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McCULLOCH, C. J.
Appellant was convicted of the' charge of violating the terms of a special statute applicable to Pike County, authorizing the creation of stock districts and forbidding the running at large therein of certain animals. The original statute under which the district was formed (Acts of 1907, p. 474), authorized the county court of Pike County, upon petition of a majority of the electors of that county, or any subdivision thereof, or of persons whose cultivated lands were to be included, to form a district consisting of not less than five square miles, wherein hogs, sheep and goats, or such class or classes of those animals as might be specified in the petition, should be prohibited from running at large. The statute .specified what should constitute a lawful fence within the district so formed, and provided further that any of the forbidden stock found running at large could be impounded by the owner of the land or other person in possession, and detained until the fees, expenses and damages be paid. No other penalty was provided.
The statute was amended by the General Assembly in 1915 (Acts of 1915, p. 707), the first section being amended so as to require that a district so formed should consist of not less than “five miles square,” instead of “five square miles,” as provided in the original act, and also to prohibit the running at large of geese in a district so formed. Another section of the statute was amended so as to prescribe a penalty of not less than $5.00 nor more than $25.00, to be assessed against any person permitting stock to run at large in the district.
A district was formed under the Act of 1907, prior to the enactment of the amendatory statute in 1915, and the charge against appellant is for allowing his stock to run at large in said district since the passage of the last statute.
The contention of counsel for appellant is that the last statute, amending the old one, requiring a district so formed to be not less than five miles square, operates as a dissolution of districts of smaller area formed under tbe old statute; and also that, even if the old district was not abrogated by the new statute, the penalty prescribed in the new statute does not apply to it. The new statute works a material change in the shape.of a district. Under the old statute, the only requirement was that there should be an area of at least five square miles, whereas, under the last statute, the requirement is that it must be at least five miles square. The amendment of the old statute is in express terms, and necessarily constituted a substitution of the new statute for the old one.
There can be no question about the new statute being exclusive so far as it operates prospectively, as no authority remains in the county court under the old statute to create a district not in accordance with the requirements of the new statute. The Attorney General insists that the new statute does not work an abrogation of a district formed under the old statute and relies upon the rule stated in some quarters that an amendatory act should not be construed so as to give it a retroactive effect to affect proceedings instituted or judgments and orders rendered prior to its passage, unless specified in express terms. 36 Cyc., p. 1223.
It is perhaps better for us not to decide now what effect the new statute has on the existence of a district formed under the old act, as it is not necessary to do so in this case. We think the contention of appellant that the penalty feature of the new statute does not apply to a district formed under the old act, is sound. The effect of the new statute is to substitute its provisions and to incorporate them fully into the old statute, the same as if they had been originally written there, but if the terms of the old statute are to be treated as unaffected by the new so far as concerns districts already formed, then it necessarily follows that the penalty feature of the statute, which is only prospective in its operation, could not be operative so far as concerned districts which depended entirely for their validity upon the terms .of the old statute. In other words, we hold, without deciding whether or not the old district remains in force, that, conceding that it does, the penalty prescribed under the new statute does not apply to it, and that the only penalty enforceable there is the one prescribed by the terms of the old statute of impounding stock found running at large. The judgment of the circuit court imposing the penalty on appellant is, therefore, reversed and the cause dismissed. | [
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Sam Robinson, Associate Justice.
L. T. Hicks has filed in this Court a petition for a writ of certiorari seeking to review the action of the trial court in setting aside a default judgment. Hicks had caused a ivrit of garnishment to be issued against B. C. Baker in an attempt to collect a judgment against one N. M. Scoggins. Baker failed to answer within the time named in the writ of garnishment, and the trial court rendered a default judgment against him. Later, during the same term of court, on the motion of Baker, the court set aside the default judgment. It is the action of the trial court in setting aside the default judgment against the garnishee, Baker, that petitioner seeks to review by certiorari.
An appeal will not lie from an order setting aside a default judgment rendered during the same term of court in which it is set aside. In McPherson v. Consolidated Casualty Co., 105 Ark. 324, 151 S. W. 283, in referring to an appeal from an order setting aside a default judgment, Judge Frank Smith said: “Cases cannot be tried by piecemeal, and one can not delay the final adjudication of a cause by appealing from the separate orders of the court as the cause progresses. When a final order or judgment has been entered in the court below determining the relative rights and liabilities of the respective parties, an appeal may then be taken, but not before. No such final judgment has been entered here, and the appeal must be dismissed.”
A writ of certiorari cannot be used as a substitute for appeal to correct the alleged errors of an inferior court. Pettigrew v. Washington County, 43 Ark. 33. In Steadman v. State, 96 Ark. 344, 131 S. W. 679, Judge Wood said: “Certiorari will not lie to correct errors or irregularities that could have been corrected on appeal. ’ ’
In the case at bar if the trial court was in error in setting aside the default judgment against the garnishee, such error could be corrected on an appeal from a final judgment. If we should at this time go into the merits of the court’s action in setting aside the default judgment, it might be treated as a precedent for substituting certiorari for appeal to correct such alleged errors.
Petition denied. | [
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Sam Robinson, Associate Justice.
This is an appeal from a judgment of the Pulaski Circuit Court, Second Division, made and entered on the 28th day of May, 1958, setting aside a judgment entered on the 29th day of February, 1952. The complaint asking that the 1952 judgment be set aside was filed January 21, 1958. As a ground to set aside the 1952 judgment the complaint alleges that it was fraudulently obtained within the meaning of Ark. Stat. § 29-506. That statute provides that the trial court has authority to set aside a judgment after the expiration of the term “for fraud practiced by the successful party in the obtaining of the judgment or order”.
In 1951 the appellant, Nevil C. Withrow Co., Inc., filed suit in the Pulaski Circuit Court naming Maryland Casualty Company, a resident of Pulaski County, and Heber Springs School District, a resident of Cleburne County, as defendants. Others, including Joe P. Melton, trustee in bankruptcy for Baxter Miles, also were named as defendants, but only tbe defendant Maryland Casualty Company was a resident of Pulaski County. The Heber Springs School District was served with summons in Cleburne County on August 14, 1951. The school district filed no answer, nor did it enter its appearance in any manner. On February 29, 1952, Withrow took a default judgment against the school district. No judgment was taken against the Maryland Casualty Company. Withrow made no effort to collect the judgment until 1958. It was then that the school district filed this suit to set aside the 1952 judgment. After a hearing, the circuit court ordered that the 1952 judgment be set aside. Withrow has appealed.
There is only one issue: Did Withrow’s action in procuring a judgment in Pulaski Circuit Court amount to a fraud within the meaning of Ark. Stat. § 29-506, subdivision (4) ? If so, the 1958 judgment setting aside the 1952 judgment must be affirmed; otherwise reversed. In the circumstances of no judgment being obtained against Maryland Casualty Company, the local resident, if the school district had been present and objected to a judgment being rendered against it, the court would have sustained the objection. Ark. Stat. § 27-615; Ark. La. Gas Co. v. Tuggle, 201 Ark. 416, 146 S. W. 2d 154. But, regardless of Withrow’s right to a judgment against the school district in the first instance, it cannot be set aside in the present action unless Withrow practiced a fraud in obtaining the judgment. There is no issue in the case at bar of whether the school district waived the question of venue.
We fail to see how anything resembling fraud, actual or implied, occurred in this case. Withrow’s 1951 complaint alleges that the school district was organized and operating in Cleburne County. There is no allegation in the complaint to lead anyone to believe that service could be had on the school district in Pulaski County. In fact, the 1952 judgment against the school district recites that the summons was served in Cleburne County. Moreover, it appears that on September 24,1951, the school district was notified by registered mail that Withrow would insist on a judgment. To sustain its position appellee relies heavily upon Terry v. Plunkett-Jarrell Grocer Co., et al., 220 Ark. 3, 246 S. W. 2d 415, 29 A. L. R. 2d 1264, but the issue there was whether service should be quashed in the original suit, and it was held that certain parties in Saline County were not tona fide defendants, and for that reason the service obtained on Plunkett-Jarrell and others in Pulaski County should be quashed. Here, there was no motion to quash service or any objection to the judgment in the first instance. The case at bar is a separate suit to set aside a judgment on account of alleged fraud in obtaining it. Ark. Stat. § 29-508; Clark v. Bowen, 186 Ark. 931, 56 S. W. 2d 1032. In Alexander v. Alexander, 217 Ark. 230, 229 S. W. 2d 234, this Court said: “The law is settled that the fraud which entitles a party to impeach a judgment must be fraud extrinsic of the matter tried in the cause, ... It must be a fraud practiced upon the court in the procurement of the judgment itself.”
Here it cannot be said that any fraud was practiced upon the court in obtaining the judgment. Everything was open and aboveboard. All the facts concerning the service of summons appeared on the face of the record.
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George Rose Smith, J.
This is a suit by the appellee to obtain cancellation of a deed by which he conveyed four town lots in DeWitt to his stepdaughter, the appellant. The complaint alleged that the defendant had induced the plaintiff to sign the deed by fraudulently representing it to be a mortgage. The chancellor rejected the charge of fraud but found that one of the lots, Lot 7, had been included in the conveyance by mutual mistake. The decree reformed the deed by deleting Lot 7 and also impressed a lien on that lot for a debt of $149.95 that the appellee owes the appellant. Both parties have appealed.
The four lots were originally purchased in 1947 and 1948 by Griffin and his wife, who had the deeds made to themselves and to the appellant. The Griffins had built a small house on Lot 7 and had just begun the construction of a house on the other lots when Griffin’s wife died in about 1950. The appellant wanted to complete the second dwelling as a home for herself, but she was told by an attorney that she would have to have a deed to the lots to be entitled to finish the house.
The parties, who are still on friendly terms, are pretty well in agreement about the way in which the deed now in dispute came to be executed. Griffin was an illiterate laborer, somewhat addicted to drink, and after his wife’s death both he and his stepdaughter feared that he might lose his home on Lot 7 through improvidence or might someday remarry and lose it to his second wife.
The appellant consulted an attorney, who prepared the deed with a view to carrying out the parties ’ wishes. By the instrument Griffin conveyed the four lots to his stepdaughter; but he reserved a homestead right in Lot 7, with a proviso that this right would cease if he should abandon his residence on the lot for a year or if he should remarry and be divorced. The deed was signed and acknowledged by Griffin, who has abandoned his original assertion that he thought he was signing a mortgage. After the deed was executed, in 1951, the appellant finished the house on the other lot and was living there when the case was tried. There seems to be no real dissension between Griffin and his stepdaughter; we infer from the record that Griffin’s second wife may have persuaded him to bring this suit.
We think the weight of the evidence to be against the chancellor’s finding that Lot 7 was included in the conveyance by mutual mistake. At the trial both parties were easily led by questions on direct and cross examination and contradicted themselves from time to time-For example, Griffin, in response to a leading question, said that he had not intended to convey the property; but when he was asked later on if he knew that he was signing a deed to the property he answered: “Well, to be honest, I sure did know it.” The appellant testified that her attorney fully explained the effect of the deed before Griffin signed it, and Griffin refused to deny that such an explanation was made. The deed was in fact aptly worded to give effect to the admitted intentions of both the grantor and the grantee. We are convinced that it was a valid conveyance, voluntarily executed by the appellee without fraud or mistake on the part of anyone concerned.
Counsel for the appellee, citing such authorities as the Restatement of Trusts, § 44, and Walker v. Biddle, 225 Ark. 654, 284 S. W. 2d 840, insist that a constructive trust should be declared in Griffin’s favor, because the parties were in a confidential relation. This, however, is not a case in which an absolute deed was made in reliance upon the grantee’s oral promise to hold the land for the grantor. Here the agreement of the parties was written into the deed itself, and it has not been shown by clear and convincing evidence that the appellant orally assured her stepfather of any interest in the land other than the homestead right that was actually reserved.
By cross appeal the appellee contends that the court erred in fixing a lien upon Lot 7 to secure the appellant’s judgment for $149.95. This sum is the unpaid balance of an unsecured loan that the appellant made to the appellee, to enable him to pay delinquent federal income taxes. It does not clearly appear that the Government had a lien to which the appellant might be subrogated, and there is no other basis for impressing a specific lien on Lot 7. The appellant’s proof entitles her to a money judgment only.
Beversed and remanded for the entry of a decree consistent with this opinion.
William J. Smith, J., not participating. | [
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Carleton Harris, Chief Justice.
This is the second appeal of this case. An action was brought by the City of Little Rock to condemn five acres of land, the complaint alleging that Bradley had a deed to the land, and that Keith had a tax title to same. Bradley filed an answer asserting title to the property, but Keith failed to file any pleading whatsoever. At a preliminary hearing, with the parties represented by their attorneys, it was agreed that the land was worth $1,000, and that the city might deposit such amount in the registry of the court, and take possession of the property. The court’s order recited, “ * * * said funds shall remain in the registry of the court until ownership has been finally determined,” and directed that the cause be placed on the regular docket for determination. On June 5, 1956, Bradley was present by his attorney, but appellee failed to appear. After hearing evidence, the court found that Keith was entitled to reimbursement for the amount paid for his tax deed together with interest, and that Bradley was entitled to the rest of the aforementioned fund.
On the following day, Keith filed an unverified motion to set aside said judgment, asserting that only a pre-trial conference had been set for June 5th, and that his attorney had been unable to attend by reason of illness. This motion was not presented to the court until after the lapse of the term. At the subsequent term, the court considered the motion, and acting upon the statement of counsel for appellee, made a finding of unavoidable casualty and vacated the judgment. Bradley appealed to this Court, and we reversed the Circuit Court because the motion filed by Keith to set aside the judgment was not verified, nor was any. sworn testimony taken at the hearing on said motion. Following the filing of the mandate, Keith again filed a motion to set aside said judgment, and verified same. The court granted the motion, and set aside the judgment of June 5, 1956. From such action, appellant brings this appeal.
The second motion filed by appellee was identical with the first, with the exception that the latter was verified. The meritorious defense alleged was that Keith had a tax deed to the property. Subsequently, Keith amended his pleading to allege the placing of improvements upon the property. Section 29-508, Ark. Stats. (1947) Anno., requires that a complaint to set aside a judgment after the expiration of a term be verified. "We reversed the earlier appeal because this statute was not complied with. It was pointed out in our opinion that this requirement may be satisfied by the introduction of sworn testimony at the hearing on such a motion, but though an oral statement was made by counsel, which might well be considered testimony, the requirement was not met since the statement was not made under oath. The issue before this Court in the first appeal was whether the trial court’s action in setting aside its earlier judgment was proper and valid. That court had based its action on a finding that appellee’s counsel was prevented, through unavoidable casualty, from attending the hearing at which the judgment was entered. This question, as well as the question of appellee’s failure to file an answer within the time allowed by statute, was before this Court, and argued in the briefs. The fact that the case was decided on another point does not mean that Keith is entitled to start over again. Such a holding would not be logical. If Keith can correct his mistake by verifying his pleading and thus come before the Court a second time, then if the present pleading were unverified, and we again reversed for that reason — he could come a third time, and in fact, a fourth — and so on. There would never be an end to the matter. The additional allegation of improvements to the property is of no help because these improvements apparently were made before the filing of the first motion. On page 84, paragraph 65, Vol. 60, of Corpus Juris Secundum, we find:
“* * * the denial of a motion is not res judicata as to a subsequent motion which is based in part on matters occurring after the making of the prior motion, and which seeks relief which the earlier motion did not seek.”
Here, the converse is true. The second motion seeks identically the same relief as the first, and the additional defense alleged is not based on matters occurring after the making of the first motion. We accordingly find that the question of the validity of the Circuit Court’s order setting aside the judgment of June 5, 1956, was adjudicated by this Court on July 1, 1957.
Were it otherwise, the result would be the same, for appellee cannot prevail for yet another reason. This suit was filed by the city on March 29, 1956, and no an swer was ever filed by Keith. The judgment in favor of Bradley was not entered until sixty-five days after service of summons on both Bradley and Keith,. and twenty-six days after the court placed the cause on the regular docket for determination. Counsel for appellee was apparently under the impression that it was not necessary to file an answer in a condemnation suit. As a general rule, this is true. In Vol. 18, American Jurisprudence, Section 325, page 970, we find:
“When condemnation is by judicial proceeding, the usual practice requires no plea or answer on the part of a defendant, and it has been held that it is not error to strike out an answer filed. A reason why there is no strict necessity that the owner should appear and answer is that the land can be condemned only on the payment of just compensation to the owner, and this, of course, must be ascertained and paid whether or not the owner appears and answers.
=& & *
On the other hand, it has been held that the duty devolves on a defendant in an eminent domain proceeding not only to prove, but also to plead, how and why he will suffer damages in respect of land which is not taken in the proceeding. Thus, if he claims damages for the cost of building and maintaining fences along a strip of land taken for a public use, such as a highway or railroad, his answer should contain appropriate pleadings supporting the claim.”
In this litigation, we do not agree that the filing of a pleading was unnecessary. Sec. 35-906, Ark. Stats. (1947) Anno., provides:
“So soon as the amount of compensation that may be due to the owners of the property taken, or to any of them, shall have been ascertained by the jury, the court shall make such order as to its payment or deposit as shall be deemed right and proper in respect to the time and place of payment and the proportion to which each owner is entitled, and may require adverse claimants of any part of the money or property to in terplead, so as to fully settle and determine their rights and interests according to equity and justice.”
As previously mentioned, the court, on May 10, 1956, entered an order finding that the city had deposited the sum of $1,000 into the registry of the court, and “* * * that there is a dispute among the defendants as to the ownership of said property. That said funds shall remain in the court until said ownership has been finally determined. * * * It is further ordered that the cause be placed on regular docket for determination of distribution of the funds.” So here, it was incumbent, that in order to make claim to the fund deposited, the two claimants of the land assert their claim to ownership (or any other claim, such as improvements), in order that the court might act thereon. It was accordingly necessary that pleadings be filed. See. 27-1135, Ark. Stats. (1947) Anno., was amended by Act 49 of 1955 to provide as follows:
“The defense to any complaint or cross-complaint must be filed the first day after expiration of the periods of time set forth below, as the case may be:
First. Where the summons has been served twenty (20) days in any county in the State; * * *”
As pointed out by appellant, this provision has been held to be mandatory. Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 439. See also Pyle v. Amsler, Judge, 227 Ark. 785, 301 S. W. 2d 441. In the former case, this Court said:
tt* * * We do not mean to foreclose the possibility of relief to a defendant who has been prevented by unavoidable casualty in making his defense. For nearly a hundred years such a misfortune has been a basis for vacating a judgment after the expiration of the term. * * * The 1955 acts do not purport to change the law in this respect. * * *”
Here, no unavoidable casualty or misfortune is suggested as preventing the filing of an answer.
Without entering into a detailed discussion, since this litigation is thus disposed of, it might likewise be added that under the proof, we cannot agree that the failure of counsel to attend the hearing because of illness, constituted unavoidable casualty. The evidence showed that the law firm, with which then counsel was connected, had several members or associates, and it is not shown that it would have been impractical for any of these to attend the hearing.
For the reasons enumerated herein, the judgment is reversed, and the cause remanded with directions to reinstate the judgment of June 5, 1956.
See Bradley v. Keith, 227 Ark. 1107, 305 S. W. 2d 134.
Rehearing was denied on September 30, 1957.
This act was further amended by Act 53 of 1957. | [
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Carleton Harbis, Chief Justice.
On May 24, 1956, petitioners, Tom Williams, Joe Standridge, and James Deaton, charged jointly with Grand Larceny, respectively entered a plea of guilty. Williams and Standridge were sentenced to five years’ imprisonment in the state penitentiary, and Deaton received a three year sentence. The clerk of the court made out commitments in conformity with the court’s docket entry, and the petitioners were returned to the penitentiary where they were already serving other sentences. Approximately two weeks after the commitments were issued and petitioners had been delivered to the penitentiary, the transfer agent for the Arkansas State Penitentiary called the clerk and advised him that under the commitments issued, the sentences of petitioners would run concurrently rather than consecutively, since said commitments were silent as to whether they should run concurrently with the sentences already being served, or consecutively thereto. The court, upon being so advised by the clerk, instructed the latter to issue new commitments, adding the words “said sentence to begin at the expiration of the sentence defendant is now serving in the state penitentiary.” A similar notation was added to the docket sheet by the court, and the new commitments bore the original date of May 24th. On February 4, 1958, Deaton, Williams, and Standridge, under authority of Act 419 of the Acts of the General Assembly of 1957, filed a petition alleging that since they had already been in the penitentiary for approximately two weeks before the new commitments were issued, the court had lost jurisdiction of the parties; that they received no notice of the issuance of the new commitments and were not present in court at the time same were issued; that the effect of the court’s action was to give them additional sentences “without them being before the court or notice to the defendant, and without jurisdiction on the part of the Pulaski Circuit Court.” They prayed that the second commitments issued be held null and void, and that the court declare the original commitments as the proper ones under which they were to serve their sentences. The court denied the petition, and from such denial, comes this appeal.
For reversal, appellant relies upon three points, but we need go no further than the first point to determine the issue. Appellant’s first point is “When a person is legally committed to the State Penitentiary, the court loses jurisdiction of said cause, barring any clerical error.”
First, it might be well to discuss the law applicable to the matter of concurrent and consecutive sentences. One of our earlier cases dealing with this subject is Ex parte Brady, 70 Ark. 376, 68 S. W. 34. There, this Court said:
“It is true that, where one is convicted of two or more offenses the punishment for which is imprisonment, the judgment should direct that the imprisonment in one case commence after the termination of it in the other, and if this is not done the terms of imprisonment may run concurrently, so that the prisoner will be entitled to his discharge on the expiration of the longest term adjudged against him. ’ ’
This conforms to what presently constitutes Sec. 43-2311, Ark. Stats. (1947), which reads as follows:
“If the defendant is convicted of two or more offenses, the punishment of each of which is confinement, the judgment shall be so rendered that the punishment in one case shall commence after the termination of it in the others.”
In 1923, the legislature passed an act (Act 152) which appears in our statutes as Sec. 43-2312, and which reads as follows:
“Hereafter when any person shall be convicted of more than one felony, the punishment for one of which begins before the expiration of the sentence imposed on the other, the court trying the cause shall have the authority to direct that said sentences shall run concurrently, if it shall be deemed best for society and the person convicted. ’ ’
However, in the ease of Hayes v. State, 169 Ark. 883, 277 S. W. 36, this Court held that the 1923 Act (Sec. 43-2312) did not repeal Sec. 43-2311 (then Sec. 3239 of Crawford & Moses’ Digest). Chief Justice McCulloch, speaking for the Court, said:
“The statute last quoted does not repeal the former, and it is seen from a perusal of it that there is express authority for making the term of sentence in one case begin at the expiration of another term of sentence, * * * . ”
Hence, it follows that unless the judgment specifically directs that one sentence shall commence upon the expiration of the other, the sentences will run concurrently. The State, through the Attorney General, does not argue that the law is otherwise, hut contends that the action of the trial court in the present instance, was merely correcting a clerical error in the judgment. In Fletcher v. State, 198 Ark. 376, 128 S. W. 2d 997, this Court, citing several prior cases, held:
“If the trial court loses jurisdiction over the case when the statutory requirements for an appeal are complied with, and a transcript of the record is filed with the clerk of this court, it would seem that for a similar reason the trial court would lose jurisdiction of the case when it had issued its commitment of the defendant to the State Penitentiary, and the defendant had been transported there, and was serving his sentence.
So, in this State, there are two well known exceptions to the rule that the court has general power over its judgments during the term in which they are first rendered. One is that when an appeal has been perfected in this court and the other is that the defendant has served a portion of his sentence. In either case the trial court is without jurisdiction to modify its judgment, ‘except to correct its judgment to make it speak the truth in aid of the jurisdiction of the appellate court.’ ”
This is in line with the general weight of authority, as stated in 168 A. L. R. 707.
“The great weight of authority supports the rule that when a valid sentence has been put into execution, the trial court cannot modify, amend or revise it in any way either during or after the term or session of the court at which the sentence was pronounced; any attempt to do so is of no effect and the original sentence remains in force.”
As denoted by the last sentence quoted in the Fletcher opinion, it is true that we have several times held that a court has the power to correct clerical errors in its judgments, orders, or decrees. McPherson v. State, 187 Ark. 872, 63 S. W. 2d 282; Hydrick v. State, 103 Ark. 4, 145 S. W. 542; Goddard v. State, 78 Ark. 226, 955 S. W. 476. As stated by the Court in the McPherson case, supra:
“It is uniformly held that a court of record may correct mistakes in its record which did not arise from the judicial acts of the court but from the mistakes of its recording officers.”
Here, there was no clerical error, though it appears the court, in sentencing petitioners, stated that their sentences would run consecutively to the ones petitioners were already serving. L. W. Rosteck, deputy clerk in the First Division Circuit Court, testified as follows:
“Q. You made out the commitment for Judge Kirby?
A. I made out the commitment.
Q. You failed to mention the word ‘consecutive’ that he used when you made out the commitment?
A. I didn’t mention it in that I called it to the Judge’s attention- — the docket entry didn’t indicate that the sentences were to run consecutively and he at that time said it didn’t make any difference- — -that if he didn’t say, it would automatically run consecutively.
Q. He did during the sentencing say that they would run consecutively?
A. That is true.
Q. In making up the commitment, you failed to incorporate the word ‘consecutive’ in the commitment?
A. I make the commitment from the Judge’s docket — I don’t make up the commitment on the verbal sentence — I make it up off of the entries on the Judge’s docket, and when they did not reflect the word ‘ consecutive,’ I called it to his attention and he said to let it go ahead like I had it written and they would automatically run consecutive — that was his impression.”
Judge Kirby himself confirmed this testimony.
The passage of the 1923 act perhaps made confusing a correct interpretation of the law, and the court’s error is understandable. Still, it was error, and necessitates a reversal.
The judgment of the court denying the petition is reversed, and the cause is remanded with directions to enter an order voiding the second commitments, and reinstating the original commitments issued on May 24, 1956.
Robinson, J., not participating.
The record does not reflect when petitioners were first committed to the state penitentiary, the length of sentence being served, or why they were away from the penitentiary at the time of committing the instant offenses. Under the weight of authority, the general rule, hereinafter discussed, as to consecutive and concurrent sentences, is the same, whether one be sentenced on two charges at the same time, or at different times. See People v. Sukovitzen, 138 Cal. App. 2d 159, 291 P. 2d 107; People v. Ragen, 396 Ill. 565, 72 N. E. 2d 175; Williford v. Stewart, 355 Mo. 715, 198 S. W. 2d 12; Ex parte Hodge, 158 Tex. Cr. R. 549, 258 S. W. 2d 323.
According to an opinion rendered by the office of the Attorney General to the superintendent of the penitentiary on March 18, 1953, in a similar case. | [
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Paul Ward, Associate Justice.
This is a divorce action involving the custody of children, support for the wife, and maintenance for the children.
Appellant, Norma J. Narisi, and appellee, Vincent J. Narisi, were married on December 16,1947 at Fort Smith where they both lived at that time and where they still live. The parties lived together without incident until about the middle of September, 1954 when they separated for about 3 months. During the time they were together three children were born: Jacob J. Narisi, now about 9 years old; Stella Maria Narisi, about 7 years old, and; Vincent J. Narisi, Jr., about 5 years old.
The parties resumed marital relations about the middle of December, 1954 and continued to live together until May, 1955 when they again separated for about 6 weeks.
They resumed marital relations about the middle of July, 1955 and lived together until their final separation on May 30, 1957.
On July 27, 1957, Norma filed suit for divorce on the grounds of indignities, including unmerited reproach, physical abuse, abusive language, and non-support of her and the children. She prayed for a divorce, for custody of the children with visitation rights to appellee, for $600 per month for support and maintenance, for one-third of appellee’s personal property absolutely, for one-third of all real property for life, and for attorney fees.
On August 5, 1957 Vincent filed a general denial and also a cross-complaint accusing Norma "with indignities, including abuse, studied neglect, physical abuse, and profane language, and stating that Norma was not a fit person to have custody of the children. His prayer was for a divorce and custody of the children.
Upon a final hearing the trial court denied a divorce to Norma, gave a divorce to Vincent and gave custody of the children to Norma. The trial court also made allowances for support and maintenance.
On this appeal appellant, among other things, asks us to hold that she is entitled to a divorce, and that appellee is not, and that she be given the statutory division of property. She also asks for additional support and maintenance, and additional attorney fees.
On the principal question of divorce we have reached the conclusion that neither party should be given a divorce. In view of this and in the hope, perhaps vain, of a reconciliation in the interest of the children, we will not attempt to recount and evaluate in detail all of the testimony which is voluminous, sometimes sordid and highly conflicting. We feel that to set out fully the testimony would not be beneficial as a precedent and might only serve to aggravate a delicate situation.
A careful examination of the record presents us with this general picture:
When the parties were married appellant, who was several years younger than her husband, was working for appellee, who was and is a substantial business man in Ft. Smith, and she continued to work in a clerical capacity until after the first child was born. Apparently marital clouds first began to gather in the fall of 1953 over money matters and over Norma taking dancing-lessons. Appellee did not, and has never, given a definite allowance to appellant. Sometimes her demands for money were not granted by appellee and sometimes, it seems, they should not have been. Appellant says she borrowed money and also used money from her own small estate to pay the expenses incidental to the birth of the children. This was denied. At first appellee went with appellant to take dancing lessons, but later she chose to go by herself under circumstances which led appellee to think, right or wrong, that she was enamored with the dancing teacher. Anyway after living together for about six and one-half years the first separation took place and lasted for about 3 months. During this period of separation the parties were together on a few occasions but it was also when appellee thought Norma strayed further from the path of rectitude. Her association with the dancing teacher aroused intense distrust in appellee. He and his private investigators professed to have found appellant and the dancing teacher in suspicious relationships, but there was no positive or direct proof of extreme indiscretions. It is undisputed that Vincent accused her repeatedly of acts of infidelity with more than one man. In spite of it all they went back together on or about December 15, 1954 and lived together in their home for about 5 months when they separated once more for a period of about six weeks. The immediate cause of this separation, in addition to some of the things mentioned above, was a fight in which, according to appellee, Norma tried to inflict injury on him with a pair of scissors.
We pass over the intervening accusations and counter accusations because the parties again effected a reconciliation on or about July 15, 1955 and lived together until May 30, 1957.
Regardless of the merits or demerits of each party’s accusations prior to the July, 1955 reconciliation, we think each party condoned the actions of the other on that date and by that act. Our holdings to that effect are so numerous and specific that citations are unnecessary. We realize that condonation may sometimes be conditional, but we do not think that rule is applicable here. In the first place living together nearly two years belies any expressed or latent intent to cohabit on a trial basis, or if so, it shows that the trial period had ended. Also, the cause of the last separation was not a renewal of the alleged prior indiscretions and indignities.
The immediate cause of the final separation was a brawl that took place in their home on the night of May 30, 1957. The parties and their children, together with two visiting children, had visited a rodeo that night. When they returned around 10 or 11 o’clock after the children had gone to bed, Norma and Vincent went to their room where they were to sleep on a double bed. Shortly the brawl began. Their stories of the cause and what happened are somewhat similar, but vary as to who was most to blame. Appellant, according to her account, turned on the bed light to read for a few minutes when appellee got mad, cursed her, and dragged her bodily into the living room. She says she resisted only because she didn’t want to awaken the children and make a scene. Appellee admits asking appellant twice to turn out the light so he could sleep, and that she not only refused but flew into a rage with violent language, and tried to inflict bodily harm on him. He says that he was merely trying to, defend himself when he took hold of her arms until he could get to the front door and escape. It is impossible to determine with satisfaction which party has given the true account of what took place, and there is no corroborating evidence to tip the scale.
There is, however, one thing that is made clear in the record, and that is that both parties were equally at fault. Such being the state of the record we conclude that neither party should be given a divorce. In this connection, we like the general rule as stated in 27 C. J. S. at page 623, dealing with Divorce, under the section of Recrimination, Section 67a. which states: “As a general rule, sometimes declared by statute, divorce is a remedy for the innocent against the guilty; hence, if both parties are equally at fault, a divorce will not be granted. If the conduct of both parties has been such as to furnish grounds for divorce, neither of the parties is entitled to relief, or, as the rule sometimes is expressed, if both parties have a right to a divorce, neither of the parties has.” Decisions from many states are cited in support of the above. The rule is known as the doctrine of recrimination and rests on the equitable maxim that he who comes into equity must come with clean hands. There are decisions of this court in harmony with the rule expressed above. In Cate v. Cate, 53 Ark. 484, 14 S. W. 675, where a divorce was denied both parties we said: “It is not necessary to recapitulate the evidence and determine whether the conduct of either would be sufficient to warrant a divorce, provided the other was less guilty. It is immaterial, for we find them about equally at fault . . .” For holdings to the same effect see: Malone v. Malone, 76 Ark. 28, 88 S. W. 840; Strickland v. Strickland, 80 Ark. 451, 97 S. W. 659; Wilson v. Wilson, 128 Ark. 110, 193 S. W. 504; Preas v. Preas, 188 Ark. 854, 67 S. W. 2d 1013; Evans v. Evans, 219 Ark. 325, 241 S. W. 2d 713; Woodcock v. Woodcock, 202 Ark. 809, 152 S. W. 2d 1013; and; Bonner v. Bonner, 204 Ark. 1006, 166 S. W. 2d 254.
In disposing of the case below the trial court made we believe a fair allowance for the support of appellant and the care of the children which we hereby approve. We also approve the action of the trial court in giving to appellant the custody of the children, together with the visitation arrangement set forth.
Several other orders and actions of the trial court are urged as error by appellant, but in view of the disposition we have made of the case, as set forth previously, we deem it necessary to refer to only one.
Appellant earnestly insists that the trial judge should have disqualified and that it was error for him to refuse to do so. This contention is based on the showing that the trial judge had formerly been somewhat closely associated with appellee, both socially and in a 'business way. We point out that no showing was made, which would disqualify the trial judge under any statute or under the constitution of this state. Such matters of disqualification are, as we have said many times, left largely to the discretion of the trial judge himself. We cannot say that the trial judge abused his discretion in this instance.
Appellant has asked for an additional attorney fee for prosecuting this appeal, and we think she is entitled thereto in the amount of $200 to he paid by appellee, and it is so ordered.
The decree of the trial court is therefore affirmed in all matters except that portion granting a divorce to appellee, and that part is reversed. The cause is remanded with directions to enter a decree in accordance with this opinion. | [
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J. Seaborn Holt, Associate Justice.
On September 28, 1956, appellee filed an application with the Arkansas Public Service Commission seeking a permit to operate intra-state as a common carrier of household goods between points and places in Washington County and points and places in the State of Arkansas at large. Appellee alleged in its application that for about three months prior to its application, Washington County was being served by appellants, Washington Transfer and Storage Company and Red Ball Transfer & Storage Company, Inc., two licensed carriers which had merged into one company, thereby leaving only one carrier of household goods in Washington County and the territory affected. Appellee further alleged that the appellants had merged into an organization and was “under the domination of one family until competition was destroyed contrary to Sec. 14 of the Arkansas Motor Carrier Act, found in Ark. Stats. 1947 annotated, Yol. 6B, See. 73-1767 (b), which says: ‘The transfer, lease, assignment or hypothecation of the permits and/or certificates and/or. licenses shall not be authorized where the commission finds such action will be inconsistent with the public interest, or will -have the effect of destroying competition or creating a monopoly.’ 2. That Fayetteville, Springdale and Washington County had grown tremendously without additional service. 3. That the present permittees had been rendering slow, unsatisfactory and inadequate service. 4. That the applicant was able and willing to perform the service and abide by the rules of the commission. 5. That there was a need for such additional service which would benefit the general public. All of which would indicate that public convenience and necessity required the additional service and the granting of the permit. ’ ’
A number of witnesses were presented by appellee before the commission in support of its contentions and appellants offered only four in protest and two of them were from Little Rock. The commission (by a vote of 2 to 1) on November 8, 1956 granted appellee’s application for a permit. Its findings and order contained these recitals: “. . . Applicants in this proceeding seek authority to pick up and deliver household goods at any point or place in the State of Arkansas when originating at or destined to points in Washington County. They have been in the Southwest Piano and Yan Service since 1950. Applicants have a concrete and tile fireproof building 100 by 50 feet, with 5,000 cubic feet of floor space and are affiliated with Burnham American Yan Lines of Columbus, Georgia. The Southwest Piano Company has two trucks with 18 foot van type bodies and a Fruehauf tandem trailer 33 feet in length. In addition, a pickup truck is used for light hauling.
Moving in this territory is unusually heavy, population considered, due partly to the large number of students moving to and from the University of Arkansas area. The City of Fayetteville has had an increase in population of 180 per cent from 1930 to 1950 and the figures projected to 1960 indicates an increase of 211 per cent over 1930. Representatives from the University, real estate and insurance firms, and others testified to the inadequacy of the presently authorized household goods carriers. Frequent and consistent delays have been encountered in getting moves made. Testimony of some witnesses was to the effect that they were delayed several days in getting moved. Financial statement of applicant shows assets of $21,782.63, including cash in bank $967.35, inventory $4,111.50 and accounts receivable $13,855.48. Liabilities amount to $3,-687.25. Furniture vans and equipment are already owned,” and further “That present and future public convenience and necessity require the proposed operation; 2. That applicant is fit, willing and able, financially and otherwise, properly to perform the proposed service and to conform to the provisions of the Arkansas Motor Carrier Act, and to the rules and regulations of the Commission promulgated thereunder; and 3. That the application should be granted.” The order of the commission was affirmed on appeal to the Pulaski Circuit Court, and from that judgment comes this appeal.
For reversal appellants contend (1) that the applicant (appellee here) must prove conclusively that the existing service in the area affected is inadequate, that public convenience and necessity require such additional service and the ability of applicant financially and otherwise to perform and (2) that the granting of appellee’s application would give it an unfair advantage over existing carriers.
1 and 2
This case comes to us for trial de novo. Therefore, unless we find the findings and order of the commis sion, and that of the circuit court on appeal, to he against the preponderance of the testimony we must affirm. The rules guiding us on appeal in cases such as this have been announced many times by this court. We reannounced these rules in the case of Wisinger v. Stewart, 215 Ark. 827, 223 S. W. 2d 604, where we said: u* * * it must be remembered that we are dealing with the finding of a tribunal erected by the legislature for the special purpose of investigating and determining matters of the nature here involved; and the finding of such a tribunal on a fact situation may not be upset by the courts unless the finding is clearly against the weight of the testimony. ... A point not to be lost sight of here is that de novo review by the courts, including this court, must not proceed as though the Public Service Commission did not exist and had never held a hearing. A hearing has been held, and the Commission which held the hearing has had the advantage of seeing and hearing the parties and witnesses face to face, whereas the circuit court and this court review the evidence from the record only. Where a matter is heard and decided by an administrative body such as the Public Service Commission, an order made by it should be upheld by the court on appeal unless it is against the weight of the evidence. . . . We try cases of this kind de novo, but it is the duty of the courts to accord due deference to the finding of the Commission, since it is the agency upon which the General Assembly has placed the duty to investigate and determine, in the first instance, the need for any proposed motor carrier service.” See also Ark. Motor Freight Lines, Inc. v. Howard, 224 Ark. 1011, 278 S. W. 2d 118.
It is significant that of the some 48 protestants against the issuance of the permit only four testified opposing it, and two of these (Mr. Moore and Mr. Gathright) admitted they knew little if anything of conditions in Washington County. Mr. Moore testified that he lives in Little Eock and is vice-president of the O.K. Van and Storage Company; that Little Eock is 195 miles from Fayetteville; that the idle equipment of his company is not available for local moving in Washington County, that his company frequently hauled a load in excess of 4,000 pounds from Little Rock to Fayetteville hut it has never made a haul from Fayetteville to points in Northwest Arkansas. Mr. Gathright, .who lives in Little Rock and owns and operates the Gathright Van and Storage Company, tended to corroborate Moore’s testimony and further testified,: “Q. You have a permit and you don’t want anybody else to have one? A. I certainly don’t.”
After a careful review of all the evidence presented, which we do not detail here, we have concluded that the preponderance thereof supports the findings and order of the commission and the judgment of the Pulaski Circuit Court. Accordingly, the judgment is affirmed.
Mr. Justice Ward dissents. | [
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Per Curiam.
Subsequent to the opinion rendered in this case on April 7, 1958, appellant, Meriwether Wright Hardy, filed a petition, setting out that dividends and interest, which had accrued on the various stocks and bonds since the date of the trial court’s decree (December 28, 1956), had been paid to appellees. Under the opinion rendered by this Court on April 7, 1958, appel lant was given, free from the lien claimed by appellee, Corinne Hardy, one-third of Robert L. Hardy’s stocks and bonds. Appellant contends that under the result reached by this Court, she is entitled to judgment for one-third of the dividends and interest which have been paid to appellees since December 28, 1956. In Item 5 of its opinion, this Court continued in effect the trial court’s order allowing appellant $262.50 per month for temporary alimony, and provided that such temporary alimony “shall remain in effect until such time as appellant’s award of dower, herein set out, shall be satisfied in full.”
It is conceded that the award of temporary alimony is greater than the amount of dividends and interest which appellant would have received from the stocks and bonds, if same had been divided in kind at the time of the entering of the decree. In her response to appellant’s petition, appellee, Corinne Hardy, states that she “has made arrangements with said bank for the release of that portion of said securities awarded appellant free of appellee’s pledge. ’ ’ In view of this statement by appellee, Corinne Hardy, and the facts herein enumerated, we make the following order:
The order allowing appellant $262.50 per month for temporary alimony shall remain in effect until such time as appellant’s award of dower in the stocks and bonds shall be satisfied, and the making of such payments shall operate in lieu of judgment for dividends and interest that may have been paid to appellees since December 28, 1956, and in lieu of amounts that may hereafter be paid until there is a division of the stocks and bonds in kind; PROVIDED, that appellant’s dower in the stocks and bonds, heretofore awarded shall be satisfied in full within 120 days from the rendition of this order; otherwise, such temporary alimony shall remain in effect and be cumulative to any dividends or interest that may accrue thereafter.
Costs in both courts against appellees.
Justice George Rose Smith not participating. | [
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Carleton Harris, Chief Justice.
Catheryn Char-ton and E. A. Mayall, her father, instituted suit against the Tri-County Gas & Appliance Company and Gerald Powell for damages, alleging that Mrs. Charton ordered propane gas from appellant company, which was delivered hy their employee, appellant Powell; that Powell placed more gas into the tank than it was designed to accommodate, which resulted in excess gas forcing its way through the mechanism of the head of the tank, and through the pipe leading from the tank into the house occupied by Mrs. Charton, on through the jets or burners of a stove, and subsequently into the rooms of the house. The Complaint then alleged that Mayall was visiting in the home of appellee Charton around 6 p. m. on October 2, 1957, and that appellees went into a small closet in the house to move some clothing, and, the room being dark, struck a match, whereupon an immediate explosion with a great burst of flame oc curred, and appellees were severely and painfully burned; that the house and contents were consumed by fire. Damages were sought by Mrs. Charton in the amount of $28,100, while Mr. Mayall alleged his damages to be $7,750. Appellants answered, denying the allegations, and further alleged that the butane system in the house, together with the container, were installed by appellee Mayall, who was inexperienced and incompetent to install the system, the latter fact being known by appellee Charton; that Mayall was negligent in said installation, and Mrs. Charton assumed the risk of injury from Mayall’s negligence in installing the system. It was further alleged that appellees did not exercise ordinary care for their own safety; that the proximate cause of the alleged injuries was the negligent acts of Mayall, in which Catheryn Charton acquiesced, and that appellees were negligent in a degree equal to or greater than any negligence that could be shown on the part of appellants. On trial, the jury rendered a verdict for Mrs. Charton in the sum of $5,208, and for Mayall in the amount of $755, for which sums judgment was entered, together with interest at the rate of 6% per annum until paid. From such judgment, appellants prosecute this appeal. The sole contention for reversal is that the court erred in refusing to direct a verdict for appellants at the conclusion of appellees’ testimony, and at the end of all the testimony in the case.
Appellants contend that the evidence as to their responsibility or liability for causing the fire was insufficient to send the case to the jury. They argue that the fire could have occurred from several causes, and that the jury was permitted to, and. did, speculate in reaching the conclusion that appellants were responsible. Of course, a verdict based upon conjecture would be of no validity. Biddle, et al., Receivers, v. Jacobs, 116 Ark. 82, 172 S. W. 258. The evidence reflects that appellee Charton started moving into the house in question on the last day of September, 1957, and concluded moving on October 1st. However, she did not spend either night on the property. Approximately 10 days earlier, appellee Mayall had made the installation of the butane system on the property. Mayall had no license to install such a system, but had installed his own butane system in two previous houses that he had lived in. He testified that he moved his own tank, which had a capacity of 115 gallons to the Charton property, and stated that the tank was 6 or 7 years old. It was placed about 15 feet from the house, and the installation consisted of putting down the line, attaching it on into the house, piping the house, and setting up two stoves, a cookstove in the kitchen, and a small butane heater “* * * back from the closet in the dining room.” Mayall described in detail his method of installing the system, and H. D. Burns, chief technician of the Liquefied Petroleum Gas Control Board (whose testimony will be hereafter more fully discussed) was in the courtroom during Mayall’s explanation, and subsequently testified # * If I understood his explanation correctly, the connections were made in a manner approved by the department.” On installing the stoves, Mayall checked to see that they were properly working. The heater was lighted, then turned off, and was never lighted again. Mayall testified that he checked the tank around 10 or 11 a. m. on October 2nd, and the gauge showed it to be 10% full; that accordingly, gas was ordered from Tri-County.
Mrs. Charton testified that her father took her to the house between 6:30 and 7 o’clock on the morning of October 2nd; that she started cleaning and straightening and ££* * * cooked my children just a snack.” In addition to cooking breakfast, she testified that she also prepared lunch on the cookstove; that she fixed bacon and egg sandwiches for the children in the afternoon, and that the stove was intermittently off and on all day, as she was boiling water to aid in cleaning the premises. Nothing out of the ordinary was noticed concerning the operation of the stove, i. e., it appeared to be working properly. Powell arrived with the gas around 4:45 p. m. Mrs. Charton stated that he filled the tank, and then came to the door and asked for a pencil eraser. “I asked him what he needed with a pencil, or something like that, and he said, ‘Well, I can’t figure this.’ I said, ‘Well, what do you mean?’, and he said, ‘Well, what size tank is this?’ I said, ‘Well, that I just don’t know.’ ” She testified that Powell figured for a long time and then asked her to figure it, but not knowing anything about gas, she was unable to help. She further testified that Powell stated it was the first tank he had filled by himself, and he didn’t know how to figure it. He then gave her a delivery ticket. The ticket showed that Powell found the tank empty and filled it to 90% full, and that he placed 135 gallons of propane gas into the tank. According to Mrs. Charton, Powell left, and around 6 p. m., her father and mother came to the house. Mrs. Charton turned on the cookstove, and a flame shot up 2 or 2% feet, and she immediately turned the stove off. She and Mayall then went to the closet to get the children’s clothes, and the closet being dark (the house not then being wired for electricity), the father struck a match. As Mayall described it:
“When I struck that match — it was just like the world on fire — of course, it didn’t last over that long (indicates by snapping fingers). Of course, it burned us up nearly. It burned Catheryn and she was just having one fit after another, and I was trying to take care of myself the best that I could, it burned me pretty bad. # * *
My hands were both burned badly, and my eyes were burned bad. I mean as red as they could be. And it burned me up in my nose, up inside of my nose. My nose peeled off. It has affected my breathing ever since, and even my ears peeled out on the inside.”
Father and daughter then immediately left the house, and a son-in-law took them to the hospital at Clinton. Around 8 p. m., the house caught fire, and several per sons passing the property between that time and 8:30 p. m., witnessed it. Testimony reflected that the house was almost completely burned, and flames from the tank were shooting 12 or 15 feet into the air. The witnesses described the flames as not being steady, but “* * * would go off and then it would shut down and then it would pop off again.” This happened 12 or 15 times while they were watching.
Appellant Powell admitted that he started work for Tri-County on October 1st, filled 15 tanks on that date in company with the local manager of Tri-County, and made 10 calls on the morning of October 2nd. He admittedly had no license to make deliveries of liquefied petroleum gases, and had only 1 y2 days training before filling Mrs. Charton’s tank. Powell had previously been a helper on a delivery truck for the Coca-Cola Bottling Company. According to his testimony, the percentage gauge reflected that the tank was empty. After noting that the tank had the capacity of 115 gallons, he filled it approximately 90% full, and made out a sales slip reflecting that 104 gallons of gas had been placed in the container. He testified that Mrs. Charton stated the tank had a capacity of 150 gallons, and would not sign the slip showing that 104 gallons had been delivered, so he made another slip showing that he had placed 135 gallons in the tank (which is 90% of 150).
The most extensive testimony was given by Mr. H. D. Burns, heretofore identified, and who qualifies as an expert on the subject of butane and propane gas, including its propensities, proper methods of installation, proper servicing, etc. Mr. Burns’ testimony was thorough, and exhibited an excellent knowledge of the subject. Necessarily, because of the length, the testimony cannot be discussed in detail, and only those portions’ will be mentioned which bear directly upon the issue in the litigation. In discussing the capacity to which liquid petroleum tanks should be filled, Mr. Burns stated:
* * you have a mark there that you fill for butane, and you have a mark there that you fill for propane, and you have a mark that you fill for a combina tion of butane and propane. Normally standard practice which, has been proven in the past to be safe, in the summer time, normally the summer months of the year, 90% is accepted as being safe, without going into calculation and without possibly referring to the liquid level gauge which could result in a mistake. They assume that 90% is the maximum and it has been proven from past experience that it would be safe under most conditions; in the winter time it is necessary to reduce that somewhat. I do know and I will say that they have in the past even during the winter months filled to 90% and has resulted in no complications, however, that was possibly due to the fact that the consumer was using gas off at that time. Should you fill one at extremely low temperature of 90%, then the temperature for some unknown reason was to raise up to 90 or 100 degrees, then you would be overfilled.”
He stated that because of the fact that propane will expand about twice as much as butane, a tank will hold less propane than butane. Propane, as it is used for domestic consumption, is in a gaseous state. Liquid propane, when warmed from the temperature, will start boiling, and form a vapor pressure above it; the vapor pressure is removed from the regulator on the tank into the houseline, and on into the appliances. When asked what would cause the flame from the burner on Mrs. Charton’s stove to shoot up 2% feet into the air, Mr. Burns replied that such an occurrence would be caused by excess pressure in the service line. He then went on to say:
“* * * assuming that the appliance had the correct orifice, had the appliance operated previously with a normal flame, then the only thing that would naturally cause that would be an excess pressure which would have a tendency to force more gas through the orifice. * * * ”
Burns then stated that this excess pressure in the service line could be caused by three things.
1. The malfunctioning of the regulator, or the hanging of a working or mechanical part in the regulator.
2. An accumulation of foreign material between the orifice and the regulator seat, preventing the regulator from closing.
3. The injection of liquid gas into the regulator. The witness testified that if the regulator was working properly, and there was no obstruction, “* * * then the only thing that would cause that would be liquid going into your regulator or gas in a liquid phase going into the low pressure side of your regulator, therefore vaporizing and increasing in volume which would necessarily result in an increase in pressure.” He testified that he examined the regulator, and that it was working at the time of his investigation; however, this was some months later, and Mr. Burns stated this did not conclusively prove that the regulator was working properly on the day of the fire; that he had known of regulators that would fail to function for a while, but would subsequently start working again.
Appellees’ contention is simply that the tank was filled too full, which caused the injection of liquid gas into the regulator; this, in turn, resulted .in high pressure building up in the low pressure line, the latter not designed to take care of such excessive pressure, with the consequence that the various connections in the house which operated normally under normal pressure would leak when subjected to excessive pressure.
Appellants argue that, before appellees can prevail under any circumstances, it must first be shown that the tank was filled 100% full, while appellees, though contending that the tank was filled to that capacity, argue that it is only necessary that it be established that the container was filled to an unsafe capacity. Be that as it may, we are of the opinion that there was sufficient evidence to have justified the jury in finding that the tank was filled to 100% capacity. In the first place, the delivery ticket given to Mrs. Charton by Powell shows that 135 gallons of propane were placed in the tank. It is somewhat difficult to accept the explanation that the ticket was only given to this appellee because she insisted she be charged for 31 gallons more than were delivered. Of course, it is even more difficult to see how 135 gallons of gas could be placed in a 115 gallon tank, but the point is that this evidence certainly establishes that Powell did not know enough about the operation of filling the tank to be reasonably certain of the amount placed in it. Aside from this testimony, let it be remembered that Mayall testified the tank was 10% full when he looked at the gauge around 11 a. m. in the morning. It would appear that the amount of cooking done from that time until the time the tank was filled, would have consumed but little gas. Of course, Powell stated the gauge rested on “empty,” but this conflict in evidence was simply a question for the jury to determine. If the tank was 10% full, there were 11% gallons in it. If Powell placed 104 gallons in the tank, as he testified, then, at the time of the fire, it contained approximately 115% gallons.
According to appellees’ evidence, the capacity gauge on the tank on the morning after the fire registered better than 90%. Evidence on the part of appellants showed that the gauge registered 87%. As stated, witnesses testified that they saw flames shoot out of the top of the tank 12 or 15 times at the time of the fire — and the house was practically completely burned when they arrived. Certainly, it is reasonable to assume that these flames “shot up” for quite some period of time before the witnesses arrived, and possibly for a while after they left. It would therefore appear that a large amount of gas would have been consumed at the time of the fire, and yet the capacity gauge still registered 87 to 90% full the next morning. This was certainly a strong circum stance indicating that the tank was 100% full at the time of the fire.
While, of course, the violation of regulations is not such evidence of negligence as would establish liability, still evidence of violations, if pertinent to the cause, is proper for the jury’s consideration in reaching its determination. One regulation of the Liquefied Petroleum Gas Board requires that an L. P. G. transport delivery driver must present satisfactory proof of on the job training for a minimum period of 30 days before taking an examination, which if passed, would qualify him for a license. As previously noted, appellant Powell had no license, and had only 1% days training. Also, where the piping of the L. P. G. system has not been performed by a licensed and bonded butane dealer, then the dealer delivering the gas is required to advise the customer that he cannot fill the tank, until he, or some other qualified person, applies an air test to the line. According to Mrs. Charton, she requested that Powell check over the installation, but because of inadequate knowledge, he was unable to do so. Appellants complain that appellees’ case is based upon speculation; yet, the dealer failed, as required by the aforementioned regulations, to report the fire within 24 hours. Instead, the report was made four months and 17 days later, and thus a proper investigation by the L. P. G. Control Board was precluded.
There was no evidence that the regulator was not properly functioning, or that there was an accumulation of foreign material between the orifice and the regulator seat. We think it significant that, according to the evidence, the stoves properly functioned prior to the filling of the tank. In Biddle, et al., Receivers, v. Jacobs, supra, the Court, quoting from a Missouri case, said:
“In actions for damages on account of negligence plaintiff is bound to prove not only the negligence, but that it was the cause of the damage. This causal connection must be proved by evidence, as a fact, and not be left to mere speculation and conjecture. The rule does not require, however, that there must be direct proof of the fact itself. This would often be impossible. It will be sufficient if the facts proved are of such a nature, and are so connected and related to each other that the conclusion therefrom may be fairly inferred.”
We have concluded that there was substantial evidence upon which to submit the case to the jury.
The judgment is affirmed.
Westchester Fire Insurance Company, which had intervened, was subrogated to the extent of $1,000 in the judgment awarded to Mrs. Charton, as it had previously paid such amount to her in satisfaction of her claims under a policy insuring jewelry and household goods.
The original was burned in the fire, but the pink duplicate was obtained from the company office.
There is no contention that the award to either appellee was excessive.
According to Mr. Burns, the shooting up of the flames indicated the operation of the pressure relief valve on the tank — the valve being set to go off when the pressure in the tank reached 250 pounds. The evidence reflected that the tank was 15 feet from the house, and Mr. Burns stated that, in his opinion, this was sufficiently close for the gas to catch on fire as it was released from the propane tank while the house was burning.
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Ed. F. McFaddin, Associate Justice.
This appeal is in an action filed by appellee, Williams, against the appellant, Traders & General Insurance Company (hereinafter called “Insurance Company”), for recovery under a policy.
On March 28, 1957, the Insurance Company issued to Williams a policy insuring him against collision damage, in excess of $50.00, to his new 1957 Chrysler New Yorker automobile, which had a list price of $5,700.00. On December 3, 1957 the automobile was damaged in a collision. Williams claimed the damage to be $2,050.00. The Insurance Company refused to do anything about paying the damage or repairing the car unless and until Williams would sign a release, and then the Insurance Company would undertake to have the car repaired at an expense of approximately $300.00. When Williams refused to sign such a release, the Insurance Company cancelled his policy as of February 1, 1958 and owed him $47.11 return premium, which was never paid.
Williams filed action against the Insurance Company on March 3,1958 and claimed damages of $2,000.00, plus penalty and attorney’s fee, and plus the $47.11 return premium due him. He attached a copy of the insurance policy as an exhibit to the complaint and alleged the facts substantially as above stated. After the Insurance Company’s demurrer was overruled, answer was filed containing a general denial and pleading a limit of liability. There was a jury trial, with judgment for appellee for $2,000.00, plus $47.11 refund on premium, plus 12% penalty, and plus $750.00 attorney’s fee. On appeal appellant urges the three points herein listed and discussed.
I. Overruling Demurrer. The Insurance Company demurred to the complaint, saying, (a) that it did not state facts sufficient to constitute a cause of action; and (b) that the measure of recovery alleged in the complaint (the difference in value before and after the collision) was not the correct measure of damage. The Court was correct in overruling the demurrer. The complaint alleged that the Insurance Company had can-celled a policy of insurance and refused to return the unearned premium, and the complaint prayed for such return. The complaint also alleged that the Insurance Company had issued a policy insuring against collision; that there had been a collision; that the Insurance Company had admitted liability but had failed and refused to pay the loss; and that the plaintiffs were entitled to recover $2,000.00 under the policy. Whether the damage to the car was more or less than the limit of liability, was a matter that could not be established until the evidence was offered. The complaint stated a cause of action for recovery.
II. The appellant says: “The court erred in permitting evidence to be introduced as to the difference in the fair market value of the plaintiff’s vehicle immediately before and immediately after the. accident.” This brings us to the most vigorously contested point on the appeal. The policy issued to Williams contained this language as to the liability of the Insurance Company for collision damage:
“Limit of Liability. The limit of the company’s liability for loss shall not exceed the actual cash value of the property, or if the loss is of a part thereof the actual cash value of such part, at time of loss, nor what it would then cost to repair or replace the property or such part thereof with other of like kind and quality, nor the applicable limit of liability stated in the declarations; . . .”
Appellant insists that the appellee sought to prove damages by the “value method” ■ — ■ that is, the difference in the fair market value of the car before and after the collision — rather than by the “cost of repair method”; and appellant says that the Court erred in allowing all such evidence as to the value method. Appellant points out that witnesses for Williams stated that the value of the car before the collision was $3,900.00 and that the value after the collision was somewhere between $1,200.00 and $1,800.00. Appellee counters with the arguments: (a) that he not only introduced evidence of “value”, but also introduced evidence of “cost of repair”; and that (b) the Court instructed the jury that the Insurance Company’s limit of liability was the cost of repair, and the case was submitted to the jury on that basis.
The record sustains the appellee on both of his answers. The witness, Grady Starling, was the Chrysler dealer at Booneville who had sold the car to Williams. Starling also operated a repair department and was familiar with the cost of repairs; and after the collision he checked the car as to the cost of labor and parts to make the necessary repairs. He itemized the parts and the cost of each. The total cost of the parts was $1,312.94; and the cost of the labor to repair the car was $740.00; making a total cost of repair of $2,-052.94. Starling testified that even this expenditure would not make the car as good as it was before the collision, but that the expenditure of $2,052.94 was necessary to repair the car.
The Trial Court instructed the jury in Instruction No. 5, requested by the Insurance Company:
“You are instructed that the policy or contract between the plaintiff and defendant, Traders & General Insurance Company, provides that in the event of a collision involving the plaintiff’s vehicle, the defendant is, under the terms of said policy or contract, liable only for the reasonable cost of repair of said vehicle or for the cost of replacing any parts of said vehicle which may have been damaged as a result of the said collision, with other parts of like kind and quality.”
Thus, there was evidence offered by the plaintiff not only as to the damage to the car but also as to the cost of repairs and the instruction told the jury that the defendant’s limit of liability was the cost of repair, provided the repair would “replace the property”.
The appellant insists that all the evidence of value before and after the collision was inadmissible and prejudicial ; but we do not agree with such contention. The Insurance Company delivered to Williams a policy which stated in the coverage section as regards collision, “. . . to pay for loss caused by collision to the owned automobile . . . but only for the amount of each such loss in excess of the deductible amount stated in the declarations as applicable hereto”. (The deductible amount was stated at $50.00.) So, in the light of the above quoted section, the Insurance Company was liable for all collision loss in excess of $50.00. What was the loss? Unless otherwise limited, it was the difference in value before and after the collision. But in another section of the policy the Insurance Company had limited its liability as regards collision loss to, “. . . what it would then cost to repair or replace the property or such part thereof with other of like kind and quality . . .”
When we consider together these two sections of the policy, it is clear that Williams was entitled to show (a) his loss by the “before and after” value rule; and then (b) to completely establish that his loss ’was within the limit of liability he could show, the cost of repairs. There was certainly no error in allowing the evidence offered, and the instruction given by the Trial Court at the request of the defendant made the point clear.
III. Attorney’s Fee. The judgment reflects that the Trial Court heard evidence as to what would be a reasonable attorney’s fee and then fixed the fee at $750.00. We cannot find such evidence in the record regarding the fixing of attorney’s fee; but, even so, we hold that the fee fixed is not excessive. The statute regarding the liability of an insurance company for penalty and attorney’s fee for failure to promptly pay a reasonable loss is § 66-514 Ark. Stats. It is hard to conceive of a more arbitrary position than the Insurance Company took in its dealings with Williams. When the insured refused to agree to the Insurance Company’s demands, the Company cancelled the policy; and to make matters worse, refused to return the unearned premium. When the insured brought action, the Insurance Company contested every step, but without success.
The Court fixed the attorney’s fee at $750.00, which was evidently intended to take care of the fee on appeal as well as in the Trial Court, because we find this language in the appellee’s brief:
“Some of the obvious matters, which the trial court considers in fixing the fee, are the amount of work involved, the amount in dispute, the skill required, and whether an appeal is taken and if so, what is involved on appeal. . . . the maneuvers of the company representatives indicated that the company had no intention of paying its coverage until compelled to do so by this appellate court.”
The fee fixed is not excessive for trial of a case like this before a jury and then the briefing and handling of the case on appeal.
The judgment is in all things affirmed.
The complaint also contained these allegations: “On December 3rd, 1957, at a time when said insurance was in full force and effect plaintiff’s car herein described was damaged by collision. The value of said car immediately before the collision was $3,850.00, and the value of said car immediately after the said collision was $1,800.00. The loss to plaintiff by reason of said collision was $2,050.00 . . . “Plaintiff has made demand for payment on the Insurance Company and repeatedly requested the Traders & General Insurance Company to comply with its contract with plaintiff, but said defendant has failed and refused to do so and on January 22nd, 1958, C. A. Phillips, Special Agent for Traders & General Insurance Company, and while acting within the scope of his authority, called on plaintiff in Booneville, Arkansas and stated that defendant, Traders & General Insurance Company, did not intend to comply with its contract and it was plaintiff’s next move. That the Agent, Phillips, on the date he called on plaintiff in Booneville signed and executed a ‘Notice of Cancellation of the aforesaid policy’ and caused it to be delivered to plaintiff, said notice being to the effect that the Policy of insurance herein sued on was cancelled by the defendant, Insurance Company, as of February 1st, 1958, making no offer or tender of return of any portion of the paid premium.”
In Instruction No. 7 the Court further reduced the plaintiff’s recovery by the amount of $50.00, which was the deductible amount under the policy.
In 43 A.L.R. 2d 327 et seq. there is an annotation entitled, “Measure of recovery by insured under automobile collision insurance policy”, in which cases with various policy provisions are listed and discussed. Three of our cases somewhat similar to the one at bar are National Ins. Co. v. Dalton, 214 Ark. 120, 214 S. W. 2d 507; Motors Ins. Corp. v. Lopez, 217 Ark. 203, 229 S. W. 2d 228; and Resolute Ins. Co. v. Bailey, 221 Ark. 419, 253 S. W. 2d 771.
The Court also further explained to the attorneys for the Insurance Company the purport of his holding when he declared to them in the course of the instructions: “The Court has permitted the introduction of evidence as to what the fair market value of the plaintiff’s car was immediately before the collision and as to what the fair market value was immediately after the collision. The Court permitted the in troduction of that evidence only for the jury’s consideration in determining the company’s liability under the provisions of the policy, as you have been instructed by other instructions herein. Such is not the measure of the defendant’s liability.”
In 10 Ark. Law Review 439, there is an article entitled, “One State’s Experience with the Statutory Remedy for Insurer’s Delays: A Problem in Payment.” This article contains a splendid study of our cases in reasonable attorney’s fees. | [
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Paul Ward, Associate Justice.
This litigation is over the proceeds of a $2,000 insurance policy on the life of Felton Hampton who was killed by his wife. The principal question is whether or not killing was justifiable.
The deceased, an employee of the Bradley Lumber Company, took out the insurance policy in question, payable to his wife who is the appellee here. Thereafter, on June 24, 1956 he was shot by his wife and died a few days later. Ada York, appellant, was appointed administratrix of the estate of the deceased.
On March 22, 1957 appellee filed suit against the insurance company, making appellant a party defendant. The insurer paid the amount of the policy into the registry of the court, and the suit was dismissed as to it. Upon trial the jury returned a verdict in favor of appellee. Appellant now urges a reversal on three grounds.
One. It is contended that there is no substantial evidence to support the jury verdict. There is no objection to any of the court’s instructions, so the question presented to the jury on this issue was whether the killing was unlawful or whether it was justifiable. If the killing was unlawful and unjustifiable recovery is prohibited by public policy. See: Inter-Southern Life Insurance Company v. Butts, 179 Ark. 349, 16 S. W. 2d 184 and Horn v. Cole, Administrator, 203 Ark. 361, 157 S. W. 2d 787. It follows therefore that the jury found the killing was justifiable, and, we think, there is sub-stantial evidence in the record to support that finding.
Other than appellee there were no eye witnesses to the killing, which took place at night. Some neighbors who heard screaming and who were told by appellee that she had shot her husband went to the home of deceased and found him on the floor with several gun shot wounds in the upper part of his body. They also found a pistol on the floor near the body of deceased. In her own defense appellee stated: “I don’t know who fired the shot, but he was fighting me. We were tussling and lie started fighting me. He was quarrelling over my money which I and my little boy made picking tomatoes. That Saturday Felton got a case of beer from somewhere and came home and put some of it in a bag and took it to the ball game. After the ball game he came home and because I would not tell him where my son’s and my money was he hit me with a piece of axe handle while I was in bed and I jumped up and we got to scuffling and he cursed me. He went to the dresser and got the pistol out and we scuffled and the gun went off. When he struck me I jumped up from the bed and he told me he was going to kill me, and cursed me and got the gun and I scuffled with him. I am not denying that I fired the shots that killed him. I was scared and hysterical and did not know what had happened until it was over. I would not have hurt him had I not been in fear of my life. He was drunk. He was cursing me.” There was other testimony indicating that the deceased had been drinking beer.
Two. We can not agree with appellant that the court erred in allowing appellee to ask appellant whether or not she had testified when appellee was tried for murder. The answer was in the affirmative. No other information was elicited or obtained. While the question and answer might not have been relevant, we are unable to see how any prejudice resulted. In support of her contention • appellant cites Smith v. Dean, 226 Ark. 438, 290 S. W. 2d 439, but we fail to see in it any application here. There it was merely held that a judgment is not admissible to prove the facts upon which it was based. Here no judgment was introduced and there was no attempt to prove any facts.
Three. Over appellant’s objections appellee was allowed to introduce the testimony of several witnesses to the effect that deceased had the reputation of being violent and turbulent. We think this testimony was relevant to the issue of whether appellee or the deceased was the aggressor.
The case of St. Louis I. M. & S. R. Co. v. Stroud, 67 Ark. 112, 56 S. W. 870, cited by appellant does not support her contention. There it was stated that “No evidence is allowed of particular acts of good or bad conduct, etc.” No such evidence was involved here. In the cited case it was stated that ordinarily evidence of general character is not admissible in civil eases, but it also recognized an exception where “the action involves the general character of the party, or goes directly to effect it.” We think the case under consideration falls within that exception. The vital question here was whether appellee was justified in killing her husband, and this question was closely connected with who was the aggressor. For that reason we think the questioned testimony was competent.
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JOHN B. ROBBINS, Judge.
| ]Appellee Billy J. Leach sustained an injury to his cervical spine on June 17, 2003, while working as a truck driver for appellant Enterprise Products Company. In a previous proceeding, the Workers’ Compensation Commission found the injury to be compensable and awarded temporary total disability benefits, as well as medical treatment to include an anterior microdiskectomy of C6-7 with fusion performed on January 13, 2005. A controversy subsequently arose concerning Mr. Leach’s entitlement to permanent benefits, and after a hearing the Administrative Law Judge awarded benefits for 15 percent permanent wage-loss disability and a 10 percent permanent anatomical impairment. The Commission modified the ALJ’s award and found that Mr. Leach was entitled to 10 percent wage-loss and an 8 percent permanent impairment.
|2On direct appeal from the Commission’s most recent order, Enterprise Products Company argues that there is no substantial evidence to support the Commission’s award of wage-loss disability. Mr. Leach has cross-appealed, arguing that the Commission erred in reducing the ALJ’s permanent impairment rating from 10 percent to 8 percent, and further erred in reducing the ALJ’s wage-loss award from 15 percent to 10 percent. We affirm on both direct appeal and on cross-appeal.
In determining the sufficiency of the evidence to support the Commission’s findings, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we will affirm if those findings are supported by substantial evidence. Farmers Coop. v. Biles, 77 Ark.App. 1, 69 S.W.3d 899 (2002). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The determination of the credibility and weight of the evidence is within the province of the Commission. Id.
Mr. Leach testified that he is sixty years old and did not finish high school but obtained a GED. He served in the military as an aircraft maintenance technician from 1965 through his retirement from the military in 1985. Mr. Leach went into the truck driving profession in 1989 and began driving for Enterprise Products Company in December 2001. He drove tankers for the appellant, and sustained his compensa-ble injury when he lifted a hose over his head, resulting in severe neck and back pain.
|sF ollowing his fusion surgery on January 13, 2005, Mr. Leach was released to return to work for Enterprise Products Company on April 1, 2005. He returned to work at his regular duties on April 3, 2005, and continued working for appellant through the end of August 2005. According to Mr. Leach, his job was very strenuous and he was required to pull as much as a hundred feet of two-inch hose that weighed well over 100 pounds. Moreover, he testified that driving the tanker truck involved a lot of bouncing and that, “You’ve got 45,000 pounds of liquid that’s sitting there just slamming you back and forth.” Mr. Leach indicated that his job activities aggravated his surgery and that his pain progressively worsened until he could not deal with the pain anymore, causing him to quit his employment. He stated that extreme neck pain and limited use of his right arm affected his ability to drive a truck, and he maintained that he can no longer engage in that line of work. Mr. Leach has not been employed since the time that he quit working for appellant.
On direct appeal, Enterprise Products Company argues that the Commission erred in finding that Mr. Leach was entitled to any permanent wage-loss disability because Mr. Leach failed to prove that his compensable injury resulted in a diminution of his earning capacity. The wage-loss factor is the extent to which a com-pensable injury has affected the claimant’s ability to earn a livelihood. Emerson Elec. v. Gaston, 75 Ark.App. 232, 58 S.W.3d 848 (2001). Arkansas Code Annotated section 11 — 9—522(b) (Repl.2002) provides:
14(b)(l) In considering claims for permanent partial disability benefits in excess of the employee’s percentage of permanent physical impairment, the Workers’ Compensation Commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee’s age, education, work experience, and other matters reasonably expected to affect his or her future earning capacity.
(2) However, so long as an employee, subsequent to his or her injury, has returned to work, has obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than his or her average weekly wage at the time of the accident, he or she shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by a preponderance of the medical testimony and evidence.
In this case, the appellant contends that there was no evidence that Mr. Leach suffered any wage-loss disability in addition to his permanent impairment, and specifically asserts that he is barred from such benefits under subsection (b)(2) because he returned to his work as a truck driver from April through August of 2005 performing the same job at the same wages.
In its argument, Enterprise Products Company directs us to Mr. Leach’s testimony on cross-examination, when he acknowledged that he had married a woman and moved to the Dominican Republic to be with her after quitting his employment at the end of August 2005. Mr. Leach lived in either the Dominican Republic or Honduras from September 2005 through March 2007, and acknowledged taking several long flights back and forth to the United States during that time. The appellant submits that Mr. Leach was physically capable of continuing his employment, but instead chose to quit so he could move out of the country to be with his wife. The appellant notes that Mr. Leach was returned to full | ¡¡duty on April 1, 2005, and that there were no restrictions placed on him by any physician since that time. In fact, he sought no medical treatment from the time he left Enterprise Products Company until visiting the VA hospital in May 2007, and even then no restrictions were placed on his job activities. Moreover, before resuming his work in April 2005, Mr. Leach passed a physical examination given by the department of transportation clearing him to return to work. Finally, appellant directs us to Mr. Leach’s testimony that his impending doctor visits for suspected prostate cancer are an impediment to his applying for work due to scheduling conflicts. Enterprise Products Company argues that the Commission’s decision awarding wage-loss disability is not one that a fair-minded person would have reached given the same set of facts.
We hold that the 10 percent permanent wage-loss disability awarded by the Commission was supported by substantial evidence. While Mr. Leach did return to working as a truck driver for a period of months following his surgery, this did not forever foreclose him from wage-loss disability benefits because subsection 11-9-522(b)(2) denies entitlement to such benefits only so long as an employee has returned to work at equal wages. Here, Mr. Leach testified that his return to work aggravated his condition, causing extreme neck pain and loss of use of his right arm, to the extent that he could no longer continue his employment duties. He testified that he repeatedly complained to his supervisor, but he was not offered lighter work. This testimony was deemed credible by the Commission, and it 16established some measure of wage-loss disability as Mr. Leach could no longer be employed at this strenuous level as a truck driver.
The evidence demonstrated that Mr. Leach sustained a compensable neck injury, diagnosed as cervical spondylosis and radiculopathy at the C6-7 level, which necessitated the need for fusion surgery. He reached maximum medical improvement and established an 8 percent permanent anatomical impairment. Mr. Leach is sixty years old with limited education and a limited range of prior work experience. While Mr. Leach did move out of the country for almost two years, he explained that it was less expensive to live there on his military retirement and that there were no VA hospitals to visit. The absence of any current documented work restrictions does not bar appellee’s wage-loss claim as a matter of law, and there is other evidence to support his claim. And while he has recently undergone testing for suspected prostate cancer, his disability manifested itself long before then and it is evident that the Commission did not take that nonwork-related condition into account as it awarded only 10 percent in permanent wage-loss. On this record, we conclude that the Commission committed no error in so doing.
We now turn to Mr. Leach’s cross-appeal, wherein he first argues that the Commission erred in reducing his permanent anatomical impairment rating from 10 percent to 8 percent. Pursuant to Ark.Code Ann. § ll-9-522(g)(l)(A) (Repl.2002), the Commission has been charged with adopting an impairment guide to be used in the 17assessment of physical impairment. Pursuant to this directive, the Commission adopted the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993). See Excelsior Hotel v. Squires, 83 Ark.App. 26, 115 S.W.3d 823 (2003). Mr. Leach contends that the 10 percent impairment rating assigned by the AL J is both consistent with the AMA Guides and the opinion of Dr. F.R. Shrader, who assigned a 10 percent rating utilizing Table 75, Section IV(D), of the AMA Guides on May 24, 2007.
We hold that it was not error for the Commission to reduce appellee’s impairment rating from 10 percent to 8 percent based on the evidence presented. The two competing alternatives here are found in Table 75, page 3/113 of the AMA Guides. Section IV(C) of that table provides for an 8 percent impairment for single-level cervical spinal fusion without residual signs or symptoms, and section IV(D) assigns a 10 percent rating for single-level cervical spinal fusion with residual signs or symptoms. The controversy relates to Mr. Leach’s radiculopathy, and the Commission indicated that it could not rely on subjective signs or symptoms to increase the impairment rating.
Prior to the fusion surgery, Mr. Leach was diagnosed with radiculopathy. This diagnosis was based on objective studies, and in particular a December 8, 2004, medical report documented that a nerve conduction study showed an acute right C7 radiculopathy. However, following the C6-7 fusion surgery on January 13, 2005, there was an absence of medical evidence demonstrating that radiculopathy was still present. In fact, in the |ssubsequent medical reports authored by his surgeon, Dr. Joseph Hudson, Dr. Hudson made no mention of radiculopathy but reported that Mr. Leach was doing very well and that his fusion was progressing nicely. Dr. Hudson released him to work on April 1, 2005. Although Mr. Leach testified that, after returning to work after the surgery, he was in a considerable amount of pain, Ark. Code Ann. § 11 — 9—102(16)(A)(ii) (Repl. 2002) provides that complaints of pain cannot be considered when determining physical impairment. And while Mr. Leach is correct that Dr. Shrader indicated in his report that radiculopathy was a residual sign increasing the rating to 10 percent pursuant to the AMA Guides, Dr. Shrader never examined Mr. Leach and his opinion was limited to his evaluation of the prior medical records. Because Mr. Leach failed to establish, post-operatively and objectively, the presence of radiculopathy or any other residual sign or symptom independent of his continuing pain, there was substantial evidence to support the 8 percent impairment awarded by the Commission pursuant to section IV(C) of Table 75 of the AMA Guides.
Mr. Leach’s remaining argument is that the Commission erred in reducing the ALJ’s wage-loss award from 15 percent to 10 percent. Mr. Leach asserts that this reduction was based in part on the Commission’s erroneous award for only an 8 percent permanent impairment as opposed to the 10 percent permanent impairment awarded by the ALJ. However, for reasons previously stated, we affirm the 8 percent impairment rating awarded by the Commission. Moreover, we think reasonable persons could conclude that appellee’s | ^permanent partial disability was limited to 10 percent under these facts. While the Commission credited Mr. Leach’s testimony that he was no longer employable as a tanker truck driver, Mr. Leach is not totally disabled and he has not since applied for any work. Lack of interest or motivation to return to work impedes the assessment of a claimant’s loss of earning capacity. See Ellison v. Therma Tru, 71 Ark.App. 410, 30 S.W.3d 769 (2000). Upon review of the evidence, viewing the facts in the light most favorable to the Commission’s decision, we hold that its award of 10 percent permanent wage-loss disability is supported by substantial evidence.
Affirmed on direct appeal; affirmed on cross-appeal.
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JOSEPHINE LINKER HART, Judge.
| jArmand Cesena argues on appeal that the Pulaski County Circuit Court erred when it granted Steve Gray’s motion for summary judgment. Cesena ■ had filed a lawsuit against Gray, asserting the torts of outrage and defamation; however, on appeal Cesena only pursues his outrage claim. We affirm.
Summary judgment should be granted only when it is clear that there are no genuine issues of material fact to be litigated and the party is entitled to judgment as a matter of law. Templeton v. United Parcel Service, Inc., 864 Ark. 90, 216 S.W.3d 563 (2005). The burden of sustaining a motion for summary judgment is the responsibility of the moving party; however, once the moving party has established a prima facie entitlement to summary judgment, the nonmoving party must meet proof with proof and demonstrate the existence]^ a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidence presented by the moving party in support of its motion leaves a material fact unanswered. Id. We view the evidence in the light most favor able to the nonmoving party, resolving all doubts and inferences against the moving-party. Id.
In order to establish the tort of outrage, the plaintiff must prove the following four elements: (1) the defendant intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous, was beyond all possible bounds of decency, and was utterly intolerable in a civilized community; (3) the defendant’s actions were the cause of the plaintiffs distress; (4) the emotional distress sustained by the plaintiff' was so severe that no reasonable person could be expected to endure it. Id. Arkansas appellate courts have taken a strict view in recognizing an outrage claim, particularly where it is alleged in employment relationships. See id.; Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683 (1991); Sterling v. Upjohn Healthcare Servs., Inc., 299 Ark. 278, 772 S.W.2d 329 (1989). The type of conduct that meets the standard for outrage must be determined on a case-by-case basis. Crockett v. Essex, 341 Ark. 558, 19 S.W.3d 585 (2000). Precedent requires that we give the tort of outrage a “narrow view” and requires “clear-cut proof’ to establish the elements in outrage cases. Id.
We are obligated to first decide whether the conduct alleged in Cesena’s complaint, |staken as true, states a claim for the tort of outrage, for if Cesena has not stated sufficient facts to support a claim for outrage, any unresolved factual issues are simply irrelevant. Hollomon v. Keadle, 326 Ark. 168, 931 S.W.2d 413 (1996). Cesena is employed as a systems analyst at Arkansas Blue Cross and Blue Shield (ABCBS). Gray was the supervisor of the department to which Cesena was assigned. Gray also supervised Cesena’s immediate supervisor, Derrick Flowers. The department was responsible for processing payments of Medicare claims for out-of-state entities who contracted with ABCBS for this service. The conduct alleged in Cesena’s complaint took place entirely during working hours and was allegedly perpetrated by Gray and Flowers, who were ABCBS employees.
In his complaint, Cesena alleged four categories of conduct that he asserted were actionable. First, he stated that “for over a year Derrick Flowers repeatedly and angrily threatened Plaintiff that he was going to take Plaintiff out into the parking lot and kick his ass.” Second, Cesena alleged, “On occasion when Plaintiff requested assistance from Defendant Gray to stop Derrick Flowers from subjecting him to threats of being taken out into the parking lot by Derrick Flowers and having his ‘ass kicked,’ Defendant Gray shoved his finger into Plaintiffs face and screamed, ‘Do you want to see how tough I can be?’ ” He believed that this “threat” was significant because he was aware that Gray had previously sustained a broken leg in a fight with an ABCBS employee. Cesena claimed that Gray “informed Plaintiff that Derrick Flowers was an extension of Defendant Gray’s authority,” and that “it was reasonably assumed by Plaintiff that the threats of Derrick Flowers were the ^threats of Defendant Gray, which caused him to have fear of imminent harm of being beat up by one or the other or both.” Third, Cesena alleged that on February 24, 2004, Gray terminated him for dishonesty. Fourth, Cesena asserted that Gray defamed him by declaring him dishonest, incompetent, and “crazy,” which he contended not only constituted defamation, but conduct that qualified as outrage as well. We hold that the conduct that Cesena alleges cannot support a claim for the tort of outrage because the conduct did not rise to the level of being extreme and outrageous, beyond all possible bounds of decency, and utterly intolerable in a civilized community.
Even more egregious conduct in an employment setting was found by our supreme court to not constitute the tort of outrage. In Smith v. American Greetings Corp., supra, there was not only an angry confrontation by the plaintiffs direct supervisor, but actual physical violence. Moreover, the employer in that case actually discharged the plaintiff. Nonetheless, the supreme court held that the plaintiff had failed to establish a claim for the tort of outrage and upheld a dismissal of the complaint. See also Hollomon, supra (conduct involved death threats including making the employee aware that the perpetrator was armed with a handgun and suggestions that the employer had others murdered).
Likewise, Cesena’s contention that he was subjected to defamatory and demeaning comments failed to support the tort of outrage in more egregious cases. In Sterling v. Upjohn Healthcare Services, Inc., supra, the supreme court upheld the trial court’s grant of summary judgment to the defendant, despite the plaintiffs employer’s unfounded assertions that the plaintiff was drunk at work, the employer’s attempts to undermine the plaintiff, and the employer’s eventual violent rhetoric regarding the plaintiff. Similarly, in Faulkner v. Arkansas Children’s Hospital, 347 Ark. 941, 69 S.W.Sd 393 (2002), the plaintiff presented facts indicating strained working relationships, a deliberate attempt to undermine her authority, false accusations of shoddy work, false accusations and rumors of mental illness, and, eventually, her being placed on administrative leave. There, the supreme court affirmed the dismissal of the complaint, noting that the plaintiff had not alleged any conduct that was beyond all possible bounds of human decency and utterly intolerable in a civilized society so as to rise to the level of outrage. Accordingly, while Cesena repeatedly describes the conduct he endured as “outrageous,” merely describing conduct as outrageous does not make it so. Fuqua v. Flowers, 341 Ark. 901, 20 S.W.3d 388 (2000).
We are aware of only two cases involving the tort of outrage that have been upheld on appeal that are even remotely analogous to the case at bar; however, those cases are readily distinguishable. In Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984), the supreme court sustained a jury verdict in a case where the employer thought that Bone, the manager of one of its stores in Little Rock, might be stealing either money or merchandise. Bone’s supervisor and two security officers came to the store to conduct an investigation of the losses, and Bone was questioned at thirty-minute intervals throughout the day. According to Bone, |fithe security men cursed him, threatened him, subjected him to a polygraph exam, and refused to allow him to take his prescribed medication, despite knowing that he had been dependent upon that medication for three years. In holding that the circuit court did not err in sending Bone’s claim of outrage to the jury, the supreme court emphasized that the basis for its holding was that it was for the jury to decide whether under the circumstances it was outrageous conduct for the employer to deny Bone his medication, knowing that Bone depended on it. The threats that Bone received were believed to not be sufficient to sustain his outrage claim. Here,- of course, the threats allegedly made by Gray and his purported confederate, Derrick Flowers, were the essence of Cesena’s case.
The second case is Hess v. Treece, 286 Ark. 434, 693 S.W.2d 792 (1985), where a divided court affirmed the award of compensatory and punitive damages where the defendant, Hess, motivated by personal animosity, carried on a two-year campaign to cause plaintiff Treeee’s discharge from the Little Rock Police Force. During those two years, Hess personally and through paid informants kept Officer Treece under surveillance and repeatedly filed false reports with plaintiffs supervisors in the Little Rock Police Department, alleging official misconduct as often as twice a week.
While the alleged duration and repetitive nature of the conduct in Hess is analogous to the case at bar, we believe that the nature of the conduct makes Hess inappo-site. First, Hess is not a case where the plaintiff and defendant had a supervisor/subordinate relationship, but rather one where the plaintiffs employment was affected by the conduct. Second, the 17false complaints made by Hess were calculated to spawn official police investigations by Treeee’s superiors. Hess also essentially stalked Treece, expanding the scope of the complained of conduct geographically and temporally to anywhere and anytime. Conversely, the conduct that Cesena complains of in the instant ease was not intended to result in official police investigations and did not take place outside of the place of employment or outside of work hours.
Because we hold that the conduct complained of is not sufficiently extreme and outrageous as to support Cesena’s outrage claim, we need not consider the disputed facts that existed after he answered Gray’s motion for summary judgment.
Affirmed.
GLOVER and HENRY, JJ., agree.
. Cesena was not actually fired. He contends that higher-level management at ABCBS intervened. | [
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WAYMOND M. BROWN, Judge.
hEurana Jones-Lee appeals from an order terminating her parental rights to her four children: Z.J. (born August 20, 2001), C.J. (born November 15, 2003), A.J. (born September 13, 2005), and C.S.J. (born March 26, 2007). She argues that the circuit court erred in determining that termination was in the children’s best interest, that the Arkansas Department of Human Services (DHS) made a meaningful effort to rehabilitate the home and correct the conditions that caused removal, and that she failed to remedy the conditions that caused the children to be removed from the home. She also challenges the denial of her motion for a continuance, contending that it precluded her from presenting evidence regarding her current mental status. We affirm the termination order and the denial of her motion for a continuance.
_[¿Factual and Procedural History
This case began with a report of inadequate supervision of Jones-Lee’s two oldest children. On February 10, 2007, DHS found five-year-old Z.J. and three-year-old C.J. unattended at their home. Jones-Lee left the children unsupervised while she attended church with one-year-old A.J. Z.J. and C.J. were immediately taken into emergency custody. At the time, Jones-Lee was seven months’ pregnant with C.S.J. Two days later, the investigator spoke with Jones-Lee by telephone and Jones-Lee agreed to bring A.J. into DHS’s office. However, Jones-Lee arrived without A. J. She told the investigator that she left the older children alone to go to church due to their behavior problems. She said that she did not have the patience to take the older boys to church and that she did not feel like “smacking” them. She explained that while she was at church, “God was watching the children.” Jones-Lee further told the investigator that she could do whatever she wanted to with her children, that she did not have to answer to the investigator, and that she must answer only to God. Jones-Lee ad mitted to the investigator that she had been diagnosed with depression but said that she did not take her medication because she did not want to become dependent.
A.J. was not taken into custody until the probable cause hearing held February 16, 2007. C.S.J. was born on March 28, 2007. Two days later, DHS took emergency custody of | shim, and the circuit court subsequently found probable cause to continue the custody. All the children were eventually adjudicated dependent-neglected. The two older boys were placed in the same foster home; A.J. and C.S.J. were placed in separate foster homes. Jones-Lee was awarded supervised visitation. The case plan required Jones-Lee 1) to obtain stable housing and employment; 2) to complete parenting classes and demonstrate parenting skills; 3) to participate in psychological evaluations and follow any recommendations resulting therefrom; 4) to take medication as prescribed; 5) to refrain from illegal drugs and alcohol; 6) to maintain a clean and safe home; 7) to demonstrate the ability to protect and keep the children safe; 8) to take steps to resolve the paternity of one of the children; and 9) to participate in individual counseling.
Dr. Paul DeYoub performed a psychological evaluation of Jones-Lee on May 7, 2007. He considered Jones-Lee to be chronically ill because she displayed psychosis secondary to depression. He diagnosed Jones-Lee with major depression, recurrent and severe, with psychotic features; parenting problems; personality disorder, inadequate and dependent. Dr. DeYoub felt that reunification was not an option because Jones-Lee was “too disturbed.” He did not think that reunification could be considered until Jones-Lee stabilized and participated in a regular routine with medication, a therapist, and a case manager. He recommended hospitalization or at least outpatient treatment and medication management.
As ordered, Jones-Lee began individual counseling with Fritzie Hemphill on June 12, | ,(2007. In a letter dated July 27, 2007, Hemphill notified Jones-Lee’s first caseworker, Shirley Burgess, that they were addressing the issues of depression, memory loss, and parental capacity, that Jones-Lee had participated in weekly counseling sessions, and that she had been referred for medication management. Hemphill further stated, “We have also discussed the fact that Ms. Jones had experienced some difficulty remembering important events. Ms. Burgess, it may be necessary to assist Ms. Jones with obtaining a physical evaluation and/or neurological evaluation to rule out medical issues.”
During the first review hearing, held on July 27, 2007, the court found that Jones-Lee had “substantially complied” with the case plan and had made “some” progress toward mitigating the reasons for removal. In particular, Jones-Lee had completed parenting classes, had undergone a psychological evaluation, had exercised visitation and acted appropriately, was working part-time and had moved into an apartment, was participating in therapy, was taking medication as prescribed, and had attended the children’s medical appointments. The court noted that Jones-Lee “needs to continue services and be able to demonstrate that she can provide for the juveniles’ needs and keep them safe and protected.”
On September 5, 2007, the court entered a temporary order prohibiting Jones-Lee and her extended family members from visiting the home of the foster parents, the children’s schools, and any venue where the children were present. On September 24, 2007, before the next review hearing was conducted, Jones-Lee was incarcerat ed on unrelated [ r,misdemeanor charges. She remained in the Pulaski County Jail until December 19, 2007.
The next review hearing was held on December 6, 2007. In a court report filed the previous day, DHS stated that, prior to Jones-Lee’s incarceration, she exercised visitation as ordered, maintained a safe environment for herself and her children, and received outpatient counseling. The court found that compliance with the case plan was “very, very slowly” proceeding toward an appropriate permanency plan for the children. The court noted that Jones-Lee did not exercise visitation with her children while incarcerated, but that she did visit them prior to incarceration. It further noted that Jones-Lee had violated its previous order by visiting one of her children at the foster parent’s home.
The court also found that Jones-Lee had not received any formal mental-health outpatient treatment, although she spent five days in UAMS for “a mental-health episode.” It further found that Jones-Lee was taking two of her three prescribed medications, and that she had some individual counseling prior to being incarcerated. Because Jones-Lee’s voluntary drug tests were negative, the court found that she had refrained from illegal drug use. The court determined that Jones-Lee had only partially complied with the case plan and court orders and had made “only minimal progress” toward remedying the cause of removal. Jones-Lee was ordered to comply with court orders and the case plan upon her release from jail.
|fiIn a permanency-planning order entered February 22, 2008, the court changed the case goal to adoption and termination of parental rights. It found that Jones-Lee had partially complied with the case plan. It noted that each of her drug screens had been negative; that, except when she was incarcerated, she maintained stable housing and employment; and that she exercised weekly visitation except when the children were sick or DHS was unable to facilitate the visits. Nonetheless, the court found that after being released from incarceration in December 2007, Jones-Lee missed several outpatient therapy appointments. Despite having three appointments scheduled in January and February 2008, Jones-Lee explained that she wanted to defer counseling until she completed her parenting classes and obtained a psychological evaluation. However, she had previously completed parenting classes in April 2007 and obtained a psychological evaluation in May 2007. Jones-Lee claimed that she had received consistent mental-health treatment since June 2007, that she had attended her bi-monthly medication appointments, and that she took her medications as prescribed, although she did not feel the medication helped her. The court cited Dr. DeYoub’s opinion, stating that it did not believe Jones-Lee’s assertion that she had been receiving the type or frequency of mental-health treatment recommended by Dr. DeYoub, as she had no supporting documentation to prove her claim. Finally, the court found that Jones-Lee had attended therapy “sporadically, episodically, and inconsistently, and that is not sufficient to warrant additional time for her to continue working toward | ^reunification.”
On February 22, 2008, DHS filed a petition to terminate Jones-Lee’s parental rights on the ground that the children had been out of the home for more than twelve months and that Jones-Lee had failed to remedy the conditions that caused removal. See Ark.Code Ann. § 9-27-341 (b)(3)(B)(i)(a.) (Repl.2008). A termination hearing was scheduled for May 7, 2008.
On April 28, 2008, Jones-Lee filed a motion for a continuance because her psy chiatrist would be unavailable to testify at the termination hearing. She also asserted that her therapist had requested a neurological evaluation that had not been obtained. Finally, she asserted that another doctor had opined that Jones-Lee “probably” needed special services due to a genetic condition and undiagnosed mental incapacity. The court summarily denied the request for a continuance.
|sThe termination hearing proceeded as scheduled. During opening statements, Jones-Lee’s counsel noted that Dr. Ha-roon had been subpoenaed, that she had not been released from the subpoena, and that she was out of state. Thus, counsel requested that the court leave the record open pending Dr. Haroon’s testimony regarding Jones-Lee’s mental state.
The first witness who testified was Hemphill, Jones-Lee’s outpatient therapist. She explained that Jones-Lee attended four weekly sessions as ordered in June and July, that she did not attend therapy while incarcerated, and that she began treatment again in February 2008. Hemphill described Jones-Lee’s attendance since as “sporadic.” Hemphill said that during the month preceding the termination hearing, Jones-Lee attended counseling on a weekly basis, but of the forty-eight weekly sessions that could have been attended since June 2007, Jones-Lee attended only eleven. After being released from jail, she attended two sessions in February 2008 and two in April 2008. Hemphill said that she personally can-celled three or four of the missed appointments and that other sessions were canceled due to Jones-Lee’s work schedule and transportation difficulties.
Hemphill explained that Jones-Lee reported in her initial sessions that she had suffered a head trauma and that she had memory loss and difficulty remembering. Thus, the initial treatment focused on addressing Jones-Lee’s depression and determining whether any medical or genetic factors were precipitating her memory loss. Hemphill testified that Jones-Lee had “made some progress” because she had “developed some awareness of some of the ^dynamics that could’ve precipitated the events that have occurred” and because “she has a greater understanding of the problem with leaving the children unsupervised.” Yet, she observed that Jones-Lee “still has a limited understanding of why it was wrong to leave the children alone.” Hemphill concluded that Jones-Lee was not yet ready to care for her children and opined that Jones-Lee would require approximately six more months of therapy to be in a position to care for her children. She said that when Jones-Lee would be ready to do so would depend on whether she had a medical condition precipitating her memory problems. Hemphill also testified that Jones-Lee had attempted, on her own, to obtain a neurological evaluation, and that Jones-Lee would need assistance in obtaining a referral, due to her level of functioning.
Dr. DeYoub also testified about his diagnosis of Jones-Lee. He opined that reunification was not an option because Jones-Lee was “too disturbed,” and that gaps in treatment were the biggest cause of failure. He explained that she needed to be stabilized and on a regular medication routine, and that she needed mental-health treatment. Because he had not reviewed any of Jones-Lee’s psychiatric records, Dr. DeYoub was unable to opine regarding whether her mental status was any better than when he saw her. However, he opined that if Jones-Lee had not received regular psychiatric treatment, then she had not received adequate treatment, because she needs anti-psychotic medications. He also stated that Jones-Lee would have to have made “a very significant improvement” in order for her | inchildren to be reunited with her.
The current caseworker, Danyette Pride, had been assigned to this case since December 2007. Pride testified that Jones-Lee had cooperated, that she has been available, has maintained a stable residence, has maintained employment, that she underwent the psychological evaluation, that she was taking her medications as ordered, and that she completed parenting classes. Nonetheless, Pride recommended termination based on “non-consistent counseling and lack of mental-health outpatient therapy.” She explained that because Jones-Lee had not completed her mental-health therapy with Hemphill, no recommendation could be made as to whether Jones-Lee is mentally stable enough to care for her children. Pride explained that Jones-Lee was never offered in-home services to assist in developing her parental skills because she had not completed counseling. She admitted that she had not spoken to Dr. Haroon, Jones-Lee’s psychiatrist, and that she did not know what Dr. Haroon recommended regarding termination. Nonetheless, based on Hemphill’s testimony, Pride concluded that Jones-Lee had not yet demonstrated her ability to protect the children or that the children would be safe if they were returned to her care.
Michelle Trulsrud, the supervisor to the CASA volunteer, also testified. She recommended termination based on Jones-Lee’s failure to complete therapy and the fact that she is not currently able to care for the children. Trulsrud admitted that she had not spoken to Jones-Lee’s psychiatrist or to Jones-Lee.
InDr. Haroon was not present and did not testify. Her supervisor, Michael Up-son, the Chief Operation Officer of Arkansas Behavioral Healthcare, brought Jones-Lee’s medical records. He testified that Jones-Lee missed only one medication-management appointment, and that occurred when she was incarcerated. Upson said that Jones-Lee was diagnosed with adjustment disorder with depressed mood. Upson had difficulty reading Dr. Haroon’s notes, but he did testify that Dr. Haroon noted on April 24, 2008, that “I do believe that, if trained, [sic] will be a safe mother.” He could not give an estimate for a typical course of treatment but stated that with the chronically mentally ill, the treatment is usually “lifelong.”
Jones-Lee testified that she requested in-home parenting services from her caseworker in February 2007, before she gave birth to C.S.J. She said that since then, she asked her attorney to request increased visitation but that her attorney did not broach the subject with the court because the attorney did not think the judge would agree. Accordingly, neither request was presented to the circuit judge.
In an order thoroughly detailing its previous findings in this case, the court terminated Jones-Lee’s parental rights. The court based its decision on the grounds asserted by DHS in its petition, that the children had lived outside of Jones-Lee’s home for at least twelve months and that Jones-Lee failed to correct the conditions that caused removal. In so finding, the court stated:
112there is no dispute that the mother has only attended eight (8) therapy sessions in eleven (11) months. This is abysmal. The fact is that we are no closer today to reunification than we were at removal. She has made no progress in mitigating or eliminating the causes of removal by addressing her considerable mental-health issues. She has selective memory and can recall the names of the workers on her case, her attorneys, and dates, but she has not accepted the responsibility for her role in the removal of the children from her home. The mother still does not accept responsibility for her actions. She still has very little understanding as to when her children were removed. We do not give parents all the time in the world to achieve reunification. These children deserve permanency. These children have been out of the mother’s custody for a substantial period of time, yet she has not learned anything through the course of this case. She testified that she has learned little or nothing in therapy. The mother has argued that if the Department only provided her with a neurological examination, she would be in a different position. However, this neurological examination was not important to the mother until this hearing. Furthermore, the mother had ample opportunity to bring this neurological examination to the court’s attention before now. Dr. Paul DeYoub testified that there was no basis for a neurological examination. Dr. DeYoub testified that the tests that he administered would have indicated if there was a neurological problem. Mere compliance or last minute efforts are not compelling reasons not to terminate parental rights. The mother did have a psychological evaluation. She complied with some of the recommendations but not all of them. She is not a fit and proper parent .... These children cannot wait for their mother to get into a position where she may be able to be an appropriate, mentally-stable parent some day. The children need permanency and parents who can provide for all of their needs. The mother cannot do that.
Thus, the court terminated Jones-Lee’s parental rights to each of her children, and this appeal followed.
Termination
|iaAn order terminating parental rights must be based upon a finding by clear and convincing evidence that termination of a parent’s rights is in the best interest of the children, considering the likelihood that the children will be adopted if the parent’s rights are terminated and the potential harm caused by returning the children to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). The court must also find one of the grounds outlined in § 9-27-341(b)(3)(B). Only one ground is necessary. Albright v. Ark. Dep’t of Human Servs., 97 Ark.App. 277, 248 S.W.3d 498 (2007). The circuit court here terminated Jones-Lee’s parental rights pursuant to the statutory ground stated in Ark. Code Ann. § 9-27-341 (b)(3)(B)(i)(a):
(i)(a) That a juvenile has been adjudicated by the court to be dependent- neglected and has continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.
Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Benedict v. Ark. Dep’t of Human Servs., 96 Ark.App. 395, 242 S.W.3d 305 (2006). However, courts are not to enforce parental rights to the detriment or destruction of the health and well-being of a child. Id. A heavy burden is placed upon a party seeking to terminate the parental relationship, and the facts warranting termination must be proven by clear and convincing evidence. Id. Clear and convincing evidence is that degree of proof which will produce in the fact finder a firm conviction regarding the | Mallegation sought to be established. Id. When the burden of proving a disputed fact is by clear and convincing evidence, the question that must be answered on appeal is whether the trial court’s finding that the disputed fact was proven by clear and convincing evidence was clearly erroneous. Williams v. Ark. Dep’t of Human Servs., 99 Ark. App. 95, 257 S.W.3d 574 (2007). 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 made. Id. Such cases are reviewed de novo on appeal, but appellate courts give a high degree of deference to the circuit court, as it is in a far superior position to observe the parties before it and judge the credibility of the witnesses. Id.
A. Best Interest
Jones-Lee does not challenge the circuit court’s findings that the children are adoptable. Rather, she argues that the circuit court erred in ordering termination because it failed to consider the potential harm if the children were returned to her or, alternatively, because the evidence does not support that the children would be harmed if returned to her. She also argues that the court never specified what “clear and convincing” evidence supported its order.
Jones-Lee maintains that DHS presented no evidence regarding the current welfare of the children. She notes that while in DHS’s custody, the children were separated from each other, and that Z.J. and C.J. were in four different foster homes in less than one year. |1sShe contends that any harm suffered by her children after removal from her custody was due to the instability that they experienced while in foster care. She baldly states that “[t]he evidence presented to the court showed more potential harm to the kids in the 15 months they had been out of her care than was ever proved to have occurred while they were in her care.” Jones-Lee also blames DHS for not providing her in-home parenting services. Thus, she argues, that the court’s conclusion that the children would be potentially harmed if returned to her care is based on speculation. As none of Jones-Lee’s arguments have merit, we hold that the circuit court did not err in determining that termination was in the children’s best interests.
First, the court summarized its previous findings and its findings based on the evidence presented at the termination hearing. Second, there is no statutory requirement that every factor considered in termination of parental rights action be established by clear and convincing evidence; rather, after consideration of all factors, the evidence must be clear and convincing that termination is in the best interest of the child. See McFarland v. Ark. Dep’t of Human Servs., 91 Ark.App. 323, 210 S.W.3d 143 (2005). Hence, the circuit court was not required to specifically explain which evidence supported its best-interest findings. In any event, Jones-Lee recognizes in another part of her argument that the circuit court clearly stated that her rights were being terminated due to her lack of mental stability and the failure to remedy her mental instability through consistent therapy sessions. 11f;The court expressly found that Jones-Lee had attended few therapy sessions, that she testified that she learned very little in therapy, that she does not understand why the children were removed, and that she does not accept responsibility for her actions. The evidence that Jones-Lee does not comprehend that she places her children in peril by leaving them unsupervised clearly supports a finding that the children would be subjected to potential harm if returned to her care.
In focusing on the “harm” the children have suffered while in foster care, Jones-Lee’s argument is misplaced, as she fails to dispute the evidence supporting the circuit court’s potential-harm finding. Moreover, Jones-Lee cannot create the condition that caused her children to be placed in foster care and then argue that the instability of the foster-care system precludes the circuit court from finding that returning her children to her poses greater potential harm than having the children remain in the foster-care system. Foster care is not meant to be a stable, long-term solution, which is precisely why parents are given limited time to comply with the case plan, and why reunification must be achieved within a reasonable time, from the children’s perspective. See Ark.Code Ann. § 9-27~341(a)(3). Moreover, in this case, other than pointing to the fact that some of her children were placed in multiple foster homes, Jones-Lee cites to no other proof of the “harm” that has come to her children as a result of being placed in foster care. In fact, the court reports and court orders indicate the contrary.
h7On these facts, we hold that the circuit court did not err in finding that termination was in the children’s best interest, considering the likely potential harm in returning them to Jones-Lee’s custody.
B. Failure to Remedy the Conditions that Caused Removal
We consider Jones-Lee’s third argument next: that the circuit court erred in finding that she failed to remedy the conditions that caused removal. See Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a). Jones-Lee concedes that she did not prove “consistency in her therapy sessions” but contends that she otherwise complied with every aspect of the case plan. She maintains that her missed therapy sessions were not due to apathy toward her treatment but were caused by conflicts in her schedule due to work, transportation problems, and cancellations by her therapist. Jones-Lee also argues that the court failed to consider her recent improvements, and that it disregarded the ways in which she complied with the case plan. Finally, she argues that permanency could still be achieved within a reasonable amount of time.
Again, Jones-Lee fails to persuade. Jones-Lee does not challenge the circuit court’s finding that she attended only eight therapy sessions in eleven months. As the sessions were weekly sessions, Jones-Lee should have attended at least forty sessions. She attended four weekly sessions in June/July 2007. As Jones-Lee was incarcerated from September 24, 2007, until December 19, 2007, she attended no further sessions with Hemphill that year. Thus, j 18Jones-Lee attended only four out of what should have been sixteen sessions prior to being incarcerated. Jones-Lee testified that she received “general” counseling while incarcerated, but she offered no written proof to support that she received counseling while in jail. Upon release, she did not again attend counseling with Hemphill until February 2008. She attended two sessions in February, none in March, and two in April. Hemphill attributed only three or four missed sessions to her own cancellations.
While the court cited the number of Jones-Lee’s missed counseling sessions and termed her lack of attendance “abysmal,” the court was not playing a “numbers game.” It is apparent that the court did not terminate Jones-Lee’s parental rights based solely on the fact that she missed counseling sessions. Significantly, the court also relied on Jones-Lee’s failure to learn anything from the sessions that she did attend. Jones-Lee has not progressed to the point where she comprehends that young children should not be unsupervised; nor has she accepted responsibility for leaving the children alone.
Therefore, the court concluded that “we are no closer today to reunification than we were at removal.” That is, despite complying with the remainder of her case plan, Jones-Lee is not yet a fit parent, and her unfitness is due precisely to her failure to comply with the counseling portion of her plan. Partial compliance with, or even completing the case plan, does not preclude termination. What matters is whether a parent’s compliance with or completion of the case plan achieved the intended result of making her capable of caring 119for her child. See Ullom v. Ark. Dep’t of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000). Here, the portion of the case plan with which Jones-Lee complied did not resolve her mental-health problems. As Dr. DeYoub opined, that will require adequate mental-health counseling, at a minimum.
It is true that both Hemphill and Jones-Lee’s psychiatrist felt that, with continued treatment, Jones-Lee could become stable enough to regain custody of her children. Hemphill estimated that would take six months. While arguing that she was prevented from presenting evidence of her current mental state and recent improvements, Jones-Lee fails to explain why she could not have deposed her psychiatrist, since she knew the psychiatrist would not be available to testify at the termination hearing.
Jones-Lee would have us reverse on the hope that she would consistently attend counseling, would benefit from it when she did not before, and would be ready to regain custody of her children when she had not exercised unsupervised visitation. She was warned in the permanency-planning order entered on February 22, 2008, that her sporadic counseling attendance was insufficient to prevent the case goal from being changed to termination. Yet, afterward, she attended only two more sessions over the next two months.
Had Jones-Lee diligently attended counseling, an additional six months may have been reasonable. But to permit her more time on the facts in this record is to hope against hope; to deny her more time on the facts in record is not clearly erroneous. Accordingly, we Uphold that the circuit court did not err in determining that Jones-Lee failed to remedy the conditions that caused her children’s removal from her custody. See Jefferson v. Ark. Dep’t of Human Servs., 356 Ark. 647, 158 S.W.3d 129 (2004) (affirming a termination order, in part, because the mother failed to regularly attend therapy sessions, and where the mother was not sufficiently emotionally or mentally stable to have her child returned to her custody, and stating that it was best for the child to have a safe, permanent home, where she could be assured of continuity and stability).
C. Meaningful Efforts
Jones-Lee also argues that the circuit court erred in finding that DHS made a meaningful effort to rehabilitate the home and to correct the conditions that caused removal. In support of this argument, Jones-Lee points to two services that were not provided to her: the neurological evaluation recommended by her counselor and in-home parenting services.
Section 9-27-341(b)(3)(b)(i)(a) requires DHS to prove, among other things, that it made a meaningful effort to rehabilitate the parent and to correct the conditions that caused removal. During the termination hearing, Jones-Lee’s counsel elicited testimony regarding the neurological-evaluation recommendation and DHS’s failure to provide in-home parenting services. She then argued the point during closing argument.
The fatal problem for Jones-Lee is that she did not appeal from any of the final, |21appealable adjudication or review orders in which the circuit court determined that DHS had made meaningful efforts toward reunification. See Ark.R.App. P.-Civ. 2(c)(3). At no point prior to the termination hearing did Jones-Lee challenge the appropriateness of the reunification services offered, or not offered, by DHS. Her failure to challenge the court’s prior “meaningful-efforts” findings precludes this court from now reviewing any adverse rulings resulting from those orders not appealed from. See Lewis v. Ark. Dep’t of Human Servs., 364 Ark. 243, 217 S.W.3d 788 (2005).
Jones-Lee’s argument also fails on the merits. As to the neurological evaluation, Hemphill informed DHS on July 26, 2007, that it “may be necessary to assist Ms. Jones with obtaining a physical evaluation and/or neurological evaluation to rule out medical issues.” Hemphill testified that the issue arose because Jones-Lee reported having suffered a head trauma and having memory loss. However, despite the two full hearings that were held after that recommendation was made, Jones-Lee never brought the issue to the court’s attention until the termination hearing. As the circuit court determined, the neurological evaluation was apparently not important to Jones-Lee until the termination hearing.
Moreover, the court relied on Dr. DeY-oub’s testimony that, according to his tests, there was no basis for a neurological examination. He testified that the tests that he administered would have indicated if a neurological problem existed. Additionally, the court was not convinced that Jones-Lee had memory problems. It found, instead, that her memory was selective — in other words, she was able to remember what she wanted to ^remember, such as her caseworkers’ names, her attorneys, and dates.
In short, the circuit court was faced with the conflicting evidence that psychiatric testing revealed no need for a neurological evaluation, versus Jones-Lee’s assertion, devoid of any medical evidence, that she needed such an evaluation, and her counselor’s suggestion that she “may” need assistance in obtaining such an evaluation. It was within the circuit’s court’s discretion to determine on the conflicting evidence whether Jones-Lee needed a neurological evaluation. See Lewis, supra.
The court here made no specific finding regarding DHS’s failure to provide in-home parenting services. The caseworker explained that in-home parenting services are provided when a parent “completes” individual counseling. However, the fact that Jones-Lee did not “complete” therapy cannot be dispositive because counseling may be necessary even after the children are returned to a parent’s care. What is dispositive is the fact that Jones-Lee missed so many therapy sessions that she never progressed to the point where it seemed productive to offer in-home parenting services. Thus, the circuit court’s findings that Jones-Lee failed to attend therapy sessions and failed to learn anything from those sessions support DHS’s decision not to offer in-home parenting services.
On these facts, the circuit court did not err in finding that DHS made meaningful efforts to rehabilitate the home and correct the conditions that caused removal; therefore, we affirm the termination order.
Motion for Continuance
| ⅞¾Jones-Lee’s final argument is that the circuit court erred in denying her motion for a continuance because the denial precluded her from presenting evidence supporting that termination was not necessary. A trial court shall grant a motion for continuance only upon a showing of good cause and only for so long as is necessary. See Smith v. Ark. Dep’t of Human Servs., 93 Ark.App. 395, 219 S.W.3d 705 (2005). The granting or denial of a motion for continuance is within the sound discretion of the trial court, and that court’s decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Id When deciding whether a continuance should be granted, the circuit court should consider the following factors: (1) the diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the witness’s attendance in the event of postponement; and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Id Additionally, the appellant must show prejudice from the denial of a motion for continuance. Id We hold that the circuit court in this case did not abuse its discretion in denying Jones-Lee’s motion for a continuance.
Here, DHS — not Jones-Lee — subpoenaed Jones-Lee’s psychiatrist, Dr. Ha-roon, to appear at the termination hearing. On April 28, 2008, ten days before the hearing, Jones-Lee filed a motion for continuance on two grounds: that Dr. Haroon would be unable to attend the termination hearing because she would be out of state and because Jones-Lee had not received a neurological evaluation. Jones-Lee alleged that Dr. Haroon opined “that | ^Defendant is probably in need of special services, as a result of a genetic condition and undiagnosed mental incapacity.” Jones-Lee urged that the case should not proceed to termination until “a full evaluation and adequate services” were provided to her.
Jones-Lee attached the July 26, 2007 letter from her counselor, Hemphill, in which Hemphill stated that it “may be necessary to assist” Jones-Lee in obtaining physical evaluation and/or neurological evaluation to rule out medical issues. However, Jones-Lee did not attach an affidavit from Dr. Haroon, stating what facts she would prove to be true, as required by Ark.Code Ann. § 16-63^02(a) (Repl.2005).
The circuit court summarily denied Jones-Lee’s motion. At the beginning of the termination hearing Jones-Lee asserted that Dr. Haroon had not been released from her subpoena and requested that the court keep the record open pending the doctor’s testimony concerning Jones-Lee’s mental state. The court made no ruling at that time. Later in the proceedings, the court continued the termination issue as to Z.J.’s father because he had no attorney. The court noted, “we’ve still got it on the table possibly as having Dr. Haroon come back anyway.... If I put it off for Dr. Haroon to testify, we’re beyond the ninety days because the ninety days runs this month.” The court stated that the continuance for Z.J.’s father would occur regardless of its ruling on Jones-Lee’s request. At the end of the hearing, the court denied the request to keep the record open, stating, “time is of the essence and we |2.-,need to do it. And we’ve got time on the docket and [I] don’t want to continue just because one witness can’t come.”
Jones-Lee now argues that the denial of her motion for a continuance robbed her of the opportunity to present evidence of her current mental state by the “only expert witness familiar with Jones-Lee and her current mental status.” That is not so. Jones-Lee’s counselor concluded that Jones-Lee would not be ready to be reunited with her children for six months. While Dr. DeYoub could not directly testify as to Jones-Lee’s current mental state, he testified that Jones-Lee would have to have made “a very significant improvement” in order for her children to be reunited with her.
Jones-Lee is correct that she was not permitted to have Dr. Haroon testify that she could become a fit parent with proper training. However, through Upson, Jones-Lee was able to admit Dr. Haroon’s opinion that, “if trained” Jones-Lee would be a “safe mother.” That, itself, was additional evidence of Jones-Lee’s current mental status, showing that she is not currently a “safe mother.” Thus, in some respects, Dr. Haroon’s testimony would have been cumulative to Hemphill’s testimony, and would not have been the only testimony concerning Jones-Lee’s current mental state.
Additionally, the circuit court did not err because Jones-Lee was not diligent in seeking Dr. Haroon’s testimony. First, she could have subpoenaed Dr. Haroon, instead of waiting for DHS to do so, thus giving her more control over her own witness. Second, upon |2r,learning that Dr. Haroon would be out of town, Jones-Lee could have deposed the doctor. Third, Jones-Lee did not attach an affidavit from Dr. Haroon to the motion for a continuance, explaining what evidence she would prove to be true. See Ark.Code Ann. § 16-63-402(a). Moreover, Jones-Lee’s motion merely stated that Dr. Haroon believed that Jones-Lee needed special services; it did not state that the rendering of those services would enable Jones-Lee to become a fit parent within a reasonable time from the children’s perspective. Significantly, Jones-Lee ignores that any dearth of evidence concerning her current mental status was due, in no small part, to the fact that she did not consistently attend her counseling sessions with Hemp-hill and that she waited nearly one year to request a neurological evaluation.
Given that Jones-Lee was not diligent in securing the testimony that she claimed was crucial, and given that the testimony “denied” was not the only testimony regarding Jones-Lee’s current mental state or her current fitness as a mother, the circuit court did not abuse its discretion when it denied Jones-Lee’s motion for a continuance.
Affirmed.
VAUGHT, C.J., PITTMAN, GRUBER, and HENRY, JJ., agree.
HART, GLADWIN, ROBBINS, and BAKER, JJ., dissent.
. Jones-Lee thereafter filed a motion for reconsideration, asserting that the court should have left the record open to receive Dr. Ha-roon's "crucial” testimony. To her motion, she attached an affidavit in which Dr. Haroon stated that she informed DHS that she wished to testify for Jones-Lee, and she requested to appear at the hearing via telephone. According to the affidavit, DHS informed Dr. Ha-roon that she did not need to appear in court on May 7 because the hearing would be continued. Dr. Haroon further stated in the affidavit that she told DHS that Jones-Lee could "easily have her kids back, if given the proper support” and that she was "assured that the date for the hearing was rescheduled.” The circuit court summarily denied Jones-Lee’s motion for reconsideration. Although Jones-Lee included that order in her second amended notice of appeal, she does not appear to appeal from the denial of her motion for reconsideration.
. This appeal pertains only to the rights of the mother. The respective fathers' rights to C.J., A.J., and C.S.J. were also terminated during the same proceeding. The proceeding was continued as to the father’s rights to Z.J.; the outcome of that proceeding is not part of the record.
. Administrative Order Number 3 requires circuit courts to submit quarterly report cases that have been pending more than ninety days after submission. | [
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Sam Bird, Judge.
As part of a project to preserve water quality in Lake Maumelle, the Board of Commissioners of Little Rock Municipal Water Works (LRMWW) filed an application for condemnation of 26.7 acres within the Lake Maumelle watershed. Lake Maumelle is used to supply drinking water for residents of Little Rock. The property was owned by Grady N. Rollins and Jeane Rollins, his wife; Ewald Graf and Carol Graf, his wife; H. Grady Miller, Jr., and Mary Ann Miller, his wife; and James Lee Eubanks.
LRMWW filed its application for condemnation on July 23, 1993, alleging that it was proceeding pursuant to Ark. Code Ann. §§ 18-15-301 — 410 (1985). With its application, LRMWW tendered to the clerk of the court a check for $133,500, the amount that it estimated to be the fair market value of the property. However, the check was not accepted by the clerk and, upon inquiry by the appellees’ attorney, the appellees were informed that there were no funds on deposit. Pursuant to an order of the court entered on January 25, 1994, the clerk accepted LRMWW’s check into the court’s registry, but neither the appellees nor their attorney were provided with a copy of the order or given notice that the deposit had been accepted. Therefore, the funds were not withdrawn by the appellees.
The appellees answered the condemnation application, alleging that LRMWW did not have the authority to condemn the property, that the Circuit Court of Pulaski County lacked jurisdiction, that the taking was unnecessary and unconstitutional, and that the property was valued at more than $133,500.
On December 1, 1994, the condemnation application went to trial. Both parties retained appraisers who testified as expert witnesses about the value of the land. Appellees’ expert valued the land at $10,000 per acre. LRMWW’s expert valued the land at $4,500 an acre. One of the owners valued the land at $12,000 an acre. The court refused to permit cross-examination of the appellees’ expert witness about alleged mistakes made by her in prior appraisals of other tracts of land that were not used by the expert in determining the value of the subject land, and about which she had not testified on direct. The jury valued the property as of July 23, 1993, at $5,900 an acre and awarded the appellees $157,530.
On December 20, 1994, LRMWW deposited an additional $24,030, which was the difference between their initial deposit of $133,500, and the jury award of $157,530. The appellees filed a motion seeking interest on the amount of the jury’s verdict, and the court awarded appellees interest at the rate of eight percent per annum on $157,530 from July 23, 1993, to December 1, 1994, and on $24,030 from December 1, 1994, to December 20, 1994.
LRMWW argues three points for reversal. First, it alleges that the trial court erred in determining that July 23, 1993, was the date of taking of the property. Second, it asserts that the trial court erred in awarding appellees interest. Finally, it alleges that the trial court erred when it limited the appellant’s cross-examination of the appellees’expert witness.
We find no error and affirm.
I. Date of Taking and Determination of Interest
The first two points will be discussed together since they are related. Appellees contend that the date of taking of the land by LRMWW was the date the application for condemnation was filed, July 23, 1993, and that they are entitled to receive interest on the amount of the jury’s verdict from that date until the judgment is paid. On the other hand, LRMWW contends that since it did not request an order of entry at the time it filed its application and since the appellees continued to have possession, use, and enjoyment of the land up until judgment was entered (by which date appellant had already paid the full amount of the jury’s verdict into the registry of the court), it is not liable for the payment of any interest. In short, LRMWW argues that the date of taking is the date that final judgment was entered (June 13, 1995), whereas the appellees argue that the date of taking is the date the condemnation action was commenced (July 23, 1993).
It is well settled that in condemnation proceedings, interest shall be paid for the period between the date of taking and the final payment of the money due. Arkansas State Highway Comm’n v. Stupenti, 222 Ark. 9, 257 S.W.2d 37 (1953). Interest is designed to give a property owner the full value of the land as if the property owner was paid the full value at the time of taking. Wilson v. City of Fayetteville, 310 Ark. 154, 835 S.W.2d 837 (1992). Therefore, it is necessary to determine the date of taking in order to determine how much, if any, interest is due.
The determination of the date of taking is a fact issue and the trial court’s finding should not be reversed unless it is clearly against the preponderance of the evidence. Ozark Auto Transp., Inc. v. Starkey, 327 Ark. 227, 937 S.W.2d 175 (1997); Ark. R. Civ. P. 52(a). The judge made a factual finding that July 23, 1993, was the date of taking and that the jury should value the property as of that date. In addition, in ruling on an objection by appellant, the judge barred any evidence as to sales that occurred after July 23, 1993.
Under Arkansas law, the date of taking may be established by different methods, depending upon the circumstances of the case. It may be determined by the date entry is made upon the land, Stupenti, supra; it may coincide with the date of valuation of the property, Arkansas State Highway Comm’n v. Choate, 256 Ark. 45, 505 S.W.2d 731 (1974); it may be determined by the date of the Order of Entry, Greig v. Crawford County, 256 Ark. 202, 506 S.W.2d 523 (1974); or the date of taking might be determined to be the date the petition is filed, United States v. Herring, 750 F.2d 669 (8th Cir. 1984); Newgrass v. Railway Co., 54 Ark. 140, 15 S.W. 188 (1891). The Arkansas Supreme Court has stated that when there is “any invasion of private property by lawful authority for a public use and the property is damaged thereby, there is a taking within the meaning of our law, and, where the damage is such as to deprive the owner of the beneficial use of his property, he may require that its value be paid to him.” Keith v. Drainage Dist. No. 7 of Poinsett County, 183 Ark. 384, 392, 36 S.W.2d 59, 62 (1931).
The date of taking is frequently determined by the date of entry upon the land, and interest is awarded from that date. Stupenti, supra. This rule is most often applied when the Arkansas State Highway Commission enters upon the land to make improvements and the date of entry becomes the date of taking. Stupenti, supra; Arkansas State Highway Comm’n v. Security Savings Ass’n, 19 Ark. App. 133, 718 S.W.2d 456 (1986). The date of entry was determinative in these cases because the property owners were deprived of the land when the State entered upon the land to begin highway construction or road improvements. Stupenti, supra.
Appellant contends this rule should apply in the case at bar; therefore, they argue, appellees are not entitled to interest because they were not deprived of the possession or use of their land before the judgment was entered. Appellant argues that if the appellees are not deprived of the use of their land, then they are not entitled to interest. Arkansas State Highway Comm’n v. Vick, 284 Ark. 372, 682 S.W.2d 731 (1985); Housing Authority of Little Rock v. Rochelle, 249 Ark. 524, 459 S.W.2d 794 (1970). Appellant cites Arkansas State Highway Comm’n v. Security Savings Ass’n, supra, for the rule that interest is due to a landowner only if the landowner is deprived of the use of property before the judgment was entered.
However, the facts in this case distinguish it from these condemnation proceedings in which entry is made immediately upon the land. In the case at bar, the land was undeveloped and was taken not for the purpose of construction, but for the purpose of preserving the land in its natural state. LRMWW was not going to engage in construction, develop or change the land. While it may or may not be true that the appellees continued to have the use and enjoyment of the property after the filing of the application for condemnation, it is certainly true that from the time that the application was filed, the appellees’ rights to use and enjoy the land were no greater than the rights of the public in general. Clearly, after appellant’s application was filed, the appellees did not have the right to use the property in any manner that was inconsistent with the purposes for which it was being taken by LRMWW. It is equally clear that from and after the filing of its condemnation application, LRMWW became the beneficial owner of the property, with the only issue remaining unresolved being how much it would be required to pay. For all intents and purposes, appellees’ beneficial use of the property was lost when appellant filed its application, notwithstanding that appellees still could, if they wanted to, look at and walk on the property.
The provisions of Ark. Code Ann. §§ 18-15-301 — 410 contemplate that the condemning authority will have the need to enter upon the land for the purposes of commencing construction or otherwise advancing its purpose for taking the land. However, when, as here, there is no need for the condemning authority to enter upon the land to accomplish its objective (to preserve the land for the protection of the public water supply), that purpose is accomplished when the application for condemnation is filed.
If the land is valued as of July 23, 1993, but the owners are stripped of the privileges of ownership and deprived of the purchase price, without payment of interest, for almost two years, then the owners would receive less than full value for their land, and less than just compensation within the meaning of Ark. Const, art. 2, § 22. Therefore, the date-of-entry standard is inapplicable in this case, and the issue becomes when is the date of taking of a piece of property that will not be changed from its natural state and upon which entry will not be made. We find that in this case, even though no physical entry was made upon the land, the property was appropriated for public use on the date the condemnation application was filed and the date the valuation of the property was made.
Our holding is consistent with the holding of the Arkansas Supreme Court in Newgrass, supra, where the court recognized that many ways exist for determining the date of taking and that states have adopted various rules. In Newgrass, the court adopted the rule that the date of taking is determined from the date the petition was filed and not from the date of entry. When adopting this rule, the court stated that it “had the advantage of fixing a certain and definite time with reference to which the estimate must be made. Besides the corporation has the right to acquire the land; when it filed its petition, it declares its purpose to appropriate it and to render just compensation to the owner.” Id. at 144, 15 S.W. at 189.
In the case at bar, even though no actual entry was made upon the land, the date of taking is determined from the date the petition was filed, which is the same date that was used to determine the value of the land. The appellees were deprived of the beneficial use of their land from the date the petition was filed and the date the land was valued, and they are entitled to interest from that date. The judge’s factual finding that July 23, 1993, was the date of taking is not clearly erroneous.
There is another reason we believe that the trial court was correct in awarding interest in this case. The application for condemnation was filed on July 23, 1993, and a check for the estimated value of the property was tendered with the filing. However, the check was not accepted until January 25, 1994, more than six months after the petition was filed, but the owners were not informed of the deposit nor provided with a copy of the court’s order directing the clerk to accept the deposit. The appellant cites Karam v. Halk, 260 Ark. 36, 537 S.W.2d 797 (1976), for the proposition that the appellees had an affirmative duty to inquire about the pleadings and orders in the case, and argues that appellees should have made more diligent inquiries of the clerk as to whether the funds had been deposited. We do not agree that Karam is applicable here.
In Karam, following a bench trial the defendant was not provided with a copy of a judgment that had been entered against him, and he did not become aware of the entry of judgment until after the time for appeal had expired. He appealed from an order of the trial court refusing to set the judgment aside. The supreme court said that where the defendant had been provided with a copy of the court’s findings and where the defendant thereafter made no inquiries about the status of the entry of judgment on those findings for a period of eight months, the defendant was in no position to contend that he had been the victim of an unavoidable casualty such as to require the trial court to set aside the judgment. Karam, supra.
The situation in Karam is clearly distinguishable from the case at bar. Here, appellees’ counsel did inquire of the clerk shortly after the application was filed as to whether any funds had been deposited, and he was informed that none had been. We do not believe that it was the obligation of the appellees to inquire daily at the clerk’s office whether appellant had deposited the funds as it alleged in its application that it had done. To the contrary, Ark. Code Ann. § 18-15-409(a)(1987) requires that, after the funds are deposited in the registry of the court, “[t]he court shall thereupon immediately enter an order giving the municipality possession of the property . . .” and that such order “shall be immediately served upon any person of adult age found residing upon the premises . . . .” We think that it is significant that LRMWW purported to be proceeding under §§ 18-15-401 — 410 and deposited funds pursuant to § 18-15-409, but made no attempt to notify the appellees that its check had been accepted by the clerk for deposit into the court’s registry on January 25, 1994. We think that this is a sufficient reason alone to award appellees interest.
II. The Limitation on Cross-Examination
The appellant argues that the court’s limitations on the appellant’s cross-examination of the appellees’ witness amounted to an abuse of discretion. The general rule is that a judge has wide latitude in imposing reasonable restrictions on cross-examination based upon concerns about confusion of the issues or interrogation that is only marginally relevant. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). Arkansas Rule of Evidence 611 states that the judge may limit the cross-examination to issues presented on direct examination or issues of credibility. We have held that in an eminent domain proceeding, the latitude allowed the parties in bringing out collateral and cumulative facts relating to value estimates is left largely to the discretion of the trial judge. Arkansas State Highway Comm’n v. Julian Martin, Inc., 16 Ark. App. 288, 701 S.W.2d 389 (1985). This court will not reverse unless it finds a clear abuse of discretion by the trial judge in limiting the cross-examination of a witness. Arkansas State Highway Comm’n v. Dean, 247 Ark. 717, 447 S.W.2d 334 (1969).
Rhonda Weaver, the appellees’ expert witness, had prepared two appraisals relating to the land in this case; the first one was prepared in March 1993, before this condemnation application was filed, and the second one was prepared especially for this case and completed only the day before the trial. The March 1993 report covered not only the land in this case but also a smaller tract of land that was the subject of another condemnation case. The March appraisal contained references to sales of other land that Weaver had not considered when she determined the value of the land involved in this case. However, the appraisal report she prepared the day before the trial, that covered only the 26.7 acres involved in this case, contained references to only those land sales that she had considered when appraising the 26.7 acres. In her March appraisal, Weaver concluded that the land in this case was valued at $8,000 per acre.
At the trial, Weaver testified on direct examination about land sales referred to in her second report, and she stated that those sales formed the basis for her appraisal of the value of the land in this case, which she opined to be $10,000 per acre. LRMWW’s counsel then sought to question Weaver on cross-examination about sales she referred to in her March 1993 appraisal about which she had not testified on direct examination and upon which she had not relied in reaching her opinion of the value of the land in this case. Appellees objected, contending that such questions were beyond the scope of direct examination, and the court sustained the objection.
The appellant argues that the judge abused his discretion by limiting the scope of direct examination and making the scope overly restrictive. The appellant states it wanted to introduce the March report to try to discredit the witness. The appellant contends that “counsel for LRMWW was not permitted to cross-examine appellees’ expert witness about her first appraisal of the Property (prepared several months before trial and which had a lower value) or testimony by her in other trials.” We do not agree. Appellant’s contention that it was not permitted to cross-examine Weaver about the discrepancies between her first and second appraisal reports is not borne out by the record. To the contrary, the court indicated that it would allow appellant’s counsel to ask Weaver if a previous report existed and whether, in the previous report, she arrived at a lower value. The judge said:
Well, I kind of agree with you could ask her about, “Didn’t you, at one point in time, arrive at an $8,000.00 per acre figure and you changed it to ten thousand?” But I have some problem saying, “And let’s talk about these comparables” when they’re not even in the record and she didn’t consider them in this last appraisal.
The judge would not permit the testimony about the properties that she didn’t testify to at the trial and didn’t use in forming her opinion. Again, the judge ruled:
You want to go in and say, well, let’s talk about properties that you’ve furnished us that you didn’t even use in this trial today and talk about your accuracy in those which didn’t even form a basis as part of her opinion here. I don’t have any doubt you could say, “Well, didn’t you, at one time, arrive with a figure of $5,000 per acre or $3,000 per acre just three months prior to this date?”
The cross-examination that the appellant’s counsel was not permitted to pursue related only to sales referred to in Weaver’s first report, which she did not use in determining the land’s value and which were not included among the sales she relied upon in arriving at her estimate of the fair market value of the land as set forth in her second appraisal. The judge found these matters to be collateral; therefore, he did not allow any cross-examination on them. The following dialogue occurred:
THE COURT: But, boy, we could be here all day if we just started going off and finding other properties that she’s appraised and starting to see if they’re accurate and was there a house on that property or wasn’t there a house on that property. It’s collateral to this case ....
MR. GILL (attorney for the appellant): Judge, it goes to credibility and the credibility is all that’s at issue here. The jury’s got to believe one of these appraisers or the other one, and that’s all. And I’m —
THE COURT: I’m not going to do it, John.
The appellant relies on three cases in arguing for reversal. First, the appellant relies upon Dean, supra. In Dean, the Arkansas Supreme Court reversed a lower court’s decision because the trial judge improperly limited the scope of cross-examination by the appellant of an expert witness about real-estate sales considered by the expert that might have been comparable to the land that was being condemned. In Dean, the expert considered some 250 parcels of the land in arriving at a fair price. In trying to expedite the case, the judge limited the cross-examination to two to four of the tracts considered by the expert. Id. at 719-20, 447 S.W.2d at 336. The court reversed and held:
The proper cross-examination of a witness is the most effective attack that can be made upon his credibility and the best means of diminishing the weight which might be accorded his testimony. A wide latitude is permitted in cross-examination as to questions tending to impeach the credibility of a witness or in eliciting matter for consideration of the jury in weighing the testimony.
Id. at 720-21, 447 S.W.2d at 336. However, in this case, the court was referring to allowing the appellant to cross-examine the witness on properties that the expert had used in determining what price was appropriate. The court was not referring to properties that were not used by the expert. The court quoted from Coca-Cola v. Moore, 246 F. 942 (8th Cir. 1917), which held that “[t]he testing of the probative weight of an expert’s estimate of value necessarily requires a liberal latitude of inquiry into the factors and considerations upon which each was based.” (Emphasis added). Dean, 247 Ark. at 721, 447 S.W.2d at 337. Furthermore, the court would not have let the appellant cross-examine the witness on each of the 250 sales used by the expert in determining a price.
The appellant also relies upon Arkansas State Highway Comm’n v. Lewis, 258 Ark. 836, 529 S.W.2d 142 (1975), which held that the appellant should have been allowed to cross-examine an expert witness about admissions that his earlier testimony had proved to be wrong in a number of instances because “his credibility might well have been seriously impaired.” Id. at 838, 529 S.W.2d at 143. However, in the case at bar, the appellant was allowed to cross-examine the witness as to earlier reports in which she came to a lower price. Appellant’s counsel was not prohibited from questioning her about her earlier conclusion that the land had a different value, but was prohibited from asking about sales referred to in her first report that were not used in her determination of fair market value nor testified about by her on direct examination.
In the third case relied upon by appellant, Arkansas State Highway Comm’n v. Pulaski Investment Co., 265 Ark. 584, 580 S.W.2d 679 (1979), the court held that an appellant should have been allowed to cross-examine a witness because “[H]is knowledge or lack of knowledge and his record on accuracy regarding the value of the property would go to the credibility to be given his testimony as an expert witness.” Id. at 587, 580 S.W.2d at 681. Again, the appellant in the case at bar was allowed to question Weaver about differing prices, but not the details of an earlier report that was not in evidence or used by the expert in determining her estimate of the land’s fair market value. In the case at bar, the judge made it clear that he was not going to allow the appellant’s counsel to delve into details about property sales referred to in an earlier report, which were not entered into evidence, were not testified about on direct, and were not used by the expert in forming her opinion. The trial court allowed appellant to question Weaver about her first appraisal and the discrepancies between it and her valuation of the land in her second appraisal. We cannot say that the judge’s refusal was an abuse of discretion.
In summary, the date of taking is July 23, 1993, the date of the filing of the petition for condemnation and the date the property was evaluated. Therefore, the appellees are entitled to interest from that date. Furthermore, the court did not err in not allowing the appellant to impeach the appellees’ expert witness on collateral issues that were not testified to on direct nor used by the expert in determining the value of the condemned land.
Affirmed.
Jennings and Roaf, JJ., agree.
Robbins, C.J., Neal and Griffen, JJ., dissent. | [
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Wendell L. Griffen, Judge.
In April 1973, Appellants Edward and Sarah French entered into an agreement leasing a commercial building to Mike Brooks, individually, and as President of Brooks Sports Center, Inc., for a term of ten (10) years with monthly rent of $2,450.00. There were subsequent amendments to the original lease, extending the term to expire on April 1, 1993. The original lease contained a clause providing that:
should the tenant fail to pay the rent as herein provided and should said rent remain unpaid for a period of thirty (30) days, the landlord or his agent may declare the lease terminated and reenter and repossess the demised premises either with or without process of law and expel the tenant or those claiming under the tenant.
Appellees occupied and paid rent on the premises until November 30, 1992, thereafter' abandoning the building without giving notice to appellants.
On January 6, 1993, counsel for appellants sent a letter to appellees advising them that they were in default of the lease agreement, and that under the terms of the lease, appellants were “exercising their option to declare the lease terminated” and intended to reenter and repossess the building to mitigate their damages. The letter stated that appellees would be held responsible for subsequently accruing rent until a new tenant began paying rent, or until the lease expired, whichever occurred first.
Appellants found a new tenant to lease the budding, beginning April 1, 1993. Appellants filed suit against appellees for unpaid rent in the amount of $9,800.00, damage to the property of $800.00, and conversion of property resulting in $1,413.00 in damages. Appellees filed an answer and a motion for partial summary judgment, requesting that appellants’ claim for rent past January 6, 1993, (the date of the letter terminating the lease) be dismissed. The trial court ruled in favor of appellees without a hearing. Appellants then took a voluntary nonsuit of the property damage and conversion claims and moved for summary judgment for rents due prior to January 6, 1993. Appellants filed a notice of appeal of the partial summary judgment granted in favor of appellees. We hold that this appeal lacks finality, and dismiss the appeal.
We raise sua sponte the issue of whether this appeal is from a final judgment. Arkansas Rule of Appellate Procedure 2(a) permits appeals only from final orders of a trial court. An order must be final for the appellate court to have jurisdiction; thus, we may consider this issue even though the parties do not raise it. Haile v. Arkansas Power & Light Co., 322 Ark. 29, 907 S.W.2d 122 (1995) (citing Wilburn v. Keenan Cos., 297 Ark. 74, 759 S.W.2d 554 (1988); Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984)). Haile cites Ratzlaff v. Franz Foods, 255 Ark. 373, 500 S.W.2d 379 (1973), a case with similar facts to the present appeal. In Ratzlaff, the plaintiffs brought three claims for relief against the defendants. After the trial court granted a partial summary judgment in favor of the defendants, the plaintiffs took a voluntary nonsuit on the remaining two counts in their complaint. Id. The supreme court held that the judgment was not an appealable order, and refused to violate the statutory policy against piecemeal appeals of Arkansas Rule of Appellate Procedure 2(a) (formerly Ark. Stat. Ann. § 27-2101), which requires that parties may appeal only from final appealable orders. Id.
We also addressed this issue in Community Dialysis Ctrs., Inc. v. Mehta, 32 Ark. App. 121, 797 S.W.2d 480 (1990), holding that an appeal under similar facts was violative of Arkansas Rule of Civil Procedure 54(b). In that case we held:
Pursuant to Rule 54(b), an order in which fewer than all claims are adjudicated is not an appealable order unless the trial court expressly directs the entry of a final judgment to the claims disposed of and expressly determines that there is no just reason for delay.
Id. at 122, 797 S.W.2d at 481. The trial court did not give a directive that a final judgment be entered only as to the partial summary judgment rendered in favor of appellees. Parties desiring to appeal from an interlocutory order must comply with Ark. R. Civ. P. 54(b).
The appeal presented has complied with neither Ark. R. App. P. 2(a) nor Ark. R. Civ. P. 54(b); therefore it is dismissed.
Appeal dismissed.
Robbins, C.J., and Roaf, J., agree. | [
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Terry Crabtree, Judge.
Appellant Alta Wilson, a resident of Florida, sued her nephew, Ronnie Adkins, in chancery court for detrimental reliance, breach of contract, and fraud stemming from an alleged agreement in which the appellant agreed to donate bone marrow to her ailing sister in exchange for $101,500.00 as compensation for risk in the procedure. The chancellor granted appellees’ motion to dismiss on the detrimental reliance count, and the case was transferred to circuit court. Appellees again moved for dismissal, pursuant to Ark. R. Civ. P. 12(b)(6), and the circuit court granted the motion on all counts. Appellants bring this appeal of the trial court’s dismissal, arguing that the complaint on its face stated the three causes of action complained of, and dismissal was therefore inappropriate. We affirm the chancellor’s dismissal based on the blatantly illegal nature of the alleged contract.
Dismissal under Rule 12(b) is a ruling on the initial complaint alleging some critical deficiency, such as jurisdiction, service of process, or failure to state a claim.
In reviewing the denial of a dismissal granted pursuant to Ark. R. Civ. P. 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994). When the trial court decides Rule 12(b)(6) motions, it must look only to the complaint. Id. This court has summarized Arkansas’ requirements for pleading facts as follows:
Arkansas has adopted a clear standard to require fact pleading: “a pleading which sets forth a claim for relief. . . shall contain (1) a statement in ordinary and concise language of facts showing that the pleader is entitled to relief ...” ARCP Rule 8(a)(1). Rule 12(b)(6) provides for the dismissal of a complaint for “failure to state facts upon which relief can be granted.” This court has stated that these two rules must be read together in testing the sufficiency of the complaint; facts, not mere conclusions, must be alleged. Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and pleadings are to be liberally construed. Id.; ARCP Rule 8(f).
Hollingsworth v. First Nat’l Bank & Trust Co., 311 Ark. 637, 639, 846 S.W.2d 176, 178 (1993).
Malone v. Trans-States Lines, Inc., 325 Ark. 383, 386, 926 S.W.2d 659, 661 (1996).
Despite this stringent review of grants of 12(b)(6) dismissal, courts are very reluctant to allow clearly illegal contracts to survive even the pleading stage of litigation. See Womack v. Maner, 227 Ark. 786, 301 S.W.2d 438 (1957).
Here, the complaint states in paragraph II:
That on or about the 1st day of April 1992, the Plaintiff, Alta Wilson and the Defendant Ronnie Adkins and the Defendant Georgia Adkins, now deceased, entered into an agreement whereby the Plaintiff would elect and act as a bone marrow donor for the benefit of the Defendant, Georgia Adkins.
The complaint artfully characterizes the agreement as an exchange of $101,500.00 for the risk, difficulties, and insurance consequences of appellant’s marrow donation. While appellants’ attorney goes to great lengths to disguise the nature of the contract, it is, as the trial court noted, “so intertwined and commingled that [it] cannot be separated,” and clearly falls under the rubric of federal law on the sale of human organs. Here, the complaint essentially admits that the parties contracted for an illegal sale of organs. No matter how the appellants’ attorney characterizes the transaction, the dollar amount and the consideration are telling signs that the contract is one for the sale of an organ in violation of federal law.
Title 42 of the United States Code section 274(e) provides the following:
(a) Prohibition
It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.
(b) Penalties
Any person who violates subsection (a) of this section shall be fined not more than $50,000 or imprisoned not more than five years, or both.
(c) Definitions
For purposes of subsection (a) of this section:
(1) The term “human organ” means the human (including fetal) kidney, liver, heart, lung, pancreas, bone marrow, cornea, eye, bone, and skin or any subpart thereof and any other human organ (or any subpart thereof, including that derived from a fetus) specified by the Secretary of Health and Human Services by regulation.
(2) The term “valuable consideration” does not include the reasonable payments associated with the removal, transportation, implantation, processing, preservation, quality control, and storage of a human organ or the expenses of travel, housing, and lost wages incurred by the donor of a human organ in connection with the donation of the organ.
(3) The term “interstate commerce” has the meaning prescribed for it by section 321(b) of Title 21.
While this statute does allow “reasonable payments” for the cost of the procedure and incidental expenses, it is clear that $101,500.00 is not payment for reasonable incidental expenses incurred in the organ donation, but is an illegal sale of an organ specifically prohibited by federal law.
Since the contract’s subject matter is so plainly illegal, long standing Arkansas precedent supports the trial court’s grant of 12(b)(6) relief even without a responsive pleading from the appellees.
The case of Womack v. Maner, 227 Ark. 786, 301 S.W.2d 438 (1957), is on point in several respects. The appellant in Womack sought recovery of a bribe he allegedly paid to a local judge. The appellee demurred (roughly equivalent to a modern 12(b)(6) motion), and the trial court granted the demurrer on the grounds that a cause of action was not stated.
In considering Womack’s appeal, the Arkansas Supreme Court stated:
It is firmly established that in a situation such as is set out in the complaint the law will not aid either party to the alleged illegal and void contract. According to the allegations in the complaint, the parties are pari delicto, hence, plaintiff cannot recover.
Id. at 787-88, 301 S.W.2d at 439. The Womack court went on to cite several instances where the plainly illegal nature of the contract was dispositive of the case.
Here, while the contract the appellants seek to enforce is not a bribe, the act of selling one’s organs is equally offensive, and just as clearly illegal as bribery. While the statute regarding organ sales is relatively modern (1986), its genesis is in a clear public policy based on long standing attitudes about transplantation of organs. “Laws regarding the removal of human tissues for transplantation implicate moral, ethical, theological, philosophical, and economic concerns which do not readily lend themselves to analysis within a traditional legal framework.” State v. Powell, 497 So.2d 1188, 1194 (Fla. 1986). In commenting on Powell, another court noted:
For that reason, the courts should look instead to the particular statutes that were written on those subjects in an effort to balance the peculiar interests involved. Recendy, the California Supreme Court said that courts should not look to conversion law but to the specialized statutes dealing “with human biological materials as objects sui generis, regulating their disposition to achieve policy goals rather than abandoning them to the general law of personal property.” Moore v. Regents of the University of California, 51 Cal.3d 120, 271 Cal.Rptr. 146, 156, 793 P.2d 479, 489 (Cal.1990), cert. denied, 499 U.S. 936, 111 S.Ct. 1388, 113 L.Ed.2d 444 (1991). The same could be said for resorting strictly to contract law when there is an alleged agreement for the transfer of human remains.
Perry v. Saint Francis Hosp. & Medical Ctr., 886 F.Supp. 1551, 1563 n.7 (D. Kan. 1995).
In Perry, the court addressed the issue of an alleged contract between a hospital nurse and a grieving family for the donation of tissues from a deceased patient. While the family did recover on other grounds for the hospital’s overreaching organ harvesting, the court rejected a contract approach to the communication between the family and the hospital, stating, “A contract approach is not reconcilable with societal beliefs and values on this subject.” Id. at 1563. In support of this contention, the Perry court cited the Uniform Anatomical Gift Act (1987), 8A U.L.A. 25 at § 10(a), and the federal law, discussed above, at 42 U.S.C. 274(e). Further, the court cited commentary on both the uniform law and the federal act that these laws “embody a commitment to the belief that organs should be given as a gift, either to a specific individual or to society at large.” Developments in the Law — Medical Technology and the Law, 103 Harv. L. Rev. 1519, 1622 (1990); See also Commentaries Vol. B, Ark. Code Ann. pp. 440-51 (Repl. 1995).
Based on the reasoning in Perry, and the equitable concerns implicit in certain types of attempts to contract as summarized in Womack, it is wholly appropriate for a trial court to refuse to meddle in the illegal dealings of parties when the subject matter of their agreement is so clearly repulsive to public policy and federal law. Such an analysis is equally persuasive on each count (contract, detrimental reliance, and fraud) where, as in the present case, both parties were in pari delicto, or equally culpable or criminal. As stated in Womack, “[W]here an illegal contract has been made, neither courts of law nor of equity will interpose to grant any relief to the parties, but will leave them where it finds them, if they have been equally cognizant of the illegality.” (Citation omitted.) Womack, 227 Ark. at 788, 301 S.W.2d at 439.
Here, it is clear on the face of appellants’ complaint that the activity amounted to a sale of organs in violation of federal law. Accordingly, the trial court’s dismissal was appropriate.
Affirmed.
Robbins, C.J., and Stroud, J., agree. | [
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Wendell L. Griffen, Judge.
In this workers’ compensation appeal, appellant challenges the decision by the Workers’ Compensation Commission that he sustained a 30% decrease to his earning capacity above the permanent physical impairment established by the medical evidence. Appellant argues that the Commission should have found that he is permanently and totally disabled, or that he is entitled to a larger award for the decrease in his wage-earning capacity than the Commission rendered. Appellees Timberline International, Inc. (the employer), and Crum & Forster (its workers’ compensation insurance carrier), contend that the Commission’s decision is supported by substantial evidence. However, they have cross-appealed that portion of the Commission’s decision that held the Second Injury Fund not liable for the permanent disability benefits because appellant’s present condition resulted from the cumulative effect of successive injuries in the same employment. See McCarver v. Munro-Clear Lake Footwear, 289 Ark. 509, 715 S.W.2d 429 (1986), and Riceland Foods, Inc. v. Second Injury Fund, 289 Ark. 528, 715 S.W.2d 432 (1986). As to the appeal, we find no error and hold that the Commission’s wage-earning diminution decision is supported by substantial evidence. Because we do not believe ourselves able to overrule the decisions by the Arkansas Supreme Court in McCarver and Riceland Foods, we also affirm as to the cross-appeal. Nevertheless, we believe that the “same employer” defense that was judicially created to shield the Second Injury Fund from liability deserves reconsideration by the supreme court in light of serious policy factors that we raise in our opinion.
Appellant worked as a mechanic for eighteen years. In 1981 he began working for Timberline International as a diesel mechanic. Most of his work involved heavy manual labor. He received a compensable back injury in 1988 while torquing the head of an engine, and eventually underwent back surgery resulting in a permanent impairment rating of fifteen percent to the body as a whole. When he returned to work after surgery, the employer assigned him to lighter work as a mechanic for several months, and then placed him in its parts department where he worked for a year or so before returning to work as a diesel mechanic. On March 31, 1992, while torquing the head bolts on an engine, he suffered another back injury. That injury resulted in surgery by an orthopedist, Dr. Stuart McConkie, in June 1992, and additional surgery by a neurosurgeon, Dr. Thomas Fletcher, in September 1992. He has not returned to work or attempted to return to work since the March 31, 1992, back injury, and Dr. Jim Moore, another neurosurgeon, has assessed his permanent impairment from the 1992 injury to be an additional fifteen percent to the body as a whole.
Appellant argued before the Commission that he is permanently and totally disabled due to the March 31, 1992, injury; alternatively, appellant contended that the decrease to his wage-earning capacity greatly exceeded the-fifteen percent impairment assigned to that injury. The Commission found that appellant had suffered a 30% decrease to his wage-earning capacity above the fifteen percent physical impairment, and rejected appellant’s claim of permanent and total disability. Of course, our standard of review requires that we affirm the Commission’s decision if it is supported by substantial evidence, meaning evidence that a reasonable person might accept as adequate to support a conclusion. Christian v. Arkansas Crane & Crawler, 55 Ark. App. 306, 935 S.W.2d 1 (1996). We do not reverse the Commission unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Id.
Appellant argues that the Commission should have found him permanently and totally disabled under the odd-lot doctrine. According to that doctrine, an employee who is injured to the extent that he can only perform services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist may be classified as totally disabled. Moser v. Arkansas Lime Co., 40 Ark. App. 108, 842 S.W.2d 456 (1992), supp. op., 40 Ark. App. 113, 846 S.W.2d 188 (1993). However, an injured worker who relies upon that doctrine has the burden of making a prima facie showing of being in the “odd-lot” category based upon the factors of permanent impairment, age, mental capacity, education, and training. If the worker does so, the employer then has the burden of showing that some kind of suitable work is regularly and continuously available to him. Walker Logging v. Paschal, 36 Ark. App. 247, 821 S.W.2d 786 (1992).
Although appellant argues that he made a prima facie case of entitlement to permanent total disability benefits under the odd-lot doctrine set forth in Walker Logging v. Paschal, supra, based on the claim that he cannot work, his treating physicians opined that he can perform light-duty work, including work that involves lifting up to 25 pounds. None of the doctors who treated him for the 1992 injury believe that he is unable to work. Dr. McConkie, the orthopedic surgeon, expressed doubts concerning appellant’s physical complaints, and both neurosurgeons (Drs. Fletcher and Moore) concluded that appellant can perform light-duty work. The Commission also received evidence that the employer has attempted to return appellant to light-duty work answering telephones but appellant has not attempted the work. We believe that fair-minded persons presented with this evidence could have concluded, as the Commission did, that appellant was not totally disabled.
Appellant’s reliance upon the odd-lot doctrine is misplaced. He did not make the prima facie showing of substantial inability to engage in regular and continuous employment that would have obligated the employer to produce evidence that some kind of suitable work is regularly and continuously available to him. As already mentioned, appellant’s doctors believe that he can perform light-duty work, and they question the validity of his physical complaints. The employer has indicated that appellant could return to light-duty work, but appellant has made no attempt to do so. These facts constitute substantial evidence for the Commission’s decision, even under the odd-lot analysis that appellant advocates. These facts also support the Commission’s decision awarding permanent partial disability benefits above the extent of appellant’s physical impairment equal to 30% to the body as a whole.
Appellees contend in their cross-appeal that the Commission erred when it refused to hold the Second Injury Fund liable for the permanent disability benefits awarded to appellant for decreased wage-earning capacity pursuant to the McCarver and Riceland Foods holdings previously mentioned, and urge us to reverse the Commission and overrule those decisions. McCarver and Riceland Foods stand for the proposition that the Second Injury Fund is not hable when an employee sustains a subsequent injury while still working for the same employer for whom he was employed when a previous permanent injury was suffered. In Riceland Foods, our court announced that if successive injuries in the same employment cause total and permanent disability, then the employer or its insurance carrier is responsible to the disabled employee for all permanent disability benefits; however, if the previous disability or impairment arose out of employment by a different employer, then the Second Injury Fund is liable. Riceland Foods, supra.; see also Death & Permanent Total Disability Trust Fund v. Whirlpool Corp., 39 Ark. App. 62, 837 S.W.2d 293 (1992). In McCarver and Riceland Foods the supreme court affirmed our court’s interpretation of what was previously Ark. Stat. Ann. § 81-1313, now codified as Ark. Code Ann. § 11-9-525 (Repl. 1996), and accepted our reasoning that the following language from the statute supported the conclusion that the Fund is not liable for successive injuries that are permanently disabling when the injuries occur in the same employment:
(a)(1) The Second Injury Trust Fund established in this chapter is a special fund designed to ensure that an employer employing a handicapped worker will not, in the event the worker suffers an injury on the job, be held liable for a greater disability or impairment than actually occurred while the worker was in his employment.
(2) The employee is to be fully protected in that the fund pays the worker the difference between the employer’s liability and the balance of his disability or impairment which results from all disabilities or impairments combined.
(Emphasis added.)
Both our court and the supreme court reasoned that the italicized language from the opening provision of the statute justified the conclusion that where a worker suffers successive injuries that are permanently disabling while working for the same employer, then that employer should be held liable for the actual disability or impairment sustained by those injuries. The courts in McCarver and Riceland Foods also believed that employers would reap a windfall subsidy from the Fund if they are relieved of liability for the wage-earning consequences of successive permanent injuries that occur in the same employment. Finally, the courts reasoned that the Fund’s solvency could be jeopardized to the possible detriment of permanently disabled workers who would, in the event of Fund insolvency, be unable to recover disability benefits from their employers because the statute specifically prohibited reverter of liability to employers in case of Fund insolvency.
Ten years have passed since the decisions in McCarver and Riceland Foods. The Arkansas General Assembly has enacted several major changes to the Workers’ Compensation Law statute during that period, but none of the changes have addressed the “same employer” defense now challenged by appellees in their cross-appeal. Indeed, the Second Injury Fund statute has not been revised since 1981. Given that the General Assembly has known about the “same employer” defense announced in McCarver and Riceland Foods, we are reluctant to conclude that the defense requires judicial abolition, despite the fact that it was judicially created and has not been legislatively adopted by specific language amending the statute. Our reluctance also is based upon deference to the supreme court, whose decisions we are now asked to overrule. Appellees have cited no authority for the proposition that our court can overrule supreme court decisions, and we know of none.
We are also persuaded that Ark. Code Ann. § 11-9-1001 (Repl. 1996) discourages the type of judicial lawmaking that appellees urge us to perform by the following language:
When, and if, the workers’ compensation statutes of this state need to be changed, the General Assembly acknowledges its responsibility to do so. . . . In the future, if such things as the statute of limitations, the standard of review by the Workers’ Compensation Commission or courts, the extent to which any physical condition, injury, or disease should be excluded from or added to coverage by the law, or the scope of the workers’ compensation statutes need to be liberalized, broadened, or narrowed, those things shall be addressed by the General Assembly and should not be done by administrative law judges, the Workers’ Compensation Commission, or the courts.
(Emphasis added.)
Inasmuch as appellees are urging that the scope of the workers’ compensation law be broadened so that the Second Injury Fund would become liable for the wage-loss disability benefits payable to disabled workers in the event of successive injuries during the same employment, it appears that the court of appeals can offer no assistance due to this language.
Our refusal to act pursuant to appellees’ insistence that the “same employer” defense be judicially abolished does not indicate that we believe the defense to be justified by the Workers’ Compensation Law. In fact, we perceive serious policy problems that the “same employer” defense presents in addition to our view that the statute does not preclude the Fund from being held liable. The concern that abolition of the “same employer” defense would allow employers to escape liability for disability or impairment that actually occurs while a worker is in its employ appears to arise from a misreading of the statute. Rather than reading Ark. Code Ann. § 11-9-525 (a) to refer to employments that produce successively disabling injuries, the statute should be read to address the successively disabling injuries. After all, successive injuries, not successive employments, is the subject addressed by the statute. If the statute did not intend to cover successive injuries occurring in the same employment as the Fund maintains, subsection (d)(1) makes no sense. It explicitly covers how weekly benefits for disability shall be paid where more than one injury occurs in the same employment to cause concurrent and consecutive permanent partial disability. If the statute indeed contemplated that the Fund would never be liable in cases of permanent disability resulting from successive injuries sustained in the same employment, one would think that subsection (d)(1) would be unnecessary.
The “same employer” defense also appears inconsistent with the apparent thrust of the Second Injury statute. The statute repeatedly refers to cases of permanent disability or impairment and provides at subsection (b) (1) that it covers all cases of perma nent disability or impairment “where there has been previous disability or impairment.” If a “same employer” is to be treated no differently in cases involving successive injuries than it would be treated had there been no successive injuries (the result that the “same employer” defense produces), the language extending the scope of the statute to “all cases of permanent disability or impairment where there has been previous disability or impairment” seems out of place.
We have found no other area of the workers’ compensation law that excludes a party from liability based upon the unproven possibility of insolvency, yet this was a stated reason advanced for the “same employer” defense in McCarver and Riceland Foods. This appears to be the only area of the workers’ compensation law where solvency is allowed to determine liability. We have found and been cited to no information that supports the idea that the Second Injury Fund is endangered by any species of claims. Indeed, the Fund is specifically created to only pay claims for permanent disability benefits, including permanent total disability benefits, the most expensive variety of permanent disability benefits.
These concerns persuade us that if the “same employer” defense that the appellate courts created ten years ago is subject to judicial revisiting, the time has come to do so. We encourage appellees to petition the supreme court for review.
Affirmed as to the appeal and the cross-appeal.
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Smith, J.
Appellant was the plaintiff below, and in the brief on his appeal to this court has this to say of his pleadings :
“As shown in the transcript at pages 12 to 22, plaintiff having no funds with which'to publish the complaint, the amendment and supplemental complaint, and appellant’s only opportunity to present same to the court is to ask the reading by the judge, the transcript as follows r pages 1 to 22, inclusive, and pages 32 to 37, inclusive, and pages 43 and 44. ’ ’
After this statement there follows next in order what appears to be a “Motion to Dismiss for Want of Juris diction,” which, was filed by appellant in the court below. This motion appears to have been copied in full and reads as follows:
‘ ‘ Since it was shown in the testimony, and since the plaintiff is a citizen of the State of Tennessee, and since he has not any desire or inclination or intention to change his fifteen years’ residence and citizenship in the State of Tennessee, plaintiff requests that this cause and suit be dismissed, or that same he permitted to be removed to the United States District Court upon the proper application being filed either in this court or the Federal Court. ’ ’
Thereafter follows an abstract of a demurrer and an answer and a cross-complaint filed by appellee. The brief contains no abstract of the decree, but it appears from the argument made that the court refused to dismiss the cause for want of jurisdiction. In the argument which appellant makes in his brief he says that there was involved the question of the use and infringement of a trademark, of which only the Federal court would have jurisdiction. *
The pleadings have not been sufficiently abstracted for us to know upon what allegations appellant expects relief nor, indeed, what relief he expects.
His motion to dismiss recites, as a ground therefor', the diverse citizenship of the litigants. But appellant was himself the plaintiff, and the courts of this State are open to him, although, on account of his residence in another State, he might have brought the suit in the first instance in the Federal court.
There has been no substantial compliance with rule 9 of this court requiring an abstract of the record in the case, and for this reason the appeal must be dismissed. It is so ordered. | [
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Smith, J.
.Appellant DeLoach made application for two certificates of membership in the Ozark Mutual Life Association, hereinafter referred to as the company, on the life of his mother. The certificates were issued, and the insured died April 19, 1919. The proof of death thereafter made disclosed the fact that Mrs. DeLoach was past sixty years of age at the time of the issuance of the certificate, and that information thus acquired was the first knowledge the company had that the insured’s true age had not been correctly stated in the applications.
The applications for the certificates contained the following recitals: “To make certificate valid the questions in the application must be answered correctly.”
And further: “I hereby make application to the Ozark Mutual Life Association for membership in the same, and in doing so certify that the following statements are made and questions answered correctly as a basis for obtaining same: Name, Telithy Emily DeLoach, age 60.”
Another clause in the application is to the effect that “It is hereby understood and agreed that this application, upon its acceptance, is a part of the contract and warranty by the member, and that no agent or other person has any authority to waive or dispense true and correct answers in writing hereon to any of the questions above set forth.”
At the time the applications for the certificates were executed there was in force a by-law of the company as follows: ‘ ‘ This organization, being founded purely upon a mutual basis and being governed in a representative manner, those eligible for membership shall be of the white or Caucasian race, between the ages of ten and sixty years, inclusive, counting from the nearest birthday. ’ ’
All the statements herein recited appear in the agreed statement of facts upon which the case was tried before the court without a jury, and it was therein stipulated that DeLoach did not knowingly or wilfully misrepresent his mother’s age when the applications were made.
The court rendered judgment in favor of the company on the certificates, but gave judgment against the company for the amount of the premiums paid, and both DeLoach and the company have appealed.
"We think the judgment of the court below should be affirmed in its entirety.
The company had the right to rely on the statement that the party proposed for insurance was of an insurable age, and it had no knowledge to the contrary until the proofs of death were made. In this respect the case differs from that of Mutual Aid Union v. Blacknall, 129 Ark. 450 (same case, first appeal, 123 Ark. 377), in which case the applicant for the insurance gave his correct age, but the agent of the insurance company, instead of writing into the application the age as given to him, wrote down an age which was within the limit prescribed by the company beyond which it did not accept applications. We there held that, in the absence of collusion between the applicant and the agnnt, the company would be charged with the knowledge thus acquired by its agent and would be held to have waived the inhibition contained in the policy against insuring a person of the applicant’s true age.
Appellant DeLoach cites and relies on the case of Lincoln Reserve Life Ins. Co. v. Smith, 134 Ark. 245. But that case does not control here. In that case the jury might have found that the insured was fifty-three years of age, as stated in his application, or that he was fifty-nine years of age, as the proof on the part of' the company tended to show. The policy in that case contained the following provision in regard to age: “4. Age. If the age of the insured has been misstated, the amount payable hereunder shall be. such as the premium paid would have purchased at the correct age, provided, the age at the time insured is not over sixty years.” It was not shown or contended in that case that the insured was past sixty. It was shown, however, that the company had an age limit of fifty-five years on a policy of the kind there sued on, and that the company prescribed no rate of premiums on policies of that kind on persons over fifty-five years of age.
The contention of the company in that case was that, if there was a misstatement of age, and the age of the applicant exceeded the maximum limit on such policies, there could be no recovery, for the reason that the premium paid by the insured would not have purchased insurance in any sum according to the insured’s correct ago. On behalf of the plaintiff, the owner of the policy by assignment, it was contended that a recovery of the full amount of the policy was allowed, notwithstanding the misstatement of the age, for the reason that the company did not show that a policy for a similar sum was purchasable according to the limited payment plan — the plan on which the policy was issued. We sustained the contention of the plaintiff and assigned as our reason therefor that the effect of the clause in regard to the age, set out above, was to provide for a lessening of the amount provided the age of the -insured was not over sixty years, and that it devolved upon the company, in order to obtain any advantage under this clause, to show that there was a purchasable policy according to the plan adopted at the true age of the insured. In other words, that there was a liability for the amount named in the face of the policy unless it could be lessened so as to be reduced to such an amount of insurance as the premium paid “would have purchased at the correct age,” and that unless that premium would have purchased a policy for a less sum the liability for the full-amount continued.
But we have here no such clause to construe. On the contrary, the applicable clause requires the applicant to be under sixty to be eligible to membership.
The parties litigant debate the question whether the statement in regard to the age of the insured was a representation or a warranty. But we pretermit a decision of that question, as we think the law governing the facts herein recited is correctly stated in Joyce on Insurance, vol. 3 (2 ed.), page 3258. It is there said: “And if the by-laws of a benefit insurance company prohibit it from receiving a member above a certain age, the society.is not bound by a certificate of insurance issued to a member over that age, whose application contained a false statement as to his age. So a misstatement as to age, where insured was over the insurable age of admission to a society, will constitute a defense, irrespective of the question whether such false statement be held a representation or warranty.”
The case of Pirrung v. Supreme Council of Catholic Mut. Ben. Assn., 93 N. Y. Supp. 575, fully' supports the text just quoted. There McLennan, P. J., speaking for the Supreme Court of New York, Appellate Division, said: “We think under such circumstances (that is, that the company had, by no act of its own, induced one to become a member who was not eligible) it must be held as a matter of law that if John Pirrung was in fact oyer fifty years of age at the time he made his application and was initiated into the defendant association he was ineligible, and that the defendant, not being aware of the fact, did not become liable on account of the certificate of membership issued to him; and that this is so entirely independent of whether or not his statement as to his age be regarded as a warranty or as a representation-only. Meehan v. Supreme Council, 95 App. Div. 142, 88 N. Y. Supp. 821.
See, also, 1 Bacon on Life & Accident Ins., section 278; Sweet v. Citizens Mutual Belief Society, 7 Atl. 394; Waltz v. Workmen’s etc., Benefit Fund, 139 N. Y. Supp. 1016; Marcoux v. Society of St. John, 39 Atl. 1027.
The return of the premiums was properly ordered. There was no actual fraud here. There was' a misstatement of the age of the person proposed for insurance which induced the issuance of the certificates of insurance ; but this was not wilfully or fraudulently done.
The case of Taylor v. Grand Lodge A. O. U. W., 105 N. W. 408, 3 L. R. A. (N. S.) 114, is a well considered ease which reviews the authorities on this subject, and announces the law to be that a recovery can not be had where the certificate was obtained by actual fraud, that is, where there was a wilful purpose to deceive on the part of the insured or the applicant; but that premiums may be recovered in all other cases.
Judgment affirmed. | [
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McCulloch, C. J.
The State appeals from a judgment of the circuit court of the Northern District of Sharp County sustaining a demurrer to an indictment against David E. Roberts for the crime of perjury, alleged to have been committed by giving false testimony before the grand jury of said county in regard to certain matters then under investigation. The indictment, omitting the caption, reads as follows:
“That the said David E. Roberts, in the county and 'State aforesaid, on the 14th day of July, 1920, then and there on said day at the courthouse at Hardy, Sharp County, Arkansas, being the time and place for the holding of the regular summer term of the circuit court of the Northern District of Sharp County, Arkansas, in July, 1920, the Hon. J. B. Baker, the regular judge of said court, being then and there presiding, and said court then and there duly organized, and said term of said court then and there beginning, and Noel Arnold and fifteen other men having been duly selected and examined on their oath as the law provides, and found competent and qualified as grand jurors, were duly empaneled by said court as grand jurors, by said court, as the grand jury of the said term, and said grand jury was then and there duly instructed as to their duties and charged concerning the criminal laws of the State of Arkansas, and the said Noel Arnold was then and there appointed as foreman of said grand jury and the said grand jury then and there retired to the grand jury room of said courthouse to consider of and perform their duties, and while said grand jury as a body was then and there performing their duties, and said David E. Roberts ap peared as a witness before said grand jury on tlie 14th day of July, 1920, and it became material and within'the duty and jurisdiction of said grand jury to inquire of the said David E. Eoberts concerning the storing, having, procuring and giving away of certain intoxicating liquors in the town of Hardy, the Northern District of Sharp County, Arkansas, during the month of April, 1920,. and the said David E. Eoberts did then and there take his corporal oath and was then and there duly sworn as a witness before said grand jury, and said oath then and there duly administered to the said David E. Eoberts by the said Noel Arnold, the foreman of said grand jury, who was then and there authorized by law to administer said oath, and after being so sworn and taking said oath the said David E. Eoberts did then and there before and in the presence of said grand jury upon the investigation concerning the sale, storing,.having and giving away of intoxicating liquor at Hardy, in the Northern District of Sharp County, Arkansas, and being asked if he, the said David E. Eoberts, and Jim Wiseman did go to the stock pen in the towjn of Hardy, Arkansas, on the Sunday night that one Owen Billingsley died in April, 1920, where you, the said David E. Eoberts, got one half-gallon fruit jar containing some whiskey and gave it to Jim Wiseman, the said David E. Eoberts answered “No,” which statement and testimony by the said David E. Eob-erts in the investigation of the aforesaid was material in the investigation aforesaid, and which statements and answers so made and testified to by the said David E. Eoberts as aforesaid were feloniously, wilfully, unlawfully and corruptly false, and known by the said David E. Eoberts to be feloniously, wilfully, unlawfully and corruptly false when he, the said David E. Eoberts, so made them, against the peace and dignity of the State of Arkansas.”
The question first presented is whether or not the State has appealed within the time prescribed by statute — within sixty days after the judgment. The transcript fails to show-the date of the judgment, but it does contain the opening order of court on January 3, 1921, and the transcript was filed in the office of the clerk of this court on March 4, by the Attorney General, which was the sixtieth day after the judgment. The appeal was therefore in time.
It is next contended that the transcript is not complete under rule 20 of this court, which prescribes the form of transcript in criminal cases. This rule provides that in criminal cases the transcript “ shall begin with the return of the indictment into court, unless a motion shall have been made to set aside the indictment, in which case the proceedings empaneling the grand jury shall also be copied in the transcript,” and that this should be followed by “the indictment, the pleadings by the defendant and subsequent proceedings, as in civil cases.” This rule is inapplicable on appeals in criminal cases by the State, so far as it requires the inclusion of things specified in advance of the indictment to which the demurrer has been sustained. The State has a right to test the correctness of the judgment sustaining the demurrer without bringing up the antecedent proceedings, unless the demurrer or other pleading challenges the authenticity and regularity of the indictment.
We proceed then to an examination of the indictment to determine whether or not it is sufficient.
One of the grounds urged by counsel for the accused for sustaining the demurrer is that the indictment does not set forth the form of the oath, but merely states that the accused was “duly sworn as a witness before said grand jury, ’ ’ and that the testimony was given by the accused “after being so sworn and taking said oath. ” It is unnecessary,in an indictment for perjury, to set forth the form of the oath, it being sufficient merely to allege in general terms that the accused was duly sworn, or sworn in accordance with law. 21 Standard Encyclopedia of Procedure, p. 320. We have held that where the sufficiency of the record in regard to the swearing of the jury is challenged, it is sufficient merely to present a record showdug that the jury was duly sworn. Greenwood v. State, 17 Ark. 332; Anderson v. State, 34 Ark. 257. The same rule applies to an allegation concerning the oath of the accused in a perjury case.
The next ground urged is that the indictment is vague and ambiguous and fails to specifically set forth the matter about -which the accused is charged with having sworn falsely. It must be conceded that the indictment is not framed in orderly form or in very apt terms, but it is sufficient under the statute if it contains a statement of facts “in ordinary and concise language and in such manner as to enable a person of common understanding to know what is intended.” Crawford & Moses’ Digest, § 3028. The substance of the charge set forth in the indictment is that in his examination before the grand jury the accused was asked whether or not he had on a certain occasion accompanied one Jim Wise-man to a place mentioned, and then and there procured a jar containing whiskey and gave it to Wiseman, and that the accused falsely and corruptly answered in the negative. It is expressly alleged that the testimony so given was material to the inquiry then being pursued by the grand jury. The gist of the inquiry, as set out in the indictment, concerned the “sale, storing, having and giving away intoxicating liquor ’ ’ and the alleged answer of the accused expressed a negative answer to the question propounded to him concerning his procurement of such liquor at the time and place and under the circumstances mentioned. We think that the allegations were sufficiently definite to put the accused on notice and to constitute a specific charge of perjury in regard to material matters.
The next question argued is whether or not the indictment is sufficient to charge the .materiality of the false testimony. The law is settled in this State that in framing an indictment for perjury it is not essential to set forth facts which show the materiality of the false testimony, and that it is sufficient if the indictment contains an express statement that the false testimony is material. Smith v. Smith, 91 Ark. 203; Loudermilk v. State, 110 Ark. 553.
Lastly, it is said that the indictment is defective in that it fails to charge that the accused appeared before the grand jury and voluntarily gave the testimony set forth in the indictment. Counsel rely, as sustaining this position, on the decision of this court in the case of Claborn v. State, 115 Ark. 387. In that case, however, the indictment charged that the testimony before the grand jury was given in an examination on a charge against the defendant himself. The court held that under those circumstances the indictment, in order to set out the offense of perjury, must contain an allegation that the accused voluntarily gave the tesimony. The gist of the charge there was that the accused gave false testimony in a case against himself, and we held that in order to constitute a charge of perjury under those circumstances it must affirmatively appear that he waived the privilege of refusing to give testimony which would incriminate himself. The charge, in the present indictment, presents altogether a different question. There is no charge, as in the Claborn case, that an accusation against this defendant was under investigation. Therefore, it was unnecessary to set forth the waiver of his privilege. Under our statutes the grand jury has general inquisitorial powers without being confined to any particular matters submitted for investigation, and, according to the allegations of the complaint in this case, the grand jury was pursuing such investigations in propounding the inquiry to the defendant. The question propounded might or might not have elicited information incriminating the defendant himself. But he could not refuse to answer on that ground, for the reason that the statute protects him from the use of his own testimony in the prosecution of a charge against himself. Crawford & Moses’ Digest, § 3122; State v. Bach Liquor Co., 67 Ark. 163; Ex parte Butt, 78 Ark. 262. The purpose of the inquiry was, as before stated, to ascertain whether or not liquor was procured on the occasion mentioned. If it developed from tlie inquiry that some person other than the defendant in this case was guilty of an offense, the testimony of the defendant would become material. But if it be proved that a truthful answer would have disclosed the fact that the defendant himself had committed an offense, or was the sole offender in the transaction, then his own testimony would become immaterial for the reason that it could not be used against himself. The grand jury, however, had the power to pursue the inquiry and propound the particular question to the defendant to ascertain whether or not it would disclose the commission of an offense by some other person, and, as before stated, the fact that it might develop the commission of an offense by the defendant himself does not make it necessary to allege in an indictment that the testimony was voluntarily given. Of course, on a trial of the case, it would devolve on the State to show the materiality; and if it appears from such proof that the accused himself was the sole offender in the transaction under inquiry, then his false testimony would not constitute perjury under the statute, unless it further appears that he waived his privilege by voluntarily giving the testimony.
Our conclusion, therefore, is that the court erred in sustaining the demurrer, and the judgment is reversed and the cause remanded with directions to overrule the demurrer. | [
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Smith, J.
This litigation was begun September 8, 1917, when the First National Bank of Forrest City filed a bill against Eugene Williams and George P. Walker, to foreclose a mortgage. No defense was made to the suit, but on November 18, 1918, Walker filed a cross-bill against Williams, in which he alleged that he and Williams had entered into a partnership whereby, for a consideration of $7,500, they had purchased from Cook, Gray & Co., of Memphis, Tennessee, certain collaterals of the J. W. Beck Company, of Forrest City, deposited with Cook, Gray & Company to secure an indebtedness of the Beck Company. Williams filed an answer to the cross-complaint on March 5, 1920, in which he denied the existence of a copartnership. In addition, Williams alleged that the cause of action sued upon was barred by the statute of limitations.
The issues are stated in appellant’s brief as follows: “The two questions raised by the pleadings may be concretely stated as follows:
“Did Williams, for the benefit of himself and Walker, as the result of a partnership arrangement, purchase from Cook, Gray & Co., the collateral of the J. W. Beck Company, and did appellee, Walker, own an undivided one-half interest in the profits arising from that partnership?
“Second. If any canse of action has existed in favor of Wallcer and against Williams on account of said partnership arrangement, has the statute of limitation barred the same?”
These were the issues raised by the pleadings, and, after thus stating them in his brief, appellant also questions the right of Walker to the relief prayed upon the ground that, if he was interested in the purchase of this collateral from Cook, Gray & Company, he concealed that interest from his creditors 'by taking an assignment of the collateral to Eugene Williams individually, instead of to himeslf and Williams.
But, as has been said, no such issue wa sraised in the pleadings. The deposition of 'Walker was taken a second time, and it was then that, upon his eross-examina-tioii, he stated that he was in financial difficulty and did not want anything in his name. But no attempt was made to develop the extent of his financial difficulty. He may or may not have ‘been insolvent. He was further asked on his cross-examination: “When did your financial condition get better,” and he answered, “‘Since 1916.” His solvency appears to have been conceded at the time of the trial. It appeared that he owed the Beck Company a personal indebtedness, and that he had endorsed for that company to Cook, Gray & Company; but it is not shown that he was otherwise indebted.
The creditor who sold the collateral was Cook, Gray & Company, and it must be assumed that company knew of Walker’s indebtedness to the Beck Company, and of his liability as an endorser for that company. In fact, Cook, Gray & Company had employed Walker to assist in the collection of the collateral, which was later sold, and it was while thus employed that the offer to sell to bim was made, and the offer to sell included his own indebtedness.
We think this testimony is not sufficient to require us to treat the pleadings as 'being amended to raise the issue that Walker’s purchase was in fraud of his creditors.
The testimony of Williams and Walker is in irreconcilable conflict, and numerous circumstances are pointed out contradicting and corroborating each of them. The testimony may be summarized as follows:
Beck & Company had borrowed money from Cook, Gray & Company, and had hypothecated certain collateral, mostly chattel mortgages, and Walker and other stockholders of the Beck Company had endorsed the paper of the Beck Company. The Beck Company went into bankruptcy, and N. B. Nelson was elected trustee. Immediately upon the adjudication in bankruptcy, Cook, Gray & Company employed Walker to assist them in the collection of the collateral. Cook, Gray & Company advised Walker that they would take $6,000 for the collateral they had, which included an obligation of Walker’s, secured by a chattel mortgage, for $4,000, and they would take $7,500 for the collateral and the open accounts of the Beck Company for which there was no security. Included in this last item was an account of Walker’s for several thousand dollars.
Up to this point there appears to be no contradiction in the testimony. The parties differ as to what thereafter occurred.
Walker testified that a copartnership between himself and Williams was formed to purchase the collateral and the open accounts. That he gave Williams a mortgage on his home for $5,750, which Williams at once sold to the bank of which he (Williams) was cashier, and that Williams himself advanced $1,750, and with the $7,500 thus raised they bought the collateral and the open accounts. That the Beck Company did a general furnishing business extending over both St. Francis and Cross counties, and much effort, labor and expense were required to realize on the securities the Beck Company had taken. That he (Walker) assumed the duty of realizing on this collateral as a part of the partnership agreement, and devoted five months of his time thereto. That his duty under the partnership agreement required him to collect up and sell various articles of personal property, and some live stock, and in some cases he took renewal notes. That all collections of money were turned over to Williams, and all renewal notes taken were made payable to Williams’ order. That his first note to Williams was dated January 23,1912, and at Williams’ request he executed a new note on April 29, 1914. That the partnership agreement with Williams was that this note should he satisfied out of the. collections which he (Walker) was making, and this should have been done, as more than enough money had been collected for that purpose, but .Williams explained that he had not been able to collect all the notes which he (Walker) had turned over to him (Williams), and that he (Williams) needed a new note to carry the account properly with the bank, and that no interest had been, or would be, charged on the note. No interest was charged, and the note was renewed and made payable directly to the bank. This is the note secured by the mortgage which this suit was brought to foreclose.
Walker further testified that he did not press the matter of a final settlement, as he knew his own indebtedness to the Beck Company had been paid through his co-partnership with Williams, and while he knew he had some additional profits he supposed, when all the collections were- finally made by Williams, a final settlement would be had, and that Williams had never told him he was through liquidating the notes which he (Walker) had turned over to him, or that he was prepared to make a final settlement, and it does not appear that all the notes were ever collected..
Williams testified that there was no partnership, and that the purchase from Cook, Gray & Company was for his own benefit, and that he alone advanced the entire consideration for the purchase. That Walker at the time owed the Beck Company something over $9,000, which be permitted Walker to settle by executing the note for $5,750. That he was the cashier of the bank, and opened a new account at the bank, which was carried in the name of “Eugene Williams — Beck Company Note Fund.” That the $7,500 was paid by himself alone'. That the last item of the account was collected on October 28, 1913, and the account at the bank was checked out and closed by him on January 1, 1914, and that he never knew Walker claimed an interest in the purchase until the foreclosure suit was brought.
The assistant cashier of the bank, and the man who succeeded Williams as cashier upon his retirement from the bank, testified that he had frequently heard Walker and Williams discussing* the various accounts included in the Cook, Gray & Company collateral, but did not know anything about the respective interests of the parties.
Walker was very strongly corroborated by Nelson, the trustee in bankruptcy. The claim of Cook, Gray & Company was filed by Williams and Walker, and Nelson testified that Williams and Walker had discussed the purchase many times in the office of the Beck Company in his presence. That Walker was the active man in the matter, and he had on more than one occasion heard each of them, in 'the presence of the other, speak of the transaction as a partnership affair.
The testimony shows that the last item collected was not on October 28, 1913, as stated by Williams.
Among the accounts purchased was that of a man named Switzer, whose account was secured by a life insurance policy, which had been assigned to the Beck Company. This policy was for a thousand dollars. Switzer died, and an attorney was paid a fee of $25 for assisting in the collection of the policy, and the balance of $975 was collected July 12,1916, and was credited on Walker’s note to the bank. In his first deposition, when asked why he had given Walker credit for the proceeds of the policy, Williams answered: “Simply because his note was past due at the time, and I was undertaking to help him pay it, and at that time he was not in a position to pay it.” Williams’ deposition was taken a. second time, when he explained that, upon further investigation, he found that the Switzer note was not included in his purchase, and that he had not bought the insurance policy, and that “the insurance policy either belonged to Walker by virtue of his having bought the book accounts of Beck & Company, or belonged to the First National Bank as collateral against their notes — I don’t know which.” Nelson testified, however, that the Switzer account and policy was sold and transferred to Williams along with all the other collaterals.
The court found the facts to be that Williams acquired possession of the collateral and accounts by virtue of a partnership agreement, and that he had collected thereon the sum of $12,246, and that the partnership had not been dissolved, repudiated, or settled at the time of the filing of this suit, and entered a decree based upon that finding. The court’s direction upon that finding is not questioned; but it is insisted that the finding itself is contrary to the preponderance of the evidence; and that Walker’s cause of action was barred by the statute of limitations.
Upon a consideration of all the testimony in the case, we are unable to say that the court’s finding is clearly against the preponderance of the testimony. Nor do we agree with counsel for appellant that the cause of action was barred.
In the case of Adams v. Taylor, 14 Ark. 626, this court held that the relation between copartners does not create such a trust as will exempt a bill for an accounting and settlement from the operation of the statute of limi-ations. And it is also true that the three years’ statute of limitations is applicable to an action for an accounting between partners. But that statute does not begin to run until the cause of action has accrued.
In the ease of Luke v. Rhodes, 117 Ark. 605, which was a suit for an accounting between copartners, we said, in disposing of a plea of laches and of limitations, “Of course, the right to sue for an accounting would continue as long as the partnership continued, and no plea of limitations or laches could be made against such suit while the partnership continued.” And we have here an express finding of fact that “the said partnership had not been dissolved, repudiated, or settled at the time of the filing of this suit. ’ ’ If this' be true as a matter of fact, then it necessarily follows as a matter of law that the suit was not barred. See, also, Lasker-Morris Bank & Trust Co. v. Gans, 132 Ark. 402.
In the case of Pearce v. Mann, 10 Ky. Law Rep. 448, it was held by the Kentucky Superior Court that “limitation does not begin to run against a claim by one partner against another, growing out of the partnership transaction, until the termination of the partnership. And where a partnership was entered for the purchase of certain notes, the profits to be equally divided, the partnership did not end until the completion of the adventure by the collection of the notes in full. ’ ’
Decree affirmed. | [
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Wood, J.
Under a certain instrument designated as a ‘‘Declaration of Prust” a trust estate was created known as the “Commercial Lease Syndicate,” with offices under that name in Paragould, Arkansas, and such other places as the trustees might designate. The object of the trust, as declared in the instrument, was “to provide a trust in which various persons may have ownership rights, the assets of the trust to be managed by trustees, who shall be free from the direction of said persons having ownership rights, or any of them. The persons having ownership rights shall be trust beneficiaries only, unaffected by any such relation as that of partnership or joint stock association.” It is declared that the property acquired shall be in the name of the Commercial Lease Syndicate as trustees, the property to be held for the benefit of the holders of trust certificates. Two persons are named in the instrument as trustees, and it is declared, among other things, that they “shall have full power to do all things which in their judgment are necessary and prudent in the management and conduct of this trust.” It is declared that the business of the trust shall be the purchase, sale and exchange of oil, gas or mineral leases or lands, or interests or rights in such, leases and lands, and the development of such leases or lands. To this end the trustees are specifically authorized and empowered to buy, sell and exchange such oil, gas and mineral leases and lands and to develop such leases or lands. They (the trustees) “may sell and dispose of any part or portion of all the trust estate free and clear of any claim of any beneficiary of this trust or holder of trust certificates.” The holders of trust certificates have the right “to receive the profits that may be apportioned and paid over by the trustees and to receive a proportionate part of the corpus of the trust estate at the time of the dissolution of the trust.” The trustees have the power under the instrument to appoint a substitute or substitutes who shall succeed to the powers and duties of the persons named as trustees. The instrument was signed by the two persons named as trustees. The trust estate was valued at $14,000, and the interest of each beneficiary is to be represented by certificates showing that he is the owner of such proportion of the estate represented by the ratio of his share, which shall be $100 or some integral multiple thereof to $14,000. The instrument contains various other provisions which it is unnecessary to set forth.
The trustees issued to Griffin Smith a certificate showing that he was the owner of shares in the syndicate to the amount of $3,000. Before issuing the certificates of shares, the trustees named in the declaration of trust applied for and received from the State Bank Commissioner authority to sell shares in the property held in trust under the declaration. The board of assessors of Greene County assessed the certificate issued to Smith at $1,500. Smith instituted this action in the county court under the provisions of act 147 of the Acts of 1919, § 11, to have the assessment set aside. The cause was heard upon an agreed statement of facts in which it is set forth, among other things, that the property rights of Smith which he seeks to have exempted from taxation were evidenced by the declaration of trust above mentioned. The agreed statement of facts contains this recital: “The only property in which the said Smith holds any beneficial interest or ownership whatever by reason of said declaration and certificates consists of oil and gas leases on real estate in the State of Texas. ’ ’ Other recitals are set forth in the agreed statement of facts, and the declaration of trust is made an exhibit to the agreed statement.
The county court sustained the assessment, and the circuit court, on appeal, entered a judgment setting aside and vacating the same, from which judgment Greene County prosecutes this appeal.
1. The instrument under review, designated as a “Declaration of Trust,” is unique, but the beneficiaries under it are not stockholders in any corporation or joint stock company within the meaning of any of the provisions of chapter 38 of Crawford & Moses’ Digest. The business arrangement set forth in the instrument between the beneficiaries and the trustees was one by which the trustees were to have the legal title to, and the sole right of management of, certain oil and gas leases on lands in the State of Texas, which the beneficiaries were to furnish the money to buy. These leases, when purchased, were to be held, developed, and otherwise managed by the trustees for the benefit of those who had invested their money therein. It is manifest, when the language of the trust instrument is considered as a whole, that it was not the purpose of the trustees or the beneficiaries to create anything like a joint stock corporation or company, or other artificial entity separate and apart from the real owners.
We conclude, therefore, that the individual interest or share of each beneficiary in the estate created by the declaration of trust, as evidenced by the certificates issued, is not subject to taxation under section 9853 of Crawford & Moses’ Digest. See Hoadley v. County Commissioners, 150 Mass. 519; Cropper v. Malley, 249 U. S. 223.
Section 9853,' supra, provides: “All property, whether real or personal, in this ptato, and all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise, of persons residing therein, etc. * * * shall be subject to taxation.” The words “or otherwise,” as used in that section under the rnle of ejusdem eneris, refer to the same class to which the specific words preceding’ belong. Hempstead County v. Harkness, 73 Ark. 600; C., R. I. & P. Ry. Co. v. State, 95 Ark 114-116.
2. The estate in which the appellee, under the trust declaration, owns an equitable interest is real estate situated in the State of Texas and is, therefore, not taxable in this State. Section 9792 of Crawford & Moses’ Digest provides: “The term ‘real property and lands,’ wherever used in this act, shall be held to mean and include not only the land itself, whether laid out in town lots or otherwise, with all things therein contained, but also all buildings, structures and improvements, and other fixtures of whatever kind thereon, and all rights and privileges belonging or in anywise appertaining thereto.” For the purpose of taxation, a lease on land in Texas for oil and gas production is real property and not subject to taxation in this State. See Union Compress Co. v. State, 64 Ark. 136; Consolidated Coal Co. v. Baker, 12 L. R. A. (Ill.) 247.
The judgment of the circuit court is therefore correct, and it is affirmed. | [
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McCulloch, C. J.
The facts in this case are fully recited in the opinion of this court on a former appeal (Interstate Business Men’s Acc. Assn. v. Sanderson, 144 Ark. 271, 222 S. W. 51). The evidence adduced at the two trials is not materially different. It is an action to recover on an insurance policy “against loss of time by disease not due to accidental injury. ’ ’ There are two clauses in the policy, one provides insurance in case of disability at $50 per week for not exceeding twenty-nine weeks “in the event that the disease shall compel the insured to remain continuously and strictly within the house for a period of exceeding two full weeks and be under the constant treatment of a regular physician; ’ ’ the other clause provides insurance of $15 for the first week and $20 per week for eight succeeding weeks “in the event the disease shall compel the insured to refrain from performing every act of business and be under the constant treatment of a regular physician.” Appellee sued for the maximum amount, allowed- under the second clause of the policy ($175) and for the sum of $1,250, being for twenty-five weeks under the first clause of the policy. There was a recovery for the full amount.
The principal contention on the present appeal is that the evidence is not sufficient to warrant the recovery under the first clause, in that it does not show that appellant was confined within the house as specified in the policy. We decided on the former appeal that the evidence was legally sufficient to warrant a submission of the issue to the jury, and, as 'before stated, the evidence is not materially different as adduced in the two separate trials. Appellant admitted liability for the maximum amount under the second clause of the policy, but the admission was based upon appellee’s illness after he went to Texas. This is the same period which appellee claims confinement within the house, and for which the jury allowed the full amount sued for under the confinement clause of the policy.
On the last trial of the cause the jury also allowed the maximum amount recoverable under the second or nonconfinement clause, and it is now insisted that the testimony is not legally sufficient to support the finding that appellee was compelled by illness “to refrain from performing every act of business” prior to the time he went to Texas. Of course, appellee could not recover under the two separate clauses for the same period of. time, as it is obvious from the language of the policy that liability under the two clauses should not cover the same period. After a careful consideration, we have reached the conclusion that appellant is correct in its contention that the evidence is not sufficient to show that appellee ’s disease compelled him to refrain from performing every act of business. The evidence shows that he was seriously ill during the period mentioned before he went to Texas, but that he went to his place of business nearly every day and remained there nearly the whole of the business hours and performed the usual duties of his occupation. It is true that this was done under adverse circumstances, as appellee was seriously ill at the time. But the evidence establishes the fact beyond question that appellee’s disability at that time was partial and not total, and the policy does not insure against partial disability.
Error of the court is assigned in permitting appel-lee to testify concerning the tender to him by appellant of a check drawn for the sum' of $200 in payment of the. claim. The ground of objection is that the check was sent in the nature of a compromise, and for that reason, under well settled rules of evidence, the testimony was incompetent. We are of the opinion that the testimony was not competent, but we think it was not prejudicial under the peculiar circumstances of this trial. Appellant in the pleadings admitted liability in the sum of $175 under the second clause of the policy for appellee’s illness during the period-of his stay in Texas. After the proof was sent in, appellant mailed a check to appellee for $200, accompanied by a letter which failed to say anything about a compromise. Other writing introduced in evidence shows that the check was made out for $200 through mistake, as it was intended only to cover the maximum under that clause of the policy, but the mistake of making the check for $200 instead of $175 arose by reason of the fact that appellee held another policy under which the maximum was two hundred dollars. It is clear, therefore, from an inspection of all the papers introduced that appellant did not offer the $200 as a payment in part of an amount in excess of the maximum amount allowable under the nonconfinment clause, and that the jury could not have accepted this as an admission of liability for a greater amount than the maximum under the nonconfinement clause. The error of the court in allowing this testimony was therefore not prejudicial.
The objection now urged against instruction number three given by the court at the instance of appellee should have been specifically pointed out at the time the instruction was offered, but it appears that there was only a general, objection, which is insufficient to raise the question now presented.
It follows that the judgment must be affirmed as to the -amount of $1,250 recovered under the first clause of the policy, but tbe judgment for tbe additional amount of $175 under tbe second clause must be reversed, and, as tbe testimony is fully developed, it is necessary to remand for a new trial. ' Tbis reduction of the judgment in favor of tbe appellee is less than be sued for, and be is therefore not entitled to recover tbe penalty and attorney’s fee, and tbe judgment for penalty and attorney’s fee is also reversed. | [
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Smith, J.
On and prior to the 7th day of March, 19191, Jeff Hines was in the employ of the appellant express company in the city of Texarkana as a driver, and delivered the perishable express, which included consignments of flowers. Peter W. Mackley was a florist in that city, and his wife worked in his place of business. On the afternoon of March 7 a shipment of flowers from Neosho, Missouri, was delivered by Hines to the floral shop. Mackley was absent at the time, and his wife was in charge. The flowers were in a damaged condition, and Mrs. Mackley asked when they had been received, and Hines answered by giving the number of a train on which they had been shipped. Mrs. Mackley asked Hines why he wanted to tell a lie about the flowers, as the train on which he said they had arrived did not pass through Neosho. While the controversy was going on, Mrs. Mackley telephoned the agent of the express company, who sent his subagent, one Stuckler, over to the floral company, and, about the time Stuckler arrived, Mackley, who had also been called by his wife, came into the shop, and Mackley and Stuckler agreed on an adjustment of the damage to the flowers by reason of the delay in the delivery thereof. In the meantime Hines left the premises of the floral company in the course of his business without having taken the receipt of the floral company for the flowers and without having collected the charges on the express.
On the next afternoon Hines returned to the floral company for the purpose of collecting the charges on the shipment and of taking the receipt of the floral company therefor. Mackley walked to the front of the store to sign the receipt in the hook of the express company provided for that purpose and to pay the charges on the shipment of the previous day. There was nothing about signing the book or paying the charges over which Mackley and Hines could disagree or did disagree. The signing of the book was a perfunctory act which Mackley was performing when the trouble arose which forms the basis of this litigation. Mackley had written the words “Peter W. Mack” without having quite finished the “k,” whenHines referred to the dispute with Mrs. Mackley on the day before. Mrs. Mackley and her friend, a Miss Van Treese, were seated in the rear of the shop, and heard the word “apologize”, spoken in a tone loud enough to attract their attention. Upon looking up Mrs. Mackley saw that her husband's hands were in the air, and that Hines had a pistol pointed in her husband’s face. She started at once to her husband’s assistance, and in going to him passed a drawer in which her husband kept a pistol. She picked the pistol up and continued on her way. She testified that she had never shot a pistol and did not intend to shoot Hines, but that it was her intention to give her husband the pistol so that he could defend himself, but before she could do so Hines shot and killed Mackley and shot and seriously injured her.
Two suits were brought against Hines and the express company, one being by Mrs. Mackley in her own right, and the other by her as administratrix of her husband’s estate. There was a recovery in each case; but upon appeal here the cases have been briefed together.
Hines gave a different version of the shooting, and claims to have fired in self-defense. But we must, of course, accept Mrs. Mackley’s version as true in view of the jury’s verdict. Hines was tried and given a long term sentence in the penitentiary for the shooting.
Hines testified that Stuckler offered to go to the floral company and collect for the shipment and obtain the receipt; but he declined the service, No attempt was made to show, however, that any representative of the express company knew that Hines contemplated renewing the difficulty of the day before. Hines testified that he revolved in his mind, after he went to bed that night, what Mrs. Mackley had said to him, and he determined to demand an apology from her husband. With this thought in mind he borrowed a pistol from a friend. The pistol had only one cartridge — an old one — in the cylinder, so Hines bought new cartridges and loaded the pistol. Hines had no duties which required him to go armed, and he had only armed himself the day of the shooting; and there is no contention that any other employee of the express company was advised of that fact.
In the preparation of the respective briefs counsel have, through their research, collected many cases dealing with the liability of the master for the unauthorized tort of the servant committed during the course of his employment. It would be a work of supererogation to attempt to review these cases. The subject is one which has frequently engaged the attention of this court, and the law on the subject is thoroughly well settled. A very recent case is that of Wells Fargo & Company Express v. Alexander, 146 Ark. 104.
The Alexander case, supra, collects a number of our cases on the subject. In addition to the cases cited in the Alexander case, supra, see also other cases more or less recent as follows: Healey v. Cockrill, 133 Ark. 327; C., R. I. & P. Ry. v. Womble, 131 Ark. 411; C., R. I. & P. Ry. Co. v. Gage, 136 Ark. 123; St. L., I. M. & S. Ry. Co. v. Lavensduskey, 87 Ark. 540; St. L. & San Francisco R. Co. v. Van Zant, 101 Ark. 586; St. L., I. M. & S. Ry. Co. v. Robertson, 103 Ark. 361; Arlington Hotel Co. v. Tanner, 111 Ark. 337; E. L. Bruce Co. v. Yax, 135 Ark. 480; St. L., I. M. & S. Ry. Co. v. Robinson, 95 Ark. 39; Mayfield v. St. L., I. M. & S. Ry. Co., 97 Ark. 24; St. L. & S. F. R. Co. v. Rie, 110 Ark. 495; Pine Bluff & A. R. Ry. Co. v. Washington, 116 Ark. 179; St. L., I. M. & S. Ry. Co. v. Tukey, 119 Ark. 28.
The doctrine of all these oases is that the test of the master’s liability is, not whether a given act is done daring the existence of the servant’s employment, but whether it was committed in the prosecution of the master’s business.
In the case of St. L., I. M. & S. Ry. Co. v. Grant, 75 Ark. 579, we said that if “the agent was acting for his principal, and in pursuance of his real or apparent agency, at the time the tort was committed, then it may be said that he was acting in the course of his employment, and the principal will be liable for such a tort; whether authorized or not.”
Appellee cites and relies on the case of Bryeans v. Chicago Mill & Lbr. Co., 132 Ark. 282. In the second appeal of this case (Chicago Mill & Lhr. Co. v. Bryeans, 137 Ark. 341), an application of the law of the case, as announced in the first opinion, was made to the facts as developed at the second trial. It was the duty of the servant who committed the tort in that case to prevent nonemployees from interfering with employees in the discharge of their employment, and the shooting in that case grew out of the act of the servant in discharging that duty. The defense was made by the master in that case that the killing grew out of a private quarrel. We there said:
“In one of the latest cases upon this subject we said: 'No hard and fast rule has been or can be prescribed by which to determine what acts are within the scope of a servant’s employment. Each case is governed by its own particular facts, under certain general rules of law.’ Cooley says: ‘Where a servant acts without reference to the service for which he is employed, and not for the purpose of performing the work of the employer, but to effect some independent purpose of his own, the master is not responsible for either the acts or omissions of the servant.’ Cooley on Torts, 1032; 26 Cyc. 1536. Conversely, when the servant acts with reference to the services for which he is employed and for the purpose of performing the work of his employer, and not for any independent purpose of bis own, but purely for tbe benefit of bis master, it is generally beld, under sucb circumstances, tbat tbe acts so done are witbin tbe scope of tbe servant’s employment.” .
We can not make tbe law of tbe subject plainer. Tbe difficulty in tbat case, as in tbis, and in most cases of tbis character, is in determining whether or not tbe servant has stepped aside from tbe employment; whether be was undertaking to discharge tbe duties of bis employment, however erroneous or mistaken his conception of bis duties may have been; or whether be is pursuing bis own plans and purposes which have no relation to bis employment?
Applying tbis test, we think there is no liability in tbis case. Tbe matter over which the difficulty arose bad been settled twenty-four hours before. Tbe company bad admitted its liability, and bad agreed to discharge tbat liability. Tbe settlement was mutually satisfactory, and was final. There would have been no trouble but for tbe fact tbat Hines thought an apology was due him for what Mrs. Mackley bad said tbe day before. His demand for an apology was made during bis employment; but it was no part of bis employment. It was in no manner necessary for him to obtain this apology to discharge bis employment, and bis act in demanding it must be attributed to a feeling of personal resentment, or injured pride, or some other emotion impelling him to rashness, of which tbe master was not advised and for which tbe master was not responsible, because it was a matter in which the master bad no concern.
Tbe judgment of tbe court below must therefore be reversed, and the cases will be dismissed. | [
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McCulloch, C. J.
Appellee is the widow of Don P. Beard, deceased, who was the owner of a tract of farm land in Mississippi County, and the only question involved in the present controversy is whether the decedent held the lands as a new acquisition by purchase, so as to give his widow a title in fee to her dower interest, or as an ancestral estate, so as to limit the widow’s dower interest to an estate for life.
There is no substantial dispute concerning the material facts of the case. The lands in question were originally owned by appellant, "W. A. Beard, the father of Don P. Beard, and the former conveyed the lands to the latter by deed of conveyance dated June 16, 1917, reciting a consideration of “one dollar and other valuable considerations,” and also containing the following recital: “It is expressly understood that this deed is made subject to a deed of trust now on the lands conveyed herein, amounting to six thousand dollars, held by the Mississippi Vfdley Trust Company of St. Louis, Missouri, * * * and which this grantee, Don P. Beard, a'ssumes and agrees to pay.”
Coincident with the execution of the deed, W. A. Beard voluntarily executed to Don P. Beard a declaration in writing to the effect, that he, the said W. A. Beard, would “pay for the said Don P. Board to the Mississippi Valley Trust Company of St. Louis, Missouri, or its assigns, five, years after date of the certain deed of trust, at which said deed of trust becomes due, the sum of three thousand ($3,000) dollars to apply as against the indebtedness evidenced by said deed of trust, *. * * provided title, to said real estate is held by the said Don P. Beard, and provided, that said real estate is owned by the said Don P. Beard in person.” It appears from the testimony in the case that the mortgage debt to the Mississippi Valley Trust Companv did not fall due for five years, and before its maturity Don P. Beard died without having paid any of the debt.
There was oral testimony to the effect that the con-vevanee from W. A. Beard to his son was intended as a gift. But the deed of conveyance itself contained the recital of a consideration moving from the grantee to pay one-half of the mortgage debt which he assumed by the acceptance of the conveyance. The proof shows that the land was of value largely in excess of the mortgage debt, and it is undisputed that the father intended to make a gift to his son of the land at least to the extent of the value in excess of one-half of the mortgage debt. Bui. it is equally undisputed that the son obligated himself by the acceptance of the deed to pay one-half of the debt, and to this extent he received the title by purchase.
It has become the -settled rule in this State, as announced in the decisions of this court, that an estate can not, legally speaking, come partly by gift and partly by purchase, and that, “in order to constitute a gift from a parent to a child an ancestral estate, within the meaning of our statute, the conveyance must be made entirely in consideration of blood and without any consideration deemed valuable in law; and if such deed is executed partly for a valuable consideration, the estate acquired is a new acquisition.” Martin v. Martin, 98 Ark. 93; Hill v. Heard, 104 Ark. 23; McElwee v. McElwee, 142 Ark. 560; Earle v. Earle, 145 Ark. 559.
Counsel for appellant attempts to bring this case within the rule announced in Howard v. Grant, 107 Ark. 504, where the ancestor has become the equitable owner of land under a title bond, and the purchase price was paid by the personal representative after the death of the ancestor, and we held that the estate taken by the heirs was ancestral, notwithstanding that purchase price was thus paid. This case does not, however, fall within the rule announced in that case, for here there was an obligation on the part of the grantee to pay one-half of the mortgage debt in consideration of the conveyance. This imposed an enforceable obligation on him (Felker v. Rice, 110 Ark. 70; Walker v. Mathis, 128 Ark. 317), and constituted a valuable consideration for the conveyance. The fact that the consideration was inadequate or was only in part a consideration for the conveyance does not alter the rule that an estate acquired under such circumstances is a new acquisition. Nor does the fact that the grantee had not in fact paid the consideration affect the application of the rule, for, the obligation being a valid one, it could be enforced against his estate.
The chancery court was correct in holding that the estate of Don P. Beard in the land was a new acquisition, and that the widow was entitled to an estate in fee simple in the portion allotted to her as dower.
Affirmed. | [
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Humphreys, J.
This suit was commenced by “Curators of Central College” against appellee, on September 6, 1920, before L. L. Shemwell, a justice of the peace of Carpenter Township in Clay County, Arkansas, by filing with the justice the following instrument:
“$25.00. Doniphan, Mo., April 19, 1915.
“For the endowment of Central College, Fayette, Mo., in consideration of subscriptions by others to the same fund, I hereby promise to pay to the Curators of Central College the'sum of twenty-five ($25.00) dollars, in five equal installments, beginning September 1, 1915.
“L. E. Bird.”
“Curators of Central College” failed to appear and prosecute, and the justice of the peace dismissed the suit on the 24th day of September, 1920, from which judgment of dismissal an appeal was taken by “Curators of Central College” to the circuit court of said county.
The cause was submitted to the circuit court sitting as a jury upon the written instrument filed before the justice of the peace and the testimony of appellee, which was as follows:
“I signed the instrument of writing now shown me, and which was sued on in the justice of the peace court. I received no consideration whatever for the contract or agreement. I know that Central College is a school for the education of preachers. I do not know whether any other person or persons signed agreements similar to the one sued on. I never heard of such, and do not know whether any other person or persons paid such subscriptions, if made. I never talked with any one else about the subscription. ’ ’
The court, adjudged that “Curators of Central College” take nothing by reason of the action. From that judgment, “Curators of Central College” have prosecuted an appeal to this court.
Appellee makes the point that suit has not been brought against him by any proper party. It is not al leged that “Curators of Central College” is a corporation, nor are the names of the Curators of Central College set out. It goes without saying that suits must he instituted or defended by persons, either natural or artificial. “Curators of Central College” is not a designation or description of any person either natural or artificial. There being no party plaintiff or appellant, there is no cause of action or appeal therefrom pending in this court. The appeal must therefore be dismissed. | [
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Wood, J.
This suit was instituted by the appellee against the appellant to recover the possession of a certain automobile which is described in the complaint and affidavit for replevin. The appellee alleged that it was the owner and entitled to the immediate possession of the automobile. The complaint and the affidavit contained the usual allegations in replevin. The appellant answered, denying all the material allegations of the complaint, and set up that he purchased the car of the ap-pellee for the sum of $1,650; that he made tender of payment as contemplated by the contract, and that the ap-pellee demanded of appellant $100 in excess of the contract price; that it was the understanding that, if the Buick Automobile Company raised the factory price of the car in controversy $100 before the same could be delivered to the appellant, then the appellant was to pay this .additional sum, but the appellant alleged that the ap-pellee procured the car from the factory at the market 'price existing on the day of appellant’s purchase.
J. R. Lane testified that he was the manager of the appellee on March 29, 1920. He exhibited the contract between appellant and the appellee under which the car was purchased, which contained, among .others, the following provision: “In case this car costs the Jonesboro Motor Company $100more, J. M. Berger will pay same.” "Witness testified: “We signed up this contract, and I told him that it would cost more money; that the factory would raise the price the first of April, and he said that would be all right, and he signed up the contract like I wrote it. He saw me write this (the above provision) in the contract.” Witness further testified substantially that the above provision meant in case the car cost ap- pellee $100 more to get the ear to Joneboro, which witness said it did, as follows: He and three others went to Flint, Michigan, and drove the cars from there to Lima, Ohio, a distance of two hundred miles, and witness paid the expenses, which made it cost appellee more than $100 to get the car to Jonesboro. Witness had in mind in entering into the contract two prices — the delivered price and the cost to witness. The delivered price was the price to the man who bought. The cost provision in the contract meant that the delivered price would have been less than $1,700. The testimony of witness showed that the appellant had complied with the contract except that appellant was only willing to pay $1,650 for the car at Jonesboro, whereas the appellee was unwilling to accept less than $1,750.
Another witness testified that he heard the discussion between Lane and the appellant at the time of the execution of the contract regarding the $100, and that the agreement between them was that, if the car cost the appellee $100 more than the factory price, appellant was to pay that additional amount.
The appellant testified in substance that the provision in the contract above quoted meant the advanced price of the car, and the price was supposed to advance about April 1. Lane told appellant that there would be an advance at that time. He said he had several cars bought at the old price, and, if this car cost him more money, appellant would have to pay it. There was nothing said at the time the deal was made about some fellows being- sent up to Flint to drive the car back. Witness told Lane that he did not want his car driven at all. Witness wanted the car shipped from the factory to Jonesboro. When the car arrived, Lane did not say a word with reference to the increase in the factory price. When witness went to settle with Lane, Lane said witness would have to pay him $100 more. Witness asked Lane if it cost him more, and he said, “No;” that he got it at the old price, but it cost him $100 more on the car to get it to Jonesboro, and he was charging appellant that much more. Witness told Lane that such was not the contract. Witness bought the car f. o. b. Jonesboro.
The above are substantially the facts upon which the appellant asked the court to instruct the jury to return a verdict in his favor, which the court refused. The court, instead, instructed the jury in effect that, if the provision in the contract was intended by the parties to cover either an advance in the cost of the car or expense incurred by the appellee in procuring and delivering the car, they should return a verdict in favor of the appellee and fix the value of the car at $1,750. On the other hand, if the parties intended the above provision to cover only the advance, if any, in the price of the car, then the jury would fix the value of the car at $1,650. The jury returned a verdict in favor of the appellee, fixing the value of the car at $1,750, and judgment was rendered in favor of appellee, from which is this appeal.
The court erred in refusing to instruct the jury to return a verdict in favor of the appellant. The undisputed evidence showed that the price of the automobile was f. o. b. Jonesboro; that it was the custom of automobile factories to quote the price of their automobiles f. o. b. city of purchase. The testimony of Lane, the manager of the appellee at Jonesboro, as well as the testimony of the appellant, shows that when this contract was entered into the parties had in mind that there would be an advance in the factory price of cars about the first of April. This was clearly the meaning of Lane’s language when he said, “I told him that it would cost more money — that the factory would raise the price the first of April.” Berger also said, “Russell told me there would be an advance in the price of the car the first of April. He said he had several cars bought at the old price, and, if this car cost him more money, I would have to pay it. ’ ’
When the provision of the contract quoted is construed in the light of this undisputed evidence of the intention of the parties, it is absolutely unambiguous, and the court erred in submitting it to the jury for construction, but should have construed it to mean that the appellant was to pay an additional $100 to the contract price of $1,650, in case the factory advanced the price to the appellee; that is, in the event appellee had to pay the factory $100 more, then the appellant should pay the advanced price to the extent of $100. The price of the car was fixed f. o. b. Jonesboro, and showed that the parties did not have in mind at the time the contract was entered into that there might be any increase in the cost of the car to appellee on account of transportation charges. The provision under review was clearly intended to cover the advance price of $100, which the parties contemplated at the time the appellee, might have to pay the factory. It was not intended to cover any additional cost or expense that appellee might have to incur in order to deliver the car f. o. b. Jonesboro.
“Where the terms of a written contract are unambiguous in the light of the undisputed evidence, it is the duty of the court to construe it.” Capitol Food Co. v. Mode & Clayton, 112 Ark. 165; Starnes v. Boyle, 101 Ark. 469, and other cases cited in 2 Crawford’s Digest, Contracts, § 81. '
Now, the undisputed evidence shows that the factory price of the car in controversy at the time of its purchase was $1,595 with war tax added. The factory did not advance the price, and the undisputed evidence shows that the appellee did not have to pay $100 more on account of the advance in factory price to it. On the contrary, Lane testified that the car cost him $1,650, counting in his profit. He added the $100 because it cost him more than that to get it to Jonesboro. For the error in refusing to give the appellant’s instruction No. 1, the judgment is reversed and the cause is dismissed. | [
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Smith, J.
The Texarkana Tire House, a Texas corporation, sued and recovered judgment against appellant for $329.82, the sales price of two solid tires 36x12. The verdict was returned under the direction of the court.
The testimony on the part of plaintiff showed an ordinary sale and a failure to pay; but, as the verdict was directed by the court, we must give to the testimony opposed to that action its highest probative value....
The testimony on appellant’s behalf was to the following effect. Appellant bought a truck from a dealer named Williamson, who guaranteed the tires thereon. The tires were manufactured by the Firestone Company, which had a branch office in Dallas, Texas. Appellant used the truck for a short time, when the tires began to crumble and gave way. Appellant reported the fact to Williamson, who took the matter up with a representative of the Firestone Company. An appointment was made to meet this representative at the office of appellee. Appellee was the distributing agent for the Firestone Company in the Texarkana territory. The representative of the Firestone Company examined the tires at ap-pellee’s office, saw they were defective, and stated that the rubber had been cooked too long, and directed a Mr. Villars, the assistant manager of appellee, who was present and saw the examination, to order a new pair of tires and to do so without Charge. According to appellant, he took no part in these negotiations. All the negotiations were between Williamson, Villars, and the Firestone Company’s reputed representative, and appellant supposed the investigation of the tires and the subsequent conversations in regard thereto all related to Williamson’s warranty, the existence of a breach of it, and the manner of making' the warranty good. Appellant did not order any new tires, none were ordered for him, and the whole transaction, as he understood it, was between Williamson, who had sold him the tires and had guaranteed them, and the agent of appellee and the representative of the Firestone Tire Company. Williamson fully corroborated appellant.
Appellant testified that the tires on the truck were 36x10, and after the Firestone Company’s representative gave orders to Villars to replace the tires without charge, appellant stated that he would prefer'tires '36x12, and asked if he could be allowed to pay the'difference in the cost and get a 12-inch • tire instead. ' This was assented to, and appellant understood lie would only be expected to pay the difference, amounting to $40, and that be has since been ready, and is now willing, to pay that difference. Later appellee notified appellant that the new tires had arrived. The truck was carried to appellee’s place of business, where the old tires were removed and the new tires were placed on the truck. Appellee took charge of the old tires, and has them yet, so far as appellant is advised. Nothing was said at the time about paying for the new tires, and appellant left the old ones with appel-lee, thinking they were no longer his property.
On the part of the appellee, testimony was offered to the effect that it was a mere selling agent for the Firestone Company, that it had no authority to guarantee tires, or to make guarantees good, on selling Firestone tires, and that it had paid for the tires purchased for appellant’s truck. Villars contradicted appellant and Williamson as to what was said and done when the tires were ordered; but we must, of course, assume, in view of the record in the case, that this conflict in the testimony would have been resolved by the jury in appellant’s favor.
The testimony did not show the authority of the reputed representative of the Firestone Company to make the adjustment claimed, and Villars disclaimed any authority on his part to bind appellee to any agreement in regard to replacing tires; and the action of the court in directing the verdict is defended because of the absence of this showing of authority on the part of Villars, or the reputed representative of the Firestone Company.
We think a case was made for the jury. It will be observed that this is not a suit against appellee wherein it is sought to charge appellee with. responsibility and liability for the act of an agent. Appellee brought the suit, and, to recover, must show an agreement, either express or implied, oil appellant’s part to pay for the tires.
Under the testimony set Out above, the jury might have found that the sale was to Williamson, and not to appellant, and that appellant’s only obligation was to pay the difference between the price of a ten and a twelve- inch tire. Moreover, the jury might have found, if the testimony set out above had been accepted as true, that Villars, under the direction of the reputed representative of the Firestone Company, had agreed to replace the tires without charge in fulfillment of Williamson’s guaranty, and that appellant accepted the tires under this belief. .Appellant might not have been willing to accept another pair of Firestone tires if he had known he would be expected to pay for them.
Under this view of the testimony, it is not a question of the authority either of Villars to bind appellee or of the authority of the reputed representative of the Firestone Company tb bind that company. Villars was in fact an agent of appellee and professedly was acting for it. Appellee apparently ratified what Villars did, and, so far as appellant knew, appellee had done so. If appel-lee was unwilling to-be bound by the act of its own agent, or to rely upon its agent’s statement as to what the trade was, then some other agent or representative of appellee higher in authority than Villars should have confirmed the terms of the contract before apparently complying with it. Section 1723 of Mechem on Agency (2 ed.).
Both these defenses should have been submitted to the jury with directions to find for appellant if either defense was established by the testimony.
The judgment, is therefore reversed, and the cause remanded for a new trial. | [
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Smith, J.
Appellant, wbo was tbe plaintiff below, is a landowner in Road Improvement District No. 1 of Polk County. This district was organized on tbe petition of tbe landowners under act 338 of tbe Acts of 1915, page 1400. Tbis suit was brought to enjoin tbe commissioners and tbe contractor from proceeding with tbe construction of tbe road along tbe route selected by them. Upon final bearing a temporary restraining order wbieb bad been issued was dissolved and tbe suit dismissed for want of equity; and tbis appeal is from tbat decree.
Tbe proposed improvement extends north and south almost entirely across Polk County for a distance of fifty miles, and throughout its course practically parallels tbe Kansas City Southern Railroad. Tbe petition for the improvement gave the termini of tbe road and named tbe various towns and villages through which tbe proposed improvement would run. The prayer of tbe petition was granted by the county court, and tbe construction of tbe proposed improvement was ordered.
It was alleged, and shown by tbe testimony, that tbe public road between Wickes and Grannis crosses tbe Kansas City Southern Railroad to tbe west at a point, approximately one mile south of Wickes, and runs in a southerly direction along the railroad to a point at Gran-nis, where it again crosses tbe railroad to tbe east. Tbe distance between tbe two points is estimated to be three and one-balf miles. Tbe commissioners, on tbe recommendation of tbe engineer, selected a new route for this three and one-balf miles along tbe east side of tbe rail-roád. Tbe purpose of tbis change was to eliminate two grade crossings of the railroad and to lesson the cost of construction. The testimony on the question of decreased cost is conflicting; hut the court found that there would be a saving of nine thousand dollars; and we are unable to say that that finding is against the preponderance of the testimony.
The proposed change shifts the road to the opposite side of the railroad from a quarter to a half mile for a distance of three and one-half miles; and it is admitted that there is no public road along the route selected by the commissioners, and that no order of the county court has ever been made opening up this new road and authorizing this change. The only public road between the two points between which the change was made runs along the west side of the railroad.
The petition for the district, after defining the general course of the road,, contains the following recital: “Your petitioners agree to any changes that may here-' after be made by the court or the commissioners of the district in the line of said road, provided that the general purpose of securing an improved highway between the termini mentioned is retained.”
Appellant was among the property owners who signed the petition.
The court below made the following finding of fact: “That the entire road, when completed, extends north and south along the line of the Kansas City Southern Railroad; that the old roadbed, along which this improvement is being made, passes through a rough, hilly country for much of the way, and the old roadbed is very crooked, and to remain in the old road would be impractical, and of more expense, and there could not be constructed as good road by so doing, and that some changes in actual location is necessary and for the better, and that the change complained of is a change that should be made, and to do so is a saving instead of an expense. ’ ’
In defense of this finding and the decree thereon, it is insisted that the act under which the district was created conferred the authority to make such a change as was here made, and that if this is not true appellant is estopped from raising the question, inasmuch as he had consented in advance to changes in the route of the road by signing the petition.
The decree in this cause must be reversed. In the first place, no order of the county court was obtained laying out the three and one-half miles of new road. We have many times said that new roads could not be established and the burden of their maintenance imposed on the county except by the order of the county court. It is true we have also held that established public roads might be improved whether the county court had so ordered or not. And these holdings are not in conflict. In improving an established road the burdens of the county as a governmental unit are not increased. Those who assume this burden become the allies of the county court, as was said bv Judge Battle in the case of Parkview Land Co. v. Road Imp. Dist. No. 1, 92 Ark. 93.
Here there is a laying out of an entirely new road for a distance of three and one-half miles; and that can be done only when the county court has so ordered. Rd. Imp. Dist. No. 1 v. Glover, 89 Ark. 513; Sallee v. Dalton, 138 Ark. 549.
We do not mean to hold that the county court could make an order in the instant case changing the road. We do hold that the change could not be made without the order of the county court; but the proposed change can not be made even with the approval of the county court because the property owners have not thereunto consented.
The case of Pritchett v. Road Imp. Dist. No. 3 of Poinsett County, 142 Ark. 509, is decisive of the question stated. We have here a proposed change of route, and not a question of laterals or extensions, and the change proposed is one which has not received the precedent approval of the county court. In the Pritchett case, supra, the approval of the court had been previously obtained ; but, notwithstanding that fact, in holding against the authority of the commissioners to change the route we said:
“The further question is then presented whether or not the changes in the route are in conformity with the original plans or whether they constitute an abandonment of the original route and a change to a wholly different route. There was, as before stated, a change in the route by shifting it a distance of one-fourth of a mile, running for a distance of one mile. This necessarily constituted the adoption of a different route, and not merely a slight change in conformity with the original route. It is conceded that this change was made for the purpose of benefiting appellants’ lands, which, according to the judgment of the county court, would not have been benefited by the original improvement. This contention of counsel necessarily implies a substantial change in the route. It is, in other words, a substitution of an entirely new route for the one specified in the original plans upon which the petition of property owners was based. That is precisely what we held in Rayder v. Warrick, supra, could not be done. The laterals contemplated by the altered plans were authorized according to the decision in Harris v. Wallace, supra, but in testing the validity of the adoption of the new plans we must take them as a whole, for we are not at liberty in this proceeding to discard that which is beyond the statutory authority, leaving intact that part which is within the limits of such authority.” See, also, Phillips v. Tyronza Imp. Dist., 145 Ark. 487.
The change here proposed is greater than that which we held could not be made in the Pritchett case, supra. The proceeding in that case, as in this, was under act 338, Acts 1915, page 1400.
We think appellant is not estopped by the fact he signed the petition from questioning the right of the commissioners to make the proposed change in the route.
The paragraph in the petition quoted above consenting to change of route is in the identical language employed in the case of Rayder v. Warrick, 133 Ark. 491. In that case the party who sought to enjoin the change of route had not signed the petition. The objecting landowner here did sign the petition. But that fact is not of controlling importance.
The petition in any event must be construed to conform to the statute under which the parties proceeded. The right to proceed is conferred by the statute, and the authority of those who act for the petitioners is derived from the statute. As was said in Rayder v. Warrick, supra, the petitioners have no power to legislate or to change the meaning of a provision of the statute; and we must hold that the language of the petition did not confer a power in excess of that granted by the statute.
The change proposed is not one of those minor changes which perfect the general plan, and, as no authority, for the change exists, the injunction prayed for should have been granted.
The decree will, therefore, be reversed, and the cause, remanded with directions to enter a decree in accordance with this opinion. | [
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Wood, J.
The appellee, a mercantile firm in the city of Little Rock, filed an affidavit for a general attachment in the Montgomery Circuit Court against the appellants, alleging that Summit and Fair were partners and that the firm of Summit & Fair became indebted to the ap-pellee for merchandise; that Summit sold his interest in the firm to Dillard; that Dillard & Fair sold their entire stock of goods and merchandise to Byrd Carter and James Tucker; that Carter & Tucker sold their entire stock of goods and merchandise to Ira Warren. The grounds alleged for the attachment were that the various sales made by the above parties were in violation of the “Bulk Sales Law,” act 88 of the Acts of 1913; that the last purchaser, Ira Warren, was disposing of his property with an intent to cheat, hinder and delay his creditors. An order of general attachment was issued and levied, January 20, 1919, on a stock of merchandise which was then in the possession of Warren. Various other creditors of the appellants intervened and set up claims against the appellants. The appellants demurred to the complaint on the ground that the court had no jurisdiction, which demurrer was overruled.
By consent of parties, the cause was transferred to equity. The appellants answered, admitting the transfers of the stock of merchandise as alleged in the complaint, but averred that such transfers were all made in good faith as to creditors and without any intent to cheat, hinder or delay them; that it was the understanding and agreement that the vendee in each sale was to assume the indebtedness of the vendor;.that the appellee had ratified these sales and was estopped to complain of any failure to comply with the Bulk Sales Law; that the attachment was wrongfully issued and levied upon the property; that the building which contained the attached stock of mrehandise was locked and the same was burned, and the stock of merchandise under attachment was totally destroyed, through, the negligence of the sheriff having the same in charge, who was acting under the direction of the appellee’s attorney; that the value of the merchandise was $3,694; that, before the fire and after the cause was transferred to equity, an agreement was reached between the appellants and the appellee whereby a compromise and settlement was had of the controversy, which was binding upon the appellee, but which it failed to carry out, which contributed to the loss sustained by the appellants in the destruction of the property by fire. The appellants made their answer a cross action against the appellee for damages in the loss of the stock of goods.
On the 4th of November, 1919, the appellee filed another and separate affidavit for general attachment against appellant Summit, alleging that, in addition to what they had already alleged in the former general affidavit, Summit was indebted to the appellee in the sum of $578.50, and that he was a nonresident, and had departed from the State with the intent to defraud his creditors; that he had removed and was about to remove a material part of his property out of the State and had disposed of his property with the fraudulent intent to cheat, hinder and delay his creditors. This affidavit was filed as a part of the original action, and an attachment was issued and levied on some mules, which were released from the attachment on a bond filed in the chancery court by the appellant Summit.
On January 20,1920, Summit demurred to the affidavit or complaint for attachment against him on the ground that “it was upon a different and separate demand ; that the plaintiff had • a complete and adequate remedy at law, and that the court was without jurisdiction. ’ ’ The demurrer was overruled.
The appellee filed a reply to the answer of the appellants, denying the allegations thereof. The trial court found that the sales were in violation of the Bulk Sales Law, and for that reason sustained the attachment ; that it was not shown by a preponderance of the evidence that the loss of the stock of goods by fire was caused through the negligence of the appellee; that there was no settlement or compromise of the dispute between the appellants and the appellee; that the separate attachment against W. F. Summit should be sustained. The court thereupon entered a personal decree against the appellants in certain amounts, the correctness of which amounts is not in controversy here., From that decree is this appeal.
1. The appellants contend first that the court erred in holding that there was no settlement or compromise of the matters in controversy between the appellants and the appellee. On this issue the testimony of several witnesses on behalf of the appellants tended to prove the following: The appellants after this action was begun had a contract with one Mr. Eaves, who was one of the credit men and agents of the appellee, to the effect that appellants were to give their notes with security for enough to settle the claims of all creditors; that the appellants had the goods sold to Pendergrass and Lackey, who had agreed to pay cash for the goods at the invoice price ($3,289). Eaves was to come within two weeks after the agreement was entered into to turn over the goods to appellants. Eaves set three or four dates to be at “Simms,” the place where the goods were located, but he never came, and appellants were, therefore, not in a position to deliver the goods. The contract was in writing. It was left in possession of the attorney of the appellants and was lost. The reason the contract was not carried out was because Eaves did not come as promised.
The testimony of Eaves on behalf of the appellee was to the effect that, if the appellants would make a note or notes with eight per cent, interest satisfactory to ap-pellee, it would withdraw the suit. The witness promised the appellants that he would be back in two weeks and tried several times to get there, but could not get a conveyance on account of the bad roads. There was no written contract. Witness put down on a piece of paper what appellants must do. Nothing was signed.
“The compromise of a disputed claim furnishes sufficient consideration to uphold the terms of a settlement or compromise, even though the claim he without merit. ’ ’ Gardner v. Ward, 99 Ark. 588; Batchfield v. Laconia Levee Dist., 74 Ark. 270; Lee v. Swilling, 68 Ark. 82.
But the testimony above set forth does not show either a disputed claim or a settlement. The appellants concede that they owed the amount claimed by the ap-pellee. There was no compromise agreement by which the appellants were to pay and the appellee was to accept less than the appellants owed. The most that can be said of the testimony is that it shows that the appellants and the appellee entered into an agreement by which a settlement was to be made in the future in a certain manner depending upon certain contingencies, none of which occurred. A memorandum of the tentative arrangement for a settlement was made, but not signed by the parties. This tentative arrangement was not based upon any consideration and did not constitute a completed and enforceable contract for a settlement.
The testimony tended to prove that the reason the contract for the settlement was not completed and the settlement made in accordance with the contemplated plan was because appellee’s agent was unable, on account of bad roads, to return to Simms at the time promised. But this was wholly immaterial, because there was no liability against the appellee for failure to comply with the terms of the tentative negotiations for a settlement, which did not in law constitute a complete and enforceable contract.
Even if the above testimony were sufficient to establish an enforceable contract for a settlement and that the appellee breached the same, there is no testimony tending to prove that such breach was the proximate cause of any damage to the appellants. Whatever may have been the damage to appellants by reason of the destruction of the stock of goods by fire, there is no testimony tending to prove that the failure of the appellee-’s agent to return to Simms as promised in any manner caused or contributed directly to produce the fire which destroyed the goods. These goods at the time of their destruction were in custodia legis. Being in the hands of the sheriff, the appellee was not liable -for their destruction by fire unless it directly caused the same, or unless the same was caused by the negligence of the sheriff to which the appellee directly contributed.'
2. This brings us to a consideration of whether or not there was any negligence on the part of the sheriff in failing to care for the attached property, causing the loss of same, for which the appellee is responsible. The sheriff testified that he took possession of the store under the attachment, locked the same, and asked Judge I. L. Awtrey, the attorney of the appellee, whether he wished the witness to bring the goods to Mount Ida, and the attorney replied, “Just fasten them up in the house and leave them there.” Witness told the attorney for the appellee that if they were left over there witness would not be responsible for them; that they would be left there at the appellee’s risk. The goods were burned. Witness tried to get insurance, but failed, and advised the attorney of appelllee about it, and the attorney said he would get insurance, and later said that he had done so.
I. L. Awtrey, the attorney for appellee, testified that the sheriff asked him if it would be necessary to bring the goods to Mount Ida, and witness told the sheriff that he did not think it would be necessary to move the goods before court convened; that it was only a few days before court would convene, and that the court would then direct what to do with the goods. The sheriff never asked witness anything about moving the goods after court convened. Witness never told the sheriff that he had insurance on the goods. Witness also stated that he had no recollection that the sheriff said to witness that he would not be responsible for the goods if they were left at Simms, and that they would be left there at the risk of the appellee. On the contrary, witness stated that if the sheriff had made such a statement to witness, witness would have told him that the law made it his duty to hold attached property subject to the orders of the court.
The burden was upon the appellants to show that the destruction of the goods by fire was through the negligence of the appellee. The chancellor found that the above testimony was not sufficient to show by a preponderance of the evidence that the appellee took charge of the goods, or that its attorney directed the sheriff to leave the goods in the storehouse at Simms at the risk of the appellee. The finding of the chancellor is correct. A preponderance of the evidence does not prove that the appellee’s attorney undertook to direct the sheriff as to what disposition he should make of the goods in order for their safe-keeping and preservation after the sheriff had taken possession of the same under the attachment.
3. Did the court err in sustaining the separate attachment against W. F. Summit? The original action was brought against Summit and the other appellants at law by filing an affidavit or complaint for attachment, in which the sole ground alleged for the attachment was the violation of the Bulk Sales Law. Summit and the other appellants demurred to the complaint on the ground that, according to the allegations of the complaint under the Bulk Sales Act, the appellants were receivers, and that the chancery court had no jurisdiction. The court overruled the demurrer. The appellants did not stand on their demurrer, but on the contrary moved the court to transfer the cause to the chancery court, which, with the consent of the appellee, was done.
After the cause was transferred to the chancery court, Summit and the other appellants proceeded to answer the complaint. Later the appellee filed an affidavit for attachment against the appellant Summit, alleging that same was in addition to what had already been alleged by it in the original complaint. The appellant Summit demurred to this affidavit on the ground, among others, that this affidavit was a misjoinder of the cause of action stated therein with the cause of action stated in the original complaint; that the appellee’s remedy on this affidavit was complete at law and that the chancery court was without jurisdiction. The court overruled this demurrer.
The court erred in taking jurisdiction of the separate cause of action against Summit. The separate affidavit for attachment against him introduced a new and independent cause of action against Summit alone. It was grounded upon a different amount from that set forth in the original complaint or affidavit, which was a joint action against all the appellants. The separate affidavit against Summit was for his individual debt. The affidavit was not germane to the original coinplaint or affidavit and could not properly be considered as an addition thereto or amendment thereof. It stated a cause of action at law against Summit, and the remedy at law was complete. Summit made seasonable objection to the jurisdiction of the court, and did not waive his right to have a law court determine any issues arising on this separate attachment. The chancery court, therefore, erred in assuming jurisdiction and sustaining the separate attachment against Summit. The trial court should have treated Summit’s demurrer as a motion to transfer, and should have transferred the cause of action against Summit as set up in this separate affidavit to the law court.
4. Appellants contend, in the last place, that the court erred in holding that the violation of the Bulk Sales Law by them was a ground of attachment. As we view this record, it is unnecessary to decide, and we do not decide, whether a violation of the Bulk Sales Law is a ground for attachment. The cause, though begun at law, was at the instance of appellants transferred to equity. The appellants admitted that they owed the debts, and that each had assumed to pay the same, and that in the sale of the goods impounded by the attach-, ment, they had violated the Bulk Sales Law, act 88, supra. In their answer and cross-action, appellants asked that a receiver be appointed as contemplated by the Bulk Sales Law. The property was already in the custody of the law when the appellants had the cause transferred to the chancery court.
Now, since the stock of goods was destroyed by fire without any negligence on the part of the appellee which would render it liable in damages to the appellants, it is wholly immaterial whether the stock of goods was impounded to be subjected to the appellee’s debt through the ancillary process of attachment or through a receivership appointed by the chancery court. The appellants, as the court found, did not prove by a preponderance of the evidence that they had been damaged by the appellee in the impounding of the property through the attachment. Therefore, even if it were conceded that the court erred in sustaining the attachment against the appellants because of a violation of the Bulk Sales Law, this error did not result to their prejudice.
The court erred in assuming jurisdiction of and in sustaining the separate attachment as to appellant Summit. The decree as to him on the cause of action set up in the separate affidavit for attachment against him is reversed, and that action will be remanded with directions to transfer the same to the law court.' The decree in all other respects is correct and it is affirmed. | [
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Wood, J.
The appellant, a corporation of the State of Michigan and doing business in Arkansas, entered into a contract with one Ray Perkins of Paragould, Arkansas, the material parts of which are as follows:
The appellant appointed Perkins its broker for the sale of certain of its products in Paragould, Arkansas. The appellant was to pay Perkins a commission for his services. Perkins was to keep an account of goods consigned to him by the appellant in books furnished by the latter, which were subject to recall and inspection by the appellant at all times. Perkins was to make weekly reports of the stock on hand and delivery .of goods on blanks furnished by appellant. Perkins was to sell the goods on behalf of appellant and on terms prescribed by the appellant. Perkins was to bill no goods from consigned stock to himself under any circumstances. Perkins was to bill all goods on blanks furnished by the appellant and to forward a duplicate thereof to appellant on the day the goods were delivered. He was to keep the receipts for goods delivered on file subject to the order of the appellant. He was not to handle on consignment any packing house products except appellant’s with appellant’s consent. Perkins was to account to appellant for all weights shipped. He was to keep all goods in a suitable building and not mingle them with other merchandise and to sell and handle the same without expense to the appellant except his commission.
This action was brought by the appellant against the appellee to recover the sum of $308.10.- The appellant alleged that the appellee had taken possession of 1?165 pounds of bacon extras which belonged to the appellant, and that appellee had converted the same to its own use without authority of appellant. This is the second appeal in this case. The complaint remained the same on both trials. On the first trial, the answer to the complaint set up that Perkins was in the employ of the appellant as a factor and in possession of its products with full power'and authority to sell, deliver, and collect for appellant’s products, either in his own name or in the name of appellant; that appellee purchased the meat in controversy from Perkins as his individual property; that he represented to the appellee that it was his property, being the accumulation of what was known as ‘ ‘ overs, ’ ’ and was billed out to the appellee as the individual property of Perkins and paid for by the appellee as such; that the appellee in purchasing the meat from Perkins followed the custom and course of trade which had prevailed at Paragould for many years and was well known to the appellant; that the appellee believed that the meat was the individual property of Perkins and had no knowledge to the contrary.
The issue as thus raised on the first trial was sent to the jury, and in one of its instructions the court declared as follows: “If the plaintiff authorized and knowingly permitted its factor, Perkins, to sell overs or any other of its goods, or his own goods, on his individual account as individual owner to customers, * * * and the defendant at the time believed Perkins to be the true owner, or authorized to sell in his own name, then you will find for the defendant.” In passing on this instruction, this court explained the difference between factor and broker as follows: “A factor may buy and sell in his own náme, and he has the goods in his possession, while a broker as such can not ordinarily buy or sell in his own name and has no possession of the goods sold.”
In passing on the facts as developed at the former trial, we said: “Perkins was not a factor Qr commission merchant and had no right to sell the products of the plaintiff in Ms own name. Therefore, the conrt erred in assuming to the jury that Perkins was a factor and in telling the jury to find for the defendant if it should further find that the plaintiff authorized or knowingly permitted its factor, Perkins, to sell overs or any of its goods, or his own goods, on his individual account. ’ ’ For the error in giving the above instruction the court reversed the judgment and remanded the cause for a new trial.
On the second trial the appellee filed an amended answer in which it alleged that Perkins was an independ-ant dealer in meat products in Paragould, Arkansas, and was conducting his individual business in connection with that of the plaintiff; that he combined his own and the plaintiff’s business in this way to such an extent that his customers could not tell whether they were dealing with Mm individually or as the agent of the plaintiff; that the plaintiff knew, or should by the exercise of reasonable prudence and care have known, that Perkins was conducting his own individual business in conjunction with the plaintiff’s business; that the defendant, acting in good faith and ignorant of plaintiff’s alleged interest in said meat, purchased the same according to the custom of trade and paid Perkins for the same, honestly and in good faith believing Perkins to be the true owner thereof, and that plaintiff company is, therefore, estopped from now claiming payment from the defendant.
On the issue thus joined at the last trial, the president of the appellee testified substantially as follows: He had been in business at Paragould, Arkansas, for about fifteen years. The day appellee purchased the meat, Perkins came in and said he had some meat that he would sell to the appellee a quarter of a cent under the market price. Witness purchased it of him and paid for it. He had traded with Perkins and his father for fifteen years and had bought meat from them quite a number of times as their individual property. No question ever came up before, and nothing had happened to arouse his suspi cion that the meat was not Perkins’. Witness knew that Perkins was the broker of the appellant to sell its meat products, and that he liad no right to sell appellant’s goods as his own individual goods, but he did not sell the meat in controversy as the goods of appellant. Witness did not know anything about the contract between Perkins and the appellant. Witness knew that nobody had a right to sell goods belonging to some one else without authority. Witness didn’t know that this meat was the property of appellant. Perkins might have bought it from some one else so far as he knew. He supposed that the goods were shipped by the appellant to Perkins. Appellant had done nothing at any time or said anything that would lead witness to believe that the goods were purchased. He trusted Perkins’ word that the goods were his. The products that the appellee bought from Perkins were paid for for sometimes in cash and sometimes by check. The checks were made payable sometimes to Perkins and sometimes -to the appellant. Witness never heard any kick on this. Witness bought the goods from Perkins and not from the Hammond Company. When he bought goods from Perkins that were billed by the Hammond Company, he paid the Hammond Company for them. The only time he gave Perkins checks in his own name was when he owned the stuff himself. Witness didn’t know whether the appellant had any knowledge or information of the individual transactions he had with Perkins or not.
The secretary of the appellee testified that he had been in charge of the office and book affairs of the appel-lee for about twenty years. During this time appellee had been doing business with Ray Perkins and his father. Witness knew nothing about the contract' between appellant and Perkins — made no inquiry about it. Witness knew that the appellee bought the meat in question from Ray Perkins individually and paid for it. Witness had nothing to put him on inquiry that the meat did not belong to Perkins. He would not have bought it if he had known it was Hammond’s. Witness knew that Per kins had no right to sell Hammond Company meat as his own and in his own name. The accounts that the ap-pellee paid Perkins in his own name were for goods that Perkins claimed were his own and sold as his own. Witness didn’t remember how many companies Perkins might have represented. No question ever came up about the purchase of meat. He did not know whether under the contract Perkins had the right to sell the meat in his own name — never saw the contract. Perkins said he was selling his own meat.
Other witnesses testified substantially to the effect that they had bought packing house products from Perkins for several years. One witness stated that he had bought meat from Perkins in the name .of the Hammond Company. Sometimes Perkins would bill it out to witness in his individual name in average amounts from $75 to $700. Witness had transactions directly with the Hammond Company. They would often send him a statement for comparison. Perkins always protected witness against all advances. Witness would make remittances to Perkins. All checks for individual purchases would be made direct to him.
Another witness stated that he had bought quite a large quantity from Perkins — had had transactions for the Bertig Brothers with Perkins in which Perkins sold Bertig Brothers meat as his individual property. It did not occur often, and no question was raised about it.
Another witness testified that for thirteen years he had bought stuff from Perkins. He would mail checks to both Perkins and the appellant. No question was ever raised. Toward the latter part of his business witness thought Perkins was selling meat on a commission, but never gave it any thought. Witness had bought meat from Perkins as his own product and would usually pay Perkins individually when he purchased it from him that way, and there was never any complaint on the part of the appellant. Witness did not know whether they ever knew about it or not.
Another witness stated that for fifteen years he had bought meat from Perkins. He did not know whether he traded with them as individuals or as the agents of the Hammond Company. He would buy stuff from them, and they would send around and collect for it, and he would make the checks payable to Perkins. "Witness “thought Ray Perkins was the whole cheese — didn’t know any difference.”
Ray Perkins testified for the appellee to the effect that he dealt in meats and lards on his own account; that he sold in his own name to a large extent to appellee and other merchants who handled the goods sold by him. These merchants were his customers in buying his individual goods and also the Hammond goods. He would sell them Hammond goods as Hammond’s agent and sometimes as his individual goods and collect for them individually. Customers paid sometimes in checks to the Hammond Company and sometimes to witness individually. Witness would get the money and account to the Hammond Company for their part of it and keep his part. There was never any objection by the appellant to this method of conducting the business. Question never arose. Goods billed out to purchasers along the railroad would be billed in the Hammond Company name when that company sold the goods. If Perkins sold the goods, it would be billed out in Perkins’ name. Perkins transacted considerable business with the defendant company ; sold them goods as his individual property. Witness never had any understanding with the Hammond Company about overs — no written contract. He was in Chicago' talking, to the head of the concern, and the subject of shrinkage came up, and the manager told witness that he would be satisfied to receive the weights they shipped Perkins, and in any case where it would happen to be one-hálf of one per cent, less than they shipped Perkins it would be all right, and he said, “If anything else occurs, you know how to take care of it, I guess.” Witness assumed that he meant if the meat ran over witness was supposed to take it, and lie did. Witness would accumulate stock of Ms own in this way with ‘ ‘ overs. ’ ’ When witness considered the market right, he would instruct his employee to weigh up one or two thousand pounds of meat and put it over on witness’ side .of the warehouse and go to Ms book and charge it to Bertig Brothers at the best market price on that day and pay the money on that invoice and remit it to Chicago, and report the sale as having been made to Bertig Brothers. Witness transacted the business in that way because appellant company would not allow witness to hill anytMng to himself. The bills that were billed in that way were never presented to Bertig Brothers — were not intended to be. Witness paid the company the market price for the stuff he got.
On cross-examination witness stated, among other things, that the contract under which he-was employed by the appellant reflected his authority, and the same had not been changed. Only the manager of plaintiff said “occasionally there are ‘overs,’ and if there are ‘overs’ you know what to do with them,” and witness took it for granted that witness might appropriate the “overs” to his own use. The meat that was sold to the defendant belonged to the Hammond Company. The defendant wanted bacon extras. Witness didn’t have it, but did have dry salt extras, and he told his employee to take the dry salt extras out of his pile and take and put them in place of the bacon extras and take the bacon extras and deliver them to the defendant company; that was the only claim witness had to the meat sold the defendant. The Hammond Company was never advised about the transaction and was never paid for it. The meat was delivered to the defendant in the original packages as received from the Hammond Company. Witness was a merchandise broker and a manufacturer’s agent. He handled meat and lard for the appellant and also bought from the Hammond Company and sold it on his own hook. Witness also handled oil and gasoline and sold it as the agent of the company who owned it. Witness had no authority to buy from the Hammond Company in his own name. Appellant had no information, so far as witness knew, that witness was handling appellant’s goods in his own name, or that he was handling the goods of any one else in his own name. When appellant’s auditors would come to check up witness, whatever witness owned himself he would put out to one side of the house out of the way and take some lard and pack it around in various places, and hauled some to the oil house so that appellant’s auditor couldn’t discover it.
Another witness, an agent in the employ of Perkins since July 6, 1906, testified that any time the auditor came to audit the books and discovered any extra stock he would be told that that was sold and didn’t belong to the stock. After the contract between Perkins and the appellant was executed on July 10, 1917, up to May 7, 1918, if Perldns was engaged in any .other business of any kind except representing the plaintiff and an oil company, it was so slight that witness could not remember it. Witness sometimes made collections for Perkins including oil and other things. If the company had any knowledge of.any of the transactions, witness didn’t know it. These transactions detailed by the witness did not appear on the record. The witness further testified, “Mr. Taylor told us to sell one kind of meat and bill it out as another kind. It would be sold as the company’s meat. ’ ’
Witness Taylor testified that he had been working for the appellant company for about fifteen years. He visited Paragould at irregular intervals of about six weeks; had appellant’s business at Paragould under his immediate control as inspector. He did not discover that Perkins was buying goods on his own account or selling them. During all the time he never found any meat or products in Perkins ’ house that Perkins claimed as his own. He had no information that Perkins was selling appellant’s goods in appellant’s name and collecting for them in his own name. He had no information that Perkins was billing ont goods and not delivering them. The company had no information of any of these things-, so far as witness knew. Witness was familiar with Perkins’ books, and in examining’the books and the business nothing ever occurred, nor did witness ever discover anything, irregular. Witness never made a complete audit of Perkins’ books. If there were any discrepancies, he checked them up.
The court gave instructions correctly defining the issues and interpreting the contract between the appellant and Perkins, and told the jury, among other things, that the undisputed evidence showed that the title to the meat in question was in the appellant and that the possession and sale of it by Perkins as his own would not give the appellee good title to it. The court also told the jury that if the appellee knew that Perkins was the agent or broker of the appellant when it bought the meat from him he was acting as such in the sale of the meat, they should find for the appellant. The court further instructed the jury as follows:
“But, if you find from the evidence in the case that the plaintiff by its manner and course of conduct and dealings with its agent, Perkins, and through him with the public; and plaintiff by its own voluntary acts or consent gave to, or knowingly permitted, said Perkins to sell its goods as his own; and, if you further find from the evidence that the said Perkins sold the meat in question to the defendant company in accordance with the custom of the trade and usual course of business as con-' ducted by Perkins, or others engaged in that line of business at Paragould, and known to plaintiff company; and if you further find from the evidence that the defendant company, acting in good faith, and in ignorance of the fact that plaintiff owned the meat, and in the exercise of such care as an ordinarily prudent person would use under like circumstances, bought the meat in question, believing it to be the property of said Perkins, then you will find for tlie defendant; bnt, unless you do so find, then you will find for the plaintiff.”
The appellant duly excepted to the' ruling of the court in giving instruction No. 6. The verdict and judgment were in favor of the appellee. The appellant seeks to reverse the judgment, and concedes that the only question is as to whether or not the court erred in giving instruction No. 6.
On the first trial the issue was submitted on the theory that the undisputed evidence showed that Perkins was the factor of the appellant. This court held on the former trial that the trial court erred in instructing the jury that Perkins was the factor of the appellant. On the last trial, as shown by the present record, the court avoided that error, and the cause was submitted upon the theory that, although Perkins was the broker or agent of the appellant for the purpose of selling its meat products at Paragould, yet, if the appellant by its conduct knowingly permitted Perkins to sell its goods claiming them as his own in pursuance of a custom or course of dealing which he had established at Paragould of which appellant had knowledge, and the appellee, in good faith and in the exercise of ordinary care, purchased the meat front Perkins believeing it to be his property, the verdict should be in favor of the appellee.
The testimony speaks for itself, and we are convinced that it is sufficient to have warranted the court in presenting the causé to the jury upon the theory which the court did in its instruction No. 6. The testimony is voluminous, and it could serve no useful purpose to discuss it in detail. After a careful consideration of it, we have reached the conclusion that it can not be said as a matter of law that there was no testimony to warrant the instruction and to justify the verdict. The case on the facts as developed at the last trial is ruled by the principle announced by this court in Rogers v. Scott, 128 Ark. 600-603, as follows: “The general rule is that no man can get a title to personal property from a person who himself has no title to it. There are, however, certain exceptions to the general rule. One of these exceptions is that a bona fide purchaser will be protected where the owner has conferred upon the seller the apparent right of property as owner, or for disposal as his agent.” See, also, Andrews v. Cox, 42 Ark. 473-78; Meyer, Bannerman & Co. v. Stone & Co., 46 Ark. 210-214; Jetton v. Tobey, 62 Ark. 84; Jarvis v. Pague, 137 Ark. 475-484.
The instruction of the court was in conformity with the doctrine announced in the above cases, and there was testimony to warrant the court in giving it.
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Hart, J.
(after stating the facts). 'By the Initiative Act of 1917, it is provided that all political parties selecting their candidates for office through primary elections shall be subject to the provisions of the act, and that all primary elections for the nomination of county, district, and State offices, shall be held on the same day. Crawford & Moses’ Digest, § 3757.
Another section of the act gives any candidate the right to contest the nomination by an action brought in the circuit court.
It further provides that the complaint ‘ ‘ shall be supported by the affidavit of at least ten reputable citizens and shall be filed within ten days of the certification complained of, if the complaint is against the certification in one county. Crawford & Moses’ Digest, § 3772.
Montgomery filed with his complaint an affidavit signed by ten persons, the body of which is as follows:
“Comes J. V. Herring, Bafe Stegall, J. J. Lingar, Sam Harris, Dave Timmons, Ewell Love, J. F. Simmons, Jas. M. Lewis, E. E. Gifford, W. B. Cox, S. J. Morgan, and C. H. Love, ten reputable citizens of said county, and State of Arkansas, and state under oath that the statements made in the foregoing complaint are true to the best of their knowledge, information and belief.”
Ferguson filed a motion to dismiss the complaint on account of the insufficiency of this supporting affidavit.
The court overruled tbe motion, and error is assigned to the action of the court in this regard.
"We do not agree with counsel in this contention. In Logan v. Russe-ll, 136 Ark. 217, the court held that under the above section the affidavits of ten reputable citizens need not be separate, but may be combined in one affidavit and made upon the belief of the affiants merely, without setting forth the facts upon which their belief is based.
The court also held that the affidavits are jurisdictional, and that the complant and affidavits must be filed within the time specified.
In the instant case, the affidavits were filed within the time required by the statute, and under the decision just referred to the affidavit was sufficient in form. That is to say, all the affiants signed the same affidavit, and it was not necessary to state the facts upon which their support'of the complaint rests.
But it is insisted that the affidavit is defective because it does not state that the affiants were members of the Democratic party, and that this was necessary under the statute. On the other hand, it is claimed that the statute does not prescribe that the affiants shall be members of the Democratic party. It is true that the statute does not so state in express terms, but we think such is the necessary implication from its language when considered with reference to the declared purpose of the statute.
In Simmons v. Terral, 145 Ark. 585, the court had the section under consideration and held that the word, “citizens,” as used in the section, is synonymous with the word, “electors.” The court said that the known object of the law was to prevent fraud in the exercise of political privileges, and that, inasmuch as these privileges are accorded by the act to electors only, it was clear that the word, “citizens,” as used in the act, was intended to be synonymous with “electors.”
Now the object of primary election statutes is to give the electors of recognized political parties the immediate control in the selection of their own candidates. Therefore, only those who are entitled to participate in the primary were directly interested in the election and could be said to be reputable citizens or electors within the meaning of the statute.
' The intent of the statute was to regulate party nominations by the vote of the electors of the respective parties, and only such electors are entitled to vote in the primaries. The statute provides for primary elections for the recognized political parties, and it was evidently intended that only those might participate in the primaries who belonged to the political faith of the party holding the election. If the framers of the act meant “reputable citizens” to he “electors,” it certainly meant electors who were entitled to vote at the primary election which was to he contested. Otherwise, the members of other political parties might sign the affidavits for the purpose of creating dissension or injuring the political party holding the primary.
It does not follow, however, that the complaint should have been dismissed, because the affidavit filed followed the language of the statute, and, under the decisions cited above;, this was all that was necessary. Of course, if it had been shown by proof that the affiants were not Democrats, this would have been fatal to the complaint under the decisions above cited; and the proceedings should have been dismissed for noncompliance with the statute. In our State the primary is the means of nomination of all officers, State, district and county, and the object of our primary statute was to provide a method whereby the partisan voter could express his choice for his candidate under the protection of the State by means similar in practice to the Australian ballot in use in the general elections. The framers of the act did not contemplate that the members of any other party than the one holding the primary should be permitted to vote in it or to participate in any contest under the provisions of the statute.
It is next insisted that the court erred in permitting Montgomery to amend his complaint. In his original complaint Montgomery alleged that certain illegal votes had been cast for his opponent in certain townships named in his complaint.
In his answer Ferguson alleged that certain illegal votes had been east for Montgomery in certain other townships named in his answer. During the progress of the trial it developed that certain illegal votes were cast for Ferguson in other townships than those named in either the complaint or answer, and Montgomery was allowed to amend his complaint so as to embrace these other townships.
We do not thinlc there was any error in this regard. As just stated, the statute recognizes the use of the political parties by the people, and its object was to enable the members of the recognized political parties to express their choice for a candidate to be nominated by their respective parties by means similar in practice to those used at the general elections.
In Govan v. Jackson, 32 Ark. 553, the court said that the real inquiry in election contests was as to whether the contestant or the respondent received the highest number of'legal votes, and was not confined to the ground specified in the contestant’s notice of contest.
So here the object of the pleadings was to produce a single issue, and that issue was whether or not certain illegal votes of a designated kind had been received at the primary election. The proceeding is entirely statutory. The act contemplates that there shall be a summary trial and disposition of the case to the end that if the contestant is successful lie may be voted for at the general election or, if the contest is not finally determined until after the general election, the term of office or a material part thereof shall not have expired.
It is impossible to state with precision the rule with regard to amendments of the pleadings. Much must be left to the discretion of the court, or the very object of the statute will be defeated. On the one hand, the contestant should not be allowed to make amendments which would necessarily unduly delay the trial of the contest, and on the other hand he should be allowed to make amendments in all cases where no such delay would result and where the amendment was made for the purpose of presenting the issues with due diligence,
As stated in Mann v. Cassidy, 1 Brewster’s Penn. Repts., p. 11, “The rule must not be held so strict as to afford protection to fraud, by which the will of the people is set at nought; nor so loose as to permit the acts of sworn officers, chosen by the people, to be inquired into without an adequate and well-defined cause. ’ ’
There is no provision in the act prohibiting amendments, and there is nothing in the record tending to show that the amendment would have unduly delayed the trial of the case. Therefore, we thinlc that the court did not err in allowing the amendment.
It is next insisted that the court erred in refusing to allow Ferguson to prove that certain Republicans were allowed to vote for Montgomery and in sustaining a demurrer to his answer in which the same fact was alleged.
In this contention we think counsel are correct. Except to the extent that jurisdiction is conferred by statute or that the subject has been regulated by statute, the courts have no power to interfere with the judgments of the constituted authorities of established political parties in matters involving party government and discipline, or to determine disputes within a political party as to the regularity of the election of its executive officers. 20 C. J., par. 158, p. 137. The rule as thus laid down was recognized and' applied by this court in Walls v. Brundidge, 109 Ark. 250.
Primary election laws were unknown under the common law. They are purely the creatures of statute, and every provision for contesting such elections is directed by statute. The same object is sought in allowing contests in primary elections as is sought in general elections, and that is to throw out illegal and fraudulent votes. It has been well said that the “contest of an election is- a remedy given to the people by petition for redress, when their suffrages have been thwarted by fraud or mistake.”
The weight of authority and the better reasoning is that the people by the Legislature or through an initiative act may recognize the existence of political parties, and within reasonable limits regulate the means by which partisan voters should be protected in exercising individual preferences for party candidates, which is the general purpose of the primary election law of this State. 20 C. J., par. 110, p. 113; 9 R. C. L., p. 1072, et seq.; State of Minn. v. Moore, 59 L. R. A. (Minn.) 447; State ex rel. Miller v. Flaherty (N. D.), 41 L. R. A. (N. S.) 132; Baer v. Gore, (W. Va.), L. R. A., 1917 B, p. 723; Waples v. Marrast (Tex.), L. R. A. 1917 A, p. 253, and Phillips v. Strassheim. (Ill.), 22 L. R. A. (N. S.) 1135.
It is contended by counsel for Montgomery that the ruling of the circuit court should be upheld because the statute does not prohibit Republicans from voting in a primary election held by the Democratic party.
Under the authorities cited the constituted authorities of the political parties have exclusive jurisdiction as to the regularity of primary elections except as taken away by statute. The Legislature may or may not prescribe tests of the right of voters to vote at- primary elections.
As we have already seen, the act under consideration recognizes organized political parties and provides that all primary elections for the nomination of county, district, and State officers shall be held on the same day. No one could logically assert that the framers of the act intended that any elector without any party belief whatever had the right to participate in said primaries because he might be a qualified elector within the meaning of our Constitution.
The act in question prescribes no tests for party affiliations. Therefore, the duly constituted authorities of the recognized political parties had a right'to prescribe the tests for the voters at the primary elections to be held by such political parties. To hold otherwise would be to destroy the usefulness of the act and to render it unreasonable in its application or practical effect.
As bearing on the question we refer to Rouse v. Thompson, 81 N. E. 1109, where the Supreme Court of Illinois, in discussing statutory regulations for securing fair primary elections, said that if the independent voter or voter affiliating with, an opposition party can vote at the primary election of a party with which he has no political affiliation and thereby control the nomination of a party which he will Vote against at the polls, the freedom of the primary election is destroyed. Again the court said:
“The object of holding a primary election by a political party is to select party candidates, and it is too plain for argument that no voter should be permitted to vote at the primary election of a political party unless he is a member of such party, and unless provision is made to prevent persons voting at a primary election for the candidates of a party who are not affiliated with such party, the whole scheme of nominating party candidates by a primary election would fail, because of being incapable of execution.”
In Logan v. Russell, supra, the court said that the provisions of the statute under consideration should receive a liberal interpretation so as to effectuate the wholesome purposes intended by its framers.
In McDaniel v. Ashworth, 137 Ark. 280, in an election case, in discussing the interpretation of the statutes, the court said:
“The whole subject was reviewed in the case last cited, and the doctrine was made plain that the duty of the courts in interpretation of statutes was to endeavor to ascertain from the language used the true intention of the lawmakers, and when that intention was- ascertained to disregard everything which was in conflict with that intention, and, if necessary, to omit words or substitute others so as to make the statute harmonize with the manifest will of the lawmakers.”
It is contended that our primary law takes away the right of political parties to prescribe the tests of persons voting at primary elections held by such parties. Reliance is placed upon section 3778 of Crawford & Moses’ Digest. It reads as follows:
“All laws or rules of political organizations holding primary elections providing for contest before political conventions or committees other than the proceedings herein provided shall he of no further force or effect. ’ ’
The avowed purpose of this section is to take away from political parties the right to provide rules regulating contests. It has no relation whatever to the tests required of the voters at the primaries held by such parties, and does not purport to deal with that question. This view is borne out by section 3791 of Crawford & Moses’ Digest, which makes it a misdemeanor for a person to vote in the primary of a party which the voter does not adhere to or affiliate with.
It is also insisted that the courts have no right to review the action of the duly constituted authorities of the party in allowing the Republicans to vote.
The act was passed for the purpose of conferring jurisdiction on the courts over contests and this makes the contest proceeding a judicial action, and it is no longer merely a political question to be settled within the party. To hold otherwise would destroy the very purpose of the act, and render it abortive. It is our duty to construe the act to advance the remedy provided by the act, rather than to render it futile or unavailing.
■ This brings us to a consideration of the rules of the Democratic party in force at the time the primary election was held on the 10th day of August, 1920. They provide that none but Democrats shall participate in said election and that a Democrat is defined to be one who supported the nominees of the Democratic party in the preceding general election, or was prevented from attending the election by unavoidable cause. ¶
As we have already seen our primary law recognizes that there are different political parties in this State, and it is a matter of common knowledge that the Democratic and Republican parties are the two great rival parties, not only of this State, but throughout the United States. The word, “Republican,” therefore, has a well-defined meaning and indicates one who affiliates with the Republican party in contradistinction to the Democratic party, or any other political party. If a Republican should quit his own party and join another one, he would no longer be called a Republican. Therefore, when counsel for Ferguson alleged that Republicans had been allowed to vote for Montgomery and offered to prove that fact, they used words which were well understood by the people and which conveyed the meaning that they were not entitled to vote at a Democratic primary election.
But it is insisted that the offer of proof in this respect, was not sufficiently definite. We can not agree with counsel in this contention. We quote from the record the following:
Q. Four name is A. J. Edwards?
A. Yes, sir.
Q. You live in Sprada Township?
A. Yes, sir.
Q. Did you vote in the primary election held on thé 10th day of August?
A. Yes, sir.
Q. Mr. Edwards, what is your politics?
A. Republican. Black too.
Q. Did the judges challenge your vote, Mr. Edwards ?
A. No, sir. Nothing was said to me about it.
The record further shows that the attorneys for Ferguson offered to show that the number of Republicans set out in his answer voted in the primary election and voted for Montgomery. In his answer Ferguson sets out the number of Republicans that were allowed to vote for Montgomery and the townships in which they voted.
The court not only sustained a demurrer to this part of the answer of Ferguson, but refused to allow him to make the proof just referred to. Therefore, we think the offered proof was sufficiently definite and that the court erred in refusing to allow it to be introduced in evidence.
We are also of the opinon that under our primary act Ferguson did not lose his right to object to the Republican votes because he did not challenge the voters at the polls. Such a course would have required him to have kept watchers at each polling precinct, and this would have been too expensive and cumbersome. He might have pursued that -course and have caused the judges to have thrown out these votes. It is sufficient to say that the adoption of such a course bjr him is not required by the statute as a prerequisite to his right to contest the election on that account.
It is insisted that the court erred in not throwing out the votes of Pittsburgh Township and. in not allowing the parties to the contest to prove the number of votes in their favor in that township by parol evidence under the rule announced in Williams v. Buchanan, 86 Ark. 259, and cases cited, where the contest was under the general election law. The face of the returns shows that Montgomery received 183 votes and Ferguson 125 votes, or a majority of 58 votes for the contestee. The record shows that the ballots from his township were not numbered.
Section 3765 of Crawford & Moses’ Digest, provides that the judges and clerks of the election should make a duplicate register of the names of each and all the electors in -the order in which they present their ballots, placing opposite each name its number in the manner prescribed by sections 3797 to 3802 regulating general elections, which provide that every ballot shall be numbered in the order in which it shall be received and the number recorded by the election officers on the list of voters, opposite the name of the elector who presents the ballots. The object is to prevent fraud, and it is the duty of the election judges and clerks to carry out the provisions of the act in primary elections as well as in general elections. When the ballot is numbered in the order in which it is received and the number is recorded on the list of the voters, the number opposite the name of the voter on the list will also appear on the ballot, and thus there is an identification of the ballot voted by each elector. The neglect to perform this duty is an evidence of fraud under the primary election act, but it is not conclusive evidence of fraud, and it does not necessarily follow that for the failure to comply therewith the vote of the entire precinct should be thrown out. Conflicting views have been expressed by the courts as to what circumstances will justify throwing out the entire vote of a township. Such a power necessarily belong’S to whatever court has jurisdiction to pass upon the merits of a contested election case, and it is such a dangerous power that it should be exercised only in an extreme case, that is to say, a ease where it is impossible to ascertain with reasonable certainty the true vote. McCrary on Elections, (4 ed.), section 523 and 20 C. J., par. 346, p. 249.
Section 3765 of the digest regulating primary elections also provides that each ballot shall be signed by the voter at the bottom thereof at a place which shall be •provided for his signature, and that if the voter is unable to subscribe his name the same shall be signed by one of the judges and attested by all of said judges. This provision is also designed to prevent fraud and serves the same purpose as numbering the ballots as prescribed by the statute. Thus the framers of the act designed to establish a double check against fraud. Both provisions should be carried out by the judges and clerks of the primary election.
In the present case it does not appear from the record that the judges and clerks failed to require the voters to sign the ballots, and it does not appear from the record that their failure to number the ballots as required by the statute was the result of fraud. The signature of the voter served to identify the ballots, and under the circumstances disclosed in the record we do not think the court erred in not discarding .the entire vote of the precinct.
Finally, it is insisted that the ouster section of the primary act is void because it is directed solely against the contestee or the defendant in the contest proceeding and brings the act within that class of statutes condemned generally as discriminatory and void. It is also claimed that, if not void, there can be no ouster of Montgomery under the statute because he was elected county judge at the general election in November, 1920, during the pen-dency of this appeal, and that the section does not apply to biro, because be was tbe contestant or plaintiff in tbe case in the court below, and that tbe statute only applies to tbe contestee who is the defendant in the circuit court. Counsel also point to tbe fact that in this court tbe parties are designated by statute as appellant and appellee and that Ferguson is tbe appellant here. Tbe section in question is 3776 of Crawford & Moses’ Digest, and reads as follows:
“ Should a proceeding under §§ 3772-3773, or a criminal prosecution under § 3774, be not determined finally until after tbe election, and tbe defendant in such proceeding is elected to tbe office as tbe nominee of tbe party, and it is determined that be was not entitled to, tbe nomination, or tbe judgment contains a finding that be violated the laws, as provided in § 3774, then such judgment shall operate as an ouster from office, and the vacancy in it shall be filled as provided by law for filling vacancies in such office in case of death or resignation. ’ ’
We think that the word “defendant” as used in tbe section was not intended to be used in its strictly technical sense, but that it should be given a broader interpretation so as to carry out the act instead of destroying or crippling its usefulness. This court has already declared that tbe act “should receive a liberal interpretation so as to effectuate the wholesome purposes intended by its framers.” o
Again in McDaniel v. Ashworth, supra, in construing an act providing for the election of directors for tbe St. Francis Levee District, tbe court said that it was “tbe plain duty of the court, in tbe construction of statutes, to arrive at tbe legislative will and to sweep aside all obstacles in the way of accomplishing it.” When we consider tbe object and purposes of tbe statute, it is plain' that tbe word, “defendant” was used to denote tbe party who defends tbe suit when it was finally determined whether it was in tbe circuit court or in this court.
Tbe section provides in brief that, should a contest proceeding or a criminal prosecution be not finally determined until after the general election, and tbe defend ant in the proceeding is elected as the nominee of the party, and it is determined that he was not entitled to the nomination, or that he violated the law, then snch judgment should operate as an ouster from office. The object was to prevent one illegally nominated and thereby securing an election at the general election from holding the office during the term provided by law or a material portion thereof, and thereby rendering abortive the contest proceeding.
In Duntan v. McCook, 94 N. W. 942, the Supreme Court of Iowa had under consideration a statute as follows:
“A defendant against whom a judgment has been rendered, or any person interested therein, having matter of discharge which has arisen since the judgment, may upon motion, in a summary way, have the same discharged, either in whole or in part, according to the circumstances, ” and it was there contended that the word “defendant” was used in its strict technical sense. But the court held that the word might refer to the plaintiff as well as the defendant, and said:
“By ‘defendant’ is meant the party against whom the judgment or decree has been entered, and not necessarily the defendant in the suit; and the term ‘judgment’ is employed in the statutory sense, being any ‘final adjudication of the rights of the parties in an action.’ ”
In Thayer, Petitioner, 11 R. I., p. 160, Amy Thayer sought to be discharged from imprisonment on an execution for costs awarded against her in an action of trover in which she was plaintiff and Mary M. Thayer was defendant. The court had under consideration the construction of a statute providing for an execution against the body, which was served by arresting Amy Thayer, the plaintiff, and said that “no reason occurs to us why plaintiff, whatever be the nature of the action, against whom judgment has been rendered for costs should be dealt with differently than if the judgment were for a debt.” We quote from the opinion the following:
"It will be perceived, by reference to the section mentioned, that no provision in terms is made for an execution against the body of a plaintiff, but only for an execution against the body of a defendant. The respondent’s counsel suggests that the word ‘defendant’ should be construed to mean the defendant in execution, and not merely the defendant in suit, and, therefore, to include a plaintiff against whom a judgment has been obtained by a defendant. We think the section susceptible of this construction, and are led to adopt it, because there is no other authority for an execution against the body of a plaintiff; and we can not suppose that the General Assembly did not intend to give a defendant, who has recovered judgment for costs, or for a balance due him upon a plea in set-off against a plaintiff, the same process to compel the payment of his costs or debt which the plaintiff, if successful, wou-ld have had against the defendant.”
For the error in refusing to admit the testimony with regard to the Republican votes alleged to have been cast for Montgomery, the judgment will be reversed and the cause remanded for a new -trial. | [
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McCulloch, C. J.
Appellees, who are' infants suing by their next friend, instituted this action' in the court below to recover damages for alleged conversion of certain personal property by the appellees, John Lowe and Tom Nichols. It developed on the trial of the issues, from the undisputed testimony, that the property in controversy was a mule of the value of $65 and a lot of cattle of the value of $137, making a total of $202. This was agreed upon during the progress of the' trial as the value of the property in controversy.
It appears from the testimony that this property was originally owned, with other personalty, by Osia Young, the father of appellants, who died during the year 1915, leaving Florence Young, his widow, and appellants as his heirs at law. There was no administration on the estate of Osia Young, and the property fell to his widow and minor children, being held and used by the widow for the benefit of herself and the children who resided with -her. The widow subsequently married ap-pellee John Lowe. Osia Young had mortgaged his personal property to a firm of merchants in Hazen, and John Lowe paid off the mortgage debt in the sum of $168 after he intermarried with the widow, and later Lowe and his wife mortgaged the property now in controversy, together with other personal property owned by John Lowe, to a firm of merchants in Lonoke, to secure an indebtedness for advances made to Lowe and his wife to enable them to farm. The merchants assigned the mortgage and debt it secured to appellee Tom Nichols, who-foreclosed the mortgage under the power contained therein. This -was after the death of Lowe’s wife, the widow of Osia Young. This suit was then instituted against Lowe and Nichols for the alleged conversion of the property. The court submitted the issues to the jury, and a verdict was returned in favor of appellees.
There is an obscurity in the testimony as to the total value of the personal property left by Osia Young, but, for the purpose of testing the correctness of the judgment below, we assume either that the property did not exceed in value the sum of $300, or tliat, if the total value of the property exceeded that sum, the property in controversy was a part of that which, under the statutes of this State, went to the widow and children as against creditors. The statute provides that when the personal property of the estate of a decedent does not exceed in value the sum of $300 the same shall vest absolutely “in the widow and minor children, or widow, or children, as the case may be,” and that “where the personal estate exceeds in value the sum of $300, the widow and minor children, or widow or children, as the case may be, may retain the amount of $300 out of such personal property at its appraised value.” Crawford & Moses’ Digest, § 80.
The evidence in the case warranted the conclusion that the widow of Osia Young used the property and mortgaged the same for the joint benefit of herself and minor children, and the question involved now is whether or not she was authorized to do this and to dispose of the property without the concurrence of a guardian for the minor children. It will be observed that the property under the circumstances described in the statute is vested jointly in the widow and minor children and not in sev-eralty. This statute was enacted as a part of the administration statute and was designed for the protection of the widow and infant children of decedents who might have left estates of little value. It was designed to afford a method to expeditiously dispose of the property and hold it at as little expense as possible for the benefit of those on whom the title was cast. It is inconceivable, therefore, in this view of the matter, that the lawmakers intended to confer upon the infants such a separate right as -would require the intervention of a guardianship in order to protect their interest in the property and give them, full enjoyment of it. If the statute be construed as having that effect, to require a guardian in order to enable the infant to enjoy the estate, its value would thus be frittered away in the expense of the guardianship. What the lawmakers obviously intended was to give the property jointly to the widow and children, and that the widow as the head of the family should have the right to use the property for the benefit of herself and the children. This does not mean that the infants are without remedy in the event the widow abuses the power thus conferred and uses the property for her own use in exclusion of the rights of the children. A court of equity would restrain such abuse of power as a violation of the trust. But there is no evidence in the present case of an abuse of authority by the widow. The children lived with her, according to the testimony, and there is nothing to show that she did not use the property or mortgage the property for the benefit of the children as well as for herself. This being true, the mortgage which she executed to the merchants ivas valid, and a foreclosure of the mortgage did not constitute a.wrongful conversion of the property. The judgment is therefore affirmed. | [
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Andree Layton Roaf, Judge.
Shelter Insurance Company (Shelter) settled a claim with its insured pursuant to uninsured motorist coverage, and filed an action to recover from the alleged negligent driver more than three years after the date of the accident. On appeal, Shelter argues that the trial court erred in granting a motion to dismiss based on the three-year tort statute of limitations. We affirm.
Shelter provided an automobile insurance policy to Deborah Day. The policy included medical payments and uninsured motorist coverage. On September 18, 1992, Ms. Day was involved in a car accident with the appellee, Sheila Arnold, who was uninsured. Beginning on May 17, 1993, Shelter paid medical benefits to Ms. Day, pursuant to the uninsured motorist provision in her policy, and paid a final settlement to her on May 15, 1995.
On October 6, 1995, Shelter, as Ms. Day’s subrogee, filed a complaint against Ms. Arnold alleging that her negligence caused the accident and resulting injuries to Ms. Day. Ms. Arnold filed an answer denying liability and asserting as an affirmative defense that the action was time barred by the statute of limitations. Ms. Arnold also filed a motion to dismiss that invoked the same affirmative defense. In a brief filed in response to the motion to dismiss, Shelter argued that its cause of action against Ms. Arnold had not accrued until it paid Ms. Day’s medical expenses, and attached copies of the drafts it paid to Ms. Day as exhibits. The trial court granted the motion to dismiss, finding that the three-year statute of limitations had run.
Shelter’s sole point on appeal is that the trial court erred in granting Ms. Arnold’s motion to dismiss based upon the statute of limitations; however, its argument is twofold. Shelter asserts both procedural error and errors in the application of substantive law. We will address each in turn.
First, Shelter asserts that the trial court erred in granting the motion to dismiss pursuant to Ark. R. Civ. P. 12(b), because matters outside the pleadings in the form of the exhibits it attached to its response to the motion to dismiss were presented to and not excluded by the trial court. Shelter contends that, consequently, the motion to dismiss should be treated as one for summary judgment, pursuant to Ark. R. Civ. P. 56, and that this court must view the evidence in the light most favorable to the one against whom summary judgment was granted. See, e.g., Pastchol v. St. Paul Fire & Marine Ins. Co., 326 Ark. 140, 929 S.W.2d 713 (1996).
In response, Ms. Arnold asserts that she properly raised the statute of limitations as an affirmative defense in both her answer and in a separate motion to dismiss. She argues that Shelter should not be allowed to change the nature of her motion or request for relief by simply attaching exhibits to its response.
Although we agree that it is improper for the trial court to look beyond the complaint to decide a motion to dismiss, see, e.g., University Hosp. v. Undernehr, 307 Ark. 445, 821 S.W.2d 27 (1991), it is not clear that the trial court considered Shelter’s exhibits in granting the motion to dismiss. Nonetheless, because the procedural dispute will not alter the disposition, we treat the motion as one for summary judgment. See Ark. R. Civ. P. 12(b) and (c); Rogers v. Tudor Ins. Co., 325 Ark. 226, 925 S.W.2d 395 (1996). Summary judgment should only be granted when there are no genuine issues of material fact, and when the case can be decided as a matter of law. Smothers v. Clouette, 326 Ark. 1017, 934 S.W.2d 923 (1996).
Turning to the second part of its argument, wherein error in the application of substantive law is alleged, Shelter contends that the trial court erred in granting judgment as a matter of law, because the law in Arkansas is unsetded regarding when the statute of limitations begins to run for an action brought by a subrogee.
Shelter asserted in its response to the motion to dismiss and in arguments to the trial court that its action was not based on tort, but was a subrogation or “contribution indemnity” case. Shelter contends that because Ms. Day had up to five years to sue Shelter for uninsured motorist coverage, the three-year statute of limitations did not apply, or did not begin to run until it paid Ms. Day’s medical expenses.
Shelter further argues that if a three-year statute of limitations is applicable when an insurance company becomes the real party in interest as subrogee, the three-year statute of limitations begins to run from either the initial or the final payment of benefits to its insured. This argument is unpersuasive. Furthermore, Shelter’s reliance upon Courtney v. First National Bank, 300 Ark. 498, 780 S.W.2d 536 (1989), as authority for the general proposition that the statute only begins to run when there is a “complete and present cause of action” is likewise clearly misplaced.
It is well settled that the gist of the action as alleged determines which statute of limitations applies, Ernest F. Loewer, Jr. Farms, Inc. v. National Bank, 316 Ark. 54, 870 S.W.2d 726 (1994), and that the three-year statute of limitations for tort actions begins to run when the underlying tort is complete. Faulkner v. Huie, 205 Ark. 332, 168 S.W.2d 839 (1943). Moreover, we agree with Ms. Arnold that Williams v. Globe Indemnity Co., 507 F.2d 837 (8th Cir. 1974), a diversity case interpreting Arkansas law, is persuasive authority for the proposition that a subrogee insurance company is subject to the same limitations as its insured. Globe, like Shelter, contended that its cause of action did not accrue until it made payment to its insured. The court of appeals, in rejecting this argument and holding that Globe had no separate right to indemnification, stated:
Appellant argues that the insurer acquires the right of indemnification against Appellee when actual payment is made to its insured, thereby implying that an insurer has some type of implied contract or liability imposed by law vis-a-vis the uninsured motorist ....
As a general rule, indemnity is not allowed absent an express or implied contract. There are, however, certain exceptions as between joint tort-feasors, one of whom was liable only because of his relationship to the other joint tort-feasor, or because of a specific statute where the right is imposed. None of these exceptions are applicable to this case. . . .
The duty of the insurer to pay damages arises solely out of its contract with its insured and not by reason of any special relationship between the insurer and the uninsured motorist. The rights acquired by the insurer upon payment to the insured are solely derivative rights of subrogation. . . .
Thus, the insurer stands in the shoes of the insured and takes no rights other than those which the insured had, and this is true regarding the applicable statute of limitations.
Id. at 840 (citing American States Ins. Co. v. Williams, 278 N.E.2d 295, 299-300 (Ind. App. 1972).
Globe mirrors the decision of every jurisdiction that has addressed this issue, except for those states that have specific statutory provisions giving insurance companies the expanded limitations period sought by Shelter in this case. See Jane Massey Draper, Annotation, When Does Statute of Limitations Begin to Run Upon an Action by Subrogated Insurer Against Third-Party Tortfeasor, 91 A.L.R. 3d 844, 850-55 (1979). The holding in Globe is further based on the well-settled rule that a subrogee acquires no greater rights and is subject to the same defenses as its predecessor in interest. See, e.g., Midwest Mut. Ins. Co. v. Arkansas Nat’l Co., 260 Ark. 352, 538 S.W.2d 574 (1976).
Moreover, Shelter’s policy arguments that this court should judicially legislate a five-year limitation period for subrogation claims to equal the length of its potential exposure to claims by its insureds is not persuasive, and completely ignores Shelter’s ability to contractually protect itself from untimely claims made by its insureds.
Finally, Shelter’s argument that the three-year statute of limitations may force insurance companies to bring actions against tortfeasors without knowing whether their insureds would seek benefits or the amount of those benefits certainly does not apply to the facts of this case. Here, Shelter began paying Ms. Day’s claim in 1993, and paid the last dollar to her on May 15, 1995. The three-year limitations period did not run until September 18, 1995. Shelter thus had ample notice of its subrogation claim, and knew the exact amount of its claim more than four months prior to the expiration of the statute of limitations.
For the foregoing reasons, we hold that in actions based on negligence, a subrogee insurance company is subject to the same three-year statute of limitations period as its insured, and that the trial court correctly dismissed Shelter’s action as a matter of law.
Affirmed.
Robbins, C.J., and Griffen, J., agree. | [
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Andree Layton Roaf, Judge.
Appellant Howard Skaggs entered into a compromise settlement with appellee Charles Cul-lipher to avert litigation of a will contest. Skaggs and Cullipher were subsequently appointed co-administrators of the estate. Skaggs sought to bring wrongful-death and survival actions against Cullipher some nine months after petitioning that the estate be closed, but prior to completing ah steps necessary to close the estate. Skaggs appeals a probate court order granting Cuhipher’s motion for summary judgment and motion to dismiss the wrongful-death and survival actions. We reverse the probate court’s findings that the estate was closed by operation of law, and that the settlement agreement precluded the wrongful-death action, and remand.
On October 3, 1992, Sophia Morris Cullipher died a few hours after being run over by a combine operated by her husband, Charles Edward Cullipher, the appehee in this case. Mrs. Cul-lipher had prepared a Last Will and Testament that could not be found after her death. On October 8, 1992, Mrs. Cuhipher’s brother, Howard Skaggs, the appellant in this case, filed a petition in Miller County Probate Court to restore the lost will and appoint him as executor. Filed with his petition was a hand written draft and a typed copy of the will, both prepared by Mrs. Cul-lipher’s attorney. These documents named Howard Skaggs as executor and primary beneficiary, and left Charles Cullipher, the decedent’s spouse, nothing.
On October 23, 1992, Cullipher filed a petition opposing probate of the alleged lost will. The petition prayed that an intestacy be declared and that Culhpher be appointed administrator. Since Mrs. Cullipher had no lineal descendants, Cullipher was the sole heir at law. On November 5, 1992, the Miller County Sheriffs Department began an investigation into the death of Mrs. Cullipher, but ultimately, no criminal charges were ever filed against Cullipher.
On November 6, 1992, Cullipher joined the devisees of the lost will in a settlement styled “Memorandum Agreement,” that averted litigation of the will contest, and recited as its purpose to avoid “the expenses, delay, and uncertainties of outcome in litigation involving [the] lost will.” Accordingly, it purported to be a “compromise and setdement of all matters involved in the administration and distribution of the estate of the decedent.” Parties to the Memorandum Agreement included Skaggs, his spouse, daughter, son-in-law, and two minor grandchildren, one of Mrs. Cul-lipher’s three living sisters, and Cullipher. However, several potential beneficiaries under the Arkansas Wrongful Death Statute, Ark. Code Ann. § 16-62-102(d) (1987), including Mrs. Cul-lipher’s mother, two sisters and two brothers, were not made parties to the settlement. The Memorandum Agreement was filed along with a petition for approval of the settlement in the Probate Court of Miller County and was approved by an order which also appointed Skaggs and Cullipher as co-administrators.
Administration of the estate proceeded to distribution of the inventoried assets and payment of attorney’s fees, and the co-administrators petitioned to close the estate. An order was entered on July 1, 1993, approving final distribution and discharge of the personal representatives and closing of the estate “upon report of such payments and distribution.” No such reports were ever filed.
On March 10, 1994, after engaging new counsel, Skaggs filed a wrongful-death complaint in Miller County Circuit Court, and moved in Miller County Probate Court to reopen the estate to pursue a survival action and wrongful-death claim. The motion was granted on March 14, 1994, by order which reopened the estate, authorized Skaggs to proceed against Cullipher in his individual capacity, and barred Cullipher from serving as co-administrator. However, on October 18, 1994, the Miller County Probate Court granted Cullipher’s motion to dismiss and for a judgment as a matter of law and motion for summary judgment to enforce the family settlement agreement. The order stated that the estate of Mrs. Cullipher was deemed closed by the July 1, 1993, order and directed Skaggs to dismiss with prejudice his wrongful death action pending in Miller County Circuit Court.
Skaggs raises the following four issues in his appeal from the October 18, 1994, order: (1) the court erred in finding the estate was closed or that it lacked jurisdiction to reopen the estate; (2) the court erred in granting summary judgment; (3) the court erred in finding that the Memorandum Agreement settled and released Cullipher from the wrongful death cause of action filed on behalf of the statutory heirs; and (4) the court erred in finding that the Memorandum Agreement setded and released the estate’s survival cause of action against Cullipher.
1. Closure of the estate
Skaggs first argues that the trial court erred in finding the estate was closed. He argues alternatively that even if the estate was closed, the court erred in finding that it lacked jurisdiction to re-open the estate based upon Ark. R. Civ. P. 60(b), because Ark. Code Ann. § 28-53-119(a)(1) (1987) specifically provides for reopening a probate estate. We do not reach the issue of whether the probate court had jurisdiction to reopen the estate because we agree that the estate was not closed.
In its order granting Cullipher’s motion for summary judgment and motion to dismiss, the probate court found as a matter of law that the estate of Mrs. Cullipher was closed by its July 1, 1993, order even though certain ministerial duties had not been discharged. Skaggs argues that the estate was never closed, because the July 1, 1993, order required the filing of a report of final payments and distribution to officially close the estate. It is undisputed that the report was never filed. Skaggs further points to the fact that the probate court acknowledged that the estate was open in a Memorandum Opinion of September 28, 1994, when it directed him to complete the “ministerial duties” of the administrator and close the estate within thirty days. This language was inexplicably omitted in the October 18, 1994, order.
On the other hand, Cullipher contends that the trial court was correct in finding the estate closed for either of two reasons: (1)failure to file the administrator’s final report as required by the plain language of the July 1, 1993, order did not leave the estate open “for all purposes,” and the probate court retained jurisdiction, if at all, only for the specific and limited purpose of accepting the filing of the final report; or (2) assuming the estate remained open for all purposes, the estate was closed by operation of law due to the failure of Skaggs to timely execute his duties as co-administrator.
We do not agree with either of Cullipher’s contentions. He cites no authority to support his contention that the estate remained open for only a “limited purpose.” With regard to his second contention, Cullipher offers Ark. Code Ann. § 28-52-103 (1987) as authority for the proposition that the estate at some time closed through operation of law; this argument is not persuasive. Although § 28-52-103 provides that a probate court may compel an administrator to discharge his or her lawful duties, nowhere does the statute provide for the closing of an estate independent of affirmative action by a probate court.
Further, Cullipher’s assertion that Skaggs’s failure to timely close the estate in contravention of Ark. Code Ann. § 28-52-102(a) (1987) allows the estate to be deemed closed on equitable doctrines is equally unpersuasive. This statute merely states “a personal representative shall close the estate as promptly as practicable.” Id. Moreover, this argument ignores the fact that Cul- lipher was a co-administrator of the estate along with Skaggs, and also did not file the final report required to close the estate, and does not explain why justice demands that the probate court relieve Cullipher of a burden created by his own inaction. Clearly, Cullipher could have sought closure of the estate by filing the final report, or the probate court could have compelled completion of the remaining ministerial duties and then ordered the estate closed. Neither course of action was taken, and we know of no authority by which an open estate may be closed other than by order of the probate court.
2. Summary judgment on disputed issues
Cullipher next argues that the trial court erred in granting a summary judgment on disputed issues. In a memorandum opinion, the probate court found that Skaggs was aware, or should have been aware of the legal claims that allegedly existed for the wrongful death of Mrs. Cullipher at the time he signed the family settlement agreement. Skaggs contends that he was not aware that the estate had a cause of action against Cullipher until he consulted with his present attorney. We do not find any merit to this argument because ignorance of one’s legal rights cannot be asserted as a basis for the failure to pursue a cause of action. See Wilson v. G.E. Capital, 311 Ark. 84, 87, 841 S.W.2d 619, 620-21 (1992).
3. Wrongful-death action
Skaggs’s third assertion is that the court erred in finding that the Memorandum Agreement settled and released the cause of action for wrongful death filed on behalf of the statutory heirs. In its memorandum opinion, the trial court found that the Memorandum Agreement that averted litigation of the will contest was a family settlement agreement as a matter of law. The trial court also found that the agreement was enforceable and should be enforced, and that the wrongful-death action pending in circuit court was in contravention of the agreement. In the order granting defendant’s motion for summary judgment and motion to dismiss, the trial court found that the language of the family setdement agreement released all claims which the estate of Mrs. Cullipher and the parties to the agreement could have pursued between themselves arising from her death, including an alleged wrongful-death suit against Cullipher.
We agree with Skaggs that the wrongful-death claim did not fall under the purview of the Memorandum Agreement. While the Arkansas Wrongful Death Statute requires that the action be brought by the personal representative of the deceased person, Ark. Code Ann. §16-62-102(b) (Supp. 1995), the statute states further that “[n]o part of any recovery referred to in this section shall be the subject of the debts of the deceased or become, in any way, a part of the assets of the estate of the deceased person.” Ark. Code Ann. § 16-62-102(e) (Supp. 1995).
The Arkansas Supreme Court has interpreted the role of the personal representative under the Wrongful Death Statute to be one of a mere conduit that allows the proceeds from a successful suit to reach the beneficiaries under the statute. Accordingly, these proceeds do not become part of the estate. Dukes v. Dukes, 233 Ark. 850, 349 S.W.2d 339 (1961).
Skaggs contends, and we agree, that there is no language in the Memorandum Agreement which would serve to release Cullipher from a wrongful-death action. The agreement recites as its purpose to avoid “the expenses, delay, and uncertainties of outcome in litigation involving [the] lost will,” and it purports only to be a “compromise and settlement of all matters involved in the administration and distribution of the estate of the decedent.” (Emphasis provided.) We further concur that the agreement is ineffective as a settlement of the wrongful-death action because it was not signed by all of the persons with statutory rights to the proceeds. The statute defines the parties in interest in a wrongful-death suit as follows:
The beneficiaries of the action created in this section are the surviving spouse, children, father and mother, brothers and sisters of the deceased person, persons standing in loco parentis to the deceased person, and persons to whom the deceased person stood in loco parentis to.
Ark. Code Ann. § 16-62-102(d) (Supp. 1995). In this case, several statutory beneficiaries including Mrs. Cullipher’s mother, two of her sisters, and one of her brothers, were not made .parties to the settlement. If indeed the settlement agreement was intended to settle the wrongful-death claim, and in effect relinquish the rights of the statutory heirs, then those persons had to be made parties to the agreement. In Wallace v. King, 205 Ark. 681, 170 S.W.2d 377 (1943), the Arkansas Supreme Court held that where a settlement agreement was not signed by all interested parties, it was not binding even on those who did actually sign the agreement.
For the foregoing reasons, we hold that the trial court erred in finding that the wrongful-death action filed against Cullipher was in contravention of the settlement agreement.
Our holding is primarily premised not on who actually signed the agreement, as the dissent by Chief Justice Robbins contends, but upon what the agreement purports to settle — not “all claims between the parties” but rather all matters involved in the administration and distribution of Mrs. Cullipher’s estate. Consequently, the rationale for enforcing the agreement with regard to claims which would accrue to the estate, i.e., pain and suffering, medical expenses and funeral expenses, of the decedent, does not serve to also foreclose a wrongful-death claim not due or owing to the estate, whether the agreement is signed by the statutory beneficiaries of the wrongful-death action or not. Moreover, the fact that only the beneficiaries named in Mrs. Cullipher’s will and her sole intestate heir-at-law, her spouse, signed the settlement agreement supports a finding that the agreement compromised and settled only matters involved in her estate.
4. Survival action
We reach a different conclusion with regard to Skaggs’s argument that the court erred in finding that the agreement settled and released the estate’s survival cause of action against Cullipher. Skaggs contends that the only intention of the parties to the Memorandum Agreement was to settle the division of assets and debts then known to exist in the estate. He suggests that a careful reading of the agreement and all other documents associated with the estate will prove that they contained no language that could reasonably be construed to constitute a release of all claims against Cullipher.
However, in this action, Skaggs is acting to marshal assets that will, if the suit succeeds, become part of the estate. The plain language of the agreement states that it is a “compromise and settlement of all matters involved in the administration and distribution of the estate of the decedent.” Moreover, the agreement was executed by all parties designated as beneficiaries under the lost will and by Cullipher, the sole heir-at-law to the estate. The administrator is empowered by statute to make settlements on behalf of the estate. Ark. Code Ann. § 28-49-104(a) (1987) states in pertinent part:
When it appears to be for the best interest of the estate or in the case of an action for wrongful death or for the best interest of the estate or widow and next of kin, the personal representative, upon the authorization of or approval by the court, may effect a compromise settlement of any claim, debt, or obligation due or owing to the estate, whether arising in contract or tort. . . .”
(Emphasis supplied.)
Skaggs argues that the agreement should fail because it does not contain all of the elements of a contract, however, he does not dispute the trial court’s finding that the Memorandum Agreement was a family settlement agreement as a matter of law. Such agreements are afforded a legal status distinct from typical contracts, and will be enforced without closely scrutinizing the consideration of the transaction or the strict legal rights of the parties. Giers v. Hudson, 102 Ark. 232, 143 S.W. 916 (1912). See also Shell v. Sheets, 202 Ark. 708, 152 S.W.2d 301 (1941). Accordingly, we do not agree that the trial court erred in finding that the Memorandum Agreement settled the survival action that Skaggs sought to bring on behalf of the estate of Mrs. Cullipher.
As to Judge Rogers’s concurring and dissenting opinion that the probate court lacks jurisdiction over torts, the authority upon which she relies stands only for the .proposition that a probate court may not litigate tort claims or deal with such claims on a substantive basis. Two of the cases cited, Eddleman v. Estate of Farmer, 294 Ark. 8, 140 S.W.2d 141 (1987) and In re Morgan, 310 Ark. 220, 833 S.W.2d 776 (1992) involved the attempt to try tort cases in probate court. The other case, Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984), affirmed the probate court’s dismissal of letters of administration for the estate of an unborn fetus, but contained dicta that a wrongful-death action by the heirs at law would not be precluded. We find that the probate court’s exercise of jurisdiction in this case was not an attempt to litigate the tort claim.
A probate court has constitutionally vested jurisdiction over the actions of persons appointed to act on behalf of an estate. Ark. Const. art. 7, § 34. The probate court will therefore have some superintending authority over wrongful-death actions because only a personal representative may bring a survival action if one has been appointed. Ark. Code Ann. § 16-62-102(b) (Supp.1995); see, e.g., Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994). Moreover, it is clear that probate courts have jurisdiction with regard to the settlement of tort claims, pursuant to Ark. Code Ann. § 28-49-104(a) (1987). Furthermore, probate courts have the authority to determine whether there has been a family settlement agreement in the course of approving distribution of estate assets. Alexander v. First National Bank of Fort Smith, 275 Ark. 439, 631 S.W.2d 278 (1982). In short, a personal representative has the authority to settle tort claims due the estate, and the probate court has the authority to approve such settlements. This is no more than the probate court did in this instance — it determined that a family settlement agreement had been reached which encompassed such a claim.
Affirmed in part, reversed in part, and remanded.
Robbins, C.J., Crabtree, Rogers, Pittman, and Neal, JJ., agree as to Part I and II.
Crabtree, J., agrees as to Part III, and Rogers and Pittman, JJ., concur in the result.
Robbins, C.J., and Neal, J., dissent as to Part III.
Robbins, C.J., Crabtree, and Neal, JJ., agree as to Part IV.
Rogers and Pittman, JJ., dissent as to Part IV. | [
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John B. Robbins, Chief Judge.
In the divorce proceeding between appellant and appellee, the chancellor held that no legal relationship existed between appellant, Marty Ryan Leach, and the daughter of appellee, Amy Varner Leach. The effect of his ruling illegitimized the firstborn child of the marriage. The chancellor ruled that because of this finding, appellant could not be considered for custody of the child and granted custody to the natural mother, appellee. This appeal resulted.
The record reflects that the parties were married on November 15, 1990, well into appellee’s pregnancy with the child at issue. Neither appellant nor appellee assert that appellant is the natural father; they knew she was pregnant by another man, but they married, and the child was born of the marriage in January 1991. Appellant had his name placed on her birth certificate, and he continually represented himself as her father. The parties agreed not to raise the issue of paternity with regard to this child. However, appellant never legally adopted this child. Appellee gave birth to another child, a son, in September 1993, who was appellant’s biological child. In September 1995, divorce proceedings were filed, and in a subsequent temporary relief hearing the appellant was granted temporary custody of both children and possession of the marital home. Appellee was granted visitation privileges at that time.
A final hearing was held on December 11, 1995, wherein testimony was taken from both parties. Both parties sought cus-. tody of the children. Appellant testified that he claimed the girl as his own. At the time of the hearing, she was four years old. Appellant stated that he had never alleged that anyone else was the father of this child. He knew of no paternity tests ever being conducted. Appellant’s name was put on the birth certificate, and the child bears appellant’s surname. Appellee testified that she and appellant had reached an agreement that appellant would be the father of the child and that they would never mention in the future that she was not his biological child.
At the conclusion of taking testimony, the chancellor brought up the issue of jurisdiction over custody of the elder child. Counsel for the parties responded that they had not intended to make paternity an issue in this case, but the chancellor said:
My problem, my question is, whether or not this Court has the jurisdiction, [it] would be the subject matter jurisdiction, which I must raise, whether it’s raised or not by the pleadings, to grant custody to Mr. Leach when the record is clear, it’s undisputed, that he is not the father of this child.
After taking under advisement all issues except the granting of divorce, the chancellor issued a letter opinion which merged into the divorce decree. In it he determined that no legal relationship existed between the firstborn child and appellant, based upon the fact that “both parties agree he is not the natural father,” and that although he had treated her as his own since birth, he had not adopted her and established a legal relationship. He stressed that both parties were fit parents; however, the best interests of the children dictated that they should not be separated, necessitating a conclusion that appellee be awarded custody. Appellant father was granted visitation of both children and ordered to pay support only for his biological child.
The chancellor reasoned that Arkansas statutory law requires that custody of an illegitimate child of an unmarried woman must be in such woman unless a court of competent jurisdiction places custody in another. Ark. Code Ann. § 9-10-113 (Repl. 1993). Upon this statute, the chancellor felt compelled to give appellee custody of the children. However, as the emphasized terms of the statute make clear, this mandatory grant of custody is not required as to a married woman. We need not reach the issue of correct or incorrect application of that statute.
It is apparent to this court that the chancellor erroneously determined that the elder child was illegitimate, although neither party raised the issue. At issue is a child born within the bonds of marriage, and this state has always held sacred the legitimacy of children:
Marriage is still considered an honorable institution; children born during marriage should be deemed legitimate, and legal efforts to declare such children illegitimate are not and should not be made easy. Belief in that principle is so great that we have created a legal presumption to protect it. This presumption, that a child born during marriage is the legitimate child of the parties to that marriage, is one of the strongest presumptions recognized by the law.
Thomas v. Pacheco, 293 Ark. 564, 567-568, 740 S.W.2d 123, 125 (1987).
Act 657 of 1989, codified at Ark. Code Ann. § 16-43-901 (Repl. 1993), abolished Lord Mansfield’s Rule. The commonlaw rule, articulated in 1777, states the declarations of husband and wife cannot be admitted to bastardize a child born after marriage. The statute now permits a mother, her husband, and a putative father to testify about the paternity of a child. However, the strong presumption of the legitimacy of a child born of marriage continues to be one of the most powerful presumptions in Arkansas law. Only upon clear and convincing evidence may the court find this presumption overcome. This statute also provides:
The court shall consider foremost the interest of the child in making any determination hereunder and consider only testimony and evidence which will serve the best interest of the child in its findings pursuant to this section.
Id. at subsection (g)(2). Illegitimizing the elder child was not in her best interest, nor was it a goal of either of her parents.
We recognize that appellate review is performed de novo, and we reverse only if the decision is clearly contrary to the preponderance of the evidence. Johns v. Johns, 53 Ark. App. 90, 918 S.W.2d 728 (1996). Furthermore, special deference is shown to rulings regarding child custody because of the special care required and the unique opportunity to evaluate evidence and judge credibility of witnesses. Id. Upon the facts of this case we must reverse and remand so that the chancellor may reevaluate the evidence and witnesses with regard to the custody, visitation, and support issues. Custody and visitation should be determined solely on consideration of the best interest of the children.
Reversed and remanded.
Stroud and Crabtree, JJ., agree. | [
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Sam Bird, Judge.
Appellant, Leah Hightower, appeals a decision of the Workers’ Compensation Commission that held that, under the provisions of Act 796 of 1993, codified as Ark. Code Ann. § 11-9-102 (Repl. 1996), appellant was not entitled to compensation for an injury sustained when she fell on ice in her employer’s parking lot. Appellant argues that the Commission erred in finding that appellant was not engaged in any activity to carry out the employer’s purpose or to advance the employer’s interest when the accident occurred; therefore, she was not entitled to an award of benefits.
On appeal, we must affirm if the Commission’s finding is supported by substantial evidence; even when a preponderance of the evidence might indicate a contrary result, we affirm if reasonable minds could reach the Commission’s conclusion. Bemberg Iron Works v. Martin, 12 Ark. App. 128, 671 S.W.2d 768 (1984); Bearden Lumber Co. v. Bond, 1 Ark. App. 65, 644 S.W.2d 321 (1983).
In 1993, the Arkansas Legislature passed Act 796 of 1993 and provided that it applied to all injuries occurring after July 1, 1993. The Act requires that, rather than applying the terms of the Act liberally and resolving all doubts in favor of the claimant (as previous law had required), the evidence is to be weighed impartially, without giving the benefit of the doubt to any party, including the claimant, and it requires the courts to construe the provisions of the Act strictly. The Act also added a new definition to our workers’ compensation statute: “Compen-sable injury” does not include injury that was inflicted upon the employee at a time when employment services were not being performed. Ark. Code Ann. § 11 -9 — 102(5)(B)(iii) (Repl. 1996).
Appellant was employed as a teacher at a preschool day-care center in Oil Trough, Arkansas. On March 9, 1994, the school and day-care center were closed because of ice and snow. The day-care center was to be open the following day, and appellant was ordered to report to work at her usual time, 7:30 a.m., on March 10. Appellant testified that when she arrived at the employer’s parking lot, which was gravel, it was a sheet of ice. She said she proceeded cautiously; nevertheless, her feet slipped out from under her. She was able to catch herself on a nearby car to keep from falling to the ground, but she was jerked. Appellant continued into the building, bent over to sign in, and when she raised up she felt severe back pain.
Appellant was sent home for bed rest, but when she did not immediately improve she was advised by her employer to seek medical care. Appellant went to the emergency room, where she was prescribed medication and told to take five days of bed rest. When she was not better after the bed rest she went to her family doctor. He ordered thirteen physical-therapy sessions. Appellant missed only two weeks of work.
The administrative law judge found that, pursuant to Act 796 of 1993, appellant was not entitled to compensation for this injury because, at the time of her injury, she was not performing “employment services.” The Commission affirmed and reasoned that, although the Act does not define “employment services,” the Commission had previously held that an employee was performing “employment services” when he/she was engaging in an activity that carried out the employer’s purpose or advanced the employer’s interests. The Commission only cited one of its own cases, then held that “[Sjtrictly construing the provisions of the amended law as mandated by Ark. Code Ann. § ll-9-704(c)(3) (Cumm. Supp. [sic] 1993), we find that the employment services exception to the definition of compensable injury under the amended law has eliminated the premises exception to the going and coming rule.”
The going-and-coming rule ordinarily denied compensation to an employee while he was traveling between his home and his job, reasoning that employees having fixed hours and places of work are generally not considered to be in the course of their employment while traveling to and from work. Wright v. Ben M. Hogan Co., 250 Ark. 960, 468 S.W.2d 233 (1971); Howard v. A.P. & L. Co., 20 Ark. App. 98, 724 S.W.2d 193 (1987).
The premises exception to the going-and-coming rule provided that, although an employee at the time of injury had not reached the place where his job duties were discharged, his injury was sustained within the course of his employment if the employee was injured while on the employer’s premises or on nearby property either under the employer’s control or so situated as to be regarded as actually or constructively a part of the employer’s premises. Wentworth v. Sparks Regional Med. Ctr., 49 Ark. App. 10, 894 S.W.2d 956 (1995); City of Sherwood v. Lowe, 4 Ark. App. 161, 628 S.W.2d 610 (1982). Under prior statutes (pre-Act 796 of 1993) appellant’s injury would have been compensable under the premises exception to the going-and-coming rule that allowed compensation where an employee was injured while on or in close proximity to the employer’s premises, and there was a causal connection between the claimant’s injury and the employment, or the condition of the place, means, or appliance furnished or controlled by the employer. Wentworth, supra.
In the instant case, appellant contends that the premises exception should be applied because she had reported to work pursuant to the directions of her employer, she slipped on ice in her employer’s parking lot, and moments later, when she bent over to sign in, as required by her employer, she felt severe pain in her back. She argues that her injury was caused by the condition of her employer’s premises.
In support of her argument appellant cites Davis v. Chemical Constr. Co., 232 Ark. 50, 334 S.W.2d 697 (1960); Bales v. Service Club No. 1, Camp Chaffee, 208 Ark. 692, 187 S.W.2d 321 (1945); Lepard v. West Memphis Mach. & Welding, 51 Ark. App. 53, 908 S.W.2d 666 (1995); Wentworth v. Sparks Regional Medical Ctr., supra (1995); Woodard v. White Spot Cafe, 30 Ark. App. 221, 785 S.W.2d 54 (1990); and City of Sherwood v. Lowe; supra (1982). Only Wentworth and Lepará were decided after Act 796 was enacted. However, both Lepard and Wentworth’s injuries were sustained in 1992. As stated above, § 41 of Act 796 of 1993 states that “the provisions of this act shall apply only to injuries which occur after July 1, 1993.”
The language of Ark. Code Ann. § ll-9-102(5)(B)(iii) excludes from being compensable injuries that occur “at a time when employment services were not being performed.” This provision seems clearly aimed at eliminating the premises exception to the going-and-coming rule since, under a strict construction of Ark. Code Ann. § 11-9-102(5) (B)(iii), merely walking to and from one’s car, even on the employer’s premises, does not qualify as performing “employment services.” Therefore, the Commission’s decision that appellant was not entitled to compensation for her injury is supported by substantial evidence and is affirmed.
Affirmed.
Jennings and Griffen, JJ., agree. | [
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John B. Robbins, Chief Judge.
In January 1990, appellant Peoples Bank of Imboden loaned Richard Burgess and his wife, Melinda Burgess, the sum of $160,200.00 toward the purchase of eight acres of land and a salvage business owned by Richard’s parents, Gib and Geraldine Burgess. The promissory note to the bank was secured by a mortgage on the real property and a security interest in several vehicles. Richard Burgess and Melinda Burgess were makers of this promissory note, and Gib Burgess and Geraldine Burgess signed as guarantors.
In August 1990, Richard Burgess and Melinda Burgess gave Gib Burgess, now deceased, and Geraldine Burgess, the appellee herein, a promissory note in the amount of $150,000.00. This note apparently represented the remainder of the purchase price owed by Richard Burgess and Melinda Burgess. As security for payment of the note, a mortgage on the same property mortgaged to appellant bank was executed by Richard Burgess and Melinda Burgess in favor of Gib Burgess and Geraldine Burgess.
On March 21, 1991, the appellant bank loaned Richard Burgess $4,501.00 for the purchase of a 1987 Dodge truck, and received a promissory note executed solely by Richard Burgess. On October 1, 1991, the bank loaned $25,024.00 to Richard Burgess and Melinda Burgess and received as collateral a security interest in certain automobiles.
The original $160,200.00 loan to the Burgesses was extended by written agreement on March 9, 1992. The extension agreement reduced the interest rate from 12 percent to 8 1/2 percent and reduced the quarterly payments on the note from $10,050.00 to $5,000.00. The $25,024.00 loan was also extended and its interest rate reduced from 10 percent to 8 1/2 percent.
On December 16, 1993, the bank entered into another loan transaction with Richard Burgess, who signed as sole obligor. The amount of this loan, equaled the unpaid balances of the three previous loans ($129,964.64) and $301.00 of filing fees. The new promissory note was in the principal amount of $130,265.00 with interest at 8 percent and provided that payment of the total indebtedness was due on December 16, 1994. A mortgage on the same eight acres of real property was executed by Richard Burgess as security for the loan. In conjunction with the closing of the December 16, 1993, loan, the appellant bank gave Richard Burgess receipts that reflected payment in full of the indebtedness owed on the first and third loans.
Richard Burgess defaulted on the final, $130,265.00 loan, and on March 13, 1995, the bank commenced a foreclosure action. Appellee Geraldine Burgess was not named as a party in the initial complaint, but on motion she was allowed to intervene. The bank then amended its complaint to include allegations of priority because of its original 1990 loan and mortgage.
After considering the evidence and the arguments of counsel, the chancery court determined that a novation had occurred when the bank combined these three loans and entered into the December 16, 1993, loan transaction with Richard Burgess. The chancery court specifically found that the bank did not intend to release its priority status when it executed the final loan. Nevertheless, the chancery court concluded that the first and third loans had been satisfied, thereby discharging those debts and extinguishing the original mortgage lien. The court found that, due to the bank’s negligence, the appellee was entitled to a first lien on the subject real property with the bank’s mortgage lien being secondary. The bank was awarded judgment against Richard Burgess in the amount of $148,408.40, and Geraldine Burgess was awarded judgment in the amount of $181,633.00. The court ordered that the proceeds of a public foreclosure sale of the real property be first applied toward satisfaction of the judgment in favor of Geraldine Burgess.
For reversal, the bank argues that the chancery court erred in finding that Geraldine Burgess was entitled to a first lien on the subject property. It contends that its final loan to Richard Burgess was merely a consolidation of existing loans and was made as an accommodation to him. The bank relies on the fact that it never intended to release its original mortgage, and submits that this fact should have prevented its lien from becoming inferior to that of Geraldine Burgess. The bank asserts that, whether the final transaction with Richard Burgess constituted a novation, extension, or modification, it should still have retained a first lien.
In their briefs, both appellant and appellee cite Home Federal Savings and Loan Assoc. v. Citizens Bank, 43 Ark. App. 99, 861 S.W.2d 321 (1993). In that case, the appellant held first, second, and third mortgages on property owned by a third party. When the mortgagors needed additional time to repay the three notes secured by these mortgages, the appellant agreed to consolidate them. The new note not only included the amount owing on the three prior notes, but also included an additional indebtedness and had an interest rate different from the earlier notes. The appellant released the first, second, and third mortgages, and recorded the mortgage securing the new note.
Prior to releasing its mortgages, the appellant in the Home Federal case failed to discover that the appellee bank had obtained a judgment against the mortgagors, which had been entered of record and become a lien after the original three mortgages were recorded but prior to the new, consolidated mortgage. The chancery court found that the new note was intended to be a new loan rather than a continuation or renewal of the three prior notes, and concluded that the appellant had lost its priority status. On appeal, this court affirmed. In doing so, we noted that the appel-lee failed to show any reliance or possible prejudice if the appellant’s mortgages were reinstated. Nonetheless, we stated that, in such cases, a mortgagee must be free from culpable negligence in order to have its mortgage reinstated. We found that, under the facts of that case, the chancellor’s finding that the appellant demonstrated culpable negligence was not clearly against the preponderance of the evidence.
In the instant, case, it is our duty to affirm the findings of the chancery court unless they are clearly erroneous. See RADRazorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). The chancery court found that Peoples Bank of Imboden lost its priority status through its own negligence and poor banking practices. We find that this decision was not clearly erroneous and, therefore, affirm the order of the chancery court.
Although the bank in the case at bar did not intend to release its original mortgage lien, its actions produced this effect. The supreme court has observed that “payment of the debt instandy and of itself discharges the mortgage,” and that “there can be no lien when there is no debt.” Burnside v. Futch, 229 Ark. 664, 647, 317 S.W.2d 717, 720 (1958). Although proceeds from the final loan made by the bank to Richard Burgess were used in part to satisfy the initial loan that was secured by a mortgage lien on the same real property, the proceeds were also used to pay off other loans that were not so secured. In addition, the interest rate on the final loan was 8 percent, a rate different from the interest rate on the initial loan. All of the parties to the first loan were not also parties to the final loan, and it has been held that a change in the parties renewing a mortgage amounted to satisfaction of the discharged lien, and not a continuation of the old mortgage as against intervening liens, at least where the instrument of discharge contains an express recital of payment. See 55 Am. Jur. 2d Mortgages § 404 (1996). In the present case, the parties to the two mortgages were not identical, and the bank gave Richard Burgess a receipt that reflected payment in full of the indebtedness on the first loan.
We think that Peoples Bank of Imboden could have taken steps to protect its priority status in this case. We find no error in the chancellor’s conclusion that the bank failed to do so, and that the bank released its first lien on the subject property when it extinguished the prior loans and entered into the loan transaction of December 16, 1993.
Affirmed.
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Wood, J.
This cause was submitted to the trial court sitting as a jury upon an agreed statement of facts, as follows:
On or about December 1,1919, J. W. Neely, a former citizen and resident of Brookport, Illinois, and a patron of the Farmers’ State Bank, the plaintiff herein, emigrated to Arkansas, and located near Blytheville, his correct postoffice address being Blytheville, Arkansas, R. F. D. No. 1. Before leaving Illinois, he had disposed of some property there, and on the 4th day of December, 1919, the plaintiff bank issued its cashier’s check payable to J. W. Neely for the sum of $540.85, which was put in the mail properly addressed to him at Blytheville, Arkansas, R. F. D. No. 1. The check never reached the person for whom it was intended, but was presented to defendant bank between the 4th and 13th of December, 1919, by a person, a negro, who represented himself to be J. W. Neely, and who indorsed the name “ J. W. Neely” upon said check, without the consent or authority of the person for whom said check was intended.
The person presenting said check received from the defendant bank the sum .of $140.85 in cash and left the balance of $400 on deposit in said bank to the credit of J. W. Neely. After receiving- said check as above, the defendant bank indorsed said check on the back as follows: “Pay to the order of any bank, banker or trust company, all prior indorsements guaranteed.
“Farmers’ Bank & Trust Company,
“Blytheville, Arkansas.
“H. E. Barnett, Cashier.”
Defendant bank then transmitted same to plaintiff bank for payment, which was made on December 13,1919. Upon learning that said check had not reached the hands for which it was intended, the' defendant bank paid over the $400 left on deposit to plaintiff bank, but refused to pay over the sum of $140.85, the amount paid upon presentation of said check, and this suit is by plaintiff bank to recover that sum.
It is further agreed that, upon receipt of information that the party for whom the said check was intended had never received same, plaintiff bank immediately wrote defendant bank, advising it that said indorsement was a forgery, but that said letter was not received by defendant bank, and that plaintiff bank had paid to the person who purchased said cashier’s check the amount represented thereby.
The finding and judgment of the court was in favor of the appellee, from which is this appeal.
Learned counsel for appellant rely upon the case of State Bank v. Cumberland Savings & Trust Company, 85 S. E. (N. C.) 5, L. R. A. 1915 D, p. 1138; Bank of St. Albans v. Farmers’ & Mechanics’ Bank, 10 Vt. 141; 33 Am. Dec. 188.
The first of the above cases is comparatively recent, the opinion having been rendered by the Supreme Court of North Carolina in 1915. The facts and the law announced as applicable thereto reported in the syllabus to that case in 85 S. E. 5, are as follows: “Plaintiff bank, which, in the course of business, received through another bank a check purporting to be drawn on it and indorsed by a third person, whose signatures were both forged, and which had been cashed by defendant bank, in reliance upon the indorsement ‘ ‘ all prior indorsements guaranteed” and the custom to take such checks relying upon the exercise of due diligence on the part of the bank first cashing it, could not recover the amount paid bn the forged check, as it should know the signature of the drawer, its own depositor.”
This doctrine has no application to the facts of this record. Here its cashier’s check made the appellee both the drawer and the drawee. In this case the drawee was not required to know the signatures of the indorsers. To apply the doctrine of State Bank v. Cumberland Savings & Trust Co., supra, to the facts of this record would be to ignore a wholesome principle of natural justice and equity which has also been thoroughly established as a rule of law, towit: That, as between two innocent parties to a transaction which must result in financial loss, the loss must fall upon that one whose acts contributed most to produce it. The principle is well expressed in the case of Danvers Bank v. Salem Bank, 151 Mass. 280, as follows: “Where a loss which must be borne by one of two parties alike innocent of the forgery can be traced to the neglect or fault of either, it is reasonable that it should be borne by him, even if innocent of any intentional fraud, through whose means it has succeeded. To entitle the holder to retain money obtained by a forgery, he should be able to maintain that the whole responsibility of determining the validity of the signature was placed upon the drawee, and that the vigilance of the drawee was not lessened, and that he was not lulled into a false security by any disregard of duty on his own part, or by the failure of any precautions which from his implied assertion in presenting the check as a sufficient voucher the drawee had a right to believe he had taken. # * * When this check was forwarded by the defendant for redemption, the plaintiff was without the means it would have had if it had been presented at its own counter of ascertaining the character of the person offering it. It had a right to believe that the defendant, in cashing a check purporting to be drawn by one not its own customer or entitled to draw upon it, had by the usual and proper investigation satisfied itself of its authenticity. The indorsement, which was not necessary to the transfer of the check, was a guaranty of the signature of the drawer, and the plaintiff had a right to believe that the indorser was known to the defendant by-proper inquiry.” See, also, People’s Bank v. Franklin Bank, 88 Tenn. 299; 17 Am. St. Rep. 84; Farmers’ National Bank of Augusta v. Farmers’ & Traders’ Bank of Maysville, 159 Ky. 141; Cureton v. Farmers’ State Bank. 147 Ark. 312.
The rule invoked by appellant is an exception to the rule that money which has been paid through a mistake can generally be recovered. This exception is mentioned by Judge Riddick, speaking for the court, in LaFayette v. Merchants’ Bank, 73 Ark. 561-66. This exceptional rule, however, as held in the case of Farmers’ National Bank of Augusta v. Farmers’ & Traders’ Bank of Maysville, supra, does not “require the drawee bank to know the signature of an indorser. That burden is upon the holder, who is bound to know that the previous indorse-ments, including that of the payee, are in the handwriting of the parties whose names appear upon the check, or were duly authorized by them.” In First National Bank v. Northwestern National Bank, 152 Ill. 296, it is held (quoting syllabus): “A bank indorsing and collecting a check warrants the genuineness of all pre-exist.-ing indorsements thereon, including the indorsements of the respective payees named in such check, and is answerable for moneys received by it if any such indorse-ments are forgeries.”
In the case of Schaap v. State National Bank of Texarkana, 137 Ark. 251, we said: “In other words, the true owner of a check, with a forged or unauthorized indorsement, may ratify the act of a bank in receiving it in that condition, and collecting the proceeds or paying them out without authority, and yet not ratify the forged or unauthorized indorsement. In such cases the bank can not avoid liability by showing that its conduct was governed by good faith, and the payee is entitled to recover .unless he has been guilty of fraud or negligence in the matter. ’ ’
The facts of this record show that the appellee was not guilty of any fraud; and if it could be said to be in the least negligent, its negligence in a measure was superinduced by the indorsement of the appellant, which was calculated to lull the appellee into a sense of security in reliance upon such indorsement and thereby lessen the diligence which it doubtless otherwise would have exercised. It follows that the rulings of the circuit court are in all things correct, and its judgment is therefore affirmed. | [
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Wood, J.
On the 9th of March, 1921, the same being an adjourned day of the regular February term of the Van Burén Circuit Court, the appellant was convicted of the crime of selling intoxicating liquors, and by judgment of the court sentenced to imprisonment in the State penitentiary for one year. From that judgment he prosecutes this appeal.
1. Appellant urges as a ground for reversal of the judgment that the court erred in overruling his motion for a continuance. He assigns two reasons why the court erred. First, because of the absence of H. G-. Woi-verton, a material witness, who was summoned before the court convened, and who was sick and unable to attend. The motion for continuance was in due form, but was not verified either by the appellant or his attorney for him, and, furthermore, another witness testified on behalf of appellant to substantially the same facts' set up in the motion tending to impeach the testimony of the State’s witness. The court did not abuse its discretion under these circumstances in overruling the motion. Sections 1270 and 3130 of Crawford & Moses’ Digest. Morris v. State, 103 Ark. 352; James v. State, 125 Ark. 269; Burris v. Wise & Hind, 2 Ark. 33, 40; State Life Ins. Co. v. Ford, 101 Ark. 513.
2. The appellant set up that the cause should be continued on account of the absence of J. A. Eades, who was unable to attend court because the adjourned term was at a day when the circuit court was in regular session at Morrilton, requiring the attorney’s presence at the latter court. The affidavit of Eades in support of this ground of the motion shows that he had been employed by the appellant to defend him, and his fee had been paid; that he appeared in attendance at the regular term of the Van Burén Circuit Court, but that court was adjourned until the 7th of March on account of the absence of the regular judge; that he could not appear at the adjourned day because on that day the regular term of the circuit court was in session at Morrilton, and he could not be present at both courts and was compelled, on account of his business in the latter court and the duty lie owed his clients there, to attend that court. Of these facts he duly notified the presiding judge of the latter court and also the prosecuting attorney, and requested a continuance of the cause to the regular fall term >of the Van Burén Circuit Court. The regularly employed attorney being absent, the court appointed Garner Fraser, an attorney in attendance at the adjourned term of the Van Burén Circuit Court, to repre sent the appellant, who prepared and filed his motion for continuance, and conducted his defense.
The court did not err in refusing appellant’s motion to continue because of the absence of employed counsel. The right to be heard by counsel, guaranteed to persons accused of crime by the Bill of Bights, article 2, section 10, Constitution of 1874, was not denied the appellant in this case. On the contrary, when his regularly employed counsel did not appear, the court appointed counsel to represent him. Counsel who are employed to represent clients having cases pending in courts must so arrange their business as to be able to appear to represent their clients when those cases are called for trial. The business of the courts can not be controlled, interrupted, or made to conform to the business interests of attorneys. The fact that an attorney may have cases for clients pending in different courts whose terms convene at the same time, and which condition may render it impossible for the attorney to be in attendance at one of the courts, is no imperative reason for the continuance of the causes in which he is employed in the court which he does not attend. These are matters addressed to the sound discretion of the presiding judge of the court, who must conduct the public business entrusted to him in a manner most conducive to the interests of the public whom he serves. It is never an abuse of discretion for the court to refuse to grant a continuance in a cause on account of the absence of employed counsel, unless such counsel is absent by reason of sickness or some other unavoidable casualty. The absence of an attorney from a court where causes are pending in which he is employed as counsel because of causes pending in other courts in which he is also employed as counsel is not an unavoidable casualty.
3. The appellant contends that the court erred in sentencing the appellant on the day after the verdict of guilty was returned against him. The appellant relies upon section 3229 of Crawford & Moses’ Digest, which provides in part as follows: “Upon the verdict of conviction in cases of felony, the court shall not pronounce judgment until two days after the verdict is rendered unless the court is about to adjourn for the term, and then in not less than six hours after the verdict, except by the defendant’s consent.” The record shows that the jury returned a verdict on the 9th of March, and the record entry of March 10 is as follows: “The defendant was this day brought into open court and, being informed of the nature of the indictment, plea and verdict, was asked if he had any legal cause to show why sentence should not be pronounced against him, and, none being shown, it is adjudged, etc.” The record does not show when the Van Burén Circuit Court adjourned. In the absence of any showing to the contrary, it will be presumed that the sentence was pronounced according to law. Moreover, the appellant did not make any objection at the time to the pronouncement of the sentence, and he was given an opportunity to do so. He therefore must be held to have waived the time specified in the statute.
"We find no errors in the record, and the judgment is therefore affirmed. | [
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McCulloch, C. J.
Appellee instituted an action in the chancery court of Garland County against E. D. Brown and T. G. Holland as copartners to recover a debt due on account for merchandise sold and delivered and to wind up the partnership, alleged to he insolvent, to secure the appointment of a receiver and to subject the assets of the partnership to the payment of debts. A receiver was appointed by the court who took charge of the partnership property which consisted of automobile accessories, repairs, equipments and other things at the place of business of said copartners in the city of Hot Springs.
Subsequently it was discovered that immediately before the appointment of the receiver four wooden boxes supposed to contain automobile accessories and repairs, two automobile wheels, a lathe and a counter-shaft had been removed from the place of business of said copart-ners to the private residence of Brown’s father in the city of Hot Springs. The receiver claimed that the contents of the boxes and the other items mentioned were the property of said copartners, and he made demand on Brown’s father for delivery of said property to him, as receiver, under the court’s order. Pursuant to the demand, Brown’s father delivered the property to the receiver.
Appellant J. M. Brown, who is the brother of E. D. Brown, claimed this property as his own, asserts that he moved it from the place of business of Brown & Holland where he had been at work as an automobile mechanic, and that he left the property with his father for safekeeping. He intervened in the action and filed a plea claiming the property and praying that the court order the receiver to turn the property over to him.
There was a trial of appellant’s plea before the chancery court, which was heard on oral testimony in support of appellant’s claim and against it. The testimony was conflicting as to the ownership of the property in controversy. At least the testimony warranted the inference that the articles in dispute, or some of them, were part of the stock in trade of Brown & Holland from whose place of business they were removed. Appellant testified as a witness, and his testimony supports his claim. But he could not and did not give a detailed list of the articles in the boxes — he could only remember in' general terms the contents of the boxes and the aggregate value thereof. None of the other witnesses knew what the boxes contained, except one of the witnesses introduced by appellee, a negro who had worked in the repair shop and who helped to pack and haul the boxes for appellant. He could only give a general description of the things. Appellant refused to permit the boxes to be opened, though the court suggested that course. The court thereupon entered an order, over appellant’s objections, directing the receiver to open the boxes in his possession in the presence of appellant and three other persons on a specified date, and make an inventory of the articles in the boxes. An appeal has been prosecuted from that order, though the court did not render a decree on the merits of the controversy.
No sound reason is perceived' why appellant can claim exemption from the right of the other parties to the controversy to have the boxes opened so as to disclose the contents thereof and to enable the court to more readily determine whether those contents were the property of appellant or of Brown & Holland, appellee’s debtor. No personal right of appellant was violated in ordering that the boxes in the custody of the receiver be opened. To do so was essential to a correct determination of the rights of the parties.
But the order was interlocutory and not final. It was not an appealable one, for it did not determine the rights of the parties with respect to the subject-matter of the controversy. If an error has been committed, it must be corrected on appeal from a final decree.
The appeal is therefore dismissed. | [
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Smith, J.
Appellant is the owner of lands in Road Improvement District No. 1 of Mississippi County, which was created by act 380 of the-Acts of the General Assembly of 1919 (volume 2, Road Acts, page 1666). The commissioners of the district filed a petition in the county court, praying authority to open a road through one tract of appellant’s land and to widen an old road through other tracts of his land. The county court made the order prayed for, and at the same time approved the plans of the commissioners for the improvement and the assessments of benefits. In returning the assessments of benefits the commissioners awarded no damages for the new road or for the additional right-of-way taken in widening the old road. Within six months thereafter appellant commenced this action by presenting a claim for damages in the county court, and upon the hearing of the claim the county court awarded compensation for damages to the land traversed by the new road, but denied compensation for the additional right-of-way taken in widening the old road. An appeal was prosecuted from that order to the circuit court. The judgment of the circuit court is as follows:
“On this day, January 11, 1921, this cause coming on to be heard on the motion of the defendant to strike this cause from the docket, and the court, being sufficiently advised, doth sustain said motion.
“It is therefore considered, ordered and adjudged that this case be stricken from the docket. To which ruling and judgment of the court the plaintiff excepted at the time and prayed an appeal to the Supreme Court, which was granted.”
The motion to dismiss, which the court below sustained, does not appear in the transcript, and there is no motion for a new trial or bill of exceptions. We do not know, therefore, upon what allegations or testimony the court’s action was based. The motion itself, aiid any testimony which may have been offered on the hearing thereof, should have been incorporated in a bill of exceptions. Adkinson v. State, 142 Ark. 34; Johnson v. State, 142 Ark. 402.
We must assume that some showing was made to invoke a ruling of the court; and we must presume that a correct ruling was made in the absence of the motion to dismiss and a bill of exceptions showing what was heard in the court below. Van Hoozer v. Hendricks, 143 Ark. 463; Armstrong v. Lawson, 128 Ark. 39; Billingsley v. Adams, 102 Ark. 511; Laramore v. Radford, 135 Ark. 494; St. Louis, I. M. & S. Ry. Co. v. Murphy, 38 Ark. 456.
Appellee does not' call attention to the absence of a motion for a new trial and bill of exceptions; but the rules of procedure of this court require us, before reversing a judgment of the court below, to see that the error assigned for the reversal is properly presented by the record in the case.
The record in the case of Edgar v. Brown, ante, p. 314, was identical with the one now before us. In that case we said: “The judgment of dismissal does not recite the matters set up in the motion, nor whether the hearing was on the face of the motion or testimony adduced at the hearing. It simply states that, after hearing, the court,'being sufficiently advised, doth adjudge a dismissal of the appeal. If the motion had been brought into the record, it may have shown that the parties appealing were not aggrieved, or may have set up some other matter which warranted the court in dismissing the appeal. If it was heard upon evidence, the facts may have warranted a dismissal of the appeal. * * * It is impossible to tell on the record before us whether the dismissal was warranted. Appellant should have perfected the record by incorporating the written motion for dismissal, and if heard upon evidence should have brought the evidence into the record by a bill of exceptions. ’ ’
On the state of the record before us we must presume in favor of the order of dismissal and affirm the case, and.it is so ordered. | [
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Wood, J.
An action was brought by Henry Thurs-ton, appellee, who was the husband of Dora Thurston, to recover judgment against the appellant for damages which he alleged he sustained by reason of the death of his wife. The appellee, among other things, alleged that Mrs. Thurston was a passenger on appellant’s train from Booneville, Logan County, Arkansas, to Waveland, Yell County, Arkansas; that the agents of appellant negligently failed to stop and hold the train at Waveland for a sufficient length of time to allow Mrs. Thurston to alight in safety; that they negligently failed to furnish her with the necessary assistance and means to enable her to safely debark from the train; that by reason of the acts of negligence alleged, Mrs. Thurston fell while endeavoring to alight from the train and received injuries which produced and hastened her death, to his damage in the sum of $3,000, for which he prayed judgment.
The appellee, Charles I. Evans, as administrator of the estate of Mrs. Thurston, instituted an action against the appellant to recover damages for the benefit of the children of Mrs. Thurston. The acts of negligence alleged in his complaint are the same as those set forth in the complaint of the appellee, Henry Thurston. Appel-lee Evans alleged damages also in the sum of $3,000, for which he asked judgment. The answers denied the allegations of negligence and damages and denied liability. The causes were consolidated for trial and were sent to a jury. The trial resulted in verdicts and judgments in favor of the appellees, from which is this appeal.
1. The appellant contends there was no evidence to sustain the allegations of negligence in the complaint. The facts on the issues are substantially as follows:
About July 1, 1919, Mrs. Thurston, in company with her little girl and carrying such baggage as she needed for a trip, hoarded appellant’s train at Booneville, Logan County, Arkansas, for appellant’s station at Wave-land, Yell County, Arkansas, a distance of about eighteen miles. Mrs. Thurston had been ill'for some years with tuberculosis, though at that time she was better and was going on a visit to her mother for the benefit of her health. The train on which Mrs. Thurston took passage was about five hours late. It arrived at Waveland about two o ’clock p. m.
A witness who lived at Waveland observed Mrs. Thurston attempting to get off the train after it bad started. He was standing close to the steps and beard Mrs. Thurston holler and she kept hollering to let her off. Witness took hold of the little girl and set her off, and as she looked around Mrs. Thurston stepped off of the steps and got down and fell over on one leg and knee. She fell in an effort to get off of the train as it was starting. When witness heard Mrs. Thurston hollering after the train started, somebody began to flag the train. It did not stop until after Mrs. Thurston got in the waiting room. No one else got off there, and witness did not see any one get on. Neither the conductor, the porter, nor the brakeman were there. The train moved five nr six feet before it stopped. It was barely moving when she stepped off. She got down on one leg and on both hands. Witness did not assist her at all. The train was barely moving when witness helped the little girl off. Witness did not get to Mrs. Thurston before she got up. Witness did not know whether Mrs. Thurston kicked the step box off or not, but it fell off.
Another witness saw Mrs. Thurston while she was waiting to take the train that day, and she looked like she had been sick. Another witness, who was on the train when it reached Waveland, stated that she heard the step box fall and looked around and saw Mrs. Thurs-ton on one knee on both her hands on the ground. The train was then moving slowly. Mrs. Thurston got up and went to the station.
The conductor of the train testified that the-first he saw of Mrs. Thurston was when she was right in front of the freight room, probably going into the waiting room. The porter -had told him that some lady had fallen. He went back and asked her about getting off and asked her if she was hurt, and she stated that she was frightened more than anything else. This occurred in the waiting room. The witness looked after the unloading of passengers from the white passenger coach. He did not see Mrs. Thurston attempting to get off. The train was a vestibule train. Witness had been off the train at the front end of the chair car. They had a porter and a brakeman that day. The brakeman was back three or four car lengths protecting the rear end of the train. After the passengers were unloaded and loaded, witness and porter and brakeman went up to the express ear. They stayed there three or four minutes. The brakeman’s duties required him to be back at the rear end of the train. When the witness took up the ticket from Mrs. Thurston, she did not say anything to witness about being sick, and she was sitting in a seat just like the rest of the passengers. Witness did not pay any attention to her.
Another witness on behalf of the appellant testified that he was the station agent at Waveland and that he remembered the time Mrs. Thurston came down there and got off the train while it was just moving up. He saw her in the waiting room — was there when the conductor asked, her if she was hurt and she said she was not. Witness heard her say that she stepped off of the train and fell.
In Barringer v. St. L., I. M. & S. Ry. Co., 73 Ark. 548, we said: “But the law is that it is the duty of carriers to allow their passengers a reasonable opportunity of getting on or off their trains, and they must stop at stations long enough for that purpose. A reasonable time is such time as a person of ordinary care and prudence, under the circumstances, shouldhe allowed to take. It is the duty of the carrier, in determining what is a reasonable time, to take into consideration any special condition peculiar to any passenger, and to the surroundings at the station, and to give a reasonable time under the existing circumstances, as they are known, or should be known, by its servants, for a passenger to get on or off its train.” St. L., I. M. & S. Ry. Co. v. Trotter, 101 Ark. 183; St. L., I. M. & S. Ry. Co. v. Wright, 105 Ark. 269; St. L., I. M. & S. Ry. Co. v. Aydelott, 128 Ark. 479-485.
Applying the above doctrine to the facts which the evidence above set forth tended to prove, it was clearly an issue for the jury to determine whether or not the servants of appellant were negligent in not allowing Mrs. Thurston sufficient time and rendering her the necessary assistance in debarking from appellant’s train. The jury was warranted in finding that Mrs. Thurston and her little daughter were the only passengers who alighted from the train at Waveland station the day of the alleged injury, and that the conductor and his assistants — the porter and brakeman — knew, or should have known, this fact; that, when they were in the act of aligthing, the train was started and was moving slowly as they got off; that no step box was placed on the ground for their use; that, in her sick and feeble condition and. with her little girl and their baggage, it was necessary that Mrs. Thurston have assistance to enable them to get .off safely, and that appellant’s agents were bound to have known such facts and were negligent in not furnishing her such assistance and in not holding the train a reasonable length of time, under the circumstances, for Mrs. Thurston to safely alight.
While there is no affirmative duty upon the part of a conductor, porter or brakeman to ascertain the physical condition of passengers, or other conditions and circumstances making it necessary to render them special assistance in debarking from the train, nevertheless, where the physical ailment of any passenger is such, or other conditions áre such, that these train employees in the exercise of ordinary care in the discharge of their respective duties are bound to observe that they require assistance in getting safely on or off the trains, then it becomes the duty of such employees to render such assistance; and a failure to discharge such duty, resulting in injury to a passenger, is negligence, for which the carrier is liable in damages for such injury. In this case the jury might have found that Mrs. Thurston’s very appearance indicated that she was seriously ill. Her only companion was her little girl, and she was incumbered with some bag gage. Under these circumstances, the porter and brakeman and conductor, knowing that these were the only passengers to he discharged at Waveland, in the exercise of ordinary care in the discharge of their respective duties, could and should have observed that Mrs. Thurs-ton needed assistance to enable her to safely debark from the train, and that it was necessary for the train to be detained a sufficient length of time for that purpose. At least, it was a question for the jury under the circumstances to say whether or not these employees were negligent in failing to discharge their duties to Mrs. Thurston.
The instructions of the court on the issue as to whether appellant was negligent as alleged in the complaint were in conformity with the law as announced in previous decisions of this court in regard to the duty of carriers toward their passengers while getting on and off trains. See Barringer v. St. L., I. M. & S. Ry. Co., supra; St. L., I. M. & S. Ry. Co. v. Hartung, 95 Ark. 220. The doctrine announceed in Weirling v. St. L., I. M. & S. Ry. Co., 115 Ark. 505, is not applicable to the facts of this record, because of the difference between the facts of that case and those of the instant case. The court did not err in refusing the instructions in which the appellant sought to have the doctrine of that case applied to the facts of the present case.
2. Witness John Scott testified that he was at the station on the day that Mrs. Thurston got hurt. He met her right this side of the station. She said that she was sick, .or had been sick, and that she had fallen from the train and hurt her knee and ankle, and that she was not able to walk to her brother’s house. The appellant objected to the above testimony and asked that the same be excluded from the jury. The court overruled the objection and refused the request, to which the appellant duly excepted.
The testimony was not in the nature of res gestae. The remarks of Mrs. Thurston were not in the nature of voluntary exclamations of pain resultant from the in jury she had received, hut they were in the nature of a narrative of the fact that she was sick, that she had fallen and hurt her knee and ankle, and for that reason she was not a'ble to walk to her brother’s house. The court, therefore, erred in its ruling. L. R. & H. S. W. Ry. Co. v. Cross, 78 Ark. 220; Prescott & North Ark. Ry. Co. v. Thomas, 114 Ark. 56. But we can not agree with learned counsel for appellant that the error was prejudicial to appellant’s defense. The undisputed testimony shows that Mrs. Thurston fell on her hands and knee. The appellant’s conductor himself testified that the porter told him that some lady had fallen and that she was supposed to have dropped down on her knee in getting off of the train. Another one of appellant’s witnesses testified that he heard Mrs. Thurston say that she stepped off of the train and fell.
Mrs. Thurston’s brother, who was a witness for appellant, testified that when he drove up she told him that he had just come in time to save her life. ‘ ‘ She was complaining of being sick, and while she was at his house she kept complaining of a hurting in her side. She stayed there all night. My sister said she started to get off the train, and the little girl went out ahead of her, and she just kicked the step box out and started to getting off and the train was moving slowly when she started to- step off, but when she hit the ground she fell on one hand and on one knee.”
Other witnesses on behalf of the appellee, and without objection on the part of the appellant, testified that Mrs. Thurston fell on her knee and both hands, and that she said she had been sick, and she looked like she had been sick.
The physician, who was called to attend Mrs. Thurs-ton at her mother’s just after the alleged injury from the fall, testified, without objection from appellant, that he found that she “was suffering from some kind of a shock — had a bruised place on one ,Nf her knees — looked very much like she had fallen on her knee. ’ ’
In view of the testimony thus adduced by appellant itself and the undisputed testimony of the witnesses for the appellee showing that Mrs. Thurston was sick and that she had fallen on her knee and hands, it occurs to us that no possible prejudice could have resulted to appellant from the mere statement of Mrs. Thurston that she was sick and had fallen and hurt her knee and ankle. It will be observed that she did not say that her fall was caused by any negligence on the part of the servants .of appellant and appears to have been only narrating the fact of her fall merely to show that she was unable to walk to her brother’s house. This statement was but a recital of facts which had been established by the undisputed evidence and to which appellant had before offered no objection.
3. Counsel for appellee asked several physicians— experts — substantially the following question: “If she received an injury to her left side and a shock to her knee and body by falling on the ground, and she was at that time suffering from tuberculosis and afterward was continuously confined to her bed until she died, what is your opinion as to whether or not that injury hastened her death?” Counsel for the appellant objected to the question. The court overruled the objection, and it is now contended that the court erred for the reason that the hypothetical question included an assumption of the fact that Mrs. Thurston in the fall had received an injury to her left side and body when there was no testimony to justify such assumption.
The court excluded from the jury what Mrs. Thurs-ton said with reference to her side hurting her, but the doctor was allowed to testify without objection that she appeared to be suffering from a shock. There is no testimony that her side was injured by the fall, and no testimony that any part of her body was injured except her knee and ankle. The hypothetical question was, therefore, too broad because it assumed the existence of Tacts that the evidence did not tend to prove. The question was defective. Taylor v. McClintock, 87 Ark. 243- 294; Bell v. State, 120 Ark. 535-551-2; Kelley v. State, 146 Ark. 509. However, there was evidence tending to establish. some of the facts assumed in the hypothetical question. It was the duty of the counsel, if he desired to have eliminated the particular fact which he now claims there was no evidence to sustain, to have called the court’s attention to it by specific objection to such fact. See Bell v. State, supra; Powell v. State, 74 Ark. 355; Missouri & North Ark. Ry. Co. v. Daniels, 98 Ark. 352-359-360. The specific objection which the appellant now makes to the hypothetical question for the first time can not avail it.
4. The appellant contends in the last place that there is no evidence that Mrs. Thurston’s death was in any way hastened by the injuries alleged to have been sustained. The answers to the hypothetical questions propounded to the several experts show that this contention is not tenable. The experts gave it as their opinion, assuming the existence of facts as stated in the hypothetical questions, that Mrs. Thurston’s death was hastened by her fall from the train.
Learned counsel for appellant do not urge by way of argument in their brief that the judgments are excessive, and we therefore treat that ground of its motion for a new trial as abandoned.
The judgments are correct, and they are affirmed. | [
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MdCulloch, C. J.
Appellant, Worthen, instituted this action against appellees, C. A. Smith and David Frinks, to recover a sum of money alleged to be due as commission on a sale of real estate. It is alleged in the complaint that appellees entered into a written contract with -appellant authorizing the latter to sell a farm in Desha County owned by appellees for a sum mentioned and upon stipulated terms and agreed to pay a commission for making the sale; that he produced a purchaser ready, willing and able to buy the farm on the specified terms, but that appellees refused to consummate the sale and refused to pay the earned commission. Appellees answered the complaint, setting forth several defenses. In the first place, it was denied that there was any contract between the parties for the sale of the farm, it being alleged in the answer that the writing exhibited with appellant’s complaint was signed by appellee Smith without authority of his co-appellee Frinks, and that the writing was delivered to appellant upon the express condition that it should not become a contract between the parties until it was subsequently ratified by Frinks. It was also alleged in the answer that the prospective purchaser produced by appellant was one who was in partnership with appellant in the purchase of the land, and for that reason appellees are not compelled to consummate the sale, and that appellant is not entitled to the commission. The case was tried before a jury, and the verdict was in favor of appellees.
According to the undisputed testimony, appellees owned a farm in Desha County containing 561 acres and appellee Smith signed the name of “Smith & Frinks” to the writing delivered to appellant, which authorized him to sell the farm at a price mentioned therein, and that it contained an agreement to pay a commission of ten per centum of the price. Frinks was not present when the contract was executed by Smith and was absent from the State on account of ill health. Appellant testified that Smith represented to him that he was authorized to sign Frinks’ name. On the other hand, Smith testified that he had no authority to sign Frinks’ name to the contract or to make a contract for the sale of Frinks’ interest in the land, and that he did not undertake to do so, but that he signed the contract with the distinct understanding that it was conditioned upon a subsequent confirmation by Frinks and was not to take effect unless Frinks so confirmed' it. Frinks also testified that Smith had no authority from him to enter into a contract for the sale of the land, and that he (Frinks) refused to approve the contract with appellant as soon as it was brought to his attention. It is seen from this recital of the testimony that there is' a sharp conflict on the issue as to whether or not the writing was delivered to appellant conditionally and was not to become a binding contract until approved by Frinks. This issue was submitted to the jury on appropriate instructions, and the finding must be taken as settling the issue against appellant by the verdict of the jury.
Appellant testified that he was engaged in the business of selling real estate on commission; that the office he occupied at Watson in Desha County was the one maintained by Mr. James Gould, who was engaged in the real estate business under the name of the Delta Land Company; and appellant further testified that he had no interest in the Delta Land Company except that he sold land for that concern on commission the same as he did for others. Gfould is the person with whom appellant' negotiated the sale of the land of appellees. Appellant testified that he negotiated the sale with Gould and communicated that fact to appellee Smith, who refused to consummate the sale. Mr. Gould testified that lie was in the real estate business under the name of the Delta Land Company, which was not incorporated, and maintained an office at Watson; that'appellant Worthen was under contract to sell lands for the Delta Land Company on a commission basis, but had no interest in his (Gould’s) proposed purchase of the lands of appellees. Mr. Gould testified that he tried to purchase the land for his son who had just been discharged from the army and had some money to invest, and that appellant had no interest whatever in the purchase. During the cross-examination of appellant while on the witness stand, he was asked to identify an office card of the Delta Land Company on which appeared the names of “James Gould, Secretary,” and “W. W. Worthen, Manager.” Appellant conceded the authenticity of the card, and testified tliat he was manager of the company’s office and sold land for the company on commission.
The court, over appellant’s objection, gave the following instruction:
“If you find from the evidence that plaintiff and James Gould, the party to whom plaintiff claims to have sold the property, were associated in business engaged in buying and selling real estate as partners at the time of the sale by plaintiff to said Gould, then your verdict will be for the defendant Smith, unless you further find that this particular sale was excluded from their other transactions.”
The sole ground urged here for reversal is that the instruction copied above was an abstract one without any testimony to support it, and that it constituted prejudicial error for the court to give it. We have concluded that the contention of counsel is correct in this respect, and that the instruction is without any testimony to support it and is prejudicial, or at least was calculated to prejudice the rights of appellant before the jury in determining the issues of fact. There is no testimony whatever that there was a partnership existing between appellant and Mr. Gould, or that appellant was interested with. Mr. G-ould in the purchase of this land. The office card introduced in evidence tends to prove nothing further than the fact that appellant had some sort of a business arrangement there with Mr. Gould in operating the real estate business under the name of the Delta Land Company. It does not tend to prove that there was a partnership or any community of interest between Gouland appellant in the purchase of this land. Appellant testified that he merely made sales of land for the Delta Land Company on a commission basis. Gould testified to the same fact, and stated that appellant had no interest in this purchase and that he (Gould) was buying the land for his son. Gould is a disinterested witness, and there is nothing to show that he has any interest in the result of this case, which is one for the recovery of the commission alleged to be due. Gould does not claim to have, any binding contract for the purchase of the land, and he is not affected by the result of this suit.
It is contended by counsel for appellees that, even if the instruction was abstract, it was not prejudicial, and does not call for a reversal of the judgment. We can not agree to this, because it has often been held by this court that the giving of an abstract instruction is erroneous and calls for a reversal of the judgment unless it can be seen that no prejudice could have resulted from the error. Numerous cases on this subject are cited on the brief of counsel. The jury may have assumed from this instruction that the court was holding that the evidence was legally sufficient to justify a finding that appellant was interested with Gould in the purchase, and they may have assumed from the giving of this instruction that they were at liberty to draw the inference from the language of the office card introduced in evidence that appellant was interested with Gould. Learned counsel for appel-lees argue her e that the evidence was sufficient, and doubtless the counsel who tried the case below made the argument to the jury. For aught we know to the contrary, the verdict of the jury may have been founded on this particular feature of the case.
For the error in giving this instruction the judgment must he reversed and the cause remanded for a new trial. It is so ordered. | [
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Wendell L. Griffen, Judge.
This appeal and cross-appeal involve challenges to a chancellor’s order granting visitation rights to a stepfather (appellee) over the objection of the natural mother (appellant), and permitting paternity-test results to be obtained and entered into evidence to prove that appellee did not father the child. Appellee also contends on his cross-appeal that the chancellor erred by ruling that he was required to prove that appellant was an unfit mother after the paternity-test results were received into evidence, and by refusing to find that appellant was estopped to deny that he was the father of the child. We find no reversible error as to the appeal or the cross-appeal. Therefore, we affirm.
Appellant Lori Golden and appellee Edward Golden, Jr., dated from November 1992 until late December 1992, and resumed the relationship in February 1993. During their separation, appellant dated and had sexual intercourse with another man. On July 19, 1993, appellant and appellee were married, and appellant was pregnant at the time of the marriage. The child, Edward Golden, III, was born in October 1993, two weeks premature. Appellee was identified as father of the child on the birth certificate, on health records and in applications for social services.
Appellee Edward Golden filed for divorce in November 1994, alleging in his complaint that the child was born of the marriage. Appellee obtained a restraining order preventing appellant from leaving the state with the minor child. In her answer to the divorce complaint appellant admitted that the child was born of the marriage. After a temporary hearing the chancellor awarded joint custody of the child to the parties.
In December 1994, the parties reconciled and lived together until April 1995 when appellant abruptly left appellee and took the child with her to California. Appellee obtained an emergency order granting custody of the child to him. On the strength of the court order, appellee went to California and brought the child back to Arkansas. Appellant then retained counsel and filed a motion for paternity testing, alleging that appellee was not the child’s father. The results of the paternity test, filed of record on July 20, 1995, excluded appellee as the biological father.
Appellant then filed a motion to dismiss all child custody and visitation issues from the divorce action, based on the paternity-test results. Appellee objected to the admissibility of the paternity test, asserted that he stood in loco parentis to the child, and argued that public policy prevented appellant from bastardizing the child. Appellee also asserted that he relied on appellant’s representations that he was the father of the child, and that appellant should be estopped from challenging the paternity of the child. The chancellor overruled appellee’s objection to the admissibility of the paternity test. The court awarded custody of the child to appellant and allowed testimony on the issue of appellee’s rights to visitation.
Following the hearing, the chancellor found that appellee stood in loco parentis to the child and found that it was in the child’s best interest to award appellee five weeks of visitation per year, as well as phone visitation. Appellant appeals from that judgment, asserting that the chancellor erred in denying appellant’s motion to dismiss all issues regarding custody and visitation with the child, and that the chancellor erred in finding that appellee stood in loco parentis to the child and was entitled to visitation. Appellee filed a cross-appeal, arguing that the chancellor erred in ordering paternity testing pursuant to Ark. Code Ann. § 9-10-104 (Repl. 1991), that the chancellor erred in refusing to find appellant/cross-appel-lee estopped to deny appellee/cross-appellant’s paternity of a minor child born during the parties’ marriage, and that the chan cellor erred in requiring that appellee/cross-appellant prove the natural mother unfit in order to prevail and receive custody of the minor child to whom appellee/cross-appellant stood in loco parentis.
Appellant’s Appeal
Appellant argues that the trial court erred in refusing to dismiss the custody and visitation issues from the divorce proceeding once the paternity testing excluded appellee as Edward Ill’s biological father. Chancery cases are reviewed de novo, but a chancellor’s findings will not be disturbed unless they are clearly against the preponderance of the evidence. Schwarz v. Moody, 55 Ark. App. 6, 928 S.W.2d 800 (1996).
The chancellor did not err in denying the motion to dismiss. We have previously addressed the issue of stepparent visitation. In Riddle v. Riddle, 28 Ark. App. 344, 775 S.W.2d 513 (1989), we considered whether a stepfather should be granted visitation rights with his stepson. When the parties married, the wife had a child outside the marriage. The parties later had a child during the marriage. Id. When the parties divorced, the chancellor found that it was in the best interest of the children for the older child to be placed with his natural mother, and for the child of the marriage to be placed with the husband, or his natural father. Id. The court also found that it would be in the best interest of the older child for the stepfather to be granted visitation. Id. We held that the circumstances in that case justified the order dividing custody and granting visitation rights to the stepfather. Id. at 350, 775 S.W.2d at 517.
The supreme court has also addressed the issue of whether a stepparent may be granted custody of a child. In Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988), the supreme court recognized that while there is a preference for the natural parent in custody matters, a stepparent may be awarded custody of a minor child in certain circumstances. These holdings show that the chancellor’s decision to deny the motion to dismiss was not clearly erroneous.
Appellant also contends that the chancellor erred in finding that appellant stood in loco parentis to the minor child. We find no error in the chancellor’s finding. Child custody cases cast a heavier burden upon the chancellor to utilize to the fullest extent all powers of perception in evaluating the witnesses, their testimony, and the children’s best interests. Schwarz, supra (citing Clark v. Reiss, 38 Ark. App. 150, 831 S.W.2d 622 (1992)). “In loco parentis” is defined as “in the place of a parent; instead of a parent; charged, factitiously, with a parent’s rights, duties, and responsibilities.” Black’s Law Dictionary 787 (6th ed. 1990). The supreme court has held that a stepmother stands in loco parentis to the minor child when the two live in the same home as mother and daughter. Moon Distrib. v. White, 245 Ark. 627, 434 S.W.2d 56 (1968) (citing Dodd v. United States, 76 F.Supp. 991 (W.D.Ark.1948) and Miller v. United States, 123 F.2d 715 (8th Cir. 1942)).
The circumstances in this case warrant a finding of in loco parentis. Appellee lived in the same household with Edward III as his father, from October 1993 until November 1994, and from December 1994 until April 1995. Appellee believed that he was the father of the minor child, and both appellant and appellee represented appellee as the father of Edward III. During the pending divorce of the parties, appellant and appellee were granted joint custody of Edward III by the chancellor, and appellee later obtained legal custody by emergency order of Edward III when appellant left the state with the child. Appellee, at all relevant times during the marriage of the parties, was the only father the child ever knew. In Baker v. Durham, 95 Ark. 355, 129 S.W. 789 (1910), a case that determined whether a natural parent would be deprived of custody, the court stated:
There may be other exceptional cases where the father, by reason of indifference to the welfare of his child and the lack of proper affection for it, has voluntarily relinquished these parental obligations, privileges and pleasures to other hands for so long that the court will refuse to disturb the associations and environments which his own conduct has produced, and will leave in status quo those whom he has thus permitted to stand in loco parentis.
Id., 95 Ark. at 358, 129 S.W. at 791.
Appellant cited Hendershot v. Hendershot, 30 Ark. App. 184, 785 S.W.2d 34 (1990), in arguing that this court has specifically rejected the doctrine of in loco parentis. That argument is inaccurate. In Nelson v. Shelly, 268 Ark. 760, 600 S.W.2d 411 (Ark. App. 1980), we held that where the appellants had physical custody of the minor child for a period of time exceeding one year, where appellants were the only parents the child had any knowledge of, and where the natural mother gave the appellants written consent to adopt the minor child, the appellants stood in loco paren-tis to the child. We have recognized the doctrine of in loco parentis in past precedent and reacknowledge its validity today. The chancellor’s finding that appellee stood in loco parentis to Edward III is affirmed.
Appellee’s Cross Appeal
Appellee/cross-appellant raises as his first assignment of error that the chancellor erred in ordering paternity testing pursuant to Ark. Code Ann. § 9-10-104 (Repl. 1991) under the circumstances of this case. Appellee cited Thomas v. Pacheco, 293 Ark. 564, 740 S.W.2d 123 (1987), in arguing that there is a strong presumption in Arkansas that a child born during the marriage is the legitimate child of the parties to that marriage. This citation of the law is correct; however, this presumption is rebuttable only by the strongest type of conclusive evidence. Id. The paternity test conducted in this case satisfied that requirement. Arkansas Code Annotated § 9-10-104 states:
Petitions for paternity establishment may be filed by:
(1) A biological mother;
(2) A putative father;
(3) A person for whom paternity is not presumed or established by court order; or
(4) The Office of Child Support Enforcement of the Revenue Division of the Department of Finance and Administration.
There is no provision in this statute that prevented the chancellor from ordering the paternity testing in this case. In Richardson v. Richardson, 252 Ark. 244, 478 S.W.2d 423 (1972), the trial court ordered a paternity test during a divorce hearing between the parties. The chancellor found, from the results of the test, that the husband was not the father of the child, thus bastardizing the child. Id. The supreme court upheld the use of paternity testing even though the child was born during the marriage. Id. The trial court did not err in ordering the paternity testing.
Appellee also argues that the chancellor erred in refusing to find appellant estopped to deny appellee’s paternity of a minor child born during the marriage. He contends that the doctrine of res judicata should bar relitigation of the paternity issue and should prevent appellant from denying the paternity of a child born during the marriage. Under the doctrine of res judicata, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or her privies on the same claim or cause of action. Scallion v. Whiteaker, 44 Ark. App. 124, 868 S.W.2d 89 (1993). The doctrine of collateral estoppel, or issue preclusion, bars the relitigation of issues of law or fact actually litigated by the parties in the first suit. Id.
Appellee’s argument is not persuasive because there has been only one action in this case: the divorce action in which the issue of paternity was raised. In Arkansas, the parents of the minor child are bound by the doctrine of res judicata when the issue of paternity has been litigated in a prior action between them. Id. The trial court correctly found that appellant was not estopped from challenging the paternity of the minor child.
Finally, appellee contends that the trial court erred in requiring him to prove appellant unfit in order to prevail on the custody issue, where he stands in loco parentis to the minor child. We have consistently held that in child custody cases, the paramount consideration is the welfare and best interest of the child. Ark. Code Ann. § 9-13-101 (Repl. 1993); McKee v. Bates, 10 Ark. App. 51, 661 S.W.2d 415 (1983). We also recognize that there is a preference for the parent above all other custodians. McKee, supra; Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 111 (1986). In Baker v. Durham, supra, the supreme court stated:
[A]s between the parent and the grandparent, or anyone else, the law prefers the former unless the parent is incompetent or unfit, because of his or her poverty or depravity, to provide the physical comforts and moral training essential to the hfe and well being of the child. It must be an exceptional case where the evidence shows such lack of financial ability or such delinquencies in character on the part of the [parent] as to imperil the present and future welfare of his child before a court of chancery will deprive him of the duty and privilege of maintaining and educating his child, and of the pleasure of his companionship. See Wofford v. Clark, 82 Ark. 461, 102 S.W. 216 (1907).
Id., 95 Ark. at 358, 129 S.W. at 791 (quoted in McKee, supra.) In Stamps v. Rollins, supra, a stepfather sought custody of his five-year-old stepson. The court held that the preference for the natural parent in custody matters must prevail, unless it is established that the natural parent is unfit. Id. (citing Goins v. Edens, 239 Ark. 718, 394 S.W.2d 124 (1965); Hancock v. Hancock, 198 Ark. 652, 130 S.W.2d 1 (1939); Loewe v. Shook, 171 Ark. 475, 284 S.W. 726 (1926)). The chancellor’s ruling on this issue is not clearly erroneous.
Affirmed.
Robbins, C.J., and Roaf, J., agree. | [
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Per Curiam.
In the case at bar, the decision of this court is as follows.
The finding of the probate court that the estate was closed is reversed by unanimous decision as expressed in the opinion authored by Judge Roaf.
The finding of the probate court that the family-setdement agreement setded and released the cause of action for wrongful death is reversed upon the opinion authored by Judge Roaf, as joined by Judge Crabtree, and the opinion authored by Judge Rogers, as joined by Judge Pittman, with Chief Judge Robbins and Judge Neal dissenting.
The finding of the probate court that the survival action of the estate cannot be maintained is affirmed as expressed in the opinion authored by Judge Roaf, as joined by Chief Judge Robbins and Judges Neal and Crabtree, with Judges Rogers and Pittman dissenting.
It is so ordered. | [
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John E. Jennings, Judge.
Paul and Irene Wedin were married in 1963 and separated in July 1993. In September 1993 appellant filed suit for divorce in Baxter County Chancery Court. On October 14 the parties signed a property settlement agreement. The agreement provided: “Appellant will further divide with appellee any inheritance of personal property he may receive in the future from the Estate of Lucretta Wedin.”
Lucretta Wedin, appellant’s mother, died on October 25, 1993. On November 3, 1993, appellant was granted a divorce and the property settlement agreement signed by the parties was approved.
In January 1995 the appellee filed a petition in chancery to enforce the terms of the property settlement agreement and the trial court held a hearing focusing on the parties’ differing interpretations of the clause at issue. It was shown that Lucretta Wedin had, on August 6, 1993, executed a trust agreement through which she placed virtually all her assets in an inter vivos trust. In the trust indenture she named herself as a trustee. Appellant and his sister, Jacqueline Cathers-Collision, were named co-trustees and were the sole beneficiaries of the trust. Lucretta Wedin’s will, also dated August 6, 1993, left all her property to the trust. At her death the value of her property subject to probate was $600.00.
The appellee testified that during settlement discussions appellant told her that he was going to give her half of what he got from his mother. Appellant told her that the estate was valued at approximately $600,000.00 and that there would be about $190,000.00 in estate taxes payable. She testified that she had worked as a secretary in a law office but did not seek legal advice about the terms of the property setdement agreement. She testified that she was aware that some of Lucretta Wedin’s property was in trust and understood that that property was included in appellant’s inheritance.
Appellant testified that he did tell the appellee that he was going to split everything he got from his mother with her. He conceded that he told her that the total would be approximately $600,000.00 and that she would receive one-half of his one-half share. He received a little more than $200,000.00. He testified that appellee was aware that the trust existed.
He also testified however that he intended the clause to mean that appellee would receive only a share of the property he received through his mother’s will. He further testified that he did not tell the appellee that the trust property would not be included and that if she had a misunderstanding about the agreement, he did nothing to correct it. At the time of the hearing appellant had paid appellee some $23,000.00 but took the position that this was a gift and that he was obligated to pay no more than half of the $600.00 he received through his mother’s will.
The chancellor found that the phrase “The Estate of Lucretta Wedin” was ambiguous. The chancellor also found that appellant stood in a confidential relationship to the appellee. Relying on our decision in Undem v. First National Bank, 46 Ark. App. 158, 879 S.W.2d 451 (1994), the chancellor held that appellant was estopped to argue that the trust assets were not included in his agreement.
On appeal to this court appellant contends that the chancellor erred in holding that the language of the clause in question was ambiguous, erred in finding that appellant had a duty to advise the appellee as to the meaning of the clause, and erred in effectively granting reformation of the agreement. We find no error and affirm. Chancery cases are reviewed de novo on appeal. Lyons v. Lyons, 13 Ark. App. 63, 679 S.W.2d 811 (1984). We do not reverse the findings of the chancefior unless they are clearly against a preponderance of the evidence. Kunz v. Jarnigan, 25 Ark. App. 221, 756 S.W.2d 913 (1988). If the chancellor reached the right result, we will affirm even if we disagree with the court’s reasoning. Durham v. Arkansas Dep’t of Human Services, 322 Ark. 789, 912 S.W.2d 412 (1995).
Appellant contends that the clause in the property settlement agreement is unambiguous. While he does not argue that the word “estate” is unambiguous, he contends that the word “inheritance” is. He relies on Black’s Law Dictionary, which defines “inheritance” as “property which descends to an heir on the intestate death of another.”
The initial determination of the existence of an ambiguity rests with the court. C. & A. Constr. Co. v. Benning Constr. Co., 256 Ark. 621, 509 S.W.2d 302 (1974). If an ambiguity exists, then the true intention of the parties must be determined and the meaning of the term becomes a question of fact. See C. & A. Constr. Co., supra; Jones v. Jones, 26 Ark. App. 1, 759 S.W.2d 42 (1988). Black’s Law Dictionary defines “estate” as “the degree, quantity, nature, and extent of interest which a per son has in real and personal property.” Black’s Law Dictionary 490 (5th ed. 1979). The standard dictionary definitions are similar: “1. A landed property, usually of considerable size. 2. The whole of one’s possessions, esp. all of the property and debts left by a dead person. 3. Law. The nature and extent of an owner’s rights with respect to his property.” American Heritage Dictionary 466 (2nd College ed. 1982). It has been said that “the word ‘estate’ does not impart a legal entity.” Hansen v. Stanton, 177 Wash. 257, 31 P.2d 903 (1934).
Similarly, the word “inherit” is not unambiguous. While Black’s gives as a definition, “to take by inheritance; to take as heir on death of an ancestor,” it notes that the word is also used in its popular sense as the equivalent of to take or receive. Black’s Law Dictionary 704 (5th ed. 1979). The American Heritage Dictionary defines inherit as: “1. To come into possession of; possess. 2. To receive (property) from an ancestor or another person by legal succession or will.”
When we consider the prior discussions of the parties it is reasonably clear that they meant that appellant would share with the appellee that which he received from his mother’s property after her death.
We would reach the same conclusion under section 201 of the Restatement (Second) of Contracts:
(2) Where the parties have attached different meanings to a promise or agreement or a term thereof, it is interpreted in accordance with the meaning attached by one of them if at the time the agreement was made
(a) That party did not know of any different meaning attached by the other, and the other knew the meaning attached by the first party.
Under our view of the case it is not necessary to consider the question of estoppel or the chancellor’s application of the principles stated in our decision in Undem v. First National Bank, supra. Finally, we do not agree that either the chancellor’s holding, or our own, amounts to a reformation of the parties’ agreement. The chancellor’s holding was that appellant was estopped from contesting the appellee’s interpretation of their agreement. Our holding is that the appellee’s interpretation conforms to the intention of the parties, as manifested by their words and actions.
For the reasons stated the decision of the chancellor is affirmed.
Robbins, C.J., Bird, and Roaf, JJ., agree.
Griffen and Neal, JJ., dissent. | [
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Andree Layton Roaf, Judge.
The appellant, Charles Fisher, was employed as a truck driver by the appellee, Poole Truck Line (Poole). Fisher was denied workers’ compensation benefits when the Commission found that he was not performing “employment services” when he was injured while transporting in his own automobile the results of a physical examination that Poole had required him to take before giving him a work assignment. On appeal, Fisher argues that the Commission’s finding that he was not performing “employment services” at the time of his accident is not supported by substantial evidence. We agree and reverse.
On March 24, 1994, Fisher was injured when his automobile was struck in the rear by a tractor-trailer truck. Fisher ultimately underwent fusion surgery for a herniated cervical disc as a result of this accident. Following the accident, Fisher continued on to his destination, a truck terminal operated by Poole, his new employer. Fisher, a truck driver with some 26 years of experience, had successfully completed a two-day orientation required by Poole of its new drivers, which commenced on March 21st. Poole had also required Fisher to take the standard Department of Transportation (D.O.T.) physical on the day before the accident. On the morning of the accident, Fisher had reported in at the Poole terminal to receive a driving assignment, and had learned that a urine test he had taken the day before as part of the D.O.T. physical had revealed unacceptably high concentrations of protein, and as a result, he would not be allowed to drive until he retook and passed this urine test. Although D.O.T. physicals are valid for two years and Fisher’s last physical dated only from the previous March, Poole had required him to take and pass a D.O.T. physical administered by its doctor before assigning him a load. Fisher immediately drove to the doctor’s office and retook and passed the urine test.
Although not specifically ordered by Poole to bring back the results of his physical, Fisher knew that by hand-delivering the copy he received from the doctor, he would receive his driving assignment. Except for the two-day employee orientation for which Poole paid Fisher, as a truck driver employed by Poole, he was only to be paid according to the miles he drove.
After delivering the results of the urine test, Fisher went home and on the next day sought treatment at an emergency room for his injuries. Subsequently, Fisher filed a civil suit against the trucking company that struck him and also filed for workers’ compensation from Poole.
Poole denied Fisher workers’ compensation benefits, contending that he was not an employee and that he was not perform ing employment services at the time of the accident. The administrative law judge (ALJ) found that Fisher was an employee at the time of the accident but that he was not performing employment services and, therefore, the injury was not compensa-ble. On the latter issue, which is the subject of this appeal, the ALJ scrutinized the time, place, and the circumstances of the injury in determining whether Fisher was performing “employment services.” The ALJ found dispositive the facts that Fisher was driving his own vehicle, that the accident occurred off the employer’s premises, and that the urine test result that Fisher was transporting was a document that his employer had to have possession of before he could begin to perform employment services. The full Commission affirmed and adopted the ALJ’s findings of fact. Fisher appeals from the finding that he was not performing employment services. However, Poole does not appeal the finding that Fisher was an employee at the time of his injury.
For reversal, Fisher argues that the Commission’s finding that he was not performing “employment services” at the time of the accident is not supported by substantial evidence.
As defined in the Workers’ Compensation statutes, a “com-pensable injury” means an “accidental injury” arising out of and in the course of employment. Ark. Code Ann. § 11-9-102 (5)(A)(i). However, § 11-9-102 further provides that “compensa-ble injury” does not include an “[ijnjury which was inflicted . . . at a time when employment services were not being performed _” Ark. Code Ann. § 11-9-102(5) (B) (iii).
Fisher contends in essence that his trip from the terminal to the company doctor to retake the urine test and his return to the terminal with the results were employment services because they were part of the orientation process for which he received payment. However, he conceded in his testimony that the orientation was concluded by March 23rd and that all he did on March 23rd was take the D.O.T. physical.
Fisher further asserts that this case can be reversed under the “dual-purpose doctrine” exception to the “going and coming rule,” because his transporting the results of his physical benefitted Poole by allowing them to immediately assign him a load.
Poole argues that Fisher’s injury is not compensable because it neither arose out of and in the course of employment nor occurred at a time when employment services were being performed. However, Poole did not appeal the Commission’s findings that Fisher was an employee at the time he undertook the physical examination.
Significandy, the Commission further found that the physical examination was wholly for the benefit of Poole and at the direction of Poole because Fisher already possessed a valid D.O.T. physical certification at the time of employment. In denying benefits to Fisher, the Commission relied on Albert Pike Hotel v. Tratnor, 240 Ark. 958, 403 S.W.2d 73 (1966), in which the supreme court found that a claimant who was injured on the premises of the Arkansas Health Department while in the process of obtaining a health card to allow her to work as a cook for the respondent was not entitled to benefits because she was not an employee. However, the court in Albert Pike did not address the issue of performing employment services because it found from the evidence that Tratnor was never employed by the respondent hotel, and we do not agree that the decision was based signifi-candy upon the time, place, and circumstance of the injury. Moreover, the supreme court has recently determined that a home-care nurse’s assistant injured while traveling from her employer’s office to the home of a patient was performing employment services even though she used her own vehicle and received no wages or travel expenses for the time spent traveling to patients’ homes. Olsten Kimberly Quality Care v. Pettey, 328 Ark 381, 944 S.W.2d 524 (1997).
In the instant case, Fisher, an experienced and qualified truck driver, was employed by Poole and arrived early on the morning of March 24th for the purpose of driving a load for Poole. As pointed out by Fisher, driving a truck entails more than sitting behind the wheel of a truck, and certain requirements are imposed by the D.O.T. and by the trucking companies for reasons of safety. Fisher stated that some of these requirements included passing written driving and physical examinations; performing daily inspections of the truck; becoming qualified for hauling various kinds of materials, including hazardous material; and the keeping of accurate log books. Here, the Commission found that Fisher’s physical exam was wholly for the benefit of Poole and at the direction of Poole. This finding is consistent with Woodall v. Brown and Root, Inc., 2 Ark. App. 106, 616 S.W.2d 781 (1981), in which this court found that workers’ compensation was the exclusive remedy for an employee injured during a physical exam conducted by his employer for two reasons — such examinations are wholly for the benefit of the employer and the employment had commenced at the time the employee underwent the required exam; both factors are present in the instant case. Consequently, Fisher was performing employment services when he traveled from his employer’s premises to retake the urine test and was injured on the return trip.
Reversed.
Bird, Neal, and Griffen, JJ., agree.
Jennings and Pittman, JJ., dissent. | [
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McCulloch;, C. J.
This is an action instituted by appellant against appellee to recover damages for alleged breach of contract for the sale and delivery of lumber. Appellee denied that it had broken the contract, and alleged that the first breach was committed by appellant in failing to pay for lumber delivered under the contract. Appellee also filed a counterclaim for an unpaid balance in the sum of $323.14 for lumber sold and delivered. There was a trial of the issues before a jury, which resulted in a verdict in favor of appellee on its counterclaim for the recovery of three hundred and five dollars and seventy-two cents.
Appellant was engaged in the lumber business, with its principal place of business in the city of Green Bay, Wisconsin, and appellee was engaged in the lumber manufacturing business at Forrest City, Arkansas, and .had a mill at Calion, Arkansas, where it manufactured rough lumber.
On March 10, 1917, and on March 17, 1917, appellee, entered into contracts with appellant to sell the latter certain specified lumber then manufactured and situated at appellee’s mill at Calion. These contracts were in writing in the form of correspondence between the par ties. The first contract was for gum and plain white oak lumber, and the second was for quarter-sawed white oak. The last contract was, as we understand the testimony, substantially complied with, but the breach was committed in the performance of the first contract in regard to the gum lumber. It was specified in the writing that the lumber was to be delivered “Chicago, Illinois, rate of freight, ’ ’ and that the terms of payment were to be cash in sixty days with 2 per cent, discount on payments within ten days from date of invoice. Appellee made shipments of lumber to appellant on these contracts from time to time, beginning on April 28, 1917, and running down to November 14, 1917, when the last car was shipped. Payments were made by appellants on these shipments from time to time, the last payment being made on December 25, 1917, leaving a balance, which the jury found to be the sum specified in the verdict, three hundred and five dollars and seventy-two cents.
During the progress of these transactions a controversy arose between the parties as to when these payments should be made, whether strictly within sixty days after date of invoice, or, as contended by appellant, after the delivery of the lumber at point of destination and the receipt of freight bills, which appellant was to pajr and deduct from the invoices. The controversy does not appear to have reached an acute stage or to a demand on the part of appellee that the payments be made more promptly on penalty of a forfeiture of the contract. The contracts specified lumber which had already been manufactured on the mill yard at Calion, but the evidence discloses the fact that the parties did not continue to treat the contract as applying solely to that lumber, but elected to treat it as applicable to any lumber of those specifications to be manufactured by appellee. The evidence discloses the fact that during the pendency of the contract appellee was selling lumber to Swift & Company of Kansas City, to be used as “shooks” or material for the making of pacldng cases used in the shipment of food products. This was brought to the attention of appellant, who did not insist on the performance of the contract to the exclusion of other sales by appellee in the operation of its mill. This testimony, in other words, warranted a finding that appellant waived the expeditious performance of the contract and consented to later delivery.
The contention of appellant, however, is that appel-lee definitely broke the contract by the unequivocal refusal expressed in a letter of May 6, 1918, to continue to perform the contract. This letter was introduced in evidence, and it expresses a refusal on the part of appellee to furnish any more lumber under the contract. The refusal to do so was put on the ground that appellee was engaged in furnishing shooks to Swift & Company, and that it was in response to a governmental requirement for war purposes. At the conclusion of the letter, however, the subject of appellant’s failure to pay the balance due for lumber shipped was referred to, but was not stated as a breach of the contract on the part of appellant. The letter concludes in the following language :
“While we are on this subject, we should like to remind you that we still hold open account on two cars shipped for you, which have never been settled for, notwithstanding these shipments are about as old as the order itself. There may be some specific and good reason for this delay, but we do not comprehend why the consequences should be ours, particularly so since we do not know where the stock is or who got it.
“We have no other stock which we can offer you; in fact, as stated, all our efforts are centered on supplying our factory, and we have shipped nothing excepting a certain amount of oak for government use.”
The contention of appellee in the trial below was that at that time appellant had already broken the contract by failing to make the payments for lumber already shipped, and that appellee was justified in refusing to ship any more lumber.
There are numerous assignments of error with respect to.the court’s charge to the jury and its refusal to give certain instructions requested by appellant. We deem it sufficient for disposal of the case here to discuss only those assignments which relate to the instructions given by the court at the request of appellee. The first three of these instructions read as follows:
“You are instructed that if you find from a fair preponderance of the evidence that the plaintiff, Tipler-Grossman Lumber Company failed and refused to pay for said lumber, or any part thereof, when the same fell due, which under the contract was within sixty days from the date fo shipment, then the defendant was not required to continue to furnish lumber to the plaintiff while any part of the account was due and unpaid, and your verdict would he for the defendant.”
“You are instructed that if you find from the evidence that the plaintiff Tipler-Grossman Lumber Company failed or refused to pay for said lumber, or any part thereof, when such payment fell due, which under the contract within sixty days from the date of shipment, this would constitute a breach of the contract, and your verdict would be for the defendant.
“And if you further find from the testimony that there is due the defendant on its cross-complaint any sum from the plaintiff, your verdict will be for the defendant for such sum as you may find to he due according to the evidence. ’ ’
“You are instructed that, under the terms of the contract involved in this suit, payments were to'be made two per cent, discount if payment made within ten days of date of shipment or sixty days from date of shipment, so if you find that payments of any sum on any car was withheld after the same was due and request made for payment, this would constitute a breach of the contract, and the plaintiff could not recover, and your verdict should be for the defendant for the balance due it.”
These instructions amounted to a peremptory direction to the jury to return a verdict in favor of appellee, for it was undisputed that appellant had failed to pay some of the invoices for lumber within sixty days after the date thereof. But the instructions ignored the issue raised by the proof as to whether or not appellee waived the punctual payment within the time specified in the contracts. There is proof to the effect that there was necessary delay in ascertaining the amount of freight bills so as to deduct the same from the invoices, and in the correspondence between the parties appellee never at any time insisted that the contract would be forfeited unless payments be made within sixty days from the date of invoice, regardless of time of delivery or the ascertainment of the amount of freight.
Learned counsel refer especially to letters from ap-pellee to appellant, dated, respectively, on October 22, 1917, and November 19, 1917, asking for payment of past due bills, but in neither of these letters was it insisted that there would be a forfeiture of the contract unless payment be promptly made. These letters were merely requests for payments, and, according to the undisputed proof, appellant continued to make partial payments from time to time up to December 25, 1917, and large sums were paid during that time without any objections on the part of appellee that the payments were not being made strictly in accordance with the terms of the contract. These instructions were erroneous in ignoring this issue, and they were in conflict with other instructions on this subject given at the instance of appellant.
The court also' gave the following- instruction, over the objection of appellant:
“You are instructed that if the delay by the defendant in shipping lumber to plaintiff was caused by priority orders under government control, or necessity for war purposes, such delay was not the fault of the defendant, and the priority orders were a legal excuse for such ' delay. ’ ’
The language of this instruction is very obscure in leaving it to the jury to determine what would constitute “priority orders under government control, or necessity •for war purposes,” and without furnishing the jury any guide as to the law on the subject. The general rule of law is that a party is bound by 'his contract to perform, and that he must perform or pay damages upon his failure to do so, but there are exceptions to this general rule, one of which is that performance is excused by lawful interruption or interference by the government of the place where the contract is to be performed. A requisition of the subject-matter of the contract by the government in time of war comes within the exceptions to the general rule, and constitutes an excuse for nonperformance by the party who obeys the requisition.
The Congress of the United States enacted a statute, which was approved June 3,1916, known as the National Defense Act (Compiled Statutes, section 3115 g), which empowered the President of the United States, acting-through the head of any- department of the government, “in addition to the present authorized methods of purchase or procurement, to place any order with any individual, firm, association, company, corporation, or organized manufacturing industry for such products or material as may be required, and which is of the nature and kind usually produced or capable of being produced by such individual, firm, etc.” The act also provides that compliance with all such orders shall be obligatory on any such individual, firm or corporation, and it prescribes a penalty for failing to comply with its provisions.
The case of Roxford Knitting Co. v. Moore & Tierney, 265 Fed. 177, is a leading case on the construction of this statute, and the Supreme Court of the United States refused a writ of certiorari to carry the case up for further review. The court construed the statute not to mean that “all contracts made by the government in a period of national emergency are to have precedence over civilian contracts,” but that where material is furnished under the form of a voluntary contract with the government it will be held to be a requisition under the statutes if under the circumstances it appeared that the contract was executed merely as a form of obedience to governmental orders. To quote the exact language the court said: “That the entire surrounding cireum- stances must be considered to determine whether the formal contract entered into was a voluntary agreement covering the whole matter, or whether it was a mere settlement of details after the manufacturer had been directed to furnish certain material. And it affirmatively appears that the officer in charge of the purchase of supplies for the navy thought he was entitled to use and did use the contract form in cases where the parties on both sides reached an agreement with regard to the price of material. ’ ’
And again the court said: “And when a manufacturer is given to understand that he is required to supply certain goods to the government of the United States, and is told that he has no option to decline to comply, we are satisfied that as to those goods an ‘order’ has been placed or received, within the spirit and intent and the letter of the statute, whether the authoritative direction is written or oral, and notwithstanding the fact that the parties actually come to an agreement in what has the form of a contract.”
There is no evidence in this case that appellee was required to furnish material under a governmental order, written or verbal, which caused interference with the performance of his contract with appellant. In appel-lee’s correspondence with appellant and in the testimony of appellee’s manager on the trial of .the case below, general statements were made that they were furnishing their lumber under government order; but when the witness was interrogated specifically as to the form of the transaction he was unable to make any statement on the subject, except that appellee furnished shooks to Swift & Company, of Kansas City to use in packing food products for transportation for the government. This testimony is at most but hearsay, and does not even establish the fact that Swift & Company were operating-under a requisition from the government or that appellee was acting under such a requisition, either directly or indirectly. The instruction was therefore entirely with out any evidence to support it, and should not have been given.
There was sufficient evidence to warrant a submission to the jury of appellant’s charge against appellee of having broken the contract without justification, and this issue should have been submitted to tire jury tree from objectionable instructions.
The judgment is therefore reversed, and the cause is remanded for a new trial. | [
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Wood. J.
This action was brought by the appellant, International Harvester Company, a corporation of Wisconsin, authorized to do and doing "business in this State, against appellees J. B. Melton & Co., a partnership, composed of J. B. Melton and Ernest Layton. The complaint alleged that the appellees entered into certain written contracts with appellant to purchase wagons, trucks and other farm machinery and supplies upon the terms and conditions of the contracts, which were made exhibits to the complaint. Appellant alleged that there was a balance due it on account under these contracts of $1,-329.99, for which it asked judgment.
Melton and Layton filed separate answers, in which they set up the same defenses. They admitted that they were partners doing business at Yellville, Arkansas, under the firm name of J. B. Melton & Company. They alleged that the business of the firm was buying and selling-dry goods and groceries. They denied that the firm as sueli was dealing in farming implements, wagons, • and hardware, and alleged that neither member of the firm was authorized to enter into a contract with the appellant for that purpose, and denied that they executed the contracts which form the basis of the account set forth in the complaint. They set up that the contract entered into with appellant was an agency contract, under the terms of which they were to sell wagons, trucks, farming implements and supplies upon a commission basis. They alleged that they were not indebted to appellant in any sum on the account. They further set up that on the 27th day of May, 1916, the partnership was dissolved, Melton taking over and continuing the business with appellant; that the appellant was notified of such dissolution, and it released the appellee Layton from any liability on the contract and turned over all of its property of every character in the hands of the former partnership to Melton, and made arrangements with him to continue the agency business and accepted his notes in settlement of all amounts, then due. Layton alleged that the account sued on was created after the dissolution of the partnership, and after he had been released by the appellant, and that the appellant was estopped by its conduct from asserting any claim against him. Melton alleged that the appellant, after the dissolution of the partnership, accepted the individual notes of J. B. Melton in settlement of the balance of the partnership indebtedness, and that he had since fully liquidated all the indebtedness due by him to the appellant.
The contracts, which were exhibits to the complaint, were identified and introduced in evidence. They are signed J. B. Melton & Co., by J. B. Melton, and by appellant through "W. "W. Nelson, General Manager. There was testimony on behalf of the appellant tending to prove that the contracts were entered into as alleged in the complaint; that the appellee Layton authorized Melton to enter into the contracts for the firm and that the orders and net sales contracts, out of which the alleged indebtedness evidenced by the account was incurred, were signed J. B. Melton & Co., by J. B. Melton. There was testimony on belialf of the appellee Layton tending to prove that he did not authorize Melton to enter into the contracts as alleged and to sign the name of the firm to such contracts; that the contract that he authorized Melton to sign was merely a contract by which J. B. Melton & Co. was to sell appellant’s wagons, trucks, farming implements and supplies as agents, on a 15 per cent, commission.
By consent of all parties, the cause was submitted to the court sitting as a jury, and the court found that Melton was justly indebted to the appellant in the sum claimed in its complaint, and also found that the appellee Layton was not liable to the appellant in any sum. The court thereupon entered a judgment in favor of the appellant against Melton for the amount claimed and also in favor of the appellee Layton against the appellant for costs. The appellant filed its motion for a new trial against appellee Layton, which was overruled, and appellant duly prosecutes this appeal. The record as abstracted does not show that Melton filed any motion for a new trial in the court below. After the lodging of the transcript Melton took a cross-appeal in this court.
1. The judgment in favor of the appellant against Melton must be affirmed for the reason that it does not appear from this record that he moved for a new trial. The errors of which he here complains should have been called to the attention of the trial court in a motion for a new trial. On an appeal taken in a law case, where the errors complained of do not appear from the record, and there is no motion for a new trial, there is nothing before this court for its determination. See Gardner v. Miller, 21 Ark. 398; Hamilton v. State, 62 Ark. 543, and other cases cited in 1 Crawford’s Digest, Appeal and Error, 179, sec. 116 (D), “Motion For a New Trial.”
2. There was a general finding in favor of the ap-pellee Layton. Therefore, if there is any substantial evidence to sustain any of the grounds of defense set up in his answer, .the verdict of the trial court sitting as a jury will be sustained. Dixon & Co. v. Scroggins, 136 Ark. 33; Mueller v. Coffman, 132 Ark. 45. One of the defenses of appellee Layton was that, after his partnership with Melton was dissolved, the business of J. B. Melton & Company with the appellant was settled, by mutual consent, and said business was turned over to Melton, and appel-lee Layton was released by the appellant from all liability to it on account of said business.
Conceding that the undisputed testimony proved that the contracts were entered into by the appellant with Melton'and Layton, as partners under the firm name of J. B. Melton & Company, yet it also proves that this partnership was by mutual consent dissolved. J. B. Melton testified concerning the settlement with appellant after the dissolution of the partnership in part as follows : The wagons arrived after appellee Layton had retired from the firm. Shortly thereafter, Harry Hill, who was a traveling salesman for the appellant, was in Yell-ville, and while the wagons were still at the station witness talked with him about the dissolution of the firm and told him that Layton was out, and that witness was not able to handle the wagons, and that he was going to another town. Hill told witness to pay the wagons out and do the best he could with them. Witness paid the freight and took them out. Hill told witness that they did not want to ship the wagons back. Witness had the conversation with Hill while the firm of J. B. Melton & Co. was taking inventory and selling out to one Mr. Nanny.
Layton testified that Hill, a representative of the appellant, was present while they were taking the inventory and knew that his firm was closing out. Hill asked witness if they were fixing to sell out and witness told him that they were — they were taking an inventory then. Hill said to witness that Melton would continue the line and that he would not consider witness in it in any way whatever — that witness would be out of it; that he would turn the business over to Melton. Witness asked Hill about the commission on some stuff they had sold and about $140 freight, and Hill told witness to settle with Mr. Melton on .that, and it would be satisfactory. Witness replied, “All right,” and Hill, without any solicitation, told witness that he could consider himself out. Witness relied on that, and didn’t have anything further to do with the company. The firm of J. B. Melton & Co. was dissolved in May, and no demand was made on witness for the debt in controversy until the 28th of the following December'.
Nanny testified that he bought out the firm of J. B. Melton & Company, and that while they were taking the inventory Hill tried to get him to form a partnership with Melton for the purpose of handling the business of appellant. Witness talked over the business of appellant with Hill and told him that he didn’t want any partner. Hill told witness that Ernest Layton wanted it, but he was not going to let Ernest have it and preferred that witness and Melton have it as partners. Hill told witness that he was going to let Melton have it.
W. B. Crabb, who was in the employ of the appellant as “block-man,” was sent to Yellville in the fall for the purpose of making a settlement with J. B. Melton & Co. for the goods that they had purchased of appellant during the year 1916. He testified that the settlement was made with Melton, who informed witness that there had been a dissolution of the firm, and that Layton had no further connection with it. Witness made the settlement as far as he could make it, but told Melton that the company would not accept a settlement from lfim as final without the signature of the company. The bookkeeper had already made out and delivered to them a stated account. Witness added to it some credits, and all the charges were made out at the office by the bookkeeper from the books of the appellant. The testimony of Crabb further shows that the settlement called for the signing of certain notes; that these notes were signed by Melton. He told Melton that the best he could do would be to effect the settlement and to send it in to the company for its approval; that witness was sure that they would not accept it, as they did not; that witness had no authority to accept it for tlie company. "Witness took six notes in making the settlement stated. Witness took the notes in payment of the account. Witness was asked if in making the settlement with Melton he was making it with him individually, and answered, “Yes, but he was treating it as the company’s business.” He knew at the time that Layton and Melton were Claiming that the partnership had been dissolved, and that Melton was claiming that the wagons and the agency had been turned over to him individually, and that Layton had nothing further to do with it. There was considerable more testimony of this witness to the same effect, which it is unnecessary to set out in detail.
Melton was recalled and further testified that the account that was rendered to him and which he signed was made out against J. B. Melton; that the characters “& Co.” were not on the account stated at the time same was rendered to him. In regard to the statements of Crabb, he testified that he told him that the best he could do would be to give him what money he had and his notes. Crabb replied that was all right. Witness gave him his check for $250 and witness’ notes for the balance. Witness denied that Crabb said at the time that the settlement would have to be subject to the approval of the general manager. Witness understood from the fact that Crabb had the account of the company and from his conversation that he had authority to settle the matter. Witness understood when he executed the notes that it was done in settlement of the matter: Crabb did not ask witness to sign the company’s name to the settlement.
There was further testimony tending to prove that the appellant cashed the individual check of J. B. Melton and forwarded the notes to its collection department, which in turn sent them to the Bank of Yellville for collection and allowed them to remain there until after one of them was past due without making any demand upon Layton for the payment of these notes.
We have reached the conclusion that the court was warranted in finding from the above testimony that the appellant had released the appellee Layton from all liability under the contracts made with J. B. Melton & Company. The above testimony was legally sufficient to warrant a finding that the appellant had knowledge of the fact that the partnership between J. B. Melton and Ernest Layton had been dissolved, and that the appellant made a settlement with Melton and accepted his individual notes in payment of the balance due on the contracts between appellant and the firm of J. B. Melton & Co., and thereby released the appellee Layton. Even though such finding of the court were against the decided preponderance of the evidence, it is not our province on appeal to determine where the preponderance lies. Under the often announced rule of this court, we must give the evidence its strongest probative force in favor of the court’s finding.. Gossett v. Gossett, 112 Ark. 47. .
It follows that the judgment of the court is correct, and it must be affirmed. It is so ordered. | [
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McCulloch, C. J.
Cotton Plant Road Improvement District No. 1 of Woodruff County was organized for the purpose of improving a public road running west from the corporate limits of the town of Cotton Plant to the Prairie County line. The road was to be drained and graded and covered with a crushed rock base and then topped or surfaced with asphaltum in accordance with the plans and specifications prepared by the engineer of the district and approved by .the State Highway. Commission. ‘ ..........
Appellee, R. Mobley, entered into a contract with the improvement district in August, 1917, to construct the improvement on stipulated terms and prices, and in September, 1917, appellee entered into a subcontract with appellant for the latter to do the work of clearing and grubbing preparatory to the construction of the road, the removal of fences and other obstructions, the grading of the roadbed and hauling, spreading, filling and rolling of the crushed rock used as a base, thus preparing the road for the asphalt top. Appellant was also to haul and place the material for culverts. In other words, appellant contracted to do all the work of constructing the improvement in accordance with the plans and specifications except the work of laying the asphaltum top, which was to be done by appellee himself. The contract between appellant and appellee specified'the terms and prices, and that it was to be done in accordance with the contract of appellee with the improvement .district and under the directions and supervision of the engineer. The contract provided for monthly estimates of the work to be made by the supervising engineer, and payments to be made thereon, retaining fifteen per centum until the completion of the contract, in accordance with a similar provision in appellee’s contract with the improvement district. Appellant proceeded with the work shortly after the execution of the contract and pursued it until the following August when a controversy arose between the parties as to alleged defects in the work done by appellant. The work began at the corporate line of the town of Cotton Plant and proceeded westward by stations numbered from zero upward^ At the time appellant quit work he had completed his work on the road up to and including station 433 and the asphalt had been placed on the road up to and including station 111. The remainder of the work was thereafter completed by ap-pellee. Payments were made to appellant on the estimates, exclusive of the retained percentage, up to the estimate' made on August 6, 1918, for the July work which appellee refused to pay to appellant on the ground that Ms work was defective and not np to the standard specified in the contract. Appellee refused to pay the amount called for in this estimate unless appellant would go hack over the work and remedy the alleged defects. Appellant contended that he had done the work in accordance with the specifications, with the exception of certain minor matters which will he referred to later, and he refused to go back over the work for the purpose of bringing it up to the standard of the contract. His contention was then and is now that the defects in the roadbed were caused by delay of appellee himself in failing to follow up the work and put on the asphalt before the roadbed was worn away by traffic and bad weather. At this point of the controversy appellant did not quit work, but instituted the present action in the circuit court of Woodruff County against appellee to recover the amount due on the estimate for the July work and also for the retained percentage on the work for the months prior thereto. Appellant continued to work until some time in November, 1918, when, on account of lack of funds and the continued refusal of appellee to make payments until appellant should, pursuant to demand, go back over the work and remedy the alleged defects, he quit the job altogether, and the suit also embraced the claim of appellant for work done under the contract subsequent to July, 1918, as well as the amount alleged to be due prior to that time.
It was alleged in the complaint that appellee broke the contract by refusing, without justification, to make payments in accordance with the terms thereof. Appel-lee answered, denying that he had broken the contract, but alleged, on the contrary, that appellant committed the first breach by failing to do his work in accordance with the terms of the contract and in refusing on demand to go back over the work and remedy the defects. Appellee alleged that the defects were caused by the failure on the part of appellant to grade the road up to the height specified in the plans and by failing to lay sufficient rock for the base and to properly roll the same and by fail ure to cut the ditches as specified. He also alleged that it was the duty of appellant, under the contract, to go back over the work and grade up to the shoulders of the embankment. Appellee presented a counterclaim against appellant for the cost of curing the defects and also for the extra cost of completing the road after appellant quit work. Appellant alleged in his complaint that appellee was insolvent, and at the commencement of the action sued out a writ of garnishment and caused the same to be served on the improvement district.
James & Echols, a firm of merchants at Cotton Plant, filed an intervention in the cause against appellant asking for judgment against the latter in the sum of $1,-175.90 with interest, and interventions were also filed by the Standard Oil Company of Louisiana and the Southern Trust Company of Little Eock, asserting claims against appellee Mobley, and the last-named intervener set forth an assignment to it by appellee of the funds due by the improvement district.
The cause was transferred to the chancery court on motion of appellee, and without objection from any of the other parties. The cause proceeded to final decree in which the claim of appellant against appellee was adjudged in the sum of $7,983.92, 'but the court found that appellant had broken the contract, and that appellee was entitled to a set-off against said amount in the sum of $4,-931.62, leaving a balance due by appellee to appellant of the sum of $3,052.30, for which a personal decree was rendered in favor of appellant against appellee. The court also decreed in favor of James & Echols against appellant for the recovery of its account of $1,175.90, and also rendered decrees in favor of the other inter-veners against appellee. The court also directed the improvement district, as garnishee, to pay into court the sum due by the district to appellee under the contract, and decreed that appellant and said interveners share pro rata in accordance with the amount of their respective claims, in the distribution of said funds.
The court in its recital of the findings in the face of the decree listed the following items as constituting the credits to which appellee was entitled as a counterclaim against appellant’s debt, as follows:
For additional stone to bring up base up to even grade.$1,042.92
For completing grading and open ditches. 3,242.90
For excavation (John Rollers)... 407.92
For clearing and grubbing. 137.14
For fence moving. 89.94
For culverts. 10.80
Appellant Henslee is the only party who is prosecuting an appeal, and the correctness of the court’s finding as to the amount of his claim against appellee is not questioned. The only controversy here with respect to the status of the account between the parties arises upon the counterclaim of appellee, and this involves primarily a determination as to which of the parties committed the first breach of the contract. Appellant quit work before completing the road in accordance with the terms of his contract, and he seeks to justify himself in this action by showing that appellee broke the contract by refusing to make payments in accordance with the terms thereof. On the other hand, appellee contends that appellant broke the contract by refusing without just cause to comply with its terms. After careful consideration of the testimony in the voluminous record before us, we have reached the conclusion that the chancellor erred in his finding that appellant committed the first breach of the contract.
There is a conflict in the testimony as to whether at the time appellee refused to pay appellant for the July estimate the work had been imperfectly done by appellant, or, in other words, that he had not performed the work in accordance with the contract up to that time. Appellant conceded at the time the controversy arose and concedes now that there were minor defects in his work which he was willing to rectify so as to bring the work up to the standard of perfection specified in the contract, but he was unwilling to accede to the unwar ranted demands of appellee that be go back over the work and repair damage to the roadbed which had resulted from the wear of traffic and weather during the period of delay caused by appellee himself in the failure to promptly put on the asphalt top.
The principal point in the controversy between the parties at that time was as to who should dress the shoulders of the roadbed on that part of the work which appellant had already done and for which estimates had been made. The contention of appellant was that he had graded the road up to the proper standard, and that it had worn down by traffic and weather, and that under the contract he was not compelled to repair that damage; The testimony tends to show that most of the damage to the roadbed was done by the exposure of the roadbed to traffic and to bad weather without the asphalt top being on it. According to the preponderance of the testimony, the work done by appellant under the supervision of the engineer was substantially in compliance with the terms of the contract. The testimony of the engineers who inspected the’ work shows that and they only claimed that there were minor defects, in the work — that it was done substantially in accordance with the contract. The testimony also shows that the work was passed by the engineers and estimates handed in for the purpose of paying the subcontractor, without any objection made to the work. This does not mean that the work was, so far as concerns the rights of the improvement district, finally accepted so as to preclude the district from raising the question of the sufficiency of the work, but it was a strong circumstance to show in this controversy that appellant had substantially performed the work, otherwise he would not have been entitled to a preliminary estimate for the purpose of collecting for the work he had done. The testimony shows that it was not customary for the engineers to estimate the work unless it was done in substantial compliance with the terms of the contract. There is testimony also by disinterested engineers and contractors, who have had considerable ex perience in work of this sort, that it was not customary, in the absence of a specific contract on the subject, to require a subcontractor to go back over his work, which had been estimated and received, for the purpose of dressing up the shoulders of the graded road. The testimony shows that the repairing of such defects falls on the principal contractor for the reason that the subcontractor, when he completes his part of the work in accordance with the contract, is entitled to compensation at the contract price. If damage to the work occurs from any source before the work is finally accepted by the owner, the loss falls on the principal contractor. It is not claimed that there is any clause in the contract between’ appellant and appellee which specifically required him to go back over the work for the purpose of repairing'damage done after he had completed his work. There was also a controversy about the ditching, and appellant concedes that he had not completed the ditching, but claims that part of it was incomplete because of the fact that appellee had left rock along the space where the ditches were to be dug.
Appellee had the right to insist on appellant correcting the defects in his work, but, inasmuch as the work was substantially done in accordance with the contract, he could not rightfully demand anything more, and, since his demands upon appellant were unwarranted, he can not claim a forfeiture by reason of appellant’s failure to correct the minor defects which appear to have existed in the work. Appellee is, of course, entitled to credit for the cost of correcting the defects in appellant’s work, and since appellee was entitled to have the work done at the prices specified in his contract with appellant, he is now entitled to credit for the advance costs which he was required to pay over and above the contract price.
The items in appellee’s counterclaim must be divided into two classes, one for the cost of performing additional work left undone by appellant prior to the time he quit, and the other for the costs of the completion of the road in accordance with appellant’s contract. The latter class of items must he excluded, for, since we have reached the conclusion that appellant did not commit the first breach of the contract, he is not liable for the additional cost of completing the road. The items of cost for the completion of appellant’s work on that part of the road on which appellee put on the asphalt top — i. e., the stations from 0 to 111, inclusive — were deducted from appellant’s prior estimates and must therefore be excluded from the present consideration. The first item in the list allowed by the court is the sum of $1,042.92 for1 additional stone used in bringing up the base of the road to the standard of the contract. We are of the opinion that the testimony is sufficient to show that this was necessary in order to complete the rock base, but the court allowed an excessive amount. The price of the work was fixed according to the quantity of rock used and the distance it had to be hauled. There had been a decided advance in the cost of this kind of work between the date of appellant’s contract and the date this work was done by appellee in order to remedy the defects. But the advance was not, according to the testimony of disinterested witnesses, sufficient to justify the prices which ap-pellee charged and which the court allowed. For instance, under appellant’s contract he was allowed $1.40 per cubic yard on a haul of from two to three miles, whereas appellee charged $3.60 per cubic yeard. The testimony of disinterested witnesses shows that at that time $1.85 was a fair price for that work. The same proportion exists throughout the whole of appellee’s account for the cost of doing the additional work. Computing this work according to the prices fixed in the testimony of disinterested witnesses, the amount which appellee should be allowed is $201.80, and the allowance will be reduced to that amount.
The next item allowed by the chancellor is the sum of $3,242.90 for “completing grading and opening ditches.” The court must have included in this item the additional work of completing the road after appellant quit, for there is no testimony to justify the conclusion that anything like that amount of work was done on that part of the road which appellant had passed as complete. All of this work was done on a yardage basis, and, of course, appellee was entitled to credit for all the additional work of completing that part of the road which appellant had passed at the difference between what appellant’s contract price was and the advance cost of doing it at that time. A statement of the account made by Mr. Maskburn, the engineer of the road district, shows that there were 41,336 cubic yards of earth up to and including section 433, and that appellant had handled 39,397 cubic yards before he quit. Appellee could only have handled the difference between these two amounts, which would be 1,936 cubic yards. Appellant was to be paid, under the contract, twenty-four cents per cubic yard and it cost appellee, according to the testimony, forty cents per cubic ward to have the work done,' a difference of sixteen cents per cubic yard, at which price appellee is entitled to compensation. This would amount to $309.76, for which appellee is entitled to credit. The item of $10.80 for culverts is not contested by appellant. All the other items are for work done to complete that part of the road which appellant had not worked on, and for the reasons already stated appellee is not entitled to make any claims against appellant for that. The aggregate of the items for which we find appellee is entitled to credit is $522.52, which leaves a balance due appellant of $7,461.40, with interest from September 11, 1918, as fixed by the court.
It is also contended that the court erred in refusing to sustain appellant’s garnishment against the road district, and we are of the opinion that this contention should be upheld. 'Counsel for appellee answer that this is not important for the reason that the court ordered the district to pay the balance due to the contractor into court and then ordered it distributed to the different claimants in this action. But the record does not show how much was paid in under this order, as the court made no specific finding as to the amount due to the. contractor; it can not be determined whether there is a-sufficient amount to pay appellant the full amount of his debt if he is to share the proceeds pro rata with the other creditors. It therefore becomes material to adjudicate the question of the right of appellant to an equitable garnishment of the funds, for, unless he obtains priority in that manner, the full amount of his debt may not be recovered. It is conceded that appellee is insolvent, and that appellant has no other means of securing payment . except by subjecting to its payment the funds due from the improvement district.
The application of the principles announced by this court in the case of Plummer v. School District, 90 Ark. 236, establishes appellant’s right to priority through the remedy of an equitable garnishment. He is, according to the doctrine of that case, entitled to priority in payment, because the commencement of his action was prior in point of time to that of the other creditors. The point is made that the amount due from the improvement district is for the retained percentage. Conceding that this is not subject to garnishment until the liability of the district for its payment matures by the completion of the work, it appears in this case that before the final decree the work had been completed and there was no further reason for withholding the retained percentage of the contract price. In fact, the court ordered the funds turned into court and distributed among.the creditors. Appellee is in no attitude to raise the question that the rights of the improvement district would be invaded by compelling it to answer a garnishment for the retained percentage.
It is also contended that the court erred in decreeing the payment of a portion of the costs against appellant, who recovered below a substantial sum. If the decree of the court had been correct in adjudicating the rights of the parties in other respects, then it would have been just and equitable to impose a portion, if not all, of the costs on appellant. The court found that appellant had broken the contract and was liable for the aggregate amount of the items set forth in ap-pellee’s cross-complaint. If this conclusion were found to he correct, then we would sustain the chancellor in his decree for costs, hut, since we have reached the conclusion that appellant did not break the contract and is entitled to the recovery of the contract price of his work after deducting the cost of correcting the minor defects, then it follows that he should not he required to pay any of the costs of the litigation. It comes down to simply a question of appellant recovering less than he sued for, and that affords no reason why he should not he entitled to recover his costs expended in the litigation.
The decree is therefore reversed and the cause remanded with directions to enter a decree in accordance with this opinion, awarding appellant recovery of the amount herein specified against appellee and giving his claim priority in the distribution of the funds paid over by the improvement district. | [
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Humphreys, J.
Appellee instituted suit against appellant in the Jackson Circuit Court for damages for the sum of $2,500 on account of appropriating, under the right of eminent domain, about one acre of land with improvements thereon, seventy-five feet in width 'off of one entire side of a ten-acre tract owned by him, near the city of Newport, and for damages resulting from the appropriation.
Appellee admitted the appropriation of the land for levee purposes, bnt joined issue as to the amount of damages resulting, alleging the value of the land and improvements appropriated and damaged to he $200, which amount it tendered.
The cause was submitted to the jury upon the pleadings, evidence and instructions of the court, which resulted in a verdict against appellant in the sum of $1,700. A judgment was rendered in accordance with the verdict, from which an appeal has been duly prosecuted to this court.
The Newport Levee District, appellant herein, was created by act No. 249 of the Acts of the G-eneral Assembly of 1917, and, in the construction of the levee authorized by said act, it appropriated for right-of-way purposes a strip of land seventy-five feet wide off of one side of a ten-acre' tract near Newport, owned by appellee. At the time of the appropriation, the improvements upon the strip of land consisted of a dwelling house, fences and cross-fences, and outbuildings, consisting of a barn, houses for pigs, etc. The dwelling was a frame house, painted inside and out, with brick flues, with porches front and hack, the construction of which cost about $2,300. The barn was 14 by 16 feet in the main, with sheds on three sides. The main part of the barn was built of split and hewed logs, most of cypress, and was covered with boards and shingles. There were racks and troughs around the barn to feed the stock. In addition to the hog houses, there were troughs and other conveniences for raising hogs. Before appellants appropriated the property, they employed.Sea to move the house off of the right-of-way onto another part of the ten-acre tract designated by appellee, which was damaged in moving. The other improvements on the property were torn down and appropriated by appellants. It is fairly in-ferable from appellee’s entire evidence that the improve ments, including the dwelling, were placed npon the property hy appellee about three years before the appropriation, a short time after he purchased the ten-acre tract of land, for which tract he paid $1,800.
In the course of the examination of appellee, he was permitted to testify, over the objection of appellants, as follows:
Q. What did you put these improvements on this piece of land for, for what purpose?
A. Well, I figured on going out there and living. I had been in business fourteen or fifteen years, and I figured on making it my home and living there.
Q. Making it a home?
A. Yes, sir.
Q. Mr. Price, did you want the house moved from there on to that other piece of land?
A. No, sir.
Q. You didn’t want to live there, you wanted to live where you put your house, did you?
A. Yes, sir; that is what I put it there for.
Q. What do you say now, Mr. Price, would be your idea of the fair market value of that land?
A. Well, I don’t know. I didn’t want to sell it at all myself, you know. I bought it for my own use for my home, and I don’t know what it would be worth. I spent fifteen years you might say in saving up money for the place.
In the course of the cross-examination of appellee by appellant, he testified that he paid $1,800 for the entire tract, whereupon appellant propounded the following question to him: “Q. And when was that you paid $1,800 for the eight acres?” The court refused to permit this question to be answered, and proper exceptions were saved by appellant.
In the course of further cross-examination of appel-lee by appellant, he testified that it cost him $250 or $300 to build the barn; that it was worth what it cost him; that it was worth $500 to him. Appellant then asked ap- pellee concerning the market value of the barn;-whereupon the court ruled, over the objection and proper exception of appellant, that appellant could not show the fair market value of the barn, because there was no fair market value on second-hand barns in this country on another man’s land, and stating further that he did not think the fair value would be the measure of damages on the barn; that the test would be the damages to appellee by tearing it down.
The first insistence of appellant for reversal is that the court admitted evidence tending to establish a sentimental value of the property on account of being bought, planned and constructed by appellee for a home. It was improper to admit this evidence, but we do not think it prejudicial, for it was, in effect, eliminated by the instruction given by the court upon the measure of damages, which was not objected or excepted to by appellant.
The second insistence of appellant for reversal is that the court refused to permit appellants to show by ap-pellee at what time he paid $1,800 for the entire ten-acre tract. The price paid for land is a circumstance tending to show its market value at or near the time purchased. The real issue in the instant case was the value of the land at the time appropriated, together with the damages resulting on account of the appropriation, and evidence tending to show that appellee had purchased the tract near the time of appropriation for $1,800 would have been a circumstance tending to establish the value of the land taken and damages resulting oh account of the appropriation. It was error therefore to exclude the evidence of appellee as to the time he paid $1,800 for the entire tract, but we do not regard it as prejudicial error, for it is clearly inferable from the evidence that he built the house about three, years before the strip of land was appropriated by appellants, shortly after he purchased it. This fixed the time at which appellee paid $1,800 for the entire tract. There was no dispute in the evidence upon this point. ' It is 'not contended that by pressing this point upon cross-examination appellants could have shown that appellee paid $1,800 for the entire tract at a later date than about three years before the appropriation of the land. "We are of opinion that no prejudice resulted to appellant in this regard.
The next insistence of appellant for reversal is the refusal of the court to permit appellee to he interrogated as to the fair market value of the barn disconnected from the land, and to the statement of the court that the proper measure of damages was not the fair market value of the barn, hut the damage done to appellee by tearing it down. The barn was clearly a part of the real estate appropriated by appellant. The question at issue was not the market value of the barn disconnected from the real estate, but the value of the real estate appropriated with the improvements thereon,, as well as damages resulting from the appropriation. This court has established the rule for measuring damages in condemnation proceedings to be the difference between the value of the whole land before the appropriation and the value of the portion remaining after the appropriation. Little Rock, Miss. & Texas Ry. Co. v. Allen, 41 Ark. 431. The court did not err, therefore, in refusing to permit appellee to be interrogated concerning a fair market value of the barn disconnected from the land.
The last insistence of appellant for reversal is that the court permitted proof of the damages resulting on account of removing the dwelling from the lands appropriated to adjoining lands belonging to appellee. The insistence of appellant is that the contract for removing the dwelling was let to a Mr. Sea with the understanding that he should receive $150 for the job and assume all obligations for damages resulting on account of the removal thereof. Appellant requested the following instruction upon this point, which was refused by the court:
“You are instructed that if you find from the evidence that the defendants employed one Sea to move the Louse of tlie plaintiff from the land taken by the defend1 ants on to the plaintiff’s land, and that the said Sea had the sole control of the manner of doing such work, the hiring and discharge of the employees engaged in such work, and the sole control of the manner in which they did such work, then the said Sea was an independent contractor, and the defendant would not be liable for any damage done to said house by said Sea or his employees in moving it. ’ ’
The doctrine of independent employment has no application in condemation proceedings. The right to appropriate private property for public use was not delegated by the Legislature to an independent contractor of appellant but to appellant itself, and the exercise of the right of eminent domain can not be farmed out by the agency to whom delegated so as to escape liability on account of appropriating private property for public use. It was said in the case of Lesher v. Wabash Navigation Co., 14 Ill. 85 (Am. Dec., vol. 56, p. 494), that (quoting from the syllabus):
‘ ‘ Corporation authorized by charter to enter upon private premises and take therefrom materials for the erection of public works, and liable for compensation to the owners, is liable to the owners for the materials so taken by contractors employed by the corporation for the prosecution of a portion of the work, although the contractors were to furnish the materials and to do the work for a stipulated price.
“'Contractors employed to perform portions of public work by corporation chartered for that purpose are none the less the servants of the corporation because they do the work by contract and for a stipulated price.”
No error appearing, the judgment is affirmed. | [
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Wood, J.
On Janaury 20, 1920, the appellant, as bank commissioner of the State of Arkansas, filed in the Benton Circuit Court an “amended complaint” in which he alleged “that the affairs of the Citizens Bank of Rogers, Benton County, Arkansas, were, .on the 16th day of July, 1914, duly placed in charge of the Bank Commissioner of the State of Arkansas as an insolvent bank, for the purpose of liquidating its affairs, and that all of its assets were taken charge of by the Bank Commissioner, who has since that time been liquidating the same, but its affairs have never been fully liquidated and wound up. That among the assets of said bank are 154 shares of preferred stock of Jones Brothers & Company, an Arkansas corporation, which were duly issued by said corporation to the defendant, J. E. Felker. Said shares of stock were issued and delivered to the said J. E. Felker as fully paid up stock; that the said J. E. Felker, in consideration of the surrender to him by the said Citizens Bank of Rogers of certain obligations which he owed the said bank, on or about March 24,1913, delivered to and deposited with said bank the said shares of stock together with a written agreement and obligation by the terms of which he obligated himself, after twelve months from said date on proper notification of said bank, to redeem said stock together with eight per cent, interest on the same; that the said agreement came into the possession and control of the said Bank Commissioner, together with the said shares of stock, as a part of the assets of said insolvent bank; that the said shares of stock had no market value when deposited m the hank or afterward, and never were worth half the amount of said notes and afterward became worthless; that, at the end of the first year after receiving the said agreement and shares of stock, the defendant, J. E. Felker, was not ready to redeem the same, but executed and delivered to said bank his note covering the interest on said shares of stock up to the date of the execution of said note, which note is also a part of the assets of said bank and is in the possession and control of the planitiff herein; that, after said bank was placed in charge of the Bank Commissioner as aforesaid,, the said commissioner duly notified the defendant as required by said agreement and demanded the redemption of said shares of stock by the payment of the face value thereof and interest, but the said J. E. Felker has failed and refused to redeem the same or to pay the amount required therefor and had not paid anything up to the filing of the original complaint in this action which was on the 19th day of August, 1918, and has made no payment since that time; that the plaintiff has always been ready to receive the amount required to redeem said stock and thereupon to deliver said stock to said defendant and holds the same subject to the orders of the court for that purpose.” The prayer of the complaint was for judgment in the sum of $15,400.
The written agreement and obligation under which the shares of stock were delivered to and deposited with the Citizens Bank of Rogers, and which' came into the hands of the Bank Commissioner was made an exhibit to the complaint and is as follows:
“Rogers, Arkansas, January 2, 1913.
Citizens Bank,
“Rogers, Arkansas.
Gentlemen:
‘ ‘ Twelve months after date I agree on proper notification to redeem $15,400 Jones Bros. & Co. preferred stock-8 per cent, on same.
“J. E. Felker.”
The cause on motion of the appellee was transferred to the chancery court. The appellee filed an answer in which he set up, among other things, that the agreement sued on is within the statute of frauds and void; that the cause of action is barred by laches and the statute of limitations, and that the contract sued on is void for want of consideration; that plaintiff is estopped, and that all indebtedness to the plaintiff had been paid. . Embraced in the answer was also a demurrer to the complaint.
The decree recites as follows: ‘ ‘ The cause was heard on the amended complaint of plaintiff, demurrer and answer of defendant, and the evidence adduced, the complaint being by the court treated as amended to conform to the proof. The court sustained the defendant’s demurrer to the complaint of the plaintiff on the obligation sued on, being a suit for the collection of $15,400 with accrued interest, on the ground that said complaint does not state facts to constitute a cause of action either in law or equity; and the plaintiff’s complaint being treated as amended to correspond to the proof, said cause is dismissed.” From that decree is this appeal.
The record shows that the court, on motion of the appellee, struck out the interlineation to the complaint, which alleged that “the said shares had no market value when deposited in the bank or afterward and never were worth the amount of said notes and afterward became worthless.” But after this ruling the court heard the cause on the amended complaint, treating the same “as amended to conform to the proof.”
There was testimony on behalf of the appellant to the effect that at the time the 154 shares of stock were deposited in the Citizens Bank of Rogers such stock had no market value, and that the appellee and the officials of the bank knew this.
We have set forth the amended complaint as it appeared before the above interlineation was stricken out, for it appears that the lower court treated it as if it contained the above allegation, “that the stock had no market value, etc,” and we must so treat it.
There was also testimony to the effect that when the 154 shares of Jones Brothers & Company preferred stock — the $15,400 — was delivered to and deposited by the appellee with the Citizens Bank of Rogers, it surrendered to him cancelled obligations to the bank for a like sum. But the testimony of the appellee further shows that, when the exchange was made, he executed the instrument, supra, which is exhibited with the complaint and is the foundation of this action. And he subsequently executed a note which was made up in part of, and included in it, the interest for one year on an obligation to the bank in the exact sum of $15,400. “In suits in chancery, the exhibits, which are the foundation of the action, become a part of the record, and will control the averments of the complaint and the nature of the cause of action.” Cox v. Smith, 99 Ark. 218, and cases there cited.
Now, the instrument set out above, to say the least, is ambiguous on its face. Oral testimony was admissible for the purpose of explaining the circumstances of its execution and the intention of the parties to the contract. Massey v. Dixon, 81 Ark. 337; Jones v. Lewis, 89 Ark. 368; New York Life Ins. Co. v. Allen, 143 Ark. 143-152.
There was testimony that appellee at the time of the transaction, was solvent. Since the stock of Jones Brothers & Company had no market value — was worthless — it is unbelievable that the officers of the bank, knowing such facts, would have accepted such stock as collateral to, much less in exchange and payment of, the notes of appellee to the bank. Even if they had done so, there was no necessity for, and no sense in, the transaction assuming the form of the obligation in suit. The subsequent execution of the note for accrued interest on $15,400 shows that the instrument under consideration was intended by the parties as an unconditional and binding obligation for the payment of the sum of $15,400. Whatever may have been the purpose of the bank and the appellee in changing the form by which the indebtedness of the appellee to the bank was evidenced, it was certainly not their intention to release the appellee from his primary obligation tó pay the bank the sum of $15,-400. On the contrary, we are convinced that the only reasonable conclusion is that the instrument sued on was intended to evidence an obligation on the part of the appellee to pay to the Citizens Bank of Rogers, Arkansas, the sum of $15,400 on demand, with interest.
Equity looks at the substance and not at the form, and will discard any mere surplus and unmeaning words, or supply other words to carry out the obvious intention of-the parties. Therefore, the words “proper notification” in the instrument were surplusage and could have no other purpose than if the words had been “on demand or notice. ’ ’ In the- light of the testimony showing the intention of the parties to the transaction, and to effectuate such intention, we agree with the learned counsel for the appellant; that the instrument should be interpreted the same as if it had the following form:
Twelve months after date I promise to pay to the Citizens Bank of Rogers, Arkansas, the sum of fifteen thousand four hundred- and no/100 dollars, with inter est at the rate of 8 per cent, per annum, for the redemption of $15,400 Jones Brothers & Company preferred stock.
The instrument so construed explains and controls the allegations of the complaint by which it is sought to enforce the obligation. It follows that the court erred in holding that the complaint did not state a cause of action and in sustaining the demurrer to the complaint. The decree is, therefore, reversed and the cause remanded with directions to overrule the demurrer to the complaint. | [
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Smith, J.
On April 20,1918, Jackson and Vreeland, the appellants, contracted with T. B. Barnes, the' appel-lee, to convey to him a merchantable title to 240 acres of land in Desha County, for the sum of $9,000, a portion of which was to be paid by the conveyance of certain lots in the city of Omaha, Nebraska. On May 25 a supplemental agreement was entered into, wherein it was provided that the abstract of the title should be examined by Guy C. Reed, the attorney for Barnes; and, if the title was not approved by Reed, then appellants ‘ ‘ agree to pay necessary costs of suit brought in district court of Desha County to quiet said title, including attorney’s fee.”
The abstract was submitted to Reed, who rejected the title. No suit was ever brought to confirm the title. Appellants say the suit was not brought because they were led to believe the title would be accepted without confirmation, as Barnes had taken possession of the land by cutting timber. Barnes denied he ever agreed to accept a title not approved by his attorney, and he testified that he supposed a confirmation suit would be brought, as he signed papers for that pupose prepared by appellants ’ attorney. He admitted cutting sixty-three trees, which measured 4,454 feet, but he testified that when he did this he “supposed a perfect title was forthcoming;” but when he found that suit had not been brought at the term pf the court to which it was agreed the suit should be brought, he treated the contract as at an end and so advised appellants.
Appellants took charge of the Omaha, property and sold it to innocent purchasers without notice of the terms under which it had been sold, the sale being made subject to certain outstanding incumbrances. The court fixed tfie value of the Omaha property at $3,400, whereas appellants received only $1,700 at the sale made by them, and this finding of value is one of the questions raised on this appeal. The testimony on this subject is conflicting; but we are unable to say that the finding of the chancellor is clearly against the preponderance of the evidence.
We think the testimony does not support the contention that appellants had the right to assume that ap-pellee was satisfied with the title and was willing to accept it as it stood. Nor do we agree with counsel for appellants that appellee is relegated to a suit upon his covenants of warranty contained in the deed prepared and tendered by appellants, as having accepted the land. We think there was no such taking possession as amounted to an acceptance. It is true some timber was cut, but this was done on the assumption that a merchantable title would be tendered and that the necessary steps to perfect the title .had been taken. The acceptance was conditional, the condition being that the title contracted for would be furnished, and that was never done.
No objection to the value of the timber as found by the court was made. Appellants were allowed credit for the value of the timber in the decree fixing the value of the Omaha property for Which judgment was rendered.
We think the court’s finding that a merchantable title was not furnished as required by the contract is not clearly against the preponderance of the evidence, and the decree of the court below is therefore affirmed. | [
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Smith, J.
In 1895, Thomas J. Johnson and his wife executed to their daughter, Mrs. Cynthia Gibson, a deed to one hundred acres of land. This deed described the east half southwest quarter northeast quarter, section 19, township 18 north, range 28 west. On March 12,1918, the same grantors executed to their son, W. W. Johnson, a deed to one hundred and ninety acres of land, and in this deed included the twenty acres above described. Notwithstanding the fact that the twenty acres was described in both deeds, the grantor did not deliver possession to either his son or his daughter, but retained possession and collected rents thereon. Shortly after executing this last deed T. J. Johnson died.
After the death of T. J. Johnson, W. W. Johnson brought this suit against his sister, and alleged the fact to be that their father had not intended to convey the east half southwest quarter northeast quarter to Mrs. Gibson, but had in fact intended to convey her the west half southwest-quarter northeast quarter. There was a prayer that the title to the east twenty acres be divested out of Mrs. Gibson and vested in the plaintiff, and that the title to the west twenty acres be vested in Mrs. Gibson. In other words, that the deeds be so reformed as to give W. W. Johnson the east twenty acres and Mrs. Gibson the west twenty acres.
T. J. Johnson owned other lands not conveyed to either his son, W. W., or his daughter, Cynthia, and was survived by other children, who were not made parties to this suit.
Mrs. Gibson answered and denied that any mistake had been made, and much testimony was heard on this issue, and she very earnestly insists that the testimony does not clearly and satisfactorily show that a mistake was made.
The court found, however, that a mistake had been made, and that the grantor intended to convey the east twenty to "W. W. Johnson and the west twenty to Mrs. Cynthia Gibson, and entered a decree cancelling the deed to Mrs. Gribson in so far as it purported to convey the east twenty acres, and this appeal is from that decree.
We have carefully considered the testimony m tne case, and, while we do not reverse the decree on the finding of the court below on the facts, we have concluded that the court should not have granted the relief on the case made. We think, however, that W. W. Johnson has the right to prosecute this suit when proper parties have been brought before the court. 20 R. C. L., Title “Reformation,” § 31; Jones v. McNealy, 101 Am. St. Rep. 38, 139 Ala. 379, 35 So. 1022. As the case now stands, Mrs. Gribson is left with the title to only eighty acres of land; while her brother has title to one hundred and ninety; and, while it clearly appears that T. J. Johnson intended to convey his son, W. W. Johnson, that quantity of land, it appears with equal clearness that he intended to convey one hundred acres of land to his daughter, Mrs. Gibson.
The court did not attempt to invest Mrs. Gibson with title to the west twenty. In fact, the parties necessary to the making of that order were not before the court, and therein lies the error for which the decree must be reversed. As the matter now stands, the west twenty acres is a part of the T. J. Johnson estate; and, while W. W. Johnson would be, and is, estopped by this suit from claiming that twenty acres, as against Mrs. Gibson, the rights of the other heirs are not affected by this litigation, as they are not parties to it. So long as the brother and sister litigated over the east twenty acres between themselves, the other heirs could stand by and let the litigation progress, as T. J. Johnson had apparently deeded the land to both W. W. Johnson and to Mrs. Gibson.
No showing is made that the other heirs conceded Mrs. Gibson’s title to the west twenty acres, and under the decree appealed from she would have to proceed to acquire in severalty the title to that land. If suit is necessary, it will devolve upon her to show, as against the other heirs, that a mistake was made in the execution of the deeds; and we can not know what showing those heirs might make against that contention in a proceeding to divest them of their title to the west twenty acres. Their silénce in the instant litigation would not prevent them from speaking in that litigation.
By failing to make all the heirs parties W. W. Johnson has not put the court in position to do equity. All the persons whose interests are affected should he brought before the court, to the end that the court might enter a decree which does equity, not only to W. W. Johnson, but to Mrs. Gibson.
Reformation and cancellation are equitable remedies, and relief by way of reformation or cancellation is granted only when it is equitable so to do. 22 Enc. of Procedure, p. 1030; 23 R. C. L., p. 346, and eases cited. Courts have the right, in granting this relief, to impose terms or conditions which work out the equities of the case; and we have concluded that Mrs. Gibson should not be required to bear alone the burden of litigating with the other heirs a question involving the title to the twenty-acre tract which is unaffected by the decree here appealed from so far as the rights of the other heirs are concerned. !
The decree will therefore be reversed, and the cause will be remanded with directions to make all the heirs of T. J. Johnson parties to the litigation. | [
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McCulloch, C. J.
Appellant was convicted of the crime, of assault with intent to kill, committed by shooting and wounding Prank Gassoway. The alleged assault was committed in the town of England, Lonoke County, where both of the parties to the encounter resided. They had been on bad terms for several years, and in July, 1920, about a month before the shooting occurred, Gas-soway went to Faulkner County on a visit to his father and remained there about a month. He returned to England a day or two before the assault occurred and heard of a report being circulated about him to the effect that he had been confined in jail in Faulkner County on a charge of stealing an automobile. Gassoway traced this report, as he claimed, back to appellant’s wife, and he went to see appellant about it, but the latter claimed that neither he nor his wife were responsible for the report. There was abusive language passed between the two parties in regard to this incident, and appellant went into his house and came out with his shotgun and threatened to shoot Gassoway. They were both arrested and tried before the mayor for disturbing the peace, and during the trial there were manifestations of bad feeling between them. The trial before the mayor occurred early in the morning, and about 5:30 o ’clock on the same afternoon the parties met in front of a livery stable and the controversy between them concerning the rnmor about Gassoway having been in jail again arose and rough language was again used by each of the parties.
Gassoway testified that he went over to the livery stable and found appellant and one Sheridan sitting on a bench in front of the stable; that appellant got up and said: ‘ ‘ Whoever told you I said that told a damn lie, ’ ’ and started to walk away when he (witness) spoke to appellant, saying, “You could be too fast; you could be a damn liar yourself;” that appellant turned and drew his pistol and said, “You are always making a gun play. That isn’t the first time you have, and, God damn you, I am going to kill you if I go to hell in three minutes.” He testified that at appellant’s first attempt to fire the gun the charge did not explode, and that he (witness) said, “Parsley, don’t shoot me,” and that appellant replied, “God damn you, I am going to kill you,” and continued to shoot as the witness backed away. There were two or three shots fired, and Gassoway was severely wounded, being shot through the arm and through the liver and lungs. His left arm was broken, and his left leg' was shot through. Gassoway testified that he was not making any demonstrations toward appellant at the time the latter fired the shots.
Appellant testified concerning the prior trouble with Gassoway and also gave the details of the final encounter between them which resulted in his shooting Gassoway. He testified that he and Sheridan were sitting on a bench in front of the livery stable when Gassoway came up; that he and Sheridan were discussing the alleged report about Gassoway at the time the latter came up, and that Gassoway inquired what they were talking about, and he answered that they were talking about the report, and that he had had nothing to do with it; that he got up from the bench and started away, and as he started up-pellant said, “Wait a minute, you God-damn lying son-of- a-bitch, you told it;” that he (.appellant) turned around and saw that Gassoway was advancing toward him with his hand under his arm, and that Gassoway said, “Get your gun, you cowardly son-of-a-bitch, you haven’t got nerve enough to use it.” He testified that he thought Gassoway was attempting to draw his gun from under his arm, and that he began firing and shot three times. There were numerous other witnesses in the case, some of whom corroborated Gassoway mid some corrobrated appellant, and there were several versions of the affair.
Among the numerous instructions given by the court the following was given over appellant’s objections:
“You .are instructed that the defense relied'on in this case is self-defense, that, is, that the defendant contends that the reason he shot Gassoway was that it was necessary to shoot the witness Gassoway in order to save his own life, or prevent Gassoway from inflicting .a serious bodily injury upon him. This is a legal defense under the law if established, and the burden of proving same is upon the defendant, but, before the law of self-defense can be invoked, -the defendant must be without fault or carelessness upon his part in provoking the difficulty, and must have used .all means within his power consistent with his safety to avoid the danger, and avert the necessity of taking human life. And you are further instructed that the law of self-defense begins in necessity and ends in necessity; if the defendant could with safety to himself [have] avoided this difficulty, and failed or refused to do so, then the law of self-defense can not avail him. ’ ’
In an oral instruction subsequently given the court also reiterated the statement that, appellant having admitted the shooting and .also that he intended to kill Gas-soway, the burden was on him to prove that the shooting was justifiable. We are of the opinion that this instruction was erroneous and calls for a reversal of the judgment. There is a statute which provides that in homicide cases, if the killing be established, “the burden of proving circumstances of mitigation that justify or ex cuse the homicide shall devolve on the accused, unless by the proof ,on the part of the prosecution it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide.” Crawford & Moses ’ Digest, $ 2342.
This statute, however, has no application to the trial of any offense except homicide. It is improper, therefore, to give this statute, either in form or substance, in any other kind of case, for the burden is on the State to prove beyond a reasonable doubt every allegation in the indictment. Even in cases which fall within the statute, it is improper to instruct the jury that it devolves upon the defendant to prove circumstances in mitigation or justification without stating the further qualifications contained in the statute “unless, by the proof on the part of the prosecution, it is sufficiently manifest,” etc., or without stating that the burden of the whole case rests upon the State. Cogburn v. State, 76 Ark. 110; Tignor v. State, 76 Ark. 489; Childs v. State, 98 Ark. 430. The objection made to the instruction was general, but we think that no specific objection was required.
The giving of the following instruction is also assigned as error:
“You are instructed that words, be they ever so insulting or slanderous, can not justify even a simple assault, and you are instructed, if you find from the evidence or circumstances that, because of any insulting or abusive language used by Gassoway, the defendant shot him, and at the time he shot the said G-assoway he intended to take his life, you will find the defendant guilty of .an assault with intent to kill and fix his punishment at some period of not less than one or more than twenty-one years at hard labor in the penitentiary.”
This instruction is in bad form, but it is unnecessary to determine whether it is prejudicial. The first part of the instruction is correct in saying that language, however insulting or slanderous, does not justify an assault, and it would have been correct to tell the jury that if appellant fired the shot with intent to kill merely because of abusive language on the part of Gassoway and without any assault or other overt act, appellant would be guilty of the offense charged; but it is doubtful whether the jury understood this instruction to mean that it is only in the absence of such overt act that abusive language will not reduce the grade of an offense below assault with intent to Mil.
There was testimony in the case tending to show that Gassoway used abusive- language toward appellant, and that he was advancing on appellant in a threatening attitude, when the latter fired the shots; and if the jury believed that to be true, then appellant was not necessarily guilty of assault with intent to kill, even though the shooting was unjustified. In other words, if the jury found that there was such a threatening attitude on the part, of Gassoway as to lead appellant to believe that his life was in danger, or to arouse a sudden, irresistible passion, this would'reduce the grade of the offense. To say the least of it, this instruction was confusing, and we call attention to it in view of another trial without determining whether or not it constitutes reversible error.
The court’s refusal to give the following instructions is separately assigned:
“No. 1. The jury are instructed if you find from the evidence in this case that the assault was committed by the defendant while acting under the influence of passion or excitement, caused by provocation apparently sufficiently to make the passion irresistible, defendant should be acquitted.”
“No. 2. The jury are instructed that if you find from the evidence the defendant at the time he assaulted the prosecuting witness, by his acts and conduct, caused the defendant to honestly believe, without fault or carelessness on his part, that he was in danger of great bodily harm, and that in order to protect himself from such bodily harm, then the defendant would have the right to protect himself even in shooting his assailant.”
In order to constitute the crime of assault with intent to kill, the evidence must be such as to warrant a conviction of murder, if death had ensued from the assault, and there must have been a specific intent to kill. Lacefield v. State, 34 Ark. 275; Davis v. State, 115 Ark. 566. Appellant was therefore entitled to an instruction telling the jury that if the assault was committed “upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible,” so that the offense would have been reduced to manslaughter if death had ensued, then he would not have been guilty of assault with intent to kill. However, the instruction requested by appellant was not in correct form, and the court properly refused to give it. In the first place, the instruction does not follow the language of the statute, Crawford & Moses’ Digest, § 2355. In the next place, it is erroneous in telling the jury that, if the assault was made under those circumstances, appellant should be acquitted. The indictment embraced the lower degrees of assault, and, even though the assault was made upon a sudden heat of passion, this would not justify it, but would only reduce it to a grade lower than assault with' intent to kill.
Instruction No. 2 was correct, but it seems to have been covered by another instruction given by the court on its own motion.
For the error found in instruction No. 1 the judgment is reversed and the cause remanded for a new trial. | [
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Smith, J.
Appellants were each convicted, in separate trials, of selling intoxicating liquors, and a reversal is asked in each case upon the ground that the law of this State on the subject of the sale of intoxicating liquors has been supersedéd and annulled by the Federal statute commonly known as the Yolstead act (c. 85, Acts 66th Congress, 41st U. S. Stat. at Large, 305), enacted to enforce the 18th Amendment to the Federal Constitution.
This amendment reads as follows:
‘ ‘ Section 1. After one year from the ratification of this article, the manufacture, sale or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from, the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
“ Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. ’ ’
The question here presented has already been considered by the courts of last resort in several of the States.
The first of these opinions was that of the Supreme Judicial Court .of Massachusetts in the case of Commonwealth v. Nickerson, 128 N. E. 273. The subject was considered by that court in the most exhaustive manner, and the opinion of the court by Rugg, C. J., is one of great erudition. He leaves but little to be added to the discussion, and other courts which have since been called upon to decide the same question have followed the lead of that court. Other cases on the subject are: Allen v. Commonwealth (Supreme Court of Appeals of Virginia), 105 S. E. 585; State v. Fore (Supreme Court of North Carolina), 105 S. E. 334; Jones v. Hicks (Supreme Court of Georgia), 104 S. E. 771; Scroggs v. State (Supreme Court of Georgia), 105 S. E. 363; Edwards v. State (Supreme Court of Georgia), 105 S. E. 363; Smith v. State (Supreme Court of Georgia), 105 S. E. 364; Meriwether v. State (Supreme Court of Mississippi, en banc), 87 So. 411; Kyzar v. State (Supreme Court of Mississippi, Division B), 87 So. 415; Jones v. Cutting (Supreme Judicial Court of Massachusetts), 130 N. E. 271; Franklin v. State (Court of Criminal Appeals of Texas), 227 S. W. 486; Ex parte Gilmore (Court of Criminal Appeals of Texas), 228 S. W. 199; State ex rel. v. District Court (Supreme Court of Montana), 194 Pac. 308; Russell v. State (Court of Criminal Appeals of Texas), 228 S. W. 948.
The Supreme Court of Massachusetts considered all the objections offered to the existing laws of that State on the subject of the illegal sale of liquor which have been made here against our own laws on that subject, and held that none of the objections made were well taken.
It is pointed out in the opinion of Chief Justice Rugg that the Eighteenth Amendment is the only instance to be found in the Constitution of the United States, or any of its amendments, where there is a definite declaration that both Congress and the several States have ‘ ‘ concurrent power” to enforce any constitutional mandate by appropriate legislation.
The Supreme Court of Georgia, in the case of Jones v. Hicks, supra, says the use of the word “several” before the word States is significant in determining the meaning and intent of the amendment. Joint enforcement was not intended. The suppression of the liquor traffic and the establishment of prohibition was the thing aimed at, and the purpose of the amendment was to invoke the aid of the Congress and that of the several States in accomplishing that purpose. To that end each of these governmental agencies was enjoined to contribute by the enactment of appropriate legislation. As was said in the case of Commonwealth v. Nickerson, supra: “The force and effect of the words of the Eighteenth Amendment, while possibly enlarging the permissible scope of State legislation respecting importation and exportation of intoxicating liquors, leaves open to State legislation the same field theretofore existing for the exercise of the police power concerning intoxicating liquors subject only to the limitations arising from the conferring of like power upon Congress with its accompanying implications, whatever they may be.
“Having regard only to the words of the Eighteenth Amendment, the Congress and the several States are placed upon an equality as to legislative power. It is only when the amendment is placed in its context with other parts of the Constitution that the supremacy of the act of Congress if in direct conflict' with State legislation becomes manifest.”
Counsel for the appellants cite the case of Hickman v. Parlin, 88 Ark. 519, in which this court held that the State Insolvency Act' of June 26, 1897, was superseded by the Bankruptcy Act of Congress of July 1, 1898, in so far as they relate to the same subject-matter and affect the same persons, and argue that the effect of that decision is to put our liquor laws in abeyance.
This point was also considered in the Nickerson case, where it was said: “There is a group of cases which hold that, while the general power to deal with some subjects is vested in Congress'by the Constitution, yet in the absence of action by Congress, if the power is not denied to the States, legislation by them touching the subject is valid and enforceable. By article 1, section 8, clause 4, of the Constitution, Congress is given power ‘to establish # * # uniform laws on the subject of bankruptcy throughout the United States.’ There are no words in the Constitution as to the power of States over bankruptcies. Until Congress has acted by passing a general bankrupt law, the several States may enact laws of that nature, which are suspended when Congress acts upon the subject. See, for example, Sturges v. Crowninshield, 4 Wheat. 122, 193, 4 L. Ed. 529; Ogden v. Saunders, 12 Wheat. 213, 6 L. Ed. 606; Griswold v. Pratt, 9 Metc. 16. Those decisions rest on the principle that a uniform law on bankruptcies throughout the United States can not readily coexist as operative legislation with various State laws covering the same field. That principle in our opinion is not applicable to the subject-matter of the Eighteenth Amendment. There is no inherent or necessary incompatibility between the contemporaneous existence and enforcement of both Federal and State laws designed to enforce prohibition. Therefore it is manifest to us that the explicit words of section 2 vesting ‘concurrent power’ to enforce prohibition both in Congress and in the States mean something more than the ‘concurrent power’ to which reference is made in Sturges v. Crowninshield, 4 Wheat. 122, 193, 4 L. Ed. 529, as existing without express words. ’ ’
It is here argued, for the reversal of the judgments in each of the appeals before us, that, if the respective States may enact and enforce its own legislation on the subject, authority is found only for legislation enacted subsequent to the adoption by the States of the Eighteenth Amendment, and that, as the appellants here were each convicted under legislation enacted prior to the adoption of that amendment, a reversal must be ordered on that account.
This feature of the question was considered by the Supreme Court of Georgia in the case of Jones v. Kicks, supra, where that court pointed out that the Eighteenth Amendment was a grant' of additional power to the Federal Government, but in this grant of power the States had parted with none of their own power to enforce prohibition within their own sphere of action. That court said: ‘ ‘ The amendment and legislation thereunder by the Congress does not impair the integrity of any existing State statute to enforce prohibition, nor can it in terfere with the enactment of any future legislation by the States for that purpose.”
On this same subject the Supreme Court of Appeals of Virginia, in the case of Allen v. Commonwealth, supra, said: “We think there can be no conflict between the Federal and State legislation on the subject under consideration so long as neither State nor Federal government attempts to interdict the other from dealing with the conduct in question as Federal or State offenses, respectively, as the case may he, and where the legislation of the State is confined to punishing the conduct as State offenses and the legislation of the Federal Government is confined to punishing the same conduct as Federal offenses, neither undertaking to nullify the laws of the other enacted and operating as the expression of the edicts, respectively, promulgating the provisions as to what shall be offenses against the respective sovereign-ties and the punishments therefor.”
And further: “Under the view which we take of the subject, any statute which the State may have enacted or may enact creating or. not creating the State offenses aforesaid would not be in conflict with the Volstead act, or with the Eighteenth Amendment, unless and only to the extent that such State statute should attempt to nullify the Federal law creating the Federal offenses aforesaid. The State law could not authorize the commission of the offenses condemned by the Federal law so as to permit the offender to go free of punishment under the Federal law. It can, however, impose or withhold punishment for such conduct as State offenses, or impose different punishments for State offenses consisting of the same conduct.”
On this phase of the case we quote again from the Nickerson ease, supra, where the Supreme Court of Massachusetts said: ‘ ‘ The amendment does not require that the exercise of the power by Congress and by the States shall he coterminous, coextensive and coincident. The power is concurrent, that is, it may be given different manifestations directed to the accomplishment of the same general purpose, provided they are not in immediate and hostile collision one with the other. In instances of such collision the State legislation must yield. ’ ’
In the case of Rhode Island v. Palmer, 253 U. S. 350, 64 L. Ed. 356, the Supreme Court of the United States held that the Eighteenth Amendment had been properly submitted to and ratified by the States. The opinion in that case is unusual in that it consists in an announcement of the conclusions of the court without any exposition of the reasoning by which those conclusions had been reached. In the seventh conclusion announced in that opinion it is said that the second section of the amendment, which declares that “the Congress and the several States shall have concurrent power to enforce this article by appropriate legislation,” does not enable Congress .or the several States to defeat or thwart prohibition, but only to enforce it by appropriate means. That is, the States may enact laws to aid in the enforcement of the amendment, but may not enact laws to defeat its enforcement. This aid which the States are thus invited to render may be given by enforcing laws antedating the amendment, or by enacting and enforcing laws subsequent thereto and in conformity therewith.
It is pointed out in a number of the opinions which we have cited above that the Volstead act manifests no purpose on the part of the Federal G-overnment to take exclusive possession of the field of operations in the enforcement of this amendment, and, quoting again from the Nickerson case, supra, ‘ ‘ Even if under the Eighteenth Amendment Congress has the clear power to do so, its enactment would not be given that effect except in instances where its design to accomplish that result is plain and the repugnance between the Federal and the State statute is absolute, positive and irreconcilable, so that both can not stand together. Missouri, Kansas & Texas Ry. v. Harris, 234 U. S. 412, 419, 34 Sup. Ct. 790, 58 L. Ed. 1377, L. R. A. 1915 E, 942; Illinois Cent. Rd. v. State Public Utilities Com., 245 U. S. 493, 510, 38 Sup. Ct. 170, 62 L. Ed. 425.”
See, also, Abbate v. United States (Circuit Court of Appeals, 9th Circuit), 270 Fed. 735; United States v. Holt (District Court North Dakota), 270 Fed. 639; Woods v. City of Seattle (District Court, W. D. N. D. Washington), 270 Fed. 315; Ex parte Crookshank (Dis-Court S. D. S. D. California), 269 Fed. 980; Feigenspan, Inc., v. Bodine, 264 Fed. 186; United States v. Peterson, 268 Fed. 864.
In the case of State v. Green. 86 So. 919, the Supreme Court of Louisiana held that the act of that State which denounced as a misdemeanor the retailing of intoxicating liquors without having obtained a license was superseded and in effect repealed by the Eighteenth Amendment and the Volstead act; but the reason given was that such a law, even if enacted subsequent to the adoption of the Eighteenth Amendment, would not be “appropriate legislation,” but would be absolutely vio-lative of the amendment. But that court, in the case of Shreveport v. Marx, 86 So. 602, held that the State statute prohibiting the sale of liquor, although in force when the Eighteenth Amendment and the Volstead act became effective, was not repealed or superseded by such amendment or act of Congress.
The distinction between the two Louisiana cases is of course that one act tended to defeat the purpose of the amendment and the Volstead act in aid thereof by licensing the sale of intoxicating liquors, while the other statute tended to enforce the amendment. The first act was therefore held to be void, and the second held to be valid.
We conclude therefore that act No. 30 (Acts 1915, p. 98; § 6160, C. & M. Digest), under which appellants were convicted, is a valid and subsisting law, and the judgments of conviction are affirmed in each case. | [
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Per Curiam.
This is a motion made by appellees'to dismiss the appeal on the ground that the same was not taken within six months from the rendition of the judgment appealed from, the time prescribed by statute for taking appeals to this court. Crawford & Moses’ Digest, § 2140. The action was instituted in the circuit court of Pulaski County by appellees against appellants to recover possession of a certain tract of land, and there was a trial of the issues before a jury, which resulted in a verdict and a judgment against appellants for the recovery of the land in controversy. The judgment was rendered on January 16, 1920, and appellants immediately filed a motion for a new trial on numerous grounds, among which was an allegation of newly discovered evidence.
That term of the court ended without appellant’s motion for a new trial having been ruled on by the court, nor does the record show that any further order was made by the court in the cause until September 25, 1920, a day of the succeeding term, when appellants filed a motion to set.aside the judgment on account of the delay of the court in acting on the motion for new trial and the failure of the court to rule on that motion during the-former term at which it was rendered. The court thereupon entered the following order:
“On this day the motion in the above cause asking that the judgment therein rendered on the 20th day of January, 1920, be set aside on account of delay in the hearing of the motion for new trial, and the court, being fully advised in the premises, doth find that the hearing of said motion for new trial was delayed on account of an agreement between counsel for plaintiffs and defendants that the trial judge should visit the land in controversy in person before the said motion should be passed upon, and the said delay has been the cause of the statutory time within which defendants have to perfect their appeal in this cause to the Supreme Court.
“It is therefore considered, ordered and adjudged by the court that the said judgment rendered and entered in this cause on the 14th day of January, 1920, be set aside, canceled and held for naught, and the same judgment so entered on said day shall be re-entered as and of the date of September 25, 1920, and the said defendants herein are given five (5) days'within which to file their motion for new trial.”
On the same day (September 25, 1920) the court entered an order overruling the motion for new trial of appellants and granting time within which to present and file a bill of exceptions. The appeal was granted by the clerk of this conrt on March 19, 1921, which was within six months- after the rendition of the last order of the court setting aside and re-entering the judgment of the court, but not within six months of the original rendition of the judgment.
A court with terms fixed by law has no power to vacate a judgment after the lapse of the term at which it was rendered, for the court loses control over its own judgments at the end of the term. Walker v. Jefferson, 5 Ark. 23; Mayor v. Bullock, 6 Ark. 282; Rawdon v. Rapley, 14 Ark. 203; McKnight v. Strong, 25 Ark. 212; Brady v. Hamlett, 33 Ark. 105. After the lapse of the term the court can set aside its judgment rendered at a former term only on the grounds specified in the statute. Crawford & Moses’ Digest, §§ 1316, 6290; Turner v. Vaughan, 33 Ark. 454; Malpas v. Lowenstein, 46 Ark. 552; Johnson v. Campbell, 52 Ark. 316; Ayers v. Anderson-Tully Co., 89 Ark. 160; Terry v. Logue, 97 Ark. 314. The fact that the court has omitted to rule on a motion for new trial, or has made an order extending the time for presenting or considering a motion for a new trial, does not continue the power of the court over its own judgment to the next term so as to authorize the court to vacate the judgment. Joyner v. Hall, 36 Ark. 513; Brady v. Hamlett, supra; Siloam Springs v. McPhitridge, 53 Ark. 21; Stewart v. Wood, 86 Ark. 504; Corning v. Thompson, 113 Ark. 237.
It is not contended that the court set aside the judgment on either of the grounds specified in the statute cited above. The court’s order setting aside the judgment, and appellant’s motion which must be read in connection with it, show that the sole ground for setting aside the judgment was the fact that the court had not acted on the motion for new trial, which was tantamount to an order of the court at a former term postponing the time for considering the motion. The case of Corning v. Thompson, supra, is precisely in point in holding that the postponement to a succeeding term of the considera tion of a motion for new trial does not preserve the power of the court over the judgment. It is clear, therefore, from the record before us that the order of the court attempting to set aside the judgment on September 25, 1920, was void, and that the appeal to this court was not granted within the time prescribed by the statutes. The appeal is therefore dismissed. | [
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Wood, J.
This is an action by the appellee against the appellants to recover the sum of $257.65, the purchase price of certain law books which the appellants purchased of the appellee. By consent of the parties the cause was heard before the trial court sitting as a jury. The judgment of the court recites that the cause was heard “on the following evidence: The contract for the purchase of the books in controversy, the affidavit for issuance of attachment to enforce vendor’s lien thereon, the writ issued thereunder, the return of the officer on the said writ, and the agreed statement of the facts in the case signed by the attorneys representing the respective sides.”
The agreed statement of facts in the transcript is as follows: “It is agreed between J. S. Butt, attorney for plaintiff, and T. W. Bountree, attorney for defendants, that the plaintiff is a foreign corporation.
“It is further agreed that said plaintiff has not complied with the law of the State authorizing foreign corporations to do business in the State.
“It is further agreed that the books upon which the claim sued on is based were contracted for in the State of Arkansas, or rather that the order was taken in the State by a traveling man representing the plaintiff.
“It is agreed that the books were shipped by plain- and the express paid by plaintiff.
“It is further agreed that the contract expressly provided that the title should remain in the plaintiff until they were paid for.
“That said plaintiff has never parted with the title to such books. It is further agreed that all the books claimed by plaintiff to have been shipped have been except volume 22 of Encyclopedia' of Procedure, and defendants offer to return books.”
The court found, as recited in the judgment, as follows: “That the debt herein sued on was for the purchase money due on the two sets of books sold defendants by the plaintiff, towit, Encyclopedia of Evidence, and Standard Encyclopedia of Procedure, and that the said books were at the time of the issuance of the writ in the hands of the purchasers thereof, and were levied on by the officer serving said writ and are at this time in the hands of the officer as shown by his return, and that the plaintiff is entitled to a lien thereon for the amount due, and that there is now due the plaintiff the sum of $264.01.” The court thereupon entered a judgment in favor of the appellee against the appellants in the sum of $264.01, and ordered the books sold and the proceeds thereof credited on the judgment. From that judgment is this appeal.
There is no bill of exceptions brought into this record setting forth the contract, the agreed statement of facts, the affidavit for the vendor’s lien, the writ issued thereunder, and the return of the officer on the same, upon which the cause was heard as recited in the judgment of the court. In the absence of a bill of exceptions setting forth the above facts upon which the cause was heard, every presumption would have to be indulged in favor of the judgment of the trial court, and its judgment would have to be affirmed for that reason if there were no other. But, even if there were a bill of exceptions showing the facts as set forth in the alleged agreed statement, and .setting forth the contract, and the proceedings to impound the property, the judgment would still have to be affirmed. The taking of an order from the appellants by the appellee’s traveling* salesman for certain books which order was transmitted to the appellee and accepted by it and the books shipued to the appellants under a contract by which the title was reserved in the appellee until the purchase money was paid, is not the doing of business in this State in contemplation of act of May 13,1907, page 744, Crawford & Moses’ Digest, § 1826; see also § 1832.
The contract for the sale of these hooks was consummated when the order therefor was accepted by the ap-pellee at its home office in a foreign State and the books delivered there to the transportation company for shipment to the appellants. When this was done, the appellee lost all control over the books except the owner’s rights and remedies in case the appellants failed to pay for the books and thus to comply with the conditions upon which they were purchased. The case differs in all essential particulars on the facts from the ease of Hogan v. Intertype Corp., 136 Ark. 58, and cases there cited upon which the appellants on this point rely. Conceding that the facts were as stated in the agreed statement, the sale and purchase in this case was wholly a transaction of interstate commerce, and not in violation of any of onr statutes forbidding foreign corporations to do business in this State except in compliance therewith.
Upon the failure of appellants to pay the purchase price and thus to comply with the conditions upon which the sale was made, the appellee either had the right to elect to bring replevin under its reservation of title and recover the books sold by it, or it could waive this right and sue to recover the debt and affirm the sale. Butler v. Dodson, 78 Ark. 569: Bowser Furn. Co. v. Johnson, 117 Ark. 496. The appellee has elected in this case to pursue the latter remedy, and, having done so, its choice to pursue this course is not inconsistent with the rights given it as a vendor under chapter 156, Crawford & Moses’ Digest, to impound the property while the same is in the possession of the vendee and to hold the same subject to the order of the court. See sections 8729-30, Crawford & Moses’ Digest, and cases cited under the latter section.
.The judgment is correct, and it is therefore affirmed. | [
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Hart, J.
(after stating the facts). It is first contended that there is no substantial evidence to support the verdict as to the amount of damages sustained by the plaintiff.
The contract provided that, should either party refuse to fulfill it on his part, the other should buy or sell, as the case might be, charging the loss to the defaulting party. Thus the contract itself fixed the method of ascertaining the damages resulting from a breach of it.
The plaintiff is a corporation. Its secretary and treasurer gave his deposition in the case, and testified that the plaintiff purchased wheat with which to manufacture the flour that it had contracted to sell to the defendant; that the same was manufactured into flour and sold to other parties at a loss of $148.50. He gave the names of the firms to which the flour was sold, the amount purchased by each firm, and their places of business.
Prior to bringing this suit, the plaintiff had assigned its claim to another person, and the assignee had brought suit on the claim. The treasurer of the plaintiff gave his deposition to be used on the trial of that case. In it he testified that the plaintiff had purchased wheat with which to fill the order of the defendant at the time it accepted the order, but that the wheat was held in the elevator and sold on December 12,1917. He said that it was never manufactured into flour at all. Subsequently that suit whs dismissed, and the present one instituted.
On his cross-examination in the present case the witness was asked to explain the inconsistency between his testimony as shown by the two depositions. He attempted to explain the inconsistency between them, bnt his explanation is not satisfactory.
It can not be said, however, that his testimony in the present case has no probative force. His credibility was a question for the jury, and they might have believed his testimony in the present case, and disbelieved his testimony in the former case. It is only where the facts proved in .evidence are contrary to some well known law of nature or mathematics and the like that it is demonstrated beyond controversy that the verdict is based upon what is untrue, and what can not he true. In such cases the court will declare as a matter of law that the testimony is not legally sufficient to warrant the verdict. Where the testimony relates to matters, situations and conditions which might or might not have existed, the evidence in regard thereto is of a substantial character, and, if believed by the 'jury, is sufficient to support the verdict. St. L. S. W. Ry. Co. v. Ellenwood, 123 Ark. 428.
Counsel for the defendant offered to prove at the trial that the contract sued on was not signed by the defendant and delivered to the salesman of the plaintiff as a completed contract, but that it was delivered to the agent of the plaintiff upon an agreement between such agent and the defendant that the contract was.not to become binding until and unless specifications of the shipment of the flour were made.
The court excluded this testimony from the jury, and the ruling of the court is now assigned as error calling for a reversal of the judgment.
To support his contention, counsel relies on the cases of American Sales Book Co. v. Whitaker, 100 Ark. 360, and Standard Sewing Machine Co. v. Rainwater, 146 Ark. 81. We do not think that either of those cases has any application to the case at bar. In the first mentioned case, appellee was permitted to prove that there was a parol agreement that he could return the goods in the event they did not prove to be satisfactory after a thirty-days’ trial. It was objected that such testimony would add to or vary the terms of the written contract. The court held, however, that it was competent to show by parol testimony that it- was understood between the parties that the written instrument, although signed, should not be a binding contract until certain precedent conditions should be fulfilled. In other words, the court said that the parol testimony was admissible to.show that the written instrument was not delivered as a concluded contract, but was to be held pending the thirty days’ trial of the goods to ascertain if they were satisfactory. In the latter case the parol testimony was admitted to show that the sale was not unconditional, but that there was a writing attached to the signed contract,, making it a conditional contract. Under the terms of the condition referred to, the seller agreed to put on a sewing machine sale for the buyer and help the buyer until all the machines were sold satisfactory to him. It was further agreed to remove all machines unsold after sixty days.
It will be observed that in neither of these cases did the parol testimony tend to contradict or vary the terms of the written agreement. It only tended to show that the sale was not an unconditional one, but was made upon the conditions shown by the parol evidence.
In the present case the record shows an essentially different state of .facts. The contract was partly written and partly printed. One of the written terms was the following: ‘ ‘ Specifications one week before date of shipment. ’ ’ The parties wrote this into the contract, and the evident purpose was to provide that the specifications should be a part of the contract, and that they should be given to the plaintiff one week before the plaintiff was required to ship the goods. To allow the defendant to prove by parol evidence that the contract was not to become binding “until and unless specifications of the shipment of flour were made.” would be to contradict or vary the terms of the written contract. The written contract having provided that specifications should be made, it is evident that this provision of the- contract would be varied'by allowing the defendant to prove that the contract was not to become a binding one unless tbe specifications were made by it. Therefore, the offered testimony came within the well-known rule that parol evidence should not be admitted to contradict or vary a written contract and the court properly refused to allow it to go before the jury.
It is also insisted that the court erred in not granting a new trial on account of newly discovered evidence. The secretary of the plaintiff company testified at the trial that the flour intended for the defendant was sold at 'a loss on certain days to certain other firms by its traveling salesman. The newly discovered testimony was to the effect that this traveling salesman would testify that the flour sold to the firms mentioned above was sold by him to them in .the usual course of business, and that it was not the flour intended for shipment to the defendant.
The deposition of the secretary of the plaintiff was taken on the 14th day of June, 1920, and the trial of the case was had on the 16th day of August, 1920. The defendant’s place of business was at England, Arkansas, and the trial was had at Lonoke, Arkansas. Each place was only about twenty miles from Little Rock, where the traveling salesman referred to resided. He was well known to the manager of the defendant. The defendant was put on notice as to the plaintiff’s claim in the matter when the deposition of its secretary was taken on the 14th day of June, 1920. Therefore, it had two months within which to ascertain the truth about the matter. This it could easily have done by talking with, or writing to the traveling salesman of the plaintiff at Little Rock. Not having done so, the defendant can not be said to have exercised due diligence in the matter. It is not even shown, by this evidence was not discovered before the trial. . - • ! -'-i • -1
Therefore, the trial court did not abuse its discretion in refusing the defendant a new trial on this account. Hughes v. Sebastian County Bank, 129 Ark. 218; Webb v. Kansas City Southern Ry. Co., 137 Ark. 107; Williams v. Williams, 112 Ark. 507; Dickie v. Henderson, 95 Ark. 78.
We find no reversible error in tbe record, and the judgment will be affirmed. | [
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Smith, J.
This appeal is docketed and briefed here under the style of Blumensteil et al. v. State, for the reason that it bore that style in the court below, where Blumensteil, Wolf, Davis and Zoll were jointly tried and all convicted; but only Whdf-and Davis have appealed.
The indictment charges the maintenance of a common nuisance “in a certain building on Central Avenue in the city of Hot Springs, Arkansas, known as the Blum-ensteil & Wolf Cigar Store, for the purpose of permitting and encouraging divers idle and ill-disposed persons to resort thereto for the purpose of betting on various horse races run outside of the State of Arkansas, and at divers times permit and encourage various idle and ill-disposed persons' to resort thereto and bet money on horse races run outside of the State of Arkansas, and did thereby promote and encourage immorality, idleness and lawlessness, to the great injury and damage to the public morals and a common nuisance to the county of G-arland, against the peace and dignity of the State of Arkansas.”
The defendants were jointly tried, and at the trial Blumensteil and Wolf were called by the State as witnesses, and over the objection of the defendants were required to testify. In overruling this objection the court stated that he would instruct the jury that the testimony of Blumensteil could not be considered against him, and the testimony of Wolf could not be considered against him, and the jury was so instructed.
Over the objection of the defendants, witnesses were permitted to testify to bets on races placed with a man in charge of the rear end or back room of the cigar store, where such bets were accepted. But in admitting the testimony the court stated that a conviction could not be had on what occurred more than a year prior to the finding of the indictment, but that such testimony was admissible on the question of the connection of the parties with the subsequent occurrences in the building. We think the testimony as thus limited was competent for the purpose for which it was admitted.
There was testimony that within a year of the indictment bets were received, and that on one occasion the city commissioner, with the police, raided the place and found a large crowd of people there, who ran in every direction out of the front and the rear of the building, and when the crowd had dispersed, tickets were found scattered about the place which were used in betting on the horses, and posted on the wall of the room was a card showing the odds which were being offered on the different horses.
The police judge was permitted to testify about the conviction of a man named Powers, which had been secured in his court by the authorities, for betting on horse races, and in giving this testimony he was allowed to state that “the evidence tended to show that he (Powers) was seen around there on several occasions, and was making a book up there. ” It is argued, however, that a, proper exception was not saved to this testimony.
Appellants requested the court to give an instruction numbered 5. reading’ as follows-:
“If you'find the defendants guilty, you will assess their punishment at a fine of not exceeding one hundred dollars or imprisonment not exceeding three months, or by both such fine and imprisonment.”
This instruction was refused, and the jury was instructed that “the punishment provided by law for the offense charged is a fine not exceeding one hundred dollars and imprisonment not exceeding three months — that means anything up to one hundred dollars, and imprisonment for any time not exceeding three months.”
This instruction numbered 5 was asked by appellants after the court had refused to declare that sections 1432 and 1433, Crawford & Moses’ Digest, did not apply to the case made.
No attempt was made to show that any particular frequenter of the place was an idle or an ill-disposed person. On the contrary, appellants offered affirmative testimony that certain persons who were shown to have been in the room when bets were being received were not idle or ill-disposed persons; but this testimony was excluded by the court for the reason that the allegation of the indictment in that respect was an immaterial one; and an exception was saved to that ruling.
The verdict of the jury fixed the punishment of Wolf and Davis at a fine of one hundred dollars and imprisonment in the county jail for sixty days each; and from the judgment in accordance therewith is this appeal.
It is first insisted for the reversal of the judgment of conviction that sections 1432 and 1433, Crawford & Moses’ Digest, do not apply. The insistence is that if appellants are guilty at all they should have been punished pursuant to section 2669, Crawford & Moses ’ Digest, or under section 2632, Crawford & Moses’ Digest. Section 2669 makes it a misdemeanor to bet money or anything of value on any horse race, whether run in or out of this State. Section 2632 makes it a felony to operate a gambling house. It may be that appellants might have been convicted under either of these statutes; but that fact is -unimportant here, if they were also guilty under sections 1432 and 1433.
By section 1432 it is enacted that' “The common law of England, so far as the same is applicable and of a general nature, and all statutes of the British Parliament in aid of or to supply the defect of the common law, made prior to the fourth year of James the First (that are applicable to our form of government), of a general nature and not local to that Kingdom, and not inconsistent with the Constitution and laws of the United States, or the Constitution and laws of this State, shall be the rule of decision in this State unless altered or repealed by the G-eneral Assembly of this State.”
Section 1433 is as follows: “In cases of crimes and misdemeanors committed in this State, the punishment of which has not been provided for by statute, the court having jurisdiction thereof shall proceed to punish the offender under the provisions of the common or statute law of England put in force in this State by this act; but the punishment in such eases shall only be fine and imprisonment, and in such cases the finé shall not exceed one hundred dollars and the imprisonment shall not exceed three months.”
In the case of State v. Vaughan, 81 Ark. 117, which was a proceeding to enjoin the operation of a pool room, suc.h as appellants herein are shown to have been connected with, the court said: “The common law is put in force in this State, and the punishment for common-law offenses not covered by statute is fixed as a fine not exceeding $100 and imprisonment not to exceed three months. Kirby’s Digest, sections 623 and 624.
“These statutes have been held applicable to a gaming house as a common-law misdemeanor. Vanderworker v. State, 13 Ark. 700; Norton v. State, 15 Ark. 71; Thatcher v. State, 48 Ark. 60; 1 Bishop, Crim. Law, section 1137. Each period in which a nuisance continues is a separate offense. Wharton, Crim. Law, section 1419. ’ ’ Sections 623 and 624 of Kirby’s Digest are carried into Crawford & Moses’ Digest as sections 1432 and 1433.
The court .denied the relief prayed in that case on the ground that the operation of a pool room, was a misdemeanor, and persons charged with its commission are entitled to a jury trial, and this right can not be taken away under the guise of an injunction against a nuisance.
The appellants here have had the jury trial which the court in the Vaughan case said persons were entitled to have who were charged with operating a pool room.
We think the court was in error, however, in holding that one convicted under sections 1432 and 1433, Crawford & Moses’ Digest, must be punished by both fine and imprisonment, and the court should have given the instruction numbered 5 set out above. The language of the statute is: ‘ ‘ But the punishment in such cases shall only be fine and imprisonment, and in such cases the fine shall not exceed one hundred dollars and the imprisonment shall not exceed three months.”
In interpreting this statute the purpose of the Legislature must be kept in mind. The Legislature was enacting into our jurisprudence the common law of England so far as the same was applicable and of a general nature, and in fixing the punishment for crimes and misdemeanors where no punishment had been provided by statute, the Legislature' sought to exclude certain punishments which prevailed at the common law. The phrase, “but the punishment in such cases shall only be fine and’imprisonment,” furnishes the key to the interpretation of section 1433.
There were other punishments for misdemeanors at the common law besides fine and imprisonment., There was the pillory in some cases, and whipping in others. 1 Stephen’s History of the Criminal Law of England, page 457; 1 Russell on Crimes (7 Eng. ed.), p. 249.
The Legislature intended to prohibit the imposition of such punishments as pillory and whipping’, and authorized the imposition of only fines and jail sentences, one or the other or both, and did not intend to «require the imposition of both a- fine and a jail sentence; -
The question has never heretofore been expressly decided by this court, hut the interpretation we have now given section 1433, Crawford & Moses’ Digest, comports with the interpretation heretofore generally accepted.
In Vanderworker v. State, 13 Ark. 700, the appellant was convicted of keeping a common gaming house, which constituted a nuisance at common law. He was tried under what is now section 1433, Crawford & Moses’ Digest, and only a fine was assessed against him. This judgment was affirmed without comment by this court.
In the case of Martin v. State, 32 Ark. 124, it was pointed out that the statutes had provided a punishment for voluntary escapes of prisoners, hut no punishment had been prescribed for negligent escapes. It was held that escapes of the latter class were punishable as common-law offenses. The punishment in that case was a fine of ten dollars; and while the judgment was reversed on another ground, no question appears to have been made that the punishment did not conform to the law.
So in the case of West v. State, 71 Ark. 144, the court affirmed without comment a conviction for maintaining a common-law nuisance where a fine of one dollar had been imposed, with the alternative that if the fine was not paid the defendant should be imprisoned until it was paid.
We think the court erred in requiring Blumensteil and Wolf to give testimony in the case. It is true the court did admonish the jury that the testimony of Blumensteil could not be considered against him, and that the testimony of Wolf could not be considered against him, and it is insisted that, this admonition having been given, the testimony of each became admissible against the other. It is argued that such is the effect of section 3122, C. & M. Digest, which reads as follows:
“Section 3122. In all eases where two or more persons are jointly or otherwise concerned in the commission of any crime or misdemeanor, either of such persons may be sworn as a witness in relation to such crime or misdemeanor; but the testimony given by such witness shall in no instance be used against him in any criminal prosecution for the same offense.”
We do not interpret this statute as the court below did. We think it does not apply where persons are being jointly tried for the commission of the same offense. It applies when one concerned in the commission of a crime or misdemeanor, who is not himself on trial, is sworn as a witness in relation to such crime or misdemeanor upon the trial of another person. In that case he is required to testify and is given immunity against a subsequent use oh that testimony against himself. But to require one to testify when he was himself on trial would, in a measure, render nugatory the provision of section 8 of article 2 of the Constitution providing that no person shall be compelled in any criminal case to be a witness against himself, even though the jury were admonished not to consider the testimony against the witness who gave it. Under the Constitution one on trial charged with the commission of a crime or misdemeanor has the right to refuse to be sworn as a witness.
We think it unnecessary to decide whether proper exceptions were saved to the testimony of the judge of the police court. But, inasmuch as the cause is to be rer manded for a new trial, we take occasion to say that the police judge had no right to repeat the testimony heard by him at the trial of Powers. Such testimony was hearsay. It was competent, however, to show that persons had been convicted for operating a pool room in this cigar store. Such testimony tends to charge the owners of the business, who were residents of the city and were in and about the building with more or less frequency, with knowledge of the use which was being made of their place of business.
The court below properly treated as surplusage the allegation of the indictment that the frequenters of the place were idle and ill-disposed persons.
The court told the jury that if the defendants kept “a place for people to resort to to place bets on horse races, and persons who desired to place bets on horse races resorted to such, place from day to day or from time to time, and made bets on horse races at such place, and such place was regularly kept for such business, and such business was regularly carried on there, then such a place would constitute a common nuisance within the meaning of the law.”
No other inquiry into the character of the persons who patronized the place in question is required than that stated in the instruction, towit: That persons assembled there from day to day and from time to time to bet on horse races.
Other assignments of error are discussed; but we think no other errors were committed, and the other points raised do not, in our opinion, require discussion.
For the error indicated the judgment is reversed and the cause remanded for a new trial. | [
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Wood, J.
This action was brought by the appellant against the appellee on January 29, 1919, to recover the sum of $1,500. The appellant alleged in substance that on April 8, 1909, he was induced by the appellee, who was the president and a large stockholder of A. J. Nei-meyer Lumber Company, a corporation,, to purchase a block of its stock, for which he paid the sum of $1,500; that said purchase was made upon the understanding with the appellee that he would repurchase the stock at any time appellant desired him to do so, and in the meantime would pay appellant six per cent, interest per annum on the amount he had invested; that thereafter on several occasions at intervals of less than three years, and continuing up to uñthin two years of the bringing of this action, the appellee verbally and personally aclmowl-edged, ratified and affirmed said agreement to repurchase; that on the 28th of February, 1918, the appellant demanded of the appellee that he repurchase the stock in fulfillment of his agreement, which appellee refused to do, to the appellant’s damage in the sum of $2,500.
The appellee demurred to the complaint on the ground that it showed upon its face that it was barred by the statute of limitations. The demurrer was sustained. The appellant stood upon his complaint, and the court rendered a judgment dismissing the same, from which is this appeal.
This is the second appeal of this cause. McCollum v. Neimeyer, 142 Ark. 471. On the first appeal the complaint was substantially the same as that above set forth, except that it did not contain the following clause: ‘ ‘ That thereafter, on several occasions, at intervals of less than three years, and continuing up to within two years of the bringing of this action, the defendant (appellee) verbally and personally acknowledged, ratified and affirmed said agreement to repurchase. On the former appeal before the above clause was added to the complaint we held that the the complaint stated a cause of action, saying: “This is a suit at law, and the statute of limitations could not be raised by demurrer, unless it affirmatively appeared in the complaint that no facts existed which exempted the action from the operation of the statute.” On remand of the cause the appellee moved to require the appellant to make the complaint more specific. This motion was sustained, ánd the clause above quoted was added over the objection of appellant.
The question for decision on this appeal is whether or not the complaint as it now stands, containing the above clause, states a cause of action. In other words, do the allegations of the complaint now show affirmatively that the cause of action stated therein is barred by the statute of limitations ? In actions at law on contracts of the character set forth in appellant’s complaint, the statute of limitations is purely a matter of defense which even the defendant is not bound to plead. Therefore, the appellant was not bound to set forth in his complaint the existence of facts which would show that he was barred from maintaining the action by the statute of limitations. The court erred in granting the motion of the appellee requiring the appellant to make his complaint more specific in an effort to have appellant set forth therein matters which would show affirmatively that the appellant was barred by the statute of limitations, and which would enable the appellee to avail himself of the statute by a demurrer.
The original complaint was sufficiently definite and certain, and, as we held on the former appeal, stated a cause of action. The appellant, however, is not in an attitude to complain of this ruling of the court because he did not stand on his complaint, but undertook to comply with the order of the court requiring him to make the same more specific by adding to his original complaint the clause above quoted. Therefore, the question recurs as to whether such clause states affirmatively the existence of facts which show that the appellant is barred by the statute of limitations. Section 6965 of Crawford & Moses’ Digest, provides: “No verbal promise or acknowledgment shall .be deemed sufficient evidence in an action founded on contract whereby to take any case out of the operation of .this act, or to deprive the party of the benefits thereof.”
In Burnett v. Turner, 105 Ark. 293, construing this statute, we said: “It is equally well settled by the authorities that an'oral waiver of the statute of limitations, or promise not to plead it, does not fall within the statute above quoted, and need not be in writing. The suspension of the statute by reason of a promise not to plead it is based on the doctrine of estoppel, and, in order for it to be effective, the promise must be an express one not to plead the statute, or the language of the promise must be such as clearly evinces an intention not to do so upon which the creditor has a right to rely. Otherwise it could not be said that he was estopped by the conduct of his debtor, and the rule does not apply.”
The clause in the complaint under review states that, “up to within two years of the bringing of this action, the defendant, A. J. Neimeyer, verbally and personally acknowledged, ratified and affirmed said agreement to repurchase.” This language does not show that the ap-pellee expressly or impliedly promised not to plead the statute of limitations; nor can it be said that the language quoted evinces an intention on the part of the ap-pellee not to plead the statute of limitations. The clause quoted does not set forth what words were spoken or the circumstances under which the agreement to repurchase was acknowledged, ratified and affirmed. Therefore, whether the appellee expressly or impliedly promised not to plead'the statute of limitations, or whether, by any language he used in “acknowledging, ratifying and affirming the agreement to repurchase,” he evinced an intention not to plead the statute, is not affirmatively shown by any of the allegations in the complaint. In this respect, the complaint is precisely the same as it was on the former appeal. In other words, the complaint still does not show affirmatively the existence of facts which would bar the appellee from maintaining the action. The fact that appellee “verbally and personally acknowledged, ratified and affirmed” said agreement to repurchase does not show that he expressly promised that he would not plead the statute of limitations, or that he in any manner by his conduct led appellant to believe that he would not set up the statute in bar of the action.
The clause in the complaint under consideration does not negative the existence of grounds of avoidance of the operation of the statute of limitations. If these grounds really exist, they are matters to be developed by the testimony on the issue as to whether the action is barred by the statute of limitations when that issue is properly pleaded, which has not yet been done. The court erred in sustaining the demurrer and in dismissing appellant’s complaint. The judgment is, therefore, reversed and the cause is remanded with directions to overrule the demurrer. | [
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Smith, J.
Appellant was convicted of murder in the second degree for killing Bliss Chatman. He admits the testimony is legally sufficient to support the verdict, but insists that error was committed in excluding testimony, and in giving and in refusing instructions.
According to appellant, he and deceased were good friends prior to the time of the hilling, and spent much of their time together. Appellant testified that some money and a razor and some other personal effects were stolen from a dresser in his room, and he had reason to suspect the deceased had taken them. He further testified that Chatman had made an insulting proposition to his wife; but that fact had not been communicated to him by her at the time of the killing. He went to see Chatman about the lost articles, and upon meeting him inquired, “Bliss, what do you mean- — ” but the question was not completed, as deceased immediately assaulted him. It is the theory of the defense that Chatman supposed appellant was inquiring about the insult to his wife, and, believing he was about to be assaulted — if not killed — he made such a vigorous assault on appellant as that appellant was compelled to shoot in his necessary self-defense, when, in fact, appellant had no purpose of provoking a difficulty, and intended by his question only to inquire about the lost articles.
The testimony on the part of the State is to the effect that appellant armed himself and went in search of Chat-man, and assaulted him as soon as he found him, and killed him by shooting him.
The men met on a stairway, and a witness, Foster, was asked about a freshly-scraped place on the third step from the bottom. Foster was asked what the appearance of the place indicated, and the court sustained an objection to that question, and in doing so said: “Let the witness state what he saw.” The court was correct in this ruling. The witness did not see the parties at the time of the difficulty, and had no personal knowledge of their relative positions on the stairway, and his testimony was properly confined to a statement of what he saw. The inferences deducible from the appearance of the scraped place on the step were for the jury — -and not for the witness — to make.
Over appellant’s objection the court gave the following instruction: “You are further instructed that, if you find from the evidence in this case that the defendant, Lee George, was the aggressor in the difficulty, or that he mutually engaged in the difficulty, he can not plead self-defense in justification of his act in shooting and killing the deceased, Bliss Chatman. ’ ’ This was an oral instruction. In addition, there were written instructions numbered 1 and 2, which dealt with the same phase of the case. These instructions told the jury also that, if appellant was the aggressor, he would have had no right to kill the deceased; hut the written instructions contained this qualification: “Unless he in good faith withdrew from the conflict as far as he could, and did all in his power consistent with his safety to avoid the danger and avert the necessity of killing the deceased. ’ ’ The court would, no doubt, have qualified the oral instruction to conform to the written instructions, had that point been made.
But the absence of this qualification from the oral instruction does not appear to have been the ground of the objection to it. The objection is that the instructions on that phase of the case were abstract, in that there was no testimony that appellant was the aggressor. Counsel is mistaken in this contention. According to appellant’s own testimony, he was hemmed in by deceased on the stairway and viciously assaulted; but the jury did not accept that version of the difficulty as the truth. As has been said, the testimony fully warranted a finding that appellant was the aggressor throughout.
Over appellant’s objection the court gave an instruction numbered 3, which reads as follows: “No. 3. You are instructed that the law has such regard for the sanctity of human life that one person may not kill another, even in his necessary self-defense, except as a last resort, and when he has done all in his power consistent with his safety to avoid the danger and avert the necessity of the killing; so, in this case, if you find from the evidence and circumstances, beyond a reasonable doubt, that the defendant could have reasonably avoided the danger to himself and averted the necessity of killing the deceased, it was his duty to have done so.”
The objection to this instruction is that it leaves out of account the appearance .of danger as appellant saw it. The instruction is a correct declaration of the phase of the case with which it dealt, and another instruction dealt with the appearance of danger as the appellant saw it and correctly declared the law in that respect.
No instruction could declare the whole law in the ease, and appellant was not prejudiced by the action of the court in dealing with different phases of the case in separate instructions, inasmuch as each instruction correctly declared the law applicable to the phase of the case with which it dealt.
Appellant asked a number of instructions which were refused. But these instructions, in so far as they correctly declared the law applicable to the issues raised, were covered by other instructions which were given.
No error appearing, the judgment is affirmed. | [
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Hart, J.
(after stating the facts). The undisputed evidence shows that the signature of appellee to the check in question was forged.
Section 7789 of Crawford & Moses’ Digest relative to the effect .of a forged signature is as follows:
“When a signature is forged or made without the authority of the person whose signature it purports to be, it is wholly inoperative, and no right to retain the instrument, or to give a discharge therefor, or to enforce payment thereof against any party thereto, can be acquired through or under such signature, unless the party, against whom it is sought to enforce such a right, is precluded from setting up the forgery or want of authority. ’ ’
Under this section payment upon a forged check by a bank upon whom it is drawn is made at the bank’s peril, and it is not justified in charging it against the depositor’s account unless the latter is precluded from setting up the forgery or want of authority. This brings us to a consideration of what facts or circumstances will preclude the person, whose signature has been forged, from' setting up the forgery.
In Leather Manufacturers’ Bank v. Morgan, 117 U. S. 96, it was held that a depositor is bound personally or. by his agent, and with due diligence, to examine the passbook and vouchers, and to report to the bank, without unreasonable delay, any errors which may be discovered in them; and if he fails to do so, and if the bank is thereby misled to its prejudice, he can not afterward dispute the correctness of the balance shown it in the passbook.
In Citizens Bank & Trust Co. v. Hinkle, 126 Ark. 266, the court held that it is the duty of a depositor to examine his returned checks and to make complaint to the bank if they furnish notice that improper charges have been made against his account.
In Weinstein v. National Bank of Jefferson, 69 Tex. 38, the court held that a bank is not liable to a depositor, when money has been paid out by it on forged checks, if the depositor, after receiving a statement of his account by which he is enabled to ascertain the forgery, neglects to inform the bank thereof in reasonable time, and thereby loses the opportunity of recovering the money, which it could have secured if promptly informed.
In Janin v. London & San Francisco Bank (Cal.), 14 L. R. A. 320, it was held that a depositor owes to the bank the duty of examining his checks within a reasonable time after they are returned to him in order to discover and give notice of any forgery. See, also, Dana & Dana v. National Bank of the Republic, 132 Mass. 156; Shipman v. Bank of the State of New York (N. Y.), 12 L. R. A. 791; Hardy v. Chesapeake Bank (Md.), 34 Am. St. Repts. 325; Morse on Banks and Banking (5 ed.), vol. 2, §§ 472-473; First National Bank of Birmingham v. Allen (Ala.), 27 L. R. A. 426, and Robinson v. Security Bank & Trust Co., 141 Ark. 414. These authorities hold that the depositor must not only use due diligence in giving the bank notice or knowledge of the forgery, but must also exercise due diligence in discovering it. The depositor can not require the bank to correct a mistake to its injury from which it might have protected itself, but for the negligence of the depositor. So it is held that where the latter fails to complain within a reasonable time after the checks have been returned to him the banker would have the right to consider that there was no objection to the checks, and that by the depositor’s failure to speak in proper time he virtually admits the correctness of the items charged.
In the case of State v. Abramson, 57 Ark. 142, this court recognized that under the rules of commercial law it is the duty of a payer of commercial paper to give notice to the payee of the forgery within a reasonable time after its discovery, or to lose his right of recovery against the payee as a penalty for the failure to do so.
In the application of this principle the court held that where forged county warrants are paid in discharge of a debt to the county, laches will not be attributed to the county in failing to apprise the payer of the.forgery until such time as the county court has had opportunity to examine and pass upon the genuineness of the-warrants.
In discussing the question of notice in that case the court said that what is a reasonable time depends upon the reason for requiring the notice, and that what is a sufficient notice must depend in a great measure upon the effect produced by the lapse of time upon the remedies of the payee.
The court further said that the notice should be given in a time reasonably sufficient to enable the payee to effectually use his remedies for reimbursement, if it can be done.
In the course of dealing between appellant and ap-pellee, appellant, after it had cashed the check in question along with other checks, returned them to appellee, and appellee held them for seven days without making any complaint that the check in question had been forged and then permitted appellant to charge the checks along with the forged one to its account. As we have already seen, it became its duty to examine the checks when returned to it and exercise reasonable care to see whether any of them liad been forged and, if so, to notify the bank of that fact.
Under the. circumstances, wo think the court erred in directing a verdict for appellee, and that it should have submitted to the jury the question of whether or not ap-pellee had exercised ordinary care in examining the checks and discovering the forgery and reporting it to the bank.
But it is insisted by counsel for appellee that the court did not err in directing a verdict in its favor because no injury was shown to have resulted to the bank on account of the delay in reporting the forgery to it. They insist that there is no evidence in the record tending to show that any pecuniary benefit would have accrued to appellant if reasonable notice of the forgery had been given it by appellee. Hence they claim there was no testimony in the record to justify the submission of any question of fact to the jury in this case.
While the authorities are divided on this question, we think the better view is stated in the case of Leather Manufacturers’ Bank v. Morgan, 117 U. S. 96, where it was held that if the depositor was guilty of negligence in not discovering and giving- notice of the forgery, the bank might thereby be prejudiced because it was prevented from taking steps by the arrest of the criminal or by attachment of his property or any other form of proceedings to compel restitution. The arrest of the forger may afford means for the restoration of the money, or it may disclose ways by which the injured party may recover the money paid out, and we think it is .for the jury to say whether the injured party has been deprived of or delayed in the exercise of any rights, the practical effect of which would be to enable him to protect himself.
Therefore, we are of the opinion that the court erred in directing a verdict for appellee, and for that error the judgment will be reversed and the cause remanded for a new trial. | [
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Hart, J.
(after stating the facts). In Heiseman v. Lowenstein, 113 Ark. 404, the court held that a mere power given to a trustee, under a will, to sell and con vey the trust property, does not include the power to mortgage it. The court, however, in that case adhered to the cardinal principle that, in construing a power, the intention of the donor is of paramount importance and recognized that the power to sell in connection with other language used may include the power to mortgage. All the provisions of the will should be construed together in order to give effect to the manifest intention of the testator, as shown by the language of the will in the light of the surrounding circumstances.
Applying this test to the will in the present case, we are of the opinion that the intent of the testator was to give his son, as trustee under the will, power to mortgage the property as well as to sell and convey it. The terms of the will show that the testator reposed great confidence in his son. It gave him power to sell the real estate if it should prove unprofitable and invest the proceeds in other property. Then he uses this language: “I give and bequeath to said John P. Fergusson, as trustee, full power and authority to sell, and dispose of any and all of the property bequeathed to him, and to manage, handle, and deal with the same as in his discretion may seem best. He is to hold the same for the use and benefit of his children, John Wright Fergusson and James McFerrin Fergusson, and all other children which may hereafter be born to him.”
The power to manage and deal with the land for the benefit of the sons of the trustee and the grandsons of the testator was the primary object of the creation of the trust and the paramount duty of the trustee. The father confided the full management and control of the property to his son for the benefit of his grandchildren, and left him to use his best judgment and discretion in the matter. Under the power conferred by the will, if he. thought it would be to the advantage of the children for him to sell and dispose of the land, he had the power to do so. In connection with the power to sell and dispose of any or all of the property, he was given the power to manage, handle, and deal with the same as in his discretion may seem best. This included tbe power to improve and operate tbe farm and necessarily called for tbe exercise of discretion in the premises. In tbe exercise of this discretion appellee deemed it to tbe advantage of tbe beneficiaries that be procure tbe necessary funds to operate tbe farm by mortgaging tbe land. Tbe language used shows that tbe testator intended to invest tbe trustee with broad and discretionary powers in tbe control and management of tbe property in order to make tbe land productive and profitable to the objects of bis bounty. Otherwise, tbe trustee might be compelled to sell tbe land for tbe payment of tbe debts already incurred, even though this course would be ruinous to tbe best interests of all parties concerned, and even though it might be greatly to tbe advantage of tbe beneficiaries for tbe trustee to retain tbe management of tbe farm and incur further indebtedness in making tbe present crop. These views are supported by tbe following cases: Hamilton v. Hamilton (Iowa), 128 N. W. 380; Kent v. Morrison (Mass.), 10 L. R. A. 756; Faulk v. Dashiell, 62 Tex. 642, 50 Am. Repts. 542; Lardner v. Williams, 98 Wis. 514; re Phillip Lueft, Jr. (Wis.), 7 L. R. A. (N. S.) 263; Roberts v. Hale, 124 Iowa 296; Funkhouser v. Porter (Ky.), 107 S. W. 202; Loebenthal v. Raleigh, 36 N. J. Equity 169, and Hamilton v. Mound City Mutual Life Ins. Co., 3 Tenn. Chy. Repts. 124.
It follows that the decree must be affirmed. | [
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McCulloch, C. J.
Appellant was indicted for killing her husband, Wheeler Cochrell, and on the trial of the case was convicted of murder in the second degree.
Appellant and her husband were living in a rooming house in Pine Bluff owned by appellant, and early in the morning of July 6,1920, other persons living in the house heard pistol shots in the room occupied by appellant and her husband. There were three shots fired, according to the testimony introduced. One of the witnesses occupying a room across the hall testified that immediately after she heard the shots appellant came out into the hall and exclaimed that she had “hurt her boy.” Other persons, hearing the noise, ran into the room and found Wheeler Cochrell lying on the floor groaning. A police officer, who had been telephoned for, soon came while Cochrell was still lying on the floor, and Cochrell stated in the presence of appellant that “she,” pointing to appellant, “shot me full of holes for nothing.” Appellant made no reply, though asked by the officer if she had anything to say. They laid Cochrell on the bed, and he expired in a few minutes thereafter. The witnesses found two pistols lying on the bed — one a 38-calibre and the other a 32-calibre. The larger pistol was full loaded and the smaller one had two unexploded cartridges in it, two exploded cartridges and one chamber was empty. Four bullet holes were found in Cockrell’s body. A physician who examined the body after Cochrell’s death gave his opinion that the wounds were inflicted with a 32-calibre pistol. Appellant testified in the case and admitted that she shot her husband two or three times, but claimed that she fired the shots in self-defense. She testified that her husband had been mistreating her for a considerable length of time, that he had endeavored to force her to make a will in his favor and to take out life insurance payable to him, and threatened to kill her if she continued to refuse to do so. She stated that on the morning of the killing he renewed his efforts to induce or force her to execute the will and take out insurance and again threatened to kill her and came into the room where she was and with a drawn pistol declared he would kill her, when she fired the shots. Appellant was permitted to relate all of the details of her troubles with her husband and his cruel treatment and threats from the beginning.
The first assignment of error urged here for reversal of the judgment relates to the court’s refusal to permit a Mrs. McFall to testify concerning an alleged difficulty or quarrel between appellant and her husband. The record shows that appellant’s counsel asked the witness to state whether or not she had, on “an occasion some time prior to the killing,” witnessed a difficulty “at night or in the morning” between appellant and her husband. The prosecuting attorney objected to the question, and the court stated to counsel that the testimony would be admitted if it could be connected with the killing or shown that it led up to the killing. The witness then stated that she could relate such an occurrence which took place “several months before the killing,” and the court excluded the statement. This circumstance was too remote from the killing to be admissible as throwing any light on the tragedy, and the ruling of the court in excluding it was correct.
The next assignment of error relates to the action of the court in propounding a question to appellant on cross-examination concerning her alleged disposition of her husband’s belt and trousers which he wore when shot. No exceptions were made to the ruling, and this assignment can not be considered. These are all of the assignments urged for reversal.
The evidence is sufficient to sustain the verdict, and we find no error in the proceedings. Affirmed. | [
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McCulloch, C. J.
Appellee, Helena Improvement District, is an improvement district created by a special statute enacted by the General Assembly.of the year 1897 for the purpose of constructing a levee to protect property in and near the city of Helena. Later, other statutes were passed enlarging the powers of the district, but those statutes have no bearing on the present controversy, which is an action instituted by appellee against appellant to condemn a right-of-way across certain lots owned by appellee in the city-of Helena for the purpose of “enlarging and strengthening the levee now surrounding said Helena Improvement District.” The action was instituted in March, 1914, and after service of process on appellant the circuit judge made an order, on the application of appellee, fixing the amount of $500 to be deposited by appellee pending the final hearing of the cause. The amount so fixed by the circuit judge was deposited in accordance with the order, and appellee proceeded to appropriate the lands sought to be condemned.
Appellant filed an answer, alleging’ that it was the owner of the lots mentioned in the complaint, that the appropriation thereof by appellee for the purpose of enlarging and strengthening the levee would totally de stroy tlie value of the whole of the lots, and that appellant would, by reason of said appropriation, suffer damages in the sum of $10,000, for the recovery of which the answer contained a prayer.
At the October term, 1915, of the court, appellee filed an amendment to its complaint, alleging that appellant acquired title to said lots from G. W. Willey and I). H. Crebs, who obtained title under a deed to them from the Arkansas Cotton Oil Company, dated November 30, 1898, executed "subject to the right of public authorities to construct and maintain a levee over said lots as then constructed, located and occupied.” Appellant answered the complaint as amended,«denying that it acquired its title from Willey and Crebs or that under the terms of said deed appellant had acquired any rights to the use of the property.
The cause came on for hearing at the October term, 1920, of the Phillips Circuit Court, and, while the jury was being impaneled, counsel for appellee moved the court that the action "be dismissed on the pleadings and the deed exhibited with the complaint,” referring to the deed from the Arkansas Cotton Oil Company to G. W. Willey and D. H. Crebs. Appellee was then permitted to introduce the deed in evidence, and the court, over the objections of appellant, rendered judgment dismissing the action.
It was expressly agreed by counsel for appellee during the proceedings that appellee had already taken possession of the property in controversy and constructed a levee thereon, after the institution of this action. Appellant filed its motion for a new trial, which was overruled, and prosecuted its appeal to this court. There is a bill of exceptions in the record reciting the proceedings before the trial court.
Condemnation proceedings by levee districts are regulated by a statute-enacted by the General Assembly of the year 1905, now found in Crawford & Moses’ Digest, § 3933 et seq. We held in the case of Young v. Red Fork Levee Dist., 124 Ark. 61, that this statute was general in its operation, and that it governed condemnation in all drainage and levee districts in the State, whether created under general statutes or by special statutes. Appellee does not seem to have proceeded strictly in accordance with this statute, but the proceedings are substantially in conformity therewith, except that there is no provision in the statute referred to for a preliminary deposit of an amount of damages estimated by the circuit judge. The statute in question provides, in substance, that there shall first be an appraisement by the appraisers appointed by the circuit judge, which said appraisement becomes final unless excepted to within the time prescribed by the statute. In this case there was no appraisement of the damages by a board of appraisers, but appellant was served with process and appeared and filed its answer, asking for the recovery of damages by reason of the appropriation of its property.
The statute provides that, “in case exceptions are filed by either party within the time herein prescribed, it shall be the duty of the clerk to docket the cause,” and that “the award of the appraisers shall constitute all necessary pleadings in such procedings, and, in case a trial is demanded or requested by either party, the question shall be tried as other common law cases are tried, and the owner, or owners, of the land shall be entitled to recover the value of the land appropriated, or intended to be appropriated.”
The judgment in the present case was literally one allowing* the dismissal of the action, but it was in substance a judgment on the pleadings and exhibits. Treating it simply as an order permitting appellee as plaintiff to voluntarily dismiss the action, it was erroneous. Under the statute referred to, the party seeking the condemnation of property can not withdraw from the proceedings after having taken advantage of the process of the court to obtain possession of the land. The owner had, on demand, the right to a trial for the purpose of recovering damages, and this right is given in that action without having- to institute a separate action for that purpose.
Nor is the judgment correct if it be treated as a final one on the pleadings and exhibits. The deed executed by the Arkansas Cotton Oil Company to Willey and Crebs contained the following- recital: “But this deed is made subject to the right of public authorities of the city of Helena, Arkansas, to maintain a levee over and across lots twenty-three (23), twenty-four (24), twenty-five (25), twenty-six (26), twenty-seven (27) and twenty-eight (28), as now located and occupied, a,nd connect the levee oh said lots with the line of levee now constructed and to be constructed, and tq remove such portion of the said building as may be necessary to make such connection.”
It does not anywhere appear in the pleadings or proof that appellant was privy to that deed, and it must be assumed, in the absence of a showing to that effect, that appellee was a stranger to it. A rule, apparently universal in its application, seems to be that “a reservation or exemption in favor of a stranger to a conveyance is void or inoperative,” and that a grantee in a deed “containing a reservation or exception in favor of a stranger to the conveyance is not estopped to deny its efficacy.” Beardslee v. New Berlin Light & Power Company, 207 N. Y. 34, 32 Am. & Eng. Ann. Cas., 1287.
In order to establish the right on the part of ap-pellee to the use of the land in controversy without compensation to the owner, it would be necessary to show that it obtained said right from the owners in the chain of appellant’s title prior to the conveyance to Willey and Crebs.
For the error in dismissing the action, the judgment is reversed, and the cause remanded for further proceedings not inconsistent, with this opinion. | [
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McCulloch, C. J.
Appellees instituted this action in the chancery court of St. Francis County to foreclose a deed of trust executed by appellant’s intestate conveying certain real property in Forrest City to secure a debt to appellee Horney. The secured debt was evidenced by a promissory note in the sum of $1,000, due and payable on April 30, 1913, which was recited in the deed of trust, but the evidence in the case showed that the note was executed for an indeterminate amount of advances in money to be made by appellee Horney to the mortgagor. On the final hearing of the cause the chancery court rendered a decree foreclosing the mortgage for the full amount of the debt, including advances made after the maturity of the note, but on appeal to this court it was decided that the chancery court erred in including in the decree the amount of advances made after the maturity of the note. The decree was reversed and the cause remanded with directions “to ascertain from this record the amount due for advances to April 30, 1913, render a decree for the same against the estate of I. W. Leggett, deceased, declare the same a lien on the property described in the trust deed, and to foreclose said lien if the said judgment is not paid within á reasonable time to be fixed by the court.”
On the filing of the mandate in the chancery court of St. Francis County, that court, after ascertaining from the record the aggregate amount of advances made up to and including April 30, 1913, with interest to date of decree, also the aggregate amount of advances made after that date, with interest, rendered, a judgment in favor of Homey against the said estate for the whole of said debt, but declared a lien for only the amount of advances made up to April 30, 1913, with, interest, in accordance with tlie directions of the mandate. Appellants objected to that part of tlie decree which covered the amount of advances after April 30, 1913, and they have prosecuted an appeal to this court.
The contention of appellants is that the directions of this court were specific and excluded the power of the court to render any decree except one for the recovery of the amount of advances up to April 30, 1913, with interest, and declaring a lien for that debt. The contention of appellees is that under the pleadings and proof in the case they were entitled to a decree against tlie estate for the full amount of the advances with interest, notwithstanding the fact that only that part of the debt which was for advances up to the date mentioned was a lien under the mortgage, and that the directions of this court did not forbid the lower court from including the whole debt in the decree, that part which was merely for the recovery from the estate of Leggett as well as that part of which constituted a lien under the deed’ of trust. We are of the opinion that the contention of appellants is correct, and that the mandate of this court precluded the chancery court from rendering any decree, except the one directed which was for recovery of the amount of advances up to and including the date mentioned, with interest. The mandate placed a precise limit upon the further proceeding's of the chancery court in this cause and precluded that court from rendering any decree except the one expressly authorized by this court in its mandate. The mandate had the same force as if it had been rendered by this court itself, and the chancery court had no power to change or extend it. Like any other decree it was conclusive of all of the issues involved in the ease. The question now is, what the judgment of this court was on the former appeal, not what it should have been. The case is controlled by the following decisions: Gaither v. Campbell, 94 Ark. 329; McClintock v. Robert son, 98 Ark. 595; Hopson v. Frierson, 106 Ark. 292; LaCotts v. LaCotts, 118 Ark. 558.
The decree of the chancery court is reversed as to that part which relates to the recovery for advances after April 30,1913, since the remainder of the decree is correct and is not appealed from, it is not necessary to remand the canse. | [
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McCulloch:, C. J.
This case is here now on a second appeal, the attitude of the parties being reversed, the present appellees having been the appellants on the former appeal, and the present appellants having been formerly the appellees. Barron v. Stuart, 136 Ark. 481. The facts in the case were stated more in detail in the opinion on the former appeal than need be stated again. Reference is made to that opinion, and it is only essential now to give an outline of the facts.
J. W. Stuart, a man sixty-eight years of age, residing in Greene County, Arkansas, died on July 28, 1916, the owner of a large estate consisting of improved farm lands, timber lands and personalty of various kinds'. He left surviving him his widow, five sons, two daughters and the children of three deceased daughters, and a few days before he died he executed his last will and testament by which on the face of the instrument he devised and bequeathed all of his property to his wife, M. R. E. Stuart. Appellees, who are the daughters and grandchildren of J. "W. Stuart, instituted this action to establish a trust in certain property devised and bequeathed to the widow. The chancellor in the first decree decided that there was no trust under the will and dismissed the complaint for want of equity. On the former appeal this court sustained the trust and reversed the cause for further proceedings.
In the original complaint it was alleged that the testator, J. W. Stuart, had directed a division of the property, giving to the widow the homestead and $10,000 in money and certain other items of personalty, and that the remainder was to go to his children and grandchildren, and that he devised and bequeathed the whole of his estate to his wife as trustee, with instructions to convey to each of the children and grandchildren, separately, a tract of improved land, which he described by name or location, and to divide the timber land and personal property equally between all the children and grandchildren; that the widow after the death of the testator had carried out said directions by conveying the improved farm lands to the parties in accordance with the directions of the testator, but that she had refused to deed to her daughters and grandchildren any of the timber lands or to divide the personal property equally between the children and grandchildren as directed. The prayer of the complaint was that a trust be declared, and that the widow be compelled to carry out its terms by an equal division of the timber lands and the personal property among all the children and grandchildren, according to the directions of the testator. On the remand of the case, the plaintiffs, the present appellees, filed a supplemental complaint in which they set forth certain defects in the deeds executed to them by the widow conveying the improved farm lands and asked that a correction be made by the cancellation of those deeds, and the execution of new deeds by the commissioner of the court conveying the property to the plaintiffs in fee simple. It was also alleged in the supplemental complaint that the widow and one of the sons of the testator, J. A. Stuart, had cut and moved a large quantity of timber from the wild lands and had sold a large quantity of the stock and matured crops of the testator, and had disposed of other personal property, and asked that a master be appointed with power to state an account between the parties in regard to their respective interests in the property. There was also a prayer for a partition of the timber lands. There was an answer to this supplemental complaint and also a cross-complaint by the widow in which she claimed the sum of $1,600 as her separate estate, in addition to the sum of $10,000 which was specified was to go to her under the trust.
On April 7, 1919, the court entered a decree on the mandate of this court and the supplemental pleadings, in which the court recited a finding “that the real estate belonging to J; W. Stuart at the time of his death is the common property of his widow, grandchildren and great grandchildren (naming them),” and that it would be necessary to have an appraisement and partition in kind of all the lands belonging to the said testator, and the court appointed commissioners to set aside the homestead to the widow and to appraise each of the forty-acre tracts of land separately and divide the same into ten equal parts. The court' also appointed a master to take testimony and to report a statement of the account between the parties. It appears from the account subsequently filed that the widow, prior to that time, had divided the cattle and mules and horses by giving to each of the children and grandchildren a mule or a horse and a cow and calf, and out of the cash on hand she had given to each of them a check for $2,000 except two of her daughters who joined in this suit against her. Testimony was taken before the master, who made a report to the court setting forth in detail his findings concerning the amount of property in the 'hands of the executor, J. A. Stuart, and the amount of disbursements. The commissioners also made a report of the values of the tracts of wild timber lands and reported a partition of those lands equally among the children and grandchildren, giving to the grandchildren the share of the parent. There were no exceptions to the report of the commissioners, nor is there any controversy here concerning the division of the wild lands. There were twenty-one separate tracts of wild lands, containing forty acres each, and these tracts were equally divided between the parties. Exceptions were filed to the master’s report, and these exceptions came on for hearing by the court on April 5,1920. There was an order entered by the court reciting the filing of the exceptions and the submission of the cause, which was to be argued at a later time to be fixed by the chancellor. The cause was heard by the chancellor in vacation, all the parties being present by their attorneys, on July 15, 1920, and a final decree was rendered, the entry of which contained a recital of the submission of the cause during the term time on April 5. Certain matters were reserved from the decree entered on July 15, and the hearing was resumed on July 20,1920. This was a final decree, except that there was a motion made on August 21, 1920, to reopen the decree, which motion the court overruled on September 25, 1920.
On July 13, 1920, the attorneys then representing the parties (not including the present counsel representing appellants here who have succeeded former counsel in the case) joined in a written direction to the master, as follows:
“We hereby request that, in stating the final account for order of distribution in the case of Barron v. Stuart, that you take into account the difference in value of the so-called improved farms, the disposition of which were directed by J. W. Stuart on his death-bed, and absorb these differences in the final account, the value to be fixed as found by the commissioners, as under the decree of the Supreme Court all parties are to share equally by doing this, no liens will be retained against the respective tracts of lands on account of these differences and owelty awards.” It will be observed that this direction was given after the first decree on July 15, 1920, and pursuant to this direction the master reported the values of the improved farms conveyed to the different children and grandchildren, and in stating the account between the parties he equalized these differences so as to give each of the children an equal share in the whole estate. The court entered a decree in accordance with the report of the master, awarding to each of the children and grandchildren the amounts found to he the balance due to each of them out of the funds in the hands of the executor.
It is contended, in the first place, that the decree is void on account of being entered in vacation without having been previously submitted and taken under advisement by the court in term time. Conceding that the recitals of the record are not sufficient to bring the case within that feature of the statute (Crawford & Moses Digest, § 2190) which providés that the chancellor may “make and sign decrees in vacation in causes taken under advisement by him at a term of the court,” the record does show that the cause was heard in vacation by consent of the parties, all being present by attorneys before the chancellor. The statute just referred to expressly authorizes the trial and rendition of decrees in vacation by consent. Some of the plaintiffs were infants, but there is no exception in the statute as to infant parties. The statute provides that the parties themselves, or their solicitors of record, may consent to the hearing in vacation, and we find no reason for reading into the statute exceptions in favor of infants. This is a mere matter of procedure in trials of causes which involve no prejudice to the rights of infants by having the hearing in vacation before the chancellor if the counsel for both sides so agree.
The principal controversy arising on the present appeal relates to the decree of the court equalizing the differences between the values of the improved farm lands and compelling each of the parties to account in the final division of the estate for these differences in value. The contention- of appellants is that the improved farm lands were devised to the widow in trust for the several cestuis que trust, regardless of value, and that the differences in value, if any, are not to be taken into account in the division of the other property. The contention of appellees is that the whole of the estate was devised in trust to be equally divided between the parties, and that in carrying out this trust the differences in values of the separate specific tracts of improved farm lands must be equalized and the payment of owelty to he decreed in order to effectuate an equal division of the property. It is claimed on each side of the controversy that this question was adjudicated in the original opinion of this court which became the law of the case. Each side quotes statements from the opinion, which they claim support their respective contentions. The issues involved and the conclusions of this court are clearly stated in the former opinion and show for themselves. There is nothing, we think, in the language of that opinion itself which is decisive of the issue controverted on the present appeal, but we think the effect of the decision of the court upon the issues then involved was an adjudication that the trust had been performed in accordance with the terms, in so far as it related to the improved farm lands and that the remainder of the property was to be divided equally between the children and grandchildren. Appellees, as plaintiffs below, did not ask for an adjudication concerning those lands and it is clear that they treated the trust as being finally accomplished with respect to that portion of the testator’s property, and the relief which they asked for was that they be given an equal division in the remainder of the property. This court merely decreed to them what they asked for, and that necessarily resulted in establishing as the law of the case the decision that the remainder of the property was to be equally divided. Moreover, that is, according to the preponderance of the testimony in the case, what the testator intended in the creation of the trust. He was unable to complete the division of the property according to his wishes, but he selected one character of property which stood in a class by itself and divided that in accordance with his own wishes, and apparently upon his own estimate of the respective claims of his children and grandchildren upon his bounty. There is no conflict in the testimony that he called over the children name by name and specified the particular farms which they were to have. He directed that his crops he sold by his executor and the proceeds equally divided between the children and grandchildren, and that each one be given a mule-or a horse, and that the balance of his property be divided among the children and grandchildren, and repeated the saying in the presence of those assembled that they were to be treated alike — that “a child is a child, ” as he expressed it.
There was nothing- to indicate that his intention was that there be an appraisement of the farm lands and that the differences in values, if any, should be equalized. In other words, it is clear that he intended to make the division himself as far as he was physically able to do so at that time, and that the remainder of the property was to be equally divided. We are of the opinion that the original counsel in the case misconceived the effect of the former decision of this court and put the wrong interpretation on it in holding that the parties were liable for the payment of owelty in the equalization of the values of the improved farm lands. The fact that counsel who originally represented the appellants consented, under a misconception of the law, to an instruction to the master to make a finding as to the relative values of the different tracts of improved farm lands does not bar appellants from objecting to the decree on that account. This direction was not given by way of a compromise settlement of the controversy, but, as before stated, was made under a belief entertained by counsel that such was the effect of the former decree. The parties, notwithstanding that concession, during the further progress of the proceedings had a right to object to the findings of the master and the decree of the court awarding the payment of owelty. No prejudice resulted from this concession during the progress of the proceedings, as the court could and should have corrected the misconception entertained at the time and rendered a decree in accordance with what we find now to be the law of the case. But it is contended now that this was settled against the contention of appellants by the decree en tered by the chancellor on April 7, 1919, and that the appeal from that decree was taken too late for this court to review the question. That decree, however, was not final. It merely declared the law with respect to the rights of the parties, but it did not award any particular property to any of the parties and left for future adjudication of the property to be awarded to the parties respectively. The case in that respect falls squarely within the rule announced by this court in Sennett v. Walker, 92 Ark. 607, and also within the rule announced in Branstetter v. Branstetter, 130 Ark. 301. There was no final decree concluding the rights of the parties without further judicial action until the decree of August 21, 1920, and the appeal was taken within six months after that time.
The widow, M. B». E. Stuart, who is one of the appellants, assigns as error the refusal of the court to allow her in the adjustment of the accounts the additional sum of $1,600 which she claims as her separate property in funds turned over to her in the lifetime of her husband in reimbursmeent for her inherited property which he had used for his own purposes. The chancellor found that these funds wore regarded as the property of the testator himself, and as a part of the funds out of which he bequeathed to her the sum of $10,000, in lieu of all other claims, and that conclusion is supported by the evidence.
The contention is also made, on behalf of the widow, that the court erred in failing to decree to her, as her separate property, the funds deposited in bank in the joint names of herself and the testator, and which she now claims by right of survivorship. There was no exception to the report of the master as to this item, and the conclusion is warranted from the proof that these funds were the property of the testator.
An appeal has been prosecuted on behalf of the infant plaintiffs from that part of the decree fixing the amount of the fees of their counsel. The court, in fixing the amount of the fees, seems to have properly taken into consideration the several amounts recovered by these infants under the decree, and, since the effect of our decision is to reduce the amounts recovered by them, it is proper to reverse this part of the decree so as to allow the chancellor to determine the proper amount of the fees based on the amount recovered.
The decree of the chancery court is therefore reversed and the cause remanded with directions, after ascertaining the amount of fees to be charged, to enter a decree in accordance with this opinion.
Hart and Smith, JJ., dissent. | [
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McCulloch, C. J.
Appellant was convicted under an indictment charging him with having manufactured “one pint of alcoholic, ardent, vinous and intoxicating spirits, commonly called ‘whiskey.’ ” It is undisputed that appellant erected a crude distillery m an outhouse at the home of one Ezell Trice in Lonoke County, where he lived, and that he attempted to manufacture whiskey. Appellant admitted as much in his testimony, but he denied that he completed the distillation of the whiskey from the raw material which he was using. He used a metal coal oil tank or barrel and a wooden keg, into one of which he put the sour mash and the two containers were connected with a cane pipe used as a “worm.” Appellant testified that he put into the keg a half-bushel of chops, two gallons of molasses and five buckets of water. A hole in the ground was used as a furnace, and the metal barrel was set over it. A fire was built in the'furnace, and after the contents of the barrel became heated ah explosion occurred. Appellant’s effort to manufacture whiskey was thus discovered, and his arrest followed in a few hours, as soon as the services of an officer could be procured.
Appellant freely admitted to the officer, and admitted on the witness stand, that he was attempting to make whiskey for his own use, but he claimed that he did not succeed in the effort, which was frustrated by the explosion.
After appellant was arre,sted and taken to jail, the officer went back to the house of Ezell Trice, and the latter carried him out a short distance from the house and discovered buried in the ground two jugs and a bottle of white “moonshine” whiskey. Trice testified that he did not put the whiskey there and did not know it was there until it was discovered on the search made by him and the officers. One .of the officers who made the arrest testified concerning the condition of the crude distillery that he found, and also stated that some of the material used in making the liquor had been poured out on the ground.
It is earnestly contended that the evidence is insufficient to establish the fact that appellant manufactured any whiskey; that the proof merely shows that he was engaged in an effort to make whiskey, but that he did not complete it. Wé think, however, that the evidence is sufficient to warrant the jury in finding that the operation of the distillery resulted in the manufacture of whiskey. The fact that used raw material was poured out on the ground and also the fact that whiskey was found on the premises is sufficient to warrant the inference that whiskey was manufactured there by appellant. The two jugs and the bottle of whiskey were found on the premises only a few hundred yards from the house of Trice, who testified that neither he nor his wife put the whiskey there, and there is no evidence that any one else besides appellant frequented the premises.
It is next contended that the court erred in giving an instruction to the .effect that the defendant could be convicted if the proof showed that he had manufactured “alcoholic, ardent, vinous, malt or fermented liquors which, could be used and drank as intoxicating beverage, ’ ’ when the indictment specifically charged the manufacture of whiskey. Conceding, under the rule announced by this court in Carleton v. State, 129 Ark. 361, that the particular language of the indictment was descriptive of the offense and that the proof must be confined to the kind of liquor specifically named, we are of the opinion that the instruction given by the court was not prejudicial, as the sole issue in this case was whether or not appellant succeeded in manufacturing whiskey which he was undertaking to do at the distillery when the explosion oe-, curred. Appellant admitted that he was attempting to manufacture liquor, and, as before stated, the sole question was whether or not he succeeded in the effort. It is not conceivable that the jury were misled by this instruction and reached the conclusion that appellant manufactured anything else but whiskey. We think the instruction was harmless.
Again, it is insisted that the court erred in permitting one of the officers to testify concerning the finding of whiskey near Trice’s home. We think that this had some tendency to prove that liquor was manufactured by appellant on the premises, and that the ruling of the court in admitting the testimony was correct.
Judgment affirmed. | [
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McCulloch, C. J.
D. F. Harris, one of the appel-lees, was for many years prior to the year 1911 engaged in the sawmill business, and became heavily indebted to creditors; the Merchants’ & Farmers’ Bank of Junction City, Arkansas, one of the 'appellants in this action, being one of them. He owed the bank three notes, one for $1,000, one for $1,973 and the other for $2,500. Harris resided in Junction City and owned an undivided half interest in a tract of land in that (Union) comity, containing 424 acres; Ms brother, C. A. Harris, being the owner of the other half interest. The bank instituted an action at law in the circuit court of Union County against Harris to recover on the said note for the sum of $2,500, and sued out an order of general attachment, which was levied on the Union County land. Judgment was rendered in favor of the bank in that action, the attachment was sustained, and the land was ordered sold. At the sale, which was held on January 6, 1912, the bank became the purchaser of Harris’ undivided half-interest in the •land for the sum of $1,800, which was credited on the judgment, and received from the sheriff a certificate of purchase. A few days prior to the expiration of the period allowed for redemption from the sale, Mrs. C. D. Harris, the wife of D. F. Harris, paid to the bank the sum of $2,080, and the latter assigned to Mrs. Harris the certificate of purchase, upon which the sheriff executed to her a deed conveying the land attached and sold. Mrs. Harris and the other tenant in common subsequently divided the land and a part of the tract containing 200 acres was conveyed to her in severalty. She sold forty acres of the land to another person and then purchased forty acres more, which gave her the amount of acreage she received in the division. Mrs. Harris continued as the owner of the 200 acres, which was a farm partly in cultivation, until November, 1918, when she sold and conveyed it to S. E. Bass for the consideration of $5,000, of which $1,500 was paid by check on another bank in Junction City, the remaining sum of $3,500 being evidenced by note executed by Bass to Mrs. Harris.
The present action was immediately instituted by the Merchants’ & Farmers’ Bank in the chancery court of Union County against D. F. Harris and his wife to subject the proceeds of the sale to Bass (check and note) to the payment of the remainder of the debt still owing by D. F. Harris to the bank, the basis of the action being the charge that the funds used by Mrs. Harris in payment to the bank of the consideration ($2,080) for the assignment of the certificate of purchase were really the funds of Harris himself, fraudulently accumulated and held in the name of liis wife for the purpose of hindering the bank and other creditors in the collection of these debts. Shortly after the institution of this suit, D. F. Harris filed his petition in bankruptcy, and was duly adjudged a bankrupt, and appellant Durrett was elected trustee of the estate and intervened in this action, asking that the funds in controversy be decreed to be the property of the estate of the bankrupt. The chancery court, on the final hearing of the cause, dismissed the original complaint of the bank, as well as the complaint of the trustee as inter-vener for want of equity.
The testimony adduced in the case establishes the fact that the funds used by Mrs. Harris in paying the bank for the purchase of the land were accumulated in the business operations of D. F. Harris in the name of his wife, and that such operations were so conducted in the name of Mrs. Harris for the express purpose of putting the proceeds beyond the reach of Harris’ creditors. When Harris became insolvent in the year 1911, he divested himself of all of his property, except this undivided half-interest in the Union County land which he held with his brother. He had no other property left, nor did his wife-own any property. She was not a business woman, and gave her entire time and attention to housekeeping. Harris himself seems to be a capable business man, and he found an opportunity to secure contracts with the Federal government to furnish timber for use in constructing locks and dams in the Ouachita River at Camden and in the Sunflower River in the State of Mississippi. He availed himself of this opportunity, and, in 'order to prevent interference from creditors, he took the contracts in the name of his wife and operated the business in her name. No capital was required, and the skill and efforts of Harris were substantially all that were involved in the enterprise. Harris managed the business openly and entirely, using his wife’s name in the contracts and in his dealings with the proceeds arising from those business operations. Mrs. Harris had nothing to do with the business except to permit the use of her name. This state of affairs seems to have been well known and a matter of notoriety in the community where the business was carried on, and where the Har-rises resided, where the bank operated its business and its officers resided. The business was profitable, and from the accumulated profits the sum of $2,080 was used to purchase from the bank for Mrs. Harris the tract of land which the bank had acquired at the attachment sale. Learned counsel for appellants say that, since the holding of the funds in the name of Mrs. Harris was colorable and in fraud of the rights of creditors, the purchase of the certificate amounted to no more than a redemption of the land from the sale. Conceding that to be true as to other creditors of Harris, it ought not to be so treated as to the bank which received the funds as a payment by Mrs. Harris for the purchase of the land. The bank made its election to accept the funds in purchase of the land. It accepted the funds, not as the property of Harris, the debtor, but as the property of Mrs. Harris. The bank knew or could have known then as well as now the source of those funds and how they were accumulated. In order to escape the effect of its election at that time to treat the funds as being those of Mrs. Harris and to accept the same from her in purchase of the land, it devolves on the bank to show that it accepted the funds in ignorance of their source. It is inconceivable that the bank did not know or have abundant opportunity to ascertain at that time the true state of affairs in regard to those funds. Mrs. Harris had no property, and was apparently not engaged in any business whereby there could be accumulated e'arnings. Her husband attended to the business, and he also made the purchase of this land from the bank for his wife.
We tliink that the hank is bound by its election and can not now be heard to say that the funds used in the purchase of the land should, in equity, be treated as the property of Harris and followed through the land to the proceeds of the sale to Bass, so as to subject those proceeds to payment of the debt of Harris to the bank. Under such circumstances, a court of equity will not lend its aid to uncover an alleged fraud. Whatever the rights of other creditors of Harris might have been, the bank is not in an attitude to set up the fraud for the purpose of subjecting the proceeds of the sale of the land to the payment of their debt.
The trustee is in no better attitude as the representative of the bank, a creditor of the bankrupt. A trustee in bankruptcy may, under section 70 of the National Bankruptcy Statute, “avoid any transfer by the bank-rapt of his property which any creditor of such bankrupt might have avoided,’’ and this is the extent of his rights and authority. Boyd v. Arnold, 103 Ark. 105.
Since appellant bank is not in the attitude to avoid the transfer by. Harris, the trustee can not do so for it. There is no proof in this record to show that there" are other creditors who are entitled to avoid the conveyance.
Decree affirmed. | [
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Humphreys, J.
This is an appeal from the decree in the Greene Chancery Court, dismissing appellant’s hill to enforce an option to lease a building in Paragould, owned by appellee, Mrs. Minnie Noble. The option contract was entered into between Mrs. Minnie Noble and E. B. Ashmore on the 10th day of April, 1919, and is, in part, as follows:
“In consideration of $10 now paid by the lessee to the lessor, the receipt whereof is hereby acknowledged, the lessor shall have the option of taking a lease of the premises described as follows:
“The one-story brick building on South Pruet street now occupied as a pool room, in the city of Paragould, Ark., for a term of one year at the monthly rental of $60 per month, and the privilege of extending three (3) years additional at same rental, provided said premises shall be vacated by the tenant who now occupies said premises at any time within two years from the date of this option.
“This option shall be exercisable by notice in writing by the lessee to the lessor at any time within two years from the date hereof that the present tenant shall vacate said premises, and if and when so exercised then the lessor shall grant and the lessee shall accept a lease of the said premises for the said term which shall commence from the date of the exercise of the option, at the said rent, and the said sum of $10 paid for this option shall be applied to the payment of the first month’s rent; provided that the lessee must exercise his option within ten days from the date he shall receive written notice from the lessor that said premises will be' vacant and ready to be occupied by lessee within said ten days.”
At the time the contract was executed the building was occupied by Hugh Stutts, as tenant of Mrs. Noble, at a rental of $50 per month. On May 7 following Hugh Stütts sold his business and equipment to appellees, G, T. Breckenridge and Sam Hays, who thereafter occupied the building under a monthly rental contract with Mrs. Noble for $75 per month. Appellant obtained knowledge that Stutts had sold and delivered possession of his business and equipment to Breckenridge and Hays a week or ten days after the sale. He occupied an adjoining building to the building in question, for which he paid $30 per month, and, on that account, did not attempt to exercise his option under the option contract until September 20, 1920. Appellant first made a verbal request for the fulfillment of the option contract, and, when Mrs. Noble refused to execute a lease pursuant to its terms, he gave her written notice of his intention to exercise his rights under the option, then instituted this suit for specific performance of the option.
Appellant’s contention is that he had a right under the option contract to lease the building at any time within two years from its date after being vacated by the tenant then occupying the building, by giving written notice to the lessor, Mrs. Noble, of his intention to exercise the option, and that it was not incumbent upon him to give written notice of his intention until Mrs. Noble first gave written notice that said tenant had vacated the building. We do not place that construction upon the contract. The two-year period in the contract had relation to the life of the contract, and not the time of the accrual of appellant’s right to exercise the option. It is made manifest by the proviso in the first paragraph of the contract set out that the right to exercise the option accrued if the occupancy was changed — of course, with the knowledge of the lessee — at any time within two years from the date of the option. We see nothing in other parts of the contract in conflict with this plain proviso, which is as follows-: “Provided said premises shall be vacated by the tenant who now occupies said premises at any time within two years from the date of this option.” It is argued that the last proviso in the contract is in conflict with this construction, because, by it, the lessee is not required to exercise his option until the lessor gives him ten days’ written notice that the occupancy had changed. This was not the purpose of the last proviso in the option contract. The purpose of that proviso was to prevent a lapse between the time of the departure of the then tenant and the entry of the optionor, if he desired to take advantage of his option. The last proviso was clearly for the benefit of the lessor, as it permitted her to 'give the notice which accelerated the right to exercise the option even before the vacancy occurred. Having thus construed the contract, the only remaining question to be determined on this appeal is whether appellant attempted to exercise his option within a reasonable time after his right to specific performance accrued. The rule is that one entitled to specific performance of a contract must proceed to enforce it within a reasonable time. This court, in the case of Uzzell v. Gates, 103 Ark. 191, quoted approvingly the rule announced by Lord Cranworth to the effect that “specific performance is relief which this court will not give, unless in cases where the parties seeking it come as promptly as the nature of the case will permit.” In the instant case, the appellant delayed before taking steps to enforce his option about sixteen months after receiving notice of a change in occupancy of the building in question. In the meantime, without objection or protest on the part of appellant, Mrs. Noble leased the building to others from month to month, at a rental of $75 per month. Appellant’s lack of diligence prevents him now from calling on a court of equity for specific performance.
The decree is therefore affirmed. | [
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Hart, J.
(after stating the facts). It is first insisted that the court erred in consolidating the suit of George F. Fenner and Lillie Fenner, his wife, against F. F. Reeher, to foreclose the mortgage on the 180 acres of land in Izard County, Arkansas, with the suit of F. F. Reeher against George F. Fenner for the specific performance of the contract to exchange the 180 acres of land in question for the Coffeyville property.
The court did not err in consolidating the- suits. Section 1081 of Crawford & Moses ’ Digest provides that when causes of a like nature, relative to the same questions, are pending in the circuit court or chancery court, the court may consolidate said causes when it appears reasonable to do so. In Little Rock Gas & Fuel Co. v. Coppedge, 116 Ark. 334, the court held that separate actions by the husband and wife to recover damages for injuries sustained by the wife on account of the alleged negligence of the gas company were properly consolidated. The object of the act in question is to save a repetition of evidence, and an unnecessary consumption of time and costs in actions depending upon substantially the same evidence or arising out of the same transaction.
Again it is urged that the court erred in setting off the judgment recovered by George F. Fenner and Lillie Fenner against F. F. Reeher. Lillie Fenner has not appealed and can not be prejudiced by the action of the court in this respect, however erroneous it might be. The decree of the court shows that Fenner is indebted to Reelier in a greater amount than Reelier was indebted to'bim. The court gave Fenner credit on the judgment of Reeher against him in the amount of his judgment against Reeher. This action of the court resulted in no prejudice to him, inasmuch as the decree must be affirmed for the reasons hereinafter given.
The principal issue raised by the appeal is whether or not Reeher was entitled to specific performance. The contract provided that Reeher should give Fenner a clear title to the 180 acres of land in question and should give him an abstract showing a good, merchantable title. It is a just principle in the law relating to the specific performance of contracts that Fenner should receive that for which he contracted before he can be compelled to part with the consideration he agreed to pay. The contract provided that he was to receive an abstract showing a good, merchantable title.
In the case of Dobbs v. Norcross, 24 N. J. Rep., p. 327, cited in Griffith v. Maxfield, 63 Ark. 548, to sustain the holding of the court, in discussing this question it was said:
“The court will never compel a purchaser to take a title where the point on which it depends is too doubtful to be settled without litigation, or where the purchase would expose him to the hazard of such proceedings; or, as it is usually expressed, it will not compel him to buy a lawsuit. That may be a good title at law, which a court of equity,'in the exercise of its discretionary power, will not force on an unwilling purchaser. Every purchaser of land has a right to demand a title which shall put him in all reasonable security, and which shall protect him from anxiety, lest annoying, if not successful, suits be brought against him, and probably take from him or his representatives land upon which money was invested. He should have a title which shall enablé him, not only to hold his land, but to hold it in peace; and, if he wishes to sell it, to be reasonably sure that no flaw or doubt will come up to disturb its marketable value. ’ ’
This court has adopted the rule there laid down. Griffith v. Maxfield, 63 Ark. 548; Leroy v. Harwood, 119 Ark. 418; Mays v. Blair, 120 Ark. 69, and Shelton v. Ratterree, 121 Ark. 482. The doubt, however, must be reasonable, or such as would induce a prudent man to hesitate. It does not mean a captious or frivolous objection.
We now come to consider the title in the present case tendered by Reeher to Fenner under the contract in question and must determine whether it is so far free from reasonable doubt as to justify the affirmance of the decree ordering the contract to be specifically performed. There was an incumbrance of $400 which John C. Ashley, who abstracted the title for Reeher, testified had been fully satisfied. His testimony was not disputed. Hence this alleged incumbrance passes out of the case.
This brings us to the mortgage made by Reeher to Michael. In the first place, Reeher all the way through claimed that he would pay off this mortgage and only declined to pay to Michael’s attorney because Michael was not there to satisfy the record. He again offered to pay off this indebtedness at the trial, and the court credited his judgment against Fenner with the amount of the indebtedness. Under these circumstances, it did not constitute an encumbrance which would warrant Fenner in refusing to carry out the contract on his part. It seems that there was some other objections to the title, but the evidence does not disclose what they were. Ashley testified that the title was a merchantable one, and that Fenner told him he would not take anything less thau a perfect title. This, as we have already seen, he was not entitled to under the terms of the contract. The contract gave him a merchantable title, and this Reeher offered to give him at all times. He could not refuse to accept the title thus offered on the ground that there was a possibility of there being a flaw in it. The record does uot show any reasonable ground which would warrant Fenner in turning down the title offered him by Reeher. The title which Reeher seeks to compel Fenner to accept is a merchantable one, within the meaning of onr decisions cited above, and the conrt properly entered a decree for the specific performance of the contract.
It follows that the decree must be affirmed. | [
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Hart, J.
(after stating the facts). The record shows that on October 1, 1845, the land in question was granted by the United States to Charles Newman and a patent was issued to him. After his death intestate in October, 1865, his heirs conveyed said land, by deed, to Elizabeth Newman. She married Thos. J. Bentley, and in 1866 died, leaving surviving her Thos. J. Bentley, her husband, and infant daughter, the sole issue of their marriage. The infant daughter who was the issue of the marriage of Elizabeth Newman with Thos. J. Bentley is now Ada Bentley Morrison. On the 24th day of January, 1919, the latter executed a special warranty deed to A. F. Maberry. So that it will be seen that the legal title to the land is in A. F. Maberry.
The defendants and other grantors have been in possession of the land since some time prior to 1876 and claim title to the land by adverse possession. Their •claim is not tenable. Thos. J. Bentley did not die until the 25th day of July, 1919. In 1866 he became tenant by the curtesy, and by virtue thereof he obtained an estate in the land for his life. Neelly v. Lancaster, 47 Ark. 175. It is true he conveyed his interest in the land to the grantors of the defendants, but he did not die until the 25th day of July, 1919.
It is well settled in this State that prior to the death of a tenant for life, neither his possession nor the possession of his grantee is adverse to the remainderman or reversioner. Hence the statute of limitations does not begin to run against the remainderman or reversioner until the death of the life tenant,- The reason is that no one can be in default in not bringing an action which, he could not have maintained, if brought; and that no statute of limitations can commence to run until the time comes when the person claiming title or right of possession can successfully maintain his action. Neither the possession of the life tenant nor his grantee can by any possibility become adverse to the reversioner or remain-derman for the reason that such possession is not an interference with the rights of the latter. Jones v. Freed, 42 Ark. 357; Moore v. Childress, 58 Ark. 510; Gallagher v. Johnson, 65 Ark. 90; Ogden v. Ogden, 60 Ark. 70, and Stricklin v. Moore, 98 Ark. 30.
It is contended, however, that the facts of this case constitute an exception to the general rule. The record shows that J. "W. Aiken was in possession of the land when he died the first of the year 1876. It is not shown what paper title, if any, he had. As already seen, he could not have acquired title against 'the remainderman by adverse possession.
The probate court ordered the land of Aiken to be sold for the payment of his debts. Thos. J. Bentley became the purchaser at the sale and entered into possession of the land. He conveyed the land by warranty deed to DeWitt C. Ashley. The deed purports to convey the fee in the land. This, it is claimed, constituted an abandonment by Thos. J. Bentley of his life estate and puts the statute of limitations in motion. During the continuance of the life estate of Bentley, possession by his grantee under a deed purporting to convey the fee would not be adverse to the remainderman, so that the statute of limitations would be set in motion against him because the re-mainderman would have no right of action to recover the possession of the land during the continuance of the life estate. As said in Christie v. Gage, 71 N. Y. 189, the conveyance by the tenant for life of a greater estate than he possessed does not work a forfeiture, and the remain-derman after the conveyance, as before, has no right to possession during the continuance of the life estate. See, also, Pickett v. Pope, 74 Ala. 122; Pendley v. Madi son’s Admr., 83 Ala. 484; Mallus v. Snowman, 21 Me. 201; Stevens v. Winship, 1 Pick. 318; 11 Am. Dec. 178; Jackson v. Mancius and Vanderheyden, 2 Wend. (N. Y.) 357; Barrett v. Stradl, (Wis.) 9 Am. St. Repts. 795; Mettler v. Miller, 129 Ill. 630, and Constantine v. VanWinkle, 6 Hill (N. Y.) 177, and case note to 19 L. R. A. at p. 841.
Connsel for the defendants also invoke the doctrine of laches as a defense to the suit. It is well settled that the estate of the heirs of the wife as remainderman is distinct from that acquired by her husband as tenant by the curtesy. Hence they can not be affected by any act of the life tenant or his grantee.
The rule is stated by Chief Justice Kent in Jackson v. Schoonmaker, 4 Johns. N. Y., p. 390, at 402, as follows:
“Neither a descent cast, nor the statute of limitations, will affect a right, if a particular estate existed at the time of the disseisin, or when the adverse possession began, because a right of entry in the remainderman can not exist, during the existence of the particular estate; and the laches of a tenant for life will not affect the party entitled. An entry to avoid the statute must be an entry for the purpose of taking possession, and such an entry can not be made during the existence of the life estate.” (Citing cases.)
In Tiedeman on Real Property (2 ed.), par. 400, it is said: ‘ ‘ The tenant can not do anything to defeat a vested remainder; a disseisin of the tenant affects the remainder in no manner. Nor can the possession of the tenant be deemed adverse to the remainderman, either for the purpose of preventing the latter from conveying his interest or with a view to defeat it under the statute of limitations, unless the possession be continued after the termination of the particular estate. The statute of limitations does not begin to run until the remainderman takes effect in possession.”
The rule was recognized by this court in Lesser v. Reeves, 142 Ark. 320, where the court held that the doctrine of laches has no application where the plaintiffs are not seeking equitable relief, and the action is not barred .by tbe statute of limitations. . To tbe same effect, see Anders v. Roark, 108 Ark. 248, and Galloway v. Battaglia, 133 Ark. 441.
There is nothing in tbe record tending to show that the defendants were induced to change their condition with respect to the land-by any conduct on the part of the plaintiff, -and the plaintiff is not guilty of laches.
It follows that the decree must be affirmed. | [
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McCulloch, C. J.
Appellant R. A. East and ap-pellee Sula East were formerly husband and wife, but were divorced by decree of the chancery court of Lawrence County, rendered in January, 1920, in an action instituted by appellee against appellant on the ground of cruel treatment. There were four living children of these parties, the oldest one being eighteen years of age and the youngest four years of age, and in the decree the custody of each of the children was awarded to appellee, and the court also decreed to appellee the pajunent of the sum of $1,150 by appellant as alimony out of funds which he then had in bank. Certain other items of personal property were also decreed to appellee.
The decree for alimony was pursuant to a written stipulation of the parties. Instead of paying over the money to appellee in accordance with the decree of the court, appellant drew the money out of the bank and, taking his youngest child with him, he left Lawrence . County. He went to Heber Springs, and stayed there awhile, and then to Hot Springs, Arkansas, and afterward went to Springfield, Missouri.
In April, 1920, appellee filed in the chancery court of Lawrence County her petition in the nature of a prayer for a writ of ne exeat to cause appellant’s arrest and compel him to comply with the decree of the court. Appellant was arrested under the writ, and, failing to give bond as directed by the court, he was incarcerated in jail and remained there for eight weeks up until the trial of the present proceedings below. Appellant filed a petition for modification of the order committing him to jail, and alleged in the petition that he was unable to comply with the order of the court and asked to he discharged. This petition was heard by the chancery court, and a decree was entered denying the relief prayed for, and an appeal has been prosecuted to this court.
On the trial of the issues below appellant was introduced as a witness in his own behalf and undertook to give an account of the loss of the money he had on hand at the time the decree against him was rendered. He claimed that the money had been partly lost and partly spent, and was all gone at the time he was arrested, except the sum of $300 one-half of which lie had since spent in expenses of this litigation, and the remaining $150 he tendered to appellee’s counsel in open court, and that sum was accepted by counsel. He testified that in November or December, 1919, he had between $2,500 and $3,000 in the Bank of Black Bock at Black Bock, Arkansas, and that he drew it out of the bank, and that he left Walnut Bidge and took the youngest boy with him and went to Heber Springs. He stated about being sick there and the amount of money he spent on himself and on the child, and went from there to Hot Springs for treatment, and he stated the amount of the expenses of that trip. He testified then that he went from there to Springfield, Missouri, and that the sum of $1,500 was stolen from his pocket while he was in a large gathering of people at a show or entertainment of some kind. He testified also that he gave three of the older children $750, and placed it in the bank at Black Bock and that he gave another of the children $300, but he got that back from the child, and this was the sum out- of which he paid appellee’s counsel the sum of $150.
Appellant’s account of the loss of $1,500 is not convincing, and we can not say that the testimony does not support the chancellor’s conclusion that appellant had not lost the money, but still had it in his possession. Ap pellant admitted that he had the money in his possession at the time of the decree, and it devolved upon him to account for it, and the chancellor was not bound to accept as true his unsupported statement that it had been stolen from him. That being true, the chancellor was justified in refusing to discharge him from custody without producing the money and paying it over in accordance with the previous orders of the court.
Under our statutes the common law practice of issuing writs of ne exeat is abolished, but the statutes provide adequate remedy for the enforcement of decrees for alimony and maintenance in divorce' cases. Crawford & Moses’ Digest, sections 3506, 3509. Those statutes authorize imprisonment, both as punishment for refusal to obey the orders of the court and to compel, obedience of such orders. But imprisonment is, as was said by Judge Riddick, speaking for the court in Ex parte Caple, 81 Ark. 504, “only justified on the ground of wilful 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. ” The imprisonment can not be made perpetual for recalcitrancy; and when it becomes manifest that further punishment will not compel obedience, then it is the duty of the court to refrain from further punishment, otherwise it would convert the exercise of the court’s power into an instrument of imprisonment for debt or would constitute the imposition of unusual and cruel punishment. The court found, however, upon what appears to be sufficient evidence that appellant had not spent the money, that it was still in his possession and unacounted for, and the court was justified in assuming that appellant could:be compelled by further punishment to produce the money. We cannot say, therefore, that the conclusion of the court was unsupported by the evidence or that there was an abuse of the court’s power.
The decree is therefore affirmed. | [
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Judith Rogers, Judge.
This is an appeal from a judgment in favor of appellees, Joe and Deborah Berry, in the principal amount of $4,000, representing the return of a downpayment paid by the appellees for the purchase of land from appellant, Eileen Blackmon. In the judgment, the trial court also dismissed appellant’s counterclaim for breach of contract.
For reversal, appellant contends that the trial court erred in allowing appellees to recover the downpayment and that the trial court erred in dismissing her counterclaim. Appellant further contends that the trial court erred in awarding prejudgment interest. We find merit in the first issue raised and reverse. Our reversal on this point renders the argument concerning prejudgment interest moot. However, we cannot disagree with the trial court’s dismissal of appellant’s counterclaim and affirm that portion of the trial court’s decision.
The record reflects that in July of 1991 appellant and her late husband, Ernest, agreed to sell appellees property located in Stone County for which appellees paid $4,000 as a partial downpayment. The only writing evidencing this agreement was a receipt prepared by appellant, which stated:
Received of Joseph and Debbie Berry, the sum of $4,000 as a partial downpayment on 10 acres of property at Wolf Bayou, Stone County, Arkansas. As agreed, payment of $225 per month interest on the balance due will be paid until contract is renegotiated, which is to be within 60 days, or October 1st, 1991.
/s/ Ernest Blackmon
/s/ Eileen Blackmon
In March of 1993, appellees filed a complaint seeking the return of the downpayment. In it, appellees alleged that the parties did not complete a renegotiation of the contract, that appellant had sold the property to a third party, and that appellant had refused to refund the downpayment. In her answers to the complaint, appellant contended that appellees were not entitled to recover the downpayment. She alleged that appellees had failed to make the agreed-upon payments despite repeated demands for them to do so, that she had stood ready, willing and able to perform the contract and that she had sold the property when appellees had failed and refused to comply with the contract. As her counterclaim, appellant alleged that she had been damaged as a result of appellees’ default for having been forced to sell the property at a loss.
The case was tried to the court. Upon the evidence presented, the trial court ruled that the receipt for the downpayment did not satisfy the requirements of the statute of frauds because it was not signed by the appellees and did not set out the terms of the sale. Based on this finding, the court concluded that the parties had not entered into a binding agreement and thus denied appellant’s counterclaim and ordered the return of the downpayment, with interest.
As her first point on appeal, appellant contends that the trial court erred by permitting appellees to recover the down-payment. With that argument, we must agree. Long ago, the supreme court declared the law to be that a person who has paid money upon a parol contract for the purchase of land, which does not meet the requirements of the statute of frauds, cannot maintain an action to recover the money paid so long as the other party is willing to perform and has the ability to perform. Venable v. Brown, 31 Ark. 564 (1876). This rule has been given expression in the subsequent cases of Betnar v. Rose, 259 Ark. 820, 536 S.W.2d 719 (1976); Sturgis v. Meadors, 223 Ark. 359, 266 S.W.2d 81 (1954); Baker v. Taylor & Co., 218 Ark. 538, 237 S.W.2d 471 (1951). Under these circumstances, the vendor is the party for whose protection the statute of frauds is designed, and a breaching vendee is not permitted to take advantage of the statute to recover sums advanced upon the contract. Sturgis v. Meadors, supra. As was said by the court in Baker v. Taylor & Co., supra, it would be an alarming doctrine to hold that the plaintiffs might violate the contract and make their own infraction of the agreement the basis of an action for money had and received.
Appellees contend, however, that it cannot be said that appellant stood ready, willing and able to perform the contract since she had sold the property. We do not agree. The property was sold by appellant in April of 1992. Appellees’ contention overlooks the testimony and phone records offered by appellant demonstrating her efforts to contact appellees prior to the sale. The argument also ignores appellee Deborah Berry’s own testimony that she informed appellant in February of 1992 that they did not yet have the funds with which to purchase the property. Appellees had paid nothing save a portion of the downpayment and made no further inquiry about the property until June of that year. We cannot conclude that appellant did not stand ready, willing and able to go forward with the transaction. The trial court’s ruling permitting the return of the money based on the statute of frauds is contrary to the law and must be reversed.
We find no merit, however, in appellant’s contention that the trial court erred in dismissing her claim for breach of contract. The statute of frauds requires that a written memorandum be signed by the party to be charged. Ark. Code Ann. § 4-59-101(a)(4) (Repl. 1993). The party to be charged is the one against whom the contract is sought to be enforced, in this instance the appellees. Norton v. Hindsley, 245 Ark. 966, 435 S.W.2d 788 (1969). Here, as there was no writing signed by appellees, the trial court did not err in holding that the contract was not enforceable against them.
Affirmed in part; reversed in part.
Pittman and Crabtree, JJ., agree. | [
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John F. Stroud, Jr., Judge.
This case involves a dispute between adjacent landowners concerning a septic system. The appellants are Erich Diener and ERPE, Inc., Diener’s wholly owned corporation. The appellee is John Ratterree. The properties purchased by these parties were originally owned by one person, Bobby Taylor. When Taylor owned all of the property, he constructed a commercial building with restrooms served by an underground septic system. The commercial building was located on the portion of the property subsequently purchased by appel-lee. The lateral leach lines extending from the septic system ran under a portion of the property that was subsequendy purchased by appellants.
Appellants purchased their parcel in 1982. The warranty-deed to appellant Diener stated that the conveyance was subject to existing easements, but appellant was not told about the location of the leach lines nor did he inquire. Appellee purchased his adjoining property approximately one year later, in 1983. Problems did not arise until 1993, when appellee opened a catfish restaurant in the commercial building on his property. Appellants maintained that the increased usage of the public restrooms on appellee’s property caused sewage to rise to the surface of appellants’ property from the leach lines running underneath, and appellant Diener severed the lateral, fines located on his property. The parties eventually filed actions against each other, and those actions were consolidated for trial. Following a hearing, the trial court found that a permanent servitude had been created on appellants’ property during Taylor’s prior ownership when there was unity of tide. The court awarded appellee $1,000 in damages, representing the cost of repairing the lateral fines that were severed four times by appellant. The court also permanendy enjoined appellants from interfering with those fines. The court denied appellee’s request for damages based on trespass. This appeal followed. We affirm.
Appellants argue in the first point of appeal that the “trial court erred in finding that the existence of a septic system during unity of title created a permanent servitude on the appellants’ property in favor of the appellee, and in awarding damages to the appellee.” We find no error.
Under this point, appellants use the terms “prescriptive easement” and “implied easement” as if they were interchangeable. They are not. Here, we are dealing with a type of “implied easement.” Our supreme court has defined an “implied easement” as follows:
Where, during unity of tide, a landowner imposes an apparendy permanent and obvious servitude on part of his property in favor of another part, and where at the time of a later severance of ownership the servitude is in use and is reasonably necessary for the enjoyment of that part of the property favored by the servitude, then the servitude survives the severance and becomes an easement by implication. In order for such an easement to be estab lished it must appear not only that the easement was obvious and apparently permanent but also that it is reasonably necessary for the enjoyment of the property, the term “necesssary” meaning that there could be no other reasonable mode of enjoying the dominant tenement without the easement. An easement by implication does not arise merely because its use is convenient to the beneficial enjoyment of the dominant portion of the property.
Kennedy v. Papp, 294 Ark. 88, 741 S.W.2d 625 (1987) (emphasis added).
In making their argument under this first point, appellants argue that the use of the claimed “prescriptive easement” was not apparent and that it was not necessary. Whether an easement is apparent and necessary is ordinarily a question of fact. Greasy Slough Outing Club, Inc. v. Amick, 224 Ark. 330, 274 S.W.2d 63 (1954). While we review chancery cases de novo, we do not reverse the chancellor’s findings unless they are clearly against the preponderance of the evidence, or clearly erroneous. Ark. R. Civ. P. 52(a); Carver v. Jones, 28 Ark. App. 288, 773 S.W.2d 842 (1989).
Apparentness of use does not necessarily “mean actual visibility, but rather susceptibility of ascertainment on reasonable inspection by persons ordinarily conversant with the subject.” 25 Am. Jur. 2d Easements & Licenses § 30 (1966). Each case must necessarily depend upon its particular facts. Here, the chancellor found that the septic system was reasonably necessary to appellee’s use of the property and that the “test of apparent and obvious” had been satisfied. Those findings are not clearly erroneous. Appellant Diener had owned land adjacent to the property in question, and he knew that the property had to be served by septic systems because there were no sewer lines in the area.
We announced the rule in this language in Waller v. Dansby, 145 Ark. 306, 224 S.W. 615: “The general rule is, that whatever puts a party upon inquiry amounts in judgment of law to notice, provided the inquiry becomes a duty as in the case of vendor and purchaser, and would lead to the knowledge of the requisite fact, by the exercise of ordinary diligence and understanding. Or, as the rule has been expressed more briefly, where a man has suffi cient information to lead him to a fact, he shall be deemed cognizant of it.”
Hannah v. Daniel, 221 Ark. 105, 252 S.W.2d 548 (1952). We cannot say that the chancellor’s finding that appellant Diener possessed sufficient information to make apparent the existence and location of lateral leach lines extending from the adjoining property’s septic system was clearly erroneous.
Neither can we say that the trial court’s finding that the septic system is reasonably necessary to appellee’s use of his property was clearly erroneous. It is the necessity at the time of the conveyance that governs. Greasy Slough, 224 Ark. at 338. The commercial building, with its restrooms and septic system, was in existence at the time of the conveyance in 1983. Because there are no sewer lines in the area, a septic system is reasonably necessary to the property owner’s use of the property.
In the second point of appeal, appellants argue that the “trial court erred in finding that the appellants’ imputed awareness of the need for septic systems in the general area met the legal requirement that a prescriptive easement be apparent and obvious.” This argument was addressed under Point I and needs no further discussion.
Affirmed.
Rogers and Meads, JJ., agree.
Robbins, C.J., Crabtree, J., and Hays, S.J., dissent. | [
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Judith Rogers, Judge.
The appellant, Luke Skrable, appeals from the trial court’s decision granting appellee, St. Vincent Infirmary’s, motion for summary judgment on appellant’s claim for wrongful discharge. On appeal, appellant contends that the trial court’s decision was based on an incorrect analysis and misapplication of the public policy exception to the at-will-employment doctrine. We disagree and affirm.
Appellant was hired by appellee in 1993. In May of 1994, he was made an account executive in appellee’s Life Line Program, which is a system designed to help elderly persons and others in obtaining assistance in the event of an emergency. Appellant’s duties included selling Life Line Program units throughout the state and insuring that the units were in good working condition. Appellee terminated appellant’s employment effective May 10, 1995.
Appellant subsequently brought this suit against appellee for wrongful discharge. By his complaint, appellant did not dispute that his contract of employment was terminable at will, but he contended that he was wrongfully discharged for a reason that was contrary to public policy. He alleged that he was fired after he had threatened to inform the Arkansas Department of Human Services [ hereinafter “DHS”] of problems with the Life Line Program and of appellee’s failure to take corrective action. Appel-lee denied that there were any problems with the Life Line Program and denied that appellant’s threat of exposure played any role in its decision to terminate appellant. Appellee later moved for summary judgment contending that, even if this had been a reason for appellant’s termination, the firing of appellant did not offend public policy. Appellee maintained that its relationship with DHS was contractual and that appellant had failed to identify any specific constitutional or statutory provision that it had allegedly violated in its operation of the Life Line Program. The trial court granted appellee’s motion for summary judgment, ruling that appellant had not shown that appellee’s business practices violated any law or other defined public policy of this state. On appeal, appellant contends that the trial court erred in its interpretation and application of the public policy exception.
Summary judgment should be granted only when a review of the pleadings, depositions and other filings reveals that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Johnson v. Harrywell, 47 Ark. App. 61, 885 S.W.2d 25 (1994). We review ah proof in the light most favorable to the party opposing the motion, resolving all doubts and inferences against the moving party. Equity Fire & Casualty Co. v. Needham, 323 Ark. 22, 912 S.W.2d 926 (1996). Where the operative facts are undisputed, this court simply determines on appeal whether the appellee was entitled to summary judgment as a matter of law. American States Ins. Co. v. Southern Guar. Ins. Co., 53 Ark. App. 84, 919 S.W.2d 221 (1996). While it would be for a jury to determine the reason for the plaintiff s termination, the question of whether the reason asserted by the plaintiff was in violation of a well-established public policy of the state is ordinarily a question of law for the court. Koenighan v. Schilling Motors, Inc., 35 Ark. 94, 811 S.W.2d 342 (1991). For the purposes of this opinion, we will assume that appellant was fired for the reason asserted by him in his complaint.
It is the general rule that when the term of employment in a contract is left to the discretion of either party, or left indefinite, or terminable by either party, either party may put an end to the relationship at will and without cause. City of Green Forest v. Morse, 316 Ark. 540, 873 S.W.2d 155 (1994). Generally, employment is held only by mutual consent, and at common law the right of the employer to terminate the employment is unconditional and absolute. Marine Services Unlimted, Inc. v. Rakes, 323 Ark. 757, 918 S.W.2d 132 (1996).
In Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), the supreme court recognized the public policy exception to the at-will-employment doctrine. The court said:
Following our lead in Counce, supra, we acknowledge that an employer should not have an absolute and unfettered right to terminate an employee for an act done for the good of the public. Therefore, we hold that an at-will employee has a cause of action for wrongful discharge if he or she is fired in violation of a well-established public policy of the state. This is a limited exception to the employment-at-will doctrine. It is not meant to protect merely proprietary interests. Wagner, supra.
Id. at 249, 743 S.W.2d at 385. In Sterling, the employee alleged that he was fired because the employer believed that he had reported its use of false information in contract negotiations with a federal agency. It was said that providing false and inaccurate data to the agency was a violation of federal law for which the employer had paid $1,075,000 in a settlement with the government. In finding that appellee had a claim for wrongful discharge, the court noted that a state’s public policy is found in its constitution and statutes, and it referred to Ark. Code Ann. § 5-53-112 (Repl. 1993), which provides:
(1) A person commits the offense of retaliation against a witness, informant, or juror if he harms or threatens to harm another by any unlawful act in retaliation for anything lawfully done in the capacity of witness, informant, or juror.
(2) Retaliation against witnesses, informants, or jurors is a class A misdemeanor.
The court concluded that this statute illustrated that there was an established public policy favoring citizen informants and crime fighters and that the public policy of this state is contravened if an employer discharges an employee for reporting a violation of state or federal law.
The appellant here contends, citing the statute referred to in Sterling, supra, that public policy favors whistle blowers, and argues that, like the employee in Sterling, his claim comes within the ambit of the public policy exception because he was fired in retaliation for threatening to report problems with the Life Line Program to DHS. We agree, however, with the trial court that the termination of an employee who divulges or threatens to expose mere deficiencies in an employer’s performance of its contractual obligations does not offend public policy. As was said by the court in Sterling, the public policy exception is limited and narrow in scope. We thus cannot conclude that it embraces the r.laim of an employee who is fired for threatening to undermine an employer’s private, contractual relationships. To be sure, appellee provides what can be considered a vital service to the customers who subscribe to its program. However, appellant did not, and has not, represented that appellee was violating any law in its operation of the program. As found by the trial court, this distinguishes this case from that of Sterling. We hold that the trial court did not err in ruling that appellant did not have a claim for wrongful discharge and that appellee was entitled to judgment as a matter of law.
Affirmed.
Cooper and Meads, JJ., agree. | [
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Judith Rogers, Judge.
The appellant, Paul Rankin, was charged by information with the offense of first-degree murder in connection with the shooting death of Charlotte Geiger. After a jury trial, appellant was found guilty of second-degree murder and was sentenced to a term of twenty years in prison. Appellant raises four issues for reversal of his conviction. He argues that: (1) the trial court erred in denying his motion for a directed verdict; (2) the trial court erred in denying his motion to suppress evidence seized in a warrantless search; (3) the trial court erred in allowing irrelevant and prejudicial testimony; and (4) the trial court erred in denying appellant’s motion for a recess to allow an expert witness to testify. We find merit in the last issue raised. Consequently, we reverse and remand for a new trial.
Charlotte Geiger, the victim, owned a duplex at 701 North 8th Street in Fort Smith. She lived in one apartment while the other was occupied by James Stevenson. Ms. Geiger also owned a residence at 715 North “G” Street, which was located behind the duplex. It was said that these homes were in a bad neighborhood and that Ms. Geiger was always careful about locking her door.
There was testimony that on February 1, 1993, appellant, Mr. Stevenson, and Charles Storey were helping Ms. Geiger make repairs to the “G” Street residence. Mr. Stevenson testified that appellant was intoxicated and that appellant and Ms. Geiger had argued about the way appellant was doing the work. When they finished late in the afternoon, Ms. Geiger went inside her home and Mr. Stevenson and appellant remained outside for a brief time talking. Mr. Stevenson later visited a friend at the bus station and returned to his apartment. At around 6:30, Mr. Stevenson left again to get a friend to come help him with repairs in his apartment. He said that he heard the sound of moaning coming from Ms. Geiger’s apartment when he left. Shortly after Mr. Stevenson and his friend returned, they heard a knock at the door. Mr. Stevenson opened the door to find Ms. Geiger, covered in blood, standing in the hallway separating their apartments. She was taken to the hospital where it was learned that she had been shot twice in the face. She died three days later without identifying her assailant. It was said that her wounds had been caused by .25 caliber bullets.
The investigating officers conducted a warrantless search of Ms. Geiger’s apartment after speaking with witnesses at the hospital. During the search, they discovered a large amount of blood on the bed, as well as on the floor, a telephone, and another piece of furniture. There were two shell casings at the foot of the bed and an empty holster was found sitting on a coffee table. There was testimony that appellant had acquired the holster with an X-Cam .25 caliber handgun in a trade with a friend for stereo equipment. There was also testimony that appellant had pawned the holster and gun on November 21, 1992, and that he had retrieved those items from the pawn shop the day of the murder. Despite extensive efforts to locate this weapon, the police were unable to find it.
Appellant was arrested on the morning of February 2, 1993, as he was walking toward the back door of the “G” Street residence. There were scratches and lacerations on his forehead and hands, and there appeared to be blood on his clothing. In an interview with the police, appellant told the officers that on the day of the murder he had gone to sleep in his bed after working on the house and that he had slept all night. He recalled that he had argued with Ms. Geiger, but he could not remember what had happened in the argument. When asked about his pistol, appellant gave differing accounts of its whereabouts. First, he said that it had been stolen, but he also told them that he had last seen it on a coffee table in Ms. Geiger’s apartment the previous day. The officers testified that throughout the interview appellant responded to questioning by saying that he had either blacked out and could not remember, or that he had no answers to their questions. For instance, when asked if he had shot Ms. Geiger, appellant responded, “I have no answer for that.” When asked to deny that he had shot her, appellant replied, “I have no answer for that as well.”
Appellant first contends that the trial court erred in denying his motion for a directed verdict. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Bradford v. State, 325 Ark. 278, 927 S.W.2d 329 (1996). In order to preserve this issue on appeal, a defendant must move for a directed verdict at the conclusion of the evidence presented by the prosecution and again at the close of the case; otherwise, any question pertaining to the sufficiency of the evidence to support a jury’s verdict is waived. Ark. R. Crim. P. 33.1. Here, appellant failed to make the required motion after the State had presented rebuttal testimony. Therefore, this issue is not preserved for appeal, and we do not consider it. Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995); Christian v. State, 318 Ark. 813, 889 S.W.2d 717 (1994).
As his second point on appeal, appellant argues that the trial court erred in denying his motion to suppress evidence seized in the search of Ms. Geiger’s apartment. The State contends, as was argued below, that appellant lacks standing to protest the search of Ms. Geiger’s home. In reviewing a trial court’s denial of a motion to suppress evidence, we make an independent determi nation based on the totality of the circumstances and reverse the trial court’s ruling only if it is clearly against the preponderance of the evidence. Phillips v. State, 53 Ark. App. 36, 918 S.W.2d 721 (1996).
At the suppression hearing, evidence was introduced revealing that Ms. Geiger was the sole owner of the duplex at 701 North 8th Street. It was also disclosed that the relationship between appellant and Ms. Geiger was that of “boyfriend and girlfriend” and that appellant had stayed at Ms. Geiger’s apartment. Prescriptions and medicine bottles bearing appellant’s name were found in the apartment. On the rights form appellant executed before being interviewed by the police, he recorded his address as 701 North 8th Street.
Evidence was also admitted showing that appellant had listed his address as 715 North “G” Street on transaction records that appellant had filled out and signed at a pawn shop on November 21, 1992, and February 1, 1993. Also, a computer printout from the pawn shop was introduced showing appellant’s pawning activity over a three-month period. The printout shows appellant’s address as 715 North “G” Street. The trial court also heard the testimony of the officers who had interviewed appellant. One officer testified that appellant said that “he remembered working at his house” on the day of the murder and that afterwards he laid down on the bed in his room and went to sleep. The officer stated that he had not seen appellant asleep in Ms. Geiger’s apartment at the time of the search, and he agreed that, if appellant had been telling the truth, he was sleeping in a room in another residence.
The protection of the Fourth Amendment guarantees the right of people to be secure against unreasonable searches and seizures. Bernal v. State, 48 Ark. App. 175, 892 S.W.2d 537 (1995). The rights secured by the Fourth Amendment are personal in nature. Littlepage v. State, 324 Ark. 361, 863 S.W.2d 276 (1993). Thus, a defendant must have standing before he can challenge a search on Fourth Amendment grounds. Bernal v. State, supra. A person’s Fourth Amendment rights are not violated by the introduction of damaging evidence secured by a search of a third person’s premises or property. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). The pertinent inquiry regarding standing to challenge a search is whether a defendant manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. McCoy v. State, 325 Ark. 155, 925 S.W.2d 391 (1996). It is well settled that a proponent of a motion to suppress bears the burden of establishing that his Fourth Amendment rights have been violated. Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995). This court will not reach the constitutionality of a search where a defendant has failed to show that he had a legitimate expectation of privacy in the object of the search. Littlepage v. State, supra.
Based on the foregoing evidence introduced at the hearing, we hold that appellant failed to establish a legitimate expectation of privacy in Ms. Geiger’s residence. The evidence suggests that appellant lived in the house on “G” Street and that he may have occasionally stayed with Ms. Geiger in her apartment. However, the mere fact that he frequently stayed there does not in and of itself give rise to a reasonable expectation of privacy. Davasher v. State, supra. Appellant did not own the premises, and absent from the record is any indication that appellant maintained control over Ms. Geiger’s apartment. Id. We are aware of the Supreme Court’s opinion in Minnesota v. Olson, 459 U.S. 91 (1990), where the Court pronounced a perse rule that an accused’s status as an overnight guest is, alone, enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable. See also Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994). Even so, there was no showing that appellant had been an overnight guest at the time the search occurred. See Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994). Considering the totality of the circumstances, we cannot say that the trial court’s decision is clearly against the preponderance of the evidence.
Appellant next challenges the trial court’s ruling permitting the State to elicit testimony from Bruce Garner regarding a conversation he had with appellant. Over appellant’s objection, Mr. Garner testified that he, appellant, and John Murry were drinking beer one night three weeks before the murder. He said they were all fairly intoxicated and started talking about how easy it was to get away with committing crimes, especially the crime of murder. Mr. Garner testified that appellant commented that “all you really had to do was not let there be any witnesses, destroy the weapon, and whatever evidence there was, and just never admit to anything and you’d get away with it.” Garner added that, to get rid of the weapon, appellant said to “take the shortest route to the river and throw it in.” Appellant contends that this testimony was not relevant and that any probative value it may have had was outweighed by the danger of unfair prejudice.
Rule 401 of the Arkansas Rules of Evidence defines “relevant evidence” as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evidentiary matters regarding the admissibility of evidence are left to the sound discretion of the trial court and rulings in this regard will not be reversed absent an abuse of discretion. Harris v. State, 322 Ark. 167, 907 S.W.2d 729 (1995). Rule 403 allows a trial court to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. This weighing is also a matter left to the trial court’s sound discretion and will not be reversed absent a showing of manifest abuse. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996).
The statements attributed to appellant bear a close relation to the facts surrounding the murder. There were no witnesses; the murder weapon was never located; and the evidence demonstrated that appellant was evasive in his responses to questioning by the police. In this respect, the testimony is not unlike that at issue in Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993). There, the appellant was convicted of murdering his wife whose torso was found in a cooler floating in a lake. The court found no abuse of discretion when the trial court admitted the testimony of the appellant’s ex-wife, who testified that appellant had threatened to kill her and had told her that he would cut her body into pieces so that she would never be found. It was held that the testimony was admissible under Rule 404(b) to show intent, plan and identity. The conversation in this case was said to have occurred only three weeks before the murder. Given the distinct correlation between the statements made by appellant and the evidence presented at trial, we can find no abuse of discretion in the trial court’s rulings that the testimony was relevant and that its probative value exceeded any danger of unfair prejudice.
Appellant’s remaining argument is that the trial court erred in denying his request for a brief recess to allow the testimony of an expert witness who was in transit. We agree.
Appellant’s clothing, which appeared to be bloodstained, was sent to the State Crime Lab for testing. Edward Vollman, a serol-ogist there, testified at trial on behalf of the defense that there was human blood on appellant’s shirt. He stated that he had performed other tests on the shirt but that the results were inconclusive. He could not determine the type of the blood because there was an insufficient amount of material for testing. He also identified human blood on appellant’s sweater. He could not state that the blood found on these articles of clothing belonged to either appellant or Ms. Geiger. At the direction of the Fort Smith Police Department, he submitted samples of what little blood remained on the clothes to the lab of the Federal Bureau of Investigation in Washington, D.C., for DNA testing.
After the State rested its case, appellant advised the court that in addition to other witnesses he intended to call a Mr. Dedmon who apparently was not in attendance. The deputy prosecuting attorney noted that it was his understanding that Mr. Dedmon was coming from Washington, D.C.; that he had made a great effort to be at trial; and that the State had no objection to any ruling the court might make regarding this witness. The prosecution also offered to enter into a stipulation, if necessary. At 9:48 a.m., appellant’s counsel informed the court that Mr. Dedmon had not yet arrived, and he requested a brief recess. The court remarked that the testimony of this witness would be cumulative. However, the deputy prosecutor advised the court that the DNA testing revealed that the identifiable blood from the samples came from the appellant, and not Ms. Geiger. The court then stated its preference that the parties agree to a stipulation of the witness’s testimony rather than cause a delay of trial. Ten minutes later, appellant’s counsel stated that Mr. Dedmon’s plane was on time and was due to arrive at 11:00 a.m., and he again moved for a continuance. The trial court denied the motion after counsel eschewed the prosecution’s offer to stipulate the witness’s proposed testimony. Mr. Dedmon’s report was admitted into evidence, and appellant made a proffer of Mr. Dedmon’s testimony that the blood on appellant’s shirt was not that of the victim, but that it had characteristics of appellant’s blood.
At 11:40 a.m., the State had presented testimony in rebuttal, the jury had been instructed, and the attorneys had made their closing arguments. The court sent the jury to lunch for an hour before beginning its deliberations. At 11:50, appellant’s counsel informed the court that Mr. Dedmon had arrived and was in the courtroom. Counsel asked the court to either permit the witness to testify or grant a mistrial. The trial court declined to reconsider its ruling.
It is well settled that a motion for a continuance is addressed to the sound discretion of the trial court, and a decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Wilson v. State, 320 Ark. 142, 895 S.W.2d 524 (1995). The appellant bears the burden of proving that the trial court’s denial of a motion for continuance was an abuse of discretion, and that burden entails a showing of prejudice. Id.
Motions for continuance are governed in part by Rule 27.3 of the Arkansas Rules of Criminal Procedure, which provides:
The court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.
The supreme court has outlined several factors to be considered by a trial court in deciding a continuance motion:
(1) the diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the attendance of the witness in the event of a postponement; and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true.
Hill v. State, 321 Ark. 354, 902 S.W.2d 229 (1995).
Here, the appellant was accused of first-degree murder. The case mounted by the State was built entirely on circumstantial evidence. The State elicited testimony concerning the copious amount of blood on the victim and the furnishings in her apartment. It was also stressed that appellant’s clothes had bloodstains on them at the time of his arrest. It was thus crucial for the defense to dispel any notion that the victim was the source of this blood. We are also in agreement with appellant that under these circumstances a bare stipulation is not a genuine substitute for the live testimony of a witness who is prepared to give pivotal testimony. In sum, we cannot say that no prejudice resulted from the trial court’s ruling. We also perceive no lack of diligence on the part of appellant, and the delay requested was only for a short period of time. We thus conclude that the trial court abused its discretion by refusing appellant’s request for a brief recess.
We are not unmindful of the State’s contention that appellant failed to meet the statutory requirement of filing an affidavit showing what facts the affiant believes the witness will prove and that the affiant believes these facts to be true. The supreme court has consistently interpreted Ark. Code Ann. § 16-63-402(a) (1987) as mandating an affidavit to justify a continuance due to a missing witness when the State objects to the continuance. Wilson v. State, supra. Here, however, the State did not object to a continuance; therefore, appellant’s failure to submit an affidavit is not fatal to his argument.
We need also mention appellant’s argument that the trial court’s ruling denied him the right to call witnesses as guaranteed by the Sixth Amendment. Since we have found error in the trial court’s decision on other grounds, we do not consider the merits of appellant’s constitutional argument. Foreman v. State, 321 Ark. 167, 901 S.W.2d 802 (1995).
Reversed and remanded.
Pittman and Crabtree, JJ., agree. | [
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Sam Bird, Judge.
Plaintiffs, Sylvester Holloway and Donnell Holloway, appeal from a decision of the Pulaski County Circuit Court granting a motion to dismiss their complaint for lack of venue pursuant to Ark. R. Civ. P. 12(b)(3). The Holloways are the owners, operators, and officers of Two Brothers Farm, Inc., a corporation licensed under Arkansas law and located in Prairie County, which is also the residence of the Holloways. The appellants brought suit in Pulaski County Circuit Court against Rice-land Foods, Inc., an agricultural cooperative association created under Ark. Code Ann. §§ 2-2-101 through 249 (Repl. 1996), which has its main office in Arkansas County and a branch office in Pulaski County. Two Brothers alleged breach of contract, intentional interference with contractual relations and business expectancies, race discrimination, and unfair trade practices.
Two Brothers argues that venue is proper in Pulaski County because Riceland is a corporation or at least an association; therefore, the venue provision under Ark. Code Ann. § 16-60-105 (1987) applies; and that since this provision applies, venue is appropriate in any county in which the “person, firm, copartnership, or association maintains any office, branch office, suboffice or place of business.” However, Riceland argues that venue is improper in Pulaski County because Riceland is an agricultural cooperative association; therefore, none of the specific venue provisions apply. Riceland argues that it is not a corporation or an association and venue would be established under Ark. Code Ann. § 16-60-116 (1987), which is a general venue provision stating that if other venue provisions are not applicable, then venue is proper in the county in which the defendant resides or is summoned. Therefore, appellee argues venue would be proper only in Arkansas County, its principal place of business.
A hearing was conducted on March 1, 1996, and the judge granted appellee’s motion to dismiss because “[n]one of the alleged causes of action are addressed in any of the specific statutory venue provisions codified in ACA 16-16-101 [sic] to - 115. . . . The Arkansas Supreme Court has said repeatedly that its underlying policy is to fix venue in the county of defendants’ residence unless there is a statutory exception.” We reverse and remand for further proceedings.
An appellate court will not reverse a court’s findings of fact unless they are clearly ■ against the preponderance of the evidence, Ark. R. Civ. P. 52(a); however, whether venue is appropriate in a particular county is a matter of law. In this case, the court erred in finding that venue was not appropriate in Pulaski County.
The appellants argue that venue is appropriate in Pulaski County, and they cite Ark. Code Ann. § 16-60-105, which reads:
An action other than those mentioned in §§ 16-60-101, 16-60-102, 16-60-106 - 16-60-108, 16-60-110, against a person, firm, copartnership, or association engaged in business in this state which has or maintains more than one (1) office or place of business in this state, may be brought in any county in which the person, firm, copartnership or association has or maintains any office, branch office, suboffice, or place of business, and service of process upon an agent of any person, firm, copartnership, or association at any such office, branch office, suboffice, or place of business shall be service upon such person, firm, copartnership, or association.
A person includes a corporation. Ark. Code Ann. § 16-55-102(11) (1987).
Appellants argue that Pulaski County is an appropriate venue in this action against Riceland because Riceland is either an association or a corporation. Even under prior law, a corporation or an association may be sued in the county in which it has its principal place of business, the county where its chief executive officer resides, or the county where it has any branch offices. Duncan Lumber Co. v. Blalock, 171 Ark. 397, 284 S.W. 15 (1926), overruled on other grounds, Anheuser-Busch, Inc. v. Manion, 193 Ark. 405, 100 S.W.2d 672 (1937).
The legislature enacted Ark. Code Ann. § 16-60-105 for the purpose of allowing plaintiffs to sue any of the entities listed in that section in either the county in which its principal place of business is located or in a county in which one of the branches is located. The preamble to Act 74 of 1935, which is now section 16-60-105, reads:
WHEREAS, large and numerous business enterprises of various kinds are being operated in the State of Arkansas by individuals, firms, co-partnerships and association of persons and under the law as it now exists the venue for suits against them is fixed in the county of their residence or where such person or member of the firm, co-partnership or association may be found, and in many instances this works to the disadvantage of those who deal with such person, firm, co-partnership or association by requiring the person so desiring to sue to go to the place of residence of such person, firm, co-partnership or association and it is the purpose of this Act to relieve against this situation.
See Zolper v. AT&T Info. Systems, Inc., 289 Ark. 27, 709 S.W.2d 74 (1986). In Zolper, the court considered the question of whether a corporation may be sued only in the county of its principal place of business or whether it may be sued in a county in which one of its branch offices is located. The court quoted the preamble of Act 74 and further wrote, “The Legislature clearly intended that when a business enterprise, regardless of its form, maintains an office or place of business in counties other than its principal place of business, the business enterprise should be subject to the venue of those other counties.” Zolper, 289 Ark. at 30, 709 S.W.2d at 76.
However, appellee argues that neither the statute nor its purpose applies to Riceland because it is not a corporation, but an agricultural cooperative association, a distinct legal entity created by statute, which is codified at Ark. Code Ann. § 2-2-101 through 249 (Repl. 1996). Therefore, the appellee cites the general rule that a defendant should be sued in the county of its residence, unless there is a statutory exception, Atkins Pickle v. Burrough-Uerling-Brasuell, 275 Ark. 135, 628 S.W.2d 9 (1982).
We do not find appellee’s arguments persuasive. First, Riceland is a business enterprise, as described in Zolper. Second, an agricultural cooperative association is considered a unique form of a corporation “and courts have traditionally applied general corporate law principles to cooperative issues.” Mary Elizabeth Matthews, Corporate Statutes — Which One Applies?, 13 U.A.L.R.L.J. 69, 83-84 (1990). And finally, Ark. Code Ann. § 2-2-428 (Repl. 1996) provides that general corporation laws shall apply to the associations organized under subchapter 2 of Title Two, which sets out the requirements for an agricultural cooperative association. Therefore, corporation laws apply to agricultural cooperative associations, and venue is proper in either the county in which the association’s principal place of business is located or in the county in which one of its branch offices is located.
Appellee also argues venue was improper because the case has no relationship to Pulaski County; that the acts alleged to have been committed occurred in Arkansas County and not Pulaski County; and that most, if not all, of the documents, witnesses, and records are located in Arkansas County. For this argument, the appellee cites Fraser Bros. v. Darragh Co., 316 Ark. 297, 871 S.W.2d 367 (1994), which held that if the plaintiff has failed to allege that the defendant has its principal office in Woodruff County, is situated there, or that its chief executive officer resides in the county, then the plaintiff has failed to establish venue and a motion to dismiss for lack of venue should be granted. However, in the case at bar, the plaintiffs alleged that Riceland has a branch office in Pulaski County and argued that some witnesses will be coming from Russellville, which is closer to Pulaski County than it is to Arkansas County; and that both parties’ attorneys are located in Pulaski County.
Because an agricultural cooperative association is governed by general corporation laws, venue for an agricultural cooperative association may be established under Ark. Code Ann. §16-60-105; therefore, Riceland may be sued in either the county in which its principal place of business is located or in the county in which it maintains a branch office. Therefore, the court erred when it granted appellee’s motion to dismiss for lack of venue. The order granting the motion to dismiss is reversed, and this case is remanded to the circuit court for further proceedings.
Reversed and remanded.
Jennings and Griffen, JJ., agree. | [
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Andrbe Layton Roaf, Judge.
Appellant Carl Ledell Penn was tried in a bench trial on a three-count indictment for possession of cocaine with intent to deliver, possession of drug paraphernalia, and fleeing. He moved for directed verdict on all counts at the conclusion of the State’s case. The trial judge, after addressing only the drug-possession count, granted the motion for directed verdict and announced that the case was dismissed. After a recess, and after another case had been called, the trial judge advised counsel for Penn and the State that he had failed to address the drug paraphernalia and fleeing counts, denied the directed-verdict motion as to these counts, and ultimately found Penn guilty. Penn asserts on appeal that resumption of the proceedings after dismissal of the case violated his right against double jeopardy. We agree, and reverse and dismiss.
At the close of the State’s evidence in his bench trial, Penn moved for a directed verdict on all three counts, articulating separate grounds for each offense. Regarding count one, possession of a controlled substance with intent to deliver, Penn argued that the State failed to prove possession, that the substance was cocaine, and that he planned to sell it. Regarding count two, possession of drug paraphernalia, Penn argued that the State failed to prove that the one-inch-square plastic ziplock baggies that were introduced into evidence were actually drug paraphernalia, because they were never analyzed for drug residue, and that the State failed to prove that he actually possessed them. Regarding count three, misdemeanor fleeing, Penn argued that the State failed to prove that he unlawfully fled from a Little Rock police officer whom he knew to be an officer and that he knew that his immediate arrest or detention was being attempted.
After listening to the State’s arguments against the motion, the court stated, “I’m going to grant the motion for a directed verdict,” because the State failed to prove that Penn possessed a usable amount of cocaine. The trial judge then stated, “I grant the defendant’s motion. This case is dismissed.” The State voiced no objections. The judge then ordered the controlled substance destroyed and declared a fifteen-minute recess.
When the judge returned after the recess, he called the next case. However, the judge later interrupted these proceedings and asked the counsel from Penn’s case to approach; he stated that he had failed to address the fleeing and drug paraphernalia charges against Penn, and told counsel that he had instructed that Penn not be transported back to the county jail and that he be brought back to the courtroom. The judge then completed the unrelated proceedings and went back on the record in Penn’s case.
The judge announced that in his haste to get some aspirin for a headache, he failed to address the other two counts included in Penn’s motion for a directed verdict, and that he intended to finish his response to the motion. The judge stated that, in granting the motion for the directed verdict, he had only addressed the charge of possession of cocaine with intent to deliver, and that he “misspoke” when he said the case was dismissed. The judge also noted that the dismissal had occurred less than an hour earlier.
Penn objected, citing case authority that proceeding with the trial would violate the constitutional prohibition against double jeopardy. The court, after reading the case, found it unpersuasive. Penn did not put on a case, but renewed his motion for a directed verdict. The motion was denied, and Penn was found guilty of possession of drug paraphernalia and fleeing. He later received a five-year sentence.
Penn’s sole argument on appeal is that the trial court erred by finding him guilty of two counts of the information after previously dismissing the case. Penn argues that the trial judge’s decision to deny a directed verdict on the drug paraphernalia and fleeing counts after he stated that the case was dismissed constituted double jeopardy. He contends that resuming the proceeding amounted to a reconsideration of an acquittal, and relies on Sanabria v. United States, 437 U.S. 54 (1978) (quoting Fong Foo v. United States, 369 U.S. 141 (1962)), as authority for the proposition that a verdict of acquittal may not be reversed without putting a defendant twice in jeopardy, even if the dismissal is “based upon an egregiously erroneous foundation.” Penn also urges this court to find analogous the situation in Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992), in which the supreme court found viola-tive of the prohibition against double jeopardy a trial judge’s reversal of his grant of a directed verdict on an aggravated robbery charge when he found that he had wrongly assumed that the State was required to prove as an element of the offense that property was actually taken.
The State urges us to accept the trial judge’s explanation for what transpired, that the judge misspoke and only intended to dismiss the drug possession charge. The State contends that giving the trial court the benefit of the doubt in this instance would be consistent with this court’s usual deference to the trial judge sitting as a trier of fact where, for example, we recognize the judge’s superior position to determine the credibility of witnesses and presume that the judge only considers competent evidence when deciding a case. Additionally, the State contends that Brooks v. State, supra, is not on point, because the instant case is not one where the judge changed his mind, but is simply a situation where he had not completed his ruling on the directed-verdict motions and made an unfortunate choice of words that did not communicate his true intent. The State notes, however, that if the judge had indeed changed his mind, Brooks would control, and the State would have to concede error.
Although we do not agree with the State’s characterization of the trial court’s actions in dismissing Penn’s case, we recognize that the authorities relied upon by Penn, Sanabria v. United States, supra, and Brooks v. State, supra, involved acquittals based on erroneous applications of law, and are, to this extent, distinguishable from the facts of Penn’s case.
In Sanabria, the trial court’s erroneous exclusion of evidence led him to grant the defendant’s motion to acquit because of lack of evidence. The government appealed, and the First Circuit Court of Appeals vacated the judgment of acquittal and remanded for a new trial. The Supreme Court reversed the court of appeals decision, holding that an acquittal for insufficient evidence, even if based on an erroneous evidentiary ruling, barred a second trial on the same offense, stating: “[tjhere is no exception permitting retrial once the defendant has been acquitted, no matter how ‘egregiously erroneous,’ ” the legal rulings leading to that judgment might be. 437 U.S. 54, 64.
In Brooks v. State, the circuit judge granted the defendant’s motion to dismiss a robbery charge, based on his misunderstanding that aggravated robbery required an actual theft of property, and later tried to correct his error by reinstating the case and submitting it to the jury. The supreme court reversed the robbery conviction holding that the trial court’s granting of the motion to dismiss constituted a judgment of acquittal, and that submission of the robbery charge to the jury constituted double jeopardy. 308 Ark. at 667-68, 827 S.W.2d at 123.
Clearly, the trial court’s dismissal of Penn’s case was not based upon an erroneous evidentiary ruling or a mistake of law. We have further been unable to find a case from this or any other jurisdiction which involves an acquittal under circumstances similar to the facts of this case. However, it is clear from the trial court’s statements and the ensuing events that Penn’s case was indeed dismissed, albeit erroneously, pursuant to Penn’s motion for directed verdict, and that the trial court attempted to correct the error by reopening the case after Penn had been removed from the courtroom, and the court had moved on to the next case.
The finality of a verdict of acquittal is the most fundamental aspect of double jeopardy jurisprudence. United States v. Martin Linen Supply Co., 430 U.S. 564 (1977). That verdict need not be unequivocal on every issue to operate against the State. As the Supreme Court stated in United States v. Jenkins, “Here there was a judgment discharging the defendant, although we cannot say with assurance whether it was, or was not, a resolution of the factual issues against the Government. But it is enough for purposes of the Double Jeopardy Clause.” 420 U.S. 358, 369-70 (1975).
Penn was tried and then acquitted when the trial court made its pronouncement, “Case dismissed.” Further proceedings could not and did not comport with the Constitution. Consequently, we hold that the Double Jeopardy Clause requires reversal of Penn’s convictions for possession of drug paraphernalia and fleeing.
Reversed and dismissed.
Griffen and Crabtree, JJ., agree. | [
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Olly Neal, Judge.
Appellant was employed as a laborer by Danco Construction Company on July 13, 1993, when he sustained injuries after being thrown approximately fifteen feet from a loader. Appellant was hospitalized for a week and received medical treatment from Dr. Fred Nagel. Dr. Nagel’s notes reflect that appellant initially made complaints of pain mostly in the sternum and right hip area. Appellees accepted compensability of appellant’s right hip condition and paid related medical and temporary total disability benefits. Appellant sought temporary total disability and medical benefits based upon his left hip condition, which eventually required a total hip replacement. Appellees controverted appellant’s entitlement to benefits for his left hip condition. After conducting a hearing on the compensability of appellant’s medical and temporary total disability benefits for the treatment of the left hip, the ALJ found that the July 13, 1993, compensable injury aggravated the appellant’s preexisting left hip condition so as to entitle him to payment of related medical and disability benefits. Appellees appealed to the Commission, which reversed the ALJ’s decision. Appellant argues that the Commission’s decision is not supported by substantial evidence. We find substantial evidence in support of the Commission’s order and affirm.
Where the sufficiency of the evidence is challenged on appeal in a workers’ compensation case, we view the evidence in the light most favorable to the findings of the Commission and will affirm if those findings are supported by substantial evidence. City of Ft. Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. 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. Welch’s Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 293 (1992).
Appellant contends that the condition of his left hip is the result of an aggravation of a preexisting condition caused by the compensable injury that occurred July 13, 1993. Arkansas Code Annotated § 11-9-102(5)(F)(ii)(b) (Repl. 1993), provides:
If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.
Major cause means more than fifty percent of the cause. Ark. Code Ann. § ll-9-102(14)(A) (Repl. 1993). Further, a finding of major cause shall be established according to the preponderance of the evidence. Ark. Code Ann. § ll-9-102(14)(B) (Repl. 1993).
At the hearing before the ALJ, appellant testified that he was injured at work in 1986, when a ditch caved in on him, and that he had limped off and on as a result of injuries sustained in the accident over the years. Appellant then testified that he had never experienced problems with his hip prior to July 13, 1993. However, a medical report written by Dr. DeLoach on December 22, 1992, detailed appellant’s complaints of left thigh pain and some left lower back pain, and also noted that appellant did not relate a specific history of injuring himself at work. Dr. DeLoach also saw appellant on January 8, 1993, and January 25, 1993, and on both occasions noted appellant’s complaints of left leg pain.
Appellant was referred to Dr. Jordan for treatment relative to the complaints of back and left leg pain. Dr. Jordan examined appellant on January 28, 1993, and suggested that hip films be made. Dr. Jordan noted that he was certain that a great deal of appellant’s problems were coming from hip joint disease rather than lumbar spine problems.
Upon admission to the hospital after being injured on July 13, 1993, appellant complained of pain across his anterior chest, lower back, and in the right hip. X-rays indicated advanced degenerative changes in the left acetabulum and hip, and swelling over the right buttock. In notes dated July 23, and July 30, 1993, Dr. Nagel noted appellant’s complaints of pain over the right buttock, sternum and the right hip. Appellant did not complain of pain to the left hip until September 3, 1993, approximately seven weeks after the July 13, 1993, injury.
Appellant points to the testimony of Drs. Pearce and Nagel that the lapse of time between the compensable injury and the first complaint of left hip pain could be explained by the fact that patients with multiple injuries might not become aware of an injury until others have resolved. We note that the Commission has the duty of weighing medical evidence as it does any other evidence, and the resolution of conflicting evidence is a question of fact for the Commission. Public Employee Claims Div. v. Tiner, 37 Ark. App. 23, 822 S.W.2d 400 (1992). Further, the credibility of witnesses and the weight to be given their testimony are matters exclusively within the province of the Commission. Shaw v. Commercial Refrigeration, 36 Ark. App. 76, 818 S.W.2d 589 (1991).
Although there was a probable explanation offered to explain appellant’s delay in reporting left hip pain, it is the province of the Commission to determine the weight to be assigned all evidence. The Commission noted that appellant testified he had never had problems with his left hip prior to the compensable injury, although the medical evidence proved otherwise. The Commission determined that appellant’s credibility was diminished as a result of his testimony which was contrary to numerous medical reports generated.
We find substantial evidence to support the Commission’s determination that the July 13, 1993, compensable injury did not aggravate appellant’s preexisting left hip condition and was not the major cause of the resulting left hip condition.
Affirmed.
Pittman, Jennings, and Bird, JJ., agree.
Griffen and Roaf, JJ., dissent. | [
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Margaret Meads, Judge.
Vaughn Dale Kirkendoll was convicted by a jury of stalking in the second degree. He was sentenced by the court to three years’ incarceration in the Arkansas Department of Correction. Appellant argues on appeal that he did not intelligently and voluntarily waive his right to counsel and was therefore deprived of counsel, and that the trial court imposed an illegal sentence. We disagree and affirm.
The charge of stalking in the second degree was brought against appellant in response to his threats and actions toward his ex-wife, Kathi Kirkendoll. A person commits the offense of stalking in the second degree, a Class C felony, if he “purposely engages in a course of conduct that harasses another person and makes a terroristic threat with the intent of placing that person in imminent fear of death or serious bodily injury.” Ark. Code Ann. § 5-71-229(b)(l) (Supp. 1995). “Course of conduct” is defined as “a pattern of conduct composed of two (2) or more acts separated by at least thirty-six (36) hours, but occurring within one (1) year.” Ark. Code Ann. § 5-71-229(d)(l)(A) (Supp. 1995). The term “harasses” employed in § 5-71-229(b)(1) means acts of harassment as defined in Ark. Code Ann. § 5-71-208(a) (Supp. 1995). Those parts of § 5-71-208 relevant here define harassment as follows:
(a) A person commits the offense of harassment if, with purpose to harass, annoy, or alarm another person, without good cause, he:
* * *
(3) FoEows a person in or about a public place; or
* * #
(5) Engages in conduct or repeatedly commits acts that alarm or seriously annoy another person and that serve no legitimate purpose; or
(6) Places the person under surveiflance by remaining present outside his or her school, place of employment, vehicle, other place occupied by the person, or residence, other than the residence of the defendant, for no purpose other than to harass, alarm, or annoy.
Ark. Code Ann. § 5-71-208(a) (Supp. 1995). See also Wesson v. State, 320 Ark. 380, 896 S.W.2d 874 (1995).
After the parties separated in January 1995, Ms. Kirkendoll obtained a restraining order against her husband. However, he continually violated this order by following her and going to her home and to her place of employment. In April 1995, appellant told her that it did not matter where she hid from him, that he could just come into church on a Sunday morning and blow her away. The next day, appellant appeared at the church where Ms. Kirkendoll and their daughters were attending a spaghetti supper. She notified the police, but appellant left before any police officers arrived.
Ms. Kirkendoll testified that on July 22, she and her daughters went to the movie theater, and appellant entered the theater and sat down behind them. He did not speak to Ms. Kirkendoll, but he spoke to their older daughter. Ms. Kirkendoll stated that his conduct scared her because she did not know what he planned to do. She saw him again six days later at McDonald’s, when he called their children outside to talk to them. She said that she was afraid he would try to take the children.
Ms. Kirkendoll further testified that on August 1, appellant followed her to a funeral, and on August 7, she found a note on her car from appellant stating that he was not going to be a weekend dad. On August 13, appellant called Ms. Kirkendoll and told her that she had taken the girls away from him and that he would “get her for that.” On August 14, Robert Williams, a deacon in her church, told her that appellant had said that if he killed her [Ms. Kirkendoll] that it would be “okay in the eyes of God.” At that point, Ms. Kirkendoll decided to press charges against appellant.
At appellant’s first appearance on August 31, 1995, the following colloquy ensued:
TRIAL COURT: All right, you have the right to remain silent. Anything you say can and will probably [be] used against you in court. You have a right to have an attorney present with you during any questioning. If you can’t afford an attorney, you need to fill out an affidavit and one will be appointed to represent you if you qualify at no charge to you. You have a right to answer any questions if you want to but at any time you decide you don’t want to answer any more questions, all you have to do is say, I don’t want to answer any more questions or I would like to have my attorney present and the questioning will stop. Do you understand?
KIRKENDOLL: (Nodding head up and down.)
* * *
TRIAL COURT: We are going to set your arraignment on the 14th. If you are released on bond, you need to be here that day with your attorney. If you can’t afford an attorney, you need to fill out the affidavit as I said and someone will be appointed to represent you at your arraignment, or earlier if it’s necessary.
At appellant’s arraignment on September 14, 1995, the court again questioned appellant about whether he had retained an attorney:
TRIAL COURT: Do you have an attorney?
KIRKENDOLL: No, sir.
TRIAL COURT: Are you going to hire an attorney?
KIRKENDOLL: No, sir.
TRIAL COURT: Have you filed an affidavit for a court-appointed attorney?
KIRKENDOLL: No, sir.
TRIAL COURT: Are you going to proceed pro se, which means you are going to be your own lawyer?
KIRKENDOLL: Yes, sir.
* * *
TRIAL COURT: You are here today for an arraignment. This is the time for you to enter your plea. Since you are proceeding without counsel, I’m going to advise you of your rights. You have the right to remain silent throughout these proceedings and even in the trial. You have the right to have an attorney present if you want to have one. If you choose not to, that’s your choosing. You have a right to cross-examine any of the witnesses that the State would put on the stand against you. You have the right to call any witnesses on your behalf if you wish. And, if you can’t get those witnesses here voluntarily, they could be subpoenaed at the expense of the State. Do you understand that?
KIRKENDOLL: Yes, sir.
TRIAL COURT: You have the right to an appeal. If the decision of the Court or the jury is adverse to what you’d like for it to be, you have the right to a jury trial which will be a speedy trial. The jury would have [to] vote unanimously to find you guilty. Do you understand all those rights?
KIRKENDOLL: Yes.
TRIAL COURT: You are charged with stalking in the second degree. It is alleged that on the 6th day of April, 1995, through the 14th day of August, 1995, you purposely engaged in a course of conduct that harassed another person and made a terroristic threat with the intent of placing that person in imminent fear of death or serious bodily injury of her immediate family. This is a Class C felony. How do you plead?
KIRKENDOLL: Not guilty.
TRIAL COURT: I am going to require the State to provide discovery by November the 1st and you to provide discovery by November the 27th.
KIRKENDOLL: What do you mean by discovery?
TRIAL COURT: Discovery is where you will give to them a list of all the witnesses that you intend to call and any defenses that you may have. They will be required to do the same to you, okay? They will also be required to give you a recommendation if they intend to make one, what could be a plea agreement. If you want to accept that, then you can do that on the date that’s set for the intent date which is November the 27th. You need to be here on each of these days that are set — set out on this order. Read this order very carefully because it tells you what you’re supposed to do.
The issue of appellant’s lack of counsel was addressed a third time at the pretrial hearing on January 8, 1996:
TRIAL COURT: Mr. Kirkendoll, your case is set for trial in two weeks, and you ■ — ■
CASE COORDINATOR: It’s January 23rd.
TRIAL COURT: January 23rd. And you’ve elected up to this point to have no attorney?
KIRKENDOLL: Yes, sir.
TRIAL COURT: Is that still the way you want to proceed? KIRKENDOLL: Yes, sir.
TRIAL COURT: All right.
DEPUTY PROSECUTOR: Your Honor, would the Court like to inquire of Mr. Kirkendoll’s ability to defend himself?
TRIAL COURT: Not at this point. I’ll do it when we get closer to trial. Have you received discovery from the State?
KIRKENDOLL: No, sir.
TRIAL COURT: Mr. James, would you make that available to him today?
DEPUTY PROSECUTOR: I did, but he just didn’t want to take it the last court date.
KIRKENDOLL: What discovery was that, sir?
TRIAL COURT: The information that they have regarding the case, who their witnesses will be, what they intend to prove, et cetera. Have you —
KIPJECENDOLL: Where do I get this information?
TRIAL COURT: From Mr. James.
DEPUTY PROSECUTOR: I handed it to him in court last time and he handed it back to me and said he didn’t want it.
On January 25, 1996, the day of appellant’s trial, the following exchange occurred prior to jury selection:
TRIAL COURT: I know that you have indicated that you want to go ahead and proceed without an attorney, but before I do that I want to make sure that you understand your rights.
KIRKENDOLL: Yes, sir.
TRIAL COURT: You know that you have the right to have an attorney representing you today?
KIRKENDOLL: Yes, sir.
TRIAL COURT: All right. Do you feel like you’re competent to represent yourself?
KIRKENDOLL: I feel like I’m a competent person, sir. I don’t know the law as what might forfeit in the courtroom.
TRIAL COURT: All right. What kind of education do you have?
KIRKENDOLL: I have a high school education.
TRIAL COURT: Have you participated in the criminal justice system before?
KIRKENDOLL: In no way.
TRIAL COURT: You ever watched a trial?
KIRKENDOLL: I’ve watched more today than I ever have.
TRIAL COURT: Have you read anything about the law in this case or —
KIRKENDOLL: No.
TRIAL COURT: Know anything about a trial other than what you’ve seen on television and what you’ve seen here today?
KIRKENDOLL: Not much, no.
TRIAL COURT: Well, why have you decided to go forward without an attorney?
KIRKENDOLL: I’m not guilty.
TRIAL COURT: All right. There are some things I need to tell you before we start — and I’m not doing this to frighten you or scare you or make you worry, but I want to make sure that you understand what you are looking at. This is a jury trial.
KIRKENDOLL: Yes, sir.
TRIAL COURT: You’ve asked for a jury trial.
KIRKENDOLL: Yes, sir.
TRIAL COURT: And there are — there are a lot of things that go on before a jury trial can begin. First thing will be the jury selection.
KIRKENDOLL: Yes, sir.
TRIAL COURT: I don’t know, were you here the other day during jury selection?
KIRKENDOLL: No, sir.
TRIAL COURT: All right. The offense —
KIRKENDOLL: If it’s all the same with you, sir, I would just as soon they picked the jury.
TRIAL COURT: They?
KIRKENDOLL: Yeah.
TRIAL COURT: Who?
KIRKENDOLL: I understand, you know, the two sides get together and pick the jury. I’ll just let the prosecution pick the jury-
TRIAL COURT: Okay. Let me go ahead and explain these things to you. The offense that you’re charged with is a felony. It is a Class C felony and I believe the range of punishment is from three to ten years and a fine of up to $10,000 dollars. Do you understand that?
KIRKENDOLL: Yeah. I didn’t know what the penalty was, but
TRIAL COURT: Okay. You understand that most people who go through this kind of trial have an attorney to represent them
KIRKENDOLL: Uh-huh.
TRIAL COURT: — because they need help. To you, having an attorney would be like me having a mechanic. If I tore into the engine in my car, I can guarantee you I wouldn’t go very far after I went down the road.
KIRKENDOLL: Me either, and I may not get very far.
TRIAL COURT: All right. A competent lawyer is knowledgeable in the law, knowledgeable in the procedures, knowledgeable in the rules of evidence, and in the technical issues that would come up before the Court in this case. Even if you’ve seen — seen some trials on television, even if you have some type of edu cation in the law, you may not know all the technicalities that are involved. Are you sure you want to represent yourself?
KIRKENDOLL: Your Honor, I gave 17 years to this woman, and if she wants to take three more from me, that’s fine, or even seven more, ten more, whatever.
TRIAL COURT: There are some other things I need to tell you, then. The Supreme Court has ruled that there — that you have the right to go into trial without a lawyer if that’s what you want to do. Okay. You have the constitutional right to a lawyer and I’ve explained that to you I think each time you’ve been here. Maybe not the last time, but I’ve tried to tell you that —
KIRKENDOLL: Yes, sir.
TRIAL COURT: — that you have a right to a lawyer. Now, when we’re out there, you can’t be relying on me to tell you what the law is. The Supreme Court says I can’t do that. I’m a referee. I can’t be the coach. You understand?
KIRKENDOLL: Yeah.
TRIAL COURT: You’re going to be held to about the same responsibility that you would if [you] had a lawyer there. Okay. If you get frustrated and upset, I may exercise my discretion and take a break, but I can’t coach you. I can’t tell you what you need to do. If, for any reason, I find that you conduct yourself in a manner that is not civil or one that I find to be contemptuous, you may find yourself in jail for that. Do you understand that you will be held to the same standard as if Mr. James or Mr. Stephens went out there and said something inappropriate to the jury, or to a witness, or to me? They might find themselves in the jail as well. You understand that?
KIRKENDOLL: Yes, sir.
TRIAL COURT: All right. I’m going to allow you to proceed; however, I am going to ask Mr. Stephens, who is the public defender here, to sit with you at the table. If you have any questions about what’s going on, you can ask him. He won’t be standing up and making objections. He won’t be conducting the voir dire. He won’t be doing the questioning. You will be doing that by yourself.
Appellant allowed the State to select the jurors. During the trial, appellant’s ex-wife was allowed to testify regarding incidents predating the parties’ divorce, which were irrelevant to the current stalking charge; however, appellant did not object. Appellant allowed his minister to testify concerning matters about which appellant had spoken with him in confidence. When the State rested, the public defender, who the judge had asked to sit at the table with appellant, instructed him to make a motion for a directed verdict, which was denied.
The Sixth and Fourteenth Amendments to the United States Constitution guarantee that any person brought to trial in any state or federal court must be afforded the fundamental right to assistance of counsel before that person can be validly convicted and punished by imprisonment. Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996). An accused person has a constitutional right to represent himself and make a voluntary, knowing, and intelligent waiver of his constitutional right to the assistance of counsel in his defense; however, every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Id. Certain requirements must be met before a trial court can find that an accused has knowingly and intelligently waived counsel and allow the accused to proceed pro se:
A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted; (2) there has been a knowing and intelligent waiver of the right to counsel; and (3) the defendant has not engaged in conduct which would prevent the fair and orderly disposition of the issues.
Brooks v. State, 36 Ark. App. 40, 44, 819 S.W.2d 288, 290 (1991) (citation omitted).
The accused must have full knowledge and adequate warning concerning his rights and a clear intent to relinquish them before waiver can be found. Id. Waiver of the right to counsel presupposes that the court has discharged its duty of advising appellant of his right to counsel, questioning him as to his ability to hire independent counsel, and explaining the desirability of having assistance of counsel during the trial and the problems attending one representing himself, since a party appearing pro se is responsible for any mistakes he makes in the conduct of his trial and he receives no special consideration on appeal. Id. It is the State’s burden to show that an accused has voluntarily and intelligently waived his right to counsel. Oliver, supra; Brooks, supra.
In the present case, the trial judge questioned appellant at each stage of the proceeding with regard to his desire to proceed pro se. The recited portions of the record indicate that the trial judge sufficiently questioned appellant about his desire to appear pro se and the consequences of defending himself. In fact, we believe that this trial judge went to greater lengths than were necessary to ensure that appellant had every possible opportunity to request the assistance of counsel.
The record does not indicate that appellant ever requested and was denied counsel. Quite to the contrary, the record is replete with dialogue between the trial judge and appellant in which the judge inquired as to appellant’s intent to employ counsel. Each time, appellant unequivocally stated that he would represent himself. Appellant never apprised the court that he was financially unable to hire an attorney; in fact, after being instructed that if he could not afford an attorney he could complete an affidavit and one would be appointed, appellant told the court that he would not complete the affidavit and that he intended to represent himself. From our review of the record, we determine that appellant knowingly and intelligently waived his right to counsel; therefore, his first argument must fail.
For his second point on appeal, appellant argues that his sentence was unauthorized by statute and therefore illegal. Appellant’s point is without merit. Fie was convicted of stalking in the second degree, a Class C felony, which is punishable by a sentence of not less than three years nor more than ten years. See Ark. Code Ann. §§ 5-71-229(b)(3) (Supp. 1995) and 5-4-401(a)(4) (Repl. 1993). Appellant was sentenced to three years in the Department of Correction, which is a proper sentence under the statutes.
Affirmed.
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Wendell L. Griffen, Judge.
This is an appeal from an order of the Faulkner County Chancery Court holding that it lacked personal jurisdiction over appellee Paul Pender to divide his military pension, thus faffing to grant appellant Marianne Pender that portion of the pension that was marital property. We hold that the chancellor’s decision was not clearly erroneous. Therefore, we affirm.
The parties were originally married in 1972. They divorced in Mississippi County, Arkansas, in 1980. Some time later, the couple reconciled and lived together in a common-law marriage in Texas until June 1991 when they separated. Appellant moved to Faulkner County, Arkansas, while appellee moved to Oklahoma. Appellant filed for divorce in the Faulkner County Chancery Court in October 1993, alleging that she served appel-lee in Oklahoma with the summons and divorce complaint by certified letter. Appellee signed for the certified mail on October 18, 1993, but filed no answer within the thirty-day deadline. The trial court set a hearing date of January 25, 1994, after which appellant was granted an uncontested divorce, and, among other things, one-half of appellee’s military retirement pension. The decree was amended twice to comply with the Air Force’s requirements for a qualified domestic relations order, and the last amended decree was filed on September 19, 1994.
On September 22, 1994, appellee filed a motion to set aside the divorce decree and amended divorce decree based upon fraud (alleging that the parties had already been divorced in 1980), and that he was never served with the summons and complaint but did receive other documents by certified mail. The trial court heard this matter on August 25, 1995, taking testimony only on the issue of whether appellee received service of process. After the hearing, the trial court found that appellee had been properly served and ordered the parties to submit briefs on the issue of whether it had jurisdiction to divide appellee’s pension. Subsequently the chancellor found that federal law precluded the court from asserting jurisdiction to divide the military retirement benefits, and, therefore, that it lacked personal jurisdiction to divide the military pension. It is from this ruling that appellant appeals.
Appellant first argues that the trial court erred in limiting the testimony regarding appellee’s contacts with the state in resolving the issue of whether Arkansas could exercise personal jurisdiction over appellee. Appellant failed to abstract the final order of the trial court containing the rulings from which she has appealed, abstracting nothing past the chancellor’s remarks in open court. However, appellee submitted an abstract that cured appellant’s deficiencies, thus allowing us to review her appeal. Appellee abstracted the last amended divorce decree, filed of record on November 27, 1995, which included the following findings: that the court had jurisdiction to hear the divorce action and that service of process on appellee was proper; that the court had no personal jurisdiction over appellee; that under U.S.C. § 1408(c)(4), the court had no personal jurisdiction over appellee to divide appellee’s military pension; and that under the case of Janni v. Janni, 271 Ark. 953, 611 S.W.2d 785 (Ark. App. 1981), the court lacked personal jurisdiction to award further relief to appellant. We will, therefore, address this appeal on the merits, specifically addressing the issue of whether the trial court erred in limiting testimony on the issue of whether the court had personal jurisdiction over appellee, and whether the trial court erred in finding that it lacked personal jurisdiction over appellee.
It is within the trial court’s discretion whether to admit testimony, and its decision will not be reversed absent manifest abuse of discretion. Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 842 (1995). Appellant asserts that appellee consented to the jurisdiction of the Arkansas courts when he filed a motion to set aside the divorce decree and amended divorce decree. However, 10 U.S.C. § 1408 states in part:
A court may not treat the disposable retired or retainer pay of a member in the manner described in paragraph (1) [dividing and making award to spouse as marital property] unless the court has jurisdiction over the member by a reason of (a) his residence, other than because of military assignment, (b) his domicile in the territorial jurisdiction of the court, or (c) his consent to the jurisdiction of the court.
Appellee is correct in his argument that section 1408 places a strict limitation on the court’s exercise of jurisdiction to dispose of his military retirement pay. This federal law preempts the application of Ark. Code Ann. § 16-4-101 (1997), which would determine whether appellee had “minimum contacts” with the state sufficient to confer jurisdiction over his person.
In Southern v. Glenn, 677 S.W.2d 576 (Tex. Ct. App. 1984), the Texas Court of Appeals held that the “minimum contacts” test does not apply in a suit for the partition of military retirement pay, making the requirements for personal jurisdiction those set out in 10 U.S.C. § 1408(c)(4). Southern further held that the fact that a defendant in such a case meets the minimum-contacts test is not determinative on the issue of personal jurisdiction where the defendant does not meet the terms of the federal statute regulating disposition of military retirement pay. Id. at 582. Because Congress legislated on a subject within its constitutional parameters and over which it has jurisdiction, the state law must yield when it conflicts with federal law. Id. Further, it is well-settled in this state that where limited jurisdiction is conferred by statute, the construction ought to be strict as to the extent of the jurisdiction, but liberal as to the proceedings. Woods v. Woods, 285 Ark. 175, 686 S.W.2d 387 (1985) (citing Wood v. Wood, 54 Ark. 172, 178, 15 S.W. 459 (1891)).
Under 10 U.S.C. § 1408, no jurisdiction could be exercised over appellee unless he was a resident of Arkansas, domiciled in the state, or consented to the jurisdiction of the court. Where appellant was not a resident of Arkansas or domiciled in the state, the issue presented is whether appellee “consented” to jurisdiction in the Arkansas chancery court when he filed a motion to set aside the divorce decree based on fraud and improper service of process.
Appellant argues that appellee cannot use a “shotgun approach” in “consenting” to the divorce but not to the division of the marital pension. This argument is without merit. Under the doctrine of divisible divorce, appellant could have obtained a dissolution of the marriage without appellee’s consent. “Consent” is defined as “a concurrence of wills. Voluntarily yielding the will to the proposition of another; acquiescence or compliance therewith. Agreement; approval; permission . . . .” Black’s Law Dictionary 305 (6th ed. 1990). We do not agree that appellee acquiesced to the court’s jurisdiction when he filed the motion to set aside the divorce decree. Appellant also contends that appellee waived his objection to personal jurisdiction when he appeared at the hearing on the motion to set aside the decree. Appellant only cites one case in support of this argument, Ingram v. Wirt, 314 Ark. 553, 864 S.W.2d 237 (1993), in which “waiver” was defined as:
Voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall forever be deprived of its benefits. It may occur when one, with full knowledge of material facts, does something that is inconsistent with the right, or his intention to rely upon that right. (Emphasis added.)
Id. at 563, 864 S.W.2d at 243 (citation omitted). Appellee’s actions in requesting a hearing on the motion were not inconsistent with his position that there was improper service. Moreover, where appellant cited no convincing authority in support of her position that appellee consented to the jurisdiction of the court, the trial court will be affirmed on this issue. Rogers v. Rogers, 46 Ark. App. 136, 877 S.W.2d 936 (1994).
It is clear that appellee was not a resident of Arkansas or domiciled in Arkansas at any relevant time for the purpose of subjecting his person to the jurisdiction of our courts. Therefore, none of the jurisdictional factors prescribed by the federal statute (residence, domicile, or consent) have been satisfied. The chancellor’s decision that he lacked personal jurisdiction to divide appellee’s military pension was not clearly erroneous.
Affirmed.
Crabtree and Neal, JJ., agree. | [
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John B. Robbins, Chief Judge.
Appellant Lisa R. Comer (now Butler) and appellee Carson Comer were divorced in Madison County Chancery Court on February 13, 1989. Pursuant to a written agreement by the parties, which was incorporated by reference into the divorce decree, Mrs. Butler received primary custody of their minor child. Mr. Comer was awarded certain visitation during the summer and during the Christmas holidays. By order of the Madison County Chancery Court, the visitation arrangement was modified on November 6, 1989, on December 20, 1990, and again on May 3, 1993. The May 3, 1993, modification provided that Mr. Comer was to have visitation for six weeks during the summer and one week during Christmas in odd-numbered years. In even-numbered years, he was to have seven weeks of summer visitation with no visitation during Christmas.
On July 5, 1995, Mrs. Butler and the minor child resided in Idaho. On that date, Mrs. Butler received a letter notifying her that Mr. Comer would pick the child up on July 8 for his 1995 summer visitation. However, when Mr. Comer’s parents attempted to pick the child up on that date, Mrs. Butler refused to allow it. Thereafter, on July 21, 1995, Mr. Comer filed a motion for contempt against Mrs. Butler in Madison County Chancery Court.
The Madison County Chancery Court issued an order directing Mrs. Butler to appear on September 11, 1995, and show cause why she should not be held in contempt of court. Mrs. Butler responded with a motion to dismiss the action on September 8, 1995, in which she alleged that the chancery court lacked subject-matter jurisdiction because she had filed a petition to modify custody in the State of Idaho on June 29, 1995. The case eventually came to a hearing on September 29, 1995, at which Mrs. Butler failed to appear. The Madison County Chancery Court found Mrs. Butler in contempt of court and ordered her to serve ten days in jail. She was also ordered to pay $4,204.00 for Mr. Comer’s lost wages, travel expenses, and attorney’s fees related to the action filed in Idaho and his father’s travel expenses incurred when he attempted to pick up the child for visitation in July 1995.
Mrs. Butler now appeals from the order of the Madison County Chancery Court. For reversal, she argues that the trial court erred in proceeding with a hearing on the merits on September 29, 1995, without giving her an opportunity to plead further or appear and defend the case on the merits. In addition, Mrs. Butler asserts that the chancery court erred in awarding attorney’s fees and expenses related to the Idaho case.
During the September 29, 1995, hearing, Mr. Comer testified about his attempt to exercise his visitation rights during the summer of 1995. He indicated that, prior to that time, he was always able to visit his son in the summer. He stated that in late June of 1995, however, Mrs. Butler notified him that he would not be able to visit the child. Thereafter, Mr. Comer’s attorney sent a letter informing Mrs. Butler of Mr. Comer’s intention to pick the child up on July 8, 1995. Proof was introduced that Mr. Comer’s father incurred travel expenses in an unsuccessful attempt to pick the child up for summer visitation, and attorney’s fees in defending the action that Mrs. Butler filed in Idaho. Mr. Comer incurred travel expenses and lost wages in defending the Idaho court action.
After the adverse ruling of the Madison County Chancery Court, Mrs. Butler filed a motion for relief from the order. In this motion, she alleged that her attorney instructed her not to attend the September 29, 1995, hearing because of his mistaken belief that the scope of the hearing would be limited to the jurisdictional issue. Mrs. Butler asserted that she stood ready and willing to appear and respond to the allegations of contempt. The chancery court dismissed this motion for failure to state a claim for which relief can be granted.
Mrs. Butler’s first argument is that she should have been given an opportunity to appear and defend on the merits prior to the chancery court’s September 29, 1995, decision. She notes that the chancery court’s docket sheet reflects that on September 11, 1995, a hearing on her motion to dismiss was scheduled for September 29, 1995. However, the docket was silent as to the setting of any hearing on the merits. Mrs. Butler’s motion to dismiss was premised on three of the grounds listed in Rule 12(b) of the Arkansas Rules of Civil Procedure. Rule 12(d) provides:
The defenses specifically enumerated (1) — (8) in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (c) of this rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.
Mrs. Butler submits that, since the chancery court did not defer the hearing on her motion to dismiss until the time of the hearing on the merits, she should have been granted a later hearing at which she could have appeared and defended the contempt charges against her. Rule 12(j) provides:
Attorneys will be notified of action taken by the court under this rule, and, if appropriate, the court will designate a certain number of days in which a party is to be given to plead further.
Pursuant to the above rule, Mrs. Butler argues that, in addition to being entitled to a hearing on the merits, the chancery court should also have granted her an opportunity to plead further.
We reject Mrs. Butler’s first argument because it was not properly raised before the trial court, and the supreme court has repeatedly stated that arguments that are raised for the first time on appeal will not be addressed. See Sebastian Lake Pub. Util. Co. v. Sebastian Lake Realty, 325 Ark. 85, 923 S.W.2d 860 (1996). During the hearing held September 29, 1995, no objection was made to the court’s consideration of the merits of the contempt motion. Rather, Mrs. Butler’s attorney simply stated:
My client is not here at this time. I was under the understanding from [the appellee’s attorney], just yesterday, that there was a possibility this might go to the merits after the jurisdiction question has been addressed.
Although Mrs. Butler now submits that the above statements should have made it apparent that her attorney was objecting to a hearing on the merits, we disagree. Furthermore, we find that Mrs. Butler’s motion for relief from the contempt order fell short of apprising the chancery court of the arguments that are now being raised. In that motion, Mrs. Butler indicated only that she missed the hearing pursuant to the advice of her attorney and that she stood ready to appear and defend on the merits of the contempt motion. She made no mention of entitlement to another hearing pursuant to Rule 12, as is now being asserted. Because her present Rule 12 arguments were not raised below, we need not consider them here.
Mrs. Butler’s remaining argument is that the chancery court erred in assessing attorney’s fees and travel expenses against her. The chancery court determined that Mrs. Butler was responsible for the expense incurred by Mr. Comer’s father when he attempted to pick the child up in Idaho on July 8, 1995. In addition, the chancery court awarded attorney’s fees and travel expenses incurred as a result of Mr. Comer defending the action that Mrs. Butler brought in Idaho. Mrs. Butler argues that these awards were erroneous, citing Payne v. White, 1 Ark. App. 271, 614 S.W.2d 684 (1981). In that case, attorney’s fees were awarded for services performed in a California child-custody case based, in part, on the fact that the attorney’s services in California were necessary to protect the appellee’s rights in the child-custody case pending in Arkansas. Mrs. Butler points out that, in Payne v. White, supra, the California court concluded that it was without jurisdiction to hear the case, and in the case at bar the Idaho court made no such determination. Mrs. Butler contends that this distinction requires a disallowance of attorney’s fees in the instant case. In addition, she argues that no travel expenses should have been awarded because it was unnecessary for Mr. Comer or his father to travel to Idaho because they knew in advance that she would not allow the ordered visitation and because their presence was not necessary during the initial proceedings in the Idaho court.
In Payne v. White, supra, we recognized the principle that, in certain cases, process for contempt can be used to effect civil remedies, the result of which is to make the innocent party whole from the consequences of contemptuous conduct. In the case now before us, we hold that, as a result of Mrs. Butler’s contempt, Mr. Comer’s father reasonably incurred $884.00 in travel expenses when he attempted to pick up the minor child in accordance with the visitation arrangement prescribed by the most recent custody order. Thus, this award is affirmed. However, we find that the award for attorney’s fees and travel expenses incurred in Mr. Comer’s defense of the Idaho action was inappropriate. These fees and expenses were not a result of Mrs. Butler’s contempt. Nor were these expenses related to the contempt hearing that took place in the Madison County Chancery Court.
The circumstances here differ significantly from those in Payne v. White, supra, where the contemnor mother sought a custody modification in the State of California. The child resided in Arkansas with his father, who had court-ordered custody. During a visit with the child’s mother in California, the mother filed an action there for custody and refused to return the child. The custodial father participated in the California proceeding and ultimately it was dismissed for lack of jurisdiction. A basis for California jurisdiction was not at all apparent. Here, however, Mrs. Butler and the child have resided in Idaho for five years and the State of Idaho may have acquired jurisdiction under the Uniform Child Custody Jurisdiction Act and the federal Parental Kidnapping Prevention Act to modify custody and visitation. Although Mrs. Butler selected a court of improper venue in Idaho to file her action seeking modification of Mr. Comer’s visitation rights, there is nothing in the record to show that this was done for the purpose or with an intent to delay or frustrate Mr. Comer’s defense of the action. The proceeding had been transferred to a court of proper venue and was still pending when this appeal was taken. Under these circumstances we find that the chancery court’s decision to award attorney’s fees and expenses related to the Idaho claim was an abuse of discretion. Consequently, we reduce the judgment granted to Mr. Comer for travel expenses and Idaho attorney’s fees from $4,204.00 to $884.00. The judgment is otherwise affirmed.
Affirmed as modified.
Stroud and Neal, JJ., agree. | [
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Wendell L. Griffen, Judge.
Pulaski County Child Support Enforcement Unit (PCCSEU) appeals a ruling by the Pulaski County Chancery Court dismissing a paternity action filed on behalf of assignor Stephanie Blue with prejudice. We modify the chancellor’s decision to dismiss the paternity action without prejudice, and affirm the trial court’s ruling as modified.
PCCSEU filed a complaint for paternity on behalf of Blue in December 1992, and appellee, Edward Flowers, subsequently signed an agreed order for blood testing. Appellee appeared for HLA blood testing on March 2, 1993, at Roche Biomedical Laboratories, but Blue and the minor child failed to appear. PCCSEU closed Blue’s case in May 1993. The chancellor entered an order dismissing appellant’s complaint without prejudice due to lack of prosecution pursuant to Ark. R. Civ. P. 41 in September 1994.
Appellant refiled its complaint for paternity against appellee in July 1995, and appellee again signed an agreed order for paternity testing. The parties were ordered to appear for DNA testing on October 13, 1995. Appellee again appeared for the test; however, Blue and the minor child failed to appear for the October 13, 1995, testing date, and a third scheduled date of November 28, 1995.
A hearing was scheduled for March 27, 1996, and appellee was served with notice of the hearing on January 25, 1996. A subpoena was issued for Blue, but she was not served and did not appear. Appellee appeared for the March 1996 hearing with counsel. Upon motion of the appellee, the chancellor dismissed appellant’s complaint with prejudice. It is from this ruling that PCCSEU appeals.
On appeal, chancery courts are tried de novo on the record, and a chancellor’s findings will not be reversed unless they are clearly erroneous or clearly against the preponderance of the evidence. Adair v. Adair, 54 Ark. App. 9, 923 S.W.2d 286 (1996). Appellant argues that Ark. R. Civ. P. 41 cannot bar a minor child’s right to continued support from a putative father. Arkansas Code Annotated § 9-10-102 (Supp. 1995) states, in part, that the Rules of Civil Procedure apply to actions for paternity, and there is no statute of limitations that restricts when a paternity action may be brought. Arkansas Rule of Civil Procedure 41 (b) provides that when an action has been previously dismissed without prejudice, a subsequent dismissal operates as an adjudication on the merits. Appellant cites the controlling case of Davis v. Office of Child Support Enforcement, 322 Ark. 352, 908 S.W.2d 649 (1995), in arguing that protection of the minor child’s right to continuing support outweighs the application of Arkansas Rule of Civil Procedure 41. Id.
In Davis, the father of a minor child appealed the trial court’s denial of his motion to dismiss pursuant to Ark. R. Civ. P. 41 because the court had previously dismissed the same paternity action with prejudice. Id. The Office of Child Support Enforce ment had initiated three actions for paternity and support relating to the same minor child against the putative father. In affirming the actions of the Washington County Chancery Court, the supreme court held that in balancing the application of Rule 41 against the public policy that a minor’s right to support cannot be permanently settled by a parent, the scales tip heavily in favor of protecting the minor’s well-guarded right to continued support as the welfare of the child is paramount. Id. at 356, 908 S.W.2d at 652 (citing Muncrief v. Green, 251 Ark. 580, 473 S.W.2d 907 (1971) and Storey v. Ward, 258 Ark. 24, 523 S.W.2d 387 (1975)). The chancellor’s ruling granting the motion to dismiss would have served to bastardize the minor child, contravening state public policy. Storey, supra.
In this case the chancellor made a finding that Blue had been uncooperative, and that appellee had been most cooperative throughout the proceedings. Because the dismissal with prejudice is void under the holding in Davis, it does not bar future proceedings. Therefore, we modify the chancellor’s ruling to dismiss appellant’s paternity action without prejudice, and affirm.
Affirmed as modified.
Jennings and Bird, JJ., agree. | [
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Judith Rogers, Judge.
Appellant brings this appeal from the trial court’s denial of her petition to register a foreign judgment based on a finding that the Texas court that rendered the judgment did not have personal jurisdiction over appellee. For reversal, appellant contends that appellee was bound by the Texas court’s finding of personal jurisdiction and that the trial court erred by permitting appellee to collaterally attack the judgment on that ground in this proceeding. We agree and reverse.
Appellant, Melissa May, is the daughter of appellee, Jerry Glenn May. On August 30, 1994, appellant obtained a default judgment against appellee in the District Court of Cameron County, Texas, in the total amount of $28,951.43, representing unpaid child support, prejudgment interest, and attorney’s fees. On May 16, 1995, appellant petitioned the Circuit Court of Crit-tenden County, Arkansas, for registration of the Texas judgment. Appellee objected to appellant’s petition, arguing that the Texas court had no personal jurisdiction over him. After a hearing, the trial court agreed with appellee’s argument and entered an order dismissing appellant’s petition.
The Uniform Enforcement of Foreign Judgments Act, codified in Arkansas at Ark. Code. Ann. §§ 16-66-601 to - 608 (Supp. 1995), provides a summary procedure in which a party in whose favor a judgment has been rendered may enforce that judgment promptly in any jurisdiction where the judgment debtor can be found. The Uniform Act requires only that the foreign judgment be regular on its face and duly authenticated to be subject to registration. Butler Fence Co. v. Acme Fence & Iron, 42 Ark. App. 30, 852 S.W.2d 826 (1993). Under the Full Faith and Credit Clause of the United States Constitution, a foreign judg ment is as conclusive on collateral attack as a domestic judgment would be, except for the defenses of fraud in the procurement or want of jurisdiction in the rendering court. Strick Lease, Inc. v. Juels, 30 Ark. App. 15, 780 S.W.2d 594 (1989). Foreign judgments entered by default are equally protected against collateral attack, unless the previously stated defenses can be established. Butler Fence Co. v. Acme Fence & Iron, supra.
Appellant’s argument in this appeal is based on appellee’s testimony at the hearing and the supreme court’s decision in Monark Boat Co. v. Fischer, 292 Ark. 544, 732 S.W.2d 123 (1987). It was appellee’s testimony that, when he learned of the judgment, he hired an attorney and filed a motion for a new trial in which he contested the Texas court’s assertion of personal jurisdiction over him. He said that the Texas court denied his motion based on a finding that the court did have personal jurisdiction and that he chose not to appeal that decision because of the expense. Certified copies of appellee’s motion for a new trial and the order denying it were introduced into evidence.
In Monark Boat Co. v. Fischer, supra, the issue before the court was whether a party, against whom a foreign judgment had been rendered and who had contested the matter of personal jurisdiction in the foreign court, may assert the lack of personal jurisdiction of the rendering court when the judgment is sought to be registered in Arkansas. The court answered the question negatively, saying:
When the appellant appeared in the Ohio court to contest the matter of whether that court had personal jurisdiction of it, it subjected itself to the jurisdiction of that court to determine that issue. The decision of the Ohio court that it had jurisdiction of the appellant was binding on the appellant, and while it could have appealed that decision, it could not collaterally attack it in a collateral proceeding, such as the one before us now, because of the doctrine of res judicata.
Id. at 547, 732 S.W.2d at 125.
The appellee in this case contested personal jurisdiction in the Texas court and did not appeal that adverse determination. Therefore, under the decision in Monark, the Texas court’s finding that it had personal jurisdiction is res judicata and is not subject to collateral attack in this proceeding. Although the appellant referred the trial court to the supreme court’s decision in Monark, the court did not abide by it. Consequently, we reverse the trial court’s decision and remand for the trial court to enter an order accepting registration of the Texas judgment.
Reversed and remanded.
Robbins, C.J., and Jennings, J., agree. | [
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Margaret Meads, Judge.
This is an appeal from an order of the Pulaski County Chancery Court, that dismissed appellants’ amended complaint to quiet title. Appellants, Paris Sabbs and Betty Frazier, are the co-administrators of the estate of James Sabbs. Appellee Bernice Cole is the decedent’s oldest daughter.
In an amended complaint, appellants alleged that at the time of his death, the decedent James Sabbs possessed certain property on Valentine Road, North Litde Rock, and other property located in Lonoke County, and that appellee’s claim of ownership of these properties is invalid.
At trial, appellant Paris Sabbs contended the Valentine Road property was an asset of the estate. He testified that the reason his father put the deed in appellee’s name was to protect the property from an impending third marriage; that if the marriage did not work out the deed would be put back in his name; and if he died appellee would share the property with her siblings. He said he first discovered a problem with removing appellee’s name from the deed around 1987, and he was present in 1992 when his father requested the property be changed back to his name, but appellee refused.
He testified further that his father kept up the premises, paid for repairs, paid the property taxes and insurance, and always acted like the owner. He also testified that he did not consider his father to need assistance in taking care of his business affairs, and he was happy his father was able to look after his own affairs. He said his father told him he did not sue appellee when she refused to remove her name from the deed, because he believed she would eventually do the right thing and deed the property back to him or share the property with her siblings upon his death.
Appellant Betty Sabbs Frazier testified that she saw the deed in 1992 with appellee’s name on it and asked her father why he had done this. He said he thought appellee would deed it back to him, and he trusted her. She said she asked him if he wanted her to get legal help and he said, “No.”
Irma Aaron, who had a courtship with James Sabbs, testified that he told her that he put the property in appellee’s name so nobody would take his property, but they weren’t getting along, and he had asked for the property back.
The decedent’s nephew testified that he lived with the decedent for six months in 1989, paid rent to him, and was not aware of any dispute between him and appellee. He said the decedent never mentioned any problem in regard to the property, but he had damaged the property to make it hard on the children. He also testified that his uncle took care of his affairs “real good,” and he never saw anyone exert any influence on him or cause him to do something he did not want to do.
Elouise Garrett, who married James Sabbs in January 1973 and subsequently divorced him, testified that he told her appellee owned the Valentine Road property and that he had given her a deed. She said that during the time she was married to him, appellee visited her father practically every weekend, and he never indicated he did not want appellee to have the property. She further testified she was not aware of any dispute between appellee and her father concerning the property, and he told her he had deeded the house to appellee and “it was hers.”
Appellee testified that her father deeded her the property on Valentine Road. She said he called her at work, told her he had something he wanted to give her, and he would come by and pick her up. When he arrived, he said he was giving her his property on Valentine Road because she would not share in any of his other property. They went to a law office where the deed was already prepared, and he signed it. Later the deed was mailed to appellee by certified mail, and she recorded it. Appellee testified that she held the recorded deed for awhile and later gave it to her father because he was executor of her will and the documents would be together. Her father returned the deed to her in 1985, and she returned it to him in 1990 when she married Aldolphus Cole. The deed and appellee’s will were in the decedent’s safe deposit box when he died.
Appellee testified her father did not request that she deed the property back to him; did not discuss it with her in the presence of her brothers and sisters; and that her father was present when appellee Paris Sabbs asked her to return the deed. She said her father did not agree with Paris’s request and denied that her father asked her to remove her name from the deed.
Appellee testified further that the agreement with her father was that he could continue to five there, maintain the property, and collect the rent as long as he lived, and she considered him to have a life estate. She testified further that she has maintained insurance on the property, paid the real estate taxes, and collected the rents. Appellee admitted not claiming the property as an asset when she tried to obtain a bank loan and not listing it as an asset when she was divorced.
Documentary evidence included appellee’s 1989-1992 Federal Income Tax Schedule A, which showed no rental income or depreciation deduction on the property; real estate tax receipts for 1989-1992 reflecting that appellee paid the property tax; application for property insurance listing the deceased and appellee as the insureds on the Valentine Road property; a declarations page from the policy addressed to appellee; the decedent’s 1988 income-tax return showing he declared the rents as income; and lists of expenses of the decedent allegedly for repairs to the property.
In an order entered January 8, 1996, the chancellor found that the witnesses gave conflicting testimony regarding the decedent’s statements; that she did not place much weight on alleged statements made by the deceased to the witnesses; that Irma Aaron and Elouise Garrett were credible witnesses; that the most telling testimony was that of the decedent’s nephew; and that neither Paris Sabbs nor appellee were credible witnesses. The chancellor considered it significant that the decedent took no action, after a discussion regarding the property, to set aside the conveyance. Most important no attempt was made to reclaim the property, and there was nothing in writing to show that the decedent intended a disposition which conflicted with the deed. The chancellor held further that although appellee was not particularly credible, it appeared that she and her father had an agreement that he would live on the property during his lifetime, as she had testified, because that is, in fact, what happened.
The chancellor held that appellants failed to prove the decedent intended a different disposition of his property than the recorded deed and dismissed the complaint.
On appeal, appellants argue the trial court erred in dismissing the complaint. Specifically, appellants contend that the decedent neither intended nor completed delivery of the deed to the Valentine Road property, and that tide was not transferred because he retained possession and control of the property, retained the rental income, and paid taxes on the property. Appellants also argue that the decedent did not make a gift of the Lonoke property to appellee.
In order for an inter vivos gift to transpire, it must be proven by clear and convincing evidence that (1) the donor was of sound mind; (2) an actual delivery of the property took place; (3) the donor clearly intended to make an immediate, present, and final gift; (4) the donor unconditionally released all future dominion and control over the property; and (5) the donee accepted the gift. Wright v. Union National Bank, 307 Ark. 301, 819 S.W.2d 698 (1991). Although we hear chancery cases de novo, the test on review is not whether there is clear and convincing evidence to support the trial judge’s findings, but whether we can say the judge was clearly wrong; whether the findings of the trial judge are clearly erroneous. Akin v. First National Bank, 25 Ark. App. 341, 758 S.W.2d 14 (1988). In addition, where the pivotal issue is credibility of interested parties whose testimony is in direct conflict, we defer to the chancellor’s judgment. Rector-Phillips-Morse, Inc. v. Huntsman Farms, Inc., 267 Ark. 767, 590 S.W.2d 317 (Ark. App. 1979). Finally, when a deed reserves a life estate in the grantor, there is no requirement that the instrument pass beyond the grantor’s control and dominion, and the fact that the deed is found among the effects of the grantor at his death raises no presumption against delivery, and the grantor’s retention of possession and control over the property conveyed is not inconsistent with delivery. Grimmett v. Estate of Beasley, 29 Ark. App. 88, 777 S.W.2d 588 (1989).
Here, the chancellor heard conflicting testimony of several witnesses. The chancellor found Elouise Garrett and Irma Aaron to be credible witnesses. Ms. Garrett testified that she was not aware of any dispute between appellee and her father, and Ms. Aaron testified that the decedent voluntarily executed the deed giving the property to appellee, and although he said he wanted it back, she never saw appellee “over there for him to ask her.” The chancellor also relied on the testimony of appellant’s nephew that the decedent did not mention any problems with the property or appellee.
Moreover, there is no evidence that the decedent was of unsound mind. Indeed, Paris Sabbs testified that the decedent was able to take care of his own business affairs. Further, there was evidence that the deed was prepared by an attorney, signed by the decedent, and mailed to appellee by certified mail. Although the deed was found in the decedent’s safe-deposit box and did not specifically reserve a life estate in the decedent, the chancellor found there was an agreement that the decedent would live on the property during his lifetime. We think this is analagous to a life estate, and as we have already stated, in the case of a life estate there is no requirement that a deed pass beyond the grantor’s control, and the grantor’s retention of possession and control over the property is not inconsistent with delivery. Moreover, Ms. Garrett testified the decedent told her appellee owned the property and that he gave her a deed, and Ms. Aaron said he voluntarily executed the deed.
Finally, there is evidence that appellee paid the 1989-1992 property taxes and was fisted as a co-insured on the property, and given appellee’s testimony that her father gave her the property, we do not think it can be seriously contended that appellee refused the gift of the property.
Recognizing that the testimony was in dispute, but giving deference to the chancellor’s opportunity to judge the credibility of the interested parties, we cannot say the chancellor erred in dismissing appellants’ complaint as to the Valentine Road property.
One other matter remains for our discussion. Appellants also alleged that the decedent owned certain lands in Lonoke County; on appeal they argue that the decedent did not make a gift of this property to appellee and that it should be included in the estate for distribution to his heirs. Suffice it to say, if the effect of a decree is to reach and operate upon the land itself, then it is a proceeding in rem and a local action and must be brought in the county where the land is situated. Dowdle v. Byrd, 201 Ark. 775, 147 S.W.2d 343 (1941).
Affirmed.
Stroud, Rogers, and Bird, JJ., agree.
Pittman, J., dissents.
Cooper, J., not participating. | [
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Andree Layton Roaf, Judge.
Donnie Wayne Lofton was convicted in a jury trial of manslaughter for causing the death of the twenty-one-month-old son of his live-in girlfriend, and was sentenced to ten years’ imprisonment. He raises two points on appeal. He first argues that the trial court erred in denying his motion for directed verdict. He also contends that Judge Sam Pope should have recused and not presided over his trial because Judge Pope had been the prosecuting attorney during the initial investigation into the death of the child. We are unable to reach the merits of Lofton’s first point because his motion for directed verdict addressed only the charge of first-degree murder. We further hold that Judge Pope did not abuse his discretion in declining to recuse, and affirm the conviction.
On November 13, 1994, twenty-one-month-old Christopher Chase Fleming received a blunt trauma injury to his head that resulted in his death two days later. A jury determined that the injury was caused by Lofton, in whose trader the child had been living along with his mother and brother. The source of the injury as well as the exact time it occurred was controverted at trial.
A warrant for the arrest of Lofton was authorized by Judge Sam Pope and issued on January 24, 1995. Lofton was arrested on January 25, 1995, and released on $25,000 bond set by Judge Pope on February 1, 1995. The information charging Lofton with first-degree murder was filed May 18, 1995. The case was tried before Judge Pope on July 20, 1995. Pope had been the prosecutor until December 31, 1994, and his office had been involved in the early investigation into the child’s death. The judge set June 30th as a deadline for filing pretrial motions so that they could be heard on July 3rd. After initial jury orientation on July 18th, but before jury selection, Lofton moved to have Judge Pope recuse due to his former office’s involvement with the case during the time before he became circuit judge. The judge heard and denied the motion, stating in essence that it was offered too late, and that he recalled no direct involvement in the investigation and could be fair in the case.
At trial, the State produced the victim’s five-year-old brother as an eyewitness. After the court determined his competency to testify, he stated that he observed Lofton throw Christopher on the couch and that the child hit his head on the wooden arm, causing him to cry for a long time. Expert medical testimony indicated that the fatal injury was consistent with hitting a smooth surface like the wooden arm on the couch.
Lofton adduced testimony that Christopher had fallen from a porch at his grandmother’s home several days previously. Christopher’s mother, Kinda Fleming, stated that Lofton told her that Christopher had fallen from his porch while she was away at a video rental store on the day the fatal injury allegedly occurred. The time of the injury was brought into question by Fleming’s statements to emergency medical personnel that the child had been fine all day up to and including when Lofton had put him to bed. Fleming indicated that she became aware of a problem only after she awoke to the sound of Christopher’s labored breathing, and found he had an elevated temperature. Expert medical testimony indicated that the injury would have caused the child severe distress for several hours before he was brought to the emergency room.
Lofton moved for a directed verdict on the charge of first-degree murder at the close of the State’s case, and for a directed verdict on the charges of first- and second-degree murder at the close of all the evidence. The motions were denied, and he was convicted of manslaughter and given a ten-year sentence.
1. Directed verdict
Lofton argues that the trial court erred in denying his motion for a directed verdict at the end of the State’s evidence and at the end of all the evidence. However, the State asserts correcdy that because Lofton’s motion for a directed verdict at the close of the State’s case addressed only first-degree murder, he has not preserved the issue of whether there was sufficient evidence to convict him of manslaughter. In Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996), the supreme court held that in order to preserve for appeal the issue of sufficiency of the evidence, the defendant must have addressed the lesser-included offense he was convicted of by name or by the culpability required. Because Lofton failed to challenge the sufficiency of the evidence for manslaughter at the close of the State’s case and at the end of all the evidence, his argument on this point is procedurally barred.
2. Recusal
Lofton also contends that the trial court erred when it denied his motion asking that the court recuse. As an initial matter, the State asserts that this argument is not preserved for appeal because the motion for recusal was untimely. Although the motion was filed well after the deadline set by the trial court for the filing of pretrial motions and only two days before Lofton’s scheduled trial date, the trial court heard the motion on its merits before denying it.
In Arkansas, the state constitution provides the grounds for the disqualification a judge: “No judge or justice shall preside in the trial of any cause in the event of which he may be interested, ... or in which he may have been of counsel . . . .” Ark. Const. art. 7, § 20. While disqualification of a judge may be waived, ignorance of the grounds for disqualification cannot con stitute such a waiver, and if a party discovers the grounds after the trial has been completed, it is grounds for reversal on appeal. See Byler v. State, 210 Ark. 790, 197 S.W.2d 748 (1946). Consequently, we cannot conclude that the motion was not properly before the trial court or that the trial court’s ruling on it was not properly preserved for review.
As to the merits, Lofton cites Canon 3E(1) of the Code of Judicial Conduct as authority for his assertion that Judge Pope should have disqualified himself from the proceeding. It states in pertinent part:
(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
(b) the judge served as a lawyer in the matter of controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter.
Arkansas Code of Judicial Conduct, Canon 3E(1).
Lofton contends that because Judge Pope’s term as the elected prosecutor coincided with the pendency of the investigation from November 13 to December 31, 1994, he became privy to certain information received in the prosecutor’s office during this period. Lofton submits that four documents are evidence of the personal involvement by Judge Pope in the investigation into Christopher’s death: 1) a notice of child maltreatment form issued by ADHS dated November 14, 1994, and addressed to Sam Pope; 2) investigation notes prepared by Bill Setterman dated November 17, 1994, indicating that Setterman told Chief Deputy Prosecuting Attorney Joe Wray that Lofton had lived with two other women whose small babies died; 3) a request from Setterman to “Sam or Joe” dated November 21, 1994, for a subpoena duces tecum to Ashley Memorial Hospital for all records of Christopher and the two other infants who died; and 4) a subpoena issued by Joe Wray on December 16, 1994, to G and W Family Clinic for treatment records of Christopher since his birth.
Lofton further notes that Judge Pope granted the arrest warrant on January 24, 1995, after Municipal Judge Reid Harrod failed to find probable cause and suggests that, while it is not evidence of actual bias, this act puts into question Judge Pope’s impartiality. The State contends in response to Lofton’s arguments that the prosecutor’s office merely received the four documents listed by Lofton, and that they are not evidence of Judge Pope’s personal involvement in the investigation. Moreover, the State contends that no “case” existed against Lofton until he was arrested on January 25, 1995, and consequently, Judge Pope did not serve as a lawyer in the prosecution of Lofton.
We do not agree with Lofton’s argument that Canon 3E(1) of the Arkansas Code of Judicial Conduct provides the basis for reversal of his conviction. Judge Pope denied any involvement in the investigation into Christopher’s death, and even if his deputy, Joe Wray, was directly involved during the relevant period, the commentary to Section 3E(1) states:
A lawyer in a governmental agency does not ordinarily have an association with other lawyers employed by the agency within the meaning of Section 3E(l)(b) . . . A judge formerly employed by a governmental agency, however, should disqualify himself. . . in a proceeding if the judge’s impartiality might reasonably be questionable because of such association.
Moreover, the preamble to the Code of Judicial Conduct states that the Code should be applied “consistent with constitutional requirements, statutes . . . [and] decisional law” and “construed so as not to impinge on the essential independence of judges in making judicial decisions.” Significantly, the preamble further provides:
The Code is designed to provide guidance to judges and to provide for a structure for regulatory conduct through disciplinary agencies. It is not designed or intended as a basis for civil liability or criminal prosecution. Furthermore, the purpose of the Code would be subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding.
We thus turn to the decisional law involving former prosecuting attorneys who have later served as trial judges in pro ceedings in which their impartiality has been questioned. We first observe that in construing Canon 3E(I), Arkansas appellate courts have stated that there is a presumption of impartiality, and the party seeking disqualification has the burden of proving otherwise. Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996); Gentry v. State, 47 Ark. App. 117, 886 S.W.2d 885 (1994). Furthermore, the decision to recuse is within the trial court’s discretion and will not be reversed absent abuse. Turner, supra. An abuse of discretion can be proved by a showing of bias or prejudice on the part of the trial court. Turner, supra. In Turner, the supreme court stated:
We initially observe on this point that there was no showing by Turner that he was treated unfairly in the trial of this matter. In fact, in Turner’s reply brief, his counsel admitted that Turner was treated fairly at trial.
Id. at 244, 926 S.W.2d at 847.
Although Turner involved a trial judge who had prosecuted the appellant for other crimes before taking the bench, Lofton has likewise not alleged actual bias in his brief or asserted that he was treated unfairly by Judge Pope in the trial of his case.
Furthermore, we have not discovered any decisions which suggest that Judge Pope’s recusal was mandated in this case. In Fisher v. State, 206 Ark. 177, 174 S.W.2d 446 (1943), the supreme court held that a trial judge who signs the information or criminal indictment as prosecuting attorney has been “of counsel,” and is disqualified to preside in the trial of the case under the Arkansas Constitution. However, Lofton was not arrested and the information was not filed against him while Judge Pope served as prosecutor and we do not find that he had been “of counsel” in Lofton’s case under the holding of Fisher.
In Jordan v. State, 274 Ark. 572, 626 S.W.2d 947 (1982), the supreme court held that a trial judge who formerly prosecuted a defendant on three of four felony convictions used to enhance punishment is not disqualified under Ark. Const. art. 7, § 20, because the prohibition against his presiding in a case in which he was “of counsel” relates to the case being tried. However, Jordan also alleged actual bias, and the court stated that the fundamental issue was whether under the circumstances the judge’s impartiality might reasonably be questioned, pursuant to Canon 3 of the Code of Judicial Conduct, and held that there was no objective intimation of bias or prejudice in the proceedings. Here, Lofton argues that Judge Pope based his refusal to recuse on “time constraints” and states that it can be assumed that Judge Pope’s caseload was heavy and that his docket was full. Although Lofton questions Judge Pope’s authorization of the arrest warrant, he acknowledges that he could not show that Judge Pope was biased or prejudiced in any way at the hearing on his recusal motion, and states that his concern is with the “appearance of impropriety or conflict of interest.” Lofton does not argue actual bias, and, as in Jordan, we do not find any objective intimation of bias or prejudice. Moreover, in Jordan, the court stated that it regarded the appellant’s allegation of the “appearance of bias” as subjective.
We conclude that Judge Pope’s recusal was not mandated by either Canon 3E of the Code of Judicial Conduct or Ark. Const, art. 7, § 20, and that the decision to recuse was within the discretion of the trial court in this instance. As Lofton has not alleged that Judge Pope was biased or unfair in the proceedings, we cannot say that his refusal to recuse was an abuse of discretion.
Affirmed.
Robbins, C.J., and Pittman, Rogers, and Meads, JJ., agree.
Griffen, J., dissents. | [
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John Mauzy Pittman, Judge.
This appeal is from a judgment of the Pope County Circuit Court dismissing with prejudice appellant Teresa Spainhour’s appeal from a decision of the Dover School Board not to renew Spainhour’s teaching contract for the 1994-1995 school year. Spainhour argues that the board’s decision failed to comply with either the notice requirements of the Teacher Fair Dismissal Act (Ark. Code Ann. § 6-17-1501, et seq. (Repl. 1993)) or the school district’s reduction- in-force policy.
The facts are not in serious dispute. In March of 1988, appellant began working for appellee, the Dover School District, as a migrant clerk and a Chapter One aide. Appellant was certified to teach grades one through six. She became a full-time teacher in the fall of 1988 and worked as a Chapter One High School Teacher and as the coordinator for the Coordinated Compensatory Vocational Educational Program (CCVE). Both programs were partially funded on a yearly basis with federal monies.
In April of 1994, appellant received a letter from Dr. Richard Paul, appellee’s superintendent, advising her that he would recommend to the board at its next meeting that her teaching contract for the 1994-1995 year not be renewed. This letter was the last of five letters that began in June of 1993 advising appellant of possible cuts in federal funds that could eliminate her program.
On May 9, 1994, the school board held a regular meeting and adopted the superintendent’s recommendation to eliminate the Chapter One program. Appellant was not present at this meeting. As a result of the board’s decision to terminate the Chapter One program due to cuts in federal funding, appellant’s position was eliminated, and her contract was not renewed.
On May 12, 1994, appellant, pursuant to Ark. Code Ann. § 6-17-1509, requested a hearing before the board. The board scheduled a hearing for May 18, 1994. Appellant and her representative appeared and presented evidence concerning the elimination of the Chapter One program and the application of the reduction-in-force policy. At the beginning of the hearing, appellant’s counsel polled the board members to determine whether they would be open to the information that would be presented and whether they could be fair and impartial without any preconceived ideas concerning the elimination of the Chapter One program. The board members stated that the purpose of the hearing was to reconsider their previous decision, that they unanimously agreed to be open to the information presented, and that they would be fair and impartial without preconceived ideas concerning the elimination of the Chapter One program. Thereafter, Dr. Paul testified regarding the financial condition of the school district and the basis for his earlier recommendation. Appellant then presented evidence concerning the performance of the Chapter One program and information about her funding source. She also testified regarding her interpretation of the reduction-in-force policy and its provision regarding seniority. After the superintendent’s rebuttal and closing arguments, the board retired into executive session and deliberated for fifty-five minutes before returning to open session and voting not to renew appellant’s contract.
Spainhour appealed the board’s decision to the circuit court claiming that the nonrenewal of her contract was in violation of the Arkansas Teacher Fair Dismissal Act and the district’s personnel policies. Testimony was taken from various witnesses regarding the financial condition of the district, and the application of the staff reduction-in-force policy. After reviewing the board’s May 18 proceedings and all of the testimony and exhibits introduced at trial, the court found that the action of the Dover Public School District in not renewing appellant’s teaching contract was not in violation of the Arkansas Teacher Fair Dismissal Act. We find no error and affirm.
Arkansas Code Annotated § 6-17-1509(a) and (b) provide in part that a teacher who receives a notice of recommended termination or nonrenewal may file a written request with the board of directors of the district for a hearing within thirty days after the written notice of proposed termination or nonrenewal is received by the teacher.
Appellant first argues that notwithstanding the school board’s statement that it would reconsider its May 9 decision without any preconceived ideas, this case should be reversed because the board violated the Arkansas Fair Teacher Dismissal Act when it did not renew the contract of appellant on May 9 prior to providing proper notice and an opportunity to be heard as required by law.
Appellant correctly argues that since 1989 the General Assembly has required strict compliance with the Teacher Fair Dismissal Act. Arkansas Code Annotated § 6-17-1503 reads as follows:
A nonrenewal, termination, suspension, or other disciplinary action by a school district shall be void unless the school district stricdy complies with all provisions of this subchapter and the school district’s applicable personnel policies.
Failure to strictly comply with the Act renders action by the school district void. Lester v. Mount Vernon-Enola School District, 323 Ark. 728, 917 S.W.2d 540 (1996); Western Grove School District v. Terry, 318 Ark. 316, 885 S.W.2d 300 (1994).
In Murray v. Altheimer-Sherrill Public Schools, 294 Ark. 403, 743 S.W.2d 789 (1988), the board rescinded its vote made in an earlier hearing regarding whether Murray’s teaching contract should be renewed for the reasons stated in the superintendent’s recommendation. The board president opened the meeting with an admonition that that was the only issue before the board and that only information pertinent to that issue would be allowed. The board president cautioned the board: “[You] should not vote based on any preconceived notions, indeed, if you have any, but should make your decision solely on what has been brought before you and will be brought before you during this hearing.” 294 Ark. at 408, 743 S.W.2d at 791. At the conclusion of the hearing, the board again voted not to renew Murray’s teaching contract. The circuit court upheld that decision. The supreme court held that this cautionary instruction, coupled with the board’s formal rescission of its original vote, cured any error resulting from the earlier hearing and stated that “we presume that the board members are fair-minded and resolve matters presented to them on an impartial basis.” It held that the trial court’s conclusions that the board substantially complied with the notice and hearing provisions of the Act were not clearly erroneous.
Although Murray was decided when the law required only “substantial” compliance with the Act, we find it controlling and dispositive in the case before us. We find that the board’s May 18 hearing afforded appellant all of her rights under the Act and that the actions of the board strictly complied with the Act.
Appellant’s final argument concerns the school district’s failure to adhere to and strictly comply with the applicable provisions of its reduction-in-force policy as required by law. Ark. Code Ann. § 6-17-1503. The staff reduction-in-force policy states in part: “When it is necessary to reduce the number of permanent employees, consideration will be given to the following factors: (1) Performance, (2) Ability and Skill, and (3) Seniority. ...” Seniority is defined in the policy as “that period of time an employee has worked for the Dover School District.” The policy further states:
Should two or more employees have equal ability, skill, and performance, seniority shall govern which employee shall be retained. Should there be a difference in performance, ability, and skill between two or more employees sufficiently great in the judgment of the supervisor to outweigh seniority, performance, ability and skill shall govern.
In the Spring of 1994, the district’s funds available for the Chapter One programs were reduced. Dr. Paul testified that the reduction in funding required that he request that the principals evaluate the high school and elementary Chapter One programs and to report their findings to him. After receiving their reports, it was determined that the most significant gains were in the elementary level. Based on the reports, Dr. Paul testified that he made a decision to recommend to the board at its regular meeting on May 9, 1994, that the high school Chapter One program be eliminated. Appellant interprets the reduction-in-force policy to mean that because she held a teaching certificate for the elementary level and had been employed longer than three of the elementary teachers, she should have been retained on the basis of seniority without regard to the position held by those three teachers. Dr. Paul testified that appellant’s six years of experience in the district was at the high school level. He stated that in his opinion, when a comparison was made with those elementary teachers over whom appellant held seniority, the elementary teachers possessed more skills and ability than appellant and that although appellant’s experience at the high school level had been acceptable, it did not follow that she could successfully transfer those skills to the elementary level where she had never taught during the normal school year. Dr. Paul testified that at the high school level, appellant taught in a one- on-one computer-generated laboratory focusing on areas of individual needs. He stated that this was totally different from an elementary teacher who was responsible for establishing reading groups, diagnosing reading skills, teaching math, science, social studies, health, and art, and dealing with the daily demands that would occur with twenty-five students. Appellant presented no evidence of the abilities and skills of the three teachers with whom she sought comparison.
The determination not to renew a teacher’s contract is a matter within the school board’s discretion, and the circuit court cannot substitute its opinion for that of the board in the absence of an abuse of discretion. Murray v. Altheimer-Sherrill Public Schools, supra. It is not the appellate court’s function to substitute its judgment for that of the circuit court or the school board; the appellate court will reverse only if it finds on review of the trial court’s decision that the court’s findings are clearly erroneous. Id.
A trial court’s findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial judge to assess the credibility of the witnesses. Tovey v. City of Jacksonville, 305 Ark. 401, 808 S.W.2d 740 (1991). Here the testimony was conflicting, and we cannot determine that the circuit court erred in its determination that the school board did not violate the Teacher Pair Dismissal Act or misapply the personnel policy. Whitfield v. Little Rock Public Schools, 25 Ark. App. 207, 756 S.W.2d 125 (1988).
Affirmed.
Cooper and Bird, JJ., agree.
Rogers, Stroud, and Meads, JJ., dissent. | [
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James R. Cooper, Judge.
The appellant in this workers’ compensation case filed a claim after he slipped and was injured while pulling extremely heavy sheets of rubber over rollers in the course of his employment with the appellee. The Commission denied the claim because it found no evidence to satisfy the “objective findings” requirement of Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1996). For reversal, the appellant contends that the Commission erred in concluding that the medical evidence was not based on objective findings. We agree, and we reverse.
“Objective findings” are defined at Ark. Code Ann. § 11 — 9— 102(16) (Repl. 1996) as follows:
(16)(A)(i) “Objective findings” are those findings which cannot come under the voluntary control of the patient.
(ii) When determining physical or anatomical impairment, neither a physician, any other medical provider, an administrative law judge, the Workers’ Compensation Commission, nor the courts may consider complaints of pain; for the purpose of making physical or anatomical impairment ratings to the spine, straight-leg-raising tests or range-of-motion tests shall not be considered objective findings.
(B) Medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty . . .
The Commission found that the appellant was injured and had physical difficulties as he related at the hearing but concluded that the strict construction required of the new Workers’ Compensation Act' mandated a finding that there was no medical evidence that satisfied the “objective findings” requirement.
The Commission correctly noted that the legislature has mandated that our new workers’ compensation law, Act 796 of 1993, must be strictly and literally construed by the Commission and the courts. Ark. Code Ann. § 11-9-1001 (Repl. 1996). We think it apparent that the Commission is making every effort to comply with the legislative mandate, a difficult task that requires that a fine balance be struck between the legislature’s prohibition against broadening the scope of the workers’ compensation statutes and the legislature’s express statement that the controlling purpose of workers’ compensation is to pay benefits to all legitimately injured workers. Id. Nevertheless, we think that the Commission erred in the case at bar. In its opinion, the Commission noted that Dr. Green testified regarding the appellant’s injuries, stating that:
He has had no surgeries. X-rays dated July 8, 1994 of the pelvis and hip were normal. These were the only x-rays.
On physical examination, he has 5 cm by 5 cm fibrous mass on the right iliac crest, probably from the contusion, fibrous from the fall. He has pain on flexion over this area. Range of motion of his lumbar spine was within normal limits, as well as the lower extremities. He had no loss of strength against resistance. He could heel and toe walk. He is able to squat. He had no sensory deficits. His patella and ankle reflexes were normal.
His diagnosis is probably sprain, but I do feel (MRI should be taken) to rule out any pathology. He should have a therapy program of stretching and isometric strengthening of his lumbar and abdominal muscles and possibly a trigger point injection. . . .
We hold that Dr. Green’s direct observation of a “5 cm by 5 cm fibrous mass” constituted an objective finding pursuant to § 11-9-102(16), and we reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
Rogers and Meads, JJ., agree. | [
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Per Curiam.
From January 1, 1981, until his death on May 3, 1997, Judge James R. Cooper faithfully served the State of Arkansas as a member of the Arkansas Court of Appeals. Upon the occasion of his death, the court wishes to express its sincere condolences to Judge Cooper’s family and takes this moment to recognize the dignity and civility that he displayed during his service on the court.
Following the creation of the Arkansas Court of Appeals in 1979, Judge Cooper became one of the initially elected judges, and at the time of his departure he was the last of these original elected judges who remained on the court. During his years as an appellate judge, he maintained a commitment to justice and fairness and stood as a positive example for the other judges with whom he served. Judge Cooper truly had a profound and enduring impact on the direction of the law in this state over a period of nearly two decades. He will be sorely missed on both a professional and personal level by his many friends and colleagues. | [
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John E. Jennings, Judge.
This appeal results from Order No. 8 entered by the Arkansas Public Service Commission (Commission) in Docket No. 94-175-U, which approved a Joint Proposed Stipulation (Stipulation) entered into by Arkansas Louisiana Gas Company, a division of NorAm Energy Corporation (Arkla), the Staff of the Arkansas Public Service Commission (Staff), and Arkansas Gas Consumers (AGC). The Stipulation allowed Arkla to raise its overall rates by $6,976,606 and allocated these rates among Arkla’s various classes of ratepayers. The Attorney General was also a party to the proceedings but objected to the Commission’s adoption of the Stipulation and brings this appeal. He contends that the Stipulation’s allocation of the rate increase is not supported by substantial evidence; that the Stipulation’s provision allowing Arkla to recover its corridor rate costs from all ratepayers is an abuse of the Commission’s discretion and unreasonably and illegally discriminatory; and that the allocation of the corridor rate costs among the ratepayers is not supported by substantial evidence. We affirm the decision of the Commission.
In May 1994, Arkla filed an application with the Arkansas Public Service Commission for an annual rate increase of approximately $10 million. Docket No. 94-175 was established, AGC was granted intervenor status in the docket, and the Attorney General notified the Commission of his intent to participate in the proceedings. Staff then began conducting an extensive audit and analysis of Arkla’s application, books, and records. Over 5,000 pages of exhibits, records, and direct, rebuttal, and surrebuttal testimony were filed by the parties. Arkla amended its request to seek a $10.1-million annual increase in rates, Staff recommended a $4.6-million annual increase for Arkla, and the Attorney General argued that Arkla was entitled to a $2.7-million increase. One week before the Commission’s hearing on Arkla’s application was to begin, the parties began preliminary discussions to determine whether there was a possibility of narrowing the issues or settling the entire matter. As a result of their discussions, a stipulation was reached among Arkla, Staff, and AGC, that was filed with the Commission on January 23, 1995.
The Stipulation reflected an agreed-upon revenue deficiency that allowed Arkla to increase its rates by $6,976,606.00. The resulting rate increase was allocated among Arkla’s customer classes, with $6,860,988.00 (98.3%) of the increase being assigned to the residential class. The Stipulation also provided for the allocation of the revenues lost from the use of the corridor rates. The Stipulation included Arkla’s agreement not to file another application requesting a general change in its rates and tariffs prior to June 1, 1996, unless an immediate and impelling necessity existed under the provisions of Ark. Code Ann. § 23-4-408, and Arkla’s agreement to dismiss its appeals before the Arkansas Court of Appeals in Case Nos. CA 94-487 and CA 94-731.
Order No. 8, entered by the Commission on March 15, 1995, approved the Stipulation in its entirety. The Attorney General petitioned for rehearing of Order No. 8, and the Commission denied his petition in Order No. 9. On June 13, 1995, the Attorney General filed a notice of appeal from Orders No. 8 and 9.
This court’s review of the Commission’s order is limited and governed by Ark. Code Ann. § 23-2-423(c) (Supp. 1995), which provides in part:
(3) The finding of the commission as to the facts, if supported by substantial evidence, shall be conclusive.
(4) The review shall not be extended further than to determine whether the commission’s findings are supported by substantial evidence and whether the commission has regularly pursued its authority, including a determination of whether the order or decision under review violated any right of the petitioner under the laws or Constitution of the United States or of the State of Arkansas.
It has repeatedly been held that the Commission has wide discretion in choosing its approach to rate regulation and this court does not advise the Commission as to how to make its findings or exercise its discretion. Bryant v. Arkansas Pub. Serv. Comm’n, 54 Ark. App. 157, 168, 924 S.W.2d 472 (1996); Bryant v. Arkansas Pub. Serv. Comm’n, 50 Ark. App. 213, 219, 907 S.W.2d 140 (1995). The appellate court is generally not concerned with the method used by the Commission in calculating rates as long as the Commission’s action is based on substantial evidence and the total effect of the rate order is not unjust, unreasonable, unlawful, or discriminatory. 50 Ark. App. at 219-20. The appellate court views only the evidence most favorable to the appellees in cases presenting questions of substantial evidence, and the burden is on the appellant to show a lack of substantial evidence to support an administrative agency’s decision. Bryant v. Arkansas Pub. Serv. Comm’n, 46 Ark. App. 88, 102, 877 S.W.2d 594 (1994). To establish an absence of substantial evidence to support a decision, the appellant must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. AT&T Communications of the SW, Inc. v. Arkansas Pub. Serv. Comm’n, 40 Ark. App. 126, 131, 843 S.W.2d 855 (1992); Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm’n, 35 Ark. App. 47, 71-72, 813 S.W.2d 263 (1991). The question on review is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made. 35 Ark. App. at 72.
The Attorney General’s first point on appeal concerns the Commission’s approval of its Stipulation’s allocation of the $6.9 million rate increase among the rate classes. The Attorney General does not appeal the overall rate increase, but the Stipulation’s apportionment of the rate increase among the various classes of ratepayers. Specifically, he focuses on the Stipulation’s provision that allows 98% of the rate increase to be allocated to the residential ratepayers, which he contends is not supported by substantial evidence. In support of his contention, he relies on the cost-of-service studies that his expert witness and Staff prepared in order to determine Arkla’s revenue requirement. He argues that these studies reflect that, at the time of Arkla’s rate request, it was earning a positive rate of return on its residential ratepayers and a negative rate of return on its GS-5 and GS-6 ratepayers and that the figures refute Arkla’s assertions that the residential ratepayers have been subsidized by the industrial ratepayers.
Staff’s cost-of-service study , Exhibit DC-2, showed that, based on equal rates of return, Arkla was receiving a 4.69% rate of return from its residential ratepayers compared to a -5.34% rate of return from its GS-5 class. Staffs surrebuttal Exhibit DC-7 cost-of-service study, showed that Arkla received a 3.96% rate of return from its residential class as compared to a -2.59% rate of return from its GS-5 class. The Attorney General’s cost-of-service studies demonstrated that rates would need to be increased by 18.07% for the GS-5 class as compared to 1.45% for the residential class to achieve equal rates of return.
The Attorney General is correct in his assertion that the individual cost-of-service studies prepared by his expert witness and Staffs witness showed that Arkla was earning a positive rate of return from its residential class and a negative rate of return from some of its industrial classes. These cost-of-service studies, however, were not the only evidence before the Commission, nor did Staff advocate allocating the rate increase based on these studies. Staffs senior gas analyst, Donna Campbell, who prepared Staffs cost-of-service studies, testified that she proposed no change in GS-5’s and GS-6’s revenue requirements because of bypass concerns. This Court recognized in Bryant v. Arkansas Public Service Commission, 50 Ark. App. at 237, that a cost-of-service study is merely one tool that may be used in rate-design determinations and noncost factors can also be taken into consideration. See also Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm’n, 20 Ark. App. 216, 222, 727 S.W.2d 146 (1987). The Commission is never compelled to accept the opinion of any witness on any issue before it, nor is it bound to accept one or the other of any conflicting views, opinions, or methodologies. Bryant v. Arkansas Pub. Serv. Comm’n, 46 Ark. App. at 103.
We also note that the results of the Attorney General’s and Staffs cost-of-service studies were disputed by Arkla and AGC because of their gas main allocations. In preparing its cost-of-service study DC-2, Staff used the zero-intercept method. It used a minimum pipe size of 1.25 inches in preparing DC-7. The Attorney General’s cost-of-service studies allocated mains based on the zero-intercept method and the demand method.
In his prefiled testimony, Arkla witness Collier Mickle testified that Arkla’s system serves a considerable number of customers in rural areas; that its distribution grid is used far more by the lower-volume customer classes, especially the residential classes, than larger-volume customers; and that, because of the rural nature of Arkansas’s system, there is a high ratio of pipe investment per customer, which is rarely found in serving industrial customers. He stated that Arkla takes these factors into consideration by recognizing that the annual throughput has practically nothing to do with the cost of pipe investment. Pipe investment, he explained, is undertaken according to the flow requirements that are expected to be placed upon it at a given location at a given time and, therefore, Arkla’s cost-of-service study used pipes that are two inches in diameter as the prevalent minimum size. He stated that, in allocating all costs to customer classes, Arkla used an allocation methodology which yields a result that more closely approximates the actual cost of providing service to an individual customer or group of customers and that Arkla modified the results of its cost-of-service study for purposes of rate design in order to reduce the rate impact on residential customers. He stated that the modification results in greater cost recovery from some nonresidential-customer classes as compared to the results of its cost-of-service study but also represents an additional step toward “true” cost-of-service rates. Mr. Mickle’s testimony was corroborated by that of Arkla witness David Sullins, who also noted that Staffs calculation used only plastic pipe, which represents only 31% of the pipe footage .in Arkla’s system, and that Arkla has a significant investment in steel within its system.
Staffs senior gas analyst, Donna Campbell, argued that performing a zero-intercept analysis of the cost of gas mains was not possible because of data constraints and also recommended use of a minimum-size methodology, although she disagreed with Arkla’s use of a two-inch main as the minimum size. She acknowledged that Arkla had indicated that a two-inch main would be installed regardless of the required diameter needed and that virtually all new mains that are designed to directly serve residential or small-business customers are two-inch mains.
Richard Baudino, a utility rate and economic consultant, testified for AGC. He also disagreed with Staff s and the Attorney General’s allocation of gas mains, stating that Staff omitted steel mains from its calculation which excludes 69% of the distribution mains and recommended that Arkla’s two-inch main be adopted. He also stated that the Attorney General’s zero-intercept method was flawed because he used only data for plastic pipe. He stated that allocating gas mains solely on demand skews the results in favor of the residential class and unfairly loads the cost on general service customers.
In addressing the allocation of gas mains in Bryant v. Arkansas Public Service Commission, 50 Ark. App. at 234, this Court noted that it is an area in which it is appropriate to recognize the Commission’s experience, technical competence, and specialized knowledge, and the discretionary authority conferred upon the Commission. The Public Service Commission has wide discretion in choosing its approach to rate regulation, and it is not bound by a particular method of evaluation. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 267 Ark. 550, 567-68, 593 S.W.2d 434 (1980).
The Attorney General also seeks to discredit Arkla’s cost-of-service study by arguing that the Attorney General’s sales forecast is the only one supported by substantial evidence. We disagree. Sufficient evidence was presented to support Staffs and Arkla’s sales forecasts that predicted a downward trend in gas use. Arkla witness Lisa Black testified that, because of improved energy-efficient construction standards, extensive renovation and weatherization of existing homes, and the use of more efficient end-use equipment, conservation is the primary cause of Arkla’s declining load. Staff witness Kim Davis also testified that loss of gas-fired air-conditioning customers is a significant factor in the decline of Arkla summer usage and that, at the current rate of decline, Staff projects that no residential gas-fired air-conditioning units will be in service in three to four years.
The Attorney General has not demonstrated that the Commission erred in not adopting his or the Staffs cost-of-service studies, nor has he demonstrated that the rate allocation included in the Stipulation and approved by the Commission is not supported by substantial evidence. He argues that neither Staff nor the Attorney General show in their cost-of-service studies that residential ratepayers should be singled out for the largest rate increase; however, counsel for the Attorney General acknowledged in her opening argument to the Commission that the residential ratepayers did not lose as much in the Stipulation as they would under Arkla’s, AGC’s, or Staff s testimony. The Commission also had for its consideration over 5,000 pages of prefiled testimony and exhibits, which were admitted into evidence.
Arkla witness David Sullins testified that the allocation of costs among customer classes was an open issue with respect to the Stipulation and that all of the parties except the Attorney General were able to reach a compromise on that issue. He stated that only the Attorney General recommended rate increases for the larger industrial customers, and in that respect, the Stipulation represents a compromise of the positions of all parties, including the Attorney General. He also stated that the Attorney General suggested further increases for the industrial customers but that such increases were inconsistent with Arkla’s cost-of-service study and the recommendations and findings of Staff.
Arkla witness Todd Cooper stated that Arkla’s cost-of-service study indicated that its largest gas consumers continue to pay more than their economic cost of service and therefore Arkla proposed to hold constant the distribution rates for GS-2, GS-3, GS-4, GS-5, and GS-6 customers and collect the requested increase from residential and GS-1 customers. He stated that this approach over time will tend to negate the unequal rate of return that currendy exists between customer classes without causing rate shock.
Staff witness Donna Gray testified that the evidence in the record and the possibility of rate stability over the next two years were the primary factors that Staff considered in deciding to enter into the Stipulation. She stated that there had been a pattern from the previous rate cases of annual increases of $5 million, that Staff had determined that ratepayers would be faced with at least a $3-million increase over the next two years, and that, in her opinion, the Stipulation provided a more favorable outcome than the ratepayers would have gotten through litigation in another rate case. She stated that the approximate $6.8-million rate increase that will be borne by the residential ratepayers represents a 3.8% increase in their total overall gas bill and will cause an average residential bill to increase $1.46 per month. Ms. Gray further explained that the industrial ratepayers’ potential for bypass and its impact on the remaining customers was a major consideration for Staff in developing its ultimate recommendations with regard to cost allocation and rate design.
Richard Baudino, consultant for AGC, stated that, based upon his evaluation of the strengths and weaknesses of the parties’ cases, the Stipulation’s revenue-increase allocation strikes a balance between the parties’ various testimony, the cost-of-service studies filed, the avoidance of rate shock to any classes, and the risk of litigation.
The Commission found that the provisions of the Stipulation were clearly within the reasonable range of opinions and recommendations presented by the various expert witnesses and that, based upon their expert testimony, substantial evidence existed to support its conclusion that the Stipulation presented a just and reasonable resolution of the case. We cannot say the Commission’s finding in this regard is not supported by substantial evidence.
It is appropriate for this Court, in reviewing the sufficiency of the evidence to support the rate allocation in the Stipulation, to consider the Stipulation itself, as it is the functional equivalent of testimony in support of it and evidence that the rates included in it are just and reasonable. See Bryant v. Arkansas Pub. Serv. Comm’n, 46 Ark. App. at 102-03. The evaluation of testimony in a rate case is for the Public Service Commission, not the courts, and in order to hold the testimony does not constitute substantial evidence, the court must find the testimony has no rational basis. See Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 267 Ark. at 568.
We decline to address the Attorney General’s argument that the Commission’s failure to state in Order No. 8 the proper method for allocating gas mains or the cost-of-service study it used in approving the Stipulation is enough to justify remand. The Attorney General admits in his brief that the Commission does not have to rely entirely on a particular cost-of-service study to decide how rates are allocated per class. Furthermore, the Attorney General did not make such a request in his petition for rehearing. “No objection to any order of the commission shall be considered by the Court of Appeals unless the objection shall have been urged before the commission in the application for rehearing.” Ark. Code Ann. § 23-2-423(c)(2) (Supp. 1995).
The Attorney General’s second point concerns the Commission’s approval of the Stipulation’s provision that allows Arkla to collect its corridor rate costs from all ratepayers. Arkla witness David Sullins explained that corridor rates are rates designed by Arkla to accurately reflect the cost of servicing customers for whom bypass is economically and operationally feasible. The Stipulation includes two corridor rate schedules: the metering and regulating rate schedule (MR-1) and the pipeline corridor rate schedule (PC-1). Customers eligible for MR-1 rates consist of those customers whose delivery point on Arkla’s distribution system is within 300 feet of an alternative pipeline or other natural gas source and who can demonstrate that bypass of Arkla’s distribution system is economically feasible. Customers eligible for PC-1 rates are those within 2,000 feet. Under the terms of the Stipulation, Arkla is allowed to recover from its remaining ratepayers its corridor rate costs, i.e., the rates it will lose if a ratepayer elects to receive corridor rates, in the following proportions:
Residential 70.6%
GS-1 10.1%
GS-2 11.3%
GS-3 2.7%
GS-4 1.8%
GS-5 2.3%
GS-6 1.2%
Total 100%
Sullins testified that Arkla had identified thirty-four customers that appear to qualify for the corridor rate schedules and that, if all eligible customers elected to receive corridor rates, the maximum amount of lost rates that would be collected from the remaining ratepayers would be $500,000.
The Attorney General argues that the Stipulation’s provision that allows Arkla to recover from its other ratepayers its corridor rate costs violates the “just and reasonable” provisions of Ark. Code Ann. §§ 23-4-103 and 23-4-104 (1987) and is price discrimination, prohibited by Ark. Code Ann. § 23-3-114(a) and (b) (1987).
Arkansas Code Annotated § 23-4-103 (1987) provides:
All rates made, demanded, or received by any public utility, for any product or commodity furnished, or to be furnished, or any service rendered or to be rendered, and all rules and regulations made by any public utility pertaining thereto shall be just and reasonable, and to the extent that the rates, rules, or regulations may be unjust or unreasonable, are prohibited and declared unlawful.
Arkansas Code Annotated § 23-4-104 (1987) states that all charges, tolls, fares, and rates shall be just and reasonable and that no charge shall be made in any tariffs, rates, fares, tolls, schedules, or classifications except as provided in this act. Arkansas Code Annotated § 23-3-114 (1987) provides:
(a)(1) As to rates or services, no public utility shall make or grant any unreasonable preference or advantage to any corporation or person or subject any corporation or person to any unreasonable prejudice or disadvantage.
(2) No public utility shall establish or maintain any unreasonable difference as to rates or services, either as between localities or as between classes of service.
(b) The commission, in the exercise of its jurisdiction granted by this act, may fix uniform rates applicable throughout the territory served by any public utility whenever in its judgment public interest requires such uniform rates.
Section 23-3-114 does not prohibit rate differences; it merely prevents unreasonable rate differences. Wilson v. Arkansas Pub. Serv. Comm’n, 278 Ark. 591, 594, 648 S.W.2d 63 (1983); Bryant v. Arkansas Pub. Serv. Comm’n, 50 Ark. App. at 238. Whether a rate difference is unreasonable is a question for the Commission. Ark. Code Ann. § 23-3-114(c). Here, evidence was presented to the Commission from which it could find that corridor rates were a just and reasonable response to the threat of bypass.
Arkla witness David Sullins testified that, in developing corridor rates, Arkla was confronted with bypass of its largest customer, that bypass was economically feasible for that customer, and that several other large customers had indicated that they were in the process of assessing their bypass options. He stated that the corridor rates represent the costs of servicing the customers that qualify for those rates and are necessary to prevent a substantial number of customers from bypassing Arkla’s distribution which would result in an even greater degree of revenue shifting to its remaining customers as a result of bypass.
Staff witness Donna Gray also testified that the corridor rates directly identify a portion of the bypass potential and are a reasonable solution at this time. She stated that a major consideration for Staff in developing its ultimate recommendation with regard to cost allocation was the impact on the remaining ratepayers if industrial ratepayers left the system and their fixed costs were spread among the remaining customers.
AGC witness Richard Baudino recommended approval of the corridor rates, stating that they would allow Arkla to continue to receive fixed cost contribution from the ratepayers who had bypass options and thereby mitigate the loss of revenue that would occur if a customer bypassed the system.
The Commission in Order No. 8 stated that the potential for bypass of Arkla’s system was indeed present and that even the Attorney General’s witness recognized the existence of this problem. The Commission stated that, although it had some concerns regarding the treatment of the revenues lost to corridor rates, its concerns were not with the availability of the corridor rates as appropriate tools to assist Arkla in controlling bypass. We find that substantial evidence existed for the Commission’s approval of corridor rates and the Attorney General has failed to show that the corridor rates are unjust, unreasonable, or discriminatory.
The Attorney General also argues under this point that the Commission erred in not finding that the establishment of the corridor rates constitutes a promotional practice under Section 2 of the Commission’s Promotional Practice Rules and Title 23 of the Arkansas Code. We do not address this issue because it was not timely raised. It first appears in the Attorney General’s post-hearing brief that was filed after the hearing was concluded. Rule 3.13 of the Commission’s Rules of Practice and Procedure provides that “[a] hearing shall be deemed concluded when the presiding officer so determines.” The Attorney General has not cited us to any authority that allows a new issue to be presented after the hearing is concluded.
The Attorney General’s final point involves the Stipulation’s provision that allows Arkla to collect from its remaining ratepayers the revenue lost as a result of an industrial ratepayer’s election to use corridor rates. The Attorney General argues that the allocation of these corridor rate costs to the remaining ratepayers is not based upon substantial evidence. Specifically, he argues that, although neither Arkla nor Staff suggested that residential ratepayers should bear any of the cost of these rates, the Stipulation requires residential ratepayers to bear 70.6% of their cost.
Arkla witness David Sullins testified that it was AGC who recommended that the corridor rate costs be applied to all customer classes, including the residential class. He explained that the Stipulation reflected a compromise of all the parties and that AGC agreed to an increase for its larger customers in return for the agreement to include the residential customers in the allocation. There was also evidence that, even with the additional allocation of corridor rate costs, the residential rate would still be less than the deficiencies for the residential class that were recommended by Staff witness Donna Campbell.
We recognize that the Stipulation represents a compromise of the parties’ positions. To hold that the Commission could not adopt the Stipulation because no party in its prefiled testimony testified in support of the exact same terms as those included in the Stipulation would effectively eliminate the Commission’s power to set rates which it finds are just and reasonable. See Bryant v. Arkansas Public Service Commission, 46 Ark. App. at 103. It is the total effect of a rate order that we must review, and if the total effect of a rate order cannot be said to be unjust, unreasonable, unlawful, or discriminatory, judicial inquiry is concluded. 46 Ark. App. at 103.
The Attorney General also refers us to our opinion in Bryant v. Arkansas Public Service Commission, 50 Ark. App. at 213, where we stated that the local distribution companies (LDC) such as Arkla also must share some responsibility in balancing the interests between all ratepayers and “[w]here the LDC can be shown to have lost the contributions of industrial customers through imprudent judgments, LDC shareholders, rather than LDC ratepayers, may be made to bear the consequences of the LDC’s inability to handle competition.” 50 Ark. App. at 239. Here, however, there is no evidence that Arkla acted imprudently. While we share the Attorney General’s concern for the residential ratepayers and continue to urge the Commission to closely scrutinize the allocation of a utility’s rate increase, we cannot say, under the facts of this case, that the Commission’s approval of the allocation of the corridor rate costs is not supported by substantial evidence.
The Attorney General also stresses that Arkla has no incentive to deny GS-4, GS-5, and GS-6 class applications for corridor rates because Arkla will collect its lost revenues from other ratepayers. The Commission expressed the same concern. To that end, it required Arkla to keep and provide detailed justification records so that the Commission can consider at Arkla’s next rate hearing all factors and circumstances bearing on the issue of automatic recovery of lost revenues from Arkla’s remaining customers. The Commission took the steps that it deemed necessary to determine whether the allocated revenues should be recovered. We have repeatedly held that the Public Service Commission has wide discretion in choosing its approach to rate regulation, and the appellate court does not advise the Commission on how to make its findings or exercise its discretion. Bryant v. Arkansas Pub. Serv. Comm’n, 50 Ark. App. at 219.
Affirmed.
Robbins, C.J., and Rogers and Stroud, JJ., agree.
Crabtree and Roaf, JJ., concur.
Cost of Service - A term used in public utility regulation to mean the total number of dollars required to supply any total utility service (i.e., revenue requirements); it must include all of the supplier’s costs, an amount to cover operation and maintenance expenses, and other necessary costs such as taxes, including income taxes, depreciation, depletion, and amortization of the property not covered by ordinary maintenance. Included also is a fair return in order that the utility can maintain its financial integrity, attract new capital, and compensate the owners of the property for the risks involved.
A “cost of service study” is made in order to assist in determining the total revenue requirements to be recovered from each of the various classes of service. The amounts to be recovered from each of the classes of service is determined by the management or a commission after study of the various factors involved in rate design. Cost analysis or cost allocation is an important factor m rate design but only one of several important factors. Cost analysis does not produce a precise inflexible “cost of service” for any individual class of service because cost analysis involves judgment in certain cost areas. Its principal value is in determining the minimum costs attributable to each class of service. Other factors that must be considered in rate design are the value of the service, the cost of competitive services, the volume and load factor of the service and their relation to system load equalization and stabilization of revenue, promotional factors and their relation to the social and economic growth of the service area, political factors such as the sizes of minimum bills, and regulatory factors. American Gas Association, Glossary for the Gas Industry 13 (4th ed. 1986).
Bypass occurs when large customers arrange direct access to a pipeline supplier; in addition to diminished contribution to fixed costs, bypass can adversely affect remaining customers by reducing the economics of scale achieved by local distribution companies. The bypass of a regulated utility may result in stranded investment, duplicative facilities, and higher rates for remaining customers. Bryant v. Arkansas Pub. Serv. Comm’n, 46 Ark. App. at 92, n. 1. | [
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John B. Robbins, Chief Judge.
Appellant Charlotte Nancy Benn appeals the termination of appellee Richard Benn’s obligation to pay her alimony. Appellee cross-appeals the finding of the chancellor that he owes back alimony. The history of the case reveals that the parties were divorced in January 1981. The property settlement agreement entered by the parties and incorporated into the divorce decree provided that appellee would pay $600.00 per month in alimony to appellant. This was later reduced by a 1984 order to $500.00 per month.
On May 2, 1995, appellant filed a motion for contempt, alleging that appellee had failed to pay any alimony since the most recent judgment for arrears of February 12, 1986. Appellee countered with a motion to terminate alimony. In the chancellor’s order of December 28, 1995, he terminated the alimony obligation but found that appellant was entitled to $33,931.50 in back alimony. In accordance with the five-year statute of limitations, he awarded judgment for unpaid alimony accrued since May 2, 1990, a date five years prior to May 2, 1995, when she filed her motion for contempt. Both parties now seek relief from this court. We affirm the judgment for arrearage, but reverse as to the termination of alimony.
Bethell v. Bethell, 268 Ark. 409, 597 S.W.2d 576 (1980), is cited by appellee as authority for estopping appellant from seeking past due alimony. The opinion in that case states that, as a general rule, an ex-spouse is entitled to all past due alimony not barred by the five-year statute of limitations, unless the ex-spouse is barred by inequitable action in seeking judgment for the arrearage. Waiver or estoppel may be established if an ex-wife sits upon her rights to recover an arrearage for such a long period of time that her ex-husband acts in reliance upon that nonaction. Id. There is no evidence in the record, though, that any consideration was given by appellee or that any reliance was placed on appellant’s failure, or, more appropriately, inability, to pursue back alimony for such a period of time. In Bethell and the other cases cited therein, it is important to note that there had been an agreement between the ex-spouses to accept a reduction in alimony or support for some period of time. Such is not the case in the Benns’ situation.
Another case, Cunningham v. Cunningham, 297 Ark. 377, 761 S.W.2d 941 (1988), is more on point with the case before us. It states that the mere fact one delays pursuing rights to obtain a judgment on past due support does not prevent one from seeking a judgment. In the case at bar, there was no agreement between the parties to reduce or terminate appellant’s right to alimony. The delay, per appellant’s testimony, was simply the result of frustration by another state’s laws. Appellee’s reliance on Bethell is misplaced.
Appellant testified that she did not sit on her rights, but had tried to execute on her 1986 judgment for unpaid alimony. She could not recover on the judgment in Texas, however, because Texas, appellee’s home state at the time, did not allow garnishment of wages. She renewed efforts to retrieve back alimony in May 1995 after learning that appellee had returned to Arkansas. The chancellor’s order reflects this testimony: This directly contradicts appellee’s argument that appellant should be estopped to recover accrued alimony for sitting on her rights for years until such time as appellee inherited monies. Indeed, the record reflects that appellant had no less than three judgments against appellee since the time they were divorced, including the July 1986 judgment, which was still unsatisfied at the time of the hearing. Thus, as to the judgment for arrears, we affirm.
[T]here is testimony that the Plaintiff was out of work for a period of time; lived in another state for a time due to employment; and, that Defendant endeavored to pursue her claim for alimony in the State of Texas where Plaintiff lived and worked, and was hampered by non-resident employers of the Plaintiff relative to garnishments. That, however, Plaintiff made no payments of alimony during this period of time pursuant to the parties’ agreement, or this Court’s Order.
Appellant contends that the chancellor erred in terminating future alimony, arguing that there was not a sufficient change of circumstances upon which the chancellor could terminate alimony. We agree. It is well settled that the burden of showing a change of circumstances is on the party seeking a modification. Bracken v. Bracken, 302 Ark. 103, 787 S.W.2d 678 (1990). The primary factors to be considered in changing an award of alimony are the needs of one party and the ability of the other party to pay. Id. Of course, each case is to be judged upon its own facts. Discretion is vested in the chancellor, and the appellate court will not reverse absent an abuse of discretion. Id. From a review of the evidence before the chancellor, we find that there was an insufficient showing of a change in circumstances to warrant a termination of alimony.
The record reveals that appellant was unemployed at the time of the hearing due to breast cancer surgery and pending chemotherapy and radiation treatment. She also testified that profits from her interior decorating business had declined substantially, primarily due to increased competition. Appellee testified that he inherited over $250,000.00 in 1995 and that he was gainfully employed at the time of the hearing, making twice the money he was earning in 1984 when alimony was reduced.
In support of a change of circumstances, appellee asserted that he remarried in 1981, taking on a dependent wife and stepchildren, and that the parties’ younger child had reached majority. Appellee testified that he was hospitalized for eight days at one point, and that his current wife had heart problems which necessitated two hospitalizations, though no evidence or testimony was elicited showing the dates of these events or their cost to appellee. Appellee testified that he had a zero or negative worth until his mother died in February 1995, and that his total income for 1994 was $75,753.00. Appellee testified that he guessed he earned about $35,000.00 in 1984, the year his alimony was reduced to $500.00 per month.
Appellant argues in response that appellee used his remarriage, the majority of the parties’ children, and a period of unemployment as circumstances that entitled him to the 1984 ruling that reduced his alimony obligation. Only those changes in circumstances occurring after the 1984 modification could support a further modification. Appellant argues that the changes in circumstances that gave rise to the 1984 modification cannot again be used to terminate alimony. See Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980). Appellee has not presented evidence of any changes that have occurred since the January 1984 order that have worsened his circumstances. In fact, he appears in better financial shape, especially considering his inheritance of $263,517.35, subject to only $7,243.69 in inheritance taxes, and steady employment. Conversely, appellant is in worse financial condition after sending the parties’ daughter through college, experiencing reduced earnings in her interior design business, and suffering a current bout with breast cancer. This court can see no change in circumstances that would justify termination of alimony.
In the portion of his order terminating alimony, the chancellor stated:
[I]t is this Court’s considered opinion that it is in the best interest and welfare of these parties, and what is left of any family relationship, as well as based on the numerous changes of circumstances of each party that the alimony ordered paid by the Plaintiff ■ to the Defendant herein should be fully and finally terminated, cancelled, and held for naught upon entry of this Order. . .so that all claims of either party against the other are hereby determined and concluded. . . .
We find no material change in circumstance since the 1984 modification that would support a termination of alimony. We review chancery cases de novo and reverse only upon a finding that the chancellor’s decision is clearly erroneous. We find that it was clearly against the preponderance of the evidence to terminate ali mony and reverse that portion of the chancellor’s order of December 28, 1995, which did so.
Reversed on appeal and affirmed on cross-appeal.
Jennings and Rogers, JJ., agree. | [
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Humphreys, J.
This is an appeal from a decree of the Conway Chancery Court, sustaining the sufficiency of the proceedings establishing Street Paving Improvement District No. 1 of Morrilton, Arkansas.
Appellant, a property owner of the district, attacked the validity thereof on the ground that the petitions for the organization of, and the ordinances creating and establishing the district, failed to certainly and definitely describe the improvements to be made.
The preliminary petition, required by section 5649 of Crawford & Moses’ Digest, described the improvements contemplated, as follows: “The said improvement district as above described to be organized for the purpose of macadamizing, grading, graveling, paving, curbing, guttering or improving with such material as may be determined. ’ ’
The petition for the establishment and organization of the district under section 5652 of Crawford & Moses’ Digest described the improvements to be made as follows: “We respectfully petition and ask that the following improvements contemplated be made in said district, of the nature, kind and character, towit: Macadamizing, grading, graveling, paving, curbing, guttering or improving in such a manner and form' as provided and shown by the estimates, plans and specifications prepared and on file be made and constructed on the following streets.”
The ordinance passed by the city council creating the district and fixing the boundaries thereof provided that the improvements to be made should be “grading, graveling and macadamizing, surfacing, paving, curbing or guttering the streets therein mentioned. ’ ’
This court ruled, in the case of McDonnell v. Improvement Dist. No. 145, Little Rock, 97 Art. 334, that the petitions provided for in sections 5649 and 5652 of Crawford & Moses’ Digest for the organization of improvement districts in incorporated towns and cities need not mate particular specifications of the things to be done in order to mate the improvements. It was said in that case: “All that is required is that the nature of the improvement be specified in general terms, so that the purpose of the organization may be set forth in the proceedings. Much must, of course, be left to the discretion of the commissioners in forming the plans for the improvement and making the estimates of the cost thereof.” The ruling in that case was reaffirmed in Board of Improvement of Paving Dist. No. 7 of City of Port Smith v. Brun, 105 Ark. 65. Under the ruling in those cases, the description in the petitions now before us described the proposed improvements with sufficient certainty and definiteness. The petitions and ordinances provide for paving the streets described, by macadamizing or graveling them, as well as for curbing and guttering said streets. It is true that the petitions contain a provision authorizing the improvement to be made with such material as may be determined, but that necessarily means material of the general character used in macadamizing or graveling streets. Appellant makes the further specific contention that, under the descriptive language used, it is impossible to determine whether all improvements therein designated are to be made, or, if not all, what particular improvements so enumerated shall be made. We understand the language to mean that the board of improvement shall either macadamize or gravel the streets, one or the other. We also understand the descriptive language to mean that, in addition to paving proper, the streets shall be curbed and guttered; so the paving, curbing and guttering constitute a single improvement. This court said in the case of Board of Improvement of Paving Dist. No. 7 of City of Fort Smith v. Brun, 105 Ark. 65, that, “If the improvement of the street is authorized, and to make such improvement it is necessary to grade, macadamize and curb the street, the work undertaken is in fact hut one improvement, although parts of the work are called by different names.” The property owners in the petition before us have clearly elected to pave the streets described by graveling or macadamizing them, as well as to curb and gutter said streets by the creation of one district. This they had a right to do, under the ruling announced in Bottrell v. Hollipeter, 135 Ark. 315, and in other cases of this court cited therein.
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Hart, J.
(after stating the facts), It is the contention of the plaintiff, Upton, that the court erred in not allowing him treble damages for the trespass. The plaintiff relies on section 10320 of Crawford & Moses’ Digest, which provides, in substance, that if any person shall cut down or remove any timber growing on the land of another, every person so trespassing shall pay the party injured treble its value.
Section 10322 of Crawford & Moses’ Digest provides that if, on the trial of any action brought under the provisions of the act, it shall appear that the defendant had probable cause to believe that the land on which the trespass is alleged to have been committed is his own, the plaintiff shall recover single damages only.
In construing a statute in all essential respects similar to our own, and in which it was provided that if it should appear that the defendant had probable cause to believe that the land on which the trespass was committed was his own, the plaintiff should recover single damages only, the Supreme Court of Michigan held that the right of the plaintiff to recover treble damages would depend upon the good faith of the defendant. Wallace v. Finch, 24 Mich. 255. Mr. Justice Graves, who delivered the opinion of the court, in discussing the statute said that no element of wilfulness could avail the defendant from legal liability for single damages under the statute. Continuing the learned justice said:
“The question of treble damages, however, stands on a different principle altogether. When this law gives single damages, it has a single object, and that is to redress the injured party. But when the damages are to be trebled, the object is two-fold, namely: to redress the injury done, and also to punish the wrong-doer. No other explanation of these provisions is possible, and, according to well settled rules, when a law is susceptible of penal applications in special cases, such applications of it ought to be closely confined..to cases within its principle. Now, when we come to interpret this statute, we must either hold' that the Legislature meant that any person, however blameless in a moral point of view, who should be within the inculpatory words of the first section, and not within the exact words of the saving provisions of the second section, should be punished; or, on the contrary, that the Legislature meant that the penal application should be made only in cases marked by wantonness, wilfulness or evil design. And it is hardly admissible to impute the former purpose to the Legislature.
“ Indeed, the nature of the limitations contained in the second section indicates very clearly that no such purpose was contemplated. Those limitations all point to the exclusion of the penal application where the trespass is not aggravated by bad faith or other positive blame, and they amount to a legislative intimation that the penal provisions were not intended to apply where punishment beyond redress for injury would he inapt, impolitic and unjust.”
In Barnes v. Jones, 51 Cal. 303, it was held that the lower court erred in trebling the damages, and the court held that, while the statute in that State did not so state, in express terms, it was clear that it was not intended to apply to cases in which the trespass was committed through an innocent mistake as to the boundary of a tract of land claimed by the defendant.
In Batchelder v. Kelly, 10 N. H. 436, 34 Am. Dec. 174, the court said that to subject a party to the penalty prescribed by statute it must appear that the act was done knowingly and wilfully and not through mistake or accident.
In Perkins v. Hackleman, 26 Miss. 41, 59 Am. Dec. 243, the court held that a party supposing himself to be cutting timber on his own land, but by mistake cutting on another’s land, is liable for acutal damages only. In construing such a statute in the case of Whitecraft v. Vandever, 12 Ill. 235, the court said:
“The object of the statute is to furnish an additional remedy to the owner of the land, and also to punish the wrong-doer.
‘ ‘ To subject a party to such punishment, he must have committed the wrong knowingly and wilfully, or under such circumstances as show him guilty of criminal negligence. It could never have been the intention of the Legislature to impose a penalty upon a person, who, supposing in good faith that he was cutting upon his own land after having taken reasonable pains to ascertain its boundaries, should, inadvertently and by mistake, cut trees upon the land of another.”
In Russell v. Irby, 13 Ala. 131, the court said that the general tenor of the statute was such as wholly to preclude the idea that it was designed to apply to unintentional trespasses. These decisions construing similar statutes in other States are in accord with the decision of this court in Fogel v. Butler, 96 Ark. 87.
There is nothing in the record in the present case tending to show that the defendant cut the timber knowing that he had no authority to do so, or without having probable cause to believe it to be his own. He cautioned his timber cutters not to go beyond the line established by Tom Cash, which he believed to be his boundary line. Cash had been employed by the Pinep ole and Shaft Company to establish the line before that company sold the timber to Wimbrow. There is nothing in the record tending to show that Wimbrow had any reason to believe that Cash was negligent in making the survey. He made the survey before Wimbrow purchased the timber, and for the very purpose of establishing the boundary line. There is nothing tending to show that Wimbrow knew that Cash had been guilty of negligence in making the survey, or that he had anything to do with making it. He simply took the line shown Mm as the true boundary, and there is nothing in the record tending to impeach his good faith in the matter.
The court properly allowed the plaintiff to recover only single damages under the facts disclosed by the record. The -undisputed facts show that the defendant had probable cause to believe that the land on which the timber in question was cut was his own.
Therefore it is unnecessary to consider or discuss •the instructions given or asked on the question of treble damages.
It follows that the judgment must be affirmed. | [
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Andree Layton Roaf, Judge.
This is an appeal from a decision of the Arkansas Workers’ Compensation Commission finding that the appellant, Tommy Johnson, failed to prove that he suffered a compensable injury from exposure to toxic chemicals during his employment with the appellee, Democrat Printing and Lithograph. Johnson alleges that the Commission applied the wrong standard of proof in determining that his claim was for an occupational disease, and, accordingly, requiring him to prove compensability by clear and convincing evidence. He also asserts that there was not substantial evidence to uphold the decision of the Commission. We disagree and affirm.
Tommy Johnson was employed by Democrat Printing in 1976, and began working as a folder-machine operator in 1977. In the course of his employment, he was required to use certain chemical cleansing agents. An expert presented by Democrat Printing noted that the chemicals were within a classification of petroleum products or derivatives or halogenated hydrocarbons. Johnson testified that he had to use the chemicals to clean the rubber rollers on the folder machine and that the room in which he worked was poorly ventilated.
In 1988, Johnson blacked out at work and thereafter saw the company doctor. The doctor told Johnson that the chemicals would not hurt him and that the blackout was probably caused by an allergic reaction to the chemicals. Johnson testified that he began to see doctors regularly after this incident because he was suffering from headaches, sinus problems, stomach problems, and physical and mental breakdowns. Johnson claimed that his problems gradually worsened.
Johnson was hospitalized for alcohol treatment in May 1993, after a one-week drinking binge. Johnson testified that he was a “social drinker” and that he had never had any other problems with alcohol. He attributed his drinking binge to the fact that he was having headaches and the alcohol helped him sleep. His wife testified that she attributed the binge to the fact that they were separated for a short time. She stated that she had called her insurance company (through her job at the post office) to get help for Johnson, and that they had admitted Johnson to a rehabilitation program in Louisiana from May 28, 1993, to June 5, 1993. He was discharged with a diagnosis of alcohol abuse, acute major depression, and personality disorder with dependent and antisocial features.
Johnson has not worked since May 20, 1993. He testified that he has had seizures where he would “go berserk and do things [he does] not remember doing. At times [he] would jump into the truck and go from here to Wichita, or wherever.” Johnson related to a neurologist that sometimes the “seizures” would last a few seconds and up to days. In August 1993, Johnson sought treatment from Dr. Shinder, a neurologist. Dr. Shinder put him on Dilantin and Paxil and treated him for demyelinating disease and brain damage. Johnson also began to see Joe Brogdon, a psychological examiner, for treatment of his emotional problems.
Johnson had an MRI and two EEGs in 1993 and early 1994 that were normal. Johnson was then referred to Dr. Victor Biton, a board-certified neurologist, for an independent medical evaluation. Dr. Biton noted that Johnson’s description of his symptoms was vague and that Johnson responded positively to almost every single symptom that he was questioned about. Dr. Biton initially concluded that Johnson’s complaints were not supported by any lab tests. Dr. Biton, however, recommended a comprehensive evaluation to determine if any of Johnson’s symptoms were of an “organic etiology.” After extensive testing, which included a 24-hour-a- day monitoring for seven days for abnormal brain activity, he found no evidence of significant damage or seizures. The testing found one “very mild abnormality . . .[which] might be attributed to previous brain damage which can possibly include alcohol and drug abuse that the patient had.” Other doctors involved in the testing of Johnson, Dr. Hazelwood and Dr. Hewitt, attributed much of the findings of the tests to Johnson’s limited motivation. Only Dr. Shinder diagnosed Johnson with a disease (or injury) that was connected to Johnson’s exposure to the chemicals.
The administrative law judge (“ALJ”) found that Johnson was complaining of an occupational disease and that the applicable standard of proof was clear and convincing evidence. The ALJ based this decision on the pre-1976 schedule of compensable occupational diseases and the presumption that conditions allegedly caused by the exposure to certain substances were to be handled as occupational diseases. In addition, the ALJ also relied upon the fact that Johnson claimed that his symptoms were gradual rather than sudden. Based on a finding that the medical evidence presented by the employer was far more credible and persuasive, the ALJ found that Johnson had not met his burden of proof and that his claim was, therefore, denied. Johnson appealed to the full Commission. The Commission adopted the findings and decision of the ALJ.
Johnson argues that the Commission was in error to apply the clear and convincing evidence standard to his claim as it was not an occupational disease. We cannot agree. He further argues that there was insufficient evidence to support the decision below. Again, we find no merit to his argument.
Í. Occupational disease
Arkansas Code Annotated § 11-9-601 (e)(1) (Repl. 1996) defines “occupational disease” as any disease resulting in death or disability that arises out of or in the course of the occupation, or naturally follows from an injury. (Emphasis added.) Although the Act does not define the distinction between “acci dental injury” and “disease,” one widely accepted and salient distinction is that occupational diseases are generally gradual rather than sudden in onset. Hancock v. Modern Indus. Laundry, 46 Ark. App. 186, 878 S.W.2d 416 (1994); See also, 1B Arthur Larson, Workmens’ Compensation Law 41.31 (1992).
The characterization that a claim is for an occupational disease is significant in that the claimant’s burden of proof is affected. If the claimant’s condition is an “injury,” he has the burden of proving that it arose out of and in the course of his employment by a preponderance of the evidence. See Ark. Code Ann. § 11-9-704(c)(2) (Repl. 1996). On the other hand, if his or her condition is an “occupational disease,” a causal connection between the employment and the disease must be established by clear and convincing evidence. Ark. Code Ann. § 11-9-601(e)(1). Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990).
As previously noted, “occupational disease” is now defined as “any disease that results in disability or death and arises out of and in the course of the occupation or employment of the employee, or naturally follows or unavoidably results from an injury.” Ark. Code Ann. § 11-9-601(e)(1). Only silicosis and asbestosis are dealt with separately. Ark. Code Ann. § 11-9-602 (Repl. 1996). Prior to 1976, the legislature listed a schedule of occupational diseases. See Ark. Stat. Ann. § 81-1314 (Repl. 1960). The employer contends that petroleum products and halogenated hydrocarbons were listed under the old schedule of occupational diseases, and that conditions allegedly resulting from exposure to these chemicals should be considered an occupational disease. In support of this argument is R. B. Leflar, Compensation for Work Related Illness in Arkansas, 41 Ark. L. Rev. 89 (1988):
One can . . . conclude without undue difficulty that diseases listed on the pre-1976 schedule should continue, for the present, to be analyzed under section 14 [occupational disease] standards. When the legislature repealed the schedule, presumably it intended that conditions previously covered by section 14 should remain in the same status, at least in the absence of evidence supporting a change of treatment. In keeping with this reasoning, the Court of Appeals has recognized that cases of tenosynovitis (inflammation of a tendon sheath), a condition listed on the old schedule, should be decided under section 14.
Leflar, supra at 99. The presumption should be that conditions on the pre-1976 schedule of compensable occupational diseases are still to be treated as such, although the Commission is not required to do so since the schedule has been repealed. Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990) (citing Leflar, supra at 118-120).
In this instance, we agree with the Commission’s finding that Johnson’s claim was for an occupational disease and not an injury. Johnson did not allege that his condition occurred at a single, specific point in time, but rather testified that his symptoms were gradual in nature. Johnson also did not contest that the products from which he claimed exposure were petroleum products or halogenated hydrocarbons included on the pre-1976 list. We cannot say that the Commission was in error to conclude that Johnson complained of an occupational disease and that his claim was then subject to a higher standard of proof.
2. Substantial evidence
Workers’ compensation appeals are governed by the substantial evidence standard of review. Dugan v. Jerry Sweetser, Inc., 54 Ark. App. 401, 403, 928 S.W.2d 341 (1996); Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). When reviewing decisions from the Workers’ Compensation Commission, the court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirms if supported by substantial evidence. Crawford v. Pace Indus., 55 Ark. App. 60, 929 S.W.2d 727 (1996) (citing Welch’s Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992)). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Crawford, supra (citing City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992)); See also, Couch v. First Nat’l Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). A decision by the Workers’ Compensation Commission should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Crawford, supra (citing Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983)). Where the Workers’ Compensation Commission has denied a claim, “substantial evidence” requires the appellate court to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Bussell v. Georgia-Pacific Corp., 48 Ark. App. 131, 891 S.W.2d 75 (1995).
In the present case, there was testimony and evidence received from three physicians and a psychologist regarding Johnson’s condition and prognosis. Of those four, only one (Dr. Shin-der) found Johnson’s alleged symptoms to be caused by his exposure to the chemicals. The other three (Drs. Biton, Hewitt, and Hazelwood) found that Johnson’s symptoms were undocumented and unrelated to chemical exposure in the workplace. Johnson also testified as to his symptoms and inability to work. He argues that Dr. Shinder’s testimony should be given more weight because he was the physician with whom he had the most contact.
It is well established that the credibility of witnesses and the weight to be given to their testimony are matters exclusively within the province of the Commission. Wade v. Mr. C. Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989); James River Corp. v. Walters, 53 Ark. App. 59, 918 S.W.2d 211 (1996). The Commission has the duty of weighing medical evidence as it does any other evidence, and the resolution of any conflicts in the medical evidence is a question of fact for the Commission. Foxx v. American Transp., 54 Ark. App. 115, 924 S.W.2d 814 (1996); Barnard v. B & M Constr., 52 Ark. App. 61, 915 S.W.2d 296 (1996); Brantley v. Tyson Foods, Inc., 48 Ark. App. 27, 888 S.W.2d 543 (1994); Bartlett v. Mead Containerboard, 47 Ark. App. 181, 888 S.W.2d 314 (1994). The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Jackson v. Circle T. Express, 49 Ark. App. 94, 896 S.W.2d 602 (1995).
Moreover, the Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Stafford v. ArkMo Lumber Co., 54 Ark. App. 286, 925 S.W.2d 170 (1996); McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989).
Based on the evidence before the Commission, we cannot conclude that there was insufficient evidence to support this decision.
Affirmed.
Griffen and Crabtree, JJ., agree. | [
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Wendell L. Griffen, Judge.
In this appeal, American Underwriters Insurance Company challenges the trial court’s decision that it was not entitled to subrogation according to its insurance contract with Gail Turner for the costs of medical expenses paid under Turner’s first-party coverage, despite the fact that Turner settled a tort claim against a third party for $25,000. Appellant also challenges the trial court’s decision awarding $13,941.73 for statutory penalty, interest, court costs, and attorney’s fees after it was held to have paid underinsured motorist benefits in an untimely manner. We hold that appellant was not entitled to subrogation. Therefore, we affirm the trial court’s sub-rogation decision. However, we reverse the award of a statutory penalty, interest, costs, and attorney’s fee.
Appellee, Gail Turner, was injured in a motor vehicle accident caused by a third party. Appellee had automobile insurance with appellant, American Underwriters Insurance Company. Her policy included a medical benefits provision, a subrogation agreement, and underinsured motorists coverage. As a result of the accident, appellee sustained losses of approximately $56,000.00.
Appellant, pursuant to the medical benefits provision, paid $6,523.45 for appellee’s medical bills. Appellee settled with the third-party tortfeasor for $25,000, which was the full liability policy limit. Of this amount, $18,221.55 was paid directly to appel-lee, and $6,778.45 was placed in an interest bearing account pending the resolution of appellant’s subrogation claim. Appellant claimed that it was entitled to subrogation for the medical benefits paid to appellee.
Appellee demanded $25,000 from appellant under the under-insured motorist coverage. Initially appellant claimed that appellee did not have that coverage, but it eventually refused to pay until it received proof of the nature and extent of her injuries, proof of payment by the third-party tortfeasor, and proof of appellee’s inability to collect from the third-party tortfeasor damages over and above her liability coverage. Two days before trial, after receiving the requested information, appellant paid appellee $25,000 under her underinsured motorist coverage.
After trial on the subrogation issue, the court found that appellant was not entitled to subrogation, and that it had breached its duty to timely pay benefits. As a result of appellant’s failure to timely pay benefits, the trial court awarded appellee $13,941.73 in penalty, interest, attorney fees, and costs.
Appellant first contends that the trial court erred by not allowing subrogation for the money paid under the medical benefits provision. Pursuant to the medical benefits provision, appellant paid $6,523.45 for appellee’s medical bills. Appellee settled with the third-party tortfeasor for $25,000, of which $18,221.55 was paid directly to appellee and $6,778.45 was placed in an interest bearing account pending the resolution of appellant’s subrogation claim. Appellee sustained losses of approximately $56,000.
While the general rule is that an insurer is not entitled to subrogation unless the insured has been made whole for her loss, the insurer should not be precluded from employing its right of subrogation when the insured has been fully compensated and is in a position where the insured will recover twice for some of her damages. Shelter Mut. Ins. Co. v. Bough, 310 Ark. 21, 834 S.W.2d 637 (1992). In accordance with the general rule, the insurer is not entitled to subrogation, even if there is an express subrogation agreement, when the insured has not been fully compensated and is not in a position to recover twice for her damages. This is the law as set out in Franklin v. Healthsource of Arkansas, 328 Ark. 163, 942 S.W.2d 837 (1997).
In Higginbotham v. Arkansas Blue Cross and Blue Shield, 312 Ark. 199, 849 S.W.2d 464 (1993), the Arkansas Supreme Court held that where the insurance policy clearly and unambiguously provides the insurer with the right of subrogation to any benefits or services of any kind furnished to the insured for a physical injury caused by a third party to the full extent of the value of those benefits, the insurer is entitled to subrogation even before the insured is made whole. Id. Healthsource overrules Higginbotham to the extent that an insurer is allowed subrogation pursuant to an express subrogation agreement before the insured is made whole. Accordingly, even though the insurance policy in the instant case contains an express subrogation agreement, the appellant is not entitled to subrogation: the appellee did not have a double recovery because she did not recover an amount above her loss.
Next, appellant contends that the trial court erred by awarding $8,333.33 in attorney fees, a $3,000 penalty, $80.75 in court costs, and $2,527.65 in interest to appellee pursuant to Ark. Code Ann. § 23-79-208 (Repl. 1992), which states:
In all cases where loss occurs and the cargo, fire, marine, casualty, fidelity, surety, cyclone, tornado, life, health, accident, medical, hospital, or surgical benefit insurance company and fraternal benefits society or farmers’ mutual aid association liable therefor shall fail to pay the losses within the time specified in the policy, after demand made therefor, the person, firm, corporation, or association shall be liable to pay the holder of the policy or his assigns, in addition to the amount of the loss, twelve percent (12%) damages upon the amount of the loss, together with all reasonable attorneys’ fees for the prosecution and collection of the loss.
The trial court assessed these costs after finding that appellant breached its duty to timely pay benefits. Unless this finding was clearly erroneous, we cannot reverse that decision. See, USAble Life v. Fow, 307 Ark. 379, 820 S.W.2d 453 (1991).
Appellant argues that the imposed charges were not justified because it never denied the claim and promptly paid the claim once the appellee gave it adequate information regarding damages suffered by the appellee. Appellant concedes that initially its claim adjuster indicated to appellee and her attorney that there was no underinsured coverage. However, upon discovering that appellee was, in fact, entitled to underinsured coverage by operation of law, appellant requested certain information from appellee concerning her damages. The requested information included medical expenses, lost income, medical reports, doctors and hospital notes, and verification of settlement with the third party. Appellee did not respond to appellant’s request until seven days before trial. Appellant then paid appellee pursuant to the underinsured motorist coverage provision approximately three days before trial.
Pursuant to the insurance policy, appellant had the authority to require appellee to verify her claim for damages in order to receive benefits. Appellant did not deny appellee’s claim for underinsured benefits, but rather, requested verification by the appellee of her claim. Once this information was provided, appellant promptly paid benefits to appellee. Accordingly, the trial court’s decision to award an attorney’s fee and court costs and impose a penalty and interest was clearly erroneous.
Therefore, we reverse that award.
Affirmed in part; reversed in part.
Robbins, C.J., and Roaf, J., agree. | [
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