the Probate Court for the restoration of a lost will which purportedly devised a large portion of the estate to him. All heirs of the deceased were given notice of the petition. George Garrett, the administrator, and Theodore Jones (to whom some of the estate property had been sold) filed a general denial. Upon a full hearing the trial court found the issues in favor of Butler, and this appeal follows.
The only point relied on for a reversal is thus stated by appellants: “The court erred in finding that the proffered will should be restored as a lost will and admitted to probate. ’ ’ The above point suggests two questions to which we shall direct our discussion. One, was the execution of a lost will proven and, Two, if so, was the will revoked?
One. There is little doubt that Rev. John H. Garrett did execute a will leaving to appellee the property in controversy. In fact this is not seriously questioned by appellants. The proof shows that such a will was written by the deceased’s attorney and that it was properly executed and witnessed. A carbon copy of the original will, introduced into the record, shows it was executed in January 1950.
Two. "Whether or not the original will was revoked presents a more difficult question, although the testimony relating thereto is not in conflict.
Appellee, in substance, testified: I am 43 years old and have lived in Chicago for the past 10 years, but prior to that time I lived in Pine Bluff, Arkansas, with Rev. Garrett, — from 1925 to 1941; I considered him my father, he put me through school, supported me, and treated me as a son; Rev. Garrett sent me a will in January 1950, and also wrote me a letter dated January 12, 1950 in which he said to keep the will; I read the will and it seemed to be identical with the copy which has been introduced; On January 24,1956 Rev. Garrett wrote me to send him the will because he wanted to put it on record and I sent it to him sometime in February or March; After that (in August) I visited deceased — he was almost deathly sick when I arrived, but I noticed no difference in the way he treated me; He gave no indication he had made any changes in his will, and; In about two weeks he died and I returned to Chicago. Before leaving, and after Garrett’s death I looked for the will and couldn’t find it but I did find the envelope in which I returned the will in a drawer in his room. George Garrett and others were present when I was looking for the will. Clarence Burton, a witness for appellee, testified: Rev. Garrett talked with me as though Butler was his son; He confided in me about his affairs; 1 was with Rev. Garrett every night for about two weeks before he died; He discussed with me the disposition of his property about a month before he died; He had given me a $1,000 insurance policy, and he told me to present it at his death and that Tom Butler would be the administrator, and; He also said Butler would know what to do with the rest of his property. Frank Anderson, who lived in Pine Bluff 14 years and who lived in the house with Rev. Garrett 6 years, said he signed for the letter (containing the will) which appellee sent from Chicago; that he saw deceased looking at the envelope several times; that he saw George Garrett and his aunt looking through deceased’s papers after he died; that there were a number of people prowling through his effects; that George was in his house about 2 weeks before Rev. Garrett died, and a lot of people had access to where the deceased kept his papers; that he saw the envelope while Butler was there about two weeks before Rev. Garrett died. The testimony of the wife of Frank Anderson was to the same effect.
No testimony was offered on behalf of the appellants.
It is appellants’ firm contention that the will of Rev. Garrett was revoked and that the trial court erred in not so holding. This contention is bottomed on Ark. Stats. § 60-304. This section, in all parts material here, reads as follows:
“No will . . . shall be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the life time of the testator.”
It is then pointed out by appellants that there is no direct and positive evidence showing the will was in existence at the time of Rev. Garrett’s death, or that it was fraudulently destroyed before his death. In the absence of such evidence and since it is admitted that the will could not be found, say appellants, the law presumes Rev. Garrett revoked his will. To show there is such a presumption appellants quote from 57 Am. Jur., Wills, § 549. We agree with appellants, and also note that the same presumption was recognized in Rose v. Hunnicutt, 166 Ark. 134. (at page 137) 265 S. W. 651 where we said: “It will be presumed that a testator destroyed a will executed by him in his lifetime, with the intent of revoking same, if he retained custody thereof, or had access thereto, and if it could not be found after his death.” It must be admitted that the facts in the case under consideration fall within the provision set out in the above quotation. However, immediately following the above the court said this: “This presumption may be overcome by proof.” This court also said in Porter v. Sheffield, Administrator, 212 Ark. 1015, 208 S. W. 2d 999 and in Bradway v. Thompson, 139 Ark. 542, 214 S. W. 27, that such a presumption of revocation could be overcome with proof. In the Bradway ease, which dealt with a factual situation similar to that here involved, the court considered the same statute as is now § 60-304 above quoted from, and sustained the trial court’s holding that the presumption of revocation had been overcome.
After careful consideration of the weight to be given to the facts and circumstances in this case as set forth above, we cannot say the trial court’s finding is against the weight of the evidence. The proof is clear that Rev. Garrett made the will in question, and that he had good reasons for making appellee his chief beneficiary; that nothing occurred to change-or alter those reasons; that he indicated to disinterested witness shortly before his death he expected appellee to have some control over his affairs after his death and; that there is a total absence of any testimony he tried or wanted to make any change in or revoke his will. There are also in the record other circumstances which the trial court had a right to consider. During Rev. Garrett’s last illness many people had the opportunity to handle and destroy or misplace the will. One of these was the appellant, George Garrett, who was an interested party and who failed to testify.
The vital question with which we are concerned of course is whether or not the will was revoked. We are confronted with no proof but with a presumption only that it was revoked. We think the testimony and attending circumstances are sufficient to overcome that presumption. As was said in the Bradway case, supra, in speaking of the problem facing the trial judge in this kind of a case: “It was not indispensable that he should determine what became of the. will. It was enough that he should find that it was not revoked or cancelled by the testator.”
We do not agree with appellants that the burden was on appellee to overcome the presumption of revocation by clear, satisfactory and convincing evidence. The rule which appellants would apply has apparently been adopted in some other jurisdictions, but we have held that, in snch cases, only a preponderance of the evidence is required. See Bradway and Reynolds, supra.
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George Rose Smith, J.
By this suit the appellees, six counties and two cities, seek a declaratory judgment holding that the Medical Quota Act (Act 568 of 1957) is unconstitutional. The defendants compose the Board of Trustees of the University of Arkansas and govern the University Medical Center at Little Rock. The chancellor declared the act to be invalid and enjoined the defendants from attempting to enforce it.
By its preamble the act declares that the Medical Center is a state institution, supported by state-wide taxation, and that the use of its facilities by certain counties and municipalities has been disproportionate to comparative population. To correct this situation the act assigns quotas to each county and to each city of more than 10,000 people. Residents of the various counties and cities who are unable to pay for medical care may be treated at the state’s expense within the limits of the assigned quotas, but each county or city must pay the actual cost of charitable treatment rendered to its residents in excess of its quotas. If any city or county fails to pay within thirty days after it is billed, the sum due may be deducted from state funds that the city or county would otherwise receive.
For the most part the appellees’ attacks upon the validity of the act require little discussion. The conn ties ’ contention that the statute infringes upon the county court’s constitutional power to control county finances has been rejected in a number of cases, the most recent being Campbell v. Ark. State Hospital, 228 Ark. 205, 306 S. W. 2d 313, which is not dissimilar on this point to the case at bar. An allied contention, that the financial burden upon these appellees will be so great as in effect to destroy their local governments, is sufficiently answered by that provision of the act which empowers each county judge and the chief administrative officer of each city to certify the eligibility of each resident applicant for free medical care. If the charges now assertedly due from these appellees appear to be unduly great, it is because they have failed to exercise their option to control admissions to the Medical Center.
A number of contentions are based on the fact that the quotas assigned to the various counties and cities are based solely on comparative population. Before these points can be discussed it is necessary to describe the quota system in some detail.
The act provides two different quotas for each of the seventy-five counties (and for the city of Marked Tree, as we shall explain later on) and for each of the twelve cities having more than 10,000 residents. The first quota represents the number of patient-days in the hospital that are allotted annually to each county and city. Arkansas county, for example, is allowed 1,728 patient-days a year at state expense, Ashley county 1,872, and so on down the list. The various separate quotas total 140,604 patient-days a year. In like manner the act assigns to each county and city an annual quota for emergency and clinic visits to the Medical Center. These various separate quotas total 100,000 visits a year.
The act itself does not state just how these numerical quotas were determined, except that it does declare parenthetically that they are apportioned pro rata according to population. The system is explained in detail, however, in the answer filed by the appellants. It is there asserted that the Medical Center hospital has 450 beds, which can be utilized at 85 per cent of their full capacity for 365 days a year. This leads to a total of 139,613 patient-days a year (85 per cent of 450 x 365). This total was allocated among the counties and cities in proportion to their population as shown by the 1950 federal census. (That the actual total in the act comes to 140,604 instead of 139,613 is due in a negligible degree to the rounding off of fractions and, principally, to an obvious mathematical error by which Wood-ruff county was assigned 1,000 more patient-days than its relative population calls for. We assume that a mere mathematical error of this kind can be judicially corrected. See Murphy v. Cook, 202 Ark. 1069, 155 S. W. 2d 330.) When a county contained a city having more than 10,000 people the city’s population was subtracted from that of the county in fixing their separate quotas. In the same way the Medical Center’s annual capacity to take care of 100,000 emergency and clinic visits was apportioned on the basis of the 1950 census.
In addition to pleading the method of allocation in their answer the appellants offered testimony to show that the quotas were in fact determined in the manner just stated. This proof is a part of the record, though the chancellor ruled it incompetent. Perhaps the testimony would not be admissible to show what was in the minds of the legislators when the act was passed, but we see no reason why it would not be competent as tending to support the appellants’ asertion that there is a sound factual basis for the quotas allotted to the counties and cities. We need not explore this issue, however, for we can determine the method of allocation without reference to the pleadings or the proffered proof. We take judicial notice of the federal census figures, Street Imp. Dists. Nos. 481 and 485 v. Hadfield, 184 Ark. 598, 43 S. W. 2d 62, and it is a simple matter to demonstrate to a mathematical certainty that the various quotas were based upon comparative population as shown by the 1950 federal census.
It is first insisted that a classification based upon relative population alone is so unreasonable and arbitrary as to invalidate the act on the ground that it is local or special legislation. Ark. Const., Amendment 14. On this point the appellees insist that the residents of counties and cities geographically near the Medical Center will inevitably use its facilities more frequently than will citizens living far away. Hence, it is said, the assigned quotas should take into account relative distances as well as relative population.
This argument overlooks the basic purpose of the act, which is to distribute the burden of maintaining the Medical Center equitably among the several counties and cities. A quota system based upon population appears to us to be an altogether fair method of accomplishing the legislative purpose; certainly it is not so unreasonable as to warrant a holding that comparative population has nothing to do with the purpose of the act. See the Hadfield case, supra. The appellees’ position really narrows down to the contention that, merely because they happen to be near the Medical Center, they should not be required to pay their fair share toward maintaining the institution. This position is obviously without merit.
A further contention is that the distinction between cities having more than 10,000 people and those having-less than that number is arbitrary. "We do not think so. The system involves no duplication or favoritism, for the population of these larger cities was deducted from that of their respective counties. The legislature may well have believed that a small community might be unable to afford to pay its ostensible share upon a quota basis, since serious illnesses befalling a few of its indigent citizens might result in medical bills amounting to thousands of dollars. Hence the risk of such a calamity was spread over the particular county as a whole. On the other hand, the legislature may have believed that the larger cities were sufficiently populous to warrant their being treated on the same basis as a county. We think it plain that some classification as between large cities and small ones is justifiable, and it is not for us to say that the line as drawn by the legislature is arbitrary.
The act is also objected to on the ground that it is based only on the 1950 census, with no provision for an adjustment of quotas to meet future shifts in population. On this point the appellees cite a number of our cases holding that a classification based upon a particular census makes the act a local one, since no other city or county can ever be admitted to the class.
We do not regard those cases as controlling here. Such acts are local because they amount to a singling out of a particular community for special treatment. As Sutherland points out in § 2109 of his work on Statutory Construction (3d Ed.): “An act limited to a particular census is a form of identification.” Our own decisions are to the same effect. As we said in Ark-Ash Lbr. Co. v. Pride & Fairley, 162 Ark. 235, 258 S. W. 335: “In other words, this statute selected Mississippi County as its only field of operation as unerringly as if it had been made to apply to that county by name.”
That is not the situation here at all. The act does not attempt to identify any county or city by the subterfuge of referring to a particular bracket in the census figures. Quite the opposite, the counties and cities are referred to by name, and a quota is assigned to each. If the quotas were in fact fairly assigned on the basis of the 1950 census, it would not now be a valid objection that they might become discriminatory when the 1960 census is taken. The principle is well settled that a statute may be valid when enacted but may become invalid by changes in the conditions to which it applies. Nashville, C. & St. L. Ry. v. Walters, 294 U. S. 405, 55 S. Ct. 486, 79 L. Ed 949; Atlantic Coast Line R. Co. v. Ivey, 148 Fla. 680, 5 So. 2d 244; Vigeant v. Postal Teleg. Cable Co., 260 Mass. 335, 157 N. E. 651; Pennsylvania R. Co. v. Driscoll, 330 Pa. 97, 198 A. 130. Hence if the Medical Quota Act could be shown to be free from discrimination on the basis of the latest census, we would not hold it invalid upon the ground that it might later become discriminatory. It might have been better for the appellants to have been invested with power to reapportion the quotas to meet changes in population, as was done in the case of the Tuberculosis Sanatorium, Ark. Stats. 1947, § 7-311; but that precaution was not essential.
The appellees’ remaining contention, however, is unanswerable; that is, that the Medical Quota Act discriminates in favor of Poinsett county and Marked Tree. It is of course well settled that an act which does not apply uniformly throughout the state is local if one county is arbitrarily selected for special treatment. “The exclusion of a single county from the operation of the law makes it local, and it cannot be both a general and a local statute.” Webb v. Adams, 180 Ark. 713, 23 S. W. 2d 617; Smith v. Cole, 187 Ark. 471, 61 S. W. 2d 55.
In the act before us Marked Tree, a city in Poinsett County, is included in the list of counties and is given annual quotas of 211 patient-days and 151 emergency and clinic visits. The quotas for Poinsett county are 2,870 patient-days and 2,055 visits. If the population of Marked Tree had been subtracted from that of the county, as was done in the case of the larger cities, the act would be mathematically defensible and it might be assumed that the General Assembly had a sound reason for its special treatment of this city of less than 10,000.
That, however, wras not done. For convenience we discuss only the quota for annual visits, though the discrimination exists in the patient-days quota as well. According to the census the 1950 population of the state as a whole was 1,909,511. Poinsett County, with a population of 39,311 (including that of Marked Tree), was therefore entitled to 2,058 of the 100,000 apportioned visits. It was in fact given a quota of 2,055. But Marked Tree, with a population of 2,878, which had already been counted in that of the county, was assigned a quota of 151 visits, which, had there been no duplication, is mathematically correct on the basis of Marked Tree’s population. Thus Poinsett county as a whole was allowed 2,206 visits, when its total population entitled it to only 2,058.
It further appears that the other counties and cities have been made to pay for the favoritism extended to Poinsett county and Marked Tree. Arkansas county, with a population of 23,665, was entitled to 1,239' visits on the basis of the state’s true population of 1,909,511. But when Marked Tree’s population is counted twice, making a fictitious state total of 1,912,389, Arkansas county then receives only 1,237 visits, and that is the figure in the statute. In short, Arkansas county is made to pay for two of the free visits allowed to Marked Tree. Next in alphabetical order, Ashley county, with an enumeration of 25,660, was entitled to a quota of 1,344, but the duplication reduced its quota to the statutory figure of 1,341. And so on down to Yell county, whose true quota of 736 was cut down to 735. Even Poinsett county was affected, its correct quota of 2,058 having been reduced to 2,055.
If we could conscientiously say that the demonstrable discrimination was inadvertent, it might be possible for us to hold, as we have intimated with respect to the mathematical error of 1,000 in Woodruff county’s patient-days quota, that practically every one of the 176 numerical quotas in the act should be judicially construed to read other than they do. But we perceive no reason to suppose that the draftsman of the act intended for it to read differently. To include the city of Marked Tree in the list of counties was certainly not an oversight. To allot that city an undeserved quota of 151 and then to calculate every other quota so that Marked Tree’s windfall was proportionately distributed among the other cities and the counties was not an oversight. We cannot escape the conclusion that the discrimination was deliberately written into the act, beyond the reach of judicial correction. As much as we are in sympathy with the purposes of the act, we have no alternative except to hold that it violates the constitution.
Affirmed.
Holt, MoFaddin, and Millwee, JJ., dissent. | [
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HART, J.,
(after stating the facts). The first question raised by the appeal is the construction to be given to the timber deed in question. It will be remembered that the deed contains a clause that the. company may cut and remove the timber at its convenience.
(1) In the case of Fletcher v. Lyon, 93 Ark. 5, the court held that a timber deed which conveys “all timber, standing or fallen, with the right to cut and remove same at any time,” contemplates that the timber should be removed within a reasonable time and without unreasonable delay. That case is controlling here and we hold that it was the duty of the company under the deed in question to cut and remove the timber within a reasonable time.
(2) The mill plant of the company was, destroyed by fire in May, 1908. According to the testimony of the officers of the company, it had extended its tramroad to within 250 yards of the land in question and the timber would have been cut and removed from it within sixty days if the fire had not occurred. The present action was commenced on April 11, 1916, and at that time the company had not rebuilt its mill. The delay is accounted for by the officers of the company on the ground that the company could not procure money with which to rebuild the mill on account of its size and cost and from the further fact that soon after the fire occurred there was a fall in the price of lumber and it has not since been profitable to operate a mill. These matters constituted no excuse for the nonperformance of the contract on the part of the company.
In Ingram Lumber Co. v. Ingersoll, 93 Ark. 447, the court held that a party to a contract may not excuse his failure to perform it by showing the stringency of the money market where the contract did not provide for a release in such a contingency.
Again in Newton v. Warren Vehicle Stock Co., 116 Ark. 393, the court held that where a company contracted to purchase and remove timber within a certain time, the fact that misfortune overtook it will not excuse it from liability for a breach of the contract.
In the case of Heflin v. Bingham, 56 Ala. 566, 28 Am. Rep. 776, in discussing a precisely similar question the court said, “The accident of a falling market or undue delay in rebuilding the mill after its destruction; these, and similar disturbances, should exert no influence with the jury. But when the mill was destroyed by fire, a reasonable time was allowed for its reconstruction.”
In the present case eight years was allowed to elapse before the company commenced to rebuild its mill. This was an unreasonable time.
It follows that the chancellor erred in dismissing the complaint of the plaintiff's for want of equity. For the error that decree must be reversed and the cause will be remanded with directions to the chancellor to grant to the plaintiffs the relief prayed for in their complaint. It is so ordered. | [
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HART, J.
F. E. Prince instituted this action in the chancery court against G. W. Peters for the purpose of annulling and setting aside a certain contract made by him with the defendant which he alleged was procured by the false and fraudulent representations of the defendant.
During the years 1914 and 1915, F. E. Prince was a manufacturer of crates and baskets at Pittsburg, Texas, and Gr. W. Peters was a merchant at Mountainburg, Arkansas. On September 15, 1914, Peters was indebted to Prince for merchandise on open account in the sum of $733.45 and executed his note therefor payable on the 15th day of March, 1915.
On March 5, 1915, Prince wrote Peters reminding him that his note would be due on the 15th inst., and asking him if he would be able to pay it. On March 8, 1915, Peters answered this letter, and wrote Prince that he would be unable to pay the note when it became due. The letter gives in detail his reasons for being unable to pay the note, but on account of its length it would unduly extend this statement of facts to set it out in full. In substance Peters wrote Prince that there was no chance on earth for him to pay his note; that his stock of goods was about out and that all of his property, except some notes and accounts for some merchandise, was tied up for all that it was worth; that he owed other debts for merchan dise that were not secured but that he wanted to give Prince the first chance. He proposed that he would turn over to Prince $800 in amount of notes taken from his customers, all dated January 1, 1915, and due November 1, 1915. He stated that the makers of these notes were all living in the county and that the notes were good live paper; that he further stated that these were the best notes that he had and that he wanted to give Prince first choice of his customers’ notes on hand. Prince replied that he thought Peters was taking too gloomy a view of the situation, that he would soon-get on his feet again. He reminded him that the past year had been a hard one on all kinds of business. He suggested that the notes be sent to a bank at Pittsburg, Texas, and that the bank would endeavor to collect the notes and remit the balance, after paying Prince’s debt to Peters. On March 12,1915, Peters answered this letter. He reaffirmed what he had stated in his first letter, and declined to send the notes on the terms stated in Prince’s letter of the 8th inst. He reminded Prince that others were offering to take the notes but that he wanted to pay Prince first. He offered to endorse the notes in question without recourse and exchange them for his own note. Prince then accepted this offer and notes to the amount of $800.83 principal, with the accrued interest, were endorsed by Peters to Prince without recourse and forwarded to the latter. Prince in return sent Peters’ note to him. Prince was not personally acquainted with either Peters or the makers of the notes which Peters endorsed to him. When the notes became due Prince sent them to Mountainburg for collection and ascertained that all the makers were insolvent and that nothing could be collected on the notes.
L. L. Stokes testified that he was cashier of the bank at Mountainburg in March and April, 1915, and that it was a part of his duties to inform himself as to the financial standing of the people in and around Mountainburg; that he had known Gr. W. Peters about twenty years; that he personally considered Peters solvent during the whole of the year 1915, and since that time; that he owned prop erty at Mountainburg worth five or six thousand dollars and that he had several farms near Mountainburg and Lancaster in 1915. He was asked about the solvency of the makers of the notes which Peters had transferred to Prince and testified that each of them was insolvent on the 1st day of January, 1915, and had remained so ever since.
E. Morris, who succeeded Stokes as cashier of the bank at Mountainburg, testified that he knew personally the makers of these notes, and that each of them was in-, solvent prior to 1915, and had remained insolvent during 1915, and ever since that time; that Peters was solvent during the whole of 1915, and had continued to be solvent ever since.
Prince testified that he was unacquainted with Peters and with the parties whose notes he received from Peters; that he had never been to Mountainburg and relied wholly upon the representations made by Peters in exchanging Peters’ note for the notes of his customers; that he believed from the statements contained in Peters’ letters that he was absolutely insolvent and that he must act quickly if he wished to make the exchange; that he was not acquainted with any one in Mountainburg to whom he might have made inquiries as to the truth of the representations made by Peters and felt from his prior dealings with Peters he could rely upon the statements made by him.
On the other hand, it was shown by two witnesses that Peters was generally regarded to be in an insolvent condition in 1915. Peters himself testified that he regarded himself to be in an insolvent condition and thought the notes he had transferred to Prince were as collectable as his own paper could be. He denied that he had misrepresented his condition in any way to Prince.
The chancellor found that Prince was induced by the fraudulent misrepresentations of Peters to exchange the latter’s note for $773.45, for the notes of customers to the amount of $800.83, and the accrued interest; that Peters was solvent at the time of the exchange of the notes and the makers of the notes exchanged by him for his own notes were insolvent. Judgment was rendered in favor of Prince against Peters for the amount of $773.45 and the accrued interest. Peters has appealed.
It is now strongly insisted that the findings of facts made by the chancellor are against the preponderance of the evidence, but we do not agree with counsel in this contention. It will be remembered that Prince had never been to Mountainburg and was not personally acquainted with any one there. The solvency of Peters and the insolvency of his customers from whom he had secured notes for the amounts which they owed him were facts peculiarly within his own knowledge and under the circumstances of this case Prince had' a right to rely upon his statements in this regard. He knew whether he was solvent or not and should be bound by the representations he made to Prince in that regard. He also knew about the financial condition of his customers and is bound by the statements he made concerning their solvency. Prince lived several hundred miles away and was unacquainted with any of the parties and had been selling Peters merchandise for the past two years. Their business dealings had been satisfactory and Prince had a right to rely upon his statements in the matter. It appears from the testimony of the two men that had been cashiers of the Bank of Mountainburg that Peters was solvent at the time he made the representations to Prince and had so. continued ever since. It is clearly apparent from their testimony that the customers’ notes could not be realized upon and that,Peters knew this fact when he traded the notes to Prince. It is true the above testimony was contradicted by Peters and to a slight extent by two witnesses for him, but a careful consideration of the whole testimony leads us to the conclusion that the chancellor did not err in finding in favor of the plaintiff. It can not be said that his finding is against the preponderance of the evidence. •
Therefore, the decree will be affirmed. | [
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Robert J. Gladwin, Judge.
On August 27, 2002, the Independence County Circuit Court entered a decree quieting title to a .356 acre of land in favor of appellants Clara Faye O’Dell, Fred O’Dell, Julie O’Dell Wilber, Jonathan O’Dell, and Joseph O’Dell (hereafter referred to as “the O’Dells”). Appellees David Lynn Rickett and Susan Rickett Rigsby, nee Bennett (hereafter referred to as “the Ricketts”) appealed to this court, arguing that the trial court erred in finding that the O’Dells had acquired the land by adverse possession. In an opinion handed down on April 28, 2004, this court agreed with the Ricketts and accordingly reversed and remanded the case. The O’Dells then filed an amended and substituted complaint and petition for temporary restraining order on June 18, 2004, seeking reformation of the deed. In an order entered on September 22, 2004, the trial court ruled that the O’Dells’ claim was barred by the doctrine of res judicata. The O’Dells now argue that the trial court erred in finding that res judicata barred them from pursuing their claim for reformation upon remand by this court. We affirm.
The O’Dells take issue with this court’s remanding of their case because they contend that it is unclear what this court intended by reversing and remanding the case without specific instructions. The O’Dells suggest that this court must have intended that a new trial be held. The O’Dells cite the per curiam opinion in Wilson v. Rodgers, 250 Ark. 335, 468 S.W.2d 739 (1971), for the general rule that in equity cases, with all the record fully developed, we should finally decide the case here instead of remanding it for a new trial. Nothing in our mandate indicated that this court intended that a new trial be held. Because new trials are seldom directed on reversal of chancery (equity) decrees, the established procedure is to give special direction for new trials on remand when that is the appellate court’s decision. Witcher v. McGhee, 86 Ark. App. 317, 184 S.W.3d 474 (2004). Our general remand was simply to permit the trial court to enter an order quieting and confirming title in the Ricketts in order to avoid any clouds on their title.
In the former opinion, this court determined that the O’Dells could not argue on appeal that the deed should have been reformed because it was neither pled nor argued to the trial court. We specifically declined to address the issue of reformation because the appellate court will not find a fact that was not found below as that would be an intrusion into the province of the trial court. Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998). Upon remand, the O’Dells sought to amend their pleadings to assert a new cause of action for reformation of the deed, but the trial court would not allow the amendment. The O’Dells contend that, pursuant to Ark. R. Civ. P. 15, they should have been permitted to amend their pleadings. The trial court has broad discretion in allowing or denying amendment of the pleadings. Trice v. Trice, 91 Ark. App. 309, 210 S.W.3d 147 (2005). We cannot say that the trial court abused its discretion in disallowing the amendment based on its conclusion that res judicata applied to our earlier decision.
The purpose of the res judicata doctrine is to put an end to litigation by preventing a party who had one fair trial on a matter from relitigating the matter a second time. Cox v. Keahey, 84 Ark. App. 121, 133 S.W.3d 430 (2003). Relitigation is barred by res judicata when (1) the first suit resulted in a judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action that was litigated or could have been litigated but was not; and (5) both suits involve the same parties or their privies. Daley v. City of Little Rock, 36 Ark. App. 80, 818 S.W.2d 259 (1991). The test in determining whether res judicata applies is whether matters presented in a subsequent suit were necessarily within the issues of the former suit and might have been litigated therein. Cox, supra. When a case is based on the same events as the subject matter of the previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Id.
The O’Dells argue that res judicata does not apply because, when this court reversed and remanded the case, there was no final judgment. As this court explained earlier, our judgment was final as to the adverse-possession claim, and the case was remanded to the trial court for it to enter an order not inconsistent with our opinion. The issue of reformation could have been considered by the trial court had it permitted the O’Dells to amend their complaint. Instead, the trial court, in its discretion, essentially found that the Ricketts would be prejudiced by the amendment given that the O’Dells had a fair opportunity to litigate the reformation issue in the prior suit. Accordingly, the trial court applied the doctrine of res judicata to prevent the O’Dells’ attempt to pursue a new cause of action where the first one failed. We cannot disagree with the trial court’s resolution of this matter and therefore affirm.
Affirmed.
Robbins, Glover, Neal, and Roaf, JJ., agree.
Baker, J., dissents.
The parties to the former appeal were Jimmie Thompson Rickett and David Lynn Rickett. | [
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Wendell L. Griffen, Judge.
Appellee Beadles, Incorporated (Beadles) is a hog-finishing operation owned by Wayne Beadles, Sr., and Wayne Beadles, Jr. This operation takes young hogs, feeds them until they attain a certain weight, and then sells them to slaughterhouses. Beadles makes its own hog feed, part of which contains soybean meal that it purchased from appellant Archer-Daniels-Midland Company (ADM). Beadles sued ADM claiming that ADM’s failure to inform Beadles that ADM had sold it soybean meal that might have contained ball clay that was contaminated with dioxin caused a purchaser to reject a shipment of Beadles’s hogs and that while the rejected hogs were stored at a receiving center, they contracted salmonella group B, which they later spread to Beadles’s facility after the refused hogs were returned, and which caused the death of 2600 of Beadles’s hogs over the next few years. Following a bench trial, the circuit judge found that ADM was liable for fraud due to its failure to inform Beadles of the alleged dioxin contamination. We reverse and dismiss because either a crucial element of Beadles’s fraud claim — the reason the shipment of hogs was rejected — was proven based solely on inadmissible hearsay or else no proof was given to establish that element of Beadles’s claim.
I. Background Facts
In April and May of 1997, Beadles purchased two shipments of allegedly contaminated soybean meal from ADM. Thereafter, onjuly 21,1997, Beadles sold and attempted to ship 126 hogs to an Iowa purchaser, IBP. These hogs had been fed with the allegedly contaminated feed. IBP halted the shipment in Missouri and Beadles’s hogs were stored temporarily at a receiving center. During this time, three hogs were slaughtered and tested for dioxin; the test results were negative. In addition, another hog died (cause unknown). Beadles then shipped the remaining 122 hogs back to its farm.
Beadles’s hogs are kept in an “old barn” and a “new barn,” which are approximately fifty yards apart. Beadles returned the 122 hogs to the new barn, from which they originated. When the hogs returned, they were extremely stressed and laid in an open-flush gutter system to cool themselves. This system washed feces and dirt from the IBP hogs. Other hogs in the new barn that were penned down slope came into contact with that feces and dirt. The IBP hogs were ultimately reshipped and sold to IBP at a reduced price because they lost weight. The hogs that were penned down slope from the IBP hogs began dying approximately two or three weeks thereafter. Beadles sued, claiming that while being stored at the receiving station, the IBP shipment became infected with salmonella group B, which somehow spread to Beadles’s other hogs when the IBP shipment was returned and caused an increased death rate in its hog operation through 2001.
A bench trial was held on October 29-30, 2003. The trial court made numerous findings of fact, including the following:
1. ADM knew prior to July 21, 1997, and no later than July 7, 1997, that the federal government was concerned that the soybean meal ADM sold in April and May of that year was contaminated.
2. ADM had a special relationship with Beadles based on their past dealings, and based on its knowledge that the soybean meal it sold to Beadles would be fed to hogs and then placed into the food chain for ultimate human consumption.
3. ADM had a duty to disclose to Beadles that the soybean meal it sold to Beadles was alleged to have been contaminated with dioxin, and that Beadles would not have purchased the soybean meal from ADM had it been so informed.
4. The hogs Beadles attempted to sell to IBP were rejected because of the alleged dioxin contamination.
5. Soon after the IBP hogs were shipped, the hogs in the new barn began to have symptoms of salmonella and other diseases; necropsy reports for some hogs indicated as the cause of death salmonella group B, a new strain of salmonella not detected as a cause of death in Beadles’s hogs prior to July 21, 1997.
6. The increase in Beadles’s annual hog-death loss from 1997 through 2001 was “the result of diseases transmitted from hogs that were returned from the July 21, 1997 shipment infecting other hogs in the facility and infecting the facility itself.”
7. ADM’s failure to disclose the alleged dioxin contamination resulted in total damage to Beadles in the amount of $309,371.58.
II. Analysis
We reverse and dismiss because the trial court improperly admitted hearsay evidence regarding IBP’s reason for rejecting the hog shipment, and, absent such evidence, Beadle’s claim fails because no other proof demonstrated why IBP rejected the shipment. The trial court determined that ADM was liable for fraud in failing to inform Beadles that its soybean meal was possibly contaminated. A plaintiff suing for fraud must establish the following: 1) a false representation of a material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) an intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance on the representation; and (5) damage suffered as a result of the reliance. Tyson Foods, Inc. v. Davis, 347 Ark. 566, 66 S.W.3d 568 (2002). Thus, Beadles was required to prove, inter alia, that IBP rejected the hog shipment because it believed that ADM had sold Beadles possibly contaminated soybean meal, and that this rejection caused Beadles’s damages. Yet, because Beadles did not depose anyone from IBP or call anyone from IBP to testify, no direct evidence on that specific issue was obtained from IBP. Instead, Beadles, to its detriment, relied on various hearsay documents to prove its claim.
The first item of hearsay evidence at issue is Exhibit Z, a memo to Beadles dated January 15, 1998, from Larry Bertrand, IBP’s Area Procurement Supervisor. In that memo, Bertrand stated that IBP stopped the shipment of hogs “based on an official notification that Beadles Enterprises may have received feed for their hogs that contained contaminated ball clay.” In addition, Wayne Sr. testified that his son, Wayne Jr., told him about a telephone conversation with someone at IBP, who informed him (Wayne Jr.) that the shipment was being rejected for the same reason. Over ADM’s further hearsay objections, Wayne Jr. also testified as to the substance of his telephone conversation with the IBP representative.
ADM raised hearsay objections to both the admission of Exhibit Z and the testimony regarding the substance of the telephone conversation. The court admitted the evidence for the limited purpose of explaining the subsequent action taken by Beadles but not for the purpose of establishing the truth of what was stated in the memo or in the telephone conversation. We hold that reversal is warranted because the evidence was either inadmissible hearsay, or if it was not, then because Beadles’s claim lacks proof of an essential element: why IBP rejected the shipment of hogs.
Hearsay is an out-of-court statement made by someone other than the declarant that is offered to prove the truth of the matter asserted. Ark. R. Evid. 801(c). Evidence that is otherwise classified as hearsay may nonetheless be admitted for purposes other than to show the truth of the matter being asserted, such as to show a course of conduct or the basis for an action. Piercy v. Wal-Mart Stores, Inc., 311 Ark. 424, 844 S.W.2d 337 (1993). We will not reverse a trial court’s ruling regarding the exclusion of hearsay evidence absent an abuse of discretion. Id. We hold that the trial court abused its discretion in this case in admitting Exhibit Z and the testimony regarding Wayne Jr.’s telephone conversation.
The hearsay statement here, whether in the form of the memo or the testimony, was that IBP rejected the hogs because of the allegation that Beadles had received contaminated soybean meal. The following colloquy illustrates the hearsay error committed by the trial court. After the trial court allowed Wayne Sr. to confirm the accuracy of a report from the federal government through his own personal knowledge, Beadles then moved to introduce Exhibit Z, the IBP memo, as follows:
Beadles’s Counsel: Your Honor, again we would seek to introduce Plaintiff s Exhibit Z, the memo from IBP to Wayne Beadles. And Mr. Beadles, through his own knowledge, confirmed those statements to he accurate, and that is exactly what happened to his hogs.
ADM’s Counsel: I’ll just renew my prior objection, Your Honor. The document is hearsay, and there’s not been adequate foundation that Mr. Beadles has personal knowledge of statements that are contained in the documents.
Beadles’s Counsel: Your Honor, I just got through, he just got through saying they were absolutely accurate and that, in fact, is exactly what happened.
Court: I think that’s what he testified to, let it be received.
(Emphasis added.)
Thus, Beadles sought to confirm that “exactly what happened to [Beadles’s] hogs” was what was stated in the IBP memo and the trial court allowed it to do that, clearly demonstrating that the “truth of the matter” asserted by the evidence was not whether the soybean meal was in fact contaminated, but rather, that the allegation that the shipped hogs had been fed allegedly contaminated feed was the reason that IBP rejected the shipment. Beadles agrees that it was the assertion of contamination itself that caused its animals to be unmerchantable. If the shipment had not been rejected for that reason, then offering evidence of Beadles’s subsequent course of conduct in returning the hogs made no sense. In other words, neither the memo nor the testimony could have been probative unless admitted to prove why IBP rejected the shipment.
Similarly, the trial court erred in admitting Exhibit BB, a list labeled “Soybean Meal Consignees.” Wayne Sr. testified that this list was faxed to him after IBP informed him that Beadles was on a list of purchasers who had bought possibly contaminated feed. ADM objected on the ground of hearsay and lack of foundation because the list contained no information regarding contaminated soybean meal; it merely listed buyers, their addresses, and what appeared to be an amount of soybean meal purchased. The trial court admitted the document for the purpose of explaining why Beadles could not sell his hogs but not for the truth of the matter as to whether Beadles had purchased contaminated soybean meal.
Like Exhibit Z and the testimony regarding Wayne Jr.’s telephone conversation, the only way that the list could have been probative was to prove why IBP rejected the shipment. If the list was not admitted to show that IBP rejected the shipment because Beadles’s name was on the list, then the list was not probative to establish why Beadles could not sell their hogs.
However, reversal is warranted even if the testimony was admitted for a reason other than to establish why IBP rejected the shipment. No one from IBP testified; thus the only evidence that IBP rejected the shipment due to its belief that Beadles’s hogs had been fed contaminated soybean meal was the memo, the testimony regarding the phone call, and the list of ADM’s purchasers. Once this evidence is excluded there is no other evidence to explain why IBP believed that Beadles had fed its hogs allegedly contaminated feed.
Beadles first asserts that the evidence was admissible as reputation evidence, pursuant to Ark. R. Evid. 803(20), which provides an exception to the hearsay rule for reputation of events of general history important to the community or state or nation. It maintains that the memo and testimony regarding the telephone conversation was admissible as proof of ADM’s reputation for selling allegedly contaminated soybean meal.
However, evidence that would otherwise be hearsay is admissible pursuant to the hearsay exception contained within Rule 803 because such evidence is considered to have sufficient indicia of reliability or trustworthiness. See Ward v. State, 298 Ark. 448, 770 S.W.2d 109 (1989). The unsupported testimony of two interested parties and the confirmation of the contents of a hearsay memo by one of those parties, which itself was based on double-hearsay (Wayne Sr.’s statements regarding Wayne Jr.’s hearsay statements about the IBP call) hardly constitutes the type of necessary reliability or trustworthiness required to qualify as a hearsay exception under Rule 803(20).
Additionally, Beadles urges that because Wayne Sr. testified that he could confirm the accuracy of the statements contained in Exhibit Z with his own knowledge, the testimony was properly admitted under Ark. R. Evid. 701, which allows lay persons to offer opinions or inferences if they are rationally based on the perception of the witness. However, Beadles offers no persuasive authority that inadmissible hearsay under Rule 803 constitutes an otherwise admissible opinion or inference under Rule 701.
Beadles lastly points to other documents admitted for the purpose of proving when ADM learned of the allegation that its soybean meal had been contaminated. Clearly, these documents do not prove what IBP knew, when it knew it, or why it rejected the shipment of hogs.
Accordingly, if this evidence was admitted merely to show Beadles’s reasons for its action or course of conduct — why it was unable to sell its hogs and why it returned the hogs to the farm — then no other evidence was offered to prove an essential element of Beadles claim against ADM: that the hogs contracted salmonella group B at the receiving station, where they were stored because IBP rejected the shipment based on its belief that ADM sold Beadles soybean meal that may have been contaminated. It is reversible error for a trial court to admit hearsay evidence when it is the only proof of an essential element of a claim. Eichelberger v. State, 323 Ark. 551, 916 S.W.2d 109 (1996); Taylor v. Samuels, 238 Ark. 70, 378 S.W.2d 200 (1964). As such, the trial court improperly admitted the memo and the testimony regarding Wayne Jr.’s telephone call.
Finally, we do not remand for retrial based on simple failure of proof because once the erroneous evidence is excluded, Beadles’s claim is devoid of proof of an essential element. McAdams v. Ellington, 333 Ark. 362, 970 S.W.2d 203 (1998) (affirming dismissal of a fraud claim where the plaintiff failed to allege facts to satisfy all of the elements of fraud). When the record affirmatively shows that there can be no recovery on remand, we dismiss. Womack v. First State Bank of Calico Rock, 21 Ark. App. 33, 728 S.W.2d 194 (1987). Therefore, we reverse and dismiss the judgment and award ADM costs expended for prosecuting the appeal. Because we reverse and dismiss based on the improper admission of the hearsay testimony, we do not address ADM’s remaining arguments.
Reversed and dismissed.
Vaught and Roaf, JJ., agree.
ADM is the successor company for Quincy Soybean Company, which sold the allegedly contaminated soybean meal to ADM.
According to Beadles’s complaint, ball clay is an anti-caking agent that is sometimes added to soybean meal. Dioxin is a toxic substance that is found in the environment and is unavoidable at background levels. The levels at which dioxin would adversely affect humans has not been identified. However, as noted herein, the issue in this case is not whether ADM actually sold Beadles dioxin-contaminated soybean meal.
ADM removed this case to federal court, but the case was remanded to the Arkansas circuit court because the petition for removal was untimely. | [
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HUMPHREYS, J.
Appellants were remonstrants against the organization of Road Improvement District No. 1, to construct a rock road from Cotton Plant, in Woodruff County, to the Prairie County line, under Act 338 of the General Assembly of the State of Arkansas for the year 1915. They had signed the original petition for the creation of the district, but when the petition was presented to the county court for hearing, they sought to withdraw their names and property from the petition for the following reasons:
First. “That upon a thorough examination of the Act of the General Assembly of the State of Arkansas, No. 338, under which act the said improvement is proposed to be organized, they believe that to construct a road under said act is inexpedient and impracticable and that said act does not contain proper safeguards as to necessary expenses and cost of construction.”
Second. “That also upon further consideration of the proposed matter, they do not believe that it is for the best interest of the people whose lands shall be assessed, to be burdened with additional taxes and assessments.”
Third. “They further state that they believe that the benefits which will accrue from the proposed rock road improvement will not be in just proportion to the expense that will necessarily be incurred in its construction.”
Fourth. ‘1 They further state that it is their opinion that under the act in question there is no limitation to the ultimate cost of the improvement and are therefore unwilling that their lands shall be includéd in the proposed district.”
The county court denied the request of the remonstrants to withdraw from the petition and counted their lands in ascertaining the necessary number of acres to organize the district, and by order established the district. From that order an appeal was prosecuted to the circuit court and the cause there tried by the court sitting as a jury, upon the original files in the county court and upon an agreed statement of fact eliminating all questions in issue except one, which is as follows: “Are the reasons assigned by the parties asking to have their names and lands removed from the petition valid reasons under the law in question?” The circuit court ad judged the reasons assigned insufficient, and affirmed the judgment of the county court establishing the road improvement district. The remonstrants took the necessary steps and have lodged an appeal in this court questioning the correctness of the judgment of the circuit court.
The single question presented by this appeal is whether.the reasons assigned for withdrawing appellants’ names and lands from the original petition are valid reasons.
Under section 2 of Act 338 • of the Session Acts of Arkansas, 1915, any person may withdraw his name from the original petition for the organization of the district upon presenting valid reasons therefor in writing, at the time the original petition is presented to the county court for hearing. The sum total of the reasons assigned for withdrawing their names is that in their opinion the construction of the road will be inexpedient, impractical, burdensome, disproportionate in benefits to the costs, and with no safeguard or limitation on the cost of construction. The reasons assigned might well be made grounds for an attack on the organization of the district by parties not signing it, but are not the character of reasons contemplated by the act for the withdrawal of names from the original petition. Parties signing the petition must consider the questions of expediency and practicability of the improvement; the extent of the burden; the probable benefits as compared with the estimated costs; and the sufficiency of the safeguards and limitations on the cost, before signing the petition. There is no good reason why these matters should not be thoroughly considered by the property owners before signing the petition for the establishment of the district. They could have ascertained the extent of the safeguards and limitations thrown about the construction of the improvements, and could have examined the plat of the district and the estimate of the highway engineer approximating the cost of the improvement before placing their names on the petition. Lamberson v. Collins, 123 Ark. 205.
The construction contended for would enable signers of petitions for the establishment of improvement districts to withdraw their names from the petitions by filing a statement to the effect that they had changed their minds as to the meaning of the act itself; as to the expediency of making the improvements; as to the comparative benefits as related to the costs, and as to the extent of the burden. In other words, the construction contended for would at once place a number of the signers of the petition in the double aspect of petitioners and remonstrants on the questions necessarily involved in, and prerequisite to, the establishment of the district.
We think it quite clear that a property owner who signs his name to the petition can not withdraw therefrom without written application and proof showing valid reasons therefor, which means a sound, sufficient reason — a reason upon which he could support or justify his change in attitude. Certainly an excuse that existed at the time of signing his name to the petition would not be a sound reason for withdrawing his signature. Such a construction would enable a man to play fast and loose; to withdraw his signature and land on a mere change of mind or heart. The word valid must necessarily possess an element of legal strength and force. Inconsistent positions have no legal strength and force. We think the only proper construction to give the words valid reason, in the first clause of section 2 of the act, is to attach that meaning capable of being defended or supported. The only character of reason capable of standing the test in law is some good reason which will justify the change in the attitude of the petitioner, such as fraud, deceit, misrepresentation, duress, etc. The statute is silent as to what reasons were intended. Learned counsel for appellants has cited no authority to aid us except Webster’s definition of the word valid.
Giving full meaning to Webster’s definition of the word valid in the connection used, we think our con struction of the first clause of section 2 of the act clearly reflects the intent of the Legislature.
No error appearing, the judgment is affirmed. | [
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George Rose Smith, J.
This is a child custody case involving the parties’ two daughters, of the ages of ten and seven years. Temporary custody of the children was awarded to the appellant, their father, when he obtained the divorce in May of 1955. This arrangement continued in effect until the present application for a change of custody was heard in May of 1958. The chancellor found that conditions had changed and awarded custody to the appellee, the children’s mother. The appellant was given reasonable rights of visitation and was directed to contribute to the little girls’ support as long as their mother keeps them within the court’s jurisdiction.
The decree is the only part of the original divorce proceeding that appears in the present record. It recited that the defendant had entered her appearance but had made no defense. The court found that the defendant, while still married to the plaintiff, had gone through a marriage ceremony with Melvin C. Smith and had lived with him for three or four weeks. Upon this finding the court granted the plaintiff, who is now the appellant, a divorce on the ground of adultery. In the present proceeding the appellee testified that she had been told that the divorce was final and was under that impression when she married Smith. She says that she did not live with Smith after learning that their marriage was illegal. This testimony is not contradicted in the record now before us.
The appellee was not in a position to take care of the children when the divorce was granted in 1955. She left Arkansas and went with her brother to the state of Washington. The appellant attempted to show that there she lived with a man not her husband, but this proof is so inconclusive as to be hardly worthy of notice.
The appellee and her present husband, M. J. Horton, were married in March of 1956. They say that they worked in Alaska for a year to earn money with which to provide a home for the appellee’s children, if their custody could be regained. Upon returning from Alaska to Washington the couple made a small down payment upon a home, and Horton obtained employment as a mechanic. The Hortons then came to Arkansas so that the appellee could file her present petition. Horton supports his wife’s application, explaining that she is no longer able to have children and that they are anxious to have the little girls in their home.
While Mrs. Horton was away the children were cared for by the appellant. He lives with his uncle, a man of seventy-six, who stays with the children. while Langston is at work. The chancellor commended Langston for having discharged his obligation to the best of his ability, but it was the chancellor’s opinion that the children should be placed in their mother’s care rather than remaining in a home where there is no woman to look after their needs.
We are unable to say that the trial court reached the wrong decision. The appellant undoubtedly is a person of good character, devoted to his daughters, but the same things are true of the appellee, with the exception of such inferences as may be drawn from her 'void marriage to Smith. The trial judge was familiar with the case from its inception, as we are not, and had the further advantage of seeing the parties and hearing the testimony as it was given. He recalled that he had not been exactly satisfied with the original order of temporary custody, but it seemed to be the only arrangement that could be made at that time. Conditions have now changed, since the appellee is able to provide a good home for the children. Carlton v. Carlton, 223 Ark. 870, 269 S. W. 2d 313. It seems evident that the custody would have been awarded to the appellee by the original decree if the present circumstances had existed at that time. We are not convinced that the order appealed from is contrary to the children’s best interests.
In the matter of visitation, however, the decree falls short of effecting complete justice. Apparently the Hortons intend to take the children to Washington, and it is not likely that the appellant, a man of limited means, will be able to exercise there the rights of reasonable visitation that the decree provides. It should, we think, be stated explicitly that the appellant may have his daughters visit him in Arkansas for two or three weeks each summer if he will arrange for their transportation to this state, with the Hortons to bear the expense of the return trip. The appellee shall be required to give a bond to secure her duty to comply with the court’s orders in this respect. There appears to be little ill feeling between the parties, and we assume that they will be able to agree upon the exact terms of the modified decree. If not, the chancellor will enter an order consistent with this opinion.
With this modification the decree is affirmed and the cause remanded.
William J. Smith, J., not participating. | [
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Ed. F. McFaddin, Associate Justice.
At the completion of all the evidence the Trial Court instructed the jury to return a verdict for the defendant; and the correctness of that ruling is the only issue on this appeal. Our rule for testing such a ruling is well established: giving the evidence of the plaintiff its strongest probative force, was a question made for the jury regarding the alleged negligence of the defendant? (Hawkins v. Mo. Pac. Rd. Co., 217 Ark. 42, 228 S. W. 2d 642.) With this rule in mind Ave state the facts in the light most favorable to the plaintiff.
Mrs. Irene Harper, as administratrix, brought this action against the defendants, Missouri Pacific Railroad Company and Gr. C. Brown, engineer, seeking to recover damages for the death of her husband and intestate, Mr. Olan Harper. It Avas established that Mr. Harper, aged 41, left his home near Benton about 3:00 P. M. Saturday afternoon, September 15, 1956, planning to go to a neighbor’s home to place a call about a fishing trip; that Mr. Harper never returned home alive; that at 3:35 A. M. Sunday morning, September 16, 1956 Missouri Pacific northbound train No. 26, proceeding from Benton to Little Bock, struck Mr. Harper and killed him as he was trying to cross the railroad track on the road from Benton to Bauxite. No one witnessed the striking except the engineer and fireman of the Train No. 26. The fireman, Mr. Garland Fisher, testified as to the striking (as abstracted by appellant — plaintiff below):
“As train 26 approached the Benton-Bauxite Crossing I was keeping a lookout ahead. As we approached the crossing, we came around there somewhere around 3 or 4 cars, or maybe it is a little farther, that you can see this before crossing with your straight beam headlight and your oscillating headlight, then when you get two or three cars, straight beam headlig’hts, you can see the whole crossing, and the whole crossing at that time was clear, nothing on it, no cars, no nothing. You could see the whole crossing and this man came out of the shadows or dark and was running on his feet right down the middle of the highway a short distance from the south main track; then we got within a car and a half of the crossing and I picked him up with the oscillating headlight and got the view of the man running; then when we got within a car and a half of the crossing, I shouted to the engineer. ‘ The man is not going to stop ’ and he went to tooting the whistle and raised his hand up to apply the brakes and by that time we had done hit the man. At the time I first saw the man he was running. When I first picked up the man we were somewhere around a car and a half or two cars or three from the crossing. A car is 80 feet. (I picked him up first with the oscillating headlight, but we got up two cars there and the straight beam headlight puts it all on the whole crossing, and it also put it on there before we hit the man but was almost on the crossing.) When I first picked him up with the oscillating headlight he was not over 30 feet from the crossing — that is just an estimate. He was running just as hard as he could run. In my mind I felt that the man knew we were coming and that he would stop, he had plenty of time to stop, either turned up north or south of the track and avoid running out in front of us. When it became apparent he wasn’t going to stop I hollowed at the engineer that the man was not going to stop, and he was blowing the road crossing whistle and he went to tooting it just like when anything is on the track, and when he toots just as fast as he could, put his hand on the — and no more than the snap of your fingers, he had already hit the man. He reached for his brake at the same time. Prom the time I first saw him until it became apparent he wasn’t going to stop it was just the snap of your finger. He almost made it across the crossing. I would say he lacked maybe a step or something like that making it across. He was hit on the engineer’s side. The train is about 3 or 4 cars from the crossing when you can see the whole crossing. That is just an estimate. I looked at the crossing when it first came in view. No one was on or near the crossing at that time. When he came in view of my oscillating lights I saw him. I did not observe any cars passing over the crossing. The weather was clear. The accident occurred at 3:35. I saw the blinker lights at the crossing working as we approached the crossing. I heard the bell ringing on the crossing lights as we went by the crossing. The engineer was sounding his whistle; . . .”
The engineer, Mr. Brown (joined as a defendant in the case), testified as to the striking (as abstracted by appellant):
“No. 26 was a passenger train. It had ten cars. It was the train involved in an accident at the Benton-Bauxite crossing in which Mr. Alan Harper was killed. The train was traveling between 65 and 70 miles an hour at the time it reached Bauxite crossing. As we approached the crossing I was keeping a lookout ahead. I was blowing my whistle and about three car lengths before I got to the crossing or maybe three and a half, my fireman said, ‘"We are going to hit a man’ and I was blowing my whistle for the crossing bnt when he told me I went to blowing short blasts, jnst a warning, just when I got it on I seen the man run, running across the track ahead of me, possibly around 20 feet but by the time I got my brake on I had done hit him. When the fireman told me I was about to hit a man I started blowing short blasts of my whistle and put my brake on but by the time I got my hand to the brake the train struck the deceased. As I approached the Bauxite Crossing I did not observe anything on the crossing. Prom Texarkana to Little Bock my scheduled running time is two hours and 45 minutes. I might have been 10 or 12 minutes late when I reached the Bauxite cross-
The evidence also showed without contradiction: that after the railroad track leaves Benton going toward Little Bock it is a straight track for about 2,600 feet, then the track takes a one decree curve to the left and the curve extends about 3,300 feet; that near the center of this curve (about 1,650 feet from where the curve began) the road from Benton to Bauxite crosses the railroad track; that it is approximately 4,300 feet from the said railroad crossing back to the Benton railroad depot; that at the said railroad crossing there were two red blinker lights on each side of the crossing and also a warning bell; and that the warning bell and all the lights were working at the time Mr. Harper attempted to run across the railroad track in front of the train No. 26. Furthei’more, there was a street light in the locality.
The appellant does not claim that there was any failure by the defendants to comply with the warning board statute (§ 73-717 Ark. Stats.), or the lookout statute (§ 73-1002 Ark. Stats.), or the whistle and bell statute (§73-716 Ark. Stats.), or the headlight statute (73-704 Ark. Stats.), or any other applicable statute: rather, appellant says that this is a common law negligence action and that the applicable rule is contained in the following words found in the case of Zaloudek v. Mo. Pac., 193 Ark. 344, 99 S. W. 2d 567: “. . . the true test of liability was whether the death . . . was the result of the failure of the appellee, in the exercise of ordinary care, to operate its train so as to avoid striking and killing . . . (deceased), under all the circumstances and conditions existing at the time about or near the . *. . crossing”. On the basis of the foregoing statement, appellant urges that a jury question was made on either of two points, which we now discuss :
I. Appellant says: “Whether excessive speed under the circumstances constituted negligence was for the jury.’’ Appellant relies most strongly on the case of Davis v. Scott, 151 Ark. 34, 235 S. W. 407, wherein this sentence appears: “Unusual speed of a train does not, under all circumstances, constitute negligence, and often the Court may declare, as a matter of law, that the maintenance of a high rate of speed under given circumstances does not constitute negligence, but under other circumstances it may become a question of fact for the determination of the jury”. The appellant says that the facts in the case at bar make a question for the determination of the jury. But we cannot see how the speed of the train made a fact question for the jury in the case at bar. The Train No. 26 was a northbound passeng*er train; it was ten to twelve minutes late at the last time station a few miles before striking Mr. Harper. The train was only maintaining its scheduled speed. It was travelling from 65 to 70 miles per hour.
It was shown without contradiction that when the train operators discovered that Mr. Harper was going to try to run across the track in front of the/ train the engineer immediately gave the whistle .for danger and undertook to apply the brakes, but it was shown that the train would travel a considerable distance before there would be any retardation of the speed. Under all the facts here, speed of the train was not what caused Mr. Harper’s death: rather it was his effort to run across in front of the train. If the train had been going much slower, still it would have travelled a considera ble distance before retardation of the speed would have taken effect, so the claim of excessive speed did not make a jury question in this case.
II. The appellant says: “Whether failure to station a flagman at this crossing, in view of the. special dangers arising at this particular time, constituted negligence was for the jury”. It is shown that the crossing here involved was within the city limits of the City of Benton, which has a population in excess of 10,000, and that the road that crossed the railroad track was one of the main traveled roads from Benton to Bauxite. Appellant relies most strongly on certain language contained in Fleming v. Mo. & Ark. RR. Co., 198 Ark. 290, 128 S. W. 2d 986;
“It is the settled rule that whether failure of a railroad company to station a flagman at a crossing constitutes an omission of such care as an ordinarily prudent person would use under the same or similar circumstances, is a question of fact where there are obstructions which materially hinder the view of approaching trains, provided the crossing is used frequently by the public, and numerous trains are run. Inasmuch as permanent surroundings may create a hazardous condition, the rule of care goes further and requires precautions where special dangers arise at a particular time. It is said that the obligation exists, at an abnormally dangerous crossing, to provide watchmen, gongs, lights, or similar warning devices not only for the purpose of giving notice of approaching trains, but such care is to be equally observed where the circumstances make their use by the railroad reasonably necessary to give warning of cars already on a crossing, whether standing or passing, as where a crossing is more than ordinarily dangerous because of obstructions to the view interfering with the visibility of the responsible train operatives, or those approaching the track.”
The evidence in the case at bar fails to show that there was any other person anywhere near the Bauxite crossing at 3:30 A. M. on the Sunday morning when Mr. Harper was struck by the train: the evidence also fails to show that there were any obstructions which could have in any way prevented Mr. Harper from seeing the blinker lights at the crossing; and the evidence fails to show that there was any noise that would have prevented Mr. Harper from hearing the warning bells sounding at the crossing. In the absence of such proof, we see no factual issue to submit to the jury on this point. Of course, there are cases presenting factual situations that would make a jury question as to negligence in failing to have a flagman or guard at crossings; but no such factual situation was shown in the case at bar.
CONCLUSION
We find no facts shown which were sufficient to take the case to the jury under Act No. 191 of 1955 (the governing Act in this case), or any other Act in regard to excessive speed or failure to have a flagman on duty at the time and place here involved.
Affirmed.
We have several cases in which directed verdicts for the defendant have been given, even against the plaintiff’s claim of excessive speed. Some of these are: Tinsley v. Mo. Pac., 189 Ark. 530, 73 S. W. 2d 473; Garner v. Mo. Pac., 210 Ark. 214, 195 S. W. 2d 39; and Walker v. Mo. Pac., 211 Ark. 635, 201 S. W. 2d 768. | [
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J. Seaborn Holt, Associate Justice.
This action involves the ad valorem assessment of real property in Benton County for 1957. The Benton County Assessor, after making up his assessment hooks and an abstract of the assessed property for 1957 (Sec. 84-415 Ark. Stats. 1947) on August 15,1957, filed same with the county clerk of Benton County (Sec. 84-447 Ark. Stats. 1947). The abstract was based on a 10 per cent assessment of the total value of the real property in that county. This total assessor’s value was $8,870,075.00. Following the filing of this abstract the county clerk made out his report in accordance with the assessor’s abstract on October 21,1957, and forwarded same to the State Tax Coordination Division. During all this time the Benton County Board of Equalization was in session, (See Secs. 84-706 — 718 Ark. Stats. 1947) yet the report to the State Commission showed no changes or adjustments made by the Board of Equalization. It further appears that the Equalization Board had made out cards of each individual taxing unit in the county and had mailed notices to each taxpayer of any change in assessment. No report, however, was made to the county clerk until about 2 p. m. November 18, 1957.
Benton County, proceeding under Act 351 of 1949, had employed the A. B. Capers Company to make an independent appraisal of the real estate in Benton County as an aid to the assessor and the Equalization Board in equalizing assessments. Capers’ work of appraisal was completed and accepted by the county as satisfactory. By the third Monday in August the assessor had completed his 1957 assessment on what he believed to be 10 per cent of the fair market value of the real property assessed. Acting on the assessor’s recommendations the County Equalization Board fixed the ad valorem assessment for 1957 at 14 per cent of the fair market value instead of 10 per cent, and completed its work by October 15, on that basis (except as to protests and appeals of certain property owners.) By resolution, on November 18,1957, the Equalization Board had reported to the Arkansas Tax Coordination Divi sion that all assessments had been reviewed and analyzed on the basis of 14 per' cent of the fair market value for the year 1957.
On November 18, 1957, the Benton Quorum. Court, in regular session, adopted a resolution, in.part, as follows: “Be it therefore resolved that the Quorum Court of Benton County, Arkansas, levy the county, municipal and school taxes for the year 1957 upon the assessment of the real and personal property in Benton County, Arkansas, placed thereon by the assessor of Benton County, Arkansas, disregarding the reappraisal of the A. B. Capers Company and the reassessment of the Equalization Board of Benton County, Arkansas.” The Quorum Court then proceeded to levy the taxes for the year 1957 upon the basis of the above resolution.
■On October 16, 1957, appellant, Russell Layne and 193 others filed a representative tax payers suit in the Chancery Court of Benton County challenging the action of the County Equalization Board in reviewing, adjusting and analyzing ad valorem assessments. Deféndants in that suit were the County Clerk, County Judge, County Collector, County Equalization Board and others. Trial on the matter was had and concluded on November 15, 1957, when the Chancery Court sustained defendants’ demurrer on the evidence offered by the plaintiffs and dismissed plaintiff’s complaints with prejudice. In that decree the trial court used this language: “. . . it is the opinion of the court that the plaintiffs have failed to meet the burden of proof . . . have failed to show . . , that the Board of Equalization exceeded its lawful authority; they have failed to show that the Board has done things which it had no right or authority to do under the law.” There was no appeal from this decree.
Following that decree, on November 18, 1957, as indicated, the quorum court met and the first item of business considered was the adoption of the above quoted resolution, which, as indicated, resolved that the quorum court should levy county, municipal and school taxes, upon the assessor’s original assessment, disregarding the assessment of the Equalization Board. It appears that the action of the quorum court above was first questioned by a petition in the county court. In accordance with the prayer of the petition the county court on November 21, 1957, entered its order, holding that the resolution of the quorum court was void, for the reason that it had no authority to interfere with the regular assessment procedures as established by law and ordered the county clerk to proceed to extend taxes “using the assessments made by the assessor as adjusted and equalized by the Equalization Board, applying the millage rates levied by the quorum court.” This order of the county court, on appeal to the circuit court, which examined the order of the county court, also declared the action of the quorum court void. The findings and order of the Circuit Court contained these recitals: “. . . the actions of the Equalization Board of Benton County, Arkansas and their report, consisting of between 18,000 and 20,000 separate calls on individual pieces of real property located in Benton County, Arkansas, set forth on individual call sheets, has been made in substantial compliance with the laws of the State of Arkansas. 3. The court further finds that the 100 per cent value of the real property in Benton County, Arkansas, as established by the Assessor was $88,700,750.00, and that the 100 per cent value of the real property in Benton County, Arkansas, as established by the Equalization Board was $87,919,918.00, and that the Equalization Board’s figures show a total value of property in Benton County, Arkansas of $780,732.00 less than the total value fixed by the Assessor. 4. That the County Assessor used the figure of 10 per cent of the actual value of the real property, which total assessed value amounts to $8,870,075.00, and that the Equalization Board used 14 per cent of the actual value of the real property, which total assessed value amounted to $12,313,714.00. 5. That the action of the Quorum Court on the 18th day of November, 1957, directing that the taxes be collected on the value established by the Assessor of Benton County, Arkansas, was void, . . .” This appeal followed.
For reversal appellant relies on the following points: “1. The court is in error in holding the action of the quorum court on November 18, 1957 to be void. 2. The court is in error in directing the county clerk to prepare and extend the tax books upon the figures as established by the Equalization Board without regard to the order of the quorum court of November 18, 1957.” We do not agree with either of these contentions. They are so interrelated that we consider them together.
It is unquestioned that our legislature has the power as well as the duty to prescribe by law the manner and method in which the value of property should be ascertained for taxing purposes, making the same equal and uniform throughout the state. Section 5, Article 16, Constitution of Arkansas, contains this provision: “All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property from which a tax may be collected shall be taxed higher than another species of property of equal value, . . .” Act 153 of 1955 makes it mandatory on all state and county officials to make a proper valuation and assessment of all property assessed for tax purposes. Should a county fail to perform this duty, as the act directs, then it shall lose a portion, or all, of the state’s turnback as aid to counties, or the taxing units therein. For many years our statutes have provided what is commonly called turnback funds for the use of the counties and subdivisions therein, such funds to be allocated under formulas prescribed. The above Act 153 of 1955, Sec. 12, as amended by Sec. 12 (c) of Act 304 of 1957, directs that each county shall equalize its assessments at 20 per cent of fair market value. However, it is also provided that no funds will be withheld if a county equalized assessments at a rate of 18 per cent of fair market value for 1958. "The primary and decisive question is: was the action of the quorum court (above resolution) void? We hold that it was. The powers of the quorum court aré limited. It does not have the power to change millages voted by city councils (Ark. Constitution Art. 12, Secs. 3 & 4 and Ark. Stats. 19-4501) and school districts (Amendment 40 Ark. Constitution), but its duty is simply to levy without change such millages as voted. This duty is purely clerical and the county clerk is required to extend taxes on the basis of the millages voted by city councils and school districts without reference to levies made by the quorum court on city and school district millages. In other words, the quorum court was without authority to levy millages on any basis other than the assessment of the assessor, as were' equalized and adjusted by the Equalization Board, which completed its work on October 15, 1957. The quorum court does have the power and duty to determine and levy millages for county purposes only (Sec. 17-401 — 409 Ark. Stats. 1947). The latter section was substantially complied with in this case.
We conclude that the judgment must be affirmed. | [
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Sam Robinson, Associate Justice.
Appellee, Mrs. Emma F. Martin, widow of Arthur L. Martin, was awarded compensation under the Workmen’s Compensation Law because of the death of her husband due to silicosis. The Referee, Mr. L. D. Blair, made the award.
The issue here is whether appellant took a valid appeal to the full Commission from the decision of the Referee. The Referee’s opinion was filed February 1, 1957. The time in which an appeal could be taken expired thirty days thereafter. Ark. Stat. § 81-1325. Appellant contends the appeal was perfected; that the secretary for the attorney for appellant deposited in the mail a petition for review properly addressed to the Commission. The trial court held that although there was a presumption that the petition for review had been received by the Commission, such presumption was overcome by other evidence. The trial court prepared a well considered written opinion, in which it is said:
“Under the Arkansas decisions, where a letter was properly stamped and mailed, and was never returned to the sender, it is presumed that it was received, but this presumption may be rebutted. Planters’ Mutual Ins. Co. v. Green, 72 Ark. 305, 80 S. W. 151. See West Digest “Evidence,” heading 71 and cases there cited. See also, cited under same heading, Taylor v. Corning Bank, etc., 183 Ark. 757, 38 S. W. 2d 557; Harper v. Thurlow, 168 Ark. 491, 270 S. W. 607; Dengler v. Dengler, 196 Ark. 913, 120 S. W. 2d 340; W. T. Rawleigh Co. v. Moore, 196 Ark. 1148, 121 S. W. 2d 106; Cady v. Guess, 197 Ark. 611, 124 S. W. 213, and American Fidelity Fire Insurance Co. v. Winfield, 225 Ark. 139, 279 S. W. 2d 836.
“Where a letter, properly and sufficiently addressed and properly stamped, was mailed, there is a presumption of fact, not of law, that the letter was received by the addressee in due course of mail, which presumption ceases to exist, where the addressee denies having received the letter, whereupon it becomes a question of fact whether the letter was written or received. W. T. Rawleigh Co. v. Moore, 196 Ark. 1148, 121 S. W. 2d 106.
“Presumptions give way to reality when facts opposing presumptions are presented, as term ‘presumption’ signifies that which may be assumed without proof or taken for granted and is defined as something asserted as self-evident result of human reason and experience. Gray v. Gray, 199 Ark. 152, 133 S. W. 2d 874.
“To the same effect, see W. T. Rawleigh Co. v. Moore, supra and Travelers Ins. Co. v. Thompson, 193 Ark. 332, 99 S. W. 2d 254.
“Under the cases above cited, it is uniformly held as a presumption of fact, not of law, that where a letter, properly and sufficiently addressed and properly stamped, is mailed, that it was received by the addressee in due course of mail. But the presumption ceases to exist where the addressee denies receiving the letter. In that case it becomes a question of fact whether the letter was received.
“The presumption arising where proof shows a letter properly mailed is not conclusive presumption of law, but a mere inference of fact founded on the probability that the officers of the government will do their duty. Such a presumption can of course be rebutted. Bluthenthal v. Atkinson, 93 Ark. 252, 124 S. W. 510.
“This Court without reservation can accept the evidence of appellant’s attorney and his secretary that a letter dated February 13, 1957 was properly addressed and stamped to the Workmen’s Compensation Commission in Little Rock. Duplicate letters or copies of the original were mailed to other parties. This evidence, of itself raises a presumption, factually, that the letter, evincing a desire to appeal from the award made by the Referee, was received. But under the cases cited, this presumption disappears and is dissolved when the receipt of the letter is denied by the addressee, Workmen’s Compensation Commission.
“Mr. John E. Cowne, Secretary of the Commission, was meticulously cross-examined by counsel for respondents in an effort to show that some error might have occurred upon the part of the employees in the handling and filing of incoming mail; that an error was possible. This form of questioning addressed to Mr. Cowne, resulted in his giving in detail the method and procedure followed in the handling of mail and handling and transmission of legal papers to the proper person or official of the commission . . . The subsequent searches made for the letter requesting a hearing and review by the Full Commission, confirms at least the testimony of Mr. Cowne that the letter actually, and as a matter of fact had not been received.
“The Court does not care to indulge in speculation or conjecture, as to what occurred to the letter, but it is not impossible nor improbable that the letter, when mailed in Fort Smith, before transmission in due course, might have been lost or misplaced. The court prefers, however, to predicate its finding upon the evidence in the record.
( Í
“It is to be regretted that an incident, such as is shown in this case, has occurred affecting the right of review by the Full Commission. A rule by the Commission acknowledging receipt of notices of appeal or for review by registered mail, would eliminate the present unfortunate situation.
‘ ‘ The Court finds and holds under the evidence and record before it, that the Opinion filed October 18, 1957, by the Full Commission should be confirmed.”
"We agree with the opinion of the trial court.
Affirmed.
Harris, C. J., and Ward, J., dissent. | [
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Minor W. Millwee, Associate Justice.
This is an application for a writ of prohibition to restrain the judge of the Second Division of the Pulaski Chancery Court from proceeding further in a suit brought against petitioners by the administratrix of the estate of Beuben W. Bredlow, deceased, and to require said chancellor to transfer the cause to the Pulaski Circuit Court. Petitioners assert that the proceeding pending below is a tort action for the recovery and conversion of personal property, which is not cognizable in equity; that the chancellor had overruled petitioners’ request for transfer to circuit court and, unless prohibited, would proceed with the trial of the case over which the court had no jurisdiction of the subject matter; and that the remedy by appeal is inadequate.
According to the pleadings filed below a herd of cattle owned by Beuben W. Bredlow at the time of his death intestate in November, 1956, was in possession of the petitioners, Edward J. Butkiewicz and Annette Butkiewicz, the latter being a daughter of decedent’s sister. Pursuant to an order of probate court, Bredlow’s widow, as administratrix, first brought an action against petitioners in circuit court for recovery of the cattle together with the increase or the proceeds received by petitioners from the sale or conversion of any of said cattle. After the issues were joined in that action, the administratrix took a non-suit and filed suit in chancery court. The amended complaint in that suit contains the following allegations and prayer for relief.
“2. That at the time of purchase of the said herd of cattle as aforesaid, the cattle were situated on a 160 acre tract of land located at the north end of the Bred-low Farm, which 160 acres had been given in 1953 by the decedent to his mother (Gertrude Bredlow) and sister (Mrs. Lyde Campbell, mother of defendant, Annette Butkiewicz), for and during their lives, with remainder to the bodily heirs of his sister. The decedent’s sister died in about April, 1955, so that as of the date of purchase of the cattle as aforesaid, the 160 acre plot belonged to decedent’s mother for her life with the remainder interest being vested in the defendant, Annette Butkiewicz and her sister, Phyllis Grant.
“3. That the decedent left the cattle on the said 160 acre plot in the custody of the defendants, that the herd experienced normal growth subsequent to purchase as aforesaid, that defendants, plaintiff is informed and believes, have butchered and/or sold during the intervening years some of the cattle for their own use, that some of the cattle died, that in early January, 1958, the balance remaining of the herd was sold, and that at no time have the defendants made or offered to make an accounting to plaintiff for their actions as custodians of the cattle as aforesaid, but to the contrary, the defendants, in pure violation of their fiduciary relationship and responsibility, have refused and continued to refuse to account to plaintiff for the cattle or the proceeds thereof.
“4. That subsequent to the purchase of the cattle as aforesaid, the decedent furnished money, and/or supplies for the maintenance and upkeep of the cattle, that the defendants, plaintiff is informed, represent that they furnished money, labor and/or supplies for such purposes, that the accounting for such mutual contributions extends over a period of approximately thirty (30) months, that the accounting therefor as well as for the cattle which were sold, butchered for defendants personal use, or which died, together with the increase of the herd, is highly complicated, that defendants have violated their fiduciary relationship as custodians of the cattle, that the knowledge of the facts, events and costs with respect to custodianship of the cattle as aforesaid is more particular within the knowledge of the defendants, and that plaintiff has no adequate remedy at law and, further, that this action is brought in equity for the purpose of securing an. equitable accounting between the parties.
“Wherefore, plaintiff respectfully prays that an account be taken of the amount due the estate of R. W. Bredlow for the herd of cattle purchased by the decedent on or about October 1, 1955 and placed in defendants’ custody, for the increase in the herd, for the value of the cattle committed to the defendants own use and/or sold by defendants, for the money, labor and/or supplies furnished by the decedent and by defendants, if any, for the maintenance of the said cattle as aforesaid, for plaintiff’s costs and for such other relief as is meet and proper in the circumstances. ’ ’
After the chancellor entered an order denying a demurrer and motion to transfer to circuit court filed by petitioners, as defendants below, they filed the instant application, for writ of prohibition.
Petitioners earnestly contend that the amended complaint filed by the administratrix states an action at law for the conversion and/or recovery of personal property, which is not within the jurisdiction of the chancery court and is triable as a matter of constitutional right before a jury. It is argued that when the amended complaint is considered in the light of all the proceedings below it clearly constitutes an action at law, “and that the equitable jargon contained therein is sham and artifice intended only to deprive petitioners of a trial in the proper forum and by a jury.” In determining the validity of this argument, we agree that the difficult question is that of the propriety of the remedy by prohibition in view of the recitals of the amended complaint. We have repeatedly held that the writ of prohibition lies where an inferior court is proceeding in a manner beyond its jurisdiction and the remedy by appeal is inadequate, but it may not be used as a substitute for an adequate remedy by appeal. Except in circumstances which are not present here, it is also well settled that the remedy for a refusal to transfer an action to or from a court of equity is by appeal and not by prohibition. Weaver v. Leatherman, 66 Ark. 211, 49 S. W. 977; Dunbar v. Bourland, 88 Ark. 153, 114 S. W. 467; Bassett v. Bourland, 175 Ark. 271, 299 S. W. 13; Richards v. Maner, Judge, 219 Ark. 112, 240 S. W. 2d 6; St. Paul-Mercury Indemnity Company v. Taylor, 229 Ark. 187, 313 S. W. 2d 799.
The following statement by the court in Bassett v. Bourland, supra, has been approved in several later cases: 11 The writ is never issued to prohibit an inferior court from erroneously exercising its jurisdiction, but only where the inferior tribunal is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction. To illustrate: The circuit judge certainly had jurisdiction to pass upon the motion to transfer to equity the case pending in its court. If it erroneously transferred the case to equity, prohibition is not the remedy. It can be corrected only on appeal.” Petitioners say this holding constitutes an erroneous and untenable legal theory which we should reexamine in the light of cases like District No. 21 United Mine Workers of America v. Bourland, 169 Ark. 796, 277 S. W. 546, where a writ was granted to prohibit a court of equity from taking jurisdiction of an action in tort for unliquidated damages. In that case the court said: “The office of the writ of prohibition is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction; but it is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for it has no other protection against the wrong that shall be done by such usurpation. Russell v. Jacoway, 33 Ark. 191; and Monette Road Imp. Dist. v. Dudley, 144 Ark. 169, and cases cited.” The court also approved the following rule from Pomeroy’s Equity Jurisprudence, 3rd ed., Sec. 178: “Where the primary right of- the plaintiff is purely legal, arising either from the non-performance of a contract or from a tort, and the money is sought to be recovered as a debt or as damages, and the right of action is not dependent upon or connected with any equitable feature or incident, such as fraud, mistake, accident, trust, accounting, or contribution, and the like, full and certain remedies are afforded by actions at law, and equity has no jurisdiction; these are cases especially within the sole cognizance of the law.”
At this stage of the proceedings we are unwilling to say that the allegations of the amended complaint present a purely legal action for conversion unrelated to such equitable features as trust and accounting and that it states no ground for the intervention of equity. We decline to overrule the doctrine of Bassett v. Bourland, supra. Under the recitals of the amended complaint the chancery court had jurisdiction to pass on the motion to transfer to circuit court. If it acted erroneously the error may be corrected on appeal, and prohibition is not the remedy.
The writ is denied. | [
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] |
ohn Mauzy Pittman, Chief Judge.
The appellant, Imogene Vogelgesang, was the owner of a checking account at appellee, U.S. Bank. She executed, filed, and recorded a power of attorney in January 1998 to permit her sons to conduct her financial affairs, and delivered a copy of the power of attorney to U.S. Bank. When she discovered in January 2002 that she had no money left in her account, she brought an action against U.S. Bank seeking reimbursement in the sum of $179,304.94 for unauthorized transactions conducted by her son Jerry between April 1999 and December 2001. Asserting that the transactions were authorized by the power of attorney delivered to it by appellant, U.S. Bank moved for summary judgment. The circuit judge agreed and granted summary judgment in favor of U.S. Bank. On appeal, appellant contends that the circuit judge erred in granting summary judgment because the power of attorney did not authorize the transactions. We disagree, and we affirm.
Summary judgment is a remedy that should be granted only when there are no genuine issues of fact to litigate and when the case can be decided as a matter of law. Johnson v. Encompass Insurance Co., 355 Ark. 1, 130 S.W.3d 553 (2003). Our review is limited to a determination as to whether the trial court was correct in finding that no material facts were disputed. Wright v. Compton, Prewett, Thomas & Hickey, P.A., 315 Ark. 213, 866 S.W.2d 387 (1993). In making this determination, we view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Neill v. Nationwide Mutual Fire Insurance Co., 355 Ark. 474, 139 S.W.3d 484 (2003). Where the trial court based summary judgment on a written contract, we must ascertain the plain and ordinary meaning of the language in the written instrument, and if there is any doubt about the meaning, there is an issue of fact to be litigated. Carver v. Allstate Insurance Co., 77 Ark. App. 296, 76 S.W.3d 901 (2002). If the contractual language is unambiguous, however, its construction is a question of law for the court, and no question of fact is presented. See id.
The relevant facts can be stated briefly. Appellant became ill in 1997 and her sons became responsible for her financial affairs, paying bills, overseeing her accounts, and balancing her checkbook. She executed, filed, and recorded a durable power of attorney in January 1998 that contained a provision whereby appellant agreed to indemnify and hold harmless any third party against any and all claims that might arise by reason of the third party having relied upon the instrument, and that provided, in pertinent part, as follows:
TO ALL PERSONS, be it known that I, Imogene Harris Vogelgesang of 4415 Aspen Drive, North Little Rock, Pulaski County, Arkansas 72118 the undersigned Grantor, do hereby make and grant a general power of attorney to William Gerald Vogelge-sang —James Edward Vogelgesang of (W.G.) 1909 Pine Valley Rd, Little Rock, AR 72208 & (J.E.) 804 Carywood Lane, Little Rock, AR 72205 and do thereupon constitute and appoint said individual as my attorney-in-fact.
My attorney-in-fact shall act in my name, place and stead in any way which I myself could do, if I were personally present, with respect to the following matters, to the extent that I am permitted by law to act through an agent:
(A) Real estate transactions
(B) Tangible personal property transactions
(C) Bond, share, and commodity transactions
(D) Banking transactions
(E) Business operating transactions
(F) Insurance transactions
(G) Gifts to charities and individuals other than Attorney-in-Fact
(H) Claims and litigation
(I) Personal relationships and affairs
(J) Benefits from military service
(K) Records, reports and statements
(L) Full and unqualified authority to my attorney-in-fact to delegate any or all of the foregoing powers to any person or persons whom my attorney-in-fact may select
(M) Access to safe deposit box(es)
(N) All other matters
(O) [T]his power of attorney shall not be affected by the subsequent disability or incompetence of the Grantor.
Other Terms:
Agents for my affairs will collaborate on all decisions.
The first-listed attomey-in-fact, William Gerald Vogelgesang, had previously been convicted of theft of property for writing checks without authority on the account of Krishna Corporation, a fact known to appellant at the time she executed the instrument granting a general power of attorney to him. William Gerald Vogelgesang proved unworthy of the trust with which he had been invested, making numerous withdrawals and charges for his own benefit upon his mother’s account with U.S. Bank, and exhausting it by January 2002.
Appellant, in her deposition, testified that she never intended to authorize either of her sons to execute and endorse checks on her behalf. This, however, is contrary to the express authorization granted by the instrument to conduct banking transactions in any way which she herself could do to the full extent permitted to an agent. Furthermore, the wording of the power of attorney executed by appellant in this case complies substantially with the statutory power of attorney set out in Ark. Code Ann. § 28-68-401 (Repl. 2004). In a statutory power of attorney, the language granting power with respect to banking transactions by definition empowers the agent to withdraw by check money deposited by the principal with a financial institution, and to make and endorse checks payable to the principal’s order. Ark. Code. Ann. § 28-68-408(5) and (9) (Repl. 2004). Although appellant may not have subjectively intended to authorize these powers, her subjective intent must yield to the plain meaning of the words employed in the agreement. See Crain Industries, Inc. v. Cass, 305 Ark. 566, 810 S.W.2d 910 (1991); Calvert Fire Insurance Co. v. Francis, 259 Ark. 291, 532 S.W.2d 429 (1976).
On appeal, appellant argues that the transactions conducted by William Gerald Vogelgesang were unauthorized because the contractual term requiring agents for her affairs to “collaborate on all decisions” required that all banking activity be conducted by both agents acting in concert, or that this term was at least sufficiently ambiguous to present a fact-question regarding the authority of a single agent to act. We do not agree.
Where an agency is created by contract, the nature and extent of the agent’s authority must be ascertained from the contract itself. American Agricultural Chemical Co. v. Bond, 177 Ark. 164, 6 S.W.2d 2 (1928). When the terms of a contract are ambiguous and capable of having more than one meaning, extrinsic evidence is permitted to establish intent of the parties, and the meaning of the contract then becomes a question of fact. However, when a contract is free of ambiguity, its construction is a matter of law for the court to determine. Dodson v. Dodson, 37 Ark. App. 86, 825 S.W.2d 608 (1992). The initial determination of the existence of an ambiguity rests with the court. Cranfill v. Union Planters Bank, 86 Ark. App. 1, 158 S.W.3d 703 (2004). A contract is unambiguous and its construction and legal effect are questions of law when its terms are not susceptible to more than one equally reasonable construction. Id. It is also established that different clauses of a contract must be read together and construed so that all of its parts harmonize if that is possible. Dodson v. Dodson, supra.
We find no ambiguity after reading the different clauses of the power-of-attorney agreement together. The first paragraph of the instrument names the two brothers as appellant’s attorney-in-fact. The second paragraph lists the various powers that are granted to each agent and the types of matters in which such agent is authorized to act. The third paragraph deals not with actions but instead with decisions regarding appellant’s affairs, and specifies that both agents must collaborate in making these decisions. Reading these paragraphs together, we think that they unambiguously direct the agents to make decisions regarding disbursements from appellant’s account jointly, while permitting them to delegate authority or act individually with regard to ministerial actions performed in execution of those decisions, such as writing checks. See Venhaus v. State, 285 Ark. 23, 684 S.W.2d 252 (1985).
Finally, appellant stated that, when she delivered the power of attorney to U.S. Bank, she informed the branch manager that her sons were to have “dual power of attorney” and that they would transact all her business for her. To the extent that this testimony regarding appellant’s understanding of the agreement may contradict or vary the terms of the instrument itself, it is precluded by the parol-evidence rule, a substantive rule in the law of contracts requiring the exclusion of prior or contemporaneous agreements of the parties that would vary the express terms of their written agreement. First National Bank v. Griffin, 310 Ark. 164, 832 S.W.2d 816 (1992). The effect of this rule is to extinguish all prior and contemporaneous negotiations, understandings, and verbal agreements on the same subject. Bank of America v. C.D. Smith Motor Co., 353 Ark. 228, 106 S.W.3d 425 (2003).
Affirmed.
Hart, Robbins, Baker, and Roaf, JJ., agree.
Crabtree, J., dissents. | [
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Paul Ward, Associate Justice.
This litigation questions the application of Act 380 of the 1955 General Assembly (Ark. Stats. § 70-701-707) which deals with the price to be charged for milk. Appellant is- the Central Arkansas Milk Producers Association, Incorporated, hereafter referred to as CAMPA, which was created by Act 153 of 1939 (Ark. Stats. § 77-1001-1025). Members of CAMPA are dairy farmers who sell raw milk to processors who, in turn, sell the processed milk to retail grocery stores at wholesale for resale, at retail prices, to ultimate consumers. Appellees are some 6 or 8 retail grocery stores located in Fort Smith.
CAMPA petitioned the Sebastian Chancery Court to enjoin each of the appellees from selling milk at retail at any price below what the milk cost it plus- 4%, thereby seeking to invoke the provisions of said Act 380.
In response to said petition appellees entered demurrers which were sustained by the Chancellor on the ground (a) that said Act 380 does not apply to the sale of milk by retail grocery stores, and (b) that said Act was unconstitutional.
Plaintiff, electing not to plead further, prosecutes this appeal.
The prohibition is directed against persons engaged in processing and distributing milk. The decisive question is: Is a retail grocery store engaged in distributing milk within the meaning of the Act?
(a) A careful analysis of the language used in said Act 380 impels us to agree with the Chancellor’s holding that it does not apply to retail grocery stores. There are several provisions in the Act that cannot be reconciled with any other view. First. Section 1 of the Act contains this language: “However, it is the intention of this Act to prevent any person, firm or corporation engaged in the business of processing and/or distributing milk from lowering its selling price below cost, as herein defined, plus four (4%) per centum, except as hereinafter stated.” It is obvious that the retail grocery stores do not process milk and we do not think they distribute milk in the sense that the word is used in the Act, as we will attempt to show later. Second. Section 2 defines the term “Equivalent competitive prices” as “any legal wholesale or retail price, not less than the minimum prices provided herein, at which fresh fluid milk is sold, advertised, or offered for sale by a competitor who sells not less than five (5%) per centum of the total fresh fluid milk sales in that county” (our emphasis). This clause makes sense only when applying it to the relatively few processors or distributors which would ordinarily be found in any county, but it makes no sense if applied to grocery stores in many counties, such as Sebastian County. It seems unlikely that any one grocery store would ever sell more than 5% of all the milk sold in the county. Third. The Act purports to prohibit the sale of milk for less than cost plus 4%. Section 3 defines the word cost to “include the price the processor or distributor pays the producer . . .” We believe it is common knowledge that in most instances the producer does not sell directly to the grocery store, but to some “middle man” such as a processor or distributor. By this we are persuaded to believe that the framers of Act 380 did not mean for the word distributor to include a grocery store. Fourth. In addition to the above, Section 3 sets out the method of arriving at what constitutes cost. It seems clear to us that this method might reasonably apply to a processor and also to a distributor if the latter refers to a wholesaler of milk as we think it does, but we fail to see how it could reasonably apply to a distributor if that word was meant to include a retail grocery store. Here are some of the items of cost that are included: Labor, rent, interest, depreciation, selling costs, maintenance of equipment (and we know of no special equipment needed by a grocery store in order to sell milk), salaries of officers and executives, transportation, credit losses, all types of permit and license fees, all taxes, insurance, advertising, and all overhead expenses of doing business. Bearing in mind that a retail grocery store sells several hundred different items in addition to milk, we cannot believe the legislature meant for the owner of a retail grocery store to allocate the right proportion of the various expense items to the sale of milk. Fifth. In addition to the foregoing, Section é contains many provisions relating to a determination of cost that could not reasonably be meant to apply to a retail grocery store. Some of these are the allowance of rebates, commissions, discounts, extending certain privileges to certain customers, furnishing free equipment, etc.
Beading Act 380 as a whole and particularly because of many of its provisions as set forth above, we are driven to the conclusion that it was not meant to apply to the sale of milk by retail grocery stores, and consequently does not mean for the word distributor to include such stores.
It is generally recognized in the milk industry as it is now developed that distributors often buy milk from processors and then sell it at wholesale to the grocery stores or deliver it in trucks to the consumer. Thus, a distributor is engaged in a separate and distinct business from that of a retail grocery store.
Appellant attaches much significance to language in section 2 where the Act is made applicable to anyone engaged in the “business of processing and/or distributing fresh milk, either at retail or wholesale.” (our emphasis) However we can see no inconsistency between that language and the view which we have taken. In fact, even under our interpretation, it still could be the purpose of the Act to keep a processor from sell ing below cost plus 4% to the consuming public, hence the use of the necessary language.
(b) The question of the constitutionality of Act 380 has been raised and discussed by both sides, but the conclusion which we have heretofore announced makes it unnecessary for us to render any opinion on it.
We have consistently refrained from deciding constitutional questions unless it was necessary to do so. See: Porter v. Waterman, 77 Ark. 383, 91 S. W. 754 and Com. of Labor, C. R. Thornbrough v. Danco Construction Co., 226 Ark. 797, 294 S. W. 2d 336.
The decree of the trial court is therefore affirmed.
Justice Johnson not participating.
Justices McFaddin and Robinson concur. | [
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Paul Ward, Associate Justice.
In this litigation appellee, J. A. McKelroy, sought to cancel a deed which he executed to his son (and also to cancel subsequent conveyances stemming therefrom including the one to appellant) on the ground of the lack of sufficient mental capacity at the time said deed was executed. From the decee of the Chancery Court cancelling the deeds and restoring the property to appellee, appellant prosecutes this appeal.
After a careful reading of all the testimony relating to appellant’s mental capacity at the time he executed the deed in question we have concluded the trial court’s finding that he did not have the necessary mental capacity is supported by the weight of the evidence.
We have, however, further concluded that the decree of the trial court cancelling the deeds and restoring the property to appellee must be set aside. Our reasons for this conclusion will be discussed hereafter, and in doing so all relevant testimony will be set out. This makes it unnecessary to re-examine separately all the evidence relative to appellant’s mental status at the time he executed the deed to his son. Some of it will be noted as other points are discussed.
We find that, regardless of appellee’s lack of mental capacity at the time he made the deed, he later ratified the transaction at a time when he was capable of doing so.
For a better understanding of the issues, a brief factual background will be helpful. On March 13, 1954 appellee executed a warranty deed to his son, T. F. Mc-Kelroy, conveying Lots 12,14, and 15 of Block 1 of J. H. Smith Addition to Hot Springs; On May 2, 1955 T. F. McKelroy conveyed the same property to his brother, Scotty E. McKelroy, and his wife, and; on February 16, 1956 Scotty and his wife conveyed the same land to appellant, the consideration being $5,600. This sale was negotiated by H. Ward Conde as appellant’s agent wbo is a real estate broker and wbo apparently assisted appellant with her financial and business affairs generally. •
Appellee’s mental history and condition is adequately set forth in a letter, dated June 6, 1957 and admitted as evidence by agreement, written by Dr. Robert G. Carnahan, Assistant Superintendent of the State Hospital. In substance it shows: Appellee was admitted to hospital first time on March 17, 1954 on a Physician’s Statement but was never admitted through a court; He stayed until May 21, 1954 and was released; He was returned to the hospital on June 7, 1954, and conditionally discharged on October 18, 1954; He was returned November 12, 1954 and conditionally discharged again October 18, 1955. He was completely discharged on October 18, 1956 after he had been out of the hospital a year, and; He has had no further trouble and he could be considered competent at the present time. Dr. Carnahan further stated that he considered it unlikely appellee had sufficient mental capacity to understand the nature and effect of business at the time he executed the deed on March 13, 1954. Other medical testimony regarding appellee’s mental capacity is that contained in a letter by Dr. Charles D. Yohe dated June 18, 1957, admitted by agreement. Dr. Yohe’s testimony, based on an examination of appellee three days previously and on reports by Dr. Carnahan, is, in substance: He agrees with Dr. Carnahan that appellee lacked mental capacity to execute the 1954 deed, but that he was now mentally competent. Among other things, his letter states:
“Relative to the situation that he (appellee) is in, he could now be considered sane and competent”; “. . . as one sees him now ... he does think rationally, forms logical conclusions, and his memory is intact”; “He is not senile.”
In view of the above medical testimony and in view of other lay testimony and certain facts to be later noted, we cannot escape the conclusion that appellee had regained normalcy (to the extent of understanding ordinary business transactions) as early as October 18, 1955. Dr. Carnahan stated that, according to the hospital records, appellee was conditionally discharged on October 18, 1955, and that he was completely discharged one year later. It is not shown that he needed or received any treatment during the intervening one year period. Mrs. Johnson said she saw appellee nearly every day for several years, that she saw and talked to him in September of 1956, and that she saw no difference in his conduct and attitude from that of other neighbors. H. Ward Conde testified to many small business transactions with appellee beginning early in 1956, to which reference will be made later.
It is appellee’s actions and conduct during the year 1956 that impel us to conclude he ratified the 1954 conveyance of his property. It is noted that there were three houses on the lots conveyed by appellee and that appellee’s son and his wife lived in one of the houses. After appellee was discharged from the hospital on October 18, 1955, he went to live with this son. The uncontradieted testimony of Conde was that he told appellee that Scotty and his wife had given appellant a mortgage on the property for $1,800 and that appellee’s only reply was “well, those kids shouldn’t do that”. After this, on February 16, 1956 appellant bought the property assuming the $1,800 mortgage and paying Scotty $3,600 in cash, and took a deed from Scotty and his wife. From that time on Scotty became a renter. Scotty’s wife paid the rent of $30 per month to appellant up to April, 1956. It seems that shortly after this time Scotty and his wife moved to Texas, leaving appellee in the house. Following this appellee paid the rent for May, 1956; In June (same year) he paid $23 and $7 on separate occasions; then appellee asked to have the rent reduced, and appellant made a reduction of $5 per month; and after that appellee made rent payments on June 12, August 20, September 26, September 28, October 2, October 18, and October 30, all in 1956. Appellee admits paying rent. Conde testified that ap pellee never said anything about being the owner or about not having to pay rent. It was not until appellee got behind with his rent in a sizeable amount and was threatened with eviction that he employed attorneys and filed this suit on January 11, 1957 to cancel the deeds. We feel that these acts on the part of appellee clearly amounted to a ratification of the deed to his son.
This court has many times held that a person who has regained sanity can ratify his act or deed performed while non compos. See: George v. St. L., I. M. & S. Ry. Co., 34 Ark. 613 at page 626; Eagle v. Peterson, 136 Ark. 72, 206 S. W. 55, and; Brandon v. Bryeans, 203 Ark. 1117, 160 S. W. 2d 205. In this connection we have uniformly held that a deed executed by an insane person is voidable only and not void. See: George v. St. L., I. M. & S. Ry. Co., supra; Langley v. Langley, 45 Ark. 392; Eagle v. Peterson, supra, and Brandon v. Bryeans, supra.
The defense of Ratification should ordinarily be pleaded but it was not done in this case, and that gives us some concern. It seems, however, that this is not a fatal defect under certain circumstances and especially where equities are involved.
In the case of Fairbanks-Morse & Company v. Hogan, 201 Ark. 1114, 148 S. W. 2d 162, where a similar question was presented, the court said: “When appellee introduced evidence which tended to create an estoppel there was no objection, and it cannot be complained of now.” While the above case dealt with estoppel, it must also be pleaded as a defense ordinarily. In Parker v. Jones, 221 Ark. 378, 253 S. W. 2d 342, we said: “Where a case is tried upon an issue not tendered by an answer and evidence is introduced concerning it without objection, the answer will be treated as having been amended to conform to the proof and the sufficiency of the answer may not be challenged on appeal.” Where a waiver was not pleaded in Athletic Tea Company v. McCormack, 159 Ark. 405, 252 S. W. 7, it was stated: “It is true appellee did not interpose the waiver as a defense, in his written answer, but, without objection on the part of appellant, evidence was introduced, and the case tried, upon the theory that appellee had been released as surety because appellant waived the weekly reports required by the contract.5 ’ For holdings to the same effect see: Nance v. Eiland, 213 Ark. 1019, 214 S. W. 2d 217, and Bridgman v. Drilling, 218 Ark. 772, 238 S. W. 2d 645. The reason for the rule seems to be based partly at least on the equitable policy of deciding litigation on its merits, and applies only where there is no objection to the introduction of the questioned testimony. There was no objection made in this case.
We cannot help being impressed by the fact that appellant paid $5,600 for the property to one of appellee’s sons without (as she stated in her deposition) knowing about appellee’s mental condition in 1954. In addition, she has made valuable improvements on the property. It would manifestly be unfair for her to suffer the entire loss if, in fact, appellee ratified the transaction at a time when he was sane and in possession of the pertinent facts.
Since, however, there was no plea of ratification, and since it is possible that appellee would have introduced proof in rebuttal had such a plea been made and will do so if given a chance, we have decided the cause should be reversed and remanded for further development, consistent with this opinion, along the lines indicated. It is so ordered.
Reversed and remanded.
McFaddin and George Rose Smith, JJ., dissent; Harris, C. J., and Robinson, J., concur. | [
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Ed. F. McFaddin, Associate Justice.
This appeal poses the problem of determining the rights, duties, and liabilities of the owners of the mineral estate as related to the owner of the surface estate. It also requires consideration of the wording in the instrument which separated the full fee estate into the two estates of mineral and surface.
Two tracts of land are involved and each has a separate line of title. In Tract No. 1 (NW>4 SE14 Sec. 3) tlie mineral and surface title were separated by an instrument in 1853 and liave never been merged. But no mining lias been done on Tract No. 1 and it is not shown that any will be done. Since this is not a suit for declaratory judgment but a suit for injunction, we dismiss Tract No. 1 from this litigation, but without prejudice to any proceeding should mining be attempted on it.
In Tract No. 2 (NE*4 SE14 Sec. 3 and East Half of Lot 1 of NW14, Sec. 3) there was a united fee title until October 17, 1927, when George Tenney conveyed the minerals to American Manganese Company, and the deed was duly recorded. The mineral interests of the American Manganese Company passed by mesne conveyances to the appellee, U. S. Manganese Corporation, which acquired title in 1956. Tenney continued to own the surface estate from 1927 to 1948 when he conveyed the surface estate to appellant, Clarence O. Benton, by deed which described the conveyed property as:
“The agriculture or surface right to the East Half of Lot One (E%) of the Northwest Quarter (NW14) of Section Three, . . . and the Northeast Quarter (NE14) of the Southeast Quarter (SE%) of Section Three . . .”
Sometime in 1956 the appellee, U. S. Manganese Corporation, as the owner of the minerals, undertook to remove the manganese deposits from the lands last described. It was thoroughly established that such removal could be done only by open pit mining, or strip mining: that is, the removal of the topsoil to a depth of about 20 or 25 feet by bulldozer or other soil moving machinery, and then the removal of the manganese throughout the entire vein. The result of such operations was to put a tremendous overburden on part of the land and to leave deep holes or trenches in the mined portion of the land. Furthermore, appellee will, later, take the overburden soil to some- washing plant to fully retrieve any particles of manganese therein. The practical result of all of these operations is to leave the surface owner with only a “hole in the ground” for his agricultural purposes.
In 1956, when mining commenced on the lands in Tract No. 2, appellee entered into an agreement with Clarence O. Benton whereby he had charge of the bulldozing operations and the removal of the manganese; and for such work, Benton received a stated sum per ton for the manganese ore removed from the lands. The amount that Benton received was deemed sufficient by him to justify the destruction of his surface, so no complaint was registered. Eventually the appellee decided to make other arrangements for its operations, and dispensed with Benton’s services. Thereupon, Benton took steps to prevent the appellee and its employees from entering upon the said lands. Then, appellee filed this suit to enjoin Benton from interfering with appellee’s entry on the lands for the purpose of mining operations. Benton defended the injunction suit by claiming that the complete destruction of the surface estate by the appellee’s operations would constitute an illegal invasion of the agricultural or surface rights. Trial resulted in a decree permanently enjoining Benton et al. from interfering with the appellee’s mining operations; and this appeal ensued.
We thus have for consideration the relative rights, duties, and liabilities of the owner of the mineral estate as related to the owner of the surface estate, and the consideration of the wording which divided the full fee estate into the two estates of mineral and surface. It was contemplated by the conveyance of the mineral estate (the words of conveyance being heretofore copied) that the owner of the mineral estate would have “the right to mine, excavate, and prospect for minerals and ore,” and that the owner of the surface estate would keep the owner of the mineral estate harmless “from liability on account of accident or death to stock of any kind, which might be injured by falling into pits, excavations, etc., on said lands made by grantees or its assigns in mining and prospecting on said property, . . .” Thus it is clear that the opening of pits was contemplated by the conveyance of the minerals and the owner of the surface estate took with notice of such conveyance.
We entertain no doubt that the owner of the mineral estate has the right to dig pits for the removal of the minerals. But, here, the digging of the pits results in the complete destruction of the surface, and the removal of the surface to washing plants leaves the surface owner with nothing but a “hole in the ground” for his agricultural pursuits. The question is whether the owner of the mineral estate is liable for damages for such complete destruction of the surface.
The Court was correct in enjoining the owner of the surface estate from interfering with the owner of the mineral estate; but the Court should have retained jurisdiction to assess the damages which the owner of the surface' estate should recover for such complete destruction of the surface estate. In Carson v. Mo. Pac. RR. Co., 212 Ark. 963, 209 S. W. 2d 97, 1 A. L. R. 2d 784, we were concerned with the mining of bauxite; and Justice Robins, speaking for this Court, said:
“Generally, the operation of mining bauxite is not a subterranean one, but is accomplished by digging of open pits. Sovereign Camp Woodmen of the World v. Arthur, 144 Ark. 114, 222 S. W. 729. Manifestly, such an operation would destroy the value of the land for farming purposes, or any other purpose. To give the contract between appellant and the railroad company the construction asked by appellee we must hold that Carson and the railroad company entered into a contract in 1892, by which the railroad company would have had the right (assuming that the bauxite was to be removed by the open pit method), the day after Carson paid for his farm home, to enter upon it and utterly destroy its value without liability upon the part of the railroad company for damages. Such a construction, under the situation of the parties shown here, would be an extremely unreasonable one. A reservation as broad as the grant is ordinarily void. 26 C. J. S. Deeds, p. 447, § 139.”
In the case at bar, to deprive the appellants — the owners of the surface estate — of any right for damages for the complete destruction of the surface would be to make the conveyance of the surface as a mere nullity. In Western Coal & Mining Co. v. Young, 188 Ark. 191, 65 S. W. 2d 1074, the mining had been done by subterranean tunnels and pillars of coal had been left to support the surface. Later the mineral owner removed the pillars of coal and the surface subsided. The surface owner brought suit for damages which were recovered in the lower Court. In affirming the recovery for damages, this Court said:
“Appellant also contends for a reversal of the judgments because, under the lease from Denning, it had the right to mine and remove the coal without reference to damage it might do to the surface of the lands above. It is true the lease placed no restrictions upon it with reference to damaging the surface in minimi and moving the coal thereunder, and it is also true, as suggested by learned counsel for appellant, that there is no statute in this State requiring the owner of coal interests in lands to leave pillars to support the surface; but, notwithstanding, we are of the opinion that the only true and sound rule is that ‘when the surface of land is owned by one person and the minerals beneath are owned by another, the owner of the minerals cannot remove them without leaving sufficient natural or artificial support to sustain the surface. ’ Such was the rule announced in the case of Western Indiana Coal Co. v. Brown, 36 Ind. App. 44, 74 N. E. 1027, 114 Am. St. Rep. 367. See also Williams v. Hay, 120 Pa. 485, 14 Atl. 379, 6 Am. St. Rep. 719; Noonan v. Pardee, 200 Pa. 474, 50 Atl. 255, 55 L. R. A. 410, 86 Am. St. Rep. 722; West Pratt Coal Co. v. Dorman, 161 Ala. 289, 49 So. 849, 23 L. R. A. (N. S.) 805, 135 Am. St. Rep. 127, 18 Ann. Cas. 750, and cases therein cited: Kistler v. Thompson, 158 Pa. 139, 27 Atl. 874; Earnest v. Corona Coal Company, 212 Ala. 303, 102 So. 445; 1 R. C. L. 395.”
While the Western Mining- case was not a case of open pit mining, it was nevertheless a case of damage caused by destruction of the surface and points to the reason for our present holding. The Western Mining case prevents us from following the Kentucky cases like Buchanan v. Watson, 290 S. W. 2d 40, and the Pennsylvania cases like Commonwealth v. Fisher, 72 Atl. 2d 568. In defending against the injunction, Benton filed a cross-complaint for damage to the land, alleging that the ‘ ‘ estate in said lands will be entirely destroyed and of no value.” The prayer of the complaint was “for all other relief.” We hold that the Trial Court was correct in granting the injunction to prevent Benton from interfering with the appellee in mining the lands; but we hold that the cause should be remanded to the Trial Court in order to assess and award damages to Benton for the complete destruction of the surface shown in this case. It is so ordered.
The following is the language in the conveyance: “Grant, bargain, sell and quit-claim unto the said American Manganese Company and unto its successors and assigns forever, all minerals of any and every kind, mineral rights and mining rights, together with the right to mine, excavate and prospect for minerals and ore, to use and build necessary roads, tram roads, to use water, and with full power of ingress and egress on, over and across said lands for said purposes . .. And grantors herein, their heirs and assigns, hereby agree as part of the consideration of this conveyance to hold Grantee, its successors and assigns harmless from liability on account of accident or death to stock of any kind, which might be injured by falling into pits, excavations, etc., on said lands made by grantees or its assigns in mining and prospecting on said property, and further agree that grantor, ox his assigns, shall pay all taxes assessed against said property in which he owns the surface rights, so long as the surface and mineral rights remain unsevered on the tax books, and shall not permit same to become delinquent for nonpayment of taxes . . .”
The appellants are Clarence O. Benton, Mrs. Lanelle Benton, his wife, and Mrs. W. C. Benton, his mother. Agricultural and surface rights to Tract No. 2 are owned by Clarence O. Benton. His mother owns with him the agricultural and surface righ+s in Tract No. 1. We speak of the appellants as “Benton” since Clarence O. Benton is the active party.
Open pit mining is discussed in 36 Am. Jur., “Mines and Minerals” § 174 et seq. | [
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Hart, J.,
(after stating the facts). It appears from the record that only one of the notes given for the purchase price of the land in question was due at the time the original complaint was filed by the plaintiff on the 10th day of October, 1921, and that the final decree was entered of record on the 22nd day of November, 1922. The deed from the plaintiff to the defendant contained a clause providing that it was agreed that, in default of the payment of either principal or interest of the notes when due, all of the notes should become due and payable at the option of the holder. The notes sued on contain no such clause. Hence it is contended that the action was prematurely brought.
While there is a division of the authorities on this question, it has been set at rest in this State by the decision in Fairbairn v. Pofahl, 144 Ark. 313. It was there held that where a vendor sold land under a contract stipulating that, upon default in payment of two of a series of notes, the entire sum might be declared due, such provision is not invalid as being in the nature of a penalty or forfeiture. So, whatever may. be the rule elsewhere, it may be taken as settled in this State that, though there be no accelerating clause in the notes, an accelerating clause in the contract, whether it be contained in a mortgage or a deed retaining a vendor’s lien, will enable the holder, upon the breach mentioned in such clause, to foreclose for the full amount of the notes.
It is next insisted that the plaintiff was not the holder of the first three notes, because he had deposited them with the Arkansas National Bank as collateral security for a loan obtained from. it.
Now it will be remembered that B>. E. Fallin was made a party to the action at the request of the defend ant, and that he entered his appearance in writing. The Arkansas National Bank was permitted to file its intervention in the action. It asked that the rights of the bank be declared superior to all the parties in the suit, and prayed for a foreclosure of the vendor’s lien to secure the payment of the note executed to it by the plaintiff.
The defendant, on the 21st day of November,-1922, filed an answer to this intervention, in which ■ she' denied the superiority of the lien of the bank, and ásked -that the intervener take nothing as against her. The. defendant also prayed for all other general and equitable- relief to which she might be entitled.
This court has uniformly held that the object of the Code system of pleading is to force a trial -on the merits. Where the pleadings furnish the opposite party with notice of the facts upon which the pleader relies, and the parties, by consent, go to trial upon the issues thus raised, they will be determined by the court and -the rights of the parties settled according to the issues raised by the pleadings and the proof.
In the case at -bar all the parties interested in the transaction in question were before the court aiid asked that their respective rights be determined. Their pleadings stated the facts upon which their respective contentions were based, and, by agreement of the parties, the case was heard upon oral proof. The proof was directed to the issues raised by the pleadings. These issues were decided adversely to the contention of the defendant. The plaintiff and the bank are not contesting with each other as to who is the holder of the notes. Both of them are asking that the vendor’s lien be foreclosed. The defendant would have been fully protected by a payment of the notes under the terms-of the decree, and is not prejudiced in anv manner by the form of the suit. Both the plaintiff and the bank elected to declare all the notes due and to ask for a foreclosure of the vendor’s lien.
Therefore, raider the decision of onr own court as indicated above, with regard to the accelerating clause in the deed, the chancellor was right in entering a decree ’ of foreclosure for the amount of the unpaid purchase money notes.
Another contention made by the defendant is that the notes on their face recite that they bear 10 per cent, interest from date, and that the deed recites that they only bear 8 per cent. The recitation in the deed will be treated as a mistake, for the face of the notes themselves must govern as to the rate- of interest.' The -notes are •the principal thing, and contain the obligation of the defendant. The recitation,of the notes in the deed gives the vendor a lien on the land for the unpaid purchase money. There can be no doubt that the notes sued on are the ones referred to in the deed, and, for- that reason, the recitation in the notes as to the rate of interest must control.
This brings us to a consideration of the merits of the controversy between the plaintiff and the defendant. This is a question of fact, and the plaintiff and the defendant are the chief witnesses in the case. Each flatly contradicts the testimony of the other. The testimony of the defendant is corroborated, to some extent, by two witnesses who testified that the plaintiff was interested with his son, B. E. Fallin, in oil leases in Texas. The plaintiff, however, explained that his interest was only to lend his son money, and that he expected his loan to be protected by the success his son had in his oil ventures. In this respect he is corroborated by two of his other sons, who were in Texas during the time of the transaction involved in this suit, and who stated positively that their father was not interested in the oil ventures except as a lender of money, just as the defendant was interested. In one instance he became one of the trustees to sell a tract of leases comprising 160 acres, by dividing it into tracts of 5 acres each and conveving them to prospective purchasers. The plaintiff claimed that he did this to secure a loan that he had made to his son, and there is no direct evidence in the record tending to contradict his testimony in this respect. According to his testimony, he and the defendant each lent his son, R. E. Fallin, money, and each realized that getting the money back depended upon the success of his oil ventures. He denied in positive terms that the sale of the property in question was pursuant to any understanding or agreement that any money that the defendant had loaned R. E. Fallin was to be credited on the purchase price of the land.
It appears from the record thaf R.. E. Fallin and the defendant contemplated marriage, and it may be that the confidence inspired-by this relation caused the defendant to purchase the property in question for a home for herself and her future husband. In any event, the testimony of the plaintiff and the defendant is in irreconcilable conflict. The deed and notes made a prima facie case in favor of the plaintiff, and the burden was on the defendant to establish her defense to the suit.
The chancellor held against her on the issue of fact raised by her answer and cross-complaint, and it cannot be said that his finding is against the preponderance of the evidence.
Therefore, under the settled rules of practice in this court, the findings of the chancellor will not be disturbed on appeal, and the decree will be affirmed. | [
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Hart, J.,
(after stating the facts). The main reliance for a reversal of the judgment by counsel for the defendant is that the court erred in giving instruction No. 1 at the request of the plaintiff. The instruction is as follows:
“No. 1. If you believe from the evidence that the grade fixed at Kansas City upon the oats involved in this lawsuit was so erroneous or so far from the true grade as to be the result of a gross mistake, your verdict will be for the plaintiff.”
It will be noted by reading the contract, which we have copied in our statement of facts, that the parties have agreed upon an inspection at Kansas City, Mo., on the grades and the weights. According to the terms of the contract, when that inspection determined that the oats were of the quality ordered, the plaintiff became bound by its agreement to áceept and pay for them at Little Bock, Ark.
Counsel for the defendant claimed that the instruction was erroneous because the mistake which will justify an impeachment of the grain inspector’s decision is not mere error of judgment, but is the kind of mistake which amounts to fraud. They rely upon the-principles of law decided by this court in the following cases: Hot Springs Ry. Co. v. Maher, 48 Ark. 522; Ozan Lumber Co. v. Haynes, 68 Ark. 185; Carlile v. Corrigan, 83 Ark. 136, and Lanier v. Little Rock Cooperage Co., 88 Ark. 557, and other cases of like character.
In the first cited ease it was held that, where parties agree that all questions relating to the quality, quantity or manner of construction of work to be done shall be decided by an engineer in charge of the work, and that his decision shall be final and conclusive, his decision cannot be questioned by either party except for fraud or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment. The court said that the instructions were misleading and prejudicial because they did not tell the jury that the errors or mistakes which would avoid the decisions or estimates of the engineer must have been so gross or of such nature as necessarily implied bad faith upon the part of the engineer.
In the application of this principle in the second case cited, the court said that the same rule would apply in case of an agreement for scaling lumber, and held that the correctness of the scaling may be impeached by cor-. rect scaling elsewhere, but that evidence must be sufficient to show fraud or such gross mistake as would1 necessarily imply bad faith or a failure to exercise an honest judgment.
The instruction under consideration is erroneous and prejudicial because it fails to tell the piry that the mistake must be of such a character as to show fraud or bad faith in the inspection of the grain. The omission of the court in this respect is emphasized by instruction No. 2, which was asked by the defendant and given as modified by the court. The instruction as modified is as follows:
“You are instructed that the burden of proof is upon the plaintiff in this case; that is to say, it must establish the allegations of its complaint by a preponderance of the evidence; and that, even though you may find that the oats in question were by mistake graded by the inspector at Kansas City as No. 3 white oats, nevertheless, unless you further find from a preponderance of the evidence that said oats were No. 4 white oats, and that the said inspector by mistake misgrad'ed said oats as No. 3 white oats, then your verdict must be for the defendant.”
The modification of the instruction by the court consisted in eliminating from it the submission of fraud or bad faith of the inspector at Kansas City in grading the oats. The error thus committed was material and must be considered as ground for reversal because, under the testimony for the defendant, the inspection at Kansas City was honestly and correctly made. According to the testimony of the defendant, the inspection was correctly made under the contract, and no bad faith could be imputed to it in any respect whatever.
In view of another trial, we do not pass upon the legal, sufficiency of the evidence to support a verdict for the plaintiff.
For the error in giving instruction No. 1 for the plaintiff and in giving instruction No. 2, as modified, the judgment will be reversed, and1 the cause remanded for a new trial. | [
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Smith, J.
Appellant was indicted for murder in the first degree, alleged to have been committed by shooting Ed Twitty, and was convicted of voluntary manslaughter and given a sentence of five years in the penitentiary, , and, to reverse that sentence, has appealed.
This killing occurred in the latter part of July, 1923. It appears that, in the early part of 1923, Twitty had shot and killed appellant’s father, and there was testimony that thereafter appellant became moody and constantly brooded over this tragedy, and was much affected by it. There was testimony that thereafter appellant neither slept soundly nor ate regularly, and the defense interposed was that appellant had become of unsound mind.
After hearing the instructions of the court and the argument of counsel, the jury retired to consider its verdict, and thereafter returned into open court and, through the foreman, asked the following question: “The foreman: We want an instruction as to the sentence to the reformatory school — whether we have any jurisdiction as jurors.” To this question the court gave the following answer: “The court: You have not the power to sentence him to the industrial school. Should you convict him and assess his punishment at imprisonment in the penitentiary, the court has the power to sentence him to the industrial school.” Appellant, at the time, objected to the question of the jury, and excepted to the answer of the court.
Thereupon, according to the recitals of the record, “the jury again retired to consider their verdict, and thereafter returned into open court” a verdict finding appellant guilty of manslaughter and assessing his punishment at five years in the penitentiary.
Upon reading the verdict, counsel for appellant requested a poll of the jury, and this was had. Counsel then asked to be allowed to inquire of each juror whether he would have returned a verdict of guilty if the court had not informed the jury that, if a conviction was returned, the defendant would be sentenced to the industrial school by the court. But the court refused to permit the jurors to be thus interrogated. It will be observed, from the question and answer set out above, that the court did not advise the jury that appellant would be sentenced to the industrial school, but only that the court had the power to do so.
The court properly refused to permit the question to be asked the jurors, as the statute prohibits jurors from thus impeaching their verdict. Section 3220, C. & M. Digest; Capps v. State, 109 Ark. 193; Lemons v. State, 155 Ark. 59; Arnold v. State, 150 Ark. 27; Lamb v. State, 135 Ark. 275.
No error was committed in answering the question asked by the jury. As we have pointed out, the court did not tell the jury that the defendant would be sent to' the industrial school, if convicted, but that it was within the power of the court to sentence him to the industrial school if he were convicted; and this is the law.
The case is unlike the cases of Pittman v. State, 84 Ark. 292, and Bird v. State, 154 Ark. 297. The convictions in those cases were reversed because the court, in each case, erroneously declared the law to be that appellant’s sentencé, if convicted, would be served, in any event, in the reform school, and not in the penitentiary.
The record in the present case is like that in the case of Freeman v. State, 156 Ark. 592, where the jury asked to be advised what the law was in regard to the sentence of felons under eighteen years of age. In that case the court read the statute; in this case the court answered the question by a correct statement of the law. In the Freeman case, above, we said, in referring to the Pittman case, supra, that “it was held in the case cited, and in later decisions that it is error to give incorrect information to the jury as to the substance and effect of this statute. It will be observed from the recitals in the bill of exceptions in the present case that the court did not volunteer the information on this subject at all, but merely read the statute to the jury when so requested, and read it correctly. We think there was no error committed by the court in this respect. ’ ’ see also Bohanon v. State, 160 Ark. 431.
Counsel complain that the court charged the jury on the law of manslaughter. It appears, however, that no objection was made to the instruction when it was given, and that the motion for a new trial did not assign this as error. Moreover, we have repeatedly held that this was not error of which the defendant conld complain. Johnson v. State, 156 Ark. 459; Freeman v. State, 150 Ark. 387; Webb v. State, 150 Ark. 75; McGough v. State, 113 Ark. 301; Roberts v. State, 96 Ark. 58.
No error appearing, the judgment is affirmed. | [
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Humphreys, J.
This is an appeal from a judgment in the sum of $250 rendered against appellant in favor of appellee, in the circuit court of Madison County, in a suit between them wherein appellee claimed damages in the sum of $1,160 on account of an alleged fraudulent sale of $400 of stock in the Bank of Richland to him by appellant. He alleged he was induced to buy and pay $1,160 for the stock, upon false and fraudulent representations made by appellant, to the effect that the value of the stock was $1.90 on the dollar, or ninety cents above par; that the stock earned a dividend of 36 per cent, on the dollar during the year 1919; that it would earn a dividend of 40 per cent, during 1920; and that said hank was in good condition.
Appellant filed an answer denying the allegations of false and fraudulent representations.
The cause was submitted, and, at the close of appel-? lee’s testimony, appellant moved for an instructed verdict in his favor, which was refused by the court. The refusal of the court to peremptorily instruct the jury as requested is urged as reversible error. In other words, it is contended that, under the law applicable in the case, the proof is insufficient to support the verdict and judgment.
The general rules of law applicable in cases of' this character were well expressed by Mr. Justice Fraubnthal in the case of Hunt v. Davis, 98 Ark. 44, in the following words:
“If a representation is made by the seller which he knows to be false, it will constitute fraud, but a representation will also be fraudulent, even if he had no knowledge whatever, if it is made of a matter as truth of personal knowledge. Cooper v. Schlesinger, 111 U. S. 148; Kountze v. Kennedy, 147 N. Y. 124; Cole v. Cassidy, 138 Mass. 437.
“While, ordinarily, statements of the value of property are mere expressions of opinion upon which a purchaser is not entitled to rely, yet statements of fact which affect the value of the property, if false and made for the purpose of inducing the purchaser to rely thereon, are false representations, which will constitute fraud in law. False statements made of material facts relative to the property or condition of a corporation which necessarily affect the value of the stock of such corporation are not mere expressions of-opinion upon which a purchaser of such stock has no right to rely, but they are representations which will constitute fraud if by means of such misrepresentations the purchaser has been induced to buy suela stock. Clark & Marshall, Private Gorp. § 616b; 20 Cyc. 60.”
Appellant seeks to avoid the application of these principles of law in the instant case, for the alleged reason that the representations were' mere expressions of opinion, made in good faith.
Relative to the question of good faith there is testimony in the record from which the jury might have reasonably inferred that, at the time of the sale of the stock by appellant to appellee, he knew the bank was not in good condition and that it had not really earned a dividend of 36 per cent, during the year of 1919, viz.: the persistence with which appellant pressed the sale, the fact that he was a director and president of the bank, the short time after the sale of the stock until the failure of the bank, the extent of the insolvency of the bank when it did fail, and the irregularities in the conduct of the business.
Bearing upon the question of appellant’s good faith, appellee testified that he admitted to him, after the failure, that his son, Alfred Bell, who had' worked in the bank during the years 1917 and 1918, told him that something was wrong with the bank, and advised him to get out. However, under the rules of law announced above, it was not -necessary for appellee, in order to prevail in his case, to show that the misrepresentations were knowingly made. It was enough for him to show that appellant asserted the misrepresentations to be true of his personal knowledge; that he made them with intent to have appellee act upon them to his injury, and that they had that effect.
On the 10th day of February, 1921, when appellant sold appellee the stock, he was a director and president of the bank, or had been for several years. Appellee had owned one hundred dollars of the stock for about four years, but had never been a director or officer in the bank. Appellant’s son, Alfred Bell, who was a stockholder, worked as bookkeeper for the bank for about ■six months during the years 1917 and 1918, and after that, a day or so at a time, whenever the cashier was away. The bank was .small. Its capital stock was $10,000, and only $6,200 of the stock had been subscribed. The cashier wrecked the bank by withdrawing the funds in excess of the subscribed capital stock for the purpose of speculation. These withdrawals were for considerable sums, at intervals covering a part of a year or more prior to the failure. The bank failed, and was taken over by the Bank Commissioner of Arkansas on April 27, 1920, a little over two months after the sale of the stock by appellant to appellee. After assessing 100 per cent, against the stockholders, only enough was realized out of the assets to pay the creditors seventy cents on the dollar.
With reference to the sale and purchase of the stock, appellee testified, in substance, that appellant tried to sell him the stock on six or seven occasions; that on or about the 10th day of February, 1920, he stopped at appellant’s home and found him in conversation with Henry Ware; that he sent his little boy in the house for a certificate of deposit of $20 representing a part of the 36 per cent, dividend which had been declared on the $100 certificate of stock owned by him (appellee); that he handed him the deposit slip and remarked, “You see what the stock earned last year;” that the dividends declared in prior years had all been placed in the stockholder’s surplus; that on prior occasions, when trying to sell him stock, appellant had said to him that the bank would have to have a vice-president; that he then proposed to sell him, appellee, $400 and Henry Ware $500 of stock owned by him, at $1.90, stating that it was worth $1.95 on the dollar; that it had earned 36 per cent, during the year 1919 and would earn 40 per cent, during the year 1920; that the only reason it did not earn 40 per cent, during the year 1919 was because they had declared a dividend before all the interest due the bank had been collected; that the bank was in good condition; that the hank was insured against everything that a bank could be insured against; and that Earl Hill, the cashier, was under bond for good behavior; that if they - bought the stock the bank would elect him (appellee) a director and Harry Ware vice-president; that he would stand behind the stock for a year if they would agree to give him all over 8 per cent, the stock earned; that, in reliance upon appellant’s statement that the bank was in good condition and that the stock was gilt-edge and of the value of $1.90 on the dollar, he paid appellant $760 for a $400 certificate of stock, and, when the bank failed, was required to pay the 100 per cent, assessment thereon, or an additional $400 to the Bank Commissioner, making a total of $1,160 he. was out on the purchase of the stock. The testimony given by appellant was corroborated in the main by that of Harry Ware, and by a number of circumstances in the case.
The testimony introduced by appellant contradicted that introduced by appellee at the salient points, but it is unnecessary to detail the substance thereof, as the question to be determined by this court on appeal is whether there was any substantial evidence of a legal nature to support the verdict. The testimony, set out in substance above, which was introduced by appellee, is ample to support the verdict and judgment upon the theory that,- to entitle appellee to recover, it was only necessary for him to show that appellant misrepresented the financial condition of the bank and value of the stock to him, with intent to induce him to purchase same to his injury, and that it had that effect, even though ignorant of the condition of the bank and the value of the stock at the time he made the representation. The issue as to whether appellant misrepresented the condition of the bank and the value of the stock with such intent, was submitted to the jury under correct declarations of law.
Appellant makes the further contention that the court erred in giving instructions Nos. 6 and 7, upon the ground that they were abstract. Proof was intro dueed tending to show the solvency or insolvency of the bank on the day the stock was sold, and so instruction No. 6 was not abstract, as it related to that issue in the case. Proof was also introduced pro and con as to whether appellant had knowledge of the bank’s insolvency at the time of the alleged sale, gained from other sources than the bank’s records, and, as instruction No. 7 related to that feature of the case, it was not abstract.
Appellant’s next insistence for a reversal of the judgment is that the court erred in admitting the testimony of Joe G-oolsby, to the effect that, prior to the sale of the stock, the Bank of Richland had allowed, the St. Louis clearing-house to protest two of his cheeks when he had money on deposit in said bank with which to pay the checks. This irregularity in the conduct of the business by the cashier was called to the attention of appellant at the time, and we think it admissible as a circumstance tending to show that he knew something was wrong with the manag’ement of the bank.
Appellant’s next and last insistence for a reversal of the judgment is that the court erred in admitting the testimony of Oreen McCoy, to the effect that, after the failure of the bank, Mr. Bell told him that he had tried to keep Mr. Hall quiet so that they could arrange the affairs of the bank so that everything would be all right. We think this testimony is also admissible as a circumstance tending to show appellant’s knowledge of conditions that existed in the bank at the time he disposed of the stock in question.
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Hart, J.,
(after stating the facts). Each of the policies of insurance sued on was issued by the defendant on the 29th day of May, 1918, and the insured, Bur-rel A. Cranford, died on the 6th day of January, 1919. Proof of death- of the insured was given to the defendant by the wife, who was the beneficiary in each policy. Payment was refused by the company on the ground that the insurance had been procured -by false representations of a material character which had been made by the insured in his application for the purpose of procuring the policies of insurance.
No answer was filed to the present suit within one year after the date of the insurance policies, and no suit has been brought by the insurance company to set aside the contract of insurance because it had been procured by fraudulent representations on the. part of the insured.
Thus it will be seen that the sole issue raised by the appeal depends upon the construction to be given the incontestable clause, which is set out in full in our statement of facts. In substance it provides that the policies shall be incontestable after one year, if the-premiums are duly paid, except for the violation of the provision relating to military or naval service in time of war. The modern rule is that a life insurance policy containing a provision that it shall be incontestable after a specified time cannot be contested by the insurer on any ground not excepted in that provision. It is said that the practical and intended effect of such a stipulation is to create a short statute of limitations. By the stipulation, the insurance company agreed that it would take a year to investigate and determine whether it would contest the policies of insurance, and that, if it failed within that time to discover any grounds for contesting the same, it would make no further investigation and would not thereafter contest the validity of the policies.
It has been uniformly held that a provision of this kind is valid where the time allowed for the investigation is a reasonable period. Policies of insurance are prepared by the insurance companies, and the insured has no voice in their preparation. Clauses of this kind are evidently inserted in insurance policies by the insurer for the mutual advantage of both the insurer and the insured. It has been well said that such a provision is reasonable and proper because it gives the insured a guaranty against expensive litigation to defeat his policy after the lapse of the time specified, and at the same time gives the company a reasonable time and oppor tunity to ascertain whether the contract should remain in force. Such a stipulation is not against public policy as tending to put fraud on a par with honesty. On the contrary, the stipulation recognizes fraud and all other' defenses, but provides a reasonable time in which they may be, but beyond which they may not be, established. Therefore it is in the nature of and serves a similar purpose as a statute of limitations, the wisdom of which has been universally recognized.
As said by Judge Mitchell in Mareck v. Mutual Reserve Fund Life Assn., 62 Minn. 39, an- incontestable clause is inserted in the contract by the company itself and is written there for a purpose. After holding such a stipulation to be valid, the learned judge said: “To the layman the present contest would, as plaintiff’s counsel suggests, appear very much like a contest over an incontestable policy.” Numerous other eases from the various courts of last resort in the United States are cited in a case note to 6 A. L. E. at p. 453. Among these we cite the following: Arnold v. Equitable Life Assur. Soc., 228 Fed. 157; Great Western L. Ins. Co. v. Snavely, 206 Fed. 20, 46 L. R. A. (N. S.) 1057; Dibble v. Reliance L. Ins. Co., 170 Cal. 199, Ann. Cas. 1917-E, p. 34; Prudential Ins. Co. v. Lear, 31 App. D. C. 184; Massachusetts Ben. Life Asso. v. Robinson (Ga.), 42 L. R. A. 261; Weil v. Federal L. Ins. Co. (Ill.), Ann. Cas. 1915D, p. 974; Indiana Nat. L. Ins. Co. v. McGinnis (Ind.), 45 L. R. A. (N. S.) 192; Kansas Mut. L. Ins. Co. v. Whitehead (Ky.), 13 Ann. Cas. 301; Mutual L. Ins. Co. v. New (La.), 27 L. R. A. (N. S.) 431; Reagan v. Union Mut. L. Ins. Co. (Mass.), 2 L. R. A. (N. S.) 821; Harris v. Security L. Ins. Co. (Mo.), Ann. Cas. 1914C, p. 648; Drew v. Metropolitan L. Ins. Co. (N. J.), 75 Atl. 167; Wright v. Mutual Ben. Life Assn. (N. Y.), 6 L. R. A. 731; American Trust Co. v. Life Ins. Co. (N. C.), 92 S. E. 706; Murray v. State Mut. L. Ins. Co. (R. I.), 53 L. R. A. 742; Metropolitan Life Ins. Co. v. Peeler (Okla.), 6 A. L. R. 441; Supreme Lodge of Knights of Pythias v. Overton (Ala.), 16 A. L. R. 649; Philadelphia L. Ins. Co. v. Arnold (S. C.), Ann. Cas. 1916C, p. 706; Clement v. New York L. Ins. Co. (Tenn.), 42 L. R. A. 247; and Patterson v. Natural Premium Mutual L. Ins. Co. (Wis.), 42 L. R. A. 253.
That too is the effect of a recent holding of the Supreme Court of the United States in Mutual Life Insurance Company v. Hurni Packing Company, 260 U. S. 712. In that ease the court said that, while the contract of insurance is with the insured, nevertheless it is for the use of the beneficiary, and that there is no reason to say that the incontestable clause is not meant for his benefit as well as the benefit of the insured. The court further said that it is for the benefit of the insured during his lifetime, and upon his death immediately inures to the benefit of the beneficiary. In that case it was contended by the petitioner (the insurance company) that, if the insurer died during the period of the time mentioned in the incontestable clause, that clause is not applicable. On this point the learned judge said: “In order to give the clause the meaning- which the petitioner ascribes to it, it would be necessary to supply words which it does not at present contain. The provision plainly is that the policy shall be incontestable upon the simple condition that two years shall have elapsed from its date of issue; not that it shall be incontestable after two years if the insured shall live, but incontestable without qualification and in any event.”
Counsel for the insurance company in that case cited Jefferson Standard Life Ins. Co. v. Smith, 157 Ark. 499, to sustain his view. The Supreme Court of the United States said that the incontestable clause under review in that case was unlike the one passed on by it. There the clause was, “after this policy shall have been in force for one full year from the date hereof, it shall be incontestable,” etc. The Supreme Court of the United States said that the decision seems to have turned on the use of the words, “in force,” which contemplated the continuance in life of the insured' during that year. Without approving or disapproving the distinction, we are content to place our decision in the case at bar upon the uniform current of authority upon the question, including the decision of the Supreme Court of the United States. It is to the advantage and convenience of both the insured and the insurer that there should1 be uniformity in policies of insurance, both in form and in the interpretation of the language used in the policies.
The insurance policies sued on were issued on the 29th of May, 1918, and the suits were brought on the 27th of May, 1919. On June 26, 1919, the defendant filed answers to the complaints. Hence it is contended by the defendant that, inasmuch as the suits were filed within a year after the date of the issuance of the policies and the defendant answered within the time allowed to do so under the statute, the allegations of its answer related back to the date of the filing of the complaints, and constituted a contest by it within the period of time named in the incontestable clause.
The forms of insurance policies are prepared by the company, from its previous knowledge and experience, and, where the language used is ambiguous hr doubtful, it must be given the strongest interpretation against the insurer which it will reasonably bear. Eminent Household of Columbian Woodmen v. McCray, 156 Ark. 300.
We have already seen that the incontestable clause is held valid, not for the purpose of upholding fraud, but for the purpose of shutting off expensive and harassing defenses based upon fraud after the lapse of a reasonable time. This view does not exclude consideration of fraud, but allows the parties to fix by stipulation the length of time within which the fraud of the insured can operate to deceive the insurer. Incontestable means not contestable. A contest, in law, implies an adversary proceeding in which matters in .controversy may be settled by the courts upon issue joined. The great body of policyholders are persons who are not learned in the law and who have no knowledge of the judicial construction of pleadings.
In the application of the rule just announced, we think the natural and most reasonable view is to hold that the insurer has not contested the policy until it has acted in the premises. The contract provides that the policy shall be incontestable after one year, and no action on the part of the insured or of the beneficiary can relieve the company of its duty to act. In order to contest the policy it was required to file an answer to the suit brought by the beneficiary within one year, or to have instituted an action of its own in equity to cancel the policy on the ground of fraud. In short, we are of the opinion that, construing the clause in the light most favorable to the insured, no contest was. made in the case at bar until the insurance company filed an answer, in which it averred that the contract should be set aside on the ground of the fraud of the insured in procuring it. Having waited until a year had elapsed before it elected to contest on this ground, the company is barred of relief under its own contract.
The judgment will therefore be affirmed. | [
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Wood, J.
The appellant instituted this action against the appellee to recover the sum of $1,312.83. It alleged that this was a balance due on the premium for a policy of employer’s liability insurance issued by the appellant to .the appellee. The appellee, in its answer, admitted the issuance of the policy and its acceptance by the appellee, but denied that it was indebted to the appellant in the specific sum claimed. It alleged, by w.ay of set-off or counterclaim, that the policy of insurance set up in appellant’s complaint was issued to the appellee to indemnify and protect it against loss on account of personal injuries that might be suffered by its servants and employees; that, while the policy was in force, one Barker, an employee of the appellee, in the performance of his duties sustained an injury resulting-in the loss of his eye; that it was necessary to provide him with hospital accommodations and nurse’s attention and to furnish him with necessary funds to meet incidental expenses while he was out of employment as a result of his injury; that appellee furnished to Barker for such purposes the sum of $829.09, all of which, except $50, was furnished for medical attention, nurse’s attention -and hospital fee. It alleged that' on whatever amount might be found due the appellant, if any, should be credited the sum of $829.09, and prayed that.it have judgment against appellant for that sum.
The appellant replied to the counterclaim, and denied all of its allegations.
At the trial the policy of insurance issued by appellant to the appellee was ■ identified and introduced in evidence. It developed that there was no issue as to the amount of premium due by the appellee to the appellant on the policy. It was also undisputed that Barker, an employee of the appellee, had been injured during his employment by the loss of an eye, and that appellee had expended the sum of $739.85 for medicine and medical treatment furnished Barker, so the only issue.presented was whether or not the appellant was liable under its policy to ¡the .'appellee for the sum thus expended.
The policy indemnified the appellee “against loss arising or resulting from claims upon the assured for damages on account of bodily injuries accidentally suffered or alleged tó have been suffered, while this policy is in force, by any employee or employees of the assured * * * by reason of the operation of the work of the assured.” The policy contained, among other conditions, the following: “Condition C. The assured; whenever requested by the company, shall aid in securing information and evidence, and the attendance of witnesses, and in effecting settlements, and in prosecuting appeals, but the assured shall not voluntarily assume any liability, either before or after an accident, nor shall he (without the written consent of the company previously given) incur any expense or settle any claim, except at his own cost, nor interfere in any negotiations for settlement or in any legal proceedings conducted by the company on account of any claim; except that the assured may provide, at the time of the accident (and at the cost of the company), such immediate surgical relief as is imperative.”
Indorsed on the policy as a “rider” thereto and expressly made a part thereof was the following: “In consideration of the reduced premium charged for this policy, it is hereby understood and agreed that this policy shall not cover the cost of immediate surgical relief referred to in condition C, anything in the policy to the contrary notwithstanding.
“Nothing herein contained shall be held to vary, waive, alter or extend any of the terms, conditions, agreements or declarations of the policy, to which this indorsement is attached, other than as herein stated.
“This indorsement becomes effective on the 18th day of April, 1921, twelve and one minute o’clock a. m., standard time, and terminates with the termination of the policy to which it is attached.”
Barker was injured in the fall of 1921. The appellant prayed the court to instruct- the jury to find in its favor in the sum alleged in its complaint. The court refused its prayer, to which ruling it duly excepted. The jury returned a verdict in favor of the appellant in the sum of $572.98, being the difference between the amount claimed by the appellant and the sum of $739.85 claimed by the appellee as a set-off. Judgment was rendered for the appellant against the appellee in the sum of $572.98, from which is this appeal.
1. The appellant contends that the court erred in not directing the jury to find in its favor for the full amount of its claim. It is conceded by the appellant that the appellee was liable in damages for the personal injury to Barker while in its employ, and that the appellant was liable to the appellee under its policy for the damages g’rowing out of the injury, but appellant contends that the expenses incurred by the appellee on behalf of Barker, such as it set up in its counterclaim, do not come within the terms of the policy, but, on the contrary, are expressly excluded therefrom, by the following provision indorsed on the policy, to-wit: “In consideration of the reduced premium charged for this policy, it is hereby understood and agreed that this policy shall not cover the cost of immediate surgical relief referred to in condition C, anything in the policy to the contrary notwithstanding.”
The effect of the above indorsement was to eliminate that provision of the policy which specified that appellant was liable for “such immediate surgical relief as is imperative.” But the provision of this rider indorsed on the policy did not have the effect of relieving the appellant of all liability to the appellee for such damages as the appellee had incurred by reason and growing out of the personal injury to Barker, which appellee did not voluntarily assume. Considering the rider provision in connection with “condition O” of the policy, it will lie observed that the appellant was not liable for any expense incurred by the appellee for such immediate surgical relief as was imperative, nor was the appellant liable to the appellee for any damages growing out” of the injury to Barker which the appellee voluntarily assumed. Therefore the issue, in its final analysis, is whether the amount claimed by the appellee as the set-off against the claim of the appellant was incurred1 for “immediate surgical relief,” and also whether the amount claimed by appellee was a liability which it voluntarily assumed.
Now, -the words, “such immediate surgical relief as is imperative,” as used in the contract of insurance, obviously contemplates emergency or “first-hand” relief. In -other words, such relief as must be given instantly or immediately following the accident to prevent impending death or to assuage nr prevent suffering. These words have no reference to such surgical and medical treatment and hospital charges and compensation for nurses and such other expenses as are incident to and necessarily incurred in the usual and ordinary treatment of the victim of the accident some time after the accident occurred, and which are continued in order to restore him, if possible, to his normal condition, and, by so doing, to lessen the damages for which the person causing the injury would be liable.
The contention of appellant, as we understand it, is not that the claim of the appellee is for such immediate surgical relief as was imperative, and therefore that appellant was not liable under the rider provision of the policy; but its contention is that it is not liable because of such provision for' such surgical and medical attention, hospital and nurse expenses as were incident to and necessarily incurred in the ordinary course of the treatment of the employee’s injury. 'This 'contention of the appellant cannot be sustained, because for such expenses the appellee was liable to Barker as damages which were the direct and proximate result of the injury caused by the appellee. Such expenses do not represent a liability voluntarily assumed by the appellee, but they are damages under the law which the appellee was bound to pay. St. L. I. M. & So. Ry. Co. v. Cantrell, 37 Ark. 519; St. L. I. M. & So. Ry. Co. v. Stell, 87 Ark. 308; St. L. I. M. & So. Ry. Co. v. Hydrick, 109 Ark. 231; see also 5 Elliott on Railroads, p. 917, § 2863.
Such we believe to be the plain and unambiguous meaning of the word “voluntarily” in condition C of the contract, and it occurs to us also that the words, “immediate surgical relief as is imperative,” cannot be construed to include expenses of the character set up in appellee’s counterclaim, and therefore the elimination of such words by the rider clause of the policy did not relieve appellant of liability for such expenses. Even if there were a reasonable doubt about such interpretation being correct, still it would be our duty to resolve such doubt in favor of the appellee as against the appellant, because the latter wrote the contract. American Bonding Co. v. Morrow, 80 Ark. 49-54, and cases there cited; Sun Insurance Co. v. Jones, 54 Ark. 376-383; Hope Spoke Co. v. Maryland Casualty Co., 102 Ark. 1-8; Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417-19; Maloney v. Maryland Casualty Co., 113 Ark. 174-181.
2. The above conclusion makes it unnecessary to set out the pleadings, the testimony, and the instructions on the issue as to whether or not appellant was liable to appellee for the amount claimed in its cross-complaint on an alleged contract between appellee and the agents of the appellant for the settlement of such claim. It follows from what we have said that the appellant, under its contract of insurance with the appellee, is liable to the latter for the amount in controversy. The court therefore did not err in overruling appellant’s prayer for a directed verdict. The judgment is correct, and it is affirmed. | [
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McCulloch, C. J.
Appellant, Alton Thomas, was convicted of murder in the first degree and sentenced to life imprisonment under an indictment charging him with the crime of killing his brother, Hall Thomas. The killing occurred at the home of the deceased. The evidence shows that appellant was staying there at the time with deceased and the latter’s wife. The wife of deceased was the principal witness in the case. It was' shown by her testimony that the relations between her and her husband had been unpleasant for several years on account -of gossip in the neighborhood as to improper relations between her and appellant. She testified that her husband, on account of the rumor or gossip in the. neighborhood, was constantly in a jealous state of mind, and that she and her husband frequently had quarrels. They quarreled on the day of the shooting, and she decided to leave and go over to her sister’s home, a mile or two distant. Appellant’s car was in the garage back of the dwelling house, and she obtained the car key from appellant and went into the garage for the purpose of securing the .car to drive over to her fsister’s. The deceased came into the garage, and they (witness and her husband, the deceased), began quarreling, and actually commenced fighting each other; that is to say, they were tussling, as the witness expressed it, and fell down on the floor. Appellant was sitting or standing out in front of the garage, leaning against a tree, and the pistol shot was fired at this time, which struck deceased and inflicted a mortal wound, from which he died in two or three days.
It appears from the testimony that, just before the killing occurred, both appellant and deceased and the latter’s wife and her mother were out in the yard in front of the garage, when deceased was called into the house for some purpose, and it was at this time that deceased’s wife asked appellant for the car key so that she could use the car and drive over to her sister’s place, and, as before stated, while the wife was in the garage, deceased returned from the house and the fight occurred between them, and the shooting resulted.
Appellant admitted that he had the pistol in his hand at the time the shot was fired, but claims that he did not intend to fire the pistol, and that the shot was purely accidental.
The deceased was carried to the town of Horatio immediately after the shooting, and surgical treatment was administered there, and he was then taken -to a hospital in DeQueen for surgical treatment, and died in the hospital there. Appellant accompanied his brother, the deceased, to Horatio and thence to DeQueen, and remained there until the death of his brother.
The appellant stated, when asked, that the shooting occurred while he had the pistol in his hand, but stated that it was accidental.
Witnesses testified that, while deceased was in the hospital, he made a statement, in the nature of a dying declaration, ,and the testimony is sufficient to show that the statement was made in contemplation of immediate death. He stated that he was shot by his brother, Alton, and, when asked whether it was intentionally or accidentally done, he stated that it was not accidentally done, but was purposely done. Counsel for appellant objected to this statement on the ground that it was the statement merely of a conclusion, and was not competent. The prosecuting attorney asked that the statement be considered as tending to show an admission on the part of appellant that the shooting was not accidental, by reason of the fact that the statement was made in his presence, and that he made no denial. The court admitted the testimony, but instructed1 the jury that they should only consider the statement as an admission by silence, and that it could not be considered for that purpose unless the jury found that appellant was present and heard the statement of deceased. The ruling of the court in admitting this testimony has been assigned as error. We are of the opinion that the ruling of the court was correct. Of course, it must be conceded that the statement of the deceased as to the shooting being’ intentional, and not accidental, was a mere conclusion, and was not admissible as substantive proof of the nature of the act, but the testimony shows that this statement was made in the immediate presence of appellant himself. and that the latter made no response. Appellant testified that he was partly deaf, and did not hear the statement of his brother, but the testimonv was sufficient to warrant the jury in findinp* that he did hear the statement and failed to deny it. This rendered the testimony competent, and left it to the jury to determine its probative force, after finding that the deceased made the statement and that appellant made no response to it. Sheptine v. State, 133 Ark. 239; Davis v. State, 141 Ark. 170.
Another witness introduced by the State, Dr. Hopkins, who was one of the surgeons called on to attend the deceased, testified that, on the occasion when the deceased was brought to the hospital and was accompanied by appellant, he (witness) asked appellant who did the shooting, and that appellant replied that he did the shooting, and upon asking him further whether or not it was accidental, appellant replied in the negative. Counsel for appellant objected to the introduction of this witness for the reason that his name was not indorsed on the indictment. The statute (Crawford & Moses’ Digest, §3010) provides that the names of all witnesses who were examined by the grand jury must be written on the indictment, and it is insisted here that the court violated that statute in permitting the testimony of this witness to be introduced without his name appearing on the indictment. It is sufficient answer to this to say that it does not appear from the record that Dr. Hopkins was a witness before the grand jury, and for this reason the incident does not fall within the directions of the statute. In addition to that, we have held-that the statute is only directory (Cole v. State, 156 Ark. 9), and that a failure to comply with the statute does not constitute error which affects the validity of the trial, unless it is shown that prejudice resulted. In other words, the statute being only directory, it does not affect the validity of the trial unless the accused can show that he has been in some way misled to his prejudice and had no 'Opportunity to meet the testimony given by the witness. There is no prejudice shown in the present case. Ón the contrary, the witnesses who were present at the hospital at the time of the alleged conversation between appellant and Dr. Hopkins were present at the trial and testified, so there was no opportunity lost to obtain testimony to contradict that of this witness. In making the objection, counsel for appellant merely stated that they were surprised by the testimony, but did not ask for an opportunity to obtain further testimony on that account. We think there was no prejudicial error calling for a reversal of the judgment.
The next assignment relates to the ruling of the court in permitting witness Knox to testify that, about two years before the killing, he was constable, and served a notice on appellant and the wife of the deceased, who were living on a fruit farm which they had1 rented from a man named Patterson, to remove from the place. The court admitted this testimony, along with other testimony on the same subject, to show the relations between the parties, which continued from that time up to the time of the killing. It appears that there had been constant trouble between deceased and his wife about the relations between her and appellant, dating back more than two years before the killing occurred1, when appellant came to Arkansas from Missouri and took up his residence at the house of his brother. It appears from the testimony that at one time the deceased left home, and that appellant and the wife of the deceased remained on the place together, and at one time occupied the same room, but they both stated that there were no improper relations between them, and that appellant stayed in the room with his brother’s wife because she was sick and the children were sick. At any rate, the proof shows that there were rumors and gossip about the relations between appellant and his brother’s wife, and that there was frequent trouble between deceased and his 'wife on account of this gossip, which kept deceased in a jealous state of mind; that deceased and his wife had frequent quarrels, and were engaged in such a quarrel at the time the shooting occurred.
It was, as before stated, undisputed that deceased fired the shot, and the only issue was whether it was intentional or accidental. Any testimony which tended to show the relations between appellant and deceased, or appellant and the wife of deceased, was competent for the purpose of throwing light on the issue as to whether the shooting was accidental or intentional. The testimony shows that, at the time the witness Knox served the notice, appellant and Mrs. Thomas were living on the frnit farm together, and the proof about the •witness serving the notice on them was merely for the purpose of showing the relationship between them at' that time, which appears, from other testimony in the case, to have continued down to the time of the shooting. The mere serving of the notice itself had no bearing upon the controversy, but the point in the testimony of the witness in regard to the service of the notice was that his testimony tended to show the relationship which existed between the parties at that time. We think there was no prejudice in allowing the witness to state the fact that he served the notice for them to leave the place.
There were objections made to certain instructions on the' ground that they permitted the jury to find the accused guilty of murder in the first degree without finding that there was a specific intent to kill, but we do not think that the instructions are open to that objection.
The evidence is sufficient to sustain the conviction of murder in the first degree, and we find no prejudicial error in the record. The judgment is therefore affirmed. | [
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HUMPHREYS, J.
This suit was instituted in the chancery court for the Western District of Sebastian County by appellee against appellant, Win Harper and Eugene Bates, to enforce an alleged equitable lien on certain rent money due appellant by Win Harper and Eugene Bates upon judgments procured in the Sebastian Circuit Court for the Western District thereof.
Appellant denied the existence of an equitable lien upon said rent moneys in favor of appellee.
The cause was heard upon the pleadings and an agreed statement of facts, from which the chancellor found and decreed that appellee was entitled to recover from appellant the sum of $1,876.97, together with interest thereon from the 26th day of June, 1915, a,t the rate of 10 per cent, per annum until paid, and decreed same as a first preferred charge and lien upon the sum of $1,148.60 due upon judgment from Win Harper to appellant, and $750 with interest due upon judgment from Eugene Bates to appellant.
To question the correctness of this decree, an appeal has been prosecuted to this court. The agreed statement of facts disclosed:
‘ ‘ That D. J. Young leased buildings numbered 121 and 123 on Garrison Avenue, in tbe city of Fort Smith, from R. B. Wyatt, appellee herein, and sublet one of the buildings to Win Harper and the other to Eugene Bates. D. J. Young defaulted in the payment of rent for the months of September, October, November and Decemb&r, 1914, and, during those months, both Harper and Bates failed to pay the rents thereon to D. J. Young. In February, 1915, R. B. Wyatt brought suit for the rents in the circuit court for the Western District of Sebastian County against D. J. Young, and later recovered judgment for $1,876.97 against J. Ross Young, administrator of the estate of D. J. Young, deceased, in whose name the suit had been revived upon the death of D. J. Young. At the same time, D. J. Young brought suits for the rents in the circuit court for the Western District of Sebastian County against Win Harper and Eugene Bates, and, later, J. Ross Young, administrator of the estate of D. J. Young, deceased, in whose name the suits had been revived upon the death of D. J. Young, recovered a judgment from Win Harper for $1,148.60 and against Eugene Bates for $750.
“That Angie E. Young, widow of D. J. Young, deceased, does not claim or assert a dower right in and to the judgments recovered by J. Ross Young, administrator, against Win Harper and Eugene Bates.
“That the real estate and personal property, comprising the estate of D. J. Young, is not sufficient to pay the claims allowed against the estate.
‘ ‘ That the facts and circumstances were substantially and to all intents and purposes the same as if the said D. J. Young, at the time of renting said building, was acting as agent of the said Harper and Bates in renting the same, notwithstanding the transaction was put in the form of an original lease to the said D. J. Young and subleased to the said Harper and Bates. ’ ’
(1) It is contended by appellant that the only remedy open to the appellee, after obtaining judgment in the circuit court for the rents against the estate of D. J. Young, deceased, was to file a claim in the fourth class against the estate of D. J. Young; and that the chancellor committed error in giving appellee, E. B. Wyatt, the original lessor, preference on the rent money dne by the under-tenants, Win Harper and Eugene Bates. .Appellant has favored us with no authorities in support of his contention. 'The authorities seem to be uniform in holding that an equitable lien exists in favor of the landlord, or original lessor, on the rent money in the hands of an under-tenant in case the lessee becomes insolvent. 16 E. C. L. 880; 24 Cyc. 1176; 18 A. & E. Enc. of Law (2 ed.) 430.
(2) But it is said that the chancellor made no finding that the estate of D. J. Young was insolvent. The pleadings presented an issue of insolvency and the agreed statement of facts showed the estate to be insolvent. It is unnecessary for a chancellor to set out all his findings of fact in a decree. It will be presumed the chancellor found facts sufficient to support the decree if the pleadings and proof warranted him in so doing.
Finding no error, the decree is affirmed. | [
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HART, J.
On the 10th day of February, 1917, the grand jury of Lonoke county returned an indictment against Charley Turner for unlawfully and feloniously selling cider containing alcoholic and intoxicating liquors. He was tried before a jury and convicted, his punishment being fixed by the jury at a period of one year in the State penitentiary. The case is here on appeal.
(1) The testimony on the part of the State tended to show that the sheriff of Lonoke county went to the place of business of the defendant in December, 1916, in Lonoke county, Arkansas, and bought from him two quarts of cider, paying therefor the sum of fifty cents. He took these bottles of cider to Little Rock to a chemist to bé analyzed. The chemist testified that one of the bottles contained seven and eight-tenths per cent, alcohol and the other six per cent, alcohol; that the average beer contained three per cent, of alcohol and that a beverage containing that amount of alcohol was considered intoxicating. Several other witnesses testified that they had purchased cider from the defendant at Ms store in Lonoke county, Arkansas, during the latter part of the summer and during the fall of 1916; that they drank the cider and it made them drunk.
On the other hand the defendant denied having sold any cider that contained alcohol and stated that the persons who got drunk had purchased cider from him and mixed with it alcohol they had obtained elsewhere. Other witnesses were introduced by the defendant whose testimony tended to corroborate his statements and to show that he had not been engaged in the sale of cider which contained any appreciable amount of alcohol. The jury were the judges of the credibility of the witnesses and the testimony for the State was legally sufficient to warrant the verdict.
(2) It is next contended by counsel for the defendant that the court erred in overruling his plea of former acquittal. The defendant offered in evidence to sustain his plea of former acquittal the following agreed statement of facts: On the 9th day of February, 1917, the grand jury of Lonoke county returned in open court an indictment against the defendant in which it is charged that in October, 1916, he was guilty of selling one quart of alcohol and intoxicating liquors; that upon this indictment the name of M. A. Marshall appeared as a witness; that on the 10th day of February, 1917, the grand jury returned an indictment against him for selling intoxicating liquors and that M. Phelps and “Preacher Evans” were named as witnesses; that on the,27th day of February, 1917, the defendant was tried under indictment numbered 1750, being the indictment returned on the 9th day of February, 1917, and was acquitted; that the prosecuting attorney elected to prosecute him on the said charge upon a sale made to M. A. Marshall; that the State was permitted to prove the sale of the cider by the defendant to other persons than M. A. Marshall and that the cider sold to them contained alcohol in sufficient quantities to make it intoxicating; that the jury were told under the instructions of the court that it could not convict the defendant of any other offense except the sale to M. A. Marshall and that the testimony of the other sales should be considered simply as a circumstance to show whether or not the cider sold to M. A. Marshall was intoxicating or cbntained alcohol, and as to whether or not he was selling cider which was intoxicating; that the defendant had objected at that trial to the evidence on the part of the State showing the sale to other parties except M. A. Marshall. The court refused to allow the defendant to introduce his plea of former acquittal in evidence before the jury. The defendant duly saved his exceptions to the ruling of the court.
The court did not err in its ruling in this regard. It is true the state, having elected to prosecute the defendant for selling to M. A. Marshall could not, under that indictment, prosecute him for selling to any other person. It could not prove that he had made sales to other persons in aid of its proof that the defendant was guilty of selling to M. A. Marshall, an offense for which he was being prosecuted. The court however did not admit the evidence of sales to other persons for either of these objects, but solely for the purpose of showing that the cider sold to the witnesses was the same kind of cider that was sold to M. A. Marshall and would produce intoxication. It was a disputed question of fact as to whether the cider sold to M. A. Marshall was intoxicating and it was admissible as tending to show that it was intoxicating and to show that other cider bought at the same place produced intoxication upon those who drank it. Devine v. Commonwealth, 107 Va. 860, 13 A. & E. Ann. Cas. 361. It may be stated here that it would perhaps have been better to have asked such witnesses what effect the eider had upon them without proving that the accused had sold it to them. The agreed statement of facts, however, shows that the prosecution of the defendant in that case was for selling cider containing alcohol or intoxicating liquors to M. A. Marshall and that his sales to other persons was not an issue in that case. Hence the defendant’s plea of former acquittal in that case could not have availed him as a defense to the prosecution in the present case. A plea of former acquittal will not be sustained unless it affirmatively appears that the prosecution in the case where the plea is interposed is for the same offense as that for which the 'defendant has already been acquitted. Evans v. State, 54 Ark. 227; State v. Blayhut, 48 Ark. 34.
(3) The next contention of counsel for defendant is that the court erred in giving an additional instruction to one of the jurors privately. Owen Dansby, one of the jurors, made an affidavit that after the jury had returned into court and reported that they were unable to agree on the verdict, that he stepped up to the presiding judge and in a low tone of voice asked if they could give the defendant a lighter punishment in case the jury returned a verdict of guilty; that the court remarked that this could not be done; that the least punishment was for one year and that if the jury should convict the defendant his case would be in the hands of the Governor.
In regard to this alleged error it is only necessary to 'say that it is well settled in this State that the affidavit of a juror or evidence of statements made after the trial by a juror is not competent to impeach a verdict in which he has joined. Capps v. State, 109 Ark. 193; E. O. Barnett Bros. v. Western Assurance Co., 126 Ark. 562, and Reiff v. Interstate Business Men’s Accident Assn. of Des Moines, Iowa, 192 S. W. 216, 127 Ark. 254. It follows that the judgment must be affirmed. | [
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McCULLOCH, C. J.
This appeal involves an attack on the validity of a special statute enacted by the General Assembly of 1917, Act 465, p. 2130, creating the “Desha-Drew Eoad Improvement District No. 1” for the improvement of certain public roads in Desha and Drew counties. There are several of the roads constituting a group which do not run parallel, nor do they converge to a common center, but they intersect each other .at certain points. The appellees are owners of property in the district, and secured a favorable decree from the chancellor holding that the statute is invalid, but we are not favored with a brief in their behalf and must look to the allegations of the complaint for specification of the grounds of attack. Only those which appear to be important will be discussed.
The questions whether or not the improvement of several roads and the size of the district constituted a ’single local improvement, and as to the validity of a district comprising parts of two counties, are controlled by the decisions of this court in Bennett v. Johnson, 130 Ark. 507, and that point of attack made by appellees is thus disposed of against them.
(1) Another point of attack is that the statute was not legally passed by both houses of the Legislature, for the reason that the journals of the Senate fail to show a vote on the bill under the proper title. The statute originated as a Senate bill, being Senate Bill No. 262, introduced by Senator Collins, and entitled “An Act Creating the Desha-Drew Road Improvement District No. 1, in Drew and Desha Counties, Arkansas.” The only entry on the journals of the Senate in regard to the final passage of the bill of that number refers to it as “S. B. No. 262 (Collins), entitled .a bill for an act to be entitled ‘An Act authorizing Guardians, Curators and Wards to extend and renew Notes, Bonds, Deeds of Trust and Mortgages of real estate. ’ ’ ’ This was obviously a clerical error as shown by all of the records in the office of the Secretary of State, to which it is our duty to look in determining whether or not a bill has been legally passed. Butler v. Kavanaugh, 103 Ark. 109; The Mechanics Building & Loan Association v. Coffman, 110 Ark. 269.
(2) The next contention is that the whole act is void because, as enrolled and signed by the Governor it omits a word essential to the meaning of the section. Section 2 of the original bill as passed by both houses in describing the roads, reads as follows:
“Beginning at the point where the Monticello and Tillar road crossed the military road in section 7,” etc. The enrolled bill omitted the word “road” after the word military so as to read: “Beginning at the point where the Monticello and Tillar road crosses the military in section 7, ’ ’ etc. This, too, is an obvious misprision, and the meaning of the lawmakers can be interpreted, even with the word “road” omitted. It does not constitute a material discrepancy between the bill which was enacted and the one which was enrolled and signed by the Governor.
(3) Another defect in the enactment of the statute is that section 16, which relates to the method of enforcing payment of delinquent assessments, contains a portion of ‘section 17, which relates to the same subject. Beading the two • sections as they appear in the statute leads to considerable confusion, but with the proper understanding of the subject dealt with the errors are perfectly obvious, and there is no difficulty in finding the proper place for the improperly transposed sentences. The confusion arising from the mistake is not so great as renders it impossible to extract from the two sections an orderly provision for the enforcement of collection of the assessments by suits in chancery court.
One of the public roads to be constructed is the one between the towns of Winchester and Tillar, running parallel with the lines of railroad of- the St. Louis, Iron Mountain & Southern Eailway Company, and authority was also given in the act creating the Arkansas-Louisiana district to build this road if the plans for its improvement were not filed by the Desha-Drew District before August 1, 1917. The present statute was approved and became effective a week later than the statute creating the Arkansas-Louisiana district, and as it contains no restrictions in regard to the time when the plans must he made by this district, it must be treated as having eliminated the specification of time in the other statute. This feature of the two statutes is referred to in the opinion of Bennett v. Johnson. The power of this district to construct that road is not limited in point of time to the date specified in the other statute.
Concluding that none of the attacks upon the validity of the statute are well founded and that the chancellor erred in his decree declaring it invalid, the decree is reversed and remanded with directions to dismiss the complaint. '
Hart, J., dissents. | [
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McCULLOCH, C. J.
The plaintiff, Johnson Beason, instituted this action against the receiver of the St. Louis, Iron Mountain & Southern Railway Company to recover the value of a mule shipped over the railroad from Mal-vern to Dumas while the road was being operated by the receiver.
It is alleged in the complaint that plaintiff was employed by a foreman of the receiver to do repair work on the railroad, and that the mules were transported by rail to the place where the work was to be done, and that by reason of the negligence of defendant the mule was injured so that it became worthless. The testimony adduced by plaintiff tended to show that he was engaged with a lot of teams in doing railroad work; that he was employed by a foreman to go to Dumas, or near that place, with his teams for the purpose of working on the railroad, and that his teams were shipped to Dumas for that purpose. In other words, that his teams were shipped free of charge, or “dead-headed,” as expressed by one of the witnesses, in consideration of the fact that lie was under contract to perform repair work on tlie railroad. Other stock was shipped at the same time, some of it the property of plaintiff, and some of it the property of other employees who were going to the same place to work, and the evidence also tended to show that the shipment of stock was handled very roughly by the trainmen, and that this mule was injured by reason of such rough handling.
The law applicable to the case has been stated by this court in the case of St. L. S. W. Railway Co. v. Henson, 61 Ark. 302, as follows:
“If the property of plaintiff was carried solely for the carrier’s benefit, then the carrier was liable for slight negligence. If the plaintiff and the defendant derived a reciprocal benefit from the carriage, the defendant carrier was liable for ordinary negligence; if the transportation was exclusively for the benefit of the plaintiff, then the defendant was liable for gross negligence.”
The second rule stated above is the one applicable to the present case, for the testimony shows that the shipment was for the reciprocal benefit of both parties to the contract of carriage, and the carrier, therefore, should be held to ordinary care and diligence in transporting the stock. The instructions given by the court were too favorable to the defendant, for they told the jury that the defendant was only under duty to exercise “slight care to avoid injuring the mule, ’ ’ and would not be liable unless the plaintiff paid a consideration for the transportation. Notwithstanding the erroneous instructions, the jury found in favor of the plaintiff, and defendant is in no position to complain. The evidence is sufficient to sustain the finding of the jury both as to the negligence and the extent of the damages. Witnesses testified that the train was very roughly handled and that this mule and others in the car were thrown down by reason of the sudden and unusual jerks and jars of the train. The mule in question was found to be seriously injured when unloaded from the train. One of the witnesses said that its leg was broken, and others said that the leg was bruised and sprained. Several of the witnesses testified that the mule was absolutely worthless when taken from the train. The value of the mule was proved to be $200, and the jury returned a verdict in favor of plaintiff, assessing the damages at $150.
Judgment affirmed. | [
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Carleton Harris, Chief Justice.
Williams Manufacturing Company, appellant herein, is an Ohio corporation engaged in the manufacture and sale of women’s shoes. Leonard J. Strasberg is a retail merchant of Marianna, Arkansas. In 1954, Strasberg commenced handling appellant company’s shoes, having purchased same through appellant’s salesman, one Roy McGinnis. On July 3, 1956, appellant invoiced to appellee at Marianna an order which had been placed with McGinnis in the total amount of $630.85. The merchandise was purchased for fall and winter trade, and was stored to be put on the shelves when fall trade commenced.
On July 12, 1956, Strasberg sent his check to the company for the sum of $278.95, and returned merchandise which had been previously purchased at a cost of $351.90, said check and merchandise to constitute pay ment for the July 3rd order. The company accepted the check, but refused to accept the return of the merchandise as part payment. Appellant advised appellee that he could return the July 3rd shipment, but Strasberg refused to do so. Appellant instituted suit for the $351.90, together with interest. Strasberg answered, denying the indebtedness, and affirmatively stated that the purchase of the merchandise (invoiced July 3rd, 1956) was conditioned upon an agreement that Williams would not open or accept new accounts for the retail sale of similar merchandise manufactured by it, that appellant violated this agreement, and did thereby breach its contract. The cause proceeded to trial and the jury returned a verdict for appellee. From the judgment of the court dismissing the complaint, appellant brings this appeal.
Appellee contended that he had an agreement with the company giving him, together with Carothers Shoe Store of Marianna, the exclusive right to handle Williams Company shoes in that city, and appellant violated such agreement by shipping shoes to West’s Department Store, a competitor. It was this alleged violation of the agreement that caused appellee, according to his testimony, to send in shoes from previous orders as partial payment of the July 3rd order. Williams contended that it had no such agreement, and that its salesman, Mr. McGinnis, had no authority to enter into same. According to our view, there is no necessity to discuss whether such an agreement existed, or whether McGinnis was authorized to enter into such a contract, since we consider, that under the testimony, appellant was entitled to recover for the July 3rd shipment, irrespective of the alleged breach of contract. Strasberg had been purchasing shoes from appellant company since November, 1954. During that period, he had purchased several shipments and paid for them. Subsequent thereto, on May 4, 1956, he purchased the shoes (which are the source of this litigation), and received the invoice and shipment on July 3rd. On July 12, Strasberg wrote a letter to the company, sending his check for $278.95, and returning shoes (previously purchased and paid for) amounting to a value of $351.90. He stated in his letter:
“We regret this return, but you have violated your contract with us. * * * Your shoes are moving into Marianna through West’s Store, our bitterest competitor. When we agreed to buy your shoes, an understanding was reached whereby our store and Carothers Shoe Store would be the stores to handle Williams Shoes in Marianna (pop. 4,500) exclusively. * * * The only defense I have against a firm that will violate their contract with me is to return the odds and ends of their merchandise. * * *”
It would therefore appear that at the time Strasberg received the July 3rd shipment of shoes, or within a few days thereafter, (at most, within nine days) he had already learned that West’s store was selling Williams Brothers shoes. If an agreement had been breached, he was aware of it at that time, but despite such knowledge, retained the shoes, placed them in stock, and sold them in the fall. At the conclusion of appellee’s testimony, appellant moved for a directed verdict, first contending that the proof reflected that McGinnis had no authority to bind Williams Manufacturing Company to the agreement claimed by Strasberg, and second,
“The uncontradicted proof on the part of the defendant is that after the controversy arose as to the exclusive right to sell Williams Brothers products in Marianna, he accepted the fall shipment and placed the same on his shelves and proceeded to sell the same. The duty of the defendant was that if he was under the belief that he had an exclusive contract to sell Williams Brothers shoes was to return the merchandise and refuse to accept the same. Having- accepted the merchandise he now cannot plead any such agreement with a salesman. ’ ’
We feel that appellant, on the basis of the quoted portion of the motion, was entitled to the directed verdict, and the court erred in overruling such motion.
If Strasberg felt that appellant had breached its contract, he should have returned the shipment just received. In International Shoe Company v. King, 186 Ark. 799, 56 S. W. 2d 171, appellant instituted suit against King to recover $1,784.99 for “Bed Goose” shoes sold and shipped to King by the company. King defended on the ground that he had an agreement with the company to handle these shoes exclusively, and that International violated the agreement by allowing another firm in Camden to handle the same line of shoes. King shipped the shoes back to appellant, because of the alleged breach. On appeal, we affirmed, but there, King returned all the shoes purchased from appellant, including all that he had of the most recent purchase. He refused to further handle their merchandise, and immediately placed orders with other shoe companies. Here, Strasberg took all of the shoes remaining in stock from prior purchases, and returned them to appellant, together with his check for the difference, as payment for the last shipment. This had the effect of exchanging old goods for new. Included in the shoes returned were white shoes and straw shoes, bought for the purpose of sale in the spring and summer, and the returned shoes were, to a large extent, “odds and ends.” To permit appellee to select such stock as he desired to return to appellant, particularly that stock for which the sale season was mostly over, would certainly give him an undue advantage. Appellant was either entitled to remuneration for the fall shoes — or entitled to receive them back. As stated in Williston on Contracts, Vol. 5, page 4118:
“Few questions in the law have given rise to more discussion and difference of opinion than that concerning the right of one who has materially broken his contract without legal excuse to recover for such benefit as he may have conferred on the other party by part performance of an indivisible contract * * *. A satis factory solution is not easy, for two fundamental legal policies seem here to come in conflict. On the one hand, it seems a violation of the terms of a contract to allow a plaintiff in default to recover —- to allow a party to stop when he pleases and sell his part performance at a value fixed by the jury to the defendant who has agreed only to pay for full performance. On the other hand, to deny recovery often gives the defendant more than fair compensation for the injury he has sustained and imposes a forfeiture on the plaintiff. * * * But the second of these opposing policies has steadily increased in favor in recent years. Except where the obliquity of the defective performance is of a sort that indicates moral obliquity, and where, therefore, the courts feel that the one who is in default may properly be penalized, the tendency is to grant him restitution if a substantial net benefit has accrued to the defendant by partial performance.”
Strasberg could have, of course, returned the fall shipment, and then sought damages for breach of contract. As it was, he did not elect to sue for damages, nor was. any proof of damage offered during the trial. He elected only to contend that the contract was breached, but if we consider such contention to be entirely established,, still, this did not entitle him to keep new merchandise- and pay for it with old. It only entitled him to refuse to-pay for the merchandise at all, to return it forthwith,, and to refrain from handling Williams Brothers shoes in the future. One cannot “have his cake and eat it too.” He cannot accept benefits under a contract, and at the same time, avoid his obligations under such agreement. Appellee received a substantial benefit from the shipment of fall shoes, and having accepted that benefit, he cannot refuse to compensate the company because of their alleged breach.
Accordingly, the judgment of the Circuit Court is. reversed, and the cause remanded with directions to enter judgment for appellant in the sum of $351.90,, together with interest as provided by law. •
Millwee and Ward, JJ., dissent.
The merchandise consisted of shoes which had remained on appellee’s shelves from previous orders, some of which he referred to as “odds and ends.” The record does not reflect as to what finally happened to the shoes. | [
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J. Seaborn Holt, Associate Justice.
This is an original action brought by plaintiffs (railroads) seeking to enjoin defendant, C. G. Hall, Secretary of State, from certifying proposed Constitutional Amendment No. 52 and its popular name and ballot title to the State Board of Election Commissioners for the purpose of having it on the official ballot at the next general election. Plaintiffs earnestly contend that: “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 and is mislead ing in that it conveys a false idea as to the meaning and effect of the proposed amendment.” We have concluded that this contention must be sustained.
The proposed popular name ballot title and amendment in question are as follows: “Proposed Constitutional Amendment No. 52 (By Petition) Safety Crossing Amendment — An amendment to require adequate safety devices at all public railroad crossings. Section 1. The practice of operating trains and locomotives over railroads in this state across highways, public roads, crossings and city streets at high rates of speed without adequate protection to the vehicular and pedestrian traffic at such crossings is detrimental to the safety and welfare of the people and contrary to the public policy of this state. Section 2. Every railroad company in this state whose line or lines are more than one hundred miles in length who operate trains in excess of twenty-five miles per hour over said lines shall install and maintain at each public road crossing or street electrically controlled warning signals which flash red for an approaching train and shall provide and maintain electrically controlled boards or gates on each side of such roads, crossings or streets as a further protection. Section 3. Failure to provide or maintain such warning-signals or electrically controlled boards or gates shall create an inference and presumption of civil negligence to any such railroad company in any civil action for damages to persons or property against such company arising out of accidents at such public roads, crossings or streets. Filed: July 3, 1958 C. G. ‘Crip’ Hall, Secretary of State.”
Our governing- rules on the sufficiency of ballot titles have many times been announced and reaffirmed by this court. In one of our leading- cases — Newton v. Hall, 196 Ark. 929, 120 S. W. 2d 364 — we reannounced the test of the sufficiency of a ballot title in this language: “. . . it should be complete enough to carry an intelligent idea of the scope and import of the proposed law, and that it should be free from misleading tendency, whether of amplification or omission or of fallacy, and must contain no partisan coloring. This test has never been departed from in the subsequent cases, . . .’’In the more recent case of Bradley v. Hall, 220 Ark. 925, 251 S. W. 2d 470, we reaffirmed the above rule and there said: . . 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 intelligible 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, of omission, or of fallacy,’ and it must not be tinged with partisan coloring. ’ ’ When an elector comes to vote he is entitled to be confronted with a ballot title complete enough to convey to him “an intelligible idea of the scope and import of the proposed law”, or amendment. The ballot title must be free, as indicated, from any misleading tendency whether of amplification, omission, or of fallacy, and it must not be tinged with partisan coloring.
The ballot title here — AN AMENDMENT TO REQUIRE ADEQUATE SAFETY DEVICES AT ALL PUBLIC RAILROAD CROSSINGS, — obviously, we think, would convey to the voter, or carry the presumption to him, that at present the railroads were not using adequate safety devices at all public crossings and that our present statutes do not provide adequate protection for the highway traveler. Certainly all good citizens would vote for adequate protection at public crossings. There is nothing in this ballot title that tells the voter that this amendment would require all railroads in Arkansas to install and maintain at each public crossing or street electrically controlled warning signals, and in addition electrically controlled boards or gates on each side of each of the public railroad crossings, without any regard to the distance that said crossing might be from a source of electric power, and that such a re quirement would place an additional burden of heavy-expense on the railroads of millions of dollars to install and maintain such devices, at an estimated 3,600 public railroad crossings in Arkansas, whether the daily traffic count over such crossings amounted to a dozen vehicles or thousands.
Clearly, we think, this ballot title, under the test above indicated, fails to convey to the voter an intelligible idea of the scope and effect of the proposed amendment. We, therefore, hold that it is defective and insufficient. Accordingly, plaintiffs’ petition for injunctive relief is granted.
McFaddin and Millwee, JJ., dissent. | [
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Carleton Harris, Chief Justice.
Appellees, prior to early spring of 1955, operated as a partnership in Searcy, Arkansas, being engaged in the processing, sale, ánd distribution of dressed chickens,- particularly broilers:. ;• Much ':of their Hucking.-.equipmenf ‘had- been pur chased from appellants, d/b/a The Searcy Truck & Tractor Company, who held the Oldsmobile automobile and International truck agency. In February, 1955, it became evident that appellees’ business would have to be reorganized, or they would be faced with insolvency. At that time, they owed appellants, hereinafter called Aclin, $5,854.09. Appellees employed a Little Eock attorney, and he, together with Capleners’ auditor, J. B. Mcllroy, undertook to develop a reorganization plan. It was decided that if approval of customers and creditors could be obtained, the business would be incorporated and stock sold. A meeting was called of the chicken growers, largest creditors of the Capleners, and a specific proposition submitted to them, which included the payment in cash, of one-third of the indebtedness due them. Other creditors, unsecured, were contacted, with the request that they transfer their accounts from the partnership to the corporation (proposed to be organized) ; in other words, instead of looking to the partnership for payment of their debt, they were asked to agree to look to the corporation. The incentive to the creditors to consent to this arrangement was created by the fact that the partnership was unable to continue further, and would be unable to pay any indebtedness, while it was hoped that the proposed corporation, with the additional capital anticipated, could, within a short period of time, pay the debts which had been incurred by the partnership. According to the undisputed evidence, all other creditors agreed to the plan, and thenceforth looked to the corporation, rather than to the partnership, for payment of the indebtedness due them. Previously, certain equipment notes had been given appellants by appellees, and these had been endorsed by appellants with recourse, to the Searcy Bank. An effort was made by Capleners to borrow additional money for the reorganization from the Searcy Bank, which was refused, but the Security Bank agreed to advance money to the corporation if it was given a first mortgage on all equipment and other specific assets of the corporation. Articles of incorporation were filed on March 4th, and the equipment notes were paid off one week later, along with some other indebtedness due the Searcy Bank. The sum due and paid on the equipment notes was $11,042.10. The corporation operated unsuccessfully for a few months, and the Security Bank foreclosed on all corporate assets pledged to it. Aclin instituted this suit against the Capleners for the $5,854.09, and they answered, pleading accord and satisfaction. This plea was based upon the fact that the equipment notes had been paid. A jury was waived by the parties, and the court, after hearing the evidence, held that appellants were estopped to recover upon the account sued on. From such judgment, comes this appeal.
Let it first be said that we agree with appellants that appellees cannot prevail upon the theory of accord and satisfaction, and in fact, this defense is not argued in appellees’ brief.
Appellants contend that the equipment notes were paid by appellees without their knowledge, and that they would have vigorously opposed such payment, since, in their opinion, the equipment was worth more than the balance due on said notes; that they would have been glad to take the equipment back for the indebtedness. We do not consider the payment of these notes by the corporation, either with, or without, prior knowledge of appellants, to be determinative of this litigation. We rather conclude, as evidently did the trial court, that the issue is whether appellants, by word or deed, consented to the transfer of the indebtedness from the partnership to the corporation. Therefore, there are only two questions to be decided. First, was there substantial evidence to support the judgment rendered by the circuit court, and second, is the defense of estoppel available to appellees when they had not pleaded same? To the first question, we answer “yes.” Caplener testified that he personally contacted James Aclin ; that the entire plan of reorganization was explained to Aclin; the latter was advised that to perfect the plan, all creditors would have to “go along”; that future business with the Aclin partnership would be conducted on a cash basis, and “I told James that I thought by reorganizing the corporation and getting in more money to operate on, that he would receive his amount owing him a lot quicker and could realize all of it. I was sincere in telling him that. * * * ” He further testified that Aclin “ * * # was very cooperative and in agreement.” J. B. Mellroy testified by deposition that he had known the parties about three years, and had been employed by both appellants and appellees to handle their accounting work. He further stated that he furnished the necessary statements and data required for the reorganization, and likewise participated in such reorganization, to the extent of contacting several of the creditors and both banks in regard thereto. As to Aclin, the witness’ testimony was as follows:
“Q. * * * Did you in company with anyone else submit this proposition to the plaintiff in this lawsuit or any one other person?
A. Yes, sir, as was required by that initial stockholders meeting. In fact, I believe on the same day, Attorney Guy Reeves and I went to the office of James Aclin at the Searcy Truck & Tractor Company and both of us together outlined the entire program to him and requested of him at that time that he allow that indebtedness to be transferred to the corporation and we also requested that he take common stock for a cash consideration in the corporation. We were told at that time--
Q.. By him?
A. By Mr. Aclin, James Aclin, that he felt that there would be no difficulty in transferring the debt from the partnership to the corporation, however, in regards to the stock that he would not commit himself and desired to talk to his father in regards to both items. * * * ”
According to Mcllroy, Aclin was contacted on several other occasions with regards to the matter and
“* * * eventually he told us that they had decided not to take stock as we had requested, that they, at that time, were not in a position to purchase the stock. ”
Further,
“Q. Well, then, as I understand your testimony, Mr. Aclin’s statement was, in effect, that they would go along with you on everything except the purchase of stock?
A. That was my general opinion of the conversation.”
Mcllroy testified that the corporation assumed payment of the debt, the balance being transferred, and placed upon the records of the corporation. He likewise testi fiéd that Aclin had been told any fntnre business would be handled on a cash basis, and stated that this was. done. According to his evidence, thfe new corporation would not have been formed, except that all creditors accepted the proposition submitted to them. This testimony ■ of these witnesses was denied by Aclin, who only admitted that he knew the Capleners’ business was being reorganized. He stated that he made no agreements whatsoever to transfer the, debt. Other evidence was offered in support of appellants’ position, such as the fact that the books of the Searcy Truck & Tractor Company were never changed to show a transfer of the indebtedness. It is noticeable, however, that no suit was instituted by Aclin until after the corporation had become insolvent, which lends some weight to appellees’ contention that appellants were looking to the corporation for payment. Be that as it may,- we are of the opinion that the evidence adduced by appellees constituted substantial evidence. According to the appellees’ evidence, the reorganization and incorporation was carried out in reliance upon the agreement with creditors. This, of course, meant that Capleners were put to the expense and trouble of employing counsel, and an accountant, and were required to expend time and effort in raising capital for the new venture, and other matters incident to perfecting the corporation. We are of the opinion that the doctrine of estoppel properly applies, even if the view be taken that the agreement was without consideration. In Peoples National Bank of Little Rock v. Linebarger Construction Company, 219 Ark. 11, 240 S. W. 2d 12, it was said:
“There are numerous cases in which an estoppel has been predicated on promises or assurances as to future conduct. Thus an estoppel may arise from the making of a promise, even though without consideration, if it was intended that the promise be relied upon and in fact, it was relied upon, * *
Estoppel in pais is as readily and fully recognized in courts of law as in courts of equity. Thomas v. Spires, 180 Ark. 671, 22 S. W. 2d 553.
It only remains to determine whether there was necessity that such defense be pleaded. While it is true that, as a general rule, estoppel must be pleaded as a defense to a claim, there is a well defined exception. As stated in Williams v. Davis, 211 Ark. 725, 202 S. W. 2d 205:
“Appellant argues here, however, that appellees could not avail themselves of the defense of estoppel for the reason that it was not specially pleaded. It is true that, as a general rule, estoppel must be pleaded to be available as a defense to a claim; however, there is a well defined exception that arises, as in the present case, when ‘the estoppel or waiver is admitted in evidence or becomes an issue without objection at the time that it was not pleaded, this objection that it was not pleaded is waived and the estoppel is as conclusive as if pleaded specially, whether it is an estoppel in pais, a waiver, etc.’ 19 Am. Jur., page 850, section 197.
In this case there were no objections to the evidence bearing on the question of estoppel, on the ground that it had not been pleaded, and therefore it was within the sound discretion of the trial court to treat the pleadings as amended to conform to such proof.”
To the same effect is the holding in Brotherhood of Railroad Trainmen v. Long, 186 Ark. 320, 53 S. W. 2d 433, and Keylon v. Arnold, 213 Ark. 130, 209 S. W. 2d 459.
Finding no reversible error, the judgment is affirmed.
Justice William J. Smith not participating.
Whether Aclin agreed, is the question in this litigation.
From the testimony of Mcllroy: “Q. Actually though, the funds came from the Security Bank, didn’t it, to pay it? A. No, not necessarily, because it was kept there, and I believe now, I will have to look at the record again, but I believe that there would have been sufficient dollars there to have made that much of a payment without any note having been issued by the bank. Now, in fact, I believe that if you will check the records that the deposit of the money from the note wasn’t made into the account of the corporation until after the payment of the —in fact, a day or so after, after the payment was made to the Searcy Bank.”
From appellees’ “Response to Motion to Make More Definite”: “That prior to March 4, 1955, defendants operated as a partnership under the firm name and style of Caplener & Sons. On March 5, 1955, because of financial difficulties and their inability to pay their bills, they entered into an oral agreement and arrangement with all of their unsecured creditors, including plaintiffs, to reorganize and incorporate said business, said corporation to assume payment of all unsecured debts then owned by said partnership, which proposal was orally accepted and agreed to by said unsecured creditors, including plaintiffs, the agreement by plaintiffs, however, being conditioned that said corporation pay at once certain notes, four in number, given by defendants to plaintiffs and by plaintiffs endorsed with recourse to The Searcy Bank; and the balance due upon said notes in the sum of $11,042.10, was paid by said corporation on March 11, 1955, to The Searcy Bank in accordance with said agreement.
“That plaintiffs, having entered into said oral agreement, any balance due them on the account sued on herein, is due and payable by Boyce Caplener & Sons, Incorporated, and not by the defendants herein.”
Kenneth Caplener testified that he told James Aclin that the notes would he paid in the manner they were paid, and that Aclin raised no objection.
There was no requirement under the plan of reorganization that creditors take stock; such purchase would be purely voluntary. | [
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John Mauzy Pittman, Chief Judge.
Appellant and appellee were divorced on August 31, 2004, after thirty-one years of marriage. The only issues at the divorce hearing were alimony and property division. The trial court awarded appellant $300 per month alimony and, in the course of the property division, declared that the couple’s home was marital property, despite it having been deeded to appellant in 1982. Appellant now argues that: 1) the amount of alimony was too low; 2) the trial court failed to divide the parties’ property equally or state reasons for making an unequal division; 3) the trial court erred in declaring the parties’ home to be marital property. We reverse and remand on the basis of appellant’s third argument.
The evidence surrounding the ownership of the parties’ home was as follows. Appellee deeded the home to appellant in 1982. According to appellant, she filed for divorce around that time when she discovered that appellee had a child with another woman. She said that her attorney advised her to have the home deeded to her, and she further said that appellee told her that the house was a gift to make sure that she would not be “out on the street” with two children. The deed was filed on October 15, 1982, the same day that it was signed by appellee. The record as abstracted contains no evidence regarding the circumstances of the parties’ reconciliation after the deed was executed or any evidence as to the manner in which the house was maintained or paid for thereafter. Appellee testified only that he had agreed to deed the house to appellant and that he would not dispute that the house had remained in appellant’s name since the deed was executed. He agreed with his attorney’s statement that “there may be some problems with regard to the house because you’ve deeded that house to her.”
The trial court ruled that the parties’ home was marital property. Appellant, citing Smith v. Smith, 6 Ark. App. 252, 640 S.W.2d 458 (1982), contends that, based on the foregoing evidence, the house remained her separate property after it was deeded to her in 1982. We agree.
In Smith, the parties separated, and the husband filed for divorce. Later, they reconciled on the condition that the husband convey his interest in the marital home to the wife, which he did. The parties separated again about five months later, and the wife filed for divorce. The husband then asked the court to set aside the deed. The trial court refused, and this court affirmed, ruling that there was no evidence of an agreement that the property would belong to the wife only if the reconciliation was successful, and there was no evidence of any agreement that the husband would regain an interest in the property. Likewise, in the present case, there is no evidence that appellant would retain the property only under certain circumstances or that appellee would regain an interest in the property.
Moreover, we observe that there are other cases even closer factually to the case at bar because they involve a gift of the marital home from one spouse to another. In Cole v. Cole, 53 Ark. App. 140, 920 S.W.2d 32 (1996), the husband, a truck driver, had a drinking problem and had been charged with DWI. The wife, fearing that he would cause an accident and that they would “lose everything,” asked him to put the house in her name. He did so but later, during their divorce proceeding, said that he merely “went along” with his wife and did not realize that he was signing away his rights in the house. The supreme court observed that the deed was filed of record in the same month that it was signed; that, although the husband continued to live in the house after the conveyance, the wife paid the mortgage, taxes, and insurance from an account that was determined to be her separate property; and that there was no evidence that the wife ever said that she would deed the property back to the husband. While Cole contains a factor that is missing in the case at bar — evidence as to who paid the household expenses following the conveyance — it does point up the significance of the immediate recording of the deed and the lack of an agreement that the property would be deeded back to the donor spouse.
In Lyons v. Lyons, 13 Ark. App. 63, 679 S.W.2d 811 (1984), the husband was living in California and the wife was living in Arkansas. Following telephone and letter communications, the husband agreed to deed their marital residence to the wife. Upon the parties’ divorce, he asked that the deed be set aside. He testified that he made the conveyance to “get some peace and quiet” from his wife’s demands. This court ruled that:
The chancellor found that [husband] voluntarily executed the deed, and although the court did not specifically find that there was a gift intended, it would have been justified in so doing. There was ample evidence from which the chancellor could have found that there was an actual delivery of the subject matter of the gift with a clear intent to make an immediate, unconditional and final gift accompanied by an intent to release all future dominion and control. A gift acquired by either spouse subsequent to the marriage is excluded from the definition of martial property by the provisions of Ark. Stat. Ann. § 34-1214(B)(l) (Supp. 1983) [now Ark. Code Ann. § 9-12-315 (b)(1) (Repl. 2002)].
Id. at 66, 679 S.W.2d at 813-14 (case citations omitted).
Finally, in Dennis v. Younts, 251 Ark. 350, 472 S.W.2d 711 (1971), the husband and wife separated in the spring of 1962, when the husband began living with another woman. On July 19, 1962, the husband deeded the marital home to his wife because he “felt sorry” for her. The pair resumed cohabitation in 1964 and lived on the property until the wife’s death in 1967. Thereafter, her children by a former marriage claimed the property by virtue of the 1962 deed. The husband asserted that the deed was part of a property settlement prior to divorce and that it should be canceled because a reconciliation occurred and the parties resumed their marital relationship. The chancellor upheld the deed, and the supreme court affirmed. The court noted that the record contained no evidence that the deed was executed as part of a property settlement agreement in contemplation of divorce, and there was no evidence that the wife agreed to do anything as an inducement or consideration for the transfer. Rather, the evidence showed that the husband deeded the house because, in the words of the trial court, he “moved in with another woman and got to feeling bad about his wife.” In short, the supreme court said, the husband made a gift of the property to his wife.
In the case before us, there is no evidence that the parties entered into a property settlement agreement or reconciliation agreement. There is also no evidence that appellant agreed to do anything as an inducement or consideration for the transfer. The only proof regarding the parties’ intentions is that appellee made a gift to appellant so that appellant and her children would have a place to live after appellee became involved with another woman. The law presumes a gift when the donor registers legal title in a family member’s name. See Perrin v. Perrin, 9 Ark. App. 170, 656 S.W.2d 245 (1983). Further, the deed was immediately recorded, and there was no discussion of appellant’s deeding the property back to appellee. Finally, appellee, in his own testimony, seemed resigned to the conclusion that he was not entitled to the property. He testified that he was basically asking the court to award him his business, his business assets, and his pension, and to make a division of debt; he understood that there might be some “problems” with the house because he had deeded it to appellant. Given these circumstances, we believe that the trial court clearly erred in declaring the home to be marital property rather than appellant’s separate property.
Appellee relies on the case of Ward v. Ward, 249 Ark. 1001, 463 S.W.2d 90 (1971), but that case is distinguishable from the case at bar. In Ward, the parties were divorced in 1965 and, by virtue of their property settlement agreement, the wife quitclaimed the home to the husband. Thereafter, the decree was set aside and the parties resumed the marriage. The deed was not recorded by the husband until 1969, after the wife learned that he had a young girlfriend. In the ensuing divorce action, the trial court ruled that the home was marital property. The supreme court affirmed, holding that the “only inference from the parties’ conduct is that they intended to abrogate the property settlement at the time they caused the divorce decree to be set aside.” Id. at 1004, 463 S.W.2d at 92. Unlike the situation here, Ward involved a deed that was part of a property settlement and divorce decree that were later set aside. Further, the grantee in Ward waited four years to record his deed and did so only when it looked as though another divorce proceeding was forthcoming. These factors are strong indicators that the parties in Ward did not intend for the deed to remain viable after the 1965 divorce decree was set aside. No such factors are present in this case.
Based on the foregoing, we reverse the trial court’s finding that the home was marital property. Because our reversal will very likely affect the overall property division as well as the alimony award — alimony and property division being complementary devices that a trial judge employs to make the dissolution of a marriage as equitable as possible, see Cole, supra — we reverse and remand the case in its entirety for reconsideration in light of our holding herein.
Reversed and remanded.
Crabtree, J., agrees.
Baker, J., concurs. | [
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John Mauzy Pittman, Chief Judge.
Jack and Priscilla J Gunter were among several defendants to a foreclosure suit filed by the appellee bank’s predecessor. Other defendants filed timely answers but the Gunters failed to do so and instead filed their answer after the expiration of the time allowed. Priscilla Gunter now appeals from an adverse judgment entered after the trial court granted a motion to strike as untimely those portions of their answer that were not common to those raised by the other defendants who had filed timely answers, arguing that the trial court erred in fading to correctly apply the common-defense doctrine. We affirm.
Midsouth Bank (the predecessor of appellee Liberty Bank) filed a complaint naming numerous defendants, including Gunter Elevator, Inc., Jack and Priscilla Gunter, and Wilkinson Farms. In its complaint the bank sought foreclosure of a mortgage given by Gunter Elevator, Inc., andjay Gunter to secure payment of a note. The bank alleged that the note was in default, that demand had been made, and that the note had not been paid. Noting that Jack and Priscilla Gunter might claim some interest in the property by virtue of a mortgage executed to them by Gunter Elevator, Inc., on April 4, 2000, the bank stated that its mortgage lien should be declared a first mortgage lien on the lands described in the mortgage, and that any lien of Jack and Priscilla Gunter was inferior and subordinate to its own mortgage. Similarly, the bank noted the existence of a judgment against Gunter Elevator, Inc., filed September 24, 2001, in favor ofWilkinson Farms and related individuals, and asserted that this judgment lien was inferior and subordinate to its mortgage.
Wilkinson Farms filed a timely answer, denying most of the allegations in the complaint for lack of knowledge, but asserting that a writ of execution on its judgment lien had been issued, and that its judgment lien was a first lien on the rent proceeds of the property. Jack and Priscilla Gunter filed an admittedly untimely answer in which they argued that, pursuant to the “common defense doctrine,” they should be allowed to argue that Mid-south’s mortgage and Wilkinson Farm’s judgment lien were inferior to their own mortgage. The trial court disagreed. Although it did not strike the answer in its entirety and ruled that the Gunters could raise any defenses they had in common with the other defendants who filed a timely answer, it did not permit them to argue the superiority of their own lien. This appeal followed.
Arkansas recognizes the “common-defense doctrine.” This principle first appears in Arkansas law in Bruton v. Gregory, 8 Ark. 177 (1847), where Chief Justice Johnson wrote that:
It is perfectly manifest that the interlocutory judgment, which is authorized to be taken against such as make default, is required to stand and to abide the result of any defense to the merits, that those, who appear in the action, may see fit to interpose. If two are sued joindy, one of whom makes default, and the other appears and interposes a successful defense to the action, there can be no doubt but that the plea of the one appearing, will enure to the benefit of the other, and that he will also be entitled to his discharge, notwithstanding the interlocutory judgment by default.
Id. at 180. In modern practice, the test for determining if an answer will inure to a co-defendant’s benefit is whether the answer of the non-defaulting defendant states a defense that is common to both defendants, because then “a successful plea.. . operates as a discharge to all the defendants, but it is otherwise where the plea goes to the personal discharge of the party interposing it.” Richardson v. Rodgers, 334 Ark. 606, 612, 976 S.W.2d 941, 944-45 (1998) (quoting Southland Mobile Home Corp. v. Winders, 262 Ark. 693, 694, 561 S.W.2d 280, 280-81 (1978)).
Under this test, Wilkinson Farms’ answer does not inure to appellant’s benefit because, unlike the defense offered by the co-defendant in Southland Mobile Home Corp. v. Winders, supra, it did not go to the existence of appellee’s cause of action nor assert a defense common to both defendants. The cause of action in this case was foreclosure of a mortgage based on a default on a debt secured by that mortgage. Wilkinson Farms offered no defense that would preclude foreclosure in this case, such as inequitable conduct (Tucker v. Pulaski Federal Savings & Loan, 252 Ark. 849, 481 S.W.2d 725 (1972)), statute of limitations (Davidson v. Hartsfield, 250 Ark. 1072, 468 S.W.2d 774 (1971)), misrepresentation (Williams v. Brown, 240 Ark. 974, 403 S.W.2d 89 (1966)), or payment (Houston v. Carson, 219 Ark. 665, 244 S.W.2d 151 (1951)). Furthermore, Wilkinson Farms disputed the priority of appellee’s mortgage on the grounds that its own judgment lien was superior. Quite clearly, this defense was not common to both Wilkinson Farms and appellant. Finally, to the extent that Wilkinson Farms denied the paragraph of the complaint asserting the superiority of appellee’s mortgage to that of appellant, it did so in general terms on the basis of lack of knowledge. A general denial covers defenses which go to destroy the plaintiffs cause of action, but not those defenses which are grounded on new matters or matters in avoidance, or other defenses. These must be specially pleaded. Chiles v. Mann & Mann, 240 Ark. 527, 400 S.W.2d 667 (1966). Here, appellant’s claim of the priority of her own lien is a new matter in the nature of a plea in avoidance, operating not as a discharge to all the defendants but instead to the personal discharge of the appellant, and we cannot say that the trial judge erred in refusing to allow this matter to be raised for the first time in her untimely answer.
Affirmed.
Robbins and Vaught, JJ., agree.
Jack Gunter is now deceased. | [
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HUMPHREYS, J.
Charles Tetrick and Roy Broad-hurst, partners, brought suit against appellant in the Benton Circuit Court to recover $144.43, representing an alleged balance due them on a commission contract for the sale of three cars of green apples at a mini mum of 70 cents per hundred-weight, f. o. b. cars, Avoca, Arkansas, less 5 per cent, commission for making the sale.
Charles Tetrick and Dwight Lee, partners, also brought suit against appellant for $217.15, representing an alleged balance due them on a commission contract of similar import.
Appellant answered, denying the material allegations in each complaint; and by way of further answer, said that it acted as selling agent for the apples on a 5 per cent, commission, without limitation on the price, time, place or terms of sale.
By agreement of parties, the cases were consolidated for convenience of trial.
The court sent the cases to the jury under instructions defining the issues to he whether appellant bought the apples outright for 70 cents per hundred-weight, on board cars at Avoca, or whether it acted in the capacity of sales agent only, upon a 5 per cent, commission basis. The jury returned verdicts against appellant in favor of Charles Tetrick and Dwight Lee for $51.91, and in favor of Charles Tetrick and Roy Broadhurst for $68.35, upon which judgments were rendered.
Proper steps were taken and an appeal has been prosecuted to this court.
The sufficiency of the evidence to support the verdict is questioned. There seems to be a total absence of evidence in support of the theory that appellees sold the apples outright to appellant on board the cafs at Avoca, less 5 per cent, commission. In fact, the entire testimony of appellees tends to establish the theory that appellant engaged to sell either all or a part of the apples, on the track at Avoca, at a minimum of 70 cents per hundredweight, less a 5 per cent, commission. The undisputed evidence showed that appellant had no charter powers to buy products outright. It was incorporated for the sole purpose of acting as intermediary between shipper and buyer. The cause should have been sent to the jury within the written pleadings, or within the pleadings treated as amended to conform to the proof.
There being no evidence to support the issue of outright sale, presented to the jury by the court’s instructions, the judgment is'reversed and the cause remanded for a new trial. | [
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WOOD, J.,
(afjer stating the facts). Under the undisputed evidence the contract of insurance was complete when the company accepted appellee’s application, issued the policy and mailed the same to appellee. When this was done nothing remained for the insurance company to do.
In DuPriest v. American Central Life Ins. Co., 97 Ark. 229, we said: “It is very well settled that where nothing remains to be done by the insurer, the mailing of the policy, duly executed, to the insured constitutes a delivery.”
The authorities generally hold that “Where an application is made for a policy of insurance which is accepted and the insured notified thereof, the contract is consummated without actual delivery of the policy in the absence of a provision in the application requiring delivery. ’ ’ 14 R. C. L., § 75, page 897. And on page 898, §.76, of the same volume, it is said: “It is the intention of the parties, and not the manual possession of the policy, which determines whether there has been a delivery thereof. ’ ’
In volume 19 Cyc., page 603, it is said: “Where a policy has been duly executed in compliance with an application on the part of the insured, so that the minds of the parties have fully met as to the terms and conditions of the contract, a manual delivery of the policy to the insured is not essential to render it binding on the company.”
Here the undisputed evidence shows that a manual delivery of the policy was not contemplated. All that the company had to do was to send the policy by mail, which it did. There was no provision in the application or the receipt showing that the parties contemplated that the contract was not to be complete until the appellee had received the same, but all that the company had to do was to issue the policy and send it through the mail.
The instructions, therefore, numbered 1 and 2, given at the instance of the appellee, under the undisputed evidence, raised abstract issues before the jury which were prejudicial to the appellant.
Appellee himself testified that the company wrote him that his application had been accepted and that it would send the policy. And he further testified that he wanted the insurance and would have paid for it if he had received the policy, but that it was never received. The testimony of the receiver shows that appellee had executed a power of attorney and proxy to officers of the company to act for him in stockholders’ meetings, which these officers had exercised in his behalf.
These facts are sufficient to constitute a meeting of the minds so as to render the contract of insurance complete, and if appellee had suffered a loss during the life of the policy there is no doubt but what, under the circumstances, he would have been entitled to recover against the company. Moreover, under the undisputed evidence, the verdict of the jury was contrary to the law as given by the court in instruction No. 5. The appellee accepted from the appellant a receipt in which it was stated that the policy was to be sent by mail, and if the appellee did not receive the policy in fifteen days he was to write the company and give the name of the solicitor and date of the receipt, and the company was to return the cash premium note if the contract was not issued.
The court properly instructed the jury, under this evidence, that if the defendant did not notify plaintiff that he had not received his policy, and did not request the issuance of a new policy or the return of the premium note within a reasonable time that he was estopped from denying the issuance of the policy, and that their verdict should be for the plaintiff. The verdict of the jury was therefore contrary to the law as given by the court, and the court erred in refusing to set aside a judgment based upon such verdict and in overruling the appellant’s motion for a new trial.
For the errors indicated the judgment is reversed, and judgment will he entered here in favor of the appellant. | [
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HART, J.,
(after stating the facts).
Section 3901 of Kirby’s Digest being an act of March 18, 1887, provides in effect that no conveyance, mortgage or other instrument affecting the homestead of any married man shall be of any validity unless his wife joins in the execution of such instrument and acknowledges the same. Under this statute we have always held that a deed purporting to convey the homestead of a married man is a nullity if his wife fails to join in the execution of the deed. Pipkin v. Williams, 57 Ark. 242; Oliver v. Routh, 123 Ark. 189, and cases cited, and Waters v. Hanley, 120 Ark. 465.
In the last mentioned case we held that a husband cannot make a contract to convey, the homestead which will be binding upon his wife. The court said:
“It is clear that if the husband cannot make a conveyance of the homestead without the concurrence of his wife, he cannot make a contract to convey the homestead which will be obligatory upon his wife. If he could make a contract to convey the homestead which would be obligatory upon his wife the statute could be easily evaded and would be of no force.”
The defendant testified that his father gave him the forty-acre tract in controversy and put him in possession of it. He said that his mother acquiesced in the gift, but does not claim that she participated in the transaction.
On the other hand, his mother testified that she did not in any way participate in the gift and that the land in question was a part of their homestead.
It is insisted by the defendant that the land was not a part of his father’s homestead; that his father did not attempt to impress it with the homestead character until just before his death in June, 1915, and that he had given the land to him in August, 1911, and that he continued in possession of it up to the time of his father’s death. In support of this contention, counsel point to the testimony of the plaintiff herself. On cross-examination after answering that the land was all in a solid body, she was asked the following: “Now, at what time did you make a selection of the forties involved in this suit as your homestead and dedicate it as such? A. Well, of course, I made the selection — when my husband knew he was going to die he made the selection and that has been my selection all the while there.”
When her testimony is 'Considered as a whole, we do not think that it is susceptible of the construction that she and her husband had not intended to impress the land in controversy with the homestead character until after the husband had given it to the defendant and had placed him in possession of it. The forty acres in controversy and the forty acres. on which their dwelling house stood were adjoining forties. They had been purchased at about the same time. McLeod had lived on one of these forties for over twenty years prior to his death. There was a field which extended in part over both forties and this was the main field in cultivation on the lands. At another place in her testimony the plaintiff said that the forty-acre tract in controversy had been considered a part of their homestead by them ever since they had established their residence on the adjoining forty. Two of the other brothers said that the land in controversy had always been considered a part of the homestead.
Under these circumstances we think a preponderance of thfe evidence establishes the fact that the land in controversy had been impressed with the homestead character before McLeod ever attempted to give the land to his son, and the learned chancellor erred in holding otherwise.
It follows under the authorities above cited that the attempted gift by McLeod to his son was of no validity because his wife did not join therein.
There were certain improvements made on the land by the defendant, but according to his own testimony these were not worth more than $150.00 According to the testimony of his brothers they were worth much less. The three acres of land cleared by him amounted to thirty dollars, ten dollars per acre being the price fixed for clearing land by all the witnesses. According to the testimony of one of his brothers the nine rolls of wire purchased by him were not worth more than that. Two of his brothers also testified that the rental value of the ten acres of land which were cleared was worth four dollars per acre. This would amount to one hundred and twenty dollars for three years, and in our judgment the rents would about offset the improvements.
The decree will be reversed and the cause remanded with directions to enter a decree in accordance with this opinion. | [
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HUMPHBEYS, J.
Appellant brought suit against appellee in the "Western District of the Clay Chancery Court to rescind a contract for the purchase of farming implements, for the alleged reason that appellee had refused to carry out the terms of the contract by supplying repairs for the implements; and to impound and cancel four $100 notes appellant had executed and delivered to appellee in payment for the implements. The complaint alleged that the notes were executed to appellee upon promise that it would furnish, or cause to be furnished, to appellants, repairs and parts with which to repair said implements; that appellant was a non-resident of the State with no agent in the State upon whom service could be made; that the 'First National Bank of Corning had possession of said notes for collection. Appellee answered, admitting the - execution and delivery of the notes by appellant, but denying that the implements were sold under contract to furnish repairs and parts or that the notes were executed in pursuance of such a promise; and, by way of cross-complaint, alleged that appellant had executed and delivered to appellee four notes of $100 each, due and payable on the first day of May, June, July and August, 1916, bearing interest at the rate of 8 per cent, per annum from date until paid, in settlement of balance due for said implements; that after the sale of the implements, appellee became insolvent and discontinued the operation of its factory and could no longer furnish repairs and parts for the implements it had sold to appellant.
The cause was heard upon the pleadings and evidence adduced, upon which the court decreed a dismissal of the bill for want of equity, and rendered judgment in favor of appellee upon its cross-bill in the sum of $469.00 with interest from October '5, 1906, at the rate of 8 per cent, per annum.
From that decree an appeal has been prosecuted to this court.
(1) The implements in possession of appellant at the time this suit was instituted were purchased from ap-pellee in 1912 and 1913. Payments were made from time to time but in the fall of 1914 the account was closed by the execution of notes. On February 15, 1916, appellant executed the notes constituting the basis of this suit in renewal of the notes given in the fall of 1914. The original notes executed in 1914 were obtained by a Mr. Hammond, collecting agent of appellee, who stated that ap-pellee would continue to furnish repairs for the implements. Appellee had not invested Mr. Hammond with authority to make an agreement to furnish repairs and parts for implements. Neither was it informed that such an agreement had been made. The evidence is conflicting as to whether the renewal notes sued upon were executed before or after appellee had failed to furnish repairs and parts for the implements. No specific contract was made for repairs and parts at the time the implements were purchased in 1912 or 1913. It was customary for manufacturers who sold implements at Corning to sell repairs and parts for them. Appellant’s testimony is to the effect that they bought the implements with this custom in view. M. G-. Hoffman testified that they were unable to get any repairs and parts after the spring of 1915. If the custom prevailed and became a part of tlie contract, the most favorable construction a buyer could invoke would be to bold the seller bounden to furnish repairs and parts for a reasonable time. We think if appellee furnished parts and repairs through the spring of 1915, for implements furnished in 1912 and 1913, its contract was performed in all good conscience and equity. Especially is this so, in view of the fact that appellee became insolvent and was unable to continue the manufacture of the repairs and parts; and in view of the further fact, that the notes were renewed and extended-on February 17, 1916. The chancellor’s finding and decree on the merits of the original bill is in accordance with the weight of evidence and our construction of the contract.
(2) It is contended by appellant that the cross-bill should have been dismissed also, for the reason that it asked affirmative relief on matters purely legal in nature; and in amount within the exclusive jurisdiction of a justice of the peace. Each note was for $100.00, exclusive of interest, and within the exclusive jurisdiction of a justice of the peace, under section 40, article 7, of the Constitution.
Appellee contends for the rule, that equity having acquired jurisdiction for one purpose will administer complete relief. In discussing the rule that relief of a purely equitable nature can not be given in an action properly begun and prosecuted at law, Mr. Justice Eakin, in the case of Little Rock & Ft. Smith Ry. Co. v. Perry, 37 Ark. 164, said:
“With regard to actions begun in chancery, which upon their face appear to be exclusively and wholly cognizable at law, as for instance, a bill to obtain judgment upon a note, or an ejectment bill without equitable elements, the rule is the same. It is always, however, to be borne in mind -that if there be any equitable element to which the jurisdiction of a court of chancery may attach, then by the old doctrine, the court in the same proceedings may administer all legal relief connected with the subject-matter and essential to do full and complete justice at once to all parties before it.”
In tbe instant case, appellant selected tbe forum and alleged matter peculiarly within tbe jurisdiction of a court of equity. Tbe notes in question were drawn into tbe suit, impounded and sought to be canceled. They are directly connected with tbe subject-matter alleged in the original bill. Unnecessary multiplicity of actions is abhorred by tbe law. Tbe very object of a cross-bill should be to enable parties to adjust all differences, growing out of tbe same transaction, in tbe same suit. In the instant case, appellant brought appellee into court touching tbe validity of tbe notes sought to be enforced by cross-bill Tbe subject-matter of tbe original bill and cross-bill is one and tbe same thing, so interwoven that no distinction can be made between tbe one or tbe other. Tbe equity jurisdiction having been invoked by appellant to determine the validity of tbe contract, we think tbe power of tbe court extended over all matter connected with tbe original bill, whether presented by answer or cross-bill.
No error appearing, tbe decree is, in all things, affirmed. | [
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Ed. F. McFaddin, Associate Justice.
The appellant, Arkansas State Highway Commission, proceeding under its powers of eminent domain, condemned a right-of-way through a 65-acre airport owned by appellee, Mike Richards. The jury awarded Richards $50,000 as damages; and on appeal appellant argues only two points, being: (1) “The verdict is excessive in that there is no substantial evidence to support the verdict”; and (2) “The Court erred in not granting plaintiff’s motion for a directed verdict of $23,250 at the close of the testimony.” We consider these two points together.
The Court submitted the case to the jury on instructions about which there is no complaint; telling the jury: that the landowner’s just compensation is the difference between the fair market value of the lands before and after the taking, or damage; that the landowner is entitled to recover not only for the lands taken, but also for the damages, if any, to the remaining lands not taken; and that such fair market value should be based upon the highest and most valuable purpose to which the lands could reasonably be devoted at that time or in the reasonable future.
The evidence for the landowner established that he owned a tract of 65 acres located near the City of Benton, Arkansas; that he had purchased the lands and improved them for an airport; that the lands were being used as an airport at the time of the condemnation proceedings ; and that such use was the most valuable purpose for which the lands could be devoted. In order to establish this last point (as the most valuable use for which the lands could be devoted), Richards showed that he had invested in the lands, hangars, runways, and other improvements to the airport, a total in excess of $110,000; that the rental value of the airport made a fair return on the investment. Richards showed that the State Highway Commission had condemned a strip of land for a highway right-of-way through the approximate center of the airport; that the right-of-way through Richards’ airport varied from 300 to 320 feet in width, and from 1333 to 1976 feet in length; and that the strip so condemned completely destroyed the use of the land as an airport and rendered it valuable only for agricultural purposes. The strip condemned contained 12.35 acres and the lands remaining totalled 52.65 acres in two tracts, entirely separated from each other by the highway right-of-way. Thus, the use of the lands as an airport was completely destroyed; and witnesses for Richards testified that the two tracts remaining were valuable only for agricultural or grazing purposes, and had a value, as such, of about $100.00 per acre, or a total of $5,265.00.
The appraiser for the Highway Department testified that the total value of appellant’s 65-acre tract was only $48,750 before the taking, and that after the taking the lands remaining were worth $25,500. Thus, the appraiser for the Highway Department fixed $23,250 as the maximum amount that Richards should recover. Appellant says that what Richards spent in improving the airport is not the test of value; and appellant is correct in such statement; but the cases recognize that when there is no readily ascertainable market value for the property in the particular use to which it is devoted (as an airport in the case at bar) then the cost of the property is admissible — not as a substitute for market value, but — as an aid to the jury to assist it in determining the market value. The rationale of the holdings is summarized in Nichols on “Eminent Domain,” 3rd Edition, Volume 4, § 12.313, in this language:
“Cost as criterion. As has been stated previously where the character of the property is such as not to be susceptible to the application of the market value doctrine, resort has been had, among other things, to the original cost of the property, or to the current cost of reproduction less depreciation. Market value, it has been held, is not equivalent to the amount expended for the property by the owner.
“The proper measure is the market value of the land with the buildings upon it, and the owner therefore receives nothing for the buildings unless they increase the market value of the land. Accordingly, evidence of the structural value of the buildings is not admissible as an independent test of value. When, however, it is shown that the character of the buildings is well adapted to the location, and structural cost of the buildings, after making proper deductions for depreciation by wear and tear, is a reasonable test of the amount by which the buildings enhance the market value of the property. As in other cases of determining market value, not only the character and condition of the building, but also the uses to which it might be put, are matters for consideration.
“As a general rule the market value of the property is the measure of damages, and, ordinarily, the cost of construction is not material, and especially the cost of some particular improvement, which, however convenient to the owner, may not correspondingly increase the market value. When there is nothing to show that the cost of a particular improvement would aid in determining the market value of the whole estate, or that the value of the whole estate would depend closely on the cost in detail of improvements made upon it from time to time, evidence of such cost should be excluded. When, however, it appears by independent evidence or by reasonable inference that a building or other improvement erected upon the land tended to adapt the property to the use to which it could most advantageously be put, and there is nothing to show that the sum paid for its construction was not paid in good faith and under normal conditions, it cannot be said as a matter of law that the cost would not assist the jury in arriving at the market value of the whole estate, and in such a case evidence of the cost is admissible.
“The admissibility of such evidence has in some cases been left to judicial discretion.”
Giving the evidence its strongest probative force to sustain the verdict, as is our rule on appeal, we reach the conclusion that the amount awarded is not excessive.
The judgment is affirmed.
William J. Smith, J., not participating.
Holt and Robinson, JJ., dissent.
Mrs. Richards was a party to the case because of dower; hut we refer to the Richards as “appellee”.
This witness stated that the 52.65 acres remaining after the taking were worth $750.00 per acre; whereas, witnesses for Richards placed such value at only $100.00 per acre. This difference between the witnesses as to value of the 52.65 acres remaining would be $34,222.00.
For additional discussion, see also the same work, Volume 5, § 20.1.
See Albert v. Morris, 208 Ark. 808, 187 S. W. 2d 909, and cases there cited. | [
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HUMPHBEYS, J.
Appellee instituted this suit against appellants on the 2d day of February, 1915, in the Ozark District of Franklin County, to recover damages on account of the alleged unlawful withholding of certain chattels to which appellee was entitled by virtue of a compromise agreement and order entered in a re-plevin suit by appellant Flake against appellee.
All of the material allegations in the complaint were denied by appellants.
The cause was submitted to the jury upon the pleadings, evidence adduced, .and instructions of the court. A verdict for $65 was returned in favor of appellee and judgment rendered in accordance therewith. Proper steps were taken, and an appeal from the judgment has been lodged here.
Appellant insists that the judgment should be reversed—
First. Because appellee was permitted to give testimony without having been sworn.
Second. Because the verdict and judgment was excessive.
Third. Because the verdict was contrary to the evidence and the law.
Buie 9 of this court provides that the appellant shall abstract or abridge the transcript by setting forth the material parts of the pleadings, proceedings, facts and documents upon which he relies, together with such other statements from the record as are necessary to a full understanding of all the questions presented to this court for decision.
No evidence whatever has been abstracted by appellants. The evidence abstracted by appellee in no way as sists appellants in maintaining their alleged assignments of error.
In reference to the first assignment of error this court has held that (quoting syllabus 1), “A cause willnot he reversed because a witness was not sworn before being permitted to testify, where the omission was a mere inattention, and where appellant raised the question for the first time after verdict.” St. L., I. M. & S. Ry. Co. v. Hairston, 125 Ark. 314.
We are not informed by the abstract as to whether appellee testified without taking the oath, or whether the oath was not administered through omission or mere inattention, or whether any objection was made at the time to the witness testifying without taking the oath required by law. From the abstract before us, the first intimation of any objection to the witness testifying on this account appeared in the motion for’ new trial.
With reference to the second and third assignments of error, it is impossible for us to intelligently pass upon them without exploring the transcript to ascertain what testimony was given.
For the failure to comply with rule 9 of this court, the judgment is affirmed. | [
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Andree Layton Roaf, Judge.
This is a summary-judgment case. Appellants Rebecca and Korey Collins appeal from the trial court’s grant of summary judgment in favor of appellee Harold Morgan. On appeal, the Collinses argue that the trial court erred in granting Morgan’s motion for summary judgment. We agree and reverse and remand for a trial on the merits.
On July 9, 2003, Rebecca Collins filed a complaint in Washington County Circuit Court against Sandra Powell and Harold Morgan alleging causes of action for negligence and negligent entrustment. In her complaint, Rebecca alleged that, on July 11, 2000, she was a pedestrian in the Thrifty Rental Company parking lot in Springdale, Arkansas, when a car driven by Sandra Powell struck her and caused severe injuries; that the vehicle that Sandra was driving was owned by Harold Morgan; that Sandra operated the vehicle in a careless and negligent manner in violation of Ark. Code Ann. § 27-51-104 (Supp. 2003); and that Sandra was legally intoxicated at the time of the accident in violation of Ark. Code Ann. §§ 5-65-101 (Repl. 1997) and 5-65-206 (Supp. 2003). Rebecca also alleged that Harold knew or should have known that Sandra would operate the vehicle in a negligent manner that would endanger other drivers and pedestrians, and that Sandra’s negligence and Harold’s negligent entrustment were the proximate cause of her severe injuries.
On July 17, 2003, Harold answered Rebecca’s complaint. He admitted that he was the owner of the vehicle in question but denied permitting Sandra to operate his vehicle. Harold further alleged that he had sold the vehicle to his brother, Larry Morgan, on installments and had instructed his brother not to allow anyone else to operate the vehicle. Harold also denied that Rebecca had been injured to the extent she alleged in her complaint, and he also denied that his conduct was the proximate cause of her injuries. An amended complaint added Korey Collins as a plaintiff and Larry Morgan as a defendant, sought damages against Larry Morgan for negligent entrustment, and alleged a cause of action for loss of consortium for Korey Collins.
Harold, Larry, and Sandra gave sworn statements on August 7, 2000, at the offices of Nationwide Insurance Company. The following was established during Harold’s statement. In June 1999, Harold purchased a 1995 black, Hyundai S-coup that he financed through a bank. Sometime between September and November, Harold ceased using the car. Larry needed a car, and Harold decided to sell the Hyundai to Larry in September or October of 1999. The sale was conditioned upon Larry making the monthly insurance premium payment and paying Harold $175 per month for the car payment. The title was to remain in Harold’s name until the purchase price was paid in full, and Larry was not to allow anyone else to drive the car because other drivers were not insured. Despite this warning, Harold admitted that Larry had let Sandra drive the car on one occasion; and that, when he saw her driving the car, he chased her and instructed her to never drive the car again. During this encounter, Harold inquired whether Sandra had a driver’s license, and Sandra said that she did, but that “Spring-dale’s got them.” Harold then confronted Larry about having seen Sandra driving the car. On the day of the confrontation, Larry said that he had been drinking, but denied giving Sandra the keys to the car. Harold told Larry that he had seen Sandra in the car, and Larry then stated that he had been sleeping and did not know anything about the situation. Harold instructed him not to allow Sandra to drive the car or he would take it. When asked whether he thought Sandra would drive the car again after he confronted her about driving it the first time, Harold replied, “Everybody deserves their first chance, you know, I mean, if you do something wrong, you know, I mean, I’m game for it, you know. I’m — everybody — you know, you ain’t perfect. So I give him a second chance, but the second chance didn’t go no more. That was it. There wasn’t no third or nothing.” Harold described Sandra as a “drifter,” “alcoholic,” and “fly-by-night” girl.
Harold stated that he did not learn of the accident until two days after it had occurred because Larry and Sandra had attempted to keep it a secret. At first, Harold thought that Sandra had hit another vehicle but later learned that she had hit a pedestrian. Five days later, when Harold spoke to Larry about the accident, Larry said that Sandra had been taken to jail for DWI, for failing to take a sobriety test, and for driving on a suspended driver’s license. When asked whether he knew how Sandra ended up with the car on the date of the accident, Harold explained that Sandra took the car while Larry was sleeping and started it with a bobby pin. When asked whether he had spoken to Sandra since the accident, Harold stated, “I don’t want to say the words I said, because — it — it hurt me bad, you know, because she knew she wasn’t supposed to drive that car.” When asked whether he told Sandra she was not supposed to be driving the car, Harold said, “Yes, sir, I sure did. .. . She knows it. [She said,] ‘Oh, I’ll never drive it again. I’ll never — I thought it was Larry’s.’ ” Harold said that he responded, “No, it’s mine and Larry’s, but it’s more mine than it is Larry’s. Until he pays for it, it’s. mine. . . .You never ever drive this damn car again.” Harold went on to say that, when discussing the accident, Larry had told him that he did not give Sandra permission to drive the car. He further stated, “I haven’t really talked to her about it. I don’t know. All I know is they said they didn’t give her permission to drive it, and she knows she didn’t have permission to drive it.” Apparently frustrated by the vague stories he was receiving regarding the circumstances of the accident, Harold told Larry, “Well, then, you get you’un’s asses from Little Rock down here, and all four of us is going down there, and you’re going to tell [them] what the hell went on, because I don’t know what’s going on, neither, because y’all lie to me every time I turn around. I don’t know — you go in there and you tell [them] that you didn’t give her permission, and she can tell them that she didn’t have permission.” Harold also stated that every time he saw Larry he would remind him, “Remember, don’t let nobody drive that [car].”
Following Harold’s statement, Larry testified that he received the Hyundai in November 1999 after the motor in his van quit. He too stated that he was responsible for paying the $175 car payment and the insurance premium. Larry, however, denied that he owned the car. He said, “More or less I was making the payments. It wasn’t really mine. It was just that I was using it until I got my van straightened out.” Larry stated that, if he got his van working and decided that he no longer wanted the car, he could give it back to Harold, but that, if he kept it until it was paid off, then the car would become his. He admitted that Harold had instructed him not to allow other people to drive the car; that he allowed Sandra to drive the car on one occasion; and that, after Harold confronted him about seeing Sandra driving the car, he did not allow her to drive the car again. On the one occasion that Larry permitted Sandra to drive the car, Larry stated that he had given her the key to the car. At the time that Larry had given Sandra permission to drive the car, he had only known her for approximately one week. The two began living together; Larry had a car, but Sandra did not. Larry was asked how Sandra got around if she did not own a car. Larry said, “Me most of the time. I done most of the driving.”
Larry stated that, on the day of the accident, he had been with Sandra at the hospital the night before. Sandra had been hospitalized for three days due to substance abuse. She was released at 8:00 a.m. that morning, and Larry drove her to his sister’s house where the two of them were living. The two talked until about 10:30 a.m. when Larry fell asleep. He testified that he was tired because he had been up all night with Sandra at the hospital the night before. When he awoke approximately one hour later, he discovered that Sandra and the vehicle were gone. He said that the keys to the car were in his pocket so, at first, he did not know how she got the car started. He said, “I figured, you know, she — had to be the only one driving it. I mean I had the key in my pocket.” Larry began looking for Sandra. He went to the places he thought she might be and the lake. He discovered that she was in custody at the Springdale police station for DWI. Larry bonded Sandra out of jail, and she explained that she had rear-ended a woman. Apparently, Sandra had been attempting to make a turn into a trailer park, but missed her turn and hit Rebecca. Other than that explanation, Larry said that Sandra could not remember the details of the accident. When asked whether he had given Sandra permission to drive the car on the day of the accident, Larry responded that he had not given her permission; that Sandra knew she did not have permission to drive the car; and that she had started the ignition with a pair of eyeglasses. Larry stated that there was only one set of keys to the car, and they were in his pocket when Sandra took the car; but that the tip of his car key is broken off in the ignition, which may explain how she got the car started with a pair of eyeglasses.
Sandra’s testimony mirrored Harold and Larry’s testimony regarding her impermissive use of the vehicle. She admitted that she drove the car on one occasion with Larry’s permission; that Harold instructed her not to drive the car because her driver’s license was suspended and because she was not an insured driver; and that on the day of the accident she did not have permission to drive the car. She admitted that she had two prior DWI offenses. She stated that, on the day she was released from the hospital, however, she was heavily medicated. During her statement, she provided documents from the hospital; however, the documents indicated that Sandra had received only insulin, “Hepatitis C viral,” and “Peptide.” She also testified that she had been released from the hospital at 2:30 p.m.; that she remembered being released in the afternoon because she had had lunch at the hospital that day; and that it was daylight when she left. When told that the incident report indicated that the accident occurred at 11:55 a.m., Sandra seemed confused and stated, “Well, see that goes to show you. I don’t — I don’t have any idea.”
Sandra said that, after she was released from the hospital, she went to Larry’s house. While Larry was asleep, she took the car without his permission to get a pack of cigarettes. She stated that, because the key had been partially broken off in the ignition, she was able to start the vehicle by bending a pair of eyeglasses and inserting them into the ignition. She stated that she then drove the car to the gas station, but that she was unable to remember anything else other than the police putting her in handcuffs. Later on in her statement, Sandra remembered that she missed the turn into the trailer park and ended up in the Thrifty Rental parking lot; that she recalled seeing the woman on the tailgate of a truck and hearing a woman yelling, “call 9-1-1 . . . She’s pregnant”; and that she recalled being taken to jail. She admitted that she was at fault for the accident and for taking the car without permission, but' denied that she had been drinking on the day of the accident. Sandra also denied that she had ever taken any vehicle without the owner’s permission and attributed her conduct to the drugs she had allegedly taken at the hospital.
On November 19, 2003, Harold filed a motion for summary-judgment. The motion indicated that, according to sworn statements taken from him, Larry Morgan, and Sandra Powell, Sandra operated the vehicle without permission and without Harold’s knowledge. After setting out the law applicable to motions for summary judgment, Harold argued that he was entitled to judgment as a matter of law because there are no genuine issues of material fact to be litigated where sufficient evidence did not show that he knew or had reason to know that Sandra would steal the car without Larry’s knowledge or permission that he had sold to Larry.
On December 3, 2003, the Collinses filed a response to Harold’s motion for summary judgment, alleging that there were genuine issues of material fact to be decided by a jury. The response challenged the credibility of the statements given by the three defendants and asserted that the facts surrounding how Sandra came into possession of the vehicle on the date in question were “suspect and susceptible to at least one reasonable hypothesis consistent with an entrustment of said vehicle that would render Harold Morgan liable.” Accordingly, the Collinses sought denial of Harold’s motion for summary judgment.
Attached to their response was a copy of Rebecca Collins’s answers to Harold’s interrogatories. In her answers to the interrogatories, she identified six persons having knowledge of the facts surrounding the accident. She indicated that Soni Fitzpatrick, a potential witness, was an employee of the Thrifty Car Rental on the day of the accident; that she observed Rebecca being struck by the vehicle; that she observed Sandra turn off the car and put the keys to the car in her pocket; that, when Sandra came over to Rebecca, Soni smelled a strong odor of alcohol; that she asked Sandra if she had been drinking; and that Sandra admitted that she had. These statements also appear in a sworn affidavit attested to by Soni, which was also attached to the response. Soni’s affidavit also states that Sandra never stated that she did not have permission to drive the car or that it was stolen. The response also indicates that Rebecca observed Sandra with the keys to the car and would testify that Sandra was belligerent and had been drinking. There is also a sworn affidavit from Rebecca indicating that she saw Sandra with the keys to the car in her hand.
The response also included Rebecca’s response to a request for production of documents. Attached to the request is a copy of the police report, which indicates that Sandra was cited for failing to submit to a sobriety test and for DWI. The response also indicated that there was also an oral statement from the tow truck driver that, generally, when he tows cars for the Springdale Police Department, he is given the keys to the vehicle.
The trial court granted Harold’s motion for summary judgment on the pleadings and the Collinses appeal.
Our standard of review for summary judgment cases is well-established. Ginsburg v. Ginsburg, 353 Ark. 816, 820-21, 120 S.W.3d 567, 569-70 (2003). Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Id. The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. Id. We no longer refer to summary judgment as a “drastic” remedy and now simply regard it as one of the tools in a trial court’s efficiency arsenal. Id. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id.
On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id. Moreover, “[i]f a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence.” Id. at 821, 120 S.W.3d 570.
The Collinses raise five points on appeal and present several subarguments. Because their first, fourth, and fifth points on appeal deal with the issue of negligent entrustment, we address those arguments together. In this regard, the Collinses argue that (1) based on the standard of review, the trial court erred in granting the motion for summary judgment on the issue of negligent entrustment; (2) Sandra had implied permission to drive the car; and (3) Harold is liable for his entrustment of the vehicle to Larry. We agree that the Collinses have demonstrated the existence of a genuine issue of material fact regarding the issue of negligent entrustment.
“Negligent entrustment” is established by showing that: (1) the entrustee was incompetent, inexperienced, or reckless; (2) the entrustor knew or had reason to know of the entrustess’s conditions or proclivities; (3) there was an entrustment of the chattel; (4) the entrustment created an appreciable risk of harm to the plaintiff and a relational duty on the part of the defendant; and (5) the harm to the plaintiff was proximately or legally caused by the negligence of the defendant. Mills v. Crone, 63 Ark. App. 45, 49, 973 S.W.2d 828, 831 (1998).
In Mills, supra, we quoted from Section 308 of the Restatement 2d of Torts:
It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such a person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.
(Emphasis added.) Permission to use a thing may be expressed on implied. Norskog v. Pfiel, 197 Ill.2d 60, 755 N.E.2d (2001) (citing Restatement (2d) of Torts § 308). In Clark v. Progressive Ins. Co., 64 Ark. App. 313, 984 S.W.2d 54 (1998), this court considered whether an insured had given her live-in boyfriend implied permission to drive her car when he hit and killed a pedestrian. The court stated:
Whether the owner has given another person implied permission to drive his or her automobile depends on the nature of the relationship between the owner and the borrower. The standard treatise on the law of insurance describes ‘implied permission to drive an automobile’ as follows:
An implied permission ... is not confined to affirmative action, but means an inferential permission, in which a presumption is raised from a course of conduct or relationship between the parties in which there is a mutual acquiescence or lack of objection signifying consent.
But implied permission is not limited to such situations, and will be evaluated in light of all facts and circumstances surrounding the parties. Implied permission may be proved by circumstantial evidence. Circumstances such as usage, practice, or friendship may be used to show implied permission.
It may be found that the insured has given implied permission where the named insured has knowledge of a violation of instructions andfails to make significant protest....
• • •
if the owner of an automobile forbids another person from driving the automobile, but the other person continues to do so with the knowledge of the owner, then the owner has given implied permission to drive the automobile.
Id. at 318-19, 984 S.W.2d at 58 (citations omitted) (emphasis added). In Clark, the court concluded that, because the insured’s boyfriend stated that she knew he continued to drive her car even though she had told him not to do so, there existed a genuine issue of material fact regarding whether the insured had impliedly permitted her boyfriend to drive her car.
We find that there are genuine issues of material fact with regard to the issue of negligent entrustment. Harold’s motion for summary judgment was based, in large part, on his assertion that there was no genuine issue of material fact regarding his entrustment of the car to Sandra. We disagree. As we stated in Mills, supra, a person is negligent if he permits a third party to use a thing and knows or should know that the entrustee intends to use it in a manner that creates a risk of harm to others. Here, the record reveals an issue of fact regarding Harold’s implied permission and entrustment of the car to Sandra.
The first issue concerns whether, after Harold discovered a violation of his instructions, he made a significant protest to Sandra’s operation of the vehicle. Clark, supra. The facts indicate that, when Harold discovered Sandra driving the car the first time, he confronted her and instructed her not to drive the car again. Sandra responded that she believed that the car belonged to Larry, and Harold informed her that it belonged to them both. He also asked whether she had a driver’s license, and Sandra said that she did not. When he contacted Larry regarding Sandra’s use of the vehicle, Larry initially denied that Sandra drove the car, and later recanted his story when Harold told him that he had seen Sandra in the car. Larry also denied giving Sandra the keys to the car and stated that he did not know anything about Sandra driving the car because he was sleeping, but later stated that he had given her the keys to the car so that she could take some tools to his father’s house because he had been drinking and could not drive. Harold stated that he threatened to take the car if Larry permitted Sandra to use the car again, but also stated that he felt everyone deserved a “second chance.” When asked whether he thought Sandra would drive the car again after he confronted her about driving it the first time, Harold replied, “Everybody deserves their first chance, you know, I mean, if you do something wrong, you know, I mean, I’m game for it, you know. I’m — everybody —- you know, you ain’t perfect.” Harold also stated that he had told Larry that if he could not adhere to their agreement, then Larry should bring the car back, and that he constantly reminded Larry that he should not permit other people to drive the car. Although Harold took the car after the accident involving Rebecca Collins, he first indicated that he took the car back because Larry had failed to make payments. Later in his statement, he indicated that he took the car because Larry had allowed Sandra to drive the car. Nonetheless, it is clear that Harold did not take the car back until after the accident that is the subject of this case. Given these facts, we conclude that there exists a genuine issue of material fact regarding the sufficiency of Harold’s protest after he discovered Sandra driving the car and whether his actions constitute implied permission.
Second, the facts show that there is an issue regarding whether Harold knew that Sandra was operating the car even though he had told her not to. Although there is no statement from Sandra indicating that Harold knew that she continued to operate the car despite his prohibition, as there was in Clark, supra, the circumstantial evidence in this case presents a genuine issue of dispute. In Clark, supra, we stated that, when another person operates an insured’s vehicle even though the insured has forbade him to do so, and the insured knows, then the insured has given implied consent. Implied consent can be shown by circumstantial evidence. Clark, supra.
A jury should be allowed to determine whether, under the circumstances, Harold knew that Sandra drove the car despite his instruction. Sandra is Larry’s live-in fiancee. She does not have a car of her own and depends on Larry’s transportation to get around. After knowing Sandra one week, Larry allowed her to drive the car to his parents’ house to deliver tools. At the time of the accident, they had been together for a month. According to Harold’s statement, he was not sure whether Larry allowed Sandra to drive the car, and he stated that Larry and Sandra often lied to him. It also appears that Harold was not completely convinced that Larry had adhered to their agreement. He admitted that he had to constantly remind Larry not to allow other people to drive the car, expressed frustration over the inconsistent stories he got from Larry, and admitted that Larry and Sandra often lied to him. In fact, Harold stated that Larry and Sandra attempted to keep the accident a secret, and that he learned of the accident two days after it happened. When he finally discussed the accident with Larry, Larry told Harold that Sandra had taken the keys while he was asleep; that he had not given her the keys; and that he did not give her permission to drive the car. This is the same story that Larry gave Harold when Harold discovered Sandra driving the car the first time. That time, Larry stated that he did not know that Sandra had driven the car, and that he had not given her the keys. Only after Harold informed Larry that he had seen Sandra driving the car did Larry admit that he had given her the keys to drive the car because he was drunk or asleep and could not drive.
Given these facts, we find that a jury should have been allowed to determine whether Harold gave Sandra implied permission to drive the car, whether Harold knew or should have known that Sandra would operate the car even though he had instructed her not to, and whether Harold’s actions were sufficient to constitute a significant protest after he discovered the violation of his instructions.
Additionally, the fact that there are two entrustments is not a bar to recovery. LeClaire v. Commercial Siding and Maint. Co., 308 Ark. 580, 826 S.W.2d 247 (1992). An original entrustor may be liable for negligence in entrusting chattel to one who further entrusts it, resulting in injury to another person. Id. (discussing Garrison v. Williams, 246 Ark. 1172, 442 S.W.2d 231 (1969) (upholding a jury’s verdict that found Garrison liable for injuries suffered by Williams’s daughter in a car accident where Garrison had entrusted his vehicle to his fifteen-year-old son, who then entrusted it to his fifteen-year-old friend, who caused the accident the resulted in Williams’s daughter’s injuries)).
First, it is clear that Harold entrusted the vehicle to Larry. Harold allowed Larry to drive the car conditioned upon payment of the car insurance, payment of the car note, and their agreement that Larry would not take the car out of state or permit others to drive it. There is testimony that, despite his agreement with Harold, Larry permitted Sandra to drive the car to his father’s house to deliver some tools because he was too drunk to drive. Harold warned Larry about letting Sandra drive the car, and Larry maintains that he adhered to the warning. He denied allowing Sandra to drive the car on the day of the accident and testified that he had the keys with him at all time. However, the Collinses presented a sworn affidavit from Soni Fitzpatrick that states that she saw Sandra with the keys to the car after the accident. Rebecca Collins also indicated in her response to Harold’s interrogatories and in her affidavit that she saw Sandra with the keys after the accident. Thus, the question remains whether Larry did in fact entrust the vehicle to Sandra by giving her the keys to the car on the day of the accident or by otherwise permitting her to use the car. If Larry negligently entrusted the vehicle to Sandra, then Harold may be liable as the original trustor. LeClaire, supra; Garrison, supra. The fact that there were two entrustments does not bar appellants’ recovery. LeClaire, supra.
There is also a question regarding whether Sandra was drunk at the time of the accident, and therefore, whether Larry entrusted the vehicle to a person he should have known would drive in a reckless manner. Both Larry and Sandra deny that she had been drinking that day; however, the Collinses provided an affidavit, a police report, and court documents indicating that Sandra was arrested for DWI on the day of the accident and was subsequently prosecuted. Larry also indicated that Sandra was medicated. So, even if Sandra was not drunk, if Larry gave her the keys to the car, then he entrusted the vehicle to an incompetent person. Larry should have known of Sandra’s proclivities for drinking excessively because she did not have a driver’s license as the result of previous DWIs and had just been released from the hospital for substance abuse or alcoholism. Harold also indicated that he was aware that Sandra’s driver’s license had been suspended and that she was an alcoholic.
Accordingly, we find that the Collinses have presented proof of a number of genuine issues of material fact regarding the issue of negligent entrustment, namely: (1) whether Harold gave Sandra implied permission to drive the car, thereby entrusting it to her; (2) whether Harold’s conduct constituted a significant protest after he discovered the violation of his instruction to not allow Sandra to operate the car; (3) whether Larry entrusted the vehicle to Sandra by giving her the keys; (4) and whether Harold or Larry entrusted the car to her knowing of her proclivities.
For their second and third points on appeal, the Collinses argue that summary judgment was not appropriate in this case because it was based on the sworn statements of the three defendants — who were all interested parties in this case. The Collinses note that the sworn statements were taken at the insistence of Harold’s insurance company; that they were not subject to cross-examination; and that each of the witnesses were parties to the lawsuit. The Collinses also challenge the credibility of all three witnesses and maintain the summary judgment was not appropriate because of the inconsistencies in the witnesses’ statements. This argument has merit.
The Collinses cite this court to a line of cases that hold that the trial court is not required to accept the testimony of an interested witness and that the testimony of such witnesses cannot be considered undisputed merely because there was no contradictory evidence presented. See Motors Ins. Co. v. Tinkle, 253 Ark. 620, 488 S.W.2d 23 (1972); Old Republic Ins. Co. v. Alexander, 245 Ark. 1029, 436 S.W.2d 829 (1969); Knighton v. Int'l Paper Co., 246 Ark. 523, 438 S.W.2d 721 (1969).
In Motors, supra, our supreme court stated, “We have said many times that in weighing testimony, courts must consider the interest of a witness in the matter in controversy, and that a trier of facts is not required to accept any statement as true because merely so testified.” Id. at 626, 488 S.W.2d at 28. The supreme court noted that the underwriter, an interested party, presented no proof of its underwriting standards or testimony from a disinterested witness. Id. Thus, the underwriter’s testimony could not be taken as undisputed, and the trial court was not required to accept it even though no contradictory evidence was offered. Id.; see also Old Republic Ins. Co, supra.
Appellants also cite Clark, supra, wherein the court stated:
A review of the record reveals several circumstances that would cause a reasonable fact-finder to doubt the truthfulness of Moseby’s deposition testimony. Although there is little Arkansas authority directly on point addressing whether a motion for summary judgment should be denied because of the lack of credibility of the moving party’s supporting evidence, there is ample persuasive authority in federal court decisions interpreting the federal version of our summary-judgment rule, Ark. R. Civ. P. 56, which is Federal Rule of Civil Procedure 56. We consider federal court decision interpreting Fed. R. Civ. P. 56 to be highly persuasive authority.
Id. at 320, 984 S.W.3d at 59. The Clark court went on to state that federal court decisions interpreting the Federal Rules of Civil Procedure establish that a trial court may deny a motion for summary judgment based on the lack of credibility of the moving party’s affiants or witnesses. Id. The court further stated, “Doubts as to the credibility of the movant’s affiants or witnesses may lead the court to conclude that a genuine issue [of material fact] exits.” Id. at 321, 984 S.W.2d at 59. Moreover, the court stated, “Clearly, if the credibility of the movant’s witnesses is challenged by the opposing party and specific bases for possible impeachment are shown, summary judgment should be denied.” Id. at 321, 984 S.W.2d at 59.
In Clark, Reginald Moseby hit and killed Otha Jordan while fleeing from the Dermott police. Id. At the time of the accident, Moseby was driving his girlfriend, Teresa Moore’s, car. Moore was insured by Progressive Insurance Company, who sought declaratory judgment on the issue of whether it was obligated to defend Moseby in a suit brought by the victim’s heirs. Progressive then moved for summary judgment arguing that it was not obligated to defend against the action because Moore’s policy did not cover non-permissive drivers. The motion was denied, and Progressive deposed Moseby. Progressive then filed a second motion for summary judgment, attaching Moseby’s deposition. The trial court granted the second motion for summary judgment.
In his deposition, Moseby testified that he and Moore had been “together” for twelve years; that the two lived together and had three children; that he never owned a vehicle, but that he helped Moore make the car payments on her car; that, even though Moore had forbidden him to drive the car, he had done so anyway, and that Moore knew that he had done so; and that, on the night he struck and killed Otha Jordan, Moore would not give him permission to drive the car, the two struggled, and he took the keys and left without her permission. When asked whether he considered the car his, Moseby responded, “I been with her twelve years, so she’s my wife, so what’s hers is mine and what’s mine is hers.”
On appeal, this court reversed the trial court’s grant of summary judgment in favor of Progressive. The Clark court found that several statements made during the Moseby’s deposition revealed his potential bias. Clark, supra. The court also found that his bias established a motive for him to tailor his account of what happened on the night of the accident. Id. The court concluded that a reasonable fact-finder could doubt the truthfulness of Moseby’s deposition because (1) his bias in favor of Moore would lead him to help her avoid adverse financial consequences, for example to protect her from increased insurance premiums should Progressive have to pay a claim, (2) his bias might lead him to tailor his testimony at Moore’s request, especially because he admitted that he had spoken to her about the case (3) his bias might lead him to testify' falsely in order to protect Moore from liability in a wrongful death suit brought by Jordan’s heirs, and (4) the witness was a convicted felon who was, at the time of his deposition, imprisoned for Otha Jordan’s death and may not be deterred by the possibility of a perjury conviction. The court also noted that Progressive only spoke with Moseby after its first motion for summary judgment was denied.
We find Clark, supra, persuasive and hold that the adverse parties’ testimony in this case reveals potential bias and creates a genuine issue of material fact. First, as the Collinses note, all three of the parties are related. Harold and Larry are brothers, and Larry and Sandra are live-in boyfriend and girlfriend. Therefore, the three have a motive to tailor their testimony or to testify falsely to shield Harold from liability for the Collinses’ injuries or from increased insurance premiums should the insurance company be required to pay the Collinses’ claims. Also, Harold’s testimony that he prohibited Sandra from using the car was self-serving because, as he admitted, only he and Larry were insured drivers. The facts also show that Harold, Larry, and Sandra had spoken about the case prior to giving their statements which were taken at Harold’s insurance company.
All three parties gave inconsistent testimony during their statements, and we have detailed a great number of them in this opinion. For example, Harold stated that he took the car from Larry because he failed to make payments; however, he later stated that he and his wife took the car from Larry because of the accident. Sandra testified that she had not been drinking on the day of the accident, but was heavily medicated. The exhibits attached to appellants’ response to the motion for summary judgment show that witnesses stated that they smelled alcohol on Sandra’s breath, and that she acted belligerent and “drunk.” She was arrested DWI on the day of the accident, and the police report indicates that she was obviously drunk, and her hospital documents did not show that she was medicated upon release. Furthermore, Sandra’s credibility is questionable. She testified that she was not released from the hospital until 2:30 p.m., and that she had lunch at the hospital. Larry testified that he picked Sandra up from the hospital at 8:00 a.m., and the accident report shows that the accident occurred at 11:55 a.m. Sandra’s testimony was inconsistent and subject to impeachment. The trial court erred in granting Harold’s motion for summary judgment because a reasonable trier of fact could conclude that all three witnesses for appellee were biased, and because a reasonable fact finder could have found that the testimony was further inconsistent and not credible, and therefore, could disregard it. Clark, supra.
Accordingly, because we find that there exist several genuine issues of material fact, we reverse and remand for trial.
Reversed and remanded.
Hart, Robbins, and Neal, JJ., agree.
Gladwin and Glover, JJ., dissent. | [
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Andree Layton Roaf, Judge.
This case involves the interpretation of a Medicaid reimbursement rule promul gated by the Arkansas Department of Human Services (DHS) in 2001. Under the rule, a long-term care facility/Medicaid provider would be reimbursed for its services based upon a number of cost factors, including the fair rental value of its facility. Appellee Siloam Springs Nursing and Rehabilitation (Siloam) asked DHS to interpret the rule so that Siloam’s pre-2001 renovations were considered in determining its fair rental value. DHS declined to do so, and its interpretation was upheld by a DHS hearing officer. Siloam appealed to circuit court, where the agency ruling was reversed. DHS now appeals from the circuit court’s order. We reverse the circuit court and remand with directions to reinstate the agency decision.
Before the new rule was promulgated, long-term care providers were reimbursed for Medicaid services by flat-rate payments. However, in 1999, the legislature directed DHS, in cooperation with the Arkansas Health Care Association (AHCA) and other interested parties, to “develop a new cost-based nursing facility rate methodology.” See Act 1537 of 1999, § 127(d). The Act required the new methodology to be submitted to the appropriate federal agency prior to January 1, 2001, so that it might be implemented by July 1, 2001. Id.
After the passage of Act 1537, DHS and AHCA worked together to develop the new system. According to Siloam, the most crucial aspect of this process was the calculation of each facility’s fair rental value because profit was built into that component. An independent assessment of each facility’s value was too expensive for DHS to undertake, and, according to one of Siloam’s witnesses, DHS records in this regard were “not very good.” Therefore, it was determined that AHCA would collect information about the facilities through surveys. AHCA’s data analyst, Lynn Rodgers, sent the surveys to providers requesting the year of licensure; the number of beds; the addition of new beds and the year they were added; the value of any major improvements costing over $76,000.
Through the process of negotiation, the parties agreed that the starting point for determining fair rental value would be a per-bed value of $38,000, regardless of the actual age or value of the bed. They also agreed that an aging index or depreciation factor would be applied to each bed, reducing the bed’s value by one percent for each year of its age, to a maximum of fifty percent. As an example, the value of a ten-year-old bed would be reduced by ten percent, i.e., from $38,000 to $34,200.
In addition, AHCA and its representatives believed that DHS would adjust the aging index for facilities that had made major renovations in past years. This would mean that, in the case of two facilities of roughly the same age, the facility that had undergone major renovation would have a higher fair rental value than the facility that had not renovated. In light of AHCA’s understanding, Lynn Rodgers continued to collect the facility surveys — which contained, inter alia, amounts spent on renovation — and passed them along to DHS program administrator Lynn Burton. Rodgers also developed several formulas and models to calculate the impact of major renovations on facility value. According to her and AHCA president Jim Cooper, these models and formulas were discussed and shared with DHS. Indeed, the record contains several pieces of correspondence that Rodgers sent to DHS in the fall of 2000, referencing the effect of major renovations on the aging index and containing formulas to be used in calculating that effect.
Lynn Burton of DHS agreed that she exchanged information with Lynn Rodgers, and she remembered at least some of the above mentioned correspondence. She also acknowledged that she received the surveys collected by AHCA. However, Burton testified that “we weren’t going to use” the renovation information provided by AHCA and that, even in the fall of 2000, “I did not believe that major renovations were going to be used in calculating the aging index. As far as I remember, we were never going to be using historical renovations.” Nevertheless, Burton did not tell Rodgers or Cooper that the renovation information would not be used or that it should not be sent to DHS.
In January 2001, DHS filed the new methodology with the federal government, and the system was implemented in the spring of 2001. It reflected the parties’ agreement that the fair rental component would be based on a per-bed value of $38,000, as reduced by an aging index of one-percent per year up to fifty percent. Section 6 of the reimbursement rule, which is at issue in this case, made the following statement with regard to the aging index:
Age of provider beds for purposes of calculating the aging index were taken from surveys provided by [AHCA] as prepared by providers. The provider is responsible for the accuracy of the information provided. The provider may at any time be required to provide records validating this information. The aging index is subject to adjustment based upon review or audit.
Siloam’s witnesses testified that they had no problem with Section 6 as written because it mentioned the surveys, and they therefore assumed that DHS would use the surveys’ renovation data to adjust the aging index. As a result, they expressed surprise when, in the spring of2001, DHS calculated reimbursement rates without considering past renovations.
Siloam, whose survey response reflected over $700,000 in renovations between 1999 and 2001, appealed the rate calculations to a DHS hearing officer. It argued that DHS should have interpreted Section 6 as requiring an adjustment to the aging index based on the renovation data in the survey and the parties’ understandings throughout the negotiation process. The hearing officer ruled against Siloam and concluded that the language in the new methodology was clear on its face and supported DHS’s implementation. Siloam appealed to Pulaski County Circuit Court, where the judge reversed the agency decision and ordered DHS to adjust Siloam’s rate to include “historic or past renovation data.” DHS now appeals from that order.
Judicial review of DHS decisions is governed by the Administrative Procedures Act, Ark. Code Ann. §§ 25-15-201 to -218 (Repl. 2002 & Supp. 2005). Section 25-15-212(h) of the Act provides in pertinent part that a court may reverse an agency decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
On appeal, it is not our role to conduct a de novo review of the circuit court proceeding; rather, our review is directed at the decision of the administrative agency. See Groce v. Director, Ark. Dep’t of Human Servs., 82 Ark. App. 447, 117 S.W.3d 618 (2003). When conducting our review, we keep in mind that the hearing officer is in the best position to determine the credibility of witnesses and decide the proper weight to give the evidence. Id. We also review the entire record and give the evidence its strongest probative force in favor of the agency’s ruling. Ark. Soil & Water Conserv. Comm’n v. City of Bentonville, 351 Ark. 289, 92 S.W.3d 47 (2002). Finally, we recognize that administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures, to determine and analyze underlying legal issues affecting their agencies. Ark. Dep’t of Human Servs. v. Schroder, 353 Ark. 885, 122 S.W.3d 10 (2003).
DHS, as the appellant before this court, argues that the agency’s decision was supported by substantial evidence; was not arbitrary, capricious, or characterized by an abuse of discretion; was not in violation of relevant statutory provisions or in excess of DHS’s statutory authority. See Ark. Code Ann. § 25-15-212(h). However, because our review is directed to the agency’s decision, see Groce, supra, our analysis on appeal will focus on the arguments made by Siloam, who seeks to reverse the agency. See, e.g., Ark. Soil & Water Conserv. Comm’n, supra. Siloam contends that DHS should have interpreted Section 6 to allow for adjustment of the aging index where a provider has made renovations to its facility.
We begin with the frequently-cited proposition that an agency’s interpretation of its own rules is highly persuasive, although it is not binding on the courts. Sparks Reg’l Med. Ctr. v. Ark. Dep’t of Human Servs., 290 Ark. 367, 719 S.W.2d 434 (1986). While we may reject an agency’s interpretation of its own rule if the interpretation is irreconcilably contrary to the plain meaning of the rule, see generally Burlington Indus. v. Pickett, 336 Ark. 515, 988 S.W.2d 3 (1999), an administrative agency’s interpretation of its own rule will ordinarily be upheld unless it is clearly wrong. See Ark. Prof'l Bail Bondsman Lic. Bd. v. Oudin, 348 Ark. 48, 69 S.W.3d 855 (2002).
Words in an administrative rule or regulation are given their plain and ordinary meaning unless there is an ambiguity. See Johnson v. Ark. Bd. of Exam’rs in Psychology, 305 Ark. 451, 808 S.W.2d 766 (1991); Rowell v. Austin, 276 Ark. 445, 637 S.W.2d 531 (1982). Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one reasonable interpretation. See generally Anderson Gas & Propane, Inc. v. Westport Ins. Corp., 84 Ark. App. 310, 140 S.W.3d 504 (2004).
Section 6 of the new reimbursement rule states that the ages of provider beds for purposes of calculating the aging index “were taken from surveys provided by [AHCA] as prepared by providers.” Siloam acknowledges that the new rule is correct as written and also states that the language in Section 6 is “clear and understandable,” thus making no claim of ambiguity. Rather, Siloam asserts that the language in Section 6 is so clear that DHS should have interpreted it to include consideration of past renovation data. Siloam primarily bases this argument on the section’s reference to the surveys, which contained the past renovation data, and on the parties’ negotiations prior to the implementation of the rule.
We agree that the language of Section 6 is clear, though not in the manner that Siloam suggests. Section 6 makes no mention that a facility’s past renovations will be taken into account for any purpose. Even Siloam’s financial officer, Jerry Sams, noted that, while such language could be “inferred” in the rule, it was not expressed verbatim. Section 6 states that the age of provider beds was taken from the surveys. The record as abstracted contains at least one survey that lists the provider’s beds and the year that the beds were added to the facility. Thus, Section 6 is little more than an acknowledgment of the fact that DHS obtained the ages of provider beds from the surveys. Its plain language does not contain a renovation adjustment.
Moreover, the parties’ negotiations did not require that the new rule be interpreted to include past renovations. Although AHCA provided DHS with information on past renovations and the testimony of Siloam’s witnesses is replete with statements that they “assumed” or “anticipated” or “thought” that DHS would use the information, they also said that they did not know if all of the information they were providing would be used. More importantly, as we have previously stated, the rule as written simply does not contain language to the effect that the renovation data should be considered. Therefore, DHS did not act unreasonably in refusing to stretch Section 6’s language to mean that all of the information on the surveys, including historic renovation data, must be used.
Nor does DHS’s purported lack of cooperation in the negotiating process change the clear language of the rule. Although we note that DHS cooperated to some extent by negotiating the per-bed value figure of $38,000 and the one-percent aging index, we again look to the wording of the rule rather than the events leading up to its promulgation. The rule makes no express mention that past renovations will be a factor in determining a facility’s initial fair rental value or calculating the aging index.
We are sympathetic in some respects to Siloam’s arguments, particularly that fairness dictates that providers who have renovated their facilities should have a higher initial rental value that those who have not. However, we do not substitute our judgment for that of the agency. Groce, supra. Moreover, in light of the manner in which Siloam has chosen to frame the issues on appeal, i.e., a challenge to the interpretation of the rule rather than the rule itself, we cannot say that DHS’s interpretation of the rule was clearly wrong, given its plain language and the witness testimony at the administrative hearing. Thus, in accordance with the Administrative Procedures Act, we do not conclude that the agency’s decision was unsupported by substantial evidence; was arbitrary, capricious, or characterized by an abuse of discretion; or was in violation of relevant statutory provisions or in excess of its statutory authority.
We therefore reverse the circuit court order and remand with directions to reinstate the agency decision. See Ark. Dep’t of Human Servs. v. Ark. Child Care Consultants, Inc., 318 Ark. 821, 889 S.W.2d 24 (1994).
Circuit court reversed and remanded; agency decision reinstated.
Bird and Baker, JJ., agree.
A trade association for owners of long-term care facilities.
As explained by one of Siloara’s witnesses, a bed’s value is not simply its physical worth but includes the value of other furnishings and costs associated with it and attributable to it, such as dining areas, day rooms, etc.
Siloam also argued at various times in the proceedings below and in its brief on appeal that Section 5 of the rule, which did take renovations into consideration, might somehow be applicable. However, during oral argument, Siloam acknowledged that Section 5 concerns prospective renovations only and not pre-2001 renovations. We therefore will not discuss Section 5 any further in this opinion.
Siloam argued on appeal that the agency’s findings of fact were not sufficient to allow review. See Ark. Code Ann. § 25-15-210(b)(2) (Repl. 2002). Because our review is directed to the plain language of the rule and the administrative officer concluded that the rule’s language was clear, we see no need for further findings. | [
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J. Seaborn Holt, Associate Justice.
Mrs. Elnora Brown died intestate, without descendants, on April 2, 1956. Her husband, Edwin Brown, and three other parties, claiming to be her heirs at law, survived her. Certain realty owned by the decedent was sold for a cash consideration of $2,900 and is now held by the duly appointed administrator, Kenneth Alexander, appellee. Mrs. Brown’s husband was declared incompetent and appellant, Corinne George, was appointed his guardian on April 9, 1956. The facts in this case appear not to be in dispute. Mrs. Elnora Brown had acquired the property in question as a devisee under the will of her (full) sister, Lucinda Adams, on March 22, 1955. The sole question for our determination is whether the estate of Mrs. Brown, deceased, in her real property here involved, was an ancestral estate, or a new acquisition.
Under the provisions of Sec. 61-228 Ark. Stats. 1947, Curtesy — Descent and Distribution — the surviving husband is entitled to one-third of the wife’s realty for life if the estate is ancestral. If the estate is a new acquisition, then the husband would be entitled to one-half of her realty in fee. A trial resulted in a judgment finding and declaring the estate of Elnora Brown to be an ancestral estate and we hold that the court was correct in so finding.
The distinction generally held between an ancestral estate and a new acquisition, is that a new acquisition is one that the intestate acquired by his exertions and industry or by will or deed from a stranger to the blood. See Kelly’s Heirs et al. v. McGuire and wife et al., 15 Ark. 555. Here the property came to the wife solely by the will of her sister. The blood relationship of the decedent, Mrs. Brown, and her sister brought this estate into being. “. . . ancestral estates come from no other consideration but that of blood; all others are new acquisitions,” Dowell v. Dowell, 207 Ark. 578, 182 S. W. 2d 344. This court in Carter v. Carter, 129 Ark. 7, 195 S. W. 10, used this language: “Under our statute of descents as interpreted by this court it is held that ancestral estates embrace not only descended estates, but also all other, which may have come to the intestate by gift, or devise, from either parent, or from any relation of the blood of either parent, and that, as to all such, it is the manifest intention of the legislature, upon the death of the intestate, without issue, to preserve them in the line of the blood from whence they came to the same extent that descended estates were so preserved at common law.”
We conclude, therefore, that this property became vested in the decedent because of the blood relationship to her sister, Lucinda Adams, who willed it to her, and is, therefore, ancestral property. Affirmed. | [
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Ed. F. McFaddin, Associate Justice.
This appeal involves matters of Sewer Improvement District No. 1 of the City of Dardanelle, Arkansas (hereinafter called “District”), occurring at various times from 1936 up to the present. A chronological statement, though lengthy,- may serve to an understanding of the points presented on this appeal.
1. The District was organized in 1917 under the Municipal Improvement District Statutes then in effect (see §§ 20-101 et seg. for the present statutes). In 1918 the District sold $32,500 of its 6% bonds, secured by mortgage of the assessed benefits. The bonds were payable serially and annually from 1918 to 1939. Whitaker & Company (who, along with Roy A. Dickie, will hereinafter be referred to as “Appellants”) became the owner of some, if not all, of the bonds issued by the District. The maturing bonds and interest appear to have been regularly paid until 1928, when the District defaulted.
2. In November 1936 Whitaker and Company, on behalf of the bondholders, filed complaint against the District in Case No. 2856 in the United States District Court for the Eastern District of Arkansas (which case and Court are hereafter referred to as “Federal case” and “Federal Court”). The complaint was to obtain judgment for debt, to foreclose the mortgage, and for other relief. In October 1937 the Federal Court entered a decree awarding judgment to the plaintiffs and appointing a Receiver for the District to foreclose in the State Court the District’s lien on delinquent assessments. A portion of the judgment became owned by R. A. Dickie. The Federal Court appointed D. A. Love as Receiver of the District. Other Receivers were substituted by Federal Court order over the years, but we use the term “Receiver” to designate the person acting under the Federal Court orders.
3. In 1939 a suit was filed by the Receiver in the Tell Chancery Court to foreclose the District’s lien for delinquent assessments against each parcel of land in the District. This was Case No. 1522 in the said Chancery Court, and will be hereinafter referred to as the “State case” and the “State Court.” That case was styled on the docket of the State Court as, “D. A. Love, Receiver, Sewer Improvement District No. 1 of Dardanelle, Arkansas, Plaintiff, v. Delinquent Lands, Defendants.” Foreclosure decree was entered in the State case in 1941 and sale ordered. We will subsequently refer to this as “the 1941 foreclosure.” At the sale by the Commissioner of the Court, all parcels not sold to other parties were sold to the District. The report of sale of the Commissioner in Chancery was approved by the State Court, and the Commissioner in Chancery was directed to issue deeds to purchasers after the time for redemption had expired. The Commissioner in Chancery died, and there is no record of any deeds being issued. The original file of proceedings in the State Court has been lost; but it is apparent from the docket entries, record entries of proceedings, and by other evidence, that most of the parcels of land in the 1941 foreclosure suit were sold to the District. No disposition of any of the parcels seems to have been made until the decree here challenged.
4. For many years after 1941 the matters of the District lay dormant or semi-dormant in both State and Federal Courts, although some interlocutory orders were made in the State Court, as well as in the Federal Court. At various times Receivers were substituted by the Federal Court in the place of D. A. Love; and other interlocutory orders were made; but the recital of any of these is not essential to the issues here. The effect of Act No. 79 of the 1933 Arkansas Cfeneral Assembly was not called to the attention of the Federal Court for many years. Then in 1956 in the Federal case, the Court appointed the Commissioners of the District, “to proceed in good faith and with all reasonable speed to liquidate the assets of the District. . . .”
5. In 1956 Whitaker and Company and R. A. Dickie intervened in the Case in the State Court and alleged: (a) that the judgments rendered by the Federal Court in the Federal case in their favor remained unpaid, and with interest, amounted to approximately $42,000; (b) that the unpaid and unforeclosed benefits did not equal said judgment; (c) that the District has property which it acquired in the 1941 foreclosure in the State case; (d) that said property should be sold and proceeds applied on the $42,000 claim; and (e) for all other relief. This intervention stirred the District and the Commissioners to action. The Commissioners (Webb, Snyder, and Keenan, as named in the Federal Court order, supra) filed their pleading in the State case, pointing out: that many property holders had been willing to pay delinquencies as soon as the legality of the 1941 foreclosure suit in the State Court could be determined; and that the question was whether in the light of said Act No. 79 of 1933 a Federal Beceiver could foreclose in the State Court in the place of the Commissioners of the District. The Commissioners expressed a desire and willingness to proceed as soon as, and in the manner, directed by the Court. Other pleadings were filed by various intervenors and amici curiae.
6. There was a trial in the State Court on the various issues; and documents were introduced showing various orders and proceedings in both State and Federal cases during the many years intervening from 1936 to the present. The recitation of all of this would serve no useful purpose. On March 17, 1958 the learned Chancellor rendered the decree here challenged on appeal. In that decree the Chancellor of the State Court said:
“A matter of prime concern at this time is the determination of the validity or invalidity of the foreclosure obtained in the name of the Beceiver. The issue is presented to the court upon the petition of the Bepresentatives of the judgment holders in Federal Court who contend the title to the foreclosed lands is already in the District and this court should direct a commissioner to prepare proper deeds to the district and then subject the lands of the district to the satisfaction of their judgment.
‘ ‘ The Commissioners of the District ask that the entire foreclosure proceeding be declared a nullity and that this court set forth instructions Iloav to marshal the assets of the District.
“It is apparent that some past commissioners of the District have by word and action led the owners of delinquent property to believe that the foreclosure proceeding was void and should be disregarded, and it is more than just a possibility that such action together with the disregard of the provisions of Act 79 of 1933 caused the chancery court of Yell County to hold the execution of deeds in abeyance.”
And again the Chancellor said:
“The decree of the Yell Chancery Court has been on record since 1941. The subject matter was within the jurisdiction of the court. The owners of the delinquent land knew that the taxes had not been paid. No attack was filed in either court asking the removal of the Receiver. The Receiver collected some delinquencies and executed proper receipts and releases. To hold the Receivership void would be to penalize those taxpayers who were trying to pay what they knew they owed. Certainly their payments to the Receiver were valid extinguishment of the taxes levied against them. Every act of the Receiver was pursuant to his authority emanating from the United States District Court; and in this foreclosure action had the added authority of being within the jurisdiction of the Yell Chancery Court.
“This Court, therefore, holds that the Receivership was a valid receivership and the judgment of the Yell Chancery Court a valid judgment. Without relying in any manner upon any argument based upon whether or not the Yell Chancery Court judgment can be properly attacked at this late day in this matter this court finds that the foreclosure was and is a valid foreclosure.
“At the same time this court finds that the commissioners of the District should be substituted as parties plaintiff and stand in the place of the Receiver in this action (Chancery No. 1522); that the commissioners shall compute the delinquencies against the lands involved in this action with interest at the rate of 4% per annum and cause notice of such delinquent amounts and the delinquent property to be published in the Dardanelle paper for 3 consecutive weekly issues notifying all interested parties and persons that owners of the delinquent lands can and may redeem the same by paying the delinquency with accumulated interest within 90 days from the date of the first publication of such notice.
“The Commissioners of the District are hereby directed to proceed to collect the assets of the District including the delinquencies hereinabove referred to and in an orderly manner proceed to administer the affairs of the district to the end that whatever amounts are available to pay to creditors will be speedily made available for that purpose.”
7. Under the said Decree there were other provisions wherein the Commissioners were directed to proceed in a manner which intervenors disliked; and from that decree the intervenors (Whitaker and Company and R. A. Dickie) bring this appeal, making three assignments, as follows:
“1. The Court erred in not ordering the issuance of deeds to the District of lands sold it at the foreclosure sale not redeemed within five years.
“2. The Court erred in fixing the rate of interest at 4% instead of 6% per annum on the delinquent assessments as provided in the judgment Jan. 10th, 1941.
“3. The Court having upheld the validity of the foreclosure sale, erred in failing to direct the Commissioners to use sound judgment in disposing of properties for liquidation of debt.”
The District as appellee says in its brief in this Court:
“The sole question bothering Commissioners is whether or not the Foreclosure Decree of the Chancery Court of Yell County, entered on the 10th day of January, 1941, is of such validity that title to real property passed under and in accordance with it will divest the former owner of all right and claim which he may have had and invest the new owner with a. good and indefeasible, fee simple title.
“This question turns on whether or not the foreclosure suit brought solely in the name of D. A. Love, Receiver, for the Sewer Improvement District has any validity in light of Section 20-1120, Arkansas Statutes of 1947 (Act 79 of the General Assembly for the State of Arkansas for the year 1933) and the decisions of this Court interpreting that Act. ’ ’
In the amici curiae brief filed on behalf of the City of Dardanelle, there is the argument that the 1941 foreclosure decree is completely void.
Having stated the chronology and the points on appeal, we proceed now to our decision.
I. The Effect The Chancery Court Gave To The 1941 Foreclosure Decree Of The State Court. A court of equity is a court of conscience: a forum wherein justice is done, sometimes stripped of technicalities and red tape. A court of equity should be as alert to afford redress as the ingenuity of man is to cause situations to develop which call for redress. In one case we said:
“A court of conscience must keep the granted relief abreast of the current forms of iniquity. We should never naively refuse relief . . . simply because there is no similar instance of such ... in any of the books.” (Renn v. Renn, 207 Ark. 147, 179 S. W. 2d 657.)
In the case at bar the court of equity wisely considered the relative positions of the various parties and rendered a decree that does substantial justice to all.
The appellants contended in the lower Court: (a) that the 1941 foreclosure decree was valid; (b) that the District owned the land that was sold to it in the said foreclosure sale; and (c) that the Commissioners should immediately sell the land and pay the appellants’ claim. The appellants also alleged in their intervention, “. . . that the assessments remaining un paid in said Sewer Improvement District, all of which are delinquent, if collected, would not pay even one-third of the judgments; and that the only manner in which Roy A. Dickie will ever receive the amount to which he is entitled is by the plaintiffs, that is, the District, obtaining title to the various tracts of land which have been sold to the District and not redeemed within the time provided by law.”
We find no substantial evidence in the record to support the copied allegations. Evidently the appellants meant, by the copied allegations, to state that with the District owning the foreclosed property and with no assessments thereafter collected on said property, then the assessments remaining unpaid on the other property would not pay the appellants’ judgments. But under the order of the Chancery Court here appealed, the Commissioners must collect all delinquent assessments on each parcel of property sought to be redeemed, together with interest from the date each assessment was due until it is paid. That is to say, the Commissioners calculate not only the assessments that weré involved in the 1941 foreclosure, but all subsequent assessments. The adding of these subsequent assessments, together with interest, will materially change the situation from that alleged by the intervenors, as above copied. If any parcel sold to the Receiver (District) in the 1941 foreclosure sale is not so redeemed within the limited time stated in the decree here challenged, then the Commissioners will forthwith be entitled to a deed to such property; and thereupon the Commissioners will have the right of sále. So we fail to see how the appellants can be seriously hurt under the decree that the Chancellor rendered herein.
On the other hand, appellees stated in their pleadings that some of the property holders had been advised that the 1941 foreclosure decree of the State Court was void because the Arkansas statute forbade the appointment of an outside third person as a Receiver. The ap peliees ask for instructions'. Conceding only for the sake of argument that the 1941 foreclosure proceeding in the State Court could be held to be a nullity, then the unpaid and delinquent assessments involved in,that proceeding. are still due, and'all subsequent delinquent and unpaid assessments are still due; and all of these should be foreclosed. Against these assessments there could be no successful plea of limitation because the’ statute provides (§ 20-414 Ark. Stats.): “Said local assessment shall be a charge and a lien against all the real property in said District, . . . and shall continue until such local assessment, with any penalty and costs that may accrue thereon, shall be paid; . . . ” We held in Martin v. Board of Commissioners, 190 Ark. 747, 81 S. W. 2d 414, and in Lueken v. Burch, 214 Ark. 921, 219 S. W. 2d 235, that the statute of limitations does not run against the right of an improvement district (such as the one here involved) to foreclose its lien. If the entire 1941 suit had never been filed, a foreclosure could now be maintained for all delinquent assessments, penalty, and costs against each parcel of property. At some time the property owner of each tract must pay the amounts due or lose the property; so the setting aside of the. 1941 foreclosure proceeding in the State Court would not defeat payment.
The appellants, as judgment creditors, are entitled to payment — not property. The plan evolved by the learned Chancellor will produce money because of the necessity of redemption. If the property owners do not pay, then they ■ will lose their property. In Greer v. Blocker, 218 Ark. 259, 236 S. W. 2d 68, a drainage dis trict had for many years held title to several thousand acres of land acquired by it at a foreclosure sale for delinquent assessments. We said in that case: “Also the Chancery Court should direct the Receiver to ascertain and report the wise way to dispose of the lands on hand, so that the most money may be realized therefrom; in short, the Chancery Court should direct the Receiver to undertake the liquidation of the debts of the District . . . ” In the case at bar, the Chancellor has evolved a plan which is designed to accomplish for Sewer Improvement District No. 1 of Dardanelle exactly what should be done: the obtaining of all delinquent assessments and interest thereon or title to the property that remains delinquent. So, with the exception of the interest rate — to be discussed in Topic II infra — we think the Chancellor’s decision was just and equitable in all respects.
II. The Interest Bate. The Chancery Court provided interest at 4% per annum to be paid on each delinquent assessment when any property holder sought to redeem. Since the judgment of the appellants bore 6% interest and the bonds were 6% bonds, we conclude that the., interest rate, to be charged by the Commissioners on each delinquent parcel sought to be redeemed, should be 6% per annum, so that the appellants cannot lose because of interest rate.
Who can complain at 6% per annum interest? (1) Certainly not the property holders (see City of Eureka Springs v. Banks, 206 Ark. 289, 174 S. W. 2d 947). If the property owners pay 6% per annum interest they are still receiving a most equitable consideration. (2) Certainly not the appellants. They purchased bonds that bore 6 °/o interest and looked to the assessed benefits. If the Chancery Court requires the interest rate for the redemption to be 6% per annum on each delinquent assess ment from the time of delinquency until paid, then the amount received from the interest will be at the same rate as the interest on the bond issue and the judgment they hold.
We modify the decree to make the interest rate on redemption to be 6% per annum instead of 4% per annum. In all other respects the decree is affirmed at cost of appellants. The cause is remanded to reinvest the Chancery Court with jurisdiction for further proceedings.
William J. Smith, J., not participating.
This order of the Federal Court recites in part: “It is further ordered by the Court that the Commissioners of said District, namely, Harold Snyder, Lewis A. Webb and Dan Keenan, proceed in good faith and with all reasonable speed to liquidate the assets of said District and wind up the affairs of said District to the end that the judgments in this cause may be satisfied, or so much thereof as possible; . . .”
This 4% interest rate will be discussed in Topic II infra.
In 19 Am. Jur. 41 (Equity § 4) this statement appears: “But the primary character of equity as the complement merely of legal jurisdiction, in that it seeks to reach and do complete justice, where courts of law, through the inflexibility of their rules and want of power to adapt their judgments to the special circumstances of cases, are incompetent so to do, persisted and still persists.”
Of course, the amici curiae claim that the whole 1941 proceeding is void; but, even so, it would not relieve the property from the'unpaid benefits as hereinafter discussed.
Act 85 of 1925 prescribing a period of limitations for filing foreclosure suits for delinquent assessments applies only to Counties having a population of 75,000 or more; and we judicially know that Yell County does not have such population, so Act 85 of 1925 has no application.
The language in § 190 of Act 195 of 1949 (as found in § 20-422 Ark. Stats.), in using the words, “within six months”, is directory merely. The statute that is amended (§ 7313 Pope’s Dig.) had used the word, “forthwith”; so the 1949 Act in using the words,-“within six months”, was directory and did not provide a period of limitation.
Since the benefits were payable 4% each year until paid sufficiently to retire the bonded indebtedness, the Chancellor may have used the 4% interest rate, although his reason for using 4% interest instead of 6% is not stated. | [
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HAET, J.
Richmond Franklin- died in Arkansas County in this State owning property. J. W. Hinton was appointed administrator of his estate. J. H. Johnson and Eliza Edwards filed a petition in the probate court for the probate of a written instrument which they alleged to be the last will and testament of Richard Franklin, deceased. J. W. Hinton, as administrator, contested the probate of the will. The probate court refused to admit the instrument to probate as the last will and testament of Richard Franklin, deceased, and an appeal was taken to the circuit court. The circuit court sustained the judgment of the probate court in refusing the will to be .probated and directed that a copy of its judgment be certified to the probate court. The case is here on appeal. The facts are as follows:
Dr. S. F. Baker was one of the attending physicians of Richmond Franklin during his last illness. Richmond Franklin asked Dr. Baker if he would get well, and he said that the reason he wanted to know was that he had a little property and wanted to dispose of it before he died. Dr. Baker replied that he could dispose 'of his property by will. Franklin asked Dr. Baker to write his will for him arid told him that he wished to give his, property to Jas. H. Johnson and Eliza Edwards. Dr. Baker wrote out the will for him. Franklin signed it and Dr. Baker signed it as an attesting witness. He told Franklin that the law required that there should be two attesting witnesses. Franklin died without having procured another attesting witness. It was also shown in evidence that Richmond Franklin had frequently stated to different persons that he wanted J. H. Johnson and Eliza Edwards to have his property after he died. The probate of the will in common form was refused solely on the ground that there-was but one attesting witness to it.
Under our statutes property may be disposed of by will, but at least two attesting witnesses are required. Kirby’s Digest, § § 8010 and 8012.
There was only one attesting witness to the will and the court was right in refusing to allow it to be admitted to probate because the statute had not been complied with in regard to its attestation. Rogers v. Diamond, 13 Ark. 487; Janes v. Williams, 31 Ark. 175, and Payne v. Payne, 54 Ark. 415.
It is also contended that .the court should have admitted the instrument to probate as a will because such was the intention of Richmond Franklin. The answer to this contention is clearly stated in Albright v. North, Admr., 146 Cal. 455, 2 A. & E. Ann. Cases, 726. In that case the court said:
“The right to make a testamentary disposition of one’s property is purely of statutory creation, and is available only upon a compliance with the requirements of the statute. The formalities which the Legislature has prescribed for the execution of a will are essential to its. validity and can not be disregarded. The mode so prescribed is the measure for the exercise of the right, and the heir can be deprived of his inheritance only by a compliance with this mode. For the purpose of determining whether, a will has been properly executed, the intention of the testator in executing it is entitled to no consideration. For that purpose the court can consider only the intention of the legislature, as expressed in the language of the statute, and whether the will as presented shows a compliance with the statute. Walker’s Estate, 110 Cal. 387.”
It follows that the judgment must be affirmed. | [
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HART, J.
On the 8th day of August, 1916, Mary Walton instituted this action in the chancery court against J. C. Rand and O. Moreland. She alleged in her bill that her husband, herself and their children had planted and worked a crop on the land of the defendant, Rand, until July 17, 1916, and asked that an accounting be had of her interest in said crop. On the day the cause came on for hearing she filed an amendment to her complaint in which she asked that she be entitled to a laborers’ lien on the crop referred to in her original complaint. The facts are as follows:
O. Moreland was overseer for J. C. Rand on his farm in Lonoke County, Arkansas. He made a contract with Robert Walton whereby Rand agreed to furnish Walton with land, team, implements, etc., and Walton agreed t© cultivate the land for one-half of the crop. Pursuant to this contract Walton planted the crop on the farm of Rand and worked it until about the middle of July, 1916. At this time he had a quarrel with his wife and one of their daughters. The wife and daughters first left the place and then Robert Walton also left. He has not been back since that time.
Mary Walton, his wife, and one of their children testified that they had performed services in planting and growing the crop and that Robert Walton had promised them a part of the crop for their services. After these parties left, Rand hired hands to work out the crop and gather it. There was a surplus left after paying these expenses. It was the contention of Rand that Walton and his wife forfeited all interest in the crop by voluntarily abandoning it. On the other hand, it is the contention of Mary Walton that the crop became so advanced by the labor of her husband and herself that their labor had been a material value to the landlord and that they did not forfeit their share of the crop.
The court found in favor of Mary Walton and the case is here on appeal.
This court has decided that when a land owner agrees to furnish a laborer with land, teams, implements, etc., and the laborer agrees to cultivate the land for one-half of the crop, this establishes the method whereby the laborer is to be paid — that his wages are to be paid in part of the crop instead of money. Gardenhire v. Smith, 39 Ark. 280; Hammock v. Creekmore, 48 Ark. 266, and Bourland v. McKnight, 79 Ark. 427.
In 8 R. C. L., page 377, Sec. 24, it is said that the general rule is that a share-cropper forfeits all interest in the crop by voluntarily abandoning it without reasonable cause, but that a different rule would apply if the abandonment was due to some just cause. This rule is based on the fact that the contract is an entire contract and if the laborer has performed a part of it, and without legal excuse and against the consent of the land owner, has refused to perform the remaining part, he cannot recover anything for the part performed. On the other hand, it is contended by counsel for appellee that where the laborer has finished or nearly finished the work of growing the crop that he does not forfeit all his share of the crop, but he only submits to such deduction from his share as would compensate the landlord for the injury inflicted by the breach.
We need not consider which of these contentions is correct, for we have a statute governing cases of this kind. Section 5027 of Kirby’s Digest provides that if any employer stall;, without good canse, dismiss a laborer prior to the expiration of his contract, he shall be liable to snch laborer for the fall amount that would have been due him at the expiration of the contract.
Section 5028 provides that the laborer shall forfeit his wages if he abandons his employer without good cause. It reads as follows:
“If any laborer shall, without good cause, abandon his employer before the expiration of his contract, he shall be liable to such employer to the full amount of any account that he may owe him, and shall forfeit to his employer all wages or share of crop due him, or which might become due him from his employer.”
Robert Walton voluntarily abandoned his crop without any just cause or excuse therefor. Therefore he would not have been entitled to recover had he been a party to the suit.
Mary Walton and one of her children testified that Robert Walton, her husband, agreed to give them an interest in the crop if they would help him work it. They said that they did so and only left the crop in July when the quarrel came up. They voluntarily left the place before the expiration of the contract. So under the provisions of the statute, Mary Walton would not be entitled to a laborer’s lien as claimed by her. If it be conceded that she was entitled to a laborer’s lien by virtue of her contract with her husband, it will be readily seen that she forfeited all her rights by voluntarily leaving the place before the crop was completed without any just cause therefor and thereby forfeited all wages which might become due her.
It follows that the decree must be reversed and the cause will be remanded with directions to render a decree in accordance with the opinion. | [
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Minor W. Millwee, Associate Justice.
Appellees, Fred C. Hase and Elsa A. Hase, his wife, were the owners in fee simple of 160 acres of land in Sebastian County, Arkansas, prior to October 12, 1949. On that date they conveyed an undivided one-half interest in the minerals, and said interest subsequently passed through mesne conveyances to the appellants, C. M. Neilson and Woods Oil Corporation. After execution of the 1949 mineral deed, Fred C. Hase and wife continued to be the owners of the surface and an undivided one-half interest in the minerals until January 7, 1952, when they executed a full interest oil and gas lease to appellee, C. J. Haller, who in turn assigned said lease to appellee, Carter Oil Company.
The undivided one-half mineral interest severed by the 1949 deed was separately assessed for the 1952 general taxes which became delinquent. At the annual tax sale on November 9, 1953, appellee, Fred C. Hase, bid in the undivided one-half mineral interest and at the end of the two-year redemption period received a deed to said interest from the county clerk.
Appellants, C. M. Neilson and Woods Oil Corporation brought the instant suit on September 30, 1957, claiming that the purchase by Fred C. Hase at the 1953 tax sale of the forfeited one-half interest in the minerals should be treated as a redemption for the benefit of the appellants as his co-tenants, and not as a purchase ; and that said tax deed should be declared void and title to said mineral interest quieted in appellants upon their tender to Hase of the amount of said delinquent taxes, penalty, interest and costs. Appellants also al leged a number of irregularities connected with the tax sale and the record of the assessment of the severed mineral interest but these allegations were not sustained by the proof. This appeal is from a decree adverse to appellants in which the chancellor found: ‘ ‘ The conveyance in 1949, by defendants Fred C. Hase and Elsa A. Hase, of an undivided one-half interest in the oil, gas and other minerals did not create a tenancy in common between Hase and his grantees, but created two separate, distinct taxable estates to which Ark. Stats. Sec. 84-1304 does not apply.”
It is undisputed that Fred C. Hase and wife owned the surface and undivided one-half mineral interest and that appellants owned the other one-half mineral interest in the lands as a result of the 1949 and other conveyances executed prior to the 1953 tax proceedings. Appellants contend the chancellor erred (1) in refusing to hold they were tenants in common as to said mineral im terest, and (2) that the purchase by Hase of the tax title to the separately assessed one-half undivided mineral interest constituted a mere redemption for the benefit of appellants, his cotenants.
We find it unnecessary to determine whether Hase and the appellants were cotenants. Conceding, without deciding, that they were tenants in common, the purchase of the tax title by Hase did not amount to a mere redemption for the benefit of his cotenants. Appellants rely on the general rule that a cotenant who acquires a tax title to the entire property, either by purchasing at the tax sale himself, or subsequently buying from a purchaser who bought at such sale, cannot assert such title against his co-owners, except as a basis for contribution to repay him for his expenditure. His purchase simply amounts to a payment of the taxes, or a redemption from the sale, and gives him no right except to compel contribution. We have recognized this well-established rule in numerous cases but it is inapplicable here.
An exception to the foregoing general rule arises where the land has been assessed upon the tax books to and in the names of the owners of the undivided interests respectively, and when the owner of each undivided interest could have paid his own tax unaffected by the fact of joint interest, and where the subsequent tax sale and deed are based upon the separate assessment. The annotator states the applicable rule in 54 A. L. R. 906, as follows: “Where taxes are assessed separately against the interest of each cotenant, rather than against the common property as a whole, any co-tenant may acquire exclusively for himself, with his own money, title to parts of the property based upon tax sales against the other cotenants, provided, of course, he acts in good faith, and is under no contractual obligation, express or implied, to pay taxes assessed against his cotenants.” So, where the undivided interests of tenants in common are separately assessed, and there is no obligation resting on one of the tenants to pay the taxes of the others, he may acquire the interests of his co-tenants through a sale thereof for delinquent taxes. 86 C. J. S., Tenancy in Common, Sec. 64 b (1).
Many eases recognizing the exception to the general rule are collected in other annotations on the question in 70 Am. St. Rep. 101; 116 Am. St. Rep. 368; 85 A. L. R. 1538. One of these is Brittin v. Handy, 20 Ark. 381, 73 Am. Dec. 497, where the court approved the following statement from 1 Lomax Dig. 262: “It is, therefore, considered that joint tenants and coparceners stand in such confidential relations in regard to one another’s interest, that one of them is not permitted in equity to acquire an interest in the property hostile to that of the other. And, therefore, a purchase by one joint tenant or coparcener of an incumbrance on the joint estate, or an outstanding title to it, is held at the election of his co-tenants within a reasonable time, to inure to the equal benefit of all tbe tenants, upon the condition that they will contribute their respective ratios of the consideration actually given.
“The same equity is considered as subsisting between tenants in common under the same instrument. But it is suggested that tenants in common, probably, are subject to this mutual obligation only where their interest occurs under the same instrument, or act of the parties, or of the law, or where they have entered into some engagement or understanding with one another, for persons acquiring unconnected interests in the same subject by distinct purchases, though it may be under the same title, are probably not bound to any greater protection of one another’s interests, than would be required between strangers. ” The Brittin case is also cited in support of the following statement of the rule in Thompson on Beal Property, Sec. 1862: “If tenants in common occupy and improve the common land in severalty, and each is assessed and pays taxes on a particular portion, one of them can not afterwards, upon a sale of the land for taxes in separate parts, invoke the relation of cotenancy to defeat the tax title acquired by the other.” See also, 14 Am. Jur., Cotenancy, Sec. 54. We are convinced the same rule should apply to a purchase by a cotenant of a tax title to undivided mineral interests separately assessed, as in the instant case. The Oklahoma court so held in Patterson v. Wilson, 203 Okla. 527, 223 P. 2d 770.
We have held that the sale of an undivided mineral interest operates as a severance of said interest from the surface and creates two separate and distinct estates. Huffman v. Henderson Co., 184 Ark. 278, 42 S. W. 2d 221. In Pasteur v. Niswanger, 226 Ark. 486, 290 S. W. 2d 852, we said: “Owners of leasehold working interests are not cotenants of the owners of the fee or surface of the land. Their interests are of a different kind. Their interests are also of a different kind to the interests of the owners of mineral rights where severed from the land.”
Regardless of whether Fred C. Hase was a tenant in common with the appellants, or the owner of a completely separate and independent estate, his purchase of the separately assessed mineral interest at the tax sale did not constitute a mere redemption inuring to the benefit of the appellants. When he executed and delivered the deed to the undivided one-half mineral interest and received the consideration therefor, there remained no duty or obligation, legal or moral on his part to pay the taxes on such interest, and it is not shown that he was guilty of any fraud or inequitable conduct in connection with his purchase of the tax title. It follows that Sec. 84-1304, supra, does not apply where the tenant in common merely purchases an undivided mineral interest separately assessed and there is no duty resting on him to pay the taxes on such interest. Since the regularity of the 1953 tax sale is not in question, the chancellor acted correctly in dismissing appellants’ complaint seeking cancellation of the 1955 tax deed and in quieting the title of the appellees as against the appellants. The decree is accordingly affirmed.
Sec. 84-1304 reads: “ ‘The purchaser at the sale of lands or lots, or parts thereof, for the taxes of the interest of any joint tenant, tenants in common or coparcener, or any portion of such interest, shall, on obtaining the deeds from the clerk of the county, hold the same as tenant in common with the other proprietors (or proprietor) of such land, or lot, and be entitled to all the privileges of a tenant in common, until a legal partition of such land, or lot, or part thereof, shall be made.’ ” | [
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J. Seaborn Holt, Associate Justice.
In 1934 the City of Hot Springs entered into an agreement with the National Park Service, Department of Interior, relative to the construction of a city sewer system and sewage plant in Hot Springs. The parties recognizing that Hot Springs’ reservation, including- appellant’s bath houses located thereon, contributed largely to the city’s sewage, the Park Service agreed to pay 22.5 per cent of the construction cost and an additional 5 per cent in lieu of maintenance and operation charges. Park Service in the aggregate contributed $82,000. Appellants’ bath houses furnished no part of the consideration. The agreement contained this recital: “1. That the Government be not charged for any service or use of the system at any time in the future. 2. That the cost of all repairs, alterations, maintenance and operation of the system be borne by other than the United States government sources. Necessary replacements of the entire plant due to natural or human destruction not to be considered a part of paragraph 2.” The balance of the cost of construction was paid partly by the U. S. Public "Works Administration and partly by a city bond issue of $175,000, financed by a 1.5 mill ad valorem tax on the property within the city. In 1934 the 1.5 mill tax was extended against appellants’ property and assessed for taxation. In July 1935 appellants obtained a temporary restraining order against the collection of this tax, setting up the agreement as a defense. Thereafter, in 1945, on the city’s motion to dissolve the injunction and for a decree for past due taxes, the court held, in effect, that appellants were U. S. government sources within the meaning of the agreement and enjoined the city from assessing and collecting the 1.5 mill tax against them.. There was no appeal from this decree.
The record reflects that by 1952, the city sewage disposal plants were obsolescent, inadequate and heavily overloaded, creating a serious health problem, and the pollution of Lakes Hamilton and Catherine. A thorough engineering study was made resulting in recommendations to the city to enlarge, overhaul and repair the disposal system and to change the method of purifying the city sewage. Following this recommendation and to cover the cost and properly proceeding under the provisions of Act 132 of 1933 (Sec. 19-4101 etc. Ark. Stats. 1947), the city caused bonds to be issued in the amount of $786,000, which were to be financed by a sewer service charge. It appears that prior to this time the city had never levied any sewer service charge. Sewer service charge rates were set forth in Ordinance 2444 by the city. Following the completion of the work, sewer service charges were made against and sent to appellants and other users of the system. Charges to appellants were calculated upon the total volume of sewage discharged by them from their bath houses into the sewer system, and included both the city water and also the hot mineral water furnished by the National Park Service. Appellants operate commercial bath house companies located on the U. S. reservation and are large consumers of water, and large contributors to the water that goes through the sewage system. There was evidence that in 1952 appellants discharged 57,365,500 gallons of sewage into the system, or about 7.5 percent of the total flow. In 1953 the total number of gallons discharged was 55,705,800, or 7.5 percent of the total -flow. Appellants refused to pay to the city any sewer service charges and in 1955 brought the present suit to enjoin collection. In the trial court, and here on appeal, appellants relied on the following points: “1. The agreement is valid, and imposition of sewer charges upon appellants is an unconstitutional impairment of contract. 2. The validity of the agreement is res judicata. 3. Appellees are estopped to assert any invalidity in the agreement and from imposing sewer charges upon appellants. 4. The city had no legislative or territorial jurisdiction to impose sewer charges upon appellants, and the trial court had no jurisdiction to render judgment against them. 5. No claim or judgment in person-am could lawfully be made or rendered against appellants. 6. In no event could any charge be calculated against appellants on volume of hot mineral water from the National Park springs.”
Appellees defended primarily on the ground that their agreement or contract relied upon by appellants was ultra vires as applied to the sewer service charge, asserted their right to collect these service charges from appellants and in a cross complaint asked for a judgment for the full amount of the unpaid sewer service charges not only for the city water but also for the hot mineral water furnished by the National Park Service which, as indicated, was also discharged through the sewer system. Upon a hearing the trial court held that the contract or agreement of 1934 was valid as to the 1.5 mill ad valorem tax for the original construction, but ultra vires as applied to the present sewer service charges, and that appellants were liable only for the amount of city water discharged into the sewers and not for the hot mineral water. The court also disallowed the city’s claim for penalties and attorney’s fees. It appears that all bonds for the original construction under the 1.5 mill tax are paid and this tax is no longer levied. The case is before ns on appellants’ direct appeal and a cross appeal of appellees.
The primary, if not the decisive, question presented is whether the above agreement between the city and the National Park Service is ultra vires in the circumstances here. We hold that it was in so far as it would estop or deny the City of Hot Springs the right and power now or at any future time, in the exercise of its police powers to enforce collection of sewer charges against appellants. The city not only has the right in exercising its legislative and governmental functions to protect the health, safety and general welfare of its people, but it is its duty to do so and may not contract away any such right. “A municipality cannot bind itself by a perpetual contract, or by one which lasts an unreasonable length of time . . . It is declared to be against public policy to permit a municipal corporation to part with any of its legislative power. In the absence of a clear grant of power from the legislature, the municipal authorities can do nothing which amounts in effect to the alienation of a substantial right of the public. It cannot obligate itself not to exercise such powers, and a contract in which it purports to do so, even upon valuable consideration, is void. Thus, a municipal corporation cannot, by contract or otherwise, divest itself of its general police power, or of the power of eminent domain which has been delegated to it by the legislature, or of the power of taxation,” Risser v. City of Little Rock, 225 Ark. 318, 281 S. W. 2d 949.
In effect, the same issues as here were presented to the Supreme Court of Ohio in State ex rel. Gordon v. Taylor, et al., 149 Ohio St. 427, 79 N. E. 2d 127. In that ease Ohio State University refused to pay a bill for sewer service charges presented by the City of Columbus on the ground that it had many years before entered into an agreement with the city under the terms of which it had conveyed to the city an easement across University property for sewer purposes in consideration of “the right and privilege to the Board of Trustees, and to the Ohio State University, to use the city sewers on the campus of said university without cost or expense to said university, or its Board of Trustees.” In rejecting the university’s defense, that court used this language: ‘ ‘ The language of the grant of easement involved herein, if construed as contended by counsel for the respondents, would be so broad and comprehensive as to vest in the university the right to use the city sewer and the benefit of the city’s sewerage system without restriction or limitation, and without liability for any future charge or expense of maintenance, renewal or additional facilities required by any change of conditions . . . If the University is completely exempted from any charge therefor- and is privileged, without any limitation or restriction, to empty into the city sewers all the sewage from the campus, the boundaries of which are not defined or limited and may be indefinitely extended, such exenlption could be held valid only if the city, notwithstanding its duty and obligation to protect the health, safety and welfare of the citizens of Columbus, is authorized to relinquish as to the university property the powers and prerogatives vested in the municipality and to contract away its duty and obligation to require all users of the city sewerage system to pay proportionately the cost and expense of an essential municipal function.
In the construction of a sewerage system, a municipality acts in a governmental capacity, and, hence, in accepting the grant of easement subject to the right of the university to use the sewer would be ultra vires, if by such exemption the city bargained away all its duties and obligations with reference to maintenance of such sewer and agreed to forever maintain it for the benefit of the university. It is only in the maintenance of a sewerage system that the city acts in a ministerial or proprietary function. City of Portsmouth v. Mitchell Mfg. Co., 113 Ohio St. 250, 148 N. E. 846, 43 A. L. R. 961.” (State v. Taylor, 79 N. E. 2d 127 supra.)
“The supervision and regulation of the sewers is a police function of the city. Therefore, in granting permission for the use of the sewers in the first instance and for the continuing use thereof, the city must at all times retain control, and any attempt by way of contract to deprive the city of that control is void. The police power of the city cannot be bargained away by contract, but must at all times be available for use to meet such public needs as may arise. McQuillin, Municipal Corporations, 2d Ed. Rev. Secs. 393, 1564,” Ericksen v. City of Sioux Falls, 70 S. D. 40, 14 N. W. 2d 89. “. . . an indefinite exemption, the purpose or amount of which is not reasonably ascertainable, is not only ultra vires, but is also against public policy,” City of Cleveland v. Edwards, 309 Ohio St. 598, 143 N. E. 181, 37 A.L.R. 1352. “ . . . in the absence of express grant of power, a municipal corporation has no authority to make contracts for the exemption or commutation of local assessments,” McQuillin, 3d Ed. 14, Sec. 38.86. Cases from Delaware, Indiana, Kentucky, Massachusetts, Mississippi, Missouri. New York, Wisconsin and Ohio are cited to support the text.
Appellants have presented for our consideration a large number of cases in their effort to uphold the validity of the above agreement between the city and the National Park Service, however, upon examination of each of these cases there appears to have been statu tory or constitutional authority which permitted the municipality to enter into the contract in question. As pointed out above, in the present case we find no authority or express grant of power, statutory or otherwise, giving to the City of Hot Springs the authority to exempt appellants here from the sewer service charge in question. “A common council ‘cannot bargain away or divest itself of the right to make reasonable laws, and to exercise the police power whenever it becomes necessary to conserve or promote the health, safety or welfare of the community.’ So, power conferred upon a city to contract respecting a particular matter does not confer power, by implication, so to contract with reference thereto as to embarrass and interfere with its future control over the matter, as the public interests may require. Hence, all contracts which interfere with the legislative or governmental functions of the municipality are absolutely void.” McQuillin, 3d Ed. Vol. 10, Sec. 29.07.
It appears practically undisputed here that when this bond issue of $786,000 was made that the City of Hot Springs was faced with a serious problem of sewage disposal, affecting the health and well being of its inhabitants, and we see no valid reason, and appellants have pointed to none, why appellants who are citizens and conducting their businesses in that municipality should not pay their just share, through sewer service charges, of this necessary improvement for the public good.
Appellants’ contention that “the validity of the agreement is res judicata” cannot be sustained. As we have heretofore stated, ‘ ‘ the police power of a city must at all times be available for use to meet such public needs as may arise.” It does not appear from the record that any such need existed in 1935 when a temporary restraining order was obtained or in 1945 when it was made permanent. Consequently, at those times, there was no occasion for the city to exercise its police powers. On the other hand it appears now that such a need does exist and consequently there is an occasion for the city to exercise its police powers.
On the contention of appellants that the city is estopped, little need be said in addition to what we have set out above.
Since we are holding that the contract or agreement here in question is ultra vires, then the city may not be estopped to deny its invalidity. . . contracts which the corporation is not permitted legally to enter into are not subject of ratification, and a city may not be estopped to deny the invalidity of a contract that is ultra vires in the sense that it is not within the power of the municipality to make,” McQuillin, 3d Ed. Vol.10, Sec. 29-104, p. 422.
On cross appeal appellees contend that there was error in the trial court’s decree in denying them the right to base sewer service charges on the total volume of all water which appellants discharged into the sewers, which included both the city water and the hot mineral water. We agree that this contention should be sustained. It appears that the basis of the sewer service charge is based on the volume of sewage discharged into and through the sewers. The record reflects that the water consumption for the calendar year 1952 was used as a basis for sewer charges for period from October 1953 through September 1954. This water, which was emptied into- the sewers, amounted to approximately 4,452,800 gallons of city water and 52,912,700 gallons of hot mineral water. For 1953 the volume of city water was slightly greater and that of the hot mineral water somewhat less. As indicated, sewer service charges are based on the use of the system. Appellants used the water in their businesses in which, obviously, they seek to make a profit, and we can see no just reason why they should not be required to share, along with all other users of sewers, the cost burden of disposing of this water through the sewer system.
We hold that there was no error in denying to appellees the penalties and attorney’s fees as provided in Sec. 19-4113 Ark. Stats. 1947. This statute is penal in its nature and must, therefore, he strictly construed. It provides in part: “If any service rate or charge so established shall not be paid within thirty days after the same is due, the amount thereof, together with a penalty of ten per cent, and a reasonable attorney’s fee, may be recovered by the sewer Committee. . .” This provision says that penalties “may be recovered” not that they must be. The trial court is thus granted a reasonable discretion in denying or allowing penalties depending on the facts and circumstances. “It is a general rule of statutory construction that penal statutes are to be strictly construed. Statutes imposing penalties are subject to this rule of strict construction. They will not be construed to include anything beyond their letter, even though within their spirit. The rule that penal laws are to be construed strictly is perhaps not much younger than construction itself. It is founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.” 23 Am. Jur., Forfeitures and Penalties, Sec. 37, p. 631. We find no abuse of that discretion here.
Accordingly, the decree is affirmed on direct appeal, on appellees’ cross appeal the decree is reversed and remanded with directions to enter a decree consistent with this opinion.
McFaddin, J., dissents. | [
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Carleton Harris, Chief Justice.
Appellant, Woodrow McMillan, was charged with murder in the first degree, and upon trial, was convicted of second degree murder and given a sentence of twelve years. The killing occurred shortly after midnight, March 3, 1957, and McMillan pleaded self defense. Prom such conviction, he brings this appeal.
According to the evidence, Carl McCown and wife operated a cafe located near the court square in DeWitt. McCown and appellant were in the cafe with others around 10 p. m., and McCown suggested that the group go to his home for a dice game. McMillan went along, and in the game lost what money he had, gave McCown a check for $10, and also lost that. After the game closed, the group returned to the cafe, and McCown parked his car at the back of the establishment. Subsequently, he went to his car, and McMillan later went and sat in the car with him. An argument ensued relative to the check which McMillan had given McCown, it being contended by appellant that the former had told him he would return the check. Appellant had in his possession a 22 calibre pistol. The parties subsequently got out of the car, and McCown started toward McMillan, either to strike, him, or to get the gun. McCown knocked the first shot upward but McMillan continued to fire until the gun snapped. The magazine held nine cartridges, and it later developed all were fired except one. McCown ran into the street, and fell dead, being hit by three bullets.
Numerous assignments of error are set forth in the motion for new trial, the first three questioning the sufficiency of the evidence. Proof on the part of the State showed that appellant went to his pickup truck and got the pistol before going to the “crap” game. On returning to the cafe, McMillan talked to different ones there, and then went out to McCown’s car. According to the State’s evidence, McMillan fired the first shot from the back seat of the automobile, and one Chester Edmond-son testified as follows:
“I didn’t pay too much attention as to who was in the car until I heard McCown say, put that gun down.
Q. Was there any loud talking?
A. No, they wasn’t talking very loud.
Q. Now, when you saw McCown get out of the car was there anything in his hand?
A. No, sir, I didn’t see anything.
Q. If he had of had anything in his hand could you have seen it?,
A.. Yes, sir, if it was very big.
Q. Then you could see his hands?
A. Yes, sir.
Q. Did he have any weapon in his hand?
A. I didn’t see one.
Q. Now, after this shooting had taken place and after McCown started staggering away from McMillan, what did Woodie do?
A. He shot three or four more times.”
The deceased’s wife, Mildred McCown, testified:
“I went on about my work, and I heard something and I thought it was a firecracker at first so I went to the front door and looked, and when I went to the door, Woodie had done got ont of the back seat and the door was open, and Lewis Carl got out on the same side that Woodie got out on, and so Lewis Carl started toward Woodie and Woodie shot, and Lewis Carl hit his hand and knocked his gun up and the shot went up, and Woodie shot several times at Lewis Carl, and Lewis Carl had turned after he shot him with the first shots and he was running down the road, and I went to Woodie and tried to get the gun and Woodie just kept shooting Lewis Carl, and Lewis Carl fell right on his face, and he was dead by the time I got to him. ’ ’
Charles Tiner, Chief of Police at DeWitt, stated:
“I went back to the police car, and I asked Woodie did he shoot Lewis, and he said yes, and I asked him why and he said he was tired of him running over him, and I asked him did he mean to kill him, and he said yes, he was tired of him running over him.”
Further testimony on the part of the State was to the effect that McCown was unarmed. The above enumerated testimony, if believed by the jury, was certainly sufficient to sustain a conviction for second degree murder. As stated in West v. State, 196 Ark. 763, 120 S. W. 2d 26:
“There is ample evidence to support the finding of the jury. Under the settled rules of practice the jury is the judge of the credibility of the witnesses and the weight to be given to their testimony, and it is also a well-settled rule that the evidence admitted at the trial will, on appeal, be viewed in the light most favorable to the appellee, and if there is any substantial evidence to support the verdict of the jury, it will be sustained. ’ ’
Numerous other cases denote the same holding.
By assignment No. 4, appellant contends that it was error for the court to fail to sustain his objection to a statement made by the prosecuting attorney during the State’s closing argument, and that such statement was inflammatory and prejudicial to him. The statement ob jected to was “. . . if you turn him loose, then let him go out and kill someone else for a $10 worthless check . . . ”. Following this remark and an exchange of comment between the prosecutor and appellant’s counsel, in which a derogatory remark, unconnected with the evidence, was made by defense counsel concerning the deceased, the court admonished the jury, stating:
“These statements are improper to make before a jury as they are not any part of this law suit and the jury is not to consider them. The Prosecuting Attorney has a right to express his opinion in the argument of this case as does the attorney for the defendant, hut the jury is to try this case on the law and the testimony and not on the argument of counsel.”
In Adams v. State, 176 Ark. 916, 5 S. W. 2d 946, this Court said:
“This Court will always reverse where counsel go beyond the record to state facts that are prejudicial to the opposite party unless the trial court, by its ruling, has removed the prejudice * * * hut this court does not reverse for the mere expression of opinion of counsel in their argument before juries unless so flagrant as to arouse passion and prejudice, made for that purpose, and necessarily having that effect. * # *”
See also Tillman v. State, 228 Ark. 433, 307 S. W. 2d 886.
Several assignments of error deal with the court’s refusal to sustain objections to the testimony of Bussell McCollum, Coroner of Arkansas County. McCollum’s testimony dealt with statements made to him by appellant a short time after the killing. We do not agree that this was error. As stated in Dearen v. State, 177 Ark. 448, 9 S. W. 2d 30:
“* * * It is always permissible to prove declarations against a person charged with an offense, if his-declarations and admissions tend to show in any way his connection with the crime charged, or tend to prove his guilt. * # *”
A long line of Arkansas cases hold likewise. According to the evidence, the statements made by appellant to Mc-Collum were voluntarily made, and in fact, it is not contended otherwise, except that appellant testified he was nervous and upset at the time the questions were asked. Appellant objected to each question propounded to the coroner and answer given, contending that Mc-Collum was actually conducting an inquest, and had not complied with the statute governing such hearings. It is specifically contended that the statute was not complied with in the following respects: no jury was summonsed as required by Sec. 42-302, Ark. Stats. (1947) Anno., and the testimony was not reduced to writing as required by Sec. 42-307. Let it first be said that the interrogation of appellant by the coroner does not reach the dignity of a formal hearing. According to appellant’s own testimony, he was not sworn, and there was no semblance of a “hearing” as the word is commonly used. In other words, no inquest was held. There was no occasion for a hearing, since appellant freely admitted the killing. It is true that certain declarations against interest were made by appellant during the questioning, but, as stated, the evidence reflects these statements were voluntarily made. Appellant also contends that he was not warned that anything he might say could be used against him. While it is preferable that the accused be so advised, the failure to do so does not invalidate a confession. The situation here is analogous to the situation in the early case of Wilson v. United States, (which was originally tried in the Western District of Arkansas) found in 162 U. S. 613, 16 S.Ct. 895, 40 L. Ed. 1090. There, Chief Justice Puller, speaking for the Court, said:
“In short, the true test of admissibility is that the confession is made freely, voluntarily and without compulsion or inducement of any sort.
The same rule that the confession must be voluntary is applied to cases where the accused has been examined before a magistrate, in the course of which examination the confession is made, * * *.
* * # -where the accused is sworn, any confession he may make is deprived of its voluntary character, though there is a contrariety of opinion on this point. * * * The fact that he is in custody * * * does not necessarily render his statement involuntary, * * *. And it is laid down that it is not essential to the admissibility of a confession that it should appear that the person was warned that what he said would be used against him, but on the contrary, if the confession was voluntary, it is sufficient though it appear that he was not so warned. * * *
In the case at bar, defendant was not put under oath, and made no objection to answering the questions propounded. The commissioner testified that the statement was made freely and voluntarily, and no evidence to the contrary was adduced. * * *”
There was no error in admitting the testimony of the coroner.
It is next contended the court erred in giving certain instructions and refusing to give others requested by appellant. We have examined all the instructions, offered, refused, and given, and we find no error committed by the court as against the objections made.
Appellant’s main argument for reversal is based upon remarks made by the trial court in the presence of the jury concerning certain evidence offered by appellant with reference to an infected or diseased ear, with which he allegedly was afflicted, and it is further contended that the court erred in refusing to permit several witnesses to testify relative to such physical condition. We will first discuss the latter contention. Five witnesses had previously testified regarding the condition of McMillan’s ear, and appellant offered in evidence a notice from the Veteran’s Hospital to appellant, directing that McMillan report back for further examination. The court correctly excluded this exhibit, as it was not in proper form for introduction, and then announced:
“All right, but let me state further, Mr. Moncrief, that the Court does not think that it is necessary to in troduce any further testimony on the ear matter and that the testimony has just been cumulating in this case, so the Court will not allow anymore testimony pertaining to the ear matter.
Mr. Moncrief: Note the defendant’s exceptions. If the court please, since the jury are laymen and might not understand the use of the word cumulating, I wish you would explain it to them.
The Court: That means the same kind of testimony just piling up witness after witness about the same thing.
Mr. Moncrief: If I understand the court correctly, the trial court has a right to say you should or should not call but so many witnesses to testify about one certain thing.
The Court: Yes, 'that is correct. It is just like if you were trying to prove someone’s reputation. You might have a thousand witnesses to testify as to their reputation, but who would want to sit here and hear a thousand witnesses testify about the same thing, so the courts hold that a trial court has a right to make a reasonable limit on those kind of witnesses so that is the reason for my actions.”
Appellant contends that this was error, but we do not agree. In Sheppard v. State, 120 Ark. 160, 179 S. W. 168, Justice Kirby, speaking for the court, said:
“It is next contended that the court erred in refusing to allow the ten other witnesses produced to testify in support of the alibi. Their testimony would have been cumulative, and it is not disclosed that any of said witnesses had any special or peculiar knowledge that would have tended more strongly to convince the jury of the truth of their statements of the whereabouts of appellant than that already given by the numerous witnesses who had testified, nor that any of them were of such standing that their statements would have carried more weight than that of the others, and the court did not err in refusing to permit them to testify. It is with in the sound, judicial discretion of the trial court to limit the number of witnesses permitted to testify about a particular fact and to decide where and when the introduction of cumulative testimony shall stop and, while in capital cases this discretion should be cautiously exercised, it will not be controlled unless it appears to have been manifestly abused.”
We think it was sufficiently established that appellant had been suffering with some sort of ear infection, and additional testimony upon the subject would have been entirely cumulative.
We come now to a discussion of appellant’s contention concerning the remarks by the court. The first witness offered by the defendant, John Varnadore, was asked the question:
“Do you remember what his physical condition was with reference to any ailment?
Mr. Lee: I object to this, he is no doctor.
The Court: I don’t see that it has anything to do with it.
Mr. Moncrief: It has a great deal to do with it. We have heard as to the relative sizes of these men so we want to show the physical condition of these men, or of Mr. McMillan, that is. ’ ’
The court permitted the question, and subsequently in the examination, another question was asked relative to the ear. Upon objection by the State, the court invited appellant’s counsel to explain his theory.
“Mr. Moncrief: Just this, if a man is assaulted and he is a normal person, that person might be able to withstand an assault or blow, but if he is a person that is not normal and has a dangerous condition about him that is susceptible to a blow that would either kill him or cause him great bodily injury, he would certainly have a right to defend himself against any assault that he, in good faith, believes would do him great bodily injury, and he, the defendant, would certainly have the right to protect himself under those circumstances, as we expect to prove in this instance. If a man is not able to withstand blows, he would fear blows if he was in such a condition that would cause great injury to him. The defendant’s case has to be viewed from the standpoint from what his belief is so long as he acts as a reasonable person would under the same similar conditions.
The Court: I understand what you are trying to prove, but you are going too much in detail about his conditions. We are not trying a personal injury suit. I don’t mind you laying the foundation what you are trying to prove, but you are going in too much detail.”
McMillan testified he had had trouble with his ear for a year or two before the killing, and that it had constantly bothered him; that he had received treatment for the ear condition from different doctors in DeWitt, and had gone to the Veteran’s Hospital in Little Rock, but had not been able to obtain relief. He testified his condition grew worse, and the court remarked:
“Let’s not go into much detail about that, Mr. Moncrief. This is not a personal injury suit, and I can’t see where it would be competent in a criminal suit, and I don’t think, by going into all of the details, that it would shed any light on the case.
Mr. Moncrief: Note the defendant’s exceptions.
Q. If your Honor please, I would like to ask this question, whether or not, after an x-ray examination was done, and what were the results to him and whether or not he would withstand a blow if the blow happened to fall on the left side of his head. We want to show that he did undergo this operation and that the bone was affected in the area of the left ear and that it left a condition that he believed he couldn’t withstand a blow that might happen to fall on the area of the left side of the head. * * *
The Conrt: I will let the record show that this ear was in a condition, bnt I cannot see that it wonld be competent, you can save your exceptions if you want to. You have shown what you wanted to.
Mr. Moncrief: I cannot state it in detail as to the removal of the bone in the ear and the fact that skin was taken from one part of his body and put on a part of his ear in order to protect the bone.
The Court: You have certainly got it in the record now.
Mr. Moncrief: If the Court please, I would like to go in chambers and make the available proof. ¥e are asking that the available proof be made in the absence of the Jury if it is not allowed to make the available proof before the Jury.
The Court: Overruled, save your exceptions.
Mr. Moncrief: Note the defendant’s exceptions. May I ask this, if the Court please, that if he had a fear that a serious blow to his ear or the area of the ear or the head might likely result in a great bodily injury to him or result fatal to him.
The Court: I don’t think that would be competent, Mr. Moncrief.”
It would appear that counsel’s contention was conveyed to the jury, but this, of course, did not constitute evidence. In several instances, questions relating to the ear were properly ruled inadmissible; for instance, Lem Burton was asked the question: “In going fishing and hunting with McMillan, was he more careful than you in dodging limbs and bushes ? ’ ’ Any answer, of course, by the witness, would have been pure opinion. "We are of the view however, that competent evidence as to appellant’s physical condition was proper and relevant. He was entitled to show his physical, as well as mental, condition at the time of the offense charged. As stated in Sage v. State, 91 Indiana 141:
“Independently of any question of insanity, the defendant in a criminal cause has the right to have his general physical as well as his mental condition at the time of the commission of the supposed crime explained to the jury, so as to put them in possession of all the facts connected with the transaction, and the better to enable them to judge of its character.”
Also, in Rector v. State, 11 Ala. App. 333, 66 Southern 857:
“If the deceased had in fact recently been ill, it was a circumstance the jury could look to, in connection with all the other evidence in the case, in determining whether or not the deceased assaulted the defendant, and, if so, in determining the character and nature of the assault.”
Such a conclusion is logical, for it might well be that one physically incapacitated would hesitate far longer to precipitate an altercation than one who is sound in body; at least, the jury was entitled to take into consideration such fact during their deliberations, as relating to the possible aggressor. Since we consider such evidence competent, it definitely appears that the remarks of the Court amounted to comment upon the weight of the evidence. On two occasions, the Court, though admitting the evidence, stated: “This is not a personal injury suit,” and three times made remarks to the effect that the Court did not consider the evidence competent or relevant. It must be remembered that many jurors are serving for their first time, but, for that matter, even though they have served numerous times, the attitude, statements, and opinion of the court probably make a more indelible impression upon the mind of the juror than any other factor during a trial. To the jury, his word is the law. As stated by the late Justice Butleb in Western Coal & Mining Company v. Kranc, 193 Ark. 426, 100 S. W. 2d 676:
“Because of his great influence with the jury, he should refrain from impatient remarks or unnecessary comments which may tend to result prejudicially to a litigant or which might tend to influence the minds of the jury. By his words or conduct he may, on the one hand, support the character and weight of the testimony, or may destroy it in the estimation of the jury. Because of his personal and official influence, uncalled for or impatient remarks, although not so intended by him, may give one of the parties an unfair advantage over the other.
The remarks indulged in by the trial court in the instant case to our minds had the effect of minimizing the value of the evidence admitted. * * * ”
Likewise, as stated by the beloved Judge Battle, in Sharp v. State, 51 Ark. 147, 10 S. W. 228:
“In the midst of doubt as to what their verdict should be as to appellant, it was natural for them to seize upon and adopt any opinion which they understood the judge to have expressed or intimated upon the questions they were required to decide. * * *”
Clearly, the remarks of the court intimated that the evidence was of little, if any, value. While we recognize that no partiality or prejudice was intended by the remarks of the court, such remarks could have been damaging to appellant’s plea of self-defense.
Numerous other errors are alleged, hut we find no-merit in such allegations.
Because of the error herein set out, the judgment is reversed, and the cause remanded.
Varnadore’s testimony about the ear was as follows: “The ear drained and it would sometimes drain down on his shirt and he would have to keep putting cotton in his ear, and he would have to do that three or four times a day. * * * Yes, there seemed to be blood and pus.”
McMillan’s ioster mother testified thei-e was a discharge from his ear with “an awful odor” which she would help clean out. | [
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Sam Robinson, Associate Justice.
In the year 1922 J. A. Holman died intestate, leaving a widow and seven children, and a homestead consisting of 120 acres. On the 23rd day of July, 1945, appellant, J. S. Stover, entered into a written contract with the widow whereby he agreed to purchase, and Mrs. Holman agreed to sell, the 120 acres. Mrs. Holman agreed to perfect the title and to give Stover possession of the property while necessary procedure was being taken to enable her to give him a warranty deed to the property. The purchase price was $700, of which $10 was paid in cash. On the 12th day of December, 1945, Mrs. Holman and four of her children executed to Stover and his wife a warranty deed to the land. However, two of Mrs. Holman’s children who had become of age did not sign the deed; also not parties to the deed were two minor children of a deceased child. Later, by proper procedure, the interest of the minors was conveyed to Stover. Stover’s deeds were placed of record and he took possession of the property.
Luring the trial of this cáse Mrs. Holman testified that although the deed had been'' executed by her and four of her children, it was not actually delivered to Stover, and she does not know how he acquired it.
A short time after Mrs. Holman and four of the children executed a deed to Stover, they executed and delivered a warranty deed to Carl Holman, another son of Mrs. Holman. Carl had not conveyed to Stover; neither had Thelma Frazier, a daughter of Mrs. Holman, conveyed to Stover, but she executed and delivered to her brother, Carl Holman, a deed to her interest in the property. Assuming that the deed from Mrs. Holman and four of her children to Stover was not delivered, then the deeds to Carl Holman by Mrs. Holman and all of his brothers and sisters then living conveyed to him title to their interest in the property. There is no question about the validity of the conveyance to Stover by the two minors of their interest in the property.
On May 1, 1947, appellee here, Carl Holman, filed suit against appellant, Stover, and his wife, alleging, among other things, that he, Holman, owned a 6/7ths interest in the property. Stover answered and denied the allegation. Later, on the 8th day of December, 1947, the suit was dismissed for failure to prosecute. On the 15th day of December, 1956, the present suit was filed by Stover to clear the title. He claims the property by deed and by adverse possession. • The trial court held that Stover owns a 5/7ths interest and .Carl Holman owns 2/7ths interest. It will be recalled that Carl and his sister, Thelma Frazier, had never signed a deed to Stover, but -that Thelma Frazier did convey to Carl Holman.
Stover has appealed, contending that he owns all of the property by deed and by adverse possession. Begardless of the validity of the deed to Stover by Mrs. Holman and four of the children, the fact remains that Mrs. Holman and five of the children (there is no contention that Stover does not own the l/7th interest acquired from the two minor children of a deceased child) conveyed their interest in the property to appellee, Carl Holman, and even though it can be said that at one time Holman and Stover were cotenants, Stover has acquired by adverse possession all the interest Carl Holman ever owned. The deeds to Holman by his mother and sisters and brothers were executed and delivered in 1945. Incidentally, the conveyance of a homestead by the widow amounts to an abandonment which affords grounds of reentry by the holders of the title in remainder. Murphy v. Graves, 170 Ark. 180, 279 S. W. 359; Bowen v. Black, 170 Ark. 237, 279 S. W. 782; Clark v. Friend, 174 Ark. 26, 295 S. W. 392.
Subsequently Carl Holman filed a partition suit in which he made Stover a party and claimed to own an interest in the property. Stover answered and denied that Holman owned any interest. Later, on December 8, 1947, the suit was dismissed for failure to prosecute. Certainly at that early date Holman knew that Stover was denying Holman’s claim of ownership, and moreover, the record shows conclusively, beyond a shadow of a doubt, that Holman has been well aware of the fact that Stover has had possession of the property and was claiming ownership of all of it. In addition to other evidence in the case to the effect that Holman knew of Stover’s claim of ownership, Holman testified:
“Q. . . . You have never collected any rent?
A. No, never collected nothing.
Q. You haven’t paid any taxes on it?
A. No, he (meaning Stover) said it was his.
Q. Carl, when did you first learn that Mr. Stover was in charge out there, of that place?
A. Well, lie took charge, I reckon, just as they made him ont a deed.
Q. When did yon learn about it?
A. Well, I can’t tell you exactly when it was, anyway it was when we started the suit up here against him, 1945, I guess it was.
Q. When he took possession?
A. Well, I knowed it when I went down there — where he run me off.
Q. In other words, he told you to get off?
A. He told me to get off.
Q. Told you that he owned the place?
A. That (it) was his and he was claiming it.
Q. You know he has been there ever since?
A. I ain’t been back.
Q. As far as you know he has?
A. Yes.
Q. Now you filed suit here in ’47?
A. Yes, sir.”
Although appellant, Stover, at one time was a co-tenant with appellee, Carl Holman, Stover has acquired good title to the property under the law of adverse possession. In the recent case of Reese v. Cox, 229 Ark. 623, 317 S. W. 2d 135, we said: “Where the adverse claimant has entered as a tenant in common, it is necessary for such claimant to give notice, either actual or by unmistakable acts, to his cotenants that he is holding adversely, or the statute will not run against such cotenants.” Citing Woolfolk v. Davis, 225 Ark. 722, 285 S. W. 2d 321. See also: Jones v. Morgan, 196 Ark. 1153, 121 S. W. 2d 96. The record in the case at bar shows conclusively that Stover gave Carl Holman notice that he was holding adversely to any claim of ownership on the part of Holman.
Reversed. | [
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Ed. F. McFaddin, Associate Justice.
This appeal challenges a judgment which appellee, Cargile Motor Company (hereinafter called “Cargile”), recovered against Travelers Insurance Company (hereinafter called “Travelers”) on an insurance policy issued by Travelers in which Cargile was named as the lien holder.
In February 1957 Cargile sold a new automobile to Dr. Frankenstein, and the unpaid balance was in excess of $2,400.00. Travelers issued a comprehensive insurance policy to Dr. Frankenstein which, inter alia, protected him and Cargile against theft or larceny. In the endorsement on the policy Cargile was named as lien holder, and the germane portion of the endorsement reads:
“Loss or damage, if any, under the policy shall he payable as interest may appear to Cargile Motor Company, lien holder, and this insurance as to the interest of the . . . Conditional Vendor or Mortgagee (herein called the Lienholder) shall not be invalidated by any act or neglect of the . . . Owner of the within described automobile nor by any change in the title or ownership of the property; ... ”
Dr. Frankenstein, aged 80, was an optometrist in Texarkana, Texas, and a young lady working for him, named Pat Blood, was approximately 20 years of age. Dr. Frankenstein allowed her to have possession of the car and to drive it, as part of her duties were to keep the books and collect accounts. In April, 1957 there was a “falling out” between Dr. Frankenstein and Pat Blood. He demanded and received the return from her of his fur stole and a diamond ring. He also demanded the automobile; and she refused because she claimed that he had given the car to her. However, she did give him one set of car keys but kept another set and continued to drive the car. Some time thereafter she left Texarkana with the car and Dr. Frankenstein advised the police that she had gone off with the car after he had demanded its return. It was about May 1st when Pat Blood left Texarkana with the car. She has never returned. Cargile and Dr. Frankenstein filed claim against Travelers for recovery on the policy, claiming that Pat Blood had stolen the car. Travelers denied liability; and trial to a jury resulted in special verdicts (as hereinafter discussed) on which the Court rendered judgment for Cargile against Travelers for $2,501.48, with interest, as the balance due Cargile on its lien claim. Travelers has appealed, presenting among other things, the matters herein discussed:
I. Refusal to Mahe Pat Blood A Party Defendant. Belying on § 27-814 Ark. Stats., Travelers moved the Trial Court to make Pat Blood a party defendant, but the motion 'was refused; and Travelers claims the following cases as requiring such joinder: Smith v. Moore, 49 Ark. 100, 4 S. W. 282; Choctaw O. & G. RR. v. Mc Connell, 74 Ark. 54, 84 S. W. 1043; and Westmoreland v. Plant, 89 Ark. 147, 116 S. W. 188. In Smith v. Moore (supra), the effort was to recover a mortgaged chattel and an adverse claimant was held to be a necessary party. In C. O. & G. RR. v. McConnell (supra), it was shown that other persons were claiming the fund in controversy and we held that such other claimants should be made parties. The case of Westmoreland v. Plant {supra) was an ejectment action and claimants claimed only a half interest in the land. We held that the persons claiming the other interest should be made parties.
In the case at bar, Cargile was not seeking to recover the automobile but was seeking to recover from Travelers on an insurance policy on the claim that Pat Blood had stolen the car. The cited eases do not justify a holding that the alleged thief is a necessary party defendant in a suit on an insurance policy. The Trial Court refused Travelers motion, stating, inter alia, . . that the primary subject matter of this lawsuit is the determination of alleged liability of the defendant under an insurance policy; that Pat Blood is not in any manner a party to, or interested in, said contract of insurance.” The Trial Court was correct, because it was not claimed that Pat Blood had any interest whatsoever in the insurance policy sued on.
II. No Theft Of The Car. Travelers maintained below, and stoutly insists here, that there was no theft of the car within the coverage of the policy. The parties stipulated in open Court that the policy was written under the laws of Texas and that the effect of whatever “taking” there had been by Pat Blood was to be determined under the laws of Texas; so we examine the statutes and cases of that State. Section 1429 of the Texas Penal Code involves conversion by a bailee and says:
“Any person having possession of personal property of another by virtue of a contract of hiring or borrowing, or other bailment, who shall without the consent of the owner, fraudulently convert such property to his own use with intent to deprive the owner of the value of the same, shall be guilty of theft, and shall be punished as for theft of like property.”
Article 1534 of Vernon’s Penal Code on Embezzlement says, “If any . . . employee of any private person, . . . or any . . . bailee of . . . property, shall embezzle, fraudulently misapply or convert to his own use, without the consent of his . . . employer, any . . . property of such . . . employer which may have come into his possession or be under his care by virtue of such . . . employment, he shall be punished in the same manner as if he had committed a theft of such . . . property.” A fraudulent conversion of property bailed constitutes theft under § 1429 of the Penal Code. See Malz v. State, 36 Tex. Cr. R. 447, 37 S. W. 748; and Creale v. State, 71 Tex. Cr. R. 9, 158 S. W. 268. The opinion of Justice Meade F. Grieein of the Supreme Court of Texas in Hall v. Great Nat. Lloyd’s, 154 Tex. 200, 275 S. W. 2d 88, is apropos.
From the Texas statutes and cases we reach the conclusion that if Pat Blood fraudulently converted the car to her own use there was a theft within the meaning of the policy; and it became a question of fact as to whether Pat Blood had fraudulently converted the car to her own use.
III. Sufficiency Of The Evidence. Travelers earnestly insists that there was no evidence to show that Pat Blood had fraudulently converted the car to her own use; and points out that Dr. Frankenstein never sued out a warrant of arrest for Pat Blood when she refused to return the car to him or when she left with the car. It is the strong contention of Travelers that Dr. Frankenstein gave the car to Pat Blood.
These matters were questions of fact for the jury. Dr. Frankenstein testified that he did not give her the car; that she did give him one set of keys to the car but continued to drive the car; that he advised the police that she had gone off with the car after he had demanded its return; and that he notified Travelers and Cargile that she had gone off with the car. Dr. Frankenstein testified that he made a statement to the theft bureau and called the Texas police; and “I reported it to the police but they said they didn’t want to fool with me . . . ” It was shown that a letter written by Cargile to Pat Blood in care of her parents in Troy, New York, was never returned as undelivered. Dr. Frankenstein firmly insisted that he never gave her the car and that she ran away with it.
This testimony, and other in the record, made a question of fact for the jury as to whether Pat Blood was guilty of the theft of the car. If she was, then Cargile is entitled to recover under the wording of the endorsement on the policy because if Pat Blood stole the car, then any failure of Dr. Frankenstein — whether to sue out a warrant of arrest or take other steps — did not prejudice the rights of Cargile. By answering the interrogatories as it did, the jury clearly showed that it believed that Pat Blood had stolen the car.
IV. Special Issues. At the close of the case and after giving instructions (which we do not find to be in error) the Court submitted the case to the jury on special interrogatories :
“1. Do you find from a preponderance of the evidence that theft or larceny of the automobile, as those terms have been defined to you, has been committed? You will answer yes or no . . .
‘ ‘ 3. What do you find from a preponderance of the evidence to be the fair market value of the automobile on or about May 1, 1957?”
The jury answered Interrogatory No. 1 in the affirmative (thereby finding that there had been a theft of the car); and answered Interrogatory No. 3 by fix ing the value of the car at $2,501.48; and the Court rendered judgment for Cargile against Travelers for said amount with interest and costs. Travelers makes two claims against these special issues. The first is, that if Dr. Frankenstein could not recover, then neither could Cargile recover. But this contention is disposed of by the wording of the endorsement on the policy which we have heretofore copied and which says that the rights of Cargile “. . . shall not be invalidated by any act or neglect of the owner.” The other objection to the special interrogatories is the refusal of the Court to give Travelers’ requested interrogatory, which reads as follows :
“Do you find from a preponderance of the evidence that Pat Blood had the automobile, the subject of this litigation, in her possession on or about May 1, 1957, under the honest belief that Dr. E. W. Frankenstein had given her the said automobile as a gift? Answer yes or no.”
This interrogatory should not have been given. Under the law it is not a question of whether Pat Blood believed that Dr. Frankenstein had given her the car; it was a question whether in fact Dr. Frankenstein had given Pat Blood the car. The Court instructed the jury on all of the essentials of a gift and the issue was sharply drawn, as shown in Topic III supra, on the question of the gift. The verdict of the jury settled that question.
Finding no error, the judgment is affirmed.
All citations to the Texas Penal Code are to the sections as numbered in Vernon’s Penal Code of the State of Texas, Annotated, published in 1953.
There was an Interrogatory No. 2 which related to whether Dr. Frankenstein had cooperated with the Travelers Insurance Company. The answer to this interrogatory related only to matters between Travr elers and Dr. Frankenstein; and this is not before us on this appeal. | [
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Per Curiam.
Petitioner, Morris, with a record behind him of many forgery convictions, is now serving a long term in the Arkansas State Penitentiary on pleas of guilty, in the Phillips Circuit Court, to the felony charges of forgery and uttering. Following the filing of his petition for writ of habeas corpus in an original action here, this court appointed able counsel to file brief here in petitioner’s behalf, and this has been done.
We hold that applicant’s petition must be denied. If he is proceeding under Act 419 of 1957 (now Sees. 43-3101 — 3110, Ark. Stats. 1947) and conceding without deciding the constitutionality of this act, then we can afford him no relief for the reason that he has not com plied with, the procedural provisions of that act in that he did not first file a verified petition with the clerk of the court in which the convictions took place, and no action on any petition appears to have been taken in this connection by the trial court. Bee. 2 of the Act (Ark. Stats. Sec. 43-3102) provides: 44The proceeding is commenced by filing a petition verified by the petitioner with the clerk of the court in which the conviction took place.” Bee. 6 of the act (Sec. 43-3106 Ark. Stats.) provides: 4 4 The petition shall be heard in the court in which the conviction took place and before any judge thereof.” Bee. 8 of the act (Sec. 43-3108 Ark. Stats.) contains this language: 44A final judgment entered under this act (Secs. 43-3101 — 43-3110) may be reviewed by the Supreme Court of this state on appeal, brought by either the petitioner or the state within sis (6) months from the entry of the judgment. (Acts 1957, No. 419, Sec. 8 p. 1165).”
The record further shows that petitioner did not allege in his petition that the Phillips Circuit Court, in which he was convicted and sentences imposed for forgery and uttering, was without jurisdiction to try him on the charges. This court has repeatedly held that 4 4Where a petitioner for habeas corpus is in custody under process regular on its face nothing will be inquired into save the jurisdiction of the court whence the process came.” State, ex rel. Att’y General v. Auten, Judge, 211 Ark. 703, 202 S. W. 2d 763. Since petitioner does not allege here that the Phillips Circuit Court was without jurisdiction his petition cannot be considered by this court, his remedy was by appeal to this court, which he failed to prosecute.
Accordingly, the petition for writ of babeas corpus is denied. | [
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