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Judith Rogers, Judge.
The appellant, Sheila Ritchey, appeals from an order denying her motion for an increase in child support which she had brought against appellee, Rick Frazier, her former husband. Appellant raises two issues for reversal of the chancellor’s decision. She contends that the chancellor erred by refusing to increase child support at the conclusion of the hearing held on November 29, 1995, and that the chancellor erred by refusing to allow her to present evidence demonstrating appellee’s income at the time her motion for an increase was filed. We find no reversible error and affirm.
Our review of the record discloses that the parties were divorced in 1987. On January 27, 1994, an agreed order was entered, based upon the joint motion of the parties, reducing appellee’s child support obligation to $50 a week. On'August 23, 1994, appellant filed a motion to modify the agreed order based on the allegation that appellee’s income had increased since entry of the order. Appellee countered with a motion for a change of custody of their two children. Other motions, not pertinent to this appeal, were filed as well. All matters pending before the court were set down for a hearing on September 5, 1995. However, testimony was not concluded on that date and further hearings were held on November 29, 1995, and February 14, 1996. By order of March 27, 1996, the chancellor disposed of the various motions submitted, which included the denial of appellant’s motion requesting an increase in child support. This appeal followed.
The issues in this appeal arise from events which transpired at the hearings on November 29 and February 14. Near the end of the day of trial on November 29th, it was apparent that the hearing would run on to another day, and the chancellor expressed the desire to go forward with the proposed testimony of the children so as to avoid their having to appear at a later date. Appellant’s counsel then asked the chancellor for a ruling on the request for an increase in support, stating that the motion had been pending for more than a year and that he had elicited “the only testimony we have regarding that motion.” Appellee’s counsel moved for a directed verdict on the ground that appellant had failed to show a change in circumstances since no evidence had been presented as to appellee’s income at the time the agreed order was entered. In the following discussion, appellant’s counsel stated that he had not yet had the opportunity to elicit much testimony, but he noted that the chart amount based on appellee’s current income was twice the amount reflected in the agreed order. The chancellor disagreed with counsel’s representation that he had not had the chance to question appellee, recalling that she had hinted to counsel during his cross-examination of appellee that evidence of appellee’s income at the time of the previous order was needed in order for her to determine whether circumstances had changed. The chancellor did not make a definitive ruling on the motion; however, she held counsel to his previous statement that all the testimony he intended to introduce had been presented and ruled that the record was closed on the issue of support. At the subsequent hearing on February 14, the chancellor refused to allow further evidence on the subject, even refusing the appellant the opportunity to make an offer of proof, which consisted of a verification from appellee’s employer showing appellee’s income as of August 1994.
As her first point, appellant contends that the chancellor erred by not granting her motion for an increase in support at the hearing on November 29. Appellant argues that it was shown that appellee presently earned $405 a week, which results in a child-support payment of $100 a week according to the applicable family support chart. She argues that a sufficient change in circumstances was demonstrated since the current chart amount is twice the amount reflected in the agreed order. Appellant is mistaken in the belief that this evidence alone demonstrates a change in circumstances.
A change in circumstances must be shown before a court can modify an order regarding child support, and the party seeking modification has the burden of showing a change in circumstances. Roland v. Roland, 43 Ark. App. 60, 859 S.W.2d 654 (1993). In Ross v. Ross, 29 Ark. App. 64, 776 S.W.2d 834 (1989), we held that a child-support obligation cannot be modified based solely on the current chart amount without there also being proof of a change in circumstances. The change in circumstances asserted by appellant was that appellee’s income had increased since the entry of the agreed order. However, appellant failed to introduce evidence of appellee’s income when the agreed order was entered, or perhaps counsel failed to comprehend the chancellor’s prompting that such evidence was necessary in this case.
A chancellor’s determination as to whether there are sufficient changed circumstances to warrant an increase in child support is a finding of fact, and this finding will not be reversed unless it is clearly erroneous. Roland v. Roland, supra. Since the record contains no evidence demonstrating appellee’s income as of the time of the agreed order, we cannot say that the chancellor’s decision that appellant failed to show that appellee’s income had increased since the entry of that order is clearly erroneous. We note that appellant’s argument might have proven successful if it had been shown that the previous amount of support had been set in accordance with the child-support chart. However, the amount contained in the order was based upon the agreement of the parties, and there was testimony that it was not based on appellee’s income in reference to the support chart.
Appellant next argues that the chancellor erred in re&sing to allow her to present proof of appellee’s income as of August 1994, the date the motion for an increase in support was filed, or to allow her to proffer that evidence. While we may look with disfavor on the actions of the chancellor, particularly since the interests of minors are involved, we can discern no prejudice to appellant flowing from the chancellor’s rulings. The only evi dence appellant sought to introduce was evidence of appellee’s income at the time the motion for an increase was filed. Since appellant failed to meet her initial burden of showing a change in circumstances, proof of appellee’s income at that point in time cannot possibly affect the outcome of this case, and is thus of no consequence. We will not reverse in the absence of prejudice. Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994). Therefore, we cannot say that reversible error occurred.
Affirmed.
Pittman, Cooper, Bird, and Stroud, JJ., agree.
Meads, J., dissents.
Appellant raised a third issue concerning the chancellor’s denial of an award of attorney’s fees, but that issue was later abandoned by appellant in her response to a motion filed by appellee in this appeal. | [
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Wendell L. Griffen, Judge.
William Blocker appeals the ruling of the Washington County Chancery Court granting appellee Teresa Blocker custody of the parties’ minor child. For reversal, appellant argues that the chancellor erred by refusing to rule that the act of “child snatching” tolls the running of the six-month period required to attain “home state” status under Ark. Code Ann. § 9-13-203(a)(l) (Repl. 1993); that a child-custody action filed in South Carolina was a “simultaneous proceeding” and the chancellor erred in failing to communicate with the South Carolina court to determine whether Arkansas was an inconvenient forum; and that the chancellor erred in finding that Arkansas was not an inconvenient forum under the provisions of Ark. Code Ann. § 9-13-207 (Repl. 1993). We find no error and affirm.
Appellant and appellee were married in February 1986, and lived in South Carolina with their four-year-old child. In January 1995, appellee left South Carolina with the minor child, came to Arkansas, and filed an order of protection alleging physical abuse by appellant that was later withdrawn. While appellant asserts that he made efforts to locate his wife and child, no documents were filed with the South Carolina courts to preserve his custodial rights. Appellee filed for divorce in Washington County, and appellant was served with the summons and complaint on December 14, 1995. Appellant contends he first learned that his family was in Arkansas when he was served, but testified at trial that he suspected that appellee went to Arkansas to live with family. Appellant filed an answer to the complaint on January 5, 1996. A month after being served, appellant filed a child-custody action in South Carolina.
Appellant then filed a motion in Washington County requesting that the Arkansas court decline child-custody jurisdiction pursuant to Ark. Code Ann. § 9-13-207, on the basis that the state of Arkansas is an inconvenient forum under the Uniform Child Custody Jurisdiction Act (UCCJA), and that South Carolina had a closer connection with the child, and that substantial evidence concerning the child’s welfare was more accessible in South Carolina. The chancellor denied the motion and appellant’s request that the chancellor communicate with the South Carolina court to determine which forum was the “home state” of the child under the UCCJA. Appellant then withdrew his answer, and made an entry of appearance and waiver of corroboration of the grounds for divorce. The chancellor granted appellee an uncontested divorce, and after a hearing, found that it was in the best interest of the child to be placed with appellee.
Addressing appellant’s first issue on appeal, we note that appellant’s argument regarding the home state of the child was significantly different at the trial level. There appellant argued that appellee absconded with the parties’ minor child in violation of the UCCJA and Parental Kidnapping Prevention Act (PKPA), and that appellee acted in bad faith. Appellant contended below that as a result of appellee’s conduct, Arkansas should not be the home state of the child for purposes of making a child-custody determination. However, appellant never raised below whether the act of child-snatching tolls the running of the six-month period for purposes of determining a child’s home state under the UCCJA. It is a basic rule of appellate procedure that a party cannot change arguments on appeal. Ball v. Foehner, 326 Ark. 409, 931 S.W.2d 142 (1996) (citing Luedemann v. Wade, 323 Ark. 161, 913 S.W.2d 773 (1996)). The tolling argument was not properly reserved for appellate review, and therefore cannot be addressed.
We do note, however, that the chancellor did not err in finding that Arkansas is the home state of the child. Appellant sought involvement from the South Carolina courts more than a year after appellee and the minor child left South Carolina, and several months after the initiation of the Arkansas divorce and custody proceeding, thus allowing South Carolina to lose jurisdiction:
One of the main purposes of home state jurisdiction under the PKPA and UCCJA is protection of a parent who remains in the home state after the other parent has taken the child out of state. In order for the protection to apply, the parent remaining in the home state must act promptly to obtain home state jurisdiction. If, for example, a mother and father separate and one of them takes the child out of state, the parent who remains is entitled to have the case heard in the courts of the home state if the remaining parent commences an action for custody within six months of the departure. The physical absence of the child and the other parent does not deprive the home state court of subject matter jurisdiction. If, however, the parent delays filing for more than six months, the state in which the parent remains would no longer be the home state of the child, and the child may have acquired a new home state that would have jurisdictional priority.
Jeff Atkinson, Modern Child Custody Practice § 3.12 at 129-30 (1986) (citing 28 U.S.C. §1738A(c); 9 U.L.A. 122 (Master ed. 1979); U.C.C.J.A. § 3(a)(1); and the Commissioner’s Note to U.C.C.J.A. § 3(a)(1). The chancellor’s finding that Arkansas was the “home state” was not clearly erroneous.
Second, appellant asserts that the chancellor erred in failing to communicate with the South Carolina court to determine whether the Arkansas forum was inconvenient for purposes of the UCCJA. The applicable statute, Ark. Code Ann. § 9-13-206 (Repl. 1993) provides, in part:
(a) A court of this state shall not exercise its jurisdiction under this subchapter [under the UCCJA] if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this subchapter ....
(c) If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child is pending in another state before the court assumed jurisdiction, it shall stay the proceeding and communicate with the court in which the other proceeding is pending, to the end that the issue may be litigated in the more appropriate forum and that information be exchanged ....
In deciding appeals from the chancery courts, we review the evidence de novo, only reversing where the chancellor’s findings of fact are clearly erroneous. Roberts v. Feltman, 55 Ark. App. 142, 932 S.W.2d 781 (1996). There is no merit to appellant’s argument that the chancellor should have communicated with the South Carolina court because the South Carolina action had not been filed when appellee filed this action. In Leinen v. Arkansas Dep’t of Human Servs., 47 Ark. App. 156, 886 S.W.2d 895 (1994), at the time that a juvenile proceeding was filed in Garland County, Arkansas, the divorce action in another state had not been commenced. We held that Ark. Code Ann. § 9-13-206 did not apply because there was no “simultaneous proceeding.” Id. Leinen dictates that we affirm the chancellor on this issue.
Appellant’s last assignment of error asserts that the chancellor abused his discretion in finding that Arkansas was not an inconvenient forum under Ark. Code Ann. § 9-13-207 (Repl. 1993). A court that has jurisdiction to make an initial or modification decree may decline to exercise its jurisdiction if it finds that it is an inconvenient forum to make the custody determination and that another court is a “more appropriate” forum. Id. The record reveals that appellee and the minor child resided in Arkansas approximately seven months prior to the filing of the divorce and child-custody determination. Since the chancellor found that Arkansas was the home state of the child, and where there were witnesses located in Arkansas as well as South Carolina, appellant has not proven that the chancellor abused his discretion by retaining jurisdiction.
Affirmed.
Rogers and Bird, JJ., agree. | [
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Wendell L. Griffen, Judge.
Billy Allen has appealed from the decision of the St. Francis Circuit Court that denied his petition for writ of certiorari based on allegations that his conviction in the Forrest City Municipal Court on the charge of theft was unconstitutional because he was denied counsel before the municipal court. We hold that appellant has failed to comply with Supreme Court Rule 4-2(a)(6) regarding abstracting of the record, and that the abstract submitted by appellant is flagrandy deficient. Accordingly, we affirm the trial court judgment due to noncompliance with the Rule. We are also directing that a copy of our opinion be forwarded to the Supreme Court Committee on Professional Conduct for such action as it may deem warranted due to the persistent failure by, Heather Patrice Hogrobrooks, counsel for appellant, to comply with the abstracting requirement of our rules.
The record shows that appellant was charged with theft of property, a Class A misdemeanor, based on the allegation by Ossie Pitts that appellant stole a 1984 Oldsmobile car from Pitts’s front yard and stripped it. He was convicted in the municipal court on the charge, and was sentenced to pay a $500 fine, pay restitution of $2,000 at the rate of $150 per month beginning September 1, 1995, and serve one year in jail. The jail sentence was suspended.
Appellant did not file a direct appeal from the municipal court conviction. Instead, he filed a petition for writ of certiorari and for writ of prohibition in the circuit court after the time for filing an appeal had expired. His circuit court contention was that the municipal court lacked jurisdiction to adjudicate his guilt or innocence because the value of the allegedly stolen vehicle exceeded $500, and that his right to counsel guaranteed by the Sixth Amendment of the U.S. Constitution was denied when he was not told that he could have counsel appointed. The circuit court held that the municipal court had jurisdiction over appellant’s misdemeanor charge, and that the $500 fine and requirement that appellant pay restitution of $2,000 was proper. However, it held that the municipal court lacked the power to impose the one-year jail sentence and then suspend its execution. The circuit court specifically declined to address appellant’s claim that his right to counsel pursuant to the Sixth Amendment was denied, finding that a deputy prosecuting attorney had no obligation to provide appellant with counsel.
Although appellant urges us to reverse the circuit court decision on the merits, we are unable to do so because of the grossly deficient abstract that appellant has filed. Rule 4-2(a)(6) provides that the appellant’s abstract shall consist of an impartial condensation, without comment or emphasis, of such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the appellate court for decision. Rule 4-2(b) states that deficiencies in the appellant’s abstract will be handled by either preparation of a supplemental abstract by the appellee, or by the appellate court addressing the deficiency sua sponte when the case is submitted on its merits. If the appellate court finds the abstract to be flagrantly deficient, or to cause an unreasonable or unjust delay in the disposition of the appeal, the judgment or decree may be affirmed for noncompliance with the Rule. Where the appellate court considers summary affirmance unduly harsh, it may allow the attorney for appellant time to revise the brief, at his or her cost, to conform with the abstracting rule. Id.
In Davis v. State, 325 Ark. 36, 924 S.W.2d 452 (1996), the supreme court summarily affirmed a conviction and sentence to thirty-three (33) years’ imprisonment arising from two counts of possession of a controlled substance with intent to deliver. Although that appeal challenged the conviction for violation of the speedy trial guarantee, the substance of appellant’s motion to dismiss for lack of a speedy trial was not abstracted. The trial court’s ruling on the motion to dismiss was not abstracted. The appellant in Davis also failed to abstract the grounds that had been asserted in motions for continuances that he made, and failed to abstract the trial court’s orders on the continuance motions. He failed to abstract the hearing on the speedy trial motion, the substance of a motion for reconsideration, or the trial court’s ruling on the motion for reconsideration. The Davis case also involved failure to abstract the jury verdict, judgment and commitment order, or notice of appeal. The supreme court summarily affirmed the conviction because of the abstracting deficiencies.
In Rosser v. Columbia Mut. Ins. Co., 55 Ark. App. 77, 928 S.W.2d 813 (1996), we affirmed a summary judgment for the appellee on its merits despite the flagrantly deficient abstract filed by the appellant. However, we granted the appellee’s motion for costs associated with preparing a supplemental abstract, and we ordered counsel for the appellant to pay an attorney’s fee to counsel for the appellee. In Rosser, the appellant faded to abstract the complaint or any other pleading, including the summary judgment pleadings that resulted in the order from which she appealed. She also failed to abstract the trial court order that granted summary judgment. We specifically observed that the abstracting defects were so flagrant that it would have been impossible to render a decision on the merits but for the supplemental abstract in the appellee’s brief because it would have been impossible to understand the basis of the appeal or review the order on which it was based. Id.
In C.H. v. State, 51 Ark. App. 153, 912 S.W.2d 942 (1995), our court rendered an en banc decision that affirmed a judgment from the St. Francis County Chancery Court, Juvenile Division, involving the conviction of the appellant for theft of property. The appellant contended that the conviction was not supported by sufficient evidence, and that the trial court had erred by denying his motion to dismiss the delinquency petition. In addressing appellant’s claim that the chancellor erred by denying his motion to dismiss the delinquency petition, Judge Pittman wrote for the majority, “We cannot tell from the abstract on what basis appellant moved to dismiss. It is well established that we decline to go to the trial transcript to reverse a case, and that the abstract constitutes the record on appeal.” Id. at 155, 912 S.W.2d at 943; citing Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994); Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993).
We cite Davis, Rosser, and C.H. because the attorney for the appellants in those cases represented and prepared the brief for the appellant in this appeal. At oral argument on this appeal, counsel for appellant was referred to some of the abstracting deficiencies in her client’s brief; she contended that the abstracting requirement is an unfair imposition upon poor litigants and is unnecessary for resolution of substantive issues. Aside from demonstrating a blatant disregard for the purpose served by the abstracting requirement, counsel’s argument is baseless. Even pro se litigants are required to comply with court rules, including our rules concerning abstracts. See Bryant v. Lockhart, 288 Ark. 302, 705 S.W.2d 9 (1986); see also Pennington v. Lockhart, 297 Ark. 475, 763 S.W.2d 78 (1989). Moreover, it is well settled that where nothing is abstracted, summary affirmance for noncompliance with the abstracting requirement is authorized by Rule 4-2(b)(2). See Dixon v. State, 314 Ark. 379, 863 S.W.2d 282 (1993); Haynes v. State, 313 Ark. 407, 855 S.W.2d 313 (1993); Bohannon v. Arkansas State Bd. of Nursing, 320 Ark. 169, 895 S.W.2d 923 (1995). To decide an appeal, the court must, at minimum, know what the trial court ruled before it can possibly determine any error. Edwards v. Neuse, 312 Ark. 302, 849 S.W.2d 479 (1993). It is unreasonable to expect each member of the appellate court to take turns reading a single record in order to understand what an appeal involves.
In the case before us, counsel for appellant has filed a brief that failed to abstract the decision rendered by the circuit court, failed to abstract the disposition rendered by the municipal court, failed to abstract the affidavit for the arrest warrant issued for appellant’s arrest on the theft charge, and failed to abstract the petition for writ of certiorari or prohibition and the response filed by the State. In other words, none of the pertinent pleadings, documents, and other matters that bear on the appeal have been abstracted in any fashion. Counsel clearly violated the abstracting requirement in this case. These are the same defects that resulted in summary affirmance in Davis, affirmance on the merits but With imposition of costs and attorney’s fees in Rosser, and our inability to review the appellant’s challenge to a chancellor’s denial of his dismissal motion in C.H.. We will not disregard the abstracting requirement of Rule 4-2 for one category of litigants even if counsel for appellant believes that we should.
We also will not ignore the plain consequences of counsel’s persistent refusal to comply with the abstracting requirements on the litigants who have entrusted advocacy of their cases to her. Because the State did not file a brief in this case, the flagrantly deficient abstract that counsel for appellant filed in support of her client’s plea for reversal of the trial court’s judgment is the only record we can reference to reverse. Counsel has known of the consequences of failing to meet the abstracting requirement at least since 1995, when we decided C.H. v. State. If counsel seeks to change the abstracting requirement there are legitimate ways for her to pursue that end without selling her clients short in the only appeal they will be able to assert for relief from trial court decisions. Her blatant refusal to comply with the abstracting rule to the detriment of her clients is a flagrant abuse of the trust that her clients have shown her, not to mention a patent attempt to shift the duty to represent her clients to the appellate judges whom she apparently believes should comb trial court records to uncover reversible error that her clients have trusted her to identify and bring before us in proper fashion.
The judgment below is hereby affirmed. We also direct the clerk to forward a copy of this opinion to the Supreme Court Committee on Professional Conduct, the regulatory agency that oversees the professional conduct of attorneys.
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Sam Bird, Judge.
Steven Ray Milligan, the claimant, appeals from a decision of the Workers’ Compensation Commission that found he was not entitled to any additional temporary total disability. West Tree Service has appealed the Commission’s finding that approved a change of appellant’s physician to the Hand Surgery Centres of Texas in Houston, Texas.
Appellant testified that he had dropped out of school in the tenth grade and started working for Texarkana Mack Trucks in Texarkana, Texas, cleaning the shop, carrying garbage, and going after parts; he then worked for Tyson Foods in Oklahoma processing poultry; he also worked for Barksdale Lumber Company in Amity, Arkansas, making fencing and posts; he went back to work for Tyson Foods; and then he began working for West Tree Service.
On June 19, 1990, appellant was in his early twenties and was working for West Tree Service. He was up in a bucket truck trimming trees around power lines with a chain saw when his right hand swelled up “real big.” He was taken to the emergency room by his supervisor and was diagnosed by Dr. Samuel Peebles as having tendinitis. He missed two or three days of work, then returned and worked until February 14, 1991, when his wrist mobility, swelling, and pain forced him to quit.
Dr. Peebles then referred appellant to Dr. Lloyd Mercer of Hope, an orthopedic surgeon. Dr. Mercer referred him to Dr. Marsha L. Hixson, a Little Rock hand specialist, who recommended surgery in the form of a radial shortening osteotomy. After several months of conservative treatment during which his hand condition deteriorated, appellant finally agreed to the surgery, and it was performed in May 1992. Appellant testified that he had wanted to get a second doctor’s opinion before submitting to the surgery but the employer’s insurance carrier, U.S. Fidelity and Guaranty Company, refused to authorize it, and appellant could not pay for it himself.
Dr. Hixson, testifying by deposition, explained that appellant’s injury was to the lunate bone, a half-moon-shaped bone located where the forearm meets the wrist that allows the wrist to swivel. X-rays and other tests revealed that the lunate bone in appellant’s right wrist was fragmented and partially collapsed. Dr. Hixson said appellant’s condition is known as “Keinbock’s Disease,” vascular necrosis of the lunate, and it is very rare. She described the surgery she performed as breaking the radius bone in the arm, shortening it, and thereby taking the pressure off the lunate. Dr. Hixson testified that after several months of recovery from the surgery, appellant still had a stiff, painful wrist, decreased sensation in his palm, and a stiff forearm in which he had lost some motion. She said appellant thought he was better off before the surgery than he was afterward. She last saw appellant on November 13, 1992, and assessed a twenty-seven percent loss of the right upper extremity.
Appellant testified that his wrist never got well enough to use and that he had filed a malpractice claim against Dr. Hixson. He said he had been examined by Dr. Michael G. Brown and Dr. Brent Keyser of the Hand Surgery Centres of Texas and was told that the lunate bone in his right wrist was crushed, fragmented, and dead. Dr. Brown recommended surgery during which he would remove the diseased lunate bone and replace it with a soft tissue allograft, repair the damaged nerve, and remove the non-absorbable sutures that had been left in his hand after the previous surgery. Appellant said the sutures go from the bottom part of his thumb through the fatty part of the thumb three and one-half or four inches, and that anytime he tries to pick up something with his right hand, the sutures feel like “little needles sticking, and sometimes it gets to itching like it’s on fire, but I cannot [scratch] it, because I can’t stand to touch it. It hurts when you touch it.”
Appellant testified that he could no longer do any of the jobs he had previously held because they all involve lifting, pushing, and pulling with both hands, and he cannot do anything that might cause vibration in the right wrist because it could disrupt the precarious blood supply to the lunate. Consequently, appellant has not looked for work since February 14, 1991.
The opinion of the administrative law judge, which was affirmed and adopted by the Commission, states that initially appellee, through its insurance carrier USF&G, agreed to the surgery recommended by Dr. Brown, but subsequently withdrew its approval, citing Ark. Code Ann. § 11-9-102(17) (1987) and the definition of “medical services” contained therein as services performed by any practitioner licensed under the State of Arkansas relating to the healing arts. The record reveals that appellee did not object to the surgery itself; rather, it objected to appellant utilizing physicians from out of state.
The opinion also states that following the initial hearing in this case, an opinion was entered changing appellant’s treating physician to a Dr. R. Cole Goodman of Fort Smith. Flowever, Dr. Goodman refused to treat appellant and the law judge withdrew that opinion. The opinion from which this appeal arises says that appellant had speculated that because the community of hand specialists in Arkansas is so small, none of its members will willingly treat a patient who is pursuing a malpractice action against another member of the group. The judge said, “Dr. Goodman’s withdrawal of his services is consistent with the claimant’s theory,” and that it was unlikely that appellant would receive appropriate medical care locally. Consequently, the law judge approved a change of physicians for appellant to the Fland Surgery Centres of Texas.
Appellant described his condition at the time of the hearing:
[T]he lunate bone is collapsed and disintegrated into my hand and — or into the end of my forearm where it meets my hand, and the rest of my hand has been sliding down, you know, over the top of that. I’ve got that problem that I’ve had since — since February 14, 1991, in addition to the problem that I’ve had since May 13th of ’92, which I had the radial shortened. I can’t turn my forearm all the way, because of the radius and ulnar joint are - well, my radius is shorter, and now it is in a bind. My forearm rotation is in a bind. . . . And I’ve still got the pain of the collapsed bone. It’s like my hand is, from the inside out, crushed like, so to speak, and any movement that you move it, it hurts. You know, it’s a crushed joint. Anything I pick up that is very heavy or anything, or even sometimes, if the weather does just right, it swells up, and it hurts. . . . [A]lso, I have pain that runs all the way up that is slanted this a way (witness indicating), up to my elbow.
Q. Indicating from the inside of your arm to the outside of your arm across the top of the elbow?
A. [A]nd any movements whatsoever sets that off.
The administrative law judge found appellant to be entitled to temporary total disability benefits from February 14, 1991, through January 21, 1992, and again from May 13, 1992, through November 13, 1992, during the time he was recuperating from surgery. In January 1992, Dr. Hixson reported that if appellant refused to have the radial shortening procedure done, he had reached maximum medical benefit. The law judge held, “There is no indication that the claimant has yet entered another healing period and has also become incapacitated to earn wages, so that he would be entitled to additional temporary total disability benefits.”
Temporary total disability benefits cannot be awarded after a claimant’s healing period has ended. Elk Roofing Co. v. Pinson, 22 Ark. App. 191, 737 S.W.2d 661 (1987). A claimant’s healing period ends when the underlying condition causing the disability has become stable and if nothing further in the way of treatment will improve the condition. Id. The healing period has not ended so long as treatment is administered for healing and alleviation of the condition and continues until the employee is as far restored as the permanent character of the injury will permit. Arkansas Highway & Transp. Dep’t v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993) (emphasis added). The determination of when the healing period ends is a factual determination to be made by the Commission. Thurman v. Clarke Indus., Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994). The court of appeals must uphold such factual findings unless there is no substantial evidence to support them. Arkansas Highway & Transp. Dep’t v. McWilliams, supra.
Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and we do not reverse a decision of the Commission unless we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached. Willmon v. Allen Canning Co., 38 Ark. App. 105, 828 S.W.2d 868 (1992). While these rules provide for some degree of insulation of the Commission from judicial review, this insulation cannot be absolute or else this court’s function in reviewing these cases would be rendered meaningless. Arkansas State Police v. Davis, 45 Ark. App. 40, 870 S.W.2d 408 (1994); Boyd v. General Indus., 22 Ark. App. 103, 733 S.W.2d 750(1987).
In making its decision that appellant’s healing period had ended on November 13, 1992, the law judge relied upon Dr. Hixson’s statement that she had last seen appellant on November 13, 1992, and felt that he had healed from the radial shortening osteotomy. The Commission apparently faded to discover that in her deposition, taken on February 2, 1993, Dr. Hixson said appellant’s healing period from the surgery probably ended around November 13, 1992, but that:
He was still having some decreased sensation in the palm and he thought that his wrist was still stiff and painful. ... I thought that he had healed from —• I mean, he had healed from the bone and the osteotomy. It generally takes, oh, between sometimes up to a year-and-a-half to heal, I mean to say that things have settled down after that particular operation. So he had healed the soft tissues and the bone, but I don’t think he had fully recovered from surgery at that time, but he was doing about as expected. I didn’t expect any great improvements for a while. (Emphasis added.)
On January 4, 1993, Dr. Hixson wrote to the insurance carrier:
His [appellant’s] limitations at this time are unchanged in that he cannot lift, push or pull more than 10 to 15 pounds using the right wrist, and he is unable to use the wrist in a repetitive fashion. His last measurements indicated a mild loss of motion of the wrist and forearm and a loss of grip strength in the right hand measuring 30 kg on the right versus 55 kg on the left. Based on mild wrist synovitis and loss of forearm and wrist motion, I have calculated a 27% loss of the right upper extremity. At this point, Mr. Milligan is unable to perform his former job due to loss of motion, loss of strength, and pain.
In her deposition Dr. Hixson said, “There is a possibility that over the next six months, he might improve some relative to his distal radial ulnar joint pain, but that wasn’t going to affect anything that I had — any restrictions or impairment rating. So I can’t say that he had actually reached maximum medical improvement” (Emphasis added.)
In a letter dated June 8, 1993, Dr. Edward R. Weber wrote:
Mr. Milligan was seen by me on 1/27/93. The diagnosis of Kienbock’s disease was confirmed. He had undergone a radial shortening osteoplasty. It usually takes one to two years for the navicular to revascularize after such a procedure. Symptoms after that period of time should decrease. I would advise this patient to wait for the healing period to be completed which should be approximately another nine to twelve months. No further surgical intervention is indicated until that time. (Emphasis added.)
Appellee argues that the decision is supported by substantial evidence and emphasizes other evidence in the record.
It appears that since the day his injury incapacitated him in February 1991, appellant has been unable to work, has lost the use of his right hand, has had one unsuccessful surgery and needed another.
We agree with the Commission that appellant was not entitled to temporary total disability because between January 21 and May 13, 1992, according to Dr. Hixson, appellant had reached maximum medical benefit unless he decided to have the recommended surgery. The Commission’s decision regarding that time period is affirmed.
However, when we consider the evidence before the Commission we cannot find substantial evidence to support the finding that appellant’s healing period ended on November 13, 1992. Dr. Hixson, in a letter dated January 4, 1993, to the insurance adjuster, wrote that “Steve Milligan was last examined here at UAMS on 11/13/92. At that point, I felt that he had healed from the radial shortening osteotomy.” She also said in the same letter:
He was still having problems with the wrist in terms of loss of motion and wrist pain. ... his limitations at this time are unchanged in that he cannot lift, push or pull more than 10 to 15 pounds using the right wrist, and he is unable to use the wrist in a repetitive fashion. ... At this point, Mr. Milligan is unable to perform his former job due to loss of motion, loss of strength, and pain.
On February 2, 1993, Dr. Hixson testified by deposition that as of November 13, 1992, appellant’s soft tissue and bone had healed but he had not fully recovered from surgery; it sometimes takes a year and one-half to heal; he had not reached maximum medical improvement; his before and after x-rays showed no improvement; and “Milligan has not reached his maximum medical improvement at this point.”
In an April 19, 1993, letter, Dr. Brent Keyser of Hand Surgery Centres of Texas, said that appellant has at least a stage III Kienbock’s disease; “Comparison of serial x rays from 11-8-91 to 1-20-93 show [sic] progressive collapse and fragmentation of the lunate. . . . Since he has worsening of his pain and progression of the radiologic picture I have recommended that he have a second surgical procedure in order to alleviate his symptoms.”
On June 8, 1993, Dr. Edward R. Weber, of the Arkansas Hand and Microsurgery Center, wrote, “It usually takes one to two years for the navicular to revascularize after such a procedure [a radial shortening osteoplasty].” On July 19, 1993, Dr. Hixson wrote of the surgery Dr. Brown had recommended. “The proposed second surgery is an attempt to resolve a work-related injury. This is the same problem for which Mr. Milligan has already received treatment from myself and from Dr. Ed Weber. The surgery sounds reasonable and is aimed towards resolution of Mr. Milligan’s more severe problems.”
On February 28, 1994, Dr. Brown wrote:
Radiographs revealed a Stage IV Kienbock’s with collapse of the lunate and perilunar arthrosis. . . . This patient had the radial shortening performed for State IV Kienbock’s and that is inappropriate. Radial shortening, a joint leveling procedure, is used in early (Stage I) Kienbock’s to unload the lunate and preserve the lunate. When the patient had this procedure performed, the lunate had already collapsed and the procedure was doomed to failure. . . . Clearly, the patient needs excision of the lunate and I would replace the lunate with allograft fascia lata. In addition, I would remove the foreign bodies [nonabsorbing sutures left in during the radial shortening surgery] and perform neurolysis of the volar cutaneous branch of the radial nerve in hopes of achieving some relief in that region as well. Should this patient’s condition go untreated long enough then he will have complete arthrosis of the entire wrist necessitating total wrist fusion and this would result in a considerate impairment as opposed to performing the lunate excision and arthroplasty and preserving some wrist motion.
On March 3, 1994, Dr. Brown wrote to the appellant, “It is imperative that you have treatment before you have complete degeneration of the wrist.”
With this evidence before it, we cannot understand how the Commission could have held that appellant’s healing period ended November 13, 1992. Consequently, we reverse the Commission’s finding that appellant’s healing period ended on November 13, 1992. It is clear that at the time the record was closed appellant was still in a healing period. We hold that appellant has remained in his healing period from May 13, 1992, through the entire period covered by the record, which ends on April 2, 1996, and to a date yet to be determined.
We remand to the Commission to take additional evidence regarding appellant’s surgery in Houston, his recovery period, and up-to-date medical records to determine his current status.
Appellant also argues that we should provide for attorney’s fees on the entire claim of temporary total disability pursuant to Ark. Code Ann. § 11-9-715 (1987), because the entire claim was controverted. We agree and remand to the Commission to award appellant’s attorney the appropriate fee.
Appellant also argues that we should assess a penalty against appellee for refusal to pay rightfully due benefits on time pursuant to Ark. Code Ann. § ll-9-802(b) (1987). We agree that the actions of the employer and the insurance carrier have been egregious and remand for the Commission to consider assessing a penalty.
Appellee argues in its cross-appeal that the Commission erred in interpreting Ark. Code Ann. § 11-9-102(17) (1987) to mean that appellant could receive treatment from an out-of-state physician. At the time of appellant’s injury, the statute read, “ ‘Medical services’ means services performed by any practitioner licensed under the laws of the State of Arkansas relating to the healing arts.” Although cross-appellant conceded in its oral argument that this definition should not be so narrowly applied as to prohibit a claimant from ever being treated by an out-of-state physician, it contended that a claimant could seek the services of an out-of-state physician only after he or she had shown that there were no medical-service providers licensed in Arkansas that could provide the treatment that claimant required. We do not agree. If, as cross-appellant concedes, section 11-9-102(17) does not prohibit treatment by out-of-state medical-service providers, there is no language in the statute which places on a claimant the burden of first proving that there are no physicians licensed in Arkansas who can provide the necessary treatment. We think a more logical meaning of section 11-9-102(17) is that a claimant may receive compensation only for treatment that is provided by the community of medical-service providers whose discipline is regulated in the State of Arkansas through its licensing procedures. This would exclude compensation for the cost of services charged, for example, by faith healers, psychic healers, or any other purported practitioners of the healing arts that might be recognized in other states but which are not regulated or licensed in Arkansas.
The Commission’s order allowing appellant a change of physicians to the Hand Surgery Centres of Texas in Houston, Texas, is affirmed.
Affirmed in part and reversed in part on direct appeal, affirmed on cross-appeal, and remanded with directions to the Commission.
Robbins, C.J., and Cooper, J., agree. | [
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Judith Rogers, Judge.
This is an appeal from an order denying appellant’s request for his child-support obligation to be suspended during his incarceration in prison. Appellant argues on appeal that the chancellor abused his discretion by refusing to abate the payment of support because his imprisonment rendered him incapable of producing income with which to meet his obligation. We find no abuse of discretion and affirm.
When the parties divorced in July of 1995, custody of their two children, ages sixteen and four, was placed with appellee, Theresia Neely Reid. Appellant, Danny Harold Reid, was ordered to make biweekly payments of $200 in child support. On December 4, 1995, appellant was convicted of raping the parties’ sixteen-year-old daughter, and he was sentenced to a term of twenty years in prison. On February 5, 1996, appellant filed a motion seeking abatement of his child-support obligation, urging his conviction and resulting imprisonment as the sole change in circumstances.
Appellee was the only witness at the hearing. She testified that appellant was a few hours shy of obtaining a bachelor’s degree in engineering and that he was earning $42,000 a year at the time of the divorce. She agreed to a reduction in child support to the minimum family chart amount of $30 a week, but she stated her belief that appellant should not benefit by being relieved of his duty of paying support as a reward for raping their daughter.
After a brief recess, the chancellor issued his ruling denying appellant’s motion to suspend the payment of child support. The chancellor found that the children’s needs had not diminished and that the position in which appellant found himself was one of his own creation. He thus found no change in circumstances warranting abatement of the obligation. The chancellor further concluded that appellant should not be allowed to profit from a wrongful act committed against a child for whom he was obliged to pay support. The chancellor also reasoned that the continuation of the support obligation would not place an undue burden on appellant, given his level of education and earning potential. An order was entered incorporating the chancellor’s findings and reducing appellant’s child-support payments to $30 a week. This appeal followed.
Ordinarily, the amount of child support lies within the sound discretion of the chancellor. Irvin v. Irvin, 47 Ark. App. 48, 883 S.W.2d 862 (1994). A chancellor’s finding as to child support will not be disturbed on appeal unless it is shown that the chancellor abused his discretion. Borden v. Borden, 20 Ark. App. 52, 724 S.W.2d 181 (1987). A change in circumstances must be shown before a court can modify an order regarding child support, and the party seeking modification has the burden of showing a change in circumstances. Hunt v. Hunt, 40 Ark. App. 166, 842 S.W.2d 470 (1992). In making this decision, the chancellor must consider the needs of one party as compared to the ability of the other to pay. Irvin v. Irvin, supra.
Appellant argues on appeal that the chancellor abused his discretion by refusing to abate his child-support obligation during the period of his incarceration. We are not convinced that the record in this case demonstrates such an abuse. The principle at the core of the chancellor’s ruling was that appellant was not entitled to relief because he had come into court with unclean hands. It has long been recognized that the clean-hands maxim bars relief to those guilty of improper conduct in the matter as to which they seek relief. Equity will not intervene on behalf of a party whose conduct in connection with the same matter has been unconsci-entious or unjust. Wilson v. Brown, 320 Ark. 240, 897 S.W.2d 546 (1995); Marshall v. Marshall, 227 Ark. 582, 300 S.W.2d 933 (1957). It is said that the purpose of invoking the clean hands doctrine is to protect the interest of the public on grounds of public policy and to preserve the integrity of the court. Grable v. Grable, 307 Ark. 410, 821 S.W.2d 16 (1991). It is within the chancellor’s discretion to determine whether the interests of equity and justice require application of the doctrine. Id.
Although there is another school of thought, see e.g. Edmonds v. Edmonds, 633 P.2d 4 (Ore. Ct. App. 1981), we are of the same mind as was the court in Ohler v. Ohler, 369 N.W.2d 615 (Neb. 1985). In that case, the payor spouse sought to suspend his child-support obligation because he had been sentenced to prison for fifteen years. In affirming the trial court’s decision denying the petition, the court based its decision on the maxim of unclean hands and ruled that, under the circumstances, equity would not grant relief. The court further stated:
Incarceration is certainly a foreseeable result of criminal activity; we find no sound reason to relieve one of a child support obligation by virtue of the fact that he or she engaged in criminal conduct. There is no reason those who have had to step in and assume the applicant’s obligation should not be reimbursed by the applicant should his future position enable him to do so.
Further, we do not see how the best interests of the children for whom the support was ordered would be served by temporarily terminating the appellant’s child support obligation.
Id. at 618. The court also predicated its holding in part on a decision where it was recognized that, although unemployment or diminution of earnings is a common ground for modification, a petition for modification will be denied if the change in financial condition is due to the fault, voluntary wastage, or dissipation of one’s talents or assets. The court then reasoned that a child-support obligation should not be modified where the means with which to pay were reduced or eliminated by criminal activity.
In this respect, the opinion in Ohler is consistent with Arkansas law. In Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77 (1988), it was held that a court may consider the fact that a supporting spouse has voluntarily changed his or her employment so as to lessen earning capacity and, in turn, the ability to pay child support. The court ruled that a supporting spouse does not have total discretion in making financial decisions which affect the welfare of the family, if the minor children have to suffer at the expense of those decisions.
We uphold the decision of the chancellor in this case on the ground of unclean hands. The misconduct which resulted in appellant’s imprisonment was perpetrated against a child for whom appellant owed a duty of support and thus bears a direct connection to the proceeding at hand. We agree that equity will not come to the aid of one who of his or her own volition engages in criminal behavior and suffers the consequences which affect the ability to pay child support. Moreover, the needs of the children have remained unchanged, and, as between appellant and his children, the interest of the children must prevail. We can think of no reason how their best interests are served by depriving them of support or why appellee should be left to shoulder the burden alone when there remains the possibility that the appellant can make recompense in the future.
We also cannot disagree with the chancellor’s conclusion that appellant failed to meet his burden of showing a change in circumstances to justify abatement of the obligation. A chancellor’s finding as to whether there are sufficient changed circumstances to warrant a change in child support is a finding of fact, and this finding will not be reversed unless it is clearly erroneous. Schwarz v. Moody, 55 Ark. App. 6, 928 S.W.2d 800 (1996). Appellant relied only on his incarceration as a change in circumstances. Appellant faded to produce evidence that he had no assets or other sources of income available for the payment of support. Similarly, appellant offered no testimony concerning his anticipated release from prison or what, if any, wages he might be eligible to earn during his incarceration. Appellant has thus not demonstrated that he was wholly without the ability to meet his obligation. Consequendy, the chancellor’s finding is not clearly erroneous. We also note that a chancellor has the authority to require the person ordered to make child-support payments to furnish a bond or post security to guarantee compliance with the order. Ark. Code Ann. § 9-12-312(c)(1) & (2) (Supp. 1995).
Finding no error in the chancellor’s decision, we affirm.
Affirmed.
Bird and Griffen, JJ., agree. | [
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Judith Rogers, Judge.
Appellant, Louise Sykes, was convicted after a bench trial of second-degree battery for spanking her eleven-year-old grandchild with a phone cord. She was sentenced to three years’ probation, fined one hundred dollars, and ordered to complete a counseling program. On appeal, appellant argues that the evidence was insufficient to support her conviction. We agree and reverse.
On July 27, 1995, Officer Randy Woodall observed Xavier Calloway, age eleven, and two other young boys playing inside a fenced-in “construction hardware type company.” The officer placed the boys in his patrol car and took each of them home. Officer Woodall transported Xavier to appellant’s home because she was Xavier’s legal guardian and his grandmother. Officer Woodall testified that he informed appellant what Xavier had been doing and explained what could happen to Xavier if this behavior continued and what could have happened if he had chosen to arrest Xavier for criminal trespass.
Xavier testified that he was inside a fenced-in area with two other boys. According to Xavier, one of the boys was a troublemaker, and appellant did not want him around that boy. Xavier said that appellant was not happy about the incident, and that she told him that she did not want him to get in trouble. Xavier testified that after the officer left appellant looked for a belt, but that she could not find one because his sister had hidden them. Xavier admitted that appellant had never used a phone cord before and that she only used the phone cord to spank him after she could not find a belt. Xavier testified that after he was spanked he ran from the house and called the police. Officer Woodall responded to the call, returning to the home only thirty minutes after he had previously been there. He observed welts on Xavier, and he reported the incident.
The photographs admitted into evidence displayed marks on Xavier’s arm, one mark on his leg, and one mark on his bottom. The photographs were taken approximately ten minutes after the spanking. There was no evidence of bruising or bleeding. There were no whelps or marks depicted on Xavier’s back or any other part of his body. In fact, there were no other signs of physical injury except the few marks from the cord.
Appellant argues on appeal that the evidence is insufficient to support the finding that she used inappropriate and unreasonable physical force while disciplining her eleven-year-old grandson. We agree.
Arkansas Code Annotated § 5-13-202(a)(4)(C) (Supp. 1995) provides:
(a) A person commits battery in the second degree if:
(4) He intentionally or knowingly without legal justification causes physical injury to one he knows to be:
(C) An individual sixty (60) years of age or older or twelve (12) years of age or younger.
Physical injury means that impairment of physical condition or the infliction of substantial pain. Ark. Code Ann. § 5-1-102(14) (Repl. 1993). Arkansas Code Annotated § 5-2-605(1) (Repl. 1993) provides:
The use upon another person of physical force that would otherwise constitute an offense is justifiable under any of the following circumstances:
(1) A parent, teacher, guardian, or other person entrusted with care and supervision of a minor or an incompetent person may use reasonable and appropriate physical force upon the minor or incompetent person when and to the extent reasonably necessary to maintain discipline or to promote the welfare of the minor or incompetent person.
The test for determining sufficient proof is whether there is substantial evidence to support the verdict. Black v. State, 50 Ark. App. 42, 901 S.W.2d 849 (1995). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. Based on the facts in this particular case, we hold that the evidence is insufficient to support a finding that the physical force used by appellant in disciplining her grandchild was unreasonable or inappropriate under the circumstances. There may be more desirable methods of correction that could have been utilized in this situation, but we cannot say that the punishment inflicted rose to that of a battery in the second degree. Therefore, we find that the evidence is insufficient to support a conviction for second-degree battery.
Reversed.
Pittman and Meads, JJ., agree. | [
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Hart, J.
(after stating the facts). The record in this case shows that appellee drilled three wells which produced gas on adjoining tracts of land so near to the boundary lines of appellants that the wells are drawing the gas from underneath, their land and in time will draw it all away. The only, practical way to offset this is to drill protection wells on the land of- appellants. It made no effort to drill protection wells. The lease does not contain any protection clause. The doctrine of protection is new in this State and arises from the fluid underground situation of either oil or gas.
On the part of appellants, it is claimed that when oil is drawn from underneath land by wells drilled near the boundary line which will obviously drain the land, there is an implied obligation on the part of the lessee to sink the number of wells necessary -to protect the demised tract.
Counsel for appellants insist that, appellee having failed and refused to drill the protection wells as requested by appellants, or to account to them for the gas drawn from their land, the refusal constitutes a breach of the contract and entitles appellants to declare a forfeiture and to sue for the damages resulting therefrom.
Counsel for appellee contend that appellants had no remedy in equity, and that their remedy, if any, was an action at law for damages. In the first place, it may be said that, if it was the duty of appellee to drill a protection well, and it refused to do this, its refusal would constitute an abandonment of the contract, and "equity would afford relief.
In the case of Mauney v. Millar, 134 Ark. 15, the court held that where the sole benefit of a contract results from a continued performance of the contract (such as to develop a mine, to operate it, pay royalties or to divide the proceeds), where one party completely abandons the performance thereof, equity will give relief by canceling the contract. For a partial breach the parties will be remitted to their remedies at law.
Moreover no objection was made or exceptions saved to the jurisdiction of the chancery court, and, under the repeated decisions of this court, the objection that equity had no jurisdiction can not be raised for the first time on appeal. Apple v. Apple, 105 Ark. 669, and cases cited.
It is well settled that, wlien equity has acquired jurisdiction of a matter in a suit for one purpose, all matters in issue will be adjudicated and complete relief afforded. Horstmann v. LaFargue, 140 Ark. 558.
This brings us to the question of whether there was an implied covenant in the lease to protect appellants against drainage, and, if so, what is the measure of damages recoverable for drainage through wells operated on other lands adjacent to appellants’ boundary lines.
The lease provides for a term of five years, and as long thereafter as gas is produced in paying quantities. The consideration for the first year is $1, and for each succeeding year that operation or exploration is delayed the lessee shall pay a yearly rental of $100 for the delay. The lease expressly authorizes the lessee to elect to pay a yearly rental, instead of drilling. Hence, the lessors can not recover damages for failure of the lessee to commence exploration for gas. If, however, the lessee commences to explore for gas, it must exercise due diligence in drilling, and there is an implied covenant on its part to do so. Mansfield Gas Co. v. Alexander, 97 Ark. 167. See, also, Lawrence v. Mahoney, 145 Ark. 310.
In the application of this principle, counsel for ap-pellee contend that there was no implied covenant on the part of appellee to sink protection wells on the land of appellants. They contend that the rule only applies where the lessee has in part developed the leased premises and produced wells. To support their contention they cite the case of Carper v. United Fuel Gas Co. (W. Va.), L. R. A. 1917 A, p. 171. In that case it was held that the lessor is not entitled to recover damages for failure to drill offset wells to prevent drainage, while the lessee exercises his optional right to pay money in lieu of drilling, and the lessor accepts it.
The court did hold, however, that there was an implied obligation on the part of the lessee to drill a well for protection against drainage, upon necessity therefor, and tlie lessor’s demand for such, action, within any rental period for which rent has been paid, with notice of intention to refuse to accept further rentals, and the right in the lessor to declare a forfeiture of the lease for noncompliance with such demand would afford full and ample protection from such losses. .
We think it perfectly sound to, say that the acceptance of delayed rental precludes the lessor from forfeiting the lease for failure to develop during the term covered by the delayed rental. In such a case the lessor still has the gas and has received the reserved rent for the delay in drilling.
In a case like the present one, however, the facts are essentially different, and a forfeiture of the lease would not afford adequate protection to the lessor. The lessee has the sole and exclusive right to drill. Should the lessee fail to drill a protection well after a producing well has been brought in near the lessor’s boundary lines on adjacent lands, such well might draw off a material portion of the gas under the lessor’s land before he could declare a forfeiture and procure some one else to drill an offset well.
The record shows that drilling wells is very expensive, and is only undertaken where the lessee has a large area of acreage in a block. It is a matter of common knowledge that the landowner is not equipped with machinery for drilling and could not purchase such machinery on short notice, if able to do so. Hence, when he leases his land to another with the exclusive right to drill for oil and gas on it for a stipulated period of time, there is an implied covenant on the part of the lessee to protect the land at least from wells drilled by him on adjoining property which will necessarily draw the gas from the lessor’s land. If there had been no lease on his land, the lessor could have had all the time during which the wells were drilled on adjoining land to have arranged for the drilling of an offset well on his land in case a producing well was brought in on the adjoining land which'would draw the gas off his own .land.- Of course, if lie failed to make such an arrangement, the loss would fall upon himself. In case, however, he has leased his land to another and has given the lessee the exclusive right to drill on his land for gas, it is obvious that the mere right of forfeiture in case the lessee would not drill a protection well would not afford him adequate relief. The practical test is to be found in the question, are the outside wells, as for example, the wells on the Grieg and Bryant tracts, draining the Blair land to such an extent that, if the wells on the Grieg and Bryant tracts were operated by a third party, appellee as lessee of the Blair tract, would find it good management to put down protection wells to save its own leased territory from exhaustion? If so, then good faith to its lessors would require it to put down the protection wells that the lessors might get their royalties under the lease, or at least be protected from having the gas drawn from their lands. In this connection we quote with approval from the case of Carper v. United Fuel Gas Co., supra, the following: “To say the lessor intended-to permit the oil and gas in his land to he withdrawn from it otherwise than through wells drilled on it under the lease, and thus to let it go to other persons for nothing, as an incident of his procurement of a small money rental for two, five, or ten years, would ho inconsistent with reason, and contrary to the legal principles governing the relation of landlord and tenant or licensor and licensee. For the rental reserved, he is neither selling his oil or gas, nor relinquishing his ownership thereof, nor consenting to severance or abstraction thereof. He expects it to remain in the land until the rental period ends, whether it ceases by the drilling of a well or expiration of the term. Nor can it be doubted that the lessee contemplated the same result. Neither could have intended that he should take out the mineral through wells on other lands. The words of his lease contemplate his extraction of the oil and gas through wells to be drilled by him on the land, and so emphatically deny any such intent on his part. The rental is for' delay, not destruction. If, by the negligence or misfeasance of a tenant, the demised property is materially injured, he is liable for the resultant damages, and the landlord may recover the amount thereof from him within the term, notwithstanding he has paid the rent or is bound to pay it. Moses v. Old Dominion Iron & Nail Works Co., 75 Va. 95, 102. If a tenant commit waste, an action lies against him. The landlord is not limited to his rent as, compensation. In these cases there need not be an express covenant against waste, nor an express agreement to pay the resulting damages. They are implied, if not expressed.”
The contract is a lease of the land for the purpose of drilling for oil and gas for the period of time designated therein, and the lessee has a vested right to the possession of the land to the extent reasonably necessary to perform the terms of the agreement on his part. Therefore there is an implied covenant on the part of the lessee to protect the lessor against drainage, and, in default thereof, the lessor may recover damages.
We think this view is supported by the authorities cited below, and in any event that it is in accord with the better reasoning on the question. J. M. Guffey Petroleum Co. v. Jeff Chaison Townsite Co. (Tex. Ct. Civ. App.), 107 S. W. 609; Powers v. Bridgeport Oil Co. (Ill.), 87 N. E. 381; Kleppner v. Lemon (Penn.), 35 Atl. 109; Culbertson v. Iola Portland Cement Co. (Kan.), Ann. Cas. 1914 A, p. 610; Harris v. Ohio Oil Co. (Ohio), 48 N. E. 502; Kelley v. Ohio Oil Co., 57 Ohio St. 317, 39 L. R. A. 765; Kellar v. Craig, 126 Fed. 630 and Thornton on Oil and Gas (3 ed.), vol. 1, par. 109 and vol. 2, par. 882.
What is the measure of damages recoverable for drainage through wells operated by defendants on their lands near the plaintiffs’ boundary line may b^ difficult of determination and troublesome to ascertain, but that is no bar to relief in such cases. For example, suppose in the present case the record should show that appellee had drilled wells on the adjacent lands near to the boundary lines of appellants for the very purpose of drawing the gas from underneath their lands through these wells, it is obvious that such conduct of the appel-lees would be fraudulent and actionable. Or suppose,/" as in the case of Millar v. Mauney, 142 Ark. 486, the evidence had showed that the formation on the leased land was of such a character that it was not practicable to drill through it, but that the gas could be best drawn from underneath the land by drilling a well on the adjacent land outside of the leased premises and the wells on the Bryant and Greig tracts has been drilled by appel-lees there on this account, the failure on the part of the lessee to pay the royalty agreed upon would be actionable. In either of the supposed cases the measure of damages would be the same as in the cases of a breach of an implied covenant to protect the demised premises against drainage. To hold otherwise would to be deny relief in a just case because of the difficulty of ascertaining the amount of loss suffered by the wrongful action of the offending party.
It appears from the record that expert witnesses acquainted with the gas field may testify with reasonable accuracy as to the number of wells which should have been drilled on the leased land for protection from drainage. Such witnesses might also testify with reasonable accuracy as to the quantity of gas obtained from the wells. They did say that the sand in which the gas was found was sufficiently porous that a well would draw from underneath the ground gas for a distance of a quarter of a mile in all directions. The record in the case also shows that the three wells operated by appellee on the adjacent tract will in due course of time draw all the gas from underneath the land of appellants. The lessee under the facts disclosed by the record, is liable to the lessors for their proportionate share of the gas taken by the wells drilled so near their boundary lines as to draw off the gas underneath their land. There is no reason why it can not be ascertained with reasonable certainty what quantity and quality of gas has been and will be taken from appellant’s land through the wells drilled and operated by appellee on the adjoining land. Culbertson v. Iola Portland Cement Co. (Kan.), Ann. Cas. 1914 A, p. 610, 125 Pac. 81.
This is a new question in this State, and it does not appear that the testimony on the measure of damages was fully developed. Therefore, upon the remand of the case, the chancery court is directed to allow either party to take additional testimony on this point within a reasonable time to be allowed by the court or the chancellor thereof, if the parties shall be so advised. Tankersley v. Norton, 142 Ark. 339; Rushing v. Horner, 135 Ark. 201; Bank of Des Arc v. Moody, 110 Ark. 39, and McClintock v. Robertson, 98 Ark. 595.
For the error in refusing to allow appellants to recover damages against, appellee for the breach of the implied covenant to drill protection wells against drainage, the decree will be reversed and the cause remanded for further proceedings in accordance with the opinion. | [
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Smith, J.
W. J. Rogers operated a general milling business in the city of Rogers under the name of the Rogers Milling Company. He sold the property, good will and business to R. B. Patterson and three associates, who are the appellants here. The sale was made July 18, 1918, for the consideration of $10,500, of which sum $2,500 was cash in hand paid. The balance was evidenced by a note due one year after date, bearing eight per cent, interest. A payment of $1,000 was made on the note on January 2, 1919, and on August 1, 1919, an additional payment of $5,000 was made. This suit was brought at law to collect the balance, but on motion was transferred to equity.
The execution of the note was admitted, but, by way of defense, it was alleged that Rogers was a successful and experienced miller, and his plant had an established good will and business, and a part of the consideration for the note sued on was an oral agreement by Rogers not to build or operate, or to become interested in the building or operation of, another mill in the city of Rogers, and that the good will of the business and the agreement on the part of Rogers not to re-enter the milling business were worth $3,500; that Rogers, in violation of his agreement, had erected another mill and was engaged in operating the same and transacting a general milling business, to the injury of the defendants in the sum of $3,500; and there was a prayer for judgment in accordance with these allegations.
Rogers testified in his own behalf, and denied that there had been any agreement on his part not to re-enter the milling business in Rogers. He stated that he went to Colorado for his health, and after a year’s absence returned and re-entered the milling business.
John Putnam was one of the four who formed the copartnership for the purchase of the mill and who signed the note sued on. Putnam conducted the negotiations leading up to the purchase, and was the principal witness for the defendants. He stated he understood the mill had cost about $7,000, and he told Rogers $10,500 was too much for the property; but Rogers insisted that the price was reasonable, as the mill was running in good shape and had a good business. Putnam further testified that Rogers stated his physician had advised him to go West for his health, and that he was forever through with public business if he could sell his mill. This witness repeated these representations to his associates, all of whom: testified that they were induced to buy by reason of the fact that they were getting the mill with its good will and business, and that they proceeded on the assumption that they would have no competition in business, at least none from Rogers.
This court has in more than one case upheld contracts in partial restraint of trade; but in doing so we have recognized that the contract is of such character that the rights of the public may be involved; and where the contract results in the creation of a monopoly, it is void as contrary to public policy. Wakenight v. Spear & Rogers, 147 Ark. 342; Shapard v. Lesser, 127 Ark. 590.
The courts, therefore, require that such contracts be definite and certain , as to the extent to which trade or business is restrained, so that it may appear to what extent the rights of the public have been infringed before lending aid to their enforcement.
The Supreme Court of Pennsylvania in Hall's Appeal, 60 Pa. St. 458, a case in which one undertaker had bought the business of another, including the good will of the business, said: “As the alleged agreement is in restraint of trade, its existence should be established by clear and satisfactory evidence in order to justify the court in restraining its breach by injunction. There should be no doubt or uncertainty in regard to its terms, or the consideration upon which it was founded.”
. One who sells his business with its good will must in good faith do nothing which directly tends to deprive his purchaser of the benefits and advantages of the purchase. But it is said in the note to the case of Brown v. Benzinger, 84 Atl. 79, A. & E. Ann. Cas. 1914 B 582, that the rule is well settled that the vendor of the good will of a business may, in the absence of a restrictive agreement, engage in a competing business. Cases are there collected supporting the text of the note.
The reasons generally assigned for the rule are that it is quite usual for one to sell his business, while agreements not to engage in the same business are exceptional; and, as such agreements result in at least a partial restraint of trade, they are not to be implied from the mere sale of the business with its good will or from loose expressions of the seller during the negotiations for the sale indicating a purpose not to re-engage in the business he is selling. The rule, as stated in 12 R. C. L. 988, is as follows: “But the more generally accepted doctrine is that, in the absence of an express covenant, there is. nothing to prevent him from re-establishing himself in the same business, provided he does nothing to injure the good disposition of the public toward the old place of business, or to impair any of the advantages which the purchaser has properly acquired by the purchase of the good will of the old customers in the same vicinity. ’ ’
Appellee was not asked to agree not to re-enter the milling business in Bogers as a condition upon which the purchase would be made; nor is it contended that he agreed not to go into business again. There is no allegation or proof of fraud. After selling the mill Bogers did go West, as he had said he intended to do, where he remained for about a year. The purchasers saw fit to rely on general expressions by the vendor as to his future intentions, without incorporating those statements into the contract of sale, and they must therefore be held to have taken the chance that the seller might later change his plans, in which event he would not be precluded from re-entering business, as he did not so expressly agree.
It follows that, while Bogers has no right to do anything which would impair the value of the business, and the good will thereof, sold by him to appellants, he did not bind himself not to re-enter the milling business, and his act in doing so can not, therefore, be the subject-matter of an action for damages, and the decree of the court below is therefore affirmed. | [
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McCulloch, C. J.
Appellant is a domestic corporation, organized for the purpose of “sinking wells, bor ing for, providing and transporting crude oil and natural gas, coal, asphalt and any other minerals which may be found in the development of their property,” and, asserting itself to be a public utility in the operation of its business of producing, transporting and distributing natural gas, it filed its petition before the Arkansas Corporation Commission on May 13, 1920, praying that a new schedule of rates for the use of gas by smelters and other like consumers be fixed at ten cents per thousand cubic feet. Appellant also filed a petition against appellees, Fort Smith Spelter Company, Arkansas Zinc & Smelting Corporation and Athletic Mining & Smelting Company, three corporations who are customers of appellant as consumers of gas in manufacturing plants, praying for modification of the contracts with appellees for supplying gas, and the latter filed their response in the proceedings before the commission in which they claimed that appellant was not a public utility, and that they (appellees) were receiving gas from appellant under private contracts which were not subject to control by the commission. There was a hearing before the commission, the result of which was that the petition of appellant for the regulation of rates was granted by the commission over the protests of appellees, but the rate was fixed on a graduated scale according to the amount of gas consumed, and the rate so fixed is approximately nine cents per thousand cubic feet. Appellees then carried the proceedings before the circuit court of Pulaski County by appeal as provided in the statute creating' the Arkansas Corporation Commission and regulating its proceedings (Acts 1919, page 411), and on the hearing in that court there was a general finding against appellant on the petition and by the judgment of the court the petition was dismissed. An appeal has been prosecuted to this court.
Section 27 of the act referred to provides that there may be an appeal to the circuit court from orders and decisions of the commission, and that said circuit court shall have the power to “vacate or modify any such order found unreasonable or unlawful, or contrary to the evi- deuce; but no new evidence may be adduced by either party in said court, it being hereby expressly made the duty of all parties to present to the commission all evidence on which they may wish to rely in the event of an appeal to the said circuit court, and all appeals shall be tried upon the record made in the proceedings before the commission. ’ ’
Section 28 of the act provides for an appeal to the Supreme Court, and that on the hearing of such appeal ‘ ‘ the Supreme Court shall be governed by the procedure, and reviewed in the manner which is now or may hereafter be prescribed by law governing appeals from chancery courts.”
We need not concern ourselves about the particular form of the remedy prescribed by the statute, for that question is not discussed here by counsel. It is sufficient merely to observe that the commission acts in a quasi-judicial capacity, and its orders affecting property rights are subject to review by the courts in such manner as may be prescribed by the Legislature. The name given to the method of review by the Legislature is not important, since it is clear that the purpose of the statute was to provide for a review by the circuit court on the record made before the commission, and also provide for an appeal to this court, which latter provision is merely declaratory of the right of appeal conferred by the Constitution.
The real point of the controversy between the parties is whether the contracts between appellant and appel-lees'for the sale and purchase of gas were executed by appellant when it was not acting in any public capacity, as contended by appellee, or whether appellant was from the start a public service corporation and the contracts attempted to confer preferential rights to appellees as consumers. Learned counsel for appellees candidly concede that, if appellant was organized as a public service corporation and at the time of the execution of these contracts it was operating as such public utility in the production and distribution of gas, the contracts were void, so far as they undertook to confer special privileges upon appellees, and that the schedule of rates for prices of gas is subject to control by the Corporation Commission, even though the statute authorizing such regulations was not passed until after the contracts were executed. It is unnecessary, therefore, to cite authorities on that question. Such authorities are cited on the briefs of counsel.
There is little, if any, conflict in the testimony, so far as we regard it as material.
Appellant was organized as a corporation in July, 1914, for the purposes already recited in the foregoing quotation. Soon after its incorporation, it acquired leases on a large body of land (30,000 acres or more) in Crawford County, Arkansas, and began explorations for gas. This was in wliat subsequently became known as the Kibler field, and appellant brought in its first well in November, 1915, with the initial capacity of-12,000,000 cubic feet per day. It had no market for its gas at that time and was seeking a market. Fort Smith and Van Burén, the only two cities of any considerable size in that locality, were already being supplied by a gas distributer which obtained gas from another field. Appellant began negotiating with persons who were seeking locations for manufacturing plants and made its first contract with two individuals, Buck and Kerr, who were succeeded in their rights under this contract by appellee Fort Smith Spelter Company. This contract was in writing, duly executed on March 17, 1916.
The contract is lengthy, and provides, in substance, that appellant should proceed to develop the gas field in which it had leases on approximately 30,000 acres and expected to procure more leases, and furnish the contracting parties with gas to be used in a smelting plant to be thereafter located at South Fort Smith, the price to be paid for the gas being specified at four cents per thousand cubic feet; and further provided that, after the first 160 days from the date of the -contract, appellant would furnish thereunder gas in quantities which the con tracting consumers were to receive up to 5,000,000 cubic feet per day, and that the said parties should have the right to increase the amount up to 12,000,000 feet a day. It provided that the contracting purchasers should “have the first call upon the gas” produced by appellant from any lands in the counties mentioned, or any other territory which might be acquired by appellant, and that the rights of said parties to be supplied with gas should be prior and superior to any contract or agreement made by appellant with others. There is also a clause in the contract giving the contracting purchasers the right to regulate the percentage flow of gas. Another clause in the contract worthy of mention provides that, if the plant of the contracting purchasers should cease to yield a reasonable profit of six per cent, on the capital invested, appellant should make a reasonable reduction on the price of gas, and that, if appellant should sell any gas to any other consumers, except churches, schools, hospitals or charitable institutions, “ at a less rate of price than governs this contract, then in such event second party shall pay for 'all gas consumed on a price basis equal to such lower price or prices during the entire time they are in effect. ’ ’ Still another clause provides that in case of loss by the contracting purchaser on account of fire, explosion, storm, strikes, etc., said party should not be required to accept or pay for any more gas than was actually consumed.
At the time of the execution of this contract appellant had still only one well, but it proceeded thereafter with the further development and up to September, 1916, had brought in ten wells in the Kibler field. It had not contracted with any other person or corporation for the furnishing of gas, but it had obtained franchises from the incorporated towns of Alma, Conway and Clarksville to furnish gas to the inhabitants of those towns. It is not shown that appellant operated under these franchises, and they appear to have been subsequently abandoned. The Kibler field was situated northeast of the city of Van Burén, and the plants of appellees were, un der tlieir contracts, to be located, and were subsequently located at South Fort Smith, a suburb on the south side of the corporate limits of the city of Fort Smith except the plant of appellee, Arkansas Zinc and Smelting Corporation, -which was established near Van Burén. In order to transport the gas from the field to the location of these plants it was, of course, necessary to lay pipe lines, and appellant constructed a ten-inch line from the field to the plant of appellee, Arkansas Zinc and Smelting Corporation, thence through Van Burén to Fort Smith and through that city to the suburb on the south where the manufacturing plants were located, a distance of about twenty miles from the gas fields. Appellant obtained franchises from the cities of Van Burén and Fort Smith on March 25,1916, and April 3,1916, respectively, to distribute and sell gas to the inhabitants of those cities.
The contract between appellant and appellee, Arkansas Zinc & Smeltering Corporation, was executed on May 3, 1916, but it is shown that the negotiations were begun much earlier and resulted in a written memorandum concerning the terms of the contract as early as March 17, 1916, the formal contract being reduced to writing and signed by the parties on May 3, 1916. In this contract it is provided that the purchasing contractor should advance funds to appellant in the sum of $45,000, to be used in the construction of a pipe line, and that said purchaser should, subject to the prior contract with the Fort Smith Spelter Company, have the next call for gas produced by appellant and supplied through the pipe line, at the same price as that specified in the contract with the spel-ter company. Appellant entered into a similar contract with appellee Athletic Mining & Smeltering Company, dated November 8, 1916, subject to the prior contracts with the other appellees. Under these contracts the Fort Smith Spelter Company has been taking gas at the rate of 3,800,000 cubic feet per day; the Arkansas Zinc & Smelting Corporation had been taking gas at the rate of from 1,250,000 to 1,500,000 cubic feet per day, and the Athletic Mining & Smeltering Company had been taking gas at the rate of from 3,500,000 to 4,000,000 cubic feet per day. As the Kibler field became depleted, according to the proof, an adjoining field, only a few miles distant, known as the Williams field, was developed, and appellant brought in its first well in January, 1919, and subsequently brought in other wells in that field, and has been furnishing gas to its customers from both fields. Appellant subsequently made contracts with nineteen other manufacturing plants at Fort Smith, but the parties to those contracts have not intervened in these proceedings.
The testimony adduced by appellant tends to establish the fact that the rate specified in these contracts with the parties mentioned is not remunerative, and the evidence is sufficient to support the finding of the commission fixing the rate at approximately nine cents per thousand cubic feet for use by the manufacturing plants. The circuit court made no finding as to the reasonableness of the rate charged. Its ground for dismissing appellant’s petition was necessarily based on the conclusion of that court that under the evidence these contracts were controlling and could not be abrogated by any regulations of the Corporation Commission.
If appellant was not a public utility at the time these contracts with appellees were entered into and the contracts were not entered into in anticipation of appellant becoming such a public utility, but were merely private undertakings concerning a subject-matter over which the State had no control, then such contracts were valid, and the obligations thereof could not be impaired by any State regulation. Neither could appellant impair the obligations of its own contract valid at the time of its execution by subsequently engaging in the operation of business subject to the State’s control. To permit that would be to allow the impairment of the contract by indirection, which could not be directly done. We are not aware of any authorities holding to the contrary on this proposition, and we deem it unnecessary to cite any authorities in.support of it.
It was within, the charter rights of appellant to operate a business as a public utility in the production, transportation or sale of natural gas, but it was not limited to such operations as a public utility and was not bound to so operate. It was authorized to do business in the production, transportation or sale of the commodities named, other than as a public utility. The question, therefore, is not merely whether appellant was authorized to operate as a public utility, but whether it elected to do_ so under the power thus conferred. It had a right to exercise those powers or not to do so, and, in the event of its election not to do so, it could enter into private contracts not subject to public control or regulation. In other words, appellant was not necessarily a public utility because its charter authorized it to become one in the operation of its business, nor was it under its charter a public service corporation merely by the operation of a private business of the ldnd enumerated.
Section 1 of a statute of this State, enacted by the General Assembly of 1905 (Acts of 1905, page 577, Crawford & Moses’ Digest, section 3969), reads as follows:
“Pipe lines — right-of-way. Any corporation organized by virtue of the laws of this State, for the purpose of developing and producing mineral oil, or petroleum, or natural gas in this State, and marketing the same, or transporting or conveying the same by means of pines from the point of production to any other point, either to refine or to market such oil, or to conduct such gas to any point or points to be used for heat or lights, may construct, operate and maintain a line or lines of pipes for that purpose along and under the public highways and the streets of cities and towns, with the consent of the authorities thereof, or across and under the waters and over any lands of the State and on the lands of individuals, and along, under or parallel with the rights-of-way of railroads, and the turnpikes of this State; provided, that the ordinary use of such highways, turnpikes and railroad rights-of-way be not obstructed thereby, or the navigation of any waters impeded, and that just com pensation be paid to the owners of such lands, railroad rights-of-way, or turnpikes, by reason of the occupation of such lands, railroad rights-of-way, or turnpikes by the said pipe line or lines.”
It will be observed that this statute does not declare that corporations organized for the purposes mentioned therein shall be public utilities. It does not undertake to classify them as such, but merely provides that corporations organized for those purposes may construct, operate and maintain a line or lines of pipes for that purpose along and under public highways, etc.,” and may exercise the right of eminent domain for the purpose of condemning property to be used as a right-of-way. The purpose of the statute was merely to confer the right of eminent domain on a class of corporations when operating as public utilities which had not theretofore possessed such right. The purpose of the act, declared in the caption, is “to confer the right of eminent domain upon companies developing the mineral oil and natural gas resources of the State.” It is not within the power of the law makers to declare the operation of a business which is private in its nature to be public service and subject to public control. That was so decided by the Supreme Court of the United States in the case of Producers’ Transportation Co. v. R. R. Commission, 251 U. S. 228. In that case the court said: “It is, of course, true that if the pipe line was constructed solely to carry oil for particular producers under strictly private contracts and never was devoted by its owner to public use, that is, to carrying for the public, the State could not, by mere legislative fiat or by any regulating order of a commission, convert .it into a public utility or make its owner a common carrier; for that would be taking private property for public use without just compensation, which no State can consistently do with the due process of law clause of the Fourteenth Amendment. * * * On the other hand, if in the beginning or during its subsequent operation the pipe line was devoted by its owner to public use, and if the right thus extended to the public has not been withdrawn, there can be no doubt that the pipe line is a public utility and its owner a common carrier whose rates and practices are subject to public regulations.”
This was said in a case involving a statute of the State of California in many respects similar to our own statute quoted above, and the Supreme Court of California announced the same conclusion in regard to this statute as was later declared by the Supreme Court of the United States. (Producers’ Transportation Company v. Railroad Commission of California, 176 Cal. 499.) The California court in disposing of the matter in that case said: “Neither by the provision of the act in question nor the provision of the Constitution can the State subject private property to a public use, nor confer authority upon the Railroad Commission to assume control of private pipe lines engaged in the transportation of crude oil. Neither by act of the Legislature nor by declaration of the State Constitution can private property be taken for public use without compensation therefor. * * # Where, however, the owner of property voluntarily devotes it to a public use, he in effect grants to the public an interest in such use, and to the extent of the interest so devoted to the public, the public may insist upon a voice in the control and regulation thereof.”
The same principle was, in substance, announced by the Supreme Court of the United States in the case known as the Pipe Line Cases, 234 U. S. 548. In that case there was involved the interpretation of an act of Congress extending the authority of the Interstate Commerce Commission over persons and corporations “engaged in the transportation of oil or other commodity, except water and except natural or artificial gas, by means of pipe lines,” and the court decided that the Standard Oil Company was subject to that provision as a public carrier, notwithstanding the fact that it only transported oil which under its own requirements was to be sold to itself by the producer. The court decided, however, that another corporation which only trans ported oil from one State to another.through, its own pipe lines from its own well to its own refinery was not a common carrier within the meaning of that statute.
Our conclusion is, therefore, that appellant did not become a public utility merely by force of the statute itself, without anything being done pursuant to the terms of that statute or in any other respect to make itself a public utility. But the conclusion is inevitable from the proper construction of the statute that, if a corporation organized for the purposes ,of carrying on the business mentioned in the statute takes advantage of the terms of the statute, it becomes a public utility subject to the State’s control. Pulaski Heights Land Co. v. Loughborough, 95 Ark. 264. The statute does not declare such corporations to be public utilities merely because they operate the business mentioned, but- they can not exercise the powers conferred under that statute without being public utilities. If a business so conducted is entirely private, .it is not within the power of the Legislature to confer upon it the power of eminent domain, as that is a power which can be exercised solely for the benefit of the public. Wyman on Public Service Corporations, § 71; Ozark Coal Co. v. Pa. Anthracite Rd. Co., 97 Ark. 495. This was the effect given to the California statute by the Supreme Court of that State in the decision just referred to. That court upheld the decision of the Railroad Commission of the State in assuming jurisdiction of a corporation operating a pipe line because of the fact that the corporation had “availed itself of the right of eminent domain in condemning property for the right-of-way over which it constructed its pipe line.” The court said: “To our minds this must be deemed conclusive evidence of a dedication of such property to public use, since it could not have exercised such right other than in ‘behalf of a public use.’ ”
According to the evidence adduced before the commission in the present case, appellant had not exercised the right of eminent domain under this statute for the purpose of obtaining a right-of-way for its pipe line, but the evidence is entirely convincing that it was making preparations to do so, and these contracts on their face, and especially in the light of the testimony adduced with respect to the attitude of the parties at that time, necessarily contemplated the exercise of the right of eminent domain by appellant in equipping itself for the performance of the contracts. The gas field was about twenty miles from the place where the gas was to be delivered to the parties under these contracts. The only available means of transportation was, of course, by pipe lines running from the field to the point of delivery, and this pipe line necessarily would cross railroads and public highways and would cross the Arkansas River. Even if it be conceded that it was within the range of possibility to find some other means of transporting the gas from the field to the point of delivery without condemning a way over private property and without the granting of permits to use the public highways, it certainly was not practicable or reasonable. Nor was it reasonable to expect that the parties had in contemplation some such extraordinary means of transportation. The only reasonable conclusion is that the parties, when they contracted for delivery, meant that it was to be done by a pipe-line which was to be constructed in the exercise of the right of eminent domain over private property in case private grants could not be obtained, and over and along the public highways of the county. It is, therefore, certain that these contracts, though executed before appellant began operating as a public utility, were made in contemplation of such operations by appellant, and were intended as preferential contracts extended to the appellees in priority of any rights of the public.
Shortly after the execution of the first contract, and even before the other contracts were entered into, appellant pursued its preparations for the construction of a pipe line by the exercise of eminent domain under the statute and did in fact acquire a right-of-way under this power. And another significant fact is that it constructed a pipe-line for service under these contracts which was of a size deemed necessary in order to serve the public as well and to furnish equipment for the transportation of all the gas from the field. The second contract specified the size of the pipe-line, and, while the first contract contained no such specification, the proof shows that it was known at that time and understood that the pipe-line was to be of a size sufficient to serve áll who might wish to obtain gas at the points of delivery along the pipe-line.
There are other facts in this case which indisputably stamp these contracts as being made in contemplation of the entrance of appellant upon the operation of a business which was public in its character and was intended as a preferential right against the public. In the first place, it is a matter of general knowledge that natural gas is a commodity which is generally developed for the purpose of distribution to the public. It is not usually handled commercially as the subject-matter of private contracts. Appellees, in contracting with appellant, were bound to know that the developments were for the purpose of sale of gas publicly to all consumers within the radius of appellant’s business operations. They were bound to take notice of the fact that appellant had obtained a charter authorizing it to carry on business as a public utility. They knew, as recited in their contracts, that appellant had acquired leases for production of gas in a tremendous area of land and the contracts provided that appellant should acquire more leases and that the Contract should cover any other leases thereafter obtained. In other words, the contracts were made in contemplation of very extensive operations by appellant, •probably far in excess of the demands of each of these contracting consumers, and that necessarily meant that appellant would have to seek a market for the remainder of the gas produced, and that the market would be at the points of delivery along its pipe-line, which was to be used as equipment for service under these contracts. The acquisition by appellant of franchises in several towns and cities, while not shown to be within the actual knowledge of appellees, were matters of such common notoriety as appellees are presumed to have known of them. When these facts are considered in connection with the potent fact in the case that appellant was preparing at that time to exercise its power under the statute as a public service corporation, the conclusion is irresistible that these contracts were intended as preferential ones, and all rights under them must yield to the superior right of the public to regulate such corporations, and the contracts constituted, in effect, an invasion of the public right, though not such in express terms. Pipe Line Cases, 234 U. S. 548. It has been decided by this court that the State had the power, even under statutes enacted subsequent to the execution of contracts, to impose regulations which have the effect of changing the terms of contracts in regard to rates for public services. Camden v. Arkansas Light & Power Co., 145 Ark. 205.
We have not overlooked the decision of the Supreme Court of California in the case of Allen v. Railroad Commission, 175 Pac. 466, cited and relied on so confidently by learned counsel for appellees. We do not, however, think that that case is at all controlling in the present case. There was no indication in that case of the intention on the part of the court to impair the effect of the previous decision in the case we have cited. In that case there were private contracts intended as merely conferring private water rights to numerous parties, and the only circumstance which tended to establish the corporation under consideration as a public utility was the fact that it had been furnishing water to a small town or village which consumed less than three per cent, of the volume of water handled by the company. The court held that under the facts of that case there was no dedication of the bulk of the water handled to the public use. There was no element in that case, as was in the previous decision of that court cited, and in the present case, of the corporation having accepted the terms of a statute which necessarily made it a public service one.
Our conclusion is that the circuit court erred in dismissing the petition of appellant. It is contended by counsel for appellees that, irrespective of the law of the case as herein declared, the circuit court is presumed to have found from the evidence a state of facts, with respect to the reasonableness of the rates sought to be established by appellant in the schedule filed with the commission, which sustains the judgment, and that we ought to affirm the judgment unless we find it to be unsupported by the evidence. The fact, however, that the court dismissed the petition of appellant, instead of modifying the rates fixed by the commission, is convincing that the court did not base its judgment on any finding as to the reasonableness or unreasonableness of the rates, but on the conclusion erroneously reached that the contracts between the parties were beyond the control of the commission. It is undisputed that the contract rate is now non-remunerative and unreasonable, but the parties are entitled to a finding by the trial court on the issue as to the reasonableness of the rate fixed by the commission — that is to say, a finding based on the evidence adduced before the commission. The judgment is therefore reversed, and the cause remanded for further proceedings. | [
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Hart, J.
(after stating the facts). The defense of the insurance company to the suit is that Keller did not have an insurable interest in the life of Moore, and on this account the policy is void. Hence it is earnestly insisted by counsel for the defendant that the court erred in not directing a verdict in its favor, and in this contention we think counsel are correct.
"What constitutes an insurable interest in the life of another is clearly stated in Warnock v. Davis, 104 U. S. 775, as follows:
“It is not easy to define with precision what will in all cases constitute an insurable interest, so as to take the contract out of the class of wager policies. It may be stated generally, however, to be such an interest arising from the relations of the party obtaining the insurance, either as creditor or of surety for the assured, or from the ties of blood or marriage to him, as will justify a reasonable expectation of advantage or benefit from the continuance of his life. It is not necessary that the expectation of advantage or benefit should be always capable of pecuniary estimation, for a parent has an insurable interest in the life of his child, and a child in the life of his parent, a husband in the life of his wife and a wife in the life of her husband. The natural affection in cases of this kind is considered as more powerful, as operating more efficaciously, to protect the life of the insured, than any other consideration. But in all cases there must be a reasonable ground, founded upon the relations of the parties to each other, either pecuniary or of blood or of affinity to expect some benefit or advantage from the continuance of the life of the assured, otherwise the contract is a mere wager by which the party taking the policy is directly interested in the early death of the assured.”
The rule there announced has been approved by this court. McRae v. Warmack, 98 Ark. 52, and Cotton v. Mutual Aid Union, 132 Ark. 458. It is generally held that the connection between son-in-law and father-in-law is not sufficient to create an insurable interest in the latter in favor of the former. Crismond’s Admx. v. Jones, 83 S. E. (Va.), 1045; Aim. Cas. 1917 C, 155 and note; Rombach v. Piedmont & Arlington Life Ins. Co., 35 La. Ann. 233, 48 Am. Repts. 239, and Shea v. Massachusetts Benefit Assn. (Mass.), 39 Am. St. Repts. 475.
In the present case Keller procured the Home Mutual Benefit Association to issue the two benefit certificates sued on to him upon the life of E. W. Moore, his father-in-law. Keller kept the assessments paid until Moore died. Keller had no pecuniary interest in the continuation of the life of Moore. Moore was under no obligation, legal or moral, to support Keller or his family. The benefit certificates sued on were wager policies, and therefore void as against public policy. The mere fact that Moore lent Keller money and was willing to lend him more, coupled with the fact that he was kindly disposed toward him, can be said in no sense to take the case out of the rule that Keller was speculating on the hazard of a life in which he had no interest. The fácts in the record of the present case show conclusively that Keller could have no expectation of advantage or benefit in the life of Moore, and the court erred in not instructing the jury that the benefit certificates sued on were wagering contracts and not enforceable in law.
Again it is sought to uphold the judgment upon the authority of the act of 1917, pertaining to the regulation and incorporation of fraternal benefit societies. Crawford & Moses’ Digest, § 6068. That act has no application to the present case. By its terms it applies to .mutual benefit societies having a lodge system with a ritualistic form of work, and does not purport to apply to a mutual benefit association having no lodge system of government as in the present case. Acree v. Whitley, 136 Ark. 149.
It follows that the court erred in not directing a verdict for the defendant. Inasmuch as the case has been fully developed, the judgment will be reversed, and the cause of action dismissed, | [
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Hart, J.
(after stating the facts). It may be stated at the outset that S. W. Ferguson and J. L. Simpson obtained a decree of foreclosure of the unpaid purchase money against I. W. Carter in the same chancery court in which the present suit is pending. This decree was obtained by the publication of a warning order against Carter, and the decree was entered of record before the present suit was instituted. Jesse Guydon was not a party to that suit and is in no wise bound by the decree entered therein. His rights must be determined by the record in the present case.
The record in the present case shows that the deed from S. W. Ferguson and J. L. Simpson to I. W. Carter was executed on the 24th day of February, 1919, and the deed recites unpaid purchase money in the sum of $300 due by Carter which is evidenced by his promissory note of the same date as the deed, and due on the 20th day of November, 1919. Jesse Guydon also obtained his deed from Carter on the 24th day of February, 1919. According -to the testimony of himself and his father, they had heard that S. "W. Fergnson had a lien on the property. They met Fergnson on the street and asked him if he had a lien on the property for the unpaid par-chase money, giving as a reason for asking that Jesse contemplated purchasing it. Fergnson replied that he had no lien, and that they would he safe in purchasing the property so far as he was concerned. This testimony, if true, is sufficient to create an equitable estoppel in favor of Jesse Gruydon against the defendants, S. W. Ferguson and J. L. Simpson.
It has been well said that an equitable estoppel requires as to the persons against whom the 'estoppel is claimed, opportunity to speak, duty to speak, failure to speak, and reliance in good faith upon such failure. Fagan v. Stuttgart Normal Institute, 91 Ark. 141; Cox v. Harris, 64 Ark. 213; Rogers v. Galloway Female College, 64 Ark. 627; Gill v. Hardin, 48 Ark. 409, and Thompson v. Wilhite, 131 Ark. 77.
This rule was recognized in Scott v. Orbison, 21 Ark. 202, where the court held that if a vendor, having an equitable lien upon land for the purchase money, induces a third person to believe that he does not look to the land, but to other means for payment, and, in consequence thereof, he purchased the land, the vendor will be estopped from setting up his vendor’s lien.
Again this rule was recognized in a vendor’s lien case in Wilson v. Shocklee, 94 Ark. 301, but the estoppel was denied because the facts did not warrant its application. But it is strongly insisted that the evidence is not sufficient to warrant a finding in behalf of the plaintiff in this respect. Counsel for the defendants point to the fact that Ferguson in positive terms denied that he had made any such representations to Lee and Jesse Gruydon, or that he would have any motive in saying that he had no vendor’s lien on the property for the unpaid purchase money when, as a matter of fact, he did have such a lien.
There does not seem to have been any motive on either side to have deceived the other. It would have been easy for Jesse Guydon to have protected himself if he had known that Carter owed Ferguson $300 as a balance of the purchase money of the property. He could liave seen that the money lie paid Carter in November, 1919, was applied by the latter toward the payment of the unpaid purchase money due to Ferguson.
We are confronted with a finding in behalf of the plaintiff by the chancellor, and it can not be said that his finding is against the preponderance of the evidence. According to the uniform current of decisions in this State, the findings of fact made by a chancellor will not be disturbed on appeal unless they are against the preponderance of the evidence.
Therefore the decree will be affirmed. | [
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Humphreys, J.
Appellees instituted suit against appellants in the circuit court of Mississippi County, Chickasawba District, to recover $41,293.15, alleged to be public moneys collected as taxes by D. H. Blackwood, the duly elected, qualified and acting collector of Mississippi County, and deposited by him in the Bank of Blytheville. A recovery was sought under the act of April 9, 1891, page 230, as amended by the act of March 17,1903, page 142. The parts of the acts involved in this litigation are digested in Crawford & Moses’ Digest as sections 2832 and 2835.
Appellants interposed the following defenses to the alleged cause of action: First, that the acts made the basis of the suit are unconstitutional and void; second, that the acts made the basis of the suit were repealed by act No. 113 of the Acts of the General Assembly of the State of Arkansas for the year 1913, known as the General Banking Law of the State; third, that the collector did not make separate deposits of the alleged public funds in said bank; fourth, that the drainage funds to the amount of $4,139.23 and thé voluntary payment of $2,000 for school purposes were not public funds as defined by section 2835 of Crawford & Moses ’ Digest.
The cause was submitted to the court, sitting as a jury, upon the pleadings and evidence, which resulted in a verdict and judgment against appellants in the sum of $41,293.15.
The facts necessary to a determination of the issues involved on this appeal are, in substance, as follows: The Bank of Blytheville, of which appellants were stock holders, was organized and the stock issued in the year 1900. It began business immediately and continued to do business as a banking corporation until the 11th day of March, 1920, at which time, on account of insolvency, it was taken over by the State Banking Department under act No. 113, Acts of the General Assembly, 1913. Prior to the time said bank was declared insolvent and taken over by the deputy State Bank Commissioner, D. H. Blackwood, the sheriff: and ex-officio collector of Mississippi County, had deposited in said bank, to his credit as collector, $41,293.15. The funds deposited were collections for the Chickasawba. District of Mississippi County. $4,139.23 of said amount was taxes collected for drainage districts 7, 9,16 and 17; $2,000 of said amount was a voluntary tax paid to the collector, for the Blytheville Special School District; the remainder of it was taxes collected for the State, county, schools, towns and cities. Immediately after the bank commissioner assumed control of the bank, D. H. Blackwood, the collector, made a demand for the entire amount deposited, which demand for payment was by the bank refused.
Appellant’s first insistence for reversal is that the act of April 9,1891, as amended by act of March 17,1903, had the effect of increasing the burdens of the stockholders in the Blytheville bank, who are appellants herein, in relation to public funds, which did an injustice to them, contrary to the inhibition of article 12, section 6 of the Constitution of the State of Arkansas, and which had the effect of impairing existing obligations in violation of article 1, section 101, Constitution of the United States. It is true that, prior to the amendatory act of March 17, 1903, stockholders of a bank were not liable for public funds, and that the amendatory act made them liable for all public funds deposited therein, not paid to the person entitled to receive same on demand. The constitutionality of the act in question has been before the court frequently, and the court is committed to the doctrine that the State has reserved its power in the Constitution to alter the charter of a corporation, limited only by the inhibition that “no injustice be done the cor-porators.” Leep v. Railway Co., 58 Ark. 407; St. L., I. M. & S. Ry. Co. v. Paul, 64 Ark. 83; Ozan Lumber Co. v. Biddie, 87 Ark. 587; Arkansas Stave Co. v. State, 94 Ark. 27; Davis v. Moore, 130 Ark. 128. The reservation of this power and the only limitation, imposed may be found in article 12, section 6, of the Constitution of 1874, which reads as follows: “Corporations may be formed under general laws, which laws may be from time to time altered or repealed. The General Assembly shall have the power to alter, revoke or annul any charter of any incorporation now existing and revocable at the adoption of this Constitution, or any that may hereafter be created, whenever in their opinion it may be injurious to the citizens of this State, in such a manner, however, that no injustice may be done to the corporators.” Every objection urged by appellants against the constitutionality of the acts finds an answer in the fact that a corporation accepts its charter powers subject to the reserved right in the State to alter or revoke the charter whenever, in the opinion of the General Assembly, such revocation or alteration is for the protection of the citizens of the State, if done in such a manner that no injustice may be done to the corporators. Before an act revoking or changing the charter of a corporation can be declared unconstitutional, it must appear that the effect of the act is confiscatory of the stock or property of the corporation. In discussing a statute which imposed additional liabilities upon stockholders and directly upon the question as to whether injustice had been done to the corporators by the passage of the statute, this court said, in Davis v. Moore, 130 Ark. 128: .“The statute, as we have already seen, does not impose an absolute liability on the shareholder of stock, nor does it compel the corporation or its stockholders to accept the provisions of the statute. It does not operate in any sense as a confiscation of the shares of stock, for the corporation may be wound up, and in that way the property interest of the stockhold ers preserved, or an individual stockholder may sell his stock if he objects to the corporation continuing’ business under the new terms prescribed. It can not be assumed that the new terms prescribed by the statute operate as an impairment or depreciation of the value of the stock, and that an objecting stockholder would be unable to dispose of his shares of stock at full value.” The appellants assail the statute before us on the further ground that no provision is contained in it for an acceptance of the change or alteration in the charter by the corporation or its stockholders. This can make no difference, because, as said before, it accepted its original charter on condition that the State reserved the power to revoke or alter it, if the revocation or alteration did not have the effect of confiscating its property. An acceptance of the altered charter was clearly made by continuation in business after the change was made.. The statute in question is not void as infringing upon either the Constitution of the State or of the United States. Noble State Bank v. Haskel, 219 U. S. 104; Assaria State Bank v. Dolly, 219 U. S. 121; Rampo Water Go. v. New York, 236 U. S. 579. In the last case cited, the Supreme Court of the United States said: “Where the charter of a corporation granted by the State Legislature, or the Constitution or the law of a State in force when such charter is granted, reserves to the Legislature the power to alter, amend or withdraw any franchise or privilege granted by such charter, this reservation qualifies the grant, and the subsequent exercise of the reserved power is not within the prohibition of the Federal Constitution as an act impairing the obligation of a contract. ’ ’
Appellants’ second insistence for reversal, that sections 2832 and 2835 of Crawford & Moses’ Digest were repealed by the banking 'act of 1913, is not sound. There is no express repeal of sections 2832 and 2835 of Crawford & Moses’ Digest in the general banking act, and repeals by implication will not arise unless there is an irreconcilable repugnancy between the later and older statutes. Sections 2832 and 2835 of Crawford & Moses’ Digest make the stockholders of a hank liable for public funds deposited in the bank, if the hank fails to pay the funds to the person entitled to receive same upon demand. The hanking act of 1913 does not deal with that particular subject. While the hanking act is a general affirmative statute, it could only repeal prior statutes of a general affirmative nature dealing with the same subject, and would not have the effect of repealing a prior act dealing with the particular subject. Martels v. Wyss, 123 Ark. 184; Ward v. Wilson, 127 Ark. 266; State v. Adams, 142 Ark. 411; Bartlett v. Willis, 147 Ark. 374.
The third insistence of appellant for reversal, to the effect that appellants are not liable because the collector did not deposit each specific fund in separate accounts in the hank, is not well taken, because the statute in question does not impose any such duty upon the collector.
That part of the fourth or last insistence of appellant for reversal, to the effect that the court erred in permitting a recovery for the amount of the drainage funds of $4,139.23, is sound. The act upon which a recovery is sought specifically defines the public funds for which stockholders become liable when deposited in the bank, when not paid to the party entitled thereto upon demand. It is only money of the United States, State, county, city, town or school warrants or bonds or other paper having a money value which are the property of the State or of the county, city, incorporated town or school district, deposited in banks, which can be recovered from the stockholders of the bank in case not paid by the bank to the party entitled thereto upon demand. The language of section 2835 of Crawford & Moses’ Digest is specific in defining public funds, and does not include public funds belonging to drainage districts. If the statute permitted the recovery of all public funds deposited in a bank from the stockholders when not paid by the bank upon demand of the party entitled thereto, then public funds belonging to a drainage district would necessarily be included, but the public funds defined in the act are confined to those belonging to the State, comity, city, incorporated town or school district. The act is as follows:
“For the purpose of this act ‘public funds’ shall be construed to mean all lawful money of the United States; and all State, county, city, town or school warrants or bonds, or other paper having a money value, belonging to the State, or to any county, city, incorporated town or school district therein.’’’
We can not agree, however, with the insistence of appellant that the voluntary payment of money to the collector in the sum of $2,000 for the Blytheville Special School District is not a public fund, as defined by section 2835 of Crawford & Moses’ Digest. It became a part of the school fund as completely by voluntary payment as if the payment had been involuntary. It was property passing through the hands of the collector of a public nature, belonging to said school fund. We think it comes clearly within public funds, defined by said statute.
The judgment is affirmed except as to the item of $4,139.23, and, as to that item, it is reversed and dismissed as against the stockholders. | [
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Hart, J.
(after stating the facts). Under the act of Congress regulating the shipment of live stock from one State to another, the Secretary of Agriculture is authorized to establish rules and regulations concerning the exportation and transportation of live stock from one State to another where he may have reason to believe certain contagious diseases exist.
Pursuant to this authority the United States Bureau of Animal Industry appointed an inspector with supervision over the Kansas City Stock Yards at Kansas City, Mo. His duties required him to inspect all cattle from southern points before they were unloaded and to place cattle which were clean and free from ticks in certain pens and those infected with fever ticks in other pens. Such laws are valid. K. C. S. Ry. Co. v. State, 90 Ark. 343, and Reid v. Colorado, 187 U. S. 137.
Pursuant to the authority conferred by the act of Congress, the shipment of cattle in question was inspected when it arrived at Kansas City. Burns testified that he found a Texas fever tick on one of the cows and on that account had the cattle unloaded in quarantine. On this account appellees sold the cattle at a loss. Hence this lawsuit.
Counsel contend that a verdict should have been directed in appellant’s favor under the undisputed evidence. Of course, if the undisputed evidence showed that a cattle tick was found on one of the cows and did not get on the cow en route, appellant would not be liable because the cattle were placed in quarantine pursuant to an act of Congress.
In the first place, it is contended by counsel for appellant that the undisputed evidence shows that a cattle tick was found' on one of the cows upon the arrival of the consignment at the chutes. They point to the fact that the United States inspector testified to that fact, that he is a disinterested witness, and that there is nothing in his testimony which tends to contradict him. This is true, but that does not make his testimony uncontra-dicted. The cattle were shipped from clean territory and were billed as clean cattle. Appellees testified that they had dipped the cattle strictly according to regulations before they were shipped; that they examined them carefully at the time of shipment, and that they were free from ticks. This testimony tends to contradict the testimony of Burns, the United States inspector. Mo. Pac. Rd. Co. v. Block, 142 Ark. 127.
Again it is contended by counsel for appellant that the judgment must be reversed because the undisputed evidence shows that an adult cattle tick could not have gotten on one of the cows between the dato of shipment and the date of the arrival of the cattle at Kansas City, Mo. The cattle were only three days en route.
In this contention we think they are correct. In St. Louis S. W. Ry. Co. v. Ellenwood, 123 Ark. 428, the court held that appellate courts will take notice of the unquestioned laws of nature, of mathematics and the like. In the application of that rule to the facts of the present case, the court will take notice of the unquestioned laws of science. Dr; Carey testified, without objection, that the inspector delivered to him an adult cattle tick which he had taken from one of the cows of appellees at the stock yards before he allowed the car of cattle to he unloaded. So it may be taken as established that an adult cattle tick was found on the shipment of cattle in question by the United States inspector. The expert witnesses testified that it would take two weeks for the tick to have developed. They point out that the tick only develops while on the animal. Thus it will be seen that it is a scientific fact that it takes two weeks for an adult cattle tick to be developed and that the development must take place on the animal. Therefore, the undisputed evidence shows that if an adult cattle tick was found upon the animal by the inspector, it could not have gotten on the animal en route.
Counsel for appellees insist that the laws of science sometimes change. It is sufficient answer to this to say that in this respect the law has not yet been questioned and is a scientific fact. The expert witnesses all agree that it is impossible as a scientific fact for a seed tick to develop into an adult tick in less than two weeks and that the molting process must take place on the animal. Therefore, the undisputed evidence shows that, if the tick was on the animal, it was there before the cattle were delivered to the railroad company for shipment, and the railroad company was not guilty of any negligence in the premises while the cattle were in its possession for shipment and delivery to the consignee. Liability then could only be predicated on the theory that the cattle were free from ticks when they were received for shipment. As we have already seen, the testimony of the United States inspector to the effect that he found a cattle tick on one of the cows at the unloading of the chute in Kansas City is not undisputed, but it does not follow that the railroad company would be liable on that account. While the testimony in this respect is not undisputed, still there is nothing to show that the railroad company acted in collusion with him in the premises. In the absence of such a showing, the railroad company would not be liable. The railroad company was bound by the rules and regulations promulgated by the Secretary of Agriculture, and it could not be held liable in damages for a mistake of one of the inspectors of the United States in the absence of fraud and collusion on the part of the railroad company.
There is nothing in the record tending in the remotest degree to establish this charge. Indeed the evidence shows the utmost good faith on the part of the. railroad' company.
It follows that the judgment must be reversed and the cause remanded for a new trial. | [
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Hart, J.
(after stating the facts). It is the contention of the plaintiff that the language of the will gives the Horse Shoe Bend land, consisting of twenty-seven acres, equally to the plaintiff and to the defendant, and such was the contention made by the plaintiff before the chancellor;
The chancellor was of the opinion that, if he had intended to divide this place between the plaintiff and defendant in equal parts, the testator would have used language as follows; “To my children, Willie Finch and Emmer Lee Hunter.” The chancellor was of the opinion that it was the intention of the testator to give all of his land to Emmer Lee Hunter, but to charge a certain portion of it with a life estate in favor of his widow.
It is insisted that this contention is borne out by the facts that the testator gave a specific legacy of $5 to Willie Finch, thus evincing an intention to give her this sum and no more.
On the -other hand, it is insisted that the use of the words, “I give to each of my children and Emmer Lee Hunter, what is known as the Horse Shoe Bend” place, shows that the testator intended his two daughters to share in this place equally.
The cardinal rule in construing a will is to ascertain and declare the intention of the testator. That intention is to be gathered from reading the entire will and construing it so as to give effect to every clause and provision therein if this can be done. Union & Mercantile Trust Co. v. Hudson, 143 Ark. 519, and Heiseman v. Lowenstein, 113 Ark. 404. The language used is, “I give to each of my children and Emmer Lee Hunter, what is known as the Horse Shoe Bend” place. The word ‘ ‘ and, ” it is true, is generally used in a conjunctive sense, but such is not always the case. The word “and,” as used in the clause quoted above, rather expresses the relation of addition and means “including” or “together with.” The word “and” has no synonym; but the Century Dectionary says that it is approximately expressed by “with, along with, together with, besides, also, moreover.”
We think the word is used in this sense in the clause referred to. The testator used it to indicate a connection .of what follows with what has gone before in the way of description. In other words, the testator meant to say that he gave to each of his children, together with Emmer Lee Hunter, or including Emmer Lee Hunter, the Horse Shoe Bend place. In this way only can effect be given to every clause in the will. In the construction placed upon the clause by the chancellor the words, “each of my children and,” are merely surplusage. It was not necessary to use the words, “and Emmer Lee Hunter,” but these words were probably used by the' testator to emphasize the fact that he wanted Emmer Lee Hunter to share with his other daughter in the Horse Shoe Bend place. He knew that he was going to leave the rest of this land to her after charging it with a life estate in favor of his widow, and might have feared that on this account she would be left out of a share in the Horse Shoe Bend place. For this reason he probably added the words, “and Emmer Lee Hunter,” to indicate that she was included in the words, “to each of my children.” So that the testator meant to say, I give to each of my children along with Emmer Lee Hunter what is known as the Horse Shoe Bend place.
It is not claimed by the grandsons that the word “children” in the clause just referred to includes them, and it may be said in this connection that a gift to the children of a person means one’s immediate offspring and does not extend to grandchildren. Alexander on Wills, vol. 2, § 841; Schouler on Wills, Executors and Administrators (5 ed.), vol. 1, § 533, and 40 Cyc. 1451.
Of course, this rule is merely presumptive and would yield to a contrary intention as gathered from the context. There are no words in the context, however, to indicate that the word “children” is used in other than its ordinary and natural meaning. The testator left a bequest to each of his grandchildren and specifically designated them as his grandsons.
Therefore, we are of the opinion that the chancellor erred in not decreeing a partition of the Horse Shoe Bend place between the plaintiff and the defendant, and for that error the decree will be reversed and the cause remanded for further proceedings not inconsistent with this opinion. | [
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Hart, J.
(after stating the facts). To reverse the decree, counsel for appellant invoke the rule laid down in Harris v. Graham, 86 Ark. 570, and later cases to the effect that where there has been a lack of substantial performance of a contract by a contractor, he can not establish a lien upon the property. We can not agree with counsel for appellant in their contention. The chancellor found that there had been a substantial compliance with the contract by both West and Mooney. It cannot be said that his finding of fact in this respect is against the preponderance of the evidence.
The record comprises five hundred and thirty-four pages of type-written matter, and it will therefore be impractical to set out an abstract, or even a synopsis of all the testimony. Indeed, to do so would serve no useful purpose. The testimony is in direct and irreconcilable conflict, and we deem it sufficient to say that we have given all of it careful consideration.
In the first place, it may be stated that West and Mooney both testified that after the work had been finished Mrs. Wilmot went to the house and examined the work in detail. She expressed herself to them as being satisfied with the work done by them as well as the materials used in doing it. She said that she had.been caused some dissatisfaction by her husband’s employing Mr. Hart, an architect, to look over the work, and his report; but that she had great confidence in Mr. West, and after examining the house she was satisfied that he had made the repairs in accordance with his agreement.
It may be noted here that numerous changes were made in the plans during the progress of the work. This indicates that Mrs. Wilmot was present and examined the work as it progressed. She made no complaint during all this time concerning the workmanship or the materials used. It is true that Hart, the architect, stated that the general character of the work was bad. But in this respect he is directly contradicted by the two men appointed by the chancellor to examine the work and to make a report thereon to him.
J. I). Brock and Eugene Patton were appointed by the court with the consent of the parties to make an examination of the work done by West and Mooney for Mrs. Wilmot. They were directed to ascertain the actual value of the work as per prices charged for such work at the time the 'same was done and were empowered to hear evidence of witnesses as to the same. The order provided that the parties to the suit might be present at the examination of the work. Patton and Brock examined the work and filed a detailed report to the court of the results of their examination. They reported that they had inspected and appraised the work done and the materials used in repairing the house. They further reported that where all risk is assumed by the builder, and the contractor only charges a commission for superintending or carrying on the work, ten per cent, of the cost of the labor and materials is the usual amount allowed him. West and Mooney testified that their profits were no greater than ten per cent, of the cost of the labor and the materials.
It is true that two carpenters employed by Mrs. Wii-mot testified that it was impossible to ascertain what kind of materials went into the building; but, if their testimony should be accepted as true, it would not help Mrs. Wilmot any, for it would with equal force lessen the credit which should be given to Hart’s testimony. This would leave West and Mooney testifying that they had performed the contract in accordance with their contract, and Mrs. Wilmot and her husband testifying to the contrary. Brock and Patton were appointed by the court as disinterested persons with the consent of both parties for the express purpose of examining in detail the work done and materials used in'the repair of the house and premises. Their report showed that they made a careful and detailed examination as they were ordered to do. Their report also shows that Mrs. Wilmot was indebted in the respective amounts found by the chancellor, and, as above stated, tvhen all the surrounding circumstances are considered, we do not think it can be said that the finding of the chancellor, in this respect, is against the preponderance of the evidence.
E. O. West has taken a cross-appeal, and it is earnestly insisted by his counsel that he is entitled to the amount sued for, instead of the amount’allowed him by the chancery court. He bases his contention upon the fact that the parties made a contract, and that the evidence shows that West is entitled to the amount sued for under his contract. But little need be said on this branch of the case. As we have just seen Brock and Patton, with the consent of the parties to this lawsuit, were appointed to inspect the work and make a report as to its value. Brock and Patton made a detailed report in accordance with the order appointing them, and it can not be said that their finding is against the express contract made by the parties. The parties agreed that they should ascertain the actual value of the work done by West as per prices charged for such work at the time same was done, and they are in no attitude to complain now that this was done.
Therefore the decree will be affirmed. | [
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Hart, J.
(after stating the facts). It is earnestly insisted by counsel for the plaintiffs that the evidence is not legally sufficient to support the verdict, and in this contention we think counsel are correct. Under the terms of the lease contract, the rent was to be finally paid on the first of November of each year. This provision was for the benefit of the lessors and might be waived by them. According to the testimony of the defendant, they waited on him until some time after the first of the year to pay the rent and supply account. Wade had been unable to supply himself, and,.some time after the execution of the lease contract, he made an agreement with A. D. Malone to furnish him with merchandise and supplies with which to make a crop in 1919. Malone waited for Wade to pay him his account for supplies and the amount due as rent until the 5th day of February, 1920. Malone and Harris owned the land as tenants in common. Tenants in common hold by several and distinct titles, but by unity of possession. The reason is, that none knoweth his own severalty, and therefore they all occupy promiscuously. Firemen’s Insurance Co. v. Larey, 125 Ark. 93.
Therefore, under section 6890 of Crawford & Moses ’ Digest, Malone would be the landlord of Wade, and as such landlord would have a lien upon the crop raised upon the demised premises for the value of advances made by him to Wade to make a crop during the year 1919. Malone brought suit in the chancery court to foreclose his lien for the amount of his supply account and the rent due. A decree was rendered in his favor against Wade for the balance due of $840.88. Wade made no defense to the foreclosure suit and made no effort to finish paying his supply account or the balance of the rent due for the year 1919. Having a lien for the rent and supplies, Malone had a right to apply the proceeds first to the payment of the supply account, and this left a balance of over $800 on the rent. These facts are established by the undisputed evidence and constituted a breach of the lease contract which warranted the lessors in evicting the lessee from the premises. -
It is true Wade testified that Malone led him to believe that he would carry him over, and that Scroggin had promised to pay off his indebtedness to the plaintiffs. Wade knew, however, when notice to quit was served on him on the 6th day of February, 1920, that his lessors did not intend to wait on him any longer, and it devolved on him to make arrangements to pay his rent, or to forfeit his right to longer occupy the premises. Yet, after this time, he made no effort to get into communication with Scroggin, or to carry out his contract with the plaintiffs. He did not even make any defense to the foreclosure suit. Therefore, the undisputed facts, as disclosed by the record, warranted the plaintiffs in evicting him from the premises.
Complaint is also made by the plaintiffs as to the instruction given by the court on the measure of dam ages. We do not deem it necessary to set out this instruction. Suffice it to say that the instruction complained of follows the rule laid down in McElvaney v. Smith, 76 Ark. 468. In that case the court said:
“When a landlord unlawfully evicts a tenant from the premises, the tenant is entitled to recover as damages whatever loss results to him as a direct and natural consequence of the wrongful act of the landlord. If the rental value of the place from which he is evicted is greater than the price he agreed to pay, he may recover this excess and, in addition thereto, any other loss directly caused by the eviction, such as the expense of removal to another place.”
For the error in not directing a verdict for the plaintiffs, the judgment will be reversed and .the cause remanded for a new trial. | [
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McCulloch, C. J.
The G-eneral Assembly of 1919, at the regular session, enacted a special statute creating a district in Hempstead and Nevada counties where stock is prohibited from running at large, and the statute was put into effect after adoption by a vote of the. qualified electors of the district. Appellants are citizens residing within said district and owned stock therein, and they instituted this action in the chancery court of Hempstead County to restrain the officers from enforcing the provisions 'of the statute. They contend that the statute is unconstitutional and void, and they have appealed from a decree of the chancery court dismissing their complaint.
The statute provides, in substance, that any animal found running at large within the area mentioned shall be taken np and delivered to a justice of the peace of tlie township; that said justice of the peace shall cause the animal to he appraised by three disinterested persons and shall then give notice, by posting in public places describing the animal and calling on persons claiming any interest to appear and show cause why the animal should not be condemned and sold, and that if at the expiration of the specified period no person appears to show cause against it the justice of the peace shall enter judgment condemning the animal to be sold to the highest bidder, on notice by posting and by publication in a newspaper; that the sheriff of the county or the constable may make the sale, and that said officer shall dispose of the proceeds by paying a fee of $1 to the taker-up of 'the animal, a fee of 50 cents each to the appraisers, a fee of $1 to the justice of the peace, a fee of $1 to the officer for making the sale, and also to the person entitled thereto the cost of keeping and caring for the animal up to the time of the sale at the rate of 50 cents per day, and that “the rési-due. if any, shall be paid into the county treasury to the credit of the road and bridge fund of said county. ’ ’ Another section of the statute permits the owner of the animal or any one having or claiming any interest therein “to retake the same upon payment of the fees allowed to the taker-up thereof, and for the appraisers and to the •justice of the peace as in the case of sale together with cost of keeping and earing for such animal.” There is also a provision in the statute to the effect that if no person shall bid anything for the animal offered for sale the officer in charge shall proceed to kill the animal.
It is ’ contended, in the first place, that this statute attempts to authorize the taking of property without due process of law, and for this reason it is unconstitutional and void. It is very generally held by the courts, especially in the more recent decisions, that statutes authorizing the impounding and sale of stock found running at large in violation of law are valid as police regulations. The cases on this subject are collated in 12 Corpus Juris, page 1284, and in the case note in Fall Creek Sheep Co. v. Walton (24 Idaho 760), 37 Ann. Cas. 1915 C, 1252. The question of the validity of such statutes has been put at rest by several decisions of this court. Fort Smith v. Dodson, 46 Ark. 296; Hendricks v. Block, 80 Ark. 333; Ross v. Desha Levee Board, 83 Ark. 176.
In those cases it was decided that under the police power there can be a summary seizure and sale of trespassing stock without personal service of notice on the owner and without any kind of judicial proceedings. It may be noted, however, that the statute now under consideration provides for a judicial determination of the right under the statute to condemn in a given case, though it does not provide for personal service of notice. It is not doubted that the provisions of the statute are valid so far as they relate to the seizure and sale of the property. Nor is the validity of the statute affected by the provision in regard to killing the animal taken up if no bidder appears at the sale. This is to provide for an emergency where it is demonstrated by failure of bidding that the animal is without value, and in order to dispose of it so as to prevent further depredation, and to obviate the burden of keeping the valueless animal, it is provided that it shall be killed.
One of the contentions in support of the attack on the validity of the statute is that it limits the time within Avhieh the owner may appear and show cause against the condemnation and in which he may reclaim the animal to the day specified in the original notice and does not give the right to reclaim up to the time of sale. Counsel is, we think, mistaken in his interpretation of the statute, for, according to a fair and reasonable interpretation, the framers of the statute intended to give the owner the right to reclaim his stock at anytime up to the sale, or at least that the time for reclamation was not limited to one date.
The principal ground for attack on the validity of the statute is that the provision which directs the officer who sells the animal, after paying the specified fees and expenses, to pay tlie residue over to the county treasurer to the credit- of the road and bridge fund of the county. It is contended that this constitutes a confiscation of the property, and that if the provision is invalid it vitiates the whole statute. We do not, however, agree with counsel in his interpretation of the statute and do not think tliat it should be construed as a confiscatory provision. The purpose is to give the owner the right to reclaim his property at any time up to the sale by paying the fees and expenses, and the other provision with reference to the residue of the funds constitutes merely a final disposition of the funds in the event the owner has failed to claim his property. If the terms of the statute are reasonable and give the owner a fair opportunity to reclaim his property upon the payment of accrued expenses and fees, 'then the lawmakers have the power to provide for a final disposition of the surplus funds, in the event of a sale of the property on failure of the owner to reclaim it. And it does not, under those circumstances, constitute a confiscation of the property to authorize the residue of the funds to be appropriated to public use. This is the scheme provided in our estray laws for the disposition of proceeds of sale of an estray (Crawford & Moses’ Digest, chapter 4, subdivision 2) which are, in substance, that a stray animal may be taken up and after appraisal shall be kept for a period of one year, and if not reclaimed shall become the property of the person who takes it up, and that one-half of the net appraised value of the animal shall be paid to the county treasurer as public funds. This was a part of the Revised Statutes of 1838, with only a few amendments up to tins day, and the validity of these provisions has never been challenged. On the contrary, this court has impliedly, if not expressly, sanctioned them and upheld their validity in several cases. Phelan v. Bonham, 9 Ark. 389; Davis v. Calvert, 17 Ark. 85; Smith v. Williams, 95 Ark. 587.
The only difference between the two statutes, so far as concerns the validity of -the one now under consideration, is as to the time given for reclaiming the property by the owner, and that presents the question whether or not the time given for reclamation by the owner is reasonable. Our conclusion is that it is reasonable, or at least that we should not, in the face of the legislative determination, declare it to be unreasonable. This particular statute applies to a limited territory, and there is a provision for two notices, one to be given by the justice of the peace as soon as the impounded animal is appraised and which is posted in five public places in the immediate locality where the animal is taken up. Ten days’ notice is required where the property is not over $50 in value and twenty days where it is over that value. After condemnation a notice of sale is then required, which is not only by posting in the locality but by publication in a newspaper. This notice is reasonably calculated to bring home to the owner information as to the fact that his animal has been taken up and is sufficient to satisfy the demands of justice. It is a reasonable interpretation of this statute that the owner may appear and reclaim the property itself at any time before it is sold, but the statute makes it the duty of the officer to deliver the proceeds of the sale of unreclaimed property to the county treasurer. It is intended, not as a confiscation of the property of the owner or of the funds arising from the sale, but as a disposition of the surplus funds arising Prom the sale of the unreclaimed property. This the Legislature could authorize if the provision for notice is reasonable. Suppose this statute had provided that the funds should be paid over to the county treasurer to be held for the owner for a period of six months and then if unclaimed should be finally credited to a given public fund. Can it be doubted that the statute would be valid? We think not, for the length of time within which the fund might be claimed would undoubtedly be reasonable. We are of the opinion that the provision in the present statute is not unreasonable, for it gives the owner ample opportunity to reclaim his property.
The chancery court was correct in refusing to restrain the enforcement of the statute under consideration, and the decree is therefore affirmed. | [
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John B. Robbins, Chief Judge.
Appellant Henry Silas Kil-lian was convicted by a jury of being a felon in possession of a firearm. He was sentenced as an habitual offender to fifteen years in the Arkansas Department of Correction and fined $10,000.00. Mr. Killian now appeals, arguing only that the trial court erred in denying his motions for directed verdict. We affirm.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). In determining the sufficiency of the evidence, we review the proof in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992).
Officer David Slaughter of the Fort Smith Police Department testified on behalf of the State. He stated that he was involved in the search of a house on March 26, 1996. Officer Slaughter believed that Mr. Killian and his wife lived in the house. During the search, Detective Frank Grill recovered a firearm that he had found beneath a stereo speaker. Mr. Killian was present when the search began, and Dana Marr (his girlfriend) arrived moments later. Nobody else was in the house during the search. When the gun was found, Mr. Killian told Officer Slaughter “that it needed to be hidden better or it wasn’t hidden good enough or something to that effect.” On cross-examination, Officer Slaughter acknowledged that no fingerprint testing was conducted on the firearm.
Detective Grill testified that, during the search, he found a small caliber semi-automatic handgun under a stereo speaker. The speaker was located in a bedroom that had been converted into an entertainment room with a stereo, television set, and recliners. Detective Grill indicated that Mr. Killian was the only person present when the search commenced, but did not indicate in which part of the house Mr. Killian was situated.
Dana Marr testified on behalf of Mr. Killian, and she stated that Mr. Killian is her live-in boyfriend and the father of her infant child. Ms. Marr testified that the gun recovered by the police belonged to her, and that she purchased it from Carol Ann Ball for $40.00 in November 1995. Ms. Marr explained that, at the time she bought the gun, she had kicked Mr. Killian out of the house and needed protection from prowlers. She stated that she put the gun under the speaker immediately after buying it, and that it had been there until the day of the search. Ms. Marr indicated that she owned the house that was searched, and she denied hearing Mr. Killian tell the police that he should have hidden the gun better after it was seized.
Ms. Ball testified that she is a friend of Ms. Marr. She stated that she sold a gun to Ms. Marr for $40.00 in November 1995. She identified the gun that was admitted into evidence as the same gun that she had sold to Ms. Marr.
For reversal, Mr. Kilfian challenges the sufficiency of the evidence. Specifically, he contends that there was not substantial evidence to support the jury’s finding that he was in possession of the gun at issue. Mr. Killian cites Harper v. State, 17 Ark. App. 237, 707 S.W.2d 332 (1986). In that case, the appellant had been convicted of being a felon in possession of a firearm after a gun was found in a house that was jointly occupied. We held that, when there is joint occupancy of a residence, additional factors must be proven linking the accused to the gun. See Harper v. State, supra. In the instant case, Mr. Killian lived in a house along with Ms. Marr, and he submits that there were no factors that linked him to possession of the seized pistol. He notes that the house belonged to Ms. Marr, and he asserts that the only evidence as to ownership of the gun was Ms. Marr’s testimony that she had bought it and hidden it under the speaker. Mr. Killian argues that the jury’s verdict was based on speculation and conjecture.
We find that there was an additional factor that sufficiently finked Mr. Killian to possession of the gun. The testimony of Officer Slaughter, which the jury was entitled to believe, indicated that Mr. Killian told him that the gun should have been hidden better after it had been found by the police. True, this statement could have merely been a flippant remark or only an acknowledgment that Mr. Klfian simply knew the gun was there. But the jury could also reasonably interpret the remark, as it did, and infer that Mr. Killian was admitting that the gun was under his control. Our courts have repeatedly said that the drawing of inferences is for the trier of fact. Williams v. State, 54 Ark. App. 271, 278 927 S.W.2d 812, 816 (1996). Although Ms. Marr testified at trial that the gun belonged to her, there was no evidence that she told this to the police on the day that Mr. Killian was arrested. Ms. Marr was clearly an interested witness in this case, and the jury was not obligated to give credence to her testimony. It is well settled that it is the jury’s duty to assess the credibility of the witnesses, and this court is bound by the jury’s conclusion as to a witness’s credibility. Winters v. State, 41 Ark. App. 104, 848 S.W.2d 441 (1993). Mr. Killian finked himself with the gun when he told the police that it should have been hidden better. Therefore, we affirm his conviction for felon in possession of a firearm.
Affirmed.
Bird, Rogers, Crabtree, and Meads, JJ., agree.
Roaf, J., dissents. | [
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Judith Rogers, Judge.
Appellants Austin Jennings and Lyndell Jennings, husband and wife, appeal the Columbia County Chancery Court’s denial of their petition to quiet title to land lying between forty acres that they own and an adjoining forty-acre tract owned by the appellees, Mr. and Mrs. Charles Burford. In its order denying appellants’ petition to quiet title, the chancery court determined that the boundary fine between the two forty-acre tracts had been established by acquiescence and was marked by a meandering fence that appellee Charles Burford had used to contain cattle on his land for at least twenty years. Appellants assert six allegations of error. We affirm as modified.
The two forty-acre tracts at issue are located north-south relative to each other. Appellants own the northern tract and appellees own the southern. Appellant Austin Jennings and appel-lee Charles Burford each obtained his respective tract from a common grantor, W.W. Burford. W.W. Burford was the father-in-law of appellant Austin Jennings, the father of appellant Lyndell Jennings, and the father of appellee Charles Burford. Appellant Austin Jennings purchased his forty-acre tract from W.W. Burford in June 1957. Appellee Charles Burford purchased his forty-acre tract from W.W. Burford, his father, in April 1961. Both tracts are comprised of farm land, pasture, and woodland. The dispute between the parties over the location of the boundary line between their land began in 1992 when appellee Charles Burford stopped the appellants from cutting timber on what he believed to be his land. The appellants filed their quiet tide action in August of 1992. The appellees answered and asserted that there was a boundary between the tracts by acquiescence, which was marked by a fence. A hearing was held on the appellants’ quiet title action in chancery court in May 1996.
First, appellants assert that the chancery court erred in finding that there was a boundary fine by acquiescence between the two forty-acre tracts that followed a meandering fence that appel-lee Charles Burford had used for at least twenty years to contain catde. Appellants contend that the chancery court erred in so finding because: (1) there was no evidence proving that the parties intended that the fence serve as a boundary line; (2) there was no evidence that a fence ran contiguously between the two forty-acre tracts; and (3) there was no evidence that there was a seven-year period during which the parties acquiesced in the fence as a boundary line.
The case-law principles that govern whether a boundary fine has been established by acquiescence are well settled. Whenever adjoining landowners tacitly accept a fence fine or other monument as the visible evidence of their dividing fine and thus apparendy consent to that fine, it becomes the boundary by acquiescence. Walker v. Walker, 8 Ark. App. 297, 651 S.W.2d 116 (1983). A boundary fine by acquiescence is inferred from the landowners’ conduct over many years so as to imply the existence of an agreement about the location of the boundary fine. Warren v. Collier, 262 Ark. 656, 559 S.W.2d 927 (1978); Summers v. Dietsch, 41 Ark. App. 52, 849 S.W.2d 3 (1993). The period of acquiescence need not last for a specific length of time, but it must be for “many years” or “a long period of time” sufficient to sustain the inference that there has been an agreement concerning the location of the boundary line. See Seidenstricker v. Holtzendorff, 214 Ark. 644, 217 S.W.2d 836 (1949). This period varies with the facts of each case, just as all circumstantial evidence does, unlike the seven years required to take land by adverse possession, which is a statute of limitations for commencement of an action to recover land adversely possessed. See Ark. Code Ann. 518-61-101(a) (1987). Moreover, establishment of a boundary line by acquiescence does not require adverse possession of the land by one party. See Morton v. Hall, 239 Ark. 1094, 396 S.W.2d 830 (1965). When the adjoining landowners occupy their respective premises up to the line they acquiesce in as the boundary for a long period of time, they and their grantees are precluded from claiming that the boundary thus acquiesced in is not the true boundary, although it may not be. Rabjohn v. Ashcraft, 252 Ark. 565, 480 S.W.2d 138 (1972). A boundary line may be established by acquiescence whether or not preceded by a dispute or uncertainty as to the boundary line. Id. Where a boundary line by acquiescence can be inferred from other facts presented in a particular case, a fence line, whatever its condition or location, is merely the visible means by which the acquiesced boundary line is located. See Camp v. Liberatore, 1 Ark. App. 300, 615 S.W.2d 401 (1981). The location of a boundary line is a question of fact, and we must affirm a chancery court’s location of a boundary line unless its finding is clearly against a preponderance of the evidence. Rabjohn v. Ashcraft, 252 Ark. at 571; Killian v. Hill, 32 Ark. App. 25, 795 S.W.2d 369 (1990).
Steve Lee, appellee Charles Burford’s son-in-law, testified on behalf of the appellees. Mr. Lee testified that he was familiar with the land at issue and that he lived on part of the appellees’ land. He testified further that he helped maintain a barbed-wire fence between the appellants’ property and the appellees’ property. Mr. Lee testified further that the fence was enough to keep cows from going north onto the appellants’ property. Mr. Lee testified further that this barbed-wire fence was strung from posts and trees and that the fence traversed the length of the appellees’ forty-acre tract.
Appellee Charles Burford testified that his father sold the appellants their forty-acre tract in 1957 and that his father had sold an adjoining forty-acre tract to him in 1961. Mr. Burford testified that sometime in the 1960s he and appellant Austin Jennings had had a conversation about cutting timber near the fence line between their forty-acre tracts. Mr. Burford characterized this conversation as follows: “When he decided to cut his timber he wanted to know, he asked me did I know where the boundary line was between me and him? I said as far as I’m concerned, it’s the fence line. That’s what my dad always said. I said you cut on the north side, I’ll cut on the south side of the fence.” Mr. Bur-ford testified further that appellant Jennings did not cut any trees on the south side of the fence and that he (Burford) did not cut any trees on the north side of the fence. Mr. Burford testified further that since 1951, when he and his father purchased cattle, he had maintained the fence that he regarded as the boundary fine and that the fence had always been able to hold cattle on his side of the fence. He testified that he had kept the fence in repair to hold catde and that he had bushhogged a right of way approximately twenty feet wide. Mr. Burford testified further that, regardless of the results of the surveys that had been made to determine the boundaries of the two forty-acre tracts, it was his position that the dividing fine between the two tracts was the fence that he had maintained since 1951 in order to keep cattle on the southern tract. This testimony by appellee Charles Burford and his son-in-law, Steve Lee, was contradicted by testimony given by the appellants.
The standards governing our review of a chancery court decision are well established. Although we try chancery cases de novo on the record, we do not reverse unless we determine that the chancery court’s findings of fact were clearly erroneous. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996). In reviewing a chancery court’s findings of fact, we give due deference to the chancellor’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Holaday v. Fraker, 323 Ark. at 525; Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130 (1993). We conclude that the chancery court’s finding that the meandering fence was a boundary fine by acquiescence was not clearly erroneous.
Second, appellants argue that the chancery court erred in relying upon the testimony of the appellees’ witness, Jimmy Askew, concerning the survey that he conducted on the disputed property in order to determine the true boundary line between the parties’ respective tracts. At the outset, we note that there is little, if any, connection between the accuracy of Mr. Askew’s survey and the chancery court’s finding of a boundary line by acquiescence. The court’s finding was based on the testimony of appellee Charles Burford and that of his son-in-law, Steve Lee. Burford himself stated that, regardless of the results of the surveys, the boundary line between the two tracts was the fence he had maintained to keep cattle on the southern tract. However, in their brief, appellees explain the significance of Askew’s survey to the chancery court’s finding of a boundary fine by acquiescence by noting that the court used the Askew survey as a reference point for concluding the fence fine was the acquiesced boundary between the two tracts of land. Also, the chancery court’s decree does note that the boundary fine is the meandering fence “reflected by the Askew survey.” Therefore, we will address the appellants’ allegation of error concerning the Askew survey.
In essence, Mr. Askew testified that he had been a land surveyor for approximately twenty-five years, that he was qualified as a registered surveyor, and that he had conducted approximately 2,000 surveys. With regard to the survey that he had done for appellee Burford, Mr. Askew testified that, based upon previous surveys he had done in the area, he knew the locations of the southeast and southwest corners of the Southeast Quarter of Section Three. Mr. Askew testified further that he determined the boundary fines of only the Southeast Quarter of Section Three and testified further that his determination of these boundaries “checks extraordinarily well with the records.” The location of a boundary fine is a question of fact, and we affirm a chancery court’s finding of the location of a boundary fine unless the court’s finding is clearly against a preponderance of the evidence. Rabjohn v. Ashcraft, 252 Ark. at 571. The credibility and weight of Askew’s testimony was a matter for the chancery court to determine. See Killian v. Hill, 32 Ark. App. at 28. Given this testimony by Mr. Askew, we can not say that the chancery court erred in finding his testimony credible because, in cases where there are inconsistent theories as to the location of a boundary fine, a survey establishing a boundary fine may be based on artificial monuments and these monuments may be established by parol evidence. See Garren v. Kelley, 249 Ark. 906, 462 S.W.2d 861 (1971); Rice v. Whiting, 248 Ark. 592, 452 S.W.2d 842 (1970).
Next, appellants argue that the chancery court erred in denying their hearsay objection that was made during the direct examination of appellee Charles Burford. Appellants’ counsel objected on the basis of hearsay when Burford replied, “Yes, sir,” after having been asked if he had any discussions with his father concerning the location of the marker that was to divide the forty-acre tracts. The chancery court did not err in denying this objection because appellee Burford’s reply to the question was not hearsay. Hearsay is a statement made by an out-of-court declarant that is repeated in court by a witness and is offered into evidence to prove the truth of the matter asserted in the out-of-court statement. See Gautney v. Rapley, 2 Ark. App. 116, 617 S.W.2d 377 (1981); Ark. R. Evid. 801(c). Hearsay offered by an in-court witness is inadmissible except as provided by law or by the Rules of Evidence. Easterling v. Weedman, 54 Ark. App. 22, 922 S.W.2d 735 (1996); Ark. R. Evid. 802. Appellee Burford’s reply of “Yes, sir,” is not hearsay because it is not a repetition of a statement made out of court but, instead, is Burford’s own statement that he had had a discussion with his father. A witness who states that he or she had conversations or discussions with others, but does not repeat what someone else said, has not violated the rule against hearsay. See Shamlin v. Shuffield, 302 Ark. 164, 787 S.W.2d 687 (1990).
Finally, appellants contend that the chancery court’s decree is deficient in that it does not locate the boundary line between the two forty-acre tracts by specific description. Appellants correctly note that chancery court decrees that establish boundary lines must locate them by specific description. See Harris v. Robertson, 306 Ark. 258, 813 S.W.2d 252 (1991). The chancery court’s decree describes the boundary fine between the parties’ land as the meandering fence “reflected by the Askew survey.” In their brief, appellees seem to concede that this description of the boundary fine is not sufficiently specific.
We agree that the description of the boundary fine in the chancery court’s decree was not sufficiently specific. How ever, this lack of specificity does not constitute reversible error but was, instead, a mere omission or oversight. Pursuant to Arkansas Rule of Civil Procedure 60(a), we grant leave to the chancery court to amend the decree by adding a more specific description of the boundary fine between the parties’ land.
For the reasons set forth above, we affirm as modified the Columbia County Chancery Court’s decree denying the appellants’ petition to quiet title and establishing a boundary line by acquiescence between the parties’ land.
Affirmed as modified.
Bird and Crabtree, JJ., agree.
In a recent supreme court decision, Petrus v. Nature Conservancy, 330 Ark. 722, 957 S.W.2d 688 (1997), the court found that the decree, which did not identify the boundary lines of the disputed property but ordered a future survey to establish the boundary lines, lacked finality.. Thus, the supreme court dismissed the appeal. In our case, however, the decree described the boundary line between the parties’ land as the meandering fence “reflected by the Askew survey.” There is no unresolved issue that must be determined. We have only granted leave to the chancery court to amend the decree and provide the legal description of the fence line reflected by the Askew survey. | [
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Olly Neal, Judge.
Carroll Electric Cooperative Corporation (Carroll) filed an application with the Arkansas Public Service Commission (Commission) for a certificate of public convenience and necessity (certificate) to construct, operate, and maintain an electric transmission line and facilities in Arkansas. The Commission found that Carroll’s proposed transmission line and facilities were needed to assure an adequate and more reliable supply of electric energy and that Carroll’s proposed route for its transmission line was reasonable and appropriate and granted Carroll’s application. Appellants, property owners in Boone and Newton Counties, opposed Carroll’s proposed location for the transmission fine, although they did not controvert the need for improved transmission facilities. On appeal, they contend that the Commission failed to pursue its regular authority as required by Ark. Code Ann. § 23-2-423 (Supp. 1995), in finding that appellants were provided adequate notice of the Commission proceedings and that the Commission acted arbitrarily and capriciously in approving the route proposed by Carroll for its transmission line and facilities.
This court’s review of the Commission’s orders is limited and governed by Ark. Code Ann. § 23-2-423 (c), which provides that the finding of the Commission as to facts, if supported by substantial evidence, shall be conclusive and that the court’s 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 rights under the laws or Constitution of the United States or of the State of Arkansas. See Bryant v. Arkansas Pub. Serv. Comm’n, 57 Ark. App. 73, 941 S.W.2d 452 (1997). To set aside the Commission’s action as arbitrary and capricious, the appellant must prove that the action was a willful and unreasoning action, made without consideration and with a disregard of the facts or circumstances of the case. AT&T Communications of the S.W., Inc. v. Arkansas Pub. Serv. Comm’n, 40 Ark. App. 126, 843 S.W.2d 855 (1992). In order to establish an absence of substantial evidence, the aggrieved party must show that the proof before the Commission was so nearly undisputed that fair-minded persons could not reach the same conclusion. Id. If an order of the Commission is supported by substantial evidence and it is neither unjust, arbitrary, unreasonable, unlawful, nor discriminatory, then this court must affirm. Id.
On October 11, 1995, Carroll filed an application with the Commission, requesting a certificate of public convenience and necessity pursuant to Ark. Code Ann. § 23-3-201 (1987), to construct, operate, and maintain a 69-kilovolt high-capacity transmission line from a substation to be constructed in the southwest portion of Harrison, Arkansas, to its existing substation in Dogpatch, Arkansas, and into Jasper, Arkansas. A hearing on Carroll’s application was scheduled for February 20, 1996. On or about January 18, 1996, Carroll sent notice of the filing of its application to the affected landowners. Appellants, some of the affected landowners, filed a petition to intervene on February 12, 1996, and moved for a continuance of the hearing. The administrative law judge (ALJ) granted appellants’ intervention petition but denied their motion for a continuance.
Order No. 4, entered by the ALJ following the conclusion of the February 20th hearing, granted Carroll’s request for the certificate. The ALJ found that Carroll’s proposed transmission line and facilities were needed to assure an adequate and more reliable supply of electric energy and that Carroll’s proposed route for the transmission line was just and reasonable. The ALJ also found that the testimony and other evidence at the February 20, 1996, hearing indicated that Carroll Electric complied with the property owner notification requirements of the Commission Rules of Practice and Procedure. In Order No. 5, the Commission affirmed Order No. 4 without modification, and in No. Order 6, the Commission denied appellants’ petition for rehearing and injunction without comment. On October 10, 1996, appellants filed their notice of appeal of Orders No. 4, 5, and 6.
The first issue appellants raise concerns the timeliness of the notice that Carroll gave them of the fifing of its original application for a certificate of public convenience and necessity. Carroll filed its application, seeking approval of its proposed transmission fine and facilities, on October 11, 1995. Carroll then waited until January 18, 1996, approximately thirty days before the scheduled February 20th hearing date, to notify the affected landowners of its application. Appellants argue that they were denied due process because they were not afforded sufficient time to prepare for the hearing. A fundamental requirement of due process in matters of public utility regulation is a full and fair hearing, including the right to submit evidence and testimony, to examine witnesses, and an opportunity to present evidence or testimony in rebuttal to adverse positions. Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm’n, 35 Ark. App. 47, 813 S.W.2d 263 (1991).
Arkansas Code Annotated § 23-3-201 (a) requires a utility to obtain a certificate of public convenience and necessity before any new construction or operation of any equipment or facilities for supplying a public service, or extension thereof, is undertaken. The Commission, in issuing or denying certificates of public convenience, acts legislatively and effectuates the legislative intent through the promulgation of rules and regulations. See Department of Pub. Util. v. McConnell, 198 Ark. 502, 130 S.W.2d 9 (1939). In enforcing such rules and regulations, the Commission acts in an administrative capacity. Id. Rule 7.04 of the Commission Rules of Practice and Procedure addresses certificates for electric utilities. Rule 3.03(a) and (b) provide for the notice that must be given when applying for a certificate:
(a) The Commission shall fix the time and place of all hearings and notice of the place, day and hour of a hearing shall be served on all parties to the proceeding at least thirty (30) calendar days before the time set therefor, unless the Commission shall find that public necessity requires the hearing to be held at an earlier date. (See also Rule 1.04(b).)
(b) Notice of the filing of a formal application by a public utility shall be given by a public utility in the following manner, unless otherwise provided by the Commission.
(2) Application for Certificates of Public Convenience and Necessity.
The applicant for a Certificate of Public Convenience and Necessity shall notify each owner of record (or the person or firm to whom property tax statements have been mailed in the most recent year) of lands which the applicant proposes in its application to traverse. Such notice shall be given by first-class mail, properly addressed with charges prepaid and shall include the following information:
(A) The date the application was filed, the docket number assigned thereto; and, if known, the place, day, and hour of the hearing on such application; if hearing date is unknown at the time of filing for a Certificate of Public Convenience and Necessity, the name and address of the Commission’s Secretary where such information may be obtained in the future;
(B) A brief description of the facilities to be constructed and a description of the owner’s lands to be traversed.
It is undisputed that the first notice of Carroll’s application appellants received was the January 18th notice sent by Carroll that advised them of the time and place of the hearing set on its application. The Commission and Carroll argue that Rule 3.03(b)(2) does not specify when the notice must be given and therefore the January 18th notice that Carroll sent to appellants complied with the Commission rules. Appellants contend that Carroll’s failure to give them the notice required by Rule 3.03(b)(2) at the time its application was filed deprived them of adequate due process and that the Commission erred in holding that Carroll complied with the property owner notification requirements of the Commission Rules of Practice and Procedure.
An agency’s interpretation of its own rules is not binding on the courts if the interpretation is plainly erroneous or inconsistent. See General Tel. Co. of the Southwest v. Arkansas Pub. Serv. Comm’n, 23 Ark. App. 73, 744 S.W.2d 392 (1988). See also Boone County v. Apex of Ark., 288 Ark. 152, 702 S.W.2d 795 (1986). Here, the Commission attempts to persuade this court that Rule 3.03(b)(2) allows the petitioner to wait to send notice until after the hearing date is set as long as the notice is given within a “reasonable time.” We find this construction inconsistent with Rule 3.03(a) and the intent of the notice requirements. Although the wording of Rule 3.03(b)(2)(A) is somewhat unclear, the most reasonable construction is that this rule requires the petitioner to give notice when the petition is filed and, if a hearing date is not set at that time, the petitioner must include in the notice “the name and address of the Commission’s Secretary where such information may be obtained in the future. ...” Rule 3.03(a) specifically requires the Commission to give the parties notice of the hearing. To have become parties, the affected landowners would have to have received notice of the filing of the application. It is nonsensical to interpret the rule to allow the petitioner to wait to give notice until after the hearing is set, especially under the facts of this case where the hearing was not set until more than three months after the application was filed. Even if we agreed that Rule 3.03(b)(2) allows notice within a reasonable time, Carroll waited an additional nine days after the hearing was scheduled before it notified the landowners. We cannot agree that waiting almost 100 days to give notice when the hearing is set for thirty days later is a “reasonable time.”
Nevertheless, we are precluded from reversing on this issue because of the doctrine of invited error. This doctrine provides that an appellant may not complain of an alleged erroneous action of the trial court if he has consented to or acquiesced in that action. See Briscoe v. Shoppers News, Inc., 10 Ark. App. 395, 664 S.W.2d 886 (1984). See also Peek v. Arkansas Dept. of Human Servs., 304 Ark. 172, 800 S.W.2d 428 (1990). In Order No. 3, which denied appellants’ motion for continuance, the ALJ stated:
If, at the conclusion of the hearing, the record has not been fully and adequately developed for the [appellants’] purposes, and this appears to be a result of a lack of timely notice afforded to one or more of the [appellants], then those [appellants] may renew their motion for a continuance, and the advisability and necessity of a second hearing for the purpose of receiving additional evidence will be considered.
Appellants did not renew their motion for continuance at the February 20 hearing. Instead, they made a proposal to the ALJ at the conclusion of the hearing, requesting that they be allowed ten days to decide whether they wanted to submit testimony of an expert witness and, if so, to depose the witness within twenty days thereafter. The ALJ granted appellants’ proposal over the objection of Carroll. The ALJ also stated that he would treat the record as closed if appellants chose not to submit expert testimony at the end of the ten-day period. No objection was made by appellants at that time. Although the ALJ was later notified by appellants’ attorney that appellants would not present expert testimony and to note appellants’ objections to his denial of the continuance for the record, his objections were not made until after appellants’ proposal was granted. Appellants may not now complain that they were denied a continuance when they did not renew their motion at the hearing but instead requested that their proposal be granted. See Security Pac. Hous. Servs. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993).
The remainder of appellants’ arguments on appeal concern their contention that the Commission acted arbritrarily and capriciously in granting Carroll a certificate to locate a transmission line and facilities along its proposed route. Specifically, appellants contend that, because the Commission was not presented with any cost studies substantiating the reasonableness of the proposed right-of-way; no meaningful analysis of alternative right-of-ways was performed; environmental considerations were not taken into account; and a meaningful analysis of the use of the existing right-of-way was not considered, it had insufficient evidence before it to determine whether Carroll’s proposed right-of-way was appropriate and reasonable. Appellants point out that statutes which relate to the power of eminent domain should be strictly construed in favor of the landowner, see Columbia County Rural Dev. Auth. v. Hudgens, 283 Ark. 415, 678 S.W.2d 324 (1984); Loyd v. Southwest Ark. Util. Corp., 264 Ark. 818, 580 S.W.2d 935 (1979), and no more property of a private individual, and no greater interest therein, can be condemned and set apart for public use than is absolutely necessary. See Selle v. City of Fayetteville, 207 Ark. 966, 184 S.W.2d 58 (1944).
Arkansas Code Annotated § 18-15-503(a)(l) (1987) provides:
Any corporation organized under the laws of this state for the purpose of generating, transmitting, and supplying electricity for public use may construct, operate, and maintain such lines of wire, cables, poles, etc., necessary for the transmission of electricity along and over the public highways, and the streets of the cities and towns of this state or across or under the waters, and over any lands or public works belonging to the state, and on and over the lands of private individuals. . . .
Broad discretion is vested in those to whom the power of eminent domain is delegated. State Highway Comm’n v. Saline County, 205 Ark. 860, 171 S.W.2d 60 (1943). The question of whether the condemnation of a right-of-way for a transmission line is necessary must be left largely to the discretion of the condemnor, and the exercise of that discretion will not be disturbed unless it clearly appears that the discretion has been abused and the action is arbitrary and causing unnecessary damage to the property owners. Patterson Orchard Co. v. Southwest Ark. Util. Corp., 179 Ark. 1029, 18 S.W.2d 1028 (1929). In Gray v. Ouachita Creek Watershed Dist., 234 Ark. 181, 351 S.W.2d 142 (1961), the supreme court explained:
The State, by conferring on the District the power of eminent domain, necessarily left largely to the discretion of the District the location and area of the land to be taken. And one seeking to show that the taking has been arbitrary or excessive shoulders a heavy burden of proof in the attempt to persuade the Court to overrule the District’s judgment. Buford v. Upton, 232 Ark. 456, 338 S.W.2d 929; Woolard v. State Hwy. Comm., 220 Ark. 731, 249 S.W.2d 564; State Game & Fish Comm. v. Hornaday, 219 Ark. 184, 242 S.W.2d 342; State Hwy. Comm. v. Saline County, 205 Ark. 860, 171 S.W.2d 60; and Patterson Orchard Co. v. S.W. Ark. Util. Corp., 179 Ark. 1029, 18 S.W.2d 1028.
In State Highway Comm. v. Saline County, supra, the State Highway Commission was condemning a right-of-way through certain lands, and we said of the Highway Commission:
Since it had this power it also had discretion to determine the route and the location of the right-of-way. “A broad discretion is necessarily vested in those to whom the power of eminent domain is delegated, in determining what property is necessary for the public purpose, with respect to the particular route, line, or location of the proposed work or improvement; and the general rule is that the courts will not disturb their action in the absence of fraud, bad faith, or gross abuse of discretion. The landowner may not object merely because some other location might have been made or some other property obtained which would have been suitable for the purpose.” 18 Am.Jur. 735. In 29 Corpus Juris Secundum (Eminent Domain § 91), page 886, it is said: “Under a delegation of the power of eminent domain the grantee of the power, in the absence of legislative restriction, may determine the location and route of the improvement and of the land to be taken for it, and such determination will not be interfered with by the courts if it is made in good faith and is not capricious or wantonly injurious, or in some respects beyond the privilege conferred by the charter or statute.” Justice Butler, speaking for the court in the case of Patterson Orchard Co. v. Southwest Arkansas Utilities Corporation, 179 Ark. 1029, 18 S.W.2d 1028, 65 A.L.R. 1446, said: “While the Legislature has said that a right of way must be necessary for the exercise of the rights of the corporation taking it, the question of whether or not there was a necessity must necessarily be left largely to the discretion of the corporation itself, and, unless it clearly appears that such discretion has been abused and its action arbitrary and to the unnecessary damage of property owners, the exercise of that discretion will not be disturbed."
Gray v. Ouachita Creek Watershed Dist., 234 Ark. at 183-85, 351 S.W.2d at 144.
Although Arkansas courts have not had occasion to discuss the appropriate scope of inquiry that the Commission should consider in granting a certificate of public convenience for the construction of an electrical transmission fine and facilities, the issue has been addressed by the Commission. In In re Arkansas Power and Light Co., 118 P.U.R. 4th 156 (1990), the Commission held that the basic test or guiding principle that should govern the selection of a route in a transmission-line case is whether the route proposed will best serve the public interest and result in the least amount of private harm. The Commission explained that, if the route proposed by the utility is not unreasonable and appears to have been selected after consideration of certain factors, the governmental regulatory agency should confine itself only to ordering minor deviations in the route. The Commission then fisted the following factors that should be considered in determining whether a proposed route is reasonable: cost of the facility, health and safety, engineering and technical concerns, ecological/environmental disruptions, disruption to or interference with existing manmade property uses, disruption to or interference with planned manmade property uses, and aesthetic displeasure. These same factors were restated by the Commission in In re Southwestern Electric Power Co., Docket No. 94-003-U, 155 P.U.R.4th 316 (1994):
It is not the function of a public utility regulatory agency to substitute or superimpose its judgment for that of a utility as to the location of proposed new transmission facilities. If the route selected by the utility is not unreasonable and appears to have been chosen after consideration of the seven factors previously enumerated, and any other factors which may be relevant in that specific case, then in the absence of special or very unusual circumstances the governmental regulatory body reviewing the application for a certificate of public convenience and necessity should confine itself to only ordering minor deviations in the route.
Id.
In support of its application, Carroll introduced the testimony of Emmett Green, the engineer principally in charge of designing Carroll’s proposed route and facilities. Green explained that Carroll’s present power source is served by a 33-kilovolt substation in Bellefonte, Arkansas, which was built by Arkansas Power & Light (AP&L) many years ago. He stated that, as the loads have grown in the Harrison area, AP&L has discontinued the use of 33 kilovolt, changing to 161 kilovolt and others, and stated that Carroll’s load in Jasper and Dogpatch areas has grown to the point where the transformer that AP&L was permitting them to use is fully loaded. He also stated that Carroll’s present fine that runs to Jasper was built in the 1940s and has become overloaded; the fácil- ities have deteriorated; and the line is inadequate for the loads that have developed in Jasper. Green testified that Carroll must obtain another power source with more capacity to serve the Newton County area; that it began looking in the Harrison area for a place to install a new 161- to 69-kilovolt substation; and that AP&L had a location that permitted Carroll to have a short line from Jasper to Harrison. Green testified that, because the government would not negotiate an alternative route, Carroll would continue to use its existing easement through the Buffalo National Forest and Park as part of its proposed route and overbuild its fines through the area. This easement will consist of a sixty-foot right-of-way through the national park and river and an eighty-nine to ninety-foot right-of-way through the forest. He explained that a 100-foot right-of-way was being proposed for the remainder of the fine, because it provides a little more margin for safety and takes into account the height of the trees that might be on the outside of the clearance and whether they would strike a conductor if they fell.
Evidence was also presented that Carroll did consider other alternate routes for its proposed fine. Green testified that three of the alternate routes Carroll considered were not acceptable because they would have required a new right-of-way through the Buffalo National Park and Forest, which the government was unwilling to negotiate. In explaining Carroll’s decision not to build along its existing route, Green testified that Carroll would have to build a 161- to 69-kilovolt substation near its metering point to be able to overbuild its existing fine; that there would be difficulty in finding a location in that area because the area is congested around Harrison and along Highway 62; that it is a hazardous and very slow process to overbuild or build next to an existing fine that is operating at 33,000 volts; and that it is more expensive to keep an existing fine in operation and work around it. Carroll .estimated its costs for the project to be $2,510,000. Green testified that the cost to overbuild or build along an energized fine would be higher and that the labor cost alone will be at least 50% more to overbuild. He also explained that the number of corners in the existing fine are very expensive additions to fines, ranging from $10,000 to 25,000 each, and would significantly increase the cost of using the existing route.
Paul Mixon, an engineer with Staff s electric section, testified that the purpose of his testimony was to make his recommendations regarding Carroll’s application and that his evaluation considered the appropriateness of the routing of the transmission line and facilities, the reasonableness of the associated costs, and the necessity of the proposed fine and facilities. He testified that Carroll has experienced substantial load growth in the Jasper area over the past several years, that service reliability is becoming more of a problem, and that the existing 33-kilovolt facilities are very old and do not lend themselves to economical replacement. He testified that there was a need for the proposed transmission line and facilities and that the $2,510,000 estimated cost is reasonable in Staffs opinion. He also testified that he traveled along Carroll’s proposed transmission fine route as closely as possible and toured the surrounding areas to consider alternative routing for the proposed fine and facilities. In doing so, he stated that he considered the impact on landowners in the area, the location of the facilities with respect to existing residential developments, existing public facilities, existing utility facilities, and the current use of the land involved and found that the proposed route takes into consideration property fines and existing roadways and was finalized with the objective of minimizing both the cost of construction and disturbance to the area. He summarized that, in Staffs analysis, the proposed transmission line and facilities represent a reasonable, efficient solution to the power supply problems which exist in the area, that there is a need for the proposed facilities, and that the proposed facilities are in the public interest.
Appellants point out that neither Carroll nor Staff presented any evidence that they took environmental considerations into account. Green testified in response to questioning about Crooked Creek that he was not aware of any special consideration given to it any more than other creeks or waterways through the area and that Carroll takes aesthetics into consideration and tries to accommodate the landowner when it sites a right-of-way. Mixon testified that he did consider the aesthetic displeasure that most people associated with a 69-kilovolt line when he considered the proposed route and whether the route chosen was an appropriate route for the particular line and facilities. He stated that he also factored ecological and environmental disruption into his analysis and he considered the health and safety of the general public.
From the evidence presented, we cannot say that the Commission’s finding that Carroll’s proposed route for the transmission fine and facilities was reasonable is not supported by substantial evidence or that the Commission failed to regularly pursue its authority in granting Carroll a certificate of necessity and convenience over its proposed route. Although appellants argue that the Commission was not presented with any meaningful analysis of alternative rights of way, the testimony of Carroll witness Green clearly rebuts this argument. Green not only testified in support of Carroll’s proposed route, but he also explained why the other routes were not feasible and presented extensive testimony concerning Carroll’s existing route. His testimony was corroborated by Staff witness Mixon. Appellants also argue that neither witness Green nor Mixon took environmental considerations into account; however, Staff witness Mixon testified that he traversed the entire route and factored ecological and environmental disruption into his analysis. Obviously, we agree that the placement of any transmission line in a natural area will to some extent adversely affect the area. Nevertheless, after reviewing the evidence before the Commission, we cannot say that the Commission’s decision is not supported by substantial evidence or that it has failed to regularly pursue its authority. Accordingly, we must affirm.
Affirmed.
Pittman, Arey, Jennings, and Stroud, JJ., agree.
Griffen, J., dissents. | [
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D. Franklin Arey, III, Judge.
This is a divorce case. Sandra Bishop appeals from the Jefferson County Chancery Court’s decree finding that a certificate of deposit account amounting to approximately $37,000 did not belong to the parties because it had been given to their son, and from the denial of her motion to set aside the parties’ property settlement agreement. We find no error and affirm.
After almost thirty years of marriage, the parties separated in January 1995. Later that year the appellee, James Bishop, filed for divorce. The parties’ only child, J.R. “Ricky” Bishop, Jr., was an adult at the time of the divorce. Appellee worked for International Paper Company for the entire length of the marriage and acquired rights to a retirement pension there. Appellant did not work during the marriage. The parties owned, among other assets, a home on which there was no debt and several bank accounts.
One of these accounts was a certificate of deposit account held in the names of Ricky Bishop, and appellee, under Ricky’s social security number. This account was set up when Ricky was fourteen and was funded by the parties. Even though Ricky paid taxes on the earnings from this account, it is undisputed that the parties reimbursed him. The sole withdrawal from the CD account occurred in 1987 when the parties purchased a van. Appellee was the only person who monitored the activity in this account. The bank statements from this account came to the parties’ residence until appellee changed the address to a post office box at a time when the parties were having marital difficulties. Appellee later changed the address back to that of the parties’ residence, but changed it to Ricky’s address when it became apparent to appellee that divorce was imminent.
At trial, appellant contended that the certificate of deposit account belonged to the parties and that she was entitled to have her half of this account charged off against appellee’s portion of the marital assets. Appellant testified that the parties had simply placed the money into an account in their son’s name to lessen their tax burden, and that appellee kept control of this account throughout their marriage. She contended that appellee decided to give this money to Ricky because the parties were separated and because appellee, who was living with Ricky at the time, wanted to conceal this asset from her.
Appellee responded that these funds were no longer marital property because a valid inter vivos gift had been completed to Ricky. Appellee testified that on January 5, 1995, Ricky cashed in the CD account in his presence and deposited the money into a new account at Simmons Bank in Ricky’s name. He stated that his (appellee’s) name is on the account only as the designated beneficiary in the event of Ricky’s death. Ricky admitted at trial that he had never accessed the CD account until January 1995. He also testified that, although appellee is fisted as a beneficiary, he is not an owner of the new account.
At trial, the parties agreed upon every issue except the ownership of the CD account and entered into a stipulated property settlement agreement, which was read into the record. At the conclusion of the reading of the stipulation, appellant’s attorney asked appellant if there was anything that they had not covered. Appellant affirmed that she had no further questions, agreed to the stipulation, and wanted the court to approve it. Appellee likewise stated that he understood the stipulation and agreed to it.
Before the divorce decree was entered, appellant filed a motion to set aside the property settlement agreement on the ground that she had been misinformed as to the retirement benefits to which she was entitled. At the hearing on the motion to set aside the agreement, appellant testified that her attorney had erroneously informed her that, if appellee did not survive, appellant would not receive anything from his pension plan. Appellant contended that she had opted to accept the house instead of any interest in appellee’s retirement plan in reliance upon her attorney’s incorrect advice. Appellant’s father corroborated appellant’s testimony.
Appellant’s former attorney testified that, as a package deal, appellant had agreed to give up any interest in appellee’s retirement account in order to receive the marital residence. He stated that he had informed appellant that her interest in appellee’s retirement account would terminate if Mr. Bishop died first and a joint and survivor benefit had not been designated. He stated that he told her that if a joint and survivor election was made, there would be a reduction in the monthly benefit, but he was not sure how appellee’s death would affect it. He stated that they had gone over this subject for quite some time and in more than one discussion, and that Mrs. Bishop had made her decision in consultation with several members of her family. He stated that he had been uncertain about the effect appellee’s death would have on appellant’s benefits, and that this was taken into consideration when she decided to keep the house in lieu of an interest in appellee’s retirement plan.
At the conclusion of the hearing, the chancellor stated that appellant had offered no credible proof that she received any inaccurate information from her former attorney. He found that the agreement was fair and equitable and held that he would enforce it. The chancellor then entered the divorce decree in which he found that the CD account did not belong to the parties and entered an order denying appellant’s motion to set aside the property settlement agreement.
In her first point on appeal, appellant argues that the evidence does not support the chancellor’s finding that appellee made an inter vivos gift of the CD account to Ricky. The requirements for an effective inter vivos gift are: an actual delivery of the subject matter of the gift to the donee with a clear intent to make an immediate, unconditional, and final gift beyond recall, accompanied by an unconditional release by the donor of all future dominion and control over the property so delivered. Chalmers v. Chalmers, 327 Ark. 141, 937 S.W.2d 171 (1997). These elements must be established by clear and convincing proof in order for an inter vivos gift to be sustained. Jamison v. Estate of Goodlett, 56 Ark. App. 71, 938 S.W.2d 865 (1997). Clear and convincing evidence is evidence by a credible witness whose memory of the facts about which he testifies is distinct, whose narration of the details is exact and in due order, and whose testimony is so direct, weighty, and convincing as to enable the fact-finder to come to a clear conviction, without hesitance, of the truth of the facts related. First Nat’l Bank v. Rush, 30 Ark. App. 272, 785 S.W.2d 474 (1990). This court’s test on review is not whether it is convinced that there was clear and convincing evidence to support the trial judge’s finding but whether it can say that the finding is clearly erroneous. Id. A requirement that the evidence be clear and convincing does not mean that the evidence must be uncontradicted. O’Flarity v. O’Flarity, 42 Ark. App. 5, 852 S.W.2d 150 (1993). Even where the burden of proof is by clear and convincing evidence, this court defers to the superior position of the chancellor to evaluate the evidence. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996).
The gravamen of delivery is a showing of an act or acts on the part of the putative donor displaying an intention or purpose to part with dominion over the object of the gift and to confer it on some other person. Chalmers v. Chalmers, supra. Intention to give, by itself, is not sufficient; there must be a delivery to consummate the gift and to pass title. Id. The decisive factor is whether the putative donor has the power to reclaim the property. Id. Accord Swaffar v. Swaffar, 327 Ark. 235, 938 S.W.2d 552 (1997); Gibson v. Boling, 274 Ark. 53, 622 S.W.2d 180 (1981); Hudson v. Bradley, 176 Ark. 853, 4 S.W.2d 534 (1928). Although the rule with respect to delivery of gifts is less strictly applied to transactions between members of a family, delivery must occur for a gift to be effective. Chalmers v. Chalmers, supra.
There can be no doubt that a certificate of deposit may be the subject of a gift inter vivos. We have stated that a promissory note, or any chose in action or other evidence of debt, may be the subject of a gift inter vivos and that a certificate of deposit falls into this category. Boling v. Gibson, 266 Ark. 310, 584 S.W.2d 14 (1979). Likewise, there can be no doubt that the requirements of intent and delivery apply to an inter vivos gift of a certificate of deposit. We have also stated that in order to constitute a valid gift of a certificate of deposit, there must be an intent by the donor that title pass immediately, and a delivery of the certificate. Id.
Irvin v. Jones, 310 Ark. 114, 118, 832 S.W.2d 827, 828-29 (1992).
We cannot say that the chancellor’s finding that the parties made a gift of the CD account to Ricky is clearly erroneous. The account was established in Ricky’s name, using his social security number. Ricky paid taxes on the account’s earnings, which further indicates his parents’ intent to give the funds to him. There is evidence that the delivery of this account was completed in January 1995 when Ricky cashed it. We cannot say that the chancellor erred in refusing to charge off an amount equal to half of this account against appellee’s property.
In her second point on appeal, appellant argues that the chancellor erred in refusing to set aside the property settlement agreement due to her unilateral mistake. Citing Mountain Home School District No. 9 v. T.M.J. Builders, Inc., 313 Ark. 661, 858 S.W.2d 74 (1993), appellant claims that she is entided to rescission or reformation of the agreement due to her unilateral mistake. The conditions essential for obtaining rescission due to a unilateral mistake were set forth in that case as follows: (1) the mistake must be of so great a consequence that to enforce the contract as actually made would be unconscionable; (2) the matter as to which the mistake was made must relate to a material feature of the contract; (3) the mistake must have occurred notwithstanding the exercise of reasonable care by the party making the mistake; and (4) the party seeking it must be able to get relief by way of rescission without serious prejudice to the other party, except for the loss of his bargain.
The rule applied in T.M.J. Builders originates from State ex rel. Arkansas State Highway Commission v. Ottinger, 232 Ark. 35, 334 S.W.2d 694 (1960). In both cases a contractor discovered a mistake in its bid prior to formal acceptance of the bid. In Ottin-ger, our supreme court stressed the contractor’s attempt to withdraw its bid “before any award of the contract and within a matter of hours after the bids were opened. . . .” Ottinger, 232 Ark. at 37, 334 S.W.2d at 695. No other bids had been rejected. Id. In both cases, the other party did not recognize the withdrawal, and formally accepted the bid. In Ottinger, the chancellor found that the contractor had proven his entidement to rescission, and the supreme court affirmed; in T.M.J. Builders, the chancellor found that the contractor had not proven entitlement to rescission, and the supreme court affirmed.
The case before us differs from Ottinger and T.M.J. Builders. It does not involve an attempt to withdraw a bid prior to its acceptance. Instead, appellant’s attempt to set aside the settlement agreement arose after appellant and appellee entered into a binding contract. “[W]hen a stipulation dictated into open court covers all the rights and liabilities of the parties in a total and complete agreement, it will have the full force and effect of a binding agreement, and it will not be modifiable.” Kunz v. Jarnigan, 25 Ark. App. 221, 224, 756 S.W.2d 913, 915 (1988) (citing Linehan v. Linehan, 8 Ark. App. 177, 649 S.W.2d 837 (1983)). Thus, we find Ottinger and T.M.J. Builders distinguishable, and not applicable to the facts at hand.
A contractual stipulation can only be withdrawn on grounds for nullifying a contract, i.e., fraud or misrepresentation. See Linehan, supra. The generally accepted rule is that rescission cannot be enforced or ordered on account of unilateral mistake unless some special ground for the interference of a court of equity is shown. There can be no rescission on account of the mistake of one party only, where the other party was not guilty of any fraud, concealment, undue influence, or bad faith, and did not induce or encourage the mistake, and will not derive any unconscionable advantage from the enforcement of the contract. Lowell Perkins Agency, Inc. v. Jacobs, 250 Ark. 952, 469 S.W.2d 89 (1971). The fact that appellant entered into an agreement which later appeared improvident to her is no ground for relief. Helms v. Helms, 317 Ark. 143, 875 S.W.2d 849 (1994).
Chancery cases are reviewed de novo on appeal, and the appellate court will not disturb the chancellor’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130 (1993). Because the question of the preponderance of the evidence turns largely on the credibility of the witnesses, the appellate court will defer to the chancellor’s superior opportunity to assess credibility. Id.
The chancellor heard the testimony and found appellant’s former attorney to be more credible than appellant .and her father. The chancellor’s findings are not clearly erroneous in light of the testimony and proof summarized above. We therefore cannot say that the chancellor erred in refusing to set aside the settlement agreement due to appellant’s unilateral mistake.
Affirmed.
Jennings and Stroud, JJ., agree. | [
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Per Curiam.
Appellant Christopher Ward’s motion to reconsider our denial of his motion to consolidate the record is denied because it was unnecessary for him to seek permission from this court to consider the entire record in his appeal.
This case involves a motion by Appellee Linda Mae Ward McCord to set aside the property settlement incorporated in the parties’ 1986 divorce decree. This court had on March 8, 1995, dismissed Ward’s prior appeal of the trial court’s denial of his motion for summary judgment, CA94-1362. In his motion related to his current appeal, CA97-1122, Ward has moved to consolidate the record because the chancellor referred to the proceedings contained within the record lodged with this court for CA94-1362.
Arkansas Supreme Court and Court of Appeals Rule 4-2(a)(5) expressly states in pertinent part: “On a second or subsequent appeal, the abstract shall include a condensation of all pertinent portions of the record filed on any prior appeal.” Accordingly, the appellant need not have moved for leave of this court to include in his current abstract those portions of the record filed for CA94-1362. See Marshall v. State, 264 Ark. 34-D, 603 S.W.2d 393 (1979) (Per Curiam Order decided under prior rule).
It is so ordered. | [
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Judith Rogers, Judge.
Appellant Betty Morse appeals from a chancery court decree awarding her ex-husband, appellee Jerry Morse, $46,834 in insurance proceeds. She also appeals from the dismissal of her counterclaim for abuse of process. We find no error and affirm.
Appellant and appellee were divorced on August 23, 1995. At the time of their divorce, they owned two parcels of real property in Crawford County. Under the terms of a property settle ment agreement, appellant deeded one of the parcels, a seventy-two-acre tract, to appellee. The agreement also provided, under the section entitled “PERSONAL PROPERTY,” as follows:
3. To equalize the division of property, Husband shall pay to the Wife to [sic] total sum and amount of $20,000.00. He shall have five (5) years from the date of this agreement to satisfy this debt. Any portion of the $20,000.00 not paid prior to June 28, 2000, shall be immediately due and payable on that date.
Appellant and appellee’s marital residence was situated on the seventy-two acres deeded to appellee. Several weeks before appellant and appellee separated, they had procured a homeowner’s insurance policy covering the residence and its contents. The policy, issued by Farm Bureau Mutual Insurance Company, listed appellant and appellee as named insureds and was effective for a period beginning June 1, 1995, and ending June 1, 1996. After the divorce, appellee lived in the home and was still living there when, on March 28, 1996, the home was destroyed by fire. Farm Bureau tendered a check in the amount of $46,834 made out to appellant and appellee. However, appellant refused to endorse the check. As a result, appellee filed a petition in Crawford County Chancery Court asking that Farm Bureau be required to inter-plead the $46,834 into the court registry; that he be declared the owner of the insurance proceeds; and that appellant be held in contempt for her “refusal to comply with the terms of the Property Settlement Agreement and Decree of this Court, as entered of record last year.” Appellant answered and filed a counterclaim for abuse of process. Further, she asked that a constructive trust be placed on the insurance proceeds to the extent of the $20,000 owed her under the property settlement agreement. Later, by amended counterclaim, she alleged that she was entitled to half of the insurance proceeds and to immediate payment of the $20,000.
On September 18, 1996, Farm Bureau placed $46,834 into the court registry. Thereafter, a hearing was held, and the chancellor found that the insurance money belonged to appellee since the proceeds were for damage caused to property that appellant had quitclaimed to appellee. The chancellor directed the court clerk to disburse $26,834 to appeEee, leaving $20,000 in the court registry. The $20,000 would be disbursed upon a showing that appellee was using the money to rebuild his residence. The chancellor also granted appellant a lien on the seventy-two acres that would remain in effect until the $20,000 debt was satisfied. Additionally, during the course of the hearing, the chancellor dismissed appellant’s abuse of process counterclaim.
Appellant’s first argument on appeal is that the chancellor erred in not awarding her half of the insurance proceeds. In deciding appeals from chancery courts, we review the evidence de novo and reverse only if the chancellor’s findings are clearly erroneous. Roberts v. Feltman, 55 Ark. App. 142, 932 S.W.2d 781 (1996).
Appellant bases her argument upon the contention that a contract of insurance is a personal contract and not a contract running with the property. See National Bedding and Furniture Indus., Inc. v. Clark, 252 Ark. 780, 481 S.W.2d 690 (1972); Whitley v. Irwin, 250 Ark. 543, 465 S.W.2d 906 (1971). Her statement of the law is correct. However, insurance proceeds are payable to the person insured only if that person has an insurable interest both at the time of making the contract and at the time of the loss. National Bedding and Furniture Indus., Inc. v. Clark, supra. Arkansas Code Annotated § 23-79-104(a) (Repl. 1992) provides that a contract of insurance on property is only enforceable for the benefit of one who has an insurable interest in the things insured “at the time of the effectuation of the insurance and at the time of the loss.” The statute goes on to define insurable interest as “any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.” Ark. Code Ann. § 23-79-104(b) (Repl. 1992).
There is no doubt that appellant had an insurable interest in the property at the time the insurance went into effect. At that point, she and her husband owned the house and were living in it. The question is whether she had an insurable interest in the house on March 28, 1996, when it burned. Under the statute, it is imperative that appellant show an insurable interest not only at the time the insurance went into effect, but at the time the loss occurred. Appellant argues that she had an insurable interest at the time the loss occurred because the destruction of the house diminished her ability to collect the $20,000 appellee owed her under the property settlement agreement. However, the property settlement agreement reveals no connection between the seventy-two acres deeded to appellee and the $20,000 owed to appellant. The agreement does not recite that the real property is security for the $20,000 debt. Further, appellant admitted in her testimony that she had no security for the $20,000 debt. As a result, she is in the position of an ordinary contract creditor. It is generally recognized that a simple contract creditor has no insurable interest in the property of his debtor. 3 Couch on Insurance 3d § 42:23 at 42-31 (1996); 4 Appleman, Insurance Law and Practice § 2138 at 57 (1969). Additionally, the term “insurable interest” means an “actual, lawful, and substantial” economic interest in the property. Ark. Code Ann. § 23-79-104(b) (Repl. 1992). The possibility that appellee might have used the home to pay the $20,000 debt is too speculative to give appellant an insurable interest in the house at the time of its destruction.
This case is similar to the situation we recently addressed in Marion v. Town and Country Mutual Insurance Co., 59 Ark. App. 120, 952 S.W.2d 681 (1997). In Marion, appellant’s property was purchased at a foreclosure sale. Appellant filed an appeal from the foreclosure proceedings and obtained an order staying the judgment pending appeal. Shortly thereafter, her property was destroyed by fire. We affirmed the trial court’s ruling that appellant had no insurable interest in the property at the time of the fire, saying that, even though appellant still had a possessory interest in the property, the delivery of the commissioner’s deed to a buyer had the effect of terminating her insurable interest in the property. Likewise, in this case, appellant deeded the prop erty to appellee and, under the terms of the property settlement agreement, “relinquished any and all right, claim or interest she might have in and to said property. ...” Further, the property was not pledged as security for any debt, nor did appellant have a possessory interest in the property. Under these circumstances, appellant had no insurable interest in her former home at the time it was destroyed.
Appellant’s second argument is that the chancellor erred in failing to require appellee to pay the $20,000 owed under the property settlement agreement from the proceeds of the insurance policy. Appellant cites no authority for her argument on this issue. Failure to cite convincing legal authority for a point on appeal will result in affirmance of that point. Pender v. Pender, 57 Ark. App. 305, 945 S.W.2d 395 (1997). In any event, the agreement recites that appellee has until June 28, 2000, to pay the debt. Any action to recover the $20,000 before that time would be prematurely brought. See Pearce v. Hollis Constr. Co., 212 Ark. 434, 206 S.W.2d 15 (1947); Winn v. Collins, 207 Ark. 946, 183 S.W.2d 593 (1944).
Finally, appellant argues that the chancellor erred in dismissing her abuse of process claim. In her second amended counterclaim, appellant attempted to set forth a cause of action for abuse of process in the following manner:
That the Defendant has fully complied with all orders of this Court, wheresoever and whatsoever, including Quitclaiming the appropriate property to the Plaintiff. Thus, the action by the Plaintiff in suing the Defendant is an abuse of process, and the Defendant is entitled to damages in the sum of FIFTY THOUSAND AND 00/100 DOLLARS ($50,000.00), attorney’s fees, and costs.
The elements of a claim for abuse of process are: (1) a legal procedure set in motion in proper form, even with probable cause, and even with ultimate success, but, (2) perverted to accomplish an ulterior purpose for which it was not designed, and (3) a willful act in the use of process not proper in the regular conduct of the proceeding. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). Showing that a vexatious lawsuit was filed is not enough by itself. There must be a specific abusive use of “process.” McNair v. McNair, 316 Ark. 299, 870 S.W.2d 756 (1994); Union Nat’l Bank v. Kutait, 312 Ark. 14, 846 S.W.2d 652 (1993). Arkansas requires that a pleading that sets forth a claim for relief contain a statement in ordinary and concise language of facts showing that the pleader is entitled to relief. Ark. R. Civ. P. 8(a)(1). Failure to state facts giving rise to the essential elements of a claim should result in dismissal. Perrodin v. Rooker, 322 Ark. 117, 908 S.W.2d 85 (1995). Appellant’s counterclaim did not recite facts sufficient to sustain her claim. In particular, she did not recite facts which related to the elements necessary to prove abuse of process. Even though it is unclear whether the chancellor based his dismissal on this line of reasoning, a chancellor’s decision will be affirmed if correct for any reason. Synergy Gas Corp. v. H.M. Orsburn & Son, Inc., 15 Ark. App. 128, 689 S.W.2d 594 (1985).
Affirmed.
Stroud and Neal, JJ., agree.
The chancellor actually placed appellant in a better position than she had been in under the original property settlement agreement. We are aware of the rule that, once the parties’ agreement is incorporated into the divorce decree, it is not generally subject to modification. Kennedy v. Kennedy, 53 Ark. App. 22, 918 S.W.2d 197 (1996). However, since appellee filed no cross-appeal on this issue, we need not discuss it further. Appellate courts are precluded from awarding affirmative relief to the appellee in the absence of a cross-appeal. Barnhart v. City of Fayetteville, 321 Ark. 197, 900 S.W.2d 539 (1995). | [
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D. Franklin Arey, III, Judge.
After a bench trial in the Juvenile Division of the Washington County Chancery Court, the appellant, James David McGill, was found to be delinquent for committing criminal mischief in the first degree. He was sentenced to thirty days in the juvenile detention center with twenty-eight days suspended; he was also placed on supervised probation for twelve months, required to make restitution, and ordered to perform 100 hours of public service, among other terms and conditions. On appeal, appellant argues that the trial court erred by denying his motion for directed verdict because the evidence was not sufficient to prove he purposely destroyed or damaged any property. We affirm as modified and remand the case.
Appellant asked his high school classmate, Malanda Jo Gardner, if he could sit in her car to smoke a cigarette and listen to the radio. She gave him her keys. He did not ask Gardner if he could drive the car; likewise, she did not tell him he could drive the car.
Another classmate, Carl Shoffitt, was present when Gardner gave appellant her keys. Shoffitt saw appellant walk to the passenger side of the car and throw the keys over the top of the car to another student named Gene Duggin. Duggin got in the car, put the keys in the ignition, and turned the key over so he could use the cigarette fighter; appellant got in the passenger seat. Shoffitt testified that as he was about to go inside, he heard the vehicle start and turned around to look. He saw Duggin driving Gardner’s car, with appellant in the passenger seat. He next saw the car thirty minutes later on the parking lot, after it had been wrecked.
Gardner testified that her car was in excellent condition before appellant borrowed the keys. The car was returned to her in a wrecked condition. Gardner’s mother testified that the car had been “totaled,” and that the frame was bent or warped. Gardner’s mother further testified that Gardner’s father “had $2,500 in the car.”
Duggin and appellant gave conflicting statements. Duggin claimed that appellant drove the car and was “fishtailing” it around corners. Duggin stated that as appellant fishtailed around one corner, the back end of the car went to the right and swung up against a fence. The bumper was damaged, and the two students tried to put it back on. They brought the car back to the school after the accident.
Appellant gave two statements. In his first statement, appellant said nothing about leaving the school in the car. In his second statement, he admitted that he and Duggin took the car out of the parking lot, with Duggin driving. He claimed that Duggin lost control of the car, slid to the right, and hit a fence post. They tried to fix the damaged bumper and returned the car to the parking lot.
The State originally sought appellant’s adjudication of delinquency based upon acts of criminal mischief in the first degree and theft of property. At trial, the court granted appellant’s motion for directed verdict on the theft of property charge. The court denied the motion as to the remaining charge, and found appellant guilty of juvenile delinquency by reason of criminal mischief in the first degree.
Appellant contests the trial court’s denial of his motion for directed verdict. He argues that the proof is not sufficient to establish that he purposely destroyed or damaged Gardner’s car.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. D.D. v. State, 40 Ark. App. 75, 842 S.W.2d 62 (1992). In reviewing the sufficiency of the evidence in a delinquency case, we apply the same standard of review as in criminal cases. C.H. v. State, 51 Ark. App. 153, 912 S.W.2d 942 (1995). When the sufficiency of the evidence is challenged on appeal from a criminal conviction, we consider only the proof that tends to support the finding of guilt, and we view the evidence in the light most favorable to the State. Id.; D.D., 40 Ark. App. at 76, 842 S.W.2d at 63. We will affirm if the conviction is supported by substantial evidence. C.H., 51 Ark. App. at 154, 912 S.W.2d at 943. Substantial evidence is that which is of sufficient force and character to compel a conclusion one way or the other without resorting to speculation or conjecture. Id.
A person commits the offense of criminal mischief in the first degree if he purposely and without legal justification destroys or causes damage to any property of another. Ark. Code Ann. § 5-38-203(a)(1) (Repl. 1997). A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. Ark. Code Ann. § 5-2-202(1). “It is not enough to show merely that the property was damaged or destroyed, for one essential element of this crime is that the damage was willfully caused and not accidental.” Bray v. State, 12 Ark. App. 53, 670 S.W.2d 822, 823 (1984).
Appellant’s delinquency adjudication based upon criminal mischief in the first degree is not supported by substantial evidence. Viewed in the light most favorable to the State, we cannot say that the evidence indicates that appellant purposely damaged the car. Although Duggin’s statement that appellant fishtailed the car indicates appellant’s intent to surrender some degree of control over the car, this evidence is not sufficient to show that appellant willfully intended to have a wreck and damage the car.
The State argues, in the alternative, that we should modify the delinquency adjudication by finding that it is based on an act that would constitute criminal mischief in the second degree. In his reply brief, appellant responds that he did not recklessly destroy or damage the car; rather, he simply borrowed Gardner’s keys.
A person commits criminal mischief in the second degree if he recklessly destroys or damages any property of another. Ark. Code Ann. § 5-38-204(a)(l). A person acts recklessly with respect to attendant circumstances or a result of his conduct when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or that the result will occur. The risk must be of the nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. Ark. Code Ann. § 5-2-202(3).
We agree that the evidence supports the conclusion that appellant acted recklessly. Duggin’s statement indicates that appellant fishtailed the car as he drove around a corner, so that he lost control of the car and struck a fence. By driving in this fashion, appellant consciously disregarded the risk that he could lose control of the car and have a wreck, resulting in the destruction of or damage to someone else’s car. Thus, appellant’s conscious disregard of the risk of a wreck would support a finding of delinquency for committing criminal mischief in the second degree.
Appellant argues that he never admitted to driving the car, and that his statements are corroborated by the testimony of Shoffitt. But, under our standard of review, we consider only the proof that tends to support the finding of appellant’s guilt, and we view the evidence in the light most favorable to the State. See C.H., supra. Gardner gave appellant the keys to the car, Duggin stated that appellant drove the car, and appellant gave two inconsistent statements when confronted about the matter. There is substantial evidence to support the trial court’s finding of appellant’s delinquency.
Therefore, we modify the basis for the trial court’s finding of delinquency to criminal mischief in the second degree. See Ark. Code Ann. § 16-67-325 (a) (1987).
Where the evidence presented is insufficient to sustain a conviction for a certain crime, but where there is sufficient evidence to sustain a conviction for a lesser included offense of that crime, this court may “reduce the punishment to the maximum for the lesser offense, reduce it to the minimum for the lesser offense, fix it. . . at some intermediate point, remand the case to the trial court for the assessment of the penalty, or grant a new trial either absolutely or conditionally.”
Tigue v. State, 319 Ark. 147, 152-53, 889 S.W.2d 760, 762 (1994)(citing Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986)). Criminal mischief in the second degree is a lesser included offense of criminal mischief in the first degree. Cf. McElhanon v. State, 329 Ark. 261, 948 S.W.2d 89 (1997) (articulating the factors to consider in finding a lesser-included offense). Second-degree criminal mischief is established by proof of the same elements as first-degree criminal mischief; the crimes are of the same generic class; and the distinction between the two offenses is based upon grades of intent or degrees of culpability. Compare § 5-38-203(a)(l) with § 5-38-204(a)(l).
While we modify the underlying basis for finding appellant delinquent to criminal mischief in the second degree, we note that the trial court’s punishment options did not depend upon the degree or classification of the underlying charge. See Ark. Code Ann. § 9-27-330 (Repl. 1993). Thus, unlike the situation typified by Tigue, modifying the basis for the delinquency charge to criminal mischief in the second degree leaves us with little or no guidance for fixing appellant’s punishment. For this reason, we remand this case to the trial court for assessment of the penalty. See Ark. Code Ann. § 16-67-325(a); Tigue, supra. We announce no opinion on the suitability of appellant’s current punishment.
Affirmed as modified and remanded for further proceedings not inconsistent with this opinion.
Robbins, C.J., and Rogers and Crabtree, JJ., agree.
Neal and Roaf, JJ., dissent.
We disagree with Judge Neal; even without Duggin’s statement, the evidence tends to connect appellant with the commission of the crime. Gardner testified that she gave her keys to appellant, not to appellant and Duggin jointly. Further, appellant gave inconsistent statements to the police. False statements made to the police by an accused may constitute corroborating evidence. See Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). | [
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Per Curiam.
Appellants filed their motion on January 8, 1998, seeking leave to file a belated brief. They caused the record to be lodged with the court on November 21, 1997, but contend that, because they did not receive a copy of a “scheduling order” from the court, they did not know that their brief was due December 31, 1997. Appellants request thirty additional days within which to file their brief.
Appellants’ motion is granted, and their brief should be filed not later than January 30, 1998. However, counsel for appellants are referred to Rule 4-4 of the Arkansas Rules of the Supreme Court that very clearly requires an appellant to file an appellant’s brief within forty days of the date the record is lodged. We assume appellants’ reference to “scheduling order” is to the notice that our clerk sends out as a matter of courtesy that sets out the calendar date on which the fortieth day falls. It is the appellants’ responsibility, not our clerk’s, to keep up with the date on which the brief is due to be filed. | [
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Olly Neal, Judge.
The Office of Child Support Enforcement has brought this appeal from an order of the Lawrence County Chancery Court that registered and modified a Florida child-support order. For reversal of the chancellor’s order, appellant contends that the chancellor committed error in modifying the Florida order of support, and in fading to grant its motion for a new trial. We agree with appellant that, under the Uniform Interstate Family Support Act (UIFSA), Ark. Code Ann. §§ 9-17-101 through 9-17-905 (Repl. 1993), the chancellor erred in modifying the Florida support order, and reverse and remand this matter to the trial court.
Linda Cook obtained a divorce by default from appellee John Cook on April 3, 1996, in Florida’s Seminole County Circuit Court. She received custody of the couple’s two minor children. The divorce decree obligated appellee to pay $203.25 per week in child support to Ms. Cook. On August 22, 1996, appellant filed an action under UIFSA to register the Florida order in Lawrence County Chancery Court and to obtain judgment against appellee for child-support arrearages. In his response, appellee alleged that he had not been properly served with notice of the Florida divorce proceedings and asserted that the child-support obligation of $203.25 per week for two minor children was “not remotely based upon [appellee’s] ability to pay support and amounts to a grossly unrealistic support order. . . .” Fie requested that the child-support arrearage be held unenforceable, and asked that the Lawrence County chancellor reduce his child-support obligation in accordance with his take-home pay.
At the hearing, appellant presented evidence that, based upon the Florida support order, appellee owed Ms. Cook $3,252 in child support. Appellee testified that, although he had signed some papers at the sheriffs office in December 1995, the only document he had received was a summons and that he had not received copies of the divorce complaint or the decree. Appellee stated that he had not been able to afford an attorney to represent him in the Florida divorce and admitted that he had known that a lawsuit had been filed against him. Appellee also introduced into evidence his income tax return for 1995 that listed his adjusted gross income as $2,898. He testified that, at present, his take-home pay is $250 per week.
At the conclusion of the hearing, counsel for appellant argued that the chancellor should not modify the Florida decree. The chancellor responded in the following manner:
Well, let me put it this way. I’ve heard the testimony, and I’ve looked at the tax return, and I’ve looked at the judgment that was entered in the divorce decree, and regardless of whether Florida wants to accept the modification or not, if they want it collected in the State of Arkansas, they will have to accept the modification. . . .
The chancellor also stated that, based upon appellee’s present take-home pay, appellee should be required to pay $68 a week in child support and indicated that he would grant judgment for the arrearage based only upon this amount.
In the order registering the Florida decree, the chancellor made the following findings and conclusions:
2. The Court finds that the foreign judgment, Linda Weir Cook vs. John Raymond Cook, in the Circuit Court of Seminole County, State of Florida, No. 95-3316-DR 01 A, entered April 3, 1996, is hereby registered with this Court for enforcement purposes pursuant to UIFSA, and is hereby given “full-faith-and-credit” pursuant to the Constitution of the United States and the State of Arkansas. That the aforementioned foreign judgment is enforceable as if it were issued by this Court.
3. That the [appellee] has accrued child support arrearage in the amount of $2,400.00 as of OCTOBER 11, 1996, for which Plaintiff is hereby granted Judgment. . . .
4. That the [appellee’s] current child support obligation shall be $68.00 per week, with an additional 10% of [appellee’s] net income per week going toward accrued arrearage, to begin at the [appellee’s] next regularly scheduled child support payment due date following this hearing. Deviation from the chart is supported by evidence presented to the Court and so noted on the record pursuant to Ark. Code Ann. § 9-12-312.
We agree with appellant that the chancellor erred in modifying the Florida support order. In 1993, the legislature enacted Act 468 of 1993, which repealed the Revised Uniform Reciprocal Enforcement of Support Act (RURESA) and adopted UIFSA in its place. See Jefferson Co. Child Support Enforcement Unit v. Hollands, 327 Ark. 456, 939 S.W.2d 302 (1997); Office of Child Support Enforcement v. Troxel, 326 Ark. 524, 931 S.W.2d 784 (1996). Arkansas Code Annotated § 9-17-603(c) (Repl. 1993) provides:
“Except as otherwise provided in Article 6, a tribunal of this state shall recognize and enforce, but may not modify, a registered order if the issuing tribunal had jurisdiction.”
The following limitations are placed upon modification of child-support orders issued in other states:
(a) After a child support order issued in another state has been registered in this state, the responding tribunal of this state may modify that order only if, after notice and hearing, it finds that:
(1) the following requirements are met:
(1) the child, the individual obligee, and the obligor do not reside in the issuing state;
(ii) a' petitioner who is a nonresident of this state seeks modification; and
(iii) the respondent is subject to the personal jurisdiction of the tribunal of this state; or
(2) an individual party or the child is subject to the personal jurisdiction of the tribunal and all of the individual parties have filed a written consent in the issuing tribunal providing that a tribunal of this state may modify the support order and assume continuing, exclusive jurisdiction over the order.
(b) Modification of a registered child support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a tribunal of this state and the order may be enforced and satisfied in the same manner.
(c) A tribunal of this state may not modify any aspect of a child support order that may not be modified under the law of the issuing state.
Ark. Code Ann. § 9-17-611 (Repl. 1993).
Clearly, appellee satisfied none of the requirements with respect to the limitations placed upon the modification of child-support orders issued in other states. The mother and child remain Florida residents, and they have not consented to the jurisdiction of the Lawrence County Chancery Court.
Appellee contends that, as provided in Ark. Code Ann. § 9-17-607(a)(5), he had a defense under the law of this state to the remedy sought because the Florida order required him to pay “more child support per week than he had income per week. ...” Appellee has, however, provided us with no authority holding that, even though he failed to appeal from the Florida order, he can now assert that his child-support obligation was more than he could pay per week. We note the lack of correlation between appellee’s weekly income and his weekly child-support obligation. Nevertheless, the reduction of appellee’s weekly child-support obligation requires application to the issuing tribunal ■— Florida’s Seminole County Circuit Court. In the Lawrence County order, the chancellor held that the Florida divorce decree was entitled to full faith and credit, and appellee has not filed a cross-appeal from this finding. Therefore, there is no real question presented on appeal as to whether the Florida court had personal jurisdiction over appellee.
We are, therefore, compelled to hold that the chancellor erred in modifying the Florida support order. Appellee did not establish a basis for contesting the registration and enforcement of the Florida decree and did not prove that either of the circumstances permitting modification were present. Accordingly, the order of the chancellor modifying the Florida decree is reversed, and this matter is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
Rogers and Str.oud, JJ., agree. | [
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John F. Stroud, Jr., Judge.
Billy Leon Graham was employed by Turnage Employment Group, a temporary employment agency, and reported to a job site for a roofing job on June 13, 1995, at approximately 5:00 a.m. At 9:45 a.m., when the accident occurred, he was unrolling insulation and moving backwards on top of a building. He fell through an open part of the roof and landed on a concrete floor thirty feet below, breaking his wrist and injuring his back, spleen, and liver. At the hospital emergency room, a urine specimen was taken for drug testing. Laboratory reports revealed the presence of marijuana metabolites.
The administrative law judge awarded benefits to Mr. Graham after finding that he had overcome the presumption of Arkansas Code Annotated section 11-9-102(5)(B)(iv) (Repl. 1996) that his accident was substantially occasioned by the presence of illegal drugs. The Workers’ Compensation Commission reversed the award of benefits in a split decision. Mr. Graham now appeals, contending that 1) there was no substantial evidence to invoke the presumption, and the Commission abused its discretion by invoking the presumption; and 2) the Commission had no substantial basis to deny relief to appellant, and it abused its discretion by disbelieving his testimony and ignoring other evidence of record. The issues are identical to those raised in Brown v. Alabama Electric Co., 60 Ark. App. 138, 959 S.W.2d 753 (1998), which we also decide today. We affirm, addressing the issues as appellant presents them.
I. There was an absence of substantial evidence to invoke the presumption of Ark. Code Ann. § ii-9-t03(b)(iv), and the Commission abused its discretion by invoking the presumption.
A prima facie presumption existed under our prior workers’ compensation law that an injury did not result from intoxication of the injured employee. Ark. Code Ann. § 11-9-707(4) (1987). Act 796 of 1993 changed that presumption: Arkansas Code Annotated § ll-9-102(5)(B)(iv) (Repl. 1996) now reads in pertinent part:
(B) “Compensable injury” does not include:
íjí í{í íjí
(iv)(a) Injury where the accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders.
(b) The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders.
(c) Every employee is deemed by his performance of services to have impliedly consented to reasonable and responsible testing by properly trained medical or law enforcement personnel for the presence of any of the aforementioned substances in the employee’s body.
(d) An employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the alcohol, illegal drugs, or prescription drugs utilized in contravention of the physician’s orders did not substantially occasion the injury or accident.
Ark. Code Ann. § 11-9-102(5)(B)(iv) (Repl. 1996).
The Commission referred to the statute above and wrote in its decision, “In the present claim, the evidence shows that marijuana was present in the Claimant at the time of the injury. Therefore, we begin with the assumption that the Claimant’s injury was substantially occasion [sic] by the drug.” Appellant presents the threshold issue of whether there was substantial evidence upon which the Commission could base the presumption that the injury was substantially occasioned by marijuana.
Evidence presented at the hearing included testimony of appellant and of Dr. Henry F. Simmons, Jr., a toxicologist and medical doctor who reviewed the laboratory testing report and testified by deposition. Appellant testified that he had smoked marijuana as a teenager and on an occasion seventeen days before the accident, but had not smoked between then and his accident. In cross-examination, he was questioned about statements in his deposition testimony, which had been recorded a month before the hearing; he acknowledged that he had responded both that he did not use illegal drugs and that he had smoked marijuana on May 27. He explained that his affirmative answers about “occasional use” were meant to refer to use of alcohol, not marijuana, and that he had been on pain killers when an insurance representative came to his home ten days after the accident to record his statement.
Dr. Henry Simmons testified that marijuana metabolites are the breakdown products that arise from the use of THC, tetra-hydro-cannabinol, which is the principal psychoactive ingredient in marijuana. He stated that the presence of marijuana metabolites in appellant’s urine was consistent with appellant’s either being impaired or not being impaired on the date the specimen was taken. Dr. Simmons stated his opinion, based upon laboratory testing and appellant’s statement that he had not used marijuana since seventeen days before his accident, that appellant would not have been acutely impaired by marijuana on the date of the accident.
Appellant contends that the urine testing did not meet the statutory requirements for “reasonable and responsible testing” by “properly trained medical or law enforcement personnel” as provided in Arkansas Code Annotated § ll-9-102(5)(B)(iv)(c). Appellant also contends that the presence of marijuana metabolites in his urine was not evidence of impairment due to the presence of marijuana and that, therefore, the presumption that the injury or accident was substantially occasioned by the use of illegal drugs did not arise. See Ark. Code Ann. § ll-9-102(5)(B)(iv)(b).
As we said today in Brown v. Alabama Electric Co., Arkansas Code Annotated section ll-9-102(5)(B)(iv)(b) (Repl. 1996) does not require that the Commission promulgate drug-testing procedures or specify particular types of tests to be used as a precondition to the intoxication presumption. The Arkansas General Assembly could have required testing that would show a certain level of illegal drugs, as they have required to invoke the presumption in D.W.I. cases, but they have not made such a requirement. The Commission has broad discretion with reference to admission of evidence, and its decision will not be reversed absent a showing of abuse of its discretion. We find no abuse of discretion in the Commission’s considering the report on urine testing as evidence of the presence of drugs under Arkansas Code Annotated section 11-9-102(5)(B)(iv) (Repl. 1996). Neither do we find that there was an absence of substantial evidence for the Commission to invoke the presumption that appellant’s accident was substantially occasioned by the use of marijuana.
II. The Commission had no substantial basis to deny relief to appellant, and the Commission abused its discretion when it disbelieved his testimony and ignored other evidence of record.
When a claim is denied because a claimant fails to show entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires that we affirm if a substantial basis for the denial of relief is displayed by the Commission’s opinion. Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987). It is well established that the credibility of witnesses and the weight to be given 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). Furthermore, the Commission may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).
In denying appellant’s claim, the Commission wrote as follows:
The claimant offered no credible evidence to refute the presumption and he gave contradictory and inconsistent testimony regarding his marijuana use. Therefore, after giving the claimant’s testimony the weight that it is entitled to receive, and based upon the testimony of Dr. Simmons, we find that the claimant has failed to rebut by a preponderance of the evidence the presumption that his injury was substantially occasioned by the use of illegal drugs.
Appellant takes issue with the Commission’s statement that he offered no credible evidence to refute the presumption that his accident was substantially occasioned by the use of marijuana.
Appellant complains that the Commission’s treatment of testimony by his expert, Dr. Simmons, was highly selective and unfair. He notes that the Commission quoted the testimony about results of the drug test and mechanics of the accident being consistent with impairment, but that it did not mention the testimony about results also being consistent with no impairment and about the inability of any urine test to reveal when marijuana had been used or whether it had affected a person’s capacity to func tion. Appellant also complains that the Commission ignored the fact that his medical records never mentioned intoxication or the presence of THC. Finally, he complains that the Commission greatly exaggerated by characterizing his testimony as “replete with contradictions and inconsistencies,” when he testified that any contradictions were due to his pain medication and his confusion about the questioning. He points out that the Commission reversed the decision of the administrative law judge, who gave credence to his testimony.
We reiterate, as we have many times before, that when reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and uphold those findings if they are supported by substantial evidence. Roberson v. Waste Management, 58 Ark. App. 11, 944 S.W.2d 858 (1997). The issue is not whether this court might have reached a different result from that reached by the Commission or whether the evidence would have supported a contrary finding; if reasonable minds could reach the result in the Commission’s decision, we must affirm. Id. Moreover, this court reviews only the findings of the Commission and ignores those of the administrative law judge. Crawford v. Pace, 55 Ark. App. 60, 929 S.W.2d 727 (1996).
Here, the Commission based its decision on the evidence it found credible and of greater weight. We cannot conclude that the Commission’s decision failed to display a substantial basis for the denial of the claim.
Affirmed.
Bird, J., agrees.
Arey, Crabtree, and Roaf, JJ., concur.
Griffen, J., dissents. | [
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John B. Robbins, Chief Judge.
Appellant Tom Anderson appeals the Sebastian County Chancery Court’s order directing that he pay alimony and child support to his ex-wife, appellee Paula Anderson. Appellant Anderson also appeals those parts of the chancery court’s order directing him to pay certain marital debts and to pay appellee Anderson’s counsel a fee of $4,000. We conclude that the chancery court did not err in ordering appellant Anderson to pay alimony and in determining the amount of child support that it ordered appellant to pay to appellee Paula Anderson. We further conclude that the chancery court did not err in ordering appellant Anderson to pay certain marital debts and to pay Paula Anderson’s attorney’s fees. Because the chancery court did not err, we affirm.
The chancery court entered the order at issue on January 14, 1997, as a supplement to a divorce decree that it had previously entered on April 17, 1996. In the 1996 decree the chancery court awarded appellant Anderson a divorce from Paula Anderson and awarded custody of the Andersons’ two minor daughters to her. In this decree the chancery court noted “that issues concerning the property settlement, permanent child support and alimony will be deferred until further order.” Until such time as this further order was entered, the chancery court ordered appellant Anderson to pay $1,267 in alimony and child support every month and to make the monthly mortgage payments on the family home. The chancery court entered this order after having heard testimony from appellant Anderson and his father, Frank Anderson, at a hearing held on April 11, 1996. In order to decide the issues preserved in the 1996 divorce decree, the chancery court held an additional hearing on November 18, 1996. Appellant Anderson and his father also testified at this hearing. In addition, William Beall, the accountant for the Anderson family business, testified on behalf of appellant Anderson. Paula Anderson testified as well. After hearing the testimony of these witnesses and after considering arguments made by counsel in post-hearing briefs, the chancery court entered the order, noted above, from which appellant Anderson appeals.
Appellant Anderson makes five allegations of error. He asserts that, in determining his income for the purpose of calculating the alimony and child support he should pay each month, the chancery court erred by refusing to deduct the income taxes that he paid on a portion of his 24% share of earnings that was retained by the family business, a closely held corporation, Anderson-Martin Machine Company (hereinafter AMCO). This error resulted in the chancery court ordering him to pay child support of $2,133 per month. He also contends that, under the circumstances of this case, the court abused its discretion in ordering him to pay alimony of $500 per month for a period of time that extended to five years after the parties’ youngest child attains the age of eighteen or graduates from high school. Anderson also asserts that the chancery court erred in ordering him to pay up to $5,000 of credit card debts that the parties incurred during their marriage. He further asserts that the chancery court erred in refusing to order appellee Paula Anderson to pay part of a $150,000 debt that he owes in connection with a failed business venture. Finally, appellant Anderson asserts that the chancery court erred in directing him to pay a fee of $4,000 to Paula Anderson’s counsel. For the reasons we will set forth, we conclude that none of these allegations of error has merit.
Appellant Anderson’s first allegation of error presents a question of first impression concerning the interpretation of the Arkansas Family Support Chart set forth in In re: Guidelines for Child Support, 314 Ark. 644, 863 S.W.2d 291 (1993). This issue is of substantial public interest to individuals, such as appellant Anderson, who have child-support obligations and who also receive income based on their pro rata ownership of a closely held business corporation that pays no federal income tax pursuant to subchapter S of the Internal Revenue Code, 26 U.S.C.S. §§ 1361-79 (1996), and no state income tax pursuant to Ark. Code Ann. § 26-51-409 (Supp. 1995/Repl. 1997), pursuant to which subchapter S of the Internal Revenue Code is adopted to determine the state income tax owed by certain closely held business corporations. According to appellant Anderson, the chancery court erred in concluding that it should not deduct from the income that Anderson had available to pay child support in 1995 the income taxes that he paid for that year on his pro rata share of the profits earned by his family business, AMCO, which is a sub-chapter S corporation. Pursuant to the family-support chart, a child-support payor may deduct from his income available to pay child support the amount of federal and state income taxes that he paid for that year. Guidelines, 314 Ark. at 646. Appellant Anderson asserts that this provision of the family-support chart permits him to deduct from the income he had available in 1995 to pay child support the income taxes that he paid for that year on his pro rata share of AMCO’s earnings that the corporation retained and did not distribute to him, as a shareholder.
This issue arose because appellant Anderson owns 24% of AMCO, and its income taxes are accounted for pursuant to sub-chapter S of the Internal Revenue Code. A subchapter S corporation is defined as follows:
A small business corporation with a statutorily limited number of shareholders, which, under certain conditions, has elected to have its taxable income taxed to its shareholders at regular income tax rates. ... Its major significance is the fact that S corporation status usually avoids the corporate income tax, and corporate losses can be claimed by the shareholders.
Black’s Law Dictionary 342 (6th ed. 1990). Pursuant to subchapter S, a small business corporation can have its profit taxed in the same way that the profit of a partnership is taxed:
Corporations which elect to be treated as small business corporations under the provisions of Subchapter S receive tax treatment that is similar to that of partnerships. Shareholders of a Subchapter S corporation are required to include their respective pro rata shares of the undistributed taxable income of the corporation as part of their gross income on their individual tax returns. ... In addition, shareholders in a Subchapter S corporation can deduct their pro rata share of any net operating loss of the corporation on their individual tax returns.
Hudspeth v. C.I.R., 914 F.2d 1207, 1211 (9th Cir. 1990).
Before the chancery court, appellant Anderson argued that his shareholder income for 1995 that was retained by AMCO should not be counted as income available to pay child support. For simplicity, appellant has used hypothetical figures in his argu ment. We will do likewise. If the net earnings of AMCO in 1995 equal $1,000,000, then appellant’s 24% distributable share that is reported to the IRS on Schedule K-l is $240,000. Appellant must pay $90,000 of state and federal income taxes on this sum, even if AMCO holds back $80,000 and only distributes $160,000 of its income to appellant. While this retention of part of appellant’s share of profits may impact appellant’s ability to pay his taxes, it does not reduce his tax liability. The chancery court agreed with appellant’s contention and excluded from its computation of his income for child-support purposes the portion of his shareholder income that was retained by AMCO in 1995, which was $80,000 in the above hypothetical.
Appellant Anderson also asserted that, in its computation of his income for child-support purposes in this hypothetical, the court should deduct the total income taxes of $90,000 that he paid on his $240,000 share of AMCO’s distributed earnings. The chancery court rejected this argument. It deducted from appellant’s income only $60,000, which is the proportion of his income taxes that is attributable to the $160,000 of AMCO earnings actually distributed to him. The $30,000 of income taxes attributed to the $80,000 of appellant’s earnings retained by AMCO was not deducted. In its January 14, 1997, order, the chancery court explained its decision as follows:
The court has determined that child support should be based on plaintiffs net income for 1995 exclusive of his company’s retained earnings and after giving him credit for income taxes paid on his distributed income, but not for income taxes paid on retained earnings.
In reaching its decision on the amount of child support to award the defendant the court has carefully considered the arguments of counsel for both parties. It is convinced that plaintiff s share of retained earnings he receives each year from his company, of which he is a 24% shareholder, is income for child support calculation purposes, according to the definition of income in the Supreme Court’s per curiam opinion and under A.C.A. Section 9-14-107(b). It is further convinced, however, that plaintiff has rebutted the presumption that the amount reflected by the child support chart after including income from retained earnings is the just amount of child support to order in this particular case, and that accordingly plaintiffs share of his company’s undistributed share of retained earnings should not be used in calculating income or child support in this particular case. It is further convinced, however, that if the court is not going to include plaintiffs undistributed share of retained earnings in calculating his child support it would be inequitable to give plaintiff credit for income taxes paid on those retained earnings even though the taxes are deducted from plaintiffs paycheck. Notwithstanding the fact that plaintiff may not immediately receive his share of retained earnings, he, nevertheless does benefit from them (his stockholder’s equity is increased) and it would be inequitable for him to receive this substantial benefit in which the defendant does not share and then deprive the defendant further by allowing plaintiff to reduce that portion of his income for child support calculation purposes by deducting the taxes on the retained earnings.
As noted above, this issue requires interpretation of the family-support chart. The family-support chart is, in essence, a rule promulgated by the Arkansas Supreme Court , We construe court rules using the same means, including canons of construction, that are used to interpret statutes. See Gannett River States Pub. Co. v. Arkansas Judicial Discipline and Disability Comm’n, 304 Ark. 244, 247, 801 S.W.2d 292 (1990). The basic rule of statutory interpretation to which all other interpretative guides must yield is the necessity to give effect to the intent of the drafter of the statute. See Rogers v. Tudor Ins. Co., 325 Ark. 226, 234, 925 S.W.2d 395 (1996). The cardinal principle for construing remedial legislation is for courts to give appropriate regard to the spirit which promoted the enactment of the remedial legislation, the mischief sought to be abolished, and the remedy proposed. Arkansas Dep’t of Human Servs. v. Walters, 315 Ark. 204, 209, 866 S.W.2d 823 (1993). The purpose of a statute must be considered when construing it. Stover v. Stover, 287 Ark. 116, 119, 696 S.W.2d 750 (1985). Moreover, in interpreting statutes, a court should take a common-sense approach. Bryant v. Mars, 309 Ark. 480, 485, 830 S.W.2d 869 (1992).
When we apply these principles of statutory interpretation to the chancery court’s interpretation of the pertinent provisions of the family-support chart, we conclude that the court did not err in rejecting appellant Anderson’s contention that, pursuant to the chart, he was entitled to have deducted from his income available to pay child support the income taxes that he paid on his 1995 shareholder earnings that were retained by AMCO. We agree with the chancery court’s interpretation of the pertinent provisions of the family-support chart and reject Anderson’s interpretation because it is contrary to the purpose for which the family-support chart was promulgated. The family-support chart was established “to ensure the proper enforcement of child-support awards in this state.” Guidelines, 314 Ark. at 650.
Appellant Anderson’s interpretation of the provisions of the chart that permit deduction of income-tax payments from the income that a child-support payor has available to pay child support is contrary to the purpose of the family-support chart. His interpretation would encourage child-support payors, who are also shareholders in subchapter S corporations, to favor their own long-term financial interests in their corporations over their children’s need for support until such time as the children are no longer minors. A subchapter S corporation shareholder, such as appellant, would have an incentive to keep most or all of his shareholder income as retained earnings by the corporation. The greater the percentage of his income that the shareholder has retained by the corporation, rather than distributed to him, the lesser will be his income available to pay child support. This is so because not only would the child-support payor/subchapter S corporation shareholder, pursuant to the chancery court’s decision in this case, be able to deduct from his child-support income the amount of his shareholder earnings retained by the corporation, but he would also be able to reduce his child-support income by the entire amount of income taxes that he pays on his corporate earnings, whether distributed to him or retained by the corporation. It is wholly inconsistent with the purpose of the family-support chart to interpret it in such a way as to encourage child-support payors to minimize their child-support income. Appellant Anderson’s interpretation does so and the chancery court did not err in rejecting it.
Appellant Anderson also asserts that the chancery court erred in declining to order appellee Paula Anderson to pay some of the $150,000 debt that he owes to a bank in connection with a failed business venture. In 1992 appellant Anderson and a partner started a company, Technology Direct, to build and sell inexpensive computers. The business failed in October of 1995, and appellant Anderson and his partner were jointly Hable for a $150,000 debt to a bank that had provided financing for Technology Direct. In April of 1996, when the first hearing was held in this case, appellant Anderson was personally liable for one-half of this debt and was responsible for the entire debt if his partner faded to pay his half. At this hearing, appellant Anderson volunteered to “just keep paying” his debt to the bank. When asked on direct examination if he intended to ask Paula Anderson to pay part of this debt, appellant Anderson replied, “I don’t foresee her being able to pay it and we’ll just do the best we can on that one.” At the second hearing that was held in this case, in November 1996, appellant Anderson testified that his partner in Technology Direct had failed to pay his half of the debt to the bank and, therefore, he was liable to the bank for approximately $150,000. On cross-examination, appellant Anderson was asked if anything had changed with regard to Paula’s financial situation such that she could pay some of the Technology Direct debt. He replied, “She hasn’t received any kind of high paying job at this point.” Given appellant Anderson’s testimony at the two hearings that he did not foresee that Paula would have the financial abifity to pay any of the Technology Direct debt, he will not be heard on appeal to complain that the chancery court erred by agreeing with his conclusion that Paula lacked the financial resources to pay part of the Technology Direct debt. An appellant may not complain on appeal that the chancellor erred if the appellant has induced, consented to, or acquiesced in the chancellor’s decision. Dodson v. Dodson, 37 Ark. App. 86, 89, 825 S.W.2d 608 (1992).
Appellant Anderson also asserts that the chancery court erred in ordering him to pay child support of $2,133 per month. Moreover, he contends that the chancery court erred in ordering him to pay Paula alimony of $500 per month until five years after the graduation of their youngest child or until she remarries. The chancery court made the $2,133 per month child-support award after determining that appellant Anderson’s net income for child-support purposes in 1995 was $116,357 ($9,696 per month) and by then applying to this figure the appropriate directive set forth in the Arkansas Family Support Chart. The support chart that was then in effect stated, in essence, that when the payor’s income exceeds $5,000 per month the appropriate level of child support for two dependents is 22% of the payor’s monthly income. In re: Guidelines for Child Support, 314 Ark. 644, 646, 863 S.W.2d 291 (1993). With regard to its award to Paula of $500 alimony per month, in its order the chancery court noted:
In addressing the subject of alimony, the court is convinced the plaintiff has the ability to pay alimony and that the defendant is in need of it. The court further believes that the defendant’s desire to obtain employment which will allow her to be at home with the children when they are out of school is not unreasonable considering that defendant has always been at home with the children during this marriage of substantial duration. Obtaining employment which will coincide with the children’s school schedule will, of course, limit the job opportunities available to defendant and the amount of compensation. Considering the length of the marriage, the wife’s prospects for employment, and the husband’s ability to pay, the court finds plaintiff should pay alimony until five years after the youngest child is presently scheduled to graduate from high school or until defendant remarries or cohabits with a man to whom she is not related.
Moreover, in its order the chancery court noted that the total of appellant Anderson’s monthly child-support payment ($2,133) and of his monthly alimony payment ($500) was $2,633 per month. The chancery court noted further that, after subtracting these amounts from appellant Anderson’s 1995 income of $9,696 per month and after further subtraction of monthly payments on the Technology Direct debt and payments for additional income taxes on his undistributed earnings portion of his 1995 income, appellant Anderson will still have $2,364 per month to support himself and will still have 24% ownership of AMCO. The chancery court noted further that the $2,364 per month that appellant Anderson will have to live on “is only $269 less than the amount provided by the court for defendant [Paula] and [the] two children.”
Certain case-law principles govern our review of a chancery court’s award of spousal and child support. The amount of child support a chancery court awards lies within the court’s sound discretion, and we will not disturb the chancellor’s child-support award absent an abuse of discretion. Mearns v. Mearns, 58 Ark. App. 42, 48, 946 S.W.2d 188 (1997); Jones v. Jones, 43 Ark. App. 7, 12, 858 S.W.2d 130 (1993). Reference to the family-support chart is mandatory, and the chart itself establishes a rebut-table presumption of the appropriate amount of child support that can only be disregarded if the chancery court makes express findings of fact stating why the amount of child support set forth in the support chart is unjust or inappropriate. See Black v. Black, 306 Ark. 209, 214, 812 S.W.2d 480 (1991); McJunkins v. Lemons, 52 Ark. App. 1, 5, 913 S.W.2d 306 (1996). With regard to a chancery court’s decision to award spousal support (alimony), the chancery court’s decision to do so is a matter that also lies within the court’s sound discretion. Wilson v. Wilson, 294 Ark. 194, 199, 741 S.W.2d 640 (1987). A chancery court’s decision to award alimony will not be reversed on appeal absent an abuse of discretion. Id.; Tortorich v. Tortorich, 50 Ark. App. 114, 121, 902 S.W.2d 247 (1995). The purpose of alimony is to rectify economic imbalance in the earning power and the standard of living of the. parties to a divorce in light of the particular facts of each case. Harvey v. Harvey, 295 Ark. 102, 105, 747 S.W.2d 89 (1988). The primary factors that a chancery court should consider in determining whether to award alimony are the financial need of one spouse and the other spouse’s ability to pay. Id.; Mearns v. Mearns, 58 Ark. App. at 49. To balance these primary factors, a chancery court should consider certain secondary factors. See Mearns v. Mearns, 58 Ark. App. at 49-50. Among these secondary factors are: (1) the financial circumstances of both parties; (2) the amount and nature of the income, both current and anticipated, of both parties; (3) the extent and nature of the resources and assets of each of the parties; and (4) the earning ability and capacity of both parties. Id.
Testimony pertaining to the nature and amount of appellant Anderson’s income, pertaining to the extent and nature of his resources and assets and pertaining to his earning ability and capacity have been noted, above, in connection with his contention that the chancery court erred in not reducing his income available to pay child support by the amount of income taxes he paid in 1995 on his pro rata share of earnings retained by AMCO. At the hearing that was held on November 18, 1996, Paula testified concerning the nature and amount of her income, both current and anticipated, testified about the nature and extent of her financial resources and assets, and also testified about her earning ability and capacity. She testified that she had married appellant Anderson in 1973. She noted that prior to her marriage she had worked as an administrative secretary for a county health department and that she had graduated from high school and had attended the University of Arkansas for one year. She testified further that she and appellant had had three daughters and that the two youngest were twelve and fourteen years of age. She stated that she and appellant Anderson had agreed in 1977 that she would not work after their first child was born but that she would stay home and raise the children. She acknowledged that since September 1995 she had worked as a substitute secretary and a substitute media specialist for the Port Smith Public Schools and that she intended to apply for a permanent job as a secretary with the school system. She noted that, if she were hired, she would earn $10,000 to $18,000 for a nine-month contract. She explained that she was applying for a permanent job only with the school system so that she could be at home with her daughters during the summer months when school was not in session. With regard to the extent and nature of her financial resources and assets, Paula said: “I’m forty-three (43) years old. I have very little education. I do not have anything. I don’t have any CDs. I don’t have any stocks. I don’t have any retirement. . . . It’s going to take a long time for me to get back on my feet .... And I also don’t own 24 percent in stock in a company like Mr. Anderson does. I don’t have anything to fall back on.”
Given the testimony, noted above, that was before the chancery court, we cannot say that the court abused its discretion in ordering appellant Anderson to pay $2,133 per month in child support for two children and to pay $500 per month in spousal support. The chancery court’s child-support award was nothing more than a straightforward application of the family-support chart to the $9,696 monthly income that appellant Anderson had available to pay child support. The chancery court’s spousal-support award was based on testimony from which the court could conclude that Paula needed $500 per month in support and that appellant Anderson had the financial ability to provide this support.
Appellant Anderson also asserts that the chancery court erred in ordering him to pay up to $5,000 of credit card debts that he and Paula had incurred. In its order, the chancery court ordered appellant Anderson to pay this debt because Paula “has no ability to pay . . . the credit cards debts.” A chancery court has authority to consider the allocation of debt in a divorce case. See Box v. Box, 312 Ark. 550, 557, 851 S.W.2d 437 (1993). A chancery court’s decision to allocate debt to a particular party in a divorce case is a question of fact and will not be reversed on appeal unless clearly erroneous. See Grace v. Grace, 326 Ark. 312, 317, 930 S.W.2d 362 (1996). A chancery court’s determination that debt should be allocated between the parties in a divorce case on the basis of their relative ability to pay is not a decision that is clearly erroneous. See Richardson v. Richardson, 280 Ark. 498, 503, 659 S.W.2d 510 (1983). As noted above, there was ample testimony before the chancellor from which he could conclude that appellant Anderson’s financial position was decidedly superior to Paula’s. Therefore, the court’s allocation of the parties’ credit-card debt was not clearly erroneous.
Finally, appellant Anderson asserts that the chancellor erred in ordering him to pay Paula’s counsel a fee of $4,000. Pursuant to statute, such fee awards are permissible in divorce cases. Ark. Code Ann. § 9-12-309(a) (Repl. 1993). A chancellor has considerable discretion to award attorney’s fees in a divorce case. Gavin v. Gavin, 319 Ark. 270, 272, 890 S.W.2d 592 (1995); Stepp v. Gray, 58 Ark. App. 229, 240-41, 947 S.W.2d 798 (1997). Moreover, the chancellor is in a better position to evaluate counsel’s services than an appellate court, and, in the absence of clear abuse, the chancellor’s award of an attorney’s fee will not be disturbed on appeal. Wilson v. Wilson, 294 Ark. 194, 198, 741 S.W.2d 640 (1987). In determining whether to award attorney’s fees, the chancellor must consider the relative financial abilities of the parties. Paulson v. Paulson, 8 Ark. App. 306, 310-11, 652 S.W.2d 46 (1983); see also Lee v. Lee, 12 Ark. App. 226, 674 S.W.2d 505 (1984). As we have previously noted, from the testimony given by appeEant Anderson and his witnesses, the chancellor could have concluded that he was, relative to Paula, in a much better financial position. Review of the record shows that in the course of representing Paula her counsel conducted a deposition, responded to two sets of interrogatories, and carefuEy studied many complex financial and tax records of appeEant Anderson and AMCO. Given the chanceEor’s superior position to evaluate the services Paula’s counsel rendered, we cannot say that the chancery court clearly abused its discretion in ordering appeEant Anderson to pay attorney’s fees.
For the reasons set forth above, we affirm the Sebastian County Chancery Court’s order of January 14, 1997.
Affirmed.
Bird and Griffen, JJ., agree.
The family support chart involved in this case was issued in 1993. The Arkansas Family Support Chart has recendy been revised by the Arkansas Supreme Court. The newly revised family-support chart was handed down by the Court on September 25, 1997, and is published in the appendix to 329 Arkansas Reports at page 668.
Appellee has not appealed the chancellor’s decision to exclude Anderson’s share of AMCO’s retained/undistributed earnings from Anderson’s income in computing his support liability. Consequently, we do not express any opinion on its propriety.
Because this case involves an issue of first impression, is of substantial public interest, and requires interpretation of a rule of the supreme court, we certified this case to the Arkansas Supreme Court pursuant to Ark. Sup. Ct. R. 1-2(a)(17)(i); (iv); (v) (1996). However, the supreme court declined to accept the case and remanded it back to this court for decision. Jurisdiction to determine the issues presented in this appeal is therefore in the court of appeals. | [
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Sam Bird, Judge.
Appellant Craig Wenzl appeals a decision of the Board of Review denying him unemployment compensation. We find that the decision of the Board of Review is supported by substantial evidence; therefore, we affirm.
Appellant worked for Anderson Merchandisers in a route-sales job as a “rack jobber,” one who takes the product into the store and personally stocks and arranges the display of the product. His products were music, books, and videos, and his main customer was Wal-Mart. On June 30, 1995, appellant sustained severe injuries when a tractor-trailer truck rolled down a hill and over his company car. He was off work for four months. Appellant testified that when he returned to work in October he was still experiencing a lot of pain, and he found it hard to keep up with his job. He said the company had a trainee working his route while he was off and helping him when he returned. Nevertheless, none of his merchandise had been ordered while he was out, and his route was in a “real mess.” Appellant said he didn’t have the energy or the strength to deal with trying to get the route ready for the holidays because it required working fast and carrying a lot of merchandise.
Appellant also testified that his take-home pay was reduced because the trainee was getting his commission. Appellant said he mentioned this to his sales manager without results. At the time of his injury, appellant said he was earning a salary of $1,300 a month, plus a $1,122.99 commission. When he returned to work after his injury, he received a salary of approximately $1,384 a month but no commission. Historically, he had received his highest commissions in November and December; his commission check alone for December 1994 was $1,702.08.
In January, appellant resigned. He testified that his main reason for resigning was his physical condition; he simply was unable to stand up to the physical requirements of the job. Appellant also testified that he suspected he was going to be fired. He said when his manager, Bill Lutrell, wanted to speak about his territory, Lutrell would talk to the trainee and ignore appellant.
Lutrell testified that there appeared to be some confusion about appellant’s role when he came back with regard to the person appellant called a trainee. He said after appellant’s accident, the man was assigned appellant’s territory and was no longer considered a trainee. He explained that when appellant returned to work he was not assigned a territory because “he was not ready to accept the territory, and he said so even himself.” Lutrell said:
And the basic agreement was that when he was ready, and this was [what] we were planning after Christmas, sometime in January or February 1st, that he would be reassigned the territory, and since he was not assigned the territory, Todd [the man appellant called the trainee] was assigned the territory. Todd did receive all the commissions for that.
Lutrell said appellant never complained to him about not getting his commission, and that appellant did not give himself or the company an opportunity to see if he could work a territory alone. Lutrell said it was his intention to assign appellant to a territory around February 1 and give him some help to see if his physical problems were temporary, and, if not, deal with it at that time. He said he never had any intention of firing appellant.
Arkansas Code Annotated section 11-10-513 (Repl. 1996) provides in pertinent part:
(a)(1) If so found by the director, an individual shall be disqualified for benefits if he, voluntarily and without good cause connected with the work, left his last work.
(b) No individual shall be disqualified under this section if, after making reasonable efforts to preserve his job rights, he left his last work due to a personal emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification or, if, after making reasonable efforts to preserve job rights, he left his last work because of illness, injury, pregnancy, or other disability.
Good cause has been defined as a cause that would reasonably impel the average able-bodied, qualified worker to give up his or her employment. Teel v. Daniels, 270 Ark. 766, 606 S.W.2d 151 (Ark. App. 1980). What constitutes good cause for leaving employment is ordinarily a question of fact for the Board to determine from the particular circumstances of each case. Ahrend v. Director, 55 Ark. App. 71, 930 S.W.2d 392 (1996).
On appeal, the findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. Ark. Code Ann. ll-10-529(c)(l) (1987); Feagin v. Everett, 9 Ark. App. 59, 652 S.W.2d 839 (1983). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Victor Indus. Corp. v. Daniels, 1 Ark. App. 6, 611 S.W.2d 794 (1981). We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Feagin v. Everett, supra. Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.; Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993).
Appellant’s superior, Lutrell, said he intended to give appellant back a route around the first of February and see if appellant could handle it physically. However, appellant resigned before Lutrell had an opportunity to find appellant a new route or communicate his intentions to appellant. Lutrell testified, and appellant admitted, that appellant never inquired whether the company had any plans for returning him to a sales route of his own.
The dissenting opinion relies upon Ladish v. Breashears, 263 Ark. 48, 563 S.W.2d 419 (1978), to support its contention that this case should be reversed because appellant experienced a substantial cut in pay. But in Ladish the court recognized that the issue presented was a question of fact, and, of course, it is well settled that factual determinations of the Board of Review must be affirmed if supported by substantial evidence. Victor Indus. Corp., supra. The dissent’s statement that when appellant returned to work he received only 57% of his former pay is misleading. The record reveals that appellant actually experienced a slight increase in his base salary (from a monthly average of $1,300 to $1,384) after his return to work. He did not, however, receive the commissions on sales because the commissions were being paid to the person who was assigned temporarily to take appellant’s place while appellant was, admittedly, physically unable to do the job.
The Board of Review’s finding that appellant left his last work without making reasonable efforts to preserve his job rights is supported by substantial evidence.
Affirmed.
Arey, Jennings, Rogers, and Griffen, JJ., agree. | [
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John B. Robbins, Chief Judge.
Appellant Department of Parks and Tourism appeals the decision of the Workers’ Compensation Commission that found that appellee Belinda Gail Helms was properly referred to a chiropractor and then to a general practitioner by her treating physician. It argues that this was not supported by substantial evidence. Appellant also argues that the impairment rating to the body as a whole was not based on objective and measurable findings, taking issue with appellee’s range-of-motion tests. Though we find no merit to the Department’s arguments regarding the referrals, we do find merit in its disagreement with the award of a permanent partial disability.
Appellee was injured on April 23, 1995, when she slipped and fell while performing duties as a waitress at DeGray Lodge. Appellant admitted compensability. She was initially treated at an Arkadelphia hospital for shoulder, lower back, and head pain. She was followed up two days later by Dr. Jensen, a general practitioner, with her only complaint being shoulder pain. She was seen again on May 9th when Dr. Jensen referred appellee to an orthopedist, Dr. McLeod. He pursued conservative treatment of appellee’s injury. Upon suggestion of Dr. McLeod, appellee underwent six sessions of physical therapy between May and June 1995. On June 7th, appellee cancelled her remaining physical therapy sessions and sought chiropractic treatment. She underwent those treatments for several months.
She returned to see the orthopedist in September 1995 complaining of headaches. Because he did not treat headaches, she was referred to Dr. Taylor, a general practitioner. She returned to the orthopedist on March 8, 1996, for a permanent impairment evaluation, and was assessed a four-percent impairment rating based on the results of active range-oDmotion tests. The Department denied the compensability of the chiropractic and general practitioner treatment as well as the four-percent rating. The administrative law judge determined that the referrals and treatments were reasonable and necessary and that the rating was appropriate. The Full Commission affirmed the decision of the administrative law judge. This appeal resulted.
The first argument centers primarily on whether appellee consulted the chiropractor on her own or whether she was referred to him by her orthopedist. In his deposition her orthopedist explained that, in his estimation, appellee could have understood his discussions with her to mean that he was referring her to a chiropractor. They had discussed the topic of chiropractic treatment in her May 1995 visit, before physical therapy had begun. His practice was to advise patients of alternative treatments, which include chiropractic treatment. Dr. McLeod had been to Dr. Clary’s and Dr. Schuck’s offices, both local chiropractors, and mentioned their names to appellee. Dr. McLeod stated that there are business cards of Dr. Clary’s in Dr. McLeod’s office.
Appellee testified that she returned to Dr. McLeod’s office because physical therapy was not providing her any relief. At the front desk, she mentioned to the receptionist that she was interested in seeking chiropractic treatment like Dr. McLeod had mentioned. The receptionist went to the back, and later returned and wrote Dr. Clary’s name and address on a piece of paper for her. The receptionist mentioned to appellee that Dr. Clary was new in town and had unique methods of treatment. Though the receptionist testified that she did not receive instructions from Dr. McLeod to send appellee to the chiropractor, appellee was left with the impression that he did. Dr. McLeod stated that her subjective understanding could have been that she was referred to a chiropractor, because of the circumstances under which appellee was given the name of Dr. Clary. Dr. Clary even corresponded back to Dr. McLeod thanking him for the “referral” of appellee.
Whether treatment is a result of a “referral” rather than a “change of physician” is a factual determination to be made by the Commission. Pennington v. Gene Cosby Floor & Carpet, 51 Ark. App. 128, 911 S.W.2d 600 (1995); TEC v. Underwood, 33 Ark. App. 116, 802 S.W.2d 481 (1991). When that determination is challenged on appeal, we affirm if it is supported by substantial evidence. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. Unless we are convinced that fair-minded persons with the same facts could not arrive at the conclusion reached by'the Commission, we will affirm. Id.; Tuberville v. International Paper Co., 28 Ark. App. 196, 771 S.W.2d 805 (1989). Here, the Commission could reasonably find that appellee was not physician-shopping but was seeking assistance in following through with an option discussed by Dr. McLeod.
Further evidence was presented to this effect. In the patient information sheet that she filled out at Dr. Clary’s office, she responded to a question, “How did you hear about us?” with the answer, “Recommended by Dr. McLeod.” In response to the question, “If referred, by who?” she answered Dr. McLeod. The Commission was persuaded by appellee’s credible testimony, coupled with Dr. McLeod’s explanation of the situation. We cannot say that there was no substantial evidence to support the Commission’s decision.
The second physician whose services appellant takes issue with is Dr. Taylor. Appellee sought the care of Dr. Taylor after a consultation with Dr. McLeod in September 1995. On that visit, she complained to Dr. McLeod of headaches. Dr. McLeod stated in his deposition that he was not qualified to render opinions and treatment for headaches. At Dr. McLeod’s suggestion she saw Dr. Taylor, a family physician. Dr. McLeod testified that “[S]he told me about she’d been having some headaches. And I don’t treat headaches, and I wanted her to have that looked at, and asked her about a family physician.” He went on to state that she had seen Dr. Jensen and that a couple of her family members had seen Dr. Taylor. She expressed confidence in Dr. Taylor to Dr. McLeod, “so we made a referral for her to see Dr. Taylor for evaluation of these headaches.” A patient’s mere request for treatment by a particular physician is not in itself sufficient to invalidate an otherwise valid referral. Electro-Air v. Villines, 16 Ark. App. 102, 697 S.W.2d 932 (1985); see also, Patrick v. Arkansas Oak Flooring Co., 39 Ark. App. 34, 833 S.W.2d 869 (1992). In his office notes, Dr. McLeod mentioned that appellee did not want to see any doctor other than Dr. Taylor for the headaches. The doctor explained that in their discussions, appellee or her husband brought up Dr. Taylor. Nothing negative was stated about Dr. Jensen; they just appeared comfortable with Dr. Taylor as a physician. The Commission was well within the substantial-evidence requirement in finding that this was a valid referral and not a demand by appellee for a change of physician.
Lastly, appellant argues that the four-percent impairment rating assessed by Dr. McLeod on March 8, 1996, is invalid because Dr. McLeod used active range-of-motion tests that do not qualify as “objective and measurable” under the Workers’ Compensation Act. Appellant asserts that any impairment rating attributable to appellee’s right shoulder injury cannot be predicated on active range-of-motion tests. Dr. McLeod gave appellee a seven-percent shoulder impairment pursuant to the American Medical Association Guidelines, which correlates to a four-percent impairment to the body as a whole. Arkansas Code Annotated § 11-9-102(16)(A) (ii) (Repl. 1996) states:
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.
This was not an evaluation of spine impairment. However, appel-lee did bear the burden to prove physical or anatomical impairment by objective and measurable physical findings. Ark. Code Ann. § ll-9-704(C)(l)(B) (Repl. 1996). “Objective findings” are those findings that cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i) (Repl. 1996). Dr. McLeod stated that he based the impairment rating on active range-of-motion tests. The legislature has eliminated range-of-motion tests as a basis for physical or anatomical impairment ratings to the spine by definition. It was incumbent upon appellee to present evidence that active range-of-motion tests are objective tests. In other words, it was incumbent upon her to present proof that those tests do not come under the voluntary control of the patient. She did not do so. In fact, there is authority to suggest that active range-of-motion tests are based almost entirely on the patient’s cooperation and effort. See American Medical Association, Guidelines to the Evaluation of Permanent Impairment, (3d ed. 1988). “The full range possible of active motion should be carried out by the subject and measured by the examiner. If a joint cannot be moved actively by the subject or passively by the examiner, the position of ankylosis should be recorded.” Id. at 14. Because appellee did not present any objective physical findings to support the percentage of impairment to the body as a whole, we cannot uphold the Commission’s decision on this point since it does not provide a substantial basis for its award.
Affirmed in part; reversed in part.
Bird and Griffen, JJ., agree. | [
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John F. Stroud, Jr., Judge.
Markland Jenkins was charged with second-degree battery; in addition, the State filed a petition for revocation of his probation for a previous conviction. He waived trial by a jury. Evidence on the underlying offense and the revocation was presented in the same proceeding. Mr. Jenkins moved for a directed verdict at the end of the State’s case and again at the close of the evidence put on by the defense. The trial court denied his motions, found him guilty of second-degree battery, and found him in willful violation of his probation. He was sentenced to thirty-six months in the Arkansas Department of Correction with thirty months suspended on the battery charge, and to thirty-six months with twenty-four months suspended on the revocation, the sentences to be served consecutively. On appeal he challenges the sufficiency of the evidence to support the conviction and the revocation. We find the evidence sufficient and affirm.
A motion for directed verdict is a challenge to the sufficiency of the evidence. Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, which is evidence of such certainty and precision to compel a conclusion one way or another. Id. We review the evidence in the light most favorable to the appellee, considering only the testimony which tends to support the verdict. Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990).
It is not disputed that appellant’s girlfriend jumped through a second-story window after the couple argued over whether she was seeing someone else, and that she fractured elbow, pelvis, ankle, and facial bones when she landed on the concrete below. Appellant argues, however, that his conviction for second-degree battery cannot stand because he did not cause her injuries.
A person commits battery in the second degree if with the purpose of causing physical injury to another person, he causes serious physical injury to any person. Ark. Code Ann. § 5 — 13— 202(a)(1) (Repl. 1995). Causation is addressed as follows:
Causation may be found where the result would not have occurred but for the conduct of the defendant operating either alone or concurrently with another cause unless the concurrent cause was clearly insufficient to produce the result and the conduct of the defendant clearly insufficient.
Ark. Code Ann. § 5-2-205 (Supp. 1993).
Appellant’s girlfriend testified that appellant choked her steadily, choking her so hard that she urinated on herself. She stated that he pushed her or otherwise stopped her each time she tried to reach the door. She said that he threatened to kill her and that he held her down on the bed while he made a phone call, asking someone, “Man, what did you do with my gun?” She testified that after reaching into a dresser drawer and behind the bed, he held something that she thought might have been a gun or a clip. She also testified that she knew he kept a gun in the house. Regarding her own actions, she stated the following:
[He said], “Tell me the truth, or, you know, I’m going to kill you.” My cousin had just got shot in the head like some months before by her boyfriend, and I kept on thinking about that. And I was like I’ll take my chances. I’d rather jump out this window and take my chances of being crumbled up than him putting a gun to my head, and I’m dead for life, leaving my two kids behind. And so when he . . . grabbed me like he was going to shoot me or something, I just lost it. I just got up and jumped out the window.
Appellant testified that he never choked his girlfriend and that he did not prevent her from going downstairs.
The circumstances here are akin to those in Holmes v. State, 288 Ark. 72, 702 S.W.2d 18 (1986), where a homeowner fought back after being hit twice by an intruder and broke his own kneecap while making a tackle. The supreme court viewed the blows to the homeowner and the breaking of the kneecap as one continuous occurrence, finding evidence to indicate that “the prerequisite intent was still present.”
Appellant’s sufficiency argument focuses upon the testimony and the element of causation. He contends that the physical injuries arose from an event separate and distinct from the altercation. He insists that the physical fight had ceased before his girlfriend jumped and that he was then, at the most, threatening her. He points to the victim’s testimony that she “lost it” and decided to jump. He also notes that she testified that he had threatened to kill her but told police only that he had threatened to shoot her in the leg.
The credibility of witnesses and the weight to be accorded their testimony are for the trier of fact; such determina tions will not be disturbed on appeal when there is substantial evidence to support the factfinder’s conclusion. Atkins v. State, 310 Ark. 295, 836 S.W.2d 367 (1992). Here, the trier of fact accepted the victim’s story that appellant choked her and said he would kill her, and that she jumped through the window rather than be shot and killed. Viewing the evidence in the fight most favorable to the State, we find that the victim’s jumping through the window and appellant’s choking her comprised one continuous occurrence. We also find the victim’s testimony sufficient to show that appellant’s intent to harm her existed at the time she jumped. See Holmes v. State, 288 Ark. 72, 702 S.W.2d 18 (1986). We find that there was substantial evidence to support appellant’s conviction for second-degree battery.
On the issue of the revocation, the standard of review is slightly different. In such cases, the trial court must find by a preponderance of the evidence that the defendant has failed to comply with the conditions of his probation before it may be revoked. Ark. Code Ann. § 5-4-309(d) (Repl. 1997). On appeal, we do not reverse the trial court’s decision unless it is clearly against the preponderance of the evidence. Alford v. State, 33 Ark. App. 179, 804 S.W.2d 370 (1991). In fight of the evidence outlined above, we cannot conclude that the trial court erred in revoking appellant’s probation.
Affirmed.
Arjey and Jennings, JJ., agree. | [
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John E. Jennings, Judge.
The appellant, Richard Brans-cum, was a general contractor and manager of RNR Construction Company, a heating and air conditioning business. At the time of the hearing below he was thirty-one years old. On May 9, 1994, he was working in Blytheville, Arkansas, when he fell approximately thirty-five feet from a “bucket truck.” He sustained back and internal injuries. A bone scan of Mr. Branscum’s back was normal. Dr. Ed Pratt, an orthopaedic surgeon, diagnosed his condition as chronic low-back pain and leg pain and concluded that the condition was “non-operative.” Dr. Moacir Schnapp concluded in November 1994 that Mr. Branscum had reached maximum medical improvement and rated his anatomical impairment at twenty percent to the body as a whole.
At a hearing before the administrative law judge, Mr. Brans-cum contended that as a result of his compensable injury he suffered from psychological problems, including depression and post-traumatic stress disorder, for which he was entitled to appropriate benefits. He also contended that he was permanently and totally disabled as a result of the injury. The administrative law judge awarded Branscum a thirty percent wage-loss disability.
The employer appealed to the full Commission arguing that the award of wage-loss disability was error. Mr. Branscum cross-appealed, arguing that the award was'inadequate. The Commission held that Branscum was not entided to an award of wage-loss disability. Specifically, the Commission held: (1) that Branscum’s psychological injury was not compensable because it was not shown, pursuant to Ark. Code Ann. § 11-9-113(a) (2) (Repl. 1996), that the diagnosis of the condition meets the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders, (“DSM”); and (2) that even if the claimant’s psychological condition was compensable, he would not be entitled to wage-loss disability because of the limitation of benefits in section 11-9-113(b)(1) (Repl. 1996).
On appeal to this court, Branscum contends that both holdings of the Commission were error and that, when the effects of his psychological problems are considered, it was error for the Commission not to award wage-loss disability. Because we hold that the Commission’s finding that Branscum’s psychological condition was not compensable is supported by substantial evidence, we affirm.
Arkansas Code Annotated section ll-9-113(a)(2) (Repl. 1996) provides:
No mental injury or illness under this section shall be com-pensable unless it is also diagnosed by a licensed psychiatrist or psychologist and unless the diagnosis of the condition meets the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders.
The most current issue of that publication is the fourth edition, copywritten in 1994 by the American Psychiatric Association. As an example, the diagnostic criteria for post-traumatic stress disorder are listed at page 428 of the manual:
A. The person has been exposed to a traumatic event in which both of the following were present:
(1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
(2)the person’s response involved intense fear, helplessness, or horror. Note: In children, this may be expressed instead by disorganized or agitated behavior
B. The traumatic event is persistendy reexperienced in at least one of the following ways:
(1) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. Note: In young children, repetitive play in which themes or aspects of the trauma are expressed
(2) recurrent distressing dreams of the event. Note: In children, there may be frightening dreams without recognizable content.
(3) acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). Note: In young children, trauma-specific reenactment may occur.
(4) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event
(5) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event
C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:
(1) efforts to avoid thoughts, feelings, or conversations associated with the trauma
(2) efforts to avoid activities, places, or people that arouse recollections of the trauma
(3) inability to recall an important aspect of the trauma
(4) markedly diminished interest or participation in significant activities
(5) feeling of detachment or estrangement from others
(6) restricted range of affect, (e.g., unable to have loving feelings)
(7) sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span)
D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by at least two (or more) of the following:
(1) difficulty falling or staying asleep
(2) irritability or outbursts of anger
(3) difficulty concentrating
(4) hypervigilance
(5) exaggerated startle response
E. Duration of the disturbance (symptoms in Criteria B, C, and D) is more than one month.
F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
Specify if:
Acute: if duration of symptoms is less than 3 months
Chronic: if duration of symptoms is 3 months or more Specify if:
With delayed onset: if onset of symptoms is at least 6 months after the stressor.
The question whether the diagnosis of the condition meets the criteria established in the DSM must ordinarily be one of fact. The claimant has the burden of proof on this issue by a preponderance of the evidence. Ark. Code Ann. § 11 — 9— 102(5)(e)(i) (Supp. 1997). In reviewing the Commission’s decision on a question of fact, we will affirm the Commission if its decision is supported by substantial evidence. McMillan v. U.S. Motors, 59 Ark. App. 85, 953 S.W.2d 907 (1997). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992).
In the case at bar Dr. Paul Neal, a clinical psychologist, reported that “the suggested diagnoses” for Mr. Branscum were post-traumatic stress disorder, major depression with melancholy and generalized anxiety disorder, and mixed personalities disorder with borderline and avoidant features. A report from Dr. John Harris, a psychiatrist, stated that appellant’s thought content included “symptoms suggesting the presence of a post-traumatic stress disorder. ...” It was his impression that Mr. Branscum had major depression, single episode, and post-traumatic stress disorder, “by history.” In a later report Dr. Harris concluded that there was no basis to conclude that Mr. Branscum suffered from the effects of significant psychiatrical impairment.
Neither Dr. Neal’s nor Dr. Harris’s reports refers to the DSM nor to the criteria for the various disorders discussed. It is true that Dr. Harris’s first report refers to five axes which correspond to the system of “multi-axial assessment” set out by the DSM, but this cannot be said to conclusively establish that the DSM criteria were met. Where a claim is denied, the substantial evidence standard of review requires us to affirm the Commission if its opinion displays a substantial basis for the denial of the relief sought. Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987). Here the Commission’s opinion adequately explains why it was not persuaded that the diagnosis of the appellant met the criteria established by the DSM.
The Commission went on to hold that, even if it were to find that Mr. Branscum sustained a compensable mental injury, that injury would not support an award of wage-loss disability because Ark. Code Ann. § 11-9-113(b) (Repl. 1996) limits recovery for a compensable mental injury to twenty-six weeks of disability benefits. Although Branscum contends that this holding was error, we need not reach the issue because we have upheld the Commission’s determination here that the mental injury was not compensable.
Finally, appellant contends that the Commission erred in declining to award wage-loss disability over and above his physical impairment rating. On this issue the Commission said:
Consequently, even if we were to find that the claimant sustained a compensable, mental injury, which we do not find, we cannot use it as the basis for awarding wage loss disability.
When we take into consideration the claimant’s age, education, work experience, medical evidence, post-injury income, credibility, demeanor, and interest in returning to work, we find that the claimant has not sustained any disability over and above his physical impairment rating. . . . The functional capacity evaluation revealed that the claimant was capable returning to the workforce. The limitations placed upon the claimant by the evaluation were far from rigorous, and the claimant was not unduly restricted. The medical evidence clearly reveals that the claimant may and should return to the workforce.
Despite the medical clearance to return to work, the claimant never attempted to return to work or to work rehabilitation, yet he has begun flying lessons. At the time of the hearing, the claimant was only 31 years of age. He is a high school graduate and he attended one year of college in addition to several vocational courses. The claimant has experience supervising employees and he has owned his own business. These factors coupled with the recommendations from his physicians that he return to work as well as Dr. Harris’ evaluation which states there are . .no contradictions for Mr. Branscum to resume active participation in his previous vocation. . .” clearly show that the claimant has failed to prove by a preponderance of the evidence any wage loss disability.
We cannot say that the Commission’s decision in this regard was not supported by substantial evidence.
For the reasons stated the Commission’s decision is affirmed.
Affirmed.
Arey and Griffen, JJ., agree. | [
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Sam Bird, Judge.
On June 5, 1995, David Ramsey, the appellant, entered a plea of nolo contendere to the charge of robbery and was given a suspended imposition of sentence for five years, conditioned upon appellant’s making a good-faith effort to complete his high-school education or earn a GED and not possessing any controlled substances. Due to his incarceration on unrelated charges, appellant did not enroll in school until the spring semester of 1996. On January 25, 1996, after being involved in what appeared to be a gang-related incident at school, appellant was suspended from school. Two days later, the car in which appellant was riding with two minors was pulled over at 2 a.m. for violation of curfew. The officers conducted a search of the car, finding marijuana. On January 31, 1996, the State filed a petition to revoke appellant’s suspended sentence, alleging that he was suspended from school as a result of improper activity. The petition was later amended to include charges that appellant had committed the offenses of possession of marijuana and contributing to the delinquency of a minor.
A revocation hearing was held, and the judge revoked appellant’s suspended sentence. Afterward, the State declined to prosecute the charges of contributing to the delinquency of a minor and possession of marijuana for lack of evidence. Appellant then filed a motion requesting the court to reconsider its revocation because the State had failed to prosecute the marijuana and contributing charges. Following another hearing, the court denied the motion and affirmed the earlier ruling revoking appellant’s suspended sentence. Appellant brings this appeal contending that his improper activity, which resulted in his suspension from school, was not sufficient evidence to prove that he failed to make a good-faith effort to obtain his high-school diploma or GED.
When appealing a revocation, the appellant has the burden of showing that the trial court’s findings are against the preponderance of the evidence. Ark. Code Ann. § 5-4-309(d) (Repl. 1993); Tipton v. State, 47 Ark. App. 187, 887 S.W.2d 540 (1994). On appellate review, the trial court’s findings are upheld unless they are clearly against a preponderance of the evidence. Tipton v. State, supra; Russell v. State, 25 Ark. App. 181, 753 S.W.2d 298 (1988). Evidence that is insufficient to support a criminal conviction may be sufficient to support a revocation. Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992).
From a reading of the briefs, it appears that the conditions of the suspended sentence that the State alleges were violated are that the appellant did not make a good-faith effort to obtain his high-school diploma or GED, that he possessed controlled substances, and that he contributed to the delinquency of a minor.
First, the appellant argues that he did not violate the conditions of his suspended sentence by failing to make a good-faith effort to obtain his high-school diploma or his GED. He argues that he was suspended from school for only ten days for a gang-related incident and that he was eligible to return to school after the suspension. He argues further that he did not return to the school after the ten-day suspension because he had enrolled in the Adult Education Center in an effort to get his GED. A good-faith effort is defined in Ark. Code Ann. § 5-4-323 (Supp. 1995) as meaning “the person has been enrolled in a program of instruction and is attending school or adult education.” The State argues that the suspension, coupled with evidence that the appellant had been truant once and tardy twice during only a one-month period of enrollment, is enough to show that the appellant was not making a good-faith effort to obtain his high-school education.
Second, the appellant contends that his sentence should not be revoked because the State failed to prove that he was in possession of marijuana and the State did not prosecute the marijuana and contributing charges due to lack of evidence. The appellant argues that the State did not prove, nor is there any evidence to establish, that he knew the marijuana was in the car. The State argues that evidence that specifically links defendant to the controlled substance is not needed in a revocation hearing.
However, even without the consideration of the charges of contributing to the delinquency of a minor and possession of marijuana, the court did not err in revoking the appellant’s suspended sentence. In order for appellant’s suspended sentence to be revoked, the State need only prove that the appellant committed one violation of the conditions. Ross v. State, 22 Ark. App. 232, 738 S.W.2d 112 (1987). The fact that the appellant had been truant once, tardy twice and suspended for ten days from school, all within a period of less than a month, are sufficient proof of his lack of a good-faith effort to obtain his high-school diploma or GED.
The dissenting opinion implies that appellant is merely a school child who is being imprisoned for being tardy, cutting classes, and being suspended from school, just like “thousands, if not tens of thousands,” of other citizens. The dissent has apparently overlooked the fact that appellant is an eighteen-year-old convicted felon serving a suspended sentence for robbery, subject to revocation if, among other conditions, he fails to make a good-faith effort to obtain his high-school diploma or GED. Notwithstanding the tenuous position this condition of his suspended sentence put him in at school, within a period of less than one month appellant was tardy to school twice, absent without excuse once, and suspended from school for ten days. As a result of the accumulation of these offenses, the trial court made a factual determination that appellant had violated the “good-faith effort” condition of his suspension, and sentenced appellant to serve the five-year term of imprisonment that had been earlier suspended following his conviction for robbery. Nothing in the record suggests that appellant was sentenced to serve a term in prison for being tardy, truant, and suspended from school. Plainly put, this is not a case about a school child who is being too harshly punished for violating a school rule. This case is about a convicted robber serving a five-year suspended sentence who lacked the discipline to obey the simple condition of his suspension that he attend and behave at school.
The dissenting opinion also suggests that before the trial court may revoke the appellant’s suspended sentence, the State must present proof that appellant was tardy or absent a sufficient number of times to subject himself to expulsion from school, the failure to be promoted, or failure to graduate. Of course, no authority is cited in support of this suggestion because none exists.
The dissent suggests that the purpose of Ark. Code Ann. § 5-4-323 (c) may be thwarted if people are sent to prison when they violate the “good-faith effort” condition of their suspended sentences, because in prison they cannot be compelled to go to school. And it is suggested that, by enforcing strict compliance with this condition of appellant’s suspended sentence, the court is increasing the prison population at the expense of encouraging education. This distorted reasoning is contrary to the language of section 5-4-323 (b), which requires that the court “shall revoke a suspension of sentence or probation if the person fails to make a good-faith effort to achieve the degree or certificate.” (Emphasis added.) Whether a good-faith effort has been made is a question of fact to be determined by the trial judge that we will not reverse unless clearly against the preponderance of the evidence. We do not find that the trial court’s decision is clearly against the preponderance of the evidence.
Affirmed.
Arey and Stroud, JJ., agree.
Crabtree, J., concurs.
Griffen and Roaf, JJ., dissent. | [
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Margaret Meads, Judge.
This appeal is brought by GTE Arkansas, Inc., and eighteen other local exchange carriers from Order No. 15 that was entered by the Arkansas Public Service Commission in Docket No. 95-034-TF. In Order No. 15, the Commission revoked a surcharge that it had previously imposed on local exchange ratepayers to fund the costs of implementing telecommunications relay service. Appellants contend that the Commission’s decision to eliminate the surcharge is unlawful and ask this court to set aside Order No. 15 and remand the case to the Commission for further proceedings. Because the issue presented by this appeal is moot, we dismiss.
Telecommunications relay service (TRS) enables individuals with a hearing or speech impairment to communicate with other individuals through a third party by using a relay operator and a telecommunications device for the deaf (TDD). Tide IV of the Americans with Disabilities Act (ADA), codified at 47 U.S.C. § 225 (1991), directed the Federal Communications Commission to ensure that interstate and intrastate telecommunications relay services were made available to hearing-impaired and speech-impaired individuals and gave all telecommunications carriers until July 1993 to implement TRS within their service areas. In response to this legislation, the Arkansas Public Service Commission initiated Docket No. 91-051-U to provide a forum for the local exchange carriers (LECs) to comply with the act.
Order No. 4 of Docket No. 91-051-U adopted the Arkansas Telecommunications Relay Center Service Rules (TRS Rules). The TRS Rules provided for the creation of a nonprofit corporation, Arkansas Relay Services, Inc. (ARSI), to administer TRS and to select a vendor to provide TRS in Arkansas. The TRS Rules also established a surcharge to be assessed on customer access lines and remitted to ARSI to fund TRS. The rules further provided that ARSI was to file a report before January 31 of each year to enable the Commission to evaluate the reasonableness of the TRS surcharge rate. In its annual report, ARSI was required to recommend whether the rate should be changed, to specify the rate it believed to be reasonable, and to explain the basis for its recommendation. The surcharge, initially established in July 1992, was twenty-five cents per month per access line. It was later reduced to fifteen cents per month per access line, and in 1994, the surcharge was zero.
ARSI’s 1994 report was filed in February 1995 and Docket No. 95-034-TF was thereby created. In May, ARSI petitioned the Commission to reinstitute the TRS surcharge on local telephone bills beginning August 1, 1995, and requested that the TRS surcharge be coordinated with the implementation of the surcharge established by Act 501 of 1995 to fund the Telecommu- ideations Device Distribution Program. In Order No. 8, the Commission responded that ARSI had no responsibility for the equipment surcharge mandated by Act 501 and that ARSI’s duties were limited to contracting for a TRS vendor and paying for that service with funds generated by the surcharge. ARSI then asked to be relieved of its duties if its role were limited to the ministerial tasks specified in Order No. 8.
In Order No. 13 entered September 8, 1995, the Commission notified the parties that since the operational TRS system was in place and in light of ARSI’s request to be relieved of its duties, it was the appropriate time for the Commission to relinquish its role in relay service operations to those charged by ADA with providing TRS. The Commission stated that it proposed to revoke the TRS Rules as of March 31, 1996, directed ARSI to give notice to MCI (the TRS vendor) that its contract for TRS would be terminated as of March 31, 1996, and notified the LECs that, thereafter, they with the assistance of other common carriers would be responsible for providing TRS in Arkansas, individually, collectively, or through a TRS vendor. The Commission further directed the staff of the Commission (Staff) to calculate the minimum surcharge necessary to fund TRS through March 31, 1996, and to file its recommended surcharge and surcharge termination date by September 19, 1995. The Commission also scheduled a public hearing on the revocation of TRS Rules, the provision of TRS, and the recommended surcharge and surcharge termination date.
After the public hearing, the Commission entered Order No. 15, which is the order being appealed. In this order, the Commission stated that the comments filed in response to its procedural schedule did not contest Staffs calculation of a five-cent-per-access-line TRS surcharge, although several parties had urged the Commission to permanently continue the surcharge; and that, based on Staffs recommendations and the comments received in response to Staffs recommendations, the LECs were directed to amend their tariffs to begin collecting a five-cent-per-line surcharge per month not to exceed four months. The order further provided that the per-line surcharge could not be collected from the ratepayers after March 31, 1996.
Appellants petitioned for rehearing and clarification of Order No. 15, challenging the Commission’s decision to terminate the surcharge after March 31, 1996. While their petition was pending, the Commission entered Order No. 18, which revoked the TRS Rules and relieved ARSI of its authority effective March 31, 1996. Order No. 18 further provided that all costs incurred by the common carriers in providing TRS after this date would be subject to recovery through the statutory ratemaking process. Appellants did not petition the Commission to rehear Order No. 18. Order No. 19 denied appellants’ petition to rehear and clarify Order No. 15, and this appeal of Order No. 15 followed.
Prior to the submission of this appeal, Act 1080 of 1997 was passed into law. Act 1080 created the Arkansas Deaf and Hearing Impaired Telecommunications Services Corporation to provide TRS and gave it authority to levy assessments on all providers of local exchange service in order to fund the services provided by the corporation. The Act further authorized the LECs to collect the assessment from their ratepayers. As a result of the passage of Act 1080, this court issued a per curiam order on September 10, 1997, asking the parties to file supplemental briefs discussing the impact of the passage of Act 1080 of 1997 on appellants’ appeal.
The Commission in its supplemental brief argues that the passage of Act 1080 renders appellants’ appeal moot because Act 1080 established a procedure for the recovery of costs associated with the provision of TRS outside of the regulatory process and did not make the recovery of these costs subject to Commission review. Appellants agree that their appeal is moot if Act 1080 is given retroactive effect and they are allowed to impose a surcharge to recover their costs of providing TRS during the period from April 1, 1996, until the date when the Act 1080 surcharge takes effect. Otherwise, they contend that their appeal is not moot because Order No. 15 eliminated the surcharge prior to the Act 1080 surcharge taking effect and, therefore, their rights were adversely affected by Order No. 15.
We agree with the Commission that appellants’ appeal of Order No. 15 is moot. The crux of appellants’ appeal complains of the Commission’s elimination of the TRS surcharge without providing them a means for concurrent rate relief for continuing to provide TRS except through the statutory ratemaking process. Act 1080 allows the local exchange providers to collect the assessment to fund TRS from its customers. Nevertheless, because an unpaid period still exists between the elimination of the Commission surcharge and the date appellants began assessing the Act 1080 surcharge, appellants continue to argue that they have been injured by Order No. 15.
An issue is moot when it has no legal effect on an existing controversy; it is one in which a decision of the court on appeal could not afford the appellant any relief. See Bryant v. Arkansas Pub. Serv. Comm’n, 45 Ark. App. 47, 870 S.W.2d 775 (1994). See also Dillon v. Twin City Bank, 325 Ark. 309, 924 S.W.2d 802 (1996). Here, our reversal of Order No. 15 would not afford appellants any relief. The TRS surcharge was zero at the time Order No. 15 was entered, and to reverse that order would eliminate the four-month five-cent surcharge and reinstate the zero surcharge. Order No. 18 not only revoked the TRS Rules that allowed ARSI to recommend a change in the TRS surcharge, but also completely relieved ARSI of its authority as of March 31, 1996; however, appellants have not appealed Order No. 18. Because appellants would not gain any relief by the reversal of Order No. 15, their appeal is moot. As a general rule, the appellate courts do not address moot issues. Dillon v. Twin City Bank, 325 Ark. at 312, 924 S.W.2d at 804. Although there are some exceptions, those exceptions do not apply here.
Appeal dismissed.
Robbins, C.J., Bird, Stroud, Jennings, and Roaf, JJ., agree. | [
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John E. Jennings, Judge.
Appellant Floyd H. Fulkerson appeals the Pulaski County Circuit Court’s judgment awarding title to a 4.5-acre parcel of real estate to appellee the Progressive Church, Inc. The church claimed title to the land by adverse possession. We reverse and remand.
The 4.5 acres at issue are situated in Pulaski County, near the town of Scott. The parcel is irregularly configured and has eleven sides. The northernmost part of the parcel abuts Old Highway 30 for approximately 115 feet. A single-story church building is situated near the highway. This building is the meeting place for appellee, the Progressive Church, Inc. When the litigation between the parties began, appellant Fulkerson had held legal tide to the parcel since December 1949. Sometime in 1985, the congregation of the Progressive Church, without obtaining permission from Fulkerson, began using the church building on the property as their place of worship. Over the next several years, the congregation greatly improved the church building itself and the surrounding land. Sometime in 1990, appellant Fulkerson began to negotiate with appellee Sylvester Van Burén, the pastor of the church, to reach an agreement whereby the church would lease the parcel from Fulkerson. Fulkerson and Reverend Van Burén were unable to negotiate a lease.
In November 1994, Fulkerson sent to Reverend Van Burén a letter demanding that he and the church congregation immediately vacate the church budding located on the parcel. The church did not vacate the premises. In May 1995, Fulkerson filed in Pulaski County Circuit Court a complaint in which he requested that the court eject the congregation from the church building and from the rest of the parcel at issue. Subsequently, appellant Fulkerson filed an amended complaint, naming as a defendant not only Reverend Van Burén but also the Progressive Church, Inc., in which he repeated his request for ejectment of the Progressive Church congregation from the parcel at issue. Reverend Van Burén and the church filed a response to Fulker-son’s amended complaint in which they requested that Fulkerson’s complaint be dismissed. Filed with this response was a counterclaim brought by the Progressive Church, Inc. In this counterclaim, the church asserted that it owned the parcel of land at issue by adverse possession and requested that the matter be transferred to chancery court to quiet title to the land after recognition of its ownership of the parcel. In October 1996, trial was held in Pulaski County Circuit Court in connection with Fulkerson’s complaint and the church’s counterclaim. After hearing testimony from witnesses presented by both parties, the circuit court subsequently caused to be entered a judgment in which the court determined that the Progressive Church owned the parcel of land by adverse possession.
The legal principles governing establishment of title to land by adverse possession are well established. We recently set forth these principles as follows:
It is well settled that, in order to establish tide by adverse possession, appellee had the burden of proving that she had been in possession of the property continuously for more than seven years and that her possession was visible, notorious, distinct, exclusive, hostile, and with intent to hold against the true owner. The proof required as to the extent of possession and dominion may vary according to the location and character of the land. It is ordinarily sufficient that the acts of ownership are of such a nature as one would exercise over her own property and would not exercise over that of another, and that the acts amount to such dominion over the land as to which it is reasonably adapted. Whether possession is adverse to the true owner is a question of fact. See Walker v. Hubbard, 31 Ark. App. 43, 787 S.W.2d 251 (1990); Hicks v. Flanagan, 30 Ark. App. 53, 782 S.W.2d 587 (1990).
Moses v. Dautartas, 53 Ark. App. 242, 244, 922 S.W.2d 345 (1996). Moreover, for a trespasser to establish title to land by adverse possession, the quantum of proof necessary is greater if the trespasser has no color of title. DeClerk v. Johnson, 268 Ark. 868, 870, 596 S.W.2d 359 (1980). A trespasser who claims ownership of land without color of title must show actual possession to the extent of the claimed boundaries for the required seven years. Id. However, it was not necessary for the church to have color of title in order to adversely possess the parcel of land at issue. See Barclay v. Tussey, 259 Ark. 238, 241, 532 S.W.2d 193 (1976). For possession to be adverse, it is only necessary that it be hostile in the sense that it is under a claim of right, title, or ownership as distinguished from possession in conformity with, recognition of, or subservience to the superior right of the holder of title to the land. Id. Possession of land will not ordinarily be presumed to be adverse, but rather subservient to the true owner of the land. See Dillaha v. Temple, 267 Ark. 793, 797, 590 S.W.2d 331 (1979). Therefore, mere possession of land is not enough to adversely possess the land, and there is every presumption that possession of land is in subordination to the holder of the legal title to the land. Id. The intention to hold adversely must be clear, distinct, and unequivocal. Id. Moreover, it is well settled that the trustees of a religious society may acquire title to real property by adverse possession. See Young v. Knox, 165 Ark. 129, 134, 263 S.W. 52 (1924). The standard of review requires that we affirm the trial court’s decision on a question of fact unless it is clearly against a preponderance of the evidence. Ark. R. Civ. P. 52(a); Superior Improvement Co. v. Mastic Corp., 270 Ark. 471, 604 S.W.2d 950 (1980).
The core of the church’s proof of adverse possession of the 4.5 acres at issue was provided by appellee, Reverend Sylvester Van Burén. As noted above, the intent required for adverse possession is the intention to claim the land at issue under right, title, or ownership as distinguished from possession in conformity with, recognition of, or subservience to the superior right of the true owner of the land. Barclay v. Tussey, 259 Ark. at 241. We conclude that Reverend Van Buren’s testimony shows that, from th.e time the congregation occupied the church building on the parcel until November 1994, the church congregation was unsure of the precise nature of its interest in the land and, moreover, recognized that Fulkerson owned the land.
On cross-examination, Reverend Van Burén testified that in 1990 or 1991 he first realized that the church did not have a deed to the land at issue. Fie testified further that, prior to this time, he made no assumptions about whether the church was on the land with permission or whether the church had purchased the land. Reverend Van Burén specifically stated in this regard, “I didn’t know how or what kind of possession they had.” In order to clarify the matter of the church’s right to occupy the land, Reverend Van Burén contacted appellant Fulkerson. He asked Fulkerson to give a quitclaim deed to the church, which Fulkerson refused to do. Reverend Van Burén testified further that, after Fulkerson told him that he (Fulkerson) held legal title to the land, he (Van Burén) “accepted that as a fact.” In this regard, Reverend Van Burén testified:
I had no way of knowing. I did some research on the layout of the land and saw where he had acquired the land from a relative somewhere’s . . . between 1940 and ‘59 or somewhere like that.
So I saw he acquired the land. And I saw no other records. During this time the courthouse was taken down and they had moved to another temporary location and everything they had was on microfilm and a lot of things wasn’t clear. But as far as I knew he clearly had possession. And this is after we had talked and all. And even some weeks before we went to court. That this took place which is just a couple of years ago. Last year rather.
With regard to the time at which the church congregation decided to claim the land at issue, Reverend Van Burén testified:
Once the term adverse had been positioned and he [Fulker-son] had caused us to be evicted or had asked us out of the church and we had no other alternatives. I just wondered what we should do. It wasn’t a decision that was made impulsively at that time. We made the decision that we wanted the land once we found out it wasn’t ours. And as far as adverse, adverse only came into play when no other avenue worked.
When asked whether this decision would have been reached in 1994 to 1995, Reverend Van Burén replied, “If you say so, that’s close.”
Given this testimony by Reverend Van Burén, given that a possessor of land does not possess adversely if, while in possession, he recognizes the ownership right of the titleholder to the land, and given that proof of the possessor’s intention to hold adversely must be clear, distinct, and unequivocal and must have lasted seven years, we conclude that the circuit court’s finding of fact that the congregation of the Progressive Church possessed for seven years the requisite intent to possess the land at issue adversely to appellant Fulkerson is clearly against the preponderance of the evidence. Because the church congregation did not possess the land with the requisite intent for seven years, the church congregation did not adversely possess the land.
For the reasons set forth above, we reverse the Pulaski County Circuit Court’s judgment in favor of appellee the Progressive Church, Inc., on its counterclaim for adverse possession, and remand to the circuit court for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Pittman, Bird, and Crabtree, JJ., agree.
Meads and Stroud, JJ., dissent.
This rule was changed by Act 776 of 1995, which included as additional requirements for establishing adverse possession that the person claiming must have held color of title to the property or to contiguous real property for at least seven years. See Ark. Code Ann. § 18-11-106 (Supp. 1997). | [
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Sam Bird, Judge.
Appellant Opal Jean McCoy was found guilty of robbery and sentenced to fifteen years in the Arkansas Department of Correction with five years suspended. On appeal she argues only that she was denied her inviolate right to trial by jury. We agree, and, therefore, reverse and remand for a new trial.
Appellant was charged with robbery after a shoplifting incident in which she allegedly threatened the store security associate with a sharp object in an attempt to escape apprehension and fought with a police officer who was trying to subdue and handcuff her. The record contains a document signed by appellant, dated and filed on February 18, 1997, entitled “Acknowledgment,” in which appellant stated that she had been advised by counsel that the State had offered a plea agreement and that she had turned it down. The last sentence of the document states, “That I have been advised by my attorney that it would be in my best interest to accept the plea bargain agreement, but that I decline to do so, and wish to go forward with my right to a jury trial.” In black fountain-pen-type ink the word “jury” is struck through with a line and the word “Bench” is written in cursive handwriting above it. The only issue on appeal is whether this clause in the last sentence of the “Acknowledgment” is sufficient to waive a jury trial.
The Arkansas Constitution, article 2, section 7, provides, “The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law.” A waiver is the intentional relinquishment of a known right. Johnson v. Zerbst, 304 U.S. 458 (1938); Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992); Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992); Reaser v. State, 47 Ark. App. 7, 883 S.W.2d 851 (1994); Duty v. State, 45 Ark. App. 1, 871 S.W.2d 400 (1994). For a waiver to exist, there must be a “voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered.” Duty, supra; Franklin and Reid v. State, 251 Ark. 223, 229, 471 S.W.2d 760, 764 (1971). Furthermore, the waiver of a jury trial must be knowingly, intelligently, and voluntarily made, and such must be demonstrated on the record or by the evidence. Duty, supra.
The Arkansas Rules of Criminal Procedure are explicit in what must be done for a defendant to waive a jury trial in order to ensure that she has knowingly, intelligently, and voluntarily waived her constitutional right to a trial by jury. Rule 31.1 provides that “[n]o defendant in any criminal cause may waive a trial by jury unless the waiver is assented to by the prosecuting attorney and approved by the court.” Rule 31.2 provides that a defendant who desires to waive his right to trial by jury, “may do so either (1) personally in writing or in open court, or (2) through counsel if the waiver is made in open court and in the presence of the defendant,” and a “verbatim record of any proceedings at which a defendant waives his right to a trial by jury in person or through counsel shall be made and preserved.” See Medlock v. State, 328 Ark. 229, 942 S.W.2d 861 (1997).
It is the trial court’s burden to ensure that, if there is to be a waiver, the defendant waives her right to trial by jury in accordance with the Arkansas Constitution and Rules of Criminal Procedure. Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690 (1995). Criminal cases that require a trial by jury must be so tried unless (1) waived by the defendant, (2) assented to by the prosecutor, and (3) approved by the court. The first two requirements are mandatory before the court has any discretion in the matter. Calnan, supra; Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986). The only way a defendant may waive the jury-trial right is by personally making an express declaration in writing or in open court. Calnan, supra. The denial of the right to a jury trial is a serious error for which the trial court should intervene and is an exception to the contemporaneous-objection rule. Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996).
There is absolutely nothing in the record in the instant case to indicate that appellant waived her right to a jury trial, that the prosecution even discussed the waiver of a jury trial with appellant, much less assented to it, or that any waiver was approved by the court. Appellant had a discussion with the trial judge about the “Acknowledgment,” and admitted that she had signed it. She complained to the judge that she had not had adequate time to ponder the plea offers referred to in the “Acknowledgment” and did not have sufficient time with her attorney to obtain answers to all her questions. But there was no discussion at all about the last sentence in the document, or whether, by striking through the word “jury” and writing in the word “bench,” appellant intended to waive a jury trial. In fact, the record is silent as to whether that alteration had been made when appellant was discussing the document with the judge. The trial judge never asked appellant if she really intended to waive her right to a jury trial or inquired as to whether she had waived a jury knowingly, intelligently, and voluntarily. The “Acknowledgment” document that appellant signed was obviously not prepared for the express purpose of waiving a jury trial, and we cannot accept such a casual reference to appellant’s wish “to go forward with my right to a bench trial” as the making of an express, knowing, intelligent, and voluntary waiver of such a fundamental and important constitutional right.
Reversed and remanded for new trial.
Meads and Roaf, JJ., agree. | [
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D. Franklin Arey, III, Judge.
This appeal challenges the Workers’ Compensation Commission’s determination that the appellee, Phyllis Hart, suffered a compensable injury. Appellants argue that the Commission’s finding of a compensable injury is not supported by “objective findings” as required by Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1996). They also argue that the Commission’s finding that appellee suffered a compensable injury in the course and scope of her employment is not supported by substantial evidence. We affirm the Commission on both points.
Both issues presented by appellants question whether substantial evidence supports the Commission’s finding.
In reviewing appeals from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences therefrom in the light most favorable to the Commission’s decision and affirm that decision when it is supported by substantial evidence. Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. The Commission’s decision will be affirmed unless fair-minded persons presented with the same facts could not have arrived at the conclusion reached by the Commission.
Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 384-85, 944 S.W.2d 524, 526 (1997)(citations omitted); see City of Blytheville v. McCormick, 56 Ark. App. 149, 939 S.W.2d 855 (1997). “The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo.” City of Blytheville, 56 Ark. App. at 152, 939 S.W.2d at 856.
In making our review, we recognize that it is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Whaley v. Hardee’s, 51 Ark. App. 166, 912 S.W.2d 14 (1995). The Commission has the duty of weighing medical evidence and, if the evidence is conflicting, its resolution is a question of fact for the Commission. Id. 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. Id.
Appellee was employed as a nursing assistant at UAMS. Her duties included clerical work, answering phones, putting out linens, and making surgical packs. At the hearing before the Administrative Law Judge, she testified that on November 15, 1995, while lifting linens she sustained a back injury causing her to experience pain in her right shoulder, neck, and upper back. There were no witnesses to the injury. She was seen at the emergency room at UAMS on November 15, and she was diagnosed with a back strain. At the time of the injury she was five and one-half months pregnant; because of her pregnancy, extensive diagnostic testing could not be performed.
Appellee was seen by Dr. Teresa Maxwell in a follow-up on November 28. The medical record indicates:
It was unclear the etiology of her pain [on November 15]. However, it appeared to be more trapezius and upper shoulder tightness.
She comes in today for follow-up, without any improvements at all.
On PE today, she is afebrile. Her VS are stable. She still walked and moved her head very slowly. Had problems sitting for any length of time on the exam table. Said that she did better in a regular chair without support.
However, it was noted on exam that she seemed to have no problems nodding her head “yes” or “no” answering questions, than the effort put forth while trying to test her cranial nerves.
She didn’t seem to have any shoulder impingement. And had a lot of pain when the midline spine was palpated from C-3/4 all the way down to the coccyx on palpation.
The December 5, 1995 follow-up examination with Dr. Maxwell revealed the following:
PE today is unchanged. She still complains of pain all the way down the midline spine to palpation as well as in the trapezes and the neck muscles. However, noted when walking in she can turn her head just fine and answer questions.
Dr. Maxwell diagnosed thoraco-lumbar strain.
Appellee was examined by Dr. Derek Lewis on December 22, 1995; she complained of pain in her right arm, shoulder, and back. Dr. Lewis reported that appellee suffered neck and back spasms. An earlier medical report dated December 6, 1995, also notes a diagnosis of positive spasms and lumbar strain.
On January 8, 1996, the appellee was examined by Dr. J.K. Smelz, an assistant professor with UAMS. Dr. Smelz noted in her physical examination that the appellee expressed symptoms of myofascial pain syndrome. Dr. Smelz was unable to determine whether the myofascial pain was secondary to an underlying problem. Due to the pregnancy, X-rays, CT scans, and MRIs could not be performed. However, Dr. Smelz did order a nerve conduction test to be performed, which was within normal limits. In a letter dated March 1, 1996, Dr. Smelz remarked that appellee did have some very mild muscle spasms in her shoulder girdle muscles at the January 8, 1996 examination; these were no longer present during a repeat examination on January 31, 1996.
In an April 22, 1996 letter, Dr. Lewis stated that the appellee presented to his office on December 22, 1995, with complaints of neck, back, shoulder, and arm pain. Dr. Lewis noted that “[ujnfortunately, this patient was pregnant at the time which pre vented us from doing any type of X-ray studies which also hampered us from establishing ‘objective findings’ other than the exam.” Dr. Lewis again noted that his examination on that date did reveal back and neck spasms.
The Commission affirmed the decision of the Administrative Law Judge, and adopted her opinion as its own. The ALJ found that appellee sustained a compensable injury caused by a specific incident, “supported by objective findings (muscle spasm). . . The ALJ “noted that [the] general practitioner, Dr. Lewis, is the only physician who supports the claimant’s position that this minor injury caused debilitating muscle spasm. ... It is clear that Drs. Maxwell and Hunt felt the claimant’s symptoms were out of proportion to her history of injury and clinical examination. ...”
Appellants first argue that appellee’s injury was not supported by objective findings. They contend that the muscle spasms were under her voluntary control, and point to Dr. Lewis’s statement that the spasms were “50%” under patient control in support of this contention.
To be compensable, appellee’s injury to her back had to be established by medical evidence, supported by “objective findings.” Ark. Code Ann. § 11 — 9—102(5)(A) (i) provides in pertinent part:
(A) “Compensable injury” means:
(i) An accidental injury causing internal or external physical harm to the body. . . arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence. . . .
Ark. Code Ann. § U-9-102(5)(D) provides that a compensable injury must be established by medical evidence, supported by “objective findings” as defined in § 11-9-102(16). “Objective findings” are defined as findings that cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9— 102(16) (A)(i); see Cox v. CFSI Temp. Employment, 57 Ark. App. 310, 944 S.W.2d 856 (1997); Daniel v. Firestone Bldg. Prods., 57 Ark. App. 123, 942 S.W.2d 277 (1997).
Dr. Lewis’s examination of appellee revealed back and neck spasms. Appellee cites us to the following definition of “spasm”:
1. An involuntary muscular contraction. ... 2. Increased muscular tension and shortness which cannot be released voluntarily and which prevent lengthening of the muscles involved; [spasm] is due to pain stimuli to the lower motor neuron.
Stedman’s Medical Dictionary 1304 (23d ed. 1976). Dr. Lewis agreed that muscle spasms are out of the voluntary control of the patient, although he did state that “50%” was “objective” and “50%” was under patient control.
Substantial evidence supports the determination that appellee’s muscle spasms constitute “objective findings” in support of her claim of a compensable injury. Upon examination of appellee, Dr. Lewis observed back and neck spasms. This observation of “[a]n involuntary muscular contraction” or “[i]ncreased muscular tension and shortness which cannot be released voluntarily” constitutes an objective finding. See Daniel, 57 Ark. App. at 125, 942 S.W.2d at 278 (finding that a physician’s direct observation of a fibrous mass, upon physical examination of the claimant, constitutes an objective finding pursuant to § 11-9-102(16)).
While there was medical evidence to the contrary of Dr. Lewis’s observation and testimony, the resolution of this conflict was a question of fact for the Commission. Given the substantial nature of Dr. Lewis’s testimony, we cannot reverse the Commission’s decision to accept Dr. Lewis’s testimony. See City of Blytheville, 56 Ark. App. at 155, 939 S.W.2d at 858.
Appellants also question whether appellee suffered a com-pensable injury in the course and scope of her employment. They note inconsistent statements, and that no one witnessed the appel-lee’s accident. They suggest that appellee’s testimony is not credible in fight of perceived exaggerations and inconsistent statements.
The appellee testified that she had been physically healthy. She testified that she participated in races until she discovered she was pregnant in August of 1995. In September 1995, appellee brought a fight duty release from her obstetrician, and her coworkers were told to assist her in lifting. The evidence indicates that she had complained of leg problems in the past, but had not complained of back, neck, or shoulder pain until the injury in November 1995.
Following her injury, appellee attempted to return to work. She testified that she did not feel that her supervisor was cooperative in providing light duty. Appellee’s supervisor, Nina West-brook, testified that she tried to accommodate appellee in every way, not only for the work-related injury but also because of her pregnancy. Appellee returned to work on December 5, 1995, with a fifteen-pound lifting restriction that was later reduced to five pounds on December 11, 1995, and to two pounds on January 24, 1996. Ms. Westbrook testified that she literally weighed on a scale all of the objects that appellee might have to lift while at work to get an idea of what tasks appellee could perform.
Appellee was a member of the United States Army Reserve; her duties involved paper work associated with the soldiers’ physicals and medical records. She testified that she injured her leg in 1991 when she fell down some stairs while stationed in Germany. She was diagnosed with tendonitis and stress fractures in her legs, but an EMG nerve conduction study proved normal. She further testified that after her November 15, 1995, injury she signed in for army duty but got permission to leave because of her injury.
Nicole Bogard testified that she was a captain in the army and was appellee’s immediate supervisor. She testified that, to the best of her recollection, appellee was in attendance for the drill conducted on November 18 and 19, 1995. Captain Bogard could not recall exactly what tasks appellee performed that weekend; however, she stated that it was probably administrative work because she was prevented from lifting anything heavy due to her pregnancy. Appellee did not complain to her of any prior physical problems before sustaining the back injury in November 1995. Appellee missed the drill in December, which Captain Bogard assumed was related to her pregnancy. Captain Bogard noted that when she saw her again in January 1996, appellee mentioned her back injury.
The insurance adjuster, Davis Taylor, testified that her decision to deny the claim stemmed from a lack of objective findings in the medical records, a conflicting statement from appellee that indicated her last Army drill was the weekend of October 27 through the 29, and the conflicting statement from a witness who did not recall that appellee was crying after the work-related injury.
Credibility of the witnesses is a matter exclusively within the province of the Commission. Gansky v. Hi-Tech Eng’g, 325 Ark. 163, 924 S.W.2d 790 (1996). Based upon the foregoing testimony, the ALJ determined that appellee suffered a compensable injury arising out of and in the course of her employment. The ALJ noted that “[t]here is no evidence the [appellee] sustained other upper back injuries in the Army.” Because a reasonable person could accept this evidence as adequate to support the Commission’s decision, we affirm.
Affirmed.
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John E. Jennings, Judge.
Fred Davis was found guilty of delivery of a controlled substance (cocaine) and sentenced to thirty years in the Arkansas Department of Correction. He argues three points on appeal: (1) that the trial court committed prejudicial error by not granting his challenge for cause, thereby forcing him to use a peremptory challenge against that juror and forcing him to accept a juror he did not want; (2) that the trial court committed prejudicial error by refusing to grant a mistrial after the State’s witness referred to appellant as a “bigger dealer”; and (3) that the trial court committed prejudicial error by allowing the State to present, over defense’s objection, evidence of prior uncharged misconduct by the appellant. We disagree and affirm.
Appellant first argues that the trial court erred in refusing to strike prospective juror Pat Compton for cause. During voir dire, Ms. Compton stated that she was currendy employed as a law clerk for a United States Magistrate but before that she was Chief Deputy Prosecutor for Union County. In that capacity she had prosecuted some drug cases and had sat as “second chair” on occasional cases with the prosecutor in this case. She had worked with Officer Linda Law, a witness in this case. She acknowledged that she had a fairly long association with the El Dorado Police Department and the Union County Sheriffs Office, and had a close association with officers in both places. Defense counsel’s motion that she be removed for cause was denied by the trial court. Ms. Compton then stated that she considered the defendant not guilty unless the State met the burden of proving otherwise, and that her friendship with police officers did not make her more likely to believe their testimony. Defense counsel then used the seventh of his eight peremptory strikes against Ms. Compton. After defense counsel used his eighth and last peremptory strike, he subsequently attempted to excuse another juror, Donald Moon, but was not allowed to do so. He did not challenge juror Moon for cause.
Appellant argues that since he objected to the trial court’s refusal to strike Ms. Compton for cause and exhausted all of his peremptory challenges, it follows that prejudicial error was committed. We disagree.
The Arkansas Supreme Court has stated unequivocally that in deciding whether a defendant’s right to an impartial jury has been violated, the focus should not be on a juror who was peremptorily challenged, but on the persons who actually sat on the jury. Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990) (citing Ross v. Oklahoma, 487 U.S. 81 (1988)).- In that case, as in the case at bar, appellant did not contend that any person who actually sat on the jury should have been excluded for cause; rather, the only complaint was the loss of peremptory challenges, which is not reversible error. Id. Furthermore, our supreme court has held that the loss of peremptory challenges cannot be reviewed on appeal. Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996). To preserve for appeal an argument that the trial court erred in not excusing certain jurors for cause, the appellant must have exhausted his peremptory challenges and must show that he was later forced to accept a juror who should have been excused for cause. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988); see also Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982).
Appellant argues, in reliance upon Glover v. State, 248 Ark. 1260, 455 S.W.2d 670 (1970), that our focus on appeal should not be on whether Juror Moon should have been excused for cause, but whether Ms. Compton should have been excused for cause. He argues that the standard enunciated in Scherrer does not address the real issue and is not in accordance with earlier Arkansas case law. He urges us to reaffirm the procedure followed in Glover and hold that “an appellant preserves a denial of a challenge for cause for appeal when he peremptorily challenges the juror who was not excused for cause, uses all his peremptory challenges, and states on the record that he would have challenged another juror if he had not been required to use his peremptory challenge against the juror who should have been excused for cause.” Such a holding would require us to disregard considerable recent precedent to the contrary. Furthermore, to the extent that this court’s opinion in Givens v. State, 42 Ark. App. 173, 856 S.W.2d 33 (1993), could be read as contrary to the decisions of the supreme court, it is overruled.
For his second point on appeal, appellant argues that the trial court erred in refusing to grant a mistrial. Mistrial is a drastic remedy which should be resorted to only when there has been error so prejudicial that justice cannot be served by continuing the trial. Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996). A trial judge’s denial of a mistrial will be not disturbed on appeal absent an abuse of discretion. Id.
Evidence revealed that police officer Linda Law was in charge of this case. Delbert Mathis, an informant, was working with undercover officer David Fields in order to purchase drugs. They drove to an area of El Dorado known as Memphis Heights. Anthony Hicks approached the car. The informant told Hicks he wanted a “forty,” meaning two rocks of crack cocaine. Hicks went to the back of a nearby residence where appellant was sitting on the porch. Appellant gave the crack to Hicks, who returned to the car and handed it to the informant in exchange for forty dollars. Hicks then returned to the porch and gave the money to appellant. On direct examination, Linda Law testified about how these undercover operations are structured, and about the necessity of using informants as intermediaries because “the larger players will not sell dope to a complete stranger.” In describing how informants are paid, she testified that in this case “Mathis might have gotten paid a little more” because “we had been wanting to get this defendant.” She testified that an informant is interviewed to determine who he knows and what he can do in order to “start off with the biggest player he can help us get.” She testified that informant Mathis had mentioned appellant in the interview. On cross-examination, she testified that appellant had been “targeted” after being brought up in the informant’s interview. When asked whether the informant “might have gotten paid more because he managed to get something on [appellant],” officer Law replied, “Not just on [appellant], but [appellant’s] a bigger player than the street dealer.” Defense counsel objected, moved to strike, and moved for a mistrial, arguing that the witness’s response made improper reference to character or reputation. The prosecutor responded that the reference to “bigger player” meant that, compared to Hicks, who had actually approached the car, appellant was the “bigger player.” The trial court denied the motion for mistrial, and instead, at defense counsel’s request, admonished the jury that appellant was only being tried for the one offense.
Appellant argues that allowing the witness to describe him as a “bigger player” is essentially the same as telling the jury that appellant had been involved in other instances of drug dealing. He argues that the statement was so prejudicial that it could not be corrected by the admonition. We disagree. Defense counsel elicited a response that, even if categorized as a reference to previous illegal conduct, was one that could be cured by a proper admonishment from the trial court. See e.g., Hall v. State, 314 Ark. 402, 862 S.W.2d 268 (1993). We find no abuse of discretion by the trial court.
For his last point, appellant argues that the trial court erred in allowing the State to present evidence during sentencing of prior uncharged misconduct by appellant. During the sentencing phase of the trial, appellant sought to exclude testimony offered by the State regarding prior drug sales. The State argued that the evidence should be admitted pursuant to Ark. Code Ann. § 16-97-103 (Supp. 1995), as either aggravating circumstances or as relevant character evidence. The trial court allowed the evidence, which consisted of testimony from Donald Dismuke that he had bought $100.00 worth of crack from appellant and that he had seen appellant sell crack on other occasions. Mike Wilson testified that, while working with the prosecutor’s office, he had driven into El Dorado and Dismuke had approached his car. When asked if he had any drugs, Dismuke went over to appellant, obtained drugs, and brought them back to the car and exchanged them for money. Appellant argues that this evidence was improper and that its admission was prejudicial error.
Arkansas Code Annotated section 16-97-103 allows for the introduction of evidence relevant to sentencing, including evi dence of aggravating circumstances. The supreme court has addressed the meaning of “aggravation” in the context of this statute in Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994). There, after the defendant pled guilty to robbery, the State was allowed to introduce testimony during sentencing regarding the defendant’s prior attempt to rob the same victim. The court held that such testimony clearly met the definition of “aggravation,” meaning “any circumstance attending the commission of a crime . . . which increases its guilt or enormity or adds to its injurious consequences, but which is above and beyond the essential constituents of the crime . . . itself.”
The same can be said for the evidence presented by the State in the case at bar. While appellant’s conviction for delivery of a controlled substance involved a relatively small amount of the drug, the State’s evidence showed that the transaction was not an isolated incident; rather, it showed that appellant engaged in similar transactions with different intermediaries and buyers. Like the court in Hill, the trial court could consider these “circumstances attending the commission of a crime” to be the type that “increases its guilt or enormity or adds to its injurious consequences.” The trial court has wide discretion in admitting evidence of other crimes or wrongs, and its decision will be not reversed absent an abuse of discretion. Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994).
Because we find no error, the judgment is affirmed.
Affirmed.
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John Mauzy Pittman, Judge.
Nationwide Mutual Fire Insurance Company has appealed from an order granting a new trial in appellee Elaine Bryson’s action to recover on a fire insurance policy issued by appellant. At trial, appellant defended appel-lee’s claim on the ground that the property had burned as a result of arson caused by appellee or by someone on her behalf. The jury returned a verdict for appellant. The circuit judge set the verdict aside as clearly against the preponderance of the evidence. Because we agree with appellant that the circuit judge abused his discretion, we reverse.
From about November 1994 until February 1996, appellant rented a house she owned in Van Burén to Leslie and Roland Fohren. Appellee had a fire insurance policy with appellant in the amount of $44,000 on the property. The policy excluded any intentional loss arising out of any act committed by or at the direction of appellee with the intent to cause a loss. The policy also did not protect against loss caused by constant water seepage over a period of weeks, months, or years. On February 22, 1996, the Fohrens moved out of the house, after having notified appellee a week or so before that they were leaving. Early the next morning, the house burned. Appellant’s investigation of the fire revealed that traces of an accelerant were present in the house and that the burn patterns indicated arson. The investigation also showed that, before the fire, a substantial portion of the flooring had needed to be replaced because of rot caused by water leakage. When appellant denied appellee’s claim, appellee sued appellant.
Appellant stipulated that the policy was in full effect at the time of the fire and that the house was a total loss. Appellee did not dispute the overwhelming evidence that the fire had been caused by arson; instead, she contended that there was no evidence linking her to the fire.
Appellant presented extensive evidence that the fire was caused by a flammable liquid placed at floor level, which was ignited. Appellant also proved that, before the fire, the house had needed substantial repairs to the flooring. It also introduced evidence that appellee had knowledge of this extensive water damage and that she was also aware that the fire insurance on the dwelling was still in effect. Appellant also presented evidence that appellee and Kenneth Storment had access to the house immediately prior to the fire.
Appellee especially disputed the evidence introduced by appellant that she had knowledge before the fire of the extent of the damage to the flooring. Appellee testified that, after she knew that the Fohrens were vacating the premises, she made plans to rent the house to another individual. She denied knowing that the floors were in bad shape, although she admitted that she had purchased a new water heater for the house, which Mr. Fohren had installed in December of 1995 after the Fohrens had notified her that the hot water tank was leaking. She admitted that she had known that the kitchen floor was mushy around the leaking hot water tank but denied knowing how big the problem was. She denied knowing that Mr. Fohren had attempted to brace the floor and stated that the Fohrens had never told her about any other damage to it. She stated that she had not known that it would take between $15,000 and $30,000 to repair the house and denied having made statements to that effect.
Appellee testified that she and Kenneth Storment, who lived with her, were awakened at 2:00 a.m. on February 23, 1996, by a telephone call from her sister, who said that the house was on fire. Appellee stated that, after staying at the scene while the firemen put out the fire, she went home to get the insurance policy to be sure that it was in effect; she knew it was about time for a premium notice to be sent out. She stated that, after she found the policy and saw that it had expired on January 23, 1996, she cried. She denied having received a premium notice. Appellee testified that, on the afternoon of February 23, she asked Ms. Fohren if she had received any premium notices from appellant; Ms. Fohren then brought her an envelope from appellant which contained a notice of cancellation dated February 20 which had been mailed to the rental house. According to this notice, the policy would be canceled at 12:01 a.m. on March 5 for nonpayment of the premium. In response to the question whether the Fohrens, at appel-lee’s request, had left the keys in the house on the afternoon of the 22nd, appellee testified that Ms. Fohren had brought her the keys at the same time she brought the cancellation notice.
Appellee also testified that she is the sole owner of the house and had paid off the mortgage long ago. Appellee said that, at the time of the fire, she was not working; her income consisted of $275 per month from the rental of a mobile home, $400 per month for rental of the house that burned, and $500 per month rent from Mr. Storment. Explaining their relationship, appellee stated that, although Mr. Storment is a married man, he has rented a room from her for almost twenty years. She stated that, if she had known that the house had needed such extensive repairs, she would have had to take out a mortgage on the house to pay for them. Appellee testified further that, at her request, Mr. Storment had gone to the house on the afternoon of February 22 to see if the Fohrens had completed the move.
Kenneth Storment testified that he went by the house the afternoon before it burned because appellee had asked him to see if the renters had moved out. He stated that, when he arrived there, the garage door was up and the front door was unlocked; no one answered his call, knock, or doorbell ring. When no one answered him, he said, he opened the screen door and walked through the house and the garage. No one was in the house, he stated, although there were some items remaining in the garage. He testified that he had picked up a new hot water tank for the house but did not know that the flooring was seriously damaged. He stated that he did not have a key to the house.
Reverend Claude Blount, who lives next door to the house that burned, testified that he noticed that the house was on fire at about 1:00 in the morning. He testified that he did not know that the Fohrens had moved and was concerned that they might be inside the house. He stated that, when he attempted to alert the Fohrens, he noticed that the front door was closed, none of the windows were open, and the garage door was down.
Appellee asserted that, at the time of the fire, she did not even know if she had insurance on the house. Richard Russell Organ, an insurance agent for appellant, testified that appellee had requested that all insurance information continue to be sent to the house that burned. He stated that, although the original policy period was from January 23, 1995, to January 23, 1996, appellant had extended the policy because it erroneously had sent return envelopes with the wrong lockbox number to policy holders in this geographical area; therefore, a lot of payments were sent to the wrong address. He stated that, when appellant became aware of the error, all policy holders in this geographical area were given an extension of their coverage, regardless of whether their money had been received, until a date in March; this notice was prepared on February 20, 1996.
Leslie Fohren testified that she had realized there was a water leak problem when one end of their couch started falling through the floor. She stated that she had brought this to appellee’s attention and had called her several times to inform her that they heard water running. According to Ms. Fohren, appellee and Mr. Storment told the Fohrens how to cut a hole in the floor and to repair the sub-floor. She stated that her husband had done this work. She was clear that appellee and Mr. Storment had come to the house and viewed the damage to the floor and, in fact, had brought tools over to assist in the repairs. Ms. Fohren stated that the new water heater also leaked. According to Ms. Fohren, when they started moving out, appellee came over and took another look at the floor in the front room; when appellee saw that the new water heater was also leaking, she got mad “and said that didn’t [Mr. Fohren] know how to do anything right, and she didn’t know anyone so stupid, and that he’d better not ever come back over on her property, and that she was going to drive up and down the road every fifteen to twenty minutes, and if he’s out there, she’s going to stop and shoot him.” In response to the question whether appellee said anything about how much it would cost to fix the house, Ms. Fohren replied: “Yes, she said it was around twenty to thirty thousand dollars to repair it.” With regard to the keys, Ms. Fohren stated that, when she had taken some keys to appellee, appellee had instructed her to leave the duplicate keys in the possession of her husband and children on the kitchen counter and to leave the door unlocked. Therefore, she stated, on the afternoon of February 22, the keys were at the house and the door was unlocked. She denied giving the keys to appellee on the day after the fire.
Regarding appellee’s notice of the policy’s cancellation on March 5, Ms. Fohren testified that she had brought the notice of cancellation to appellee the day after the fire and that she had also given appellee some correspondence from appellant a month or two before that.
Roland Fohren affirmed that he had installed the new water heater that appellee and Mr. Storment had brought over and that he had attempted to repair the floor and sub-floor. He stated that he cut away some rotted flooring in the living room on the other side of the wall by the water heater; the floor joists, however, were rotten so far back that he could not properly replace them. The only thing he could do, he said, was to put a patch over the floor. He stated that there were gaps between the floor and the walls in the kitchen and the living room. He also testified that appellee and Mr. Storment had brought tools over and that appellee had seen the hole he had cut in the floor.
Joe Free, a fire and water restoration contractor, testified that he had prepared an estimate of $14,313.94 in repairs that would have been necessary to repair only the preexisting water damage.
At the conclusion of the trial, the jury returned a verdict in favor of appellant. After judgment on the verdict was entered, appellee moved for a new trial pursuant to Ark. R. Civ. P. 59(a)(6). In her accompanying brief, appellee did not deny that the house had burned by the use of accelerants or that the fire was not accidental. Appellee simply argued that there was no evidence in the record that she, or someone at her direction, had burned the house. The circuit judge agreed and, in his order granting a new trial, stated:
2. The [appellant], insuror, proved by a preponderance of the evidence that the fire that burned the [appellee], insured’s, house was intentionally set by someone, or was arson and was of an incendiary nature by use of an accelerant. In fact, the evidence of an intentionally set fire to burn the house was overwhelming.
3. The [appellant], insuror, has failed to prove by a preponderance of the circumstantial or direct evidence that the [appellee], insured, set fire or caused the house to be burned. The only credible evidence linking the [appellee] to the fire was that she was the only person to have a financial interest in the burned rent house and would be the only person to benefit or suffer damages if the house burned. This is not enough direct or circumstantial evidence to prove this element.
Appellant argues on appeal that the circuit judge abused his discretion in setting aside the jury verdict and in granting appellee’s motion for new trial. Rule 59(a)(6) of the Arkansas Rules of Civil Procedure provides that a new trial may be granted to all or any of the parties on all or part of the issues on the application of the party aggrieved when the verdict or decision is clearly against the preponderance of the evidence. While the trial court has some discretion in setting aside a jury verdict, there is no longer the broad discretion that the supreme court formerly recognized. Ray v. Green, 310 Ark. 571, 839 S.W.2d 515 (1992). The trial court has limited discretion in the matter, as it may not substitute its view of the evidence for the jury’s except when the verdict is clearly against the preponderance of the evidence. Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996); see Collins v. Treadwell, 54 Ark. App. 100, 923 S.W.2d 882 (1996). The test this court applies in reviewing the trial court’s granting of a motion for new trial is whether the judge abused his discretion; a showing of abuse of discretion is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Young v. Honeycutt, supra; Richardson v. Flanery, 316 Ark. 310, 871 S.W.2d 589 (1994). The supreme court has described this standard as requiring a showing of “clear” or “manifest” abuse of discretion by acting improvidendy or thoughtlessly without due consideration. See Young v. Honeycutt, supra; Razorback Cab of Fort Smith, Inc. v. Martin, 313 Ark. 445, 856 S.W.2d 2 (1993).
Appellant admits that a mere showing of arson does not automatically relieve the insurer from liability under a fire policy excluding loss caused by the insured but points out that the insurer may prove that the insured set the fire or caused the house to be burned by circumstantial evidence. Citing Haynes v. Farm Bureau Mutual Insurance Co. of Arkansas, Inc., 11 Ark. App. 289, 669 S.W.2d 511 (1984), appellant contends that the appellate courts of Arkansas have declared that circumstantial evidence that is sufficient to warrant a jury in drawing a reasonable inference that the insured was the author of a fire is sufficient to sustain a verdict in favor of the insurer. In that case, we affirmed the circuit court’s refusal to grant a judgment notwithstanding the verdict. Margie Haynes and Clayton Haynes were divorced in 1979 and, by the terms of their court-approved property settlement agreement, Clayton was obligated to convey his interest in their former residence to Margie free of a $90,000 mortgage indebtedness. After he failed to do so, contempt proceedings were initiated. In July of 1981, the dwelling was totally destroyed in a fire that all parties conceded was of incendiary origin. Farm Bureau, which had in force a fire insurance policy in Clayton Haynes’s name in the amount of $103,000, denied liability on the ground that the fire was the result of Clayton’s unlawful acts either in setting the fire or causing it to be set. The jury found that the fire loss had resulted from Clayton’s unlawful acts.
The Hayneses appealed from the judgment entered in favor of Farm Bureau and argued that the trial court erred in denying their motion for judgment notwithstanding the verdict. We stated:
There are ordinarily no eye witnesses to an act of arson because the deliberate burning of an insured building by its owner is usually accomplished alone and in secret. Any material fact in issue, however, may be established by circumstantial evidence even though the testimony of other witnesses may be undisputed. The fact that evidence is circumstantial does not render it insubstantial as our law makes no distinction between direct evidence of a fact and circumstances from which it might be inferred. The circumstances may be such that different minds can reasonably draw different conclusions from them without resort to speculation. Where there are facts and circumstances in evidence from which reasonable minds might reach different conclusions without resort to speculation the matter is an issue of fact which must be submitted to the jury for its determination. Farmers Ins. Exchange v. Staples, 8 Ark. App. 224, 650 S.W.2d 244 (1983).
We agree that a mere showing of arson does not automatically relieve the insurer from liability under a fire policy excluding loss caused by the insured. It is also necessary to prove by direct or circumstantial evidence that the insured set the fire or caused the house to be burned. Our court on many occasions has declared that circumstantial evidence which is sufficient to warrant a jury in drawing a reasonable inference that the insured was the author of a fire is sufficient to sustain a verdict in favor of the insurer. Rankin v. Nat’l Lib. Ins. Co. of America, 188 Ark. 195, 65 S.W.2d 17 (1933).
11 Ark. App. at 292, 669 S.W.2d at 513.
We then reviewed the evidence demonstrating Clayton’s motive for burning the house:
In 1979 Clayton Haynes had obligated himself in a property settlement approved and enforced by the chancery court to convey this dwelling to Margie free of the $90,000 mortgage by January 1, 1980. He failed to discharge the indebtedness by that date or to convey the property to her. It was shown that he did not have sufficient cash to liquidate the mortgage as he was then having “cash flow problems.” Contempt proceedings were instituted against him but an agreed extension of time until August 1, 1981 was set for his compliance.
Under the terms of the divorce settlement Clayton was obligated to maintain insurance on the premises. Six or seven months before the fire he directed the insurance agent to issue the policy in his name only. This coverage was cancelled on or about the 1st of July, 1981, and from that date until the night before the fire on July 21st there was no insurance coverage on the house. Although Clayton denied that he had knowledge of this cancellation, there was testimony from an employee of the insurance agency that Clayton was previously aware of the cancellation and came to her house on July 20th, the night before the fire, to give her a check in order to reinstate the policy. At the time of the fire Clayton had had only nine days remaining in which to liquidate a $90,000 mortgage on the house and he did not have the money to accomplish it because he had “cash flow problems.” There was outstanding a court order for him to appear and show cause why he had not done so. A jury could easily infer that he had a motive for the burning of the house and there is nothing in the record to disclose that anyone else did. Westchester Fire Ins. Co. v. Tidwell, 199 Ark. 621, 135 S.W.2d 842 (1940).
11 Ark. App. at 292-93, 669 S.W.2d at 514.
We also discussed Clayton’s opportunity to burn the house:
It was also established that the fire was first observed around 11:00 p.m. on June 21st. Haynes admitted that he had been at the house during the day to leave Margie’s car there but had left before noon and had not returned. He stated that he had gone from there to attend a wedding in Texas. There was evidence that although Clayton went to Texas he had told people that he was going to Florida because he didn’t want Margie to know where he was. At the time of the fire, although Margie was in possession of the house, Clayton had a key and had complete access to the house and went there frequently. Margie was attending school in Bastrop, Louisiana, and staying with her friends there during the week and their daughter was away at school in another state, leaving the house empty. Although Clayton offered evidence tending to prove that he was not in the State of Arkansas at the time the fire was first discovered, the jury was not required to accept that evidence if it did not find it credible. There were a number of things in the testimony about Clayton’s trip to Texas which might have easily caused the jury to question the complete veracity or purpose of this testimony. Our court has recognized that a trier of fact may know that an arsonist need not necessarily be personally present at the time the flash of the fire is observed because there are methods by which one can time the origin of an incendiary fire. Garmon v. The Home Ins. Co. of New York, 197 Ark. 1102, 126 S.W.2d 621 (1939).
11 Ark. App. at 293-94, 669 S.W.2d at 514.
As we stated in Farmers Insurance Exchange v. Staples, 8 Ark. App. 224, 650 S.W.2d 244 (1983), in a case such as this, where the deliberate burning of an insured building is in issue, any evidence tending to show a motive or opportunity is admissible, and any material fact in issue may be established by circumstantial evidence from which it can be inferred. Accord Thomas v. Allstate Ins. Co., 27 Ark. App. 27, 766 S.W.2d 31 (1989).
In our view, the case before us is analogous to Haynes v. Farm Bureau. It is true that, in Haynes, the trial judge did not grant the judgment notwithstanding the verdict; here, the trial judge set the verdict aside and granted appellee a new trial. We are cognizant that on appellate review in a case such as this, we only reverse if the trial judge abused his discretion. Nevertheless, the evidence that the jury heard in Haynes was no less compelling than that before the jury in this case. According to appellee’s own testimony, appellee did not worry that she had no insurance coverage on the house until after the fire, when she looked at the policy. The jury obviously believed the testimony of Mr. and Mrs. Fohren as to appellee’s knowledge of the nature and extent of the water damage to the house’s floors. Additionally, it is not disputed that Mr. Storment, who has lived with appellee for approximately twenty years, was in the house on the afternoon of the 22nd or that, at the time of the fire, the tenants had moved out. Although appellee testified that she had made plans to rent the property to another individual, the jury was not required to believe her. See Myers v. Hobbs, 195 Ark. 1026, 115 S.W.2d 880 (1938). It is our opinion that, on this record, the jury could find without clear error that appellee had a motive and an opportunity to burn the house; given the high cost of repairs that would have been necessary to fix the damaged floors, and appellee’s lack of financial resources, we believe that the jury could likewise infer that appellee, or someone at her direction, intentionally set the fire. We therefore believe that the trial judge abused his discretion in setting aside the verdict for appellant and setting the case for a new trial.
Reversed.
Arey, Stroud, and Meads, JJ., agree.
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John B. Robbins, Chief Judge.
Appellee Ronnie Furman sustained a work-related injury to his back while working for Rymer Foods in July 1992. As a result of this injury, Mr. Furman underwent surgery and Rymer paid benefits in accordance with a 10% anatomical impairment rating. Mr. Furman returned to work in the same position that he held prior to the injury, and continued to do so after Rymer was bought by Simmons Industries on January 1, 1994. On May 18, 1994, Mr. Furman was working for Simmons and sustained a second back injury. After again undergoing surgery, Mr. Furman returned to work on a part-time basis for about a month, but has not worked since January 1995. As a result of the second back injury, Mr. Furman was assigned an additional 2% anatomical rating, for which Simmons has compensated him.
Mr. Furman filed a claim with the Workers’ Compensation Commission, contending that his injuries had rendered him permanently and totally disabled. A hearing was held to determine, among other things, the extent of any responsibility of appellant Second Injury Fund. After the hearing, the Commission found that the original back injury resulted in a 5% wage loss. The Commission also found that, after the second injury, Mr. Furman was not totally disabled but rather suffered an additional wage loss of 18%. The Commission then ordered the Second Injury Fund to compensate Mr. Furman for 18% wage loss. Second Injury Fund now appeals this award. ■
For reversal, the appellant raises seven arguments. It first contends that the Commission erred in characterizing Mr. Furman’s first back injury as an “impairment” rather than a “disability.” Next, Second Injury Fund argues that the Commission erred in concluding that Mr. Furman’s first injury resulted in a 5% wage loss. The appellant’s third and fourth arguments are that Mr. Furman failed to establish that the two injuries combined to produce the resulting disability and that substantial evidence does not support the finding that the second injury would not have caused the entire disability alone and of itself. The appellant also argues that the Commission erred in finding that Mr. Furman did not waive vocational rehabilitation and further asserts that the Commission misquoted Ark. Code Ann. § ll-9-505(b)(3) (R.epl. 1996) with regard to an employee’s waiver of vocational rehabilitation. Finally, Second Injury Fund contends that the Commission erred as a matter of law in finding that the Fund could pay for vocational rehabilitation benefits. We find no error and affirm.
When reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if supported by substantial evidence. 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. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). 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. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983).
At the hearing before the Commission, Mr. Furman testified on his own behalf. He stated that, between 1990 and the date of his second injury, he had been employed as a production manager. His duties included supervising and training employees as well as helping on the production line when needed. Mr. Furman indicated that on some occasions he was required to lift as much as seventy pounds.
In July 1992, Mr. Furman suffered a back injury that resulted in surgery performed by Dr. Michael Standefer in January 1993. Mr. Furman returned to his supervisory position in March 1993 and was able to earn the same or more money than he had been making prior to the injury. However, he testified that as a result of the first injury, bending over became more strenuous and he was no longer able to lift seventy pounds.
On May 18, 1994, Mr. Furman “was carrying a tray of chicken and stumbled over a tub stand and twisted and hurt [his] back again.” This injury resulted in a subsequent surgery, and according to Mr. Furman, he has been unable to return to full duty since that time. He testified that he now has almost constant pain in his back and that he can no longer perform his job because of the standing and walking requirements. He admitted that he might be able to perform a job involving minimal physical demands, but stated that he has applied for these types of jobs with no success. Mr. Furman testified that he checked with Arkansas Rehabilitation Services about vocational training, but that “I did not get a follow up on my inquiry.”
The pertinent medical evidence in this case was provided in large part by the medical reports of Dr. Standefer. After the initial surgery, Dr. Standefer released Mr. Furman to work with the requirements that he lift no more than twenty-five pounds and avoid repeated bending. After the second injury, Dr. Standefer performed a myelogram and CT scan that provided findings consistent with a herniated disc, and he determined that another surgery would be necessary. Several months later, Dr. Standefer assigned an additional 2% impairment rating that was attributed to the second injury, and he gave the following opinion with regard to Mr. Furman’s employment possibilities:
In the future it will be important for him to avoid heavy lifting and repeated bending as in the past. I am inclined to think that resumption of his previous occupation will not be feasible. He should investigate alternative employment opportunities or vocational/technological school or resumption of higher education in the form of college.
Second Injury Fund’s first assignment of error is that the Commission erred in finding that Mr. Furman’s first injury was an “impairment” rather than a “disability.” It points out that, under Act 796 of 1993, the legislature has mandated strict construction of our workers’ compensation laws. The Fund then submits that, under the new Act, an injury occurring on the job cannot result in an “impairment,” but rather must be categorized as a “disability” that results in wage loss. Hence, argues the Fund, Mr. Furman did not suffer an impairment when he sustained a com-pensable back injury while working in July 1992.
The appellant’s first argument is without merit. The new Workers’ Compensation Act did not change the following guidelines for Second Injury Fund liability, which are now codified at Ark. Code Ann. § 11-9-525(3) and (4) (Repl. 1996):
(3) If any employee who has a permanent partial disability or impairment, whether from compensable injury or otherwise, receives a subsequent compensable injury resulting in additional permanent partial disability or impairment so that the degree or percentage of disability or impairment caused by the combined disabilities or impairments is greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of combined disabilities or impairments, then the employer at the time of the last injury shall be liable only for the degree or percentage of disability or impairment which would have resulted from the last injury had there been no preexisting disability or impairment. ,
(4) After the compensation liability of the employer for the last injury, considered alone, which shall be no greater than the actual anatomical impairment resulting from the last injury, has been determined by an administrative law judge or the Workers’ Compensation Commission, the degree or percentage of employee’s disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by the administrative law judge or the commission, and the degree or percentage of disability or impairment which existed prior to the last injury plus the disability or impairment resulting from the combined disability shall be determined, and compensation for that balance, if any, shall be paid out of the fund provided for in § 11-9-301.
Pursuant to the above provisions, the Second Injury Fund may be subjected to liability if a claimant suffers from a permanent impairment, whether or not the impairment is the result of a compensa-ble injury. In Second Injury Trust Fund v. POM, Inc., 316 Ark. 796, 875 S.W.2d 832 (1994), a case decided under prior law, our supreme court held that a preexisting impairment can either be work related or non-work related, and need not include wage loss. In that case, Second Injury Fund argued, as it does here, that in order to invoke fund liability, it is necessary to show that the employee suffered a loss in wage-earning capacity where the initial injury was work related, because “impairment” is necessarily non-work related. Flowever, this argument was rejected.
In the instant case the appellant contends that, as a result of the new legislation, the result in Second Injury Trust Fund v. POM, Inc., supra, is no longer controlling. We disagree. Although the new Act is to be construed strictly, none of its provisions give rise to a different result in the disposition of this issue. Mr. Furman suffered a 10% anatomical impairment as a result of his first injury, and his employer compensated him for this impairment. It is immaterial whether or not the impairment resulted in any wage-loss disability. In either case, the Commission was correct in concluding that the impairment gave rise to potential Second Injury Fund liability. This would have been the proper ruling under prior law, and it continues to be the proper ruling under the new Act.
The appellant next contends that, because Mr. Furman did not suffer an impairment as the result of his first injury, any liability on its part would have to be based on a finding that the first injury caused a disability. It argues further that the Commission erred in concluding that Mr. Furman suffered a 5% wage-loss disability because he returned to work at the same or greater wages than he had been earning prior to the first injury. The Fund argues that because Mr. Furman suffered no initial impairment or disability, it could not be held liable under the relevant provisions of Ark. Code Ann. § 11-9-525 (Repl. 1996).
We agree with appellant that the Commission erred in assigning a 5% wage-loss disability to the first injury. Mr. Furman had returned to work at the same or greater wage level than he had been earning prior to the injury. However, such error is harmless because of our holding that it is immaterial whether the first injury was a work-related impairment or involved a wage-loss disability. The permanent impairment caused by the first injury was sufficient to trigger Second Injury Fund liability after the second injury suffered by Mr. Furman.
The appellant’s third and fourth arguments are interrelated. It asserts that the Commission erred in finding that the two injuries combined to cause Mr. Furman’s disability, and that the evi dence showed that his disability was no greater than that which would have been caused by the second injury alone. The Fund points out that, after the first injury, Mr. Furman returned to the same job and was able to work full time. Fie was also able to continue his hobbies, including golf and bowling. It was not until after the second injury that he was forced to quit his employment and discontinue his hobbies. Based on this evidence, Second Injury Fund submits that we can only reasonably conclude that the second injury was by itself responsible for Mr. Furman’s resulting disability.
We find substantial evidence to support the Commission’s finding that the two injuries combined to produce Mr. Furman’s disability. An MRI conducted after the initial injury revealed disk bulges along with a herniated disk, and these conditions required surgery. After returning to work, Mr. Furman worked at the same or greater wages but was given restrictions on his lifting and bending. The second injury occurred in precisely the same L5-S1, left location, and he again underwent surgery. After the second surgery, Dr. Standefer assigned a 12% anatomical impairment rating, which was based on Mr. Furman’s “two previous operations.” This represents only a 2% increase from the 10% anatomical rating that had been assigned as a result of the first injury alone. We find that there is substantial evidence to support the Commission’s determination that the two injuries combined to cause Mr. Furman’s disability, and that his disability was greater than that which would have been caused by the second injury alone.
Second Injury Fund next contends that the Commission erred in finding that Mr. Furman did not waive vocational rehabilitation, and that it misquoted Ark. Code Ann. § 11-9-505(b)(3) (Repl. 1996), which provides:
(3) The employee shall not be required to enter any program of vocational rehabilitation against his consent; however, no employee who waives rehabilitation or refuses to participate in or cooperate for reasonable cause with either an offered program of rehabilitation or job placement assistance shall be entided to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by objective physical findings.
The appellant essentially contends that Mr. Furman had a duty to pursue rehabilitation, and that he failed to do so. It asserts that, at the time of the hearing, Mr. Furman was not working and had no plans to seek employment in the future. Nor did he file with the Commission any plan for rehabilitation. The appellant submits that this constituted a waiver of any right to rehabilitation and thus reheves it of any liability pursuant to the above statutory provision. The Fund notes that, in its opinion, the Commission misquoted the above provision when it stated “no employee who waives an offer of rehabilitation” shall be entitled to disability benefits in excess of his permanent impairment (emphasis added). The appellant argues that the Commission erroneously concluded that it was the responsibility of the Fund to offer rehabilitation, rather than the responsibility of Mr. Furman to seek it.
Notwithstanding the Commission’s failure to accurately quote the pertinent statute, we find no error in its decision that Mr. Furman has not waived rehabilitation and is entitled to disability benefits. We acknowledge that Ark. Code Ann. § 11-9-505(b)(4) (Repl. 1996) provides that, if a claimant elects to apply for rehabilitation at the expense of his employer, he must file such election with the Commission prior to a determination of disability benefits. However, this provision does not stand for the proposition that every claimant must formally file for rehabilitation with the Commission or waive entitlement to disability benefits. In the instant case, there was no evidence that either the appellant or Mr. Furman’s employer at any time suggested a plan of rehabilitation. However, in answering his interrogatories, Mr. Furman affirmatively indicated that he wanted to pursue rehabilitation and did not waive his right to the same. Then, at the hearing, he presented a plan for attending Westark Community College to pursue a degree in hotel and restaurant management, and he provided a list of the expected finances to fund such a program. On these facts, we find no error in the Commission’s refusal to deny disability benefits based on the appellant’s contention that Mr. Furman waived rehabilitation. In Second Injury Fund v. Robison, 22 Ark. App. 157, 737 S.W.2d 162 (1987), we held that the Com mission is not required to consider a claimant’s failure to request rehabilitation in determining the degree of his disability.
The appellant’s remaining argument is that the Commission erred in finding that the fund could pay for vocational rehabilitation benefits. It cites Second Injury Fund v. Robison, supra. In that case, we indicated that if an employee’s request for a rehabilitation program is granted, the employer is responsible for providing the vocational rehabilitation. The appellant submits that this fact has not been changed by any provision in the new Act.
We find the appellant’s final point to be moot, because the Fund was not ordered to pay for any rehabilitation program. Its liability was limited to a wage-loss disability award. Therefore, the Commission’s mention of potential Fund liability as to a hypothetical rehabilitation program was of no consequence.
Affirmed.
Bird and Griffen, JJ., agree. | [
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Judith Rogers, Judge.
In this appeal, appellant contests two adverse rulings with respect to claims concerning child support. She first contends that the chancellor abused his discretion in faffing to award a percentage of an inheritance that appellee received from his parents’ estates. As her second issue, she argues that the chancellor erred in failing to hold appellee responsible for an arrearage in child support. We find no error and affirm.
Appellant, Eva Gail Halter, and appellee, Dennis P. Halter, were divorced in March of 1988. In the decree, appellee was ordered to pay $60 a week in child support on behalf of their two children. The decree further provided that “ [a] t such time as [appellee] obtains employment, child support will be adjusted in accordance with [appellee’s] income.” After the decree, appellant filed several motions seeking an increase in support but did not pursue them to completion. As a result, appellee’s obligation remained at $60 a week. The petition that led to this appeal was filed in October of 1995. In it, she requested an increase in child support and a percentage of a $66,000 inheritance appellee had received in 1994 upon the death of his parents. She also asked that appellee be held in contempt for his failure to increase the payment of child support commensurate with his increased income as provided in the decree. In this regard, she further contended that appellee’s support obligation should be increased retroactively and that she was entitled to judgment for the arrearage that had accrued.
A hearing was held on May 28, 1996. Afterwards, the chancellor ordered an immediate increase in child support to $600 a month, but he denied appellant’s request for the claimed arrear-age. The chancellor took the question of appellee’s inheritance under advisement, asking the parties to brief the issue. A final order was entered on October 11, 1996, wherein the court denied appellant’s request for a lump-sum percentage of appellee’s inheritance. This appeal followed.
Appellant’s first assignment of error concerns the denial of her claim for a lump-sum payment of twenty-two percent of appellee’s inheritance. It is well settled that the amount of child support lies within the discretion of the chancellor, and his findings will not be disturbed on appeal absent an abuse of discretion. Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553 (1996). Thus the question before us is whether the chancellor’s ruling constitutes an abuse of discretion.
Appellant’s argument is based on the per curiam in effect, In Re: Guidelines for Child Support, 314 Ark. 644, 863 S.W.2d 291 (1993), wherein it is stated that, when the payor’s income exceeds the amount shown on the extended support chart, the court should use a figure of 22% of the payor’s monthly or weekly income, “as defined hereinafter,” when there are two dependents. Appellant’s argument presupposes that an inheritance is considered as income for purposes of applying the percentage. However, “income” in the family-support chart refers to the definition of income in the federal income tax laws. Under federal tax law, income does not include the value of property acquired by gift, bequest, devise, or inheritance. 26 U.S.C. § 102(a) (1997). Because the percentage relied upon by appellant applies to weekly or monthly income that exceeds the amounts shown on the extended chart, and because an inheritance does not fall within those parameters, we can find no abuse of discretion in the chancellor’s refusal to award a lump-sum percentage of the inheritance as child support based on that provision of the per curiam.
Although we can find no abuse of discretion, we do not mean to imply that the inheritance was entirely irrelevant to the issue of child support. For example, in Munn v. Munn, 315 Ark. 494, 868 S.W.2d 478 (1994), the appellant claimed entitlement to a percentage of the appellee’s workers’ compensation settlement. Instead, the chancellor applied a hypothetical investment yield to project an increase in the appellee’s monthly income. He then applied that amount to the support chart in setting appellee’s monthly support obligation. The supreme court affirmed, finding no abuse of discretion. By analogy here, any earnings that might have been generated from appellee’s inheritance could have been considered by the chancellor in determining the amount of support, since such earnings are considered income under the tax code. 26 U.S.C. § 102(b) (1997). Yet, appellant limited her claim to a flat percentage of the inheritance. It was appellant’s duty to present sufficient evidence, argument, and citation of authority to prove her assertion that she was entitled to twenty-two percent of the inheritance. Munn v. Munn, id. This she has failed to do.
Appellant’s next argument is that the language of the original decree providing that “[a]t such time as [appellee] obtains employment, child support will be adjusted in accordance with [appellee’s] income,” placed an affirmative obligation on appellee to increase the payment of child support. She argues that the chancellor erred by not enforcing this provision to retroactively increase appellee’s child-support payments as his income increased during the intervening years. We cannot agree. One seeking the reversal of a chancellor’s order has the burden of demonstrating error in the chancellor’s findings, and we will not reverse such findings unless they are clearly against the preponderance of the evidence. In light of the wording of the decree, we cannot say that the chancellor’s interpretation, that it did not place any burden on appellee to voluntarily seek modification, is clearly erroneous.
Affirmed.
Bird and Crabtree, JJ., agree.
The family-support chart provides that for workers’ compensation disability recipients, support is to be calculated based on those benefits. In Re: Guidelines for Child Support, supra. | [
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Judith Rogers, Judge.
This is an appeal from a decision of the Board of Review denying unemployment compensation benefits based on a finding that appellant, Vivian Kimble, was discharged for misconduct connected with the work. At issue in this case, which is submitted without supporting briefs, is whether the Board’s finding of misconduct is supported by substantial evidence. We affirm the decision of the Board.
Appellant worked for Willis Shaw Express as a long distance truck driver from January 26, 1996, to October 18, 1996. It is undisputed that she was discharged after having had five accidents in a six-month period, the first occurring on April 4 and the last on October 14. There was testimony that the employer characterized each of the accidents as “preventable.” In at least two of the accidents, appellant hit stationary objects. In the first, she made a turn too sharply and damaged the trailer she was hauling. In the second accident, she hit a parked vehicle. She next damaged some pavement while making a turn. In the fourth accident, she backed into a vehicle that was parked at a fuel pump. Last, appellant struck another vehicle while making a right-hand turn.
The employer had written policies governing the standards of conduct expected of its employees. One such policy warned that the failure to safely operate equipment entrusted to an employee’s care could result in disciplinary action or the loss of one’s job. After the fourth accident, appellant was placed on probation, and she was warned that another incident could result in the termination of her employment. In her testimony, appellant admitted that each of the accidents was her fault, but she denied that she had “deliberately set out to have accidents.”
“Misconduct,” for purposes of unemployment compensation, involves: (1) disregard of the employer’s interest; (2) violation of the employer’s rules; (3) disregard of the standards of behavior which the employer has the right to expect; and (4) disregard of the employee’s duties and obligations to her employer. Rucker v. Director, 52 Ark. App. 126, 915 S.W.2d 315 (1996). There is an element of intent associated with a determination of misconduct. Fulgham v. Director, 52 Ark. App. 197, 918 S.W.2d 186 (1996). Mere inefficiency, unsatisfactory conduct, failure of good performance as the result of inability or incapacity, inadvertencies, ordinary negligence, or good-faith errors in judgment or discretion are not considered misconduct for unemployment insurance purposes unless it is of such a degree or recurrence as to manifest culpability, wrongful intent, evil design, or an intentional or substantial disregard of an employer’s interest or of an employee’s duties and obligations. Willis Johnson Co. v. Daniels, 269 Ark. 795, 601 S.W.2d 890 (Ark. App. 1980). See also Shipley Baking Co. v. Stiles, 17 Ark. App. 72, 703 S.W.2d 465 (1986); Arlington Hotel v. Director, 3 Ark. App. 281, 625 S.W.2d 551 (1981).
In the present case, the Board concluded that a preponderance of the evidence established a pattern of recurring negligence rising to the level of misconduct. The Board predicated its decision on the number of accidents that occurred in a short time span and appellant’s own testimony that she was at fault.
The issue of misconduct is a question of fact for the Board of Review to determine. Tenenbaum v. Director, 32 Ark. App. 43, 796 S.W.2d 348 (1990). On appeal, the findings of fact made by the Board are conclusive if they are supported by substantial evidence. George’s Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). Substantial evidence is defined as such evidence as a reasonable person might accept as adequately supporting a conclusion. Calvin v. Director, 31 Ark. App. 74, 787 S.W.2d 701 (1990). We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993). Even where there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.
It is generally recognized that unemployment benefits may be denied a discharged employee-driver based on a finding of misconduct where motor vehicle accidents are chargeable to negligence which has occurred periodically or with consistent regularity. 76 Am. Jur. 2d, Unemployment Compensation § 84. But even numerous accidents will not support a finding of misconduct where evidence is lacking that the accidents were due to the employee’s negligence. Id. The case of B.J. McAdams v. Daniels, 269 Ark. 693, 600 S.W.2d 418 (Ark. App. 1980), is illustrative of this latter point. There, the claimant had three accidents in an eleven-month period. We affirmed the Board’s award of benefits based on the lack of evidence demonstrating recurring negligence from which misconduct could be inferred, when the last accident was attributable to weather conditions, and not the negligence of the claimant.
By contrast here, however, the appellant had five “preventable” accidents in a brief, six-month period for which she admitted fault. We also note that appellant performed her job without incident prior to the spate of accidents. On this record, we hold that, despite appellant’s claim that she did not deliberately set out to have accidents, the number, frequency, and nature of the accidents satisfy the elements necessary to support a finding of misconduct. Quite apart from isolated instances of ordinary negligence, the evidence shows a recurring pattern of carelessness from which the Board was permitted to infer a manifest indifference that constitutes a substantial disregard of her employer’s interests, as well as a substantial disregard of her duties and obligations to the employer. Therefore, we cannot say that there is no substantial evidence to support the denial of benefits.
Affirmed.
Pittman, Jennings, and Meads, JJ., agree.
Robbins, C.J., and Neal, JJ., dissent.
See, e.g.y Schappe v. Unemployment Compensation Board of Review, 392 A.2d 353 (Pa. Commw. Ct. 1978). | [
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John B. Robbins, Chief Judge.
Appellant Kimberly Jenkins was convicted by a jury of felony theft by receiving based upon her possession of three “slides” for a sbde bracelet. She was thereafter sentenced to pay a fine of $4,275.00. Ms. Jenkins now appeals, raising four points for reversal.
Ms. Jenkins’s first argument is that the evidence was insufficient to support her conviction. Next, she contends that, if we find sufficient evidence to support her conviction, the conviction should be reduced to a misdemeanor. Third, Ms. Jenkins asserts that the prosecuting attorney made improper arguments to the jury such that reversal is mandated. Finally, Ms. Jenkins argues that the trial court erred in refusing to grant a mistrial due to improper impeachment of Ms. Jenkins during the trial. We affirm.
When an appellant challenges the sufficiency of the evidence, we review the sufficiency argument prior to a review of any alleged trial errors. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Lukach v. State, supra. In determining the sufficiency of the evidence, we review the proof in the fight most favorable to the appellee, considering only the evidence that tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992).
At the trial in the instant case, Officer Chip Stokes testified on behalf of the State. Officer Stokes stated that he responded to a call from a jewelry store on December 12, 1995. He was informed by the jewelry store owner that Ms. Jenkins was present and was in possession of stolen jewelry. Upon his arrival, Officer Stokes asked Ms. Jenkins how she came into possession of stolen jewelry, and she told him that a friend had purchased it for her from a pawn shop in Dallas, Texas. Ms. Jenkins was then arrested, and according to Officer Stokes she was very cooperative and did not protest. Officer Stokes testified that Ms. Jenkins possessed three “slides” that were stolen and that the slides were valued at $275, $275, and $425.
John David Hawks, part owner of JWC Jewelers, testified next. He stated that, on November 30, 1995, Ms. Jenkins came into his store and was interested in buying some jewelry. She then picked out a bracelet and one slide, and put them on layaway. A few days later, Ms. Jenkins entered the store with two “nice looking slides” and told Mr. Hawks to put those slides on the bracelet instead of the slide that she had originally selected. She explained that she received the two slides from her boyfriend in Texas. Mr. Hawks thought the slides looked familiar, and after checking his inventory he discovered that they had been stolen from the store. A few days later, Ms. Jenkins brought in five more slides and told Mr. Hawks to add them to her bracelet. He told her that he would do so, kept the slides, and called Dayer’s Jewelry and found out that one of these slides had been stolen from that store. When Ms. Jenkins returned to pick up her slide bracelet, both jewelry store owners and the police were waiting for her. According to Mr. Hawks, the two slides that had been stolen from his store retailed for $275 and $270.
Danny Cook, also part owner of JWC Jewelers, testified that he recognized the jewelry on the bracelet as that which had been stolen from the store. He asked Ms. Jenkins whether she had been in Dayer’s, and she replied that she had not. According to Mr. Cook, when they accused Ms. Jenkins of theft she sat down and stated, “What happens now,” and acted as if a “bombshell dropped.”
Tommy Dayer, owner of Dayer’s Jewelry, testified that on or about November 30, 1995, Ms. Jenkins came into his store and wanted to look at some slides. One of these slides was eventually discovered missing, and Mr. Dayer testified that this was one of the slides that Ms. Jenkins had given to Mr. Hawks for attachment to her bracelet. The slide was admitted into evidence, and Mr. Dayer identified it as being the slide that was found to be stolen soon after Ms. Jenkins’s visit to his store. He stated that the slide retailed for $400.
Ms. Jenkins testified on her own behalf and did not deny that the three slides at issue had been stolen. However, she denied stealing them or having any knowledge that they had been stolen. Rather, she indicated that the slides were a Christmas gift from a friend in Dallas, Texas. She acknowledged being at both JWC Jewelers and Dayer’s Jewelers, but said she did not take any of the slides. Ms. Jenkins admitted that in October 1994 she pleaded guilty to misdemeanor shoplifting. Subsequent to that time, she acquired a teaching job in Conway and held that job through the date of her trial.
Ms. Jenkins’s first point on appeal is a challenge to the sufficiency of the evidence. Arkansas Code Annotated section 5-36-106(a)(Repl. 1993) defines theft by receiving, and provides:
A person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen.
Ms. Jenkins submits that, although she was admittedly in possession of stolen property, there was no substantial evidence that she knew or had good reason to know that the property was stolen. She points out that no one saw her take anything from either store, and also points to her testimony that the jewelry was received from her boyfriend as a Christmas present. Ms. Jenkins asserts that it would be totally illogical to buy a bracelet from a jewelry store and then steal slides from the same store and attempt to have them attach the stolen slides. Under these facts, she asserts her conviction was based on speculation and conjecture.
We find substantial evidence to support Ms. Jenkins’s conviction. There was evidence presented to show that Ms. Jenkins viewed the stolen slides prior to the time that they were discovered missing. When confronted at JWC Jewelers, there was evidence that Ms. Jenkins denied ever being in Dayer’s store, when in fact she had been and later so admitted. The jury was entitled to disbelieve her story that a boyfriend from Dallas gave her the slides as a Christmas gift, particularly since she received the slides in early December. Although Ms. Jenkins denied stealing the slides or having knowledge that they were stolen, the jury was not required to believe this testimony, particularly since Ms. Jenkins was the person most interested in the outcome of the trial. See Moore v. State, 315 Ark. App. 131, 864 S.W.2d 863 (1993). From all the circumstances, there was ample evidence from which the jury could reasonably conclude that Ms. Jenkins was in possession of property that she knew to be stolen.
Ms. Jenkins next contends that her conviction should at least be reduced to a misdemeanor. She notes that the information charged her with possession of over $500 worth of stolen property, and that the jury was instructed to convict her of a felony if the stolen goods exceeded $200 in value. In 1995, our legislature increased the minimum threshold for felony theft from $200 to $500. See Ark. Code Ann. § 5-36-103(b)(2)(A) (1995 Supp.) However, the legislature did not change the minimum felony threshold for theft by receiving. Nevertheless, Ms. Jenkins submits that, although not explicitly stated by the 1995 amendments, the felony threshold for theft by receiving was also increased due to the language of Ark. Code Ann. § 5-36-102(a)(2) (Repl. 1993), which provides:
A criminal charge of theft may be supported by evidence that it was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the indictment or information, subject only to the power of the court to ensure fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.
Ms. Jenkins argues that the jury should have been instructed that the offense was a misdemeanor if the value was $500 or less, and further submits that there was insufficient evidence to prove that the aggregate value of the three slides exceeded $500.
From the abstract presented, it is evident that there was no objection made to the jury instruction now at issue. It is well settled that an argument for reversal will not be considered in the absence of a timely objection. Pharo v. State, 26 Ark. App. 268, 764 S.W.2d 458 (1989). Ms. Jenkins contends that no objection was necessary because this was a “structural error” going to the heart of the offense. However, she gives no authority for this proposition. We will not consider assignments of error which are unsupported by convincing argument or citation to authority. Womack v. State, 36 Ark. App. 133, 819 S.W.2d 306 (1991). As a result of Ms. Jenkins’s failure to object, her second point on appeal has not been preserved for our review.
Ms. Jenkins’s next contention is that the prosecuting attorney engaged in improper argument that warrants reversal. Ms. Jenkins essentially contends that the prosecutor repeatedly indicated to the jury that Ms. Jenkins was not presumed to be innocent because she was unable to give an adequate explanation for being in possession of stolen property. Ms. Jenkins acknowledges that no objection was made during the prosecutor’s argument, but asserts that none was necessary to preserve this point because the comments were so egregious that the trial court committed plain error in refusing to correct the statements or admonish the jury.
We need not address Ms. Jenkins’s argument regarding various comments made during the prosecutor’s closing argument. This court has held that there is no “plain error” rule, but instead has consistently held that the burden of obtaining a ruling is on the movant, and unresolved questions and objections are waived and may not be relied upon on appeal. Aaron v. State, 319 Ark. 320, 891 S.W.2d 364 (1995). Ms. Jenkins cites Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), for the proposition that it is incumbent upon the trial court to intervene, even without an objection, when a prosecutor makes improper comments to the jury. However, in dicta contained in that opinion, the supreme court merely suggested that the trial court may have a duty to correct such an error through an admonition to the jury or granting of a mistrial. The supreme court noted that such an exception to the contemporary objection rule “is a mere possibility, for it has not yet occurred in any case.” Wicks v. State, 270 Ark. at 786, 606 S.W.2d at 369. We decline to extend this hypothetical exception to the general- rule that an objection is necessary to preserve a point for review, and because no objection was made to the prosecutor’s remarks in the instant case, we fail to reach the merits of Ms. Jenkins’s third contention.
Ms. Jenkins’s remaining assertion is that the trial court erred in refusing to grant a mistrial due to improper impeachment. On cross-examination, the prosecutor asked Ms. Jenkins whether she informed the Conway Public School System of her misdemeanor theft conviction when she applied for a job as a teacher. Ms. Jenkins replied that she did not disclose that information because her employer did not ask about it. After an objection by the defense, the prosecution stated that it was trying to attack Ms. Jenkins’ credibility by showing that she misled her employer in order to get a job. Then, the defense moved for a mistrial and the trial court denied the motion. Ms. Jenkins now argues that the trial court’s ruling was erroneous because the elicited testimony prejudiced the jury to the extent that she was denied a fair trial. Ms. Jenkins notes that the prosecution presented no proof that the Conway School District even asked about any misdemeanor convictions prior to hiring her.
We find no error in allowing the State to ask the question in dispute. On direct examination, Ms. Jenkins admitted that she had been convicted of misdemeanor shoplifting prior to gaining employment as a school teacher. The State then asked her on cross-examination whether she informed the school district about the conviction. This question was not objectionable because Ms. Jenkins “opened the door” to the question by discussing it on direct examination. See Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). While we do not know why Ms. Jenkins testified on direct examination about her earlier misdemeanor, it is conceivable that she wanted to display her candor before the court to bolster her credibility. The State could properly then cross-examine her about this testimony and inquire as to whether her candor extended to also telling her employer about the conviction when she was applying for her teaching job. Moreover, any possible prejudice was diminished by the fact that Ms. Jenkins replied that she did not inform the school district about her misdemeanor conviction because the question was not asked when she applied for employment.
A mistrial is an extreme remedy to be used only when it is determined that something has occurred that will undoubtedly deprive a party of a fair trial. Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997). A trial court has wide discretion when it comes to a motion for a mistrial. Id. In the instant case, we find that the trial court did not abuse its discretion in refusing to find that the contested fine of questioning by the prosecution was improper or prejudiced Ms. Jenkins to such an extent that the granting of a mistrial was necessary.
Affirmed.
Pittman, Jennings, Neal, and Meads, JJ., agree. | [
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Terry Crabtree, Judge.
On February 23, 1994, appellant Jerrard Lamont Palmer pled nolo contendere to committing a ter-rorisitic act — firing three shots at a residence during an alterca tion — in violation of Ark. Code Ann. § 5-13-310 (1993), for which he received a suspended sentence. In July 1994, the State petitioned the court to revoke his suspended sentence based on pending drug and weapons charges. The State amended its petition to revoke in September 1994 to include a charge of battery in the second degree and failure to pay costs and fines. On September 28, 1994, appellant pled nolo contendere to the charges of felon in possession of a firearm, possession of cocaine with intent to deliver, possession of marijuana with intent to deliver, and battery in the second degree. The trial court again saw fit to suspend much of the imposed sentences, contingent on standard conditions. On July 11, 1996, appellant was again charged with possession of cocaine with intent to deliver, and the State again petitioned to revoke his suspended sentences based on the new drug charge and failure to pay costs and fines. From that revocation proceeding comes this single-issue appeal. Appellant argues that the trial court’s decision is not supported by sufficient evidence.
To revoke probation (or a suspended sentence), the burden is on the State to prove a violation of a condition by a preponderance of the evidence, and on appellate review the trial court’s findings will be upheld unless they are clearly against the preponderance of the evidence. Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). We hold that the trial court’s findings are not clearly against the preponderance of the evidence, and therefore we must affirm.
The facts in the present case were developed at the revocation hearing through the testimony of two police officers, one of whom noticed a car parked for several minutes at the Ragon Courts apartment complex in Fort Smith at 4:25 a.m. on July 11, 1996. On cross-examination, the officer explained that he was patrolling the apartments because of recent reports of vehicle thefts in the area. Officer Hays observed three persons “ducked down” in the car for several minutes. He then approached the car to ask the occupants what they were doing. The officer observed an empty bottle of gin in the back seat and arrested appellant for contributing to the delinquency of a minor. The officer also arrested the other two occupants of the car, charging each with minor in possession of alcohol. While interrogating the suspects individually, each gave conflicting accounts of why they were present in the parking lot.
Officer Perceful arrived on the scene to assist Officer Hays in the arrest. Officer Perceful then conducted an inventory search of the vehicle finding, in plain view, a plastic pill bottle on the front floorboard near the door on the driver’s side (appellant was seated in the front passenger-side seat). The bottle contained .782 grams of cocaine.
A ledger sheet that reflected appellant’s nonpayment of costs and fines was introduced at the revocation hearing, without comment or objection.
The first piece of evidence introduced, without objection, at the revocation hearing was a “Criminal Judgment and Payment Inquiry.” The ledger dated August 9, 1996, reflects the fines and court costs imposed after appellant’s first criminal plea to committing a terroristic act. Payments were scheduled at $50 per month and were to begin on March 15, 1994. The ledger reflects that for two-and-a-half years, no money had been paid toward the total $895.75 balance due. No testimony regarding the nonpayment of fines was introduced by either side, and the extent to which the trial judge relied on the nonpayment of fines for the revocation decision is unclear in his ruling. Further, appellant’s argument regarding the nonpayment of fines as a proper basis for revocation is limited to the final two sentences of his brief, which characterizes imposing a twelve-year prison term based on nonpayment of fines as “cruel and unusual punishment,” without reference to any authority.
We acknowledge the Supreme Court’s holding on this issue in Bearden v. Georgia, 461 U.S. 660 (1983), and our own supreme court’s holding in Drain v. State, 10 Ark. App. 338, 664 S.W.2d 484 (1984), both of which seek to avoid invidious discrimination against indigent defendants. However, we find the holdings in Baldridge v. State, 31 Ark. App. 114, 789 S.W.2d 735 (1990), and Reese v. State, 26 Ark. App. 42, 759 S.W.2d 576 (1988), controlling under the present facts.
Here the State introduced, without objection, documentary evidence showing a violation of the terms and conditions related to payment of fines and costs. Once such evidence is introduced, the defendant then bears the burden of going forward with some reasonable excuse for his failure to pay. Id. Here the defendant offered no reasonable excuse to the trial court and only referenced the issue in his appeal as a closing afterthought, with no supporting authority. Accordingly, we hold the trial court’s finding of nonpayment of fines and costs supports the revocation and is not clearly against the preponderance of the evidence.
Appellant argues on appeal that the facts relating to his possession of cocaine, under the doctrine of joint possession, are insufficient evidence upon which to revoke his suspended sentence. While his argument might be more persuasive if this were an appeal of a criminal trial, it is not. As our supreme court recently explained in a different context, “in a probation revocation hearing, a trial has already been held, and the defendant convicted.” Dority v. State, 329 Ark. 631, 634, 951 S.W.2d 559, 561 (1997) (holding that a revocation hearing is not a stage of a criminal prosecution for purposes of Sixth Amendment speedy-trial guarantees). Likewise, a hearing on the revocation of appellant’s suspended imposition of sentence is not a criminal prosecution, and the legislature has seen fit to require only the lowest showing of proof available — a preponderance of the evidence. See Ark. Code Ann. § 5-4-309(d) (1993).
The burden of proof on the State in a revocation hearing is to prove the violation of a condition of probation by a preponderance of the evidence. Tipton v. State, 47 Ark. App. 187, 188, 887 S.W.2d 540, 542 (1994). The appellate court defers to the trial court’s superior position on determinations of credibility. Lemons, supra. Further, the trial court, sitting as a finder of fact, is entitled to the same deference as a jury.
It is important to remember that jurors do not and need not view each fact in isolation, but rather may consider the evidence as a whole. The jury is entitled to draw any reasonable inference from circumstantial evidence to the same extent that it can from direct evidence. [Citation omitted.] A jury may accept or reject any part of a witness’s testimony, and its conclusion on credibility is binding on the appellate court. Winters v. State, 41 Ark. App. 104, 848 S.W.2d 441 (1993).
White v. State, 47 Ark. App. 127, 131, 886 S.W.2d 876, 879 (1994).
Further, the complete constructive-possession analysis does not apply to revocation proceedings. For example, Billings v. State, 53 Ark. App. 219, 921 S.W.2d 607 (1996), held that a revocation appellant’s possession of a key to a car containing contraband was sufficient evidence to support the revocation. In another case a jury acquitted the appellant of battery, but a trial court revoked the appellant’s suspended sentence based on the same evidence. In affirming the revocation, the supreme court explained:
The evidence presented was circumstantial and, perhaps, inadequate for a conviction, but that quantum of evidence is not required in a revocation hearing. Gordon v. State, 269 Ark. 946, 601 S.W.2d 598 (1980). Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for a probation revocation. Lemons, supra. On our review of the evidence, we cannot say that this finding is clearly against the preponderance of the evidence. A determination of preponderance of the evidence turns heavily on questions of credibility and weight to be given the testimony, and, in that respect, we defer to the superior position of the trial court to make that determination. Id.
Kirby v. State, 52 Ark. App. 161, 164, 915 S.W.2d 736, 738-39 (1996).
Ellerson v. State, 261 Ark. 525, 549 S.W.2d 495 (1977), further illustrates the appropriate quantum of proof required to uphold a revocation. In Ellerson, the supreme court affirmed a revocation based on the uncorroborated testimony of an accomplice, noting that such a lack of corroboration would be fatal to the State’s case in a criminal trial, but the same quality or degree of proof is not required for the exercise of the court’s discretion to revoke a suspended sentence. Id. at 531, 549 S.W.2d 498.
The dissent discusses at great length the twin theories of joint occupancy and constructive possession. Both are valuable and well-developed legal theories used to guarantee the reliability of criminal convictions based solely on circumstantial evidence. However, we are not convinced from a reading of our prior case law that such safeguards are necessary in a revocation inquiry. Joint occupancy and constructive possession allow circumstantial evidence, when it sufficiently excludes all other reasonable hypotheses, to pass beyond the hurdle of “reasonable doubt” to support a criminal conviction. As we have attempted to explain at length here, “reasonable doubt” has no application in revocation proceedings, which are governed by a preponderance-of-the-evidence standard.
Based on the supreme court’s holding in Dority, supra, that revocation is not a stage in a criminal prosecution for Sixth Amendment purposes, the legislature’s choice to require the lowest quantum of proof to support a revocation, our own limited standard of review, which gives significant deference to the trial court’s determination of credibility, and the many cases that hold that evidence insufficient to convict may be sufficient to revoke (Lemons, Ellerson, and Kirby, supra), we find the following facts relevant to support our holding that the trial court’s revocation based on the cocaine charge was not clearly against the preponderance of the evidence.
First, appellant’s suspicious behavior is relevant to our inquiry. Several reasonable inferences can be drawn from circumstantial evidence that officers observed at the scene. Appellant was encountered at approximately 4:25 a.m. The time of day of an arrest is relevant to the inquiry because a parked car with three occupants who are observed for several minutes could reasonably amount to suspicious circumstances at that time of day. See Bailey v. State, 307 Ark. 448, 821 S.W.2d 28 (1991). Also, the fact that the officer observed appellant and the other occupants of the vehicle “ducked down” is a furtive or suspicious action that amounts to relevant circumstantial evidence. See Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988). Additionally, the inconsistent accounts of the three suspects to the police during the encounter create an inference of suspicious behavior. See Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994) (discussing at length the improbable nature of appellants’ claim that they were going to Branson to see the shows when none of them were carrying ade quate clothing for a week-long visit). Further, the fact that the arrest took place in a high-crime area is relevant to the revocation determination. Greene v. State, 324 Ark. 465, 467, 921 S.W.2d 951, 952 (1996).
Secondly, the presence of the contraband in close proximity to appellant is relevant circumstantial evidence supporting the trial court’s revocation decision. See Kilpatrick v. State, 322 Ark. 728, 733, 912 S.W.2d 917, 920 (1995); Bond v. State, 45 Ark. App. 177, 180-82, 873 S.W.2d 569, 571-72 (1994).
Finally, the fact that appellant had a prior conviction for a similar offense is relevant in a revocation decision. While appellant’s prior offenses might have been excluded in a traditional criminal trial, such evidence may be admissible' at a revocation hearing. Fitzpatrick v. State, 7 Ark. App. 246, 647 S.W.2d 480 (1983) (holding that relevant evidence inadmissible at a criminal trial may be admissible at a revocation hearing).
Based on these three factors, the holding in Dority, statutory guidance for revocation proceedings, and the implications of our own standard of review, we hold that the trial court’s decision to revoke appellant’s suspended sentence based on the cocaine charge is not clearly against the preponderance of the evidence, and therefore must be affirmed.
Affirmed.
Arey and Rogers, JJ., agree.
Robbins, C.J., Neal, and Roaf, JJ., dissent. | [
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Andree Layton Roaf, Judge.
Appellant, Marcus Antonio Franklin, was convicted in a bench trial of possession of a controlled substance with intent to deliver and maintaining a drug premises. His sole point on appeal is that there is insufficient evidence to sustain the convictions because there is no evidence linking him to drugs found in a house in which he was a joint occupant. We agree and reverse both convictions.
Franklin was charged with possession of a controlled substance with intent to deliver and maintaining a drug premises. Two Little Rock detectives testified at his bench trial on the charges. Detective David Green testified that he assisted in executing a search and seizure warrant at a residence in College Station and that there were two people present at this house, Franklin and his co-defendant, Tyrone Johnson. Detective Green further testified that he found cocaine hidden under a dog house in the back yard, and that there were three dogs chained in the yard.
Detective Kevin Tindle testified that on a prior, unspecified date, he had made a controlled narcotics purchase from the residence, but that he could not see the people during the sale and could not say that Franklin was involved. Detective Tindle stated that he also participated in the search and seizure, and located an off-white, rock-like substance in the house hidden under a piece of carpet in the southeast bedroom. He testified that no one was found in that room and that Franklin was found asleep in the northeast bedroom. He further testified that he found no drugs in Franklin’s room, on his person, or in his possession. The police did not find drugs or paraphernalia in either of the two cars that were parked outside, and found no paperwork having either the occupant’s or the owner’s name.
Franklin’s father, Lewis Franklin, testified that he owned the house and that he was aware that dogs were on the premises. He said that the dogs were not Franklin’s and that Franklin was afraid of dogs and did not like them. He also stated that Johnson and Franklin were living in the house and that they sometimes paid rent. At the conclusion of the trial, Franklin was convicted of both charges and was sentenced to serve forty months in the Arkansas Department of Correction. He appeals from both convictions.
On appeal, Franklin argues that the trial court erred in failing to grant his motion for directed verdict based upon the insufficiency of the evidence. Although Franklin’s motion for directed verdict challenged the sufficiency of the evidence only for the charge of possession, a motion for directed verdict is not required in a bench trial to preserve for appeal the issue of sufficiency of the evidence. Mackey v. State, 56 Ark. App. 164, 939 S.W.2d 851 (1997). Consequendy, we may consider the merits of his appeal of both convictions.
Franklin argues that because joint occupancy was established, the State must prove some additional link between him and the cocaine that was found hidden in the bedroom or under the dog house. He contends that the State failed to do so because there was no evidence that he had control over the narcotics or even knew that drugs were present. He argues that he was not found in the bedroom where the cocaine was discovered and that he did not own the dogs. He also argues that there was no evidence that he acted suspiciously, had made any previous sales of illegal drugs, or made any incriminating statements which would indicate that he had knowledge of the cocaine, and adds that cocaine was not found in common areas throughout the house or in plain view.
The State counters that the large quantity of narcotics found in the house and under the dog house, 10.502 grams, Franklin’s father's ownership of the house, and the fact that a drug sale had previously occurred at the residence, constitute substantial evidence linking Franklin to the contraband. We do not agree.
In order to sustain a conviction for possession of a controlled substance, the State need not prove that the accused had actual physical possession of the controlled substance. White v. State, 47 Ark. App. 127, 886 S.W.2d 876 (1994). Constructive possession, which is control or right to control the contraband, is sufficient. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Constructive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Id.
Constructive possession can also be inferred when the controlled substance is in the joint control of the accused and another. White, supra. However, joint occupancy alone is not sufficient to establish possession or joint possession; there must be some additional factor finking the accused to the contraband. White, supra. In such cases, the State must prove two additional elements: (1) that the accused exercised care, control, and management over the contraband and (2) that the accused knew the matter possessed was contraband. Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995) (quoting Plotts v. State, 297 Ark. 66, 69, 759 S.W.2d 793, 794 (1988)).
Although the State cites a number of joint-occupancy cases in support of its contention that there are sufficient factors finking Franklin to the contraband to support both convictions, it is clear that these authorities may be distinguished from the facts in this case. In Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991), the supreme court stated that there was substantial evidence of constructive possession when at the time of the raid Nichols was found seated at the kitchen table of his residence with drugs in plain view on the table in front of him. In Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990), the court held that there was evidence from which the jury could conclude that the appellant exercised control over marijuana and paraphernalia found in a closet of a home formerly occupied by him and his ex-wife and owned by his father, where his ex-wife testified that he received shipments of marijuana during their marriage and identified drug paraphernalia and other items found with the drugs as belonging to him. Also, a neighbor testified that appellant was quite often at the house after his ex-wife had moved out. In Gary v. State, 259 Ark. 510, S.W.2d 230 (1976), there was sufficient evidence that appellant had joint possession of drugs even though he was not present when his apartment was raided. The appellant admitted that he lived there, the drugs were found in a bedroom closet in which a glove bearing his name was also found, and his personal papers were found in the apartment. Although a joint occupant of the apartment testified that the drugs were his, he also testified that appellant had used heroin from the supply, collected money from a sale of the drugs, and inquired about the drugs after he learned of the search.
In Ramey v. State, 42 Ark. App. 242, 857 S.W.2d (1993), the appellant’s conviction for maintaining a drug premises was upheld where police found marijuana on a person sitting on appellant’s front porch but found no other drugs in the search of appellant’s home. However, in response to complaints about drug dealing, the police had conducted a surveillance of the house and had observed drug trafficking there for several months. They found scales and five or six hundred plastic baggies in the house. In addition, several people who had come to the house seeking to buy drugs during the police search testified at appellant’s trial that they had bought drugs at the house in the past. In Sweat v. State, 25 Ark. App 60, 752 S.W.2d 49 (1988), the court found sufficient linking factors to support a finding that appellant was in constructive possession of marijuana found in his mother’s home. The appellant also lived there, was present when the search was conducted, and marijuana was found in common areas of the house, in the refrigerator and on top of the freezer. Also, drug paraphernalia was found on the kitchen table. In addition, an officer testified that he called the house prior to the search, asked for appellant, and when a man came to the phone and was asked about buying some marijuana, “he said he didn’t know me.”
Clearly, the three factors relied upon by the State, even taken together, fall far short of demonstrating the degree of connection to the contraband or knowledge of its presence found in any of these cases. Consequently, we hold that there is insufficient evidence to support a finding that Franklin was in constructive possession of the drugs, and the conviction for possession of a controlled substance with intent to deliver must be reversed.
Franklin’s conviction for maintaining a drug premises must also be reversed. Arkansas Code Annotated section 5-64-402(a)(3) (Repl. 1993) states:
It is unlawful for any person to . . . knowingly keep or maintain any store, shop, warehouse, or other structure or place or premise, which is resorted to by persons for the purpose of using or obtaining these substances or which is used for keeping them in violation of subchapter 1-6 of this chapter.
(Emphasis added.) Franklin contends that there was no evidence presented that he knew that drugs were present, and we agree.
Although the State argues in response that there was substantial evidence that Franklin had both knowledge and control of the cocaine found in the house and under the dog house, it relies upon the same authorities advanced in support of the conviction for possession. However, knowledge is an element of the offense of maintaining a drug premises. As pointed out by Franklin, there were no drugs found in plain view, in the common areas of the house, or in the bedroom occupied by Franklin. There were no statements by Franklin or by anyone else suggesting that Franklin knew that drugs were kept in the house, used there, or sold there. In the only case relied upon by the State involving a conviction for maintaining a drug premises, Ramey, supra, there was overwhelming evidence and testimony that the appellant’s home was used extensively in drug trafficking, including the testimony of several persons who had bought drugs there. Here, there was testimony about only one prior drug sale, with no specific date or even a time frame given for the sale. Thus, there was no evidence that Franklin had knowledge that the drugs were kept, used, or sold at the home.
Reversed and dismissed.
Robbins, C.J., Neal and Rogers, JJ., agree.
Arey and Crabtree, JJ., dissent. | [
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Olly Neal, Judge.
Lonnie Robertson was employed by appellant as a laborer. On September 18, 1995, appellee was injured when he fell approximately ten to fifteen feet from scaffolding while at work. Appellee was taken to the hospital where he was hospitalized and treated for his injuries. Appellee filed a claim for workers’ compensation disability benefits for injuries that he sustained as a result of the fall. Appellants controverted appel-lee’s claim for benefits and asserted that his injuries were substantially occasioned by the use of alcohol and were therefore excluded from coverage under the workers’ compensation act. The administrative law judge found that appellee’s fall was not substantially occasioned by the use of alcohol. The Commission adopted the ALJ’s opinion as its own and affirmed the order. It is from the Commission’s decision that appellants bring the present appeal.
Appellants urge us to reverse the Commission’s order on the grounds that the Commission incorrectly determined that no alcohol was present in appellee’s system at the time of his accident and that his injury was not substantially occasioned by the use of alcohol.
Dr. MacDade examined appellee on the day he was brought to the hospital emergency room. Dr. MacDade’s notes of August 18, 1995, indicate that appellee had a faint smell of alcohol on his breath. Dr. MacDade’s notes of September 19, 1995, indicate that appellee had a “ffuitescent” substance on his breath. Appel-lee’s blood-alcohol content was measured as being less than .01%. Appellee also testified that he had not had a drink on the date in question.
Prior to 1993, the burden was upon the employer to prove that a claimant’s injury was the result of intoxication or drug use. Act 796 of 1993 shifted the burden to the claimant by creating a rebuttable presumption that an injury was substantially occasioned by an intoxicant if one is found in the body. Morrilton Manor v. Brimmage, 58 Ark. App. 252, 952 S.W.2d 170 (1997). Now, if the claimant is found to have alcohol or drugs in his body after an injury, he must prove by a preponderance of the evidence that his injury was not substantially occasioned by the alcohol or drugs. Id.
Appellants contend that the Commission erred in finding that no alcohol was present in appellee’s system at the time of the accident. In making its decision the Commission wrote:
Claimant’s initial physician noted the smell of alcohol on the claimant when claimant was brought in for treatment. However, the alcohol blood test subsequently performed revealed that claimant’s alcohol level was less than .01%. We find this does not establish the presence of alcohol so as to give rise to said presumption. Further, if the test did establish the presence of alcohol, the low blood alcohol level would be sufficient to prove that the injury was not substantially occasioned by alcohol.
When reviewing a finding of fact made by the Workers’ Compensation Commission, we affirm if the Commission’s decision is supported by substantial evidence. Weaver v. Whitaker Furniture Co., 55 Ark. App. 400, 935 S.W. 2d 584 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. Whether a rebuttable presumption is overcome by the evidence is a question of fact for the Commission to determine. Id. The Commission’s duty is to weigh medical evidence as it does any other evidence. Id.
The legislature has not quantified the level of alcohol that need be present in the blood to give rise to the presumption that an injury is substantially occasioned by the use of alcohol. The Arkansas courts have been admonished to defer to the legislature when such matters need to be addressed. See Ark. Code Ann. § 11-9-1001 (Repl. 1996). However, because the results of the blood-alcohol content testing revealed an amount of alcohol in appellee’s blood, however small, we agree with appellants that there was a presence of alcohol in appellee’s blood. Notwithstanding, we find that there is substantial evidence in the record that supports the Commission’s finding that such a low blood-alcohol level was sufficient to rebut the presumption and prove that appellee’s injury was not substantially occasioned by alcohol.
This leads us to the remaining question, i.e., does appellee’s long-term use of alcohol disqualify him from receiving workers’ compensation disability benefits? The gravamen of appellants’ argument is that appellee’s long-term alcohol use resulted in an alcohol withdrawal seizure that caused his fall, and that appellee would not have suffered from an alcohol withdrawal seizure if not for his alcohol use.
With regard to this issue the Commission employed the following rationale:
The medical records indicate that the claimant’s physicians believe he suffered an alcohol with- drawal seizure. Based upon those opinions we find that the claimant suffered a fall which was related to alcohol withdrawal. As such, the claimant’s fall was caused by a condition which was personal in nature and has been defined as an idiopathic fall. Injuries from idiopathic falls do not arise out of the claimant’s employment unless the employment contributed to or aggravated the risk or the injury. While the fall would normally not be compensable because it is personal in nature, in this case, claimant was placed on a scaffold 12 to 15 feet off the ground thereby increasing the effects of his fall. Therefore, claimant’s idiopathic fall is compensable.
We agree with the Commission’s rationale. Appellee’s treating physicians opined that appellee’s seizure was the result of alcohol withdrawal. Appellee’s employment and his placement on scaffolding twelve to fifteen feet above ground increased the effects of the fall, thereby making the fall compensable. Though the seizure appellee suffered was the result of his long-term use of alcohol, we cannot find that appellee’s injury was substantially occasioned by such use of alcohol, where his employer and girlfriend corroborated his testimony that he had not had alcohol on the date of the injury.
In his cross-appeal, appellee argues that there is not substantial evidence to support the Commission’s finding that he was making $5 an hour. We disagree. Appellee testified that he was to be paid $6 an hour. On cross-examination, appellee acknowledged that he had stated during his deposition that he earned $5 per hour. Appellee did state that he misunderstood the question and thought that the question referred to his previous employment with appellant. Appellee’s employer testified that appellee was to be paid at a rate of $5 an hour. The Commission has the duty of determining the credibility of the witnesses. Here, the Commission obviously afforded greater weight to the employer’s testimony and appellee’s deposed testimony. We conclude that substantial evidence supports the Commission’s decision.
Affirmed.
Stroud, J., agrees.
Rogers, J., concurs. | [
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John F. Stroud, Jr., Judge.
Ogretta MacKintrush, wife of Walter MacKintrush, died at home at approximately 3:00 a.m. on October 17, 1994. Mr. MacKintrush, who. had called 911 to report that his wife was not breathing, was subsequently charged with first-degree murder. A trial was held in October 1995, but the jury deadlocked 11-1 and a mistrial was declared. A second trial was continued when a witness did not appear and was reset for July 30, 1996. At the trial which began on that date, Mr. MacKintrush was found guilty of murder in the second degree and he was sentenced to twenty years in the Arkansas Department of Correction.
Mr. MacKintrush appeals the conviction, raising five points of error. He contends that the trial court erred when it 1) denied him relief for alleged discovery violations by the State, 2) refused to grant a writ of mandamus to compel the sheriff to serve a subpoena, 3) allowed the medical examiner to testify outside his area of qualification, 4) permitted the State to use a peremptory challenge against a potential black juror, and 5) denied his mistrial motion based upon the racial make-up of the jury panel. Mr. MacKintrush filed a motion to transfer his appeal to the Arkansas Supreme Court. Although we determined that none of his asserted reasons supported the request, we recommended certification under Ark. Sup. Ct. R. 1-2(a)(5) because the case involved a petition for mandamus directed to “state, county, or municipal officials.” Certification was refused on June 9, 1997. We affirm the conviction, addressing the points as they were presented by appellant.
I. The trial court erred by not granting relief on the fact of the State’s failure to provide witness information and in particular, exculpatory information.
Rule 19.2 of the Arkansas Rules of Criminal Procedure imposes upon a party a continuing duty to disclose, after compliance with the rules of discovery or a court order, if it discovers additional material or information comprehended by a previous request to disclose. Rule 17.1(d) requires a prosecutor to disclose promptly any material or information tending to negate the guilt of a defendant or tending to reduce his punishment. Under Rule 19.7, the trial court may order any of four sanctions against a party that fails to comply with a discovery rule or order: the discovery or inspection of materials not previously disclosed, a continuance, prohibition from introducing in evidence the undisclosed material, or such other order as the court deems proper.
In the instant case, appellant filed a motion for discovery before the first trial. The State responded with an open file policy, and the trial court ordered that discovery be supplied by June 12, 1995. Appellant complains on appeal, as he did during his trial, that the State violated its discovery obligations by failing to inform him of the existence of statements by Cynthia Marks and Jewel Williams.
Cynthia Marks’s statement was that the victim had told her that appellant had filed for divorce previously, in the spring of 1994; that appellant thought the victim was having an affair; that he would kill her if he found it to be so, and no one would know how; and that appellant was “crazy.” Ms. Williams’s statement was that about two weeks before the murder the victim had said that appellant was going to divorce her, and that she had come to work a few days before her death with a cut inside her bottom lip and with scratches and bruises on her neck resembling a hand print.
We address discovery of the two statements separately, beginning with that of Ms. Marks.
Statement of Cynthia Marks
When the State called Ms. Marks to testify, appellant objected on the basis that the State had not disclosed her as a witness. The prosecutor responded that she had been disclosed at the current trial and at the previous one, where she had been introduced but had not testified. The State was unable at that time to show that the defense had been notified, withdrew Ms. Marks as a witness, and stated that it would call her later. The trial court conducted hearings on the issue of disclosure, which we review below. Finding that the State had notified defense counsel of Ms. Marks’s statement, the trial court ruled that she could testify after defense counsel visited with her. The State, however, later decided that it would not call Ms. Marks, and she never testified at trial.
At a hearing the day after his objection to Ms. Marks’s testimony, defense counsel reiterated his position that her statement was a surprise. The prosecutor stated that her name had not been in the file originally supplied under the open file policy but had appeared on papers of “names provided” and that the prosecutor’s policy was always to call about a new witness and leave a message. Defense counsel responded that the name, had not been in the file and that no message had been left about Ms. Marks. The court told the prosecutor that until she could show “something that shows that you have had it in your file or that you notified him of it,” the witness could not testify. The court noted that Ms. Marks appeared to be a major witness and announced that it would take a short recess to research the matter of allowing her to testify after defense counsel had a chance to visit with her.
When the proceedings continued, the prosecutor produced a photocopy of a June 19, 1995, fax that summarized Ms. Marks’s testimony. The prosecutor explained that the assistant prosecutor had found it in his file, that the assistant’s file contained only cop ies of her file, and that she had overlooked the photocopy. Defense counsel stated that he had never seen it before, nor had he seen the statement of Jewell Williams which was attached as another page. The prosecutor stated that the State did not plan to call Ms. Williams. When the court asked defense counsel when he had reviewed the State’s file, defense counsel said that his investigator had reviewed it after June 19.
The trial court accepted into evidence Exhibit No. 2, which is a photocopy of pages 2 and 3 of a fax dated June 19, 1995. At the top of both pages a line of print reads, “LR.PD DETECTIVE DIV FAX NO. 5013993448.” One page summarizes Ms. Williams’s statement and the other summarizes the statement of Cynthia Marks.
After taking a recess to examine the evidence, the rules of criminal procedure, and case law, the court issued the following ruling on allowing Ms. Marks to testify:
According to the photocopies of the statements . . . dated June 18th, ’95, 10:45, this states the existence of this witness, Marks, and a general statement of what she was to testify to. This would have been after a Court Order closing discovery some six days before. A fax mark on both of these two pages . . . shows June 19th of’95, although it doesn’t directly say it’s faxed to the prosecutor’s office, that is the indication of it. So that means under 19.2 the State had a duty to disclose this. The State has an open file policy. And the Defense affirmatively states that after that date they did review or a member of their staff. . . reviewed that file, which means there was opportunity there ....
Now, Rule 19.7 says that if there was a violation of this Order, which the Court is not finding, . . . the Court has about four different things that it can do ... . I think that the proper order in this case would be to allow the defendant an opportunity to interview this witness before we go further. Therefore, I’m going to recess this jury until 9:15 in the morning to give counsel an opportunity to do that, and order the State to make this witness available to them in the interim.
The trial court has broad discretion in matters pertaining to discovery, which will not be second-guessed by the appel late court absent an abuse of discretion that is prejudicial to the appealing party. Banks v. Jackson, 312 Ark. 232, 848 S.W.2d 408 (1993). It is incumbent upon appellant to demonstrate actual prejudice resulting from an asserted discovery violation. Johninson v. State, 317 Ark. 431, 878 S.W.2d 727 (1994). Even where a discovery violation has occurred, we will not reverse if the error is harmless. See Mosley v. State, 323 Ark. 244, 914 S.W.2d 731.
Here, because Ms. Marks never testified, appellant was not prejudiced by any alleged discovery violations regarding her statement. Additionally, her statement was inculpatory because it referred to appellant’s alleged threat to kill his wife. Thus, the State had no obligation to disclose it as an exculpatory statement under Arkansas Rule of Criminal Procedure 17.1. Even if we were to find that a discovery violation existed, which we do not, the error was clearly harmless. We find no error in the trial court’s refusal to grant sanctions regarding this matter.
Statement of Jewell Williams
The trial court heard testimony by the prosecutor, Terry Raney-Ball, and defense counsel, R. S. McCullough, regarding discovery of the statement of Jewell Williams. Mr. McCullough asked the court to dismiss the charges, declare a mistrial, or grant a continuance because of the State’s failure to inform him about her statement. He based his motion on Arkansas Rule of Criminal Procedure 17.1, contending that the statement was exculpatory and that the State was therefore obligated to inform him of its existence. He argued that the statement could implicate someone else because, several days before her death, appellant’s wife had injuries and she did not attribute them to appellant! Ms. Ball asserted that the State had faxed Ms. Jewell’s statement to defense counsel on March 5, 1996. She produced a fax cover sheet and the written statement, which was introduced into evidence as Exhibit No. 15. A heading on the cover sheet reads, “Prosecuting Attorney’s Office,” and the word “Faxed” appears upon the page. The sheet contains the signature of assistant prosecutor John Johnson, the date 3/5/96, and the following handwritten remarks:
R. S.
I’m faxing you the name and number of a witness that we may call. I believe you were given this name before, but I wanted to be sure. Call if you have any questions.
Jewell Williams
376-4694
The exhibit’s second page, a summary of Jewel 'Williams’s statement, is identical to that previously introduced in Exhibit No. 2 and discussed above.
Mr. McCullough noted that the cover sheet “doesn’t show a machine fax sign or anything.” The prosecutor again denied that the State had failed to provide the statement to defense counsel. She also said that the State did not plan to use the statement and that she had made that decision because Ms. Williams was living with appellant, the statement was too prejudicial, and there was “not enough link.” The trial court found that defense counsel possessed the document before trial and denied appellant’s motion for a mistrial, dismissal of charges, or a continuance.
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 court to judge the credibility of the witnesses. Shibley v. State, 324 Ark. 212, 920 S.W.2d 10 (1996). Here, the trial court conducted lengthy, thorough hearings on the alleged discovery violation before finding that defense counsel had received the document before trial. Furthermore, the key in determining if a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor’s failure to disclose. Mosley v. State, 323 Ark. 244, 914 S.W.2d 731 (1996). We cannot say that the trial court clearly erred.
II. The trial court erred by not granting mandamus against the sheriff for failure to serve defense witness subpoena.
At appellant’s request, the Pulaski County Circuit Clerk issued a subpoena for a witness whose address was 109 Chestnut in Hot Springs, which is in Garland County. The Pulaski County Sheriff refused to serve the subpoena because the residence was outside of Pulaski County. Appellant then petitioned the trial court to issue a writ of mandamus to compel the sheriff to serve the subpoena. The court refused to do so.
Appellant argues that Arkansas Code Annotated § 16-43-208 (Repl. 1994) imposes upon the sheriff a duty to serve subpoenas authorized by the statute. An examination of the statute shows it to be silent regarding service of subpoenas. The statute addresses only a) the duty of the clerk of the court to issue subpoenas, b) the number of witnesses subpoenaed at the expense of the county, c) a party’s right to recall subpoenas, and d) the number of character witnesses to be subpoenaed at the expense of the county. Ark. Code Ann. § 16-43-208 (Repl. 1994).
The standard of review upon denial of a petition for a writ of mandamus is whether the trial court abused its discretion. State v. Sheriff of Lafayette County, 292 Ark. 523, 731 S.W.2d 207 (1987). Mandamus is not a writ of right but is within the discretion of the court, and the party applying for it must show a specific legal right and the absence of any other adequate remedy. Hicks v. Gravett, 312 Ark. 407, 849 S.W.2d 946 (1993). Here, appellant has failed in his effort to show his legal right to have the Pulaski County Sheriff serve a subpoena outside of the county. Additionally, another adequate remedy existed in that appellant could have requested service through the Garland County Sheriff or through a private process server. We find no abuse of discretion in the trial court’s refusal to issue the writ of mandamus.
III. The trial court erred by allowing the medical examiner to testify outside his area of qualification.
The trial court accepted State’s witness Dr. Charles Paul Kokes as an expert in forensic pathology. Appellant objected when Dr. Kokes, the medical examiner who performed the victim’s autopsy, was asked to state his conclusion as to how the victim died. Out of the hearing of the jury, the State said that Dr. Kokes would testify that the victim died of strangulation. Appellant contended that such testimony was beyond the expertise of Dr. Kokes, who had been qualified as a forensic pathologist rather than a reconstructionist; therefore, he argued, Dr. Kokes could testify only that the manner of death was asphyxiation, and not that the asphyxiation resulted from strangulation. He also contended that the testimony should not be allowed because it reached the ultimate issue in the case.
The trial court allowed testimony within the bounds of a legal degree of certainty within the field of expertise, and it overruled appellant’s objection as to reaching the ultimate issue. Dr. Kokes subsequendy testified within those bounds that the cause of death was strangulation. He based his opinion upon his observation of petechial hemorrhages on the surfaces of the victim’s eyes and eyelids, hemorrhage in her “cricoid thyroid muscle,” and hemorrhage behind both horns of her thyroid. He stated that petechial hemorrhages on eyes and eyelids are common when force is applied to the neck, and that internal hemorrhages such as those he had found are caused by external pressure to the neck. Finally, he voiced his opinion, based upon the autopsy he had performed, that there was no other reasonable explanation for her cause of death.
It is well settled that the determination of the qualifications of an expert witness lie within the discretion of the trial court, and the trial court’s decision will not be reversed unless that discretion has been abused. Suggs v. State, 322 Ark. 40, 907 S.W.2d 124 (1995). Arkansas Rule of Evidence 702 allows a witness qualified as an expert to testify, in the form of an opinion or otherwise, to scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue.
In the present case, an expert in forensic pathology based his opinion upon injuries he had observed while performing the autopsy on appellant’s wife, and his opinion helped determine how she died. Thus, his testimony about the cause of death was proper under Rule 702 of our rules of evidence. We find no abuse of discretion by the trial court in permitting Dr. Kokes to express his opinion that the victim died by strangulation.
IV. The trial court erred by not granting appellant’s Batson motion regarding venireperson Orji.
The State used its first two peremptory strikes against a black male and a white female, and its third strike against Stephen Ogi, a black male. Appellant, who is an African-American, objected that the strike was a racial one in violation of Batson v. Kentucky, 476 U.S. 79 (1986).
In Batson the United States Supreme Court held that the Equal Protection Clause of the United States Constitution forbids a prosecutor in a criminal case to use peremptory strikes to exclude jurors solely on the basis of race. Sonny v. Balch Motor Co., 328 Ark. 321, 944 S.W.2d 87 (1997). Batson was somewhat refined by Purkett v. Elem, 514 U.S. 765 (1995), which reads in part as follows:
Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination. The second step of this process does not demand an explanation that is persuasive, or even plausible. “At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct., at 1866 (plurality opinion); id., at 374 111 S.Ct. at 1874 (O’Connor, J., concurring in judgment).
514 U.S. at 767 (citations omitted) (emphasis added). The standard of review for reversal of a trial court’s Batson ruling is whether the trial court’s findings are clearly against the preponderance of the evidence. Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996).
Appellant focuses upon the second step, which requires the State to come forward with a race-neutral reason for the strike. At trial, the prosecutor listed the following reasons for the strike: in a group of six jurors, only Mr. Orji did not shake his head “yes” or “no” when questioned; he was not frank with her, and she thought his answers perhaps to be evasive; and the assistant prosecutor informed her that the State had struck Mr. Orji on a previous panel for inappropriate answers about sitting in judgment of someone or about the issue of self-defense. The trial court noted that two of the nine jurors already selected were of African descent, that the State had exercised one peremptory strike against a Caucasian and two against people of African descent, and that there remained on the panel another African-American to be called as a possible juror. The court ruled the State’s response to be racially neutral and denied the Batson motion.
Appellant contends that the reasons offered by the State were the type that Batson says are lukewarm, seemingly benign reasons that could always be used, if permitted, to discriminatorily use the peremptory strike. Our dissenting colleague agrees with appellant’s position and, as he did in Bosquet v. State, faults the trial court for failing to make a sensitive inquiry into the State’s explanation. Bosquet v. State, 59 Ark. App. 54, 64, 953 S.W.2d 894, 900 (1997), (Griffen, J., dissenting), rev. denied, (Ark. Sup. Ct., December 4, 1997). A review of decisions regarding the trial court’s duty to make such an inquiry is therefore appropriate.
The Arkansas Supreme Court initially interpreted Batson as requiring, in every instance, a sensitive inquiry into the direct and circumstantial evidence available to decide if the State had made an adequate explanation. See Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988); Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987). Later, however, that requirement was modified as follows:
We now hold that upon a showing by a defendant of circumstances which raise an inference that the prosecutor exercised one or more of his peremptory challenges to exclude venire persons from the jury on account of race, the burden then shifts to the state to establish that the peremptory strike(s) were for racially neutral reasons. The trial court shall then determine from all relevant circumstances the sufficiency of the racially neutral explanation. If the state’s explanation appears insufficient, the trial court must then conduct a sensitive inquiry into the basis for each of the challenges by the state.
Colbert v. State, 304 Ark. 250, 255, 801 S.W.2d 643, 646 (1990) (emphasis added).
In recent years, the Arkansas Supreme Court has consistently held that no sensitive inquiry is required when the neutral explanation given by the State is sufficient. One year after the Purkett decision, our supreme court stated, “Only if the defendant makes a prima facie case and the State fails to give a racially neutral reason for the challenge is the court required to conduct a sensitive inquiry.” Wooten v. State, 325 Ark. 510, 514, 931 S.W.2d 408, 410 (1996) (quoting Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996), cert. denied, 117 S. Ct. 979 (1997)). In a very recent Batson decision, our supreme court reiterated, “If the trial court is not satisfied with the State’s explanation, it must conduct a sensitive inquiry, and the defendant must explain how the state’s racially neutral explanation is merely a pretext.” Roseby v. State, 329 Ark. 554, 560, 953 S.W.2d 32, 35 (emphasis added) (1997). The duty of the trial judge is explained as follows:
These procedures have been well established in our case law and are consistent with the principles set forth in Batson through Purkett. When the party having the burden of moving forward declines to proceed further, the trial court decides whether a prima facie case has been made. If a prima facie case has been made, the court must require an explanation and then determine . . . whether the neutral explanations given are genuine or pretextual.
Sonny v. Balch Motor Co., 328 Ark. 321, 328, 944 S.W.2d 87, 91 (1997).
Our own court recently applied the Batson doctrine in Bosquet v. State, 59 Ark. App. 54, 953 S.W.2d 894 (1997), rev. denied, (Ark. Sup. Ct., December 4, 1997), where we foHowed the cases discussed above and said:
In Purkett, the Court restated the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.
Our courts have adhered to the guidelines prescribed by the Supreme Court and have developed specific procedures to be followed when considering a Batson challenge. Sonny v. Balch Motor Co., supra. As was reiterated by the court in Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996), cert. denied 117 S. Ct. 979 (1997):
First, the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. In the event that the defendant makes a prima facie case, the State has the burden of showing that the challenge was not based upon race. Only if the defendant makes a prima facie case and the State fails to give a racially neutral reason for the challenge is the court required to conduct a sensitive inquiry.
Id. at 514, 931 S.W.2d at 410 (quoting Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996)).
Bosquet at 58, 953 S.W.2d at 896-7 (emphasis added).
The appellate court affords great deference to the trial court’s exercise of discretion in determining discriminatory intent relating to the use of a peremptory strike, and we reverse only if it is clearly against a preponderance of the evidence. Sonny v. Batch Motor Co., 328 Ark. at 329, 944 S.W.2d at 92. We emphasize, with all due respect to the dissenting judge, that we will not deviate from this standard of review. Nor are we at liberty to ignore the cases of the United States Supreme Court and the Arkansas Supreme Court, which clearly state that a sensitive inquiry is not a requirement in every Batson case. Our careful review of case law shows that once the trial court determines that explanations offered by the striking party are racially neutral, there simply is no requirement of a sensitive inquiry.
Here, the trial court examined all relevant evidence and determined that the explanations offered by the State were racially neutral. See Colbert, 304 Ark. at 255, 801 S.W.2d at 646 (1990). There was no requirement, therefore, that the trial court undertake a sensitive inquiry. We find that the trial court’s decision regarding racially-neutral explanations was not clearly against a preponderance of the evidence.
V. The trial court erred by not granting a mistrial in regard to the racially disproportionate jury panel.
During voir dire, appellant moved for a mistrial on the ground that the jury panel did not represent the racial make-up of Pulaski County, where the case was tried. He asserted that there were only five black persons in the panel of thirty-two. The trial court denied the motion, noting that the Arkansas Supreme Court has upheld the court’s method of calling the jury panel at random from the voter registration.
The trial court was correct. See Lee v. State, 327 Ark. 692, 699, 942 S.W.2d 231, 234 (1997). Furthermore, we also note that there is no requirement that the jury actually chosen mirror the community and reflect the distinctive groups in the population. Danzie v. State, 326 Ark. 34, 42, 930 S.W.2d 310, 314 (1995).
Affirmed.
Bird and Crabtree, JJ., agree.
Arey and Roaf, JJ., concur.
Griffen, J., dissents. | [
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John B. Robbins, Chief Judge.
Appellant Ivory McKenzie was placed on probation for possession of a controlled substance and for possession with intent to deliver. The illegal substance was cocaine, and the offenses were committed in October and November of 1994. Among the conditions of probation was that he not engage in illegal drug use. The State moved to revoke alleging that appellant tested positive for illegal drugs on three separate occasions during his probationary period. A hearing on the matter was held on February 3, 1997, and the circuit court of Lincoln County found that appellant had violated the terms of his probation, resulting in revocation. He was given two concurrent ten-year sentences. He now appeals the revocation of his probation arguing that there is insufficient evidence upon which to base the revocation. We affirm.
Probation may be revoked upon a finding by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of the probation. Ark. Code Ann. § 5-4-309(d) (Repl. 1993). Therefore, evidence that is insufficient to convict a person of the offense may be sufficient to revoke probation. Billings v. State, 53 Ark. App. 219, 921 S.W.2d 607 (1996). On appeal of a revocation, the revocation will not be overturned unless the decision is clearly against the preponderance of the evidence. Id. We must give due regard to the trial court’s superior position in determining the credibility of witnesses and the weight to be given their testimony. Id. Given these standards of review, the trial court’s decision to revoke appellant’s probation is not clearly against the preponderance of the evidence.
The evidence revealed that appellant tested positive for cocaine on June 5, 1996, and positive for marijuana on June 5, July 12, and October 2, 1996. He refused to submit to a later drug screen. Appellant’s contention is not that he did not use illegal drugs, but that he had an excusable reason for using them. He testified that he suffers from keloid scarring and uses marijuana to gain relief from the pain caused by that condition. He admitted that no doctor has prescribed or recommended using marijuana or cocaine. Appellant also testified that he suffers from a split personality such that he could not swear he did not take the illegal drugs for which he tested positive. He presented no documentation to support his allegation of split personality disorder.
While we might have sympathy for appellant’s medical condition, it does not excuse his illicit drug use. Medical treatments to prevent infection and to dissipate pain were available by prescription under a physician’s care and control, as his physician testified. His physician recommended to appellant that he attend a pain clinic for ongoing problems with his condition, but he never recommended illicit drug use. The doctor’s testimony included the following statements: “[I]n no way am I advocating the use of illegal drugs, because they are illegal. ... I don’t advocate the use of marijuana.”
Appellant admitted to using, at some point in his life, every drug “from heroin to cocaine.” Ironically, he denied illicit drug use during the time he tested positive. Given his belief that he suffered from a split personality disorder, appellant could not assure the trial court that he did not use drugs in the past nor could he assure the trial court that he would not take drugs in the future.
During his probation, the State attempted to assist appellant in getting help for his illicit drug use. Appellant stated that he could not complete such a program for various reasons. For example, he stated that he could not dedicate himself to the program because he would resort to drugs to relieve the pain. None of his reasons justify violation of probation conditions, and he presents us no compelling authority to alter the outcome of this revocation hearing. With this evidence, the trial court was not clearly erroneous when it revoked appellant’s probation.
Affirmed.
Bird and Griffen, JJ., agree. | [
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John E. Jennings, Judge.
This case involves a boundary-line dispute. Marilyn Ladell Fields appeals from an order of the Pope County Chancery Court which found a boundary line by agreement between her property and that of appellee William Carroll Griffen, the adjoining landowner to the south. She argues that the trial court erred in finding a boundary-line agreement. We agree.
Although the facts of this case are rather complicated, the issue essentially involves adjoining landowners who were unaware that their respective warranty deeds contained legal descriptions that overlapped as to a strip roughly eighty feet wide along the boundary. Appellee acquired the south tract in 1987. Fie purchased the land from Thompson Industries. He testified that at the time of purchase he walked the property with Harry Scott, who runs Thompson Industries, and was shown a steel stake near the Highway 7 frontage. A fence ran from there across the property to a round pipe, and appellee was told that the fence and the pipe and stake marked the boundary. The land was hilly and had big oak trees. The lower, southernmost part of his tract had undergone excavation. Appellee began more excavation in April 1987. Appellee had trees logged off the uphill, northern part of his tract, instructing the loggers to “cut trees to the north line, and by that I mean where the fence row was and in between the stake on the front and the back.”
In 1989, appellant and her husband, Buddy Fields, now deceased, acquired the adjoining north tract. Appellee and Buddy Fields were friends, and appellee had suggested to Buddy that he purchase the north tract. Appellee and Buddy discussed their wishes to develop their respective tracts from time to time. In December 1992 Buddy Fields contacted his friend, appellee, to tell him that he had made arrangements to excavate and sell dirt from the north tract and to see if appellee wished to do the same on the south. The two men met on the property along with the excavators. Buddy Fields handled the transaction, and indicated where the property line was to the excavators. There were remnants of an old fence. A line was strung from an existing pipe in the ground across the property to a stake, and the excavators used this line as a reference for the removal of dirt from both tracts. Appellee testified that there was no confusion or dispute regarding the boundary line until after Buddy’s death in January 1995, when appellant had a survey done and the overlapping eighty-foot strip along the boundary was discovered. Appellant erected a fence on the southern edge of the overlap, and appellee filed suit to quiet title to the disputed strip. The chancellor found that “there was an agreed boundary between Buddy Fields and [appellee].”
In order for there to be a valid boundary-fine agreement, certain factors must be present: (1) there must be an uncertainty or dispute about the boundary line; (2) the agreement must be between the adjoining landowners; (3) the fine fixed by the agreement must be definite and certain; and (4) there must be possession following the agreement. Jones v. Seward, 265 Ark. 225, 578 S.W.2d 16 (1979); Bryson v. Dillon, 244 Ark. 726, 427 S.W.2d 3 (1968). With regard to the first element, all the evidence in the case at bar indicates that there was no dispute between the parties as to the boundary fine until after the death of Buddy Fields. While the overlapping deeds might have created uncertainty, the parties were not aware of any uncertainty nor was there any dispute at the time of the purported agreement between Buddy Fields and appellee. It has been held that only where the true line is unknown, or is difficult of ascertainment, and the parties establish the line to settle a disputed and vexatious question as to the boundary line between them, is the agreement binding. Randleman v. Taylor, 94 Ark. 511, 127 S.W. 723 (1910). When numerous conflicting surveys gave rise to uncertainty as to the division line and created dispute and controversy, it was held that adjoining landowners could orally agree upon a division fine. Furqueron v. Jones, 186 Ark. 155, 52 S.W.2d 962 (1932). In the case at bar the purported agreement between Buddy Fields and appellee was not made to settle any dispute or uncertainty; the uncer tainty created by the overlapping legal descriptions in their respective deeds had not been discovered.
Appellant also argues that the trial court erred in not quieting title in her favor to the disputed strip. When the chancellor found that a boundary line was established by agreement, he declined to address the other issues presented by both parties at trial, including adverse possession and acquiescence. Because we reverse on the finding that there was an agreed boundary, we remand for the chancellor to address the parties’ other issues.
Reversed and remanded.
Arey and Stroud, JJ., agree. | [
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Judith Rogers, Judge.
In a jury trial, the appellant, Bilgay Lobania, was convicted of rape and sentenced to a term of ten years in prison. As his only issue on appeal, appellant contends that the trial court erred in denying his motion to suppress evidence seized in a search of his residence. We reverse, because we agree that the record fails to demonstrate that appellant voluntarily consented to the search.
The testimony adduced at the suppression hearing was as follows. On July 1, 1996, Sergeant Kevin Johnson of the Van Burén Police Department received a report from the victim that she had been raped and kidnapped by the appellant. While en route to appellant’s residence, the purported scene of the attack, the victim observed the appellant riding in a vehicle. Officer Johnson initiated a stop, placed appellant under arrest, and transported him to the police department. Appellant is Hispanic, and Johnson perceived that there was a language barrier, so he called in Jose Vasquez, a Spanish-speaking city employee, to act as an interpreter. Officer Johnson testified that he asked Vasquez to advise appellant of the charges against him and to ask appellant if his residence could be searched with reference to a gun that the victim claimed to have been used in committing the offenses. Johnson said that appellant accompanied him, Vasquez, and Officer Brent Grill to the residence and was present during the search when the gun was found.
Jose Vasquez testified on behalf of the State. He said that he had lived in Mexico for fourteen years and was raised by his grandparents, who spoke Spanish. He then spent nine years in Corpus Christi, Texas, where Spanish was the primary language spoken. Vasquez testified that he moved to Arkansas fourteen years ago when he was age thirty or thirty-two and that he had learned to speak English at that time. He said that he now speaks mostly English, only conversing with his friends in Spanish on an infrequent basis. He testified that he could carry on a conversation in Spanish but that he did not “speak too much of it.” Vasquez stated that he had acted as an interpreter in municipal court but that he was not a certified interpreter. He testified that, while he speaks Spanish, “sometimes I need to think a lot, of some of the terms in English. I have to think of the word.”
Vasquez further testified that Officer Johnson asked him to tell the appellant why he had been arrested and to advise appellant of his rights. Vasquez said that appellant indicated that he understood by saying that he did not rape the victim. Vasquez stated that Johnson told him to ask appellant for permission to search his residence and that he told the appellant that “Kevin Johnson got a permit to go search his apartment where he lives.” He testified that, when he asked appellant for permission to search, appellant responded by saying “okay,” or “go ahead.” On cross-examination, Vasquez said that “when I told him, you know, you get permission to search his room, and he said, ‘okay.’”
All searches without a valid warrant are unreasonable, unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant. Johnson v. State, 27 Ark. App. 54, 766 S.W.2d 25 (1989). Consent is a justification for a warrantless search. Id. When the State claims that a search is justified by consent, it has the burden of proving that the consent was freely and voluntarily given and that there was no actual or implied duress or coercion. Saul v. State, 33 Ark. App. 160, 803 S.W.2d 941 (1991). In reviewing the denial of a motion to suppress evidence, the appellate court makes an independent determi nation based on the totality of the circumstances, and we reverse the decision only if it is clearly erroneous or clearly against the preponderance of the evidence. Mounts v. State, 48 Ark. App. 1, 888 S.W.2d 321 (1994).
From our review of the totality of the circumstances, we hold that appellant did not freely and voluntarily consent to the search of his residence. The interpreter admittedly did not have a strong command of the English language, and we are convinced that he did not effectively communicate the officer’s request for permission to search the residence. Vasquez’s statements to appellant that the officer “got a permit” and that “you get permission to search” indicate that he told appellant that a search was allowed and forthcoming, rather than asked appellant for his consent to a search. Although perhaps innocently, Vasquez’s translation was misleading. The trial court’s decision upholding the search is clearly erroneous, and we reverse and remand for a new trial.
Stroud and Neal, JJ., agree. | [
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Margaret Meads, Judge.
This is an appeal from a decision of the Workers’ Compensation Commission that awarded dependency benefits. Appellant contends the Commission erroneously interpreted Ark. Code Ann. § 11-9-527 (Repl. 1996), and there is no substantial evidence to support the Commission’s finding that the decedent’s children are entitled to benefits. We affirm.
James R. Brown was killed in an automobile accident on June 7, 1994, while within the scope of his employment. Mrs. Lucinda Penick, his former wife, brought a claim for dependent workers’ compensation benefits on behalf of their three children, Jamie Lee, born January 28, 1977, Melva Sue (“Susie”), born June 19, 1979, and Angela Marie, born February 23, 1981. Appellant denied the claim on the basis that the children were not dependent on the decedent and not entitled to benefits under a strict construction of Ark. Code Ann. § 11-9-527(c).
At the hearing on the claim, Mrs. Penick testified that she and Mr. Brown were divorced in January 1993; that she was awarded custody of Jamie; and that Mr. Brown was awarded custody of Susie and Angela. No child support was ordered from either party. Mr. Brown supported Susie and Angela, and he bought clothing and school supplies for Jamie, and occasionally gave Jamie money.
In the summer of 1993, Mr. Brown asked Mrs. Penick to send Susie and Angela to school in McGehee; the girls came to live with Mrs. Penick; and Mr. Brown moved to McCrory. Mr. Brown bought school clothing and supplies for all the girls. Although Mr. Brown refused to give Mrs. Penick money or to pay child support until ordered to do so, he gave the girls money, brought groceries to the house, provided money for gas, and gave them furniture he no longer needed. In August 1993, Mrs. Penick began having problems with Susie, and Susie went to live with Mr. Brown.
Mrs. Penick testified that she tried to obtain child support through the Child Support Enforcement Unit because Mr. Brown refused to give her any money, and she was unable to provide what the girls needed. He gave the children money, but they would “just blow it” and not buy the things that they needed.
In January 1994, Susie returned to five with Mrs. Penick. Subsequently, Mrs. Penick went to Juvenile Court in an attempt to obtain child support, but Mr. Brown never appeared in court. Sometime after April 1994, Mrs. Penick contacted an attorney to obtain child support from Mr. Brown, but she had not yet initiated a chancery court proceeding when Mr. Brown died. She said that she needed assistance in supporting the children, and she expected to get it from Mr. Brown.
Mr. Brown did not see the children from January 1994 until he died in June. Mrs. Penick told him that they wanted to see him, but he said he did not have time, that he went to work early and got off late, and that he had to work. Mrs. Penick asked him for money; he said he would send a money order, but he never did. She testified that he was angry at her because she wanted child support and that he had cut off contact with her because she had attempted to obtain child support.
Debra Wiggins, Mr. Brown’s daughter with whom he lived after January 1994, testified that he provided no support for the girls after that time. She also testified that although he did not see the girls after January, he really could not go anywhere because of the hours he was working.
The administrative law judge held that the children were entided to an award of dependency benefits pursuant to Ark. Code Ann. § ll-9-527(c)(3). The full Commission affirmed the law judge and held that the children were “wholly” and “actually” dependent upon the decedent. The Commission was not persuaded that previous judicial interpretations of “wholly and actually dependent” conflicted with Act 796, and it refused to depart from them. It stated:
We accept Mrs. Penick’s testimony as credible, and specifically find therefrom that decedent has, in fact, provided varying degrees of support to his minor children both as a custodial and non-custodial parent. From that same evidence, we also specifically find that Mrs. Penick, after she had assumed the primary custodial role, made efforts to pursue some form of official child support remedy prior to decedent’s death. Also, given the maintenance needs of school-aged children in a modernized society, and taking into account that decedent’s minor children have, in fact, needed school supplies, clothes, and other items which he provided (at least in part) while alive, we specifically find that the necessary expenses of decedent’s minor children will naturally increase as they grow older. In light of the above, we are persuaded to specifically find that decedent’s minor children had a “reasonable expectation of future support” from him, and were accordingly “actually,” as well as “wholly,” dependent upon him at the time of his death in a work-related accident.
Appellant first argues that the Commission erred in its interpretation of Act 796 of 1993 and Ark. Code Ann. § 11-9-527(c), which provides that “compensation for the death of an employee shall be paid to those persons who were wholly and actually dependent upon the deceased employee.” According to appellant, Act 796’s mandate of strict statutory construction repeals prior case law and prohibits dependency benefits in this case. Appellant urges us to adopt the dictionary meaning of the words “wholly” and “actually” and to hold that in order for a person to be entitled to dependency benefits a person must prove that, at the time of the compensable injury which caused death, they were “entirely or completely and in fact or reality” dependent upon the decedent for support. Appellant says the statute mentions nothing about reasonable expectation or a moral obligation of a parent to support his child.
Under the legislative declaration of Act 796, “all prior opinions or decisions of any administrative law judge, the Workers’ Compensation Commission, or courts of this state contrary to or in conflict with any provision in this act” are nullified (Ark. Code Ann. § 11-9-1001 (Repl. 1996)). Also, “administrative law judges, the Commission, and any reviewing courts shall construe the provisions of [the Arkansas Workers’ Compensation Law] strictly.” (Ark. Code Ann. §§ 11-9-704(c)(3) (Repl. 1996)). Prior to Act 796, workers’ compensation provisions were construed “liberally.” (Ark. Code Ann. § 11-9-704(c)(3) (Supp. 1991)).
In Vanderpool v. Fidelity & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997), the rules of statutory construction were set forth:
In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. The basic rule of statutory construction to which all other interpretive guides defer is to give effect to the intent of the legislature. As a guide in ascertaining legislative intent, this court often examines the history of the statutes involved, as well as the contemporaneous conditions at the time of their enactment, the consequences of interpretation, and all other matters of common knowledge within the court’s juris diction. Furthermore, in construing any statute, this court will place it beside other statutes relevant to the subject matter in question, giving it meaning and effect derived from the combined whole.
327 Ark. at 415, 939 S.W.2d at 284-85 (citations omitted). Moreover, the Workers’ Compensation Commission is an administrative agency, and as a general rule administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than are courts to determine and analyze legal issues affecting their agencies; therefore, while not conclusive, the interpretation of a statute by an administrative agency is highly persuasive. Olsten Kimberly Quality Care v. Pettey, 55 Ark. App. 343, 934 S.W.2d 956 (1997). An administrative agency’s interpretation of a statute or its own rules will not be overturned unless it is clearly wrong. Arkansas Dep’t. of Human Servs. v. Hillsboro Manor Nursing, 304 Ark. 476, 803 S.W.2d 891 (1991).
Dependency benefits were originally payable to persons who were “wholly dependent” upon a deceased employee. The courts interpreted the term “wholly dependent” in the statute (then Ark. Stat. Ann. § 81-1315(c) (Supp. 1951)) as applying to those ordinarily recognized in law as dependents, including children. Chicago Mill & Lumber Co. v. Smith, 228 Ark. 876, 310 S.W.2d 803 (1958).
In 1976 the Legislature amended § 81-1315(c) to provide that dependency benefits are payable to persons who were “wholly and actually dependent” upon the deceased employee. “Actually dependent” was then interpreted to require some showing of actual dependency; dependency is a question of fact to be determined in fight of prior events; it is not controlled by an unusual temporary situation. Roach Mfg. Co. v. Cole, 265 Ark. 908, 582 S.W.2d 268 (1979). “Actually dependent” does not require total dependency; it requires a showing of actual support or a reasonable expectation of support. Porter Seed Cleaning, Inc. v. Skinner, 1 Ark. App. 230, 615 S.W.2d 380 (1981).
In 1993, the Legislature again amended the Workers’ Compensation Law. However, no changes were made to survivor benefits except to increase the funeral expense benefit from $3,000 to $6,000 and to modify the effective date. Thus the new provisions regarding survivor benefits are virtually the same as the old.
It can hardly be said that the Legislature in making the sweeping changes to our workers’ compensation law in 1993 was unaware of our interpretation of the words “wholly and actually dependent.” Roach, supra. See also, Williams v. Edmondson, 257 Ark. 837, 520 S.W.2d 837 (1995); Tune v. Cate, 301 Ark. 66, 781 S.W.2d 482 (1989); Smith, Admr. v. Ridgeview Baptist Church, 257 Ark. 139, 514 S.W.2d 717 (1974). Yet, case law interpreting these words was not expressly overridden (see Ark. Code Ann. §§ 11-9-107(e), 713(e) (Repl. 1996)), and the dependency benefit provisions of prior law were not substantively changed. Moreover, the declaration of legislative intent regarding the new Act, found in Ark. Code Ann. § 11-9-1001 (Repl. 1996), provides:
The Seventy-Ninth General Assembly intends to restate that the major and controlling purpose of workers’ compensation is to pay timely temporary and permanent disability benefits to all legitimately injured workers that suffer an injury or disease arising out of and in the course of their employment, to pay reasonable and necessary medical expenses resulting therefrom, and then to return the worker to the work force. ... It is the specific intent of the Seventy-Ninth General Assembly to repeal, annul, and hold for naught all prior opinions or decisions of any . . . courts of this state contrary to or in conflict with any provision in this act.
The legislative intent as expressed in this section contains nothing to support the view that prior case law in regard to dependency benefits was repealed.
As to appellant’s argument that a person must prove that they were entirely and “in fact” dependent upon the decedent for support, we note that although the 1976 amendment to Ark. Stat. Ann. § 81-1315(c) imposed the additional requirement that the decedent’s spouse establish “in fact” some dependency upon the deceased employee before being entitled to death benefits, no such requirement was imposed for child beneficiaries. Indeed, in Roach, supra, our supreme court held that a ten-year-old child who was being supported by her mother at the time of her father’s death was actually dependent upon her father. Although her mother had taken no legal action to obtain support for the child, our supreme court held that with respect to the child, the lapse of eleven months without legal action on the mother’s part did not demonstrate that there was no longer any reasonable expectation of support from the father. Because the child’s necessary expenses would naturally increase as she grew older, her mother might not be able to maintain her in her accustomed mode of living, and the child could not act for herself, our supreme court found a reasonable expectation of future support and held that the child was entitled to dependency benefits.
Appellant asks that we adopt the dictionary definition of the words “wholly” and “actually.” However, we are not limited to the dictionary definition of a term. Bill Fitts Auto Sales, Inc. v. Daniels, 325 Ark. 51, 922 S.W.2d 718 (1996). Indeed, it has been held error to take the definition of a word from the dictionary rather than from the Workers’ Compensation Act and the appellate cases which have construed and interpreted it. Williams v. Cypress Creek Drainage, 5 Ark. App. 256, 635 S.W.2d 282 (1982).
Moreover, the adoption of appellant’s definition of “wholly and actually dependent,” which would require proof that at the time of the decedent’s death the children were “entirely or completely and in fact or reality” dependent upon him for support, would lead to some untoward results. Under such an interpretation, where a custodial parent has even a small amount of income available for support of a child, that child could never be considered “wholly and actually dependent” upon a deceased non-custodial parent; nor could a child with a part-time job; nor a child of two working parents. We do not believe the legislature intended such untoward results to occur.
In regard to appellant’s contention that the statute mentions nothing about a moral obligation to support one’s minor child, suffice it to say that a parent has a legal duty to support a minor child. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979); Yell v. Yell, 56 Ark. App. 176, 939 S.W.2d 860 (1997).
Because the Seventy-Ninth General Assembly made no substantive changes to § 11-9-527 and did not specifically annul prior case law construing it, we cannot say that prior case law interpreting “wholly and actually dependent” is contrary to or in conflict with the legislative intent, that prior case law must be set aside, or that the Commission’s interpretation of the statute was clearly wrong.
Appellant next argues there is no substantial evidence to support the Commission’s finding that the children had a reasonable expectation of support and are entitled to dependency benefits. Appellant contends that at the time of his death and for at least five months prior to his death, Mr. Brown was not wholly and actually supporting the children, there was no order of child support, and the children were not even partially dependent upon Mr. Brown at the time of his death.
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979). 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. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983).
In Chicago Mill & Lumber, supra, our supreme court held that persons who are ordinarily recognized in law as dependents, including a wife and children, and to whom the employee owed a duty of support are “wholly dependent.” When the widow and children are not living with the employee at the time of his death, there must be some showing of actual dependency. Roach, supra. “Actually dependent” does not require total dependency but rather a showing of actual support or a reasonable expectation of support. Porter Seed Cleaning, Inc., supra. Dependency is an issue of fact rather than a question of law, and the issue is to be resolved based upon the facts present at the time of the compensable event; it may be based upon proof of either actual support from the decedent or a showing of a reasonable expecta tion of support. Hoskins v. Rogers Cold Storage, 52 Ark. App 219, 916 S.W.2d 136 (1996). The support being furnished at the time of the worker’s injury is important, but conditions prior to the injury should be considered; a reasonable period of time should be used. Williams, supra. The fact of dependency is to be determined in the light of prior events and is not to be controlled by an unusual temporary situation. Roach, supra.
Here, the Commission found testimony regarding the children’s dependency to be credible and specifically found that the decedent had provided varying degrees of support to the children. It considered the children’s increasing needs as they grow older and found that the children were wholly and actually dependent upon the decedent at the time of his death. Viewing the evidence in the fight most favorable to the findings of the Commission, we find there is substantial evidence to support the Commission’s award of benefits.
Affirmed.
Griffen, J., agrees; Akey, J., agrees, writing separately.
Pittman, Jennings, and Stroud, JJ., dissent. | [
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John Mauzy Pittman, Judge.
The appellant in this criminal case was charged with delivery of cocaine. After a jury trial, he was convicted of that offense and sentenced to ten years in the Arkansas Department of Correction. From that conviction, comes this appeal.
For reversal, appellant contends that there is insufficient evidence to support his conviction for delivery of cocaine. He argues that an audiotape played for the jury and a witness’s testimony based on that audiotape should not have been admitted into evidence, and asks us to disregard those items of evidence and hold that the remaining evidence is insufficient to sustain his conviction.
Appellant’s argument misconstrues our review of the sufficiency of the evidence. We consider sufficiency questions before we consider any alleged trial errors. In determining whether a finding of guilt is supported by substantial evidence, we review the evidence, including any that may have been erroneously admitted, in the fight most favorable to the verdict. Davis v. State, 318 Ark. 212, 885 S.W.2d 292 (1994); Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). Here the evidence, including that alleged to have been erroneously admitted, shows that a confidential informant arrived at appellant’s home on the day in question, told appellant that he wanted a “five-oh,” gave appellant $50.00, and received two rocks of crack cocaine. This evidence is sufficient to support the jury’s finding of appellant’s guilt.
Nor do we think that the evidence in question was improperly admitted. Appellant contends that the audiotaped conversation of the transaction between himself and the informant should not have been considered by the jury because it was inaudible and, therefore, was untrustworthy. However, such recordings are admissible unless the inaudible portions are so substantial as to render the recording as a whole untrustworthy. Loy v. State, 310 Ark. 33, 832 S.W.2d 499 (1992). This is a matter within the trial court’s discretion, and we will not reverse absent an abuse of that discretion. Id. According to the appellant’s abstract in the case at bar, approximately half of the audiotape that was played for the jury was audible, including the question “what do you need now” and the response “I need a five-oh.” The circuit court did not believe that the tape was so deficient as to be of no assistance to the jury, and we cannot say that the circuit court abused its discretion on this point.
Appellant also argues that the trial court erred in allowing Agent Richard Wiggins to “interpret” the audiotape. We do not agree. Although Agent Wiggins testified concerning what was said on the tape, this was in response to a question regarding what he had heard while auditing the conversation as it took place. Furthermore, Agent Wiggins’s testimony was limited to those parts of the conversation that were audible on the audiotape. Finally, while Agent Wiggins was allowed to testify that “five-oh” was a term meaning fifty dollars worth of illegal drugs, this testimony was based on his specialized training and experience as a police officer engaged in drug task force assignments. Because Agent Wiggins could have qualified as an expert in this area under Ark. R. Evid. 702, his testimony was not improperly admitted. See Martin v. State, 328 Ark. 420, 944 S.W.2d 512 (1997).
Affirmed.
Arey and Roaf, JJ., agree.
Appellant asserts on appeal that the audiotape was never formally introduced into evidence, although the tape was played for the jury and the jury was permitted, without objection, to take the tape to the jury room during deliberation. Although appellant, after the close of all the evidence, raised questions concerning the formalities of the audiotape’s introduction, no objection was made, no relief was requested, and no ruling was obtained. Under these circumstances, no issue relating to the formalities of the audiotape’s introduction is before us. See Burton v. State, 327 Ark. 65, 937 S.W.2d 634 (1997); Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996). | [
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Sam Bird, Judge.
Tyrone H. Terrell appeals a decision of the Workers’ Compensation Commission that denied him a psychological evaluation and temporary total disability benefits during any necessary treatment. He argues that the decision is not supported by substantial evidence. We agree that appellant should have been granted a psychological evaluation and reverse and remand to the Commission for that purpose.
Appellant, a truck driver, was injured in a compensable vehicle accident on August 10, 1995, and sustained injuries to his neck, right shoulder, right leg, and lower back. It was stipulated that the injuries were compensable and that medical benefits and temporary total disability benefits had been paid through January 28, 1996. Appellant sought additional medical treatment in the form of a psychiatric evaluation and treatment for depression.
Appellant testified that he was nearing a bridge in Meridian, Mississippi, on a two-lane road when another truck pulling a large, oversized fabricated home tried to pass him and collided with his truck. Appellant’s truck was forced into a wall on the bridge, the other truck jackknifed in front of him, and the trucks became tangled and went down an embankment. Appellant was treated for cervical, thoracic, and lumbar strain with physical therapy and work hardening and was certified as having reached maximum physical improvement on January 19, 1996.
After the accident, appellant began having recurring dreams in which a truck he was driving would go off of a bridge, explode, or catch on fire with him inside, apparently unable to get out. He said he also began to have frequent headaches and debilitating pain and was afraid to drive a truck again. Following a recommendation by Joyce Kay Hamilton, M.L.A., a psychotherapist who interviewed appellant in connection with the work-hardening program, appellant’s treating physician referred him to Dr. Louis E. Deere, D.O., a psychiatrist. However, appellant said Dr. Deere visited with him for only about fifteen minutes and scheduled him for a return appointment for evaluation. Appellee refused to authorize payment, and appellant did not go back. Appellant testified that he felt like he needed continued medical treatment because he suffers from sleep deprivation, chronic pain, and nightmares about the accident.
The administrative law judge held that appellant had failed to prove by a preponderance of the credible evidence that a psychological evaluation or treatment was reasonable or medically necessary to treat the injuries he sustained in the August 1995 accident. The Commission affirmed and adopted the opinion of the law judge.
When we review a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979); Crossett Sch. Dist. v. Gourley, 50 Ark. App. 1, 899 S.W.2d 482 (1995). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Carroll Gen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996); Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). We do not reverse a decision of the Commission unless we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. Milligan v. West Tree Serv., 57 Ark. App. 14, 941 S.W.2d 434 (1997); Willmon v. Allen Canning Co., 38 Ark. App. 105, 828 S.W.2d 868 (1992).
On appeal, appellant, argues that the Commission’s decision that he had failed to prove that a psychological evaluation or treatment was reasonable and necessary for treatment of his compensa-ble injury is not supported by substantial evidence. He contends that he is totally disabled by his mental distress and that his primary physician recommends that he not return to work until he has had a psychological evaluation and any necessary treatment. Arkansas Code Annotated section ll-9-113(a)(2) (Repl. 1996) requires that a mental injury or illness be diagnosed by a licensed psychiatrist or psychologist and meet the criteria established by the Diagnostic and Statistical Manual of Mental Disorders to be compensable. Appellant contends he cannot meet those requirements if a psychiatric evaluation is not authorized. We agree.
Arkansas Code Annotated section 11-9-113 (Repl. 1996) provides in pertinent part:
(a)(1) A mental injury or illness is not a compensable injury unless it is caused by physical injury to the employee’s body, and shall not be considered an injury arising out of and in the course of employment or compensable unless it is demonstrated by a preponderance of the evidence; provided, however, that this physical injury limitation shall not apply to any victim of a crime of violence.
(2) No mental injury or illness under this section shall be compensable unless it is also diagnosed by a licensed psychiatrist or psychologist and unless the diagnosis of the condition meets the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders.
There is no question that appellant sustained physical injuries in the compensable accident. Whether the physical injuries have caused appellant’s mental distress must be answered by a psychological evaluation by a licensed psychiatrist or psychologist. The results of the evaluation should make it clear whether appellant’s distress is the result of his physical injuries or the accident itself. For appellant’s mental injury to be compensable it must have a causal connection to his physical injuries. As the statute is written, mental injury or illness under this section is not compensable unless it is caused by the physical injuries.
We recently expressed this holding in Amlease, Inc. v. Kuligowski, 59 Ark. App. 261, 957 S.W.2d 715 (1997). In that case, appellee Ronald Kuligowski had been involved in an accident when his truck skidded into oncoming traffic and was hit broadside by a van. The driver of the van was killed, and a passenger was seriously injured. Kuligowski was injured physically and was suffering from post-traumatic stress disorder. There was no dispute that Kuligowski’s mental anguish was not the result of his physical injuries, but rather, was the result of the death of the man driving the van. There was conclusive medical evidence in the record supporting that conclusion, and Kuligowski admitted it during his testimony. We were constrained to reverse the decision of the Commission, which had awarded appellee benefits for his post-traumatic stress disorder.
In the case at bar, the claimant has been only superficially evaluated by a psychotherapist, who interviewed appellant in connection with a work-hardening program, and by a psychiatrist who talked to him briefly. We emphasize that our decision affords appellant only a psychological evaluation by a licensed psychiatrist or psychologist to determine if his mental problems are the result of the injuries he sustained in the accident.
We reverse and remand for the Commission to order appellee to provide appellant with a psychological evaluation by a licensed psychiatrist or psychologist, and based upon those results, determine if the psychological injury is compensable.
Reversed and remanded.
Rogers and Crabtree, JJ., agree. | [
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D. Franklin Arey, III, Judge.
This appeal arises from the Workers’ Compensation Commission’s denial of benefits to the appellant, Brenda Ann Rudick. The Commission affirmed and adopted the administrative law judge’s opinion; the ALJ found that a rocking motion made by appellant six times per minute to perform her job was not sufficiently rapid to constitute a “rapid repetitive motion” under Ark. Code Ann. § 11-9-102(5)(A)(ii) (a) (Supp. 1997). Appellant contends that the Commission’s decision is not supported by substantial evidence, and that it is erroneous as a matter of law. We reverse and remand.
The appellee, Unifirst Corporation, manufactures uniform shirts. Appellant was employed by appellee; she worked with a pocket setting machine that required her to stand and use her right foot to depress a pedal that operated the machine. A video tape of her work revealed that her left leg was extended and flexed as she stepped forward with her right foot to press the pedal and then stepped back. The parties stipulated at the hearing before the ALJ that appellant would stand and push on this pedal between 2,400 and 2,500 times a day.
Appellant developed problems with her left knee in February and March of 1995. She testified that she had no prior problems with her left knee. Her treating physician gave a diagnosis of moderate chondromalacia in her left knee, and indicated that the chondromalacia was causally related to the rocking back and forth motion appellant used to operate her machine at work.
In his opinion filed July 8, 1996, the ALJ concluded that appellant’s work activities did not involve a rapid motion. The ALJ noted that appellant was required to prove by a preponderance of the evidence that a gradual-onset injury such as hers was caused by rapid repetitive motion and was the cause of more than 50% of her disability or need for treatment. See Ark. Code Ann. § 11 — 9— 102(5). The ALJ applied a test for rapid repetitive motion adopted by the Commission in one of its opinions.
In Throckmorton v. J & J Metals, . . . the Commission held that the requirement of rapid repetitive motion is satisfied where the employment duties involve, at least in part, a notably high rate of activity involving the exact, or almost the exact, same movement again and again over extended periods. . . .
The video tape of [appellant’s] work activities leaves no doubt that her job involved repetitive motion. However, although the motion was steady, it was not “a notably high rate of activity” that would be sufficient for it to be considered rapid. [Appellant’s] estimates of her job activity indicate that she rocked back and forth, at most, no more than six times per minute. This is not sufficiently rapid to satisfy the statutory requirement.
The ALJ denied and dismissed appellant’s request for benefits. In an opinion filed February 21, 1997, the full Commission affirmed and adopted the ALJ’s decision.
Appellant argues that the Commission’s interpretation of the term rapid is erroneous. In essence, appellant claims that the Commission applied the wrong legal standard to determine whether her work activity was rapid. Appellant cites to our decision in Baysinger v. Air Systems, Inc., 55 Ark. App. 174, 934 S.W.2d 230 (1996); appellee counters that Baysinger addresses repetitive activity, not rapid activity. Appellee’s point is well taken. Nonetheless, appellant does call into question the Commission’s Throckmorton test for rapid motion.
Two of our recent decisions are instructive. See Kildow v. Baldwin Piano & Organ, 28 Ark. App. 194, 948 S.W.2d 100 (1997), review granted, No. 97-828 (Ark. Sept. 11, 1997); Lay v. United Parcel Serv., 58 Ark. App. 35, 944 S.W.2d 867 (1997). In Lay, one of the claimant’s alternative arguments was that his injury was compensable as a “rapid repetitive motion” injury. The claimant asserted that his motions were rapid, because he made nearly eighty deliveries per day in a ten-to-eleven-hour shift, an average of one every eight minutes. He did not claim that driving his delivery truck or actually making the deliveries constituted a part of his rapid repetitive tasks. Instead, he claimed that loading and unloading packages, and lifting and replacing an electronic clipboard, constituted rapid activity.
We affirmed the Commission’s denial of benefits. See Lay, supra. We did not think Baysinger was dispositive: Baysinger addressed the repetitive element of “rapid repetitive motion,” but the Commission decided that the claimant did not prove that his job was either rapid or repetitive. See Lay, 58 Ark. App. at 37, 944 S.W.2d at 870. We agreed with the Commission.
Although we do not provide a comprehensive definition of what constitutes “rapid repetitive motion,” we conclude that the motions as described by Lay, separated by periods of several minutes or more, do not constitute rapid repetitive motion under the meaning of § 11-9-102-(5) (A) (ii) (a).
Lay, 58 Ark. App. at 41, 944 S.W.2d at 870.
In Kildow, the Commission denied benefits to the claimant, because she failed to prove that her activities were rapid. The Commission applied the same Throckmorton standard that is applied against appellant in the instant case. That is, the Commission required proof of “a notably high rate of activity.” See Kildow, 58 Ark. App. at 199, 948 S.W.2d at 103. We noted our holding in Baysinger which rejected the Commission’s Throckmorton standard to determine if an activity was repetitive. We observed that “[i]n its ordinary usage, rapid means swift or quick.” Kildow, 58 Ark. App. at 200, 948 S.W.2d at 103 (citing Concise Oxford Dictionary 1137 (9th ed. 1995)). We determined that the Commission’s decision was not supported by substantial evidence, and we reversed and remanded the matter to the Commission for an award of benefits. See id. at 203, 948 S.W.2d at 103-104.
We did not adopt the Commission’s Throckmorton test for rapidity in either Lay or Kildow. We have not required a showing of “a notably high rate of activity.” See Kildow, 58 Ark. App. at 203, 948 S.W.2d at 103-104. Both Lay and Kildoio were handed down after the Commission filed its opinion in the case now before us. Nonetheless, the Commission should review appellant’s case in light of these decisions. “Where legislative interpretation is concerned,. . . legal reasoning does attempt to fix the meaning of the word. When this is done, subsequent cases must be decided upon the basis that the prior meaning remains. ... Its meaning is made clear as examples are seen, but the reference is fixed.” Edward H. Levi, An Introduction to Legal Reasoning 33 (1949).
Because the Commission should apply our decisions to test for rapid motion, this case is reversed and remanded for its further consideration. Baysinger is sufficiently analogous to lend support for this disposition. There, we decided that the Commission’s interpretation of section 11-9-102(5) (A) (ii) (a) was “too restrictive.” Baysinger, 55 Ark. App. at 176, 934 S.W.2d at 230. We reversed and remanded to the Commission “for a new determination on the issue of appellant’s meeting his burden of proof.” Id. Likewise, in this instance it would be appropriate for the Commission to apply Lay and Kildow to the record before it, and to make findings of fact and rule accordingly. See Ark. Code Ann. § 11-9-704(b).
Finally, it is appropriate to repeat an observation previously made by Judge Cooper: “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 state ment that the controlling purpose of workers’ compensation is to pay benefits to all legitimately injured workers.” Daniel v. Firestone Bldg. Products, 57 Ark. App. 123, 124, 942 S.W.2d 277, 278 (1997). Notwithstanding our disagreement in this instance, we continue to acknowledge the Commission’s efforts.
Reversed and remanded.
Robbins, C.J., and Meads and Roaf, JJ., agree.
Jennings and Stroud, JJ., dissent.
Appellee argues that appellant did not demonstrate that the major cause of her •condition was her employment activity. We do not reach this argument, because it was not ruled on by the Commission. See W.W.C. Bingo v. Zwierzynski, 53 Ark. App. 288, 921 S.W.2d 954 (1996). We express no judgment in this opinion on any question other than the Commission’s interpretation of the term “rapid” in the phrase “rapid repetitive motion.” | [
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Andree Layton Roaf, Judge.
The Little Rock Convention and Visitors Bureau (employer) appeals from a Workers’ Compensation Commission decision finding that the appellee, David Pack, suffered a compensable unexplained fall. Pack, who suffered brain damage as a result of the fall and is permanently and totally disabled, cross-appeals from the denial of benefits for nursing services provided by his mother. On appeal, the employer contends that the Commission erred in finding that Pack proved that his condition resulted from an injury that arose out of and in the course of his employment. Pack contends on cross-appeal that the denial of benefits for nursing services is not supported by substantial evidence. We affirm on both the appeal and the cross-appeal.
David Pack, aged thirty-eight, was employed by the appellant as a maintenance worker. On April 16, 1991, he was working alone, applying caulk to a concrete walkway outside Robinson Auditorium. A co-worker, Tim Gosser, testified that he observed Pack bent over, squatting or on his hands and knees while he was caulking, and that he spoke to Pack and he seemed fine. However, when Gosser returned to where Pack was working about twenty minutes later, he found Pack lying on the ground on his stomach, with his head turned to the right. Pack was barely breathing and was beginning to turn blue. Gosser called Pack’s supervisor, who turned Pack over onto his back and called for an ambulance.
Paramedics arrived and performed a “jaw thrust” to open up Pack’s airway. The paramedic stated that Pack was attempting to breathe, but was not moving any air. A small abrasion to Pack’s forehead was the only sign of trauma noted. The paramedic testified that he did not observe evidence of seizures at the scene of the accident or on the way to the hospital. He testified that although he noted copious saliva, which can be present with seizures, he did not feel that Pack had suffered a seizure because there was no evidence of incontinence, blood in Pack’s saliva, or abrasions on his head and hands from thrashing about. While in route to the hospital, Pack was administered oxygen and began to regain color and his blood pressure returned to a more normal rate. After Pack reached the UAMS Emergency Room, he experienced several grand mal seizures. He remained at UAMS for six days and was then transferred to Baptist Memorial Hospital where he remained for nearly one month. After his release from the hospital, Pack underwent a month of rehabilitation at Baptist Rehabilitation Institute. His mother cared for him at home until he was enrolled in the Timber Ridge Neurorehabilitation Program for one month in 1993. His mother then resumed his care and continues to care for him. The parties stipulated that Pack suffered brain damage and that he is permanently and totally disabled.
At the hearing, Gosser, Pack’s co-worker, testified that he was not aware that Pack had any health problems or problems with drugs or alcohol. Gosser also stated that he did not see any foreign objects near Pack which he might have choked on. Bill Patten, Pack’s supervisor, testified that Pack did not have any alcohol or health problems that he knew of, although he thought he had smelled alcohol on him before the date of the accident. Patten also noted that Pack had missed several days of work due to illness just prior to the accident.
Ruth Siratt, Pack’s mother, testified that Pack was divorced and had lived with her for several years prior to his accident. She testified that he had no health problems other than seasonal allergies. Siratt denied that Pack had a drinking problem and testified that she did not know how a reference to an alcohol problem got into Pack’s medical records. Siratt testified about Pack’s care and transfer among the hospitals and to the rehabilitation institutes. She testified that she had to toilet train Pack after the injury and that it took about four to six months. She testified that she still washes Pack’s hair and that she has to help him shave. She stated that he can be left alone for periods of time, but that doctors have indicated that if he is in a cold room, he will not turn on the heat, or that if the room becomes hot, he will not turn on the air conditioning. She testified that she has to give Pack verbal cues to attend to his personal hygiene because he lacks the initiative to do it himself.
Dr. Edward Barron, who first examined Pack on July 30, 1992, testified as to the most probable sequence of events leading to Pack’s injury. Based on his review of the medical records, Dr. Barron theorized that when Pack stood up after kneeling or bending over for a period of time, he had a “vaso-vagal syncope” (fainted), fell to the ground, struck his forehead, and was knocked unconscious. Dr. Barron stated that Pack’s airway was obstructed because of the positioning of his head, and that Pack developed hypoxic encephalopathy (lack of oxygen to the brain), resulting in permanent brain damage. He stated that the seizure activity observed after Pack reached the hospital was secondary to the hyp-oxic encephalopathy.
Pack’s mother, now his legal guardian, filed a claim for workers’ compensation benefits. She also sought an award for nursing services for his continuing care. The Commission found that Pack suffered an “unexplained fall,” and that he was, therefore, entitled to benefits. The Commission, however, denied the claim for “nursing services.”
1. Unexplained Fall
The employer argues that there was insufficient evidence to prove that Pack’s injuries “arose out of and in the course of his employment,” and that Pack suffered a noncompensable “idiopathic” fall, rather than a compensable “unexplained” fall. In determining the sufficiency of the evidence to sustain the findings of the Workers’ Compensation Commission, we review the evidence in the fight most favorable to the Commission’s findings and affirm if they are supported by substantial evidence. Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. Tyson Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988). In making our review, we recognize that it is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Whaley v. Hardee’s, 51 Ark. App. 166, 912 S.W.2d 14 (1995). The Commission has the duty of weighing medical evidence and, if the evidence is conflicting, its resolution is a question of fact for the Commission. Id.
The Commission noted that, in order to be compensable, an injury must be found to arise out of and in the course of a claimant’s employment. However, Arkansas courts have said that where a claimant suffers an “unexplained injury” at work, it is compensable. In contrast, when a claimant suffers an “idiopathic injury,” it is not compensable because such an injury is considered personal in origin and would not, therefore, arise out of and in the course of the employment. This court explained the distinction in Moore v. Darling Store Fixtures, 22 Ark. App. 21, 732 S.W.2d 496 (1987):
When one suffers an injury at work, the cause is, obviously, either known or unknown. Larson’s treatise on workers’ com pensation law states that the most common example of a situation in which the cause of the harm is unknown is the unexplained fall in the course of employment and that most courts confronted with that situation have seen fit to award compensation. However, injuries from idiopathic falls do not arise out of the employment unless the employment contributes to the risk or aggravates the injury by, for example, placing the employee in a position which increases the dangerous effect of the fall, such as on a height, near machinery or sharp corners, or in a moving vehicle.
The word “idiopathic” is defined in Webster’s Third New International Dictionary, Unabridged (1976), as (1) peculiar to the individual, (2) arising spontaneously or from an obscure or unknown cause. Although the two concepts are frequently confused, Larson says “unexplained fall cases begin with a completely neutral origin of the mishap, while idiopathic fall cases begin with an origin which is admittedly personal and which therefore requires some affirmative employment contribution to offset the prima facie showing of personal origin.” (Citations omitted.)
Moore, 22 Ark. App. at 25, 732 S.W.2d at 498.
The court further noted that a workers’ compensation claimant bears the burden of proving that his injury was the result of an accident that arose in the course of his employment, and that it grew out of, or resulted from the employment. Id. at 27, 732 S.W.2d at 499. “Arising out of the employment” refers to the origin or cause of the accident, while “in the course of the employment” refers to the time, place and circumstances under which the injury occurred. Id. (citing Owens v. National Health Lab., Inc., 8 Ark. App. 92, 97 S.W.2d 829 (1983)). When a truly unexplained fall occurs while the employee is on the job and performing the duties of his employment, the injury resulting therefrom is compensable. Id.
In the present case, the Commission found that Pack suffered an “unexplained fall” based on the following facts: (1) the coworker who last saw Pack conscious testified there was nothing abnormal about Pack’s condition, and about twenty minutes passed between the time he last saw Pack and when he found him unconscious; (2) the paramedic testified that he did not see a foreign object at the scene (something Pack might have choked on) and about the lack of evidence that Pack had suffered a seizure when he fell; (3) Pack’s post-injury alcohol and drug screens were negative and there was no record of prior seizures or abnormalities; (4) Pack’s discharge summary stated that the cause of his injury was unknown, and the doctors who treated Pack after his injury only theorized that Pack could have had a seizure which caused his airway to be blocked or that his subsequent seizures in the emergency room could have been caused by having his airway blocked; and (5) medical testimony revealed that, had Pack’s injury been alcohol-related, there would have been alcohol in his system. There was also no evidence that chronic alcohol abuse would increase the risk of seizures.
The employer argues that there was evidence that Pack drank a six-pack of beer daily prior to his injury, and suggests that alcohol abuse could have led to his injury. The employer also argues that, even if the Commission accepted Dr. Barron’s scenario as to how Pack’s injury occurred, it should still be found to be an “idiopathic injury” because it may have happened due to Pack’s weakened condition because of illness. The employer further argues that because what Pack was doing, applying caulk, was “hardly a risky task,” his idiopathic injury is not compensable. However, these arguments are based merely upon speculation as to how Pack’s injury might have occurred. The Commission, in its summary of the facts, medical records, and testimony, concluded that there was no evidence that a condition personal to Pack caused his injury. Upon our review of the record, we cannot say that there is not substantial evidence to support the Commission’s finding that Pack suffered a compensable unexplained fall.
2. Nursing Services
On cross-appeal, Pack argues that the decision to deny benefits for nursing services is not supported by substantial evidence. He argues that he needs twenty-four hour supervision, cannot care for himself, and cannot participate in out-of-home programs, such as Easter Seals, because he is too old and because his mother’s 5:00 a.m. to 1:00 p.m. work schedule does not allow her to be present to prepare him to be picked up in the mornings. Pack contends that even though his physical limitations are minimal, his mental limitations are great, and he would need to be in a nursing home if his mother did not care for him.
While it is true that doctors have indicated that Pack is incapable of living alone and taking care of himself, his mother described the tasks she must perform for him as primarily giving him “verbal cues.” Although Pack can bathe himself, dress himself, and perform other personal tasks, his mother testified that he is not likely to initiate those tasks without being told to do so. Pack’s mother testified that while she sometimes has to help him finish shaving and tell him what clothes to put on, he can do those things himself. There was no evidence that Pack needs constant supervision or that he cannot be left alone. In fact, Pack’s mother works at a nursing home in the mornings and Pack is left alone until 1:00 p.m. The Commission also noted that Pack was enrolled in a computer training class during the time his mother claimed he was incontinent.
The supreme court has said that the services contemplated under “nursing services” are those rendered in tending or ministering to another in sickness or infirmity. Pickens-Bond Constr. Co. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979). Nursing services do not include assistance with household and personal tasks which the claimant is unable to perform. Pine Bluff Parks & Recreation v. Porter, 6 Ark. App. 154, 639 S.W.2d 363 (1982); Pickens-Bond Constr. Co., supra. Benefits for nursing services have been allowed where the services consisted of medical care, including changing bandages and cleaning a wound, (Tibbs v. Dixie Bearings, Inc., 9 Ark. App. 150, 654 S.W.2d 588 (1983)), giving injections, enemas and hot baths, (Dresser Minerals v. Hunt, 262 Ark. 280, 556 S.W.2d 138 (1977)), physical therapy, (Wasson v. Losey, 11 Ark. App. 302, 669 S.W.2d 516 (1984)), and where the claimant was mentally and physically helpless with no control over his bodily functions and needed twenty-four hour per day care (Sisk v. Philpot, 244 Ark. 79, 423 S.W.2d 871 (1968)). However, nursing services were not allowed where the claimant needed supervision because he was depressed and suicidal. J.P. Price Lumber Co. v. Adams, 258 Ark. 631, 527 S.W.2d 932 (1975).
In Pack’s case, his doctors noted that he needed encouragement to do such personal things as caring for himself. Moreover, according to Pack’s mother, she only assists him in his daily tasks and housekeeping, and does not provide any medical care to Pack. Based on the relevant case law and on Pack’s mother’s testimony regarding the type of care she provided to her son, we cannot say that there is not substantial evidence to support the denial of benefits for nursing services.
Affirmed.
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PAUL E. DANIELSON, Associate.
JjAppellant Don Airsman, Jr., appeals from the sentencing order of the Hemp-stead County Circuit Court reflecting his conviction for first-degree murder and his sentence to life imprisonment, plus a fifteen-year enhancement for use of a firearm. He asserts three points on appeal: (1) that there was insufficient evidence to support his conviction for first-degree murder; (2) that the circuit court erred in denying his motion to suppress his statements; and (3) that the circuit court erred in denying his motion in limine to exclude certain photographs. We affirm Airsman’s convictions and sentence.
On April-27, 2012, the Hempstead County Sheriffs Office received a report from the Bowie County Sheriffs Office that the burnt vehicle of William Allen Jones, Jr., had been found in Bowie County, Texas. Deputy James Braddock was dispatched to Jones’s residence |2in Saratoga, Arkansas, for a welfare check around 10:45 p.m. that evening; however, he was unable to make contáct with anyone at the home.
The next morning, Jones’s daughter, Kristi Dellinger, was contacted by Jones’s girlfriend, Karla Denton, who told Dellinger .that Jones had not shown up for plans that they had made together for the night before. Dellinger then tried to contact Airsman, her stepbrother and Jones’s stepson, to see if he knew of Jones’s whereabouts. At trial, Dellinger testified that Airsman told her that her father had been at Airsman’s home the night- before, had picked up a few things, had checked his mail, and then left a little before 8:00 p.m. She further testified that Airsman told her that he himself had left the home at 9:00 p.m. and went to Missouri.
After Dellinger spoke with Airsman, she contacted family members who searched the areas in which they believed that Jones would have traveled the evening before. Dellinger also went to Jones’s home in which Airsman lived, although Jones was not living in the home at the time. When she did not find Jones, she contacted law enforcement officials who were dispatched to the home. When officers arrived, Del-linger informed them that Jones had been scared of Airsman and had sought protection from him. While Investigator Justin Crane of the sheriffs office was talking with Dellinger, he noticed partial, bloody shoe prints on the porch of the home, as well as large amounts of blood on the side of the driveway. At that time, he contacted his captain, Frank McJunkins.
The same day, around 1:30 p.m., Officer Bill Landers with the Bowie County Sheriffs Office returned a phone call from Captain McJunkins, who asked him to look at Jones’s | .¡vehicle again, in light of the missing-person report and crime scene at the Saratoga home. Officer Landers did so, and he discovered a body in the back of the vehicle. Also located inside the Honda Fit vehicle were ammunition and a gun, as well as burned clothing.
After learning of a protective order that Jones had sought against Airsman but was not served, and armed with the knowledge that Airsman had claimed to have seen Jones the night before, Airsman was developed as a suspect and believed to be the last person to have seen Jones alive. A “be on the lookout” (“BOLO”), was issued, stating that Airsman was wanted for questioning, should be held and detained, and could possibly be in the Jonesboro area or en route to Dunklin County, Missouri, where his father resided. The sheriff in Dunklin County was contacted to ensure receipt of the BOLO, which was confirmed.
Upon receipt of the BOLO, the Dunklin County Sheriffs Office located Airsman at his father’s home, arrested him, and took him into custody. A warrant for his arrest was subsequently applied for and received by Arkansas law enforcement, and Captain McJunkins and some other officers flew to Dunklin County. On their arrival, Captain McJunkins and Hays McWhirter, Criminal Investigator for the Arkansas State Police, interviewed Airsman. Airsman was Mir-andized and completed a Miranda form waiving his rights.
During the videotaped interview (“the Missouri statement”), which was admitted at trial, Airsman told the officers that, two days before, he had been in Saratoga with his father, who had been visiting him. Airsman said that he had left the night before the interview at 9:00 p.m. and driven to Dunklin County, following his father. Airsman told the officers that the last time he had seen Jones was before he had left Saratoga. Airsman told them that, while 14 Jones no longer stayed at the home that he had shared with Airsman’s mother, who had passed away, Jones came to the home around 4:00 or 4:30 p.m. and “walked around the place ... picked up a few things out of the house and talked for awhile.” Airsman then told the officers that Jones had left the home shortly before 8:00 p.m.
After being told that Jones’s car had been found, Airsman “deduced” that Jones was dead, and he denied shooting Jones and further denied that his father had done so. In addition, he denied taking Jones’s car to Texas and setting fire to it, and he denied having any knowledge of blood being in the driveway or the house. The officers told Airsman that he had been arrested on a probable-cause affidavit and, at that point, Airsman again claimed his innocence and announced that he wanted to speak to his attorney.
Airsman waived extradition, and he was brought back to Hempstead County on May 2. After being booked, Airsman requested to speak with Captain McJunkins. He was again Mirandized and waived his rights. In his statement to Captain McJunkins (“the Arkansas statement”), Airsman admitted shooting Jones, claiming that he did so after Jones had pulled a gun on him and then directed it toward Airs-man’s father. An information was subsequently filed, charging Airsman with first-degree murder and noting the State’s contention that Airsman should receive an enhanced sentence for employing a firearm.
Following the circuit court’s denial of Airsman’s motion to suppress his statements, he was tried by a jury, convicted of first-degree murder, and sentenced to a total term of life imprisonment plus fifteen years for the firearm enhancement. Airs-man now appeals.
\fj. Sufficiency of the Evidence
As his first point on appeal, Airsman argues that there was insufficient evidence to support his conviction for first-degree murder. He contends that the evidence presented actually supported his position that the homicide was committed in self-defense. Specifically, he points to his immediate flight to Missouri, the fact that Jones’s body had been burned, and the testimony by a forensic psychologist as evidence in support of his “self-defense followed by a mental break resulting from ... post-traumatic stress disorder ... caused by his military service.” Airsman claims that because the evidence supported his justification defense, it was insufficient to sustain his conviction for first-degree murder. The State counters Airs-man’s contention, maintaining that there was substantial evidence to show that Airs-man was not justified in shooting Jones.
This court treats a motion for directed verdict as a challenge to the sufficiency of the evidence. See Loggins v. State, 2010 Ark. 414, 372 S.W.3d 785. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. See id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. See id.
When a criminal defendant challenges on appeal the sufficiency of the evidence convicting him, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. See id. Circumstantial evidence may provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and | ^inconsistent with any other reasonable conclusion. See id. Whether the evidence excludes every other hypothesis is left to the jury to decide. See id.
Airsman was convicted of first-degree murder, pursuant to Arkansas Code Annotated § 5 — 10—102(a)(2), which provides in relevant part:
(a) A person commits murder in the first degree if:
(2) With a purpose of causing the death of another person, the person causes the death of another person.
Ark.Code Ann. § 5-10-102(a)(2) (Repl. 2013). A person acts purposely with respect to his or her conduct or a result of his or her conduct when it is the person’s conscious object to engage in conduct of that nature or to cause the result. See Ark.Code Ann. § 5-2-202(1) (Repl.2013). A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. See Davis v. State, 2009 Ark. 478, 348 S.W.3d 553. Thus, this court has recognized that the intent necessary for first-degree murder may be inferred from the type of weapon used, from the manner of its use, and the nature, extent, and location of the wounds. See Copeland v. State, 343 Ark. 327, 37 S.W.3d 567 (2001). Here, Airsman does not dispute that he shot and killed Jones. Rather, he contends, he did so because he feared for his father’s life when Jones brandished a gun and turned in his father’s direction.
The following testimony was elicited at trial. Chief Deputy Mickey Atkinson of the Hempstead County Sheriffs Office testified that, prior to Jones’s death, he had spoken with Jones on two separate occasions, once in February 2012 and again in March of that same year. |7On both occasions, he said, Jones expressed concern about his safety because he feared Airsman and wished to have Airsman removed from his home. Mandy Turner, the Hempstead County Coordinator for Domestic Violence Prevention, also testified that she visited with Jones in late March 2012. She stated that Jones began the paperwork required for a protective order against Airsman, but decided not to file it because he had hoped that Airsman would leave the home on his own. She further testified that on April 24, 2012, Jones had changed his mind because he continued to fear for his life, and they filed for the protective order on April 26. The next day, Jones called Turner’s office to see if the order had been served on Airsman, stating that he needed to check his mail at his home and believed his life was in danger.
Karla Denton, who began seeing Jones after the death of his wife, Airsman’s mother, testified that Jones began staying at her home because he feared staying in his own. She stated that Jones had told her that he was afraid of Airsman and afraid for his life. Denton also testified that Jones bought a .380 firearm because he was scared of Airsman. Like Denton, Kristi Dellinger, Jones’s daughter, testified that Jones had expressed his fear of Airsman and that he had purchased a gun for his protection. Dellinger testified that after she was notified by Denton that her father was missing, she called Airsman to see if he had any knowledge of her father’s whereabouts. She stated that Airsman told her that her father had been at his | Jiome the night before, but had picked up some things, checked his mail, and left before 8:00 p.m. She further testified that Airsman told her that he had left a little before 9:00 p.m. to go to Missouri.
Airsman’s father, Donnie Edwin Airs-man, Sr., testified that on the night of the shooting, Airsman, Jr., had told him that Jones might come by, and Airsman, Sr., asked his son if it would be a problem that he was at Jones’s home. He said that Airsman, Jr., patted him on the shoulder, chuckled, and said, “[W]ell, I might have to kill him.” While inside the workshop on the property, Airsman, Sr., heard a shot; he testified that he then ran outside and saw Airsman, Jr., shoot Jones two more times. He said that he had to tell his son to stop shooting. He also stated that there was a black automatic pistol on the ground close to Jones’s hand.
Airsman, Sr., testified that after Jones fell to the ground, he died two or three minutes later. He stated that Airsman, Jr., then wrapped Jones’s body with a blanket he retrieved from the house and put Jones’s body in Jones’s car. According to Airsman, Sr., Airsman, Jr., directed his father to leave his cell phone in the truck at the house and to follow him “in a little while.” Airsman, Sr., testified that his son then washed the blood from the driveway using a water hose and picked up the shell casings.
Airsman, Sr., further testified that, after cleaning up, Airsman, Jr., drove Jones’s car with Jones’s body in the back, about thirty to forty-five minutes out of town, when Airsman, Jr., stopped the car on the side of the road, left it, and got into Airs-man, Sr.’s car. After that, he said, they returned to the home in Saratoga, where Airsman, Jr., put some of his mother’s lathings into his truck, and they followed each other to Missouri. Airsman, Sr., acknowledged that they did not call law enforcement or emergency responders after the shooting.
In addition to the foregoing, the jury heard both of Airsman’s statements to police, including the Arkansas statement in which he admitted shooting Jones. Airs-man stated that when Jones arrived at his home, Jones told Airsman that he should have already been out of the house and pulled a gun, which he held towards Airs-man’s face. Airsman told the officers that his father exited the shop, at which point Jones turned with the gun in his father’s direction. Airsman stated that it was at this time that he shot Jones with a gun he kept in his pocket. He further admitted shooting Jones several times and loading Jones’s body into the back of Jones’s car, as well as Jones’s glasses, hat, and gun. Airsman stated that he drove the car, eventually abandoning it, and was picked up by his father. Airsman told the officers that when he went back into his house, he changed his clothes, placed the ones with blood on them in a bag, and threw that bag out of his car on his way to Missouri. Airsman also told police about the calls he received from Jones’s daughter asking if he knew where Jones was. He admitted that when he received those calls, he “started freaking out.”
The jury further heard the testimony of Jennifer Whitmore, a psychologist formerly at the Arkansas State Hospital. She testified that following her examination of Airsman, she diagnosed him with posttrau-matic stress disorder and personality disorder, neither of which, she said, was considered a mental disease or defect under Arkansas law. She stated that it was her opinion that at the time of the offense, Airsman had the capacity to conform his conduct | into the law. She also stated that, based on the information she received from Airsman himself, he had problems with hostility and anger.
Dr. Whitmore believed that Airsman had told her that his duties during his military service “consisted of piling up bodies and burning them” and acknowledged that such activity had a bearing or effect on his suffering from posttraumatic stress. She further said that even if his behavior after the shooting could be indicative of his posttraumatic stress disorder, that behavior could also be an indication of his attempts to cover up the crime and avoid detection. In his defense, the jury also heard from Charlie Airsman, Airs-man’s brother; his brother stated that while at their mother’s funeral, he heard Jones ask Airsman to stay at his house in Saratoga with him because Jones did not want to live in the house alone.
The instant record reflects that the jury found Airsman guilty of first-degree murder, despite also being instruct ed on second-degree murder and manslaughter and being given the justification instruction. Clearly, the jury disbelieved Airsman’s defense of justification, which it was free to do. It is well settled that the credibility of witnesses is an issue for the jury and not this court. See Brunson v. State, 368 Ark. 318, 245 S.W.3d 132 (2006). Furthermore, the jury is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. See id. In doing so, the jury may choose to believe the State’s account of the facts rather than the defendant’s. See id.
But, in addition, the jury was free to consider Airsman’s lies to law enforcement officials and his changing stories about his knowledge of Jones’s whereabouts. See, e.g., Robinson v. State, 353 Ark. 372, 108 S.W.3d 622 (2003). Furthermore, the jury could have | nconsidered the fact that Airs-man burned Jones’s body and his car in an attempt to cover up his involvement in the crime. See id. We have held that such proof is further evidence of a purposeful state of mind. See id.
In sum, the fact that the jury chose not to believe Airsman’s justification defense does not lessen the substantial nature of the evidence. “One who asserts the defense of justification of a homicide must show not only that the person killed was using deadly physical force, but that he responded with only that force which was necessary and that he could not have avoided the killing.” Williams v. State, 325 Ark. 432, 438, 930 S.W.2d 297, 300 (1996); see also Ark.Code Ann. § 5-2-607 (Repl.2013). The jury was instructed accordingly and rejected Airsman’s defense, and its rejection is supported by the same evidence that supports the jury’s finding that he acted purposely. See, e.g., Smith v. State, 337 Ark. 239, 988 S.W.2d 492 (1999).
Having reviewed the evidence in the light most favorable to the State, we hold that there was substantial evidence to support Airsman’s conviction for first-degree murder and that the circuit court did not err in denying his motion for directed verdict.
II. Motion to Suppress
Airsman further argues that the circuit court erred in denying his motion to suppress his Missouri and Arkansas statements, where he invoked his right to counsel at the conclusion of the Missouri statement and the State failed to provide him with an attorney as he requested. While somewhat unclear, it appears that Airsman is also contending that had his arraignment not been unreasonably delayed and had he been provided counsel, he would not have | ^requested to speak with Captain McJunkins or given the Arkansas statement. The State counters that although Airsman invoked his right to counsel in Missouri, he initiated contact with Captain McJunkins upon his return to Arkansas. It further urges that any delay brought about by Airsman’s own desire to give a statement cannot be considered unnecessary.
This court reviews a circuit court’s decision denying a defendant’s motion to suppress a confession by making an independent determination based on the totality of the circumstances, and the ruling will be reversed only if it is clearly against the preponderance of the evidence. See Fritts v. State, 2013 Ark. 505, 431 S.W.3d 227. The Fifth Amendment right to counsel attaches during custodial interrogation. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. See id. Instead, an accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. See id. While the accused may initiate further contact with the police, the impetus must come from the accused, not the police. See Metcalf v. State, 284 Ark. 223, 681 S.W.2d 344 (1984). Here, it is undisputed that Airsman invoked his right to counsel at the conclusion of the Missouri interview; therefore, the question presented is whether Airsman initiated further communication with Captain McJunkins prior to giving his Arkansas statement. The record makes clear that he did.
11sAt the hearing on Airsman’s suppression motion, Captain McJunkins testified that he saw Airsman while he was being booked upon his return to Arkansas. He stated that Airsman “kept telling me that he needed to talk to me real bad.” Captain McJunkins testified that he told Airsman to complete a “request form,” and he would see about talking with him. He denied initiating any communication with, or statement from, Airsman.
Captain McJunkins testified that Airs-man completed the request form around 2:00 p.m., and it was brought to him by his lieutenant. He further testified that upon receiving the request, he set up another interview, Mirandized Airsman again, and had Airsman initial the Miranda form to acknowledge his waiver. Lieutenant Steve Glover confirmed that, while Airsman was being booked, Airsman had stated to him that he wanted to see Captain McJunkins. Glover directed another officer to give Airsman a request form, which Airsman completed, stating that he wanted to talk with Captain McJunkins. Glover testified that he then took the form to Captain McJunkins. Included in the record is the Hempstead County Detention Facility Inmate Request Form dated May 2, 2012, which reflects completion by Airsman and states, “I request to talk to Capt. McJun-kins.” Viewing the totality of the circumstances, the circuit court did not err in denying Airsman’s motion to suppress on this basis.
Nor do Airsman’s contentions relating to an unnecessary delay have merit. Arkansas Rule of Criminal Procedure 8.1 (2013) provides that “[a]n arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.” This court has not adopted a specific time limit for measuring Rule 8.1 114violations. See Landrum v. State, 328 Ark. 361, 944 S.W.2d 101 (1997). Instead, in Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987), we adopted a three-part test to determine when a statement should be excluded upon a violation of Rule 8.1:(1) the delay must be unnecessary; (2) the evidence must be prejudicial; and (3) the evidence must be reasonably related to the delay. We have held that the defendant has the burden of proving each prong of the Duncan test. See Arnett v. State, 342 Ark. 66, 27 S.W.3d 721 (2000).
The record reflects that Airsman was arrested in Missouri on Saturday, April 28, and he gave the Missouri statement that evening, at approximately 12:05 a.m., April 29. His extradition hearing in Missouri was held Tuesday, May 1, and upon receiving notification of his extradition that day, Arkansas law enforcement officers were dispatched to retrieve Airsman, and they brought him back the following day, Wednesday, May 2. On May 2, Airsman arrived back in Hempstead County at 12:52 p.m., he completed his request form to speak with Captain McJunkins at 2:00 p.m., and he completed the Miranda form and was interviewed by the captain at 3:01 p.m. Airsman received his first appearance on Thursday, May 3.
Looking to the three prongs of the Duncan test, it is clear that Airsman’s statement given to Captain McJunkins on May 2, was prejudicial where he admitted shooting Jones. Notwithstanding the prejudicial nature, of his statement, Airs-man was also required to prove that the delay in his first appearance was unnecessary and that his statement was reasonably related to the delay. With respect to the necessity of the delay, Airsman contended to the circuit court that the delay in his first appearance was unnecessary because he could have |15received his first appearance upon his arrival in Hempstead County on May 2, rather than the next day. Yet, almost immediately upon his return, Airsman himself requested to speak with Captain McJunkins, and the interview was conducted that same day. The delay on May 2 was the result of Airsman’s own request; therefore, it was not an unreasonable delay occasioned by the State. See Otis v. State, 364 Ark. 151, 217 S.W.3d 839 (2005).
But, in addition, Airsman has failed to demonstrate that his statement was reasonably related to the delay. We have held that statements are reasonably related to a delay “if it reasonably appears the delay contributed to obtaining the confession.” Arnett, 342 Ark. at 76, 27 S.W.3d at 726 (quoting Britt v. State, 334 Ark. 142, 155, 974 S.W.2d 436, 442 (1998)). To determine whether a statement obtained from the accused was reasonably related to the delay, this court will consider the following factors: (1) any proof that the delay was for the purpose of obtaining a confession; (2) the frequency of police interrogation; (3) whether the accused was held incommunicado; and (4) the passage of time. See id.
While Airsman makes much of the delay between his arrest on April 28 and his first appearance on May 3, the fact of the matter is that his extradition by the State of Missouri was not granted until May 1. Almost immediately upon his return to Arkansas the following day, as already noted, Airsman requested to speak with Captain McJunkins and gave his inculpato-ry Arkansas statement. As we have already concluded, any delay was caused by .Airsman himself, which would belie the notion that any delay was for the purpose of 11(iobtaining a confession. Accordingly, we affirm the circuit court’s denial of Airs-man’s suppression motion.
III. Motion in Limine
As his final point on appeal, Airsman claims that the circuit court erred in denying his motion in limine, which sought to preclude the State from introducing certain photographs that he claimed were irrelevant and more prejudicial than probative. He contends that because he did not dispute either the number of times Jones had been shot or the location of his wounds, the photographs that were ulti mately admitted were unnecessary and served only to inflame the jury. The lack of probative value, he claims, was illustrated by the absence of any testimony regarding the entry wounds following the admission of the photos. In addition, as evidence of their inflammatory nature, Airsman points to the prosecutor’s statement cautioning the jury that the photos were disturbing. The State responds that of the six photographs deemed admissible by the circuit court, only three were introduced into evidence by the State. All were necessary, the State avers, for purposes deemed acceptable by this court.
|17At trial, Joni McClain, Deputy Chief Medical Examiner in Dallas County, Texas, testified regarding the autopsy completed on Jones’s body. She testified that the cause of death was multiple gunshot wounds and that the manner of death was homicide. She farther testified that Jones’s body had been burned after he had expired. In addition, McClain, testified with respect to each of the three gunshot wounds he received, the location of each, and whether the bullet that caused each wound had exited Jones’s body. It was after this testimony that the State sought to introduce photographs to corroborate McClain’s testimony “so the jury can see where on the body the bullets went in.” The circuit court, after conducting an evaluation in camera, rejected State’s Exhibits 71-77 as unhelpful and highly prejudicial; nonetheless, the circuit court deemed admissible State’s Exhibits 64-69 and 70:
However, the Court’s opinion is as to what Doctor McClain has testified to, unfortunately autopsies are made of bodies and the condition they’re presented to the medical examiner and her testimony was just — in the photos in 64 through 69 are just for purposes of showing what her testimony — about the three bullet holes and they do show the body as it was received by the medical examiner. But her testimony was reflected only of what the gunshot wounds were. And again, it’s unfortunate that we receive bodies in the condition they are in but her testimony is about the shot of the three bullet wounds to the body and the Court will [sic ] 64 through 69 and an x-ray, State’s Exhibit 70 to be presented and identified by Doctor McClain and upon that being admitted into evidence.
The State subsequently admitted into evidence exhibits 64, 66, and 68, each of which, McClain explained, depicted the entry of one of the three gunshot wounds.
We have held that the admission of photographs is a matter left to the sound discretion of the circuit court, and we will not reverse absent an abuse of that discretion. See Anderson v. State, 2011 Ark. 461, 385 S.W.3d 214. When photographs are helpful to explain | ^testimony, they are ordinarily admissible. See id. The mere fact that a photograph is inflammatory or cumulative is not, standing alone, sufficient reason to exclude it. See id. Even the most gruesome photographs may be admissible if they assist the trier of fact in any of the following ways: (1) by shedding light on some issue; (2) by proving a necessary element of the case; (3) by enabling a witness to testify more effectively; (4) by corroborating testimony; or (5) by enabling jurors to better understand the testimony. See id. Other acceptable purposes include showing the condition of the victim’s body, the probable type or location of the injuries, and the position in which the body was discovered. See id.
We hold that the circuit court did not abuse its discretion in admitting the photographs at issue because they served to corroborate McClain’s testimony regarding the location of the wounds. While Airsman contends that the location of the wounds was not in dispute in light of the admission of the medical examiner’s autopsy report, the mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it, as previously noted. See DeAsis v. State, 360 Ark. 286, 200 S.W.3d 911 (2005). It is only when an inflammatory or gruesome photograph is without any valid purpose that it should be excluded. See Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001). Moreover, it could also be said that the photographs served to give the jury a different perspective on the wounds from that relayed by the report. See, e.g., Smart v. State, 352 Ark. 522, 104 S.W.3d 386 (2003) (observing that videotapes can give a different perspective than photographs and therefore can be helpful to the jury’s understanding of the case). Just as we said in Mosby v. State, 350 Ark. 90, 97, 85 S.W.3d 500, 504 (2002),
|iagruesome though the challenged photographs may have been and arguably cumulative in some instances, they were reviewed by the trial court and served to assist the trier of fact in understanding the testimony. For those reasons, their introduction into evidence did not constitute an abuse of discretion on the part of the trial court.
For the foregoing reasons, we affirm Airsman’s convictions and sentence. Pursuant to Arkansas Supreme Court Rule 4-3(i) (2014), the record has been reviewed for all objections, motions, and requests that were decided adversely to Airsman, and no prejudicial error was found.
Affirmed.
. The record reflects Turner’s testimony that she delivered the protective order to the sheriff's office, but that upon its receipt, there was no record of effort by the sheriff's office to serve the order on Airsman.
. In his brief, Airsman further contends that the State's failure to provide him with an attorney "after he invoked his right to counsel in the Missouri Statement provides reason for the trial court to have granted” his motion to suppress. Arkansas Rule of Criminal Procedure 8.2(a) (2014) provides that "[a]n accused’s desire for, and ability to retain, counsel should be determined by a judicial officer before the first appearance, whenever practicable.” However, Airsman cites no authority for his proposition, and this court does not consider arguments without convincing argument or citations to authority. See MacKool v. State, 2012 Ark. 287, 423 S.W.3d 28. | [
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Cockrill, C. J.
Ered Cost, who is now dead, brought suit against the appellant to recover damages for personal injuries received, as he alleged in his complaint and swore upon the trial, by being forcibly ejected from a moving train by a brakeman in the employ of the railroad company. The evidence upon the two sides was contradictory upon every material fact, but the plaintiff’s case, as put by himself and one other witness, was that he had been stealing a ride on one of the company’s trains by holding to a ladder on the outside of a freight car. When the train stopped at Cabot station, he alighted and concealed himself until it made a fresh start, when he again mounted the ladder. He was there detected by a brakeman who caused him to mount to the top of the car and demanded payment of his fare. Cost had no money, and the brakeman ordered him off the train, refusing his request to wait until the next stand. His manner was threatening, and Cost felt impelled to undertake to descend the ladder, and when he was in the act of doing so, the brakeman kicked at him and stamped upon the backs of his hands and thus forced him to loose his hold. This caused him to fall when the train was running rapidly. One of his feet was crushed by the wheels and was partially amputated, leaving the heel intact; but the muscle of his leg shrank away and the physicians were doubtful as to the recovery of its strength. The testimony of the train men and of another witness for the company, was to the effect that the plaintiff lost his hold, or jumped voluntarily from the ladder, where he was clinging, without having been spoken to or touched by an employe. Cost was an intelligent German boy about seventeen years of age; the jury accepted his version of the matter, and returned a verdict for $5000 in his favor. The éircuit judge directed that a new trial should be granted unless a remittitur of $2000 was entered. The plaintiff remitted the amount indicated, and the company appealed. Pending the appeal, Cost died, and the action has been revived here in the name of his administrator.
I. Rail bo ad: Employe: Evidence.
The errors assigned by the company for the reversal of the judgment are confined to the admissibility of testimony which the court permitted to go to the jury over its objection, and to the failure of the proof to sustain the verdict. The charge of the court to the jury has not been challenged, and it is not urged that there was a failure of proof except in this particular, viz.: That Cost and the other witnesses were not positive that the man whom they alleged was the cause of the injury was one of the company’s employes. Upon his examination in chief the plaintiff testified that the man alluded to was a brakeman on appellant’s train, but on cross-examination he stated he did not know that to be a fact. He gave as the reason for his belief, however, that he saw the man on the platform at Cabot with a lantern deporting himself as an employe; and James Jenkins, his other witness, who rode from Cabot to Little Rock on the train, and corroborated Cost’s statement of the accident, testified that the man acted as a brakeman on the train between these points.
If the jury credited the testimony, that the man was for such a length of time aiding the company in operating its train, it was sufficient to justify the conclusion that he was a regular employe. Indeed, it would be difficult, in the most of these cases, to prove the relation of master and servant except by the fact that the one is known to perform service for the other, or from their course of dealing. # Starkie Ed., marg. p. 41-8.
The court instructed the jury that the master could not be held to respond in damages for an injury resulting from the wanton and wilful act of a servant, unless the act was done in the discharge of his duty, or while acting within the general scope of his authority. Whether a particular act was or was not done in the line ot the servant’s duty is a question to be determined by the jury from the surrounding facts and circumstances. Round v. Delaware, etc., Ry. Co., 64 N. Y., 129; Cohn v. Dry Dock Co., 69 ib., 170. In order to meet this phase of the proof, the plaintiff offered two witnesses by whom he proposed to show that it was the custom of the brakemen and other employes engaged in operating the defendant’s freight trains to eject persons riding without paying their fare. The witnesses testified as to the custom observed by them at a station three miles distant from Cabot. As the introduction of this testimony is the chief reliance of the appellant for reversing the judgment, it may be. given, with the objections thereto, in the language of the abstract:
2. sahe: aetof servwithmWMs deneé.
“ Dr. Martin testified for plaintiff as follows:
“ I live at Austin, Arkansas. Have resided there ten years. Am acquainted with the custom of the defendant’s train hands at Austin. It is a watering station, three miles north of Cabot. When trains start from there, fre quently tramps get on, and I have seen brakemen make them get off. It is seldom that a week would pass that I did not see this.” [To the admission of the above testimony of Dr. Martin, the defendant objected at the time, as incompetent evidence, but the objection was overruled and defendant saved its exceptions at the time, and the witness then testified as stated.]
Upon cross-examination, Dr. Martin said further:
“I don’t know whether the brakemen put off tramps under orders or not, and I don’t know if this was the custom anywhere else or not. I only speak of what I saw at Austin.”
Thereupon defendant moved that Dr. Martin’s testimony, as above, be excluded from the jury, as wholly incompetent and irrelevant, and calculated to mislead and prejudice the jury, but the court overruled the motion and defendant saved its exceptions.
The testimony of the other witness was substantially the same as the above, except that he stated that the brakemen performed this duty sometimes before the train started and at others after it was in motion. As no special objection was made in any form to the statement last quoted, it is not material to consider, apart from the other testimony, whether it was proper to admit it. The objection was general to the whole of the witness’ evidence as irrelevant, and if any pai’t of it is admissible the objection falls.
The reason of the rule is that it prevents trial judges from being misled or entrapped by having their attention directed, under a general objection, to one point and their judgments reversed upon another, when the objection to that point might have been readily sustained in the first instance.
It is not necessary to follow the exhaustive argument of the appellant’s counsel to the. effect that the proof of specific or continuous acts of wantonness or negligence on the part of the company’s employes, has no tendency to establish wantonness or negligence on the particular occasion complained of. The evidence objected to did not tend to show a previous wrongful act. it was the legal right of the company to eject persons attempting to ride on its trains without paying fare, and the legitimate object of the testimony was to show that the right was commonly enforced through the class of employes that ejected the plaintiff. It was a legitimate method of showing the duty of the employe, just as the fact of employment, as we have ruled above, could be shown by the exercise of duties in the master’s service. The fact that brakemen commonly performed the duty of ejecting such persons from the appellant’s freight trains, afforded a reasonable presumption or inference that the brakeman who ejected the plaintiff acted in the line of his duty, if the jury chose to believe that he was ejected by a brakeman for the non-payment of his fare. See Ward v. Young, 42 Ark., 542.
Finding no error, the judgment is affirmed. | [
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JOSEPHINE LINKER HART, Associate Justice
hln accordance with Rule 2(a)(6) of the Arkansas Rules of Appellate Procedure— Civil, appellants United Food and Commercial Workers International Union, Organization United for Respect at Wal-Mart (an organization of Wal-Mart associates that refers to itself as “OURWal-mart”), and Does 1-10, hereinafter “the union,” appeal from an order of the Benton County Circuit Court denying their motion to dissolve or modify a stipulated preliminary injunction. The injunction was sought by Wal-Mart Stores, Inc., and other related business entities (Wal-Mart) after the union undertook a campaign of “flash mob” protests at Wal-Mart properties in northwest Arkansas. On appeal, the union argues that the circuit court erred because (1) Wal-Mart failed to prove a likelihood of irreparable harm ^because it failed to adduce evidence of any harm and (2) Wal-Mart failed to prove a substantial likelihood of success on the merits because the National Labor Relations Act (NLRA) preempts this lawsuit.
The union’s demonstrations essentially consisted of several individuals, wearing lime-green t-shirts entering Wal-Mart stores. There, the demonstrators collected pans and plastic pails. At a predetermined time, the demonstrators gathered at the front of the store and began to sing or chant a song accompanied by rhythmic banging on the pails and pans. They also passed out handbills. The in-store demonstrations lasted approximately three minutes. The demonstrators then gathered outside the store and continued to chant for a few more minutes. These activities continued after Wal-Mart sent the union cease-and-desist letters. The avowed object of these demonstrations was to persuade Wal-Mart to improve working conditions and to stop it from retaliating against associates who advocate for better working conditions. The union filmed the demonstrations and posted them to YouTube.
On March 1, 2013, Wal-Mart filed an unfair-labor-practice (ULP) charge with the National Labor Relations Board (NLRB), asserting that the demonstrations were prohibited by the NLRA. It alleged that the union violated the act by “planning, orchestration, and conducting a series of unauthorized and blatantly trespassory in-store mass demonstrations, invasive “flash mobs,” and other confrontational group activities at numerous facilities nationwide.” Wal-Mart listed 70 events that were characterized as participants “invading” the store and not immediately leaving when directed. In May 2013, Wal-Mart amended the |scharge to remove the trespass allegations so it could pursue relief in state court. The union also filed charges against Wal-Mart.
On May 14, 2013, Wal-Mart filed suit in the Benton County Circuit Court. Although it alleged the tort of trespass, it sought no money damages, only injunctive relief. On June 3, 2013, Wal-Mart petitioned for a temporary restraining order (TRO), and after a brief hearing, the TRO was entered that same day. The day of the TRO hearing, Wal-Mart presented the union with a voluminous quantity of paperwork, including affidavits from the store-management personnel that Wal-Mart wanted to call at the hearing. The union put off the evidentiary hearing for later in the week. The union subsequently agreed to allow the circuit court to convert the TRO into a preliminary injunction. Again, no evidentiary hearing was held. The order recited the “announced stipulation of Plaintiff and Defendants to continue the Temporary Restraining Order entered by the Court on June 3, 2013 as a Preliminary Injunction through the trial on the merits of the above-styled matter.” In September, Wal-Mart amended its complaint to add subsidiaries and related business entities as plaintiffs.
On October 4, 2013, the union filed a motion to dissolve or modify the preliminary injunction. It conceded that nothing had changed since the entry of the preliminary injunction. Nonetheless, it asserted, as it had at the hearing on the TRO, that, in accordance with San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), the state court action |4was preempted by Wal-Mart’s ULP charge. Wal-Mart answered, asserting first and foremost that the union could not “recant” its stipulation to the preliminary injunction. Wal-Mart asserted that the union was judicially es-topped from seeking to dissolve the injunction. It also argued that the state-trespass cause of action was not preempted by the NLRA. Wal-Mart submitted with its brief state trial-court orders and some transcripts of bench rulings from courts in Florida, Maryland, California, and Washington, as well as a case from Texas’s court of appeals, where a similar NLRA preemption issue had been considered. Again, no evidence was presented at this hearing.
In ruling from the bench, the circuit court denied the motion to dissolve the stipulated preliminary injunction, noting that it had been entered because the parties had reached an agreement. The circuit court further noted that the issue of a permanent injunction was set to be tried in April 2014. In its written order, the circuit court made no specific findings. It merely recited,
Based on the Court’s review of Defendants’ Motion to Dissolve and supporting briefs, Plaintiffs’ Opposition to the Motion to Dissolve, and the arguments offered at the hearing by both Plaintiffs and Defendants, the Court being well and sufficiently advised, the Court is persuaded by the arguments advanced by Plaintiffs and accordingly orders that Defendants’ Motion to Dissolve should be and hereby is DENIED.
The union appealed.
On appeal, this court reviews matters that traditionally sound in equity, including injunctions, de novo. United Food & Commercial Workers Int’l Union v. Wal-Mart Stores, Inc., 353 Ark. 902,120 S.W.3d 89 (2003). Decisions to grant or deny an injunction are reviewed for an abuse of discretion. Id. However the circuit court’s interpretation of law is given no | ¡^deference. Id. An injunction may be granted if the petitioner shows (1) that it is threatened with irreparable harm; (2) that this harm outweighs any injury which granting the injunction will inflict on other parties; (3) a likelihood of success on the merits; and (4) that the public interest favors the injunction. Id.
The union first argues that the circuit court erred'in refusing to set aside or modify the preliminary injunction because Wal-Mart failed to prove a likelihood of irreparable harm because it failed to adduce evidence of any harm. For its second point, the union argues that the circuit court erred in refusing to dissolve or modify the preliminary injunction because Wal-Mart failed to prove a substantial likelihood of success on the merits because the NLRA preempts this lawsuit.
We note from the outset that the current injunction is in place because the union stipulated to it, and at the hearing on its motion to dissolve or modify the injunction, the union conceded that nothing had changed. Furthermore, the union asserted in its petition as its grounds for dissolving or modifying the preliminary injunction that Wal-Mart’s lawsuit was preempted by the National Labor Relations Act and that Wal-Mart had failed to prove that without the injunction, it would suffer irreparable harm.
In opposing the union’s motion to dissolve, Wal-Mart argued to the circuit court multiple reasons why the motion should be denied. Most prominent was its argument that the union’s motion to dissolve was barred by judicial estoppel, although Wal-Mart also challenged the merits of the union’s preemption argument. In the written order, the circuit court stated only that it was “persuaded by the arguments advanced by [Wal-Mart] and | (¡accordingly orders that [the union’s] Motion to Dissolve should be and hereby is DENIED.” Accordingly, on appeal, there were at least two bases for affirming the circuit court — Wal-Mart’s judicial-estoppel argument and a decision based on the merits of the parties’ preemption arguments. The union has addressed only the preemption argument, therefore, we must summarily affirm. Evangelical Lutheran Good Samaritan Soc’y v. Kolesar, 2014 Ark. 279, at 6, 2014 WL 2814816 (“When a circuit court bases its decision on more than one independent ground, ... and the appellant challenges fewer than all those grounds on appeal, we will affirm without addressing any of the grounds.”). We are mindful that the union does address judicial estoppel in its reply brief; however, we will not address arguments raised for the first time in a reply brief. Id.
Affirmed.
Hannah, C.J., and Special Justice John V. Phelps concur.
Corbin, J., not participating.
. It left intact its allegations that the union was attempting to coerce associates by, among other conduct, filming their reactions to the flash-mob demonstrations. | [
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Cockrill, C. J.
This is an appeal from a judgment in equity, directing a new trial in an action at law.
^ was shown that there was no opportunity afforded party against whom the judgment was rendered to move for a new trial, because the court adjourned and the term lapsed before the motion could be made and disposed of. This was such an accident as would give jurisdiction to a court of equity to grant relief, provided the party complaining was otherwise entitled to it. Valentine v. Holland, 40 Ark., 338; Harkey v. Tillman, ib., 551.
1 tmai® ¶ ^when chan cery case at law
The accident alone does not warrant the interference of equity. The judgment must appear to give the winning party an advantage which a court of equity would not permit him to hold, in order to warrant its extraordinary interference with the proceedings at law. It grants relief against judgments in aid of justice, not as a recompense for the accident; and, although the law court may have committed error upon the trial, if the judgment is not against conscience, it will not meddle with it. (Cases sup.) The accident, or some other ground of equitable interposition, and the injustice of the judgment, must concur.
In this case the appellant, Johnson, who was the defendant below as well as in the action at law, took a lease of lands which were subject to a prior mortgage. Theappellee’s intestate, Mrs. Branch, was the mortgagee, and after the lease had been executed by her mortgagor, she purchased the equity of redemption in satisfaction of the mortgage. Johnson attorned to her, paid her the rent called for by his lease for two years, repaired the fences- and recovered the building as required by its terms, and made other valuable improvements upon the land, the benefit of which could not have enured to him except by occupation for the full term of his lease ; but, two or three-years before the term expired, Mrs. Branch brought an action of unlawful detainer against him, and had him evicted under a writ of possession issued at the institution of the action. The defense offered was that the plaintiff by her conduct had affirmed or adopted the terms of the lease executed by the mortgagor while in possession.
Mrs. Branch accepted the issue tendered, and the preponderance of the proof as we have it, tended to establish the truth of the answer. The plaintiff asked, and the court gave, the following charge to the jury :
“The jury is instructed that after the mortgage was-executed by Counts (Johnson’s lessor) to Mrs. Branch, the-legal title and estate was in Mrs. Branch, and that any lease made by Counts after the mortgage, was void as against the plaintiff, unless they believe the plaintiff ratified,' it.”
And, again: “The jury is instructed that before the-plaintiff could accept or ratify the lease from the mort gagor to the defendant, the plaintiff would necessarily be ■compelled to know what was contained in the lease, and if the jury believe that plaintiff did not know what was contained in said lease, they must determine from the evidence whether there was a ratification of it by the plaintiff.”
These instructions show the ground selected by Mrs. Branch to meet the defense and maintain her action.
The issue was resolved against her, and judgment was rendered against her for restitution of possession of the premises and damages. The position now taken for the first time by Mrs. Branch’s counsel is, that nothing less than an agreement of lease in writing could satisfy the statute of frauds, and that no such agreement having been proved, no defense to her action was presented. We do not think it is necessary to determine whether the conclusion drawn follows strictly from the premises stated. It has been ruled in New York that the simple attornment by the lessee of the mortgagor to the mortgagee, or one standing in his right, is a continuation of the existing lease, that the ■effect is simply to put the latter in the place of the original landlord. Austin v. Ahearne, 61 N. Y., 6, see note 5; 1 Taylor Land, and Ten., p., 132, 8th Ed.
But whatever may be the correct determination of that •question, we feel assured that the judgment at law upon the whole is nevertheless right. If the appellee’s contention is correct, that the attornment of Johnson to Mrs. Branch was equivalent to an eviction under a paramount title, and reletting of the premises by her, still as the jury have settled it that the new tenancy was in fact upon the terms and conditions of the old one, her representative is in no better condition than if she had entered into a parol .agreement to lease the land for a term of years, let the lessee into possession, and permitted him to make valu able improvements under it. Morrison v. Peay, 21 Ark., 160, was such a case, and this court refused to allow the lessor to -dispossess the tenant, holding that possession and making permanent improvements under the agreement, took it out of the operation of the statute of frauds. The court quotes this language with approval: “A party who has permitted ^another to perform acts on the faith of an agreement (of lease in parol) shall not insist that the agreement is bad, .and that he is entitled to treat those acts as if it had never •existed.” See Gartside v. Outley, 58 Ill., 210.
It is true that case was in equity and this is at law. But when an equitable defense is presented, and the trial of the issue is had at law without objection, it is not error for reversal upon appeal to this court. Moss v. Adams, 32 Ark., 562; L. R. & Ft. S. Ry. v. Perry, 37 ib., 164.
But so jealously is a bill for a new trial watched, that ■error in the trial at law which would cause a reversal of the jugment on appeal, would be disregarded in equity.
It was error, therefore, to undertake to grant the relief •sought.
The decree is reversed and the bill dismissed. | [
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Smith, J.
Waldrip was guardian of Adler C. and John I). Magness. His wards were the owners of a cotton plantation, the annual rents from which ranged from $600 to $1000. There was a gin house, at which the cotton raised by the tenants and the planters of the neighborhood was ginned and prepared for market. At the date of Waldrip’s appointment the machinery of the gin had become worn out by long use. He advanced about $350 of his own money in the purchase of a new gin-stand, feeder, condenser, horse power, etc., and was thereby enabled to let the use of the gin on advantageous terms. In the midst of the ginning season the cotton press, which was an old one, broke down, and the guardian bought a new one at a cost of $213.60. A few months later, the gin house and its machinery were destroyed by an accidental fire.
In his account current the guardian asked credit for the sums so expended. The mother of the infants filed exceptions, alleging that these expenses were incurred of the guardian’s own motion, and without authority of law, and that it was not to the interest of the wards to make the improvements. The probate court overruled the exceptions ; but on appeal, the circuit court disallowmd the credits, except the item for the press. Counsel on both sides concede that the expenditure for [the press stands upon the same footing as the other expenditures. And for ourselves we can see no difference. A cotton press is a machine for baling the cotton, after the seeds have been separated from the fibre by the action of the gin. And there could be no use for the press until this process had been performed.
diajn’s'duty meins.0 6"
^ §uarckan is the authorized agent, appointed by law, care °f the ward’s estate and manage his affairs.
If the estate consists of lands, it is his especial duty to collect the rents and profits, and to this end keep the ward’s premises in tenantable order and repair. He cannot build or make expensive permanent improvements without a previous order from the probate court. It is not questioned that the guardian acted in entire good faith, believing that what he did would be beneficial for his wards. It would have been safer and better to obtain in advance the , sanction of the probate court. But as the proposed improvements were in the nature of repairs, and as the outlay did not encroach upon the capital of the wards, but only anticipated their income for the current year, his action, without directions, only imposed upon him the burden of showing the necessity for the repairs. If it is clear that the probate court, upon an application by him setting forth the circumstances, would and should have granted authority to replace the worn-out machinery, then he should have credit for his expenditures. Waldrip did not embark his wards in a speculation or a new enterprise. Their means were already invested in agricultural lands, which their father and grandfather before them had devoted to the production of cotton. As a necessary adjunct to the prosecution of their planting operations, those ancestors had built and equipped a cotton-gin ; and, as a matter of profit, they had ginned also the cotton of their neighbors. It was a public or toll gin, situated at a steamboat landing on White river, which was considered a good stand for such a purpose. Waldrip had to determine whether he would let the capital that was invested in the gin lie idle and eventually perish, or expend a few hundred dol lars in making needed repairs. In concluding to repair lie exercised a wise discretion, although he should have laid the facts before the probate court, and have sought its advice. But the making of the repairs was what any prudent man would have done with his own property. And so the uncle of the wards, and the administrator of their father’s estate, testified. It would have turned out profitably for the wards but for a calamity which could not have been foreseen. During the few months the gin was operated Waldrip received, as rent for its use, $184.49. The cost of the new machinery would have been repaid by the tolls of two or three seasons.
The judgment is reversed and cause remanded, with directions to overrule the exceptions to the guardian’s accounts. | [
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Cockrill, C. J.
There is no dispute about the facts which control the determination of this controversy. The parties were tenants in common in the ownership of a cotton gin with the usual running gear and appurtenant fixtures. The defendant was lawfully in possession, and at no time denied the right of his co-tenant to enjoy the common property with him. He insisted upon remaining in possession of his own interest and reaping the benefit to be derived from it. He offered, however, to let the plaintiff in to operate the gin with him upon an equal footing. He offered also to run it one-half the time, and turn it over to the plaintiff’ for his exclusive use the other half, either by taking it week by week about; month about, or in any other way. The plaintiff declined all his overtures, but insisted that if the defendant operated the gin he should pay him rent for his individual interest. The defendant refused to accede to any terms looking to the payment of rent, but ran the gin at his individual expense for the use of the public, and received tolls in payment. "When he had operated it a few weeks the plaintiff instituted this suit against him before a justice of the peace. In the circuit court and here he has treated his action as one to recover for the use and occupation of lands. It is not certain from the record, whether the common property is a part of realty occupied by the parties as tenants in eommon, or whether it is legally separated from the freehold and only a chattel. But in neither event would the plaintiff be entitled to recover.
The jury found, in effect, that the defendant made no profit by operating the gin ; and (treating it as the appellant does, as realty), it is a well settled principle of the common law, that the mere occupation by a tenant of the entire estate does not render him liable to his co-tenant for the use and occupation of any part of the common property. The reason is easily found. The right of each to occupy the premises is one of the incidents of a tenancy in common. Neither tenant can lawfully exclude the other. The occupation of one so long as he does not exclude the'other, is but the exercise of a legal right. If for any reason one does not choose to assert the right of common enjoyment, the other is not obliged to stay out; and if the sole occupation qf one could render him liable therefor to the other, his legal right to the occupation would be dependent upon the caprice or indolence of his co-tenant, and this the law would not tolerate. 4 Kent Com.* 369; Freeman on Co-tenancy, sec. 258; Evarts v. Beach, 31 Mich., 136; Israel v. Israel, 30 Md., 120; Fielder v. Childs, 72 Ala., 567; Hause v. Hause, 29 Minn., 252; Reynolds v. Wilmeth, 45 Iowa, 693; Pico v. Columbet, 12 Cal., 414; Becknel v. Becknel, 23 La. An., 150.
The appellant relies upon the statute of the state which gives to landlords the right to recover a reasonable compensation for the use and occupation of their premises. (Mansf. Dig., sec. 4169; Byrd v. Chase, 10 Ark., 597; Mason v. Delancy, 44 Ark., 444). But the statute has no application to the occupancy of tenants in common. In the absence of an agreement to pay rent, the relation of landlord and tenant does not exist between them, but each occupies in his own right. There is therefore, no implied promise to pay for the use of any part. Authorities supra. But our statutory remedy for use and occupation of lands applies only when the relation of landlord and tenant exists. Mason v. Delancy, supra. The plaintiff’s action presupposes a promise to pay rent; otherwise the justice before whom it was instituted could not have entertained jurisdiction. But there was in fact no promise express or implied. If the property could be regarded as personalty, the rule as to the possession of the parties would not be different. Coke Litt., sec. 323; Freeman Coten., sec. 245; Bertrand v. Taylor, 32 Ark., 470.
In no view of the matter has the appellant shown a right to recover, and the judgment of the court is affirmed. | [
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Cockrill, C. J.
The appellee, who was the only heir at law of Woodard’s intestate, brought suit in the Jefferson circuit court in chancery, to surcharge. the accounts of Woodard, as administrator, and to remove a cloud from the title of lauds of the estate which he had sold. The first phase of the relief sought has been abandoned, and the second could have been more readily attained by an application to the probate court to refuse to confirm the administrator’s sale. It had not been confirmed when the complaint was filed, but a confirmation 'was had before the hearing, and the cause was allowed to proceed for relief against it as by common consent.
1. A DMIN ISTRATION Fraud Trust, etc
The facts, briefly stated, are these: Woodard, as administrator, sold the land to his wife, at public sale, for a nominal price, and without waiting for a confirmation of the sale, executed a deed to her, went into possession him self, and enjoyed the rents, and also the profits from the sale of the timber growing upon it. At the date of the sale the appellee, who is the administrator’s niece, was only ten years of age. She has since resided in a different county, and it appears was never informed, until about the time of bringing her suit in 1881, of the condition of affairs as to the land. Woodard, in the meantime, had kept the administration open, though it does not appear to have been necessary; had not caused the report of the sale to be confirmed, nor had his accounts reporting the expenditure of the purchase price of the land ever been acted upon by the probate court.
'2. Statute of Limitations: Where trust exists.
No title vested by the sale until confirmation (Apell v. Kelsey, 47 Ark., 413), and Woodard not having openly renounced, or been discharged from, the execution of the trust he assumed in accepting the appointment as administrator, held the land in trust, and could take no benefit from the statute of limitations. Brinkley v. Willis, 22 Ark., 1; McGaughey v. Brown, 46 ib., 25.
As he derived the benefits of the sale, and as we judge from his subsequent conduct, must have expected to do so when the lands were sold, the purchase was a violation of his trust. “The policy of the law,” as was said in Mc-Gaughey v. Brown, sup., which in this respect closely resembles this case, “is to demand so strict an adherence to duty that no temptation to weigh self-interest against integrity can be placéd in the trustee’s way.” This may be regarded then as a purchase by the trustee of the trust estate, and was therefore voidable. The parties in interest, when apprised of the fact of the purchase, had their option to disaffirm it or allow it to stand and take the benefit of it (McGaughey v. Brown, sup.), and they could estop themselves by their conduct from disaffirming the purchase. (Jones v. Graham, 36 Ark., 383.) But so far as the record shows, Mrs. Jaggers is free from this objection. She reposed confidence in Woodard as her relative, was not in a position to receive actual knowledge of the facts, and the probate court had never been asked to approve the sale, or to disburse, for the benefit of the estate, the purchase price with which the administrator had charged himself.
The court caused a master to ascertain, and state an account of the rents and other profits derived by Woodard from the land, and allowed him credit for the slight improvements he had made, and for the taxes paid. It is not specifically set forth that he was allowed a credit for the amount of the purchase money of the land (see West v. Waddill, 33 Ark., 575); nor is it clear from the record that this money has been actually expended for the benefit of the estate, but the difference between the unchallenged amount reported by the master against Woodard, and the diminished amount with which he is charged in the final decree, is such as to lead us to believe the court must have allowed him a credit for the purchase price; but the plaintiff has not appealed, and as the decree does not exceed the amount for which he should account, it must be in all things affirmed. | [
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Cockrill, C. J.
The appellee was indicted under sec. 1835, Mans. Dig., for gaming. He was charged with playing a game known as “ craps,” which the indictment al leged was 8 game of “ hazard or skill.” A demurrer was sustained to the indictment.
It is supposed that the disjunctive “or” was the objection to it. There is, however, no duplicity in the indictment.
The accused was called upon to answer to the charge of betting at a specific game — not one of several games described in the alternative — and if that game was one of hazard or skill, and he had bet at it, the offense was com. píete.
The judgment is reversed and the cause remanded, with instructions to overrule the demurrer. | [
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Cockrill, C. J.
The appellants enjoyed a corporate franchise under a charter framed under the general act of January 8, 1851 (see acts 1850-1, p. 85), to take tolls from a turnpike road and a ferry connected with it over the Ouachita river. The charter was annulled by a judgment of the circuit court upon an information in the nature of quo warranto, filed by the attorney general on behalf of the state.
The cause was tried by the court without a jury. No declarations of law were asked and none were given; none of the evidence was objected to and a new trial was not asked. The bill of exceptions set forth the evidence adduced on the trial — nothing more. The court found as a fact that no effort had been made to keep the road up as required by the charter, for more than five years next before the institution of this proceeding, and that the road had never been kept in any better condition than the ordinary county dirt roads; and thereupon gave judgment annulling the charter and forfeiting to the state the franchise previously enjoyed by the corporation.
Upon this state of record, the only question presented by the appeal is this: concluding as we must, the facts to-be correctly found, does the effect given to them by the-judgment of the court legally follow? Smith v. Hollis, 46 Ark., 17.
l. Corpok-ATIONS: Misuser: '
It is a tacit condition annexed to the creation of every # # ° corporation that it is subject to dissolution by forfeiture of its franchise for willful misuser or non-user in regard to-matters which go to the essence of the contract between it and the state, and the proceeding here adopted is the-proper mode of trying the issue. State, v. Real Est. Bank, 5 Ark., 595 : Smith v. State, 21 ib., 294; State v. Leatherman, 38 ib., 81; Truett v. Taylor, 9 Cr., 43; Mumma v. Potomac Co., 8 Pet., 287; Atty. General v. C. R., 6 Wend., 461.
2. Quo wnvt'ctnto.
It is the very substance of the duty a turnpike company assumes when incorporated, to construct and maintain its roads in substantial compliance with its charter requirements. The charter in this case specified how the-road should be constructed and maintained — its width, the-height of the road-bed, and the drains being specifically designated. The court found upon the issue of fact that these-requirements had been persistently disregarded for a period of more than five years. This long-continued neglect indicates a degree of willful non-feasance that justifies a. revocation of the franchise. State v. R. & W. Turnpike Co., 11 Vt., 431; People v. Turnpike Co., 23 Wend., 253; State v. Turnpike Co., 1 Zab., 9.
3. Ferry.
2. It was probably the intention of the charter to es tablish tbe ferry merely as an incident to the turnpike in order to render travel over it feasible. The privilege of maintaining the ferry would, in that event, fall with the revocation of the turnpike franchise.
If the charter was designated to confer the independent privilege of maintaining a ferry, as the information alleged and the circuit judge seems to have supposed, it went beyond the powers conferred by the act under which it was drafted, and an attempt to exercise the privilege under it would have been a usurpation of right. The power to grant ferry privileges was then, as now, vested in the county courts, and there is nothing in the act of 1851 indicating an intention to interfere with this power or to place it elsewhere.
:. Same.
If then, the corporation was attempting to exercise a franchise under its charter to which it was not legally entitled, the information was the correct remedy to reach the usurpation, and the judgment of ouster is right. High Ex. Bern., see 650.
In any view the judgment is correct and is affirmed. | [
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Battle, J.
The judgment recovered by appellees, Geyer, Adams & Co., against appellant for $143, in the Nevada circuit court, at the March term thereof in 1884, is void. Giles v. Hicks, 45 Ark., 271; St. L., 1. M. & S. Ry. v. Richter, ante. 345.
i. invád judgmeDt-
2.Damages upondissolution.
The appellant fails to show in his complaint that he has not a full and adequate remedy at law. Unless he can show that he has not such a remedy, either by appeal, certiorari, application to the court itself which rendered the judgment, or in any other legal and adequate manner, he is not entitled to relief by injunction. The demurrer to the complaint was properly sustained. 1 High on Injunctions, secs. 229, 230; Sanders v. Sanders, 20 Ark., 610; Bell v. Greenwood, 21 Ark., 249; Stillwell v. Oliver, 35 Ark., 187. The court erred in assessing damages on the dissolution ° # 0f the injunction and rendering judgment therefor against appellant. The judgment enjoined being void, no damages were sustained by the stay of proceedings thereon.
The decree of the court below is therefore reversed, and a decree will be entered here in accordance with this opinion. | [
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Cockrill, C. J.
Hammock, the appellant, let one Stewart have land to cultivate during the year 1884, under this-, oral agreement, viz.: Hammock was to furnish a team, farming utensils and supplies to make the crop on his-land; the crop raised was to be his property; but, after he had reserved one-half for the use of the land, etc., and enough of the residue to pay for the supplies furnished, he-was to deliver what remained to Stewart. After a cotton crop was made under the contract and gathered, Stewart sold and delivered seven and one-half bales of it to the defendant, Creekmore. This action was brought against him by Hammock for conversion of the property, and a recovery to the-extent of his ultimate interest ($158) only was sought. These-facts were set out in the complaint; the court sustained a demurrer to it; the plaintiff rested, and, after judgment against him, appealed.
The effect of the contract set forth is that Stewart should raise the crop for the plaintiff’ on the latter’s land, and receive a part of it from him as wages for his work.
(Toland v. Sprague, 28 Vt., 746.) The settled construction of such contracts by the court is that the title to the crop raised vests in the landowner. If the terms of the con'.ract had been such as to indicate the intention to create the relation of landlord and tenant, as in Alexander v. Pardue, 30 Ark., 436; and Birmingham v. Rogers, 46 ib., 254, the title to the crop would have been in Stewart, the tenant, subject to the landlord’s lien for rent, and the landlord could have maintained no action at law against Creekmore for converting any part of it. Anderson v. Boles, 44 Ark., 108.
Or if the intention to become tenants in common had been indicated (see Bertrand v. Taylor, 32 Ark., 470; Ponder v. Rhea, ib., 436); then the title would have vested as in other chattels held in common (Hamby v. Wall, ante 135), and either of the common owners could maintain his action against one who converted the property tó his use for the value of his interest.
If there were otherwise any doubt of the intention of the parties to the contract under consideration, as to which of these relations they would assume, it is dispelled by the failure to vest in Stewart any interest in the freehold, and the adoption of the express stipulation that the crop should be' the property of the plaintiff. The contract, as it is alleged, is almost identical with that in Ponder v. Rhea, supra, and it was there held that the party who occupies Stewart’s place here was merely hired to make the crop; and to the same effect are Christian v. Crocker, 25 Ark., 327; Burgie v. Davis, 34 ib:, 179; Sentell v. Moore, 34 ib., 687; Gardenhire v. Smith, 39 ib., 280. The party undertaking the labor under such a contract has no title to any part of the crop raised until it is divided, and the share contracted for set off to him. He may sell or mortgage his contingent interest, just as he may assign his wages to be thereafter earned. (Beard v. State, 43 Ark., 284.) But he can do no act to prejudice the right or title of his employer, who is the true owner.
The title to the cotton being in the plaintiff, it follows that he can maintain his action, and the judgment must be reversed and the cause remanded, with instructions to overrule the demurrer. | [
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Cockrill, J.
The appellee presented a petition for a mandamus to the Pulaski circuit court to compel the auditor to issue it a certificate of redemption of lands from sale for non-payment of taxes, in pursuance of the act of April 8, 1869.
The petition described many tracts of land which, it was alleged, had previously belonged to one Baber; and it was alleged that while Baber was the owner of the lands they had been forfeited to the state at different times for the non-payment of taxes, the greater part of them for the taxes of the year 1868; that subsequently proceedings were taken against the lands under the overdue-tax law of 1881; that they were condemned by decree of court for the payment of the taxes and the penalties due and the costs of the judicial proceedings, and that upon a sale had thereunder they were stricken-off to the state; that after the sale, and before the time for redemption granted in such cases by the act of 1881 had expired, Baber donated the lands to the relator, the railway company, to aid in the construction of its road; that while the period of redemption was still unexpired it had demanded the certificate of redemption from the auditor, and that he had refused to grant it.
The auditor demurred to the petition. His demurrer was overruled; he refused to plead further; the court granted the relief prayed, and he appealed.
i. taxes: tu0ne“Py «Sderove? tax
The act of 1869, under which the right of redemption is claimed, with the preamble, is as follows-. “Whereas, The title to large quantities of lands heretofore sold to the state for taxes, a*d yet unredeemed, mains in doubt, whereby the improvement of the same is prevented and the state is receiving no revenue therefrom; therefore,
“ Section 1. Be it enacted, etc., That whenever any person having title to or being the owner of any lands which have been or may be stricken off to the state, or forfeited for non-payment of taxes, shall donate or subscribe the same in aid of the construction of some railroad, and the same shall be reported to the auditor of state, as provided in section 2 hereof, the auditor shall grant his certificate, as in case of redemption, and thereupon all taxes or claim of the state on account of non-payment of taxes on each tract of land so subscribed or donated shall be remitted and discharged; provided, that a lien shall exist in favor of the state for the taxes hereby remitted, which may be enforced and said taxes collected according to law, if such railroad shall not be completed through the county in which or nearest to which such lands are selected within five years from the date of such subscription or donation.” See Mansf. Dig., secs. 5489, 5490.
The other sections prescribe the duty of the railroad ■company as to delivering lists of the lands to the auditor, And provide that “they shall not be listed nor subject to taxation until conveyed to actual purchasers ” by the company.
The latter provision is so manifestly in contravention of ■section 6, article 16, of the present constitution, which declares void all laws exempting property from taxation except as provided in the same instrument, that it has been omitted from the last revision of the statutes, as it was from the revision had under the constitution of 1868, which required the listing of all property for taxation, except certain specific classes. Fletcher v. Oliver, 25 Ark., 289.
"Whether the release or remission of taxes already due is an exemption from taxation for the years remitted so as to render the first section of the act obnoxious to the same constitutional provisions, is a question not argued by counsel, and the consideration of it is not necessary to the final decision of this cause in the light we view the act. The ■ostensible object of the act of 1869, however variant from that intent the practice under it .may have been, was to ■“ aid in internal improvements,” as its title imports. This ■was to be effected in two ways, viz.: (1) Railroads were to be succored; and (2) lands to which the state’s right of ownership was doubtful, and which would for that reason be unsaleable and therefore unproductive of revenue or other benefit to the state, were to be placed in the line of development. These results were to be accomplished by the co-operation of the state and the owner of the land,, but only in cases where the land had been or might thereafter be “stricken off to the state, or forfeited for non-payment of taxes,” as the act declares. The terms “ stricken off” and “forfeited to the state” for non-payment of taxes-are of frequent use in the revenue acts, and are commonly of equivalent meaning there. As used in the act óf 1869,. they evidently refer to sales made under the revenue law for non-payment of taxes. It was this class of titles that were looked upon with suspicion, owing to the informalities commonly attending the assessment or levy of taxes, or other duties of officers connected with the collection of the revenue; and there was no other law providing for striking oft' or forfeiting lands to the state for non-payment of taxes.
Now, the act of 1881 is entitled “ an act to enforce the payment of overdue taxes.” Its provisions show that its object was the collection, and not the donation, of the revnue. It recognized, as did the act of 1869, the instability of titles based upon forfeitures for the non-payment of taxes, and the consequent improbability that the lands-would be of any practical benefit to the commonwealth while the title rested upon the claim derived through the machinery of the general revenue laws. But the remedy for the correction of the evil adopted in this act is altogether different from that of 1869. Instead of the heroic remedy of joining the owner in a release of all rights to-third parties, in order to subject the lands to taxation for-the future, it proposed to institute judicial proceedings against the lands, the result of which would be to force the payment of the taxes due, or else quiet the state’s title, and thus enable her to put the lands upon the market. As a matter of grace to the owner, a new period of redemption was fixed. The legal right to redeem lands forfeited more than two years before the passage of the act of 1881 existed hy virtue of that act alone. But the privilege of reclaiming the lands was burdened by the act witb a condition, and could, therefore, be exercised only upon strict compliance with the condition — that is, that the amount due to the state, together with the costs of the judicial proceedings, should be paid. The privilege of redeeming upon any other terms is .nowhere granted. It is reasonable, however, to presume that the statute mentions in express terms all the favors it wa3 intended to grant. The collection of the revenue is essential to the preservation of government, and the state’s right to receive it is not to be cut off or affected, unless the intention to do so is plainly expressed. A grant to a person to take the benefit of past due taxes to his own use, like the right of exemption from future taxation, is to be strictly construed, and the right is not taken by implication in one case more than the other.
2. Same:_ Grant of.
"We conclude, then, that the right to redeem without actual payment of the amount due, as provided by the act of 1869, was intended to be limited to cases of forfeiture under t'he general revenue law, and does not apply to lands purchased by the state at judicial sale under the overdue-tax law of 1881. The relator was not, therefore, entitled to the relief asked.
The demurrer to the petition should have been sustained. The judgment must be reversed and the cause remanded, with instructions to sustain the demurrer.
It is so ordered. | [
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Cockrill, C. J.
The requirement of the statute for authenticating claims against the estates of deceased persons is not fulfilled by an affidavit made at some period in the-lifetime of the decedent, to the efiect that he was justly indebted to the affiant in a sum stated, and that nothing had. been paid or delivered toward the satisfaction of the-demand.
Such an affidavit might be true when made, but not true-if applied to the facts existing at the date of the debtor’s, death.
The affidavit required is the foundation for legal proceedings against the estate in the probate court, and the-claimant is not entitled to participate in the assets without' it. Birnie v. Imboden, 14 Ark., 237; Walker v. Byers, ib., 246; Alter v. Kinsworthy, 30 ib., 756.
But there is no estate to proceed against nor anything-over which the probate court can assume jurisdiction until, the death of the debtor, and prior to that time no steps-can be legally taken in the matter-.
Affirmed. | [
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Hon. Ben T. Duval, Special Judge.
The plaintiff', Askew, in March, 1882, brought this action for mandamus to compel the collector of Columbia county to receive certain scrip issued in 1864, in payment-of taxes for 1881.
The court below sustained a demurrer to the answer and rendered judgment in favor of the plaintiff, and defendant appealed to this court.
The appellant relies upon but one ground for reversal, that is: Whether the facts stated in the second paragraph of the defendant’s answer constitute a defense ? They are that at a regular term of the Columbia circuit court, held on the 8th day of March, 1873, all the outstanding indebtedness of said county was called in for re-issuance. That at the adjourned June term of said court, the plaintiff presented the identical scrip described in his complaint to the court, and it was declared to be void.
Copies of the several orders of the court are annexed to and made a part of the answer.
An agreed statement of facts was reduced to writing and signed by the parties, which was filed and prayed to be taken, not only as evidence, but as amendments to the complaint and answer. The plaintiff' then demurred in short upon the record by consent to each and every .paragraph and defense in the answer.
The court sustained the demurrer, and the defendant declined to amend. The court proceeded to render judgment in favor of the plaintiff in conformity with the prayer of the complaint.
We would remark, en passant, that the amendment of pleadings by agreed statement of facts appears to be novel. No question, however, on that point is raised before us, and we do not feel called upon to pass upon it. The exhibits referred to in the answer and annexed to it, show that the original order calling in the scrip was made by the county court, and that the board of supervisors was afterwards created by the act of the general assembly of the state of Arkansas to supersede said county court.
That, in pursuance of said act, the supervisors of Columbia county met on the first Monday in May, 1873, elected one of their number president, and on the same day adjourned over until the 9th day of June.
That, on the 11th day of June, the plaintiff presented for re-issue, the scrip in question, and the same was rejected because it had been issued by a pretended county court, acting under the authority of the Confederate States government. There is no question, if this order was made by a legally constituted court, the scrip was barred, and the refusal of the sheriff and collector to receive it from the plaintiff, in payment of his taxes, was correct.
By section 3, act of April, 1873, it is enacted that “the board of supervisors shall assemble at the court house in their respective counties on the first Monday in May, 1873,. and being so assembled, shall severally take and subscribe to the oath of office ordered by the constitution of the state.”
Section 8 declares that: The regular session of the board of supervisors shall commence on the first Monday in January, April, July and October, in each year, and shall continue six days, if business shall so long require, and no longer, provided “the president of the board may call a special session thereof, whenever in his judgment it may be necessary, upon his giving five days’ notice of said session by advertisements posted at the door of the court house of his county, and causing a copy thereof to be delivered to, or left at the residence of, each member of said board.”
These are all the provisions in the act in regard to the meetings of the board — they are denominated regular and special meetings.
Could the board of supervisors adjourn the meetings to another day beyond the six alloted them ?
In Dunn v. State, 2 Ark., 229, this court upon the authority of Mechanics’ Bank v. Withers, 6 Wheaton, 106, held that “ all courts, unless restrained by some statutory provision, have the right of adjourning their sittings to a distant day, and the proceedings at the adjourned session will be considered as the proceedings of the term so adjourned.”
In that case the only question before the court was, whether the adjournment was a continuation of the term, •or constituted a distinct term.
Chief Justice Marshall, delivering the opinion of the •court, said: “ There being nothing in any act of congress which prevents the courts of the District of Columbia from exercising a power common to all courts, that of adjourning to a distant day,” held that the proceedings of the adjourned term were a continuation of the proceedings of the regular term.
The limitation of the regular session of the board of ■supervisors to six days and no longer — with the power vested in the president to call special sessions, whenever in his judgment it might be necessary, was in our opinion intended to be a restraint upon the inherent power of courts to adjourn their sittings to a distant day, and continue the proceedings of the term thereby.
If the board could have so adjourned over, and held adjourned terms, the limitation of the number of days allowed for its regular meetings would have been avoided.
The plaintiff’s scrip was presented at the adjourned meeting of the board and declared to be void, as stated in the answer. We have nothing to do with the reasons which influenced the action of the board of supervisors.
The agreed statement of facts taken as amendments to the pleadings, however, establishes that the scrip was not . issued in aid of the Confederacy, and was therefore binding on the county. Howell v. Hogins, 37 Ark., 110; Berry v. Bellows, 30 Ark., 198; Daniel v. Askew, 36 Ark., 487.
Was the order made by a lawfully constituted court? mi iit r . ±he holding of a court at a time or place other than that prescribed or authorized by law, and all proceedings thereunder, are coram non judice and void. Dunn v. State, ubi supra ; Brumly v. State, 20 Ark., 77; Jones, ex parte, 27 Ark., 349.
l. Board ofSupervi* sors could terms‘
The board of supervisors was purely a . creature of the legislature and could only exercise such powers as were conferred upon it by the act giving it existence.
It may be naturally presumed that the general assembly in limiting its regular session to six days, and no longer, with the proviso that special sessions might be called by the president, intended to restrict the inherent power of courts to adjourn their sittings to a distant day and continue its proceedings.
When the legislature creates a tribunal with special powers, and imposes special limitations upon their exer cise, they must be strictly pursued. Hudson v. Jefferson County, 28 Ark,, 359.
Under authorities cited above, we must hold that the proceedings of the board of supervisors of Columbia county, relied upon by the appellant, were eoram non judiee and void, because the board had no power to adjourn its ses-sions beyond the six days to which its sessions were limited by law.
2. Want tionIsíuways a defense.
This is decisive of this case. But some stress is laid upon the appearance of the appellee before the board of supervisors at the adjourned term and the presentation of his scrip to it.
It is not necessary to cite authority to show that this would not confer jurisdiction upon the board, nor validate-its proceedings.
The jurisdiction of a court over the subject matter is derived from the constitution and laws, and not from consent of parties, and courts to be legal must be held at the time and place provided by law as above.
The principle that a judgment cannot be impeached collaterally is not applicable to a case like this.
The want of jurisdiction is a matter that may always be set up against a judgment when sought to be enforced, or where any benefit is claimed under it. Latham v. Edgerton, 9 Cowen, 227; Borden v. Fitch, 15 John., 141; Mills v. Martin, 19 John., 33.
3. Same-By consent
When the court has jurisdiction of the subject matter, or cause of action, consent may confer jurisdiction of the person. McCormick v. Pacific Central R. R. Co., 49 N. Y., 309.
There were irregularities in the order and notice which might have rendered the action of the board invalid, but they were waived by the appearance of the appellee, and the presentation of his scrip. Allen v. Bankston, 33 Ark., 740.
The appellant raised a question here as to the tender— this ought to have been raised in the court below. If it were material, we think it was waived by the parties in their agreed statement of facts, which was at their request taken and treated as an amendment to the pleadings. The tender was good. Howell v. Hogins, 37 Ark., 110.
Let the decree of the court be affirmed.
Hon. B. B. Battle did not sit in this case. | [
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Cockrill, C. J.
Section 1, article 9, of the constitution of 1874, prescribes the extent of the exemption of personal property to be claimed by an unmarried resident not the head of a family. Section 2 fixes the same right for the married resident or head of a family. At the end of section 1 is this provision: “Provided, that no property shall be exempt from execution for debts contracted for the purchase money thereof while in the hands of the vendee.”
The appellee, who was a resident married man and head of a family, filed his schedule, claiming as exempt from seizure under an attachment, a lot of merchandise which he had purchased from the appellants, and which they, in an action to recover the purchase money, sought to subject to the payment of their debt. The court held, in effect, that admitting the facts as here stated, the appellee was nevertheless entitled to his exemptions. This ruling, it is said, is based upon the idea that the proviso affects only the class of persons named in the first section. ■
It is a rule of construction that a limiting clause' or a proviso in a law, is ordinarily confined to the last enactment. (Cushing v. Worrick, 9 Gray, 382; Bishop Written Laws, sec. 57; Spring v. Collector, etc., 78 Ill., 191.) The rule, however, arises from the presumption that the meaning of the lawmakers is thereby reached — the collocation of the words or the arrangement of the substance of the law indicating the intention thus to limit its effect. It is not an arbitrary rule to be enforced at all events, even where the context shows a different intent. (United States v. Babbit, 1 Black, 55 ; Mayor v. Magruder, 34 Md., 381; Mechanic's Bank, 31 Conn., 63.) To ascertain the intention of the lawmakers is the goal of all interpretation.
It would be a narrow construction of the proviso above copied to limit its operation to unmarried persons who are not heads of families simply because it happens to be found in the section which prescribes their exemptions. The article treats of exemptions generally, and the proviso in the plainest of terms, is an absolute and unqualified negation of .the right of any exemption of personal property, as against a debt contracted for the purchase money thereof. It is engrafted upon the very first provision looking to exemptions, as if at the threshhold it should be made known that no one should have the absolute right to claim as his own that which in strict equity he could not be said to have acquired.
If it had been the intention to pursue a different policy toward married persons and heads of families, and to grant them greater privileges in acquiring and holding property without paying for it, the homesteads of such persons would scarcely have been made subject to sale for the purchase money as is prescribed by section 8, of" the same article. We have also a legislative construction nearly contemporaneous with the constitution, providing an expeditious remedy for enforcing the vendor’s right to collect his debt out of the property sold, and this too recognizes the general application of the proviso. {Act March 9, 1877; Mansf. Dig., sec. J¡398, et seq.) We think the framers of the constitution intended to affirm in this provision an independent proposition applicable alike to all who seek the protection of the exemption law.
II. The appellee also claimed as exempt “household and kitchen furniture valued at $70,” in these general terms. Objection was made to this item of the schedule, for the purpose of having the articles claimed as exempt specifically set forth, but the court overruled the objection. Exemptions are to be set apart to a defendant “in specific articles to be selected by” him. {Sec. 1, art. 9, supra.) The statute requires him to specify “the particular property” he wishes to claim. {Mansf. Dig., sec. 3006.) The plaintiff then has the right to have the property viewed and appraised, to ascertain that it does not exceed the value allowed by law. {Ib., 3107-9.) Under the general description given in this schedule no specific articles were selected by the defendant; and the plaintiff had no means of ascertaining the value of the property claimed.
The objection should have been sustained. For the errors indicated, the judgment must be reversed, and the cause remanded for further proceedings. | [
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OPINION.
Cockrill, C. J.
The law governing the questions argued by the appellants is fully discussed in the- cases of Bridgford v. Adams, 45 Ark, 136, and Taylor v. Mississippi Mills, 47 Ark., The rulings of the court below are in accord with the doctrine of these eases. The-court specially found that the vendee, at the time of making the purchase, was solvent, and entertained no-design or intention of getting the goods on credit to avoid payment. This was a question of fact to be settled by a jury, or the court acting in that capacity, and having been settled against the appellants upon competent evidence, it precludes their right to rescind the sale, and the judgment must be affirmed. | [
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Battle, J.
On the 2d day of November, 1883, in the town of Argenta, in this state, Jonathan H. Cavenesse was killed by the locomotive and cars of the Little Rock and Fort Smith.Railway company. His adminstratrix brought this action against the railroad company to recover the damages suffered by reason of his death.
A terminus of the defendant’s railroad is in Argenta. Its passenger platform, waiting-rooms and ticket office at this place are on the west side of. its track, and its baggage platform is immediately opposite and on the east side. The passenger platform is spacious, twenty feet wide, and is on a level with the top of the rail. The baggage platform is three feet high, and three feet from the rail, so near that a car could not pass a man of the deceased’s size standing between it and the railroad track. It is built on blocks and'is open at the sides. There is an incline at the northwest and northeast corners of it for persons having business on it to go on or off. On the north of it the Memphis and Little Rock railroad crosses the defendant’s track. Within the southeast angle formed by the crossing of these two roads is the baggage-platform of the defendant.
On the 2d of November, 1883, the deceased arrived at Argenta on his way to Fayetteville. He had with him a minor son. The son took a seat upon the baggage platform, while his father went to the ticket office for the purpose of purchasing tickets of defendant to Fort Smith for himself and son. He purchased the tickets and walked across the track to the baggage platform, and handed one to his son, and stopped between the baggage platform and defendant’s track for the purpose of making a memorandum in his book. While standing here, with his back partly to the railroad, a train of defendant, consisting of an engine and a tender and a caboose and cattle car, came backing down from the north side of and acrosss the Memphis and Little Rock railroad in the direction of deceased. He started across the track, but finding the train very near him, backed up against the baggage platform for it to pass. He was struck in that condition and killed by the train. Many witnesses testified that the train stopped the usual time before crossing the Memphis and Little Rock railroad, and that the usual signals of its approach were given, while others testify to the reverse. All the employes on the train, except one,' testified that they did not see him until after he was struck by the train. Witnesses differed as to the speed of the train at the time it struck him. Some testified it was running four or five miles an hour, and others from eight to twelve miles an hour.
Sherman Kirley testified in the trial that he was a brakeman on the train that killed the deceased; that the engine was turned frontward, and was pushing the caboose and cattle car, and was running about ten or twevle miles an hour when it crossed the Memphis track; that the engine blew the whistle before crossing, but did not stop; that the defendant was in the habit of sending men forward to flag its trains before crossing, but he did not know that there was a man there for that purpose at this time; that he was standing in the caboose door, about eight car lengths from Cavenesse, when he first saw him; that Cavenesse first tried to cross the track, but did not have time; that there was an employe on top of the train, but he (Kirley) did not know whether he saw Cavenesse or not; that he (Kirley) saw from Cavenesse’s motion that he could not get out of the way; that he (Kirley) gave the signal to stop three times when about five car lengths from the deceased, but did not give the signal when he first saw him'; that the engineer did not see the signal, but the fireman did; that the traip did not check up; that Cavenesse was standing leaning against the baggage platform, talking to his son, who was sitting on the platform in front of him; that when Cavenesse saw the cars were going too fast for him to step cross the track he tried to dodge under the baggage platform, but could not, and then straightened himself and leaned against the platform, with his back to it; that the steps of the caboose struck him, threw him down, and the boxing of the trucks killed him; and that the train stopped after running about five car lengths after passing him.
A. G. Cavenesse testified as follows: “Am seventeen years old and son of deceased; was sitting on baggage platform, with legs hanging down. We were waiting for train. Deceased had bought tickets and came across track and handed one to me, then turned, with his back to me, and was making memorandum of money paid for tickets; back was partly to me and to the track. The train came rolling down pretty rapidly, about ten miles an hour. I hollowed to father, ‘Look out.’ 'lie started to cross the track, but found the train was too close, and backed against platform. He was struck in that condition and killed. The train was within twenty or twenty-five feet when I first saw it. It was in fifteen feet of father when I called Ms attention to it; when he looked it was in eight or ten feet of him. The cars were even with him when he got back to platform. He could not have crossed the track. Two cars passed by him. The steps of the caboose caught him and rolled him along the edge of platform, there not being room for his body to pass. When he got to end of platform he dropped, with right leg across the rail, and engine and tender passed over it. No bell was rung or whistle blown until after engine passed him about twenty-five yards. A brakeman was on the end car; he saw father and signaled to the engineer to stop. It would not have done any good to- stop then ; the cars were too close. The cars were in twenty feet when brakeman saw him, and he signaled and went to brakes. Train did not cheek up any. It was going too fast to have been stopped. Don’t know how close platform was to train, but too close for train to ■pass a man of his size. He weighed about two hundred pounds; was very large. He could have been seen from the train about two hundred yards up the road. The platform was the one right at the crossing of the Memphis and Little Rock railroad, where baggage and passengers were put on and off both roads; good many people around, and .good deal of noise — rattling of baggage, omnibusses, etc.”
Sherman Kirley was allowed to testify, against the objection of defendant, that there had been strife between the employes of defendant and the Memphis and Little Rock Railroad company before Cavenesse was killed, and -a collision had occurred on account of it.
E. T. Mathews testified that he erected platforms for a ■railroad in Louisville, and one at Texarkana for the Iron Mountain railroad, and that the space between these platforms and the edge of the widest cars was fourteen inches. The defendant objected to this evidence because it was ir relevant. The court overruled the objection, and defendant excepted.
Other witnesses testified, but it is unnecessary to state their testimony here.
The plaintiff asked the following instructions, which were given:
“2. It is a rule, as applicable to all cases of injury about stations, that railway companies are bound to keep in a. safe condition all portions of their platforms and approaches thereto, to which the public do or would naturally resort; and all portions of their station grounds reasonably near to the platforms where passengers, or those who have purchased tickets with a view to take passage on their cars, would naturally or ordinarily be likely to go.
“ 3. That it is the duty oí a railroad company, when backing trains through her depot grounds, where she has invited persons seeking passage on her trains, and others having proper business with the company, to use the utmost care and caution, and to keep a thorough lookout; and the running over such p'erson by such train in such depot grounds in daylight, when such person may be easily seen, without seeing such person, is generally gross negligence on the part of the company.”
The court gave the following instruction on its own motion:
“ The plaintiff alleges that her intestate was killed by the negligent running of the defendant’s train. The plaintiff asserts that defendant was ‘guilty of ‘negligence.’ The defendant denies negligence, and claims that deceased’s death was caused by his own contributory negligence. Negligence cannot be presumed, but must be proven by plaintiff, but if plaintiff has shown negligence on t;he part of defendant, and if defendant undertakes to be relieved by setting up ‘contributory negligence’ on the part of de ceased, then defendant must show this ‘ contributory negligence.’ When there is mutual ‘ negligence,’ and the negligence of each the proximate cause of the injury, no action is sustainable.
“In determining whether an act is the proximate cause of an injury the legal test is :
“Was the injury of such a character as might reasonably, under the circumstances, have been foreseen or expected, as the natural result of the act complained of?
“The jury are the sole judges of the facts, the weight of evidence and the credibility of witnesses. You should, if possible, reconcile any conflict in the evidence, but if you cannot do this then give credence to the witness or witnesses whom you believe most worthy of belief. When you find what the facts were, then apply the law as given you.”
To the giving of each of said instructions defendant, at-the time, excepted.
Defendant asked the following instructions :
“ 1. The jury cannot assume, from the fact of the killing of the deceased, that there was negligence on the part of the defendant. The burden of proving the facts alleged as negligence is on the plaintiff', and before you can find for the plaintiff it must appear from a preponderance of evidence that it was guilty of the alleged negligent acts.
“3. In considering the evidence greater weight should be given to affirmative evidence, by credible witnesses, of" the ringing of a bell or the sounding of a whistle, than is given to the testimony of witnesses that they did not hear such signals, unless it is shown that they were listening for the signals, or that their attention was called to that circumstance.
“ 4. If the jury believe from the evidence that the train by which J. H. Cavenesse was killed, was moving at a prudent rate of speed; that a signal of the approach of the train was given by the ringing of the bell or sounding of the whistle; that the engineer or fireman did not see him in time to have stopped the train and prevented the injury, ■or if they did see him that there was nothing in his appearance to indicate any inability to get out of the way of the train, they will find for the defendant.
“5. If they believe that the deceased stopped on or by the side of the track, and between it and the baggage platform, in the way of the train (and in a ¡position that a prudent man should not have stopped), and that there was no •obstruction for some distance in the direction from which the train was approaching to prevent him from seeing it; that the employes in charge of the train did not keep a proper lookout, or see him in time to have stopped the train or prevented the injury, then his death was caused by his contributory negligence, and the jury should find a verdict for the defendant, notwithstanding they may further believe from the evidence that the employes in •charge of the train in question neglected to ring the bell or •sound the whistle for the crossing, and that the train was •running at too great a rate of speed.
“ 6. If they believe that the employes in charge of the ■train neglected to keep a proper lookout, and thereby failed to see the deceased, J. EL Cavenesse; that the train was running at an imprudent rate of speed, and there was a failure to ring the bell or sound the whistle at the crossing ; that the deceased had stopped on or by the side of the track in the way of the train (and at a place where, under the circumstances, a prudent man, having due regard for his safety, would not have stopped); that the track was open and he could have seen the train approaching for some •distance, and in time to have gotten off the track, then he was guilty of contributory negligence, and the defendant is not liable, notwithstanding the rfegligence of his employes, and your verdict should be for the defendant.
“7. The law does not require railroad companies to •station men at their depots tor the purpose of keeping passengers off the tracks or warning them of the approach ■of trains, except it be at crowded depots in cities where there are numerous tracks.
“9. If the facts and circumstances in'evidence in this •cause show that the deceased, at the time of the killing, was in a dangerous position, and was where a prudent man would not have stopped under the circumstances, and that this fact directly contributed to his death, then the plaintiff will not be entitled to a verdict on account of any negligence on the part of defendant’s employes, unless the •employes in charge of the train saw the danger deceased was in in time to have prevented the accident, and neglected to use all efforts in their power to avert the danger.”
The court gave the first, third and fourth, instructions. It refused to give the ninth instruction. It modified the fifth and sixth instructions, by adding the portion of said instructions in italics. And to the refusal to give the ninth, and the modifications of the fifth and sixth instructions, the defendant excepted.
During the closing argument before the jury, one of the attorneys for plaintiff made the following statement to the jury:
“ I was the attorney for the defendant at the time Cavonesse was killed, and had been for eleven years, and I went with Col. Hartman, at the time the superintendent of the road, and investigated the case and advised him, Col. Hartman, at the time, that it was the worst case to defend that had occurred on the road.”
Here the court, on its own motion, admonished the attorney that such a statement was improper, was not evi dence, and told the jury that they should entirely disregard the same. Defendant’s counsel also objected and excepted to the statement, whereupon plaintiff’s attorney stated to the jury that his statement was not evidence, but was only made by way of argument, and that the jury would not consider it in any other light.
The jury returned a verdict in favor of plaintiff for five thousand dollars; and a judgment was rendered accordingly.
Defendant filed a motion for new trial, on the following grounds:
1. Error in giving the instructions asked by plaintiff
2. Error in the instructions given by the court on its own motion.
3. In refusing the instructions asked by defendant, and in modifying defendant’s instructions.
4. In refusing to exclude that part of Sherman Kirley’s evidence objected to by defendant.
5. In admitting the evidence of P. T. Mathews as to the construction of the depot platform at Texarkana and on the V.,M. &P. railway, in Louisiana.
6. Yerdict contrary to law and evidence.
7. Yerdict excessive.
8. By reason of the statement made by plaintiff’s attorney in his argument to the jury.
This motion was overruled, and the defendant filed a bill of exceptions and appealed.
1. Keciprocal duties of railroads and passen gers
It has been repeatedly held by this court, that “One who is injured by mere negligence of another cannot recover at law or equity any compensation for his injury, if he, by his own or his agent’s ordinary negligence or willful wrong, contributed to produce the injury of which he complains, so that but for his concurring and co-operating fault, the injury would not-have happened to him, except where the direct cause of the injury is the omission of the other party, after becoming aware of the injured party’s negligence, to use a proper degree of care to avoid the consequences of such negligence.” St. L., I. M. & S. Ry. Co. v. Freeman, 36 Ark., 41; Harvey v. Rose, 26 Ark., 3; Little Rock & Fort Smith Ry. Co. v. Parkhurst, 36 Ark. 377; Bauer v. St. L., I. M. & S. Ry. Co., 46 Ark., 388; St. L., I. M. &. S. Ry. Co. v. Wilkerson, 46 Ark., 513.
“One who, by his negligence, has brought an injury upon himself, cannot recover damages for it. Such is the rule of the civil and common law. A plaintiff in such cases is entitled to no relief. But where the defendant has been guilty of negligence, also, in the same connection, the result depends upon the facts. The question in such cases is: First — whether the damage was occasioned entirely by the negligence or improper conduct of the defendant; or, Second — whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary care and caution, that but for such negligence or want of care and caution on his part the misfortune would not have happened. In the former case the plaintiff is entitled to recover. In the latter case he is not.” Railroad Co. v. Jones, 95 U. S.,439; Bauer v. St. L., I. M. & S. Ry. Co., supra.
2. same
Carriers of passengers are liable for negligence, but are not insurers of the safety of their passengers, as they are of goods, at common law. They are required to exercise a great degree of care and diligence in taking care of their passengers. It is their duty to keep their stations, and the approaches thereto, in such condition that those who have occasion to use these premises for the purposes for which they are designated, may do so with safety. It is their duty to provide safe and convenient means of entrance to and departure from their trains. But while these duties rest upon the carrier it is the duty of the passenger to exercise ordinary care and prudence in taking care of himself and avoiding injury; and although the carrier be guilty of negligence,'Still, if the passenger by his own misconduct in failing to exercise ordinary prudence, directly contributes to the injury, he cannot recover. The duty of the carrier to keep its stations and approaches thereto in good condition and to provide safe and convenient means-of entrance and departure, creates the reciprocal duty on the part of the passenger to occupy the premises provided for their use while waiting for trains, and in going to and from the carrier’s depot, offices, platforms and trains, to use the ways'and means provided for that purpose. Gonzales v. N. Y. & H. R. R. Co., 50 How. Pr., 216; Mayo v. Boston & Maine Railroad, 104 Mass., 137; Wheelock v. Boston & Albany Railroad Co., 105 Mass., 203; Thompson on Carriers of Passengers, 233; Jeffersonville Ry. Co. v. Hendricks, 26 Ind., 228; Beach on Contributory Negligence, 155.
In Pennsylvania Railroad Co. v. Zebe, 33 Penn. St., 326, Mr. Justice Thompson, in delivering the opinion of the court, said: “ The law implies in the contract of carrying passengers by railroad companies, that they shall provide-a safe and sufficient road and cars, competent and careful conductors and hands, and safe and convenient means of egress and ingress to and from the line of their road. There must be no negligence on their part. There is also on the part of the passenger an implied contract that he will and does ‘assent to all the company’s reasonable rules- and regulations for entering, occupying and leaving their cars; and if injury befall -him by reason of his disregard of regulations which are necessary to the conducting of the business, the company are not liable in damages, even though the negligence of their servants concurred with his own negligence in causing the mischief.’ Sullivan v. The Philadelphia & Reading Railroad Company, 6 Casey, 234, per Woodward, J. Here are reciprocal duties defined, resting upon principles most reasonable and of the clearest justice, and nothing but special circumstances, or the most pressing exigencies, which are not now foreseen, could justify a departure from them. Nothing of the kind marked the case in hand. But the court submitted the question to the jury, whether the parties in this case had not a right to leave the cars, either by the safe means provided by the company, or by a way not provided. The abstract question of their right to do so is one thing, and need not be disputed; but the liability of the company by reason of their doing so is quite another thing. The regulation of the company for leaving the cars by the platform was apparent from its existence, and having been placed there and used for the purpose. This was the usual egress from the train. Without proof of any necessity, coupled with the proposition of their right to leave the cars at either side, the jury were, by the instruction of the court, allowed to find on the opposite of the principle laid down in the case of Sullivan v. The Philadelphia & Reading Railroad Company, which declares that passengers are bound to conform to the regulations of the company on entering, occupying and leaving the cars. The duty being fixed by the relation of the parties to each other, the contract must be performed by both. A departure by either could be justified only by a paramount necessity. The question then for the jury should have been, first, as to the performance of the duty by the company in providing safe ears and safe means of egress from them; and, secondly, if this were so, was it the fault of the company that the injury occurred ? and to establish this, more was necessary to be proven thafl that the plaintiff and the injured son voluntarily chose to depart from the cars by an unusual way. There should have been proof of some existing necessity for their doing so, to excuse them from negligence and the consequences of it. Then, the question might have been left to the jury, as to the propriety of their violating the regulations of the company. A voluntary disregard of regulations providing for their safe exit by the platform was a disregard of their obligations to the company; and if this were so, the plaintiffs ought not to recover. We hold, on these principles, that the company’s liability could not be fixed for the injury consequent on a choice of the passenger in disregard of the provisions made by them for his safety and convenience. It was, we think, error in the court to submit the question of the rights of the parties to leave the cars at either side, in the absence of the proof of a justifying necessity in doing so. It was not negligence on the part of the company that they did not by force or barriers prevent the parties from leaving at the wrong side. People are not to be treated like cattle; they are presumed to act reasonably in all given contingencies, and the company have no reason to expect anything else in this case.”
In Bancroft v. Boston & Worcester Railroad Co., 97 Mass., 275, the facts were, that the plaintiff’s intestate alighted from the defendant’s car upon the platform at the usual stopping place. There were two parallel tracks at this station, lying in a deep cut. There were two stairways provided by .the company, by which the highway above could be reached without crossing the tracks, but the most obvious way — which was neither of these — was to cross both tracks to a platform on the other side, and go up the stairs which were in full view upon that side. This was the customary mode of exit, and was a fact known to the defendants. The last time this passenger was at the station it was the only means of reaching the highway, and he had no notice of any other way at this time. He walked to the rear of the train upon which he had come in, and which now began to move towards Boston, and crossed the track upon which the train was running. On coming up to the next track he could only see the track clear towards Boston, for a distance of eighty or one hundred feet, on account of a curve and bridges across the track. As he attempted to cross the second track, an outward-bound express train, going at the rate of forty feet a second, and giving no signal of warning, rushed upon him before he could get across the track. This train he saw when too late, and, throwing up his hands, made an ineffectual attempt to escape, but was fatally ■ injured. The court held that the plaintiff was not in the exercise of due care. Chief Justice Bigelow, in delivering the opinion of the court, said: “The track of a railroad, over which frequent trains are passing, is a place of danger. A person who goes upon it unnecessarily, or without valid cause, voluntarily incurs a risk, for the consequences of which he cannot hold other persons responsible — certainly not without adequate proof that he took active measures of precaution to guard against accident.”
But the contributory negligence of' a plaintiff is no defense where the direct cause of the injury complained of is the omission of the defendant, after becoming aware of the injured party’s negligence, to use a proper degree of care to avoid the consequences thereof. It was held by this court in St. L., I. M. & S. Ry. Co. v. Wilkerson, supra, that the railroad company was liable for damages caused by the killing of a trespasser on its track, because, by the use of a proper degree of care, after it discovered him drunk on its track and unable to get off, it could have avoided killing him and failed to do so.
3 . CosTRIBUTORY Negligence: When no defense.
i. Burden of proof of e on tributory negligence.
The burden of proving contributory negligence, as a general rule, is on the defendant. This rule is founded on the presumption that a person is careful until the contrary appears. It follows, then, that the reason of the rule ceases, and it can have no application when the plaintiff, by his own evidence, shows negligence on his part, and that such negligence aided or contributed to the injury received. By such evidence he establishes a defense to his own action, as much as if the same facts were proved by the defendant. Shearman and Redfield on Negligence, secs. 43, 45.
The second instruction asked by plaintiff, and given by the court, should not have been given. There was no evidence that appellant had not kept in a safe condition all portions of its platforms and the approaches thereto. It was calculated to mislead the jury, by leading them to believe that appellant was liable for damages caused by the killing of Cavenesse, because its baggage platform was too near the railroad track, and that Cavenesse was not guilty of any negligence, under any state of facts, on account of being where he was at the time he was killed.
The ninth instruction asked for by appellant should have been given. But appellant was not prejudiced by the refusal of the court to give it, because the substance of it was comprehended in instructions which were given.
The evidence objected to by appellant was clearly incompetent.
Appellant contends that the statement made by plaintiff’s attorney, in his closing argument before the jury, was a good grou'nd for a new trial, and the judgment of the court below should be reversed on account of it. It has been frequently held to be the duty of nisi prius courts to-grant new trials, both in civil and criminal cases, where counsel abuse their privileges by persisting in stating to- the jury facts which are not in evidence, or by making other statements in the way of argument, which are clearly unwarranted and prejudicial. Brown v. Swineford, '44 TFis., 282; Coble v. Coble, 79 N. C., 589; Tucker v. Henniker, hi N. H., 317; State v. Smith, 75 N. C., 306; Ferguson v. State, ]¡S Ind., 33.
In Brown v. Swineford, supra, Chief Justice Ryan, in delivering the opinion of the court, said:
“The profession of the law is instituted for the administration of justice. The duties of the bench and bar differ in kind, not in purpose. The duty of both alike is to establish the truth and to apply the law to it. It is essential to the proper administration of justice, frail and uncertain at the best, that all that can be said for each party, in the determination of fact and law, should be heard. Forensic strife is but a method, and a mighty one, to ascertain the truth and the law governing the truth. It is the duty of counsel to make the most of the case which his client is able to give him, but counsel is out of his duty and his right, and outside of the principle and object of his profession, when he travels outside of his client’s case and assumes to supply its deficiencies. Therefore is it that the nice sense of the profession regards with such distrust and aversion the testimony of a lawyer in favor of his client. It is the duty and right of counsel to indulge in all fair argument in favor of the right of his client; but he is outside of his duty and his right when he appeals to prejudice irrelevant to the case. Properly, prejudice has no more sanction at the bar than on the bench. But an advocate may make himself the alter ego of his client, and indulge in prejudice in his favor. He may even share his client’s prejudice against his adversary, as far as they rest on the facts in his case. But he has neither duty nor right to appeal to prejudices, just or unjust, against his adver sary, de hors the very case he has to try. The very fullest freedom of speech, within the duty of his profession, should be accorded to counsel; but it is license, not freedom of speech, to travel out of the record, basing bis argument on facts not appearing, and appealing to prejudices irrelevant to the case and outside of the proof. It may sometimes be a very difficult and delicate duty to confine counsel to a legitimate course of argument. But, like other difficult and delicate duties, it must be performed by those upon whom the law imposes it. It is the duty of the circuit courts, in jury trials, to interfere in all proper cases of their own motion. This is due to truth and justice. And if counsel persevere in arguing upon pertinent facts not before the jury, or appealing to prejudices foreign to the case in evidence, exception may be taken by the other side, which may be good ground for a new trial, or for a reversal in this court.”
But the court in this case having admonished the attorney that the statement made by him was improper, and told the jury that they should entirely disregard it, and the attorney himself having said to the jury that his statement was not evidence, but was only made by way of argument, and that they should not consider it in any other light, it is presumed that the mischief of the remark was counteracted, and that appellant was not prejudiced thereby. Under the circumstances it is no ground for reversal. Goldman v. Wolf, 6 Mo. App., 490; State v. Degonia, 69 Mo., 485; Fry v. Bennett, 3 Bosw., 24.
For the errors indicated the judgment of the court below is reversed, and the cause is remanded, with instruction to the court to grant appellant a new trial. | [
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Cockrill, C. J.
Richter recovered judgment by default against the railroad before a justice of the peace for $66.07 on January 26, 1885. An appeal was prayed to the circuit court, and the judgment superseded the next day. Before the cause was reached for trial in the circuit court a judgment creditor of Richter sued out a garnishment upon a judgment rendered by another justice, and caused it to be served on the railroad company for the purpose of satisfying the judgment against Richter. The company did not answer the garnishment, and a judgment by default in the garnishment proceedings was rendered against it for $15.65, the amount of the judgment against Richter. When the circuit court convened the railroad ■filed its answer, setting out this state of facts, and made no defense to the residue of the claim. The court sustained a ■demurrer to the answer, and rendered judgment against the company for the full amount claimed, and awarded execution therefor. The company appealed.
1. Appeal from J.P. New defense in circuit court.
In the case of Irowbridge v. Means, 5 Ark., 135, it was decided that a judgment debtor was not subject to the process of garnishment. See, too, Tunstall v. Means, ib., 700. This was not because the terms of the garnishment-statute were not broad enough to cover a debt which had been reduced to judgment, but for the reason that to permit the garnishee to be pursued by process upon his creditor’s judgment, and that of the garnishor, at the same time, would bring about a clash of jurisdictions, or else subject the garnishee to the hazard of paying the same debt twice. The result in the first instance, it was thought, would lead to inextricable embarrassment, and in the second a wrong would certainly be perpetrated through the instrumentality of the law. Rut neither of these evils will be presented in allowing the plaintiff’s debt to be garnished in this case.
The appeal has opened the case for the purpose of a trial anew in the circuit court as if no judgment had been rendered, and the defendant is thus afforded the opportunity of shielding himself from the liability of making payment both to the plaintiff’and the plaintiffs creditor; and there is no danger of a conflict of jurisdiction in the collection of the debt, because no execution can issue on the suspended judgment, and it is in the power of the circuit court to render a new judgment in the still pending cause that will prevent all complications. So far as the right to reach the plaintiff’s debt by garnishment is concerned, the case stands simply as an action pending for its collection ; but the pendency of suit for the collection of a debt does not place it beyond the reach of garnishment process. Freeman on Ex., sec. 166.
Garnishanfebtítfor
There iá' nothing to prevent the presentation of this defense in the circuit court. Notwithstanding the judgment was by default, the defendant may make any defense he might have made before the justice, excepting pleas by way of set-off. (Hall v. Doyle, 35 Ark., 445) These are regarded as new actions, and the circuit court cannot mingle appellate and original jurisdiction in the same cause, and try issues that are altogether new. Mansf. Dig., sec. 4151; Amis v. Cooper, 25 Ark., 14; Texas & St. Louis R’y v. Hall, 44 ib., 375; Whitesides v. Kershaw, ib., 377.
2. Same; Set-off.
But the garnishee, who is compelled to pay his debt to his creditor’s creditor, is not merely subrogated to the latter’s right and forced to resort to set-off for his protection.
The payment is itself a release pro tanto from the indebtedness {Mansf. Dig., sec. 340), as though it had been made to his own creditor.
The case of Millard v. Lawler, 26 Ill., 301, is in point. But the railroad company has not yet paid off the garnishment; nor has it been sued by the garnishor, and had judgment rendered against it for the garnished debt. The ■answer alleges, it is true, that a judgment by default was rendered against the company on the return day of the writ of garnishment in the garnishment proceeding; and such a judgment was formerly authorized in garnishments after judgment {Mansf. Dig., sec. 3418); but that method of procedure has been abrogated, as was pointed out in Giles v. Hicks, 45 Ark., 271.
3. prao_ níshmea“"
Section 224 of the code of civil procedure as amended in 1871 {Mansf. Dig., sec., 317) gives the right to sue out a writ of garnishment on a judgment, hut directs that the debt shall be collected from the garnishee as in other cases of garnishment under the code (section 817,supra), and that all can be done, as we decided in Giles v. Hicks, sup., only by suing the garnishee as other defendants are sued. And as if to leave no room to question the legislative intent to make the code remedy exclusive, the amending act referred to embraces a provision similar to the one already found in the code (Mans/. Dig., secs. 1¡,910, 6868), to the effect that other acts prescribing or regulating the practice in our courts are repealed, and that the code, “as amended” by it, shall “ constitute and regulate all civil practice and proceedings.” (lb., sec. 6817.) So that if this provision was not repealed by the code in 1868, as it most probably was (Dowell v. Tucker, 46 Ark., 438; Giles v. Hicks, supra), the amendment of 1871 effected the repeal.
There has been no valid final judgment against the company in favor of the garnishor. The answer, therefore, shows only the service of a writ of garnishment on the defendant. But as the plaintiff’s creditor is not denied access to the debt in suit by process of garnishment, the service of the writ fastened it in the garnishee’s hands, and fixed the right of the garnishor to pursue the garnishee to satisfaction in the manner pointed out by the statute.
The garnishee, the railroad company, must pay the debt, and it is a matter of no concern to it to whom it is paid, so-that it gets an acquittal from its indebtedness. The temporary inconvenience to which the plaintiff debtor may possibly be exposed by withholding his remedy for satisfaction of the debt until his creditor has had the opportunity to perfect his right to appropriate it, cannot outweigh the policy of the law to subject all of the debtor’s property not exempt from seizure to the payment of his debts.
So much of the judgment as awards execution against the defendant for the amount of the garnished debt is erroneous. Drake Att., sec. 701; Waples Att., p. 5W, sec. 16.
.L The | anrd¿”gs ment'
To that extent the judgment is reversed and the cause remanded, with instructions to stay the execution to that extent for such time as the court shall he advised is proper. Otherwise the judgment is affirmed. | [
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Smith, J.
Gates & Brother recovered a judgment against Steele, and sued out an execution, which was levied on eighty acres of land. The defendant filed his schedule, claiming the land as his homestead, and the clerk of the circuit court stayed the sale. The plaintiffs now moved the court to quash the supersedeas upon two grounds: First — That Steele was not a married man, nor the head of a family, within the meaning of the exemption clause of the constitution; and second — That the land was not occupied as a home at the date of the levy. But the circuit court refused to discharge the supersedeas.
Steele had established his home upon this tract many years before, and lived upon it at the time of the contraction of this debt, and of the recovery of judgment, with his wife and a son nine or ten years old. These members of his family were still living at the date of the levy and subsequent trial. But his wife had, in the year 1879, left him and had not since lived with him, although the parties had never been divorced. Steele having fallen sick, and being about seventy years of age, his son-in-law, Wray, who lived on an adjoining farm, had removed him to his own house, that he might be nursed and cared for.^ And in December, 1879, Steele executed to Wray a lease for the premises. This instrument recites the lessor’s age and infirmities, and purports to let the farm for the remainder of his life, in consideration that Wray will support and provide for him; and in case of failure to do so, the lease is to be at an end. But Wray’s interest is limited to the taking of the annual rents and Steele expressly reserves his right of homestead in the demised premises.
Steele had never regained his health and had continued to live with Wray for four or five years and, indeed, until after the writ was levied, when he moved back to his own place. The lease had never been canceled, and Wray still controlled and managed the land. But the oral testimony adduced on both sides, tended to show an understanding and agreément that Steele might return and resume possession whenever he felt himself strong enough. The inducement for the lease was his fear lest he might become a burden to his son-in-law. He says he turned the place over to Wray to keep until he was able to go back. A bed and carpenter’s tools were carried to Wray’s, but the rest of his furniture and effects were left on the farm.
1. Homestead: Head" of family.
On the first point we have no difficulty. Steele was a married man and the head of a family. He owed his wife and minor son protection and support. The wife, though living separate, might have returned to her duty at any moment. Stanley v. Snyder, 43 Ark., 429, goes much further; holding that a homestead right once acquired, is not forfeited by the death of the wife, and the arrival at age and removal of the children.
Aside from the authority of that case, and leaving out of view Steele’s obligations to his infant son, it is hard to understand how the voluntary desertion of his wife could alter the legal status of Steele. The adjudged cases lend no support to such a view. But, on the contrary, it has been frequently decided that, whilst a marriage de jure exists, the husband is the head of a family, within the purview of the homestead law, although his family may consist only of a wife, who has left him. Brown v. Brown’s Administrator, 68 Mo., 388; Whitehead v. Tapp, 69 ib., 415; Pardo v. Bittorf, 48 Mich., 275.
2. Same: temión.In"
The other point presents a closer question. Under ordinary circumstances the execution of a lease for life would furnish conclusive evidence of an abandonment of the homestead; for the owner thereby puts it out of his power to use the premises for a family residence. But Steele’s absence was involuntary. And his lease stipulated for the retention of his homestead. Even in a controversy between lessor and lessee, some effect should be given to this clause, if it is susceptible of any. The most obvious meaning is, that Steele reserves the right to make his home upon the land. And such is the construction the parties to the lease have themselves practically put upon this provision.
Evidence..
But this is not a suit between the parties to the instrument. Hence the rule which prohibits the contradiction of the written contract by parol evidence, does not apply.
It might be, and was shown, that other agreements were made concerning the property, besides those expressed in the writing. 1 Gr. Ev., sec. 279; Hensley v. Brodie, 16 Ark., 511; Talbot v. Wilkins, 31 ib., 411.
The abandonment of a homestead, after it has once been in good faith established, is always essentially a question of intention. Thompson on Homestead and Exemptions, sec. 263, et seq.; Tomlinson v. Swiney, 22 Ark., 400; Euper v. Alkire; 37 ib., 283; Brown v. Watson, 41 ib., 309.
Deference is accordingly due to the decision of the trial ■court, if there is any sufficient evidence that the claimant, at the time of leaving, contemplated a return. Here the plaintifls themselves introduced a witness, from whose statements the court below might infer that the abandonment was not final.
Affirmed. | [
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Smith, J.
S. B. Kirby & Co. brought replevin against Tompkins for a sewing machine. The answer denied that the defendant unlawfully detained possession, or that the plaintiff' had sustained any damage by the detention. On a trial before a jury the'following facts were proved : On the 15th of March, 1884, the plaintiff had made a conditional sale of the maehine to the defendant at the price of $43, of which $10 were paid, and notes payable at one and two months were taken for the residue. The notes were produced, in which the agreement for sale was thus expressed : “The Wilson sewing machine, style 3, plate No. 202,789, for the use of which, to the maturity hereof, this note is given, is and shall remain the property and under the control of S. B. Kirby & Co., or assigns; and for default of payment, or if the said S. B. Kirby & Co. deem the machine in unsafety by removal or otherwise, it shall on .demand be returned to S. B. Kirby & Co., or assigns, in good order, and with pro rata pay for its use, which shall be three dollars per month. It is understood and adjudged that S. B. Kirby & Co. own this machine absolutely, and the title remains in them until the machine is paid for in full.”
Shortly after maturity of the notes an agent of the plaintiffs demanded payment of the defendant, or the surrender of the machine. The defendant refused payment, and refused also to give up the machine, unless his notes were surrendered at the same time. The agent replied that he had no instructions upon this point. The court in effect told the jury that the plaintiffs could not maintain their action without first surrendering or offering to surrender the notes. The verdict was for the defendant, and that he was entitled to the possession of the machine, the value of which was found to be $32.50, and judgment was entered for the return of the machine or its value.
The judgment is bad because it awards to the defendant the restitution of a chattel of which he had not claimed the return. The right of the plaintiff to recover was admitted by the answer, the only effect of which, if true, was to protect the defendant against damages and costs. Mansf. Dig., sec. 5181; Brown v. Standford, 22 Ark., 76; Neiss v. Gillian, 27 ib., 184; Wells on Replevin, secs. 485,487,491,713.
Passing to the evidence, the uncontradicted facts are that tbe plaintifis were the owners and entitled to the possession of the machine; and nothing in the agreement between the parties required the plaintifis to give up the notes before they could resume possession of the property. Fleck v. Warner, 25 Kansas, 492.
Reversed and a new trial ordered. | [
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Cockrill, C. J.
The appellee sued an executor without first making the affidavit authenticating his claim against the estate as required by the statute. The executor moved to dismiss the action upon this ground. Ho affidavit was produced except the ordinary form of verification to the complaint, but neither this nor the allegations of the complaint conformed with any degree of substantiality to the statute authenticating claims against estates. Mansf. Dig., see. 102. The statute is peremptory in its terms directing a non-suit if the authentication is not made (lb., sec. 107), and this court has universally given effect to it. Alter v. Kinsworthy, 30 Ark., 756, and cases cited.
The appellee has not undertaken to favor us with any reason for taking his case out of the rule, and we have failed to see that any exists.
The judgment will be reversed, and the cause remanded for further proceedings. | [
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DAVID M. GLOVER, Judge.
| Appellants Jerry and Rose Barnett appeal from the order of the Washington County Circuit Court granting appellees Stuart Sanders and his parents, Gary and Shari Sanders (non-resident co-owners), injunctive relief and prohibiting the Bar- netts’ placement of fencing and gates across the northern easement on the Bar-netts’ properly. On appeal, the Barnetts argue that they did not unreasonably restrict or interfere with the Sanderses’ use and enjoyment of their easement across the Barnetts’ property; they also assert that the Sanderses’ complaint is not ripe for adjudication because Stuart Sanders has never been prevented from using the easement. We reverse and remand in part and affirm in part.
This case involves five contiguous parcels of property. The Sanderses purchased the easternmost parcel in May 2007 from the Darrell Edward McFarland Revocable Living Trust. The Barnetts purchased the three westernmost parcels from the McFarland Family Trust in | ¡April 2012. The parcel between the Sanderses’ properly, which was possibly going to be developed at some point in the future by Stuart, and the Barnetts’ property is owned by another person not a party to this appeal. The Sanderses’ deed contains sixty-foot easements described by metes and bounds across the northern and southern sides of the Barnetts’ property. Jerry Barnett erected fences and sixteen-foot unlocked gates across the northern easement to facilitate his rotational grazing cattle operation. The Sanderses filed a petition for injunctive relief against the Barnetts for blocking the northern easement.
At trial, Jerry Barnett testified that he has always acknowledged that the Sand-erses have an easement, that currently the gates were unlocked, and, that when he needed to lock the gates to secure his cattle, he would provide Stuart Sanders with the combination so that Stuart Sanders continued to have access. There was also testimony at trial that the northern easement was not passable without the performance of significant construction work to traverse a creek and a spillway, as well as remove brush piles and trees; however, Stuart Sanders testified that he could still move equipment along the north easement even though there were ditches. Stuart testified that currently the property was still zoned for agriculture, although he said that he might develop the property at some point in the future. He testified that the stopping and opening of gates would not practically work for him.
The trial court issued a letter opinion granting the Sanderses’ petition for injunc-tive relief based on the holding in Wilson v. Johnston, 66 Ark.App. 193, 990 S.W.2d 554 (1999). An order granting the Sand-erses’ petition for injunctive relief was filed on February 20, 2014. The Barnetts timely filed a notice of appeal on March 14, 2014, as well as an amended notice |sof appeal on May 16, 2014. The Barnetts make two arguments on appeal: (1) Stuart Sanders’s use and enjoyment of the easements across the Barnett property was not unreasonably restricted or interfered with by the erection of the gates, and (2) the Sanderses’ complaint was not ripe for adjudication because Stuart Sanders has never actually been prevented from using the easement.
Our standard of review following a bench trial is whether the circuit court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Paschal v. Paschal, 2011 Ark. App. 515, 2011 WL 3925381. 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.
The trial court’s reliance on Wilson v. Johnston, supra, in this case is misplaced. In that case, Wilson purchased properly in 1964 containing a private-way easement described by metes and bounds. Wilson constructed a concrete driveway on a portion of the easement. Roughly a ten-by-thirty-foot portion of the easement was not paved and remained in its natural state. Wilson utilized the natural part of the easement to gain access to her backyard on occasion, causing ruts in the ground. Wilson wanted to pave the natural part of the easement; Johnston objected to both Wilson’s use of the natural portion of the easement and to Wilson’s desire to pave it. Wilson filed a complaint for declaratory judgment and injunction to determine her rights with regard to the property, as well as requesting that she be allowed to pave the remaining portion of the private way and to extend her privacy fence. The trial court determined that for thirty-one years, the natural portion of the property had |4been used as. a “buffer” and could not be utilized for anything else; the court also denied Wilson’s requests to pave the property and extend her privacy fence. Wilson argued on appeal that the chancellor erred in narrowing the width of the private-way easement that was defined by metes and bounds in the recorded deed, and this court agreed, citing Howard v. Cramlet, 56 Ark.App. 171, 989 S.W.2d 858 (1997), for the proposition that an easement that is not described by metes and bounds or defined with specificity is subject to “lines of reasonable enjoyment,” but holding that when there is an express easement specifically established by metes and bounds, the trial court can neither diminish the area nor restrict the usage of the private way.
Here, the circuit court, in its letter opinion, cites Wilson v. Johnston for the proposition that because the easement is described by metes and bounds, the “lines of reasonable enjoyment” theory does not apply. This is correct. However, notwithstanding that statement, all easements, regardless of specificity, are still governed by certain general principles. This court, in Howard v. Cramlet, supra, held:
The rule in this state is that the owner of an easement may make use of the easement compatible with the authorized use so long as the use is reasonable in light of all facts and circumstances of the case. The owner of the servient tenement may make any use thereof that is consistent with, or not calculated to interfere with, the exercise of the easement granted. 3 Tiffany, Law of Real Property, § 811 (3rd ed.1939); see Natural Gas Pipeline Company of America v. Cox, 490 F.Supp. 452 (E.D.Ark.1980).
56 Ark.App. at 174-75, 939 S.W.2d at 860. Thus, when determining the relations between |flthe easement owner and the possessor of the servient estate, the governing principle is that neither should unreasonably interfere with the rights of the other; what is reasonable or unreasonable will vary with the facts of the case. Wilson v. Brown, 320 Ark. 240, 897 S.W.2d 546 (1995). The holder of the dominant estate has a duty to use the property so as not to damage the owner of the servient estate; conversely, the servient-estate owner may not erect a barrier that unreasonably interferes with the right of passage by the easement owner. Id.
The Barnetts argue that there was no unreasonable interference or restriction with Stuart Sanders’s use and enjoyment of the easement. However, the circuit court made no findings on these issues, and this court cannot make those findings. Because the trial court made no findings as to what constituted reasonable use/restriction of the easement by Barnett as the servient tenement, we remand the case to the circuit court for findings on the reasonableness/restriction issue.
The Barnetts also raise the ripeness issue, citing Redwine v. Turner, 2011 Ark. App. 251, 378 S.W.3d 866, for this court’s holding that we would not base our decision in an easement case on what might happen in the future, particularly in the absence of any testimony showing that the servient estate might be combined with another parcel of land at some point in the future. However, in Redwine, it was the owner of the servient estate, not the dominant estate as we have here, who was asking for a determination based on what might happen in the future.
In the present case, there was testimony from Stuart Sanders that he was not developing the property at that time — in fact, the land was still zoned agricultural. However, |fithe Sanderses own the dominant estate, not the servient estate as in Redwine, and they are entitled to the use of the easement, even if they are not using it at this moment. In Wilson v. Johnston, supra, this court cited Salmon v. Bradshaw, 84 S.D. 500, 173 N.W.2d 281 (1969), for the proposition that an express-grant easement is not lost by nonuse or partial use, and that the easement right exists, notwithstanding the exercise of a lesser privilege. As the dominant tenement, the Sanderses were not remiss to ask the circuit court to determine their rights in the easement if they believed that Jerry Barnett was attempting to usurp the easement, regardless of whether he was using it at the moment or not. Therefore, the issue was ripe for decision, and we affirm the trial court on this point.
Affirmed in part; reversed and remanded in part.
PITTMAN and WHITEAKER, JJ., agree.
. The present case is further distinguishable from Wilson v. Johnston because here, there was no diminishment of the metes and bounds easement by the trial court nor was there any restriction on how the easement could be used by Stuart Sanders from the trial court. | [
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PER CURIAM.
|TIn 1978, appellant Frederick Pennington, Jr., entered a negotiated plea of guilty in the Pulaski County Circuit Court to first-degree murder, four counts of aggravated robbery, and first-degree battery. He received concurrent sentences of life imprisonment for the charge of first-degree murder and each of the aggravated-robbery charges and 240 months’ imprisonment for the battery charge. Appellant was a minor at the time of the commission of the crimes.
lain 2012, appellant, who was incarcerated at a facility of the Arkansas Department of Correction located in Jefferson County, filed a pro se petition for writ of habeas corpus in the Jefferson County Circuit Court. In support of issuance of the writ, appellant alleged that his constitutional rights were violated when he was sentenced to life imprisonment without the possibility of parole for crimes committed when he was a minor, that he is actually innocent of the crimes for which he was convicted, that he was denied a transfer hearing and a juvenile-detention hearing, and that he did not enter his guilty plea upon advice of competent counsel. Additionally, appellant filed multiple pleadings entitled “Amended and Supplemental Pleadings” on November 19, 27, 30, and December 6, 2012, in which he raised the same grounds for issuance of the writ as presented in his petition, as well as allegations of police brutality. The circuit court denied appellant’s request for issuance of the writ, and appellant timely filed a notice of appeal from the order.
Now before us are appellant’s motions to stay and for supersedeas, to supplement the addendum, and for appointment of counsel, as well as a petition for writ of habeas corpus. Because it is clear that appellant could not prevail if the appeal were permitted to go forward, we dismiss the appeal, and the motions for stay and for supersedeas, to supplement the | (¡addendum, and for appointment of counsel are moot. In the petition for writ of habeas corpus, appellant raises the same allegations that were asserted in the petition and supplemental pleadings that were filed in the circuit court. Because we determine that appellant failed to state a basis for issuance of the writ in the petition and supplemental pleadings that were filed in and ruled on by the circuit court, we decline to address the petition filed directly in this court, and the petition is therefore denied.
In regard to appellant’s appeal, an appeal from an order that denied a petition for postconviction relief, including an appeal from an order that denied a petition for writ of habeas corpus, will not be permitted to go forward where it is clear that the appellant could not prevail. Roberson v. State, 2013 Ark. 75, 2013 WL 655247 (per curiam). In appeals of postcon-viction proceedings, we will not reverse a circuit court’s decision granting or denying postconviction relief unless it is clearly erroneous. Pankau v. State, 2013 Ark. 162, 2013 WL 1694909. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id.
A writ of habeas corpus is proper only when a judgment of conviction is invalid on its face or when a trial court lacked jurisdiction over the cause. Girley v. Hobbs, 2012 Ark. 447, 2012 WL 5963201 (per curiam); Abernathy v. Norris, 2011 Ark. 335, 2011 WL 3930360 (per curiam). The burden is on the petitioner in a habe-as-corpus petition to establish that the circuit court lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is no basis for a finding that a writ of habeas corpus should issue. Young v. Norris, 365 Ark. 219, 226 S.W.3d 797 (2006) (per curiam). Under our statute, a petitioner who does not allege his actual innocence and proceed under Act |41780 of 2001 Acts of Arkansas must plead either the facial invalidity or the lack of jurisdiction by the circuit court and must additionally make a showing by affidavit or other evidence of probable cause to believe that he is illegally detained. Ark.Code Ann. § 16-112-103(a)(1) (Repl.2006); Murphy v. State, 2013 Ark. 155, 2013 WL 1504318 (per curiam); Murry v. Hobbs, 2013 Ark. 64, 2013 WL 593365 (per curiam).
Appellant first asserted in his petition that his sentences of life imprisonment without parole are unconstitutional. Specifically, he argued that the circuit court lacked jurisdiction to issue a life sentence due to his minority at the time of the commission of the crimes. In the petition, appellant cited Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), for the proposition that a sentencing scheme that mandates a life sentence without parole for defendants who were minors at the time of the commission of their crimes violates the Eighth Amendment to the United States Constitution. The circuit court held that Miller is inapplicable to appellant’s case, and we agree.
In Miller, the Supreme Court held “that the Eighth amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” Id. at -, 132 S.Ct. at 2469. We recently revisited the tenants of Miller in Brown v. Hobbs, 2014 Ark. 267, 2014 WL 2566091. In affirming the denial of habeas relief where a juvenile offender, after entering a negotiated plea of guilty to first-degree murder, was sentenced to life without the possibility of parole, this court explained,
[I]n Miller, the Supreme Court explicitly held that the Eighth Amendment’s protections against cruel and unusual punishment forbid a sentencing scheme that mandates life in prison without possibility of parole' for juvenile homicide offenders. See Miller, 182 S.Ct. at 2464, 2469. Thus, Miller is only applicable in Arkansas when a mandatory life sentence is imposed without the sentencer’s being able to ‘take into account how children are different, and how those differences counsel against irrevocably sentencing them to a 5lifetime in prison.’ Id. at 2469.
Brown, 2014 Ark. 267, at 5 (quoting Murry v. Hobbs, 2013 Ark. 64 (per curiam) (holding that Miller is inapposite where a juvenile’s life sentence for first-degree murder was not mandatory)); see also Smith v. State, 2014 Ark. 204, 2014 WL 6092264 (holding that Miller is inapplicable where a juvenile homicide offender’s sentence of life without parole was not mandatory); Britt v. State, 2014 Ark. 134, 2014 WL 1096310 (per curiam) (holding that, because life sentence for first-degree murder was not mandatory, it is not illegal under Miller); Hobbs v. Turner, 2014 Ark. 19, 431 S.W.3d 283 (holding that Miller is inapplicable where a juvenile homicide offender was not subjected to a mandatory life-without-parole sentence) (citing Holland v. Hobbs, No. 5:12CV00463-SWW-JJV, 2013 WL 6332731, at *4 (E.D.Ark. Dec. 5, 2013)).
In the instant case, appellant entered a negotiated plea of guilty to, and received sentences of life without parole for, the charges of first-degree murder and aggravated robbery. At the time the crimes were committed, first-degree murder and aggravated robbery were classified as Class A felonies. Ark. Stat. Ann. § 41-1502(3) (Repl.1977); Ark. Stat. Ann. § 41-2102 (Repl.1977). A Class A felony was punishable by “not less than five years nor more than fifty years, or life.” Ark. Stat. Ann. § 41-901 (Repl.1977). Thus, appellant was not subjected to a mandatory sentence of life without parole, and his sentences, therefore, are not illegal under 6Miller.
The remaining assertions raised by appellant below and addressed by the circuit court concern due-process violations, ineffective assistance of counsel, and police misconduct. Such claims are not cognizable in a habeas proceeding because they do not call into question the jurisdiction of the circuit court or the facial validity of the judgment-and-commitment order. Murphy, 2013 Ark. 155 (ineffective-assistance-of-counsel claims are not cognizable in a habeas proceeding); McHaney v. Hobbs, 2012 Ark. 361, 2012 WL 4471136 (per curiam) (due-process allegations are not cognizable in a habeas proceeding); Tryon v. Hobbs, 2011 Ark. 76, 2011 WL 573882 (per curiam) (due process and pros-ecutorial misconduct are matters of trial error and are not cognizable in a habeas proceeding). A habeas proceeding does not afford a prisoner an opportunity to retry his case. Tarkington v. Norris, 2012 Ark. 147, 2012 WL 1130596 (per curiam). Appellant’s allegations were, or should have been, raised and argued at trial, on direct appeal, or in a timely petition for postconviction relief.
As for appellant’s assertion that he is actually innocent of the crimes for which he was convicted, a petitioner asserting the right to be released on a writ of habeas corpus on the ground of actual innocence must proceed under Act 1780 of 2001, codified at Arkansas Code Annotated sections 16-112-201 to -208 (Repl.2006). Appellant did not invoke Act 1780 in his petition.
Because appellant failed to show that the circuit court lacked jurisdiction or that the commitment was invalid on its face, there was no basis for a finding that a writ of habeas corpus should issue. See Friend v. Norris, 364 Ark. 315, 219 S.W.3d 123 (2005) (per curiam). 7Accordingly, the circuit court did not err in denying appellant’s habeas-corpus petition, and appellant could not prevail if the appeal were permitted to go forward.
Appeal dismissed; motions for stay pending appeal and for supersedeas, to supplement addendum, and for appointment of counsel moot; petition for writ of habeas corpus denied.
.The sentencing order refers to appellant's parole eligibility after serving one-third of his sentence. However, under Act 1993 of 1977, which was in effect when appellant committed the crimes, appellant is not eligible for release on parole unless his life sentences are commuted to a term of years by executive clemency. See Ark. Code Ann. § 16-93-604 (Repl.2006) (applying to felonies committed between April 1, 1977, and April 1, 1983).
. The trial record reflects that appellant's date of birth is August 23, 1961, and that the crimes were committed on October 22, 1977; thus, appellant was sixteen years old at the time of the commission of the crimes.
. As of the date of this opinion, appellant remains incarcerated at a facility in Jefferson County.
. Appellant did not specify in the pleadings below which of the five life sentences were unconstitutional under Miller — the sentence imposed for the charge of first-degree murder or the four sentences imposed for the charges of aggravated robbery. We note that in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the Court concluded that the Eighth Amendment prohibits the imposition of a life-without-parole sentence on a juvenile nonhomicide offender. However, the issue of the constitutionality of the life-without-parole sentences, which were imposed for the aggravated-robbery charges, is not before us at this time as Graham was not raised below other than in a string citation contained in one of the amended pleadings.
. When a defendant enters a plea of guilty, the plea is his or her trial. Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984). | [
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Smith, J.
The complaint alleges, in brief, that appellee, at the request of appellant, purchased from it a pair of trucks and eight tram-car wheels, manufactured by appellant. That appellant represented the same to be good, both in quality and workmanship, and that said truck and tram-car wheels were not good, both in quality and workmanship, but were defective and became useless to appellee, to his damage in the sum of one hundred and ten dollars.
The answer admits the sale of the trucks and tram-car wheels, but denies that appellant represented the same to be good, either in quality or workmanship, and also denies that the truck and tram-car wheels were defective, and alleges that appellee used the same several months, and did not make any complaint or notify the appellant of any defects. That appellant did not know that appellee claimed that any of the articles were defective until after suit was brought for the purchase money.
H. H. Williams, the plaintiff, in substance, testified: “In August', 1883,1 commenced to correspond with appellant in reference to tram-car wheels and trucks. In October it shipped me a heavy pair of trucks, that were too heavy for the purpose for which I purchased them.
“An agent of appellant was down and informed me that they were getting up a new kind of tram-car wheels and trucks. I informed him of the kind I wanted, and upon the agent representing that they could fill the order, and that their machinery was adapted to use on my tram-road, I gave an order for a set of tram-car wheels for the axles that had been shipped with the heavy wheels ; also, gave an order for three eight-wheel tram-car wheels and axles. In October, 1883, I received the goods and commenced to use the tram cars then soon. Sent truck wheels out to be used, and on learning that they were not in use, made an examination and tried to use them. The hubs were so irregular that in making a revolution they would run ofi the track. Had no way of making them smooth.
“In the fall I went to St. Louis, and advised appellant that I could not use the wheels, and that I would return them. Appellant said they would not be worth anything to it.
“About sixty days after I commenced to use the tram car, the wheels on the axles of one became loose. I tightened them up several times. It was on account of defect in pressing them on the axles that caused them to come ofi. I paid $140 for the eight wheels and four axles that came loose, and think their value was depreciated $80; that is, they were worth $80 less by reason of the defect. Paid $24 80 for the truck wheels that proved worthless. Gave my acceptance for the machinery, and renewed same two or three times.
“May 4, 1884, agent of appellant came down. I showed him defective car wheels and asked a set-off. Suit was commenced soon afterwards. I did intend to file a counter-claim, but had given two notes, and could not remember for certain which note included the purchase money of the defective machinery. The reason I did not ask at once to be allowed a credit for the defective machinery was that I was owing them a considerable bill, and supposed when we made final settlement they would allow me a proper credit.
“Was on good terms with appellant, and dealt with it to the extent of ten or twelve hundred dollars.
“The other two cars that I purchased, and paid $140 each, are good and I am yet using them.”
John Sees testified : “ I am a machinist; have seen the four truck wheels; they were worthless, except for old iron. It would cost $20 to grind the hubs smooth with a grind-rock, and $5 to make them smooth with machinery.” W. T. Griffith testified that the four light wheels were totally worthless to use on tram roads.
This was all of plaintiff’s testimony.
Eor defendant—
John Stewart testified: “ I am secretary of Curtis & Co. Manufacturing company, the defendant. In August, 1883, plaintiff bonght of it ten sets of wheels and axles complete, for tram cars, for which he gave his acceptance, amounting to $490, due January 14, 1884. On maturity, we renewed this paper at his request, on promise of payment on March 17, 1884. At maturity plaintiff called on me and gave his note for three hundred dollars, and promised to pay balance on his return from Iowa in a few days. He failed to pay the balance or assign any reason ; to accommodate him further, took his note for balance. Plaintiff failed to pay these notes on maturity. We instructed G. W. Brown to call on him for payment. We brought suit and recovered our money. In circuit court plaintiff filed counter-claim, but withdrew it. Had a great many meetings with plaintiff, and he never intimated any claim for damages or defects in any of the machinery sold him; neither was there any complaint in any of his correspondence. All of the business was done through me. Plaintiff expressed himself several times to be well satisfied, saying everything furnished him was first-class. Defendant did not know of any defects in any of the machinery sold plaintiff. Plaintiff bought goods at different times after the original sale. On February 29, 1884, he bought the last article, and his account was closed, and he was rendered a statement, giving all the debits and credits.” The jury returned a verdict for $100. And the defendant moved for a new trial for misdirection, and because the verdict is not sustained by the law and the evidence. But his motion was denied.
t <waiity.
The bill of exceptions shows that the court charged the and also refused the defendant’s prayers for directions. But as this charge and these prayers are not incorporated in the bill of exceptions, nor referred to with such certainty as to identify them as part of the record, we are relieved from inquiring into their correctness. The only question then, presuming the jury to have been properly charged, is whether the foregoing testimony warrants the the verdict that was given. Proof of an express warranty by the defendant, of the quality of this machinery, was not essential to a recovery. Ordinarily, upon sale of a chattel, the law implies no warranty of quality. But there are exceptions to the rule, as well established as the rule itself. One of these exceptions is where a manufacturer undertakes to supply goods manufactured by himself, to be used for a particular purpose, and the vendee has not . had the opportunity to inspect the goods. In that case the vendee necessarily trusts to the judgment and skill of the manufacturer, and it is an implied term in the contract that he shall furnish a merchantable article, reasonably fit for the purpose for which it is intended. Benjamín on Sales, secs. 645, 657, et seq.; 1 Parsons on Contracts, 586; Brown v. Edgington, 2 Man. & G., 279; Jones v. Just, L. R., 3 Q. B., 197; Harris v. Waite, 51 Vt., 481; S. C., 31 Am. Rep., 694; Rodgers v. Niles, 11 Ohio St., 48.
Erom the testimony the jury might believe that the trucks and tram-car wheels were defective and ill-adapted to the buyer’s road, with which road the defendant was acquainted ; and that reasonable notice of the defect was given accompanied by an offer to return them, which was-declined. Affirmed. | [
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Smith, J.
The complaint of George T. Gaines states in substance, that he owned certain lands in Chicot county, valued for taxation in 1882 at $10,578$ on which had, for that year, been levied state aud. county taxes amounting to $312.55, which were paid by him. That after these taxes had been levied and extended on the tax-books, the clerk, under the act of the general assembly of the state of Arkansas, entitled “an act to provide for building and repairing levees in Chicot county,” approved March 20, 1883, added a tax of 1 per cent on said lands, and extended the same on the tax-books, and defendant, .Davies, as collector, was trying to enforce the collection thereof, and had advertised the lands for sale on June 11,1883, for such illegal tax. He denies that the clerk had authority to extend such tax on the tax-books of 1882 under the act, and that if he had, he denies that his lands were subject to such tax, because, he says, they were not benefited by the levees to pay for which said tax was levied. And denies that any lands were subject to levee tax in 1860 except those benefited by levees; and yet the act of March 20, 1883, authorizes a levee tax, and exempts townships 18 and 19, south, range 1 and 2 west,because no levee work was done in front of them, and they had received no benefit from the work done; and charges that these townships were as much or more benefited than his lands, and he is taxed and they are exempted, thus making the tax unequal and illegal, because the constitution provides that all taxation shall be equal, and the last proviso of section 14, of said act, levied a levee tax for 1882, on all the lands in said county subject to levee tax in 1860, and the lands in these townships were subject to such tax in 1860. And charges that the whole of said act of March 20, 1883, is unconstitutional and void, because:
1. “A large amount of the lands on which said tax is imposed is not alluvial, and the owners,thereof are denied a voice in the election of levee inspectors, and in imposing such tax.
2. “It creates offices and appoints officers not authorized by the constitution, and in which the people have had no voice.
3. “It imposes a tax without constitutional authority, and without the will of the people. ■
4. “Imposing the tax for 1882 was special legislation, and no notice of the intended application for the same was given.
5. “ The act seeks to exempt one part of the community from taxation, and imposes a tax upon another part of the same community equally meritorious.
6. “Said act is inconsistent-and irreconcilable.”
And that as said tax was levied by the legislature, he had no chance of appeal, and is without remedy at law, and so seeks chancery. That all the levee tax-payers of Chicot county have a common interest with him, and be sues for himself, and for such of them as wish to avail themselves of the suit. And prays for a restraining order to enjoin the attempt to collect said tax, and to enjoin the sale for said tax.
A preliminary injunction was granted upon bond filed, and the same was served upon the collector. An amendr ment of the complaint was afterwards filed, stating that defendant had, after the order of injunction was served on him, advertised and sold the lands of plaintiff and „ others for said tax, and in contempt of the court, and referring to the records of the county court, and prayed to have the sale annulled and set aside.
To this complaint a general demurrer was interposed. The court overruled the demurrer, and defendant electing to stand on his demurrer, the court decreed that the said levee tax for 1882 be perpetually enjoined; and that the sale of lands made by defendant on June 11, 1883, be set aside and held for naught, and that plaintiff recover of defendant all his costs, to which ruling the defendant excepted and appealed to this court.
Our constitution recognizes the right of the citizen to institute suit in behalf of himself, and all others interested, for protection against the enforcement of any- and all illegal exactions. Art. 15, sec. 13.
The act of March 20, 1883, provides for laying off the territory of Chicot county into levee districts, and appoints levee inspectors, who are to serve until the next general ■election ; at which time and at each subsequent election they are to be elected, one for each district. The most material portions of the act, so far as concerns the present litigation, are the following:
“ Section 14. There shall be levied and collected in said county annually, on all alluvial lands therein, that now are or would be benefited by levees, and which now are, or shall become taxable for state revenue, a levee tax not exceeding 2 per centum on the assessed value thereof; pro vided, that there is hereby levied on all such lands in said county, except the lands in township 18 south, 1 west; 18 south, 2 west; 19 south, 1 west; and 19 south, 2 west, for the'year 1882, a tax of 1 per centum on the assessed value thereof, for state and county purposes, which levy or tax shall be by the clerk of said county extended without delay upon the tax-books of said county, and collected by the collector thereof along with the state and county taxes for the year 1882; provided further, that for the year 1882, and until otherwise directed by the board of inspectors, levee taxes shall be levied upon and collected from all the lands which are now in said county that were subject to levee tax in 1860.
“Section 15. It shall be the duty of the board of inspectors, at the regular October meeting, to fix and determine the rate or per centage of tax necessary to be levied for the year then current, which rate or per centage shall be certified to the county court of said county, which shall proceed to levy the rate per cent so certified, at the time and in the manner other taxes are levied; and the same shall be by the clerk -of the county extended upon the tax-books of the county, in a separate column to be provided for that purpose. Said board shall have the power, and it is hereby made its duty at its meeting in October, to hear and determine all questions as to whether or not any given tract of land is legally taxable for levee-purposes under the provisions of this act, and all corrections or changes made in the list of lands subject tó such tax shall be certified to the county court at the time the-rate is certified.
“Section 16. The taxes when levied shall constitute a lieu, and shall be collected, and payment thereof enforced, in the same manner as taxes for state and county purposes ; provided, that said taxes shall be payable only in- lawful money of the United States ; provided further, that all persons who are liable for payment of taxes herein provided, who have, since the 1st of October, 1882, contributed money for levee work being done, or recently completed in said county, or who shall contribute money for such purpose, and shall hold the receipt of the committee appointed by the citizens of the county to look after its levee interests, or of the board of inspectors hereby created, for such voluntary contributions shall be allowed credit on their levee tax for such sum so contributed, from year to jear, until the whole of such contribution shall be absorbed by taxes levied on the property of contributors.
“Section 19. If in adjusting and correcting the list of lands subject to levee tax, it shall be found that taxes have been collected from lands not subject to such tax, the board of inspectors shall cause such tax to be refunded.”
It will be observed that the act imposes a tax directly upon the alluvial lands of the county that were subject to overflow, for the preceding year of 1882, and for future years delegates the power of taxing, and of determining whether any given tract of land is legally taxable for levee purposes, to a board of inspectors. It is with this direct tax laid by the legislature, that we have more immediately to deal; although the general features of the act, affecting its constitutionality, may incidently come under discussion.
We pass over the circumstance that a tax is levied for a past year. The time for paying the taxes for 1882 did not expire until April 10, 1883, and doubtless the legislature might, at any time before the expiration of that period, if not otherwise prohibited, levy a tax to be collected along with other annual taxes, upon the basis of the assessment already made. But the direct levy of this tax by the leg islature is perhaps open to the just criticism, that it deprives the tax-payer of the right and opportunity to be heard, and of the privilege of showing that his land is not rightfully included within the taxing district. We do not regard the provision in the nineteenth section for refunding taxes erroneously collected, as an adequate remedy under the circumstances. For, perchance, the owner might be unable to pay. In that event his land might be sold and his title be clouded when he was in no actual default.
Here the plaintiff only alleged that his lands would not be benefited by the proposed levees. Now, of course, local assessments for the improvement of property can be justified only upon the idea of benefits. But a very large discretion must of necessity reside in the legislature, or in the agents it selects, for ascertaining and defining the boundaries of the improvement district. The listing of the plaintiff’s lands for levee taxation raises the presumption that they are such as would be benefited by the construction of levees. And to rebut this presumption, he should have alleged either that they were not included in the district established by the act, or that they did not belong to the class of alluvial lands subject to overflow.
1. Taxes: Uniformity.
There is, however, one objection to this legislative levy, which is, in our opinion, fatal to its validity. It exempts for the year 1882 four townships of land, not because they do not belong to the class upon which the burden is imposed — for they are to be subjected to the tax after that year — but because, according to the allegations of the complaint, which the demurrer confesses, no levee work had been done on their river front prior to the passage of the act. Such a provision violates the constitutional requirements of equality and uniformity — requirements which have the same application to special assessments for the improvement of property that they have to other kinds of taxation. To omit a part of the lands benefited is to increase the burden of the others, and thus to defeat the rule of apportionment. Fletcher v. Oliver, 25 Ark., 289; Peay v. Little Rock, 32 Ark., 31; Monticello v. Banks, ante.; Welty on Assessments, sec. 340, and cases cited; Cooley on Taxation, 2d Ed., 644, and cases cited in note 2.
As Redfield, J., says, in Allen v. Drew, 44 Vt., 186, a tax for a local benefit should be distributed among, and imposed upon, all equally, standing in like relation.
And this brings us to the consideration of the last proviso of the sixteenth section of the act, which provides for the reimbursement to citizens of moneys theretofore contributed by them for levee purposes, by allowing them a credit upon their future taxes for sums so contributed.
2. Same:
This is in the nature of an exemption ; and a tax levied to compensate them for past liberality is for a private and not a public use. It creates an obligation where none existed before, and decrees payment by sequestering the property of others. These contributions were voluntary and paid for the advantage of the contributors themselves, and the legislature possessed no power to compel others, who might he incidentally benefited by such outlays, to refund. Tyson v. School Directors, 51 Pa. St., 9 ; Perkins v. Milford, 59 Me., 315.
These principles lead to an affirmance of the decree. But it does not follow that the entire act is inoperative.
3.special leglslatl0n
The objectionable features may be eliminated by rejecting the provisos in sections 14 and 16, and the remainder of the act stand as a feasible scheme for the protection of the lowlands of Chicot county from disastrous inundations of the Mississippi river. Apart from the objections already pointed out, we are not aware of any constitutional provision which the act violates; although we have .not given it a very careful scrutiny, inasmuch as those defects are de ■cisive of the present case. It is, indeed, rather a flagrant •example of special legislation. And the constitution aims to discourage special legislation. Thus it provides that “ in all cases where a general law can be made applicable no special law shall be enacted.”
Now this act is local in its operation. And that a general law could be framed to apply to all portions of the •state in the like situation may be considered as demonstrated by the fact that there was such a law on the statute books at the date of its passage. See Mansf. Dig., ch. 95, entitled ‘-Levee and Cut-offs.”
• Nevertheless the constitution leaves with the legislature a very large discretion in determining when a general law can be made applicable. And, according to the adjudged cases, the legislature is the sole judge whether'provision by a general law is possible, except in the enumerated •cases of changing the venue in criminal cases, changing the names of persons, adopting and legitimating children, granting divorces, and vacating roads, streets or alleys. The provisions are merely cautionary to the legislature. Boyd v. Bryant, 35 Ark., 73, and cases there collected; Little Rock v. Parish, 36 ib., 172; Cooley’s Const. Lim. (*129), and cases in note; State ex rel. v. County Court of Boone County, 50 Mo., 317; S. C., 11 Amer. Rep., 415.
“ The moment a court ventures to substitute its own judgment for that of the legislature, in any case where the constitution has vested the legislature with power over the subject, that moment it enters upon a field where it is impossible to set limits to its authority, and where its discre- ■ tion alone will measure the extent of its interference.” Cooley’s Const. Lim., *168.
i Notice íegiáation
The same remarks apply to the passage of the bill without the previous publication of notice of the intention to introduce it. Section 26, of article 5, constitution of 1874, requires evidence of such publication to be exhibited in the general assembly before the bill becomes a law.
But if the general assembly choose to disregard this requirement, and to enact a local or special law, without notice, no issue upon the subject of notice can be raised in the courts.
It is also said that the general assembly could not del- . • egate its taxing power to a board of officers unknown to the constitution, the board not being one of the state’s subordinate political or municipal corporations. The objection really amounts to this: that the county court should have been the instrumentality employed in the levy of the tax. The inspectors determine the rate of taxation, as well as what lands are subject to the tax; and the county court merely registers their determination, as in case of taxes levied by school districts. Now, a levee district is not a political subdivision of the state; neither is it a corporation, as a school district is. But local impositions upon property in the immediate vicinity of an improvement, laid with reference to the special benefit which the property derives from the expenditure, differ from impositions for purpose of general revenue, and stand upon peculiar grounds. Palmer v. Stumph, 29 Ind.,329; Hale v. Kenosha, 29 Wis., 599.
5. Levee inspectors.
This distinction was pointed out in McGehee v. Mathis, 21 Ark., 40, where the Chicot county levy act of January 7, 1857, was under consideration. It was decided in that case that levees were not an “ internal improvement and local concern,” and the taxes levied to build and repair them were not county taxes, within the meaning of that clause of the constitution which vests exclusive original jurisdiction over such matters in the county court. The legislature might have devolved the duty of fixing the per centage of taxes and the area of territory that would be benefited by levees upon the county court.
But we perceive no constitutional objection to the creation of a distinct agency for accomplishing the purposes of the statute. In Little Rock v. Board of Improvements, 42 Ark., 152, we had occasion to pass upon the constitutionality of an act providing for sewerage and other local improvements in cities'of the first class, in which the legislature had passed over the city council and vested the substantial power of taxation in a board of improvements, and it was decided that, for such purposes, this might be done. | [
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Smith, J.
The complaint stated that the defendants had employed the plaintiff as a bar-tender for the whole of the year 1884, but had, on the 1st day of May, in that year, discharged him without cause, paying his wages only to that date. The prayer was for a recovery of wages for the remaining months. The answer, among other defenses, set up the statute of frauds. The proof was that the contract was made in November, 1888, and according to the plaintiff’s version, was to include the remainder of that year and the year following, and that it was not manifested by any writing. The court charged, in substance, that the plaintiff’s entry upon the service and readiness to perform took the case out of the statute. And the plaintiff had a verdict and judgment.
Verbal contracts are sometimes enforced in equity, especially for the purchase of land, where possession has been taken and improvements made on the faith of them. But partial execution has no effect at law to take any case out of the provisions of the statute. JBroion on Statute of Frauds, see. 451, 415 Ed.
This case is governed by Meyer v. Roberts, 46 Ark., 80.
Reversed for new trial. | [
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Smith, J.
The incorporated town of Monticello sued A Moss and his sureties before a justice of the peace to recover a balance of $83.83 due on the following bond : We, J. R. Moss, as principal, and John Hussey & Co. and Cohn & Kuhn, as his securities, are indebted to the corporation of Monticello in the sum of five hundred dollars lawful money, conditioned-that J. R. Moss has this day been awarded the privilege of public weigher for the town of Monticello for the year ending June 1, 1884, at the sum cf two hundred and fifty dollars, payable as stipulated in his contract of this date with said corporation.
1. Munich-pal Corpobation n^Tefense to executed contract,
Now, if the said J. R. Moss shall well and truly pay the said sum of two hundred and fifty dollars as stipulated in his contract, or cause the same to be paid, then this bond to be void, otherwise in force and effect.
Witness our hands and seals this, the 15th day of August, A. D., 1883.
J. R. Moss, [Seal.]
John Hussey & Co., [Seal.]
Cohn & Kuhn, [Seal.]
The complaint alleged that the town had by ordinance provided cotton scales, and had by contract awarded to Moss the exclusive privilege of weighing cotton thereon during the cotton season of 1883-4, for the consideration of $250, to secure the payment whereof the bond was executed, etc.
The sureties pleaded that the ordinance and contract— which are the authority and consideration for the bond— were null and void for want of corporate power; and, secondly, that after the accrual of the cause of action herein, they had in writing notified and requested the plaintiff1 to proceed against the principal in the bond, and that no action had been brought within thirty days after the service of such notice, whereby they were exonerated.
The plaintiff recovered before the justice of the peace against all of the defendants, but in the circuit court on appeal, only against Moss.
The answer of the sureties was adjudged to be sufficient on demurrer, and the plaintiff elected to rest its case upon the demurrer.
We need not pause to inquire whether a municipal corporation is authorized by sec. 751 of Mansf. Dig. to do what the plaintiff has here undertaken to do. See Taylor, Cleveland & Co. v. Pine Bluff, 34 Ark., 603. For suppose it has no such power, yet its contract with Moss was executed ; nothing remained to be done except for him to pay the last installment of the price he had agreed to pay for the privilege; he had reaped all the benefits he had proposed to himself in making the contract, and the doctrine of ultra vires has no just application. National Bank v. Matthews, 98 U. S., 621; Parish v. Wheeler, 22 N. Y., 494; Whitney Arms Co. v. Barlow, 63; ib., 62; Pook v. Lafayette Building Association, 71 Ind., 357; Weber v. Agricultural Society, 44, Iowa, 239.
Helena v. Turner, 36 Ark., 577, furnishes an illustration of the principle. In that case a city had assumed to let public grounds for private uses. Audit was held that the lessee and his sureties could not, after full enjoyment of the lease, deny the right of the corporation to make it.
The second defense arises upon a statute to be found in Mansf. Dig. , bee. 6398. Any person bound as surety tor another m any bond, bill or note, for the payment of money or the delivery of property, may, at any time after action hath accrued thereon, by notice in writing, require the person having such right of action forthwith to commence suit against the principal debtor and other party liable.
byEneglect obligee to sue.
Sec. 6399. If such suit be not commenced within thirty days after the service of such notice, and proceeded' in with due diligence in the ordinary course of law to judgment and execution, such surety shall be exonerated from liability to the person notified.
Sec. 64-00. The two preceding sections shall not extend, first, to the bond of any executor, administrator, guardian, or other person given to secure the performance of his trust or the duties of his office; nor, second, to any bond with collateral conditions, except bonds with collateral conditions exclusively for the payment of money or the delivery of property, or exclusively for the performance of a convenant or agreement for the payment of money or delivery of property.
This is a bond single for the payment of money, and is not conditioned for the performance of the duties of an office, or of a trust, nor for the performance of any other covenants. As th,e second plea presents a perfect bar to the action, the judgment must be affirmed. | [
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Cockrill, C. J.
The errors complained of in the court’s charge to the jury were waived by failing to assign them as grounds for a new trial in the motion filed for that, purpose.
The only question presented by the record is, is the evidence sufficient to sustain the verdict ? The suit was instituted by Smith against the company upon an account for services rendered. The correctness of this account, was admitted by the company, the contest arising over a counter-claim presented by the company against the plaintiff. The facts as to that are as follows: The plaintiff had been the company’s station agent at Camden in this state. It was his duty to make a daily report of his business to the company, and with it to remit the day’s collection of money made in the company’s business. At the end of about a year’s service it was discovered that a large amount of the company’s money collected at his station had not been accounted for ; he was discharged and the company refused to pay the salary and commissions due him. It was for this he sued. He did not deny that the money claimed by the company had been collected and not accounted for, but undertook to prove that the missing funds had been appropriated by the company’s telegraph operator and clerk in the same office, who, it appears, was his assistant. There was a conflict of testimony as to whether the clerk or the plaintiff appropriated the missing funds, but for the purpose of fixing the plaintiff’s liability to account to the company, it is not material upon whom the odium of the misappropriation rests. All agree that the money was collected and not •accounted for, and there is nothing to vary or contradict the plaintiff’s statement to the effect that he had general ■charge of the office and control of the business to which he was assigned; that he had the right to collect and handle the money to the exclusion of the clerk and all ■others; that the company looked to him for the payment •of all money collected in his department at Camden ; furnished him with a combination lock safe for its safe keeping, and required a bond of him alone, for the faithful ■discharge of that duty. It was the plaintiff’s custom to permit the clerk to receipt for money due the company in his (plaintiff’s) name as station agent. Now, if it were a settled fact that it was through his clerk the deficit was brought about, the maxim qui facit per alium facitper se would still leave the liabilty to account to the company ■upon the plaintiff. Having assumed the responsibility to the company for the payment of all money collected through his office, he could not after a loss, shield himself from liability by proving that one who acted with his assent in making collections had appropriated the money he was allowed to collect. The plaintiff seems to have fully appreciated his liability, for he testifies that he intended to make good the losses to the company as long as they appeared to be within reasonable bounds.
In the month of January previous to his discharge, the plaintiff’ was relieved from station duty for a period of three days and assigned by the company to other service, the clerk above mentioned in the meantime having sole •charge of the station by direction of the plaintiff’s superior •officer. If it were shown that any defalcation occurred in this interval, the plaintiff would to that extent be exonerated from liability, because the responsibilities, as well as the duties of the office, had for that time been devolved by the company itself upon the plaintiff’s agent.
But there was no attempt to locate any mismanagement in the office in that interval. The plaintiff himself testifies that the first shortage in the accounts of the office discovered was on the 7th of the following June in the account for that month. But the balance sheet for each day showed for itself what had been or ought to have been collected, and any error could have been easily detected.
The case was tried upon an erroneous theory of the principal’s liability or non-liability for his agent’s acts; the verdict is without evidence to sustain it, and the judgment must be reversed and the cause remanded for a new trial. | [
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Battle, J.
This action was brought by Massey, in his lifetime, against Ward, for damages caused by an assault and battery committed upon him by Ward, on the 25th of August, 1880. Massey having died since its commencement, it was revived in the name of Blackwood, as.his administrator.
Ward answered, and alleged that, at the time the assault and battery was committed, he was the lessee and keeper of the Arkansas penitentiary. That on the day of the trespass complained of, Massey was one of the prison guards, in charge of a large number of convicts, engaged at work at Argenta. That sometime in the morning, Massey negligently went to sleep, and suffered several of the most desperate convicts to escape. That in the confusion produced by this escape, he went into the yard where Massey was, and struck him two or three times with a piece of thin scantling. That he was damaged to the extent of $1500 by reason of the loss of valuable dogs .and the labor of the escaped convicts, caused by Massey’s negligence. He asked for judgment against plaintiff for fhe amount of his damages.
There was evidence introduced on the trial of the action tending to prove, among other things, the following state of facts: On the 25th of August, 1880, Ward was the lessee and keeper of the Arkansas penitentiary, and Massey was in his employment as a guard over a large num>ber of convicts, at work in Ward’s brick yard, opposite the city of Little Rock. .Three of these couvicts forcibly •disarmed Massey, while on guard, and made their escape. Ward was not in the brick yard at the time, but came up soon after, and seeing Massey staudiug guard with a piece of plank in his hand, accused him of letting the convicts escape, and Massey replied, “I could not help it. They slipped up behind me, back of the lumber pile.” Ward, thereupon, abused him and ordered him out of the yard, ■and as he turned to go, struck him violently on the back, and Massey fell, and as he got up Ward threw a piece of brick at him, and as he was going out ordered the convicts present to put him out; and they seized him and threw him down. The injuries inflicted by Ward were serious and painful.
On the other hand, there was evidence introduced tending to prove, that there was no lumber, at the time of the escape of the convicts, nearer to the place where Massey at a prior time had been placed as a guard, and where Ward found him soon after the escape, than seventy-five yar-ds; that Massey, several days after the escape, admitted he was asleep when the convicts disarmed him; that the period of the confinement of the three convicts who es•caped extended beyond the year 1883; that Ward’s lease •expired in 1883, and that the labor of the three convicts ■was worth $675 a year.
The trial court directed the jury to respond, to the following interrogatory: “Do you find from the evidence that the convicts escaped through the negligence of Massey?”
The jury'returned a verdict in favor of plaintiff for $1800, and to the interrogatory, answered, “No.” The defendant filed a motion for a new trial, and the plaintiff remitting $75, it was overruled; and the defendant saved exceptions and appealed.
It is first insisted by appellant that he was entitled to „ . , ludgrment on his counter-claim to the extent of the damn ages proven; that the jury, in disregard of the law and evidence, refused to so find, and that, as to this issue, the verdict was totally unsupported; and that, therefore, the judgment of the court below should be reversed. If it be true that the special finding of the jury was contrary to the evidence, it would be no ground for reversal, unless it was prejudicial to appellant, and it was not prejudicial if he had not the right to plead the damages claimed by him as a counter-claim. Had he this right ? Appellee insisted he had not.
uVerdict. Contrary to end e n o e .
The code of civil practice of this state provides that a defendant may set forth in his answer as many grounds of defense, counter-claims and set-offs, whether legal or equitable, as he shall have. The counter-claim, meant by the code is defined to be “a cause of action in favor of the defendants, or some of them, against the plaintiffs or some of them, arising out of the contract or transaction set forth in the complaint, as the foundation of the plaintiff’s claim, or connected with the subject of the action.” MansJield’s Digest, secs. 5033, 5031^.
2.0ounter-CLAIM: proy0easaaHforand
The alleged tort of the defendant, which constitutes the u foundation of plaintiff’s action, is the assault and battery committed by appellant; and the foundation of the appel lant’s counter claim, is the escape of the three convicts through the alleged negligence of Massey. It cannot be said that the escape of the three convicts arose out of the assault and battery committed-by Ward. Is it connected with the subject of the action? What is the subject of au action ?
Mr. Pomeroy, in his work on Remedies and Remedial Rights, says: “It would, as it seems to me, to be correct to say in all cases, legal or equitable, that the subject of the action is the plaintiff’s main primary right which has-been broken, and by means of whose breach a remedial right arises. Thus the right of property and posession in ejectment and replevin, the right of posession in trover or trespass, the right to the money in all eases of debt, and the like, would be the subjects of the respective actions. Although in a certain sense, and in some classes of suits, the things themselves, the lands or chattels, may be regarded as the subject, and are sometimes spoken of as such, yet this cannot be true in all cases; for in many actions there is no such specific thing in controversy over which a right of property exists. The primary right, however, always exists, and is always the very central element of the controversy around which all the other elements are grouped, and to which they are subordinate.” Pomeroy on Remedies, sec. 775; Bliss on Code Pleadings, sec. 126.
This view of what is the subject of an action appears to have been adopted by this court in White v. Reagan, 32 Ark., 281.
A few cases will serve to illustrate what the subject of an' action is.
The G. $ H. Manf. Co. v. Hall, 61 N. Y., 226, was an action to restrain the defendant from using an alleged trademark, “Number 10,” on the grounds that it was á part of the plaintiff’s trade mark. The defendant admitted that he used the words, “Number 10,” in his business, but alleged it was a part of his own trade mark, and set up that the plaintiff had fraudulently used the same for the purpose of unfairly securing the defendant’s customers, and asked by way of counter-claim, that the plaintiff might be enjoined from using the words in the course of its business, to the defendant’s damage. The court said: “There will then be two distinct cases provided under subdivision 1: [a] A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim. [6] A cause of action connected with the subject of the action.” The present case falls under the last of these instances.
A subject is that on which any operation, either mental or material, is performed ; as, a subject for contemplation or controversy. The subject of an action is either property (as illustrated by a real action), or a violated right. In the present instance the subject of the plaintiff’s action was the expression, “Number 10,” of which he claimed ownership as a designation of his business. The defendant’s counter-claim is a cause of action against the plaintiff growing out of his infringement of the defendant’s right to the same expression, which he asserts belongs to himself. In the language of the code, it is “ connected with it. * * * The policy of the code requires a liberal construction of this section, to the end that controversies between the same parties, on the same subject-matter, may be adjusted in a single action.” See, also, Cornelius v. Kessel, 58 Wis., 237.
Simpkins v. Columbia & Greenville R. R. Co., 20 S. C., 258, was an action against a railroad company for the killing of two horses by the defendant’s train. The defendant denied liability, and asserted as. a counter-claim injuries done to the engine and cars of the company by the presence of these horses on the track at the time they were killed. The court said: “ The alleged tort of the defendant, which constituted the foundation of plaintiff’s action, is the negligent running of defendant’s cars by which his horses were killed; the alleged tort of plaintiff, which is the foundation of defendant’s counter-claim, was the alleged illegal presence of his horses upon the railroad track by which the train was thrown from the track and the engine injured. The injury to the engine in point of time, it is true, followed in quick succession that of the injury to the horses; but it cannot be said that the illegal presence of the horses on the track, which is the foundation of defendant’s counter-claim, arose out of the negligence of defendant in running the cars, which is the foundation of plaintiff’s action. Nor was it connected with the subject of plaintiff’s action.” And the court held that the damages to the defendant’s engine, resulting from the trespass of plaintiff’s horses on its track, were not a proper subject of a counter-claim, because they did not arise out of the transaction set forth in the complaint as the foundation of plaintiff’s claim, and were not connected with the subject of the action.
In California they have a statute which defines a counter-claim as follows: “ The counter-claim mentioned in the last section shall be one existing in favor of the defendant or plaintiff, and against a plaintiff or defendant, between whom a several judgment might be had in the action, and arising out of one of the following causes of action : First — A cause of action arising out of the transaction set forth in the complaint or answer as the foundation of the plaintiff’s claim or defendant’s defense, or connected with the subject of the action. Second — In an action arising upon contract, any other cause of action arising also upon contract and existing at the commencement of the action.” In Macdougal v. Maguire., 35 Col.; 274, the court held, that in an action to recover damages for an assault and battery, a libel published by the plaintiff of and concerning the defendant which was the provocation to the offense, did not constitute a counter-claim under this statute.
Barhyte v. Hughes, 33 Barb , 320, was an action for an assault and battery. The defendant set up, by way of counter-claim, an assault and battery committed upon him by the plaintiff prior to the one described in the com-: plaint. The court held that the two occurrences were so independent of each other that they could not be disposed of in one action.
The subject of this action was the right of Massey to immunity from personal violence. The breach or infringement of that right constituted appellee’s cause of action. The cause of action of appellant against appellee, which was the escape of three convicts through the alleged negligence of Massey, had no connection whatever, direct or remote, with the* subject of this action, and was not a proper subject of a counter-claim.
But it is insisted by appellant that the special finding of the jury contrary to evidence proves that the verdict of the jury was the result of prejudice against him. The right of plaintiff to recover damages is not denied, Defendant admitted the assault and battery, and thereby necessarily conceded the plaintiff’s right to recover. If the damages allowed by the jury were not excessive he had no right to complain. Verdicts of juries are not set aside on account of the amount of recovery unless the amount is excessive. If the plaintiff was entitled to recover, and the amount of the verdict was a fair compensation for the injuries complained of, the verdict of the jury should be permitted to stand. Upon a careful consideration of all the evidence in the ease we do not think the damages recovered were excessive.
It is next urged by appellant that the court below erred in instructing the jury at the instance of plaintiff, as follows:
“ The court instructs the jury that the defendant, Ward, is liable in this action, not only for any wrongful assault which he himself may have made upon the plaintiff’s intestate, Massey, but also for any wrongful assault which he may have caused to be made upon him by convicts acting under his orders on the occasion named in the complaint. If the jury find this to be true, and if the jury find for the plaintiff, it will be their duty to find for the plaintiff in such amount as would be a fair compensation to the plaintiff’s intestate, Massey, for the injuries he suffered from any such wrongful assault; and in estimating such amount, the jury may take into consideration the pecuniary outlay for medical and surgical attendance, loss of time and labor, and diminished capacity to work thereby, occasioned from the date of such assault to said Massey’s death, and also the personal indignity involved in such an assault, and the bodily pain a,nd suffering said Masoey may have endured therefrom; and in estimating the damages for such personal indignity and bodily pain and suffering, it will be the duty of the jury to say, within the bounds of reason and justice, what amount they believe to be a fair compensation for the injury sustained.”
It is insisted that this instruction was erroneous because it furnished an improper measure of damages. But this question was settled by this court in this action when it was here before Upon this point it said: “ The elements of damages are: The personal indignity involved in the assault; the plaintiff’s bodily pain and suffering; loss of time and labor, and diminished capacity to work from the date of the assault to Massey’s death, and the expense of medical and surgical attendance during his injuries consequent upon the injuries received.” Ward v. Black-wood, 41 Ark., 300.
It is next contended that this instruction was erroneous because it permitted the jury to allow such damages as C ........ - they, within the bounds or reason and justice believed to be a fair compensation for the injury sustained, without regard to the evidence. But this and all other instructions given to the jury are to be considered together and as a whole. In this connection the court instructed the jury, among other things, that the burden of proof was upon the plaintiff to show by evidence fairly preponderating that Massey was unlawfully assaulted by Ward, and also to what extent Massey was actually damaged; and that if they found Ward unlawfully assaulted and beat Massey, then Ward was liable for actual damages, and that in arriving at the amount they should assess, they should take into consideration all the circumstances surrounding both parties. In construing these instructions together we see no conclusion to which the jury could fairly and reasonably have come, except that, in considering their verdict and the amount, thereof, they should be governed by the -evidence.
3, instrueconstrued together as a whole,
Moreover, one of the elements of damages in the case was the pain and suffering caused by the wrong complained of, for which there is no legal measure of damage.
The amount allowed therefor, if any, must to some extent have been left to the fair discretion and judgment of the jury.
¿.verdict, Seachable by juror.
One of the grounds of appellant’s .motion for a new trial was misconduct of the jury in arriving at their ver- * * diet by lot. In support of this ground the following affidavit was filed :
“ On this day comes J. D. Murphy, I. B. Durrall and J. M. Simpson, who state on oath that they were members of the jury who tried and returned the verdict'in the above entitled cause; that the jury differed as t.o the amount of the said verdict, and finally concluded to write the amount of $2000 on one slip of paper, and the sum of $1800 on another slip of paper, and the two were then placed in a hat and one of the jurors was requested to draw one of said pieces of paper out of the hat, which was done, and the slip of paper with the $1800 written upon it was drawn, and the verdict was made and rendered at such amount, and so returned it.”
And the plaintiff" objected to fhe admission of it as evidence for any purpose whatever. Was it admissible ?
In Pleasant v. Heard, 15 Ark., 407, the affidavit of Strawn, one of the jurors, was filed to show that the jury agreed that each member thereof should write down the amount that he was in favor of, and that these several amounts should be added up and their sum divided by twelve, the number of the jurors, and that the quotient should be taken and written as the amount of their verdict, which was accordingly done, and the verdict so arrived at was returned into court as the verdict of the jury. Chief Justice English, in delivering the opinion of the court, said : “ Though there are some conflicting cases, we think it may be safely decided, upon authority, and for many good reasons, that the affidavit of the juror, Strawn, was not admissible in this case to impeach the verdict rendered by him for the cause stated in the affidavit.” Thompson ft Merriam on Jury Trials, sec. 4H' The rule laid down in Pleasant v. Heard has not been changed or repealed in civil cases, but on the contrary, in such cases remains in full force.
We find no error in the judgment of the court below prejudicial to appellant, and it is affimred. | [
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Battle, J.
Plaintiff alleged in his complaint, that he, on the 8th of February, 1881, shipped over the defendant’s road, from Texarkana, Arkansas, one box containing forty-seven gin sharpening machines, consigned to Goble Brothers, Cincinnati, Ohio; “that at the time of the ship ment, plaintiff and his agents at various places, had contracted and taken sundry orders for the machines greater than the number shipped, and that said machines had been contracted and bargained away for $25 each; that the machines shipped Tvere the only ones plaintiff had for the purpose of filling these orders; that owing to some slight defect they had been shipped to Cincinnati, to be repaired and then immediately returned; that it should only have required fourteen days to carry, repair and return said machines, so that plaintiff’ could have filled his orders; that defendant had Icnowledge of all said facts, and knowing the same, carelessly and negligently delayed the carrying and delivering of said machines, thus causing plaintiff to lose the sale of said machines to his damage in the sum of $1000.”
The defendant answered, and admitted the receipt and shipment of the machines, on February 8, 1881; “that it received the same for transportation to Cairo, there to be delivered to a connecting carrier to be forwarded to Goble Brothers & Co., at Cincinnati, Ohio.”
“It admitted the delay in the delivery of said goods to the consignees at Cincinnati, but denied all negligence or fault on its part in causing said delay. It denied the price of said machines; denied the plaintiff had made any such contracts as alleged, or that plaintiff' had lost the sale of said machines by or through any fault on its part.”
It specifically denied that plaintiff had contracted to sell machines, as he alleged in his complaint, or that it had notice or knowledge of such contracts; and averred, that all the knowledge it had, or contract of shipment that had been made, was contained in the bill of lading.
“ The answer further charged, that the goods were delivered to its connecting carrier at Cairo, in due time; were then carried to Cincinnati, and there tendered to eon signees, who were ordered by the plaintiff not to receive the goods, and in consequence the góods were left in the hands of the carrier.”
Evidence was introduced in the trial, tending to prove that the machines were delivered and shipped on the 8th of February, 1881, and reached Cincinnati, Ohio, their place of destination, on the 16th of May, 1881; and that plaintiff at the time of shipment had contracted to sell and deliver to persons residing in the states of Arkansas, Louisiana and Texas, a large number of the machines of the kind and class he had shipped; that he had contracted to sell more than he had shipped; that the machines ■shipped were all he had, and that he failed to perform his contracts and lost the sale of his machines by reason of the failure to deliver them at Cincinnati, in due time. But there was no evidence that defendant had notice, information or knowledge of these contracts, or of the plaintiff’s ability or inability to perform them.
The court, at the request of plaintiff, gave to the jury three instructions over- the defendant’s objections; and gave two at the request of defendant, and refused one; and gave one on its own motion, over defendant’s objections. . .
One of the instructions given at the instance of plaintiff over the objections of defendant, reads as follows:
“If the jury find there was any depreciation in the market value of said machines, arising from the time of the year or season in which said machines should, by the •defendant, have been delivered to the connecting line, and the time or season at which they were so actually delivered, such depreciation, together with the value of time (lost by plaintiff, if any such has been proven, in necessarily looking after said lost property, is the measure of dam ages; and if the jury in this case find for the plaintiff, the measure of the verdict will be as above stated.”
The one asked by defendant and refused by the court is as follows:
“The court instructs'the jury that in case of a delay in the transportation of the machines beyond the time stipulated, or if there is no stipulation, beyond a reasonable time for the transportation and delivery of same, the damages would be the direct and actual loss sustained thereby —such as the decline in the value of the property at the time and in the place where it should have been delivered, and its value when it was delivered, or when delivery of the same was tendered, if it had declined in value — would be the proper mode of estimating the damages unless the delay was inevitable; as where it was caused by the act of God, or the public enemy. From this amount, however, it would be proper to deduct the freight, where that had not been paid.”
And the one given by the court, on its own motion, reads as follows:
“The.court instructs the jury, that in case of a delay in the transportation of merchandise beyond the time stipulated, or if there is no stipulation, beyond a reasonable time for the transportation and delivery of the same, the damages would be the direct and actual loss sustained thereby; suchas the decline in the value of the property '{the difference between the value of the property in the market where it was to be exposed for sale at the time when it should have been delivered), and its value when it was delivered, or when delivery of the same was tendered, if it has declined in value (and the-jury should find that the delay of the carrier was the occasion of the loss in the reduction or change of the market value of said property, this would be the proper mode of estimating the damages), unless the delay was inevitable, as where it was caused by the act of God or the public enemy. From this amount, however, it would be proper to deduct the freight, where that had not been paid.”
The jury returned a verdict in favor of plaintiff for two hundred and. fifty dollars. Defendant filed a motion for a new trial which was overruled; and it saved exceptions and appealed.
"W'e consider it unnecessary to notice any question in the case, except that as to the measure of damages.
Damages: Prom delay in t ransport* ing goods.
In cases like this, where goods have been delivered to a common carrier for transportation and not delivered at their destination within the time specified in the contract, or, if no time was specified, within a reasonable time, the damages recoverable on account of the delay, if the goods of the particular kind shipped have fallen in market value during the delay, as a general rule, is the difference between the value of the goods at the time and place they should have been delivered and their value when they were in fact delivered, with interest, after deducting the unpaid cost of transportation ; the value at the time when they were in fact delivered being computed at the place of destination. St. L., I. M. & S. Ry. v. Phelps; 46 Ark., 485; 3 Sutherland on Damages, pp. 216, 218.
The theory of the rule is this: “ Where there is a negT ligent delay in transportation, the thing which the owner does not receive, when he is entitled to it, is goods of their value at that time. The thing which he afterwards receives is goods of a value at a different time, which is not necessarily the same value. * * * If the market value of the goods is less when they are actually delivered than it was when they ought to have beeen delivered,-the fall in the market value is not a cause, but an incident, or consequence, of the diminution of the intrinsic or merchantable value of the goods, and evidence of the injury which the owner has suffered by the wrongful act of the carrier and the diminution in the market value is a real and actual loss of a portion of the real and intrinsic value, as much as a change for the worse in the quality of the goods. When the parties entered into the contract of shipment it is presumed that they had in contemplation this loss, as the probable result of the breach of it, and contracted with reference to it. Hence the law imposes on the carrier the duty to pay it as a compensation for the injury he has done by the failure to perform his contract. 3 Sutherland on Damages, p. 218; Hadley v. Baxendale, 9 Exch., 341.
But there may be special circumstances under which the application of this rule would be unjust. As where the owner of the goods had made an advantageous sale of them, provided they were delivered within a certain time, and delivers them to a carrier to be transported to the place of delivery, and the carrier, through negligence, fails to deliver them at their destination in time, and the owner loses the benefit of his bargain. In this case, if the carrier was informed of the sale and its conditions, and the market value of the goods when and where they should have been delivered was less than the contract price, the result of the breach of the carrier’s contract, which both parties would reasonably contemplate and contract in reference to, and for which the carrier would be liable, would be what the owner would lose by the failure to deliver in time, and that would be the difference between the contract price and the market value of the goods when delivered. But, on the other hand, if these special circumstances were wholly unknown to the carrier, the measure of damages w.ould be as first stated. 3 Sutherland on Damages, p. 228; Simpson v. L. & N. W. Ry. Co., 1 Q. B. D., 274; Hadley v. Baxendale, 9 Exch., 341; Vicksburg, etc., R. R. Co. v. Raysdale, 46 Miss., 458; Gee v. L. & Y. Ry. Co., 6 H. & N., 211; Baldwin v. U. S. Telegraph Co., 45 N. Y., 744; Deming v. Rail-road, 48 N. H., 455; Sisson v. C. & Q. R. R. Co., 14 Mich., 489.
Appellee testified that he went to Texarkana fifteen or twenty times to inquire about these machines, and lost much time by reason thereof. He is not entitled to recover any damages on that account. The goods had been shipped from Texarkana to Cincinnati, and Texarkana was not the place to look for them. There was no necessity for incurring such loss. Such damage is not direct, but remote and contingent. Ingledew v. Northern Railroad, 7 Gray, 86; Mississippi Railroad Co. v. Kennedy, 41 Miss., 679; Woodger v. G. W. Ry. Co., L. R. R., 2 C. P., 318.
Eor the errors indicated the judgment of the court below is reversed, and this cause is remanded, with instructions to the court to grant appellant a new trial. | [
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Smith, J.
This action was begun before a justice of the peace to recover of Keith $51.75, on open account, for a bill of goods sold him by the plaintiff’s traveling agent.
The plaintiff had judgment, and the defendant appealed. In the circuit court the defendant filed a formal answer, in which he alleged that he agreed to purchase the goods (eye-glasses), but that, as a part of the contract of sale, plaintiff’s agent, who made the same, agreed to give defendant the exclusive right of selling the goods in Boone-ville ; that he stated he had not sold to any one else, and agreed with defendant that he would not sell to any one else in Booneville; that defendant refused to purchase any of his goods unless this agreement was made; that plaintiff’s agent immediately sold the same class of goods to two other firms in Booneville, making the same contract with each of them; that on learning this he refused to take the goods, and at once notified plaintiff', and that the goods were subject to its order.
There was a trial, with verdict and judgment for plaintiff. And the errors assigned in the motion for a new trial related to the admission of certain testimony and the charge of the court.
1. Bill of SlOBPtions: Directions to clerk to copy, etc.
It is claimed, however, that the merits of the appeal are not properly before us for consideration, because the bill of exceptions does not contain the depositions of certain witnesses, and the agreed statement as to the testimony of an absent witness, which were used upon the trial, but a mere direction to the clerk to insert the same. It was a skeleton bill; and, as allowed by the judge, ran thus:
“ The plaintiff, to maintain the issue on its part, read in evidence the deposititions of H. Herschberg and of A. Herschberg, taken in St. Louis, on the 24th day of February, 1885, before Enrique Parmer, notary public, which were in words and figures as follows : [Here copy the deposition of witnesses.]
“ The defendant, to maintain the issue on his part, introduced m evidence the agreed statement of F. Moore, which is in words and figures as follows, to wit: [Here copy Moore’s statement.] ”
These writings are sufficiently identified, within the rule of St. L., I. M. & S. Ry. v. Godby, 45 Ark., 485; and Lesser v. Banks, 46 Ark., 482, so as to leave no doubt that the depositions and statement found in the record are those that are referred to in the bill of exceptions.
The president of the plaintiff company, and also the agent who sold the goods, testified over the objections of defendant that he had no authority to make any such contract, and the latter also says he could not have made such contract, as it was contrary to orders, but does not positively deny making the agreement.
The defendant testifies to the same effect as set out in his answer, and that he never sold or offered to sell any of the goods. That it was in consideration of the agreement, that he was to have the exclusive right to handle these goods, that he gave the order.
He also'proved by two witnesses that plaintiff’s agent, about the same time, sold the same class of goods to each of said witnesses, and agreed with each of them that no other firm in Booneville should handle the goods.
The jury were told, in substance, to disregard all testimony as to an agreement not to sell to any other parties, unless it was shown that the agent was a general agent, or had authority from plaintiff to make such contract. And the court rejected prayers to the effect, that if plaintiff’s agent agreed not to sell the same class of goods to any person in Booneville, and this was an inducement moving defendant to make the purchase, and that plaintiff’s agent violated this agreement and sold to other parties, this was a fraud on defendant, entitling him to rescind the contract. Also, that a principal claiming the benefit of a contract made by his agent, is bound by the terms of such contract, unless the other had notice of the want of authority in the agent.
2. asmtsandsPoTraveling
A special agency exists when there is a delegation of authority.to do a single act. A general agency is where there is a delegation to do all acts connected with a particular business or employment. Now, A. Herschberg, so far as the defendant knew, had a general authority to sell the plaintiff’s goods ; his agency not being limited to any particular mode of doing it. In reality, as the proof discloses, his authority, although it extended to do acts generally in the course of ,his employment, was yet qualified and restrained by instructions of a special nature. But these instructions had never been communicated to the defendant. The rule in such a case is, the agent is deemed, as to persons dealing with him in ignorance of such special ■limitations, conditions and instructions, to be a general agent, although, as between himself and his principal, he may be only a special agent. In other words, a general agency does not import an unqualified authority, but that which is derived from a multitude of instances, or in the general course of an employment or business. And the principal will be bound by the acts of his agent, within the scope of the general authority conferred on him, although he violates by those acts his private directions, which are given to him by his principal, limiting, qualifying, suspending or prohibiting the exercise of such authority under particular circumstances. A third person has aright to assume, without notice to the contrary, that the traveling salesman of a wholesale house has an unqualified authority to act for the firm he represents, in all mattere which come within the scope of that employment. Smith’s Mercantile Law, 3d Ed., 173; Story on Agency, 8th Ed., secs, 17, 4, 19, 126-7; Paley’s Agency, 4th Am. Ed., (*199 et seq. and notes); 2 Kent’s Com., 12th Ed., *620; Brooks v. Perry, 23 Ark., 32; Leake v. Sutherland, 25 ib., 219; Jacobson v. Poindexter, 42 Ark., 97; Meyer v. Stone, 46 ib., 210; Butler v. Maples, 9 Wallace, 766; Insurance Co. v. Wilkinson, 13 ib., 222; Insurance Co. v. McCain, 96 U. S., 84; Brant v. Moore, 26 Me., 81.
Thus, in Minter v. Pacific Railroad, 41 Mo., 503, the baggage master was, by the printed rules of a railroad company, forbidden to take articles of merchandise on passenger trains. He, nevertheless took a carpet, the passenger not knowing the rule, and the company was held liable for its loss. The true question for the jury, then, was not whether A. Herschberg had real authority, but whether he had apparent authority to make the contract he did make. It follows that the charge of the court on this subject was wrong.
A contract which restrains the business or industrial freedom of a person within reasonable limits, is not against public policy. Thus, a covenant to sell patent teeth to no other dentist in a certain town of Vermont, was held valid in Clark v. Crosby, 37 Vt., 188. And so a covenant not to sell any furniture in his line to any in the town of' O, but to B. (Roller v. Ott., 14 Kans., 609.) See Greenhood on Public Policy, Bule DLXV.
In 19 American Law Beview, 962, it is stated that the Supreme Court of Texas, in Watkins v. Morley, had decided, in September, 1885, that a contract by a drummer not to sell a certain class of goods to any other merchant in a town except A, is within the apparent scope of his authority, and is binding on his principal, but we have not seen the full report of that case.
“The general rule is, as to all contracts, including sales, that the agent is authorized to do whatever is usual to carry out the object of his agency, and it is a question for the jury to determine what is usual. If, in the sale of the goods confided to' him, it is usual in the market to give a warranty, the agent may give that warranty in order to effect a sale.” Benjamin on Sales, 4th Ed. Am., sec. 624, and cases cited; LeRoy v. Beard, 8 How., 451; Schuchardt v. Allen, 1 Wallace, 359; Talmage v. Bienhouse, 103 Ind., 270; Smilie v. Hobbs., Sup. Ct. of N. H, New Eng. Rep., 345.
The rejected prayers, set out above, should also have been given. When an agent for the sale of property is acting upon the line of business committed to him, his principal is chargeable with the false representations made by him. (Strayhorn v. Giles, 22 Ark., 517; Morton v. Scull, 23 ib., 289; Matlock v. Reppy, 47 ib., 148.) The plaintiff cannot recover the price of the goods without performing the condition upon which the sale was made.
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Cookrill, C. J.
The appellant, Gill, was indebted to one Moore, and desiring to secure the payment of the debt, agreed to» execute a mortgage to him upon real estate in the town of Morrilton for that purpose. The land at that time was encumbered by mortgage and judgment liens, and after negotiations between the parties these liens were paid off by Moore and a Ur. Crowell, another of Gill’s creditors, who was also to be protected by the mortgage, and Gill then executed a deed, absolute in form, to the appellee, Hardin, under a parol agreement that Hardin should ■sell the land, and out of the proceeds discharge first the debt to Moore, then that of the other creditor, and pay the residue over to him. The deed was executed to Hardin instead of Moore, because it was feared Moore’s wife would retard the contemplated sales by refusing to relinquish dower. The device of securing the debts by a conveyance absolute in form was suggested by Gill, for the reason, as he testifies, that he was “ somewhat involved,” which is made plain by the explanation that he was in debt. There appears to have been a mutual understanding between the secured creditors and Gill that Hardin should not execute a deed to any part of the land until Gill approved the price for which it was to be sold.
About a year after the conveyance, to Hardin, Hervey, •one of the appellees, purchased the land from Hardin for the sum of $1200, paid on delivery of the deed. Before concluding his purchase he sought Gill, who was in possession of the property, and informed him that he was negotiating with Hardin to purchase it. Gill supposed that Hervey had been referred to him by Hardin to ascertain the price to be placed on the land, but gave no intimation of the secret agreement not to sell the premises without his consent. Hervey returned to Hardin and obtained a conveyance. The price paid was less than the amount due ' Moore. Gill was dissatisfied with the sale, and filed his bill against Hervey, Hardin and the heirs ot Moore to redeem. In the meantime Hervey had instituted his action for the possession of the land; Gill filed a cross-complaint, ■ the same in effect as his original complaint, and the case was transferred to equity and there consolidated and tried with Gill’s suit. The decree was against Gill throughout, and he has'appealed.
The principle that the possession of land is notice to the .... ... , world of the possessor's equities in the premises is invoked to charge Hervey with notice of the secret agreement between Gill and his creditors.
i. Notice of Title: possession
It is held by high authority that possession by a grantor is not notice of equities in him cotemporaneous with the deed to one who purchases the land on the faith of his recorded conveyance, the presumption of a claim of right which arises from possession being rebutted, it is said, by the absolute deed. Newhall v. Pierce, 5 Pick., 450; Bloomer v. Henderson, 8 Mich., 895; 1 Jones Mort., sec. 600, and cases cited; Wade Notice, sec. 299, and cases.
But the faets of this case do not render it necessary to narrow the consideration of the question to such limits. The doctrine of constructive notice from possession, however broad or limited its application, is applied only as a shield to protect him who has equitable rights, and not for the benefit of one who is without equity. Groton Savings Bank v. Batty, 30 N. J., 186.
2. Estoppel; By silence.
Now, Gill’s deed was made absolute in form, as we may infer from his statement, in order to enable him to hide his equity of redemption in the land from the search of his creditors. He had thus given to Hardin for this fraudulent purpose the means of deceiving Hervey and leading him to believe that Hardin was the unconditional owner of the land. By his deed he was continually holding him out as such. He came in actual contact with Hervey while the treaty for purchase was on, and was then informed by Hervey himself of that fact, but he held his peace about the secret agreement, and permitted him to be entrapped in the snare his active agency had set. He is not, for these reasons, entitled to the consideration of equity in a suit against the purchaser, and he is therefore excluded from: setting up the fact that the deed was intended as a mortgage. Groton Savings Bank v. Grattan, sup.; Bramble v. Kinsbury, 39 Ark., 131.
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Cockbill, C. J.
The Merchants National Bank sued the appellees upon a note signed by them and one Jerre Wolf, who was not sued. The note was made payable to the order of the German Insurance Company of Freeport, 111., and was indorsed in blank.
The appellants filed an ailswer, in which it was alleged that they signed the note “as sureties for Wolf in payment of an antecedent indebtedness then owing by said Wolf to the German Insurance Company,” upon the express agreement that Wolf should not deliver the note to the payee until W. L. Taylor and Alvie Smith had signed it with them, but that in violation of the agreement Wolf delivered the note to the payee, and that the bank knew the facts when the note was indorsed to it, and denied that the indorsement was made before maturity.
A jury was waived, and the court made the following finding of facts, viz.:
First — That the note sued on was signed by E. A. Tabor, Jesse Turner, Jr., and O. P. Brown, at the instance and request of Jerre Wolf, one of the makers, with the understanding and agreement that'the same was not to be delivered to the German Insurance Company, to which the said Wolf was indebted, until W. L. Taylor and Alvie Smith should sign it as sureties with them; that said note was delivered to the German Insurance Company without the signatures of Taylor and Smith, and that the insurance company had no knowledge of the manner in which the signatures of the above named parties had been obtained.
Second — That the said note was assigned to the plaintiff before maturity in regular course of business, and judgment was entered for the plaintiff’.
The appellants contend that the finding is not sustained by the evidence, in so far as it relates to the insurance company’s want of knowledge of the condition upon which the appellants’ signatures were obtained by Wolf. As to that point it is only necessary to say that no testimony was offered by either side. It is argued, however, that the facts found are not sufficient to sustain the judgment.
The contention is that the proof that the note was put in circulation by Wolf in violation of the agreement with the appellants, cast upon the plaintiff the onus of proving, not only that the note-had been indorsed to it before maturity, but also that it was acquired upon a valuable consideration. There was no proof of the consideration paid by the plaintiff.
The fact of indorsement by the insurance company to the plaintiff was not put in issue, as counsel seem to suppose. The complaint alleged that the indorsement was made before maturity for a valuable consideration, and the answer avers that the note “was not assigned to the plaintiff before maturity, but, in truth and in fact, that the assignment was made long after maturity, and that the assignment was not made for a valuable consideration.” The defendants had previousiy undertaken to test the sufficiency of the indorsement by demurrer, but the demurrer was overruled, and by pleading over to the merits they waived all objection to the ruling of the court in that respect (Chapline v. Robertson, 44 Ark., 202; Jones v. Terry, 43 ib., 230), and did not renew the objection in any other form.
1. Pleading over after dera u r r e r overruled.
The answer, so far from containing a denial of the assignment (See Mcrnsf. Dig., see. Ifl7), is an admission of its validity, and when the plaintiff proved, as was done, that the assignment was, in fact, riiade before the maturity of the instrument, the statutory rule that a blank assignment shall be taken to have been made at a date most to the advantage of the defendant, was overcome. (Trader v. Chidester, 41 Ark., 242.)
2. Bills and Notes Presumption as to date of blank assignment.
3. same: in blank, pres u jjj p, tions.
The production of the note and proof that the indorsement was made before maturity raised the presumption “ ^ ^ that the plaintiff had paid value for the note, that it was an innocent holder and had acquired it in due course of business; but if the proof subsequently offered by the defendants to establish their defense shows that the note, in its inception, was so infected by fraud as to destroy the title of the original holder, the presumption of the payment of value was thereby overcome, and the burden of proof was shifted to the plaintiff to show that value was given for the note. 1 Daniels Neg. Inst., sec. 814; Benj. Chalmer’s Dig., p. 109, art. 97; 2 Greenl. Ev., sec. 172; Commissioners v. Clarke, 94, U. S., 277, 285; Collins v. Gilbert, ib., 753; Nickerson v. Roger, 76 N. Y., 279; National Bank v. Green, 43 ib., 298; Kellogg v. Curtis, 69 Me., 212; Grays, Admr., v. Bank, 29 Pa. St., 365.
The reason assigned for this rule is, that “where there is fraud, the presumption is that he who is guilty will part with the note for the purpose of enabling Borne third party to recover upon it, and such presumption operates against-the holder, and it devolves upon him to show that he gave value for it.” Bailey v. Bidwall, 13 Mees & Wes., 73; Collins v. Gilbert, sup.
i. Same: s uBrsft°y I nrolcde n't
If, therefore, the evidence, shows that the note was invalid in the hands of the insurance company, by reason of the fraud practiced upon the appellants by their principal, Wolf, then the plaintiff, who is the indorsee, having failed to rebut the presumption of invalidity that is raised against it, was not entitled to recover.
But when we come to the consideration of that question we find no allegation in the answer, and there is no proof to show, that the insurance company had notice of the condition upon which the appellants had signed the note. It was complete in form; there was nothing on- its face to arouse suspicion, and the answer alleges that it was give» in payment of a debt due from "Wolf to the insurance company. The inquiry is, therefore, was the insurance company, under these circumstances, affected by the fraud practiced by Wolf upon his sureties ?
It was ruled by this court at the present term that the delivery of an official bond by a surety to the principal obligor, upon the condition that it should not be delivered until signed by other parties, did not have the effect of constituting it an escrow as when delivered under like-circumstances to a stranger. (State v. Churchill, ante.} While there is some conflict in the authorities, upon this point as to non-negotiable instruments, we are aware of no-ease which holds that such an effect is given where a negotiable instrument, perfect in form, is delivered to the maker. In such cases where the question arises between the injured party to the note and a payee who has taken it for value without notice of the condition, the former having executed it and entrusted it to a maker, is regarded as having constituted him his agent to negotiate it; and having clothed him with the means of perpetrating the fraud, must bear the loss. Passumpsic Bank v. Goss, 31 Vt., 315; F. & M. Bank v. Humphrey, 36 ib., 354; Ayres v. Milroy, 53 Mo., 516; Bank v. Phillips, 17 ib., 29; Smith v. Moberly, 10 B. Mon., 266; Merriam v. Rockwood, 47 N. H., 81; Gage v. Sharp, 24 Iowa, 15; Daniels v. Grover, 54 ib., 319; Steaver v. Weld, 61 ib., 704; Deardorf v. Forceman, 24 Ind., 481; Clark v. Brice, 64 Ga., 486; Stoddard v. Kimball, 6 Cush., 469; Clark v. Thayer, 105 Mass., 216; 1 Daniel Neg. Inst., sec. 854.
The insurance company had the right, then, to assume that the appellants had authorized Wolf to deliver the note to it for them, and as it is not shown that the company had notice of the violated condition, or any reason to sus pect its existence, the appellants have failed to connect it with the fraud, or to establish a prima facie case against it, if value was paid by it for the note. Cases sup.
5. same: antecedent n o o é n t
In the case of Bertrand v. Barkman, IS Ark., 150, it was ruled that one who takes negotiable paper in payment of an antecedent debt, before maturity and without notice, actual or otherwise, of any defect thereto, receives it in due course of business, and becomes, within the meaning of the commercial law; a holder for value, entitled to enforce payment without regard to the defenses that may exist between the other parties to the paper; and this is in accord with the very general concurrence of judicial authority. 1 Daniel Neg. Inst., sec. 832; Harrell v. Tenant, 30 Ark., 684; Railroad v. National Bank, 102 U. S., 14; Oates v. National Bank, 100 U. S., 239; Stoddard v. Kimball, sup.; Bank v. Phillips, sup.
It follows then that the appellants, having failed to establish the invalidity of the note in the hands of the first holder, the necessity of proving .the payment of value for the indorsement was not cast upon the bank, and it was entitled to recover.
Affirm. | [
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Cockrill, C. J.
A saw mill and fixtures belonging to the appellant and worth between $400 and $500, were sold by the sheriff under an execution against him to the appellee for $50. About two months after the sale and after an ineffectual effort to repurchase the property, the appellant filed his complaint in equity, against the purchaser and the plaintiff in the execution to set aside the sale. He relies for the purpose, upon the inadequacy of the price paid by the purchaser, and the fact that he was lead by the attorney for the plaintiff in the execution to believe that the sale would not take place on the day advertised, but would be postponed for the purpose of submitting to his client a proposition made by the appellant to discharge the judgment upon which the execution issued, by a conveyance of real estate to the person who owned it. The proof shows that the agreement was made and that the sale was al- . lowed to proceed in violation of it. The appellant had no notice of the sheriff’s intention to proceed with the sale until 10 o’clock of the day it was made. He was then about three miles from the place of sale, at the store house of the appellee, and was then informed that the latter had .gone to the mill for the purpose of buying it under the execution. It was the day originally advertised for the'sale. The sheriff had his instructions from the attorney controlling the execution, to sell; the appellant had given him no positive information of the agreement not to do so, and the appellee was not apprised of the proposition to compromise, or of the agreement to postpone the sale. He was absent from the county when the arrangement was made for postponement, and returned only the night before the sale. After receiving the information that the appellee had gone to attend the sale and bid for his property, the appellant made no effort to reach the place of sale and inform him and others who might intend to bid, of the breach of faith on the part of the attorney who oontrolled the execution. He might readily have done this, for the proof shows that the sale did not take place until 12 o’clock — about the usual hour for such sales. Notice to the bidder before the sale, of the agreement to postpone, would have prevented the sale, or else have rendered the purchase invalid. The owner thus had it easily in his own hands to prevent the sacrifice of his property, but he seems to have preferred to await the result of the sale and seek his opportunity to repurchase. His equities, under the circumstances, cannot be said to be superior to the purchaser’s.
It is the policy of this court, settled by a line of precedents, that a purchase in good faith by a stranger, at an execution sale, shall be protected from secret infirmities. Adams v. Cummings, 10 Ark., 541; Whiting v. Beebe, 12 ib., 422; Byers v. McDonald, ib., 319; Newton’s Heirs v. State Bank, 22 ib., 19 ; Files v. Harbison, 29 ib., 307; Youngblood v. Cunningham, 38 ib., 531; Huffman v. Gaines, MS.
To avoid his purchase, even where the price paid is inadequate, knowledge of the vice in the sale, or some misconduct or wrongful act traceable to him, must be shown. The courts often seize upon a slight circumstance to add to the weight of the inadequacy of price to turn the scale, but it must be shown that the purchaser is in some measure responsible for it. Cases supra. Hudgens v. Morrow, 47 Ark., 515; Adams v. Thomas, 44 Ark., 267; White v. Wilson, 14 Ves. Jr., 151; Graffam v. Burgess, 117 U. S., 180; Freeman Ex., sec. 343.
In the case of Newton’s Heirs v. State Bank, sup., the effort to set aside an execution sale because there was no notice given of the sale, and the price realized was grossly inadequate, proved ineffectual, because as the court found, the purchaser had nothing to do with bringing about the improper sale and was ignorant of the infirmity.
The facts in Williams v. Doran, 23 N. J. Eq., 385, closely resemble those here presented. The attorney for the plaintiff .in the execution had agreed that the sale should be postponed, but the sale proceeded and the defendant’s property was purchased by a stranger at half its actual value; but the defendant’s surprise not having been generated by the purchaser, and the fact of the intended postponement being unknown to him, the sale was allowed to stand.
The purchaser alone resists the effort to open the sale. He and the sheriff were without fault and the decree must be affirmed. | [
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Cate, Special Judge.
In August, 1876, the county-court of Nevada county made a contract with appellees to build a county bridge for the sum of $1500, to be built by the first day of November following.
Commissioners examined the bridge on the sixth day of said month and reported the same not according to the specifications of the contract, and the county court, acting on said report, rejected the bridge, and declared the bond given by the contractors for the proper completion of the bridge, forfeited, and directed suit to be brought on it.
This suit was brought on the 27th day. of November, 1878, in the circuit court of Hempstead county. Eor answer, defendants, who are appellees here, stated that the bridge was completed in the time and manner as required by the contract; that it had not been rejected; that the county court had not ordered suit on the bond; that the bridge had not been ordered to be taken down; that it was still standing where it was built, and was in use by the public, etc., and .that it was reasonably worth $1300, and asking that this be considered matter of cross-complaint, and that they have judgment for the same. The ease was transferred and heard on the equity side of the docket, and on the 3d day of February, 1880, a decree was entered in favor of defendants, in the circuit court, and against the county for $1300. From this decree an appeal was taken to this court, and the decree was affirmed at the May term, 1882, and reported in 38 Ark., p. 557, and the county of Nevada was ordered to pay said sum of $1300, and proper mandate was issued. Afterwards, on September 6,1884, the county of Nevada in the name of the state and for its use, filed in the chancery court of Hempstead county, a bill of review, asking that the order and decree made in the circuit and supreme courts, in the original suit be set aside and held for naught. To support this it is urged: Eirst — That there is newly discovered evidence, and second — That by reason of the act of February 12,1879, which was passed while the suit was pending, the circuit court had no power or jurisdiction to entertain a claim against a county or render judgment therein. A demurrer was sustained, the bill was dismissed and an appeal was taken to this court.
As to the first proposition, it is stated that about the time the county made its contract with Hicks et al., appellees, to build the county bridge, it also granted a charter to one Grayson to erect a toll-bridge on the same creek, at the same point; that appellees bought said charter of Grayson, and took from him an assignment of his privileges under the same, and have ever since held the bridge as their private property, under Grayson’s franchise; that the county prior to the rendition of the original decree had no knowledge of this assignment of Grayson’s franchise to appellees, and no' reason to suppose it had been done, wherefore they were unable to plead it in bar of appellees’ claim.
As to this it seems to be immaterial whether the county had knowledge of the assignment of Grayson’s privileges to appellees or not. This was not at issue. The question determined in the original case was the performance or non-performance of a contract to build a public bridge for the county, and has nothing whatever to do with Gray-son’s right to build a toll bridge. Appellees had a right to acquire as many, assignments to build toll bridges as they should choose, and for the purpose ofcthe matter determined in the original suit the county had no need to know anything about it, and if such was the fact it was of no importance whether it was ever discovered or not.
It can be seen, however, that if the appellees undertook to build a county bridge for free public use, and then pro ceeded to hold it as a toll bridge for their own use, and at the same time demand pay for building it, then this would be a proper matter to reply to appellees’ counter-claim, and for this purpose it would not be material whether appellees were collecting toll under an assignment to them of a grant to Grayson, or without semblance of authority. They had no right to appropriate a public bridge for their benefit in such a way, and if it was done it must have been known to the county court, for it is difficult to conceive how the county court could conduct this somewhat protracted litigation about a bridge and not know until the matter was determined in the courts that appellees were all the time taking tolls on the same. There is no pretense of such want of knowledge of this material fact, but only an alleged ignorance of his supposed claim of right to take toll under ■an assignment. This is certainly insufficient to constitute such a showing as to authorize the court to set aside the former proceedings and decree.
As to the act of February 27, 1879, which was passed ** 7 pending the suit, it is urged with great earnestness by appellants that it has the effect to terminate the whole proceedings; that all steps taken after the passage of the act were void, as it expressly provided that the counties should prosecute their suits in the name of the state, and that all demands against counties should be presented to the county court, and repealed all the sections of the statute providing for bringing suits against counties in the circuit court.
statutes o hanging l^/oVon su!ts.dins
It is held in Green v. Abraham, 43 Ark., 421, that “the bringing of a suit vests in a party no right to a particular decision. His case must be determined on the law as it •stands at the time of the judgment — not at the bringing •of the suit; and if, pending an appeal, the law is changed, the appellate court must determine the case under the law in force at the time of the decision,” and this is the language of Judge Cooley in his work on constitutional limitations.
In the case of the Ins. Co. v. Ritchie, 5 Wall., 541, an action was brought under a revenue law which was repealed pending the suit, and it was held that the action must fall, the court saying: “It is clear that when the jurisdiction
of a cause depends upon a statute, the repeal of the statute takes away the jurisdiction. And it is equally clear that where a jurisdiction conferred by statute is prohibited by a subsequent statute, the prohibition is, so far, a repeal of the statute conferring the jurisdiction.”
Numerous other authorities on this subject and in the same direction might be cited, but only one more will be referred to, as it states the rule very clearly and in a way to render it specially applicable here.
In South Carolina v. Galliard, 101 U. S., 433, the court says: “ It is well settled that if a statute giving special
remedy is repealed without a saving clause in favor of pending suits, all suits must stop where the repeal finds them. If final relief has not been granted before the repeal went into effect, it cannot be after.”
From 1839 to 1879 there are statutes providing that suits by and against counties might be brought in the circuit court, and the manner of bringing and conducting them. The act of February 27, 1879, in its first section provides that “ hereafter ” a different proceeding will obtain. Now it was obviously the intention of the legislature by the use of the word “ hereafter ” to make the act purely prospective, and with a saving to suits pending. And this being so the county, having brought its suit in the proper court before the passage of the act, had a right to a final hearing in that court, and the appellees, or defendants, had a right to all their proper defenses. That these defenses were proper and meritorious has already been determined by this court and is settled, and the act in question was as ineffectual to take away their right to defend in the Hemp-stead circuit court as the right of the county to prosecute its suit.
In further support of this view appellees insist that under section 6343, Mansfield’s Digest, the act of February 27, 1879, could not affect a suit pending. In this the question is raised as to whether the legislature can constitutionally limit its own legislative power.
In passing on a somewhat similar statute the Supreme Court of Illinois holds that “ it is not competent for the legislature to limit its own legislative powers by prescribing rules intended to govern the method of repealing and amending statutes. The power to repeal and amend statutes is vested in the legislature by the constitution, and the legislature cannot deprive itself of the right to exercise this power by prescribing rules as to the method in which it shall be done.” Mix v. Ill. Cen. Rd. Co. (Syllabus), 6 North Eastern Rep., p. 42.
In Files v. Fuller, 44 Ark., 273, Eakin, J., in passing upon this statute, says: “ We have an old statute of 1837, which has passed unchallenged through the portals of all subsequent constitutions. It provides that no action, plea, prosecution or proceeding, civil or criminal, pending at the time any statutory provision shall be repealed, shall be affected by such repeal; but the same shall proceed in all respects as if such statutory provision had not been repealed.”
“This statute has very little importance save in hermeneutics, and has been rarely invoked, for no legislature has power to prescribe to the courts rules of interpretation, or to fix for future legislatures any limits of power as to the effect of their action. Any subsequent legislature might make its repealing action operate in pending suits ¡as effectually as if no such statute existed, and the courts are quite free yet to consider what the subsequent legislature did in fact intend or had power to do. Still it has kept its place on the statute books, and it is persuasive, at least, that subsequent legislatures meant to keep in harmony with it, and in their legislation supposed it would go without saying, that when a repeal was made, all rights in suits pending under the old statutes would be preserved.” This construction of the statute by Justice Eakin seems to be most sound and reasonable, inasmuch as, instead of fixing an inflexible rule in constructing such acts, it holds that “ courts are quite free yet to consider what the subsequent legislature did, in fact, intend or have power to do.” And in considering these statutes section 6343, Mansfield’s Digest, seems to be a general law, and the act of February 27, 1879, by its terms evidences an intention on the part of the legislature to keep in harmony with the existing law, and to except from the operation actions and pleas pending at the time of its passage.
Accordingly there was no error in the court below sustaining the demurrer, and it is affirmed. | [
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Cockrill, C. J.
Damages for the right of way over the lands in controversy were assessed and paid into the Olay circuit court by a railroad, and the several claimants for the lands were left to litigate the title and settle among themselves the right to receive the fund. The appellants’ action of ejectment for the possession of the fractional section of which the condemned portion was a part, was consolidated with the proceeding to determine the right to the fund paid by the railroad, on motion of Hanauer, and the consolidated suit was at his instance, transferred to equity in order to enable him [1] to reform a mortgage through which he claimed title to the land, or [2] to enable him to subject it to the payment of a probated claim against the estate of the ancestor through whom the appellants claim title.
1. The first question is as to the title of the land.
Hanauer’s only claim of title under the proof is by virtue of his adverse holding. He alleged in his cross-complaint that he supposed the lands in dispute had been included, along with other lands, in a mortgage which Hiram Brown, the appellants’ father, had executed to him in 1860; that he became the purchaser under a decree of foreclosure of all the lands in the mortgage in 1867, and these, as he supposed, among them; but that afterwards he ascertained to his surprise that the lands in suit had been inadvertently omitted by the draftsman from the mortgage. There is not a line of proof to sustain the allegation about the alleged mistake in the mortgage. On the contrary it was shown that the mortgagor did not acquire title to the land until two years after the mortgage was executed, and could not have entertained the intention to convey them. Seven or eight acres of the land, it seems, were cleared and fenced in Hiram Brown’s lifetime. He died in 1864, seized in fee and in possession, leaving the appellants — his infant children — his heirs at law. They were soon after removed to Kentucky and have since resided there. In 1867 Hanauer put his tenants in possession of the land; they remained there until 1873, and during this period the land became known in the neighborhood as Hanauer’s land. In the year last mentioned the fence around the improved land was burned; Hanauer’s tenants abandoned the occupation and no one was in the actual occupancy again, until about 1881, when the building of the railroad had rendered the land of considerable value. About that time a small house was erected on the land, but whether in subordination to Hanauer’s title, is not quite clear. No effort was made to show any other act of ownership or control over or claim to the land by Hanauer after 1873, except the loss of the tax receipts showing payment of taxes upon them by his agent.
2. Statute of Limitations: Adverse possession: Continuity of.
Seven years continuous adverse possession by Hanauer is not established by the proof. His possession from 1867 to 1873 cannot be stretched into that period and did not divest the plaintiffs’ title. After that time we are not left to inference or conjecture as to the occupancy. Hanauer’s actual possession was abandoned. It had been wrongful from the outset, without even color of title to sustain it, and while it might have ripened into title if he had con firmed his possession or had maintained such open and notorious show of ownership for- the statutory period as to operate as notice to all the world that he was in under a claim of title, still it is the settled policy of the law not to extend a possession that is without color of right by construction or implication. No presumptions are indulged to favor it; it must be proved. When Hanauer’s actual possession ceased, the constructive possession of the plaintiffs, who were the legal owners, was revived; and a new possession by Hanauer, if satisfactorily proved, would start the statute afresh from its inauguration, but it could not receive aid from, or be tacked to his former possession to piece out the time allotted by the statute. The payment of taxes and a neighborhood designation of the lands as Hanauer’s, born only of his former wrongful holding, cannot be held to be open and notorious possession of lands that were capable of cultivation and had a rental value.
John W. Leach obtained the patent to this land from the state and afterwards conveyed it by deed to Hiram Brown. Brown’s dwelling was burned during the war, and the deed was destroyed with it, without having been recorded. J. J. Smithwick, who was a party to these proceedings, obtained a conveyance from Leach a short time before the ejectment suit was instituted and got possession of a part of the land. The proof shows, however, that he purchased with knowledge of the prior conveyance to Brown, and his claim of title is without merit. The court decreed against him, and he prosecuted a cross-appeal, but he has failed to follow it up, and is deemed to have abandoned it. See rule 10, Ark., 12.
2. Purchase-with notice of outstan ding title.
3. Administration* Proceedings to sell lands to-pay debts.
2. It remains to consider Hanauer’s effort to subject the lands to the payment of his probate judgment. The allowance had been made in his favor by the probate court in 1867, and he alleged in his cross-complaint that the ad ministration had been closed, and the administrator discharged, without paying the allowance; that the lands were assets in the administrator’s hands, and were now held by the appellants as heirs of the decedent, against whose estate the claim’ was allowed. This probably laid the foundation for .subjecting them to the payment of his claim according to the ruling in Wilson v. Harris, 13 Ark., 559, and Hall v. Brewer, 40 Ark., 433. But the appellants, who were defendants to the cross-complaint, answered that # A the cause of action did not accrue within ten years of bringing suit. Under this issue the burden was upon Hanauer, the plaintiff in the cross-complaint, to show that he had commenced his suit within the statutory period.
4. Same: of limitations.
5. same: Same,
Ouachita Co. v. Tufts, 43 Ark., 136. The probate allowance jg a judgment within the meaning of our statute fixing the period of limitation at ten years. The language of the statute is comprehensive and embraces all judgments and decrees without discrimination or exception (Brearly v. Norris, 23 Ark., 169); and while the statute may not operate to bar such a judgment while the estate is in course of administration and before an order of payment is made, as was ruled in Mays v. Rogers, 37 Ark., 155; yet, as Hanauer’s cause.of action accrued upon the discharge of the administrator, the statute would run against him from that time, and bar his demand at the end of ten years. (Wilson v. Harris, supra., 2562).
His complaint was filed seventeen years after the allowance of his demand. It was alleged that the administrator had been discharged, and it was not denied; but there was nothing shown that the discharge was within the ten years, and the claim must fail.
In the case of State Bank v. Williams, 6 Ark., 156, it was held that, after a lapse of fourteen years, the presumption arose that the claims against the estate were paid, although the executor in that case had not been discharged. See, too, Mays v. Rogers, supra; Stewart v. Smiley, 46 Ark., 373; Graves v. Pinchback, 47 Ark., 470.
The decree against Smithwick is affirmed. So much of it as is favorable to Hanauer is reversed, and a decree will be entered here for the appellants upon the whole case. The costs will be adjudged against Smithwick and Hanauer in equal parts. | [
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Gatewood, Special Judge.
Appellant Lusk was fined by appellee Perkins, a justice of the peace, of Sevier ■county, and in payment of said fine tendered to appellee, George, as constable, a county warrant issued in 1862, by order of the Sevier county court, for ordinary county expenditures; which warrant the appellee, George, as constable, refused to receive.
The warrant had been presented to the county treasurer of Sevier county, and indorsed “not paid for want of funds.”
This suit was in the Sevier circuit court, for the purpose ■of obtaining a mandamus to compel George, as constable, to receive said warrant in payment of said fine, and for a restraining order against the justice of the peace, Perkins, 4o restrain him from issuing an execution against appellant for said fine. The appellees answered, admitting the allegations of the complaint, except as to that part which alleges the warrant was issued “for the legitimate expenses and liabilities of said county, and not in aid of the rebellion or other unlawful purpose;” as to which they •say, “they have no knowledge or information sufficient to form a belief; ” and they deny that said warrant was issued for legitimate county purposes.
They set up as a further defense, that the board of supervisors of Sevier county, on the 9th day of July, 1873, made an order calling in for the purpose of examination, cancellation and reissuance, all outstanding warrants of the •county; that the notice required by law, and the order of said court were duly given, and that the warrant tendered to the constable was never presented to the board of supervisors, in accordance with said order, and was therefore void.
A general demurrer was filed with the answer, which does not appear to have been acted upon by the court.
A reply was filed by appellant, admitting the making of the order by the board of supervisors, denying that the order fixed the time for presentation of the warrants three, months from its date, and denying that the notice of said order was given as required by law.
Upon motion of appellees, the court struck out the reply of appellant, to which he excepted. A trial was had and appellant offered to prove by the clerk and sheriff' both of whom were clerk and sheriff in 1873, when the order calling in the warrants was made, that the order of the board of supervisors was published in only one newspaper in the state: by the sheriff'that he published the notice in only one newspaper in the state, and the same fact by the clerk, and by him also, that there was no record in his office that any notice at all of the order of the board had ever been published. An objection to this testimony was interposed by appellees, and sustained by the court; to-which ruling of the court appellant excepted.
Appellant asked eight declarations of law, the first seven of which being condensed, asked the court to declare that section 1148 of Mansfield’s Digest required that-the order of the board of supervisors of Sevier county, should be published in newspapers of the state, and before the order could be effectual to bar the warrant presented,, the notice required by the statute must have been published in more than one newspaper in the state. Eighth —that the warrant in evidence, is proof of its own issue- and of the purpose for which it was issued, unless contradicted by proof; the court refused to give, in any form,, either of these instructions, and appellant excepted.
Appellees asked two declarations of law: First — that the allegation in plaintiff’s complaint, that the warrant tendered to defendant, George, as constable, in payment of his fine, was issued by order of the county court of Sevier county, to pay the legal expenses and legitimate liabilities of the county, and not in aid of the rebellion or other unlawful purposes, was a a material allegation in said complaint, and being contoverted by the defendant, the court must find for the defendant, unless said allegation has-been proven.
The second instruction asked for, is quite lengthy, but in substance is as follows: “That the judgment or order of a court of record being rendered by public authority, is presumed to be faithfully recorded, and is the only proper legal evidence of itself, and is conclusive of the fact of the rendition of the judgment, and all legal consequences resulting therefrom; and if it appears from the record of the judgment of- Sevier county court, read in evidence in this cause, that due and legal notice had been given of the order of the county court, calling in the warrants of the county, said record is conclusive evidence of that fact, and parol evidence is not admissible to contradict the record, and the court will find for defendants.”
The court gave both declarations of law asked for by defendants; to the giving of which appellant excepted. Judgment was rendered for appellees. Motion for new trial was filed, which was overruled; bill of exceptions setting out evidence, exceptions, etc., were taken, and an appeal prayed and granted.
Appellant complains of error by the court: Eirst — in striking out his reply to appellees’ answer.
Second — in refusing to permit him to prove by the sheriff and the clerk of the county, that the order of the board of supervisors was published in only one newspaper in the state; and that there was no record evidence that any notice at all of the order had ever been published.
Third — in refusing to declare the law, as asked by him, and declaring it as asked for by appellees.
The court did not err in striking out the reply of appellants. “There can be no reply except upon the allegation of a counter claim or set-off.” Mansfield’s Digest, see. 50J¡.3; Newman on Pleading and Practice, page 627.
A reply improperly filed should be stricken out. Cannon v. Davies, 33 Ark., 56; Abbott v. Rowan, ib., 593.
Did the court err in refusing to permit appellant to introduce proof showing that the order of the board of supervisors of Sevier county had been published in but one newspaper in the state, and that there was no record evidence that said notice Had ever been published? Section 1147, of Mansfield’s Digest, empowers the county court to call in the outstanding warrants of the county, for the purpose of redeeming, cancelling or classifying them, or for any lawful purpose.
1. Pleading and Practice: Reply.
2. Service op Notice: Recital of, in judgment.
Section 1148, of same, provides for giving notice to the holders of county warrants when to present the same for redemption, cancellation, reissuance or classification; the sheriff of the county to give the notice “by putting up at the court house door, and at the election precincts in each township of said county, at least thirty days before the time appointed by the order of said court for presentation of said warrants, a true copy of the order of said court in the premises, and publishing the same in newspapers printed and published in the state of Arkansas, for two weeks in succession, the last insertion to be at least thirty ■days before the time fixed by said court for the presentation of said warrants.” Allen v. Bankston, collector, 33 Ark., 740, was a case in which the county court of Desha county had made an order calling in county warrants similar to the one made by the board of supervisors of Sevier county, in this case, but the sheriff published the notice in but one newspaper in the state. Allen failed to present bis warrants, although he had personal notice of the order. In that case this court held that “ when the notice •of an order of the county court, calling in warrants for cancellation is published in only one newspaper, the warrants will not be barred by the failure of the holder to present them within the time required by the order, though he have actual notice of it. That the statute manifestly requires the order to be published in more than one newspaper, leaving the selection of the paper to the discretion of the sheriff.”
The publication of the order of the board of supervisors of Sevier county for the length of time required by law in more than one newspaper in the state, was essential to the validity of the order,
The appellant offered to prove that it was published in but one newspaper, and that there was no record evidence that it had ever been published, but he was not permitted to make this proof. The proof tendered, if made, would have shown that the law had not been complied with in the publication of the order, and as a result from this proof, that the warrant tendered in payment of his fine was not invalidated by the order of the board of supervisors of Sevier county, and was a proper tender in payment of his fine. In the absence of any record evidence showing that the order had been published in more than one newspaper, it is difficult to comprehend how a noncompliance with the law in the publication of said order could have been shown, other than in the manner proposed by appellant. He should have been permitted to introduce the testimony proposed. Its exclusionaby the court was therefore error.
3. coukty 'ctneenlti°eloscri¿ Proof of.s*
It appears that the board of supervisors in making an order reissuing some of the warrants presented, after reciting the previous order of the board, say, “ and due and legal notice of said order having been given as required by law,” which recital appellees contend is sufficient evidence itself that the notice of the order had been published in more newspapers than one in the state. The order of the board of supervisors of Sevier county, calling in the outstanding warrants of the county, was made July 9, 1873, and fixed the 10th of October as the time for presenting the warrants, and directed the sheriff to have the order published “ in the official journal of the district, designated by the governor for the publication of legal notices.” The words, “ due and legal notice of said order having been given as required by law,” in the order of October 10th, refers to, and must be read with, the order made July 9,1873, which directed the sheriff to publish the notice “ in the official journal of the district, designated by the governor for the publication of legal notices,” and meant a publication in only one paper, to wit: “The official journal of the district:”
/ 4. Same: Same: Orel e r f o i publication of notice.
There can be no conclusiveness or even presumption ; indulged in favor of the legality of the notice given of the : order of the board of supervisors of Sevier county. It is of a class of orders which seeks to conclude the rights of parties by public notice, or constructive service, and a strict compliance with the requirements of the statutes must be shown. “ It is a rule without qualification or exception, that when it is sought to conclude a party by constructive service by publication, a strict compliance with the requirements of the statute is required; nothing can be taken by intendment, and every fact necessary to the exercise of jurisdiction based on this mode of service must affirmatively appear in the mode prescribed by statute.” Cissell v. Pulaski county, and cases there cited; 10 Fed. Rep., 891.
This court, while hot using this language, has, in effect, held this statute for calling in county warrants must be strictly complied with. Fry, collector, v. Reynolds, 33 Ark., 450; Howell v. Hogins, collector, 37 Ark., 110; Allen v. Bankston, 33 Ark., 740.
The declaration of law asked by appellant in his first seven instructions should have been given in some form, and the declaration contained in appellees’ second instruction was not applicable to the case, and should have been refused.
5. Same: Purposes for which issued.
It is alleged in appellant’s complaint that the warrant in controversy was issued by the county court of Sevier county “for the legitimate expenses and liabilities of the county, and not in aid of the rebellion or other unlawful purpose.” Appellees contend that this was a material allegation in the complaint, and being denied, it devolved upon appellant to prove it, and not having done so, judgment must be rendered on the pleadings against appellant. Was this a material allegation? “ A material allegation in a pleading is one essential to the claim or defense, and which could not be stricken out from the pleadings without leaving it insufficient.” Mansf. Dig., sec. 5073; Newman ■on Pleading and Practice, 503. It would have been sufficient to allege, in the language of the warrant itself, that it was issued “ for ordinary county expenditures,” and the words, “ for the legitimate expenses and liabilities of the county, and not in aid of the rebellion or other unlawful purposes,” were unnecessary and surplusage, and might well be stricken out, leaving a good complaint standing. The warrant was copied in full in the complaint, and there was no more occasion for such an allegation as this than there would be in declaring upon a note to set out the •original consideration, with the further allegation it was not executed for an immoral or illegal purpose.
But if this had been a material allegation, the proof sustaining it was made when the warrant copied in the complaint was received in evidence. It was not denied that the warrant was regularly issued by the county court of Sevier county. County courts are not authorized to issue warrants except in payment of county indebtedness, and the warrant having been regularly issued was evidence of the purpose for which it was issued. Appellant’s eighth instruction should have been given.
The fine imposed upon appellant was a debt to be paid into the county treasury of Sevier county for county purposes, Mansf. Dig., sec. 5860, and the warrant tendered was receivable in payment of this debt. Ib., llJfi.
The judgment of the court below is therefore reversed ■and remanded, with instructions to grant appellant a new trial, and to proceed in the case in accordance with this opinion.
6. Same: Receivable for fines. | [
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Battle, J.
On the 26th day of January, 1882, the appellant, G. B. Greer, filed a complaint in the Jefferson circuit court, and therein alleged, among other things, that on the 14th day of February, 1881, he leased to the appellee, Israel Stewart, his plantation in Jefferson county, known as the Watkins & Greer place, for a term of four years next succeeding, including 1881, for an annual rental of $2500, payable on the 1st day of December of each year; that by the terms of the lease, if the lessee failed to pay rent at maturity, the lessor might, at his option, terminate the lease and take possession of the demised premises; that Israel Stewart forfeited the lease by his failure to pay the rent due on the 1st day of December, 1881; that thereafter he had taken possession of the place, and that defendant, Israel Stewart, and his agents, were constantly entering upon the land, threatening and annoying tenants, and greatly damaging appellant in the enjoyment thereof; and asked among other things that defendant, his agents, attorneys and employes, be restrained and enjoined from further interfering with the possession of appellant, his tenants and laborers, in the renting, operating and cultivating of the place. A temporary restraining order .in accordance with the prayer of the complaint was issued and served.
On motion of defendant, Israel Stewart, the court dissolved the temporary injunction on the 30th day of June, 1882, reserving until the final hearing the questions as to damage, restoration of possession and forfeiture of lease.
On the 10th day of January, 1885, plaintiff moved the court to dismiss the action, the time of the lease having expired. This motion was never acted upon by the court.
On the 25th day of May, 1885, the action proceeded to. a final hearing. The court found that when the restraining order was served, Israel Stewart had assigned the lease to D. W. Stewart; that D. W. Stewart was then in possession of the lands, but was put out; that appellant had been in possession ever since; that I). W. Stewart was damaged in the sum of $300 for each of the last three years of the lease, and decreed accordingly.
Injunction men8teoSf damages.
In the absence of legislative authority a court of equity will not, upon dissolving an injunction, enforce the pay-men^. ciamages jn the original cause, but will remit the parties to their action upon the bond or action at common law.
In Marshall v. Green, 24, Ark., 411, this court held that damages on the dissolution of an injunction could only be awarded by the court in the original cause, under the statutes then in force when money is enjoined, “and then on the amount released by the injunction ; ” and that the suit not being to enjoin the collection of a debt generally, but only to prevent the sale of particular property for payment of it, damages should not have been awarded by the court below, in that action on dissolving the injunction.
In Phelps v. Foster, 18 Ill., 809, Mr. Justice Catón, delivering the opinion of the court, says : “I have with considerable reluctance come to the conclusion that the court exceeded its power in awarding damages to the defendant against the complainant. Except in the c^se of an injunction to restrain a judgment at law, I can find no warrant in the statute for awarding damages upon the dismissal of an injunction bill, and I cannot find authority for sustaining it in the English court of chancery. The general principles of equity jurisdiction are against it. It is granting affirmative relief to the defendant without a cross-bill, and when the pleadings do not justify it. I regret that it is so, for I think this power almost indispensable as a check upon the too free and dangerous use of this writ, which is liable to great abuse, unless the greatest circumspection is used by those invested with the high power of awarding it, which, I regret to say, has not always been the case.” See High on Injunctions, 2d Ed , secs. 1648, 1657, and authorities cited.
The only statute of this state authorizing the court to assess damages, upon the dissolution of an injunction, reads as follows :
“Sec. 3763. Upon the dissolution, in whole or in part, of an injunction to stay proceedings upon a judgment or final order, the damages shall be assessed by the court, which may hear the evidence and decide in a summary way, or it may, at its discretion, cause a jury to be impaneled to find the damages.
“Sec. 3764. When money is enjoined, the damages may be at any rate per cent, on the amount released by the dissolution which, in the discretion of the court, may be proper, not exceeding 10 per cent.
“Sec. 3765. When the delivery of property has been delayed by the injunction the value of the use, hire or rent thereof shall be assessed.
“Sec. 3766. Judgments shall be rendered against the party who obtained the injunction for the damages assessed, and the assessment shall be conclusive against the surety of such party.”
This statute is the same as section 325 of Myer’s Kentucky Code of Practice, and was originally section 320 of the Civil Code of Practice of this state. Under section 325 of the Kentucky Code, the Court of Appeals of Kentucky held that, “it is only in cases where proceedings on a judgment have been stayed by an injunction that the chancellor immediately on the dissolution, is empowered to ascertain the damages and to render a judgment for them, and that in all other cases the remedy is on the injunction bond.” Rankin v. Estes, 13 Bush, 428; Logsden v. Willis, 14 Bush, 183.
In this case the payment of money was not enjoined, nor the delivery of property delayed by the injunction. The statute set out in this opinion is not applicable to eases like this. Under no reasonable construction that could be placed on it, did the court below have the right to assess the damages suffered by reason of the injunction in this action.
The term for which appellant had leased his place to appellee having expired before the final hearing, there remained nothing in the case on which appellees could insist. If they, or either of them, are entitled to damages, he or they must recover them in another action, if at all.
The appellant having filed amotion to dismiss the action it should have been granted.
The decree of the court below is therefore reversed, and judgment will be entered here dismissing the action, and for the costs of the court below against the appellant; and for the costs incurred in this court against the appellees. | [
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Smith, J.
The object of this bill was to reopen the account of Sorrels, as administrator of England, for false and fraudulent credits therein taken, which were particularly specified, and for a further accounting. The answer denied specifically the various charges of fraud. But at the hearing the court found that all of the disbursements, with which the administrator had been credited in the probate court, except some trifling sums paid to officers of the court, had been improperly obtained. It therefore set aside the settlement account and referred it to a master to restate the same, excluding the objectionable items and charging the administrator with lawful interest upon whatever balance might be found in his hands, with annual rests.
1. Statute of Limitations:
Acti o n s against adra i n i strator.
Infancy.
The bill was filed by the personal representative of the last surviving heir and distributee of England. And it is suggested that, as near fourteen years had elapsed from the confirmation of Sorrels’ account before the suit was begun, the demand is stale and barred by lapse of time. But Georgiana England, the said heir and distributee, was an infant when the administrator settled his accounts, and, in fact, died in infancy in the year 1873; and administration was not granted upon her estate-until in 1883; and the present bill was filed in the following year. So that the statute of limitations never began to run in her lifetime, nor until there was an administrator upon her estate. Nor, can laches be imputed in a case where no one in existence is capable of suing. Mansf. Dig., sec. 4489; Hanf. v. Whittington, 42 Ark., 491, and cases cited.
It is, indeed, contended that, upon the marriage of the said Georgiana in 1871, all her personal property became vested in her husband, and he could have sued immediately. But by section 6, of article 11, constitution of 1868, her inheritance and distributive share in her father’s estate was her separate property.
2. Administration: Allowanees to ad ministrator for support of infant heir
One of the credits which the probate court had allowed to Sorrels, but which the circuit court rejected, was a bill of $74.43 for medical services rendered to one of England’s daughters in her last illness. This was after England’s death; and the ground of rejection was that the demand had never been allowed nor ordered to be paid by the probate court. Properly, it was not a claim against the estate, nor a part of the expenses of administering it. But the child had no guardian, nor any other estate, except that in course of administration, out of which to pay for these useful and necessary services. The only risk which an administrator takes under such circumstances is the solvency of the estate; for such payments are not good as against creditors. But there was no fraud in the matter, and a court of equity will never, at the instance of heirs, open an account for such expenditures. The claim was not such a one as was required to be presented to the probate court for allowance and classification, having accrued after the death of the intestate. Nor was a previous order of court for its payment necessary. The probate court after-•wards sanctioned such payment by allowing the administrator credit therefor. Yarborough v. Ward, 34 Ark., 205; Martin v. Campbell, 35 ib., 137; Bamford v. Grimes, 17 ib., 567.
3. same; outlining lowlnoes'.1"
A second item of credit rejected in toto by the circuit court, was the sum of $500 retained by the administrator in payment of certain claims which had been transferred to him by one Harris. England died in the year 1860, and Harris had been the first administrator of his estate, Sorrels being one of the sureties upon his administration bond. Harris had sold personal property belonging to the estate, of the value of $138.05, as shown by his sales bill returned into court, and had never accounted for the proceeds; nor has he attempted to give any such account in this suit, although he was sworn as a witness in behalf of the defendant. He had, however, paid certain expenses of administration and bills for England’s children; and held in his own right and by assignment of other creditors, certain claims against his intestate’s estate, the whole amounting to §258. He now, in 1863, abandoned the administration, or rather he made an arrangement with Sorrels to take charge of the estate. And as he was a debtor to Sorrels, he gave him in payment these claims which had not yet been passed on by the probate court, but which were authenticated by Harris’ affidavit as to their justness and non-payment. Sorrels, after he succeeded to the administration, indorsed his allowance upon the claims, and they were, without other evidence, allowed in a lump by the probate court. It is for the principal and interest of these claims, that Sorrels claimed and received credit for $500.
Now, to the extent that Harris was indebted to the estate, the allowance and payment of these claims without deduction operated as a constructive fraud upon the rights of those interested in the estate. Sorrels, as the surety of Harris, and his successor in the administration, was chargeable with a knowledge of the facts, because an inspection of the probate records relating to this estate, would have disclosed them. Nor could Harris transfer to him a greater interest than he himself had, which was to have the claims paid, less his own indebtedness to the estate. And it was the duty of Sorrels to protect the estate by enforcing the right of set-off against himself as assignee of the claims. He is entitled to retain only 'the excess of the claims over Harris’ indebtedness to the trust.
The remaining item of credit in dispute (taxes, $7.50) was rejected by the circuit court because it was paid without an order of coui’t, and was not accompanied by a voucher. This is no sufficient evidence of fraudulent conduct, upon which to falsify an administrator’s account. The estate owned two hundred acres of land, the taxes upon which it was necessary to keep down. The probate court was satisfied they had been paid.
As the assets of this estate have all been converted into money, and all debts have been paid, and there is no necessity for further proceedings in the administration, nothing remaining to be done except to fix the liability of the administrator and the rights of the representative of the distributee, a court of chancery will retain the cause for final judgment, instead of certifying its conclusions and corrections down to the probate court. Reinhardt v. Gartrell, 33 Ark., 727.
The decree of the Drew circuit court is-reversed, and a decree will be entered here against the defendant for the-balance due the estate upon his account as restated upon the basis indicated.
SUPPLEMENTAL OPINION ON MOTION TO MODIFY DECREE.
Sorrels’ account as administrator was confirmed in the year 1870. A cause of action then arose to the distributeesof England’s estate to impeach it for fraud. The sole distributee was a minor, who died in 1873, still in her minority. The statute never began to run against her in her lifetime. Mansf. Dig., sec. 4489; Vaughan v. Parr, 20 Ark., 600; Drennen v. Walker, 21 ib., 539; Brinkley v. Willis, 22 ib., 1; Jones v. Freed, 42 ib., 357.
But counsel for Sorrels say that her death set the statute in motion and that the suit was barred, not having been instituted within eight years thereafter. But there was no administration upon her estate until in the year 1883.
The case of Hanf v. Whittington, 42 Ark., 491, did not introduce a new rule in this state, but was merely a reiteration and application of the principle announced in Mc-Custian v. Ramey, 33 Ark., 141, and Word v. West, 38 ib., 243. That principle is, that when an action accrues to the estate of a deceased, person the statute of limitations does not begin to run until the qualification of a personal representative. This is understood to be the general rule everywhere. Angell on Lim., 6th Ed., ch. 7, and, cases cited; Wood on Lim., sec. 117, and cases cited; Goodhue v. Barn-well, Ricc’s Eq. Rep., 198, 238 (S. C.)
Thus in Murray v. East India Co., 5 Barn & Ald., 304 (7 E. C. L., 66), which was an action by an administrator upon a bill of exchange, payable to the testator, but accepted after his death, and where the bill had matured more than six years before the commencement of the action, but the grant of administration was less than six years before, it was ruled that the limitation ran from the date of the letters of administration, and not from the maturity of the bill, it being considered that no cause of action could be said to exist until there was a party competent to sue. Compare Benjamin v. DeGroot, 1 Denio, 151; Davis v. Garr, 2 Selden, 124.
Lytle v. State, 17 Ark., 608, 661, stands upon a different ground. ' That was a suit by heirs for the recovery of lands. The limitation of such suits was then ten years; and it ran, in favor of the adverse holder, against all persons, except that persons laboring under disabilities were allowed five years after removal of their disabilities within which to sue. The cause of action accrued to the plaintiffs, all of whom -were infants, in 1834. One of these heirs died in 1840, being still an infant. And it was held that those claiming under him were barred at the expiration of five years from his death. But observe, the statute had begun to run against the infant while yet alive. It was not suspended, as it is in other cases; but the infant was only given the privilege of suing for his land within five years after reaching his majority. Both the Revised Statutes of 1838, prescribing the limitation in actions to recover realty, and the act of January 4, 1851, make this distinction. Chandler v. Neighbors, 44 Ark., 479.
If the infant died, the right of action went to his heirs, and they must sue within the time privileged, without regard to the fact whether they themselves were under any disability. Eor cumulative disabilities are forbidden. The death of the infant had the same effect to put the statute in motion as his arrival at full age. Eor he must have left heirs, to wdiom his right would descend, and there would be in existence parties capable of suing. But not so of a right of action which could only be prosecuted by a personal representative.
Again. It is insisted that Georgiana’s distributive share in her father’s estate bacame, upon her marriage, vested in her husband, who could have brought his action at once; that the constitution of 1868 had no affect on the marital rights of the husband, as it only provided that the property of the female should remain her separate estate so long as she might choose; and now that she was dead, no one could make that election for her. If it be conceded that the case is not affected by the constitution of 1868, yet the conclusion that is contended for does not follow. Whatever may be the rule elsewhere; yet even before the adoption of that instrument, marriage did not operate in this state to transfer to the husband the wife’s personal property as an absolute gift. The gift was subject to the condition of a reduction into possession during coverture. And if the wife died before the husband had recovered it, it descended to her next of kin, and not to him. It was, of course, subject to the payment of her debts, contracted dum sola; and if it consisted of choses in action, an administrator was necessary to recover them. But the husband, if he administered, could not retain the property for his own benefit. After payment of her debts the surplus went to her kindred, to all of whom the husband was postponed. Cox v. Morrow, 14 Ark., 603, 616 ; Carter v. Cantrell, 16 ib., 154. | [
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Cockrill, C. J.
The question presented by the appeal relates only to the regularity of the proceedings had in • • .. , , .. . . . reviving an action begun against Pleasant McNutt in his lifetime, against his representative after his death.
Practice: agaSsYadministrator.
The statute points out three modes of procedure for reviving an action against an administrator of a deceased defendant.
First — The order of revivor may be made by consent of parties. Mans. Dig., sec. 5239.
Second — Where ten days’ previous notice has been given to the administrator against whom the revivor is desired, of the intention to apply for the order, and no cause is shown against it, if six months have elapsed since the administrator qualified, Ib., 5240, 5245.
In each of these cases the order is absolute and the cause progresses against the new party from the date of the order.
The third instance is where the death of the defendant is suggested in the cause without previous notice to the party against whom the revivor is sought. In that event the order for revivor is not absolute as in the other instances, but is conditional upon his failing to show cause against it. Ib., secs. 5239, 5241. The order, after the suggestion of the death and of the names of the party to be proceeded against, is to the effect that the action be re vived in his name as administrator, and proceed against him as such unless he shall show sufficient cause against the revivor at the next term of the court. Maxwell’s Pl. § Pr., p. 692; Bates Plds., etc., p. 219, sec. 5151.
A copy of this order must be served upon the administrator as a summons is served, and the action will stand revived at the next term after legal service if no reason to the contrary is shown, before a default can be regularly entered. Dig., sec. 5239; Haley v. Taylor, 39 Ark., 104; Bates Plds., etc., sup., p. 221, sec. 13; Amyx v. Smith’s Admx., 1 Met. (Ky.), 529.
In the case before us a scire facias upon a forfeited bail bond had been served upon Pleasant McNutt at the suit of the state. At the next term of the court thereafter his death was suggested, and the court being satisfied of its truth, it was ordered that the cause be revived in the name of the appellant as the administratrix of his estate, and it was further ordered that process of summons issue against her as such. In obedience to this order, the clerk issued a writ commanding the sheriff to summon the administratrix to answer a suit begun against her intestate in his lifetime and revived against her as administratrix; and to warn her that upon her failure to answer, the original summons would be taken as confessed. The return upon this writ shows a proper service upon the administratrix. At the return term she appeared and moved to quash the writ upon the ground that the process should have been a copy of the order of revivor instead of the writ served; and also to annul the order of revivor because she had had no notice of the motion therefor previous to making the order. The court caused the writ to be amended by inserting the words “ show cause why the action should not be’\ before the word “revived,” thus making it a summons to show cause against the revivor, and overruled the motion to quash. The administratrix making no further objection, judgment was entered against her and she appealed.
It is apparent that the order of revivor made at the term prior to the appellant’s appearance was not intended or treated as absolute, but only as a conditional, order. If absolute, why was notice required to be served upon her, or why did the court offer her the opportunity to show cause against the revivor by amending the process to conform to that idea?
The statutory provision as to the use of a copy of the order as process to bring the administratrix into court, should have been observed, but the process adopted by the court apprised her that the action begun against her intestate had been revived against her as his representative, and that it would so progress and judgment be rendered against her unless she showed cause to the contrary. Service of a copy of the order could have done n© more, and the error worked no prejudice to her rights, and must be disregarded. Rice, Stix & Co. v. Dale & Richardson, 45 Ark., 35.
The amendment of the process, if necessary at all, fully apprised her of her right to resist the revivor of the action; it«does not appear to have operated as a surprise in law or fact and was warranted under the decisions of this Court. Fisher v. Collins, 25 Ark., 97; Thompson v. McHenry, 18 ib., 537; Galbreath v. Mitchell, 32 ib., 278; Rich-ardson v. Hickman, ib., 406; Martin v. Godwin, 34 ib., 682.
The objection that the order of revivor was made within six months of the qualification of ihe administratrix is untenable. The prohibition contained in the section referred to [5245] refers to the final and not the conditional order of revivor.
Affirm. | [
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Battle, J.
G-. B. Rumph was a merchant doing business in the city of Camden, in this state, during the years 1879, 1880, 1881, 1882 and 1883. Joe Edwards was a farmer and during these years bought goods, wares and merchandise, and borrowed money of Rumph, on a credit. On the moneys loaned Rumph charged, and Edwards agreed to pay, 15 per cent, interest. They settled annually, Edwards giving new notes to cover balances due and future advances, and deeds of trust to secure the same. On the 2d of March, 1882, on a settlement, Edwards was found to owe Rumph $822.25. Fifteen per cent, interest was charged and added to this balance, pursuant to an agreement between Rumph and Edwards, for indulgence and extension of time for payment. On the 4th of April, 1882, Edwards executed his note to Rumph for the sum of $1100 to cover this balance and interest,, and in settlement and payment thereof and of future advances, payable on the first day of November following, and bearing 10 per cent, per annum interest from the maturity thereof until paid, and executed a deed of trust to secure the same and other indebtedness of Edwards to Rumph which should be existing at the time of the maturity of the deed of trust. In this deed certain lands were conveyed in trust as security. Edwards sold a part of this land to William Bolden for the sum of $400, and Bolden gave two notes for the purchase money. Edwards deposited these notes with Rumph as collateral security for the payment of his indebtedness to Rumph. In the meantime Edwards continued to trade with and borrow money of Rumph. On the 1st of March, 1888, Edwards* debits to Rumph, including the balance of $822.25 and the 15 per cent, added thereto, were $1681.80, and his. credits amounted to $1271.32, leaving a balance of $410.48 due Rumph. Bolden failing to pay the first of his notes falling due, Rumph brought this action against Edwards and Bolden, in the Nevada circuit court, on the equity side thereof, to recover of Edwards the $410.48, and asked in his complaint to be subrogated to all the rights and privileges of Edwards as vendor of the land sold to Bolden; that the land be sold undei; a decree of the court;, that the proceeds of the sale be applied to the payment of the amount due on the note of Bolden then due; that the amount so applied to the payment of Bolden’s note be paid to Rumph in part payment of the balance due him by Edwards; and that the residue of the proceeds, if there should'be any, be held subject to the order of the court for the payment of the other note of Bolden when it should fall due, and for general relief. And Edwards pleaded usury by way of defense.
In the hearing, evidence was introduced which established the foregoing facts.
The court found that the debt secured by the deed of trust executed on the 4th of April, 1882, was usurious and void ; that the open account of Rumph against Edwards for the year 1882 was not usurious, but had been paid in full; that plaintiff' was not entitled to foreclose the deed of trust; that plaintiff was an innocent purchaser of the notes of Bolden before maturity; that these notes were due and unpaid ; and that there was due upon them the sum of $430.21; and decreed that plaintiff take nothing by this action ; that Edwards have and recover of Rumph all his costs ; and that Edwards further have and recover of Bolden the $430.21 for the use and benefit of Rumph.
Both parties have appealed to this court.
There is a distinction made in equity between suits brought to enforce usurious contracts and actions for relief against such contracts. In the first case a court of equity will refuse any assistance and repudiate the contract, and in the other case will interfere on the condition that plaintiff will pay the defendant what is really and bona fide due him, and lawful interest. “The ground of this distinction is, that a court of equity is not positively bound to interfere in such cases by an active exertion of its power; but it has discretion on the subject, and may prescribe the terms of its interference ; and he who seeks equity at its hands may well be required to do equity. And it .is against conscience that the party should have full relief, and, at the same time, have the benefit of the contract complained of, which may have been made at his own solicitation. For, then, a statute made to prevent fraud and oppression, would be made the instrument of fraud.” But in the other case, if equity should enforce the contract, “it would be aiding a wrong-doer who is seeking to make the court the means of carrying into effect a transaction manifestly wrong and illegal of itself.” Z Story UJq. Jur., sec. 801.
1. Appropriation op P AYments: Legal and illegal debts.
The note for $1100 is manifestly void on account of usury. The remainder of the indebtedness of Edwards to Rumph has been paid. As already stated, the amount of the entire indebtedness was $1681.80. There was paid on account $1271.32. This was not appropriated to the payment of any particular item of indebtedness. Rumph himself had no right to ascribe this payment upon the usurious part of Edwards’ indebtedness without the permission of Edwards; and the courts will not. Gill v. Rice, 13 Wis., 549; McAlister v. Jerman, 32 Miss., 142. The payment should be first applied to so much of the indebtedness of Edwards as was legal. Wright v. Lainy, 3 B. & C., 165; Treadwell v. Moore, 34 Me., 112; Bockman v. Wright, 27 Vt., 187; Seymore v. Morris, 11 Barb., 85 ; Caldwell v. Wentworth, 14 N. H., 431.
2. Usury: Collateral security for us uri ous debts.
Appropriating the payments made in the manner indicated, all the indebtedness of Edwards, except a small part of that tainted with usui’y, will be paid. This being true, Rumph can recover nothing in this action. The court below committed an error, which probably was the result of the hurry of business, and was, manifestly, an oversight. While it found that Edwards was not liable, in law or equity, for any part of the claim sued on, yet it rendered a decree in favor of Edwards, for the use and benefit of Rumph, for the amount due on the notes of Bolden. These notes were only placed in the hands of Rumph as collateral security for the payment of Edwards’ indebtedness to him. When Edwards was absolved from this indebtedness Rumph’s right to hold the notes as collateral security ceased to exist. Rumph had no right to appropriate the property of Edwards to the payment of a claim he did not owe.'
The court below should have required Rumph to bring into court the deeds of trust and notes executed by Edwards to be canceled; should have canceled the same ; should have required Rumph to surrender and deliver Bolden’s notes to Edwards; and rendered judgment in favor of defendants against plaintiff for costs.
The decree of the court below is, therefore, reversed, and this cause is remanded, with instructions to the court to enter a decree herein in accordance with this opinion, and for other proceedings. | [
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Smith, J.
White recovered a verdict and judgment for $1000 against the railway .company for injuries sustained by him as a passenger, in alighting from one of its trains. The supposed omission of duty by the defendant consisted in failing to stop the train long enough to enable the plaintiff to get oft in safety, and in imperfectly lighting the station for which the plaintiff was bound. He was in his twentieth year, and the accident happened about 2 a. m., of a dark night. His testimony was, that as soon as the station was announced and the train had come to a stand-still, he arose from his seat, made his way out to the car-platform, saw no lights, and was in the act of stepping on to the station-platform, when the train suddenly started and threw him between the train and platform, crushing his foot. He also swore the' train stopped about three minutes or less; that the cars were lighted, and cast some light on the platform, which he could see as he was in the act of stepping off.
The other testimony, as well that for the ^defendant as that given in behalf of the plaintiff, conduced to establish the facts that the train stopped near three minutes, and the station was insufficiently lighted.
There is no doubt that the plaintiff received a painful injury, permanently impairing his ability to earn a livelihood. But the connection between that injury and the defendant’s negligence is not so apparent. The length of the stop was sufficient to give him time to leave the train, under ordinary circumstances. He was young and presumably active, unincumbered with baggage, and the only passenger for that station. The failure of the company to adequately light its station and platform is not shown to have contributed directly to the injury. Nevertheless the jury may have concluded that this circumstance was a potent factor in producing the result. And as the case was submitted to them under proper instructions, there is no good reasou for disturbing the verdict.
Affirmed. | [
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Cockrill, C. J.
Jacks and Fitzpatrick were partners in business, and largely engaged in the sale of “Fitzpatrick Bitters,” a compound containing intoxicating liquor as a chief ingredient, as the proof shows. They consigned twenty-five cases of this liquor to O’Bryan for sale, agreeing to give him all over a stated price per case realized. At the same time they represented to O’Bryan that the liquor could be sold without license, gave him a number of circulars for general distribution which contained the same statement, and authorized him to sell with a guaranty that the liquor could be resold without license, and that they would hold harmless from all damage those who purchased from him and resold without procuring a license.
This transaction was subsequent to the act of March 8, 1879, which prohibits the sale of “any compound or preparation ” of ardent spirits “commonly called tonics, bitters,, or medicated liquors, in any quantity or for any purpose whatever, without first procuring a license,” to exercise the privilege. A sale of these same bitters, without license, was held to be an indictable offense in Foster v. State, 36 Ark., 258.
The contract between the parties amounted then to this : That O’Bryan, who was a licensed liquor dealer, should sell Jacks & Fitzpatrick’s liquor to be resold in violation of this statute. Under this arrangement O’Bryan sold a part of the liquor, when the appellees called for a settlement, and not being satisfied with his answer, demanded pay for tbe goods sold and possession of wliat he had on hand; and not receiving either, they sued him for the value of the twenty-five eases, as for goods sold and delivered by them to him. The question is, can they recover?
It is well settled that an act which is forbidden by statute cannot be made the foundation of a contract, (Lindsay v. Rottaken, 32 Ark., 620.) It follows t-tíat a sale of liquor in violation of law is illegal. (Dunbar v. Johnson, 108 Mass., 519.) A mere knowledge by the vendor that liquor is to be resold in violation of the statute, without a participation in the illegal act, will not vitiate the sales he may make to the intermediate dealers. (1 Whart. Cont., sec. 343; Tatum v. Kelley, 25 Ark., 209; Parsons Oil Co. v. Boyett, 44 ib., 230) But if the vendor designedly contributes to the scheme, or is to derive a benefit from it, or if there is a unity of purpose between him and the party to b'e supplied, he is infected with the latter’s criminality, and the contract is void. (Fisher v. Lord, 63 N. H., 514; Foster v. Thurston, 11 Cush., 322; Riley v. Jordan, 122 Mass., 231.) Here the effect of the arrangement between Jacks & Co. and O’Bryan was, that parties should be incited to purchase for the purpose of violating the. law, under a guaranty from the vendors to shield them from the consequences of the violation. This made all the parties concerned active participants in the illegal act of sale.
i- Liquor: ¡ilegal sale of.
2. prikoiagent: iifegaioon?
O’Bryan was only the agent of the appellees to effect the illegal sales, but an agent who undertakes to perform a contract wh¿ch is void as against public policy, or in violation of law, is under no legal obligation to carry out his undertaking. He may violate his instructions or his moral obligation in regard to it with impunity, for the law refuses to interfere in such matters, upon the principle that no suit can arise from an illegal transaction. (Whart. Agency, sec. 249.) The courts will not interfere between the guilty participators for the benefit of either, but will leave them in the condition in which they are found, from motives of public policy, even though the defense of illegality may appear unconscientious. (Martin v. Hodge, 47 Ark., 378 ) But “judges are not astute,” it has been said, “in finding means to enable one rogue to defeat the better rights oOanother,” and so when money has been collected for the use of a principal by an agent employed in an executed illegal transaction, the former may sue him for money had and received to his use, and recover it upon the agent’s express or implied promise to pay, the courts ■declining to look beyond this promise to the illegal contract. Brooker v. Parker, 23 Ark., 390; Brooks v. Martin, 2 Wall., 70; Planter's Bank v. Union Bank, 16 ib., 483; Wilson v. Owen, 30 Mich., 474; Baldwin v. Potter, 46 Vt., 402; Pointer v. Smith, 7 Heisk., 137, 144; Leman v. Grosskopf, 22 Wis., 447.
Or if a party repents of his illegal design while the contract continues executory, he may rescind, and the courts will aid him to recover his money or property paid or advanced to further the illegal act, and so prevent the thing from being done. Perkins v. Clemen, 23 Ark., 221; McLain v. Huffman, 30 ib., 428; Spring Co. v. Knowlton, 103 U. S., 49.
But in the case before us the attempt is not to recover money paid to an agent to the principal’s use, nor is it a case of repentance or contrition. The plaintiff’s have not sought to disaffirm’the contract made with O'Bryan, and retake their goods; or to show that they have been sold by O’Bryan, and the price received by him to their use, but they claim the value of the goods from a guilty participator as upon a contract of purchase and sale.
This is an affirmance on their part of the validity of the contract between them and O’Bryan, whether it was in fact one of sale or consignment. To sustain their demand would be to recognize and enforce their illegal contract; but the maxim, “melior est conditio possidentis,” applies, and we must leave the matter in the condition the parties themselves have placed it.
Reverse the judgment and remand the cause for further proceedings not inconsistent with this opinion. | [
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' Battle, J.
Hiram Oo.wles alleged, in his complaint, that in November, 1881, the defendant, Henry Marshall, being in possession of the land in question, which wa,s then wild and unimproved, and belonged to the United States, desired to purchase it, but was unable to do so ; and that he proposed to plaintiff, Hiram Cowles, if he would con tribute one-half of the purchase money, and assist in improving it, and pay one-half of the costs of the improvements, he would enter it, and plaintiff should have one-half interest in the land and joint possession with him; and that when he obtained a title from the United States, he would convey one-half interest to him. That plaintiff accepted this proposition, and took possession of the land and occupied it jointly with defendant; advanced one-half the purchase money, and assisted in improving the land; and that the money he advanced to pay for the land, and for the improvement thereof, and the labor performed by him in improving it, were reasonably worth the sum of six hundred dollars. That defendant afterwards obtained title to the land and refused to convey to him one-half thereof, as he had agreed to do. He asked that defendant be compelled to perform this contract.
The defendant answered, and denied that he had made any such contract, or agreed to convey to plaintiff any interest in the land, on any conditions whatever; and averred that they did agree to clear and cultivate it, and bear the expenses of doing so equally, and share equally the profits of the cultivation; and that under this contract, and no other, plaintiff occupied the land jointly with him, and expended money and performed labor in improving and cultivating it. That defendant expended larger sums of money and performed more labor in improving and cultivating the land than plaintiff did; and that on a fair settlement plaintiff would be largely in his debt. He pleaded no counterclaim or set-off, and asked for no relief.
On the hearing the court below found that plaintiff was not entitled to a specific performance, but that there had been a partnership between plaintiff and defendant; and appointed a master, and directed him to state an account between them, which he did, and reported the same to the court. After examining the report, the court found that defendant was indebted to plaintiff in the sum of four hundred dollars for money expended in the purchase of the land, and for labor performed in improving it, and in the further sum of thirty dollars on other accounts, and rendered judgment against him for these sums; and decreed that plaintiff have a lien on the land for the four hundred dollars, and that in the event defendant did not pay the same in twenty days, directed that a writ of venditioni exponas be issued, directing the land to be sold to pay it. And the defendant appealed to this court.
PLands^ 0 Oontraots emptfonlto convey, void.
evidence in the case is conflicting. Each party introduced evidence tending to support the statement made in his pleadings. But there is no question about the land x belonging to the United States before the defendant entered it. This is admitted by both parties. According to the evidence supporting plaintiff’s statement, defendant made the contract set forth in plaintiff’s complaint, and in the contract agreed with plaintiff to pre-empt the land, and sometime thereafter did so. If this be true, the contract, having been made prior to the purchase of the land by Marshall, was in violation of the laws of the United States under which he pre-empted. For section 2262, of the Revised Statutes provides, that before any person shall be allowed to enter land under the act under which defendant purchased, he shall make oath, “that he has not settled upon such land to sell the same on speculation, but in good faith to appropriate it to his own exclusive use; and that he has not, directly or indirectly, made any agreement or contract, in any way or manner, with any person whatsoever, by which the title which he might acquire from the government of the United States should inure in whole or in part to the benefit of any person except himself; and if any person swears falsely in the premises, he shall forfeit the money which he. may have paid for such land, and all rights and title to the same.”
If the contract relied upon by plaintiff was valid, the title to the land, to the extent of one-half thereof, would have inured to plaintiff. It is evident, therefore, the contract set up by plaintiff' is contrary to the spirit, intent, and policy of the law, and is illegal and void. It amounts to a contract, in which one party undertakes to bribe, and the other agrees to commit perjury. There is no remedy in law or equity on such contracts. Shorman v. Eakin, 47 Ark., 351; Warren v. VanBrunt, 19 Wall., 646; St. Peter Co. v. Bunker, 5 Minn., 199; Beans v. Folsom, ib., 422; Bruggerman v. Hoerr, 7 ib., 343; McCue v. Smith, 9 ib., 869.
No question arises in this action as to plaintiff’s right to repudiate the contract and sue for the money he has expended, or the value of the labor he has performed under it. He has not repudiated the contract, but on the contrary has sought to enforce it, and still relies on it to sustain the judgment of the court below.
According to the evidence, and the master’s report, defendant expended more money in improving and cultivating the land in question, under his agreement with plaintiff', than plaintiff' did, and more than the value of the labor performed and money expended by plaintiff in purchasing, improving and cultivating the land will amount to. The evidence does not show that there were any profits arising from the cultivation of the land. Under no view of the evidence that can be taken is there anything due to plaintiff. He is entitled to no relief in this action.
The decree of the court is therefore reversed, and a decree will be entered here dismissing the complaint. | [
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OPINION.
Cockrill, 0. J.
In an action by or against an administrator, in which judgment may be rendered for or against him, the opposing party to the record is not a competent witness to speak of personal transactions with or statements by the deceased. This is the written law of the state, as found in sec. 2, Schedule Constitution 187J¡.. The reason for it, it is said, is found in this, viz : that experience teaches that it is the part of prudence and' wisdom to provide that when one of the parties to a transaction is cut off from giving his version of it hy death, the other shall not be heard. McRae, as admr., v. Holcomb, 46 Ark., 306.
The appellant’s case is within both the letter and the reason of the law. He was a party to the record, and offered to testify to statements made by a person who was at the time of the trial dead, and whose administrator was the opposing party; and the testimony would have tended to augment the amount of the liability of the deceased’s estate.
The witness was competent when the deposition was taken, because he deposed in the lifetime of his adversary; but in the meaning of the provision quoted above, he testified, or offered to testify, by the use of the deposition, at the trial. He was then incompetent to detail statements made by the deceased. The case of Rinck v. Brooks, 28 Iowa, 484, is a case in point. See, too, Cottrell v. Cottrell, 81 Ind., 87; Chess v. Chess, 17 S. & R., 409,412 Fielden v. Lathens, 6 Abb. Pr. N. S., 341.
Let the judgment be affirmed. | [
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