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David Newbern, Justice.
This is an interlocutory appeal of a decision not to transfer two charges of rape and aggravated robbery from Circuit Court to Juvenile Court. The appellant, Keith Cobbins, was charged with burglary, aggravated robbery, rape, and aggravated assault. At the time of the incident, Cobbins was fifteen years old. The burglary and aggravated assault charges were transferred to Juvenile Court pursuant to Ark. Code Ann. § 9-27-318 (Repl. 1991). The Circuit Court retained the rape and aggravated robbery charges.
Cobbins raises two issues. He contends the trial judge should have transferred the rape and aggravated robbery charges to Juvenile Court because it had not been shown by clear and convincing evidence, required by § 9-27-318(f), that he should be tried in Circuit Court as an adult on these charges. He also asserts the Circuit Court lost jurisdiction because of failure to hold the hearing on the transfer within ninety days after the charges were filed as required by § 9-27-318(b)(2).
The Trial Court was correct in finding clear and convincing evidence that Cobbins should be tried as an adult on the aggravated robbery and rape charges. This finding is based on the violence involved in the commission of the offenses, the prior offenses committed by Cobbins, and the unsuccessfulness of past rehabilitation efforts. Nor can we find convincing authority leading us to conclude that the ninety-day hearing requirement is jurisdictional. The decision of the Trial Court will be affirmed.
During the motion to transfer hearing, the victim, Dorothy Brown, testified that upon returning home from work on October 5,1989, she found her door open. She stated that after she entered her home, Cobbins hit her in the head with a claw hammer three times and then raped her. Brown testified that Cobbins told her if she did not submit to him, he would kill her and her son James. Brown stated that after the rape Cobbins took two hundred dollars from her. Brown was later treated at Osceola Hospital.
Keith Cobbins was arrested based on information received by investigating officers from a friend of Dorothy Brown’s son. Beginning October 5, 1989, Cobbins was held in custody in the Mississippi County Detention Center, as he was unable to post bond. A hearing on transferring the case from Circuit Court to Juvenile Court was demanded on August 9,1990, well beyond the ninety-day period.
Keith Cobbins was no stranger to the juvenile justice system. Evidence presented at the transfer hearing indicated that Cob-bins had previously been sentenced to the Youth Services Facility four times for various offenses. On July 31, 1986, he was sent to the Facility for committing two counts of burglary and one count of criminal mischief. He was again sent to the Facility on June 24, 1987, for theft of property and unauthorized use of a vehicle. The third offense, for which he was sentenced on June 16, 1988, was theft of property. The last incident occurred on February 2,1989, when Cobbins violated his probation and committed harassment and assault.
Ray Rigsby, a Mississippi County juvenile officer, testified that to his knowledge there had been no success in rehabilitating Cobbins at the Facility and that he had not noticed any changes in Cobbins’ behavior. On every occasion Cobbins had gotten into trouble after leaving the Facility. The State also presented evidence from the Child Study Center at the University of Arkansas for Medical Sciences indicating that Cobbins’ behavior pattern was aggressive, dangerous, and disruptive. He had not been controllable in either the home or the youth services environment. A report by a staff psychologist at the Arkansas Department of Human Services indicated that Cobbins required placement in an institutional environment which would provide protection for himself and others. The report added that Cobbins was prone to recidivism. A report from the Youth Services Center did state that Cobbins’ behavior had improved since the incident, but he continued to be assaultive and an absent without leave risk.
1. Clear and convincing evidence
Section 9-27-318(e) sets out the guidelines for determining when an offense should be transfered from Circuit to Juvenile Court. It provides that:
in making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors: (1) the seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense; (2) whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and (3) the prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
Subsection (f) requires a “finding by clear and convincing evidence that a juvenile should be tried as an adult.”
In the supplemental opinion on denial of rehearing in Walker v. State, 304 Ark. 402A, 805 S.W.2d 80 (1991), we held that the standard of review in juvenile transfer cases is whether the trial judge’s finding is clearly against the preponderance of the evidence. Findings of fact by a Trial Court will not be set aside unless clearly erroneous. Ark. R. Civ. P. 52(a) (1990). The Trial Court is not required to give every factor mentioned in the statute equal weight, and proof on every factor need not be introduced in order to warrant keeping a case in Circuit Court. Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991); Walker v. State, supra.
“Clear and convincing evidence” has been defined by this Court as “that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established.” Kelly v. Kelly, 264Ark. 865, 870, 575 S.W.2d 672, 676 (1979). In the case now before us, the Trial Court found clear and convincing evidence on many of the factors enumerated in the statute. We cannot say the Circuit Court’s finding was clearly against the preponderance of the evidence.
2. The ninety-day requirement
The hearing on the motion to transfer was not held until almost fourteen months after the charges were filed. For nine months Cobbins was held in the Mississippi County Detention Center, unable to post bonds.
Section 9-27-318(b)(2) states that “the circuit court shall hold a hearing within ninety days of the filing of charges to determine whether to retain jurisdiction of the juvenile in Circuit Court.” Cobbins would have us hold that the Circuit Court loses jurisdiction of the charges upon failing to hold the transfer hearing within the ninety-day period.
Although the language of the statute is mandatory, it is silent on the effect of noncompliance. In making the decision on this issue, the Trial Court analogized to parole revocation hearings. A statute requires that a hearing be conducted on parole revocation within a reasonable time, not to exceed sixty days after the defendant’s arrest. Ark. Code Ann. § 5-4-301(b)(2) (1987). In Haskins v. State, 264 Ark. 454, 572 S.W.2d 411 (1978), we held that this requirement was not intended by the General Assembly to be jurisdictional. The sixty-day limitation represented the period beyond which the hearing could not be delayed if the defendant objected. Failure to demand a hearing within the sixty-day period waived the right to insist on a timely hearing.
Here, the Trial Court relied on the Haskins case and determined that the ninety-day hearing requirement was not intended to be jurisdictional. We consider the analogy to be apt. Although the statute makes the ninety-day requirement mandatory, nothing in the statute indicates it is jurisdictional. Another factor to be considered is that Cobbins was represented by counsel during the ninety-day period. Motions were filed by counsel only twenty-four days after Cobbins was charged; however, no motion to transfer was made during the ninety-day period. Further analogy to the Haskins case leads us to the conclusion that counsel’s failure to demand a transfer hearing until well beyond the ninety-day period waived the right to insist on a timely hearing.
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Steele Hays, Justice.
Appellant Howard Dewayne Beard, Jr., was tried and found guilty of attempted capital murder and aggravated robbery. The trial court dismissed the charge of attempted capital murder and appellant was sentenced as a habitual offender to eighty-five years in the Department of Correction. We find no merit in the four points of error argued on appeal and, accordingly, the judgment of conviction is affirmed.
I
The Trial Court Erred in Denying the Appellant’s Motion for a Directed Verdict
Bruce Delargy testified that on the evening of December 16, 1989, he was working on a tire when appellant entered Herb’s Tire Sales and Service. Appellant asked Delargy for a check which had been returned for insufficient funds. As Delargy walked toward a desk to retrieve the check he heard a “gun snap.” He turned and saw appellant holding a cocked pistol. Delargy lunged for the bathroom and appellant fired, striking Delargy in the left shoulder. When Delargy came out of the bathroom moments later, he saw appellant turning his truck around on the parking lot headed back toward the shop. Delargy locked the front door and hid in the bathroom. He heard appellant fire a second shot, enter the building and fire a third shot through the bathroom door. Delargy could hear appellant rummaging through drawers and when he came out of the bathroom he found appellant had taken the cash register.
Appellant was charged with aggravated robbery, defined in Ark. Code Ann. § 5-12-103 (1987), as robbery while armed with a deadly weapon, or inflicting or attempting to inflict death or serious injury upon another person. Ark. Code Ann. § 5-12-102 (Supp. 1989).
Appellant argues that there was insufficient evidence to support his conviction of aggravated robbery because he left the premises and did not employ or threaten physical force upon Bruce Delargy at the time he stole the cash register.
A defendant’s threats or acts of physical force “must occur either before the taking (though continuing to have an operative effect until the time of the taking) or at the time of the taking” to constitute robbery. 2 W. LaFave & A. Scott, Jr., Substantive Criminal Law § 8.11(e) (1986) (emphasis in the original); see also, 67 Am. Jur. 2d Robbery § 28 (1985). The correlation necessary between the physical force and the theft to sustain a conviction for aggravated robbery was addressed in Carter v. State, 295 Ark. 218, 748 S.W.2d 127 (1988), where the appellant argued that while physical force was used to commit a rape, no force was used to commit a subsequent robbery. The prosecutrix testified that during the rape the appellant threatened her with a knife and afterward, when he was going through her purse, she believed he would hit her again. We affirmed the conviction of aggravated robbery. See also Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980).
Here, even though appellant left the building briefly, his use of a deadly weapon on both occasions provides all the threat necessary to sustain the charge. Looking at the circumstances as a whole, we cannot say as a matter of law there was no connection between the force exerted and the theft of the cash register. That issue was properly put to the jury.
II
The Trial Court Erred in Overruling Appellant’s Objection to Testimony From the State Psychiatrist About Statements Made by the Appellant Concerning Other Bad Acts
Dr. O. Wendell Hall, a psychiatrist and the medical director of forensic services at the Arkansas State Hospital, who examined the appellant pursuant to court order, was called as an expert witness during the state’s case-in-chief. During the course of direct examination Dr. Hall testified about his examination to determine appellant’s mental status with regard to the criminal charges. Asked whether he arrived at a precise diagnosis, Dr. Hall responded:
I found Mr. Beard to be alert, friendly, seemed to be very willing to talk to me and the other people in the room. Seemed very much at ease talking to us. One of the comments that I remember making about him, he had on a white shirt and he looked real clean and fresh, that he looked cool as a cucumber, and it was a real hot day the day we saw him. And he just looked calm as he could be, talking about what he did. He even seemed to be pretty proud of some of the things that he had done or gotten away with.
The appellant objected and requested a mistrial. He argues that Ark. R. Evid. 503 was violated because the communications between appellant and Dr. Hall were not related to the particular purpose for which the examination was ordered. Instead, appellant argues Dr. Hall was allowed to testify about unrelated acts of misconduct, and his Fifth and Sixth Amendment rights were violated.
We need not dwell on this point. The remarks were only marginally objectionable at best, and certainly not of the magnitude to entail the drastic remedy of a mistrial. Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990). Moreover, nothing in the quoted excerpt from Dr. Hall’s testimony suggests that he was referring to confidential communication made by the appellant. Nor is it at all inferable that the mention of “some of the things [appellant] had done or gotten away with,” referred to other wrongs, if indeed they were that. The remarks may well have been in reference to the very acts in question. Thus, neither Ark. R. Evid. 404(b) nor 503 is applicable.
Ill
The Trial Court Erred in Denying the Appellant’s Motion for Assistance of Expert and Overruling the Appellant’s Objection to the Determination of the Appellant’s Mental Capacity to Proceed
Subsequent to the appellant’s notice of intent to raise the defense of mental disease or defect the trial judge ordered the appellant sent to the Arkansas State Hospital or the Diagnostic Unit of the Arkansas Department of Correction for a determination of his ability to assist in the preparation and conduct of his defense. Pursuant to the court order an evaluation was conducted by an evaluation team from the Arkansas State Hospital.
Appellant argues that the psychiatric evaluation was inadequate because it lasted only an hour. However, in comparing Dr. Hall’s letter of evaluation with the requirements of the report of examination set out in Ark. Code Ann. § 5-2-305(d)(l) through (4) (1987), it is clear there was compliance with the statutory requirement as to a mental examination. See also Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980).
Appellant also moved for the assistance of an expert psychologist and psychiatrist in addition to the court ordered examination. The court denied this motion. Appellant argues that because he relied solely upon the insanity defense it was error to refuse this request. Ake v. Oklahoma, 470 U.S. 68 (1985). He urges the state is required to provide an indigent defendant with competent psychiatric assistance.
We note that Beard made no preliminary showing that his sanity at the time of the offense was likely to be a significant factor at trial, a threshold requirement under Ake. More importantly, we have held that where a defendant is evaluated by the State Hospital, as here, such an evaluation complies with the dictates of Ake. Branscomb v. State, 299 Ark. 482, 744 S.W.2d 426 (1989); Wilson v. State, 297 Ark. 568, 765 S.W.2d 1 (1989); See v. State, 296 Ark. 498, 757 S.W.2d 947 (1988); Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988); Dunn v. State, 291 Ark. 131, 722 S.W.2d 595 (1987); Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987).
IV
The Trial Court Erred in Overruling the Appellant’s Objections to Further Closing Arguments After the Jury Was Instructed on the Appellant’s Previous Convictions
Appellant was charged under the Habitual Offenders Act and a bifurcated trial was conducted on guilt and punishment. Following the guilt phase, verdict forms were submitted to the jury for both the aggravated robbery charge and attempted capital murder. The jury returned a verdict of guilty on both charges. Following the jury verdict the trial court addressed the appellant’s prior motion to dismiss on the basis of the same conduct. At that time the state requested the attempted capital murder conviction be dismissed, however, the trial court submitted both charges to the jury at the punishment phase and reserved a ruling on the motion. After the punishment phase was completed the court dismissed the attempted capital murder conviction.
The appellant argues that it was error to submit both the aggravated robbery conviction and the attempted capital murder conviction to the jury for sentencing consideration because it violated the double jeopardy clause to the Arkansas Constitution.
Ark. Code Ann. § 5-1-110(a)(1) and (b)(l)-(2) (1987) provides:
Conduct Constituting More Than One Offense-Prosecution.
(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(1) One offense is included in the other, as defined in subsection (b) of this section. . .
(b) A defendant may be convicted of one offense included in another with which he is charged. An offense is so included if:
(1) It is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or (2) It consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or
It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.
The general rule is when a criminal offense by definition includes a specified lesser offense, a conviction cannot be had for both offenses under Ark. Code Ann. § 5-1-110. In accordance with the general rule, when the appellant was convicted of both attempted capital murder and aggravated robbery, the conviction for aggravated robbery was set aside under the reasoning that aggravated robbery was the lesser included offense. Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982); Barnum v. State, 276 Ark. 477, 637 S.W.2d 534 (1982).
The problem here, under the reasoning of Barnum and Rowe, is that the trial court set aside the attempted capital murder conviction instead of the aggravated robbery charge, ostensibly the less serious crime. Nevertheless, that was in accord with a case decided soon after Rowe and Barnum. In Wilson v. State, 277 Ark. 219, 640 S.W.2d 440 (1982), this Court set aside one of the two convictions based on the classification of the crime rather than whether it was a lesser included offense:
While it was necessary for the jury to find petitioner guilty of a felony, i.e., aggravated robbery, to find him guilty of attempted first degree murder, the jury and the legislature clearly considered aggravated robbery to be the more serious crime. The jury’s intention can be seen in its verdict specifying 50 years for aggravated robbery and 34 years for attempted murder. The legislative intention can be discerned from the classification at the time of the crime of aggravated robbery as a class A felony, Ark. Stat. Ann. § 41-2102(2) (Repl. 1977), while attempted first degree murder was punishable as a class B felony, Ark. Stat. Ann. §§ 41-703(2), 41-1502(3) (Repl. 1977). Accordingly, the conviction and sentence for the less serious offense, at tempted first degree murder, are set aside. The conviction and sentence for aggravated robbery are not disturbed.
Id. at 221.
In this case, attempted capital murder is a class A felony Ark. Code Ann. § 5-3-203(1) (1987) and aggravated robbery is a class Y felony. Ark. Code Ann. § 5-12-103 (1987). The jury sentenced Beard to fifty years for the attempted capital murder conviction and eighty-five years for aggravated robbery. Therefore, under the reasoning in Wilson the trial court was correct in setting aside the attempted capital murder conviction.
The appellant also argues that it was error to allow additional closing argument in the sentencing phase of the trial because it is not provided for in the statutory provision [Ark. Code Ann. § 5-4-202 (1987)] providing for sentencing procedure for habitual offenders. He maintains it prejudiced him because the prosecutor was able to argue punishment on both convictions. The appellant cites no authority for his contention beyond the language of Ark. Code Ann. § 5-4-502, which gives us no guidance. However, we find some analogy to the procedure in capital cases, see Ark. Code Ann. § 5-4-602 (1987), and that, coupled with the trial court’s broad discretion in the management of trial proceedings generally, supports the conclusion there was no error.
The appellant’s final point is that he should have been allowed to argue mitigation in his closing argument. In Coley v. State, 304 Ark. 304, 801 S.W.2d 647 (1991), we held that the proper time to introduce mitigating factors was in the guilt-innocence phase.
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Robert L. Brown, Justice.
The appellant, Mark Anthony
McKillion, was charged with breaking and entering and theft, with penalties to be assessed under the habitual offender statute. He was convicted of both offenses in the guilt phase of the bifurcated trial, and during the sentencing phase the trial court found that he was an habitual offender with four or more prior convictions and so instructed the jury. The court further instructed the jury that the sentence to be considered for the breaking and entering offense which is a Class D felony was eight to fifteen years under the habitual offender statute. See Ark. Code Ann. § 5-4-501 (1987). For burglary the jury was instructed that the punishment was ten to thirty years under the same act. Id. The jury sentenced the appellant to the maximum term in each case — fifteen years for breaking and entering and thirty years for burglary, with the two sentences to run concurrently.
At the time of the instruction on sentencing during the penalty phase, the appellant requested that the trial court also instruct the jury on sentencing for breaking and entering, which had a penalty of not more than six years, and under the burglary statute, which had a term of years of three to ten years. See Ark. Code Ann. §§ 5-4-401 (a)(4), 5-4-501(a)(5) (1987). The trial court refused to instruct the jury on penalties for the individual offenses, and that is the sole basis for the appellant’s appeal. We agree with the trial court’s decision.
The trial court was correct in instructing the jury under the habitual offender statute. We decided this identical issue as recently as last year. See Hart v. State, 301 Ark. 200, 783 S.W.2d 40 (1990); see also Woodson v. State, 302 Ark. 10, 786 S.W.2d 120 (1990). In Hart,the appellant also argued that an instruction on the penalties for the offenses charged should be given and that the language for penalties under the habitual offender statute was permissive since it used the term “may,” and, therefore, permitted an instruction of penalties under the non-habitual offender statute. We rejected the argument and held that the sensible meaning of the statute was to give the jury discretion to sentence only within the parameters set out in the habitual offender statute. We see no reason to reverse our position on this issue, and because the Hart case effectively disposes of the matter, we affirm. | [
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Jack Holt, Jr., Chief Justice.
This case involves the constitutionality of Ark. Code Ann. § T6-92-108 (1987), which relates to the legislative limitation of expenses and fees imposed upon court-appointed attorneys for indigent clients accused of crime. We find, under the circumstances of this case, the expense and fee “caps” contained in section 16-92-108 to be unconstitutional and that the contempt citation should be vacated. We remand to the trial court for proceedings consistent with this opinion.
On November 30,1990, the appellant, Suzan Jernigan, was charged by information with the capital murder of her husband, J.B. Goff, and mother, Patricia L. Dunn. Jernigan was determined to be indigent, and the appellants, Blair Arnold and Thomas Allen, were appointed as her attorneys by the court on December 11, 1990. Both Messrs. Arnold and Allen objected to their appointments; however, they represented Jernigan during her arraignment. Trial date was subsequently set for April 1, 1991.
On March 14, 1991, Messrs. Arnold and Allen advised the trial court that they were refusing to proceed because they could not provide Jernigan with effective assistance of counsel as they were reluctant to incur overhead expenses while representing her, particularly in light of the fact that the trial court had refused to reimburse them for their out-of-pocket expenses or provide attorney’s fees and had refused to supply Jernigan with funds with which to hire the necessary expert and investigatory assistance. Counsel were found to be in contempt of court, fined $1,000.00, and ordered to appear before the court on March 29, 1991, for further proceedings.
The appellants filed a notice of appeal, as well as a petition for a temporary writ of prohibition and permanent writs of prohibition, mandamus, and certiorari.
In Ellis v. State, 302 Ark. 597, 791 S.W.2d 370 (1990), we noted that appealability is controlled by Ark. R. App. P. 2(a), which requires a final judgment or decree or one that, in effect, determines the action and prevents a judgment from which an appeal might be taken or discontinues the action. Jernigan’s appeal is premature as there has been no final, appealable order for this court to review. Her petitions for other relief are also inappropriate at this juncture and will not be considered.
We do, however, address the following arguments promulgated by Messrs. Arnold and Allen as an appeal from their contempt charge predicated upon their refusal to proceed as Jernigan’s court-appointed counsel: 1) the fee and expense limitations contained in section 16-92-108 violate their right to due process and just compensation, and 2) the present system of appointing attorneys in the State of Arkansas violates their right to equal protection.
Messrs. Arnold and Allen also assert 3) that the limitation of expenses and attorneys’ fees creates an inherent conflict of interest between the indigent and the court-appointed attorney, and 4) that the limitation of expenses and fees by the General Assembly inherently, and in its application, invades the judicial branch of state government. In light of our analysis of the first two arguments, we need not address the latter two points on appeal.
/. DUE PROCESS AND JUST COMPENSATION
Messrs. Arnold and Allen initially argue that section 16-92-108 violates their right to due process and just compensation.
We have held that there is a strong presumption of constitutionality attendant to every legislative enactment, and all doubt concerning it must be resolved in favor of constitutionality; if it is possible for the courts to so construe an act that it will meet the test of constitutionality, we not only may, but should and will do so. Further, the party challenging a statute has the burden of proving it unconstitutional. Holland v. Willis, 293 Ark. 518, 739 S.W.2d 529 (1987).
We have previously addressed the constitutionality of Ark. Stat. Ann. § 43-2419 (Repl. 1977) (currently section 16-92-108) in State v. Ruiz, 269 Ark. 331, 602 S.W.2d 625 (1980), where the State appealed from a circuit court decision awarding reasonable attorneys’ fees to attorneys representing indigent criminal defendants and holding the statute limiting such payments to be unconstitutional. In that case, we held that the statute limiting payments to attorneys representing criminal defendants to $100 for investigation expenses and $350 for attorneys’ fees did not violate the provision in the Arkansas Constitution providing for the separation of powers, and the trial court was bound by the statute.
At that time, we based our decision on a quick and short reference to the historical practice of attorneys representing indigents for little or no fee and on the professional oath an attorney swears to upon admittance to the Arkansas Bar, which oath reads in pertinent part as follows:
I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any man’s cause for lucre or malice. SO HELP ME GOD.
We also stated in obiter dictum-.
It has been argued in another case that requiring an attorney to furnish services for little or no fee is a taking of property in violation of the due process clause of the United States Constitution. This argument was rejected in the case of United States v. Dillon, 346 F.2d 633 (9th Cir. 1965), cert. denied, 382 U.S. 978 (1966). Finding no common law or statutory or constitutional authority establishing payment of attorneys fees, we are left only the sources provided by the legislature. The only other source is the services being furnished by the attorneys themselves. Lawyers clearly have an obligation to represent indigents upon court orders and to do so for existing statutory compensation or for no remuneration at all.
(Citation omitted.)
Subsequent to our decision in State v. Ruiz, supra, other states have addressed the constitutionality of comparable fee cap statutes and found them to be unconstitutional. DeLisio v. Alaska Superior Court, 740 P.2d 437 (Alaska 1987); State ex rel. Stephan v. Smith, 242 Kan. 336, 747 P.2d 816 (1987); and Makemson v. Martin County, 491 So.2d 1109 (Fla. 1986).
In Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991), we were presented with the issues that we now address but were unable to directly analyze at that time because the defendant in that case had neither shown nor argued that he had suffered any specific prejudice resulting from the fee cap statute. See Goldsmith v. State, 301 Ark. 107, 782 S.W.2d 361 (1990); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984). We noted, however, our concern and gave notice that we would reconsider our earlier decisions on the issue in an appropriate case and even outlined pertinent cases from other jurisdictions and their rationale that have dealt with the question. Coulter v. State, 304 at 542, 804 at 356; see also Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990). Rather than discuss these cases again, we single out and attach primary significance to State ex rel. Stephan v. Smith, supra, as the Supreme Court of Kansas commented at length upon the historical argument of legal representation for little or no fee:
. . . the tradition of requiring pro bono work of attorneys originated in common-law England where attorneys who were expected to provide such representation also enjoyed special rights and privileges. They were the sergeants-at-law, the elite among all English lawyers. They had special practice privileges, they commanded higher fees, and judges were selected exclusively from their ranks. They were actually public officers and were sometimes paid by the government. As officers of the court, English lawyers were exempt from suit, military service, and other compelled public service. Their modern American counterparts enjoy no such special privileges. The distinction and its consequences were recognized by the Indiana Supreme Court as early as 1854 [in Webb v. Baird, 6 Ind. 13, 17 (1854)]:
The legal profession having been thus properly stripped of all its odious distinctions and peculiar emoluments, the public can no longer justly demand of that class of citizens any gratuitous services which would not be demandable of every other class. To the attorney, his profession is his means of livelihood. His legal knowledge is his capital stock. His professional services are no more at the mercy of the public, as to remuneration, than are the goods of the merchant, or the crops of the farmer, or the wares of the mechanic. The law which requires gratuitous services from a particular class, in effect imposes a tax to that extent upon such class — clearly in violation of the fundamental law, which provides for a uniform and equal rate of assessment and taxation upon all the citizens.
(Citations omitted.)
The court in Webb noted that an attorney is under no obligation, honorary or otherwise, to volunteer his services; it devolves as much on any other citizen of equal wealth to employ counsel in the defense as on the attorney to render services gratuitously.
The Kansas court concluded that:
Attorneys generally have an ethical obligation to provide pro bono services for indigents. Such services may only be provided by attorneys. The individual attorney has a right to make a living. Indigent defendants, on the other hand, have the right to the effective assistance of counsel. The obligation to provide counsel for indigent defendants is that of the State, not of the individual attorney. The adjustment of these rights and obligations presents the primary difficulty of the present statutory system. The burden must be shared equally by those similarly situated. In the final analysis, it is a matter of reasonableness.
Following its historical analysis, the court analyzed the fifth amendment issue before them as follows:
Whether a violation of due process has occurred depends upon whether “property” has been taken and upon what kind of “process” is due. ... An attorney’s advice and counsel is indeed his or her stock in trade. Moreover, when attorneys are required to donate funds out-of-pocket to subsidize a defense, they are deprived of property in the form of money. . . .
The term due process refers primarily to the methods by which the law is enforced; however the term has no fixed technical concept unrelated to time, place and circumstances. In Hannah v. Larche, 363 U.S. 420 (1960), this comment was made:
“ ‘ “Due process” is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts. . . . Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding are all considerations which must be taken into account.’ ” Smith v. Miller, 213 Kan. 1, 514 P.2d 377 (1973).
Pertinent provisions of our constitution are subject to the same analysis. Article 2, § 22 of the Arkansas Constitution provides that private property may not be appropriated for public use without just compensation. Johnson v. Wylie, 284 Ark. 76, 679 S.W.2d 198 (1984); see also U.S. Const, amend. V (“No person shall... be deprived of property, without due process of law; nor shall private property be taken for public use, without just compensation.”)
Focusing further on the rulings of the Kansas Court, we cannot escape the clear logic underlying their finding that although their statute, on its face, did not violate due process yet, when applied to the facts before them, the fee and expense cap limits were unconstitutional. The Kansas fee and expense cap limitations are comparable to limitations we face in section 16-92-108. The Kansas Court aptly noted:
Attorneys, like the members of any other profession, have for sale to the public an intangible — their time, advice, and counsel. Architects, engineers, physicians, and attorneys ordinarily purvey little or nothing which is tangible. It is their learned and reflective thought, their recommendations, suggestions, directions, plans, diagnoses, and advice that is of value to the persons they serve. It is not the price of the paper on which is written the plan for a building or a bridge, the prescription for medication, or the will, contract, or pleading which is of substantial value to the client; it is the professional knowledge which goes into the practice of the profession which is valuable.
Attorneys are licensed by the state to practice their profession; but so are other professionals, such as architects, engineers, and physicians. One who practices his profession has a property interest in that pursuit which may not be taken from him or her at the whim of the government without due process. . . .
Attorneys make their living through their services. Their services are the means of their livelihood. We do not expect architects to design public buildings, engineers to design highways, dikes, and bridges, or physicians to treat the indigent without compensation. When attorneys’ services are conscripted for the public good, such a taking is akin to the taking of food or clothing from a merchant or the taking of services from any other professional for the public good. And certainly when attorneys are required to donate funds out-of-pocket to subsidize a defense for an indigent defendant, the attorneys are deprived of property in the form of money. We conclude that attorneys’ services are property, and are thus subject to Fifth Amendment protection. [Emphasis added.]
When the attorney is required to advance expense funds out-of-pocket for an indigent, without full reimbursement, the system violates the Fifth Amendment. Similarly, when an attorney is required to spend an unreasonable amount of time on indigent appointments so that there is genuine and substantial interference with his or her private practice, the system violates the Fifth Amendment.
State ex rel. Stephan v. Smith, 242 Kan. at 369, 747 P.2d at 841.
Like the question before the Kansas court, the core question before us is whether the services of an attorney are a species of property subject to Fifth Amendment protection. The answer is yes.
Unfortunately, we have perpetuated, throughout the years, a system of appointment without just compensation in many instances that is long past due for correction. The only proper and permissible course for us to follow is simply to give effect to the plain language of our constitution. City of Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986). In doing so, we declare that even if the rationale in State v. Ruiz, supra, was correct when it was decided, and we have strong reservations in this regard, the practice of criminal law has changed, as have the times. Arkansas has delayed in confronting the realities of contemporary criminal defense practice, particularly in the area of capital litigation, even as the concept of what constitutes due process has changed. New scientific developments and an increased awareness in areas of social consciousness have served to drastically raise the complexity of criminal litigation. As a result, our trial courts must appoint highly trained and skilled counsel if indigents are to be afforded their constitutionally mandated effective assistance of counsel.
In Family Div. Trial Lawyers v. Moultrie, 725 F.2d 695 (D.C. Cir. 1984), the court noted:
As the scope of the constitutionally mandated right to counsel has expanded and the concomitant burden of providing pro bono representation imposed on attorneys has grown, several state courts have recognized that at some point the burden on particular attorneys could become so excessive that it might rise to the level of a “taking” of property. See, e.g., People ex rel. Conn. v. Randolph, 35 Ill.2d 24, 219 N.E.2d 337 (1966); Bias v. State, 568 P.2d 1269 (Okla. 1977); State ex rel. Partain v. Oakley, 227 S.E.2d 314 (W.Va. 1976); . . .
In this case, the burden imposed on Messrs. Arnold and Allen is excessive to the extent that it constitutes a “taking” of their property and to limit them to a mere award of $ 1,000.00 for their work and skills is constitutionally unacceptable.
II. EQUAL PROTECTION
Messrs. Arnold and Allen also argue that the present system of appointing attorneys in this state violates their right to equal protection. We agree.
In determining whether a classification denies the equal protection of the laws, we, as an appellate court, must determine if it has a rational basis and is reasonably related to the purpose of the statute; a classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly circumstanced shall be treated alike. The factors we look at to determine whether a law is violative of equal protection are: 1) the character of the classification, 2) the individual interests asserted in support of the classification, and 3) the governmental interests asserted in support of the classification. Holland v. Willis, supra.
Messrs. Arnold and Allen contend that lawyers, as a class, are given less protection than other classes of professional citizens inasmuch as they are required to financially subsidize the State’s responsibility of indigent representation.
Under our present system of indigent representation, we note that 26 counties have exercised their ability under legislative authority to initiate a public defender system, and 49 counties continue to utilize the traditional system of attorney appointment. Thus, an attorney’s geographic location will initially determine whether his services will be commandeered for the public good or whether the public will fund the defense through its authorized legislative system. See Ark. Code Ann. §§ 16-87- 101 to -110 (1987). Additionally, in those counties that continue to appoint attorneys, an attorney’s substantive area of practice and expertise will further define his eligibility for appointment. Consequently, our system of indigent representation is predicated upon an unequal distribution of the public’s obligation to a subclass of attorneys based on where an attorney lives and on an attorney’s ability to provide effective assistance of counsel.
The State responds by pointing out that only lawyers have the requisite license to practice law, and the legislature may take one step at a time when addressing complex problems. See Bowen v. Owens, 476 U.S. 340, 347 (1986) (quoting Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955)).
However, these arguments are not answers to the problem. Even though the legislature may take “one step at a time” in addressing complex problems, it does not have license to infringe upon the guaranteed constitutional rights of the citizens it represents. The untoward effects of the cap limitations fall unequally upon a select few lawyers, who serve under appointment, and result in a violation of lawyers’ rights to equal protection.
Given these divergent positions and competing interests, we cannot say that the classifications have a rational basis or are reasonably related to the purpose of the statute. Again, we must find that section 16-92-108 does not pass constitutional muster as applied.
ATTORNEYS’ FEES AND COSTS
Inasmuch as we have declared an attorney’s services to be his property, the taking of which is subject to just compensation, it necessarily follows that we look to section 16-92-108 to determine whether or not the fees that are “capped” at $ 1,000.00 in this case will reasonably compensate them for services rendered or to be rendered. The answer is obvious. This limitation for such serious, complex criminal litigation is wholly inadequate. As a result, it becomes our duty to assess an appropriate measure of compensation for the taking of these attorneys’ property.
In awarding fees to Messrs. Arnold and Allen for reasonably expended services, we do not mean that the trial court must simply award fees based on their customary hourly charges or fixed fees for services in criminal cases of this nature. To the contrary, the trial court should determine fees that are considered “just.” In Chrisco v. Sun. Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990), we recognized various factors to be considered by a trial court in making its decision, on an award of attorneys’ fees, including the experience and ability of the attorney, the time and labor required to perform the legal service properly, the novelty and difficulty of the issues involved, the fee customarily charged in the locality for similar legal services, the time limitations imposed upon the client’s defense or by the circumstances, and the likelihood, if apparent to the court, that the acceptance of the particular employment will preclude other employment by the lawyer.
Ironically, the criterion we announced in Chrisco v. Sun, supra, is well grounded in express declarations of the Arkansas General Assembly as to appropriate payment for court-appointed counsel in criminal cases. In Act 125 of 1971, the Arkansas General Assembly expressed its concern about compensating counsel by enacting its second piece of legislation pertaining to indigents and court-appointed attorneys, in which it stated: “. . . It is essential that counsel be furnished to him [the indigent] and that said counsel be compensated for his time, out of pocket expenses and services.” Additionally, even though section 16-92-108 establishes a fee cap of $1,000.00 in the defense of a capital murder charge, the General Assembly declared that:
(a) Whenever legal counsel is appointed by any court of this state to represent indigent persons accused of crimes, whether misdemeanors or felonies, the court shall determine the amount of the fee to be paid the attorney and an amount for a reasonable and adequate investigation of the charges made against the indigent and shall issue an order for the payment thereof.
❖ * * *
(b) (3) The attorney’s fees provided for by this section shall be based upon the experience of the attorney and the time and effort devoted by him in the preparation and trial of the indigent, commensurate with fees paid other attorneys in the community for similar services.’’'’
(Emphasis added.)
The factors as enumerated in Chrisco v. Sun, supra, and as expressed by our General Assembly, are instructive and should be conservatively applied here.
Further, the statutory limitation of expenses, in the sum of $100.00, does not provide the necessary funds for Jernigan’s defense, and, here again, it would constitute a taking to force Messrs. Arnold and Allen to finance these expenses out of their own pockets in order to provide her effective assistance of counsel. We do not suggest that the trial court give carte blanche authority to counsel to incur expenses, but rather it should be within the province of the sound judgment of the trial court to approve such reasonable expenses as are plainly necessary for the defendant to have her day in court and to permit counsel to fairly and adequately present her case.
We reverse and remand to the trial court with directions to vacate its finding of contempt on the part of Messrs. Arnold and Allen and for further proceedings consistent with this opinion.
Dudley, Hays, Newbern, and Glaze, JJ., concur. | [
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Wood, J.
The plaintiff seeks to recover for injuries to person and for loss of property which he says were caused by defendant’s negligence. Defendant admitted the negligence, but says it was the negligence of fellow servants; and, furthermore, as to the loss of property, that defendant was in no sense plaintiff’s bailee, and in no sense liable.
The plaintiff was foreman of a bridge and building gang, whose business was to repair bridges, culverts and trestles. As a part of the necessary and customary equipment for such work, plaintiff was furnished with boarding cars, in which he lived, and boarded the crew of men working under him. These cars, upon the order of the superintendent of bridge and building, were moved from place to place on defendant’s road, wherever the occasion demanded.
Plaintiff and his property, the necessary appointments of a boarding car, and the men under him, were carried by the company to places of work without charge to plaintiff. The rules of the compaay required boarding cars, when moving, to be attached to the caboose. In this instance they were next to the engine. But the plaintiff had no control over the placing of cars. The conductor performed that duty. A list of the property alleged to have been destroyed is attached to the complaint, and marked “Exhibit A.” On this list is a sewing machine, valued at forty-five dollars, two pairs of lace curtains and poles, valued at six dollars, one diamond ring, valued at one hundred and ten dollars, one shot gun, valued at fourteen dollars. As a part of the same exhibit was also an account for personal expenses, amounting to eleven dollars and eighty-five cents, and a charge “for repairs on two watches, eighteen dollars.’’ The value of the articles listed, and the account for expenses and repairs, were shown to be as stated. The total amount of damages claimed was six hundred and six dollars and eighty-five cents.
Through the negligence of an engineer, one of defendant’s trains collided with the train carrying plaintiff and his property, on a bridge over Crooked Bayou. Plaintiff’s car was thrown into the bayou, and he sustained severe personal injuries, besides the loss of property above mentioned. The verdict was for six hundred and six dollars and twenty-four cents, damages for loss of property. Judgment was entered accordingly. Both parties have appealed.
The court instructed the jury as follows: “(1). The jury are instructed that, under the facts in the case, which are not disputed, the plaintiff was a fellow servant with the engineers and other employees of the defendant company in charge of the colliding trains, and he cannot recover for the personal injuries sustained through the negligence of such employees, and the jury will allow him nothing for such injuries. (2). Although the plaintiff cannot recover for his personal injuries, yet, if he was the owner of the property described in his complaint, and the jury find from the evidence that the same was destroyed through the gross or reckless negligence of the employees in charge of the defendant’s trains, he can recover for the same, and the measure of damages will be the fair cash value of such property. (3). If the jury find that the property of the plaintiff was destroyed through the negligence of the employees of the defendant, they will find specially as to whether any portion of said property was unnecessary for the purpose of running the boarding car occupied by the plaintiff.” The appellants at the time objected separately to the giving of instructions num bers two and three. The objections were overruled, and exceptions saved.
The plaintiff and the engineer, whose negligence caused the collision, were in different departments of the company’s service. The former belonged to the bridge and building department, and the latter to the transportation department. Neither was under the control of the other. But the fact that they belonged to separate departments is of no consequence, further than it may tend to show whether or not the injury complained of was within the risks “ordinarily incident to the service undertaken.” The danger of the collision of trains growing out of the negligence of engineers is open and palpable, and was reasonably to be anticipated by the plaintiff in the business in which he was engaged. It was certainly but a normal and natural risk for a bridge foreman to assume when he entered upon the service of the company; for these boarding cars in which he lived were constantly on the move, and they were pulled about over the road by engineers on the various trains. The plaintiff had every opportunity to, and doubtless did, know the manner and method of the movements of these trains. His work necessarily brought him in close contact with these engineers, and he knew that they manipulated the motive power. There was nothing of the master’s duty in the work of running the engine. The doctrine announced by this court in Triplett v. Railway Co. 54 Ark. 289, applied to the facts of this record, determines the relation of the plaintiff and the defaulting engineer as that of fellow servants. That was a well considered case. The patient research and assiduous care of Judge Fletcher in that case has greatly lessened our labors in this. We would add nothing to that opinion, but, in addition to the authorities there cited, see the following: Abend v. Terre Haute & Ind. Ry Co. 17 Am. & Eng. R. Cases, 614, and authorities cited in note, p. 620; N. Y. Cent. etc. R. Co. v. Vick, id. 609; St. Louis, etc. R. Co. v. Welch, 10 S. W. 529, and authorities cited.
The railroad is not shown to have been negligent in employing an incompetent engineer, nor in retaining him after becoming aware of his incompetency. The facts upon which the relation of fellow servants was predicated were not controverted, and the court was correct in its first instruction.
2. In instructing the iury that the defendant was ° . liable for the loss of plaintiff’s property only in case of “gross or reckless negligence,” the court took the most favorable view 'of the law and the evidence for the defendant, and it cannot complain. The second instruction, sufra, fixed the status of the company to the plaintiff with reference to his property as that of a gratuitous bailee, or what is termed in the law of bailments as a “mandatary.” Hutch, on Car. sec. 2; Schouler on Bail, secs. 14-16. If the property of plaintiff was carried solely for the carrier’s benefit, then the carrier was liable for slight negligence. If the plaintiff and the defendant derived a reciprocal benefit from the carriage, the defendant carrier was liable for ordinary negligence; if the transportation was exclusively for the benefit of the plaintiff, then the defendant was liable for gross negligence. Schouler’s Bail. secs. 14-16 sufra. The latter was the view adopted by the court. The proof tended to show that the company usually furnished boarding cars to their bridge foreman, and carried what was necessary for the boarding of a bridge crew, and that this was done for the convenience of the company. So the court might have exacted a higher degree of care than that announced.
But the carrier only undertook to carry such property of the plaintiff as was necessary for the work in 4/1 ^ which he was eng-aged. The company deemed it neces sary that he should board the gang of men working under him, and to that end they furnished him a car especially adapted for that purpose. This boarding car was a home on wheels. In it plaintiff and his men were expected to live, and to be ready at any moment to go whenever and wherever ordered. Without going over the items seriatim, it suffices to say that the jury were justified from the evidence in their finding as to what items were necessary for a boarding car, except the item for personal expenses. This had nothing to do with the property lost, and only had reference to the personal injury of plaintiff, for which, as we have shown, he could not recover. The diamond ring the jury found to be unnecessary for a boarding car, and in this they were correct. But the court overruled the motion of the defendant to have a remittitur entered for one hundred and ten dollars, the value of the ring, and overruled the motion for new trial. The cause must therefore be reversed and. remanded for a new trial, unless the plaintiff shall, within thirty days, enter a remittitur for one hundred and twenty-one dollars and eighty-five cents. If the remittitur is entered, the judgment will be affirmed.
Bunn, C. J., and Riddick, J., did not participate, being disqualified. | [
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Battle, J.
Is the lien of a mortgage, which was properly signed, sealed,. acknowledged and recorded, after it has been reformed by a court of equity so as to embrace land omitted therefrom by mistake of the parties, superior to a lien of a judgment on the land which was recovered against the mortgagor after the recording, but before the mortgage was reformed or a suit for that purpose was instituted ; or will it defeat a sale of the land, made after the institution of the suit to reform, the vendee having notice of the mistake before he purchased?
That courts of equity can correct mistakes in contracts of all descriptions by reforming them so as to carry out the intention of the parties is beyond question. In the absence of a statute, they will interfere to correct mistakes between the original parties, even against a judgment lien, or purchasers at sheriff’s sales under executions with notice of the facts, notwithstanding the judgment under which the lien was acquired, or upon which the executions were issued, were rendered subsequent to the execution of the contracts, but prior to the reformation. In such cases the equities are dehors the contracts, and the judgment liens attach subject to them ; and parties purchasing with notice cannot defeat them. Simmons v. North, 3 S. & M. 67; Gouverneur v. Titus, 6 Paige, 347; Ellis v. Tousley, 1 Paige, 280; Blackburn v. Randolph, 33 Ark. 119; 1 Story’s Eq. Jur. secs. 164 to 167.
. But have the statutes of this state changed this. rule? Section 5090 of Sandels & Hill’s Digest provides: “All mortgages, whether for real or personal estate, shall be proven and acknowledged in the same manner that deeds for the conveyance of real estate are now required by law to be proven or acknowledged ; and when-so proven or acknowledged shall be recorded, if for lauds, in the county or counties in which the lands lie, and, if for personal property, in the county in which the mortgagor resides,” etc. And the following section then says: “Every mortgage, whether for real or personal property, shall be a lien on the mortgaged property from the time the same is filed in the recorder's office for record, and not before; which filing shall be notice to all persons of the existence of such mortgage.” Under these statutes, this court has held, in a number of cases, and for a long period of time, that a mortgage “constitutes no lien upon the mortgaged property as against strangers, unless it is acknowledged or proved in the manner prescribed by the statutes, and filed for record, even though they have actual notice of its existence.” Main v. Alexander, 9 Ark. 112; Hannah v. Carrington, 18 id. 105; Jacoway v. Gault, 20 id. 190.
The rule thus established in this state is entirely statutory. This court in following it has yielded obedience to what it deemed the “unbending and imperious requirements.of a legislative enactment.” Büt the statutes-upon which it is based relate solely to the acknowledgment, proof, and recording of mortgages. Further than this they do not undertake to regulate the execution of mortgages, and require only that class to be filed for record which are' required to be acknowledged or proved. Equities which exist dehors the mortgage cannot be filed or made a matter of record, and of course do not belong to that class of rights to which the statutes relate. As to them, they are silent, and the gen_ eral doctrines of equity jurisprudence are left in full force.
This court has held that certain equitable mortgages do not belong to the class controlled by the statutes, need not be recorded, and can be enforced against parties purchasing with notice of them. Martin v. Schichtl, 60 Ark. 595; Stephens v. Shannon, 43 Ark. 464; Talieferro v. Barnett, 37 Ark. 511. Upon the same principle cases like that before us depend.
In Ohio statutes substantially like ours were in forcé. The courts of that state construed them in like manner. In Strang v. Beach, 11 Ohio St. 283, which was a case very much like the one before us, the court, after speaking of the construction placed upon the statutes by the courts of that state, said : “ Now, for these reasons, we will not disturb the rule thus established. It has the merit, at least, of simplicity, and of being well known and understood. But the question before us is, not whether we will disturb the rule thus established, but whether we shall enlarge the rule, and extend its operations to a case not within the letter of the statutes, and clearly distinguishable from any which have heretofore been held to be within these statutes. The rule is a statutory rule; and the cases referred to proceed in obedience to what were deemed the unbending and imperious requirements of a legislative enactment. These statutes relate solely to the mode of execution, and the recording of the mortgage; a mistake in these respects, it is settled, cannot be corrected ; but, as to all mistakes and defects of the instrument, in other respects, the statutes are entirely silent, and upon them the decisions which have been made upon questions arising under these statutes have no bearing. As to the due and formal execution and recording of the mortgage in the case before us, no exception is taken; in these respects it is admitted to be perfect. And it seems to us, there fore, that we are not only at liberty, but are required, to stop where the statutes stop; and as to a mistake in an •attempted description of mortgaged premises — which is -a matter not covered by the statutes — to resort again to the general doctrines of equity jurisprudence, on which -our statutes are an admitted innovation.”
And so we hold in this case. The decree against the appellant is affirmed. | [
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Riddick, J.,
(after stating the facts). It is contended that the facts set up in the complaint are sufficient to constitute a cause of action in favor of appellants. The contention is that “the abstract was prepared by the appellees, Wright and Robinson, as the basis of a loan to be negotiated through Hoover’s agency; that Hoover placed it with the Topeka Investment & Doan Company ; that afterwards the appellees noted in the abstract the conveyance to Gleed, as trustee for this company, and its assignees; that the appellees then knew that it was placed in a given channel, and was in form designed to pass to the assignees; and that the abstract was made as much for the assignee of the Loan Company as for the Loan Company itself.” This is the argument of appellant. It is not alleged or con tended that the abstracters knew that the note and security would be sold, or that, if sold, the purchaser would rely upon the abstract of title prepared by them for Hoover and the Loan Company; but it is said that, as the notes were negotiable, and the conveyances made to secure the Loan Company and its assignees, the abstracters were liable for an injury to any purchaser of these notes who relied upon such abstract. To support this contention the case of Dickle v. Abstract Co., 89 Tenn. 431, is cited. In that case Dickie, before purchasing land from Bowman, required that an abstract of the title be furnished. Bowman applied to the Abstract Company, who, at his instance, prepared the abstract for the use of Dickie. The abstract showed title in Bowman, and Dickie relied upon it, and agreed to purchase. Thereupon a deed from Bowman to Dickie was prepared by the Abstract Company. Dickie after-wards brought suit against the Abstract Company, alleging that he was injured through its negligence in failing to note a defect in the title. The case went off on demurrer, and the facts alleged are very meagerly set out in the report, but there is no intimation, in the opinion or elsewhere, that there was any want of knowledge on the part of the Abstract Company in regard either to the purpose or the person for whose information and benefit the abstract was intended. So far as we can ascertain, the action was based on a contract made by the Abstract Company with Bowman to prepare an abstract for the use, benefit and information of Dickie. That being the case, it was held that Dickie had a right of action for injury to him occasioned by the negligence of the Abstract Company in preparing such abstract.
This case has been criticised by counsel for appellees as being in conflict with the leading case of Savings Bank v. Ward, 100 U. S. 195. In that case Mr. Justice Clifford, who delivered the opinion of the court, said': “It is conceded that the certificates were made by the defendant at the request of the applicant for the loan, without any knowledge on the part of the defendant what use was to be made of the same, or to whom they . were to be presented. None of those matters are controverted ; but the plaintiffs contend that an attorney in such a case is liable to the immediate sufferer for neg- . ligence in the examination of such a'title, although he, the sufferer, did not employ the defendant, and the case ■shows that the service was performed for a third person without any knowledge that the certificate was to be used to procure a loan from the injured party.’’ In other words, in that case the defendant did not know that the abstract was intended for the use and benefit of the plaintiff, nor the purpose for which it was . to be used ; he did not contract to make an abstract for the information of plaintiff, and it was held that the plaintiff had no right of action. On the contrary, in Dickle v. Abstract Co., the defendant not only made/ the abstract, but prepared the deed from the grantor to the purchaser, and we infer from thq opinion that he knew the person for whose use and benefit it was wanted, and the purpose of it, and the court held that the plaintiff had a right of action. Apart from the rather broad expressions of the judge who delivered the opinion in Dickle v. Abstract Co., .there does not ’ seem to be any irreconcilable conflict in the points .actually decided in the two cases.
But, whether conflicting or not, we do not see that - either of those cases support the contention of the appellant in this case. There is no allegation in this -complaint from which we can infer that the appellees .. contracted with Rhea to prepare an abstract for the use, and benefit of the appellant, Talpey. They furnished ■an abstract to Rhea, for the use and information of Hoover and the Topeka Investment & Loan Company. Upon the abstract so furnished, a loan was made to Rhea by such company. If we concede that Hoover, or the Topeka Investment & Loan Company would, under the circumstances, have a right of action against the makers of the abstract for an injury to them occasioned by defects therein, still it would not follow that appellant had a right of action. After the loan had been made, and the abstract had served the purpose for which it was prepared, the appellant purchased the notes executed by Rhea, which were secured by a trust deed on land. The appellant alleges that, before making such purchase, he required of the company that it furnish him an abstract of title, and that the company furnished him the abstract prepared by the appellees, upon which he relied. This action of the Topeka Investment & Loan Company might make it liable for defects in the abstract furnished by them to appellant, but, in the absence of any allegation that they were acting as the agent of appellees in furnishing such abstract, it would not affect the liability of said appellees. The appellees, did not contract to furnish the abstracts to appellant, nor to anyone for his use and benefit. We think it clear that he has no right of action against them. The judgment of the circuit court is therefore affirmed. | [
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Riddick, J.,
(after stating the facts.) We do not ..... discover any error, either m giving or refusing instructions, that would justify us in reversing the judgment of the circuit court. Although Richardson attempted to make the arrest without first informing the appellant of the warrant and the intention to arrest him, yet this did not justify the defendant in shooting the officer. The testimony of the appellant himself shows that he knew that Richardson had a warrant for him, and that his purpose was to arrest him. He should therefore have submitted to the arrest. 'Appellant testified that he intended to do this, but that Richardson, without attempting to arrest him, commenced at once, and without provocation, to shoot at him, and that, to protect himself, he returned the shot, and killed Richardson. If this testimony was true, the killing was justifiable; for one may defend himself against the wrongful assault of' an officer, as well as against the assault of a person who is not an officer. But this question was fairly submitted to the- jury, and their finding was against appellant. There was evidence amply sufficient to support the verdict, and we cannot disturb it.
During the progress of the conflict, which .resulted in the death of Richardson, there were several shots fired by the appellant, and two shots fired either by Richardson or his assistant, Simms. A witness was allowed to testify that, while these shots were being fired, the wife of appellant, who was present, called to witness “to come there, and not let Fish shoot any more;” that she also said to appellant, “Quit! Don’t shoot!” That, thereupon appellant ordered witness “to let him alone, and fired one more shot.”. It is contended that it was error to admit these declarations of the wife. At 'the time they were uttered she was endeavoring to stop the conflict, and to prevent further shooting. They were uttered in the presence and hearing of the appellant, had reference to him and his conduct, and were in part addressed to him. They tended to throw light upon his motives and conduct, and to explain his subsequent words when he said to this witness, to whom his wife had appealed, “Let me alone! Don’t touch me!” That these declarations were uttered by the wife of appellant-is no valid objection to their introduction, for they were not admitted to prove certain facts, and to supply the place of other testimony, as dying declarations are sometimes admitted, but only to explain and throw light upon the subsequent words and conduct of appellant'. People v. Murphy, 45 Cal. 137; Liles v. State, 30 Ala. 24. Our conclusion is that the evidence was properly admitted, and that, on the whole case, the judgment of the circuit court must be affirmed. | [
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PER Curiam.
The appellant, Adam Bach, was indicted and convicted in the Jackson circuit court, after trial by the court sitting as a jury, for selling liquor in quantities less than one quart, without a license, and appealed to this court.
The only question in the case is as to the sufficiency of the evidence to warrant the conviction, which, as taken from the abstract of the attorney general, was as follows, to-wit: “The defendant, Bach, obtained from the Jackson county court a license to. sell vinous, spirituous and malt liquors for the year 1895, in the town of Newport, Jackson county, Arkansas, a place where it was lawful for said county court to grant a license, and there is no question raised in this case as to the regularity of the said liquor license, or that the defendant had the right to sell liquors in said town during said year in quantities not less than one quart. That, within one year of the finding of the indictment herein, the said defendant did sell to one Jake Phillips two pints of whisky, the same amounting to one quart, and that the said sale of the said two pints was made to the same person at the price per quart, and at the time of sale the whole quart was delivered to the purchaser ; in fact there was only one sale, one price, one purchaser of two pints, amounting to one quart, delivered at one and the same time. And this was all the evidence.”
There being no evidence to show that this putting of the quart of whisky into two pint flasks was a subterfuge or mere device resorted to to evade the law forbidding the sale of whiskey in quantities less than one quart without a license, and the circumstances detailed in evidence not being such as to show that an evasion of the law was intended, the court is constrained to regard the circumstance of putting the quart of whisky into two bottles or flasks as a mere manner of delivery of the whole amount for the sake of convenience, or, at least, might have been the case; and a majority of the court, taking this view of the matter, are of opinion that the circuit court erred in its judgment of conviction.
The cases cited by the attorney general in support of the judgment of the court below do not seem to this court to be altogether applicable. Thus, in each of the cases of Thomas v. State, 37 Miss. 353, State v. Kirkham, 1 Iredell L. (N. C.), 384, and Murphy v. State, 1 Ind. 366, there was no delivery, at the time of the sale, of the whole quantity making up the quart, but substantially, in each case, the purchaser was permitted to take a portion of the whole amount, leaving the remainder to be doled out by portions in the same way, from time to time, as he (the purchaser) should call for it. In those cases it was held that the sale was in quantities less than one quart. The particular point in each was that, while there was a theoretical or pretended sale of the whole amount at one time, there was in fact no delivery at once, except in a quantity less than one quart. The conditions do not answer to the conditions in the case at bar. In the case of Weireter v. State, 69 Ind. 269, and in State v. Zeitler, 63 Ind. 441, upon which the former is based, the court was construing a special statute of that state prohibiting the sale of intoxicants in less quantities than one quart to an habitual drunkard. In each of the two cases the delivery was to several others, as well as to the drunkard, although all the smaller quantities were' sold to him. He drank one of them only, and the court held, under the peculiar statute, that the seller sold to the drunkard in a quantity less than one quart. The gravamen of the crime in those cases was the selling to the drunkard, and, as he consumed but the drink, — a quantity less than a quart, — the seller was held guilty.
Reversed and remanded. | [
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Neill Bohlinger, Associate Justice.
The appellee brought this action in the Dallas Chancery Court alleging that it was the owner of the west half and southeast quarter of section 8, township 7 south, range 14 west; that the appellant was the owner of the northeast quarter of said section [except 10 acres which are not in dispute here]; that appellant was threatening to and about to trespass upon the lands of the appellee and cut timber thereon, and asked a restraining order which was granted.
Thereafter the cause proceeded to trial and the chancellor found the issues for the appellee and established the line between their properties and enjoined the appellant from cutting over the line. From that judgment comes this appeal.
Counsel have presented us with a well-tried and excellently briefed lawsuit with a record that brings up every detail and the exhibits thereto are complete.
The appellant states that the sole issue in this case is the question as to the legal requirements for the establishment of government corners or of government lines where all of the original monuments, witness trees and accessories are missing. The appellee contends that the only issue is that the finding of the chancellor is supported by competent evidence and the finding is not against the preponderance thereof. The factual situation in this township is not altogether novel.
The nearest government corner to the involved land is the quarter section corner between sections 16 and 17 lying south of the land in controversy. The original government notes of the quarter corner between sections 16 and 17 list as monuments a brook 50 links wide running southeast, a Gum tree 10 inches in diameter, and a Holly tree 8 inches in diameter.
A survey was begun at the quarter corner of 16 and 17 where the surveyor found, of the monuments listed in the government notes, the stump-hole of the Gum tree which the original surveyor had noted, the brook, and the Holly tree. The question of the Holly tree being the one listed in the government notes is in dispute. One expert claimed that his borings indicated that the tree was not old enough to have been the original tree and another expert claimed that it was. The chancellor might have found either way on that point but he held that the Holly tree was the Holly tree from which that particular corner takes its name. Therefore there is ample testimony for the chancellor to have found as he did, that the corner located between 16 and 17 and designated as the Holly Tree Corner is the true government corner.
Much testimony has been taken but we are impressed, as the chancellor no doubt was, with the direct approach of the surveyors who, accepting the Holly Tree Corner, ran north 80 chains. This measurement of 80 chains is the proper distance to place us at the quarter corner between sections 8 and 9 and should mai’k the southeast corner of appellant’s land.
At that point a surveyor, who was running the lines for appellant’s predecessor in title, found a pine knot, evidently the marking of a corner. While there is a dispute in the testimony, there is testimony to the effect that the then owner of the land of appellant deeded the pulpwood on this land and showed the purchaser this particular pine knot corner and designated it as the southeast corner of his holdings. The surveyor testified that he began right there and ran a line west 20 chains and 18 links to a corner that was up and marked by a pine knot and an old blaze line and then 20 chains and 18 links to another pine knot. At this point he found established a corner that was the center of section 8. From this center of section 8 the surveyor went 40 chains to the quarter corner of 5 and 8 where there was an old blaze line and the point marked by a pine knot.
These two lines found, as established by the chancellor, are the only boundaries with which we are concerned in this case. They mark the boundaries between the lands of appellant and appellee. With the north and east lines of appellant’s property we are not concerned. As far as we know, no controversy exists between the appellant and his adjoining landowners on the north and east and the question as to whether or not the Ash tree line on the north is the proper northern boundary we do not decide here.
It is earnestly insisted by the appellant that there is a lack of government corners properly monumented in section 8 and we are asked to follow the Government Manual of Surveying Instructions as it pertains to that state of facts. If the land involved in this case were still government owned we would readily hold that the manual is controlling. It is, as its name suggests, a manual for the guidance of the employees of land management and its purpose is set forth on page 2 of the manual as follows:
“The Manual is for the guidance of the employees of the Bureau of Land Management. To all others this surveying practice should be regarded as advisory, with no attempt to interpret State law respecting the survey of private property.”
Therefore, we take the manual to be advisory only. Since there do not appear to be any existing monuments at this quarter corner, resort should have been and was had to section 355 of the manual at page 285.
“An obliterated corner is one at whose point there are no remaining traces of the monument, or its accessories, but whose location has been perpetuated, or the point for which may be recovered beyond reasonable doubt, by the acts and testimony of the interested landowners, competent surveyors, or other qualified local authorities, or witnesses, or by some acceptable record evidence.”
There was, as the court found, not only the evidence of the pine knot markers at the proper spot where the monuments showed they should have been, but there was an old blaze trail that signifies the acceptance of the corner and the line and the evidence, though disputed, that a former landowner had designated the exact spot found by the surveyor as the southeast corner of appellant’s land. :
In an effort to find evidence of government corners, it should be borne in mind that more than thirteen decades and a lustrum have passed since the government: survey was made and the corners established and the field notes made and filed. In the years that have passed' between those events, armies have moved and a war has been fonght in our section and the ravages of time and decay have also taken a toll of monuments which at best could be considered only transitory in a section where an outcropping of rock or other permanent material would be novel indeed.
It is entirely possible that over the generations past people have, as best they could with the crude methods at hand, located corners and lines from government corners that were known. Those corners may now be obliterated and difficult to ascertain but on the strength of those determinations of positions, forests have been leveled, fields have been cleared and tilled, homes, villages and cities have been erected and if there was error in measurement or location of any of these things it has persisted through a long period of time. That error, if error existed, may be reflected in lines of property long distances from the original markings but over the years they have been accepted and the court should weigh well the confusion and mischief that might be wrought by the change of an accepted line.
Before that line which has been accepted through the long years is changed, it should be made to appear that the wrong, the injustice, the inequity of the situation is glaring and the change is appreciable, and the error easily traced to its source.
In some instances judgments and court decrees, as well as accepted usage, go back to corners established by our forebearers on the basis of the best knowledge they had obtainable and we rather think that the logic which brought forth the ancient maxim STARE DECISIS, ET NON QUIETA MOVERE,, which has done so much to stabilize the decisions of the courts, might well be applicable as we contemplate the effect of the change of long established lines. In these circumstances we prefer to stand by precedent and not disturb settled points.
We refrain from burdening this opinion with a reiteration of our many holdings on decisions of the chancellors. The findings of the chancellor will not be disturbed unless it is shown that they are contrary to the preponderance of the evidence. No such showing is here made. The chancellor’s conclusions are sound and the decree should be affirmed.
It is so ordered. | [
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Jim Johnson, Associate Justice.
This appeal is a sequel to the case of Mills v. Patton, 233 Ark. 755, 346 S. W. 2d 689. After the decision of this Court in that case, appellee herein, as plaintiff in the trial court, filed his complaint against appellant as defendant alleging that he, the appellee, was alderman from Ward 3 of the City of Clarksville, a city of the first class, and that appellant, as an usurper, was in possession of, and holding the office without legal right thereto.
Upon a trial, the trial court made and entered its judgment ousting appellant from the office and reinstating appellee therein. From that judgment comes this appeal.
Notwithstanding the excellent briefs which were filed and the interesting arguments advanced by both the appellant and appellee in this case, the record is clear that the term of office over which the controversy arose expired on December 31, 1961. Therefore, the questions presented for our consideration are moot. This being true, and since the questions raised are not of such practical importance to the public as to come under the rule laid down in Cain v. CarlLee, 171 Ark. 155, 283 S. W. 365, we have no choice but to follow our well settled rule that:
“It is the duty of this Court to decide actual controversies by a judgment which can be carried into effect and not to give opinions upon abstract propositions or to declare principles of law which cannot affect the matter in issue in the case at bar.” Kays v. Boyd, 145 Ark. 303, 224 S. W. 617.
Appeal dismissed. | [
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Neill Bohlinger, Associate Justice.
This case comes to us through the Pulaski Circuit Court which reversed a finding of the Little Bock Civil Service Commission under which the appellee, Lucille Edith Tucker, was discharged from her position as account-clerk in the Finance Department of the City of Little Bock.
The record reflects that the appellee began work as an acconnt-clerk in the Finance Department of the City of Little Rock on February 8, 1959. She thereafter completed a six-month probationary period but on September 10, 1959, approximately one month after the probationary period, she was notified orally that her services with the City would be terminated on September 18th. On September 21st the head of the Finance Department wrote a letter notifying the appellee that she was terminated as of September 18th for the reason that her work was unsatisfactory.
Appellee requested and was granted a hearing-before the Civil Service Commission and on October 5, 1959, the Civil Service Commission found that the appellee’s work was in fact unsatisfactory and her discharge was upheld.
Appellee then appealed the finding of the Civil Service Commission and a hearing was had before Pulaski Circuit Court on January 13, 1960, which resulted in a finding- reversing the Civil Service Commission. The City of Little Rock, the appellant herein, has appealed that finding and the case is presented here.
The object of Civil Service is best stated in the preamble to Act 339 of the Acts of 1939 as follows:
“Whereas, it is for the best interest of the public that persons engaged in the service of such cities be employed and discharged according to their merits and the necessity of the city for their services and not according- to political expediency or personal favoritism:”.
The Act, therefore, may be viewed as one which sought to serve the best interest of the city through the employment of qualified persons and to accomplish this end it removed the employees from the uncertain winds of political preferment and the frustrations of personal whims of those in authority. To obtain these ends the employee has the right to have his allegation of unjust discharge reviewed by the Civil Service Commission and if necessary, by the circuit court and thereafter bring it to the attention of this court.
The circuit court reviews the question de novo on. the record before the Civil Service Commission and any additional competent testimony presented to it and on an appeal from the decision of the circuit court, the matter is presented here de novo on the entire record and is viewed as chancery cases are considered here.
The ease of the City of Little Rock v. Newcomb, 219 Ark. 74, 239 S. W. 2d 750, makes this abundantly clear.
“We conclude that the Legislature in enacting Act 326, [§ 2 of Act 326 of 1949 (Ark. Stats., § 19-10320)], intended to provide for a de novo hearing by the circuit court on the record before the Commission and any additional competent testimony that. either party might desire to introduce; and that this court should hear the matter de novo on the entire record before the circuit court, as in chancery cases. While this necessarily means that neither the circuit court nor this court, on appeal, is bound by the findings and conclusions of the trial tribunal, it does not mean that due deference is not to be accorded the trial tribunal’s finding as to the preponderance of the evidence where the testimony is hopelessly conflicting, or evenly balanced. Although we try chancery cases de novo, we have frequently said that the judgment of the chancellor on the question of the preponderance of the evidence will be considered as persuasive when the evidence is conflicting and evenly poised, or nearly so. Greenlee v. Rowland, 85 Ark. 101, 107 S. W. 193; Benton v. Southern Engine & Boiler Works, 101 Ark. 493, 142 S. W. 1138; Civil Service Commission of Van Buren, Arkansas v. Matlock, supra [206 Ark. 1145, 178 S.W. 2d 662].”
Since we consider this case “as in chancery eases,” de novo, the sole question presented is whether or not the preponderance of the evidence appears to be against the finding of the trial court. In a case tried de novo here,
“ * * * unless the preponderance of the evidence appears to be against the chancellor’s findings we must affirm.’’ See: Lupton v. Lupton, 210 Ark. 140, 194 S. W. 2d 686; Turnage v. Matkin, 227 Ark. 528, 299 S. W. 2d 831.
"* * * the judgment of the chancellor on the question of the preponderance of the evidence will he considered as persuasive when the evidence is conflicting, and evenly poised, or nearly so.” City of Little Rock v. Newcomb, supra; Turnage v. Matkin, 227 Ark. 528, 299 S. W. 2d 831.
Viewing the testimony in that light, we find that the appellee served a probationary period of six months and we must assume that she was found competent because she continued in her employment after the probationary period. After this six-month period, appellee’s supervisor testified of her attitude toward her work and comments to some extent on her indifferent attitude on Monday morning and he attributes, without proving, that her indifferent attitude was perhaps due to excess on the weekends, and called attention to a three-day absence. The question of appellee’s addiction to strong drink was never established by any witness. The strongest evidence in behalf of the supervisor’s allegation was the fact that appellee’s son said once, over the telephone, that his mother was in bed and had been drinking; that on another occasion the appellee had asked a man connected with the traffic department of the City of Little Rock for some medication to take the scent of liquor off her breath. All of these things are denied by the appellee and no person testified as to any effects of liquor in the appellee’s discharge of her duty or to her conduct on the job.
There is evidence by the supervisor that in making up payroll sheets the appellee made numerous errors which necessitated extra care on the part of the supervisor and fellow employees who worked with the appellee. It appears that the appellee and other employees worked on the same sheets and no person points out which errors, if any, were the work or omissions of the appellee and which were the work of her co-workers.
We have reviewed the record with care and we are unable to say that the preponderance of the evidence is against thé finding of the trial court and unless we can so do, this case must be affirmed. It is so ordered. | [
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Smith, J.,
(after stating the facts). Appellant says the petition fails to state a cause of action in that it alleges merely that appellant was a passenger upon une of .the trains of appellant company, and that the remainder of his complaint shows that appellant was riding in a box car with some watermelons, which he was shipping in a freig’ht train, and that the complaint fails to allege the payment of fare; or the possession of a pass; or any authority to ride upon the train, and that there was nothing in the complaint to show why in any event he did not ride in the caboose where passengers were carried and were expected to ride. And being in a freight car under such circumstances, no presumption obtains in his favor and the complaint should affirmatively show either an express or implied contract which authorized him to ride in said car as a passenger at the time and place of the accident. Appellant .states the law of Missouri to be that pleadings are not considered amended to correspond with the proof, and that although the complaint was not demurred to, yet, if it fails to state a cause of action, it may be attacked on that account at any stage of the proceedings, even in the appellate court. Appellee concedes that such is the law of Missouri; but it does not follow on that account that the judgment must be reversed because of the insufficiency of the complaint. The complaint does not fail to state a cause of action, nor does it even state one defectively, as it states unequivocally that appellee was a passenger at the time of his injury, and that he was injured by the negligent operation of appellant’s train of cars. A motion to make the complaint more definite would not have been an improper motion, and, had such motion been made, the court should have required appellant to allege how the relation of passenger and carrier was created, and he should have been required to state in his complaint his authority for being in the car at the time of his injury. But no such motion was made, and proof was offered without objection, showing the circumstances under which appellee entered the car and the facts upon which he based his claim of being a passenger, and his right to be protected as such.
The injury having occurred in the State of Missouri, the laws of that'State govern as to the liability, if any; but the remedy to recover damages on account of this injury must be pursued according to the laws of this State, where the suit was brought. Pritchard v. Norton, 106 U. S. 124; Public Parks Amusement Co. v. Embree-McLean Carriage Co., 64 Ark. 29. As the lex fori controls with respect to the pleadings and procedure, the complaint will be treated as amended to conform to the proof.
Appellant strenuously urges that appellee was not a passenger at the time of his injury, and it insists that this is true because he had paid no fare, and expected to pay none, and had no pass, and had not been authorized by the conductor, or any other person with authority, to ride in the melon car, and that if appellant had any right to ride upon the train as a passenger without the payment of fare, he should have ridden in the caboose at tached to the train and provided for that purpose. And appellant urges that no one with authority could authorize or did authorize the appellee to ride in his melon car, and that there was no custom to that effect.
But these were questions of fact for the jury. Appellee insists that he had paid fare, and that his fare was included in the freight charged him upon the issuance of the bill of lading, and that the appellant company knew the purpose of the shipment of these melons, and to this end endorsed upon his bill of lading the writing, which was in effect a license to appellee to ride in his car and to peddle his melons during the various stops of the train. We think there was sufficient proof to support the finding upon the part of the jury that a custom to this effect existed upon the lines of appellant’s railroad. Appellee had two cars of melons in the train, and there were about six other shippers having ears of melons in this train, and all of them were permitted to occupy their cars as appellant did, and no questions were raised or objections made on that account. There was proof of previous similar shipments, although this was only the second shipment made by appellee, and in his first shipment he was not permitted to ride in the car with his melons; but as has been stated, appellee said that this permission was refused to him because he had not procured from the station agent at the point of shipment, a license or a permission to enter his car and peddle his melons; but that other shippers in that train who had procured this permission were accorded that privilege.
Objections were made and exceptions saved to each of the instructions given on motion of appellee. Among other instructions given was the following, numbered 1:
“1. In this case, if you find by a preponderance of the evidence that plaintiff J. L. Coy was really, though not technically, a passenger upon the train of the defendant, and, while such passenger, was injured without fault on his part, and when he had not assumed the risk, by reason' of the car in which he was riding, colliding with other cars upon defendant’s track, this is prima facie proof of negligence on the part of the defendant, and would justify a recovery upon the part of the plaintiff, unless the defendant shows by a preponderance of the evidence that said injury occurred without negligence on its part.”
Appellant says this instruction is erroneous because the evidence does not raise any question for submission to the jury, as to appellee’s being a passenger, and for the reason further that it permitted the jury to find that appellee was really, but not technically, a passenger, whereas, it says, if he was not technically a passenger, he was not a passenger at all. And it states further, that as this was an interstate shipment, appellant was not a passenger because the freight rates which had been approved by the Interstate Commerce Commission, did not provide for the carriage of appellee with his melons, and that he violated the law authorizing the fixing of such rates, and that being thus unlawfully upon the train, he can not claim that he was a passenger.
But it has been held in many cases that one may be a passenger though he has not paid any fare as such, and though he does not ride in any car or coach specially provided for the use of passengers. In the case of St. Louis, I. M. & S. Ry. Co. v. Loyd, 105 Ark. 340, it was said: “Appellee adduced testimony tending to show that where a person shipped a oar containing live stock over appellant’s road, it was-.the custom of appellant to permit a caretaker in charge of the live stock to ride free, and this much is, conceded by appellant. Therefore, api pellee was a passenger, notwithstanding he rode free. Little Rock & Fort Smith Ry. Co. v. Miles, 40 Ark. 298.” And it is also settled that one not technically a passenger may yet be a passenger in fact. In the case of St. Louis & S. F. Rd. Co. v. Kitchen, 98 Ark. 507, the facts were that Kitchen was a .tie inspector for the Chicago, Rock Island & Pacific Railway Company, and was riding on one of defendant’s trains in the State of Oklahoma, which was engaged in loading on its cars for transportation, railroad ties, along the line of its road, which were the property of the Rook Island road. As the ties were loaded for transportation, Kitchen inspected and counted them for his employers. He was allowed to ride on the train as it traveled from place to place for the purpose of picking up the ties; but he paid no fare. This particular train did not carry passengers, but was engaged exclusively in hauling the railway ties. There was a box car in the train called the office car, which was fitted up with desks, etc., for the use of men in their work in connection with the shipment of the ties; also with beds, where men, including Kitchen, slept. There was also a caboose attached to the train. In that case it was insisted that Kitchen was not a passenger and that defendant owed him no duty except the negative one not to wantonly injure him, and it was there said: “In support of this contention they stress the fact that Kitchen did not pay any fare, and was not asked to pay fare, and that, in order to constitute himself a passenger, he must have tendered himself as such to be carried upon a train dedicated to the carriage of passengers) and must have been accepted by one who was authorized to receive passengers. We do not think this contention is a sound one. According to the undisputed evidence, Kitchen was permitted to ride on the train for the purpose of performing service for his em-' ployer, the -Chicago, Rock Island & Pacific Railway Company, for whom defendant company was then engaged in transporting railroad ties. He represented his employer, the shipper, and must be treated in the same light as if he, himself, was the shipper, and, as a part of the contract of carriage, was permitted to ride for the purpose of shipping his commodity. His relations with the defendant as a carrier were much the same as that of a shipper of cattle, riding on a drover’s pass, or as that of an express messenger or railway mail agent who is being transported by the carrier under contract with its employer. Under such circumstances, this court, and all other courts which have passed upon the question, so far as we are advised, have held that, while such a person is not, technically, -a passenger, the carrier owed him the same duty as if he were a passenger, that is to say, the highest degree of care consistent with the practical operation of the train which he accepts as: the means .and mode of transportation. Little Rock & Fort Smith Ry. Co. v. Miles, 40 Ark. 298; Fordyce v. Jackson, 56 Ark. 594; Voight v. B. & O. S. W. Ry. Co., 79 Fed. 561.”
• In 2 Hutchinson on Carriers, § 1018, it is said: “It seems that if the person who is injured by the negligence of the employees of the carrier is lawfully upon its conveyance, even though he is not strictly a passenger, he will be entitled, in the absence of a contract on his. part to the contrary, to the same care and diligence for his safety as one who is strictly a passenger.”
Nor does the fact, if it is a fact, that appellee was being transported in the ear of melons in violation of the Interstate Commerce Commission’s regulations, defeat his right to a recovery, nor is the carrier excused on that account from exercising the proper degree of care to appellee under the circumstances. In the case of Southern Pacific Company v. Mary R. Schuyler, 227 U. S. 601, the facts were that the plaintiff’s intestate was riding upon a pass on ian interstate trip> in violation of the Hepburn act of June 29, 1906, and it was there urged that plaintiff’s intestate was not a passenger, and the carrier ■owed no duty as such. But in discussing that.question, it was there said (to quote the syllabus) : “An employee in the railway mail service who, in good faith and with the consent of the carrier, accepts when off duty a free passage in interstate transportation, does not forfeit his right to the benefit of a rule of the local law which charges a carrier with the duty to exercise care for the safety of gratuitous passengers, because his. gratuitous carriage may have been forbidden by the Hepburn act of June 29, 1906, since that statute itself fixed the penalty for violations of its prohibitions, by declaring that the carrier and passenger shall, in such cases, be deemed guilty of a misdemeanor, punishable by fine.”
The court also gave, at the request of appellee, an instruction numbered 2, which read as follows:
“2. The court instructs the jury that if you find that the plaintiff was a passenger upon the defendant’s train, as above explained, and was injured without fault on his part, and when he had not assumed the risk by reason of the car in which he was riding colliding with other ears of the defendant upon its track, then in that event to avoid liability, the defendant must show by a preponderance of the evidence in the whole case, that the collision did not occur by reason of any negligence upon its part. ’ ’
It is urged that this instruction, as well as instruction numbered 1 heretofore set out, imposes upon appellant a higher degree of care than it was required to exercise under the laws of- Missouri, in the operation of freight trains carrying passengers, and that the instructions permitted a recovery to be had upon mere proof of injury, provided appellant failed to show that the collision did not occur as a result of one of the ordinary jerks or jars incident to the operation of freight trains carrying passengers.
In the case of Ray v. Railroad, 147 Mo. App. Rep. 332, the court said: ‘ ‘ The law govering the liability of railroad companies for an injury to a passenger on a freight train by oscillations of the train has been expounded in numerous decisions in this and other jurisdictions. A person who takes passage on that kind of train, assumes the risk of injury from such' jars and movements as are incident to its operation, if its parts are well constructed and in good repair, and it is properly operated on a safe track; but does not assume the risk of injury from faults in either of those matters, or perhaps kindred ones which an experienced railway man could enumerate, but we can not. ’ ’ And further it was there said: ‘ ‘ Taking into consideration the oscillations and jerks commonly and necessarily incident to the movement of a freight train, and that this train was getting under full speed, we hold the mere fact that plaintiff was thrown off by a jerk did not warrant the conclusion of defective track or train appliances, or negligent operation, in other words, the doctrine of res ipsa loquitur does not apply. This is the necessary result of the oases cited mfra, wherein it was held the evidence for the plaintiffs did not entitle them to a decision by the jury. ’ ’
An instruction in this case told the jury that there was no complaint of negligence on account of defective track, or train appliances, and that appellee predicated his right to recover solely upon the negligent operation of the train.
Under the laws of this State the presumption of neg-ligence upon the part of the carrier arises where the •proof shows that the party injured was a passenger upon any kind of train, and was injured by the operation of the train. JjBut it appears such is not the law in the State of Missouri, where the proof shows there was only such oscillations and jerks as are commonly .and necessarily incident to the movement of the freight train; as the proof must go further and show something in the shock of stopping, starting or running the train in the way of displacement of inanimate objects, or persons in' secure positions, as to bespeak careless operation, and appellee says as there was no such proof in the present ease, that there was no presumption of negligence and the instructions set out were therefore erroneous and prejudicial. ^On the question of burden of proof the lex fori governs, and the rule is stated in Minor on Conflict of Laws, page 486, as follows: “But if the rule prescribed by the lex delicti with respect to the defendant’s negligence is a mere rule of evidence, such as rules respecting the burden of proof, touching negligence, the lex fori will govern, not the lex delicti, in accordance with the general principle that rules of evidence reíate to the remedy, and like all matters of that character are regulated by the law of the situs of the remedy (lex fori). See, also, 2 Wharton on the Conflict of Laws, 1107.' The evidence offered by appellee was to the effect that the car upon which he was riding was switched against other cars at a rate of fifteen miles an hour, and that a number of melons were crushed and piled upon him, and as a result of this collision the mel ons were thrown away from the end of the car and a clear space of several feet was left, and the boards which had been securely fastened to keep the melons in place were torn loose. This evidence, if true, would warrant the jury in finding that appellee was injured as the result of a collision, 'and not through such impact of his car against another car, as 'might reasonably be expected to occur in the ordinary operation of freight trains.
The court gave several instructions defining the duty of carriers in the operation of freight trains, on which passengers were carried, and defining the risk of injury which the passenger assumes from the operation of such trains. An instruction .on this subject which was asked by appellant, and was numbered 4, read as follows:
“4. A railroad company, as a rule, can not be said to be negligent because there are occasional jars and jerks in the operation of freight trains. Though jars of great, unusual and unnecessary violence would be evidence of negligence on the part of employees operating the trains, jars are common to such trains and the passenger must guard against them, and not unnecessarily expose himself to danger from such jars.”
This was modified by the court and given as follows:
“4. A railroad company, as a rule, can not be said to be. negligent because there are occasional jars and jerks in the operation of freight trains. Though jars of great, unusual and unnecessary violence would be evidence of negligence on the part of employees operating the train.” Appellant complains of this modification.
In the case of Hedrick v. Missouri Pacific Ry. Co., 93 S. W. 268, in discussing the liability of a carrier for injuring a passenger riding in a caboose, it was said (to quote the syllabus): “A carrier was not liable for injuries to a passenger riding in a caboose, owing to the jar on the stopping of the train, where the jar was not sufficient to throw the passenger from his feet, and there was no evidence of any defect in the construction of the roadbed or train, or of any negligence in the management thereof. ’ ’ And further in this opinion, in discussing the risk assumed by tbe passenger, it was said: “It seems now to be well settled law here, as elsewhere, that where a railroad carries passengers for hire on its freight trains, it must exercise the same degree of care as is required in the operation of its regular passenger trains; the difference only being that the passenger submits himself to the inconvenience and danger necessarily attending that mode of conveyance.” Vide cases cited by Brace, P. J., in support of this proposition, 65 S. W. 1030. In that case this court .adopted the law as announced in Chicago & Alton Rd. Co. v. Arnol, 144 Ill. 261; 33 N. E. 204; 19 L. R. A. 313, as follows: “Persons taking passage upon freight' trains, or in a caboose or car attached to a freight train, can not expect or require the conveniences, or all of the safeguards against danger, that they may demand upon trains devoted to passenger service, and are accordingly held to have accepted the accommodation provided by the company, subject to all the ordinary inconveniences, delays, and hazards incident to such trains when made up and equipped in the ordinary manner of making up and equipping such trains, and managed with proper care and skill. * * ' * But, if the railway company consents to carry passengers for hire by such trains, the general rule of responsibility for their safe carriage is not otherwise relaxed. Prom the composition of such trains and the appliances necessarily used in their efficient operation, there can not in the nature. of things, be the same immunity from peril in traveling by freight trains, as there is by passenger trains; but the same degree of care can be exercised in the operation of each. The result in respect to the safety of the passenger may be wholly different, because of the inherent hazards incident to the operation of. one train and not to the other, and it is this hazard the passenger assumes in talcing a freig’ht train, and not the hazard and peril arising from negligence or want of proper care of those in charge of it. So long as there were dangers naturally incident to the running of freig’ht cars and a passenger car in the same train, the parties must have been presumed to have contracted in reference to them, and the plaintiff to have assumed them.”
It is urged on the part of appellant that the witness, .Doctor Bentley, who testified -as an expert witness on behalf of appellee was permitted to submit his judgment ¡and opinion for that of the jury as to the cause of appellee’s injury. Such evidence, of course, would be improper, and would call for a reversal o'f the case, if it had been permitted to be offered over appellant’s objection. Castanie v. Railroad Company, 249 Mo. 195. But we do not ■think that was permitted to be- done in the present case. The witness was asked the following hypothetical question : ‘ ‘ Q. I will ask you to state to the jury, if, previous to the 17th day of August, 1912, he had always been a strong man physically, and if, on that day, he was riding in a car that collided with other cars in a violent manner, hurling melons and planks upon him, the plank striking him, across the front of the knee, as indicated, and the melons and planks crushing and mashing him at the time, and that within a few. days he was-compelled to go to bed for a period of seven weeks; that during all of this time, the right leg pained him, paining him so severely at times that he was. unconscious, and that within three weeks this trembling condition in his leg set up, what would you conclude from that was the cause- of his present condition?”
Upon asking that question, the following colloquy took place:
Mr. Davidson: If the court please, I don’t think that is competent. I don’t think his question is competent, the hypothetical question that he places, that he has stated.
The Court: Let him answer.
The Witness: I think it would come from the injury.
Q. You think his injury now could be attributed to such an injury received at that time?
A. Yes, sir.
It thus appears that Doctor Bentley was informed in this hypothetical question as to the history of the case. No request was made that the evidence be excluded, and to answer this question the witness was not required to state that appellee’s present condition was the result of the particular injury. He was only requested to give his opinion as to the cause of his present condition, and if his answer wa« an improper one, no objection appears to have been made to it, and no request was made that it’ be excluded. It was not improper for the witness to state that in his opinion appellee’s present condition could be attributable to such an injury, as he claimed to have received, and it is apparent that this is the question which the witness was attempting to answer; and that there was no attempt to have him state that the collision .was responsible for appellee’s condition.
Various objections were made and exceptions saved to the action of the court in giving and refusing other instructions; but we consider it unnecessary to discuss these exceptions.
It is insisted that the suit be abated because appellee did not secure permission from the court in which the receivership was pending, to maintain this suit. But there was no request un the part of the receivers that they be made parties to this litigation, and the judgment of the court does not attempt to adjudicate their rights to the control of appellant’s properties. The motion which was filed was a mere suggestion to the court that a receiver had been appointed to take charge of appellant’s railroad properties, and this suggestion contained the prayer that appellee be not permitted to proceed with the prosecution of Ms suit until this permission should have been obtained and the receiver made a party. The injury occurred and tMs suit was pending for trial prior to the appointment of the receivers, and there was no attempt to fix upon these receivers, as such, any liability for appellee’s injury. This judgment can not and does not affect the rig’ht of the receivers to the control and poscession of appellant’s property, and wMle appellee has the statutory lien upon appellant’s properties to secure the enforcement of tMs judgment, this lien and the right - to its enforcement is subject to the receivership, and no action can be lawfully taken in its enforcement, which, in any way interferes with the said receivership.
It is lastly insisted that the verdict which was for eighteen thousand dollars, is excessive and such is the case if appellant’s witnesses are to be believed. Expert, witnesses have testified on 'appellant’s behalf that there was no necessary connection between the injury inflicted upon appellee at the time of the collision and his present condition. Indeed, these witnesses testified that appellee' was malingering. But the evidence upon the part of appellee is in sharp conflict with this evidence, and the jury has passed upon this conflict. According to the evidence of Doctors Bentley and Barchman, appellee’s condition is very serious, and he will not improve. According to them the injury to the sciatic nerves has produced a nervous condition which results in appellee’s leg being constantly in violent motion and entirely beyond his control, so that there is a never ceasing trembling of the limb, which interferes with his rest and sleep, and from which he is constantly suffering pain. And that this condition is a permanent one without hope of relief. There was proof that appellee, who was fifty-four years old, had previously been in good health, and had an earning capacity of $1,500 per year; but that he had wholly lost his earning capacity, an'd, upon the contrary, had become a helpless cripple. It was the province of the jury to consider this evidence 'and pass upon its truthfulness, and they have evidently believed this evidence, and, having done so, we can not say that the verdict is excessive, and the judgment of the court below will therefore be affirmed. | [
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Hughes, J.
(after stating the facts.) It appears, from the statement of the case, that the failure of the plaintiff, Darling, to appear at the term of the court when the . judgment of dismissal was rendered was caused by an unavoidable casualty, and that the nonattendance of himself and counsel was excusable under the circumstances.
In Tidwell v. Witherspoon, 18 Fla. 282, it was held that “the neglect of an attorney to prepare and file a plea, caused by his being summoned to a distant place on account of the serious illness of his wife, even though he might have made arrangements with another attorney to prepare it, or might have notified his client, yet did not do so because of his anxiety for his family, is not such neglect as should operate to the prejudice of his client.” And in this case the judgment by default was opened up. In McArthur v. Slauson, 60 Wis. 293, it was held that the refusal of the trial court to open a judgment obtained in the unavoidable absence of the defendant’s attorney, for the purpose of allowing a defense, was error. See also Snell v. Iowa Homestead Co. 67 Ia. 405; Triplett v. Scott, 5 Bush, 81. In Nye v. Swan, 42 Minn. 243, a default by reason of the sickness of an attorney was opened to allow a defense. The statute of Minnesota made this a matter of right under the circumstances.
Under the circumstances of the case at bar, there being no contention that Darling’s case lacked merit, we think no laches was imputable to him, and the sickness of his attorney’s wife was an unavoidable casualty, excusing his non-attendance at the court.
We therefore reverse the judgment of the circuit court, with directions to re-instate the cause, and revive it in the name of Darling’s administrator. | [
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Riddick, J.
The facts in this case are as follows : Appellant, R. J. Hollis, a married man, the head of a family, and the owner of a homestead, was convicted of murder in the second degree in the Marion circuit court, and a judg'ment rendered against him for imprisonment and the costs of prosecution. After his conviction, he broke jail and escaped. An execution on said judgment for costs, amounting to about eight hundred dollars, was issued against him. He was a fugitive from justice—his whereabouts unknown—but his family continued to remain and occupy the homestead. In the absence of her husband, his wife filed a schedule, claiming the homestead and some personal property as exempt from sale under execution. The clerk of the court issued a supersedeas staying the execution as to the homestead. On motion of the prosecuting attorney this supersedeas was quashed by the court, and the home stead ordered sold. Prom this order an appeal was taken.
The question for this court to determine is whether the homestead is subject to sale under such circumstances. In other words, can the wife claim a homestead for herself and children after her husband has become a fugitive from justice, and, is the homestead exempt from the lien of the State for costs in a criminal prosecution ?
In the case of Harbison v. Vaughan, 42 Ark. 541, this court said that “ the protection of the family from dependence and want is the object of all homestead laws;” that, ‘‘apart from his family, the debtor is entitled to no special consideration.” As the protection of the family is the object of the homestead law, so it has been held that desertion of the family by the husband, still leaving the family occupying the homestead, is not an abandonment of the homestead. Moore v. Dunning, 81 American Decisions, 301 and cases cited in note to same. This ruling is supported by sound reason ; for to refuse the protection of the homestead to the wife and children when the husband has abandoned them would be to deprive them of it at a time they needed it most, and would defeat the beneficent purpose of the homestead law. In this State, under the act of 1887, the wife can claim the homestead as exempt when the husband neglects or refuses to do so.
As to the question whether the homestead is subject to the lien of the State for costs in a criminal prosecution, we think there is little room for doubt. The constitution expressly declares that it shall not be subject to the lien of any judgment or decree of any court or to sale under execution or other process thereon, except such as may be rendered for the purchase money, or for specific liens, laborer’s or mechanic’s liens for improving the same, or for taxes, or against executors, administrators, guardians, receivers, attorneys for mon eys collected by them and other trustees of an express-trust for moneys due from them in their fiduciary capacity.” Sec. 3 of art. 9, constitution of 1874.
The lien of the State for costs in a criminal prosecution is not a specific lien, nor does it come within the meaning of either of the other exceptions named. Homestead laws are intended for the protection of the families of those who are poor or unfortunate, and, in cases of this kind, there are no reasons why the State should be exempt from their operation. The supreme court of Illinois, in holding that the homestead could not be sold to satisfy a judgment against the husband for a fine and the costs in a criminal prosecution, said “that the object, of these laws was to furnish a shelter for the wife and children which could not be taken away or lost by the act of the husband alone,” and “that the State must submit to the same exemptions of a defendant’s property that it imposes upon its citizens.” Loomis v. Gerson, 62 Ill. 11.
The Attorney General, with becoming candor, has-furnished us with this and other authorities, which conclusively show that a homestead is not subject to sale under an execution to satisfy a judgment for a fine or costs in a criminal prosecution. State v. Williford, 36 Ark. 155; Massie v. Enyart, 33 Ark. 688; Fink v. O'Neil, 106 U. S. 272; Commonwealth v. Lay, 12 Bush. 283; Smyth on Homesteads and Exemptions, sec. 185 Thompson on Homesteads, sec. 385.
We therefore conclude that the circuit court erred in quashing the supersedeas issued by the clerk, and its-judgment is therefore reversed, and the motion to quash, dismissed. | [
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Paul Ward, Associate Justice.
This is a dispute between an association known as Little Rock A. A. Group No. 1 (hereafter referred to as No. 1) and an association known as Arkansas County A. A. No. 2 (hereafter referred to as No. 2) over a savings account in the amount of $2,399.80 and a checking account of $33.57 in the First National Bank of DeWitt to the credit of No. 1.
No. 1 was organized, but never incorporated, some twenty years ago in Little Rock where its members held regular weekly meetings. From time to time the membership of the association varied between seven and twenty. Approximately eight or nine years ago a few people (five to seven) from Arkansas County joined No. 1 and attended the weekly meetings. It was the usual thing for each member to donate one dollar each week whether he attended or not. This money was turned over to the person designated as treasurer for deposit. The money was used for various purposes, such as: to pay necessary expenses incurred, to pay for association luncheons once in a while and to make donations to worthy causes. The primary purpose of the association was to help members with problems arising from the use of alcoholic beverages. The association had a chairman, a secretary and a treasurer.
On October 30, 1958 at a regular meeting of No. 1 the members from Arkansas County, without any semblance of dissatisfaction or ill will, announced their decision to withdraw from No. 1, as a matter of convenience, and form an association in their own county. Following this No. 2 was organized. At this time Adolph Renschler of Arkansas County was the only selected treasurer of No. 1. On January 23, 1959 he wrote two checks on the DeWitt bank for one-half of the funds credited to No. 1, and mailed same to that association. At the same time Renschler wrote a check for the rest of the money on deposit to the credit of No. 1 and delivered it to No. 2.
Upon refusal of No. 2 to deliver all the money to No. 1, this suit was instituted against Adolph Renschler by the chairman of No. 1 for the use and benefit of the association to compel delivery. The complainant alleges he is duly authorized by and acting for the association. An answer was filed by appellant in which he admitted he was the duly qualified and elected treasurer of No. 1 when the checks were written and both No. 1 and No. 2 had cashed said checks. He also pleaded estoppel. Testimony was taken, and the trial court made extensive findings on two points: One, No. 2 had no right to the money, and; Two, there was no accord and satisfaction resulting from the fact that No. 1 cashed the check. Based on these findings the trial court entered a decree ordering No. 2 to deliver the money to No. 1 within ten days, otherwise a money judgment “is granted . . . against the defendant, Adolph Renschler”, personally.
The two points relied on by appellant for a reversal are the same two points mentioned above upon which the trial court based its decree.
One. We think the trial court was correct in holding appellant had no right to any of the money deposited in the DeWitt bank to the credit of No. 1. Without attempting to decide Avhether the members of No. 2 have any moral or legal right to a portion of the money deposited to the credit of No. 1 in the DeWitt bank, it is clear that appellant had no right or authority to make an arbitrary division of the same between the two groups. He admits that he was the duly qualified and elected treasurer of No. 1, and, as such, he held custody of the money as trustee. The money did not belong to him personally. There is no contention by appellant that the members of No. 1 authorized or directed him to divide the money. Neither does appellant contend he was so authorized or directed by the members of No. 2, and they are not parties to this suit.
Two. Again we agree with the chancellor that the facts in this case do not support accord and satisfaction. In fact, we are of the opinion that the rule of accord and satisfaction has no applicability to a situation of this kind. That rule is generally applied where the relation of debtor and creditor exists or where one person has a valid claim against another. See: Fleming v. Cooper, 225 Ark. 634, 284 S. W. 2d 857, and DeSoto Life Insurance Company v. Jeffett, 210 Ark. 371, 196 S. W. 2d 243. Moreover, the chancellor, after setting forth the testimony in detail, found that the facts did not support appellant’s claim of estoppel or accord and satisfaction and we think the chancellor’s finding is supported by the weight of the evidence. It is true that the members of Group No. 1 received and deposited the check for one-half of the Group’s funds but this action was consistent with their claim to being owner of all the funds since there was nothing on the check to indicate it was meant to he in full settlement. The testimony in the form of letters and conversations clearly shows that the members of No. 1 never at any time agreed to settle with appellant for one-half of the funds.
The decree of the trial court is accordingly affirmed.
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George Rose Smith, J.
Efford Freeman, Jr., an employee of Chessie’s Garage, was accidentally killed on October 3, 1959. The appellant had issued a policy of workmen’s compensation insurance to the employer and is prima facie liable for the death claim. The appellant contends, however, that a similar policy issued earlier by the appellee had not been effectively canceled before the accident and that the two insurance carriers should therefore be held jointly liable for the claim. Both the commission and the circuit court found that the appellee ’s policy had been canceled, so that the appellant was solely liable.
All the facts are stipulated. On May 8, 1959, the appellee’s policy, effective for one year, was issued to the employer hy Young Insurance Agency, at Osceola. On September 9, 1959, the same agency issued the appellant’s policy to the employer, also effective for one year from its date of issue. On the latter date, September 9, Young and the employer signed a printed form reciting that the first policy was canceled, effective September 9. On that date Young also sent a request for cancellation to the appellee’s general agent in Little Rock. Young did not at any time inform the general agent that the canceled policy had been replaced by a policy issued by another insurance carrier, the appellant.
On September 18 the general agent asked Young for a cancellation notice upon a different printed form and also informed Young that a fifteen-day notice of cancellation had to be given to the workmen’s compensation commission. On September 19 Young and the employer executed the new form, again reciting that the cancellation was effective September 9. On September 22 the general agent, having received the new form, issued a notice of cancellation to the commission, stating that the policy “has. been returned to us for cancellation as of October 7, 1959.” The accident occurred on October 3, which was before the cancellation date specified in the general agent’s letter to the commission.
The question turns upon this language in the statute: “No contract or policy of insurance issued by a carrier under this act shall be canceled prior to the date specified in such contract or policy for its expiration until at least fifteen days have elapsed after a notice of cancellation has been sent to the Commission and to the employer, provided however, that if the employer procures other insurance within the fifteen day period, the effective date of the new policy shall be the cancellation date of the old policy.” Ark. Stats. 1947, § 81-1338 (b).
In view of the proviso in the statute we think it clear that the commission’s ruling was correct. The fif teen-day notice to the commission may he important in some instances, hut it does not control the effective date of cancellation when the employer obtains other insurance within the fifteen days. In that case the effective date of the new policy is the cancellation date of the old one. Here the required notice to the commission was given on September 22. If the employer had procured other insurance on that date or within the next fifteen days the cancellation would have then become immediately effective, despite the recital in the notice that the policy was to be cancelled as of October 7 — fifteen days later. It happened, however, that when the notice was given the employer had already received a replacement policy from another solvent insurance carrier. In these circumstances there is no good reason for saying that the cancellation did not take effect at least as soon as the notice was given.
We recognize the rule relied upon by the appellant, that the statute is to be construed strictly to the end that employees will not be left without the protection of insurance coverage. But the rule of strict construction should not be carried beyond the reason for its existence. The legislature was plainly concerned with- the protection of employees, but it still permitted an accelerated cancellation date when other insurance had been procured. Double coverage is not contemplated. The statute contains only two substantive requirements, that notice be given and that other insurance be procured. Inasmuch as both requirements had been met on September 22 there was then no longer any reason for deferring the effective date of cancellation.
Affirmed | [
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Carleton Harris, Chief Justice.
This is a boundary line dispute. A. B. Smith, Jr. became the owner of a certain forty acres in Saline County by conveyance from his father in March, 1927. A country road, at one time used by the community, was located between this property and that of Smith’s neighbor to the west. Smith built a fence eight or ten feet east of the road. In February, 1958, appellees, H. O. Underwood and wife, acquired title by purchase, of two acres of land lying immediately west of appellant’s land, and thereafter, this dispute arose as to the proper boundary line. Smith instituted suit against appellees, alleging his purchase in 1927, and asserting that he had maintained a fence around the lands purchased since that time; that his possession had been adverse to all persons, and that he claimed all lands which had been under fence. The complaint further alleged that this fence had been cut by appellees, and that the latter had constructed a fence of their own on appellant’s land. The Underwoods denied the allegations, and asserted that they were record owners of the property in dispute, and that Smith had agreed to the erection of the fence which they had placed on the property. On trial, Smith’s complaint was dismissed, and the court held that the east property line was the line as marked by the fence erected by appellees. From such decree, comes this appeal.
We think the evidence establishes Smith’s claim of adverse possession to that portion of the property east of the fence that he had constructed. According to the testimony, he had built a net wire fence with barbed wire on top, with much of it attached to trees. Smith testified that he kept cattle on his land; that his fence was sufficient to hold the cattle on his premises; that he maintained the fence as repairs were needed. Appellant, 60 years of age, stated that his entire forty acres was under fence; the land had been fenced as long as he could remember, and certainly since 1932. His wife testified that to her personal knowledge, the fence had been in its location for twenty years. Several relatives of appellant likewise verified the existence of the fence for far more than seven years, and two neighbors, Lexie Jenkins and Alma G-antz, stated that they were familiar with the location of the Smith fence for periods respectively of thirteen years and twenty-two years. Various photographs, introduced as exhibits, show portions of the fence in question. There is really no contention that the fence was not in existence, though R. G. Anderson, son-in-law of the Underwoods, testified that he would not term it a fence, “It was a bunch of wire wrapped around trees that cows would walk over.” Anderson had entered into a contract to purchase the Underwood property. A survey of the property was arranged, though it is not clear whether this arrangement was made by Anderson, or another neighbor named Heath; however, appellant had nothing to do with obtaining the services of the surveyor. It would appear that the question of the proper line between Smith and Underwood arose after a survey involving the Heath and Underwood property. At any rate, after the survey relative to the boundary line between Smith and Underwood had been made, Smith was notified of the result by Anderson. L. D. Hutchingson, Saline County surveyor, who had made the survey, was contacted by Anderson, and Smith and Anderson then went to the location for the purpose of viewing the line as established by the surveyor. Stakes were set out in accordance with the survey. Anderson testified that Smith held some of the stakes while he (Anderson) drove them into the ground, and that about a month and a half later, appellant agreed that Anderson could erect a new fence in conformity with the surveyor’s findings. On the basis of this testimony, appellees vigorously contend that the parties agreed upon a boundary line; however, Anderson admitted that on the occasion when Hutchingson was pointing out his location of the boundary line, Smith complained that the survey was incorrect. He also admitted that Smith complained to him after the new fence had been built. We think this testimony falls short of establishing an agreed boundary line. Smith had no part in arranging for the survey, and was not present when same was made. Admittedly, he complained about the location of the stakes, though he said he would ' ‘ abide by what the law did. ’ ’ As previously set out, we think it was clearly established that a fence, belonging to Smith, had been in existence for a long period of time prior to the Underwoods’ purchase of their property, and appellant had consistently claimed to this fence line. It is quite difficult to determine from the testimony and exhibits appearing in the record just how far east of the Smith fence the Hutchingson line is located, but we hold that irrespective of whether the Hutchingson line was in conformity with the legal description of the properties, appellant is entitled to all that portion of the property here in litigation which lies east of the old fence erected by Smith, having established his right to same by adverse possession. The decree is therefore reversed, and the canse remanded with directions to render a decree not inconsistent with this opinion.
The witness had made a payment, but subsequently abandoned his right to purchase the lands. | [
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George Bose Smith, J.
In 1959 there was a collision between a car owned by T. L. Jacobs and a motorcycle being ridden by McAllen Wolfe, a boy of fifteen. Jacobs died on April 11, 1960, from causes not attributed to the accident. On April 21 the appellee was appointed executrix of his will. Her statutory notice to creditors was first published on April 27. See Ark. Stats. 1947, § 62-2111.
On June 2, 1960, the executrix brought this action in the Benton circuit court against the boy and his parents, seeking to recover the damage to Jacobs’ car and damages for verbal abuse suffered by Jacobs at the scene of the collision. By cross complaint the defendants sought compensation for young Wolfe’s injuries, his medical expense, and the property damage to the motorcycle. More than six months after the first publication of the executrix’s notice to creditors the trial court dismissed the cross complaint with prejudice, on the ground that a copy thereof had not been filed with the probate court. Ark. Stats., § 62-2602. The correctness of that dismissal is the principal issue on appeal.
The appellants contend that the filing requirement in question applies only to an original complaint against a personal representative and not to a cross complaint against such a fiduciary. We are unable to agree with that view.
In analyzing the statutes our starting point must be § 110 of the Probate Code, which sweepingly declares that, except in two instances, all claims against a decedent’s estate, “whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise,” shall be forever barred unless presented to the personal representative or filed in court within six months after the first publication of the notice to creditors. Ark. Stats., § 62-2601. This language unmistakably expresses the legislative intention to require the assertion of all claims, including those sounding in tort, within the six-month period.
The appellants made no attempt to present to the executrix, within the six months, a verified claim conforming to Ark. Stats., § 62-2603. Their demand is therefore barred by § 110 of the Code unless the bare filing of a cross complaint in the circuit court, without a copy thereof being filed in the probate court, brings the claim within the exception set out in § 111 of the Code.
The pertinent parts of § 111, which we have broken down into four clauses, read as follows: “ [Clause 1] The provisions of Section 110 shall not preclude the commencement or continuance of separate actions against the personal representative as such for the debts and other liabilities of the decedent, if commenced or revived within the periods stated in Section 110. [Clause 5] Any action pending against any person at the time of his death, which survives against the personal representative, shall be considered a claim duly filed against the estate from the time such action is revived, and [Clause 3] any action commenced against a personal representative as such after the death of the decedent shall be considered a claim duly filed against the estate from the time such action is commenced; [Clause 4] provided that, within the time required by Section 110 for filing claims against the estate, the plaintiff in such action files with the Probate Court in which the estate is being administered a copy of the petition for revivor or of the complaint, or a statement signed by the plaintiff or his attorney setting forth a description of the nature of the action, the claim or demand therein involved, the parties to the action, and the court in which the action is pending.” Ark. Stats., § 62-2602.
Clause 1 states in general language that § 110 of the Code does not prohibit a separate action against a personal representative, but the action must be commenced or revived within the six months allowed for the filing of claims. Clause 2 permits the revivor of actions pending at the decedent’s death and is not pertinent here.
Clause 3 provides that “any action” commenced against a personal representative shall be considered a claim against the estate from the time the action is commenced. It is, we think, of the utmost importance to realize that the appellants must rely upon Clause 3 to have any standing in the case. That is, since the appellants did not present a verified claim to the executrix they must take the position that the filing of their cross complaint in the circuit court constituted the commencement of an action.
. The appellants must therefore concede that in Clause 3 “any action” includes a cross complaint. In the next breath the legislature directed in Clause 4 that the plaintiff “in such action” file with the probate court a copy of the complaint or a descriptive statement of the action. In construing the statute we cannot avoid the logical and persuasive conclusion that if the reference in Clause 3 to any action includes a cross complaint then the identical meaning must be attributed to the reference in Clause 4 to any such action. The former is the antecedent of the latter. It follows that Clause 4 requires that a copy of a cross complaint be filed with the probate court. The failure to comply with this clause is a bar to the claim. Turner v. Meek, 225 Ark. 744, 284 S. W. 2d 848.
To avoid this construction of the statute the appellants insist that the word “plaintiff” in Clause 4 does not include a cross complainant. This question is one of legislative intent. It has frequently been held that a reference to the plaintiff embraces a cross-plaintiff as well if the wording of the statute as a whole indicates that to be the proper interpretation of the law. Fox v. Pinson, 182 Ark. 936, 34 S. W. 2d 459, 74 A. L. R. 583; Allers v. Beverly Hills Laundry, 98 Calif. App. 580, 277 P. 337; Kriv v. Northwestern Securities Co., 237 Iowa 1189, 24 N. W. 2d 751; Berger v. Van Doorn, 57 N. Y. S. 2d 434. Inasmuch as the action referred to in Clause 3 includes a cross-action it cannot he doubted that the plaintiff referred to in Clause 4 also includes a cross-plaintiff. The need for informing the probate court of the pendency of the action is the same in both instances.
As a secondary argument it is insisted that the executrix, by filing the suit and taking routine steps in its prosecution, waived the statutory requirement that a copy of the cross complaint be filed with the probate court. That holding would nullify the statute as far as cross complaints are concerned, for the need for such a pleading never arises until the other party has first brought the suit. Hence the waiver would be unavoidable if the mere filing of suit excused compliance with the statute.
McAllen Wolfe complains that his guardian ad litem was not appointed in strict compliance with the statute. This is immaterial. The question is whether his claim against the Jacobs estate has been presented within the time allowed by law. There is no savings clause in favor of infants in the statute of nonclaim, Stewart v. Thomasson, 94 Ark. 60, 126 S. W. 86, doubtless because such an exception might often require that the estate of a deceased person be kept open for many years, with hardship to the widow and heirs. In the absence of a savings clause it was incumbent upon McAllen to present his claim in compliance with the statute. The asserted procedural irregularity could not affect his affirmative duty of establishing his claim according to law.
A final contention is that the trial court erred in overruling the appellants demurrer to that part of the executrix’s complaint that sought damages for conduct in the nature of a defamation. It is said that such a cause of action would not survive the death of Jacobs. Ark. Stats., § 27-902. This point is now academic, because the executrix elected to take a voluntary nonsuit after the dismissal of the cross complaint. It is possible that the complaint will never be filed again. Furthermore, even if we should hold that the demurrer ought to have been sustained the executrix would be entitled to an opportunity to amend her complaint. That opportunity cannot be afforded, since no action is pending.
Affirmed. | [
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Paul Ward, Associate Justice.
We are bere concerned with, the allotment of a widow’s dower and with the jurisdiction of the Probate Court to construe a will.
Ben F. Harrison of Hot Springs died testate in December, 1959 survived by his widow, Myrtle Harrison (appellant), a son, Ben J. Harrison, and a daughter, Natalie (Harrison) Gleaton, both appellees. His personal property was valued at about $16,000 and his real property was valued at about $80,000. That portion of his real estate which is involved here is a two-story business building valued at about $72,000, producing $1,425 per month in rentals. Also involved are two $5,000 U. S. Bonds not listed in the inventory.
The deceased’s will left his property as set out below:
1. Widow: 1/3 of all personal property, and 1/3 of the net income from the real property during her lifetime.
2. Son and daughter each: 1/3 of all personal property; 1/3 of the net income of real property for and during the lifetime of the widow.
3. It was provided that upon the death of the widow 1/3 of real estate went to each of the following: his son, his daughter, and the Shrine Crippled Children’s Home, Shreveport, Louisiana.
4. It was further provided: (a) The Arkansas National Bank of Hot Springs would be executor of his estate if his wife predeceased him, or (b) If he predeceased his wife, said bank would be Trustee with power “to take complete control of my real property and to manage said property for the best interest of my estate,” with power to mortgage or sell the real estate if it be for the preservation and benefit of the estate.
The will was duly ordered to be admitted to probate and record on December 14, 1959. On April 8, 1960 the widow (appellant) filed her election to take against the will, i. e.: “to take from the estate of Ben F. Harrison that property which I would have received if Ben F. Harrison had died without leaving a will.”
On July 14, 1960 appellant filed a Petition of Allotment of Dower, asking that “dower be allotted to her in the above described real estate,” referring to the said two-story building. On November 2, 1960 she amended her petition to ask that the ‘ ‘ executor be directed to rent the real estate until further orders of the court, in the manner directed by tbe court and that a third of the net rents be paid to Mrs. Myrtle Harrison’.”
On July 23, 1960 Ben J. Harrison (the son) filed an answer in which he questioned the jurisdiction of the Probate Court to allot appellant an undivided 1/3 interest for life in the building. The prayer was that the property be sold and dower allotted out of the proceeds as provided by law. In an Amended Answer it was alleged that the real estate consisted of commercial rental units in one building, indivisible, and not susceptible to dower allotment under the provisions of Ark. Stats. §§ 62-711, 62-713 and 62-716, except with great prejudice to the widow and remaindermen. The prayer was that the property be sold free of dower, and that dower be allotted out of the proceeds of such sale as provided by law.
On October 3, 1960 the bank (as executor) and the son filed a Petition to Construe the Will in which they asked the court to construe the will to determine if, by reason of appellant’s renunciation, the interests of the remaindermen have been accelerated so that the bank can proceed as Executor (and not as Trustee) to file a Pinal Account and be relieved of further services, or to file in Chancery to have Trusteeship perfected.
On March 8, 1961 the Probate Court considered the foregoing pleadings without hearing testimony and made the following findings:
(a) Since the widow has elected against the will her interest in her husband’s real estate is the same as if no will existed, and the real property is vested, subject to the widow’s dower, in the remaindermen, their estates having accelerated by virtue of the widow’s election.
(b) The “widow is entitled to a one-third interest for life in all real estate owned by Ben P. Harrison at the time of his death,” but the widow is not entitled to dower in the manner requested in her petition.
(c) The decree was in accordance with the above finding, stating that the remaindermen (the son, the daughter, and the children’s home) “are entitled to enter into the enjoyment of their estates subject to the satisfaction of the widow’s dower interest”; and that the widow is “entitled to one-third of the net income from said real property until her dower interest is satisfied.” The court retained jurisdiction to effectuate its orders.
We have set out the foregoing pleadings and orders to shed all possible light on the issues here involved. To sum up the situation, as we see it, appellant still wants the same thing (respecting real estate) that she was given under the will. That is, she asked to be given one-third of the net rentals from the building as long as she lives. Appellees want to sell the building and satisfy appellant’s dower rights out of the proceeds. The trial court agreed with appellees, but provided that appellant should receive one-third of the net rentals until and if the building is sold.
As before stated no testimony was taken, but from the pleadings we are convinced that the building cannot be divided so as to set apart a separate portion for dower. As we view the findings of the trial court, it was likewise convinced. Under these circumstances, it is our opinion that this case is controlled by Ark. Stats. § 62-716 which reads:
“Rental of lands where indivisible. In cases where lands [or] tenements will not admit of division, the court, being satisfied of that fact, or on the report of the commissioners to that effect, shall order that such tenements or lands be rented out, and that one-third part of the proceeds be paid to such widow, in lieu of her dower in such lands [and] tenements.”
To the extent that the trial court failed to follow the provisions of the above section it was in error.
The trial court did have jurisdiction, under Ark. Stats. § 60-416, to construe the will. When appellant elected to take against the will that posed the question of whether such action accelerated the vesting of the estates of the remaindermen which had to be resolved. In onr opinion the trial court correctly found that the estates did vest the same as if the widow had died, subject, of course, to the dower rights of appellant.
U. S. Bonds. Decedent left two $5,000 U. S. H. bonds: one bond was issued to deceased payable on death to Natalie Harrison Gleaton, and the other bond was likewise issued to Ben John Harrison. It is our opinion that the trial court correctly held that these bonds belong to the persons above named, and that the bond never became a part of decedent’s estate. This, of course, means that appellant has no dower interest in the bonds. The question of the ownership of government bonds under various circumstances has been the subject of much litigation in this and other states.
It seems that ownership of bonds, issued as these were, has been settled in this and other jurisdiction in accord with the decision of the trial court in this case. This same issue was before this Court in Myers v. Hardin, Administrator, 208 Ark. 505, 186 S. W. 2d 925. It was there stated:
“The power of the Federal Government to issue United States savings bonds and to promulgate regulations governing their ownership, transfer and payment, is, we think, unquestioned.”
In that case the Court, in holding that the bond belonged to the named payee, said:
“ It is our view in the circumstances here, and we so hold, that all of these bonds, with the exception of all those wherein the named beneficiary predeceased the testatrix, became the absolute property of the said beneficiary named, immediately upon the testatrix’s death. . . .”
To the same effect is our decision in the case of Roman v. Smith, 228 Ark. 833, 314 S. W. 2d 225. In both cases the bonds were issued in the same manner as in the case under consideration. For like decisions in other jurisdictions see: In re Kalina’s Will, 184 Misc. 367, 53 N. Y. S. 2d 775; Superat v. Dylawski, 196 Misc. 707, 93 N. Y. S. 2d 40, and H. H. Myers v. Laird, et al., 230 Miss. 675, 93 So. 2d 828.
For the error heretofore indicated the order of the trial court is reversed and remanded with directions to enter an order consistent with this opinion. In all other matters the order of the trial court is affirmed. | [
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Wood, J.
The appellant was jointly indicted with
t . Jack Gill, m the Union circuit court, for the crime of murder in the first degree. The indictment is in two counts, the first charging appellant as principal with Jack Gill, and the second charging him as accessory before the fact to the murder by Jack Gill. It is permissible to charge one as principal and as accessory before the fact, in the same indictment. Lay v. State, 42 Ark. 105; Thompson v. Com. 1 Met. (Ky.) 13; 2 Bishi Cr. Pr. sec. 7. The court did not err in overruling the ■demurrer, nor in refusing to require the State to elect, since the second count was only a different mode of charging the same offense. Lay v. State, supra.
The appellant was tried and convicted of murder in the second degree. The jury found him guilty as principal.
We find no error prejudicial to appellant in the first, second, third, fourth, fifth, sixth, seventh, eighth and ninth instructions given at the request of the State. Of. those relating to murder in second degree and manslaughter, the appellant cannot complain, since the deceased was killed by some one lying in wait. Mans. Dig. sec. 1521.
The tenth and sixteenth are incomplete, and, taken alone, would be misleading, in not declaring the extent to which the testimony of an accomplice must be corroborated in order to justify conviction. But the necessary supplement to these is found in the fourth given at the request of appellant, which is a correct enunciation of the law. Vaughan v. State, 58 Ark. 353, and cases cited ; Mans. Dig. sec. 2259.
The court might very well have refused the eleventh, twelfth and thirteenth given at the instance of the State, because there is nothing in this record to indicate that the State was seeking conviction upon circumstantial evidence alone. Vaughan v. State, 58 Ark. supra. The giving of them, however, can not be said to be error, they are correct, since there was circumstantial as well as direct evidence in the case. The eleventh is correct.
The twelfth tells the jury, “If the facts and circumstances proved by the preponderance of evidence are such as to satisfy the jury beyond a reasonable doubt, then such evidence is entitled to the same weight as direct or positive testimony.” This was error. It would allow conviction in criminal cases upon a preponderance of the evidence. The guilt or innocence of the prisoner, in cases depending on circumstantial evidence, is always reached by a process of inference or presumption from certain facts proved by direct evidence. 1 Greenleaf, Ev. p. 22, note 1. If these facts, which form the basis of the inference of guilt, are only to be proved by a-preponderance of the evidence, how can it be said that the prisoner’s guilt has not been established by a preponderance? The foundation being unsound, the superstructure is necessarily incomplete. So that the vice of the first part is not removed by the latter part, which says, “such as to satisfy the jury beyond a reasonable doubt,” and “that the evidence must be of such a character as to exclude every reasonable hypothesis, other than that the defendant is guilty.” The jury might believe facts proved by a preponderance of evidence, and from these, so proved, have no reasonable doubt of the defendant’s guilt, yet they might not believe that the facts themselves, from which they had inferred guilt, had been established beyond a reasonable doubt. The facts themselves, from which the inference of guilt is drawn, must be proved beyond a reasonable doubt. 1 Greenleaf, E)v. p. 22 note 1; People v. Alt Chung, 54 Cal. 398; Com. v. Doherty, 137 Mass. 245. The instruction declares the law, with the words “by the preponderance of evidence” omitted.
Since there is no difference in the kind of probative force required, whether the case be one depending upon positive or circumstantial evidence, the thirteenth was improper and unnecessary, though we cannot say, in view of the other instuctions, that it was prejudicial.
The fourteenth told the jury that the fact “that Will McGough was heretofore jointly charged and indicted with the defendant for the alleged murder of Simon P. Sherman, and that the State, by its prosecuting attorney, and leave of the court, have dismissed the indictment as to him, is not to be taken into consideration by the jury in determining the guilt or innocence of defendant.” Will McGough was an accomplice. He says he was indicted with Jack and Jim Gill for the murder of Sherman; that he made the confession in the case because he believed he would be turned loose if he made the statements testified to by him. In view of this proof, this part of the fourteenth instruction was erroneous aud prejudicial. McGough was offered by the State as the only eye-witness to the transaction. His testimony was very material, and very damaging to the accused. While he was an accomplice, and stood discredited by the law, to the extent that a conviction could not be had upon his uncorroborated testimony, yet his credibility was with the jury; and if they believed him, and found his testimony corroborated, as the law requires, the effect was necessarily most detrimental to appellant. Therefore, the jury should have been allowed to consider any fact throwing light on the credibility of this witness. How strongly he was actuated to testify for the State by the hope of having the case against him dismissed appears from his own statement. The court tells the jury not to consider the very fact which this witness says he turned State’s evidence to attain. True, the court, in an instruction as to the credibility of witnesses, tells the jury they are to consider the interest or bias of any witness. But this is rather in conflict with the one under consideration, which tells them this particular interest in having the case against him dismissed is not to be considered, or rather, which is to the same effect, that the fact that it was done is not to be considered. The latter part of the instruction is not objectionable.
The latter part of the fifteenth as to accessory after the fact was abstract, but not prejudicial.
The appellant offered to prove by Georgia Gill, wife of Mathew Gill, among other things, that appellant was not present when the alleged crime was committed. The court held the witness incompetent. Mathew Gill, it appears, was indicted for the same offense, as accessory before the fact, but in a separate indictment. The bill of exceptions does not show who was charged as principal. It devolves upon the party making the objection to show the alleged incompetency of a witness. Wharton’s Cr. Ev. sec. 358. To reu der the wife of Mathew Gill incompetent to testify on behalf of appellant, it was necessary for the State to show that Jim Gill was charged as principal in the indictment with Mathew, or that a conspiracy was formed on the part of Mathew and Jim to murder Simon Sherman, and that the testimony of the wife of Mathew in Jim’s case would tend to affect the interest of her husband on his trial. “Wherever a defendant is incompetent to testify for or against a co-defendant, then the husband or wife of such person is to the same extent incompetent.” Wharton’s Cr. E}v. sec. 391. “But when the grounds of defense are several and distinct, and in no way dependent on each other, no reason is perceived why the wife of one defendant should not be admitted as a witness for another.” 1 Greenleaf, sec. 335. In Carr v. State, 42 Ark. 204, Judge Smith says : “When the trials are separate, the wife of a co-defendant not on trial is a competent witness, unless her testimony will tend directly to the acquittal of her husband, as in conspiracy or other joint offense, where the interests of the defendants are inseparable.” See authorities cited in that opinion. The record purports to set forth all the evidence that was introduced. It is nowhere shown that Jim Gill was charged as principal in the indictment charging Mathew as accessory before the fact, nor does it anywhere appear that Mathew and Jim were charged with conspiring together to kill deceased. Therefore, the incompetency of the witness, Georgia Gill, does not appear, and it was error for the court to refuse her testimony.
The court, in one of its separate charges, has recognized the error of admitting certain confessions and admissions in the absence of defendant, and it is unnecessary for us to notice this objection at length, for the error will not occur on another trial. Nor is it necessary for us to discuss what effect the refusal of the court to give the appellant’s eleventh prayer would have had upon the cause. We will proceed however, in view of another trial, to state the rule. So far as thé declarations and conduct of Jack Gill are concerned, he being charged as principal, the rule is : “Any acts and conduct of the principal, tending to show his own guilt, is evidence of such guilt as against the accessory.” 2, Bish. Cr. Pr. sec. 13. This would apply to any acts or declarations of the principal either before or after the alleged murder, except declarations in the nature of confessions. When the trial is separate, and the principal may be called as a witness, the current of authority, says Mr. Bishop, seems to reject his confessions. 2 Bish. Cr. Pr. sec. 13, and authorities cited; Vaughan v. State, 57 Ark. 10. As to the declarations of co-conspirtors,-the rule is well settled that “when once the conspiracy or combination is established, the act or declaration of one conspirator is considered the act or declaration of all, and imputable to all when said or done in furtherance of the common object.” Wharton on Cr. Bv. sec. 698. The conspiracy, however, must first be shown by evidence aliunde. The acts and declarations of the conspirators can only be admitted against each other when done or made while the conspiracy continues. Wharton, Cr. Bv. sec. 698 ; Cox v. Vise, 50 Ark. 283. Nor is it material, as to the admissibility of the acts' and declarations of a conspirator against a defendant, whether the former be indicted or not, nor what the nature of the indictment is, provided the offense involve a conspiracy. Wharton, Cr. Bv. sec. 700.
The other grounds of the motion for new trial, we deem it unnecessary to discuss.
Por the errors indicated, the judgment is reversed, and cause remanded for a new trial. | [
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Ed. F. McFaddin, Associate Justice.
The information on which the appellant was tried and convicted charged that the appellant “on the 22 day of April, 1961, did unlawfully and feloniously and knowingly have in his possession 155 pounds, more or less, of beef of more than $35.00 in value, knowing same to have been stolen, and possess same with the intent to deprive the true owner thereof against the peace and dignity of the State of Arkansas.” Appellant’s motion for new trial contains six assignments.
I. Sufficiency Of The Evidence. Assignments 1 to 4, inclusive, present this issue. Stites, Spence, and Odom testified that they did steal and kill two head of cattle f that they dressed one and delivered it to Carnal and received from him $25.00 in payment. It was shown by overwhelming and undisputed evidence that Carnal received and had in his possession this stolen beef. His defense was that he did not know that the beef was stolen. Carnal operates the Square Deal Cafe in Fort Smith. In regard to his dealings with Carnal, Stites testified:
“A. I told him I could furnish him with some beef at a reasonable price and he says, well, he didn’t know, says he thought he might take some and then later on he said, yes, he’d take it — at $25.00 a head.
“Q. How much a head?
“A. $25.00 a head.
“Q. Was there any understanding as to the size of the beef or anything?
“A. I told hiia it would dress out around 150 or 200 pounds — at least 150 pounds . . .
“A. I told him that the beef was about ready for delivery and he said he would take it and I told him, well, we would bring it in the next evening or night and he said he would be ready. ’ ’
When Stites took the stolen beef to Carnal the latter arranged to have it processed at the Grand Food Market. This was some time between 8:00 and 11:00 o’clock at night, and the dressed beef had dirt on it. Carnal paid Stites the $25.00 in Carnal’s restaurant after the delivery. Stites testified concerning his negotiations with Carnal: “When we were speaking of the beef I told him we dealt no questions asked — in regards to where I got them and all that.”
Spence, another of the thieves, testified:
“Q. Now when you unloaded the beef at the Grand Food Market would you tell the Jury as to the condition of the beef as to cleanliness?
“A. Well, the beef had been wooled around on the ground getting the hide off of it and it had dirt on it and some leaves and some grass and — well, just roughly it was pretty dirty.
“Q. Now when you were at the Square Deal Cafe to be paid off, did you have any conversation with Mr. Carnal about any troubles?
“A. Well, when we was leaving Mr. Carnal said to me, he says, ‘If you boys get into any trouble over this beef, well, I don’t know you.’ ”
No question was raised in the trial that the beef was worth less than $35.00, but on appeal such is raised. It was testified that the selling price of beef was 32 cents a pound at that time. Carnal paid the butcher at the Grand Food Market eight cents per pound for processing 155 pounds of beef. The 155 pounds of beef at 32 cents would calculate $49.60. See Davis v. State, 202 Ark. 948, 154 S. W. 2d 112. Giving the evidence in behalf of the State its strongest probative value, as is our rule on appeal in cases like this (Eddington v. State, 225 Ark. 929, 286 S. W. 2d 473), there is ample evidence to sustain the jury verdict. It was shown that appellant bought beef in the nighttime, paying $25.00 for it when the market value was $49.60; that he agreed to buy after the seller had told him he was to ask no questions as to the title; and he told the thieves, “If you boys get into any trouble over this beef, well, I don’t know you.” Certainly, a case was made for the jury.
II. Evidence Of Prior Convictions.
Assignment No. 5 in the motion for new trial reads:
“The court erred in admitting over the objection and exception of the defendant at the instance of the Prosecuting Attorney the admission of the evidence of prior convictions of the defendant for drunkenness, for driving a car while under the influence of intoxicants and other specific misdemeanors or violations.”
In denying the motion for new trial, the Circuit Judge gave a complete answer to this assignment:
“In Paragraph 5 of the motion for a new trial the point is raised that the court erred in admitting certain evidence over the objection and exceptions of the defendant. In this connection it must be pointed out that the attorneys who are filing this motion for a new trial are not the attorneys who tried the case and if they had been present at the trial they would have observed that there were no objections made or exceptions saved to any actions of the court. The contention of defendant in paragraph 5 of the motion is therefore denied.”
III. Passion And Prejudice. Assignment No. 6 in the motion for new trial reads:
“The verdict of the jury was rendered under the influence of passion and prejudice.”
There was no evidence offered to sustain this assignment in the motion for new trial. In overruling this assignment, the Circuit Judge said:
“Paragraph 6 of the motion asserts that the verdict of the jury was rendered under the influence of passion and prejudice. The court knows of no basis whatsoever for this assertion and the motion on this ground is therefore denied.”
IY. Absence Of Corroboration. Assignment No. 7 in the motion for new trial consists of two paragraphs and reads:
“There is no substantial, admissible or competent evidence in this case. The only evidence on which the verdict could possibly rest would be the evidence of alleged accomplices which is not competent.
“The only substantial evidence in the case tending to connect this defendant with the crime with which he is charged and for which he is convicted was the testimony of the so called or alleged accomplices and this stands uncorroborated or unsupported by any other substantial evidence, and the verdict under the law in the case cannot be sustained under such circumstances, and on account thereof the verdict should be set aside.”
In overruling the motion for new trial, the Circuit Judge stated as regards this assignment:
“Paragraphs 7 and 8 assert that the defendant was convicted on the uncorroborated or unsupported testimony of ‘so called or alleged accomplices’. The court presumes that this has reference to the testimony of the admitted thieves Charles Stites, Ray Spence and Bill Odom. In the first place, even if these persons are to be regarded as accomplices within the meaning of Ark. Stats. Sec. 43-2116, an analysis of all the facts and circumstances before the jury will evidence that the testimony of these three persons was either undisputed in character or corroborated by the defendant himself, other witnesses, or by other facts and circumstances shown in the case. Secondly, it may be questioned whether the thieves were accomplices to the crime on which the defendant was tried. Lastly, and in any event, the defendant is not now in position to question whether or not these witnesses, Stites, Pence and Odom were accomplices or to complain that an instruction was not given under See. 43-2116, for he failed at the trial to either claim that they were accomplices or to request the court to give an instruction defining accomplices or the effect to be given their testimony. Stinkard v. State, 193 Ark. 765, 103 S. W. 2d 50; Trotter v. State, 215 Ark. 121, 219 S. W. 2d 636. The motion in this regard is therefore denied.”.
As has been previously indicated, present counsel on appeal did not represent the appellant in the Trial Court. We have before us a record with no exceptions to testimony, no objections or exceptions to instructions, and no request for instructions. In Lackey v. State, 67 Ark. 416, 55 S. W. 213, this Court, speaking through Mr. Justice Riddick, said:
“. . . counsel for defendants say that the charge of the circuit judge was defective and incomplete in other respects, and contend that it was the duty of the court to give the whole law of the case to the jury, . . . In this State it has been often held that if a party wishes the trial judge to instruct on any particular point not covered by his charge, he should ask an instruction covering such point. If he sits silent, and makes no effort to remedy the defect, he has no legal ground of complaint.”
The judgment is affirmed.
The information referred to Act No. 48 of 1959 (now found in § 41-3938 Ark. Stats.), which reads: “Any person who shall possess stolen goods, money or chattels which exceed the aggregate value of thirty-five dollars ($35.00), knowing them to be stolen, with intent to deprive the true owner thereof, shall be guilty of a felony, and upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than one (1) year nor more than twenty one (21) years; and if the aggregate value thereof be not more than thirty five ($35.00) dollars, such person shall be guilty of a misdemeanor and shall be punished by imprisonment in the county prison or municipal or city jail not more than one (1) year and shall be fined not less than ten dollars ($10.00) nor more than three hundred dollars ($300.00).”
Nach witness is serving a penitentiary sentence for the theft.
In overruling the motion for new trial regarding the sufficiency of the evidence, the Circuit Judge used this language: “Paragraphs 1 through 4 are formal in character and are denied as being without merit for reasons stated herein. It was never disputed that the carcass of beef in question was stolen and the defendant admitted that he purchased it from the thieves. His sole defense was that he did not know that it was stolen property. With the possession admitted and the character of the property undisputed a case was amply made for the jury by the testimony of the state’s witnesses together with that of the defendant and his own witnesses, all of whom showed that the deal to purchase the beef and its delivery was accomplished under clandestine circumstances, and at a price which labeled the transaction as felonious. Short of a confession the State is never able to prove guilty knowledge except by the plain inferences to be drawn by reasonable men from the facts and circumstances of a given case; and in the instant case the jury interpreted the proof as evidencing guilty knowledge. In fact in this case there was a singular lack of dispute as to what had happened. The principal differences in the proof consisted of the circumstances that the defendant and his girl friend placed the hour of delivery of the beef at from 8:30 to 9:00 P.M., while the butcher and his helper placed the delivery at around 11:00 P.M. or later; and of course the defendant denied that the beef had been sold to him on a ‘no questions asked basis’ and further denied that he had told the thieves, in substance, that ‘If you boys get into any trouble over this beef, well, I don’t know you.’ The demeanor and attitude of the defendant and his cohort, Miss Betty McAdoo, while on the witness stand were not calculated to give credence to his assertions, and the court felt that the reaction of the jury as reflected in their verdict, arrived at after due deliberation, was amply justified in the light of all of the facts and circumstances of the case.” | [
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Ed. F. McFaddin, Associate Justice.
This appeal stems from a collision of two motor vehicles. Appellant. Moss was plaintiff and appellee, Mrs. Infield, was-defendant. For convenience, we will refer to the parties-as they were styled in the Trial Court. The jury verdict was for the defendant; and the plaintiff brings this, appeal, urging two points for reversal.
1. Sufficiency Of The Evidence. Plaintiff saysr “. . . the verdict of the jury was arbitrary, not being supported by, but contrary to, the evidence.” The collision occurred at the intersection of Eighth Street and West Jonesboro Drive in Little Rock. The plaintiff was driving south on West Jonesboro Drive towards the-Eighth Street intersection, and the defendant was driving east on Eighth Street towards said intersection. It was stipulated that at this intersection West Jonesboro Drive is eighteen feet wide and Eighth Street is twenty-two feet wide.
The plaintiff testified: that he was driving south towards the intersection at a speed of twenty to twenty- five miles an hour; that when he first saw the defendant she was about fifty feet west from the intersection and slowing down; that when he was about twenty-five feet north from the intersection he realized that the defendant was not going to stop; and that the plaintiff applied his brakes in a vain effort to stop. The plaintiff also» testified that the defendant was going so slow he thought she would stop at the “yield” sign on Eighth Street, but,, instead, she proceeded on into the intersection; and that after plaintiff applied his brakes the front of his car hit the rear door and fender of the defendant’s car. It was stipulated that the point of impact occurred nineteen feet south of the north line of Eighth Street and fourteen feet east of the west line of West Jonesboro Drive; and that plaintiff’s car left fourteen feet of solid skid marks before the point of impact. The plaintiff insists that the defendant was negligent in failing to yield the right-of-way in accordance with the “yield” sign.
The defendant’s version of the collision is different. She testified that she was traveling east on Eighth Street at a speed of ten to twenty miles per hour; that when she was almost to the West Jonesboro Drive intersection, she looked north up West Jonesboro Drive and saw no one approaching; and that she then proceeded cautiously into the intersection and was well past the center of the intersection when plaintiff’s car, “which came out of nowhere,” struck the left rear door and fender of her car.
Whose fault caused the collision? That was for the jury, and we cannot say that the verdict was in error. If the jury believed the defendant’s version — as it did— then the jury could have concluded that the defendant first entered the intersection, that the plaintiff was driving very fast to have skidded fourteen feet, and, therefore, must have entered the intersection well after the defendant, who was proceeding cautiously. It is clearly apparent that the defendant was past the center of the intersection and proceeding east when her car was struck by the plaintiff’s car; and it was further shown that the plaintiff did not veer Ms car in any way to the right in. order to avoid the impact. With such a contradiction in the testimony, it was for the jury to decide which witnesses to believe; and we leave the verdict undisturbed.
II. Instructions. The only instruction to which the plaintiff objected and now claims to be erroneous is. Defendant’s Instruction No. 8, which reads:
“You are instructed that the driver of a vehicle' approaching a yield the right of way sign shall in obedience to such sign slow down to a speed that is reasonable under the existing conditions or shall stop if necessary,, and shall yield the right of way to any vehicle in the intersection or approaching on another highway so closely thereto as to constitute an immediate hazard.. However, you are further instructed that under Arkansas law the said driver having so yielded may proceed, and the drivers of all other vehicles approaching the intersection shall yield the right of way to the vehicle so-proceeding.
“A violation of a traffic law is not negligence within itself but if yon find that there was such a violation you may take it into consideration, along with all of the other evidence in the case, in determining if the party charged with negligence was guilty thereof.”
To this instruction the plaintiff offered only a general objection, and he concedes that this instruction is not inherently erroneous. A general objection is not sufficient unless an instruction is inherently erroneous. Trumbull v. Martin, 137 Ark. 495, 208 S. W. 803; and Carmichael v. Mercury, 224 Ark. 553, 275 S. W. 2d 15.
Finding no error, the judgment is affirmed. | [
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Paul Ward, Associate Justice.
Before reaching the merits of this case we first dispose of appellees’ motion to dismiss the appeal for failure of appellant to comply with Rule 9 (d) of this Court. This rule requires appellant to present an abstract or abridgment of the material parts of the pleadings, proceedings, etc. “as are necessary to an understanding of all questions presented to the court for decision”. Regardless of the merit of such a motion at the time it is filed, we do not dismiss an appeal on this kind of motion. However, as provided in Rule 9 (e), appellee is given the option to stand on his motion or submit a supplemental abstract. In the first event, if the motion has merit, we will affirm on final submission. Here, appellees have chosen to furnish a supplemental abstract, so we now proceed to a consideration of the case on its merits.
In order to clarify the issues presented we set out below uncontroverted facts as we have gleaned them from the record. Prior to the death of Mose Klyman in 1956 he owned a parcel of land (described by metes and bounds), consisting of about 20 acres, near Hot Springs and abutting Highway No. 70 on the northwest side of the highway. Approximately two years before his death he deeded a portion of the above mentioned land (about 5 acres) to appellees. Appellees purported to build nice residences on this land, and it is their contention (not disputed) that they had an understanding with Klyman at the time of the purchase that Klyman would restrict the rest of his lands (containing 14.2 acres) to residential purposes. Some two years after Klyman’s death appellees filed suit in chancery court (Case No. 31617) against the executor and heirs of Klyman to reform his deed so as to include the above mentioned restriction, and to have such restrictions impressed on the said 14.2 acres by the court. While this suit was pending and on April 30, 1958 Betty Leonard Reinagle, one of the heirs of Klyman, bought the interests of all the other heirs in and to the said 14.2 acres. On May 24, 1958 Betty Reinagle sold and conveyed the land to Rosa Lee Gilmore, appellant herein. The deed of conveyance to appellant contained a provision that the north 8 1/4 acres were to be restricted to residential purposes, and also that the rest of the land (the south 5.8 acres) were likewise to be restricted, except that appellant could erect and maintain a nursing home thereon limited to twelve patients. These restrictions Avere made binding on appellant, her heirs, executors, administrators or assigns. On this same day (May 24, 1958) a stipulation was entered into by the attorneys (in the suit above mentioned) agreeing (among other things) to a consent decree (in said Case No. 31617) restricting the use of the 81/4 acres and the 5.8 acres as above set out. Also, on the next day, appellant and Betty Reinagle signed a written agreement wherein appellant consented to the entry of a decree imposing the restrictions previously mentioned.
Following the above, the Chancery Court, on May 27, 1958, entered a decree imposing the restrictions on the lands in the manner heretofore mentioned, and no appeal was taken therefrom.
It is not disputed that appellant had for many months violated the terms of the agreement and the decree of the court by maintaining on the south 5.8 acres a rest home for more than twelve people, when, on November 29, 1960, appellees filed a petition in said Case No. 31617 asking that appellant be held in contempt of court for said violation.
On December 16, 1960 appellant filed a response to the citation combined with a motion to dissolve the injunction issued on May 27, 1958. In this pleading appellant asked to have the citation dismissed for two reasons, to-wit: (a) she was not a formal party to the injunctive action, and had no knowledge thereof, and: (b) appellees had acquiesced in her violation. After .a hearing the trial court found that appellant had actual knowledge of the restrictive covenants heretofore mentioned, and that she admits to violating them. The court then ordered appellant to reduce the patients to twelve within sixty days and-not to exceed-that number in the future. Appellant prosecutes this appeal for a reversal on three grounds.
First, we see no merit in appellant’s contention that she had no notice of the existence of the injunction relative to the occupancy restrictions. She signed the agreement mentioned heretofore which makes reference to the pending suit. This agreement states that the parties “may cause a decree to be entered in said cause restricting” the nursing home to twelve patients. Also her deed shows very clearly she knew of the restrictions.
Appellant’s second point for reversál is essentially the same as the first point and therefore need not be discussed. Appellant, in her reply brief, cites Mullane v. Central Hanover Bank & Trust Co. 339 U. S. 306, 70 Sup. Ct. 652, 94 L. Ed. 865, for authority that an injunction cannot be maintained against a person on constructive-notice. We have read the cited case and find it does not apply to facts in the case before us. Moreover, the Chancellor found, and wé also find from the record, that appellant had actual notice.
Finally, appellant contends, that “The injunction should be.dismissed because of the appellees’ laches”. In support it is stated that appellant began the nursing home in May, 1958, that her operation has been open and notorious, and that appellees must have known that she had more than twelve patients because they lived near by and regularly passed in front of her premises. These facts, says appellant, constitute laches on the part of appellees which operates to her financial loss. We need not examine authorities cited by both sides because we find that the evidence fails to show any undue delay on the part of appellees in attempting to assert their rights. Although appellant says she has operated the home for approximately two years, yet she nowhere points out, in her brief, the date she acquired more than twelve patients. On the other hand one of the appellees testified that he first learned (from one of the patients) of the excessive number sometime in the spring of i960 before his petition was filed in November of that year. Under this state of the record we hold that appellant has failed to discharge the burden to show facts constituting laches on the part of appellees. Conceding (without so holding) that appellant’s motion amounts to a plea of laches, still it was an affirmative plea and the burden of proof was on her. See: White v. Williams, 192 Ark. 41, 89 S. W. 2d 927. There is an exhaustive treatment of laches in relation to the enforcement of restrictive building covenants in 12 A. L. R. 2d at pp. 397 and 398. Among other things it is there stated:
“The nature of the relief allotted to one who seeks to enforce a restrictive building covenant lies in the discretion of the court: an injunction may be granted requiring defendant to cease violation of the covenant, or plaintiff may be held entitled only to damages for breach of the covenant. Among the grounds for denial of injunctive relief is a showing of plaintiff’s guilt of laches in failing to act more promptly to enforce his rights, and in the establishment of such guilt the burden of proof is on the defendant.
“Exactly what conduct on the part of plaintiff does or does not amount to laches is a question to be answered in the light of facts presented by each individual case. Mere delay in bringing suit does not, in itself, constitute laches: it has been held that laches was not established where the period between the violation of the building covenant and the action to enforce it was as great as twelve years . . .”
In this case we think the trial court wisely refrained from punishing appellant for contempt and correctly required her to abide by the imposed restrictions in conducting the rest home, and its decree is therefore affirmed.
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Sam Robinson, Associate Justice.
This appeal presents a question which precedent has left unanswered in this, as well as every other jurisdiction: Do Social Security payments from the account of a father to his dependent son displace court ordered support payments 1
The appellant, Henry J. Cash, and the appellee, Ethel Cash were formerly husband and wife, living together as such for some eighteen years, their marriage ending in a divorce in May of 1959. Two children were born to them, a daughter who is now married, and a son, twelve years of age at the commencement of the present litigation. The divorce decree awarded custody of the minor son to his mother along with support payments from the father of $32.50 per week.
Ethel Cash remarried in June of 1959, and in September Henry Cash petitioned for a modification of the decree to reduce his support payments. The Court reduced his payments to $15.00 per week. In February, 1960 Mrs. Cash’s second marriage was terminated by the death of her husband.
In January of 1961, Mr. Cash having reached the age of 65, retired and applied for Social Security benefits for himself and his son. The following month the son began to receive Social Security benefits at the rate of $60.00 a month. Mr. Cash, thinking that the Social Security benefits which he had caused the son to receive relieved him of his court ordered payment, stopped the $15.00 weekly payments to the son. Shortly after the support payments were halted, Mrs. Cash filed a motion stating that Mr. Cash had an increase in income and requesting an increase in his weekly payments. Mr. Cash filed a counter-petition alleging that he had retired, that both he and his son were drawing Social Security benefits, and requesting that he be relieved from paying the $15.00 payments.
Upon a hearing of the case, the Chancellor refused to allow the Social Security payments to the son to displace the support payments, but did reduce the payments to $10.00 per week. The appellant now brings the matter to this Court claiming that such refusal by the Chancellor constituted reversible error.
Mr. Cash, before his retirement, was a long-time employee of the Porocel Company where he worked as a night watchman earning in excess of $5,000 a year. Also he had some income from rental houses which he owned. This was his financial condition at the time of the original divorce decree which ordered him to pay $32.50 per week to his former wife for the support of their son. Upon the remarriage of Mrs. Cash, the Court reduced these payments to $15.00 per week.
At the time of the hearing on the motion now under consideration, the appellant testified that his monthly income was as follows: Social Security $120.00, payments from the John Hancock Insurance Company $26.70, rent from four houses in which he had a life estate $145.00, and $20.42 from the Phillips Corporation. This is a total monthly income of $312.12. However, Mr. Cash also testified that he makes monthly payments on his debts which total S205.03, and that he also pays weekly room and board to a daughter with whom he is living in the amount of $8.00 per week. His monthly payments are toward the retirement of debts which he incurred in buying clothes for himself, his former wife and his son, for upkeep on his rent houses, money which he borrowed to pay his taxes, a mortgage on the house which he gave to his wife for life, and a note to the bank representing the financing of a truck.
If Mr. Cash were not allowed credit for the Social Security payments to his son and were forced to make the support payments ordered in the court below, his total monthly outlay including payments on his debts and room and board, taken along with the support payments ($40.00 per month) would total $277.03 which when subtracted from his monthly income would leave him $35.09 a month, hardly a handsome sum for a man over 65 years of age who has worked all his life with dreams of retirement in his old age. If Mr. Cash were not given credit for the amount of the Social Security payment which his son is receiving, then it is probable that he would be forced to seek employment in order to keep his head above water in meeting his obligations as they fall due. If this is the case, then how could he ever retire ?
We are impressed at the apparent lack of bitterness and showing of good faith on the part of Mr. Cash in this entire matter, starting with the date of his divorce and continuing down to the time of the present litigation.
Mrs. Cash divorced her husband, the appellant, who was twenty years her senior, and the following month married a younger man who had himself been divorced only two days. The decree granting the appellee a divorce from the appellant made no provision for the support of the appellee, nor did it give her any of the real estate which the appellant owned at the time of the divorce decree, although apparently all of the real estate had been purchased during their marriage. Yet the appellant deeded all of his rental property to the two children of their marriage (appellant had two children by a former marriage), reserving for himself a life estate in all of the realty except one house and lot in which he reserved a life estate for his former wife, the appellee. Speaking of the $32.50 per week child support clause contained in his wife’s divorce decree, he said that he understood that the money was for the support of his former wife as well as his son. It is not surprising that he suffered under this misconception, because under the circumstances at the time, $32.50 seemed to be quite a liberal amount for the support of a ten year old boy.
Mrs. Cash testified that the support payment even when reduced from $32.50 to $15.00 per week was sufficient as long as her second husband was alive, but that on his death her household lost the benefit of his $160.00 monthly earnings. It is indeed unfortunate that her second husband died apparently leaving her with insufficient funds to maintain herself, but this in no way places the burden of her support on Mr. Cash. According to the appellee’s own testimony the appellant deeded to her a life estate in a house, thus providing her and his son with a place to live, that he pays all of the taxes and insurance on the house as well as the monthly water bill.
All of the foregoing discloses that Mr. Cash was, from the time of his divorce down to the institution by the appellant of the present litigation, earnestly attempting to meet what he apparently considered at least a moral obligation to his son and his ex-wife.
Neither the research of counsel, nor of the Court has revealed a ease such as this one involving Social Security payments to a dependent child; however, the case of Hinton v. Hinton, 211 Ark. 159, 199 S. W. 2d 591, is a case having an analogous fact situation. There, the father, who was under a court order to make payments to his dependent child, was inducted into the army during World War II. While in the service he made out an allotment of $42.00 per month for the benefit of his minor child, $22.00 of this amount being deducted from the salary of the soldier, the remainder being paid by the United States Government. This Court held that while not all of the money paid for the benefit of the child was deducted from his earning, they were paid nevertheless, and that he was entitled to credit for them.
Of course the father in the Hinton ease had little choice about entering the armed forces in the time of a national emergency, and therefore his civilian earning power was reduced to nothing, making it impossible for him to satisfy the support decree except from his military wages along with the amount contributed by the Federal Government.
In the case at bar the appellant had little choice but to retire from his occupation and apply for his Social Security payment for himself and his son; his retirement was mandatory due to the policy of his company.
It may also be pointed out that the Social Security payments made by the Federal Government to the dependent son were earned in part by the appellant himself and are not altogether a gift from the Federal Government.
Under the circumstances of this case the appellant should be credited with the full amount of the Social Security payments, and he should not be obliged to pay any additional amount.
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Carleton Harris, Chief Justice.
This is the second appeal in this case. In Duty v. Gunter, 231 Ark. 585, 331 S. W. 2d 111, a $2,000 judgment for appellee was reversed because of the court’s error in admitting improper evidence. On a second trial, the jury returned a verdict of $7,500 for appellee, and from the judgment entered thereon, appellant brings this appeal. The sole issue in this appeal is whether the verdict and judgment are excessive.
Mr. Gunter, age 60 at the time of the trial, was injured in an automobile collision on February 2, 1959. The proof reflects that Gunter’s truck was worth between $1,700 and $1,900 before the accident, and that he was allowed $700 for same on the purchase of another truck subsequent to the accident. Further, the appellee in curred an expense of $32.50 on the date of the collision, covering emergency medical, hospital, and ambulance bills; he has since expended $40 in medical and drug bills, and $33 for replacement of his glasses, which were broken at the time of the collision. Appellee suffered a cut over his eye, which required seven stitches. No medical evidence was offered, but according to Gunter’s testimony, he suffered a broken rib, has frequent headaches, is very nervous, and is bothered by pain in his stomach, back, neck, and spine. One of his principal complaints deals with an inability to sleep. Gunter stated that since the wreck, he is only able to sleep two or three hours per night; that he generally sleeps until twelve or one -o’clock, “and then that’s all of it.”
Appellant testified that due to his condition, he was unable to work, and had been unable to work since the collision; that he normally made $2.75 per hour when employed. Appellant points out that appellee did not show the availability of work during this period, and that he had not worked for fourteen months before he was injured. The record does reflect, however, that on the occasion of the collision near Russellville, he had gone from Benton to the site of a job near Dardanelle for the purpose of obtaining employment. Upon being advised that construction would probably start at the site in the spring, Gunter returned to Russellville to the employment office there, to ascertain how the labor would be handled. Shortly thereafter, he was involved in the collision from which stems this litigation.
Appellant cites several cases in support of his contention that the verdict is excessive. It is true that from a comparison, this verdict does appear unduly large. In Turchi v. Shepherd, 230 Ark. 899, 327 S. W. 2d 553 (1959), we said:
“A comparison of awards made in other cases is a most unsatisfactory method of determining a proper award in a particular case, not only because the degree of injury is rarely the same, but also because the dollar no longer has its prior value.”
However, aside from other cases, we are very firmly of the view that the evidence in the instant case does not support the amount of judgment, i.e., the injuries do not appear to be so substantial or disabling as to justify the amount awarded. Gunter was not in the hospital more than thirty or forty minutes, and was released, leaving by taxi. His medical expense was nominal; his visits to the doctor after the collision appear to be infrequent, and neither the broken rib, nor the “sleeplessness” complained of, was corroborated. Appellant strongly argues the failure of Gunter to offer supporting medical evidence. This, of course, is noticeable, but it is likewise true that appellant offered no medical evidence to minimize the asserted injuries.
Determining the proper amount of award in a personal injury suit is indeed difficult, but when we give the evidence its greatest probative value, as we must, we are of the opinion that the proof introduced will not justify a judgment for personal injury damages in excess of $2,300. Giving Mr. Gunter the benefit of the highest figure mentioned in evaluating the truck before the collision, and deducting therefrom the value of the truck after the collision, we arrive at the figure of $1,200 for the loss of this property, or a total award of $3,500.
If within seventeen calendar days, a remittitur be entered in keeping with this opinion, the judgment is affirmed as so reduced. If such a remittitur be not entered, the case will be reversed and the cause remanded for a new trial.
McFaddin and Johnson, JJ., dissent.
The suit had been pending for about two years, and the complaint sought judgment for $22,400. Appellee alleged severe injuries, and asserted that “plaintiff will continue to suffer great and excruciating pain and mental anguish * * Apparently no effort was made by appellant to have appellee examined.' | [
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Ed. F. McFaddin, Associate Justice.
This is an action brought by the appellee against the appellant for damages allegedly caused when appellant published and distributed appellee’s photograph without her knowledge or consent. Trial to a jury resulted in a verdict and judgment for the appellee in the amount of $2,500.00, and this appeal ensued.
The appellee, Mrs. Mary Dodd, is a housewife in Searcy, Arkansas. At one time she worked in a store with her husband, and later was associated with him in a local radio station. At all times here involved, the appellant, Olan Mills, Incorporated of Texas, was engaged in the business of photography. In 1957, Olan Mills had representatives in Searcy, and Mrs. Dodd had her picture taken for a stipulated price. She wanted the picture for her daughter; and when she received the picture the transaction was closed.
Some time in 1960, Olan Mills, without the knowledge or consent of Mrs. Dodd, caused 150,000 advertising post cards to be mailed over Arkansas and surrounding states; more than 5,000 of these cards were mailed to rural boxholders in White County, Arkansas; and each of these cards contained the picture of Mrs. Dodd. This use of her picture was a part of an advertising campaign put on by Olan Mills in order to obtain business; and, in addition to mailing the post cards, Olan Mills had enlargements of Mrs. Dodd’s picture carried by its door-to-door salesmen who were soliciting orders. The cards did not mention Mrs. Dodd’s name but merely carried her picture, implying an offer to make a picture of like kind and quality for anyone at an agreed price.
Mrs. Dodd first learned that her picture had been so distributed when a friend advised her. Later, she saw the card, and sued Olan Mills for damages. She testified: “I hadn’t given anybody permission to use my picture. It caused me a lot of humiliation and embarrassment. I have heard remarks on the street when I was passing, people saying, ‘I never thought Mrs. Dodd would permit her picture to be used for advertising,’ and things like that. I can’t go out on the street- — I am embarrassed. I have lost weight. I can’t sleep.” Later, one of the door-to-door salesmen for Olan Mills came to Mrs. Dodd’s house and exhibited her picture to her in his solicitation campaign.
The original answer of Olan Mills stated that (a) Mrs. Dodd had given her consent to the publication of the picture; and (b) in truth and in fact, it was not a picture of Mrs. Dodd but of someone else. Later, by-amended and substituted answer, it was admitted that Mrs. Dodd’s picture had been used without her knowledge and consent and as the result of a mistake. Trial of the case to the jury resulted in a unanimous verdict for $2,500.00 to Mrs. Dodd. The appellant urges two points on appeal: (a) only nominal damages can be recovered; and (b) the damages awarded are excessive. We will consider these points together.
So far as we can determine, this Court has never directly passed on a case like this, although in the two cases of Mabry v. Kettering, 89 Ark. 551, 117 S. W. 746, 92 Ark. 81, 122 S. W. 115, there is dicta as to what is known in law as the ‘ ‘ right of privacy. ’ ’ While there is a dearth of case law in Arkansas on the point, there are cases, textbook writings, and law review articles elsewhere. In some jurisdictions, statutes have been passed guaranteeing the right of privacy, but in most of the jurisdictions the courts have recognized the right of relief in a case like the one at bar, independent of statute. In Restatement of the Law of Torts, Section 867, this matter is discussed under the topic, “Interference with Privacy,” and in stating that in some instances there may be recovery for the unauthorized publication of the photograph of a person who is not in public life, the Restatement uses this language:
“The rule stated in this Section gives protection to the interest which a person has in living with some privacy, but this protection is relative to the customs of the time and place and to the habits and occupation of the plaintiff. One who is not a recluse must expect the ordinary incidents of community life of which he is a part. These include comment upon his conduct, the more or less casual observation of his neighbors as to what he does upon his own land and the possibility that he may be photographed as a part of a street scene or a group of persons. Likewise if he submits himself or his work for public approval, as does a candidate for public office, a public official, an actor, an author or a stunt aviator, he must necessarily pay the price of even unwelcome publicity through reports upon his private life and photographic reproductions of himself and his family, unless these are defamatory or exceed the bounds of fair comment. One who unwillingly comes into the public eye because of his own fault, as in the case of a criminal, is subject to the same limitations upon his right to be let alone. Community custom achieves the same result with reference to one unjustly charged with crime or the subject of a striking catastrophe. Both groups of persons are the objects of legitimate public interest during a period of time after their conduct or misfortune has brought them to the public attention; until they have reverted to the lawful and unexciting life led by the great bulk of the community, they are subject to the privileges which publishers have to satisfy the curiosity of the public as to their leaders, heroes, villains and victims.”
It is unnecessary to develop in greater detail the nature of the cause of action; because our opinion herein is limited to the particular facts of this case and the extent of the damages here awarded. The appellant concedes that Mrs. Dodd is entitled to recover nominal dam ages but claims that the verdict for $2,500.00 is excessive; and cites us to some of the Arkansas cases which hold that there can be no recovery for mental anguish in the absence of accompanying physical injury. One such case so cited is C. R. I. & P. Ry. Co. v. Caple, 207 Ark. 52, 179 S. W. 2d 151. But in that case we said:
“Where the action is wanton or willful there may be a recovery for humiliation and mental suffering without any physical injury. Such cases are Erwin v. Milligan, 188 Ark. 658, 67 S. W. 2d 592; Rogers v. Williard, 144 Ark. 587, 223 S. W. 15, 11 A. L. R. 1115; Lyons v. Smith, 176 Ark. 728, 3 S. W. 2d 982.”
So we have recognized that in some instances there may be recovery for humiliation and mental suffering in the absence of any physical injury; and we hold that in an action like this one — for violation of the right of privacy — there may be such recovery, just as in cases of willful and wanton wrong. Other courts recognize there may be awarded substantial damages for violation of the right of privacy. Hinish v. Meier, 166 Or. 482, 113 Pac. 2d 438, 138 A. L. R. 1; Fairfield v. American Co., 138 Cal. App. 2d 82, 291 Pac. 2d 194; and cases there cited.
Olan Mills admitted that it was its custom to obtain the written consent of persons whose pictures were distributed, as was Mrs. Dodd’s in this case; but Olan Mills conceded that it neglected and failed to get such consent from Mrs. Dodd. Since Mrs. Dodd’s picture was published and circulated without her knowledge or consent, the jury was justified in finding from the evidence that the action of Olan Mills resulted in damage to Mrs. Dodd. She testified as to her humiliation, her embarrassment, mental anguish, loss of weight from worry, and lack of sleep; and we cannot say that the verdict, while liberal, is so grossly excessive as to shock the conscience; so the judgment is affirmed under the facts of this ease.
Affirmed.
There is a case note in 3 Ark. L. Rev. 105, entitled, “Torts — Invasion of Privacy by Publication of a Photograph”; .and also there is a comment in 6 Ark. L. Rev. 459, entitled, “The Right of Privacy.” See also annotations entitled “Right of Privacy,” in 138 A.L.R. 22, 168 A.L.R. 446, 14 A.L.R. 2d 750. The earliest law review article seems to be in 4 Harvard Law Review 193, “The Right to Privacy,” of which the late Justice Louis D. Brandéis was one of the authors. There is a later law review note in 43 Harvard Law Review 297. See also “Privacy”, in 41 Am. Jur. 923; and “Right of Privacy,” in 77 C.J.S. 396. See also the article, “Privacy,” by Dean William L. Prosser in 48 California Law Review 383. | [
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Paul Ward, Associate Justice.
The problems involved in this litigation were germinated in 1957 when the Arkansas Power and Light Company took over territory previously assigned to the Woodruff Electric Corporation. Several parties are involved, so, before summarizing the factual background it will be helpful to identify them at this point. Appellant, Woodruff Electric Cooperative-Corporation, will be referred to as Woodruff; Arkansas Power and Light Company as Power Company; the city of Forrest City as City; the Arkansas State Electric Cooperative as State Electric; and the Arkansas Public Service Commission as Commission,
Woodruff was organized in 1937 pursuant to Act 342 of that year. It is here noted that said act gave such organizations authority to operate in rural areas, and Sec. 2 (8) of the Act defines “Rural Area” as all area except that area in cities and towns having a population in excess of twenty five hundred. In 1948 the City leased to the Power' Company (by a 31 page document signed by both parties) its power plant and auxiliary equipment with the right to serve the City. (This lease was not to be effective until the Power Company had completed a large power unit some miles outside the City limits). In 1950 Woodruff erected a large warehouse and office building on land adjacent to the north side of the City limits at a cost of approximately $150,000. In 1951 the Power Company’s lease became effective when it took over the operation of the City’s plant and distribution system. Following this, in 1953, the Commission allocated to Woodruff 120 acres of land north of the City limits which we will hereafter call “area”. This area was near Woodruff’s warehouse and office building. Also it was bisected by a through highway and was near the railroad.
Two or three years after the Commission made the allocation to Woodruff the citizens of the City became interested in a project to secure an out-of-state industry. This resulted in a firm named Yale & Towne agreeing to locate on the “area” provided the City would extend its boundaries to include that location and also, it seems, provided it would be furnished electricity by the Power Company. Pursuant to the above, the City, on December 10, 1956, annexed a portion of the “area” and on January 25, 1957 the Power Company contracted to furnish power to Yale & Towne. This resulted, of course, in Woodruff being deprived of a portion of its allocated territory including nine members therein which it had formerly been serving. So, on March 21, 1957 Woodruff filed a complaint before the Commission against the Power Company for relief under Act 85 of 1955. The City and the State Electric intervened, and after a full hearing the Commission ruled against Woodruff on the sole ground that Sec. 3 of said Act 85 precluded Wood-ruff from receiving any relief. On appeal by Woodruff and the State Electric to the Circuit Court of Pulaski County the Commission was affirmed, and they now prosecute an appeal to this Court for relief.
On appeal Woodruff insists that the only question for decision is the construction of Sec. 3 of Act 85 of 1955, but the Power Company and the City also challenge the constitutionality of the act.
Construction of Section 3. First we examine the history of Act 85 and our former interpretation of the prior Act No. 342 of 1937. The only decision of this Court which bears materially on the issue here is the case of Farmers Electric Cooperative Corporation v. Arkansas Power & Light Company, 220 Ark. 652, 249 S. W. 2d 837. In the cited case appellant served territory adjacent to the City of Newport which was later taken over by appellee. When the City annexed a portion of appellant’s territory and appellee’s service followed, appellant sought relief (as here) against appellee. On appeal we in effect held, that when the City extended its boundaries to take in new area appellee was obligated to serve such area and that there was no provision in the law whereby the cooperatives could be compensated for loss of territory. In speaking of the latter situation we said:
“No doubt the General Assembly failed to foresee the conflict here presented when Act 342 was being considered, else some provision would have been made for the awkward situation.”
There can be little doubt that the legislature had this “awkward situation” in mind when it passed Act 85 of 1955. At any rate this act does provide a method of relief to a cooperative which hás been deprived of a portion of its alloted territory. It is crystal clear that a situation could arise where it would be unjust to deprive a cooperative of a lucrative territory which it alone had developed over a long period of time. Whether or not that situation obtains to a small or large degree in the case before us now is immaterial because, in either event, the same principle is involved, and the interpretation of Act 85 would be the same. With this in mind we proceed to an analysis of said act.
Sec. 1 of Act 85 amends Sec. 2 (8) of Act 342 of 1937 which, as before mentioned, merely defines the area in which cooperatives may operate; The amendment contains all the language in said Sec. 2 (8) and also additional language relating thereto, but it is not material here. Then the section further provides as follows:
“. . . and said Corporation shall not be ousted from service in said rural area or deprived of the right to continue to provide electric service in said rural area subsequent to the granting of a Certificate of Convenience and Necessity by the Arkansas Public Service Commission, except as provided in this Act, as amended.”
It is conceded that Woodruff has been assigned the territory here involved by the Commission when the Power Company took it over. It is obvious therefore from the above quoted portion of Sec. 1 that Woodruff can be “ousted”, but it remains to be seen hoio and on what conditions.
The answers to the above questions are to be found in Sec. 2 of Act 85. One portion of Sec. 2 reads as set out below:
“If any rural area allocated by the Public Service Commission to a corporation organized under this Act shall be included in, or become a part of any incorporated city, town or village already being served with electricity by a regulated public utility, then the members of said corporation residing or operating within such city, town or village shall lose their membership and right to receive service from said corporation.”
The above quoted language tells how Woodruff can be “ousted”. The rest of the paragraph tells on what conditions it can be “ousted”, and it reads:
“It shall be the duty of the Commission to enforce the provisions of this Act and to provide for adequate compensation to the corporation for its loss of area and property. ’ ’
The rest of the paragraph explains how “adequate compensation” is to he arrived at by the Commission but we are not here concerned with that feature because the extent of compensation is a matter for the Commission and not this Court to decide, and it is not an issue at this time.
The conclusion deducible from what we have said so far about Act 85 is that Woodruff should be compensated for the loss of part of its territory. With certain reservations to be noted later we understand that appellees agree with the indicated conclusion.
However appellees contend (and the Commission held) that none of the above mentioned provisions of Act 85 are of any benefit to Woodruff because of Sec. 3 of the Act. This section reads:
“Nothing in this Act nor any of the provisions of Act 342 of the Acts of the Arkansas General Assembly of 1937 (Arkansas Statutes 1937, Section 77-1131) shall in any manner restrict or impair the right of any municipality to acquire, construct, expand, maintain or operate any electric generation, transmission or distribution facilities within the corporate limits of said city, town or village in Arkansas as such limits may now exist or as such limits may exist upon the extension or expansion of the city limits of said city, town or village.”
Fundamentally and generally speaking, appellees’ contention in this connection is based on the fact that the Power Company is only a lessee and that the power plant and facilities are oivned by the City. There can be no dispute that this is the true relationship between the two mentioned parties, even though it is correctly pointed out by appellants the lease can run for eighty years and a large portion of the utility is owned outright by the Power Company. This, say appellees, makes the City the real party in interest in this litigation and therefore not liable for compensation because of said section. We have concluded, however, for reasons set out below, that said See. 3 does not admit of the interpretation placed on it by appellees.
(a) As mentioned before, we feel that the primary purpose of Act 85 was to remedy the unjust and “awkward” situation previously mentioned. That being true the act should, we think, be liberally construed to effectuate that purpose. From the very nature of the business of supplying energy to customers in adjacent territories there will always be reason for rivalry between cooperatives and public utilities. Some of this rivalry may be advantageous to the general public, but the State has recognized the need for a mediator. This need has been partially met by requiring both parties to receive their allocations of territory in which to serve from the Commission. Through Act 85 the State has manifested an interest in seeing that both parties are treated fairly and justly. This right to serve enjoyed by both parties is a privilege granted by the State and is therefore subject to regulation by the State through the Commission. This is not true of a city. As we view the provisions of Secs. 1 and 2 of Act 85 they deal with the right to serve (certain territories) and not with ownership of property. The conflict here is over the right to serve a certain territory. The Power Company, under the facts and circumstances of this case, has been given the right to serve the disputed territory just as effectively as if it had bought City’s plant instead of leasing it. Certainty it is true that Woodruff’s loss would be the same in either event. We must conclude therefore that the provisions of Secs. 1 and 2 were meant to give relief to Woodruff under the undisputed facts of this case.
(b) We are unable to agree with appellees’ contention that the conclusion we have reached above nullifies Sec. 3 of Act 85 in that such conclusion deprives Forrest City of rights it has under said section. The answer to appellees’ contention is that Forrest City at one time had the right mentioned in Sec. 3 (copied above) but it saw fit to contract that right away, and is therefore in no position to complain now. One of the most sacred rights granted an individual by the Constitution is the right to own and keep property, but no one would contend that such individual cannot dispose of his property. As a matter of fact (as we understand the lease contract) the City still has every right (except one) mentioned in Sec. 3. It now has, under the lease, the right to “acquire”, “construct”, “expand” and (perhaps) “maintain” a power plant. The only right City does not now have is the right to “operate” the plant. This latter right the City (for what it considered its best interest) transferred, with the approval of the Commission, to the Power Company. We think the sole purpose of the legislature in inserting Sec. 3 in Act 85 was to reaffirm and protect the right of cities to own and operate their own electric plants if they so desired. Certainly Sec. 3 does not prohibit the City from selling or leasing away that right.
We now discuss some other objections raised by appellees.
Compensation. Having already concluded that Woodruff is, in principle, entitled to compensation under Secs. 1 and 2 of Act 85, we are not, as before indicated, concerned at this time with the measure of compensation since that was not considered by the Commission. The act provides for an exchange of territory in the manner and under the provisions therein set out. However, appellees advance the argument that Act 85, in this respect, is unconstitutional because only a court of law and not the Commission can assess damages. It is noted that the act provides for assessment of damages only in the event Woodruff desires to sell some of its property. No such event has arisen in this case as yet and it may never arise. In fact it was stated on oral argument by appellants that Woodruff was only asking for an exchange of territory. It is hardly likely therefore that this Court will ever be called upon to decide whether the Commis sion has the constitutional right to assess money damages since Act 103 of 1957 (not involved here) provides that cooperatives “shall not he ousted from service in said rural area”. We are of the opinion however that the Commission has the right, in its sound discretion and subject to review by the courts, to effect a substitution of territory as a necessary incident to an administration of the other provisions of the act.
In the case of Southwestern Gas & Electric Co. v. City of Hatfield, 219 Ark. 515, 243 S. W. 2d 378, it was said:
“In making such determination the Commission may consider and determine questions of law, or mixed questions of law and fact, where such questions are germane and incidental to the final legislative act.”
Impairment of Contracts. Appellees’ argument is to the effect that the Power Company has acquired certain rights by and through its lease contract with the City, and that the legislature could not (by Act 85) constitutionally divest it of such rights. One answer to that argument is that nothing will be taken away from the Power Company if the Commission follows the provisions of Act 85. Theoretically at least neither party can be hurt by operation of the act. If the Power Company gives up anything of value it must not exceed the value of that which it has already received. Moreover, when the Power Company leased from the City, it knew that the State had the paramount right (through the legislature) to allocate territory between it and the cooperatives. The Power Company could not restrict that right by contracting with a third party. If it could, then the State’s entire program of allocating territory would be subject to nullification.
The judgment of the trial court is reversed and the cause is remanded thereto with directions to remand to> the Commission for further proceedings in accordance with this opinion.
Reversed and remanded.
Harris, C. J., and Robinson, J., dissent. | [
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Sam Robinson, Associate Justice.
John Edward Gayler, age 68, died on the 9th day of August, 1960. During his lifetime he had accumulated bank deposits and government bonds of the value of about $40,000.00. Gayler had no wife and no children.
Appellee, Winnifred Preston Collins, whom Gayler had known since she was a little girl, claims that during his lifetime Gayler gave to her the money in the banks and the bonds. Appellant, E. A. Hobbs, Administrator of the Gayler Estate, concedes that Gayler gave the bonds to Mrs. Collins, but denies that he gave her the money in the banks. The Probate Court found that Gayler gave the money in the banks to Mrs. Collins and the Administrator has appealed.
Appellee, Winnifred Collins, first filed in the Probate Court a claim in which she alleged that she is the owner of the money in the banks and the bonds. This was before an inventory was filed in the Gayler estate, and she stated that she did not know whether the Administrator would claim ownership of the money and bonds. Later, the Administrator filed an inventory in which he listed the money and bonds as assets of the estate. Appellee filed exceptions to the inventory in which she alleged that Gayler, the deceased, had given her the money in the banks and the bonds and that she is the owner thereof. Appellant, Administrator, filed a response to the objections to the inventory and prayed that the Probate Court deny the objections and that Winnifred Collins take nothing thereby and for all other proper orders.
First the appellant contends that the Probate Court did not have jurisdiction to determine the ownership of the money. No objection to the jurisdiction of the Probate Court was made until the cause reached this Court on appeal.
The Probate Court was not without jurisdiction of the subject matter. Carlson, Administrator v. Carlson, 224 Ark. 284, 273 S. W. 2d 542, Thomas v. Thomas, 150 Ark. 43, 233 S. W. 808, King v. Stevens, 146 Ark. 443, 225 S. W. 656, Ark. Stats. § 62-2409. If appellant had not wanted to submit the issue of the ownership of the property to the Probate Court, objection should have been made before a full scale trial was had and then appellant would have been in a position to raise the question on appeal. It appears, however, that the Administrator voluntarily submitted to the jurisdiction of the Probate Court. This can be done. Park v. McClemens, 231 Ark. 983, 334 S. W. 2d 709.
The evidence fully sustains the Court’s finding that Gayler gave the money in the bank to Winnifred. All the bank books were left by Gayler with Mrs. Preston, the mother of Winnifred, to be kept for her with a large number of U. S. bonds, purchased by Gayler and made payable to himself and Winnifred Collins. When some of the bonds were first turned over to Mrs. Preston for Winnifred, they did not have Winnifred’s name on them. This was called to Gayler’s attention and he returned the bonds to the government and had them reissued in both names. Thereafter, all bonds purchased by Gayler were made payable to himself and Winnifred. Mrs. Preston was also keeping for Winnifred an insurance policy purchased by Gayler on his own life with Winnifred as the sole beneficiary. One of the bank deposits was in the joint names of Gayler and Winnifred.
The Probate Court is fully sustained by the evidence in finding that Gayler had made the statement numerous times that he had given everything to Winnifred and that he actually gave the money in the bank, represented by the bank books, to Mrs. Preston for Winnifred. The only question is whether Gayler’s intention to make the gift, coupled with the delivery of the savings bank books to Mrs. Preston for Winnifred, and Winnifred’s intention to accept the money as a gift is sufficient in law to constitute a valid inter vivos gift. Our conclusion is that the Probate Court was not in error in holding that there was a completed gift.
To sustain the contention that there was no completed gift, appellant cites such cases as Stiffts v. Worthen, 176 Ark. 585, 3 S. W. 2d 316, Neal v. Neal, 194 Ark. 226, 106 S. W. 2d 595, Krickerberg v. Hoff, 201 Ark. 63, 143 S. W. 2d 560, and Bennett v. Miles, 212 Ark. 273, 205 S. W. 2d 451, but in all of those cases there was a finding that there had been no delivery of the alleged gift.
In the case at bar, the great preponderance of the evidence is that Gayler gave the money in the savings deposits, represented by the bank books, to Mrs. Preston for Winnifred. In Carter v. Walker, 200 Ark. 465, 139 S. W. 2d 233, the Court quoted from Lowe v. Hart, 93 Ark. 548, 125 S. W. 1030, as follows: “To constitute a valid gift inter vivos, the donor must have been of sound mind, must have actully delivered the property to the donee, and must have intended to pass title immediately, and the donee must have accepted the gift.” In Williams v. Smith, 66 Ark. 299, 50 S. W. 513, the Court said: “If the gift be intended in presentí, and be accompanied with such delivery as the nature of the property will admit, and the circumstances and situation of the parties render reasonably possible, it operates at once, and, as between the parties, becomes irrevocable. Such delivery may be made to a bailee as effectually as to a donee in person.” (Our italics). In McCoy’s Administrator v. McCoy, 126 Ky. 783, 104 S. W. 1031, the Court said: ‘ ‘ The authorities hold, almost without exception, that the delivery of a pass or deposit book in a savings bank transfers the money on deposit to the donee.” Citing numerous cases. To the same effect are the cases of Goodson v. Liles, 209 Ala. 335, 96 So. 262, Brodrick v. O’Connor, 271 Mass. 240, 171 N. E. 479, and Dellepaine v. Hynes, 83 Cal. App. 604, 257 P. 180.
The Probate Court’s finding that all the requisites for a valid inter vivos gift are present in the case at bar is not against the preponderance of the evidence. The judgment is therefore affirmed. | [
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Carlton Harris, Chief Justice.
This suit was instituted by appellee as an action in ejectment, and involves the ownership of a strip of land, slightly more than fourteen feet in width, lying between the homes of appellee and appellant, i. e., the issue is the determination of the location of the line between the two properties. The case was tried before the Court, sitting as a jury, and at the conclusion of the evidence, the Court held appellee had acquired title to the tract in question by “open, continuous, and adverse possession for more than the past seven years.” This finding had the effect of placing appellee’s property line to within eighteen inches of appellant’s house. From the judgment so entered, appellant brings this appeal. For reversal, two points are relied upon, as follows:
“L
The Court erred in admitting into evidence Exhibits 1, 2, and 3 to the direct examination of Mrs. Morel, which are photographs purporting to show portions of the premises in dispute, as a proper foundation for their admission was not laid.
II.
The Appellee has not been in such possession of the disputed lands as to ripen into title by adverse possession as contemplated by Arkansas Statutes, Section 37-101.”
III.
The photographs, 3 1/4" by 3 1/4", purport to show appellee’s rose garden, though no flowers are discernible ; in fact, the only plant life that appears is a catalpa tree (which, according to Mrs. Morel, “come up volunteer”, though she had since tended it), and some hedge; a China tree is shown in' two of the photographs. These exhibits were offered in support of appellee’s claim of adverse possession. Appellant objected to the introduction thereof, and we are definitely of the opinion that they should not have been admitted into evidnce. It is true that as a general rule, the admission of photographs as evidence is a matter that lies within the discretion of the trial judge. See McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S. W. 2d 566. However, because of the particular issue involved in this case, we think the trial court erred in admitting these exhibits, for no proper foundation had been laid. Let it be borne in mind that the matter at issue was whether appellee had exercised such acts of control over the strip in question as to establish her right to same by adverse possession. The photographs (introduced through the testimony of Mrs. Morel) show a young girl standing in the area that appellee characterized as the rose garden. Mrs. Morel did not know by whom the pictures were taken, stating only that “the children took the pictures.” These children are not identified other than the young girl shown in the photograph; the witness stated that the latter was her granddaughter, 12 years of age at the time the photographs were taken. She did not give the present age of the granddaughter, and testified that she did not know when the pictures were taken. Two of the three photographs do have a notation on the back, “Mary-1954,” but Mrs. Morel did not place this notation on the photographs, and did not know who had done so. Furthermore, there is no evidence as to the angle or position from which the pictures were made, though it is obvious that each was taken from a different position. In other words, the witness was only vaguely familiar with the photographs (which are rather dim and actually, poor reproductions), and could not say by whom they were made — when they were made — or from what angle they were made. To hold these photographs admissible under this proof would ignore standards heretofore established for the admissibility of photographic evidence. The last two references to background for admissibility are particularly important, and the question of when the photographs were made is especially pertinent to the question of adverse possession. Mrs. Morel testified she purchased the property in 1944. The suit was filed in August, 1959, and evidentiary value of the photographs depends, in large measue, upon when they were taken. The general principle is well stated in Hooks v. General Storage & Transfer Co., 187 Ark. 887, 63 S. W. 2d 527, as follows: “It is a well established rule of law that when the situation and surrounding circumstances are subject to change, photographs, to be admissible as evidence, must have been taken at the time of the transaction or before the situation and circumstances have undergone a change.” Certainly, between 1944 and 1959, the condition of the premises was subject to change, and in determining whether these asserted acts of ownership occurred during a period when title by adverse possession was ripening, the time element is an essential question. Of course, there is a presumption that when the Court sits as a jury, it only considers competent testimony. Johnson v. Spangler, 176 Ark. 328, 2 S. W. 2d 1089. But this is only a presumption, and the record reflects that the Court, in the case before us, apparently gave, at least some, consideration to the photographs. The transcript reflects the following:
‘ ‘ Counsel for appellee:
Q. Do you know what this is (indicating on picture) ?
A. That is a catalpa tree.
The Court: What property is that catalpa tree on!
Witness: On my property.”
II.
Since the judgment is being reversed, we do not discuss, nor pass upon, the question of whether the Court’s finding that appellee had acquired title by adverse possession, is supported by substantial evidence.
In accordance with our discussion under point one, the judgment is reversed, and the cause remanded. On re-trial, all parties shall be permitted to produce any further proof desired relating to the issue of ownership.
Robinson, J., would reverse and dismiss.
One cannot tell definitely, from these photographs whether the hedge runs continuously for a distance, or is only a “clump” serving as a “screen” in front of a window of the Mason house. | [
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Ed. F. McFaddin, Associate Justice.
The question here presented is the legality and propriety of a Circuit Court Order remanding — for the second time — a claim to the Workmen’s Compensation Commission for further investigation.
For a number of years, appellee, John P. Heather, was employed in the manufacturing plant of appellant, Ward Furniture Manufacturing Company. In September, 1956, Heather became ill while at work and has never been able to resume work. He filed claim with the Workmen’s Compensation Commission, claiming total permanent disability because of damage to his respiratory organs resulting from constantly inhaling dust in the place where he worked. He claimed that his disability arose out of and in the course of his employment. Numerous witnesses testified; the hearings were adjourned from time to time at the request of the parties; and, on April 15, 1959 the Workmen’s Compensation Commission delivered a lengthy and well-considered opinion allowing the claim.
The employer appealed to the Sebastian Circuit Court; and on January 11, 1960, that Court entered a judgment which said in part:
"The court therefore finds that although the evidence in the record is insufficient to support the award, there is not sufficient evidence in the record to justify a final denial of the claim and that in the interest of justice this cause should be remanded to the Workmen’s Compensation Commission for further and full hearing.
"IT IS THEREFORE CONSIDERED, ORDERED, AND ADJUDGED BY THE COURT that pursuant to the provisions of the Arkansas Workmen’s Compensation Commission herein appealed from be and the same is hereby vacated and set aside, and this cause be and it is hereby remanded to said Commission with directions that both parties be permitted to present additional evidence, and for other proceedings not inconsistent with this order.”
The claim went back to the Commission, and on August 3, 1960, further lay and medical testimony was offered. Dr. Fose, called by the claimant, stated:
“He’s only got one lung. He’s got fibrosis of the left lung and he ’ll never be any better . . .
Q. What, in your opinion, caused the fibrosis of his lung?
A. I imagine the dust particles, according to the history of it.
Q. Did you take x-rays of his lung?
A. No, sir. I didn’t. I read all the reports, saw all the medical reports on him.
Q. Have you seen any x-rays of his lung?
A. No, I haven’t.”
Dr. Darnall, called by the employer, testified that wood dust would not cause silicosis or asthma; that claimant was a sick man, but there was nothing in his employment to have produced his present condition. In short, the doctor found no evidence that the employee’s present condition arose out of or in the course of his employment.
On August 31, 1960, the Workmen’s Compensation Commission entered an order disallowing the claim of Mr. Feather. That this disallowance was because of the Commission’s understanding of the Circuit Court Judgment of January 11, 1960, is clearly shown by the following excerpt from the Commission’s order:
“We are concerned, first, with the effect of the judgment of the Circuit Court upon this claim and upon the record previously before the Commission. The Supreme Court has time and again construed Section 25 (b) of the Workmen’s Compensation Law (81-1325 (b), Ark. Stats.,. 1947) as a prohibition against a disturbance, on appeal, of findings of fact by the Commission if they are supported by any substantial evidence; and in determining whether there is sufficient evidence, it must be viewed in its strongest light in favor of such findings. See citations on Page 195 of 1960 Replacement, Volume 7-A, Ark. Stats., 1947, Annotated.
“The effect of said judgment by which the Commission is bound is that, giving the testimony its strongest probative force, there was no substantial evidence before the Commission to support the finding in favor of a compensable injury. “Following the Circuit Court’s order, the parties have presented additional evidence, as hereinabove mentioned. There being no substantial evidence in the record, the burden is, of course, on the claimant to show that he was injured while in the course of and as a result of his employment. His own testimony taken before Referee Maner adds little if anything to his former testimony. The testimony of claimant’s witness, Hr. Rose, was somewhat impotent and unsubstantial and was completely refuted by the positive and convincing testimony of Dr. Darnall.
“We, therefore, find that claimant has failed to establish his claim and that it should be denied.”
From the Commission’s Order, the claimant appealed to the Circuit Court, which again vacated the Commission’s Order and again remanded the claim to the Workmen’s Compensation Commission for investigation. We now copy at length from the Opinion and Order of the Circuit Court of December 15, 1960:
‘ ‘ The court again has before it on appeal this workmen’s compensation case in which the claimant seeks compensation for disability which he conetnds arose out of his long employment in a section of the employer’s factory where dust is said to have constantly prevailed due to sanding operations on the furniture. The referee disallowed the claim in an opinion filed April 15, 1959 on the ground that the claimant had failed to show that he received an injury arising out of or in the course of his employment. The full commission on November 10, 1959 reached a contrary decision to that of the referee and allowed the claimant compensation. The case was thereafter appealed to this court and in an opinion dated January 11, 1960 this court remanded the case back to the Workmen’s Compensation Commission for rehearing on the ground that the medical evidence had not been fully developed and that due to the inconclusive state of the record it was considered by the court that no intelligent opinion could be arrived at so as to properly adjudicate the issue of whether or not the claimant’s disability arose out of his employment. In accordance with this view this court set aside the award and remanded the case to the full commission for a further and full hearing. Upon having the matter returned to it the full commission directed Referee Maner to conduct a hearing for the commission and at this hearing the claimant, Dr. Harley C. Darnall and Dr. W. F. Rose testified. Following this hearing the commission rendered its opinion dated August 31, 1960 now before the court. In this opinion the commission found that the additional testimony had not produced any substantial evidence in support of the claim and ruled that since they considered themselves bound by the court’s previous finding that the record as remanded was not sufficient and since no substantial proof had been added to it that therefore the award would have to be denied.
“This court is in agreement with the commission that the testimony adduced before the referee added nothing to the record . . . The court is accordingly constrained-to-take the position that the purpose of its previous order has yet to be carried out. In view of this omission the record is therefore being again remanded for a rehearing with the specific order to the commission that it employ a medical examiner qualified in the field in question for the purpose of securing additional specialist medical testimony relative to the issue of whether or not the claimant’s disability arose out of and in the course of his employment.
“In view of this situation a brief review of certain aspects of this case appear to be indicated. It is Undisputed that since 1948 the claimant has been employed in a room where furniture was sanded and there is nothing in the record to controvert the testimony of the claimant and others who testified that the sanding operations produced dust to which claimant was necessarily exposed. Respondent’s own doctor admits that the claimant is incapacitated for work but he does not explain from what cause, his testimony being limited to claimant’s pulmonary tree which in the doctor’s opinion had not been affected by the dust. The claimant’s medical testimony came from Dr. Thompson, a general practitioner. Dr. Thompson offered a choice of several diagnoses as to the cause of the claimant’s disability, being an allergy from work dust manifested by asthma, a fibrotic condition of the lungs produced by silicosis, bronchietasis, and he also suspected tuberculosis. Dr. Thompson caused the claimant to be examined by Dr. Hollis at the Arkansas Tuberculosis Sanitorium and Dr. Hollis’ report stated that he found no evidence of silicosis or tuberculosis, and that claimant had no marked pulmonary insufficiency. There was, according to Dr. Hollis, ‘some evidence of pulmonary emphysema,’ and Dr. Darnall also mentioned in his testimony that claimant had ‘what we diagnosed as minimal pulmonary emphysema,’ but that he regarded the condition as normal for the claimant’s age and the subject of emphysema has not been pursued in the record.
“While sentences can be extracted from Dr. Thompson’s testimony that would in some measure provide some basis for a service connected disability, his testimony as a whole and when considered in the light of the other medical proof is regarded as below the minimum standards of substantial proof. The court realizes that this position verges upon the area of passing upon the credibility of the witnesses, thus invading the province of the commission. However thin the line may be, the question of what constitutes substantial evidence is understood by this court to be a question of law, and in the instant case the court regards Dr. Thompson’s testimony as presenting no more than a choice of possibilities, and thus as unsubstantial.
‘ ‘ The next question is: Can or should we stop here? In the case at bar the court does not feel that this question can be answered in the affirmative for several reasons bearing on the rights of both the claimant and his employer. In this case we have a disabled claimant, this is admitted, and there are medical questions involved which if adequately developed might well support his theory of the case. As the matter stands we have but one side of the story fairly and lucidly presented, that being the testimony of Dr. Darnall who unequivocally refutes claimant’s theory. And he may be entirely correct, for frequently the complex human body confuses the sufferer as to the true source of his ailment, and in the instant case dust may not be the foundation of the claimant’s condition. Likewise, it goes without saying, a medical expert may be confused in his diagnosis. This colloquy of the court reveals the confusion that exists in its mind with regard to this case and illustrates why it was remanded to the commission for further proof. This case is one-sided insofar as proof goes, and since this is a condition which can be remedied the remedy should be applied in the interest of fairness to all concerned.
“In remanding the record the court wishes to take this opportunity to express belief in the principle that a circuit court does not have to accept for final adjudication just any compensation record forwarded to it but that the court may and should examine the record to determine whether or not all reasonably available and necessary proof has been adequately developed so as to permit a proper consideration of the issues involved. This view is essential to and compatible with the duty of the court to pass upon the questions relegated to its jurisdiction under the workmen’s compensation act and gives meaning to that part of the statute giving the court authority to remand a case for a rehearing. (Ar kansas Statutes Annotated, Yol. 7-A, Sec. 81-1325 (b).) Further, in connection with the subject of the completeness of a record, it is the opinion of the court that the Workmen’s Compensation Commission should not regard itself as sitting aloof as in a purely adversary proceeding, accepting only what is offered it in deciding a case. The workmen’s compensation act enjoins a different role in letter and spirit, for example Sec. 81-1319 (i) of the Arkansas Statutes Annotated provides that the commission may upon its own initiative * * * make such investigation, cause such medical examination to be made, hold such hearings, and take such further action as the commission deems proper for the protection of the rights of all parties; Sec. 81-1823 (b) provides that the commission shall make or cause to be made such investigation as it considers necessary in respect to a claim; and in Sec. 81-1327 the law provides that in conducting hearings the commission may make such investigations or inquiries or conduct the hearing in a manner as will best ascertain the rights of the parties. Lastly, in remanding this record for rehearing with the direction that the commission make such arrangements as are necessary for the claimant’s examination by a competent medical specialist, and for the procuring of his testimony before the commission, the court has in mind sub-sections (2) and (3) of Sec. 81-1343 of the statutes. One further subject should perhaps be mentioned. In holding the record as returned to the court as insufficient to support the award, the commission, as noted, reasoned that they were bound to accept the prior decision of the court that the original record was insufficient, and that since the additional proof was not substantial the commission reversed itself and disallowed the claim. Without questing the logic of the commission’s reasoning the court wishes to state that it did not intend to commit the commission to a piece-meal examination of each hearing nor was there any intent- to circumscribe the future judgment of the commission after the additional evidence was adduced, but rather it was the intent of the court to give the commission a free hand to act as it saw fit in the light of all the testimony finally before it. With this in view the award to the claimant was set aside and for the same reason the denial of the award is also set aside. In connection with this procedure some question might arise as to the propriety and right of the commission to again exercise jurisdiction where its previous award had been undisturbed by the appellate court.
“IT IS THEREFORE, BY THE COURT CONSIDERED, ORDERED AND ADJUDGED that pursuant to the provisions of the Arkansas Workmen’s Compensation Act, the award of the Arkansas Workmen’s Compensation Commission herein appealed from be and the same is hereby vacated and set aside and that this cause be and it is hereby remanded to said commission with directions to carry out the orders of the court contained herein.”
From the foregoing Circuit Court Order of December 15, 1960, the employer appeals to this Court. Assuming, without deciding, that the said Circuit Court Order is an appealable judgment, we conclude that the sole desire of the Circuit Court was to see justice done by a full investigation and development of the facts. This Court, as well as the Workmen’s Compensation Commission, will join the Circuit Court in such desire.
The first Circuit Court Order was not concise enough for the Commission to understand all that was desired, but the present Order of the Circuit Court leaves no uncertainty. All of the evidence shows that this claimant collapsed while at work in September, 1956, and has not been able to work subsequently. Did his injury arise out of and in the course of his employment? Does he suffer from some occupational disease? Can this claimant make a ease for compensation as was done in Solid Steel Scissors Co. v. Kennedy, 205 Ark. 958, 171 S. W. 2d 929? Various other unanswered matters are reflected by the record in this case. Under § 81-1343 Ark. Stats, under other provisions of the Compensation Act, the Commission has full power to obtain the evidence that will afford sufficient answers to determine this claim. A hearing before the Commission is not a game: it is a patient, honest, sincere effort to ascertain the facts and apply the law. Onr Commission has been most diligent and conscientious in the performance of its duties; and we feel sure that this case will be thoroughly developed now that the Circuit Court’s Order is fully understood.
Affirmed.
After eight and one-half pages of factual recitations, the Commission’s opinion states in part:
“The evidence in the case is undisputed and we are, therefore, confronted with the question of whether or not testimony of claimant, his wife, his fellow employees and of Dr. H. B. Thompson constitutes substantial proof that claimant did sustain an injury arising out of and during the course of his employment.
“We have made an unusually long statement, for the reason that it appears to us that the Referee erred in his finding that the claimant failed to sustain the burden of proof placed on him by the Act to show that he sustained an injury arising out of or in the course of his employment.
“There is an abundance of testimony that establishes that the condition of the place where claimant worked was conducive to lung infection. No one has denied that the claimant became disabled while at work, went home sick, was treated by a physician for a long period of time, never returned to seek employment, and has never worked at anything since the day he left his employment on September 25, 1956.
“It is true that the claimant has not shown that he has silicosis, but we do not understand that that is his contention. It is undisputed that he does have a lung infection. The Booneville doctors themselves certified that they found evidence of pulmonary emphysema. This term is defined in Dorland’s American Medical Dictionary as ‘unnatural distention and rupture of the air vessels of the lungs. It is usually due to excessive effort in expiration.’ So it is established beyond question that claimant has some sort of disease of the lungs. Whether it is temporary or permanent, we do not know, but there is no question but what claimant is wholly disabled at the present time. There is some intimation that being away from the place where he is requred to breathe dust and proper treatment, he may recover.
“We are, therefore, of the opinion that the claimant has established a compensable injury and that he should be paid at the rate of 65% of his earnings at the time he ceased working for respondent, not to exceed a weekly rate of $25.00. . . '
Dr. Darnall admitted that he did not examine Mr. Heather for bronchiectasis: “No, I did not do a bronchogram on him. I didn’t take a brenehography.” | [
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George Rose Smith, J.
In 1960 the Arkansas '& Ozarks Railway Corporation abandoned its operations as a railroad. In 1961 the company brought this suit to quiet its title to a segment of its former right of way, 200 feet in width, lying in the town of Alpena. The former owners of the fee were named as defendants and were served by warning order, but they did not appear in the case. The suit was resisted by A. R. Bailey and others, who intervened and contended that the abandoned right of way had reverted to them as abutting owners. The chancellor dismissed both the complaint and the intervention for want of equity, and the plaintiff and the intervenors have separately appealed.
We consider first the railroad company’s appeal. The townsite of Alpena was formerly owned by George West as trustee for Allegheny Improvement Company, an Illinois corporation. On September 7, 1901, West as trustee conveyed the right of way now in question to St. Louis & North Arkansas Railroad Company, the appellant’s predecessor, with a provision in the deed that the right of way should be held by the grantee “so long as the same shall be required and used for railroad purposes and no longer.” Thus this appellant’s right of occupancy ostensibly ended when the line was abandoned in 1960.
To establish its claim to the fee the appellant filed two affidavits in which it was stated that the railroad company had been in open, notorious, and peaceable possession of the right-of-way strip for more than seven years. It was also stated that the company had paid the taxes for more than seven years and that there had been no adverse occupant of the property.
In a suit to quiet title the plaintiff has the burden of establishing its title to the land. Bullock v. Duerson, 95 Ark. 445, 129 S. W. 1083. The invalidity of the plaintiff’s title may be shown by an adverse party whose own claim to the land is void. Meyer v. Snell, 89 Ark. 298, 116 S. W. 208. These affidavits do not establish a prima facie title. The company was entitled to possession as long as the strip was used for railroad purposes. That possession, attributable to the easement, was not adverse to the fee title unless and until there was notice of a claim hostile to the fee. Terral v. Brooks, 194 Ark. 311, 108 S. W. 2d 489. Since there is no proof that the appellant ever asserted any claim other than its right to use the land for railroad purposes the chancellor correctly held that the plaintiff did not make a prima facie case.
The intervenors’ claim must also be rejected, because their land does not abut the abandoned right of way. When West as trustee platted the townsite in 1900 he dedicated River street along one side of what later became the railroad right of way and Main street along the other side. When West as trustee conveyed the strip to the railroad company in 1901 it was bounded on both sides by public streets, with no private property in between. The intervenors own various lots abutting one street or the other on the side opposite the abandoned railroad right of way.
A situation in effect identical to this one was considered in McGee v. Swearengen, 194 Ark. 735, 109 S. W. 2d 444. There a drainage district easement lay between Nance avenue on the north and a state highway on the south, just as the railroad strip lies between River and Main. Monaghan owned the fee underlying the drainage easement and also the land north of Nance avenue, just as West as trustee owned the entire Alpena townsite in 1900. Monaghan platted the land north of Nance avenue and sold it by lot and block number, just as West did in the ease at bar. We held that Monaghan’s reserved fee in the drainage property did not attach to and become a part of Nance avenue to such an extent that his conveyance of the lots on the other side of the street vested in the grantees any rights in the fee of the drainage district property. Under the rule laid down in that case the chancellor properly concluded that these intervenors have no claim to the abandoned right of way that lies across the street from their lots.
Affirmed. | [
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George Rose Smith, J.
On May 21, 1959, the appellees, Anson Hudgens and his daughter, bought a used Ford car from E. W. Mack, doing business as West Memphis Auto Sales. The conditional sales contract executed by the purchasers was transferred by Mack to the appellant finance company the next day. None of the monthly payments were made by the purchasers, who insist that they were defrauded. The appellant brought this action in replevin to recover the car. The case was transferred to equity, where the chancellor canceled the contract for fraud in its procurement and for usury. We do not reach the issue of usury, for we have concluded that the decree must in any event be affirmed upon the finding of fraud.
It should be stated at. the outset that the appellant does not and cannot invoke the protection afforded to the holder of a negotiable instrument. No promissory note is involved, and the conditional sales contract is not negotiable, as it does not contain an unconditional promise payble to order or bearer. Gale & Co. v. Wallace, 210 Ark. 161, 194 S. W. 2d 881. Hence, as we held in the case cited, the appellant holds the contract subject to defenses available against the original seller.
If the execution of the contract was induced by fraud it was properly canceled. Gentry v. Little Rock Road Mach. Co., 232 Ark. 580, 339 S. W. 2d 101. Here, as in the Gentry case, the purchasers testified that the seller represented the vehicle to be in good condition, when in fact it needed extensive repairs. Mack’s salesman gave the appellees a signed memorandum stating that the seller had given a 30-day guarantee on the motor, transmission, and rear end; but when the dissatisfied purchasers brought the car back within a few days Mack refused to repair it unless the buyers would bear half the expense.
A more serious charge of fraud is the appellees’ assertion that Mack’s salesman, Harris, induced them to sign the contract in blank and then filled it in for $300 more than the agreed purchase price of $1,095. As a witness for the appellant Harris admitted that the contract was signed in blank and was left with him for completion, but he insisted that the figure which he inserted as the purchase price, $1,395, was in accordance with the parties’ agreement.
No useful purpose would be served by a detailed discussion of the conflicting testimony. Hudgens, his daughter, and his son were all present when the car was bought, and all three testified to facts amply supporting the charge of fraud. Their version of the matter is contradicted only by the salesman, Harris. After study ing the record we cannot say that the evidence adduced by one side is essentially more credible than that adduced by the other. The chancellor had the great advantage of observing the witnesses as they testified. His findings do not appear to us to be against the weight of the evidence.
Affirmed.
McFaddin, J., concurs. | [
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George Rose Smith, J.,
on rehearing. This was originally an action in replevin. The appellant’s complaint alleged the car to be worth $1,000. At the inception of the case the appellant obtained possession of the vehicle by executing a delivery bond.
The ease was later transferred to equity. In the final decree the chancellor canceled the contract for fraud and for usury and gave the appellees a judgment for $1,060, representing the value of the car and $60 damages for the wrongful repossession. We affirmed the decree upon the ground of fraud alone, without reaching the question of usury. 234 Ark. 668.
In a petition for rehearing the appellant correctly points out that the judgment is excessive if the sole issue is that of fraud. One who obtains rescission of a contract for fraud must return what he has received, the parties being placed in status quo. Johnson v. Walker, 25 Ark. 196; Kilgo v. Continental Cas. Co., 140 Ark. 336, 218 S. W. 171. Hence if the case is merely one of fraud the repossession of the car was not wrongful, for the purchasers were required to surrender it and could recover only their down payment of $245, with interest.
On the other hand, when a contract of sale is set aside for usury the purchaser is entitled to keep the property. Universal C. I. T. Credit Corp. v. Stanley, 225 Ark. 96, 279 S. W. 2d 556. If this contract was usurious the chancellor was right in awarding the appellees a judgment for the value of the car. It thus becomes necessary for us to pass upon the issue of usury, to fix the measure of damages.
The facts, as found by the chancellor, show that the seller represented the price of the car to be $1,095. The salesman induced the appellees to sign the contract in blank and later fraudulently filled in the price as being $1,395, an excessive charge of $300. The contract recites an interest charge of $133.42, which is within the legal limit of 10 per cent per annum if the price was really $1,395. If, however, the excessive charge of $300 is treated as interest the agreement is plainly usurious.
It is shown without dispute that before the seller would agree to the transaction he telephoned the appellant finance company for an investigation of the purchasers’ credit, to be certain that the conditional sales contract could be transferred. The appellees’ credit was found to be good. On the day after the sale the dealer assigned the contract to the appellant. The recited unpaid principal balance was $1,150, which the finance company paid by issuing a check for $943 and by. setting up a reserve of $207 which was to be paid to the dealer when all the monthly installments had been met by the purchasers. (Whether the practice of setting up such a reserve might involve usury as between the finance company and the dealer is not before us, for the dealer has not complained. The only issue here is whether the original transaction between the seller and the buyers was .usurious.)
Did the excessive charge of $300 amount either to usury in itself or to a scheme resorted to as a cloak for usury?
Where a lender induces the borrower to sign a note in blank and later fills in the principal in a sum greater than the amount actually lent it has been held (correctly, we think) that these facts support a finding of usury. Cortner v. Bennett, 230 Miss. 369, 92 So. 2d 559; Autocredit of Fort Worth v. Pritchett, Tex. Civ. App., 223 S. W. 2d 951; contra, Chambers v. Gilbert, 68 Minn. 183, 70 N. W. 1077.
Yet not every instance of fraud or trickery in connection with a loan or credit sale can properly be classified as usury. If a lender should knowingly give the borrower counterfeit money the transaction would be fraudulent and criminal, but it would obviously not be usurious, any more than the purchase of goods with counterfeit money constitutes usury. Again, if a thief should sell stolen property on credit the transaction would be subject to rescission, but not for usury.
To determine on which side of the line this case falls we must understand what is and what is not usury. ‘ ‘ The excess over the legal rate charged to a borrower for the use of money” is said to be usury. Bouvier’s Law Dictionary (8th Ed.). An almost identical definition is given in Webster’s Third International Dictionary.
The many definitions in our own cases are substantially to the same effect. “Usury is a corrupt agreement for more than the legal rate of interest on a loan of money, or for the forbearance of a debt.” Ford v. Hancock, 36 Ark. 248. “It is essential, in order to establish the plea of usury, that there was a loan or forbearance of money, and that for such forbearance there was an intent or agreement to take unlawful interest, and that such unlawful interest was actually taken or reserved. The wrongful act of usury will never be imputed to the parties, and it will not be inferred when the opposite conclusion can be reasonably and fairly reached.” Briggs v. Steele, 91 Ark. 458, 121 S. W. 754. A mutual agreement for unlawful interest is not necessary to constitute usury, but “there must have been an intention on the part of the lender to take or receive more than the legal rate of interest.” Bauer v. Wade, 170 Ark. 1020, 282 S. W. 359. “ ‘Forbearance’ . . . simply means that the person to whom the money is owed waits for all or part of the money after the consummation of the contract in which the money is involved.” Sloan v. Sears, Roebuck & Co., 228 Ark. 464, 308 S. W. 2d 802.
It will be seen that the fundamental characteristic of usury is the exaction of an excessive charge for the loan or forbearance of money. In the case at bar if the dealer had intended to keep the contract himself and had inserted an increased principal amount as a device for obtaining a greater return as compensation for his extension of credit then a finding of usury might well be justified.
The actual case, however, is quite different. Here the seller could not have intended to make a charge for his forbearance of the unpaid purchase price, simply because he never meant to forbear — that is, as we said in the Sloan case, to wait for his money. This dealer would not even enter into the sale until he had first made sure that he could immediately transfer the contract to the finance company. That the seller’s conduct amounted to fraud we have no doubt, but there is lacking the essential characteristic that is the earmark of usury.
It was the finance company that exercised the forbearance, but it did not receive an extra $300 for doing so. Instead, it paid the dealer in full for the recited principal of the debt and was to receive no more than legal interest upon its investment. In this respect the case is to be distinguished from Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973, and other recent cases in which we have found contracts of sale to be usurious. Here there is no indication that the appellant was aware of the dealer’s excessive charge or acted collusively in the transaction. And it is plain enough that this dealer’s method of operation, unlike the various cloaks for usury, could not be repeatedly used as a means of victimizing the public. The salient factor in this transaction was the seller’s dishonesty rather than his attempt to take advantage of the buyers’ need for credit. No dealer could long remain in business if he habitually defrauded his customers and subjected the finance company to many suits like this one.
In making a finding of usury the chancellor took the position that the recited interest charge of $133.42, although amounting to less than the legal rate upon the recited balance of $1,150, was usurious because it would have been an illegal charge upon a balance of $850, which was the sum orally agreed upon-by the parties. This position is not sound. Neither the dealer nor the finance company ever had any intention of charging $133.42 upon a principal balance of $850, nor did the purchasers ever have any intention of making such a payment. The fraudulent contract must stand or fall in its entirety. "We cannot make a new agreement for the parties by giving effect to the recited interest figure, which is favorable to the appellees’ contention, and at the same time rejecting the recited principal figure, which is unfavorable to them.
What we have here is really a routine case of fraud, for which the principles of equity provide an adequate remedy. Our constitution, Art. 19, § 13, imposes a severe penalty for usury; but we are not at liberty to amend the constitution, in effect, by extending its language to reach a transaction that does not fall within the letter or the spirit of any definition of usury that we have been able to find in any authority in any jurisdiction. Had this contract been usurious in the beginning the appellant would have taken it subject to that infirmity. Clem v. Nelson, 230 Ark. 296, 322 S. W. 2d 448. But the contract, while fraudulent, was never usurious, because no excessive charge was made for the loan or forbearance of money.
The petition for rehearing is granted. The decree is reversed and the cause remanded for the entry of a decree rescinding the contract for fraud.
Ward, J., concurs.
McFaddin, Robinson, and Johnson, JJ., dissent. | [
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Ed. F. McFaddin, Associate Justice.
This is an original application filed in this Court for permission to file a "Writ of Error Coram Nobis in the Union Circuit Court for inquiry as to Mitchell’s sanity at the time he was tried and convicted in that Court.
Ths is the fourth time this man Lonnie Mitchell has been in litigation in this Court. The first case was Mitchell v. State (Case No. 4950, decided September 21, 1959), 230 Ark. 894, 327 S. W. 2d 384, in which we affirmed the conviction of Mitchell for rape. The second case was Mitchell v. State (Case No. 4984, decided September 12, 1960), 232 Ark. 371, 337 S. W. 2d 663, in which we held that the Circuit Court of Union County had no jurisdiction to hear a Motion to Vacate the Judgment of Conviction in the first ease, since this Court had not reinvested the Circuit Court with such jurisdiction. The third case was Mitchell v. State ex rel Henslee (Case No. 5-2328, decided May 8, 1961), 233 Ark. 578, 346 S. W. 2d 201, in which we affirmed the judgment of the Circuit Court of Jefferson County which had dismissed Mitchell’s Petition for Writ of Habeas Corpus.
The present (fourth) case was filed in this Court on July 3, 1961, and is an “Application for Permission to File Petition for Writ of Error Coram Nobis.” This application is filed in this Court because we affirmed the first case, thereby acquiring jurisdiction; and the Circuit Court cannot hear a Writ of Error Coram Nobis in a case appealed to this Court until we grant such permission. Hudspeth v. State, 191 Ark. 963, 88 S. W. 2d 858. The said application filed herein by the attorneys for Mitchell alleges:
“2. Petitioner avers and verily believes that he was insane at the time of the commission of the offense for which he is now convicted.
“3. Petitioner avers and verily believes that not only was he insane at the time of the crime for which he was convicted and is now committed, bnt that he was insane at the time of the trial wherein he was convicted and sentenced to death, and further that he is presently insane.
“4. Petitioner did not have a mental examination prior to his trial, and has been repeatedly refused permission to have a private psychiatrist examine him, and Petitioner honestly feels that a mental examination by a private psychiatrist is absolutely necessary so as to afford appellant an opportunity to be heard.
‘ ‘ 5. Petitioner’s insanity was not known at the time of the trial, and such fact was not then suggested, or raised in issue by either of the parties hereto; Petitioner avers that he did not have the mental capacity to so apprise the trial court of his mental condition.
‘ ‘ 6. That no other remedy is available to Petitioner to review and inquire into the question of his insanity at the time that the crime was committed, and also as to his insanity at the time of the trial, except the remedy as provided by a writ of error coram nobis.”
In Jenkins v. State, 223 Ark. 245, 265 S. W. 2d 512, we held that we would not grant permission to file a Writ of Error Coram Nobis to inquire into the accused’s sanity at the time of the offense or at the time of the trial when the record on which we affirmed the conviction showed that the accused’s sanity was a matter considered at the trial when he was convicted. But we have repeatedly held, as stated in Hydrick v. State, 104 Ark. 43, 148 S.W. 541:
‘ ‘ This court has repeatedly held that after the expiration of the term at which a judgment of conviction was rendered, the court may, upon proper showing of insanity of the accused at the time of the trial, which was not suggested at the trial issue the writ of error coram nobis for the purpose of inquiring into that question, :"3
In 24 C. J. S. p, 149, “Criminal Law” § 1606, cases are cited to sustain this textual statement:
“Insanity. Where, after the expiration of a term it appears that the accused was insane at the time of the trial, which was not then known, then writ may be used to set aside and vacate the judgment.”
We have carefully checked the record in the first case {i. e., the original trial and conviction of Mitchell); and in that trial there was no mention, suggestion, or intimation of Mitchell’s insanity at the time of the offense or at the time of the trial. The present application is unverified and is not supported by any affidavits; and we were on the verge of denying it as not filed in good faith, until Mitchell’s attorneys filed in this Court on November 13,1961, their motiqn to require the Superintendent of the Arkansas State Penitentiary to permit Mitchell to be examined by a private psychiatrist. The motion alleges in part:
“2. That the petitioner, through his attorneys, has on several occasions requested permission of the Superintendent of the Arkansas State Penitentiary, the aforesaid Lee Henslee, to have the Petitioner examined by a private psychiatrist but in each instance these requests have been denied by the said Lee Henslee: the requests have extended over a period of more than a year and a half.
‘ ‘ 3. That the petitioner, through his attorneys, has retained the services of a private psychiatrist to perform the examination, which services have been on a retainer all during the period that the requests have been made, but that no examination has been given because permission has been refused by the Superintendent of the Arkansas State Penitentiary, the said Lee Henslee; that the private psychiatrist is ready, willing and able to perform the examination at any time that permission is granted. ’ ’
When the said motion was filed in this Court on November 13,1961, proper arrangements were made and Mitchell was examined by a private psychiatrist chosen by said attorneys; and they filed in this Court on February 5, 1962, the eight-page report of Dr. Elizabeth Fletcher as the private psychiatrist selected by Mitchell’s attorneys to examine him. It is a single-spaced document covering two examinations of Mitchell made by said psychiatrist: one interview was on January 20, 1962, and the other was on January 29, 1962; and the report reflects collaboration with another psychiatrist. Dr. Fletcher’s report concludes that Mitchell is without psychosis: “It is felt that he is competent and knows right from wrong. ’ ’ There is nothing in the report that tends in any way to show that Mitchell was insane, either at the time of the commission of the offense, or at the time of his original trial, or at any other time. A careful perusal of the report convinces us that Mitchell was sane at all times.
The report of Dr. Elizabeth Fletcher is the only material of any kind tendered by the petitioner and his attorneys and, as aforesaid, this report tends to negative all of the allegations in the original motion filed herein on July 3, 1961. In Jenkins v. State, 223 Ark. 245, 265 S. W. 2d 512, in denying a motion for leave to file a petition for writ of error coram nobis, we said: “. . . we reach the conclusion that the supporting affidavits fail to disclose sufficient facts to warrant the conclusions of the affiants. The meager facts stated are woefully insufficient to sustain the conclusions of insanity alleged; and the attack made on the judgment is therefore lacking in merit.” In the case at bar, there is absolutely no evidence to support the allegations made in the application for permission to file a petition for writ of error coram nobis; and the leave to file said petition is hereby denied.
The petition also contains allegations that he is presently insane; but those allegations should be considered in a proceeding under § 43-2622 and not by Writ of Error Coram Nobis.
If Mitchell is presently insane, as the application alleges, then the proceedings should probably be by a next friend for him, as was done in Hydrick v. State, 104 Ark. 43, 148 S. W. 541; but we treat Mitchell’s present attorneys as his next friends in order to reach the petition without further delay.
For subsequent cases see Hodges v. State, 111 Ark. 22, 163 S. W. 506; Cunningham v. State, 149 Ark. 336, 232 S. W. 425; Kelley v. State, 156 Ark. 188, 246 S. W. 4; Sease v. State, 157 Ark. 217, 247 S. W. 1036; and Hardwick v. State, 220 Ark. 464, 248 S. W. 2d 377; Black v. State, 216 Ark. 805, 227 S. W. 2d 629; and Leggett v. State, 231 Ark. 13, 328 S. W. 2d 252. There are also annotations in 10 A.L.R. 213, 30 A.L.R. 1416, and 145 A.L.R. 818.
This statement in the said motion is misleading. The petitioner may not have been examined by a private psychiatrist, but he was examined by the Staff of the State Hospital pursuant to law and there is in the files in this case a four-page report, dated January 5, 1960, which discloses that Mitchell was examined by the Staff of the State Hospital and found “without psychosis.” This report recites that the examination was made because one of Mitchell’s present attorneys requested the Superintendent of the Penitentiary to have Mitchell examined. | [
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McCulloch, C. J.
Appellant M. F. Barton instituted this action in the ¡chancery court of Pope County to establish and quiet her title to certain lands lying in that county, and also a large amount of personal property, all of which she claims by inheritance from .her brother, J. K. Bowers, who died without lineal heirs. A portion of the lands owned by decedent, J. K. Bowers, came to him by inheritance from his father, and therefore constituted an ancestral estate; tihe remaining portion of the lands, Which is quite the largest part of his estate, were lands which he acquired himself by purchase. J. K. Bowers died-in Pope County on November 27, 1912, and was survived by Ms wife, who died one day later1 without having had her dower assigned to her. Mrs. Barton was the only collateral heir of J. K. Bowers of the full blood, but he left other heirs of the half blood, namely, descenidents of his half brother, W. A. Travis. Mrs. Bowers was a Boyd before her marriage and she died cMldless, leaving collateral heirs who were made parties to tMs proceeding. The Travis heirs were also made parties, as was the administrator of the estate of said decedent.
The court in its decree awarded the ancestral lands to the appellant, Mrs. Barton; and divided the personal property and the land constituting the new acquisition, one-half to the Boyds, as heirs at law of the widow of J. K. Bowers, and one-fourth to appellant, Mrs. Barton, and the other fourth to the Travis heirs. The Travis heirs have cross-appealed from that part of the decree which awards a portion of the estate to the Boyd heirs and also from 'the part of the decree which awards all of the so-called ancestral lands to appellant.
The contention of appellant is that because the widow died before her dower was assigned, and without asserting a claim of her right to have it -assigned, she did not become immediately vested with an estate of such a character that it passed at her death to her heirs; and it is also contended that if the widow took any interest in the land, it was as heir of the decedent in the nature of an ancestral estate, which upon her death went back to the source whence it came, i. e., the blood of the original donor, and that her heirs took nothing by inheritance.
The controlling statute on the subject of widow’s dower reads as follows: “If a husband die, leaving a widow and no children, such widow shall be endowed in 'fee simple of one-half of the real estate of wMch such husband died seized, where said estate is a new acquisition, and not an ancestral estate; and one-half of the personal estate, absolutely and in her own right, as against collateral heirs, but, as against creditors, she shall be endowed with one-third of the real estate in fee simple if a new acquisition and not ancestral, and of one-third of the personal property absolutely. Provided, if the real estate of the husband be an ancestral estate she shall he endowed in a life estate of .one-half of said real estate as against colateral heirs, and one-third as against creditors.” Kirby’s Digest, § 2709.
The argument of appellant is based upon decisions of this court to the effect that the widow’s dower right, before 'allotment to her in severalty of her share; is not transferable to a stranger so as to confer any rights enforceable at law. Jacoway v. McGarrah, 21 Ark. 347; Jacks v. Dyer, 31 Ark. 334; Weaver v. Rush, 62 Ark 51; Flowers v. Flowers, 84 Ark. 557. Prom this premise it is argued that, under-the present statute, if the widow dies without asserting her claim, neither her personal representatives nor heirs can maintain an action to recover the land nor for personal property not assigned to her as dower before her death. The statute quoted above was enacted in 1891 and worked a very material change in the law on that subject. Prior to the passage of that statute, the widow took only a life estate, but now, in certain instances, she takes land in fee simple. It has always been the law of this State that the widow’s right to dower in personal property is not lost by her death, but descends to her personal representatives for the benefit of her creditors or heirs, and this is so for the reason ■that her dower right in personalty is absolute. The statute now under consideration gives the widow an absolute estate, and therefore it necessarily follows, for the same reason, that the interest conferred by the statute vests immediately upon the death of the husband and descends to the heirs of the widow, whether the assignment is made before her death or not. She takes absolutely an undivided interest in fee simple, .and it is such an interest as immediately vests and without assignment becomes subject to transmission by conveyance or inheritance.
The following is laid down as the rule with respe'ot to personal property, and we think it is equally appli cable to real estate where an interest is conferred in fee simple: “If the surviving spouse of an intestate dies before a distribution of the intestate’s personalty has been made, the survivor’s distributive share vests on the other’s death, both at common law and under the statutes, and passes to the survivor’s personal representatives.” 14 Cyc. 63.
In Indiana, where there is a similar statute, the courts of that State held that the widow’s one-third dower vested at the moment of the husband’s death. Mills v. Marshall, 8 Ind. 54. Such is the construction of a similar statute in Vermont. Johnson v. Johnson, 41 Vt. 467. Under a statute in Iowa which provides that “one-third in value of all the legal or equitable estates in real property possessed by the husband at any time during marriage, * * * shall be set apart as her (the wife’s) property in fee simple if she survives him,” the Supreme Court of that State in construing the statute said: “Upon the death of the husband the widow was vested with the legal title to one-third of the real estate of which her husband died seized. This being so, the estate would naturally descend to her heirs, whether her interest had been set apart or not. The estate vests immediately upon the death of the husband, or it doesn’t vest at all. Being a fee simple estate, it must of necessity descend to the heirs of the widow, unless she has in some manner disposed of it in her lifetime. Such an estate can not be obliterated or destroyed by the mere passive act of the owner unless there is some statute which so declares.” Potter v. Worley, 57 Ia. 66. The Supreme Court of Florida so construed a similar statute in the case of Woodberry v. Matherson, 19 Fla. 778. Mr. Freeman, in his notes to the case of Sanders v. McMillan, 39 Am. State Rep. 19, said: “In some parts of the United .States the estate has (been changed by statute to one in fee, and it is a necessary result of this .change that if the widow does not procure an assignment in her lifetime her heirs must 'be permitted, .after her death, to prosecute the proceedings requisite to an assignment, for, if such were not the case her estate in fee would ¡be converted into .an estate for life only by her mere inaction.”
We think, too, that the question is decided by this court in Drinkwater v. Crist, 83 Ark. 293. After quoting the statute (Section 2700) of Kirby’s Digest), it was said: “It fellows that the mother of appellee was. the owner of one-half of the lands in controversy, and appellee, when her mother died, inherited her estate.” The statement of facts in that case shows that the property was never assigned to the widow as her dower, yet the court held that the interest of the widow descended to her heirs, and the opinion constitutes a construction of the statute which ought to be taken las final. No authorities were cited in the opinion, ibut an examination of the authorities now demonstrates the correctness of the decision. It is contended that that decision doesn’t apply here for the reason that the widow left lineal heirs, whereas in the present case there are only collateral heirs. That, however, is not a material distinction, because if the interest of the widow descended to her heirs, it is unimportant whether they are collateral or lineal. Either will take as 'heirs if the widow, before allotment of dower, acquired the lands under the statute as an inheritable estate.
It is next contended by learned counsel for appellant that the interest which the widow took under the statute was as heir of her husband, and that under our statute of descent it must go back to the blood of the original donor. This argument, is, we think, unsound for more than'one reason. In the first place, it is a mistake to assume that the widow takes as heir, for the statute expressly declares that the widow “shall be endowed in fee simple of .one-half of the real estate of which such husband died seized.” Counsel rely mainly upon what they conceive to be the effect of certain decisions of the Supreme Court of Indiana. Fletcher v. Holmes, 32 Ind. 497, and other cases cited on the brief. In all of the eases cited by counsel, the court was construing another statute. The Indiana court in construing a statute similar to ours expressly held that the widow did not take as heir. The proposition is fully discussed in two cases which have been repeatedly followed by the Indiana courts. May v. Fletcher, 40 Ind. 575; Brannon v. May, 42 Ind. 92. There are decisions of other courts construing similar statutes where it is held that the widow does not take as heir of her husband: Gauch v. St. Louis, M. L. Ins. Co., 88 Ill. 251; Crenshaw v. Moore, 124 Tenn. 528, 137 S. W. 924; Kendall v. Kendall, 42 Ia. 464. The Supreme Court of Maine, in construing a similar statute (Golder v. Golder, 95 Me. 259), says: “The statute does not change the status of the widow with reference to her deceased husband’s estate. It enlarges her interest by giving her an estate in fee instead of an estate for -life. She still takes, notas heir, but as widow.”
Another reason why the estate taken by the widow is not necessarily within the meaning of our statute is that that which is conferred under the statute by .virtue of the marital relation comes to her as a new acquisition. The Supreme Court of Indiana, in the ease of Bookout v. Bookout, 150 Ind. 63, said: “Marriage in the eye of the law is held to be a valuable consideration, and the wife is regarded as a purchaser for a valuable consideration of all the property which accrued to her by virtue of her marital rights.” There is still another reason why the estate of the widow was not ancestral, within the meaning of oúr statutes of descent and distribution, so as to cast it back to the blood of the original donor. This court, in Oliver v. Vance, 34 Ark. 564, said: “The person last entitled to possession, or last invested with the vested remainder, remains the propositus, whose nearest heirs are to be traced. They must, however, be of the blood of the person from whom the benefit came, that is to say, the line of descent must be traced on that line, leaving off the side which bore no relation to the donor. In the case in judgment, we drop the mother altogether, since the land did mot come through her, nor any of her blood. We take the father’s line, because we find the lands came from a relative of the blood'of the father. But we retain the deceased Vían R. as the propositus, and seek his heirs on that side, and not the heirs of the original donor. * * * Any construction of the law, which, on failure of descendants of a donee, would make the donor the propositus, would, in effect, enable one by gift or devise of land to a kinsman, to reserve a reversion to his heirs after an estate of inheritance given to another. This would .contravene the policy of our laws.” Again, in the case of Johnson v. Phillips, 85 Ark. 86, we said that the “person last entitled to possession, or last invested with the vested remainder, remains the propositus, whose nearest heirs are to be traced.” Now, it would Be impossible to follow our statutes of descent and distribution in this case if we treat the estate as an ancestral one within the meaning of the statute, for if we take the deceased widow as the propositus, we can find no heir of blood of the original donor. The widqw herself not being of the blood of the original donor, none of her heirs could fall within that line. It necessarily follows .that that statute has no application in this case. Our conclusion therefore is that the chancellor was correct in his holding that the Boyd heirs, that is-to say the heirs of the widow of J. K. Bowers, inherited an undivided half of the lands which constituted-a new acquisition of said J. K. Bowers.
The Travis heirs insist on their cross-appeal that the court awarded lands to appellant which were not in fact ancestral, for the reason that J. K. Bowers purchased an undivided interest -from the appellant. The decree of the chancellor dealt, only with the undivided interest of J. K. Bowers, which he inherited from his father, and the chancellor evidently held that the other undivided half was still owned by appellant. It is undisputed that Mrs.' Barton inherited an undivided half of these lands from her father; and while there are some vague and uncertain statements in the record that she had sold her interest to her brother, J. K. Bowers, she disputes that fact, and the evidence is not sufficient to warrant a finding that .she did convey. Of course, if she had conveyed her interest to her brother, that would have -constituted a new acquisition on his part. But the chancellor found that she had never made any such conveyance and therefore that she owned an undivided half in the lands, and that she inherited from her brother the other undivided half which was an ancestral estate in his hands.
Upon the whole, we think'the decree of the chancellor was correct and the .same is affirmed. | [
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Hart, J.,
(after stating the facts). The deed of John H. Queen to .his son, Albert Queen, to the land in controversy, executed on the 17th day of January, 1895, was a warranty deed in common form and conveyed a fee simple title to the lands to Albert Queen.
It is conceded by counsel for appellant that the deed being absolute in form an express trust can not be engrafted upon it by oral testimony, and that is the effect of our decisions upon the question. It is well settled by the decisions of this court that oral proof can not be heard to engraft an express trust upon a deed absolute in form. McDonald v. Hooker, 57 Ark. 632; Veasey v. Veasey, 110 Ark. 389, and cases cited.
It is contended, however, by counsel for appellants that the proof brings this case within that class of cases where there is an absolute conveyance on the one hand and in return a written declaration of trust upon which the property is held. That is to say, that John H. Queen made an absolute conveyance to Albert Queen, the proposed trustee, and that there was also a written contract of the purposes or trust upon which Albert Queen was to hold the property.' To sustain this contention they rely chiefly upon the testimony .of H. W. Byburn. We have copied his testimony in relation to the written contract which wias executed at his house between himself and John H. Queen and Albert Queen and do not deem it necessary to repeat it here. It is true he testified that the contract which was executed on that occasion was lost; and if it foe conceded that his testimony was sufficient to admit secondary .evidence of the contents of the lost instrument, we think the testimony is too vague and indefinite and that the substance'of the contract is not satisfactorily proved.
In a case note to 2 American and English Annotated Cases, at page 41, it is said that to sustain an action on a note, bond, deed or other instrument which has been lost or destroyed, the contents of the instrument must foe shown by clear and convincing evidence. A number of cases from many states are cited to support the rule. Among the cases cited is that of Hooper v. Chism, 13 Ark. 496. In that .case the court held:
“Where such bill of sale is alleged to be lost, and its contents as alleged are denied by the answer of defendant, they should foe substantially proven, where no copy is produced, by a witness who has seen or read the instrument, or is otherwise enabled to speak with some degree of accuracy as to its contents, and identify it as the one executed by the party to be charged.”
It will be noted that Ryburn gave his deposition in May, 1914. He said that the contract in question was executed about twenty years before. The deed from John H. Queen to his son, Albert, was executed in January, 1895. If the contract in question was executed twenty years before Ryburn’s testimony was given it was executed in 1894, prior to the execution of the deed from John H. Queen to his son, Albert. John H. Queen died in December, 1895.
Bill Dodd, who also witnessed the contract, said that he did not remember anything about its contents because it was not read over to him, and that the .contract in question was executed about a year .and a half before old man Queen died. This would also place the execution of the contract at a date earlier than the date of the execution of the deed.
Ryburn also testified that prior to the execution of the deed to Albert Queen he had made a contract with John H. Queen for the purchase of the land and had let the land go back, because he was unable to pay for it. It may be the contract he is testifying to now is the one executed when he purchased the land. In any event, the testimony shows that it was executed before the deed from John H. Queen to Ms son, Albert Queen, was executed. There is notMng in the record tending to show that it was executed contemporaneously with the deed or with reference to it. It may be that prior to the execution of the deed John H. Queen had entered into some kind of written contract with Ms son, Albert, and that later the contract was changed by the execution of the deed in question.
It is true the consideration recited in the deed is $1,000 and it is shown that Albert Queen had no means with which to pay for the land. The record shows, however, that John H. Queen at the time he executed the deed was an old man and wias not able to work. It may be that he intended to provide a home for his wife and himself during their old age and the testimony shows that he lived with his son, Albert, until ¡he died and that Ms widow lived with him for several years thereafter until she died.
The deed was acknowledged before L. E. Hoover, a justice of the peace. The contract about wMch Ryburn testified was acknowledged, he says, before Squire You-man, a justice of the peace. Thus it will be seen, there is nothing to .show that the deed and the contract in question were executed at the same time, or that Albert Queen, the grantee in the deed, subsequently executed a written declaration of trust covering the land embraced in the deed.
Moreover, we are of the opinion that the substantial contents of the instrument were not proved by such clear and satisfactory evidence as is required by the rule above announced, and that the court did not err in finding that there was no written declaration of trust as contended for by counsel for the appellants. Where parties reduce their contracts to writing, the obligation and duties of which are described and limited by the in strument itself, the security which is expected from the written instrument would he much impaired if the contract could he established upon such uncertain and vague impressions as have been testified to by the witnesses in this 'ease.
Again, it is contended by counsel for appellants that Albert Queen was a trustee ex maleficio within the rule announced in Bragg v. Hartney, 92 Ark. 55, and like cases. We 'do not think it necessary to make any extended comment on this contention. It is sufficient to say that we have read the record carefully and that there is a total absence of any testimony tending to show that Albert Queen practiced any actual fraud whatever upon Ms father to procure the deed. Neither do we think the record establishes, that he procured the deed through undue influence, or by taking advantage of Ms father’s old age or necessities. As far as the record shows, the execution of the deed was a free and voluntary act on the part of John H. Queen and Ms wife, who were at the time of sound mental condition.
The decree will be affirmed. | [
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McCulloch, C. J.
Appellant, L. J. Crane, has for many years owned lauds on both sides of the Petit Jean Biver at a crossing where the river constitutes the boundary line 'between the counties of Yell and Conway, and since the year 1899 he has operated a ferry under license annually granted to him by the county court of each of said ■counties. That is to say, he has procured a license from each county until the year 1910, and thereafter from the county court of Yell County, but no license was issued to him for the years 1910 or 1911 by the county court of Conway County, though he made application therefor. On August 6,1911, the county court of Conway County granted a license to George McGowan & Co., alleged to be a partnership composed of seventy-five or eighty residents of that locality, including appellees, to operate a ferry within one mile of the crossing where appellant’s ferry was operated. This is an action instituted by appellant against appellees to enjoin them from operating the ferry, alleging that the operation thereof was an infringement upon appellant’s rights. The case was heard by the chancellor upon the pleadings and depositions of numerous witnesses and there was a decree dismissing the complaint for want of equity.
It is well established by the decisions of this court that ownership of lands on both sides of a navigable stream entitles the owner to the privilege of keeping a ferry under license from the county court, and that “when the county court has once granted the privilege of keeping a public ferry the privilege is exclusive within the distance so long as it is exercised under the annual grant of license provided for.” Murray v. Menefee, 20 Ark. 561; Lindsay v. Lindley, 20 Ark. 573; Finley v. Shemwell, 94 Ark. 190. Those cases also settled the proposition that one whose ferry privilege has been infringed is not bound by the order of the county court granting license to a rival, 'but may invoke the aid of a court of chancery for redress. In this state of the law, it is clear from the record in this case that appellant’s right to exercise ferry privileges are superior to those of the appellees, and there is nothing to show an abandonment of the privilege.
It is contended, however, by appellees that they took out ferry license and are operating a ferry merely for their own convenience, and that they are doing this from necessity because of the fact that appellant fails to give adequate accommodations and that his ferry boat is so out of repair that it is dangerous to attempt to cross on it. The abstract furnished by appellant is so meager— in fact, there is no abstract at all of the evidence — that we must assume that the appellees ’ contention upon the facts, with reference to the lack of service given by appellant and the unsafe condition of the boat, is sustained by the evidence, and, that being true, appellant is in no position to ask for equitable relief. While, as before stated, the evidence does not show an abandonment on appellant’s part of his ferry rights, still the same principle controls in a case where he, by his own derelictions, makes it necessary for travelers to make some other provision for crossing, and in that case he is not in a position to ask for equitable relief. His failure to discharge his duty as ferryman, which makes it necessary for others to seek another means of crossing, is in effect a temporary abandonment to the extent that it calls for a denial of any equitable relief. For, as long as he refuses to ferry travelers across the river, or, what is the same thing, fails to provide adequate means for doing so, he can not ask a court of equity to restrain another from doing that which he fails or refuses himself to do. Therefore, from the meager record in this case, we assume that the decree of the chancellor was based upon a preponderance o-f the evidence on this issue and that the same is correct.
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Kirby, J.,
(after stating the facts). Appellant contends that the court erred in giving said instruction No. 4, and we agree with this contention. All persons have equal right to use the public streets and highways for purposes of travel by proper means with due regard to the corresponding rights of others, and it is unquestioned that an automobile is a proper means of conveyance on the public highway, neither can it be disputed that driving a mule to a buggy is a like proper means of conveyance. Certainly a citizen is not to be deprived of his right to use any means of conveyance within his control because, forsooth, the animal he must drive is unaccustomed to the sight of automobiles and becomes frightened upon meeting or coming near them. Public highways are established for the benefit of all who find it necessary ' or desirable to travel thereon, adopting any means of conveyance not prohibited by law.
In Millsaps v. Brogdon, 97 Ark. 469, the court said:
“The beggar on his crutches has the same right to the use of the streets of the city as has the rich man in his automobile. Each is bound to the exercise of ordinary care for his own safety and the prevention of injury to others in the use thereof.”
In Minor v. Mapes, 102 Ark. 354, the court said:
“ Auitomobilists and the drivers of other vehicles have the right to share the street with pedestrians, hut they must anticipate the presence of the latter and exercise reasonable care to avoid injuring them. Care must be exercised commensurate with the danger reasonably to be anticipated.”
All travelers upon the public highways are bound to the exercise of ordinary care in the use thereof, both for their own protection and the safety of others, and ordinary care as indicated in the quotation from. Minor v. Mapes may require greater care exercised on the part of the automobilist and others driving vehicles of high power and great speed that make fearsome noises calculated to frighten unsophisticated country horses and mules not city broke and accustomed to seeing them, than that required of other users of the highway. In some jurisdictions automobilists are prohibited the use of certain streets and highways and our own statutes restrict their operation as to the rate of speed that may be maintained. Said instruction allowed the jury to find against .the plaintiff who was unquestionably seriously injured by the frightening of his mule and the overturning of his buggy, if the jury found 'that he knew the animal driven by him was afraid of an automobile and might become frightened and unmanageable upon meeting one upon ia public highway, if his conduct in driving the animal upon a public highway where he would probably meet automobiles was not that of .a reasonable and prudent man under the circumstances, taking away from the jury altogether the right to find for the plaintiff notwithstanding any negligence on his part, if it can be held that the driving of .an animal upon a public highway where an automobile might be met, not accustomed to .the sight thereof was negligence, if the defendant, after discovering his perilous position, failed to exercise ordinary care to prevent the injury. Our courts have invariably held railway companies responsible for damages caused by the frightening of animals ridden or driven along public highways near their tracks and at crossings for failing to use the proper care to prevent injury by them after it becomes apparent that injury may result from the fright. This instruction in effect told the jury that the plaintiff was not entitled to recover for an injury caused by his mule becoming frightened at the approach ¡of an automobile and running away and injuring him if he knew that the animal was liable to become frightened upon meeting an automobile, and a prudent person would not have driven an animal of that kind upon the public highway .where automobiles might be met. This is not the law. Plaintiff had the right to drive 'his mule on the public highway, being bound,, of course, to the exercise of ordinary care while doing so, and there was no reason to think that he could or would not have time upon the approach of an automobile to take such measures as would protect himself from danger on account of the fright of the animal by either leaving the road, if opportunity offered, or by getting out of the buggy and holding the animal until the danger was past. The court erred in giving this instruction and the judgment must be reversed and the cause remanded for a new trial.
It is so ordered. | [
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Wood, J.,
(after stating the facts). The court erred in submitting to. the jury the issue as to whether the guaranty contract was unreasonable and unconscionable in its terms. This was not an issue, under the evidence, proper for the jury to pass upon. The terms of the contract were ambiguous (and its construction was for the court and not the jury. Moreover the conditions in the contract which appellees claim rendered the same ■unreasonable and unconscionable were not so in fact or in law. The seller of the horse had the right lo guarantee the horse to be a sure breeder and to exact that if he did not prove satisfactory to the purchasers because of not being a sure breeder that the purchasers should deliver him to the stables of the seller at Springfield, Missouri, by the 1st of March, 1911, as specified in the contract. There was nothing in the language of this provision to warrant the court in submitting- to the jury to determine the question as to whether the contract was unreasonable and unconscionable, .and certainly there was nothing in this language itself to warrant the court in declaring as .a matter of 1-aw that it was an unreasonable and unconscionable contract because of such stipulation. The parties were dealing at arms length. If the time fixed by the contract -for the return of the horse did not give appellees time in the course of nature to test his breeding qualities and to determine whether he was satisfactory to them, appellees should have demanded a longer time in which to make such test. They had the same knowledge of the period required for gestation in animals of the equine species us the agent of the Holland Stock Farm had. The purchasers were bound by the common knowledge of the required period for gestation the same as the' seller. It is not pretended that the seller of the horse practiced any deception or fraud upon the appellees by which the time for the return of the horse, in case he proved unsatisfactory, was fixed. As above stated, there is nothing in these terms themselves to show that they were unreasonable and unconscionable, and the appellees could not prove by oral testimony that they were unreasonable and unconscionable by showing that according to the time of gestation in animals of the horse species the time specified in the contract for the return of the horlse was too short to test his breeding qualities. The instruction was, therefore, ■abstract, misleading and prejudicial.
Appellant contends that the undisputed evidence shows that ■ the appellant was an innocent purchaser of the notes in suit, and that, therefore, the court erred in submitting that issue, and in also- permitting testimony to be introduced tending to show fraud in the exection of the notes. Inasmuch as the case must be reversed for the error in giving the instruction above mentioned, and since the cause must be remanded for a new trial, we will not pass upon the issue of fact as to whether the evidence was sufficient to sustain the verdict of the jury on the finding that appellant was not an innocent purchaser and also on the issue as to whether or not fraud entered into the sale and the execution of the notes. These issues will be left open for such development as may be had on a new hearing.
For the error indicated the judgment is reversed and the cause is remanded for a new trial. | [
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McCulloch, C. J.
Appellant was convicted of the crime of receiving stolen property, under an indictment which charged that he knowingly received twenty-four boxes of thread, of the value of $14.40, which had been stolen from one Heinemann, the owner. The evidence shows that Lawrence 'Clark stole the property from the store of Heinemann, where he was working as porter, and sold it to appellant, and that upon information given by Clark an officer found it in appellant’s possession. Appellant admitted that he received the property from Clark, but claimed that he purchased it in good faith from the latter in reliance on his statement that he had found the property in’ a vacant store house which he was cleaning out. Clark testified that he stole the property and sold it to appellant, and he was corroborated by circumstances adduced in evidence which were sufficient to warrant a finding that appellant received the property with guilty knowledge that it had been recently stolen from the owner. The evidence was sufficient, therefore, to sustain the verdict.
Error of the court is assigned in giving the following instruction, over appellant’s objection:
“3. I further instruct you that the possession of goods recently stolen is prima facie evidence tending to establish the guilt of one in whose hands such goods are so found, and may be considered by you as tending to establish the guilt of the defendant in this case, unless the defendant has made an explanation to you explaining his possession. And such explanation is a reasonable one.”
We have held in repeated decisions that unexplained possession of property recently stolen constitutes evidence legally sufficient to warrant a conviction of larceny or of the crime of knowingly receiving stolen property; but that an instruction that such evidence is sufficient to sustain a conviction amounts to .an instruction on the weight of the evidence and is, for that reason, an invasion of the province of the jury.
In Duckworth v. State, 83 Ark. 192, the instruction teld the jury that “the possession of property, recently stolen, unexplained, is evidence of the defendant’s .guilt,” and that if such unexplained possession is corroborated by other evidence tending to connect the accused with the larceny, “then you will find them guilty.”
In Thomas v. State, 85 Ark. 138, the court .charged the jury that “the possession of property recently stolen, unexplained, * * * would be sufficient under this indictment to sustain a conviction.”
In each of those cases, we held that the instructions given were erroneous for the reason that they were on the weight of the evidence.
In Boykin v. State, 34 Ark. 443, the court charged the jury that “possession of stolen property recently stolen is prima facie evidence of the guilt of the party in whose possession the property is so found, unless the possession is satisfactorily accounted for by the evidence.” The court, in discussing that instruction, said: “The instruction given by the court is literally correct. Possession of property recently stolen, without reasonable explanation of that possession, is evidence of guilt to go to the jury for their consideration. In this sense, it is prima facie evidence, but not in the sense that it is such evidence as must compel the jury to a conviction, unless it be 'rebutted. It would have been better to have modified the instruction complained of, so as to impress upon the jury the idea that the evidence went to them for their consideration, under all the circumstances, to be weighed as tending to show guilt, but not imperatively imposing upon the jury the duty, of conviction, unless rebutted. The defendant, however, asked no such explanation, and the instruction is not erroneous.”
The instruietion given in that .case was, .as is readily seen, .stronger and more objectionable than the one given in the present ease, for it told the jury unqualifiedly that “possession of ¡stolen property recently ¡stolen is prima facie evidence of the guilt of the party.”
' The instruction in the present case merely states that “the possession of goods recently stolen is prima facie evidence tending to establish the guilt, ’ ’ etc. The effect of that instruction, when fairly interpreted, was to state the proposition that unexplained possession of property recently stolen warranted the consideration of that fact as ¡evidence tending to establish guilt. It does not mean that proof of ¡such fact constitutes prima facie evidence of guilt sufficient to sustain a conviction.
In Hogue v. State, 93 Ark. 316, which was a murder case, the trial court ¡charged the jury that certain facts in proof were “circumstances which tend to ¡establish the defendant’s guilt,” and it was insisted here that this constituted an instruction on the weight of the evidence. In''disposing ¡of that contention, we said: “Now, to say that a thing tends or has a tendency to establish a certain state of facts is not a declaration as to the weight to be given to it, but is a mere statement that it -is directed toward or moves in the direction of a certain result, the degree ¡of its force not being mentioned. To say that a circumstance tends to prove the issue is no more than ¡saying that it may be considered for the purpose of determining the issue.” The objection made by appellant to the instruction under consideration was ¡a general one, ¡and the court was not asked to. modify or explain it, nor was the objection now made to it specifically called to the attention of the court. The court, in another instruction, told the jury that they were “the sole judges of the weight and sufficiency of the evidence.” We are of the opinion, therefore, that the record does not present any error of the trial court which calls for a reversal of the judgment. Affirmed.
Hart, J., dissents: | [
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Wood, J.,
(after stating the facts). I. Act 196, approved May 1,1909, provides for a depository of the public funds of Logan County. Sections 1 and 3 of that act were amended by Act No. 57, approved February 15, 1913, providing for the creation of separate depositories in the northern and southern districts of Logan County, and by changing the time for receiving bids from the July term of the oouuty court, .as provided in the act of 1909, to the January term of the court. The latter part of section 2 of Act No. 57, Acts of 1913, provides that the county court, “shall select from among said bids ;as the depositories of .all the public funds of the county and districts, including’ road .and school funds, that bidder one in each district, offering the highest rate of interest per annum, on said funds of each district. # * Said interest shall be computed upon the daily balances to the credit of said county with said depositories and the same shall be payable to the county treasurer quarterly and shall be immediately placed to .the credit of the common school fund and county general purpose fund of said county and district in equal amounts.” Section 3 repeals all laws in conflict.
But Act No. 196 of the Acts of 1909, except sections 1 and 3, providing for a depository of public funds in Logan County, remains unchanged, and is still in force.
The first part of section 4 of the act of 1909 provides for the making of a bond by the depository for the use and benefit of Logan County. The latter part of section.4 is as follows:
“All stockholders of any such bank, banker or trust company shall be liable for all public funds that such bank, banker or trust company shall fail to pay over on demand to the person entitled to receive the same.”
■Section 6 provides that the bond “shall be conditioned for the due and proper performance of all duties and obligations devolving by law upon.said depository and for the prompt payment upon presentation of all checks drawn upon said depository by the county treasurer of said county, so long as said funds shall be in said depository to the credit of said county .and that all funds of ¡said county shall be faithfully kept by said depository' and accounted for according to law; and for any breach of said bond, the county or any other person injured may maintain an action in the name of the county to the use of said county or person thereby injured.”
The liability of appellants as sureties on the bond and as stockholders arises under the above provisions of Act 196, approved May 1, 1909. The circuit court was correct in holding that the appellants were liable under the provisions of that act. It is therefore unnecessary for us to consider whether Act 57, approved February 15, 1913, repealed section 1990 of Kirby’s Digest, for the liability of appellants in this case is not based upon that section.
II. Section 4 of Special Act No. 196 of the Acts of '1909 makes all stockholders of any such bank, banker or trust company “liable for all public funds that such bank, banker or trust company shall fail to pay over on demand to the person entitled to receive the same.” Section 36 of Act 113, being “An Act for the organization and control of banks,” approved March 3,1913, provides: “The stockholders of every bank doing business in this State shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts and engagements of such bank to the extent of the amount of their stock therein at the par value thereof, in addition to the amount invested in such stock.”
Does the above section 36 of the banking act repeal section 4 of Special Act No. 196 of the Acts of 1909?
Act 113 of the Acts of 1913 is a general banking law. It does not expressly repeal the provisions of section 4 of Special Act 196 of the Acts of 1909. “A general statute will not be held to repeal a prior special statute where there is no express repeal and no invincible repugnancy between the two statutes.” State v. Southwestern Land & Timber Co., 93 Ark. 621, and cases cited. See, also, Hampton v. Hickey, 88 Ark. 324. In the latter case we held, that ‘ ‘ a later statute which extends and enlarges a right before existing impliedly repeals the law by which the former was created or given.”
There is no invincible repugnancy between the special depository act for Logan County and the general banking act. The general banking law was not intended to cover the subject-matter of the special depository act for Logan County. There are no provisions in the hanking law showing that it was intended as a substitute for this special act. Section 36 of the banking law did not enlarge and extend the liability of stockholders for public funds deposited under the special depository law. On the contrary, the liability of the stockholders under the special depository lact is greater than under the general banking law, for the special act makes the stockholders liable for the public funds without regard to the amount of stock held by each stockholder; whereas the general banking law makes them hable ratably to the extent of the amount of their stock at its par value, plus the -amount invested in such stock. Each of the stockholders, under the special depository law, is liable in every case for the entire amount of the public funds deposited, whereas, under the general banking law each stockholder is hable ratably and only to the extent of his -stock at par value, and, in addition, to the amount invested therein.
In some cases, under the general banking law, an individual stockholder might not be liable for the entire amount of public funds on deposit with the bank named as special depository. But, under the special depository law, each individual stockholder would be individually liable for the whole amount of public funds on deposit.
In section 36 of the general banking law the Legislature did not have in mind the subject-matter of the liability of stockholders under special acts creating -depositories of public funds. The liability of stockholders under the special act creating the depositories for Logan County was fixed as a liability against all the stockholders for the public funds, making each liable for the amount of such funds. In section 36 of the general banking law the Legislature were intending to declare and apportion the general liability of all banks ratably among the stockholders thereof. They did not have in mind the fixing of primary liabilities against the stockholders in banks that were made depositories of public funds.
It follows that the judgment of the -circuit court is correct and it is therefore affirmed. | [
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Wood, J.,
(after stating the facts). The testimony on behalf of the appellee would have warranted the court in submitting to the jury the issue as to whether or not C. M. McCain, as president and active manager of the appellant, had been in the habit of executing notes in the name of the company in order to carry on the company’s business, and for the benefit of the company, without express authority from the board of directors, 'and also as to whether or not the board of directors had knowledge of such habit or custom on the part of its president, McCain. In other words, it was an issue for the jury as to whether or not .the board of directors, without expressly authorizing him to do so, had permitted McCain to execute notes on behalf of the company to such an extent as to establish a custom by which the corporation was bound. The proof tended to show that McCain, as president and business manager of the corporation, frequently executed notes on behalf of the company in transacting business for the company, and that this was done so often as to warrant a finding that the board of directors permitted, •or at 'least consented or acquiesced in the exercise of such custom. But there is no evidence that tended to prove .a custom on the part of McCain to execute notes in the name of the C. L. Kraft Company for his own benefit. The custom that the testimony tended to prove was a custom of the president, McCain, to execute notes in the company’s name in the transaction of the business of the company, the company receiving the benefit of the proceeds of such notes.
The instruction No. 1 was therefore inherently erroneous, for there was a sharp conflict in the evidence as to whether or not the proceeds of the note in controversy were used for the benefit of appellant, or for McCain’s individual benefit.
The appellant contends, and testimony in its behalf tends to .show, that McCain executed the note in suit' in the name of the company for his own private benefit, and that the entire proceeds of the note were used by him for his individual benefit and not for the benefit of the corporation. But, under the above instruction, the jury were authorized to find the appellant liable on the note in suit, even though the proceeds of the note were used for the exclusive individual benefit of McCain. In other words, under the instruction, although the jury might have found that the appellant received no benefit whatever from the note in suit, it was nevertheless liable, if McCain was in the habit of or had established the custom of executing notes in the name and on behalf of the company in the transaction of the company’s business, and the proceeds of which the company received.
This instruction was well calculated to confuse and mislead the jury and was highly prejudicial to appellant. The acts of a president of a corporation in the management of the business of the corporation, when within -the ■scope of his authority, are the acts of the corporation itself. And, if the corporation has customarily permitted him to exercise acts within the scope of his employment as general manager of the corporation, it will be liable for such acts. Wales-Riggs Plantations v. Caston, 105 Ark. 641.
But here, as before stated, there was no authority by custom or otherwise for McCain to execute notes in the name of the company to be used for his own individual benefit.
The execution of notes, therefore, to be nsed for bis, individual benefit, and not for the benefit of 'the corporation, was beyond tbe scope of any authority, express, implied or apparent, with which the company had clothed him.
The court erred, therefore, in granting appellee’s prayer for instruction No. 1, and also instruction No. 4, which was, in part, based upon it. Otherwise, we find no reversible errors in tbe rulings of tbe court.
For tbe error indicated the judgment is reversed, and the cause remanded for a new trial. | [
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MIKE MURPHY, Judge
b Corey Robbins appeals the September 7, 2016 opinion of the Arkansas Workers’ Compensation Commission (Commission) in which it adopted the February 25, 2016 opinion of the Administrative Law Judge (ALJ). The ALJ ruled that Robbins failed to prove a compensable injury. Robbins’s sole argument on appeal is that the Commission’s decision is not supported by substantial evidence. We affirm.
Robbins, who was thirty-one years old at the time, sustained a cardiovascular accident on July 6, 2015, at approximately 10:00 p.m. while at home, which resulted in sudden cardiac arrest and required resuscitation followed by hospitalization, medical treatment, and disability benefits. Robbins worked as a painter at HilArk Industries, where he had worked for more than a year, and his duties consisted primarily of prepping and painting dump truck beds. On the day of the incident, Robbins went to work as he normally 12did, prepped the paint, put on a special paint suit, entered the paint booth, and began the painting process. Robbins became overheated while in the paint booth and went to the air-conditioned employee break room to cool down. Another employee in the break room, who worked as an assistant firefighter, told Robbins he appeared to be overheated, so the man notified Dennis Edwards, chief financial officer of HilArk, to tend to Robbins. Ed wards repeatedly asked Robbins if he felt well, if he had chest pain, if he had shortness of breath, if he needed medical attention, or if he wished to go home. Robbins repeatedly said he just needed to cool off and that his fiancée could not pick him up from work until his normal quit time of 3:30 p.m.
Monica Johnson, Robbins’s fiancée, testified that Robbins became very emotional when he got in the car. She said Robbins told her that “[he] thought [he] could die” and that “he just got too hot.” Later that night, she explained he could not get comfortable, so he went to the living room to sit up. Johnson followed him into the living room where he began to “[make] noises, [turn] colors, and [foam] at the mouth.” He was resuscitated by paramedics and transported to the hospital where he survived.
At the time of the incident, Robbins had a long history of drug abuse. Just weeks prior, he was advised to undergo narcotics counseling because of depression and suicidal thoughts. When the ambulance arrived, Johnson told the paramedics that Robbins had an opiate addiction, thinking he had overdosed. However, Robbins had a negative drug screen on the night of the incident. Once Robbins was checked in at the hospital, Johnson | sinformed the doctor that Robbins had overheated at work but that he had started to cool down.
Robbins initially applied for short-term disability and Social Security disability and signed various forms indicating that his disability was not work related. It was not until after talking with one of his doctors that he pursued a workers’-compensation claim; Dr. Steve Hutchins apparently told him that heat could have caused his injury. In his workers’-compensation claim, Robbins contended that the cardiac arrest was brought about as the result of exposure to chemicals, excessive heat, and dehydration associated with his employment.
The ALJ made extensive findings of fact and conclusions of law, which the Commission adopted and affirmed, and ultimately found that Robbins failed to prove that he had sustained a compensable injury within the meaning of the Arkansas workers’compensation laws. Robbins appealed, asserting that the decision of the Commission is not supported by ■ substantial evidence and should be reversed.
The standard of review in workers’-compensation cases is well settled. On appeal, this court views the evidence in the light most favorable to the Commission’s decision and affirms the decision if it is supported by substantial evidence. Schall v. Univ. of Ark for Med. Scis., 2017 Ark. App. 50, at 2, 510 S.W.3d 302, 303. Substantial evidence exists if reasonable minds could reach the Commission’s conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission, but whether reasonable minds could reach the result found by the Commission: if so, the appellate court must affirm. Id.
^Credibility questions and the weight to be given, to witness testimony are within the Commission’s exclusive province. Id. The Commission’s decision to accept or reject medical opinions and how it resolves conflicting medical evidence has the force and effect of a jury verdict. Id.
The issue of compensability is controlled by the provisions of Arkansas Code Annotated section 11-9-114, and the standard of proof in heart-attack cases is high, as follows:
(a) A cardiovascular, coronary, pulmonary, respiratory, or cerebrovascular accident or myocardial infarction causing injury, illness, or death is a compensable injury only if, in relation to other factors contributing to the physical harm, an accident is the major cause, of the physi- ^ cal harm.
(b)(1) An injury or disease included in subsection (a) of this section shall not be deemed to be a compensable, injury unless it is shown that, the exertion of the work necessary to precipitate the dis- . ability or death was extraordinary and .unusual in comparison to the employee’s usual work in the course of the employee’s regular employment or, alternately, that some unusual and unpredicted incident Occurred which is found to have been the major cause of the physical harm. '
(2) Stress, physical or mental, shall not be considered in determining whether the employee or claimant has met his or her burden of proof.
Ark. Code Ann. § 11—9—114(a), (b)(l)-(2) (Repl. 2012).
The first element of compensability requires that the relation to all factors contributing to the ultimate physical harm and “accident” must be the major cause of the physical harm.
On appeal, Robbins argues that the testimony-from Johnson,: who was with him from the time he left work up until the cardiac arrest,' and Dr. Hutchins’s deposition, combined with the fact that he had no preexisting heart conditions, indicates that the injury [¿was work related. He contends that his heat exhaustion served as the “accident” that caused his cardiac arrest. He offered Dr. Hutchins as an expert medical witness. In his opinion letter, Dr. Hutchins opined, “It is likely, more probably than not, that the cardiac arrest event was related to his working conditions on the day of his event. The heat exhaustion, dehydration and 'stress of the day could have contributed to his arrest.” Dr.- Hutch-ins admitted his opinion relied on whether Robbins got in distress and stayed in distress until the incident. He explained that, had he been told that Robbins had gotten hot at work, cooled down for an hour, gone back to yvork all afternoon, and repeatedly said, “I feel fine,” he would not think that the injury would be work related.
Ultimately, the Commission'found that Dr. Hutchins’s opinion “was based solely upon incomplete and inaccurate history;” The Commission conceded that while Robbins may have suffered from some temporary heat exhaustion-2at the workplace, the record as a whole reflected that Robbins ceased work immediately, rehydrated, and was feeling better when he left work. The Commission supported its conclusion by finding that the record reflected that Robbins had preexisting chest problems, he had a history of drug abuse, and he was under significant stress unrelated to his employment. The Commission concluded that “it would require sheer speculation and conjecture to attribute [Robbins’s] cardiac arrest to events at the workplace.”
From our review, we conclude that substantial evidence supported the Commission’s conclusion. We defer to the Commission’s credibility determination rejecting Dr. IfiHutchins’s medical testimony that the injury was “more probably than not” related to work. It is perhaps noteworthy that two other cardiologists treated Robbins, Dr. Monica Lo and Dr. Vasili Lendel, and neither had an opinion similar to Dr. Hutchins’s—Dr. Lo believed the cardiac arrest was not work related and Dr. Len-del did not state an opinion. Additionally, Dr, Lo noted that Robbins felt lethargic at home after work but was otherwise his normal self and that, until the event of the cardiac arrest, he had been feeling reason ably well. She also diagnosed him with takotsubo cardiomyopathy,, which Dr. Hutchins stated in his deposition could possibly have been a' cause of the cardiac arrest. He explained that in most cases of takotsubo cardiomyopathy, one has an acute-injury heart failure and that it can be caused by a stressful or emotional event. Robbins admitted that at the time he had a lot of personal stress unrelated to work: repeated garnishments for other medical bills and child support; resumption of opiate use; moving in and out of his fíancée’s home the month before; and suicidal depression for which he was being treated.
Moreover, as we held in Ayers Drywall & Insulation v. Carey, 2009 Ark. App. 749, at 8, 352 S.W.3d 334, 338, the mere fact that there was evidence to support a contrary finding does not allow this court to reverse the Commission’s resolution of conflicting medical evidence.
We need not address the second statutory requirement because Robbins .did not meet the first element of compensability.
Substantial evidence exists to support the Commission’s finding that Robbins failed to prove a compensable injury. The conflicting medical testimony was for the Commission |7to resolve, and reasonable minds could determine that Robbins suffered a cardiac arrest for reasons other than work-related heat exhaustion. Therefore, we must affirm.
Affirmed.
Klappenbach and Vaught, JJ., agree.
. Testimony described that paint booth as a large ventilated room with a ceiling twenty-two to twenty-four feet high.
. Robbins .was bom with pectus excavatum, which is a congenital defect where his chest cavity is not the normal size and required him to undergo surgery at age five. | [
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RAYMOND R. ABRAMSON, Judge
11 Appellant Leslie John Harris appeals the order of the Clark County Circuit Court denying his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1. We assumed jurisdiction of this appeal pursuant to footnote 1 in Barnes v. State, 2017 Ark. 76, 511 S.W.3d 845 (per curiam). Harris contends that the circuit court erred in denying his petition because his trial counsel was ineffective for (1) failing to seek posttrial relief based on juror misconduct and (2) failing to ensure that his plea to the charge of possession of a firearm by certain persons was knowingly, voluntarily, and intelligently entered. He also argues that, regardless of his trial counsel’s performance, the circuit court erred by refusing to set aside his conviction for possession of a firearm by certain persons because he did not enter a knowing, intelligent, or voluntary plea to that charge. We affirm in part and dismiss in part.
12Harris was convicted by a Clark County jury of criminal use of a prohibited weapon, two counts of possession of a con trolled substance with intent.to deliver, and simultaneous possession of drugs and firearms. This case began on March 6, 2011, when Jasmine Owens alerted a 911 dispatcher that Harris had attempted to sexually assault her at his home. Sheriffs deputies were notified that Harris was driving a black pickup truck and that Owens’s. purse, shoes, and jacket were inside. Harris was pulled over a short time later. After he was taken into custody, officers searched his vehicle and found brass knuckles and Owens’s purse and shoes. Officers also-later found drugs in the backseat of the patrol car in which Harris was transported. The police obtained a search warrant for Harris’s home and found a .22-caliber rifle in a bedroom, a 9mm handgun in an air vent in the living room, ecstasy pills in the pocket of a jacket lying on a bed, digital scales, and a red jacket that Owens later identified as hers.
Harris was charged with criminal use of a prohibited weapon, two counts of possessing a controlled substance with intent to deliver, criminal attempt to commit sexual assault, possession of a firéarm by certain persons, and simultaneous possession of drugs and firearms. Before the trial, Harris’s counsel, Tim Beckham, moved to sever the felon-in-possession charge from the other charges; the circuit court granted the motion. On January 19, 2012, after a jury trial on the remaining counts, a Clark County jury convicted Harris of criminal use of a prohibited weapon, two counts of possession of a controlled substance with intent to deliver, and simultaneous possession of drugs and firearms. Harris was acquitted on the sexual-agsault charge. He was sentenced to six years’ imprisonment for criminal use of a prohibited weapon and forty years each on his other three convictions. -
Is At a hearing on’January 25, 2012, at which the court was to decide the- issue of consecutive versus concurrent sentences, the parties notified the court that they had reached an agreement whereby Harris pleaáéd no contest to the felon-in-possession charge. He was sentenced to six years for that crime, to run concurrently with the six-year sentence' for Criminal use of a prohibited weapon. The circuit court ran Harris’s three 40-year sentences concurrently with each other but consecutively to the six-year sentences. This court affirmed Harris’s conviction in Harris v. State, 2012 Ark. App. 674, 2012 WL 5949099, and the mandate was entered on December 18, 2012.
Harris filed a petition for relief under Rule 37 on February 19, 2013; the petition contained a proper verification. Harris petitioned the circuit court pursuant to Arkansas Rule of Criminal Procedure 37 for relief from his. convictions for criminal use of a prohibited weapon, possession of á controlled substance with intent to déliver (two counts), possession of a firearm by certain persons, and simultaneous possession of drugs and firearms, and his. sentence of forty-six years in prison, on the ground that he was convicted and sentenced in violation of his Fifth, Sixth, and Fourteenth Amendment rights to effective assistance of counsel.
|4In his petition, Harris alleged that his trial counsel was ineffective for failing to file a motion for a new trial based on jury misconduct; that his trial counsel was ineffective for failing to ensure that his plea to the charge of possession of a firearm by certain persons was knowingly, voluntarily, and intelligently made; and that regardless of his trial counsel’s performance, his conviction for, possession of a firearm by certain persons should be set aside because he did not enter a knowing, intelligent, or voluntary plea to that charge. After a hearing on December 10, 2015, the circuit court entered an order denying the petition on February 3, 2016. On appeal, Harris contends that the circuit court clearly erred by rejecting his ineffective-assistance-of-counsel claims and by refusing to set aside his plea.
We do not reverse a denial of postconviction relief unless the circuit court’s findings are clearly erroneous. Reed v. State, 2011 Ark. 115, 2011 WL 913208 (per curiam). 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.
The benchmark question to be resolved in judging a claim of ineffective assistance of counsel is whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Norris v. State, 2013 Ark. 205, 427 S.W.3d 626 (per curiam)..A Rule- 37 petitioner’s ineffective-assistance-of-counsel claims are analyzed under the two-prong standard- as set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Lowe v. State, 2012 Ark. 185, 423 S.W.3d 6 (per curiam). Under the Strickland test, a claimant must show that counsel’s performance was deficient, and the claimant must also show, that the deficient performance prejudiced the defense to the extent that the appellant was deprived of a fair trial. Id. A claimant must satisfy both prongs of the test, and it is unnecessary to examine both components of the inquiry if the petitioner fails to satisfy either requirement. See Pennington v. State, 2013 Ark. 39, 2013 WL 485660 (per curiam).
A petitioner claiming ineffective assistance must first show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed to the petitioner by the Sixth Amendment to the United States Constitution. Walton v. State, 2013 Ark. 254, 2013 WL 2460191 (per curiam). There is a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance, and an appellant has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel that when viewed from counsel’s perspective at the, time of the trial could not have been the result of reasonable professional judgment. Id.
In order to meet the second prong of the test, a claimant must show that there is a reasonable probability that the fact-finder’s decision would have been dif ferent absent counsel’s errors. Delamar v. State, 2011 Ark. 87, 2011 WL 693579 (per curiam). A reasonable -probability is a probability sufficient to undermine confidence in the outcome of the trial. Id, Here, Harris’s ineffective-assistance-of-counsel claims fail under the Strickland standard. He cannot overcome the 'second prong of the standard—the petitioner must show that, considering the totality of the evidence before the fact-finder, counsel’s performance prejudiced his defense. |fiPrejudice is demonstrated by showing that there is a reasonable probability that, but for counsel’s errors, the outcome of the trial would have been different. Jackson v. State, 352 Ark. 359, 365, 105 S.W.3d 352, 357 (2003) (quoting Cothren v. State, 344 Ark. 697, 703-04, 42 S.W.3d 543, 547 (2001)).
Harris’s first allegation of ineffective assistance of counsel was that counsel failed to file a motion for new trial for juror misconduct. Harris claims that between the date of his trial on January 19, 2012, and when the court reconvened on January 25, 2012, to determine the issue of concurrent versus consecutive sentences, he learned that one of the jurors at his trial had been in an intimate relationship with his ex-wife and had failed to disclose that fact during jury selection. Harris brought his assertion to the circuit court’s attention - at the January 25 sentencing hearing, but he was unable to identify the juror or offer any evidence to the court to prove his allegation. The court informed Harris that this was a matter for .a post-conviction motion if he felt that he needed to file for some type of relief. However, Harris did not file a motion for a new trial based on a claim of juror misconduct. He asserts that his trial counsel’s failure to file such a motion constituted ineffective assistance.
At the December 10, 2015 Rule 37 hearing, Harris’s trial counsel, Tim Beckham, testified that Harris mentioned his juror-misconduct allegation to him just moments before the January 25 sentencing hearing. Beckham testified that he did not follow up on the allegation because he did not find it to be credible. Beckham’s understanding was that Harris and his ex-wife were divorced, that she was out of his life, and that she was not critical to any defense or arguments that he might raise. Furthermore, Beckham testified that Harris was present during jury selection and did not ever notify Beckham that he had any [7knowIedge of any negative information about potential jurors. Beckham stated that he received no additional information from Harris so he did not follow up on his claim.
Harris also testified at the Rule 37 hearing. He claimed that he heard from two sources about the juror, whom he identified as Timothy Wells. He stated that a friend named “Eric” informed him over the phone about Wells, but he could not recall Eric’s last name. He also testified that his ex-wife, Kelly Harris, told him about Wells both over the phone and during her visit with him in jail. In rebuttal, the State introduced a “Visitor Register” for the Clark County jail for the time period between January 1, 2012, and February 9, 2012; the register did not reflect that Harris received a visit from his ex-wife during that time frame.
After hearing the evidence, the circuit court denied Harris’s claim. The circuit court found that Harris’s allegations of juror misconduct were wholly con-clusory. We agree. Conclusory allegations without factual substantiation are.not sufficient to overcome the presumption that counsel was effective. E.g., James v. State, 2013 Ark. 290, at 4, 2013 WL 3322333. Harris never presented any evidence at either the sentencing hearing or in his Rule 37 proceedings to support his allegations. Jurors are presumed to be unbiased, and the burden is on the appellant to show otherwise. E.g., McIntosh v. State, 340 Ark. 34, 38, 8 S.W.3d 506, 509 (2000). Because Harris failed to show any bias or misconduct, his trial counsel was not deficient for failing to file a meritless posttrial motion based on such an allegation. Boatright v. State, 2014 Ark. 66, at 6, 2014 WL 585976; see also Monts v. State, 312 Ark. 547, 549, 851 S.W.2d 432, 434 (1993) (holding counsel was not deficient for declining to make a meritless argument). Accordingly, we hold that the circuit court did not clearly err by rejecting Harris’s claim.
1 ^Harris’s second point on appeal is that the circuit court clearly erred by rejecting his claim that Beckham was ineffective for failing to ensure that his plea to the charge of possession of a firearm by certain persons was knowingly, voluntarily, and intelligently made. He also argues that, regardless of Beckham’s performance, his conviction for possession of a firearm by certain persons should be set aside because the record demonstrates that he did not enter a knowing, intelligent, or voluntary plea to that charge. The circuit court rejected both arguments, finding that the evidence demonstrated that Harris entered his no-contest plea voluntarily and intelligently and that Harris failed to demonstrate that his trial counsel’s representation fell short of an objective standard of reasonableness with respect to the plea.
However, when a petitioner enters a plea of guilty, Rule 37.2 provides that a petition must be filed within ninety days of the date that the judgment was entered of record. Ark. R. Crim. P. 37.2(c)(i). The time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and if they are not met, the circuit court lacks jurisdiction to grant postconviction relief. Ussery v. State, 2014 Ark. 186, 2014 WL 1673818; Talley v. State, 2012 Ark. 314, 2012 WL 3364266 (per curiam); Benton v. State, 325 Ark. 246, 925 S.W.2d 401 (1996) (per curiam). The judgment regarding Harris’s plea was entered on January 27, 2012. Thereafter, Harris had ninety days to file his Rule 37 petition regarding his plea. See Ark. R. Crim. P. 37.2(c)(i). Harris’s petition was filed on February 19, 2013—well after the ninety-day time limit had passed. Therefore, the portion of his petition regarding his plea was not timely filed because Harris filed it more than ninety |fldays after the judgment had been entered of record. Accordingly, the circuit court had no jurisdiction to grant the relief sought. When the lower court lacks jurisdiction, the appellate court also lacks jurisdiction. Ussery, 2014 Ark. 186; Winnett v. State, 2012 Ark. 404, 2012 WL 5304090 (per curiam). Accordingly, the order of the circuit court is affirmed as to Harris’s convictions of criminal use of a prohibited weapon, two counts of possession of a controlled substance with intent to deliver, and simultaneous possession of drugs and firearms, and dismissed as to the plea of no contest to the charge of possession of a firearm by certain persons.
Affirmed in part; dismissed in part.
Gladwin and Glover, JJ., agree.
. We note that Harris was convicted by a Clark- County jury of criminal use of a prohibited weapon, two counts of possession of a controlled substance with intent to deliver, and simultaneous possession of drugs and firearms. Harris pleaded no contest to the charge of possession of a'firearm by certain persons. In our opinion Harris v. State, 2012 Ark. App. 674, 2012 WL 5949099, we inaccurately stated that "Leslie Harris was convicted by a Clark County jury of criminal use of a prohibited weapon,' two counts of possession of a controlled substance with intent to deliver, possession of a firearm by certain persons, and-simultaneous possession of-drugs and firearms, As a habitual offender, he was sentenced to a total of forty years' imprisonment." We correct ourselves here and acknowledge that the Clark County jury convicted Harris of all of the crimes listed except possession of a firearm by certain persons. As noted above, Harris pleaded no contest to that charge,
. The record does not reflect why the Rule 37 hearing was held almost three years after the petition had been filed.
. The sentencing order reflects a negotiated plea of guilty, but it was actually a negotiated plea of nolo contendere, or no contest. There is no distinction between guilty pleas and pleas of no contest for purposes of Rule 37.1. See Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996). | [
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PER CURIAM
I,Lynn Roberts and Vicki Steen appeal from the October 25, 2016 order entered by the Circuit Court of Stone County, in a lawsuit that included Rita Riege’s claims for adverse possession and boundary by acquiescence. Ms. Riege, now appellee, has filed a motion to dismiss the appeal for lack of a final order. She asserts that although the circuit court denominated the order a “final order and judgment,” it was not final for purposes of appeal under Ark. R. App. P.-Civ(2)(a)(l) and long-standing case law. We agree, and we grant the motion to dismiss without prejudice.
An appeal may be taken from a “final judgment or decree entered by the circuit court” or from an order that in effect “determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action.” Ark. R. App. P.-Civ. 2(a)(1), 2(a)(2) (2016). Absent a final order or a properly executed certificate from the circuit court making an “express determination, supported by specific factual findings, that there is no just reason for delay”—which we do not have—an order that fails to adjudicate all of the parties’ ^claims cannot be appealed. Ark. R. Civ. P. 54(b) (2016).
In order to be appealable, an order must be of such a nature as to not only decide the rights of the parties, but also put the court’s directive into execution, ending the litigation or a separable part of it. Petrus v. Nature Conservancy, 330 Ark. 722, 725, 957 S.W.2d 688, 689 (1997). The “Final Order” decree in Petrus purportedly dismissed the Petruses’ claims and found that the Arkansas Natural Heritage Commission (ANHC) had prevailed on its adverse-possession claim. Id. Although the decree included relevant findings, it did not identify the property awarded to ANHC or the portions excepted and reserved to the Pe-truses:
While the chancellor and the parties apparently intended to resolve the boundary lines via a future survey, the permanent record in a boundary-line decision should describe the line with sufficient specificity that it may be identified solely by reference to the order. Otherwise, leaving those lines to be established by a future survey may likely result in additional disputes, litigation, and appeals. Again, the case law that requires a chancery decree to fix and describe the boundary lines in a dispute between landowners discourages piecemeal litigation.
330 Ark. 722, 726, 957 S.W.2d 688, 689-90. Because the decree lacked finality, the appeal was premature and was dismissed without prejudice.
We have followed Petrus in dismissing appeals where property is not adequately described and the record does not contain sufficient evidence to permit the trial court to set forth the specific description of the property without further proceedings. See, e.g., Keating v. Mason, 2013 Ark. App. 477, at 2, 2013 WL 4830483. Where property descriptions are deficient but the order references existing surveys, and where nothing remains to be done, the case can be decided on the merits and remanded for the inclusion of a more specific legal description in the order. |See, e.g., Rice v. Whiting, 248 Ark. 592, 452 S.W.2d 842 (1970); Boyster v. Shoemake, 101 Ark.App. 148, 272 S.W.3d 139 (2008); Adams v. Atkins, 97 Ark.App. 328, 249 S.W.3d 166 (2007); Jennings v. Burford, 60 Ark.App. 27, 958 S.W.2d 12 (1997).
Here, as in Petrus, further action was contemplated by the parties. The circuit court’s order included the following paragraphs:
11. That the jury did also return a verdict in favor of the Rita May Riege Revocable Trust’s property, Count II Adverse Possession claim, meaning that from henceforth, the Rita May Riege Revocable Trust is hereby ordered the owner of any and lands located on the left side of the Raccoon Lane, from a ■point in which the curve of the road begins, approximately 20 yards before the completion of the road’s 90- degree turn, to be more fully described in a survey to completed by Defendant. ■
12. That the jury did alsó return a verdict in favor of the Rita May Riege Revocable Trust’s property, Count III Boundary by Acquiescence claim, meaning that from henceforth, the Rita May Riege Revocable Trust is hereby ordered the owner of any and all lands located on the left side of the Raccoon Lane, from a point in which the curve of the road begins, approximately 20 yards before the completion of the road’s 90 degree turn, to be more fully described in a survey to be completed by Defendant.
13. That as to the jury’s findings jn paragraphs. 11 and 12 of this Order, Intervenor, the Rita May Riege Revocable Trust is hereby given 45 days to obtain a survey of the lands which.have been found to be Intervenor’s by way of adverse possession and boundary by acquiescence., Should more time be needed, the. Court should be notified and further time, given.
Appellants have responded to the motion to dismiss their appeal of this order. They deny an allegation in the motion that the survey had not been completed, but they state in the affirmative that Ms. Riege’s counsel very well may not have received notice that the survey had been completed at the time the motion was filed. They request that, should we determine that the circuit court should enter an additional order containing or referencing the survey prior to final disposition of their appeal, they be granted leave for entry of an | ¿appropriate order and to supplement the record. Attached to their response is Exhibit A, an email from their counsel .to Ms. Riege’s counsel—with the survey attached. Also attached to the response is Exhibit B, Ms. Riege’s motion for extension of time to complete any. necessary supplemental abstract and addendum.
We note that the survey attached to the response is not a part of the record, before us and was not before the circuit court at the time it entered the order now being appealed. Thus, there is no survey or other evidence in the record to establish without further proceedings the exact location of the awarded “lands located on the left side of the Raccoon Lane, from a point in which the curve of the road begins, approximately -20 yards before the completion of. the road’s 90 degree turn, to be more fully described in a survey to be completed by Defendant.” Accordingly, we grant appel-lee’s motion to dismiss appeal for lack of a final order, and we dismiss the appeal without prejudice.
Dismissed without prejudice. | [
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WAYMOND M. BROWN, Judge
11 Nathan Stevens appeals from the circuit court’s forfeiture of $31,418 found in his possession during a traffic stop. On appeal, Stevens argues that (1) appellee failed to make a causal connection betweeh the money hidden' in the vehicle and drug trafficking or sales, and that (2) Arkansas Code Annotated section 5-64-505 is ambiguous and contradictory and does not support the seizure of property where the underlying crime is a misdemeanor possession of a controlled substance. We affirm.
On May 14, 2015, appellee filed an in-rem complaint pursuant to the provisions of Arkansas Code Annotated section 5-64-505, requesting forfeiture of money seized from appellant’s vehicle on April 18, 2015. On July 28, 2015, appellant filed an answer and countercomplaint for writ of replevin and argued that, becáuse he was convicted of a | ^misdemeanor possession charge, the seizure was unlawful. The "circuit court held a forfeiture hearing on July 25, 2015.
Sergeant Farris McClain of the Carlisle Police Department testified to going out to a local Exxon on the afternoon of April 18, 2015, to attempt to unlock a vehicle. A female, Brandi Scruggs, reported to him that she had locked her keys in the vehicle and led him to a gray 2014 Ford Escape. After several minutes of unsuccessfully attempting to unlock the door, two other officers—Dan Hogan and Robert Wake-field—arrived on the scene to assist McClain. When McClain asked Scruggs what business she rented the car from, she initially said Enterprise; however, Hogan’s search of the license plate revealed that the vehicle belonged to a Hertz Rental out of California. McClain asked Scruggs who rented the vehicle and she mentioned “some girl named ‘Carrie’ she really didn’t know”; “a friend of a friend.” McClain reported that Scruggs was “acting a little bit nervous at the time.” After “several more minutest,]” McClain was able to gain entry to the vehicle. He retrieved the vehicle’s keys and the rental contract. The contract did not reflect Scruggs’ name nor a “Carrie” but another individual named Candice Spain who was “out of Kentucky” and was not in nor around the vehicle.
About the time of this discovery, a male individual walked up and identified himself as “David Carneal” with a date of birth of July 1, 1982. McClain was unable to get a return in the Arkansas Criminal Information Center terminal on that name and date of birth. From the stand, McClain identified appellant as “David Carneal.” He then asked “Carneal” for |ahis identification, which he was unable to provide. When asked their destination during what McClain described as “somewhat” of a field interview, with the two parties separated, Scruggs replied with Oklahoma while “Carneal” replied with Arizona. “Carneal” was acting “very nervous” and McClain could detect a “strong odor” of alcohol on his person. McClain then confronted “Carneal” on whether he had been drinking and “Carneal” admitted that he had earlier. When asked who rented the vehicle, “Carneal” identified “an old friend named Carrie”—“[s]omebody named Carrie”—though he could not give a last name. During their investigation, McClain “looked around, and [appellant] had left the scene”; had “walked away” and “just disappeared.”
When McClain determined from the contract that the car was a Hertz rental and not an Enterprise rental, Hogan contacted Hertz, which advised them to seize the car since neither Scruggs nor “Car-neal” was on the contract. McClain asked Scruggs and “Carneal” if they had anything illegal in the vehicle, to which they each replied no. Prior to the inventory search, and pursuant to the seizure requested by Hertz, Wakefield ran a K-9 sniff that alerted for narcotics. The officers then conducted a “full-on search.” Numerous items were found therein; of pertinence, a small bag of “green-leafy substance suspected [and later confirmed] to be marijuana[,]” a half-smoked marijuana cigarette, and money. Upon locating the money, Scruggs and “Carneal” were advised that they were under arrest for three misdemeanor charges; “Carneal” admitted the marijuana belonged to him at that l4time. The car was inventoried and towed to an impound lot, and Scruggs and “Car-neal” were taken to the police department, after which an “extended” search was con ducted on the vehicle at the impound lot. Regarding the money found during that search, McClain testified as follows:
And during this time we found a large quantity of money. It was in three or four different places. In the back cargo area, there was [sic] storage pockets back there in both pockets. While I’m looking through there, there was some glue. I can’t remember exactly. I think it was in the back seat. But while we were looking and inspecting the vehicle at that time, I see glue around the center console, the gearshift. At that point we was [sic] able to gain entry, and there was another large amount of marijuana there. I mean—I’m sorry—a large amount of money. No other marijuana was found in the vehicle. The money is just what I found prior to being impounded. The money was found underneath. You just pull this cover up, and I believe the glove compartment contained a large quantity of money. We took it to First State Bank, and they determined it was $31,418 in cash.
After “about a two hour period[,]” “Car-neal” finally revealed his true identity as Nathan Stevens and gave his correct date of birth, which McClain confirmed. McClain never told Stevens that he had found the money, and Stevens “never said anything about, ‘I’ve got some money in my ear.’ ” Stevens never spoke of the large amount of money, only the money in his wallet. A confiscation report was prepared and forwarded to the prosecutor’s office. McClain admitted that his seizures “typically ... involved felony amount [sic] of drugs along with some cash”; however, the “large amount in these various places concealed with their demeanor led [him] to believe the money was used for drugs.” This was in addition to Stevens’s failure to even tell him that the money was in the vehicle. He testified that he believed the money was used for drug trafficking, buying or selling drugs, and that was why he seized it.
| ¡[Wakefield testified to assisting McClain with the locked-car situation involving Scruggs and Stevens. He stated that Scruggs was acting nervous at the time, and “didn’t act like she just had a locked vehicle”; she acted like “something further was going on.” He stated that Stevens went through two different names before correctly identifying himself. Stevens denied any knowledge of any of the money outside of the “roughly” $1,500 in his wallet.
Corporal Vic Coleman, of the Arkansas State Police’s Interstate Criminal Patrol Unit, testified that his unit does criminal interdiction, which includes drug interdiction. Noting that he had looked at the facts of this particular case, read the report, and viewed the video, Coleman was permitted to testify as an expert without objection. He testified that his expertise was in land-based trafficking, noting that the “great majority of narcotics that travel into the United States cross the Mexican border, the southwest quarter from Mexico to the United States through California, Texas, Arizona, Mexico.” He stated that drugs traditionally moved east along 1-40 going to major cities in the east and money traditionally is travelling westbound “back to the border back into Mexico.” He testified that in a lot of these drug cases, the parties will have conflicting stories, like when Scruggs stated that she and Stevens were heading to Oklahoma while Stevens stated that they were headed to Arizona.
| fjColeman had consistently seen in his history, a third-party rental, as in this case where neither Scruggs nor Stevens knew who rented the vehicle and “didn’t know each other very well, apparently.” Coleman stated that this was because “they don’t want to lose their personal vehicle if it is seized.” However, he admitted that just béíng in a rental car “would not mean anything to [him].” Coleman stated that the “guy who owns the money, he doesn’t want to be where the money’s at, so'he rents a vehicle and gives a third party the money and the vehicle and says, ‘Go to point A.’ ”
What “jumped out at [Coleman]” were the facts that Stevens and Scruggs were headed to Arizona because it is a “source area for narcotics” as recognized by the DEA, the individuals were nervous, they were deceptive, and neither party claimed the money. The fact that very little drugs were found did not “mean anything ,to [Coleman] one way or another” because you- traditionally “don’t see a lot of drugs in .a vehicle” and it was actually “uncommon to find drugs in the vehicle at,all” because “they don’t want the drugs and the money in the same place.” But he admitted that he had had cases in which there were drugs and money. An individual’s lack of criminal history could go both ways, haying no criminal history, or a lot of history. Coleman found it to be suspect that the money was found in different locations. He opined that “$30,000 -is a lot of money for anybody to have on you” and noted that he would not seize $5,000 or $10,000 “[without other indicators.” His opinion was that the money in this case was' “destined to be used in exchange for drugs.”-
|7Puring appellant’s counsel’s cross-examination,-she stated that'she was “confused on that as to what [Coleman’s] role here is[,]” to which the'circuit court responded “[a]s an expert witness. That was it. He didn’t say he was involved in any of it or anything else. And you said it was okay for him to be a witness.” After explaining her belief that Coleman had some role in the case, to which the circuit court responded that he had not, appellant’s counsel stated that she had no questions of Coleman.
. Stevens then testified that he lives in Kentucky and “got a ride from this person [presumably Scruggs]” to go see his dad in Shreveport, Louisiana. He denied trafficking drugs and stated that he gave a false name because he had a warrant out of Kentucky for failing to report to his parole officer. He stated that the $39,000 that was taken from him was “lawfully [his,]” having been given to him by his mother right before she passed away. Stevens stated that he concealed the money because he is from the country and “don’t know much about the city” and he was “thinking that if somebody sees that [money] in the city, [he heard] [of] people getting hurt and killed all the time ... [he] figure [sic] somebody would try to rob [him].” He used the money to buy and sell cars. He did not tell the police |swhere the money was because they were “going to .keep it” and he would be going through a hearing “like this” if he told them. He planned to “wait and have somebody come down here and get [his] belongings out of- impound and get [the money]' out of the vehicle”; “why go through all this whenever [he] could just have somebody come pick [the money] up?” He did not think that plan was bold. He admitted that he had not “known [Scruggs] very long” and admitted that he had been convicted of felony possession of a controlled substance, manufacturing methamphetamine, and theft of identity in the last ten years.
Stevens’s fiancée, whom he referred to as his wife, testified that she had known Stevens for about “two, three years” before he was arrested. She had no knowledge of him “ever trafficking in drugs.” She stated that he was in possession of the money lawfully, having “found the money in [their] trailer when [they were] remodeling, but she went on to testify that the money was given to him “whenever his mother died” and that she thought it was “like inherited[.]”
Following'the hearing, the circuit court entered an order forfeiting the money to appellee on July 28, 2016. Therein, it stated that
[Stevens’s] explanation for hiding money in concealed locations in the vehicle was not believable considering the amount of money he had on his person.
[Stevens’s] and his witness’ explanation for the Thirty One Thousand Four Hundred Eighteen Dollars ($31,418.00) were different and unrealistic. [Stevens] stated that he inherited Fifty-Five Thousand Dollars ($55,000.00) from his mother some years ago. [Stevens’s] witness, who was his fiancée, stated they found the money in the wall of [Stevens’s] deceased mother’s mobile home when they were rehiodeling.
Also, [Stevens] never stated to the officers that he had money in the vehicle prior to the officers finding the money in different locations inside the vehicle. Also, the rental vehicle was leased to someone that was not present.
| flBecause [Stevens’s] charges were two misdemeanors, counsel argued the money was not forfeitable. However in ac- ’ cordance with Arkansas Code Annotated 5-64-505 there is' a rebuttable presumption that money found in close proximity to a forfeitable controlled substance is presumed tó be forfeitable under subdivision (a)(7). The Claimant did nor [sic] rebut this presumption by a preponderance of the evidence.
This timely appeal followed.
A forfeiture is an in-rem proceeding, independent of the criminal charge, to be decided by the circuit court by a preponderance of the evidence. We will not set aside a circuit court’s decision granting forfeiture unless it is clearly erroneous. A circuit court’s decision is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with a definite and firm conviction that a mistake has been committed.
Under Arkansas law, for property to be subject to forfeiture, the State must prove by a preponderance of the evidence that the property was “used, or intended to be used” to facilitate a violation of the Uniform Controlled Substances Act. If, however, the property is found in close proximity to a forfeitable controlled substance, then it is presumed to be forfei-table, and the burden of proof rests with the claimant of the property to rebut this presumption by a preponderance of the evidence.
ImStevens argues for his first point on appeal that the circuit court erred in forfeiting the $31,418 because appellee failed to make a causal connection between the money hidden in the vehicle and drug trafficking or sales. Specifically, he argues that the officers’ testimony was speculation—not evidence—and states that Stevens’s testimony explained where he was going, where the money came from, and why he did not tell the officers that the money was in the car. Finally, he argues that he rejects that there was any “substantial connection” between the money and drugs because “the Arkansas statute is ambiguous and contradictory.” To the extent this was an attempt to raise appellant’s “ambiguous and contradictory” argument under this point, we do not reach the merits of the alleged ambiguity or contra-
dictory nature of the statute because the above-referenced sentence is the entirety of his ambiguity-or-contradictory argument under this point. It is axiomatic that this court will not entertain an argument where there is no citation to authority or convincing legal argument.
Where the standard of review is a preponderance of the evidence and the entirety of Stevens’s argument regarding appellee’s alleged failure to prove a causal connection between the money and drug trafficking comes from the testimony of Stevens and his fiancée, this court cannot find that the circuit court erred. It appears that the circuit court found the appellee’s witnesses more credible and simply did not believe appellant’s contrary |, ■, explanations. This court will set aside the trial court’s findings only if they are clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.
We do not address the merits of Stevens’s second argument that Arkansas Code Annotated section 5-64-505 is ambiguous and contradictory and cannot support the seizure of property where the underlying crime is a misdemeanor possession of a controlled substance. Before the circuit court, while arguing that a misdemeanor cannot support a forfeiture, he never raised that argument that the statute itself was ambiguous or contradictory. A party cannot change the grounds for an objection or motion on appeal, but is bound by the scope of arguments made at trial. Our supreme court has stated that the circuit court must have the benefit of the development of the law by the parties in order to rule adequately on the issues. We will not address an issue that is fully developed for the first time on appeal. .
Affirmed.
Harrison and Vaught, JJ., agree.
. (Supp. 2011).
. Appellant had also filed á pro se answer on July 10, 2015.
. There was no testimony regarding whether "Carneal” returned on his own or if the officers went in search of him.
. Appellant was charged with possession of marijuana, misdemeanor obstructing operations, and misdemeanor possession, all Class A misdemeanor charges.
. Wakefield was present when Stevens was arrested and when the money was found in the vehicle.
. Stevens also identified himself as Brandon Henderson. Hogan also testified, but his testimony was duplicative of McClain’s and Wake-field's testimony.
. “They” were not identified, but appears to refer to drug dealers,
. He had stated that he was going to see his mother in Arizona on the date of the seizure.
., Though Stevens refers to $39,000 having been taken from him, nowhere in the record does that figure appear; however, he stated that he was not claiming' the police department stole $8,000. Furthermore, in his pro se answer, he asserted that the seized amount . included "$31,711.00, plus the $1,484.00 that was in [his] pocket,” Additionally, Stevens stated that' he had obtained $55,000 from his mother in total and-that it was money she -had saved in cash in a wall in her trailer home because she “did not trust banks.” He asserted that he did not put the money in a bank because of his warrant, which he asserted would nót allow him to open a bank account. He had lived off the money for ten years, according to his testimony.
. Salim v. State, 2016 Ark. App. 556, at 8, 506 S.W.3d 863, 868 (citing $15,956 In U.S. Currency v. State, 366 Ark. 70, 233 S.W.3d 598 (2006)).
. Id.
. Id.
. Salim, 2016 Ark. App. 556, at 9, 506 S.W.3d at 869 (citing Ark. Code Ann. § 5-64-505(a)(6)).
. Id. (citing Ark. Code Ann. § 5-64-505(a)(7)).
. Lewis v. State, 2012 Ark. App. 184, at 5-6, 396 S.W.3d 775, 778 (citing Mills v. State, 351 Ark. 523, 529, 95 S.W.3d 796, 799 (2003)).
. See $15,956 In U.S. Currency v. State, 366 Ark. 70, 79, 233 S.W.3d 598, 604 (2006).
. In re Three Pieces of Prop. Located in Monticello, 81 Ark. App. 235, 241, 100 S.W.3d 76, 79 (2003) (citing Ark. R. Civ. P. 52(a); In Re One 1994 Chevrolet Camaro, 343 Ark. 751, 37 S.W.3d 613 (2001); Reddin v. State, 15 Ark. App. 399, 695 S.W.2d 394 (1985)).
. Gooch v. State, 2015 Ark. 227, at 7, 463 S.W.3d 296, 301 (citing Smith v. State, 354 Ark. 226, 242, 118 S.W.3d 542, 551 (2003)).
. Id. (citing Talbert v. State, 367 Ark. 262, 265, 239 S.W.3d 504, 508 (2006)).
. Id. at 8, 463 S.W.3d at 301 (citing Raymond v. State, 354 Ark. 157, 168, 118 S.W.3d 567, 574 (2003)). | [
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Holt, J.
March 4, 1946, appellee sued appellant, Leveta Disheroon, for divorce on the alleged grounds of cruel treatment, such as to render his life intolerable (5th subdivision of § 4381, Pope’s Digest). He also asked for the care and custody of their only child at that time — a boy about two and one-half years old, named Donald Joe. Appellant entered a general denial, prayed that appellee’s complaint be dismissed for want of equity and for all proper and equitable relief.
When the cause came on for trial, August 26,1946, a second child, a boy, had been born to appellant, which was then about two months old. The trial court granted a divorce. The care and custody of the older child, Donald, was divided between the parties, the father to have its custody for six months of each year, and the mother for the remaining six months, with visitation privileges to each. The care and custody of the second child was given to the mother with the privilege to the father to visit the child at reasonable times. The appellant, mother, was awarded $5 per week for the support of the younger child, and $10 per month additional for the older child while in her custody, but was not awarded anything for her own support.
From the decree comes this appeal.
For reversal, appellant says: “(1) The evidence is wholly insufficient to support decree for divorce; (2) appellant should have, during his tender years, the exclusive custody of Donald Joe subject to visitations of the father; (3) the allowances for the support of the infants are inadequate; (4) appellant should have some provisions for her own support, and (5) appellant was entitled to reasonable allowance for attorney fees.”
After a careful review of the record before us, we have reached the conclusion that all of appellant’s contentions must be sustained.
1.
Briefly stated, the facts are: The parties to this action were married October 24,-1942, each at the time being eighteen years of age. They lived in various places in and near Green Forest, Ark., until appellee was inducted into the Naval Service, November 9, 1943. Appellee, after his induction and shortly after the birth of their first baby, was located on the west coast. He returned home on furlough and at his wife’s request took her and the baby with him to the home of his uncle at Glenns Ferry, Idaho. Later, Mrs. Disheroon took the baby to California where they lived with her sister. Both appellant and her sister secured employment. Their working hours were different and they were able to care for the baby. While*thus employed, Mrs. Disheroon suffered a nervous breakdown and spent some time in a hospital there and later was transferred to the State Hospital in Little Rock, and after a complete recovery, she was discharged from this institution September 12, 1945, returned to Green Forest, where she was soon joined by appellee, her husband, and as above noted, they separated February 23, 3946. The characters of these two young people are unquestioned. Appellee says in Ms brief: “Happily no suggestion has entered this case reflecting even remotely on the character of either party. Either or both may be foolish or immature, but the unanimous voice of every witness giving expression is that she was — is—-‘a good_ girl’; that he was — and is— in the words of Eev. Powell, ‘an exceptionally good boy’.”
The effect of appellee’s own testimony was that Ms young wife was discontented, fretful and hard to please; that she neglected their little boy, sometimes quarreled with him, and on one occasion after he had lingered in a pool room, playing pool with his brother, longer than she thought proper, upbraided and slapped him when he came to their truck in which she was waiting. He further testified that after they resumed their marital relations following her nervous breakdown, she was not good to him, was a careless housekeeper; that there was another expected baby at the time; that she wanted a car and other things which he was unable to buy for her; that he didn’t think that she helped him as much as she should; that she caused him to move from place to place, and ‘ ‘ She was an expectant mother, and I knew that» I knew we were expecting a baby. She wanted to go with me (meaning the west coast). ... I think any married man would rather have his wife here at home. ... I am not alleging her nervous breakdown as a sole ground of divorce, but I think it should be considered as part of the grounds for divorce. ”
On cross-examination, there is this testimony from appellee: “Q. What is its name (meaning the second child) ? A. I don’t know. Q. You have not cared enough to find out? A. I have not found out. Q. Have you seen it? A. Yes, I have seen it once. Q. “When was that?» A. At her place over there. Q. Did you make a trip to see it? A. Yes, they wrote and asked me to bring Donnie over to see it. Q. Did you see it? A. Yes, I did. Q. This baby, you don’t, know its name? A. No. Q. You never asked her or anyone what its name was? A. No. Q. What are you working at now? A. Helping my dad in the canning factory, hauling tomatoes. Q. You are an ex-service man? A. Yes. Q. Drawing anything from the Government? A. Yes, self-employment. Q. How much? A. $100 a month. Q. Did you make application for this self-employment, listing your wife and child as dependents? A. I did. Q. Have you contributed anything to their support since the last term of court here? A. "What I was required to, I did. Q. It is your intention to continue to support them? A. If the court requires me to, yes: Q. And if the court does not require you to support them? A. I think that I should have custody if I support them. Q. In case you do not have custody, you don’t intend to support them? A. I do not feel like I should have to.”
The parents of the parties are good people and do not appear to have encouraged their separation. Appellee lives with his father and stepmother and proposes to take Donald into their home. Appellant and the younger child now live with her father.
Appellant testified that she always tried to make a good housekeeper, that she continued to love appellee and still loves him; that she had lost some affection for him because of the manner in which he had treated her, but that if he would do right, she would continue to love him and make him a good wife; that for the sake of the children they ought to live together.
"We think it clear from the above and the other testimony which we do not think it necessary to abstract here, that appellee has fallen far short of producing testimony of that character required to secure a divorce on the grounds of cruel treatment. As we read and analyze the evidence, the effect of it amounts to nothing more than petty quarrels and misunderstandings, not infrequent among even happily married couples, and certainly it does not rise to the dignity and of that kind of evidence constituting cruel treatment as contemplated by the statute and in the numerous decisions from this court.
This court in Kientz v. Kientz, 104 Ark. 381, 149 S. W. 86, said: “In order to constitute cruel treatment, which our law recognizes as ground for divorce, there must be proof of willfulness or malice on the part of the offend ing spouse, and the effect of that treatment must be to impair or threaten the impairment of the complaining party’s health or such as to cause mental suffering sufficient to make the condition of the complaining party intolerable. Mere incompatibility of temperament or want of congeniality and the consequent quarrels causing unhappiness are not sufficient to constitute that cruelty which, under our statute, will justify divorce. The marriage state can not be considered as one of convenience, but it is one which has been entered into ‘for better or for worse,’ and must continue'for life unless sundered for the grounds named in the statute justifying its dissolution, which must be proved by clear evidence. As is said in the case of Cate v. Cate, 53 Ark. 484, 14 S. W. 675: ‘It pxust be shown at least that there is something that makes cohabitation unsafe to move the courts to interfere,’ ” and in Meffert v. Meffert, 118 Ark. 582, 177 S. W. 1, Judge Hart, speaking for the court, said:
“Unhappiness sufficient to render- the condition of both parties intolerable may arise from the mutual neglect of the conjugal duties; but when the parties are thus at fault the remedy must be sought by them, not in the courts, but in the reformation of their conduct. The remedy is in their own hands, and, until it has been tried without effect by the party complaining, the court will not give effect to the complaint. Until this home remedy has been tested and failed, the condition of each may be said to be due to his or her own acts, and one must bear the consequences of his own misconduct. See, also, Arnold v. Arnold, 115 Ark. 32, 170 S. W. 486.
“So it may be said that the remedy of absolute divorce contemplated by this clause of our statute is for evils which are unavoidable and unendurable and which can not be relieved by any exertions of the party seeking the aid of the courts.”
We think the small differences that have arisen between these two young people can be easily adjusted by them, and with the proper effort and encouragement on the part of the parents, this fine little family should, and can be held together.
As indicated, we think it was also error to divide the custody of the older child. These two children, especially at the present time, and during their tender years, need a mother’s care, guidance and attention, and she should have their care and custody, with the right of the father to visitation at all reasonable times. Our first and primary consideration is the best interest of these children, or as sometimes expressed, what would be least harmful to them in the circumstances. No reason is shown why these children should be separated.
This court in Gibson v. Gibson, 156 Ark. 30, 245 S. W. 32, on this question, said: “These children are now of the ages, respectively, between four and five years and between two and three years, the younger one of the two being a girl. At this age children should have a mother’s care and attention, and the proof does not justify a decree depriving them of that care and transferring their custody to the father. The reason for this conclusion is given in many decisions of this court, and it is unnecessary now to repeat. Beene v. Beene, 64 Ark. 518, 43 S. W. 968; Meffert v. Meffert, 118 Ark. 582, 177 S. W. 1. These established principles are peculiarly applicable to the matter of the custody of the younger child, who is a girl, and, even if the boy were old enough to justify removal from his mother, there is no good reason shown why' the children should be separated,” and in the recent case of McCourtney v. McCourtney, 205 Ark. 111, 168 S. W. 2d 200, we said:
“Without reviewing the conflicting testimony, we announce our conclusion to be that the welfare and best interests of the children, which is, of course, the primary consideration, require that they be kept together, and, in view of the fact that the children are all girls and the youngest only 10 years old, we think the chancellor properly' awarded the custody of all the children to their mother.”
3 and 4.
On the question of support, it appears that appellee receives $100 a month from the Government, and is work ing and earning additional money. It is the duty of a father to support and provide a home for his family. The appellant is now living with her father,and, obviously, the care of these two children will require most, if not all, of her time. It appears that she has very little property and is not earning anything. In the circumstances, we think appellant should be allowed $30 per month for the support of the two children, and in addition $20 for her own support, or a total of $50 per month.
5.
Appellant is also entitled to a reasonable attorney’s fee which the trial court will award to her upon the remand of this cailse.
For the errors indicated, the decree is reversed, and the cause remanded with directions to enter a decree not inconsistent with this opinion. Appellee is to pay all costs in both courts. | [
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McHaney, Justice.
Appellant Deaderick is the mayor and the other individual appellants are officials and aldermen of the city of Forrest City, Arkansas, and appellant, Duncan Meter Company, is a foreign corporation, organized under the laws of Illinois and engaged in the installation of parking meters for said city under contract with the other appellants.
Appellee is a resident, citizen, legal voter and taxpayer of said city and brought this action on behalf of himself and all others similarly situated, to enjoin the further installation of parking meters in said city and to compel the removal of those already installed. The complaint alleged the invalidity of Ordinance No. 589, adopted by the city council on April 16, 1946, the ordinance which authorized the installation of parking meters, because, as passed by the city council, it is in direct violation of the statutes of Arkansas, Act No. 309 of the Acts of 1939, p. 757, and that their installation is an encroachment on public property and constitutes a public nuisance.
Appellants appeared specially and objected to the jurisdiction of the court, and, without waiving that question, filed general denials. The court granted a temporary injunction on July 24, 1946, restraining the operation of the meters and from paying out any money for their purchase or for labor and materials in their installation.
The case was submitted to the court on the pleadings and stipulation as to the facts. It is agreed that, prior to the adoption of said Ordinance 589, no petition of voters of the city was filed invoking the initiative upon said ordinance and no referendum petition was filed in 90 days after its adoption, nor did the ordinance by its terms call for a vote of the people on the question. Most of the meters to be installed were in fact installed before this suit was filed, but their operation was never begun because of the temporary restraining order. On September 26, 1946, the court made its temporary order permanent, and directed appellants to remove the meters and standards to which they are attached from the streets in 120 days from that date. The decree was based on two grounds: ■ (1) that said Ordinance 589 is in contravention of said Act 309 of 1939, and (2) the emergency clause on the ordinance was not properly adopted. This appeal followed.
Act No. 309 oi 1939 is entitled “An Act to prohibit Cities of the First and Second- Class and Incorporated Towns from installing devices commonly known as parking meters.” Section 1 is as follows: “Hereafter cities of the first and second class and incorporated towns are prohibited from installing devices, commonly known as parking meters or other devices, designed to require automobile owners to pay for the privilege of parking .on the streets of said cities or towns. Provided, however, that any city of the first or second class or incorporated town desiring to install such devices may do so after adopting a local measure, authorizing such installation, in accordance with the provisions of the Initiated and Referendum Amendment to the Constitution of 1874. And provided further that this act shall not apply to any city where parking meters were installed prior to January 1, 1939.”
For a reversal of the decree it is first contended that the court was without jurisdiction because there was an adequate remedy at law. This contention is based on the fact that Ordinance No. 589 sets out penalties for its violation and that the only way provided therein for its enforcement is by arrest and criminal prosecution. It is a familiar rule in this state that courts of equity will not interfere by injunctions to prevent anticipated criminal prosecution. Rider v. Leatherman, 85 Ark. 230, 107 S. W. 996; Gordon v. Smith, 196 Ark. 926, 120 S. W. 2d 325. The object of this suit was not merely to enjoin the enforcement of the criminal provisions of the ordinance, but went further and sought to enjoin its enforcement as an illegal exaction, such as is set out in Art. XVI, § 13, of the Constitution. One of the early cases arising under that provision of the Constitution of 1874 is Taylor, Cleveland & Co. v. City of Pine Bluff, 34 Ark. 603. Judge Eakin there said: “Equity is chary of all interference with criminal or penal prosecutions for violations of state or municipal law. . . . Art. XVI, § 13, of the Constitution provides: ‘Any citizen of any county, city dr town may institute suit, in behalf, of himself and all others interested, to protect the inhabitants thereof against tlie enforcement of any illegal exaction whatever.’ For this purpose, a bill in chancery is most appropriate.
“This widens the range of equity jurisdiction, and will sustain this bill, to the extent of giving the court power to inquire into the validity of the exactions, and if found void, so to declare it, and restrain the city authorities from its collection. After such a decree, its collection by any process whatever would be a contempt. But when ordinances are simply to prohibit and punish acts, they stand upon a different footing.” See, also, Rose v. Brickhouse, 182 Ark. 1105, 34 S. W. 2d 472, where a number of our previous cases on the subject are cited. We conclude that the chancery court correctly held that it had jurisdiction of the subject-matter.
It is next argued that Act 309' of 1939 above quoted, is unconstitutional and void because violative of amendment No. 14, the local Act Amendment, and § 18 of Article II, which prohibits the General Assembly from granting to any citizen “privileges or immunities which upon the same terms shall not equally belong to all citizens.” Since appellants made no attempt to comply with said Act 309, by submitting the question to a vote of the people, as required, we take it as conceded that said ordinance is void, if the Act is valid.
We think said Act is a valid exercise of legislative power, and that it does not offend against either provision of the Constitution, as contended by appellants. The Act, by its express terms, is prospective in its operation, and not retroactive. It begins with the word “Hereafter” certain municipalities are prohibited, etc., and it therefore does not apply to any municipality which had already installed parking meters, and the second proviso therein might just as well have been left out of the Act. The proviso, therefore, did not have the effect of rendering the Act local and in violation of Amendment 14. We think the cases cited by appellants, such as Webb v. Adams, 180 Ark. 713, 23 S. W. 2d 617, are not controlling here.
No cases are cited to support the contention that Art. II, § 18, of the Constitution is violated. 'This provision refers to “citizen or class of citizens.” A corporation is not a citizen. State v. So. Sand & Material Co., 113 Ark. 149, 167 S. W. 854. A levee district is not a citizen. St. L., I. M. & S. Ry. Co. v. Board Dir. Levee Dist. No. 2, 103 Ark. 127, 145 S. W. 892. We conclude that a city is not a citizen within the meaning of said provision. Municipalities have no power except those granted expressly or by necessary implication by the legislature. Bain v. Traction Co., 116 Ark. 125, 172 S. W. 843, L. R. A. 1915D, 1021; Willis v. Ft. Smith, 121 Ark. 606, 182 S. W. 275; Argenta v. Keith, 130 Ark. 334, 197 S. W. 686, L. R. A. 1918B, 888. Here the legislature has expressly prohibited all municipalities from installing parking meters without first ‘ ‘ adopting a local measure authorizing such installation, in accordance with the provisions of the Initiated (Initiative) and Beferendum Amendment to the Constitution of 1874.” The ordinance in question and the contract of the city with the Duncan Meter Company based thereon are, therefore, void, and the court correctly directed the removal of the equipment from the streets and enjoined the operation of the meters.
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Griffin Smith, Chief Justice.
Questions presented are whether the Court erred in refusing to decree specific performance of a contract for sale and purchase of land; or in the alternative was it error to dismiss the plaintiff’s prayer for damages, and to award liquidated damages to one of the defendants.
S. A. Gray, who owned 79 acres, listed it with United Farm Agency to be sold for $2,500. The Agency was represented by H. H. Yance.
June 14, 1944, Harrison Polk signed the Agency’s printed form whereby he contracted to purchase the land and the seller agreed to execute a deed ‘ ‘ containing a general warranty and the usual further covenants for the conveying and assuring to [the purchaser] the fee simple of the said premises, free from all encumbrances except those mentioned herein”.
A cash payment of $250 was made, with $2,250 to be paid at one o’clock July 14th at the Agency office in Paris. The sale was subject to a coal lease held by W. H. Argo.
The evidence is not in substantial conflict except that part regarding possession. This, however, seems to have been restricted to Polk’s use for pasturage, a right granted by Tom Stewart, who had the property rented. Gray seemingly told Polk he could graze his cattle on a minor part of the acreage, provided Stewart did not object. Stewart agreed on condition that his crops were not to be injured. The testimony is undisputed that the cattle gave trouble, and “in about a month” they were removed at Stewart’s request.
During trial it was stipulated that Vance was not liable unless it be for the cash deposit of $250, and this was tendered and paid into the Court registry.
Abstract of title was delivered to W. L. Kincannon, an attorney at Booneville, who addressed a letter to Nesto Eegindtto, (referred to in one of the briefs as Eeginato) stating that the title was good if certain conditions were met — among them being procurement of' quitclaim deeds from four persons whose interests as joint heirs had been acquired by E. H. Avance. Arguing the proposition that in spite of these objections by counsel in examining the abstract, title was good in Gray because he had been in adverse possession a sufficient length of time for title to ripen, appellee contends that the partition suit pointed to by Kincannon as faulty occurred thirty-five years ago. One quitclaim deed was procured, but others were not.
It is quite clear that by mutual conduct time for closing the deal was extended beyond July 14th; and there is testimony to this effect. Gray and his wife, who executed a deed and tendered it to Polk, returned from a trip to California August 15, 1944. Gray immediately undertook to procure the required quitclaim deeds, but was unable to do so. Later Afton Mitchell offered $2,500 for the land. In the meantime Gray says he met Polk and told him he had done all he could, and that the “deal was off”. Mitchell paid $2,000 in cash and withheld $500 until the argument with Polk could be disposed of. He claims to be an innocent purchaser.
After Mitchell completed his purchase, Polk offered to waive the conditions Kincannon had mentioned in the title letter. This was emphasized during trial, when Polk said that if Mitchell were willing to risk his money on the title, he was likewise willing.
The trouble is that Polk persistently contended the title was. not merchantable; that under his contract he had a right to insist upon all of the conditions mentioned by Kincannon, and he refused to accept the deed until informed that the property had been disposed of.
The evidence as abstracted does not conclusively nor by resulting implication show that the title was bad. Mitchell took one view of it, Polk another until the land was sold; then he expressed a willingness to pay the balance of $2,250. In these circumstances we think the Chancellor was warranted in finding that Polk did not act in good faith. It was not stated in the contract of sale that title should be good, prima facie. The obligation was that a warranty deed would be executed, assuring a fee simple title free from encumbrances except those enumerated. If, as appellee says in his brief (and we assume there is unabstracted testimony supporting the statement, since it is not contradicted by appellant,) Gray had been in adverse possession for thirty-five years since the partition suit in respect to which quitclaim deeds were suggested by Kincannon, it can hardly be said that want of such deeds deprived the title of its merchantable character.
The decree finds that Gray is entitled to the cash payment of $250, but directs that the fund be held until this Court has disposed of the appeal. The contract and testimony as to subsequent transactions are not harmonious. The contract mentions a consideration of $2,500 as purchase price of the land, “ . . . and [to] pay the same as follows: Amount paid on execution of this contract, $250; additional cash on delivery of deed, $2,250”. Farther there is this paragraph: “[If] either party fails ... to perform his part of this agreement, he shall forthwith . . . forfeit as liquidated damages ... a sum equal to ten percent of the agreed price of sale”.
While liquidated damages áre stipulated, the payment of $250 is a part of the purchase price. Later, and in the oral testimony or depositions, the deposit is spoken of as a trust fund. Vance testified: “The down pay ment was what we call trust money. I tendered that back to Mr. Polk and he would not accept it. The money is in the bank and I will give him a check for it today. . . . Mr. Gray did not receive [the $250]”.
It is our view that, in the circumstances attending the case, the item of $250 was, in fact, a guaranty fund against capricious conduct upon the part of the proposing purchaser, and the specific deposit was not absolutely and in.all events to be treated as liquidated damages. While Polk may have refused to accept a merchantable title and to pay the balance of $2,250, he at least was acting on the advice of an attorney who did not feel that unqualified approval could be given. It seems certain that additional time was granted by common consent.' Gray’s act in procuring one of the four quitclaim deeds no doubt influenced Polk in believing the others were necessary; nor was there an unwillingness to refund the initial payment.
The decree will be reversed in so far as it requires payment to Gray of $250; with directions that this sum be refunded to Polk. That part of the decree denying specific performance is affirmed. Costs in each court are to be borne equally by Polk and Gray. | [
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Minor W. Mill wee, Justice.
Appellee, L. B. Foresee, purchased a farm in Boone county, Arkansas, from W. T. Whitley in October, 1935. The farm was described as a 40 acre tract and was inclosed by a wire fence which had been erected at least 20 years prior to the purchase by appellee. Appellee went into immediate possession following his purchase and has continued to cultivate the lands up to the fence each year since.
In the spring of 1945, appellant, Lewis Baughman, informed appellee that he had purchased lands adjacent to appellee’s farm and was claiming title to a part of the lands inclosed in appellee’s fence. Appellee employed Doss Young to harvest his hay crop in 1945, but appellant advised Young to refrain from cutting hay on that part of the inclosure which appellant claimed until a survey was made and the property lines settled.
On August 6, 1945, appellee filed this suit in the Boone Chancery Court alleging his ownership of the inclosed lands and that appellant was threatening to remove his fences and reestablish the lines upon appellee’s land; and that appellee and those under whom he claimed title had been in adverse possession of the lands for more than 20 years. The prayer of the complaint was that appellant be restrained from removing appellee’s fences or interfering in any manner with appellee’s quiet and peaceable enjoyment of the property, and for all equitable relief.
Appellant filed an answer and cross-complaint denying that appellee had adverse possession of the lands and alleging that appellee had a part of appellant’s land inclosed within his fences well knowing that the land belonged to appellant; and that appellant and those under whom he claimed had paid taxes on the land for more than seven years. The prayer of the answer was that the court establish the true lines between the parties and that the complaint be dismissed.
After a hearing held on September 14, 1945, the case was taken under advisement by the trial court until March 4, 1946, when a decree was entered which found that appellee had acquired title to the lands within his fence by adverse possession. Appellant was permanently enjoined from interfering with appellee’s possession of the inclosed lands and title thereto was quieted in appellee.
The evidence discloses that the wire fence which inclosed the farm purchased by appellee in 1935 also inclosed some land lying in adjoining 40 acre tracts. Although no survey was made and none of the witnesses knew the exact location of the land lines, it was variously estimated that from 10 to 25 acres of adjoining forties were inclosed within appellee’s fence. This fence was constructed at least 10 years prior to 1935 and replaced a rail fence which stood on substantially the same lines for 20 years prior to the erection of the wire fence. It is undisputed that appellee and former owners of the 40 acre tract which he purchased had cultivated the lands up to the fence lines. All the witnesses knew that appellee was cultivating all the land within his fence, but some of them did not know that he was claiming title to that part of the inclosure, which encroached upon the adjacent lands.
Appellant, in February, 1945, made a contract with a nonresident owner to purchase lands adjoining appellee ’s farm. He had not received a deed at the time of the trial, but exhibited tax receipts issued to the nonresident owner in payment of the taxes for the years 1936 to 1944, inclusive, on two adjoining 40 acre tracts. Although he knew that appellee had part of these lands inclosed within his fence, he made no inquiry as to the nature of appellee ’s claim to the lands until after he contracted to purchase the lands from the nonresident owner. Appellant testified that he talked with appellee about having the lands surveyed after he contracted to purchase the adjoining lands and that appellee offered to buy any lands within his fence that belonged to appellant. It is corn-tended by appellant that this' offer to purchase amounted to a recognition of appellant’s title to the lands in dispute and precludes appellee from claiming title thereto by adverse possession.
It is true that the offer to purchase, which was neither admitted nor denied by appellee, was to some extent á recognition of appellant’s claim of title to the disputed lands, but at the time it was made appellee had already been in possession of the lands for 10 years. Our cases make a distinction between a recognition of title in another by an adverse claimant made during the statutory period of seven years and one that is made after the statutory period has run. An offer to purchase made after the seven year period has elapsed may he considered by the court or jury in determining the character of the possession of a claimant during the statutory period, but such offer will not have the effect of divesting a title that has already become vested in the adverse claimant. Evidence of an offer to purchase by-an adverse claimant made after the statutory period elapsed was involved in Shirey v. Whitlow, 80 Ark. 444, 97 S. W. 444. Justice Riddick, speaking for the court, there .said: “While it was proper for the jury to consider this evidence in determining the nature of the defendant’s possession, whether adverse or not, the fact that he had to some extent recognized the title of the defendant after the statutory period had elapsed is not conclusive against him, for, not being a lawyer, he might have done so in ignorance of the fact that adverse possession for over seven years gave him title, or he might have made the offer to purchase, not in recognition of plaintiff’s title; but in order to buy his peace and avoid litigation.” This rule has been approved in many of our later cases. Some of these were cited with approval in Hart v. Sternberg, 205 Ark. 929, 171 S. W. 2d 475.
While it was proper for the chancellor to consider the offer to purchase in connection with the other evidence in determining whether appellee actually held the lands adversely, the offer did not necessarily amount to such recognition of title in appellant as to revest the title already acquired by adverse possession.
Appellant also insists that the evidence is insufficient to show that appellee had notorious possession of the lands in controversy and the case of Terral v. Brooks, 194 Ark. 311, 108 S. W. 2d 489, is cited in support of this contention. There, this court approved general statements of the rule laid down in 2 C. J. S., Adverse Possession, § 45, as follows: “Notorious possession contemplates possession that is so conspicuous that it is generally known and talked of by the public or the people in the neighborhood . . . The true owner must have knowledge or notice that the possession is hostile; and this may and must consist either of actual knowledge or of constructive notice arising from the openness and notoriety of the possession. . . . Possession which is so open, visible, and notorious as to give the owner constructive notice of an adverse claim need not be manifested in any particular manner; but there must be such physical evidence thereof as reasonably to indicate to the owner, if he visits the premises and is a man of ordinary prudence, that a claim of ownership adverse to his is being asserted.”
The case of Culver v. Gillian, 160 Ark. 397, 254 S. W. 681, involved the claim of title by adverse possession where the claimant was without color of title. The court there said: “While, in such cases, to constitute an adverse possession, there need not be a fence or building, yet there must be such visible and notorious acts of ownership exercised over the premises continuously, for the time limited by the statute,- that the owner of the paper title would have knowledge of the fact, or that his knowledge may be presumed as a fact. In other words, it has been well said that if the claimant ‘raises his flag and keeps it up,’ continuously for the statutory period of time, knowledge of his hostile claim of title may be inferred as a matter of fact. ’ ’ ¡
We think the trial court was warranted in holding that the possession of appellee was open, notorious and adverse under the rules just announced. For 10 years he continuously occupied and cultivated the land as if it were Ms own. Some of the witnesses who were acquainted with the lands testified they did not know that appellee was claiming title to the lands in controversy. It is not shown that' these witnesses were closely associated with appellee or that they were in position to ascertain the nature of his claim with respect to the property. None of them testified to any act or admission by appellee that would evince a purpose on his part to hold only permissively during the 10 year period that he exercised complete dominion over the property. The conclusion of the trial court on this issue is supported by a preponderance of the evidence.
The decree is affirmed. | [
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Holt, J.
July 20, 1946, appellees brought this action against appellant to recover alleged compensatory and punitive damages for cutting down a number of cedar trees on their land.
They alleged in their complaint that appellant went on land which they owned and cut down and destroyed twenty cedar trees without permission or authority and that appellant knew that the .land and trees were the property of appellees. They further alleged “that prior to the cutting of the said cedar trees the property was exceptionally suitable and desirable for building sites, but the cutting and destruction of said trees reduced and diminished the value of the property, and that because of the willful and unlawful acts of the defendant in going upon the property of thevplaintiffs and cutting and destroying the growing trees thereon, the plaintiffs have been damaged in the sum of $1,000,” and prayed for compensatory damages accordingly. They further alleged that appellant, in cutting the trees, did so willfully and maliciously and prayed for punitive damages' in the amount of $1,000.
Appellant answered with a general denial. A jury awarded appellees $200 for compensatory damages, but denied their prayer for punitive damages.
This appeal followed.
■ At the outset, we are met with appellees’ contention that the bill of exceptions was not filed in time, and should not be considered here as a part of the record. While a decision of this question is not required in view of our conclusions, since it appears to be of first impression, and due to its importance we proceed to dispose of this issue. The answer must depend upon our construction of Act 10 of 1943, amending § 1543 of Pope’s Digest.
Section 2832, Pope’s Digest, provides that the Crawford Circuit Court shall convene in regular term on the first Monday in July and again on the first Monday in November. Judgment in the present case was had March 29, 1946, on an adjourned day of the regular November, 1945, term, and appellant was allowed 120' days to prepare and file a bill of exceptions. The regular July, 1946, term convened on July 1, and on August 24, 1946, an adjourned day of the July, 1946, term, and after the 120 days originally granted by the court had expired, but before the expiration of the time for appeal to this court, the trial court granted appellant 45 days in addition to the original 120 days within which to file bill of exceptions and appellant duly filed his bill of exceptions within this extended time.
In these circumstances, appellees say: “It is the contention of the appellees that Act No. 10 of the Acts of Arkansas for 1943, which amends § 1543 of Pope’s Digest of the Statutes of Arkansas, applies only to the granting of an extension of time for filing a bill of exceptions during tbe same term of court, and has no application where the term of court at which the original time was granted has expired and a now term has been convened by which the court loses jurisdiction of its judgments rendered in the previous term of court.”
We think appellees wrong in this contention.
Section 1543 of Pope’s Digest, prior to the amendment by Act 10 of 1943, provided: “The party objecting to the decision must except at the time the decision is made, and time may be given to reduce the exception to writing, but not beyond the succeeding term, but the parties may agree that exceptions, to all decisions made during the trial are saved without being especially mentioned at the time the decision is made.” As amended, it now reads: “Section 1543:' The party objecting to the decision must except at the time the decision is made. The judge who presided at the trial, or if he shall die or become incapacitated his successor in office, may give or extend time to reduce the exceptions to writing, and this may be done by the judge in vacation as well as in court, and may be done after as well as before the expiration of any time previously given. The parties may agree that exceptions to decisions made during the trial are saved without being especially mentioned at the time the decision is made.”
“Section 2. Nothing in this Act shall be construed to repeal or amend any provision of law fixing the time for an appeal nor fixing the time within which the record on appeal must be filed in the Supreme Court.”
Until this amendment became effective, appellees’ contention found support in our decisions. (Carroll v. Sanders, 38 Ark. 216, and Fernwood Mining Company v. Pluna, 136 Ark. 107, 205 S. W. 822.)
It will be observed that before § 1543 was amended, it contained this specific provision: ‘ ‘ Time may be given to reduce the exception to writing, but not beyond the succeeding term.” As amended, the words “but not beyond the succeeding term” were eliminated and it now provides that the court “may" give or extend time to reduce the exceptions to writing ... in vacation as well as in court, and . . . after as well as before the expiration of any time previously given,” provided that the extra time given may not extend beyond the period allowed for appeal to this court. We think it obvious that the Legislature clearly intended, by this amendment, to give the court the power to grant or extend the time to file a bill of exceptions, in vacation as well as in term; and after as well as before the expiration of time previously given, provided the extension does not extend beyond the time for appeal, unhampered by an intervening regular term of court, so that it now has the power to grant the extension regardless of the intervening regular term, and we so hold.
Coming now to the merits of the case, it appears that appellees (plaintiffs below) based their right to recover primarily on the reduced value of their real property resulting from the severance of the trees and not for the value of the trees in their detached form, and tried the case on this theory.
The evidence was to the following effect: Appellant testified: “Q. This old wire that you spoke of, is that where the fence was when yóu went out there? A. That is right, because they shaded my trees in the evening. . . . Q. You didn’t say anything at that time (when the road was put in) about having a strip on the west side of that road? A. I didn’t know it. Q. In this 45 years that they had the property you didn’t claim a bit of it? A. That’s right. Q. You considered (the fence) as your west line as it runs along the apple orchard? A. We used it -as that. . . . Q. Claude, at the time that you cut these trees, .you hadn’t at that time claimed any right to the land (west of the fence) ? A. No, sir. Q. You had never claimed that you owned that property at the time you cut them? A. No, sir. . . . Q. You just walked over there and cut them? A. Yes, sir. . . . During the eight years that you lived there, you did consider that (fence) the line? A. We did use that for the line. Q. And you accepted it as such? A. We never had any objections to each other. Q. You did consider it the line? A. Yes, sir.”
There was other testimony that the land belonged to appellees and they had claimed it adversely and it was under fence for a period far beyond seven years. It was about three miles from Van Burén, one quarter of a mile from highway 59, and on the main route through Dora, the Pump Station, Greenwood Junction and Moffit, Okla. Approximately twenty-two cedar trees, some of them sixteen to eighteen inches in diameter, were cut by appellant on the east sid,e of forty acres owned by appellees. Appellant had built his own home about 150 yards east of the trees here in question. From pictures and other evidence the land on which these cedars stood was on an elevation and desirable as building sites. There was testimony that the land had been damaged from $500 to $700 by the severance of the trees by appellant and that the difference in value of the land before the trees were cut down and immediately thereafter, was from $500 to $700.
Appellant has assigned twenty-one alleged errors in his motion for a new trial, and those which he argues here are presented in separate groups. We consider them as presented. ■ '
(1-2-3-4 and 21)
Under these assignments, appellant questions the sufficiency of the evidence. When the above and all the testimony is considered in the light most favorable to the jury’s verdict, and to appellees, as we are required to do, we think it substantial, and ample, to warrant the jury in finding, as they must have, that appellant, without permission or right, went upon land belonging to appellees, and cut down trees belonging to appellees to their damage in the amount awarded.
On the measure of damages in a case of this kind, the rule announced in Laser v. Jones, 116 Ark. 206, applies. In that case action for damages was brought under § 7976 of Kirby’s Digest, now § 1299 of Pope’s Digest, and it was there said: “What is the measure of damages
against one who willfully destroys shade trees growing and being on the lands of another?
“In the case of Fogel v. Butler, 96 Ark. 87, 131 S. W. 211, it was said that the word value, as here employed, meant market value. The term ‘market value’ is one which has been defined, in its various applications, in many decisions. A number of these definitions are given in Words and Phrases, under that title, and among others so given are the following:
“ ‘In estimating the market value of property, all capabilities of the property and all uses to which it may be applied are to be considered. Seaboard Air Line Ry. v. Chamblin, 108 Va. 42, 60 S. E. 727.’
“ ‘The “market value of property” is its value for any use to which it may be adapted, and in estimating its value all the uses of which the property is susceptible-should be considered, and not merely the condition in which it may be at the time and the use to which it may have been put by the owner. In re Westlake Ave., 40 Wash. 144, 82 Pac. 279, (quoting and adopting the definition in Seattle & M. R. Co. v. Murphine, 30 Pac. 720, 4 Wash. 448).'
“The statute refers to ‘any tree placed or growing for use or shade,’ and this language indicates the intention of the Legislature to permit the jury to consider the use to which any tree was adapted in assessing the damages for its destruction. It is a matter of common knowledge that there are many trees which have but little value, except for shade; yet such trees would add greatly to the value of any property where shade was desired.
“(2) It is, therefore, proper to consider the use which may be, and is, made of the tree, and if the tree adds to the value of the land, while its destruction detracts from its value, then this difference in value is the measure of the recovery, even'against one who, without malice, destroys it.”
So here, it was proper to consider, the use which may be made of these cedar trees, such , as their value for shade, ornamental purposes, and for building sites, and if these trees added to the value of the land in any way, and if their destruction detracted from that value, then as said in Laser v. Jones, supra, “this difference in value is the measure of the recovery, even against one who, without malice, destroys it. ’ ’
(8-9-13)
Appellant also argues that any testimony tending to show that the value of the' property was reduced for building sites by severance of the trees was incompetent. We cannot agree. What we have said above answers this contention.
(4-10-19)
Appellant next contends “that there was nothing in the record whatever to warrant the submission to jury of the question of punitive damages, and that in so doing the learned trial court gravely prejudiced this appellant and committed reversible error.” We think this contention untenable for the reason that, as has been indicated, there was evidence from which the jury might have found that there was an element of willfulness in appellant’s action in severing the trees and this warranted instructions on this issue. “To justify an award for punitive damages there must be malice, express or implied, or some element of willfulness or wantonness.” Missouri Pacific Railroad Company v. Yancey, 178 Ark. 147, 10 S. W. 2d 22. The instructions which the court gave on this point correctly declared the law, and certainly since the jury returned a verdict in appellant’s favor on this issue, he could not have been prejudiced.
Appellant next complains about an instruction given by the court on its own motion which appellant says contradicts itself. It appears from the record that other instructions properly declaring the law had already been given and this instruction was in effect repetition. In any event, it appears from the record that appellant made no general or specific objection to this instruction and we are unable to find an assignment of this alleged error in appellant’s motion for a new trial. Appellant is therefore not in position to complain.
(6-7-11)
Finally appellant says: “Were the trees on appellees’ land!” This was a disputed question of fact for the jury to determine under proper instructions, which the court gave.
On the whole case we find no error, and accordingly the judgment is affirmed. | [
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Ed. F. MoFaddin, Justice.
This appeal grows out of an unsuccessful effort to have equity set aside a contract and conveyance, on the claim that the plaintiff was suffering from senility, and was overreached and defrauded by the defendant.
Chester Petree died intestate, a resident of Alma, Crawford county, Arkansas, on May 28,1942, survived by (1) his wife, Mrs. Hays Petree (defendant below and appellee here); (2) his mother, Mrs. Anna Petree (the original plaintiff); and (3) a brother, Felix Petree. Chester Petree owned real estate and personal property appraised in excess of $70,000. On June 22, 1942, Mrs. Anna Petree conveyed to Mrs. Hays Petree all of Mrs. Anna Petree’s interest in'the estate of Chester Petree, in consideration of Mrs. Hays Petree’s agreement to support Mrs. Anna Petree as long as she should live. This contract will be discussed later.
Some time in October, 1945, Felix Petree (son of Mrs. Anna, Petree) learned of the contract made by his mother to Mrs. Plays Petree. He then persuaded his mother to file this suit against Mrs. Hays Petree on November‘13,1945. The complaint alleged: that plaintiff’s interest in Chester Petree’s estate- exceeded $50,000; that on June 22,1942, the plaintiff was 87 years of age, infirm and suffering from senility, and incapable of transacting any business; that Mrs. Hays Petree occupied a fiduciary relationship towards the plaintiff; that Mrs. Hays Petree was guilty of fraud practiced on Mrs. Anna Petree in obtaining the execution of the conveyance and the contract; that the consideration in the contract was grossly inadequate; and that the conveyance from Mrs. Anna Petree to Mrs. Hays Petree should be set aside. The prayer of the complaint was for relief in keeping with the allegations. The answer denied all -material allegations of the complaint, affirmatively pleaded fair dealings- be tween the parties, alleged that the conveyance and the contract were executed to carry out the wishes of Chester Petree, and pleaded laches and limitations.
With issues thus joined, the cause proceeded to trial on May 23, 1946. All the witnesses appeared in person before the chancellor except the plaintiff, Mrs. Anna Petree, who — because of age and infirmity — testified by deposition taken at her home in Clarksville on December 10, 1945. After the evidence was completed, the chancery court allowed both sides to file written briefs, and— in deciding the case — the chancellor rendered a written opinion, which is in the transcript, and which has proven helpful to this court. The chancery court denied the plaintiff’s complaint for want of equity, and this appeal challenges the correctness of that decree. While the appeal was pending in this court, Mrs. Anna Petree departed this life intestate; and, by consent, the cause has been revived in the name of Felix Petree, sole heir, and J. J. Montgomery, special administrator, as the appellants. The appellee is Mrs. Hays Petree. For convenient identification, we will refer to the parties by real name, rather than by legal designation.
The rules of law applicable to a case such as this one are well settled by numerous decisions of this court:
(a) In Hawkins v. Randolph, 149 Ark. 124, 231 S. W. 556, Mr. Justice Hart quoted from Kelly’s heirs v. McGuire, 15 Ark. 555: “ ‘If a contract is freely and unclerstandingly executed, by a party, with a full knowledge of his rights, and of the consequences of the act, it must stand. This court disclaims all jurisdiction to interfere on account of the improvidence or folly of an act done by a person of sound though impaired mind. ’ ’ ’
(b) Tn Pledger v. Birkhead, 156 Ark. 443, 246 S. W. 510, Mr. Justice Wood said: “If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what considera tion, then he possesses sufficient mental capacity to execute such instrument. Sufficient mental ability to exercise a reasonable judgment concerning these matters in protecting his own interest in dealing with another is all the law requires. If a person has such mental capacity, then, in the absence of fraud, duress, or undue influence, mental weakness, whether produced by old age or through physical infirmities, will not invalidate an instrument executed by him. McCulloch v. Campbell, 49 Ark. 367, 55 S. W. 590; Seawell v. Dirst, 70 Ark. 166, 66 S. W. 1058; Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; McEvoy v. Tucker, 115 Ark. 430, 171 S. W. 888.”
(c) In Cain v. Mitchell, 179 Ark. 556, 17 S. W. 2d 282, Chief Justice Hart said: “Mental weakness, although not to the extent of incapacity to execute a deed, may ‘render a person more susceptible of fraud, duress, or undue influence, and, when coupled with any of them, or even with unfairness, such as great inadequacy of consideration, may make a contract voidable, when neither such weakness nor any of these other things alone would do so.’ Pledger v. Birkhead, 156 Ark. 443, 246 S. W. 510, and cases cited; and West v. Whittle, 84 Ark. 490, 106 S. W. 955. See, also, Phillips v. Phillips, 173 Ark. 1, 291 S. W. 802; Campbell v. Lux, 146 Ark. 397, 225 S. W. 653.”
(d) In Young v. Barde, 194 Ark. 416, 108 S. W. 2d 495, Mr. Justice Butler quoted Mr. Justice Eakin’s words in the case of Gillespie v. Holland, 40 Ark. 28, 48 Am. Rep. 1, as follows: “ ‘ . . . it has beén the well-established doctrine in equity that contracts, and most especially gifts, will be scrutinized with the most jealous care, when made between parties who occupy such a confidential relation as to make it the duty of the person benefited by the contract or bounty to guard and protect the interest of the other and to give such' advice as would promote those interests. And this is not confined to cases where there is a legal control, . . . They are supposed to arise wherever there is a relation of dependence or confidence; especially that most unquestioning of all confidences which springs from affection on one side, and a trust in a reciprocal affection on the other. The cases for the application of the doctrine cannot be scheduled. They pervade all social and domestic life. . . . ’ ”
As heretofore stated, the rules of law as announced in the above cases are well settled, as all parties to this appeal agree. The difficulty arises when we measure the evidence in this case by these rules in order to determine on which side of the line this case falls — that is, whether Mrs. Anna Petree was (a) mentally infirm and, in fact, overreached, or (b) entirely mentally competent and free from undue influence or any other species of fraud. Appellants claim the former — i. e., mental incapacity — . and that the facts in the case at bar are similar to the facts in the cases of: Cain v. Mitchell, 179 Ark. 556, 17 S. W. 2d 282; Morton v. Davis, 105 Ark. 44, 150 S. W. 117; Hawkins v. Randolph, 149 Ark. 124, 231 S. W. 556; Barnett v. Morris, 207 Ark. 761, 182 S. W. 2d 765; Barner v. Handy, 207 Ark. 833, 183 S. W. 2d 49; Campbell v. Lux, 146 Ark. 397, 225 S. W. 653; Luther v. Bonner, 203 Ark. 848, 159 S. W. 2d 454; and Young v. Barde, 194 Ark. 416, 108 S. W. 2d 495. Appellee claims the latter — i. e., full mental competency — and cites these eases: Pledger v. Birkhead, 156 Ark. 443, 246 S. W. 510; Pernot v. King, 194 Ark. 896, 110 S. W. 2d 539; Smith v. Smith, 209 Ark. 546, 191 S. W. 2d 956; Atwood v. Ballard, 172 Ark. 176, 287 S. W. 1001; Rogers v. Cunningham, 119 Ark. 466, 178 S. W. 413; Cullins v. Webb, 208 Ark. 631, 187 S. W. 2d 173; McKindley v. Humphrey, 204 Ark. 333, 161 S. W. 2d 962; Johnson v. Foster, 201 Ark. 518, 146 S. W. 2d 681; Hawkins v. Gray, 128 Ark. 143, 193 S. W. 509.
We reach the conclusion that Mrs. Anna Petree, though of ripe years, was, nevertheless, in full possession of all her faculties and entirely capable of transacting any and all matters of business when she executed the contract and conveyance on June 22, 1942, and that no fraud or overreaching was practiced on her. This conclusion.necessitates that the decree of the chancery court should be affirmed; and, now, we discuss the evidence im ■ pelling such conclusion:
Chester Petree’s home was in Alma. He died May 28,1942. In June, 1942, Mrs. Hays Petree went to Clarksville to visit Mrs. Anna Petree; and at the conclusion of the visit Mrs. Anna Petree accompanied Mrs. Hays Petree to the latter’s home in Alma, and remained there for about a week. It was during this week in Alma that they entered into the contract previously mentioned; and they were influenced largely by a letter signed by Chester Petree in August, 1941. We mention that letter:
In August, 1941, Chester Petree and his wife were contemplating an extended automobile trip; and before leaving Alma they signed a letter to Mr. and Mrs. Crenshaw, brother and sister-in-law of Mrs. Hays Petree. This letter was in the handwriting of Mrs. Hays Petree, and was signed by her and her husband. It was testamentary in character, but failed as a will, insofar as Chester Petree was concerned, because (1) it was not witnessed as required by § 14512, Pope’s Digest; and (2) because the signature is the only part of the letter in the handwriting of Chester Petree, and thus the letter was not his holographic will under § 14512, Pope’s Digest. The letter contained extensive references to the property accumulated by Mr. and Mrs. Chester Petree. It said in part:
“Alma, Arkansas, August 3,1941
“To Mamie and Mr. Crenshaw:
“If it should happen that neither of us return from our trip or at any time we should both die, it is our desire that you please see that these instructions are carried out as to the distribution of our property. Of course, if one of us is left everything is to go to that one.
‘ ‘ Chester wants his mother to live in our home furnished as it is, as long as she lives if she would like to. If she would rather live at Clarksville, then the house is to go to the Methodist Church, here, for a parsonage. If she wishes to live in it — at her death it is to be given to the church to be used as a parsonage. Our interest in the canning factory amounts to fifty thousand dollars. Be sides this we have eleven thousand dollars in money in bank, due from factory on note, which is being used by the factory, and drawing interest. We have the stock in Mulberry store and seventeen or eighteen hundred dollars in bahk there to credit of store. The Alma Cash Store stock and' building belong to us and some money in bank to credit of that store. The home, and there is five thousand dollars life insurance made to me (Hays). We would like for Mrs. Petree (Chester’s mother) to have twenty thousand dollars in money. First, to use as she needs it and at her death, after all expenses are paid, if there is anything left it is to go to a fund for the church to keep the house (parsonage) in repair.”
The entire estate of Mr. and Mrs. Chester Petree had been accumulated through their joint efforts. When they were married in 1913, he was the railroad agent at Alma (receiving a monthly salary of $75), and she was a music teacher. Without worldly goods they started life together. Through their joint industry and effort they accumulated this estate; and during all the intervening years they had provided for Mrs. Anna Petree. This letter to Mr. and Mrs. Crenshaw stated that if either of them (Chester or Hays Petree) should survive, the entire estate would go to such survivor; and, then, based on the assumption that Chester and Hays Petree should perish in a common disaster, they made provision for Mrs. Arma Petree.
So much for the contents of the letter. In June, 1942, when Mrs. Anna Petree was visiting Mrs. Hays Petree at Alma, Mrs. Hays Petree gave this letter to Mrs. Anna Petree to read. It was a full disclosure of the extent and value of the Chester Petree estate. It cannot successfully be said that Mrs. Hays Petree concealed the extent of the estate. Based on this letter, Mrs. Hays Petree and Mrs. Anna Petree entered into the written contract here attacked, by the terms of which Mrs. Anna Petree conveyed to Mrs. Hays Petree all of the former’s interest in the estate of Chester Petree; and, in return, Mrs. Hays Po- tree agreed to support Mrs. Anna Petree just as Chester and Hays Petree had done for the preceding 29 years. The contract provided, in part:
“The party of the second part, Hays Petree, upon her part agrees and binds herself to continue to provide for the support and maintenance of the party of the first part, Anna Elizabeth Petree, throughout the- remainder of her natural life in a style and manner fully equal to that in which she has been provided for by her husband and herself during the past few years, and further agrees to and does hereby bind her estate, heirs, executors and administrators to continue such maintenance, support and provision in like manner throughout the life of the said party of the first part, Anna Elizabeth Petree, in the event the said party of the second part should precede her in death, and her heirs, executors, administrators and assigns are specifically directed and instructed to see-that the provisions of this contract in that respect are fully carried out and that such maintenance and provision for care of the party of the first part be made a prior claim upon her estate and any and all property and moneys with which she may die seized and possessed.
“It is further agreed and understood that payments to the party of the first part, Anna Elizabeth Petree, by party of the second part, Hays Petree, of sums for support and maintenance shall be made in the same manner in which they have customarily been made during the past few years preceding the death of the said Chester Petree, and that in the event of any dispute as to the amount required for such maintenance and support of the said party of the first part, then the highest amount contributed during any one year of the last five years shall be deemed controlling and the amount to be paid and contributed during any given year.
“As a further consideration for this contract, it is also agreed that in the event she may at any time desire during her life, the party of the first part, Anna Eliza beth Petree, may live in and make her home in the home of the party of the second part, Hays Petree, but that in the event she desires to make her home at Clarksville or elsewhere, then contributions to her maintenance and support will be made as herein set out.”
For years, Mrs. Anna Petree had been furnished with a checkbook and had drawn a check of $5' per week regularly, and checks for other amounts as she desired. These other checks had been few in number, and small in amount, but she had the right to draw them as she desired. This checkbook arrangement continued, after the execution of this contract, without any change or interruption; and each week from June, 1942, until November, 1945, Mrs. Anna Petree wrote and cashed a check, signing the same, “Mrs. W. C. Petree account, by Mrs. A. E. Petree. ’ ’ These cheeks were not written by someone else and signed by Mrs. Anna Petree; the entire check was filled in by her, date, payee, amount and full signature as above.
The contract of June 22, 1942, ‘ was signed and acknowledged by Mrs. Anna Petree. Did she freely and understandingly execute the contract with full knowledge of her rights and of the consequences of her acts, and without compulsion or undue influence of any kind being-exerted on her? We answer this question in the affirmative. In addition to the testimony of Mrs. Hays Petree, the record discloses the following-
(1) The notary public who took the acknowledgment to the instrument testified that he had known Mrs. Arma. Petree for some time, that he talked with her about other matters as well as the acknowledgment, and that she talked in the usual normal manner, and said she had read the contract and thoroughly understood it.
(2) Three days after the execution of the contract, Mrs. Anna Petree went to Fort Smith to consult an optometrist, Dr. William H. Hunt, about her eyes. He testified that she was extremely alert mentally. He said:
“Q. You talked to her at that time'? A. Yes, sir. Q. Do you have any idea how long she was in your office, and how long you talked to her f A. I remember we visited quite a little while. I have an idea, 30 or 40 minutes, or longer; 15 or 20 minutes testing; and I remember we discussed current events and floods on the Arkansas River. Q. What did you observe about her physical appearance and her mental attitude in talking with her'? A. I made a notation on my record, ‘Physical condition good for her age, ’ and she was very alert mentally — ‘very alert mentally. ’ In fact, we discussed current events and the floods on the Arkansas River, and I found out she knew lots more about it than I did, and I had been reading the newspapers and listening to the radio every day. ’ ’
(3) One week after the execution of the contract, Mrs. Anna Petree returned to her home in Clarksville. Mrs. Hattie Petree (divorced wife of Felix Petree) lived with Mrs. Anna Petree; and, immediately upon the latter’s return from Alma, Mrs. Hattie Petree interrogated Mrs. Anna Petree as to the estate of 'Chester Petree. Here is Mrs. Hattie Petree’s testimony:
“I said, ‘Well, what did you get1?’ And she (Mrs. Anna Petree) said: ‘I get a living.’ That is the way she said it — said ‘I get a living out of it.’ That is all she told me. ’ ’
(4) Other disinterested witnesses testified that they observed Mrs. Anna Petree on June 22,1942, and that she was entirely competent to transact business.
As against all this, the appellants offered evidence which we now mention:
(a) The deposition of Mrs. Anna Petree taken in December, 1945, in which she said she did not read the papers before she signed them, and did not know what the papers contained. But we point out that, even in that deposition Mrs. Anna Petree disavowed any desire to sue Mrs. Hays Petree in this case. Mrs. Anna Petree further said:
“Q. At the time you wrote these letters, or at any time, you didn ’t know that this complaint had been filed up in the court against herí A. No, sir. Q. In which you claimed that at the time Chester died and when this statement was signed, that you were feeble and weak and infirm, and incapable of transacting business and that she falsely told you that Chester didn’t leave anything much, and things like that! A. Why, no. I never heard of anything like that. Q. And you never told anybody anything of that kind, either, did you! A. No, sir. Q. At anytime! A. No, sir.”
(b) The testimony of Dr. Hunt was offered by the appellants in an effort to show that Mrs. Anna Petree was not capable of transacting business on June 22, 1942. But we point out that Dr. Hunt first examined Mrs. Anna Petree in September .or October of 1942, and stated that he then found her suffering from senility and deterioration of mental faculties caused by arteriosclerosis. Dr. Hunt said that this condition had not come on suddenly; but he never gave it as his opinion, that she did not have sufficient mental capacity on June 22, 1942, to enter into the contract here involved. He did say (to copy from appellant’s abstract) :
“People will become feeble and sometimes their mental faculties become weaker, but some people of advanced age hold high places and conduct business. ’ ’
(c) There was offered testimony of Felix Petree and his divorced wife, Mrs. Hattie Petree, that Mrs. Anna Petree was not able to transact business in June, 1942.
The above is substantially the evidence; and of this evidence the learned chancellor said: “After studying carefully the testimony of the plaintiff as given by deposition and that of all other witnesses, who appeared in open court, the court is of the opinion that plaintiff, at the time she executed the contract and deed in question, was fully capable of understanding what she was doing, was able to_ perceive and know the extent and purpose of the entire transaction, and that it all met with her hearty approval. There is no substantial testimony of any character that any fraud whatever was practiced upon the plaintiff. ”
We cannot say that this finding of the chancellor is against the preponderance of the evidence; in'fact, we think the evidence shows that the chancellor reached the correct decision; and we conclude that Mrs. Anna Petree, in executing the contract and conveyance, and in her dealings with Mrs. Hays Petree, was carrying out the wishes of Chester Petree as evidenced by the letter previously referred to. While the letter did not have sufficient legal formality to constitute a will, still Chester Petree’s mother respected it as his wishes; and the contract and conveyance were of her own free will, and were executed at a time when Mrs. Anna Petree was in full possession of her mental faculties, and she was acting without any undue influence exerted on her by her daughter-in-law, or anyone else. ■ Mrs. Hays Petree performed her part of the contract. From June, 1942, until after this suit was filed (and it was filed .through the instigation of Felix Petree), Mrs. Anna Petree drew her -checks regularly as heretofore noted, and by her letters and otherwise she expressed love and affection for Mrs. Hays Petree, and never did desire to have the contract rescinded.
Affirmed.
■Smith, J., dissents. | [
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Holt, J.
April 25, 1946, appellant, Lawrence Witherspoon, brought this suit, and in his complaint alleged: “The defendant is a mutual insurance company authorized to do business in Arkansas. On the 21st day of July, 1944, it issued to the plaintiff its policy No. LA38849. A copy of said policy is attached, made a part hereof, and marked Exhibit ‘A.’ The half ton truck described in the policy was being operated by an agent of the plaintiff on or about December 25, 1945, when such agent was blinded by the headlights of another car, went off the road, and turned over in a ditch. The accident occurred on Hays Street north of Boosevelt Boulevard. The truck was placed back on the highway and the agent, of the plaintiff continued to operate it. Due to the fact that the oil had been drained out when the truck overturned, the motor was burned out, and by reason thereof the plaintiff sustained damages in the amount of $250.31.
‘ ‘ On the face of the policy there is a column entitled ‘Coverage.’ Beneath that in parentheses appear the words ‘as hereinafter defined.’ Immediately following such words is the following definition of ‘Coverage’: ‘Comprehensive: Loss of or damage to the automobile, except by collision, but including fire, theft and windstorm. Limits of liability, $500.’ In another portion of the policy there is fine print which undertakes to restrict the coverage as hereinabove described, but said fine print is in conflict with the provisions hereinabove quoted.”
The pertinent provisions of the insurance policy were: ‘ ‘ Item 3. In consideration of the payment of the premium and in reliance upon the statements in the declarations and subject to the limits of liability, exclusions, conditions and other terms of this policy, the company agrees to pay for direct and accidental loss of or damage to the automobile, hereinafter called loss, sustained during the policy period, with respect- to such and so many of the following coverages as are indicated by specific premium charge or charges:
Limits of Liability
(Insert Amt. or
Coverages ‘Actual Cash Net
(as hereinafter defined) Value’) Rate Premium
A Comprehensive — Loss of or Damage to the Automobile, Except by Collision but including Eire, Theft and Windstorm $500.00 $4.80 $24.00
B-l Collision or Upset >{5 ❖ ❖ <t
B-2 Convertible Collision or Upset, Additional Payment $____________ Actual Cash Value $_______
C Fire, Lightning and Transportation $------------------------------ $-------- $--------
D-l Theft (Broad Form) $------------------------------ $-------- $--------
D-2 Theft (Deductible Form) $----------------------------- $-------- $-------
E Windstorm, Earthquake, Explosion, Hail or Water $------------------------------ $-------- $--------
F Combined Additional Coverage $------------------------------ $-------- $-------
G Towing and Labor Costs $10 for each disablement $________ $________
Total Premium $24.00 * * *
“Insuring Agreements (Subject to the limits of liability, exclusions, conditions and other terms of this policy.) Insurance Coverages Defined. Coverage A — Comprehensive — Loss of or Damage to the Automobile, Except by Collision. Any loss of or damage to the automobile except loss caused by collision * * * or by upset of the automobile, etc.”
Appellant prayed for damages in the amount of $250.31, penalty and attorney’s fee.
Appellee, insurance company, filed demurrer, in which it alleged: “Defendant demurs to the complaint of the plaintiff for the reason that said complaint does not state facts sufficient to constitute a cause of action in that the damage sustained by the plaintiff is not covered by the policy of insurance upon which the suit is based.”
The court sustained the demurrer, and upon appellant’s refusal to plead further, dismissed his complaint. This appeal followed.
Appellant contended below, and argues here, that the insurance contract covered all damages to his truck resulting from an “upset.” The trial court found against this contention, and we think correctly so. “It is also a well-settled rule in construing a contract that the intention of the parties is to be gathered, not from particular words and phrases, but from the whole context of the agreement. In fact, it may be said to be a settled rule in the construction of contracts that the interpretation must be upon the entire instrument, and not merely on disjointed or particular parts of it. The whole context is to be considered in ascertaining the intention of the parties, even though the immediate object of inquiry is the meaning of an isolated clause,” Fowler v. Unionaid Life Insurance Company, 180 Ark. 140, 20 S. W. 2d 611; and in National Life Insurance Company v. Gregg, 168 Ark. 80, 269 S. W. 62, this court held (headnote 1): “As it is the duty of the court to give effect to all of the clauses of a policy of insurance, a clause defining the insured’s liability and containing no stipulation against liability will be construed not to conflict with another clause containing a clear and unambiguous stipulation against liability for injury from specified causes.”
While it is true that an insurance contract must be strictly construed against the insurer who prepared it, where no ambiguity or uncertainty appears, no place is found for the operation of the rule. We are unable to find any ambiguity or uncertainty in the language used in the policy before us. It seems to be in standard form.
It appears certain that the insured here did not intend to pay for, nor did the company intend to accept the risk for damages which arose from an “upset” of the truck. Item 3, s%ipra, of the insurance contract definitely limited the insurance to the “Coverages as hereinafter defined,” for which appellant, the insured, paid a “specific premium charge” in the amount of $24.
His total animal premium, as shown in Item 3, was $24 for “'Coverage ‘A’ — Comprehensive—Loss of or Damage to the Automobile, Except by Collision but including Fire, Theft and Windstorm,” and Coverage “A” as “Defined”: “Any loss of or damage to the automobile except loss caused by collision * * * or upset of the automobile, etc.”
Appellant paid no premium for Coverage “B-l, Collision or Upset,” or for “B-2, Convertible Collision or Upset.” Since he paid no premium for “upset” coverage, and since such coverage is expressly excepted from the policy coverage for which he did pay, we think it clear that the parties intended, and without ambiguity, expressed their intention that damages to the truck resulting from an “upset” were excluded and not covered. ‘
Accordingly, the judgment must be, and is, affirmed. | [
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Robins, J.
Appellant, Clem Trannum, seeks by this appeal to reverse a judgment of the circuit court affirming an order of the juvenile court of Saline county by which four sons of appellant, aged nine, seven, five and one and one-third years, respectively, were declared to be “dependent children.” By the same order the custody of these children of appellant was taken from him and vested in “Miss Ruth Johnston as child welfare consultant, Welfare Department, located at 400 West Markham street, Little Rock.”
This proceeding was begun by the filing in juvenile court of petitions by Mrs. Margaret George, “child welfare worker,” in which it was alleged that these children were “neglected” children. After the juvenile court made the order depriving him of the custody of his children appellant prayed an appeal to the circuit court.
The children were thereupon taken from appellant and placed in what is designated as a “supervised foster home” in Pulaski county. The location of this home has never been disclosed to appellant, but he was told that, by taking- the matter np with the Welfare Department, lie could have tbe children brought to the office where he could visit them. When the case reached circuit court appellant moved to have the children brought into court so that the court and he, as the father of these children, might have an opportunity to observe their physical condition ; but this motion was denied; and the lower court refused to compel the officers of the Welfare Department to disclose to appellant where his children were.
To sustain the order taking these children away from their father there was offered the testimony of Mrs. Margaret B. George, Mrs. Bessie Rommel, Warren Bum-garden, Leo Herzfeld and Miss Ruth Johnston.
Mrs. George testified that she was doing child welfare work for the Arkansas Department of Public Welfare; that she had an A.B. degree, majoring in' social work. She introduced in evidence, over the" objection of appellant, the record of her office involving- the Trannum children. This record consisted of memoranda as to conversations had by welfare workers with various persons not witnesses at the hearing and also contained correspondence had with appellant’s wife, who had left him and had gone to New Jersey to live with her relatives. Mrs. George testified that she made two visits to appellant’s home, once before removal of the children and once afterwards; that the house was not filthy, but was dusty and cluttered, with no sheets on the beds; that there were beans and peas spread out for drying on the floor in one room; that appellant was not there the first trip knd the children were not receiving- proper parental care; that from the conversations with the neighbors the children never had a “stable” home; that neither the father nor the mother had been with these children all the time; that the oldest child (whose custody is not involved here), Richard, is a practically grown-up young- fellow; that she could not state as to the moral and educational training- of these children; that they seemed bright and presented themselves very well; that she had spent about thirty or thirty-five minutes in the home; that she was twenty-nine years old, married, but had no children herself.
Mrs. Rommel testified that she was in the welfare work, but not in the child welfare department; that she went to appellant’s home with Mrs. George twice; that Mrs. Trannum had never asked her for money or support.
Warren Bumgarden, twenty-six years old and unmarried, testified that he was employed as “county visitor,” working principally with the old and indigent; that when the Trannum children were brought in for the hearing in juvenile court he took them to a rest roojn and cleaned them up; (other testimony showed that some of the children were working out in the field when the officer came for them) that the children were in fair physical condition,- but that Clement had a sore place on his head and scratches on his neck; that there were no stripes or other scratches on them; that Clement didn’t look to be in good health, but the other children appeared to be in good physical condition and they had been fed properly; they had marks o'f perspiration on them and didn’t look like they had been bathed in a month.
Leo Herzfeld, circuit clerk, introduced in evidence copy of a divorce decree, entered in 1J44 by the chancery court, by which appellant’s wife was granted a divorce from him, for indignities, and given the custody of their five children and $20 a week for support money, she being forbidden to take the children out of the state.
Miss Ruth Johnston testified that she was supervisor of Child Welfare and it was her duty to “study cases that they have under investigation and assist in arriving at a decision”; that she had been in the state two years, but had been in this work six years; that from the testimony she had heard and from the record of the department and her pwn knowledge she thought the foster home was better for the children than their father’s home; that a foster home is a normal, average family home, supported by a state fund (italics supplied); these homes are investigated by welfare workers, and after children are put there regular visits are made; that she was willing to describe the home (where appellant’s children were placed) but not at liberty to give the name; that it is a rural home and the board only pays the children’s expenses; that the children attend a consolidated school and are given the best of care; that parents are not permitted to visit the children there, bnt if a parent .wants to see them the children are brought to the office; that all she knows about the Trannum family is what the records read in court say.
Henry Riffle, a witness for appellant, testified that he lived close to the Trannum family and knew them; that about a week after Mrs. Trannum went away he and his wife took the baby, Douglas, who was slightly ill, and that they were keeping him when the sheriff came and took him away; that they took good care of the child; that he had raised a family; that the child was in good health when the sheriff came; that he had seen the other children all along and they were “well and husky,” and had nothing wrong with them except the one who had suffered from infantile paralysis; that appellant always treated witness “all right” and they had never had any trouble; that when they (witness and his wife) took the baby his bowels were “toie up some, not bad for a baby, he had a diaper rash”; that he went to appellant because of some talk and asked him to let him take the baby home for his wife to doctor, and that appellant insisted over the protest of witness on paying $5 a week for the care of the baby; that he (witness) had heard some of the neighbors say appellant was peculiar and some of them said he was a good fellow; that appellant kept his place as well as a man could keep it, not cluttered up; that witness would like to keep the child, Douglas; that Mr. and Mrs. Thompson are now living with appellant and his boAr.
Mrs. .Henry Riffle testified that appellant agreed, when Douglas was sick, for witness and her husband to take him; the child was teething, not real sick; that she had raised six children; that this baby was in good health while they had him; that it was like taking one of her babies when they took it away, and that she still would take care of it; that she didn’t think a boy fourteen years old was capable of taking care of a baby; that appellant was then and is now working regularly and was too busy to care for it himself.
Mrs. Albert Thompson, aged eighteen, testified that she and her husband were living with appellant; that she had finished the eleventh grade and was reared in a family with small children; that she was there for the purpose of keeping house and caring for the Trannum children; that she felt qualified to do the work; that there are four rooms in the Trannum home; that they had plenty to eat.
Albert Thompson testified that appellant had employed him and his wife to stay with the children; that his wife does the cooking and he is helping appellant in his truck patches; that he had finished the eighth grade and worked at logging and other things.
Appellant testified that .even when his wife was at home he had to cook and wash the clothes, including diapers ; that his wife was an only child and was raised as a “pet”; that they had plenty of food; that he had punished the children at times; that he worked at the mines underground and drew $25.87 from the government as an ex-marine; that he also was a truck farmer and did this to earn additional mone}^ because his wife had been “quite a spender”; that lie raised potatoes, peanuts, peas and corn; that his home was a four-room house with screen porch, with a barn and potato house; that he owned four horses; that “we do good with the children picking peas and beans”; that his wife had been going away at different times all during their married life; that he had never been fined nor sent to prison; “I work all the time and pay for what I use”; that nobody ever made any complaint to him about his family until the welfare officer came over; that he had employed Mr. and Mrs. Thompson to take care of his children, paying them $65 and all they want to eat; that he got along well on his income; that his wife and he couldn’t get along; that his children obeyed him and were willing to help work; that Clement got the marks on his neck by falling in some briers and not by appellant whipping him; that appellant received an injury using a hand grenade in Nicaragua; that he shot powder all day in the mines; that his wife nearly twisted his finger off and called him some bad names and he then slapped her with a boot; that he had been working for the Reynolds Mining Company for three years, handling the underground blasting; that he had sent his wife in New Jersey $119 at one time and had sent her money many other times.
Richard Trannum testified that he was thirteen years old; that he had plenty to eat; that his father was good to him; that he went to school and was in the fifth grade; that he chopped corn, gathered peanuts and peas; that when the sheriff came and got him and the other children they were out in the field picking peas; that the sheriff took them out of the field without letting them cleamup; that “my mother was not as good to me as my daddy ;'my daddy, he is O.K.”; that he was not in the room at the trial in juvenile court; that his daddy .was always working.
Mr. J. B. Milham testified as to the good character of appellant.
This case might well be disposed of by sustaining the technical contention raised by appellant.to the effect that the order of the juvenile court is void because it fails to recite the required jurisdictional facts. Jackson v. Roach, 176 Ark. 688, 3 S. W. 2d 976; Ex Parte Kelley, 191 Ark. 848, 88 S. W. 2d 65. But, since such a disposition of the case would be only a temporary one, we deem it proper to review the case on its merits, so that the question as to the custody of these children may be settled.
The General Assembly has not authorized courts in proceedings of this kind to receive in evidence documents such as that designated by witnesses in the trial below as the “record” of the Welfare Department. This “record” is chiefly a narrative report by the welfare worker of conversations she had concerning the case of the children with various parties and it also contains correspondence had with the mother of the children. All this was “hearsay” and should not have been admitted in evidence. Certainly the custody of a man’s children ought not to be taken away from him on unsworn statements made out of court. Title Guaranty & Surety Company v. Bank of Fulton, 89 Ark. 471, 117 S. W. 537; 33 L. R. A., N. S. 676; Tipler-Grossman Lumber Company v. Forrest City Box Company, 148 Ark. 132, 229 S. W. 17; Spencer Lumber Company v. Dover, 99 Ark. 488, 138 S. W. 985; Shelton v. Shelton, 102 Ark. 54, 143 S. W. 110; Roberson v. Roberson, 188 Ark. 1018, 69 S. W. 2d 275.
When this so-called “record” is eliminated from consideration, as it must he, there is practically no evidence indicating that the father of these children is unfit to care for and rear them. He. has a fairly comfortable rural home, and had, before the trial in circuit court, employed a man and his wife, apparently competent to do so, to assist him in keeping the home and the rearing of these children. Appellant is a hard worker and earns good wages as a miner, in addition to what his farming operations pay. No charge of dishonesty, laziness or moral turpitude was made against him. There was no proof that he was cruel to his children or indifferent to their welfare. The most that could be said against him was that he was a bad house-keeper and that his duties as a miner and a farmer prevented him from giving tíis children as much attention as they should have. He has now, by the employment of a man and his wife to stay in the home and assist in the housekeeping and looking after the children, eliminated the principal objections to his home and to the care for the children that was urged by the Welfare Department.
It is true that in the “record” of the Welfare Department introduced in evidence there was some more serious criticism of him, but, even if all the hearsay and gossip set forth in this “record” were weighed in the scales against him, it would not be sufficient to overbalance the fact that he is the father of these children and shown by the evidence to be an honest, law-abiding and hard-working man.
Justice Wood, in the case of Baker v. Durham, 95 Ark. 355, 129 S. W. 789, correctly stated the rule applicable in a case of this kind when he said: “It must be an exceptional case, where the evidence shows such lack of financial ability or such delinquencies in character of the father as to imperil the present and future welfare of his child, before a court . . . will deprive him of the duty and the privilege of maintaining and educating his child, and of the pleasure of its companionship.” This was said by Judge Eakin in the case of Verser v. Ford, 37 Ark. 27: “It is one of the cardinal principles of nature and of law that, as against strangers, Ahe father, however poor and humble, if able to support the child in his own style of life, and of good moral character, cannot, without the most shocking injustice, be deprived of the privilege by any one whatever, however brilliant the advantage he may offer.”
When the evidence as to the industry, financial ability and moral character of appellant is analyzed in the light of the holdings in the above-cited cases, it is apparent that the testimony was not sufficient to authorize the court to take these children away from their father, who seeks to retain them and who has been doing his best, under great difficulties, to care for them.
The judgment of the lower court is accordingly reversed, and judgment will be entered here awarding the custody of the said children to appellant, and an immediate mandate is ordered. | [
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Grieein Smith, Chief Justice.
Ernest and Agnes 'Chandler lived together until 1938, following their marriage in 1930. Ernest was committed to a hospital, where after a period of treatment it was found that he was incurably insane. September 10,1946, on the wife’s complaint, (and following proceedings in respect of which regularity is not questioned) a decree of divorce was granted. Custody of the couple’s twelve-year-old daughter was given Mrs. Chandler. A monthly sum of $50 was ordered paid from Chandler’s estate for support of the child. Chandler owned a funeral home, operated jointly by himself and wife. Following the husband’s insanity Mrs. Chandler continued the business as guardian, and seemingly intends to do so. The Court found she was entitled to a third of the defendant’s personal property payable presently, including cash on hand. The order further directed that, upon termination of the guardianship, appraisers should be appointed to evaluate “said remaining personal property,” a third of which should go to the plaintiff. An attorney’s fee and costs were made charges against Chandler.
Jones and Joel Chandler, brothers of Ernest, filed interventions as next friends, alleging the Court was without jurisdiction to make the property order. Specifi cally, it was charged that Mrs. Chandler had paid herself $748.23, presumptively representing a third of the cash she held as guardian. Refund of- this sum was demanded.
Act 428, which became a law April 1, 1943, without the Governor’s approval, amends Sec. 4381 of Pope’s Digest. The eighth section makes incurable insanity a ground for divorce in the circumstances contemplated. It is copied in the footnote.
Appellants insist Section Eight is not, in fact, an amendment to existing statutes relating to divorce, but is a new law, complete in all respects, and independent of reenacted sections; hence, nothing can be read into it but what is expressed.
Act 428 is captioned, “An Act to amend Sec. 4381 of Pope’s Digest. . . . ” The title is not controlling; but where intention of the lawmakers is doubtful it may be looked to in order to ascertain what purpose was in mind. Western Union Telegraph Co. v. State, 82 Ark. 302, 101 S. W. 745. There are many other cases recognizing this rule. Further evidence of legislative intent to amend existing laws and to adcl insanity as a ground for divorce is seen in Sec. 1 of Act 428, where Act No. 20 of 1939— passed subsequent to publication of the Digest — is ‘pieked up” and referred to as an amendment to Sec. 4381, making the provisions, “as amended,” to “read as follows. ’ ’ It should also be observed that Section Eight reads in part, “In all decrees granted under this subdivision. ’ ’
By Act 88 of 1873, pp. 213-222, permanent and incurable insanity occurring subsequent to marriage was the seventh ground for divorce. Other causes appeared in the Act substantially as they are now printed in Pope’s Digest. By Act 62 of 1895, p. 76, the seventh subdivision of Sec. 2505 of Sandels & Hill’s Digest was repealed, leaving other statutory divorce grounds intact. This was the situation until 1943, when the Act now in question became effective; but this did not occur until the General Assembly of 1939 had added Act 20; hence the provision of Act 428 of 1943 shown in the first footnote to this opinion necessarily became a new cause, but one fitted into and made a part of existing laws, just as Act 88 of 1873 (being “An Act to amend the code of practice in civil- cases”) set up the seven causes heretofore mentioned, in the sequence there shown; and just as Act 62 of 1895, without disturbing other applicable laws, took away the seventh ground as it then existed.
White v. White, 196 Ark. 29, 116 S. W. 2d 616, deals with Act 167 of 1937. The Act added to Sec. 3500' of Crawford & Moses ’ Digest, by way of amendment, a provision that courts of chancery should-grant a divorce to either party upon proof that husband and wife had lived apart for three consecutive years with cohabitation. In the White case it was held that no changes had been made in Sec. 3500 of the Digest, other than the added provision. It was then said that the new matter was “an amendment to the original law.” See also State v. Sewell, 45 Ark. 387. The language of Chief Justice Cockrill is impressive. “The statute,” said he, “is not to be construed as though it stood alone on the subject. ‘ A statute is a fresh drop added to the yielding mass of the prior law to be mingled by interpretation with it. ’ ”
So, in the case at bar, the eighth ground appears in the statute free of any express or implied purpose to have it construed other than as the enacting clause says: an amendment. Treated as such it takes its place with the whole.
Our conclusion is that the so-called * ‘ Eighth Ground ’ ’ was subjoined to the preceding causes with no thought, that it would be regarded as independent, self-sufficient, and free from the incidents attaching to decrees based upon prior law.
Affirmed.
“In all cases where a husband and wife have lived separate and apart for three consecutive years, without cohabitation, by reason of the incurable insanity of one of them, the Court shall grant a decree of absolute divorce upon the petition of the sane spouse; provided the proof shows that the insane spouse has been confined in an institution for the care and treatment of the insane for three consecutive years; and provided that such proof be supported by the evidence of two reputable physicians, one of which shall be a staff member or the Superintendent of the institution wherein the insane spouse is confined, and one a regularly practicing physician in the community wherein such husband and wife reside. In all decrees granted under this subsection in actions in which the husband is plaintiff, the Court shall require the plaintiff to provide for the care and maintenance of the insane defendant as long as she may live, and the trial Court will retain jurisdiction of the parties and the cause, from term to term, for the purpose of making such further order as equity may require to enforce the provisions of the decree requiring plaintiff to furnish funds for such care and maintenance.”
When Act 167 was held ineffective to accomplish the purposes those interested in the measure had in mind, the succeeding General Assembly (1939) passed Act 20, now the seventh subdivision of Act 428 of 1943. However, the 1937 enactment appears in Pope’s Digest, p. 12700 | [
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Holt, J.
Appellant, Tommy Reynolds, by information, was charged with the crime of murder in the first degree, for the unlawful-killing of “Othel Lee Ashley by striking and beating the said Othel Lee Ashley over the. head and body with his fists,” on August 31, 1946. A jury found .him guilty of involuntary manslaughter and assessed the maximum punishment of twelve months in the State penitentiary (§ 2994, Pope’s Digest). From the judgment comes this appeal.
For reversal, appellant argues (1) insufficiency of the evidence, (2) error in instructions, and (3) improper argument by the prosecuting attorney.
1.-'
The deceased, Othel Ashley, was killed while engaged in a fight with appellant from blows inflicted from appellant’s fist, on the night of August 31, 1946. The record discloses that-Roy Cossey and Jim Dempsey, both intoxicated, were evicted from -a picture show in Redfield, Arkansas, by the owner, Joe Smith, who was mayor of the town and also justice of the peace. Shortly thereafter, the difficulty was renewed by Cossey with Joe Smith in front of Smith’s home, a short distance from the theater. Smith called a deputy sheriff to assist him in subduing Cossey and also deputized Othel Ashley, the deceased, to assist. It appears that Ashley had his arms around Cossey’s neck and upon Cossey’s complaining of being choked, Cossey’s wife came up and managed to separate them. At this point, Mrs. Cossey testified that Ashley said: “Gertrude, I will slap hell out of you,” and that appellant stepped between her and Ashley and told him not to hit her. Mr. Cossey was finally subdued and taken to the.rear of Smith’s home. Vernon Oates, a witness for tlie State, gave his version of what thereafter transpired, in substance, as follows: “Tommy (meaning appellant) was there, yes. . . . A. He wanted to know if they were going to take Mr. Oossey and Mr. Dempsey to jail and Othel spoke up and said, ‘anybody that got drunk ought to go to jail,’ and Albert Beynolds made the remark, ‘you don’t have to break a man’s neck taking him to jail,’ and Othel said, ‘I still say that anybody that gets drunk ought to go to jail,’ and when Othel said that Tommy hit him. The first time he knocked him down then he got up, I guess half straightened up, and Tommy hit him again. Q. Then what happened! A. Then Othel fell and he never moved. Q. Was Othel Ashley doing anything to Tommy Beynolds? A. No. Q. Just prior to striking him? A. No, sir, not that I know of. . . . A. He never spoke to Tommy, no, sir. He was talking to Albert.”
Another State’s witness, Eugene H. Tucker, testified, (quoting from appellant’s brief): “Tommy (appellant) and Albert came walking up the path, and Albert went to my left and Tommy went to my right, and he walked around there and hit him. Mr. Ashley was at the time standing by the fence. No one said anything or spoke a word. Mr. Ashley got up about straight and he hit him again and said, ‘Stay there.’ He wasn’t hardly straight when Tommy hit him the second time. The first time he struck him on the chin and the second time on the neck.”
S. E. South, an undertaker, testified that he examined the body of Othel Ashley and that his neck was broken.
Appellant testified that he struck Ashley in self-defense after Ashley had called him a vile name and was advancing toward him, and in appellant’s own words: “A. Because when he walked over there I had seen him in fights before and I knew how he fought, and when he. walked over there with doubled-up fists he was just fixing to hit me and he was a much bigger man than I was, and I didn’t want him a holt of me so I hit him and I knocked him down, and he got back upon his feet in a crouching position and come at me again and I hit him again. ’ ’
Appellant denied that he said “stay down” after striking Ashley the second time.
Whether the death of Ashley resulted from the unlawful acts of appellant as charged in the information, or whether it was justified, as appellant insists, on the grounds of self-defense, was clearly a question for the jury to determine.
It is our duty here to consider the evidence in the light most favorable to the State and the jury’s verdict, and when so considered, if we find it substantial, we must affirm. Higgins v. State, 204 Ark. 233, 161 S. W. 2d 400.
The weight to be given the testimony and all reasonable inferences to be drawn therefrom were questions for the jury to determine. Griffin v. State, 210 Ark. 388, 196 S. W. 2d 484.
Here, the jury evidently found that appellant did not kill Othel Ashley in self-defense, as claimed, and we think there was substantial testimony to. support their verdict.
2.
Appellant next objected to the following instructions given by the court: “No. 11 — The defendant in this case pleads self-defense in justification of his act in killing the deceased. .Self-defense is a legal defense, and one which would entitle the defendant to an acquittal if you find from the evidence that he acted in self-defense at the time of the killing,- and it need not appear, in order that he may plead self-defense, that the defendant was actually in danger of losing his life or of receiving great bodily harm at the hands of the deceased, but if you believe from the evidence in the case that the defendant, acting in good faith, and without fault or carelessness on his part, honestly believed, at the time he struck the deceased, that he was in danger of losing his life or of receiving some great bodily harm at the hands of the deceased, then he would be entitled to an acquittal, even though you should further find that he was in no actual danger of losing his life or of receiving some great bodily harm at the hands of the deceased at the time he struck the deceased.”
“No. 12 — If you believe from the evidence in the case that the defendant ,by accident, or misadventure, not intentionally, struck and killed Ashley, and that he had no evil design against him, he would not be guilty of unlawful homicide and you will acquit him unless you find from the evidence beyond a reasonable doubt that he killed the deceased either in the commission of an unlawful act, or in the commission of a lawful act without due caution and circumspection.”
And he argues that the following instruction, No. A, which appellant requested, should have been given by the court: “If you believe from the evidence in this case that the defendant, acting without carelessness on his part, honestly believed that the deceased, Ashley, against whom defendant had no evil désign, was about to make an unlawful assault on him, and that defendant, acting under such belief, struck the said Ashley with his fist, he would not be guilty of unlawful homicide, and you will acquit him.”
We cannot agree that any error appears when instructions No. 11 and No. 12 are read together. They fairly and clearly declared the law applicable to the facts disclosed by this record. Slim and Shorty v. State, 123 Ark. 583, 186 S. W. 308.
While Instruction A requested by the appellant was, we think, not incorrect, it was fully covered by the two instructions, supra, and there was no error in the court’s refusal to give it since the court was not required to multiplv instructions on anv particular issue. Wallin v. State, 210 Ark. 616, 197 S. W. 2d 26.
3.
Finally, appellant says: “The following argument by counsel for the State was prejudicial, to-wit: ‘The defendant just wanted to impose his mean disposition on the man he killed.’ ” The record discloses that upon appellant’s prompt objection to this argument, the trial court said: “The court can’t pass on that, Mr. Brock-man, ’ ’ whereupon appellant’s exceptions were noted. .
After considering all the testimony in this record, we cannot say that this statement of the prosecuting attorney was not a fair and reasonable deduction therefrom. It was but an expression of an opinion from the facts, and as was said by this court in Maxey v. State, 76 Ark. 276, 88 S. W. 1009: “Still, the facts upon which-he predicated his opinion were before the jury, and, as sensible men, we must assume that they gave the opinion of the attorney as to these facts no more or greater consideration than the facts themselves justified.” We are unable to see how these remarks could have prejudiced appellant’s rights in the minds of sensible and fair-minded jurors.
As said in Lemuels v. State, 113 Ark. 598, 166 S. W. 741: “The control of the argument was within the discretion of the court, and the judgment ought not to be reversed unless there was a manifest abuse of the court’s discretion in that regard.” We find no abuse of discretion here.
The judgment is affirmed. | [
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Bobins, J.
Appellees, Nelson Scott and American Insurance Company, Scott’s insurer, were awarded verdict for $1,700 in tbeir suit against appellant for damages inflicted by automobile driven by appellant when it struck a filling station owned by Scott. From judgment entered on the verdict this appeal is prosecuted.
Appellee Scott was the owner of a filling station situated in the fork of Highway 71 and Highway 45, in Fort Smith, Arkansas. Shortly 'after midnight on March 10, 1946, the Buick sedan, owned and driven by appellant, struck the filling station, knocking down two pillars, pulling the roof loose, and inflicting other damage.
Appellant’s answer to complaint of Scott, asking damages in the sum of $2,115, was a general denial and a plea of contributory negligence. By way of cross complaint, appellant asked judgment against appellee Scott for $700 for damage to his car, which he alleged was caused by said appellee having erected the pillar, struck by the car, in the right-of-way of the highway.
Appellant and his friends were driving to a night club and prior to the accident appellant had drunk two bottles of beer. Thére were two bottles of whiskey in the automobile, but occupants of the car denied that they had opened the whiskey. They testified that the breaking of the whiskey bottles in the collision caused the odor of whiskey noticed immediately after the accident. One of the young ladies in appellant’s car claimed to be the owner of the whiskey, stating she had purchased it to give to her father and a friend. Appellee Scott testified that the seal on one of the whiskey bottles had been broken. He also testified that immediately after the accident appellant promised to reimburse him for the damage. This statement was not denied by appellant. There was no dispute in the testimony as to the amount of damage to Scott’s building, nor is it contended here that the verdict is excessive.
Appellant’s version of the occurrence was that he was meeting two cars and one of them attempted to pass the other, forcing appellant from the concrete slab onto the gravel, which caused his automobile to skid and strike the pillar. He testified that he was driving at a speed of from 35 to 40 miles an hour.
An employee of the State Highway Department testified that the right-of-way of Highway 71 at this point was shown by the map on file with the department to be seventy feet wide, and that his measurement disclosed that from the center of the highway to the pillar struck by appellant was a distance of only thirty-two feet.
The lower court refused to submit appellant’s claim against appellee Scott, for damage to appellant’s automobile, to the jury, and, in effect, told the jury that, if they found that appellant was negligent in the driving of his car, and the damage to appellee Scott’s property was caused by this negligence, they should return a verdict for appellees.
Several contentions' for reversal are urged by appellant, hut they are all based on his argument that since Scott’s pillar was three feet over in the right-of-way of the highway it amounted' to a nuisance, and that the maintenance of this nuisance by Scott was the proximate cause of the damage to the building, as well as to appellant’s ear.
It is argued by appellant that our opinion in the case of Arkansas Fuel Oil Company v. Downs, 205 Ark. 281, 168 S. W. 2d 419, wherein we upheld a judgment, against the oil company for injuries sustained by Downs when he fell into an excavation caused by removal of a gasoline tank in the right-of-way of a highway, authorizes a holding here that appellee Scott was negligent in maintaining the pillar in the right-of-way.
The facts in that case are not similar to those in the instant case. In that case it appeared that Downs was injured by falling into the open pit (the existence of which he had knowledge) while walking in the dark. There was no contention that Downs was negligent in anything he did. Here the jury found that appellant was negligent in his driving. Nor can it he said that the menace of an open excavation is the same as that created by a pillar supporting a filling station.
There was no testimony indicating that the maintenance of the pillar interfered with traffic over the highway. English cases, such as Rex v. Bartholomew (1908), 1 K. B. 554, and Reg. v. Lepine, 15 L. T. (N. S.) 158, lay down the rule that even though a building may encroach on the right-of-way of a public highway such building does not constitute a nuisance unless it obstructs traffic to an appreciable extent. We do not find such a rule expounded in any of the decisions in this country, nor do we deem it necessary to determine in this case its correctness.
The testimony showed that the pillar in question had been in the same location for seventeen years. There was no evidence tending to establish that Scott, before the accident, knew that the pillar was located on the right-of-way, or that there had ever been any complaint made by the Highway Department, or by anyone, as to its location. Scott did not build the pillar. It was a part of the building when he bought the property. Appellant admitted that he .knew of the pillar being located where it Avas. The evidence showed that there was room enough, between the pillar and- the concrete slab, for two — and possibly three — cars to pass.
We conclude that, under all the circumstances shown, Scott was not guilty of maintaining such a nuisance as to absolve appellant from liability for negligently damaging the building or to render Scott liable for damage to appellant’s car.
If it be conceded that the pillar was such a purpresture that its maintenance could have been enjoined or abated by the proper authorities, this would not authorize an individual, without notice and without complaint, to destroy it negligently. Even in those eases where it is permissible for a private citizen to abate a nuisance, the abatement must (except in an emergency) be effected only after notice to the owner and it must be done in such a manner as to cause the least damage. 46 C. J. 757. It is not even suggested that there had been any complaint from appellant as to the pillar, which doubtless could have been moved out of the right-of-way at comparatively small expense and with little damage to the building.
We conclude that the lower court ruled properly as to the respective liability of the parties.
The jury by their verdict found that the damage was caused by the negligence of appellant. There was substantial testimony to support this finding.
The judgment appealed from must, therefore, be ■ affirmed. | [
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Holt, J.
These three causes, numbered 8303, 8304 and 8316, have been consolidated here, and this appeal in No. 8303 and No. 8316 comes from a judgment of the Logan Circuit Court, Northern District, finding and declaring that the McLean Bottom Levee & Drainage District No. 3, Logan County, Arkansas, created by order of the Logan County Court May 7,1947, was in all things a valid district. (Section 4455, et seg., Pope’s Digest, including all amendments thereto, and specifically Act 279 of the Acts of 1909 and Act 177 of the Acts of 1945.)
The record reflects that on February 3, 1947, a petition, signed by eight property owners, for the creation of the above district was duly filed in the Logan County Court, alleging the purposes to be the construction of a canal, ditches and levees therein. An attempt was made to describe the property included therein, engineers were appointed, their bond filed, their report made, and on March 6,1947, after due notice of the filing of the petition and the proposed boundaries of the district, upon a hearing the County Court entered an order creating said District No. 3.
Thereafter, on April 2, 1947, during the same term of County Court at which the March 6th order, supra, was made, a second order was entered by the County Court for the primary purpose, it appears, to correct erroneous descriptions of the lands sought to be embraced in the district by the March 6th order, and 20 days were allowed for an appeal to the Circuit Court from this April 2nd order.
Appellants, Reed, Shaw and Mitchell, appealed from this order to the Circuit Court on April 19, 1947.
Prior to this appeal to the Circuit Court from the April 2nd order appellees filed in the County Court of Logan county their second petition praying for the creation of the above district embracing approximately 15,000 acres of land, incorrectly described, in the two orders of March 6th and April 2nd, supra, but under descriptions alleged to be correct descriptions of all lands embraced within the proposed district.
The County Court, on May 7, 1947, upon a hearing on this last petition, made and entered its third order creating the district, supra, McLean Bottom Levee and Drainage District No. 3.
Prom this latter order of the County Court, appellants appealed to the Circuit Court of the Northern District of Logan County, and upon a hearing the Circuit Court, as indicated, found said district valid and properly formed, and the appeal here is from this order.
No. 8303
We consider first, Case No. 8303 of W. S. O’Kane, who was the appellant and a land owner in the district. His contentions are: (1) That the lands embraced within the proposed district are not properly and definitely described. (2) That the persons selected as engineers to make proper survey of the lands involved in the district were incompetent and incapable of performing the duties assigned. (3) That the County Court order establishing the district in question was arbitrarily made without any proof as “to the need, value, or benefits of said improvement.” (4) “Did the County Court have the right to make an order creating the second McLean Bot tom Levee & Drainage District No. 3 on the 7th day of May, 1947, said district to embrace the identical lands, to serve the same purpose, and to proceed under the same identical plan, as the first McLean Bottom Levee & Drainage District No. 3> established under its order of April 2, 1947, and in the same order creating said second district under date of May 7,1947, did the County Court have jurisdiction and the right to cancel and void its order of April 2, 1947, establishing the first district, with an appeal then pending in the Circuit Court of Logan county, Arkansas, Northern District, from its order of April 2,1947, creating said first McLean Bottom Levee & Drainage District No. 3?”
We proceed to consider first appellant’s fourth, and , what appears to be the primary contention of all appellants.
It is undisputed that when the County Court entered its third order on May 7,1947, an appeal from the second order, April 2, 1947, had previously been properly filed in the Circuit Court, on April 19th, and was pending at the time the third order was made by the County Court on May 7th, and principally on the authority of Taylor v. Bay St. Francis Drainage District, 171 Ark. 285, 284 S. W. 770, appellants earnestly insist that the County Court was without authority to enter the order of May 7th creating the district and that all proceedings thereunder were void. We think, however, that the present case is not controlled by the above case and is distinguishable.
In the present case, the court’s order of May 7th was made on a new petition filed April 15, 1947, prior to the appeal on April 19th from the April 2nd order and on its May 7th order, the County Court ordered: “That all petitions, orders, bonds, reports and other matters incident to the formation of McLean Bottom Levee & Drainage .District No. 3, Logan County, Arkansas; filed since January 1, 1947, be withdrawn and cancelled of record as of the 12th day of April, 1947,” and as we shall presently point out, the first two orders of the County Court, the one of March 6th and the other of April 2nd, were made on the first petition filed prior to February 3,1947, and which petition failed to describe and locate any lands sought to be embraced in the district. The descriptions describe nothing. The Court, therefore, had no jurisdiction over the res.
In the present case, the orders stem from two different petitions. The first two orders, as indicated, on the first petition which failed to describe the land, and the order of May 7th from the second and a new petition filed April 15th, 1947, supra, which petition, as we shall point out, correctly described the lands embraced in the district and therefore the County Court acquired jurisdiction, having cleared the field for entirely new proceedings in the formation of the district. In the Taylor case, it appears that both proceedings there sprang from the same original petition and the first order there made was void because the order misdescribed the land. Apparently the petition upon which the order was based did correctly describe the land and the second order was based on the same petition. Since the petition correctly described the land, jurisdiction of the case was conferred on the County Court. In the present case, the appeal being taken in another and different proceeding on a new petition did not oust jurisdiction of the County Court in the second proceeding, which resulted in the May 7th order. Since the first petition, as indicated, on which the first two orders, supra, were based, described nothing, we have no way of knowing that the two proceedings were for the same purpose or that the first proceeding preempted jurisdiction. See, also, Smith v. Lawrence, 175 Ark. 712, 300 S. W. 386.
The order of March 6th as above noted describes nothing. On its face it wholly fails to describe the property to be included in the district or to set forth the boundaries of the district. The purported description of the boundaries of the district attempted to be created in that order reads: “Beginning at a point which is four hundred fifty (450) feet north of quarter section line between the northeast quarter (NE%) and the southeast quarter (SE14) of section sixteen (16), township eight (8) north;-range twenty-six (26) west . . .”
Obviously, there is no such point because such beginning could be anywhere on a line running east and west for one-half mile, and further: “Running thence west four hundred (400) feet between sections sixteen (16) and fifteen (15) for place of beginning; . . .”
It is again obvious that the line between sections 15 and 16 lies north and south and that section 15 lies east of section 16, and further: “Thence south five thousand seven hundred seventy-five (5775) feet along the east boundary line of the new levee . . .”
There is as yet no new levee.
The description continues: ‘ ‘ Thence north two thousand three hundred” (2300) feet long the west boundary line of the drainage structure . . . Thence in a westerly direction along the south boundary line of the levee.”
The drainage structuré and levee referred to are still to be located and constructed.
The March 6th order was therefore void and of no effect.
Likewise, the order made April 2, 1947, on the same petition on which the March 6th order was made was void and of no effect since it failed to describe properly the property to be included in the district.
This description, having set forth the beginning point, 450 feet north of the southeast corner of the northeast quarter of section 16, township 8 north, range 26 west, continues west and south to the high water mark of Six Mile Creek, and continues with the high water mark for a distance and then uses this language: “Thence north along the landside toe of the proposed levee 2,300 feet; thence in a westerly direction along the landside of the proposed levee for a distance of 40,000 feet to point of beginning.”
We think it obvious that this description is defective since the “proposed levee” was not in existence and it fails to locate definitely the lands within the district where the improvements were contemplated. We hold, therefore, that appellants’ fourth contention cannot he sustained.
We think appellants’ first contentioii, supra, untenable for the reason that the description of the lands within the proposed district appearing in the petition for the formation of the district, the engineers’ report with the "vicinity map of the district attached, and the order of May 7th appear to be complete descriptions by metes and bounds, beginning at a point certain and terminating at the same point. All descriptions appear to be the same, and were sufficient.
“Where a deed described the lands conveyed by metes and bounds, and other description that can be made certain by evidence aliunde, it is sufficient.” Cooper v. White, 30 Ark. 513, (headnote); Dorr v. School District No. 26, 40 Ark. 237.
Appellants’ second contention was that the engineers, Walters and Dunn, were incompetent. This was a question to be determined by the trial court, was one of discretion, and since we find no evidence that he abused this discretion or that these men were not fully competent, the contention is without merit.
As to appellants’ third assignment that the order establishing the district was hastily and arbitrarily made, we find nothing to support this contention. This was also a matter within the trial court’s discretion, and in the circumstances here, we think the matter had been thoroughly developed in the proceedings both in the County Court and the Circuit Court, and that the action of the court was warranted. - »
“On appeal from a judgment establishing a drainage district it was within the trial court’s discretion, after the matter had been thoroughly developed, to refuse to hear further testimony.” Jacks Bayou DrainagDistrict v. St. Louis Iron Mountain & Southern Railway Company, 116 Ark. 30, 171 S. W. 867, (Headnote 3).
No. 8316
Appellants, Reed, Shaw and Mitchell, in addition to the contentions of appellant, O’Kane, supra, say: (1) “No statutory authority to construct channel outside the boundaries of the district to divert waters falling outside of the district before the same has reached the district.” (2) “Notice published and used as a basis for order May 7, 1947, contains description which is unintelligible and does not furnish notice contemplated by statute to be furnished to property-owners in proposed District.” (3) “John M. Willems, A. O. Featherston, and Orlando Hixson have not qualified to act as Commissioners.”
(1)
In the present case the “plan” reported by the engineers for the district was: “A drainage canal which will divert the flow of Six Mile Creek along the western boundaries of the district should be constructed for a distance of about 7,500 feet, of an average width of 80 feet at the top, 14 feet at the bottom, and an average depth of 22 feet, with slope of one foot on one and a half feet, and a levee should be constructed almost parallel with the drainage canal a distance of approximately 5,700 feet, and a levee should be constructed for a distance of 47,980 feet along the northern boundary line of the proposed district approximately parallel with the meanderings of the Arkansas River to a point at the lower end of the proposed district where Six Mile Creek now empties into the Arkansas River.”
Act 83 of 1939 granted to levee and drainage districts the power to “acquire flowage and storage rights, and other servitudes, upon, over and across any lands in the construction, operation and maintenance of any floodway, reservoir, emergency reservoir, spillway or diversion,” and further provides the procedure by which such districts could acquire “flowage and storage rights, and other rights of servitudes over, upon and across any lands embraced in any floodway, reservoir, emergency reservoir, spillway or diversion.”
As a part of the plan for the control of the Mississippi River, the Arkansas River and other tributaries, Congress, in 1936, enacted the original Overton Flood Control Bill, 33 U. S. -C. A., paragraph 701a, and with amendments thereto, declared the policy of the federal government to lend levee and drainage districts financial aid such as proposed here.
In construing such federal and state legislation, this Court had a similar question to that presented here before it in the case of Drainage District No. 18, Craighead County v. Cornish, 198 Ark. 857, 131 S. W. 2d 938, and there we held: (Headnote 1) “Under § 32 of Act 279 of 1909 as amended by § 5, Acts of 1913, p. 738 (Pope’s Dig., § 4489), a drainage district may construct a levee where necessary to prevent the overflowing and filling up of its ditches; and although a portion of the proposed levee lies outside the drainage district, it is not ultra vires the district to construct the levee nor to acquire the right-of-way therefor,” and (Headnote 4) “A drainage district may, under Pope’s Dig., § 4480, condemn lands for a right-of-way for a levee lying in part without the district when such levee is necessary to protect the drainage system.”
We conclude, therefore, that this contention is untenable.
(2)
Appellants’ second contention, supra, that the public notice used as a basis for the order of May 7, 1947, contains insufficient descriptions of the land involved, is, we think, untenable. The notice itself contains, among other things, this language: “In the matter of the formation of McLean Bottom Levee & Drainage District No. 3, Logan County, Arkansas. Notice of hearing to establish McLean Bottom Levee & Drainage District No. 3, Logan County, Arkansas.”
It further provides that: “Beginning at a point 500 feet west and 3,300 feet north of the southwest corner of section 15, township 8 north, range 26 west.” From that point the boundaries of the district are set out in detail, as to direction, distance, degrees and minutes, specifically encircling the area comprising the district, and ‘ ‘ to the point of beginning. ’ ’
The description in this published notice is not at variance with the report of the enigneers, the survey which they made, the order of the County Court and that of the Circuit Court on appeal establishing the district and its boundaries. Also in the engineers’ report appears this statement: “A plat showing the area to be protected, and the location of the canal project and levee structure is attached.”
In Voss v. Reyburn, 104 Ark. 298, 148 S. W. 510, we said: “The object of designating the boundaries of the district was to enable the property owners included therein and affected thereby to easily ascertain what property was included in the district,” and in Mahan v. Wilson, 169 Ark. 117, 273 S. W. 383, it was said: “Indulging the presumption that the lawmakers intended to require a description of the property in the notice, it necessarily follows that description should be in accordance with the report of the engineers in the case of an original district, or with the report of the commissioners in the case of the creation of a subdistrict, for the report is the thing which forms the basis of the court’s action in determining whether or not the district or subdistrict should be created. Crawford & Moses’ Digest, § 3650.
“Counsel fail to satisfactorily make it appear to us from the record that there is a variance between the description in the notice and that contained in the report of the commissioners. They refer to a map in the record, but the map to which they refer has not been made a part of the report, but was merely introduced in evidence, and we do not discover any discrepancy between the description in the notice and that in the map filed with the report. These maps were before the trial court who examined them and heard the evidence with referente thereto, and we do not feel at liberty to disturb the finding of the trial court that there is no discrepancy in the notice and the report. We must indulge the presumption that the court found that there was no such discrepancy. ”
We think, therefore, that the notice was sufficient to warrant the action of the court in creating the district.
(3)
Finally, appellants argue that the three commissioners, John M. Willems, A. 0. Featherston and Orlando Hixson, have not qualified as required by § 4458 of Pope’s Digest and § 20, Art. 19 of the Constitution of Arkansas. We cannot agree with this contention. The three original and identical oaths in question are before us. They were each signed by the respective commissioners and each oath was administered by the County Clerk, T. C. Wingfield, on the 7th day of May, 1947. The oath of A. 0. Featherston is as follows:
“In the County Court of Logan County, Arkansas, Northern District, in the matter of the formation of McLean Bottom Levee So Drainage District No. 3, Logan County, Arkansas.
Oath of Office.
“I, A. 0. Featherston, do solemnly swear that I will support the Constitution of the United States and the Constitution of the State of Arkansas, and that I will faithfully perform and discharge the duties of the office of member of the Board of Commissioners of McLean Bottom Levee So Drainage District No. 3 of the Northern District of Logan County, Arkansas, on which I am about to enter; that I will not directly or indirectly be interested in any contract made by said Board; and that I will well and truly assess all benefits resulting from said improvement and all damages caused thereby. (Signed) A. 0. Featherston.
“Subscribed and sworn to before me, County Clerk, in and for the County of Logan, State of Arkansas, this 7th day of May, 1947. (Signed) T. C. Wingfield. (Seal).
“Filed in my office this 7th day of May, 1947. (Signed) T. C. Wingfield, County Clerk within and for the Northern District of Logan County, Arkansas.”
As noted, the other two oaths which were signed by the remaining commissioners respectively are the same. We think there has been a substantial, if not a literal, compliance with the statute and Constitution by these commissoners.
We conclude that No. 8303 and No. 8316 must be, and are, affirmed.
No. 8304
Disposition of Case No. 8304 is made by a per euriam opinion of this date. See infra, p. 950.
An immediate mandate is ordered. | [
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Ed. F. McFaddin, Justice.
In this case, lightning is ^claimed to have traveled over electric wires, and inflicted personal injuries on appellee; and he seeks to hold appellant liable, claiming appelant’s negligence concurred with the lightning within the rule of the cases collected and citfed in West’s Arkansas Digest, “Negligence,” § 61.(1). Here are the facts:
In 1942, Killoren Elec. Co. constructed a transmission line for the Arkansas Valley Electric Co-op. in and near the community of Hon, Arkansas. The transmission line was designed to carry 7,200 volts of electricity. Included in the said construction work was the placing of a transformer on a pole near the home of the plaintiff (the transformer being to reduce the voltage from 7,200 to 1.10), and the running of service wires (to carry 110 volts) from the transformer to the wall brackets located on the southwest corner of the Hon home. That was the extent of the work of the Killoren Elec. Co. in so far as the Hon home was concerned. The wiring of the Hon home, the installation of a meter near the wall brackets, etc., were matters not performed by appellant company.
The Ark. Valley Elec. Co-op. accepted the Killoren Elec. Co.’s work as completed and satisfactory in every respect on March 17, 1943. Later Ed Hon (plaintiff and appellee here) began using electricity from the Ark. Valley Elec. Co-op., and was a member of said cooperative ' and user of its electricity on June 5, 1944, when he received the injuries here involved. On the afternoon of that day, Hon was standing in the kitchen (the northeast room of his home) looking out the door, and with his right hand resting on the wall a few inches from the electric switch, when “a blinding flash of lightning” knocked him to the floor and inflicted the injuries here claimed. There was a burned print of his hand on the wall. The sockets and receptacles in the downstairs rooms were burned, and the wall around the sockets was damaged; the refrigerator was burned out; the circuit breaker was tripped; the entire wiring inside the house was clearly damaged.
Ed Hon sued the Killoren Elec. 'Co. for damages for his personal injuries, claiming that he was injured by a charge of lightning which reached him through, and because of, the defective wiring negligently installed by Killoren Elec. Co. at the transformer on the pole near the Hon home. The Killoren Elec. Co. answered by general denial, and also pleaded that it was an independent contractor in the work for the Arkansas Valley Elec. Co-op., and therefore was not liable to Ed Hon.
Upon issues joined, there was a trial to a jury, and a verdict for Hon against Killoren Elec. Co. for $1,000. To reverse that judgment, there is this appeal.
We have several cases involving persons injured by high voltage, either of electricity or lightning (which is electricity of enormous voltage). Some of these cases are: W. 2d 503; S. W. Tel. & Tel. Co. v. Abeles, 94 Ark. 254, 126 S. W. 724, 140 Am. St. Rep. 115, 21 Ann. Cas. 1006; Hope Basket Co. v. Thomasson, 190 Ark. 956, 82 S. W. 2d 241; Ark.-Mo. Power Corp. v. Powell, 200 Ark. 309, 139 S. W. 2d 383; S. W. Tel. & Tel. Co. v. Bruce, 89 Ark. 581, 117 S. W. 564; S. W. Gas & Elec. Co. v. Bianchi, 198 Ark. 996, 132 S. W. 2d 375; and Ark. Gen. Utilities Co. v. Wilson, 197 Ark. 351, 122 S. W. 2d 956. The present case differs from the cited cases in this: in each of the cited cases the wires and electrical installations were, at the time of the injury, under the control and maintenance of the company claimed to he liable, while here the company claimed to be' liable had no control ov.er the wires or installations at the time of the injury. The plaintiff’s (appellee’s) theory of liability in this present case is, that the defendant company had been negligent in the original construction, and was therefore liable to the plaintiff as the injured party. Some of' the cases and texts cited and relied on by the plaintiff are: Monroe v. San Joaquin L. & P. Corp., 42 Calif. App. 2d 641, 109 Pac. 2d 720; Payton’s Adm’r v. Childers Electric Co., et al., 228 Ky. 44, 14 S. W. 2d 208; Smith v. St. Joseph Ry. Co., 310 Mo. 469, 276 S. W. 607; So. Tel. & Tel. Co. v. Evans, 54 Tex. Civil App. 63, 116 S. W. 418; Appal. Power Co. v. Mitchell, 145 Va. 409, 134 S. E. 558; Colbert v. Holland Furnace Co., 333 Ill. 78, 164 N. E. 162. For texts, see 14 R. C. L. 107, 45 C. J. 885, 20 C. J. 366. The following Arkansas cases are cited by plaintiff as indicating the trend of our holdings indicating liability: Stanton-White Dredging Co. v. Braden, 137 Ark. 127, 208 S. W. 598; Foohey Dredging Co. v. Mabin, 118 Ark. 1, 175 S. W. 400; Wood v. Drainage District, 110 Ark. 416, 161 S. W. 1057.
We shall not be obliged to determine the correctness of the plaintiff’s theory of the defendant’s legal liability, because — as we see the case — it must be reversed and dismissed because of plaintiff’s failure to make certain essential proof. This will be discussed in detail later. To reach the verdict that it did, it was necessary for the jury to find from the evidence, at least, the concurrent existence of these two points: (1) that the lightning traveled over the transmission lines of the Ark. Valley Elec. Co-op.; and (2) that there was no proper ground wire and lightning arrester ever installed by the- Killoren Elec. Co. at the transformer where the electrical current was reduced from the transmission line voltage of 7,200 to the service line voltage of 110.
We reverse and dismiss this case because of the plaintiff’s failure to prove the second point as above listed. That point was, “that there was no proper ground wireo and lightning arrester ever installed by Killoren Elec. Co. at the transformer . . ' . ” Snch alleged failure was “the act of negligence” claimed to have been committed by the defendant. On that act of alleged negligence was predicated the plaintiff’s contentions that the Killoren Elec. Co., even as an independent contractor, was liable to the plaintiff for the injury. ■ Since Killoren Elec. Co. was not in charge of the power line and installations at the time of the defendant’s injuries, Killoren Elec. Co. could not be charged with negligent /maintenance ; so the plaintiff, in order to recover, had to prove (even under his theory of the case) the negligent installation by Killoren Elec. Co. The failure to prove such point is fatal to the plaintiff’s case. Let us examine the evidence on that point:
Killoren Elec. Co. entered into a contract with the Ark. Valley Elec. Co-op. to construct the transmission line, install the transformer on the pole near the Hon home, and run the service line to the outside of the Hon home. This contract was completed by the Killoren Elec. Co.; and, on December 12,1942, J. D. Long, the inspector of the • Rural Electrification Administration, inspected the entire work done by the Killoren Elec. Co., and made a written report, which reads in part:
“The construction throughout the project is good . . . Transformers and services are properly and uniformly installed and the project throughout shows a good quality of workmanship.”
Hugh Lassiter, engineer for the Ark. Valley Elec. Co-op., testified that, on December 8, 1942, he inspected the entire work done by the Killoren Elec. Co., and advised the Arkansas Valley Elec. Co-op. that the work was complete in every' respect. Lassiter said that he personally inspected the transformer on the pole near the Hon home. He testified:
“Q. Was the transformer a standard transformer? A. Yes, sir. Q. Did it have a lightning arrester?' A. Yes, sir. Q. Was it a suitable lightning arrester? A. Yes, sir. Q. Who put it on there? A. It was put on by the manufacturer. Q. Was it a standard factory adjusted trans-. former? A. Yes, sir. Q. Did you inspect the grounds? A. Yes, sir. Q. Was that transformer grounded properly? A. Yes,, sir. Q. How? A. The ground wire from the transformer was attached to a rod driven in the ground. ,Q. Do you know of any way to .ground a transformer any more completely than that? A. No, sir.”
Based on these two inspection reports, the Ark. Valley Elec. Co-op., on March 17, 1943, accepted Killoren Elec. Co.’s work as complete, and Killoren Elec. Co. never had any further control over the transformer in question. Then, more than 14 months later, the plaintiff was injured. Was it through the fault of Killoren Elec. Co. that he was injured? The only testimony Hon offered to establish the negligence of the Killoren Elec. Co. in the installations of the transformer and lightning arrester was the evidence contained in the two items which we now list: <
(a) The witness Helms testified that several months after Hon was injured, Helms examined the transformer on the pole near the Hon home, and that, part of the lightning arrester was then missing from the transformer. But it will be noted that Helms testified as to the condition of the lightning arrester, which condition existed more than 15 months after Killoren Elec. Co. had surrendered all control over-’the transformer and lightning arrester. Helms’ statement as to conditions that existed in 1944 raises no presumption that those same conditions existed in 1943. In S. W. Gas & Elec. Co. v. May, 190 Ark. 279, 78 S. W. 2d 387, a witness named Cunningham testified as'to the condition of the electric wires two or three months after an injury occurred. Of that testimony, this court said:
“There was no evidence to show that the condition of the wires when observed by Cunningham was the same as when appellee’s accident occurred. This testimony was therefore incompetent. L. R. & F. S. R. Co. v. Eubanks, 48 Ark. 460, 3 S. W. 808, 3 A. S. R 245; St. L., I. M. & S. R. Co. v. Thurman, 110 Ark. 188, 161 S. W. 1054.” See, also, B. L. F. & E. v. Cole, 108 Ark. 527, 158 S. W. 153.
In 20 Am. Juris 208 the rule is stated:
“The presumption of the continued existence of ; . . a state of things is prospective, and not retrospective. Such a presumption never runs backward; the law does not presume, from proof of the existence of present conditions or facts, that the same facts or conditions had existed for ány length of time previously. ’ ’
So, the evidence of Helms as to the condition of the. transformer and lightning arrester in 1944 is no evidence as to its condition on March 1.7, 1943, when Killoren Elec. Co. surrendered all control to the Ark. Valley Elec. Co-op.
(b) The plaintiff was asked this question, and answered as follows:
“Q. Would you say, as far as you know, the transformer there on the pole on the day you got injured was in the same condition it was when left there by the Killoren Electric Company A. Yes, sir.”
The above question and answer were neither preceded," nor followed, by any evidence showing any examination that Hon ever made — prior to his injury — of the transformer and lightning arrester. In fact, there was no evidence that he had ever noticed these articles prior to his injury. So, the quoted question and answer do not constitute any substantial evidence going to show that a portion of the lightning arrester was actually omitted from the transformer at the time Killoren Elec. Co. surrendered all control of the line to the Ark. Valley Elec. Co-op. in March, 1943. This is true, because: (1) the witness did not so testify; (2) his knowledge of the transformer and lightning arrester was not shown; (3) his sufficient and continued observation of the pole and transformer was not shown. In the question, there appear the words, “as far as you now.” These words were discussed in the case of Wells v. Shipp, 1 Miss. 353. In that case a witness had testified that “as far as he knew” certain property belonged to the plaintiff. With the quoted words in the answer, the Mississippi Supreme Court said of the testimony of the witness: “This proves no fact negatively or affirmatively, and was wholly immaterial and, . . . properly rejected by the court.”
The answer of Hon that, “as far as he knew,” the transformer and lightning arrester were in the same condition when he =was hurt as when left by Killoren Elec. Co. was not a mere qualifying of his testimony with such words as “I think” or “I believe” to express indistinct observation or recollection (see annotation in 4 A. L. E. 979); but was a distinct limitation on the source and extent of his knowledge and amounted to no evidence on the point at issue. Any person^ if asked the same question, could — in all truth — have made the same answer as Hon made, and still have known nothing whatever about the conditions of the transformer and lightning arrester in March, 1943. In short, the question and answer did not rise to the level of evidence.
Aside from these items (a) and (b) as just discussed, the record is devoid of any attempt to prove that the Killoren Elec. Co. was negligent in the installation of the transformer and lightning arrester. These items (a) and (b), for the reasons we have shown, do not .constitute evidence of any such negligence; so no negligence was shown. Since the plaintiff’s case is dependent ,on proving that the defendant was guilty of negligence in the installation, and since no such evidence is in the record, it follows that the verdict of' the jury is without evidence to support it. Therefore the judgment of the circuit court is reversed, and the cause dismissed.
The Ark. Valley Elec. Co-op. could not have been held liable to Hon because of the rule announced in the decision of this court in the case of Ark. Valley Elec. Co-op. v. Elkins, 200 Ark. 883, 141 S. W. 2d 538. But see Act No. 362 of 1947. This act is mentioned only for information; obviously it has no effect on this present case. | [
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Holt, J.
November 4, 1935, Hugh Isbell, appellee’s husband, by appropriate proceedings, was declared mentally incompetent, and a guardian duly appointed. .Shelby E. Floyd is the guardian in succession.
August 28, 1945, appellee, Fay Isbell, sued her husband for divorce. The grounds alleged were cruel treat-' ment, or indignities, § 4381, Pope’s Digest, 5th subdivision. Summons was served on the guardian of Hugh Isbell, Shelby E. Floyd, September 19, 1945. September 7, 1945, Hugh Isbell executed a waiver of service and entry of appearance. A decree of divorce was granted Fay Isbell January 16, 1946, and certain orders were made relative to property rights and the custody of a minor child.
On April 6, 1946, the present suit was filed by Lee Wells, as next friend of Hugh Isbell, to vacate and set aside the divorce decree, supra, of January 16, 1946, on the ground, among others, that no process was ever served on him (Hugh Isbell) in the divorce action and that the trial court was without jurisdiction to render the decree of divorce against him. When the cause came on for trial the name of appellant, guardian, was substituted for that of Lee Wells as next friend.
From a decree denying appellant’s prayer to vacate the divorce decree, this appeal is prosecuted.
Appellant earnestly insists that the trial court was without jurisdiction to render the divorce decree of January 16, 1946, for the reason that no process was ever served on Hugh Isbell. We think appellant’s contention must be sustained.
It is undisputed that Hugh Isbell was declared mentally incompetent November 4, 1935, and was under guardianship at the time the divorce suit, supra, was filed in August, 1945, and the decree rendered January 16,1946. It is also undisputed that no process was ever served on Hugh Isbell in the divorce action^ supra. He did, however, execute a waiver and entry of appearance.
Section 1371 of Pope’s Digest provides in part: “Where the defendant is a person judicially found to be of unsound mind, the service must be upon him and upon his guardian; etc. ’ ’ This provision of the statute is mandatory that service “must” be both upon Hugh Isbell and his guardian. We so held in the recent case of Wilder v. Wilder, 208 Ark. 521, 186 S. W. 2d 933. There we said: ‘ ‘ So far as we have been able to find this court has never construed said § 1371, (Pope’s Digest), but we have, in a number of cases, construed § 1370, relating to service upon infants and which section is quite similar to or substantially the same as § 1371. It is the rule in this court that there can be no valid decree against an infant without personal service on the infant, even though he appears and defends by his guardian. . . . The same holds true as to defense by insane persons.”
In 28 Amer. Jur., p. 743, § 112, the general ruléis announced as follows: “Where the insane person has' been so adjudicated, and a guardian appointed for him, it is generally provided that service is to be made on both the committee or guardian and the incompetent. ’ ’
In this case, Hugh Isbell could neither acknowledge nor waive service of process upon him.
This was the effect of the holding of this court in Moore v. Wilson, 180 Ark. 41, 20 S. W. 2d 310. While the court was dealing there with the service of process on an infant, the principle announced applies with equal force here where we. are dealing with one who is mentally incompetent. In the Moore-Wilson case, we quoted with approval the rule announced in 14 R. O. L. 284, as follows : “An infant can neither acknowledge nor waive the regular service of process upon him, though in some instances a regular service of summons slightly irregular in form was held to be a substantial compliance with the statute, and sufficient to give jurisdiction. . . . It is held in most of the cases that the lack of service of (on) the infant is a fatal, because jurisdictional, defect, and cannot be cured by the appointment of a guardian ad litem and his making actual defense for the infant; and this ruling seems consistent with the lack of power on the part of the guardian to bind the infant by his admissions or stipulations.”
Appellee’s petition for reasonable attorney’s fee and suit money is denied for the reason that the present action is not the kind of action contemplated under' § 4388, Pope’s Digest, as amended by Act 25 of the General Assembly of 1941, p. 54, which reads as follows: “During the pendency of an action for divorce or alimony, or during the pendency of an action involving the care and/or maintenance of the children, the court may allow the wife maintenance for herself and/or children, as the case may be, and a reasonable fee for her attorneys, and enforce the payment of the same by orders and execution and proceedings as in cases of contempt.”
The present suit is not one for divorce, alimony or . one involving the care or maintenance of children, but is an action to vacate a divorce decree, and is not governed by the quoted section of the statute.
Accordingly, the decree is reversed and the cause remanded with directions to vacate the divorce decree of January 16,1946, and for further proceedings consistent with this opinion. | [
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Gtrieein Smith, Chief Justice.
Appellee has moved this Court to strike from the hill of exceptions appellants ’ motion for a new trial, made orally, and subsequently reduced to writing, on the ground that it was not filed in time. Trial with judgment was concluded April 17,1946, at which time a docket notation is that motion for a new trial was made and overruled. The defendants were granted an appeal, with 120 days for bill of exceptions. Appellants filed their written motion August 26, 1946. It was n'ot presented to the Judge. The Clerk’s indorsement shows filing as of April 17th. August 28th appellee moved to strike. Court convened September 13th to hear the motion, and after argument entered an order overruling appellee’s prayer.
A majority of the Court is of opinion that appellee is without standing here because he himself failed to ask for a new trial on the issue touching the trial Court’s refusal to strike the motion. Martin v. Pierce Petroleum Corporation, 174 Ark. 1161, 298 S. W. 494.
Henry Roth, one of the defendants below and an appellant here, was local manager in Polk County for the Joslyn Company, a foreign corporation with its home office in Chicago. Small sawmills were owned and operated, in consequence of which lumber was delivered to yards in Mena. White, the appellee here, supervised one of the mills until August 24, 1945, and was compensated $9 per thousand board feet. The lumber was cut and stacked near the White-managed mill, where it was picked up by trucks operated by appellants and taken to Mena. All labor incident to mill operations was paid for by White. It is not clear whether at times some of the mill workers assisted in loading lumber onto the trucks. Appellee argues that all loading was done by the Joslyn Company. Inferences to be drawn from appellants’ contentions are that in some manner White was responsible for the way trucks were loaded.
This appeal is from a judgment for $3,225 based on a jury’s verdict that Roth, in his capacity as general manager, accused White of short-stacking the lumber; that is, it was placed on the trucks in such manner that “dead spaces ’ ’ were left in a way not noticeable if the load were only casually examined; hence, when the usual method of measuring length, breadth, and depth was applied in the process of determining the number of board feet carried, an erroneous result attended; in consequence of which White was overpaid.
Specifically, it is charged that on the occasion complained of Roth made an inspection of the mill, accompanied by a “trouble-shooter” who had been sent as assistant. Roth’s testimony is that the mill’s production was not satisfactory because, inferentially, the logs supplied, and resulting lumber, were so far out of balance as to indicate a diversion.
On the day in question Carl Howard was hauling from the rural mill to Joslyn’s Mena Yards. Checking was done “near the cemetery on the Dallas Road.” White’s version of the transaction is that Roth (in the presence of Howard and other mill workers) asserted he had caught him “short-stacking 'in order to get more scale. ’ ’ To this statement Roth is alleged to have added: “You are running it and are bound to be doing it. We will shut down and get a new crew.” Orders were given to discontinue operations.
On cross-examination White reinforced his complaint of ill use by testifying that Both said, “You are stealing lumber scale, and I cannot use you any longer. ’ ’ Although Roth denied haying used the word “steal,” or a term of similar import, and insists that his entire conversation was directed to the purpose of calling attention to results from which suspicion of shortage might arise, there was sufficient proof to go to the jury; and whether Roth did, or did not, say the things he is now confronted with, witnesses were supplied by White who corroborated bis assertions that the slanderous expressions not only were used August 24th, but were repeated when mill workers went to Joslyn’s office the following Monday to inquire why operations had been discontinued.
In short, whether Roth has been quoted correctly or incorrectly, there was substantial testimony upon which liability could be predicated, and in that respect appellants’ argument that there should have been a directed verdict for the defendants cannot prevail; nor, in the light of testimony given by witnesses for the plaintiff, can it be saidas a matter of law that the communication —when coupled with an accusation of theft — was privileged, or qualifiedly so. It was not a part of Roth’s duty to inform White’s employes of the accuser’s beliefs, expressed in the manner testified to. The applicable rule was discussed by Mr. Justice Frauenthal in Bohlinger v. Germania Life Insurance Co., 100 Ark. 477, 140 S. W. 257, 36 L. R. A., N. S. 449, Ann. Cas. 1913C, 613. See also Polk v. Missouri Pacific Railroad Co., et al., 156 Ark 84, 245 S. W. 186, 29 A. L. R. 220. In the Polk case the railroad company’s superintendent said in the presence of certain persons who testified: “Mr. Polk, are you prepared to reimburse the company for the timé you defrauded them out of? Unless they are reimbursed you stand liable to criminal prosecution by the company. ’ ’ The trial court’s directed verdict for the defendant was affirmed on appeal. Contra, see Sinclair Refining Com pany v. Fuller, 190 Ark. 426, 79 S. W. 2d 736; Hathcox v. Stewart, 178 Ark. 235, 10 S. W. 2d 362. Other cases are referred to in the decisions cited.
Was the verdict for an excessive amount? The Joslyn Company argues that' even though Roth be liable, the corporation as such had nothing to do with the immediate transaction; that Roth was not authorized to make charges such as we are dealing with, and if he did so the action was not within the scope of his agency or representative capacity. The position is not tenable. Roth was vice-principal in so far as dealing with the product of White’s mill was concerned.
It is conceded that the inspection August 24th, was to ascertain why losses should occur. It is true Roth testified he did not accuse White of stealing, nor in express words say the company was being"“short-stacked”; but against this evidence there are appellee’s witnesses who say Roth used the slanderous language, and that he further said White’s employes participated in loading the trucks and all must have known of and taken part in the deceit. In the light of Roth’s position and the duties assigned him, his actions in commenting upon activities of the kind in question could not well be disassociated from his duty to the employer. Joslyn must "answer to the extent of any injury inflicted by the charges the jury found he had made. •
It does not follow, however, that appellee has been damaged to the extent of $3,225; on the contrary, there is nothing substantial to show that any (other than the plaintiff) considered the injury as one affecting White’s standing or reputation in the community, "or elsewhere. In short, assuming that Roth went farther in his characterization than the facts warranted, still the disagreement and its incidents were the result of impulses arising from what appeared on the one hand to be deliberate infractions designed to irregularly increase appellee’s income, and on the other hand Roth’s condemnation of the practices he believed were being engaged in. It is significant that appellee, on direct examination, did not say that Roth, ixi precise language, accused him of stealing. Referring to an alleged conversation “in the back of the mill” before the defamatory language is supposed to have been used, White was asked:
‘ ‘ Did Henry Roth make any statements to you in the presexxce of others, and, if so, who were the others?” Answer: “Carl Howard, Randolph Jenkins, ‘Dad’ H. L. Holsom, Herman Holsom, Louis Holsom, Bill Marshall, Arthur Holsom, Bud Hogan, W. S. Marshall, Noah Highland, and Sam Lee.” Question: “Now, in the presence of these men, and in your presence, what statements did Roth make at that time?” Answer: “Well, he said, ‘I caught the lumber hauler short-stacking lumber in order to get more lumber scale; and you are funning it, and you are bound to be doing it.’ Then he said, ‘We will shut this down and get a new crew’.”
On cross-examination this testimony was amplified by the assertion, “He said I was stealing lumber scale. Then he said he couldn’t use me any more.”
It may be deduced from the evidence that the first conversation quoted by White, wherein the word “steal” was not used, and the assertions on cross-examination regarding what was said, occurred at different places. But, in any event, the charge that White was stealing had-reference to short-stacking and not to physical appropriation of lumber belonging to the company. All of the circumstances contradict the idea that Roth’s actions were malicious.
In Murray v. Galbraith, 86 Ark. 50, 109 S. W. 1011, 126 Am. St. Rep. 1078, a decision by the Supreme Court of New York was quoted with approval, contaixxing this statement: “Where a libelous article is published before the commencement of an action, a separate action cannot be maintained on such republication. The repetition of the publication may be pleaded and shown on the trial as bearing upon the malice of the defendant and' the extent of the injury and damage to the plaintiff. ’ ’ In writing the Murray-G-albraith opinion Chief Justice Hill said: “The law seems well settled that a repetition of an identical libel is not a new cause of action, but an aggravation of the preexisting cause, and is always competent evidence tending to prove malice. ’ ’
White testified that the accusations “hurt his feelings, ’ ’ and that he had been refused employment by mills and lumbermen. On behalf of appellants there were witnesses who testified that the statements imputed to Roth did not in any manner influence them against White, and if there had been denial of employment it was because he was not needed.
In testifying regarding Roths ’ accusation, White was asked: “All Roth told you was that he had discovered that lumber coming from your mill into the Mena yard .had been short-stacked, and therefore the company was paying you for lumber you hadn’t been sending?” Answer: “No, sir.” Question: “What did he tell you?” Answer: “He said I was bound to know about it because I was running the job.” Question: “If one of those' truck loads had been short-stacked you would be paid for that, wouldn’t you?” Answer: “Yes, sir.” Question: “Then, if that is true, you had been receiving money you hadn’t earned: is that right ? ’ ’ Answer: ‘ ‘ That’s right. ’ ’
After testifying that he had applied to Mena Lumber Company (subsequent to August 24th) for work and that the manager, Yic. Crane, “didn’t give him a job,” White was asked: “ What did he tell you ? ” Answer: “ He told me he couldn’t use me.” Question: “Did he tell you why?” Answer: “No, sir.” And yet, farther on in the record, and while still discussing Crane’s refusal to employ him, White testified that Crane told him the Mena Lumber Company could not employ him “until I got this straightened up. ’ ’
In response to other questions White unhesitatingly conceded that if the lumber had been short-stacked as alleged, he would have received more than a just credit.
It is quite clear, therefore, that even under appellee’s testimony there was no showing of willful, wanton, or reckless conduct. It follows that Instruction No. 7 ought not to have been given. By .it the jury was told that if it should find the slanderous words alleged in the complaint were spoken wantonly, recklessly, “and with an utter disregard as to whether they were true or false, . . . the plaintiff is entitled to recover exemplary and also compensatory damages.” Substantially the same statement of law was made in Instruction No. 10. Both were objected to, although not specifically. The jury’s finding is merely “in favor of the plaintiff,” without indicating whether punitive damages were added to a sum allowed as compensation.
Our conclusion is that the instructions were of a character to warrant the jury in believing it had at least been impliedly told that punitive or exemplary damages could be awarded. The amount of the verdict indicates this was done.
This error can be cured by a deduction. If a remittitur of $2,225 is entered within fifteen days, the judgment will be affirmed for $1,000; otherwise it will be reversed and the cause remanded for a new trial.
Justice Mill wee' not participating.
Dec. 23, 1946, this Court made the following order: “8113_ Joslyn Mfg. & Supply Co., et al. v. Kermit F. White, from Polk Circuit: Appellee’s motion to strike bill of exceptions is passed for consideration when appeal is submitted. The Chief Justice thinks the motion should be granted”.
Roth testified that when he went to the mill Aug. 24 he found “his” (presumptively White’s) employes stacking lumber on a truck, and that it was being stacked so as to leave a “hole” immediately back of the cab; that a dimension measurement of this load would have shown “more lumber scale than was actually on the truck”.
See Murray v. Galbraith, 95 Ark. 199, 128 S. W. 1047. | [
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Robins, J.
D. E. Armstrong and wife, owners of certain lands in Union county, on April 27,1920, executed to Harley R. Hinton and P. R. Mattocks an oil and gas lease thereon. The lease was in ordinary form and reserved to the lessors an undivided one-eighth royalty.
Hinton and Mattocks, by written instrument dated March 8, 1921, assigned an undivided one-half interest in this lease to White Oil Corporation. The consideration of this assignment was $686,250, of which $274,500 was paid in cash, $274,500 was represented by notes (all of which have been paid) executed by White Oil Corporation to Hinton and Mattocks, and the balance of $137,250 was, under the terms of the assignment, to be paid if and when seven-eighths of the total production of oil from the land amounted to 900,000 barrels. This final installment of $137,250 is the subject matter of the instant case.
White Oil Corporation assigned this lease to United Central Oil Corporation on December 27, 1923, and in the assignment it was specifically provided that the latter corporation assumed the obligations of the former as to the lease. In 1925, United Central Oil Corporation changed its corporate name to Crown Central Petroleum Corporation.
On July 26,1926, Crown Central Petroleum Corporation assigned its interest in said lease to The Texas Company.
Crown Central Petroleum Corporation, which was a Delaware Corporation, on September 20, 1937, became, under a consolidation agreement, Crown Central Petroleum Corporation of Maryland.
For brevity White Oil Corporation will be hereinafter referred to as “White,” United Central Oil Corporation as “United,” Crown Central Petroleum Corporation of Delaware as “Crown Central,” Crown Central Petroleum Corporation of Maryland as “Crown,” and The Texas Company as “Texas.”
The exact date when oil production from the leased lands began is not shown, but a letter written by an officer of “Crown Central,” dated September 1, 1926, to ‘ ‘ Texas ’ ’ stated that seven-eighths of the oil produced from these lands up to July 26, 1926, the date of the assignment by1 “Crown Central” to “Texas,” amounted to 473,335 barrels.
It is admitted by “Texas” that from the time it took over the lease it produced therefrom 426,665 barrels of oil, up to sometime (exact date not shown in testimony) in September, 1940; so that on that date the 900,-000 barrel production on the seven-eighths working interest was reached.
This suit was filed on March 27, 1941, against “Crown” and “Texas” by appellees, who had acquired the interests of Harley E. Hinton and P. E. Mattocks in the lease herein involved. In their complaint appellees set out their respective interests, alleged that seven-eighths of the total production of oil from the land covered by the assigned lease had already amounted to 900,000 barrels of oil and that therefore the balance of the consideration, namely $137,250, had become due. Prayer of appellees ’ complaint was for judgment against “Crown” and “Texas” for $137,250 and interest and for foreclosure of their lien against the one-half interest in said oil and gas lease.
After the filing of certain demurrers and motions not necessary to catalogue here “Crown” and “Texas” answered. Each of them denied any liability and each denied that production of 900,000 barrels of oil on the leasehold had been reached. A plea of limitation was asserted by each of them and in the answer of “Crown” there was a cross complaint against “Texas,” in which it was prayed that if any judgment for appellees should go against “Crown,” “Crown” might recover all or a proportionate part thereof from “Texas.”
The lower court found that the 900,000-barrel production of oil, required to mature the final installment of purchase money under the terms of the assignment of the one-half interest in the lease to “White,” had been attained and rendered judgment against “Crown” and “Texas” for $137,250,' with interest at the rate of six per cent per annum from October 1, 1940, until paid.
The lower court made no formal order on the cross complaint of “Crown” against “Texas.” As to this phase of the case the decree recités: “The court declines to find for cross complainant over against The Texas Company for the full amount of the obligation sued on. The question as to whether the amount of the judgment and decree in favor of plaintiffs should be prorated between the two defendants on some equitable basis, is not presented to the court and no finding is made thereon. ’ ’
Both “Crown” and “Texas” have appealed, and “Crown” has cross appealed against “Texas.” Their contentions and arguments here are addressed to these questions:
I. Whether the evidence was sufficient, as against both appellants, to show that the 900,000-barrel production had been attained.
II. Whether, if the required production was shown, liability in favor of appellees against “Crown” was thereby established.
TTT. Whether, if the required production was shown, liability in favor of appellees against “Texas” was proved.
IV. Whether liability as between “Crown” and “Texas” was or should have been established by the decree.
I.
In the same paragraph of the assignment from Hinton and Mattocks to “White” that contains provision for payment of the final installment of $137,250, the subject matter of this litigation, this language appears: ‘ ‘ The books and other papers relating to said operation and development shall be open to the reasonable inspection and examination of parties of the first part [Hinton and Mattocks].”
At the beginning of the trial appellees moved that “Crown” be required to “produce the record of oil produced from the Armstrong lease involved in this suit during the period of time when oil was produced therefrom by the United Central Oil Corporation, Crown Central Petroleum Corporation of Delaware and Crown Central Petroleum Corporation of Maryland.”
To this motion “Crown” responded that it had made a diligent search for the records of United Central Oil Corporation and Crown Central Petroleum Corporation of Delaware pertaining to operations on the lease involved and had been unable to find same. It further averred that Crown Central Petroleum Corporation of Maryland had never had anything to do with operations on this lease, and that while “Crown Central” had transferred the leáse to “Texas” in 1926, its consolidation with “Crown” of Maryland did not occur until in 1937. Several employees of “Crown” testified in support of the allegations in this response, and appellees, being unable to show that “Crown” had any of these records, the motion was overruled.
To sustain their contention that the final installment due them had been matured appellees introduced as a witness A. B. Carmody, president of appellee, North Central Texas Oil Company, which had purchased 32/64ths of the interest owned by Hinton and Mattocks. Mr. Carmody testified that during the time operations on the lease were being carried on by “White,” “United,” and “Crown Central,” monthly statements, showing how much oil had been run were furnished to him, and that similar statements were furnished after “Texas” took over the lease. He stated that on November 18, 1940, he wrote “Texas” a letter (copy of which he introduced) as follows: “D. E. Armstrong Lease . . . Your production figures indicate that the above lease has produced to the working interest (%ths) 901,-680 barrels through October 31st, 1940. Under the terms of the above lease was included a payment to this Com-' pany of $68,625 payable as/ if and when the working interest (%ths) production equalled 900,000 barrels. We shall appreciate having your check for the above payment.”
The letter he received, in reply to his, from “Texas,” which was introduced in evidence by Mr. Carmody, was as follows: “We acknowledge receipt of your letter of November 18th. The production from the Armstrong lease is now in excess of 900,000 barrels for the %ths working interest. Our company does not feel it is personally liable or responsible for the indebtedness and we suggest that you look to the Crown Central Petroleum Corporation, whose address is Pasadena, Texas (suburb of Houston, Texas) for the payment to which you refer.”
There was also introduced in evidence a letter written by the vice-president of “Crown Central” on September 1, 1926, to “Texas,” in answer to an inquiry by “Texas” as to production from the Armstrong lease, which was as follows: ‘ ‘ This will acknowledge your letter of August 27th re the above subject and in reply to same wish to state that as of 7 a.-m., July 26,1926, [date of assignment from “Crown” to “Texas”] % of the total production from this lease had amounted to 473,335 barrels.”
J. C. Brooks, called as a witness by appellees, testified that he had been employed by “Texas” for 25 years and had been connected with the production accounting department since 1930, and that he was familiar with the records of production of the Armstrong lease. Mr. Brooks explained in detail the manner in which these records were made up from “run tickets” signed by representa tives of the pipe line company. He testified that these records showed a prodnction'by “Texas” from the working interest on the Armstrong lease- of 474,954 barrels up to December 31,1945, that they had obtained information as to the production prior to July 26, 1926, when “Texas” took over the lease, and that such production, according to this information, was 473,335 barrels; and that, if this information was correct, “the Armstrong lease had produced 900,000 barrels for the working interest only, the date was September, 1940. ’ ’ This witness introduced in evidence a memorandum attached to his record, which was as follows: “Statement of Gross (% WI) Production on Armstrong Lease — "When Production aggregates 900,000 Barrels Payment of $137,250 is to be made to P. R. Mattocks and N. C. T. Oil Co.” This memorandum was followed by a detailed record of the production by dates of “run tickets.”
In the face of this evidence, it is argued by ‘‘ Crown” and “Texas” that the production of 900,000 barrels of oil from the working interest involved was not shown by competent testimony.
“Crown” contends that the letter written by “Texas” admitting attainment of the required production was-not binding on or admissible against “Crown.” “Texas” urges that its letter was necessarily based on information, as to oil production from the lease prior to ‘ ‘ Texas ’ ’ taking it over, contained in the letter written to “Texas” by “Crown,” and that this letter being “hearsay” as to “Texas,” the admissions based thereon contained in the letter written by “Texas” is not binding even on “Texas.” It is also argued that the testimony as to what the books of “Texas” showed as to the oil production was not competent because the different persons who made the entries were not called as witnesses.
We do not" deem it necessary to pass on these technical objections, because under the facts shown here the burden of proof was on appellants to show what the oil production from the lease was. The assignment under which both of them acquired their rights clearly showed that all parties contemplated that books reflecting the “oil run” should be kept by the producer and that these books should be open to inspection by the appellees and their predecessors in title. No one but the producer could possibly know the amount of oil production. The principle applicable here was thus stated by Mr. Wharton (Evidence, § 367): “When a fact is peculiarly within the knowledge of a party, the burden is on him to prove such fact, whether the proposition be affirmative or negative.’ Hopper v. State, 19 Ark. 143; William v. The State, 35 Ark. 430; Fowler v. The State of Arkansas, 39 Ark. 209; City of Fort Smith v. Dodson, 51 Ark. 447, 11 S. W. 687, 1 L. R. A. 252, 14 Am. St. Rep. 62.
' Since the appellants had the onus at the trial to show what the true amount of the oil production was, they were not in a position, in a court of equity, to challenge facts reflected by their own admissions in writing and by the books of either of them. There was abundant proof to justify the findings of the lower court that the 900,000 barrels of oil had been-produced from the %ths interest in the lease involved.
II.
On behalf of “Crown” it is argued that since there was nothing in the assignment of the lease or in the lease itself which obligated “White” or its assignees to drill on the land embraced in the assigned lease, there was no obligation upon “Crown” to pay the delayed consideration sued for herein. But certainly under the original assignment there would have been an obligation on “White” to pay this installment if “White” had been operating the lease when the required amount of production was reached. Neither “White” nor any subsequent assignee could avoid this liability by simply transferring the lease to some one else. If this liability could be so evaded, a solvent producer working a lease under an agreement of the kind involved here, after producing 890,000 barrels might assign the lease to an insolvent person or corporation and, after the production of 900,-000 barrels of oil was reached, defeat entirely the collection of the final installment.
“White,” by accepting the assignment, obligated itself to pay the final installment of the consideration of the assignment. “United” specifically assumed the obligations of “White.” By operation of law the liabilities of “United” were finally cast upon “Crown.” It follows that “Crown,” as far as the appellees are concerned, is liable for the $137,250 installment sued for herein.
HI.
“Texas” argues that it was not a party to the original assignment and that it has never assumed or agreed, to pay the indebtedness sued on here. The assignment to “White” was recorded. “Texas” therefore took the interest of “Crown” with notice that this obligation would become due when the required amount of production was reached.
A somewhat similar question was involved in the case bf Graysonia-Nashville Lumber Co. v. Saline Development Co., 118 Ark. 192, 176 S. W. 129. In that case it appeared that Saline Development Company had sold and conveyed to Nashville Lumber Company the merchantable timber on a large tract in Howard county. The consideration recited in the contract, which was referred to in the deed, was the payment of $5,298 which represented a calculation of $2 per thousand on an estimated 2,625,000 feet of timber, and it was provided in the contract that the purchaser should pay the further sum of $2 per thousand for all timber, in excess of said estimate, as same was cut. The Nashville Lumber Company sold the timber to Grraysonia-Nashville Lumber Company, and, upon its refusal to pay the company for the amount of timber cut in excess of 2,623,000 feet, Saline Development Company sued and recovered judgment therefor in the chancery court. On appeal to this court, the decree of the lower court was affirmed, it being held that the Oraysonia-Nashville Lumber Company was bound by the provisions in the contract between its vendor and Saline Development Company and had assumed the contingent balance of the purchase money.
Likewise, dealing with the liability of an assignee of an oil lease, we said, in the case of Thurman v. Moore, 178 Ark. 885, 13 S. W. 2d 22: ‘The assignee simply stepped into the shoes of the lessee. He took his assignment subject to the payment of the purchase- price out of the oil produced.’
We held in Harvey v. Marr, 173 Ark. 880, 293 S. W. 1005, (headnote 2): “The purchaser of an interest in an oil lease, who collected oil as provided for in the contract and received the benefits thereof, became liable according to its provisions.”
In support of the contention that “Texas” is liable to - appellees herein it is argued that the agreement to pay the final installment of purchase money, set forth in the assignment from appellees’ predecessors in title to “White,” is in the nature of a covenant running with the lease. Whether this contention is well founded we do not find it necessary to decide. “Texas” took over this assignment and, according to its own admission, produced nearly half a million barrels of oil therefrom, and thereby caused the final installment of purchase money to mature. Since “Texas” accepted the benefits accruing under the assignment, it must bear the burdens thereof. Atlantic & North Carolina Railroad Company v. Atlantic & North Carolina Co., 147 N. C. 368, 23 L. R. A., N. S. 223, 125 Am. St. Rep. 550, 15 Ann. Cas. 363, 61 S. E. 185; Union Pacific Railway Company v. Douglas County Bank, 42 Neb. 469, 60 N. W. 886; Kirby Lumber Company v. R. L. Lumber Company (Tex. Civ. Ap.), 279 S. W. 546; South v. Williamson Dealers Corporation, 298 Ky. 557, 183 S. W. 2d 634; C. V. Hill & Company v. Hadden’s Grocery, 299 Ky. 419, 185 S. W. 2d 681.
Furthermore, in the construction of the assignments herein involved, we have a right to resort to the construction the parties themselves have placed upon these agreements. It is a familiar rule that, when construing a contract, meaning of which is in doubt, a court may consider how the parties themselves have — by their words and acts — construed it. Chief Justice Hill, in the case of Kahn v. Metz, 88 Ark. 363, 114 S. W. 911, quoted with approval this language of Lord Chancellor Sugden: “ ‘Tell me what you have done under a deed, and I will tell you what that deed means’.” Other cases in which “practical construction” of a contract, as shown by the acts of the parties thereunder is upheld, are: Edgar Lumber Company v. Cornie Stave Company, 95 Ark. 449, 130 S. W. 452; Keopple v. National Wagonstock Company, 104 Ark. 466, 149 S. W. 75; Continental Insurance Company v. Harris, 190 Ark. 1110, 82 S. W. 2d 841.
■ The undisputed evidence shows that as soon as “Texas” acquired its interest in this lease it wrote to “Crown Central” and ascertained the amount of production up to the time “Crown Central” assigned to “Texas.” It was also shown that one of the production officials of “Texas” kept on his desk a memorandum calling attention to the fact that when 900,000 bairels were produced from the %ths working interest under this lease the $137,250 payment would be due. If “Texas” had taken this assignment from “Crown Central” with the understanding or belief that no liability for this final installment would rest on “Texas,” why would the amount of production up to the time “Crown Central” assigned have been of such importance to “Texas” as to require it to ascertain such production? And, if ‘ ‘Texas’’ had no obligation as to this installment, there could have been no valid reason for the memorandum as to the liability being kept on the production manager’s desk. All these circumstances, about which, there is no dispute whatever in the testimony, point strongly to the conclusion that “Texas” considered itself liable under the provisions of the assignment through which it claimed title.
“Texas” took over this lease with notice of the contingent liability for the final installment. It operated the lease, received the benefits conferred by the assignment to “White” and its production actually matured the final installment by producing the nine hundred thousandth barrel of oil from the working interest. It mav not avoid liability for this Dayment.
IV.
“Texas” asked no relief as against “Crown.” “Crown,” in its cross complaint, prayed judgment against “Texas” for any amount that “Crown” might be compelled to pay appellees.
The lower court apparently determined that the question of the liability of appellants inter sese was not properly before it. While in the findings the court stated that it would not grant “Crown” “in full” the relief it prayed against “Texas,” there was in the ordering part of the decree no disposition of “Crown’s” cross complaint against “Texas.” The lower court might have considered that, “Crown” not yet having paid appellees anything,- its cross complaint was premature. We treat the decree below as not having in any manner disposed of the rights and liabilities of “Crown”'and “Texas” as between themsélves, and, so that this entire branch of the controversy may be left open for future settlement or adjudication, we modify the decree of the lower court so as to show that the cross complaint of “Crown” against “Texas” is dismissed without prejujdice. With this modification, the decree appealed from is affirmed.
The Chief Justice, Mr. Justice McFaddin and Mr. Justice Millwee dissent as to that part of the opinion which authorizes judgment against The Texas Company for any amount in excess of $65,066.42 and interest. | [
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Robins, J.
On April 28, 1942, appellant and appellees entered into the following contract:
"Know All Men By These Presents:
‘ ‘ That Charley Meux, first party and J. F. Hawkins and Ludella Hawkins, his wife, second party, do hereby contract as follows: The first party agrees to sell and the second party agrees to buy from the first party, the following described real estate situate in the City of Blytheville, Arkansas, and under the terms and condition hereinafter set forth.
‘ ‘ Property
"Lot Twelve (12) in Block Two (2) of the West End Subdivision of Town of Blytheville.
‘ Terms
"The second party pays $50 cash in hand, the receipt of which is hereby acknowledged, by the first party, and commencing June 1,1942, the sum of Six Dollars and Six Dollars on the first day of each succeeding month until the sum of $250 is paid, together with 10 percent interest from date until paid. The second party as part of the consideration for said property is to keep all taxes and assessments paid and the insurance on said property in favor of the first party, sufficient to protect him against loss on said property.
"The second party is to keep said property in good repair, natural wear and tear excepted, and when the conditions above set forth are complied with the first party will execute and deliver to the second party a good and sufficient deed to said real estáte, warranting the title of said property in the second party. First, party to pay improvement district assessments.
“Time is the essence of this contract and should the second party fail or refuse to comply with same, then all rights of the second party cease and become null and void in this agreement. •
£ £ In witness whereof we have hereunto set our hands and seals this April 28th, 1942.
“/s/ Chas. Muex
Evelyn Muex
First Party
,“/s/ J. F. Hawkins
Ludella Hawkins
Second Party”
This suit was filed on February 26, 1944, by appellants against appellees. In their complaint appellants alleged that appellees had failed to comply with any of the terms of said contract, and they prayed that all rights of appellees by reason of said contract be foreclosed and that the contract be canceled and appellants be placed in possession of the land.
The answer contained a denial that appellees had failed to comply with any of the terms thereof, and alleged that appellees had made all payments due up to December 1. 1943, and had on that date tendered the payment due, which tender had been refused by appellants; and they offered to pay all balance due, with interest. By way of cross-complaint appellees set up that prior to the sale to appellees, appellants had permitted the property to forfeit for the taxes for 1937, and that, in order to protect themselves, appellees had been forced to purchase the property from the state, and they prayed judgment against appellants for expense of obtaining the state’s title.
Appellants contended in the lowér court and urge here that under the contract appellees were required to pay each month, not only $6, but also the interest thereon, and that, since the appellees had paid or tendered only $G each month, there had been snch a failure on the part of appellees to comply with the contract as to work a forfeiture thereof.
Appellees interpreted the contract as requiring a payment each month of $6, which included interest, until the entire amount of purchase money was paid — that interest accruing up to maturity of each payment was to be deducted from the $6 payment each month, and the balance of said payment, after such deduction, was to be applied on the principal debt until it was discharged.
It was not seriously contended by appellants, that appellees had not promptly made, up to the time the dispute arose, the six dollar monthly payments, or that, if not made punctually, the payments were nevertheless accepted by appellants under such circumstances as estopped them from invoking a forfeiture. But the most serious dispute arose from the different constructions placed by the parties on the provisions of the contract relating to interest.
The lower court upheld appellees’ interpretation of the contract, and by a calculation, the correctness of which is not challenged, found that the sum of $183.29, which appellees tendered into court, was the balance due from appellees to appellants under the terms of the contract. Finding that there had been no breach of the contract by appellees, the lower court entered decree directing that the sum tendered be-paid to appellants upon execution of deed.by appellants conveying the property to appellees, dismissed appellants’ complaint for want of equity and rendered judgment against them for costs.
From this decree appellants prosecute this appeal.
The lower court correctly construed the contract. To give the contract the meaning contended for by appellants it would be necessary to transpose the phrase “together with 10 per cent interest from date until paid” from the position in the sentence where the parties placed it and put it immediately following the words “Six Dollars and Six dollars. ’ ’ The language of the contract being plain and unambiguous courts have no power, in construing it, to change the arrangement of its words. Dealing with a similiar question, Judge Wood, in the case of Clouston v. Maingault, 105 Ark. 213, 150 S. W. 858, said: “The court can neither eliminate nor supply nor rearrange the words and sentences in the unambiguous contract, but must construe it as the parties have made it.”
The decree of the lower court is affirmed. | [
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Ed. F. MoFaddin, Justice.
A suit filed in the chancery court — by the Bank of Wilson to recover judgment against appellant and appellee, and to foreclose a crop and chattel mortgage — has been converted into a damage suit between the appellant and the appellee who were defendants below; and thus reaches us on appeal and cross-appeal: appellant claiming the damages (awarded by the chancery court) are too small, and appellee claiming there should be no damages. The facts are complicated, and the evidence is in hopeless conflict.
FACTS
On March 6, 1944, the appellee, Lee Wilson & Company (a trust estate acting by J. H. Crain, trustee), and hereinafter referred to as “ Wilson, ’ ’ entered into' a lease agreement with appellant, W. I. Gibson, as follows:
“Lease Agreement
“This lease agreement made and entered into by and between Lee Wilson & Company,' of Wilson, Arkansas, lessor, and W. I. Gibson of Cash, Arkansas, lessee.
“1. Lessor hereby leases unto the lessee rice land located in Craighead county, Arkansas, for a term beginning January 1, 1944, and ending December 31, 1944, for agricultural purposes only. The terms of rental shall be as follows:
“2. Lessor agrees to furnish 200 acres of land suitable for growing rice, described as follows: East 200 acres of EV2 section 18-13-2.
‘ ‘ 3. Lessor agrees to equip said land with a suitable irrigation plant, either electric or power unit, said plant to have sufficient capacity to properly irrigate the above stated acreage of rice.
‘ ‘ 4. Lessor agrees to furnish 50 per cent, the cost of electricity or fuel oil for irrigation purposes. Lessee to furnish all the rest necessary.
‘ ‘ 5. Lessor agrees to furnish all the cost of seed rice and will secure the rice seed to be planted on the above described land.
“6. Lessee agrees to furnish all labor, machinery, oil, and twine to plant, cultivate, harvest and thresh said rice crop and all other labor necessary to produce the crop. Lessor agrees to pay one-half the cost of rental on thresher and agrees to buy his own sacks if that becomes necessary.
‘ ‘ 7. Lessor shall receive one-half of all crops grown on the above described land, and lessee shall receive the other one-half.
“8. Lessee will, at all times, expedite his farming operations and the planting, cultivating, irrigating and harvesting of crops as to reasonably insure proper re- suits; and should he fail or refuse to properly perform the duties at the proper times, or fail or refuse to comply with the other provisions of this agreement, then first party shall have the right to take immediate possession of said lands and premises, and to plant, cultivate, irrigate and harvest the crops, and do such other work in connection therewith as lessor may deem proper. All work done by lessor shall be a direct charge against the one-half interest ordinarily due lessee.
‘ ‘ 9. Lessor shall at all times have ingress and egress over the above described premises.
“10. Lessee agrees to deliver after threshing, to the nearest shipping point or mill at Jonesboro, Arkansas, (or elevator or granary in the event an elevator or granary is installed on or near the above described lands), rice grown on the above described lands and belonging to lessor, and also that on which lessor has lien. .
“11. It is further agreed between the parties that the lessee shall at his own expense, mow or cut and burn the weeds, grass and other growth along the fence rows, roads, ditch and canal banks contingent to the rice field, and this shall be done at least once, and if necessary twice, during the crop season, in order to prevent said weeds and other growth from going to seed.
“12. It is further agreed that in the event it is necessary to pull or pick noxious weeds or other growth other than excessive growth of water grass, then the expense of this special work shall be borne equally by the parties hereto.
“13. It is agreed that while this contract is entered into in good faith between the lessor and the lessee, in the event that conditions develop which are beyond human control, such as the securing of pumps or electricity or a power unit or the Government’s withdrawal of prisoner of war labor now engaged in clearing land, or any other thing or item beyond the control of either party hereto, then this contract shall be automatically voided as a whole or in part. And in the event lessee has expended monies in preparing land, in planting the seed, or has done any other work in preparing lands, then the lessor shall reimburse the lessee to the full amount of such expenses by the lessee.
“14. Lessor will loan to the lessee an amount of money equivalent to $20 per acre contracted for to help lessee in his operations. Lessor retains landlord’s lien for rent and all loans or advancements and on demand shall execute a chattel mortgage on any chattels where necessary or advisable in addition to landlord’s lien. Advances on loans will be made monthly during season as needed.”
Under § 14 of the aforesaid agreement Wilson was to loan Gibson $20 per acre to finance the crop. Instead of making the loan direct to Gibson, Wilson, on March 28, .1944, signed Gibson’s note to the Bank of Wilson (hereinafter called the Bank) for $4,000. Then on October 26, 1944, Gibson obtained from the Bank $250 additional to pay part of the harvesting expenses. Both notes were secured by crop and chattel mortgages executed by Gibson to the Bank under date of April 1, 1944.
Gibson planted, cultivated and harvested a rice crop on about 160 acres of the land, and delivered to two rice mills (Jonesboro and Arkansas Cooperative) a total of 3,680.88 bushels of rice. The time and manner of planting, cultivating and harvesting the rice constitute sharply disputed matters and will be discussed in the opinion. At all events Gibson held certain uncashed checks (to himself and Wilson), but had neither paid the rent to Wilson nor delivered the checks to the Bank when this suit was filed.
On June 8,1945, the Bank filed this suit against Gibson, Wilson and the two rice mills seeking (a) judgment for $4,250 and interest on the notes, (b) foreclosure of the crop and chattel mortgage, and (c) accounting as to the proceeds of the rice crop. On the same day (and that is significant), Wilson filed answer to the Bank’s complaint and a cross-complaint against Gibson for Wilson’s part of the crop rent. On July 5,1945, Gihson answered the Bank’s complaint and Wilson’s cross-complaiht and also cross-complained against Wilson on these items: (1) that Wilson had delivered to Gibson only 160 acres for farming instead of 200 acres, and the damages of $2,256 were claimed for this deficiency in acreage; and (2) that Wilson breached paragraph 3 of the lease agreement (regarding furnishing of water for irrigation), and damages of $10,264 were claimed for this breach. To this cross-complaint Wilson filed answer and thus issue was joined between Gibson and Wilson. So far as the Bank was concerned, no one seriously denied its rights; and Gibson and Wilson (by stipulation to prevent prejudice) deposited with the Bank $4,574.19, which lacked only $40.21 of paying the Bank in full. This money deposited with the Bank represented checks from the two rice mills, which were part of the proceeds of the Gibson rice crop.
The trial in the chancery court resulted in a judgment (1) awarding the Bank of Wilson the $4,574.19 on deposit, and judgment against Wilson for the balance of $40.21 and all costs; and (2) decreeing such award and judgment to be complete satisfaction of all claims' of the Bank against Gibson on the note and chattel mortgage and also (3) decreeing such payment to be full settlement of all claims of Gibson against Wilson and Wilson against Gibson. The net result of the decree was to allow Gibson damages against Wilson in a sum equal to Wilson’s total rent in the rice crop that Gibson produced, plus the $40.21 required to pay the balance of the Bank’s note.
Prom the decree of the chancery court, Gibson has appealed as against Wilson, and Wilson has appealed as against Gibson. Appellant Gibson claims the decree is erroneous because it fails to award him sufficient damages for land deficiency and irrigation deficiency. Appellee Wilson claims the decree is erroneous because it allowed appellant damages to which he was in no wise entitled and thereby deprived appellee of rents.
OPINION
We discuss the issues under suitable topic headings.
I. Appellant’s Contention as to Land Deficiency. The lease agreement stated that lessor (appellee) would furnish “suitable for growing rice” the'east 200 acres of the east half of section 18. Appellant claims that he was only furnished 160 acres, and was damaged by the appellee’s failure to furnish the entire 200 acres. The chancery court disallowed this contention of the appellant; and we affirm the chancery court.
The preponderance of the evidence shows that the appellant received the land agreed to be furnished, and that the parties understood the land by reference to drainage ditches and physical monuments, rather than by reference to the land description contained in the written instrument. If Gibson had received the east 200 acres of section 18, he would have cultivated a strip 550 yards wide —east and west — along the entire east side of section 18. But the proof shows that Gibson intended to receive and did utilize a strip that was more than 880 yards wide— east and west — at one point, and considerably more than 550 yards wide — east and west — at other places. A map —introduced in evidence without objection — showed (a) a drainage lateral on the entire' east side of section 18, and (b) a bayou which entered the west half of section 18 from the south, and extended northeast in an irregular course to the approximate center of the northeast quarter of section 18, and then divided into two forks, one going northwest and the other northeast. The proof shows that Gibson intended to receive and did utilize the land in section 18 that lay west of the drainage lateral and south and east of the bayou, and that some of this land extended over into the west half of section 18. The land that Gibson utilized appears to be approximately 170 acres.
The shape of the tract of the land that Gibson utilized is so at variance with the description of the land as contained in the lease, that it must be presumed that the parties misdescribed the land in the lease. Gibson makes no contention that he received land other than what he was to receive. His sole contention is that he did not receive all the land that he was to receive. Cooksey, a witness called by Gibson, testified that Gibson never made any complaint to him about not getting the land he contracted to receive; and Meyer, a witness called by appellee, testified that Gibson was satisfied with the tract he actually received and put into cultivation.
From all the evidence in the record we conclude (a) that Gibson received the land actually intended by both parties, and (b) that the description in the lease was not only a mutual mistake, but was reformed and corrected by the conduct of all parties, and (c) that the evidence is sufficient to support such actual reformation of description. See Cherry v. Brizzolara, 89 Ark. 309, 116 S. W. 668, 21 L. R. A., N. S. 508; see, also, cases collected in West’s Arkansas Digest “Reformation of Instruments,” § 13 and § 19; and see 45 Am. Jur. 604.
II. Appellants’ Contention as to Irrigation Deficiency. Under paragraph 3 of the lease agreement Wilson agreed to furnish an irrigation plant with ££ sufficient capacity to properly irrigate” the rice acreage. The overwhelming preponderance of the evidence is to the effect that Wilson breached this provision in the contract. The chancery court so found, and we affirm the finding.
Gibson completed planting his rice crop on May 15th —agreed by all to be the correct time for such completion. The rice was four inches high on June 4th, and should have been irrigated on that date, and certainly not later than June 12th. Yet, sufficient water was pot obtained for irrigation until after July 12th; and this delay caused severe damage to the rice crop. Against this claim for damages, appellee interposes two defenses: (a) that Wilson was honestly trying all the time to get the required irrigation plant into operation and was prevented by unfortuitous circumstances, and (b) that on account of the war and other unavoidable casualties Wilson is enti tied to relief under § 13 of the lease agreement. We notice these defenses:
As regards (a) — “honest effort” — no amount of such evidence can justify Wilson’s breach of the positive agreement to furnish sufficient irrigation. In Harrington v. Blohm, 136 Ark. 231, 206 S. W. 316, the landlord, in leasing land to the tenant for rice production, agreed to furnish suitable irrigation. There, as here, the landlord sought to excuse the breach by showing an honest effort to perform and prevention by a variety of circumstances. We denied the landlord’s defense, saying:
“. . . it is argued that it could not have been contemplated that appellant would be required to-do more than to make an honest effort, in good faith, to furnish the necessary pumping machinery, and that he had ‘used his best endeavors to get said well and machinery installed before June 1, of said year, and that the failure to do so was no fault of defendant’s.’ -But appellant did not contract merely to use his best endeavors. His contract was to install the machinery by June 1, and the agreed statement of facts recites the disastrous effects to the rice crop from a failure in this respect, and these consequences were necessarily in the contemplation of the parties when the contract was executed. ’ ’ See, also, Ingham Lumber Co. v. Ingersoll, 93 Ark. 447, 125 S. W. 139, 20 Ann. Gas. 1002; and Kelley Trust Co. v. Zenor, 159 Ark. 466, 252 S. W. 39. We shall again refer to this case of Harrington v. Blohm, as it is strikingly similar to the case at bar.
As regards appellee’s defense (b) — war conditions, etc.: Wilson urged § 13 of the lease agreement as a defense against the deficiency in irrigation. This § 13 was quoted in full in the lease agreement in the statement of facts. The special chancellor, in his written opinion denying Wilson’s defense on this point, said:
“Section 13 of the contract applies only to those conditions arising from circumstances beyond human control which would result in an automatic termination of the contract, either in whole, or in part. I do not find that either party asked for, or attempted to invokd an automatic termination of the contract in any part at an appropriate time.”
We agree with the chancery court. This § 13 of the lease agreement is what is generally referred to as “ an-option-to-terminate clause.” In Wertheimer v. Citizens Bank Building Company, 117 Ark. 50, 173 S. W. 841, and in Citizens Bank Building Company v. Wertheimer, 126 Ark. 38, 189 S. W. 361, Ann. Cas. 1917E, 520, we had occasion to consider a lease contract containing “an-option-to-terminate clause.” In Ann. Cas. 1916B, 306, there is an extensive note on option-to-terminate clauses. It is there stated (p. 310): “An option to terminate a lease can he exercised only by complying with the provisions granting it. ’ ’ Cases are cited to sustain this state, ment. In 32 Am. Jur. 709, the rule is stated: “Occurrence of and compliance with conditions and terms is prerequisite to the exercise of an option to terminate a lease . . .” See, also, 35 C. J. 1052. In the case at bar the option-to-terminate clause required the lessor to reimburse the lessee for moneys expended, etc. The lessor did not pursue that procedure, hut allowed the lessee to cultivate and harvest the crop. Claiming § 13, at this late date, appears to he a mere afterthought or a sort of “grasping at a straw” of defense. We, therefore, hold, as did the chancery court, that Wilson breached the contract in the matter of irrigation deficiency, and has presented no valid defense against such breach.
III. . The Damages Awarded Appellant. We come now to appellant’s contention that the chancery court’s judgment (for damages) was too small, and to appellee’s contention that the judgment was too large. As to the law on the measure of damages in a case like this, there is no uncertainty. Harrington v. Blohm, 136 Ark. 231, 206 S. W. 316, states the applicable rule, and is directly in point, because in that case the tenant recovered damages from the landlord who failed to furnish irrigation for a rice crop.
Before discussing the rule of Harrington v. Blohm, we dispose of some of the cases claimed by Wilson to modify that rule. They do not; because they deal with situations entirely different. Morrison v. Weinstein, 151 Ark. 255, 236 S. W. 585, involved the measure of damages claimed by a tenant kept out of possession of the land. Layne-Arkansas Company v. Seeman, 173 Ark. 1062, 294 S. W. 382, involved the damages claimed by a purchaser from a seller for alleged failure to repair a pump. It is obvious that the facts in these cases distinguish them from the case at bar.
Harrington v. Blohm, supra, held that when a landowner breaches his contract to furnish suitable irrigation for a rice crop and the tenant is damaged thereby, then the tenant’s measure of damages is the tenant’s part of the difference between (1) what the land would have produced if the irrigation had been furnished, and (2) what the land actually produced; deducting from this difference the amount it would have cost to produce, harvest and market the crop that would have been produced if irrigation had been furnished. That is the rule of Harrington v. Blohm. The same rule is stated in 30 Am. Jur. 629 in these words:
“Where a growing crop has been damaged as a result of failure to furnish sufficient water for irrigation purposes, it has been held that the measure of damages, in case of liability, should be the value of the crop which would have been raised had it been properly watered, or the grower’s share thereof, less the value of the damaged crop, and what would have been the expense of raising, harvesting, and marketing such additional crop.” See, also, Annotation in 108 A. L. B-. 1174.
The question of the tenant’s lack of due diligence in harvesting and marketing the crop actually produced was not mentioned in Harrington v. Blohm because there was no claim of lack of due diligence on the part of the tenant in that case. There is such a claim in the case at bar. Of course, it is the tenant’s duty to harvest in a husband-like way the crop actually produced. This is an applica tion of the rule that the plaintiff must use due diligence to minimize his damages. See Wisconsin & Ark. Lumber Co. v. Scott, 167 Ark. 84, 267 S. W. 780, and St. Louis S. W. Ry. v. Tucker, 161 Ark. 140, 255 S. W. 553. In 15 Am. Jur. 426, the rule is stated:
“One déprived of the fruits of a contract must use the efforts of a reasonably prudent man to put himself in as good position as he would have been if the contract had not been violated. He must do nothing to aggravate his loss, but must do all he reasonably can to mitigate or reduce it. He cannot recover for that which he might reasonably have avoided. ”
The tenant cannot recover from his landlord damages from loss of the crop when such loss came about through the fault of the tenant. So, where it is shown that the tenant failed to use due diligence to harvest the crop actually produced, then he will be charged with what was lost occasioned by his lack of due diligence in harvesting. The tenant, in such case, would recover his part of the difference between (1) what the land would have produced if the irrigation had been furnished, and (2) what the land would actually have produced (without contracted irrigation) if the tenant had used due diligence in harvesting*and marketing the crop actually produced; deducting from this difference the amount it would have cost to produce, harvest and market the crop that would have been produced if irrigation had been furnished as agreed.
So much for the rules of law: now for the application of these rules to this case. We quote from the opiniori' of the special chancellor:
“The raising of rice is unquestionably a hazardous undertaking. The determination of what amount might have been produced, or should have been produced, is an element of speculation, and something about which, there can be no mathematical formula. Based on the experience of others in similar circumstances, however, courts and juries are permitted to reach a conclusion. It is my opinion that the crop was damaged by failure to receive water at the proper time; that this damage consisted in part of making the maturity later than it would otherwise have been; that on account of the late maturity less rice was harvested than would have been if the crop had matured at the time it would have ripened had the field been irrigated at the early date that was desirable.
“The contract provided for lessor receiving 50 per cent, of the crop as rent. If the crop had produced twice as much as it did, or had amounted to $9,000, Lee Wilson & Company would have been entitled to $4,500 as rent. As it was, the crop lacked a small amount of paying for the cost of production. .In view of the uncertainty about making and harvesting a rice crop, and especially that uncertainty which prevailed during 1944, as shown by the evidence in this case, I think a fair and equitable determination of this matter will be to let Lee Wilson & Company pay the balance of $40.21 due to Bank of Wilson, and the cost of the case, and recover nothing on its cross complaint for rent. I think this is fair to Mr. Gibson because I do not think the evidence would permit a finding that more than twice as much rice would have been harvested under the best possible performance by Lee Wilson & Cómpany, and as above stated, with such additional cróp the rent going to lessor would have consumed all of the additionál return from the crop.”
A large- portion of the testimony in this record is concerned with (a) estimates of how many bushels of rice per acre would have been raised if the irrigation had been proper; (b) the cost of cultivating and harvesting a rice crop; (c) the late maturity of this crop due to irrigation deficiency; (d) the abnormal weather conditions existing in the harvesting season of 1944; (e) the equipment used by Gibson in harvesting and threshing his rice; and (f) Gibson’s delay in, and suspension of, his harvesting operations and his refusal to accept aid for a more rapid completion. These are some of the factual forces that entered into the determination of the damages as decreed by the chancery court; and it is the interplay of these factors tliat makes it impossible for us to say that the award of the chancery court is against the preponderance of the evidence. • Gibson was guilty of delay and suspension in his harvesting operations, and we are unable to say how much his delay contributed to the loss of that part of the crop that was never harvested and marketed.
Since we are unable to say that the finding of the chancery court is against the preponderance of the evidence, we therefore affirm the case on both direct appeal and cross appeal. We adjudge that the costs of the appeal be divided equally between appellant and appellee. | [
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'Smith, J.
This case is a proceeding brought under the authority of Act 297 of the Acts of 1945, to have declared who are the heirs at law of G. W. Nicks. The following facts were either stipulated to be true, or were shown to be true by the evidence. Nicks died intestate August 25, 1934, and was survived by his wife, who died in 1945, and by four daughters and a son, named Lacie W. who departed this life in Chicago, Illinois, January 12, 1943.
Lacie married Elsie G. Watkins in Chicago on October 24, 1938. Elsie had previously been married to Eugene Watkins, and she married Lacie without obtaining a divorce, although the application for the marriage license which Lacie prepared, recited that she was a divorcee. She and Lacie lived together before their marriage, and two children were born to Elsie after her marriage to Lacie, while they were living together as husband and wife.
Birth certificates covering Elsie’s first two children recite that Eugene Watkins was their father. These children were born while Elsie and Lacie were living-together, but before their marriage. Birth certificates covering the two children born after Elsie’s marriage to Lacie recite that Lacie'was the father of those children. A fifth child was born to Elsie 13 months and 17 days after Lacie’s death, and its birth certificate named Lacie as its father.
Elsie and Lacie lived together as man and wife until the time ’of Lacie’s death, and they were living-together as man and wife at that time, although she testified that they had separated several times. The period of time of these separations is not shown.
The court found that G. W. Nicks’ heirs were his four daughters and the two grandchildren who were born after .Lacie’s marriage, and from that finding and decree the administratrix of Nicks’ estate and his four daughters have appealed. There is no cross-appeal.
To reverse this decree it is insisted that the two children declared to be heirs were born as the result of a bigamous marriage, inasmuch as Elsie married Lacie without being divorced from Watkins, her living husband, and it is urged that the law will presume that Watkins was the father of these children and not Lacie, inasmuch as Watkins’ impotericy or non-access was not shown.
„ There is a presumption, said to be one of the strongest known to the law, that children born to a couple lawfully married are the children of the husband, and that this presumption continues until overcome by the clearest evidence that the husband was impotent or without access to his wife, and the controlling question is whether that proof was made.
Appellant concedes under the authority of the ease of Evatt v. Miller, 114 Ark. 84, 169 S. W. 817, L. R. A. 1916C, 759, that children born of a bigamous marriage may inherit from the father as well as from the mother. Section 4342, Pope’s Digest, so provides. It reads as follows : “The issue of all marriages deemed null in law, or dissolved by divorce, shall be deemed and considered as legitimate.” The State of Illinois, where the children were born, has a statute substantially the same as our § 4342, Pope’s Digest, it being § 17a, Oh. 89, Marriages, Revised Statutes of Illinois, 1945.
The case of Cooper v. McCoy, 116 Ark. 501, 173 S. W. 412, reaffirmed the holding in the case of Evatt v. Miller, supra, the holding in each case being that children of a marriage void because the husband had a prior living-wife, are legitimate and entitled to inherit from the father, hut that the statute shields only children born to parents whose.marriage for any cause is null in law.
In the case of Jacobs v. Jacobs, 146 Ark. 45, 225 S. W. 22, Justice Hart said: “In the case of Kennedy v. State, 117 Ark. 113, 173 S. W. 842, L. R. A., 1916B, 1052, Ann.. Cas. 1917A, 1029, which was a bastardy proceeding, the court held that where a child is born in wedlock it is presumed to be legitimate, but that this presumption may be rebutted by sufficient evidence showing that the husband was impotent or entirely absent at the period in .which the child in the course of nature has been begotten so that he could not have had access to the child’s mother. The rule is about the same on the subject of descent and distribution. The question of the legitimacy or illegitimacy of the child of a married woman is one of fact, resting upon decided proof as to the nonaccess of the husband. 2 Kent Comm. (14th Ed.) §211.”
It was held in the case of Kennedy v. State, supra, cited by Justice Hart that: “In the absence of a statute in express words making the mother competent to testify to the nonaccess of her husband, we hold that she can not' do so. Under our statute, 'as we have seen, the mother is a competent witness. She may testify to facts which tend to prove that access on the part of her husband within the period of gestation was impossible, and if she testified to facts of that character there would be a question for the court or jury trying the issue to determine as to whether' or not the presumption of legitimacy had been overcome. But, in this case, there is no such. testimony. She does not testify to any fact that would warrant the conclusion that her husband did not have access within the period of gestation.”
It was stipulated that if called as a witness, Elsie would testify that a short time after she and Watkins were ‘married they separated, and that they did not thereafter live together, and when her deposition was taken she so testified and she further testified that Lacie was the father of all her children, but this, in the course of nature could not have been true as to her fifth child.
Now while under the authority of the Kennedy case, supra, Elsie could not have testified as to non-access by Watkins, yet it was competent for her to testify as to facts and circumstances .from which non-access by Watkins appears to be conclusively shown. It is true that Watkins and Elsie lived in Chicago when they separated, but it is not shown what became of Watkins, except that it is not contended that he is dead, or that he ever obtained a divorce from Elsie, but there is no contention that Elsie and Watkins ever lived together after their separation.
Elsie was first married to one Visminsky, from whom she was divorced, and on January 21, 1936, she married Watkins, but they soon separated and that separation was permanent. On October 24, 1938, she married Lacie W. Nicks in apparent conformity with the laws of Illinois. At that time she was the mother of two children, and she testified that Lacie was the father of both of them, and it is undisputed that after this marriage she continued to live with Lacie as his wife, except for several separations, the duration of which is not shown, until the time of his death.
The birth certificate of Elsie’s children recite that Lacie was the father of the three youngest, but in the course of nature this could not be true as to her fifth child. However, as to the third and fourth child, the undisputed testimony is that they were born while Lacie and Elsie were living together as man and wife, they having been previously married, and these third and fourth children were given the names of members of Lacie’s family.
No issue is presented as to the paternity of Elsie’s first, second and fifth child, but we think the court was warranted in finding that Lacie was the father of the third and fourth children, and as they were born in wedlock, they are legitimate under the laws both of this State and the State of Illinois, and the decree will, therefore, be affirmed. | [
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Fd. F. McFaddin, Justice.
On June 6, 1946, appellant was convicted of the crimes of burglary, and assault with intent to kill, and was sentenced to the penitentiary. On June 7, 1946, a motion for new trial was overruled, and his appeal prayed and granted, and his bond fixed and approved, and 58 days given for bill of exceptions.
On August 2, 1946, a certified copy of the judgment was filed in this court, and a writ of certiorari was issued to complete the record. In response to the writ, a skeleton transcript (without the evidence or bill of exceptions) was filed in this court on August 22, 1946. On the last-mentioned date appellant’s present counsel was employed ; and he has sought diligently to complete the record within the time allowed by statute, and the rules of this court, but has been unable to do so. The bill of exceptions was not filed here until September 19, 1946, which was more than three months from the granting of the appeal.
The Attorney General moved to strike the bill of exceptions, and the motion was granted by this court on January 13,1947, in an order reading: “Motion to strike bill of exceptions because of noncompliance with Rule 5-d and § 4236, Pope’s Digest, is sustained.”
With the bill of exceptions stricken, there is nothing before this court except the record. See Foster v. State, 128 Ark. 316, 194 S. W. 703. We find no errors on the face of the record; so the judgment of the circuit court is in all things affirmed.
Holt, J., not participating. | [
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Ed. E. McEaddin, Justice.
This appeal challenges an award made by the Workmen’s Compensation Commission. The principal question is: Did the death of the employee (Sparks) arise out of and in the course of his employment? An incidental question concerns interest on compensation awards.
The facts — viewed in the light most favorable to the commission’s award — may be summarized as follows: The Tinsman Manufacturiifg Company employed crews to go into the woods and cut timber to be hauled to the mill. The superintendent in charge of the timber-cutting crews was called the “woods superintendent.” W. E. Sparks was employed as a saw filer by the Tinsman Manufacturing Company. He lived about 2% miles west of Tinsman, Arkansas, and his duties placed him under the “woods superintendent.” Sparks was transported on a company bus or truck from his home to his place of work, and return. He was paid by the hour, and his pay-time began when he left home in the morning, and continued until he returned at night. In addition, he sometimes took saws home and filed them at night, keeping his own time, and being paid for this work.
On the morning of September 29,1944, W. E. Sparks 'entered the company bus at his home, to lie transported to a tract of timber located about 15 miles south of Hampton, where he and the other employees in the bus were to work that day. The bus driver was directed and authorized by the woods superintendent to stop the bus at any place, either going to or returning from work, on the request of any employee, and to wait until such employee made personal purchases, such as groceries, tobacco, etc. This was on company time, and was authorized and permitted by the woods superintendent. On the day in question the journey necessitated going through the town of Hampton. Mr. Sparks was a constant user of smoking tobacco; and that fact was well known. When the bus reached Hampton, Mr. Sparks asked the bus driver to stop long enough for Sparks to purchase some smoking tobacco. The bus driver stopped in front of a cafe in Hampton, and Sparks alighted to cross the highway to make his purchase. As he was crossing the highway, he was struck and killed by a vehicle owned and operated by a third person not a party to this present appeal.
Appellees (claimants) are the widow and dependents of W. E. Sparks. They filed claim for compensation under the Workmen’s Compensation Law. Appellants are the employer and its workmen’s compensation insurance carrier. Appellants resisted the claim on the contention that Sparks’ death did not arise “out of and in the course of employment” as those words are used in our Workmen’s Compensation Law (see § 2(f) of Act 319 of 1939). After an extensive hearing, the Workmen’s Compensation Commission made an award for the claimants. It is for this reason that we review the facts in the light most favorable to support the award. See J. L., Williams & Sons v. Smith, 205 Ark. 604, 170 S. W. 2d 82; Elm Springs Canning Co. v. Sullins, 207 Ark. 257,, 180 S. W. 2d 113, and other cases collected in West’s Arkansas Digest, “Workmen’s Compensation,” § 1939. The circuit court affirmed the award; and the employer and its insurance carrier have appealed to this court.
I. Did Spark$’ Death Arise Out of and in the Course of His Employment? Appellants admit that, if Sparks had suffered casualty while on the bus, the appellants would have been liable; but appellants urge that, when Sparks left the bus to cross the highway to purchase smoking tobacco, then he deviated from his employment and his death did not arise “out of and in the course of his employment. ’ ’ To support their position, appellants have furnished us with a splendid brief, listing and discussing the following cases claimed to sustain their contention: In re Betts, 66 Ind. App. 484, 118 N. E. 551; Cas ualty Indemnity Exchange v. Industrial Commission, 190 Calif. 433, 213 Pac. 257; Morgan v. United Taxi Co., 105 Ind. App. 304, 14 N. E. 2d 736; Toombs v. Liberty Mutual Ins. Co., 173 Tenn. 38, 114 S. W. 2d 785; Clark v. Voorhees, 231 N. Y. 14, 131 N. E. 553; Southern Surety Co. v. Galloway, 89 Okla. 45, 213 Pac. 850; Gardner v. Employers’ Liability Assurance Corp., 247 Mass. 308, 142 N. E. 32; Free v. Indemnity Ins. Co., 177 Tenn. 287, 145 S. W. 2d 1026; Hornby’s case, 252 Mass. 209, 147 N. E. 577; Carlestrom’s case, 264 Mass. 493, 162 N. E. 893; Dubbert v. Beucus, 96 Ind. App. 390, 185 N. E. 311; Hill v. Dept. of Labor, 173 Wash. 575, 24 Pac. 2d 95; Labbe v. American Brass Co., 132 Conn. 606, 46 At. 2d 339; Hayes v. Industrial Commission (Ohio), 60 N. E. 2d 492.
We have studied each of these cases, and — aside from Hornby’s case, supra, and the case of In re Betts, supra — we find two decisive facts present in the case at bar that were not present in any of the cases cited by the .appellant. It is the concurrence of these two decisive facts that distinguish the case, at bar from the cases relied on by the appellant. These facts are: Not only was Sparks “on company time,” but the appellant (acting through its woods superintendent) had all the time, and with full knowledge, permitted Sparks and other employees to stop the bus and make individual purchases. In so doing, the employer permitted Sparks and the other employees to pursue a course of procedure that cannot be held to be such a deviation from the employment, as to remove Sparks from the protection of the Workmen’s Compensation Law. In other words, whatever deviation there might have been, was too slight to release the appellants from the coverage afforded Sparks as an employee.
In Horovitz on Workmen’s Compensation, p. 112, this appears:
“Must the injury arise out of the main work which produces the employee’s wages? If hired to cut wood, or run a machine, does the protection cease when he goes for a drink of water to a near-by water-cooler placed there for that purpose? Or does the right to an award cease if, acting on an impulse of nature, he goes to the toilet and is injured on the way thereto or because of a defect in that room? Or if he is eating an employer-provided lunch, as permitted or required by the employer or by the nature of the employment, and he suffers food poisoning — does that arise ‘ out of ’ his employment ? •
“These acts of personal ministration are universally recognized as incidents of the employment. Incidents of the employment, say most states, are as well protected as the injuries on the main job; and so saying, the courts begin to disagree as to what are incidents.”
Then, after citing numerous cases, in some of which the acts of personal ministration were recognized as incidents of the employment, and in others in which the acts of personal ministration were considered as turning-aside from the employment, the text (Horovitz) continues :
‘ ‘ So, too, getting fresh air, smoking, resting, eating food or ice cream, quenching, thirst, . . . have been held compensable incidents (‘contractual,’ ‘reasonable,’ or just plain ‘incidents’) of‘one’s employment; . . .
“But slight deviations are no defense under most state decisions. Thus a slight deviation to get a chew of tobacco, or to ask a fellow employee the time, or to throw away a cigarette, is harmless, and awards were upheld where the injury occurred during the deviation.”
The paragraph last quoted above is the one that applies directly to the case at bar.
In the case of Ry. Express Agency v. Lewis, 156 Va. 800, 159 S. E. 188, 76 A. L. R. 350, the Virginia Supreme Court of Appeals had before it a case involving facts somewhat similar to the case at bar. There, Lewis was a truck driver for the express agency, and obtained the consent of his employer to make a short deviation from the truck route so that Lewis might engage in a personal errand. This deviation was so slight that the Virginia court held that the injuries Lewis sustained arose “out of and' in the scope of his employment,” even though it was while he was on the personal errand that he was killed.
There is an annotation in 76 A. L. R. 356 on the subject, “Workmen’s Compensation: Deviation on personal errand as affecting question whether injury to employee on street or highway arose out of and in the course of employment. ” It is there stated that liability ultimately depends upon the facts and circumstances of each case. Among cases'allowing compensation, there is listed in the annotation the following: Beaudry v. Watkins 191 Mich. 445, 158 N. E. 16, L. R. A. 1916F, 576, in which a delivery boy, by permission, stopped at home for lunch on his way to collect a package; Stratton v. Interstate Fruit Co., 47 S. D. 452, 199 N. W. 117, in which a truck driver by permission drove to his home for lunch, and was injured while returning to his place of business; Rachels v. Pepoon, 5 N. J. Misc, 122, 104 N. J. L. 183 and 139 At. 923, in which a helper on a newspaper distribution truck obtained his employer’s consent to attend to personal business, and was -injured while returning; Zeier v. Boise Transfer Co., 43 Idaho 549, 254 Pac. 290, in which an employee en route to a freight depot stopped for lunch, and was injured after resuming his journey; Sztorc v. James H. Stansbury, Inc., 189 App. Div. 388, 179 N. Y. S. 586, where the employee was in the immediate vicinity of the employer’s truck which had stopped but momentarily. It is interesting to note that this last-cited case was cited with approval of the New York Court of Appeals in the case of Younger v. Motor Cab Transp. Co., 260 N. Y. 396, 183 N. E. 863. Other cases are listed and discussed in the annotation, but we mention the above to indicate that the courts and commissions have decided each of these cases on its peculiar facts; and in the various adjudications there is an ever-growing tendency to construe the acts liberally to allow compensation.
There is an annotation in 51 A. L. R. on street risks incurred in the course of employment; and it is there stated (p. 511):
‘ ‘ Taking the view that the compensation acts do not authorize an award in case of injury or death from a peril which is common to all mankind, or to which the public at large is exposed, the earlier cases developed what is known as the doctrine of street risks, and very generally held that an employee was not entitled to compensation for an injury occurring in the public street unless it could be shown that the workman’s employment involved peculiar exposure to the perils of the street.”
Then, on page 514 of the same annotation this appears:
“The tendency of the later cases towards a more liberal construction of thq term ‘arising out of and in the scope of the employment’ is reflected in the view now most generally taken as to street risks. The majority of the jurisdictions, . . . permit the recovery of compensation where the employee received a street injury while in the course of his employment, although the employment may not have required his presence on the street continually, but only occasionally, or even on the one occasion on which he was injured; Massachusetts apparently being the only jurisdiction recently passing upon this question, to take a contra view.” See, also, annotation on the same subject in 80 A. L. R. 126.
We quote these statements to show the present tendency towards a liberal application of the term “arising out of and in the course of employment.” Of course, if a servant should go away on a private mission without the consent or permission of his employer, there would be no liability. But in the case at bar, the trip of Sparks across the street was with the consent and permission of his employer, and was a mere momentary journey to obtain smoking tobacco which would tend to increase his satisfaction in the discharge of his duties. It is almost the same situation as if he had stopped the bus to get a drink of water or answer a call of nature. It was not a great distance, nor did it consume much time, and under the facts in this case we hold that Sparks’ death arose out of and in the course of his employment.
In discussing the cases cited by the appellant, we withheld discussion of In re Betts, supra, and Hornby’s case, supra. We now advert to these cases. Hornby’s case, 252 Mass. 209, 147 N. E. 577, was decided in 1925. In that case a workman, while on a journey at the express direction of his employer, received a street injury. The Massachusetts court denied him compensation in accordance with the previous Massachusetts holdings, saying:
“It has been held that an injury resulting from a collision with an automobile, moving on a public street, is not an injury which under ordinary circumstancesv arises out of the employment; although at the time the employee is engaged in the employer’s business.”
Our case of Hunter v. Summerville, 205 Ark. 463, 169 S. W. 2d 579, announces a result contrary to the Massachusetts holding; so Hornby’s case is not persuasive to the question here under consideration.
We come, next, to In re Betts, supra. There, the employee, while returning to work in the master’s wagon, obtained the master’s permission to stop to get some tobacco. While on that errand he was killed, and the appellate court of Indiana, in its opinion of January 18, 1918, held that the death of Betts did not arise out of and in the course of his employment. The facts in that case are so similar to the facts in the case at bar that no sound distinction can be drawn, but our Workmen’s Compensation Law justifies a more liberal interpretation than is reflected in the case of In re Betts. There is abundant authority holding contrary to the Betts case, on facts almost identical. We discuss these.
In 71 O. J. 675, in discussing what acts do or do not constitute substantial deviation from employment, this appears:
“An injury sustained by an employee while procuring tobacco for his own use, being an act for his personal comfort and convenience but ultimately for the benefit of the employer, may arise out of and in the course of the employment. ’ ’
Some of the cases which sustain the above-quoted text are:
(a) Wickham v. Glenside Woolen Mills, 252 N. Y. 11, 168 N. E. 446: An employee, after carrying spools from the spinning room, stopped on his return to aslc a fellow employee for tobacco, and this request took him a few feet out of his direct course, where he slipped on a greasy floor when he started to leave his fellow-employee, and sustained injuries. It was held that his .injury arose out of and during the course of his employment within the meaning of the New York Workmen’s Compensation Law.
(b) Springer v. North, 205 App. Div. 754, 200 N. Y. S. 248: A teamster, delivering wood to his employer’s customer, stopped in front of a store to purchase tobacco for his own use, and — while reaching for the tobacco and with one foot on the wagon wheel — he was injured by the sudden starting of the horses. The injury was held incidental to his employment, justifying an award under the workmen’s compensation law.
(c) Richards v. Creamer, 267 App. Div. 928, 46 N. Y. S. 2d 769: An employee of a carnival, riding on the employer’s truck in the course of moving, asked the driver to stop at a roadside so that the employee might purchase cigarettes, and, while the employee was crossing the highway, he was struck by a passing automobile and received injuries, and it was held that the injuries arose out of and in the course of his employment. Motion for leave to appeal to the court of appeals was denied in 267 App. Div. 1007, 48 N. Y. S. 2d 685, and in 293 N. Y. 937, 55 N. E. 2d 757.
(d) McLauchlan v. Anderson, decided by the English Court of Sessions, February 1,. 1911, and involving the Workmen’s Compensation Act of England, and reported in 1911 Session Cases 529 and-4 B. W. C. C. 376: A workman, whose duty it was to load and accompany a train of wagons drawn by a traction engine, fell while he was in the act of dismounting from the wagon in order to recover Ms pipe which he had dropped, and he was run over by the wagon. The court held that, if there was any deviation from the duties of employment, such deviation was too slight to be considered, saying:
“In one sense anything a man does in connection with Ms own body is done for Ms own purpose; eating and drinking are illustrations; but these are none the less things a workman is perfectly entitled to do in the course of his employment. The Lord Chancellor (Lord Lore-burn) in the course of his opinion in the case of Moore v. Manchester Liners, Limited, said this — ‘I think an accident befalls a man “in the course of” his employment if it occurs while he is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time to do that thing.’ Now, this man’s operation of get-, ting down from the wagon to recover his pipe seems to me to satisfy all those conditions.”
In concurring, Lord MacKenzie said: “The workman was at his work, and his attempt to get down to pick up his pipe was merely an incident in the day’s work.”
A rational construction of our workmen’s compensation statute requires a holding that a short deviation, permissively made, as to obtain tobacco, is not a “turning aside,” but a mere incident in the day’s work. Such is the text in Corpus Juris and the holdings in the cases discussed above, and we think such holdings are more consonant with the purpose of our compensation law than the rule announced in the case of In re Betts, supra.
We list also recent cases, in some of which the courts have held that slight deviations do not exclude the employee from the coverage of the Workmen’s Compensation Law, to-wit: Alabama Concrete Pipe Co. v. Berry 226 Ala. 204, 146 S. 271; Cal. Casualty Indemnity Exchange v. Industrial Accident Commission, 21 Cal. 2d 751, 128 Pac. 2d 116 and 135 Pac 2d 158; Western Pipe & Steel Co. v. Industrial Accident Commission, 49 Cal. App. 2d 108, 121 Pac. 2d 35; Gagnebin v. Industrial Accident Commission, 140 Cal. App. 80, 34 Pac. 2d 1052; Cardillo v. Hartford Accident & Indemnity Co., 71 App. D. C. 303, 109 Fed. 2d 674; Macon Dairies v. Duhart, 69 Ga. App. 91, 24 S. E. 2d 732; Guenther v. Industrial Commission, 231 Wis. 603, 286 N. W. 1; Karl v. Fair Shoe Repair, Inc., 55 N. Y. S. 2d 1; Fritsche v. O’Neill, 147 Pa. Super. Ct. 153, 24 At. 2d 131; Whitham v. Gellis, 91 N. H. 226, 16 At. 2d 703; and Oram v. Moon Co., 285 N. Y. 42, 32 N. E. 2d 785. See, also, annotations in 32 A. L. R. 806 and 59 A. L. R. 370, discussing workmen’s compensation coverage in the case of an employee temporarily leaving the vehicle or place of employment for reasons personal to himself.
II. Interest. As previously stated, an incidental question argued on this appeal is, whether interest should be allowed on compensation payments, from the time the payments should have been made. W. E. Sparks died September 29, 1944, and claimants filed claim shortly thereafter. The award of the commission was not made until March 18,1946. In view of this delay, the appellees (claimants) have, by cross appeal, asked this court to render judgment for interest on each weekly payment from the time the payments should have been made (beginning in October, 1944) until the payment be actually made.
We bypass this cross appeal, because we hold that the question is not properly presented. Here is the reason : when the commission announced its award, on March 18, 1946, no such interest (as here claimed by appellees) was awarded. Appellees did not prosecute any appeal or cross appeal to the circuit court on this question of interest. Therefore, they are in no position to raise the question in this court.
The circuit court judgment affirmed the award of the Workmen’s Compensation Commission “with interest at 6°/o from date of final award by the commission.” The appellants, in their motion for new trial in the circuit court, did not claim that the circuit court judgment (allowing the interest as above stated) was erroneous; so, likewise, appellants cannot raise the interest question in this court. The judgment of the circuit court is in all things affirmed. | [
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Griffin Smith, Chief Justice.
E. B. Harris has appealed from a judgment based upon the charge of possessing intoxicating liquor for sale in dry territory. He was first tried before Harrison’s Mayor in City Court. From conviction he appealed and was fined $350 in Circuit Court. In the motion for a new trial errors as signed were (a) inadmissibility of evidence; (b) want of substantial evidence that tbe liquor found in the defendant’s home was intended for sale;, (c) a verdict should have been directed when the City conceded there was no municipal ordinance prohibiting the conduct complained of; (d) the jury ought to have been instructed in a manner consistent with § 14152 of Pope’s Digest. Other matters are argued, but they were not assigned in the motion for' a new trial — such, for instance, as the introduction of records showing payment of a fine in 1945 for a conviction in 1944, where the charge was possession of untaxed liquor.
First. — -(a). The evidence admitted and excepted to was that of officers and others who were allowed to testify that the defendant’s reputation for engaging in the illegal sale of liquor was bad. The Court, by Instruction No. 3, to Id the jury the State was permitted to show the general reputation of the defendant “with refernce to illegal sale of liquor within recent times, [but such testimony] can be considered only as tending to show the naturp of the business in which the defendant is or was engaged at the time of the alleged offense”.
It is argued here, as it was in Hughes v. State, 209 Ark. 125, 189 S. W. 2d 713, that, because the defendant did not testify, his reputation for illegally selling liquor could not be injected into the trial. In the Hughes case we cited Art. VI, Sec. 7, Act 108 of 1935, where it is provided that in any prosecution or'proceeding involving violation of the Act, the general reputation of the defendant for being engaged in the illicit manufacture of or trade in intoxicating liquor may be shown. .There was no error, therefore, in admitting the testimony of those who said the defendant’s reputation was bad.
Second. — (b). The officers procured a search warrant and went to Harris ’ home in Harrison where three fifth-gallon bottles of whiskey were found, in addition to some empty bottles. The officer had observed unusual activities at the Harris home, indicating that liquor was being dispensed. On one occasion the Police Chief followed a cab after the occupants had stopped at the Harris home. When the officer stopped the cab Leland Cole “took about a half of a fifth [of whiskey] out of Ms pocket and laid it on the [cab] seat”.
While this testimony and other facts brought ont at the trial might be construed to indicate that the accused had obtained the intoxicants for personal consumption, there is no assertion by witnesses for Harris that this was the case. He elected to rely upon weakness of the State’s position. We cannot say there was no substantial evidence to sustain the verdict.
Third. — (c). Appellant conceded that Secs. 9798-9 confer upon Mayors of Incorporated Towns and of Cities of the Second Class jurisdiction in criminal matters concurrent with Justices of the Peace where the crime occurs within the municipal corporation; but, says appellant, if the City acts through its Mayor process must run in the name of the State if there is no ordinance c'overing the subject matter. According to this construction the case should have been styled, “State of Arkansas v. E. B. Harris”, where the record discloses the City of Harrison to be the complaining party.
Marianna v. Vincent, 68 Ark. 244, 58 S. W. 251, held that an affidavit executed by the Marshal, and a warrant issued by the Mayor directed to the Marshal, was ample authority for the arrest of Vincent on a charge of selling whiskey, although the town did not have the power to prohibit sale of intoxicants. The opinion by Chief Justice Bunn says: “The affidavit for the warrant and the warrant itself, taken together, determined the jurisdiction of the Mayor, not what he or the Circuit Court said in the rendition of these respective judgments. There is no mention of an ordinance, nor reference to one, in the affidavit or warrant. The crime alleged in them was, at all events, a violation of the State law. . . . The Mayor of a town has the same jurisdiction to hear and determine cases under the criminal laws of the State as has a Justice of the Peace.” To the same effect are Watts v. State, 160 Ark. 228, 254 S. W. 486, and Sharp v. Booneville, 177 Ark. 294, 6 S. W. 2d 295. A more recent case is Thompson v. City of Little Rock, 194 Ark. 78, 105 S. W. 2d 537. In the Thompson case it was said that existence of an ordinance prohibiting a person from carrying concealed weapons was unimportant, since the subject was covered by State laws. Other decisions are cited in the ones we have mentioned. [See the fourth subdivision of § 3679 of Pope’s Digest].
Fourth.— (d). Finally it is urged that an instruction that if guilty the defendant could be fined in a sum not less than $250 nor more than $500 was erroneous, the contention being that § 14152 of Pope’s Digest is the applicable statute. It authorizes a fine of not less than $50 nor more than $100, and imprisonment for not less than ten days nor more than fifty “for any person to sell, lend, give, procure for, or furnish to another” any intoxicating liquors. This provision is a part of Art. VII, Sec. 6, Act 108 of 1935, and it imperatively requires, upon conviction, that a jail sentence of not less than ten days be imposed for the character of violation contemplated. We have held, however, that § 14134(c) of Pope’s Digest, fixes "the punishment of “Any person who shall by himself or his employee, or servant, or agent for himself, or any other person, keep or carry around on his person, or in any vehicle, or leave in a place for another to secure, any intoxicating alcoholic liquors with intent to sell the same in violation of [Act 108], . . . shall be' deemed guilty of a misdemeanor [and] shall be fined not less than $250 nor more than $500 for the first of: fense.” Joy v. State, ante, p. 185, 199 S. W. 2d 745. The' penalty was not mentioned in the Joy case, but the fine affirmed was $250. The charge was that the defendant possessed beer for the purpose of selling it, and that the offense occurred in a territory voted “dry” under Initiated Act No. 1 of 1942-43. There is no distinction in principle between the transaction at bar and the Joy case.
Specific objections were made in respect of the instruction which told the jury that evidence regarding the-defendant’s reputation for selling whiskey was admissible, and to the Court’s action in informing the jury that the applicable statute was § 14134(c) of Pope’s Digest. Only general objections were interposed to the other four instructions. ,
Although appellant in his brief argues that there is no authority of law for the City of Harrison to receive proceeds of the $350 fine, the matter was not included in the motion for a new trial, and hence is not subject to review.
Affirmed.
Act 284 of 1941 amends Sec. 9798 of Pope’s Digest (applicable to incorporated towns) and Sec. 9809 (applicable to cities of the second class) by inserting a proviso relative to justices of the peace and the disposition of fines. The question is not raised in the instant appeal.
Act 356 of 1941 amended art. 6, Sec. 1 (c) of Act 108 of 1935 by fixing the penalty at not less than $500 nor more thon $1000. Act 218 of 1943 amended Sec. 1 of Act 356 of 1941 (subdivision “c”- by fixing the fine at not less than $250 nor more than $500, as in Act 108. | [
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McIIaney, Justice.
This was an action for divorce brought by appellee against appellant on the ground of general indignities. A cross-complaint by appellant charged appellee with misconduct in keeping company with another man. Appellant was inducted into the armed forces of the United States in April, 1944, and was discharged in May, 1946, a goodly portion of his service being rendered overseas, in the E. T. 0. They have a young son, about six years of age at the time of trial, whose custody is here involved. They had acquired a homestead in the city of Marshall, due to their joint efforts, title to which is in appellant. The possession and use of this homestead is also here involved, as also that of a 1940 Chevrolet car. •
Due to an admitted act of condonation which occurred shortly before the trial in the lower court, the complaint and the cross-complaint were dismissed as being without equity, in so far as each sought a divorce from the other. The court found that appellee is the owner of the car and is entitled to its possession. Also that she is entitled to the temporary custody of the child, and the custody of the ,dwelling property, used, and occupied as their homestead. A decree was entered in accordance with these findings, from which comes this appeal.
For a reversal of this decree appellant contends, first that the court erred in granting'appellee the possession of the homestead, and was without power to award her the car, the family bankroll and all the furniture in the home. We think the decree as to the homestead and its contents did not amount to an order of permanent distribution. It vested no title thereto in her. It gave her only “the custody of the dwelling property, used and occupied as their homestead.” She and their child had been residing therein all the time appellant was away in the armed services, except such time as she spent with him at army camps where he was undergoing training before going overseas. We think the trial court had the jurisdiction to make the order here made. Austin v. Austin, 143 Ark. 222, 220 S. W. 46; Sheppard v. Sheppard, 181 Ark. 367, 26 S. W. 2d 88. As to the 1940' Chevrolet car awarded to appellee, the proof shows she bought the car in her own name and received a bill of sale thereto, so we think the court correctly awarded the car to her as her own.
It is also argued that the court erred in giving appellee temporary custody of their infant son. We do not agree. Appellant is not in a very good position to argue appellee’s unfitness to have the custody of their six-year-old child. Whether his charge of unfitness is real or fancied, the proof fails to show such depravity as would justify us in upsetting the finding of the trial court ip. this regard, even though appellant’s act of condonation had not occurred. But such an act did occur, after he had filed his answer and cross-complaint.
We think it would serve no useful purpose to set out the evidence in this regard or to further publicize charges which have been condoned. We express the hope that the love of each for their little son and their evident attachment for each other may bring them back together in a reunited and happy home.
Affirmed. | [
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Minor W. Millwee, Justice.
Plaintiff, Nettie Hos-kins, is a daughter and one of the heirs at law of J. J. Rogers, deceased, who died intestate at Elkins, Washington county, Arkansas, in December, 1945. Defendants are four sons, three daughters and eight children of a deceased son of J. J. Rogers, deceased, and are bis other heirs at law. Two of the sons were made defendants in their capacity as administrators of the J. J. Rogers estate, and the wives of the four sons are also defendants.
Plaintiff alleged in her complaint that several years before his death J. J. Rogers orally offered to purchase a home for plaintiff if she and her family would move from their home at Japton, Madison county, Arkansas, to Elkins in Washington county and keep house for him; that the offer was accepted and the family moved to Elkins and plaintiff performed the household duties in full reliance upon the oral offer to purchase a home for her; that thereafter her father, after ascertaining that the place was suitable to plaintiff, purchased the prop erty in controversy and agreed that same should become plaintiff’s property at his death; that in recognition of his promise, J. J. Rogers executed and acknowledged a. warranty deed conveying the property to plaintiff; that plaintiff faithfully performed her part of said agreement and did the cooking, washing, ironing and other household duties for her father for several years until his death in 1945, and was entitled to specific performance of said contract. The prayer of the complaint was that plaintiff be decreed to be the owner of the property and that her title thereto be quieted and confirmed against the defendants.
The defendants, except Amanda Johnson, a daughter of J. J. Rogers, deceased, answered and denied the allegations of the complaint. It was admitted that J. J. Rogers was the owner of the lands described in the complaint and that he obtained title thereto in the manner set forth in the complaint. The answer further alleged that if a deed was executed to plaintiff, same was void because it was never delivered and that J. J. Rogers died seized and possessed of the lands in controversy. The statute of frauds was also pleaded in bar of the alleged contract.
The cause was heard on oral testimony before the chancellor and a decree entered in favor of plaintiff directing specific performance of the contract. Defendants were ordered to execute and deliver a deed to plaintiff within 30 'days and, upon their failure to do so, the clerk was appointed commissioner and directed to execute and deliver the deed to plaintiff. All costs were taxed against the estate of J. J. Rogers, deceased.
The defendants, except Amanda Johnson, prosecute this appeal to reverse the decree for specific performance. Plaintiff and defendant, Amanda Johnson, have cross-appealed from that part of the decree taxing all costs against the J. J. Rogers estate.
The testimony on behalf of plaintiff tends to establish the following facts:
J. J. Rogers lived at Japton, Madison county, Arkansas, for many years, where he and his wife reared a large family. In 1929, he sold and conveyed to. plaintiff and her husband, Chester Hoskins, a 23-acre farm where the Hoskins made their home until 1934. At that time J. J. Rogers had acquired business and farming interests, including a canning factory, at Elkins in Washington county, Arkansas. These interests required his presence in Elkins, and it became necessary to have someone keep house for him there. Mrs. Rogers preferred to live in her home and remain among friends and relatives at Japton and declined to move to Elkins. In 1934, J. J. Rogers proposed to plaintiff and her thusband' that, if they would reconvey their Madison county home to him and move to Elkins and keep house and care for him the rest of his life, he would purchase a more suitable place for them at Elkins. Plaintiff and her husband reconveyed the1 Madison county land and the family moved to Elkins with her father.
' Plarqtiff and her family lived with her father in Elkins and she performed the household duties until 1937 when her young daughter died. Her parents thought it would be better for plaintiff to leave Elkins for a while and the Hoskins family moved to Gentry where the husband worked with his brother in the timber business. Mrs. Rogers, who had undertaken the household duties in Elkins, became dissatisfied and returned to Japton. In 1938, plaintiff and her family moved back to Elldus with J. J. Rogers at the request of both parents, after the father had renewed the offer to buy a home for plaintiff at Elkins.
After the return to Elkins, J. J. Rogers offered to purchase one place for plaintiff, but did not do so when it proved unsuitable to her. Mrs.'Rogers died in 1942. In November, 1942, Mr. Rogers had an opportunity to buy the property in controversy, which was known as the Race property, and did purchase it after plaintiff viewed the place and stated that it was suitable. They lived in the Race property for about five months. when J. J. Rogers purchased a larger place which was more con venient to the canning factory. They resided at this place and rented the Race property until his death in 1945, except for a period of three months in 1944.
On November 29, 1943, J. J. Rogers executed a warranty deed conveying the property in controversy to plaintiff, “subject to my lifetime estate.” This convey: anee recites a consideration of one dollar paid by plaintiff. It was placed in J. J. Rogers ’ box at the bank on the date it was executed and remained there until the grantor’s death.
' In January, 1944, a difficulty arose between plaintiff’s father and husband and the latter was asked to leave. Hoskins went to Fayetteville where he was later joined by plaintiff and their children, except the two oldest sons who remained in Elkins with their grandfather. During the three months they resided in Fayetteville, plaintiff continued to do the laundry and to prepare and send food to her father. Mr. Rogers made several trips to Fayetteville and requested his daughter to return to Elkins. On several occasions he threatened to destroy the deed to plaintiff unless she returned and resumed housekeeping for him. Plaintiff and her family returned to Elkins in April, 1944, and plaintiff continued to keep house and care for her father until his death in December, 1945.
There was other testimony from witnesses who apparently had no interest in the suit to the effect that J. J. Rogers told them he bought the property in controversy for plaintiff and had deeded it to her.
Amanda Johnson, a sister of the plaintiff, lived in Japton where she served as postmaster for 12 years. She was made a party defendant to the suit, but declined to contest it. She testified against her own interest as an heir, that her father told her that plaintiff was the only one he could get to stay with him; that he had deeded the Race property to plaintiff and had said: “I am to have say-so of this deed all my life and then it is to go to her.” After plaintiff moved to Fayetteville, Mr. Rogers requested Mrs. Johnson to go there and tell plaintiff that he would destroy her deed if she did not come back and take care of him. Mrs. Johnson talked with plaintiff and she returned to Elkins. Mrs. Johnson, and other witnesses, testified that plaintiff was attentive to her father and worked hard doing the housework for her father and cooking for several of his farm hands.
Opposed to the evidence on behalf of plaintiff was that of several of the defendants who testified that they heard nothing of an agreement between plaintiff and her father until after the latter’s death. There was other evidence that J. J. Rogers bought most of the groceries while plaintiff and her family lived with him. Two of the defendants, a brother and sister of plaintiff, testified that about the time their father was taken to a hospital in November, 1945, he told them in the presence of plaintiff and others that he wanted the bank cashier to come and write deeds conveying all his property to two of the sons so that it could be sold, the debts paid and the proceeds divided equally among the heirs. They also testified that plaintiff was present and stated that she did not want the Race property. This testimony was strongly refuted by plaintiff and other witnesses. J. J. Rogers did not die at the hospital, but returned home and improved in health to the extent that he made a trip to town and the bank where the deed to plaintiff was kept. He was in full possession of his mental faculties and there is no evidence that he attempted to make deeds to the two sons after he left the hospital.
The rule is well settled that before a court of equity may grant specific performance of an oral contract to convey lands the evidence of such agreement must be clear, satisfactory and convincing. In some of the cases it is said that it must be so strong as to be substantially beyond reasonable doubt. Williams v. Williams, 128 Ark. 1, 193 S. W. 82; Walk v. Barrett, 177 Ark. 265, 6 S. W. 2d 310; Kranz v. Kranz, et al., 203 Ark. 1147, 158 S. W. 2d 926.
Defendants earnestly insist that the testimony in the case at bar does not meet the test of the above rule and that there is such indefiniteness and uncertainty as to both the terms of the contract and its performance as to render it unenforceable in equity. It is first contended that there is no evidence that the offer of J. J. Rogers was accepted by plaintiff. In 17 C. J. S., Contracts, § 41, p. 374, it is said: “An acceptance of an offer may be by act, as where an offer is made that the offerer will pay or do something else, if the offeree shall do a particular thing. In such a case performance is the only thing needful to complete the agreement and to create a binding-promise, aS where a person proposes to another to work for him and the other enters on the work.” See, also, Southern Surety Co. v. Phillips, 181 Ark. 14, 24 S. W. 2d 870, which is cited in support of the statement of the text-writer. There was abundant evidence of performance by plaintiff which was sufficient to constitute an acceptance of the offer made by her father in the absence of a formal statement showing such acceptance.
It was shown that in May, 1945, J. J. Rogers mortgaged his property, including the property in controversy, for a loan of. $5,000. Defendants insist that the giving of the mortgage indicates that Rogers did not intend for plaintiff to have the property in controversy. The giving of this mortgage was not inconsistent with either the grant in the deed to plaintiff or the contract with her father. In Walker v. Eller, 178 Ark. 183, 10 S. W. 2d 14, this court held that it was not inconsistent for the owner o'f land to lease it for a term of years after he had executed a will devising it to someone other than the lessee. The giving of the mortgage when considered with the other facts did not amount to an attempt by J. J. Rogers to renounce his contract with plaintiff.
It is also contended that plaintiff is barred by the statute of frauds. In Fred v. Asbury, 105 Ark. 494, 152 S. W. 155, the court held that where an intestate verbally agreed that, if plaintiffs would give up their employment, change their residence and care for him the rest of his life, he would leave them all his property at his death, and plaintiffs complied with the agreement, their conduct was such as would take the contract out of the statute of frauds. In reaching- this conclusion the court quoted the language of Mr. Justice Hemingway in Hinkle v. Hinkle, 55 Ark. 583, 18 S. W. 1049, as follows: “But the defendant.pleads the statute of frauds, and the question is, if the statute applies, whether there has been such performance as to take the case out of its operation. Martin did everything he agreed to do. He gave up his employment, changed his residence, assisted in caring for his mother and in managing and conducting the business, moved upon the land and expended money in improving it. If the statute could defeat his claim, it would become a means of fraud, not of its prevention.” Defendants contend that this rule is inapplicable here because plaintiff was not placed in possession of the Race property. The evidence discloses that the parties to the contract resided in the Race property about five months, but were not living there at the time the father died. Although possession is one of the elements that eliminates the statute of frauds, the above rule was applied in Fred v. Asbury, supra, where the parties who were granted specific performance lived in their own home and were not in possession-of property which it was orally agreed should be given them upon the death of the donor.
In 49 Am. Jur., Statute of Frauds, p. 695, it is said: “Although an undelivered deed is deemed insufficient to take the contract out óf the statute, it may be of importance for the purpose of showing a recognition by the ■"vendor of the purchaser’s contractual rights under which the latter has taken possession, made improvements, or performed other acts which will take the contract out the statute under the equitable doctrine of part performance. ’ ’
In Naylor v. Shelton, 102 Ark. 30, 143 S. W. 17, Ann. Cas. 1914A, 394, a father agreed to will of deed a certain place to his daughter if she and her husband should take care of him the rest of his life. The father executed a will, but later destroyed it. It was held that the contract was taken out of the statute of frauds b3r full performance and by the making of the will. The court said: “As we have seen the contract was taken out of the statute of frauds by tbe acts of tbe parties; but, as tbe will could only take effect after Trundle’s death, his revocation by the destruction thereof left appellee to resort to the contract. The will was destroyed, but that did not destroy the contract by which the father bound himself to make a will of the land to appellee.” The deed made by J. J. Rogers under the circumstances in evidence tends to show his recognition of the contract with plaintiff and is a strong circumstance that the contract existed.
Defendants also argue that plaintiff breached and forfeited her contract by léaving twice. It is undisputed that plaintiff left the first time at the sugggestion of her parents, after the loss of her child, and that she returned when the parents made that request. When plaintiff went to Fayetteville her father did not treat the contract as rescinded, although he threatened to do so unless she returned and continued to perform the contract. Plaintiff did return and continued the performance of her duties under the contract for more than 18 months and until her father died. Any breach of the contract on her part was waived by the father.
Defendants rely strongly on the case of Lay v. Lay, 75 Ark. 526, 87 S. W. 1026. We think the facts in that case are distinguishable from those in the case at bar. In the Lay case the court emphasized the fact that no deed was made and that plaintiff never claimed the property as his own, but always referred to it as his father’s land. The father likewise claimed the land as his own until his death, although the ( contract was alleged to have been made some five years prior thereto.
We conclude that the chancellor was correct in holding that plaintiff established the agreement with her father by clear, satisfactory and convincing evidence, and that there was full performance of the terms of the contract by plaintiff. Having reached this conclusion, it is unnecessary to determine whether error was committed under § 5151, Pope’s Digest, in refusing to allow plaintiff to testify concerning transactions and conversations with her father, while defendant brothers and sisters were permitted to do so.
Plaintiff and her sister, Amanda Johnson, appealed from that part of the decree which adjudged all costs against the estate bf J. J. Rogers, deceased. Amanda Johnson was made a party defendant, but did not resist the suit and recognized the validity of the contract between plaintiff and her father. Plaintiff having won her suit and Amanda Johnson not having resisted it, their proportionate parts of the estate should not be charged with the court costs.
It follows that the decree will be modified so as to tax all court costs against the individual defendants who resisted the suit. As thus modified, the decree is affirmed. | [
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McHaney, Justice.
Solomon Turner, for whom appellants are guardians in this litigation, on January 13, 1938, conveyed to appellee, Annie M. Newton, sister of and trustee for the other appellee, Martin, by warranty deed, an undivided one-half interest in and to the oil, gas and other minerals in a described 80 acres of land in Ouachita county for a “consideration of the sum of $10 and other lawful considerations. ’ ’ On the same date said Turner conveyed by warranty deed, for the same recited consideration, an undivided one-fourth interest in the minerals in a described 40 acres of land in said county.
On December 5, 1945, nearly eight years after said conveyances by Solomon Turner and his wife, appellant William Turner was appointed guardian of the person and estate of his father and, on the same day, brought this action as guardian against appellees to cancel and set aside said deeds and the record thereof on the grounds of fraud on the part of appellee Martin in their procurement and the alleged insanity and incompetency of Solomon on, prior and subsequent to January 13,1938, the date of said deeds. The Turners are Negroes, and the complaint alleged that Solomon was 77 years old at the time of said conveyances and was incompetent; that appellee Martin is a white man, a lawyer, and is well versed in business matters in general and particularly in mineral interests, values and trading; that the consideration for the conveyance of an interest in the 40 acre tract was a conveyance by Martin to Solomon of an undivided interest in the minerals in a 40 acre tract in Columbia county, owned by Martin, which was of less value than that conveyed by Solomon; that the conveyance of the minerals in the 80 acre tract by Solomon was without consideration; and that both conveyances by the latter were made when he was mentally incompetent.
Appellees admitted the conveyances as alleged, but denied all allegations of fraud and incompetency of Solomon, or lack of consideration.
It developed that, during the pendency of the action, William Turner, guardian, attempted to settle and dismiss the action he had brought without the knowledge or consent of his counsel and the court thereupon appointed appellant, James Harvey Rumph, the clerk of the court, as substituted guardian for Solomon Turner, and the action was thereafter continued in his name.
Trial resulted in a decree for appellees dismissing the complaint for want of equity. In its decree the court found that Solomon Turner owned only a one-third interest in the minerals in the 80 acre tract at the time of his conveyance to appellees, although his deed recited the conveyance of a one-half interest therein, and that on April 20, 1938, appellee-Newton conveyed to Solomon an undivided one-sixth interest of the minerals therein, and that this deed “was given merely for the purpose of conveying back to Solomon Turner” the difference between, what he attempted to convey and what he actually owned. The court also found that, on1 January 13, 193'8, Solomon Turner was of sound mind and not incompetent and that appellants were barred by the seven year statute of limitations from maintaining the action; and that there was no fraud or lack of consideration.
Counsel for appellants assigns seven reasons for a reversal of the decree, and argues all of them, in the face of his admission in his brief “that it is the personal opinion of counsel for appellant that the learned'■Chancellor who tried this case actually committed no error which would affect the results of this suit on any of the first six points raised.” We agree with counsel that this is true. We do not set them out and comment on them separately. They relate to the admissibility of certain evidence offered and refused or admitted over objections, -the refusal of the court to permit a non-suit to be taken after submission of the case and after the court had indicated what the decision would be, and the finding that Solomon Turner was not mentally incapacitated or defrauded when he executed the deeds or that they were without consideration. The matter of the request to be non-suited, coming when it did, rested in the sound discretion of the court, there being no cross complaint. Watts v. Watts, 179 Ark. 367, 15 S. W. 2d 997. No abuse of discretion is shown. As to the mental capacity of 'Solomon, fraud and absence of consideration, the evidence was in dispute and, after carefully examining same, we agree that the preponderance of the evidence is in favor of the court’s finding,— at least we cannot say it is against the weight of the evidence.
The only other argument made relates to the action of the court in its ruling on the effect of the deed of appellees to Solomon Turner of April 20,1938, conveying to him an undivided one-sixth interest in the minerals in the 80 acre tract, heretofore referred to. The fact is that Turner owned only one-third of the minerals in the 80 acre tract, but through error conveyed a one-half interest to appellees by warranty deed. "When Martin discovered the error some weeks later, he called, on Turner to make good the difference of one-sixth either by an additional interest in the 40 acre tract or a cash consideration. Turner preferred the latter, paid the cash, according to Martin, who on April 20,1938, caused his sister to execute a deed to Turner to an undivided one-sixth interest in the 80 acre tract, as Martin says, to clear the record. The court accepted Martin’s explanation of the transaction, which is undisputed, and we think correctly so. Turner owned" only a one-third interest. While he conveyed one-sixth more than he owned, Martin acquired only a one-third interest and still has only a one-third interest. It appears to us to be to Turner’s interest to get that one-sixth interest over-conveyance back to relieve himself of liability on his warranty and for protection under our after-acquired title statute, § 1798 of Pope’s Digest.
The complaint did not raise this question. The evidence regarding it was brought out on cross-examination of- Martin, over his objections, and the court was asked by appellant to treat the complaint as amended to conform to the proof. We think the court correctly held that the deed of April 20, 1938, was a part of the original transaction between the parties and should be construed along with the deeds of January 13, 1938.
We find no error and the decree is, accordingly, affirmed. | [
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Ed. F. MoFaddin, Justice.
This appeal presents no question of law, but challenges the correctness of the factual findings made by the chancery court.
Appellants (Mr. and Mrs. Ward) owned a home near Alma, Arkansas, and in April or May, 1946, they entered into a contract with John T. Nix (one of the appellees) to have him construct two additional rooms to their home. The exact nature of the contract is one of the points in dispute. Nix was a contractor, and he obtained the materials and laborers, and the construction work was done under his supervision. In due time Roy Cromer (doing business as Fine Springs Lumber Company) filed a ma terialman’s lien for $613.46; and Nix also filed a claim for a balance alleged to be due him in an amount in excess of $860.23.
Thereupon the appellants filed a suit in the chancery court naming the appellees, Nix and Cromer and others, as defendants. The complaint alleged that the appellants had entered into an oral contract with Nix whereby he agreed to furnish the materials and labor, and to construct the two rooms for a total contract price of $925; that appellants had paid $382.12 and only owed a final balance of $542.88. They tendered this amount to Nix and prayed that he be required to accept that sum and cause his claim and that of Cromer (as well as any other possible lien claims) to be satisfied in full. As a second cause of action against Nix, appellants alleged that the work done and the materials furnished by Nix were defective; and appellants prayed damages for $500.
By answer and cross complaint Cromer claimed the correctness of his lien claim for $613.46, and prayed foreclosure of his lien. By answer and cross complaint Nix (1) denied he had entered into any such $925 contract as claimed by appellants, (2) denied that his work and materials were defective, (3) alleged that his contract with the appellants was to do the work at the actual cost of the labor and materials plus fifteen per cent, for his supervision and profit — %. e., a “cost-plus” contract, (4) alleged that the Cromer account was correct and that after all payments made by appellants had been credited, there was still due to Cromer and to Nix a total balance of $1,434.32, and (5) prayed judgment for the said amount and foreclosure of the respective liens of Cromer and Nix.
With issues thus joined the cause proceeded to trial; and the chancery court saw the witnesses and heard them testify. A decree was rendered, for Cromer for $613.46, and for Nix for a balance of $445.98. To reverse that decree appellants prosecute this appeal; and have grouped their arguments under these two topic headings:
(1) “The evidence conclusively established a contract between the parties.”
(2) “The testimony of the defendant, John T. Nix, is self-contradictory, admittedly false in places, contrary to his pleadings, evasive, disingenious and contrary to common experience and authorizes no basis for the court to find that the construction was to be upon a cost-plus basis.”
OPINION
At the conclusion of all the evidence the record reflects the following to have transpired:
“The court: This is just a question of fact, isn’t it? Counsel: Yes sir. The court: There is no law involved? Counsel: No, sir. Mr. Barton: We are willing to submit it. Mr. Bland: I don’t think we can assist the court by arguing it. The court: Well — I can pass on it eventually. I can’t immediately, but I will take it under advisement.”
A week later the Chancellor furnished each side a detailed, itemized statement (which is in the transcript), showing how he arrived at the figures in the decree, as previously stated. It would serve no useful purpose to set out, even in the briefest manner, the testimony of each of the witnesses. There were eighteen of them; and the case was a “swearing match” from beginning to end.
(a) On the issue of the $925 contract: Appellants introduced a copy of an estimate which they claimed was the basis of the oral contract; and they were substantiated by at least two witnesses. On the other hand, Nix testified, equally as positively, that the paper introduced was an estimate for a shedroom and not for the gabled addition actually made to the house. Nix was also supported by witnesses on this point. The Chancellor found that there was no contract whereby Nix was to do the work and furnish the materials for $925 as claimed by appellants; and the Chancellor allowed Nix to recover on a “ cost-plus basis. ’ ’ The fact that the 'estimate called for only six windows and that the rooms as built contained nine windows; the fact that a solid foundation was used instead of pillars; the fact that a new roof was placed on the entire house: these facts, and many others, not only negative appellants’ claim of a $925 contract, but also show the correctness of the Chancellor’s ruling on this point.
(b) On the appellants’ claim for damages: Nix testified that the work and materials were the best obtainable, and he was supported by witnesses. Appellants testified to numerous defects, etc., and they were supported by witnesses. The Chancellor found that the appellants were damaged in the sum of $300 ; and, after allowing the appellants that amount, gave Nix a judgment for a balance of $445.98 as previously mentioned. Nix has not cross appealed on this damage award so we need not refer to the evidence supporting the Chancellor’s findings on this point.
(c) On the amount of the materials and labor: Cromer’s claim was supported by competent evidence, and the labor claims were verified by the personal testimony of the workers; so that angle of the case is clearly correct.
A careful study of the entire record and all briefs fails to convince us that the chancery court decidgd against the preponderance of the evidence. What.we said in the recent case of Murphy v. Osborne, ante, p. 319, 200 S. W. 2d 517, applies exactly to the case at bar:
“The Finding of the Chancery Court Will Not Be Reversed on Appeal Unless Such Finding Is Against the Preponderance of the Evidence. Some of the scores of cases recognizing and reiterating this long established rule are collected in vol. 2 West’s Arkansas Digest, ‘Appeal and Error, ’ § 1009. In the case at bar the Chancellor saw each witness when, he testified. The Chancellor observed the demeanor on the witness stand, the inflection in the voice, and the hesitancy or rapidity of the words flowing from the mouth of the witness. The Chan cellor thus had an opportunity to see more than the mere words on the printed page which, alone, come to this court. With the testimony in this case in hopeless conflict, we cannot say that the chancery court decided against the preponderance of the evidence.”
Affirmed. | [
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Ed. F. McFaddin, Justice.
An instruction, concerning the measure of damages for the destruction of a hay crop, is claimed to be erroneous.
The landowner, McMillan (appellee), brought action against the Farm Bureau Lumber Corporation (appellant) for damages for the alleged destruction of a “20-acre meadow . . . which could have been harvested at a profit of $20 per ton.” Damages for $400 were claimed. The jury verdict was for $300. McMillan claimed that his meadow had been planted to lespedeza in 1945, and that the lespedeza reseeded itself in 1946, and would have produced a crop of hay, except that, in late April or early May of 1946, cattle (trespassing because of appellant’s alleged negligence) consumed and otherwise destroyed the growing hay crop. He testified that the fair cash market value of the crop at the time the hay was destroyed was $400. Other witnesses testified how much the hay crop would have been, except for the destruction thereof by the cattle. The trial court gave plaintiff’s instruction No. 4, which reads, in part: “If you find from a preponderance of the evidence that the hay meadow was destroyed as alleged in plaintiff’s complaint the measure of damages would be the actual cash value of such hay meadow at the time of its destruction . . . ”
Defendant (appellant) offered a general objection to the above instruction; and the giving of this instruction No. 4 is the only point argued on appeal. The appellant has this statement in its brief: “ . . . all errors allegedly committed by the court below in the trial of this cause are now waived by the appellant except the instructions given by the court below as to the measure of damages to appellee’s hoped-for hay crop, . . . ” This quoted statement — as well as the failure to argue any other points in the brief — constitutes an express waiver of all other assignments. See Plunkett-Jarrell Grocer Co. v. Freeman, 192 Ark. 380, 92 S. W. 2d 849, aiid cases there cited. We proceed therefore to consider this one point.
To support the correctness of the instruction No. 4, as given by the trial court, appellee cites and relies on these cases: Mo. Pac. R. Co. v. Nichols, 170 Ark. 1194, 279 S. W. 354; Railway Co. v. Lyman, 57 Ark. 512, 22 S. W. 170; St. L. I. M. & S. Ry. Co. v. Hoshall, 82 Ark. 387, 102 S. W. 207; Railway v. Yarborough, 56 Ark. 612, 20 S. W. 515; L. R. & F. S. Ry. Co. v. Wallis, 82 Ark. 447, 102 S. W. 390; Brown v. Arkebauer, 182 Ark. 354, 31 S. W. 2d 530; Mo. Pac. R. Co. v. Benham, 192 Ark. 35, 89 S. W. 2d 928. To support its contention that instruction No. 4 was erroneous, appellant cites and relies on these cases: St. L. I. M. & S. Ry. Co. v. Saunders, 85 Ark. 111, 107 S. W. 194; Dilday v. David, 178 Ark. 898, 12 S. W. 2d 899; Lamkins v. International Harvester Co., 207 Ark. 637. 182 S. W. 2d 203.
Under the facts in this case we hold that the instruction given by the trial court was not erroneous, since: (1) there was no proof of injury to the land, but only proof as to the injury to the hay crop, and (2) witnesses testified as to the fair cash market value of the hay at the time of its destruction, and (3) it was shown that the hay crop was then actually growing and had a value. What Mr. Justice Butler said in Mo. Pac. R. Co. v. Benham, supra, is apropos:
“From our own cases and the great weight of authority, the correct rule for the measurement of damages in ordinary cases for the destruction of grass or other perennial plants used on lands for meadow or pasture seems to be this: The damage recoverable is the value of the grass or crop at the time of its destruction where no permanent injury is suffered to the soil by the destruction of the roots of the grass or plants. Atlanta & B. Airline, etc., v. Brown, an Alabama case, reported in 158 Ala. 607, 48 So. 73; Risse v. Collins, 12 Idaho 689, 87 Pac. 1006; Evans v. Highland, etc., Co., 27 Utah 475, 76 Pac. 1135; Byrne v. Minneapolis, etc., Co., 38 Minn. 212, 36 N. W. 339, 8 Am. St. Rep. 668; International & G. N. R. Co. v. Saul, 2 Willson, Civ. Cas. Ct. App. 612; Thompson v. Chicago, B. & Q. R. Co., 84 Neb. 482, 121 N. W. 447, 23 L. R. A. (N. S.) 310.”
' In addition to the cases and texts cited in the above quotation, attention is also called to the following: L. R. & F. S. R. Co. v. Wallis, supra; Railway Co. v. Yarborough, supra; Crumbley v. Guthrie, 207 Ark. 875, 183 S. W. 2d 47; Annotations on “Measure’of Damages for Destruction of Perennial Crop” in 23 L. R. A., N. S. 310 and 37 L. R. A., N. S. 976; and see, also, 15 Am. Juris. 258 and 260.
The ease of St. L. I. M. & S. Ry. Co. v. Saunders, supra, most strongly relied on by appellant, inferentially points out the distinction between the “annual rental value of the land” and the “fair cash market value of the crop” (as announced in Railway v. Yarborough, supra, and given by the trial court in the case at bar): if the total destruction of the crop was at a time when the crop was too young to have a market value and when it was too late to plant another crop, then the “rental value of the land” is the rule that governs; but if the destruction of the crop was at a time when the market value could be determined, then the “market value of the crop” is the rule to govern. This distinction is directly made in Brown v. Arkebauer, supra. In the case at bar there was proof that the hay was growing and had a market value, so the giving of instruction No. 4 was not erroneous.
On the assignment argued, we affirm the judgment of the circuit court. | [
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Minor W. • Millwee, Justice.
Appellants, are six grandchildren of W. S. Rand, deceased, and brought this action in the Fulton Probate Court against appellee, A. C. Case, executor of the W. S. Rand estate, seeking to establish their status as pretermitted children under the will of their grandfather.'
W. S. Rand was a resident of Fulton county and the father of six children. A daughter, Bertha Rand, was twice married and died in 1934 survived by six children who are the appellants here. In November, 1945, W. S. Rand executed his last will and subsequently died being-survived by three sons, two daughters and the appellants, as his only heirs at law.
After providing for the appointment of appellee as executor, the-will contains the following bequest: “After the payment of all such debts, if any, and my funeral expenses, I give to my five grandchildren, who are children of my daughter Bert Rand Finley, deceased, the sum of $50 (fifty dollars) each; and to my daughter Tracey Rand Dillinger the sum of $100 (one hundred dollars). Such sums to be paid in cash.” The testator then bequeathed his household goods to two daughters and a daughter-in-law, and further directed that his farm, livestock and farm tools be sold and the sale proceeds, together with cash in a bank, distributed among his three sons, a daughter and a grandson, who were named in the will.
Appellants alleged in their petition that they were not mentioned in the will of their grandfather as required by law, and were, therefore, entitled to that portion of his estate which their mother would have taken luid she survived the testator and he died intestate.
The executor filed a response denying the allegations of the petition and alleging that it was the testator’s intention to bequeath $50 to each of the children of Ms deceased daughter; that the testator had not seen Ms grandchildren and did not know their total number, but was under the impression that there were only five at the time he made his will; and that the misstatement of the number of his grandchildren was an unintentional omission.
In support of the allegations of the response, appellee offered in evidence a part of the deposition of the scrivener who drafted the will. This deposition was taken in another suit to void the entire will, and that proceeding involved several parties who are not parties to the instant suit. The trial court sustained appellants’ objection to this evidence, which appellee contends was admissible under the decision of this court in Gulley v. Bache, 98 Ark. 583, 136 S. W. 667. In that case the court held (headnote 2) : “In order that a deposition taken in one suit may be admissible in another suit, it must appear that the latter suit is between the same parties and regarding the same issues.” Since the instant suit is not between the same parties and regarding the same issues, as the suit in which the deposition was taken, there was no error in the exclusion of this testimony.
The trial court, in construing the will, held the bequest, “to my five grandchildren, who are children of my daughter Bert .Rand Finley, deceased,” to be a gift to the grandchildren as a class, and that it was the intention of the testator to bequeath $50 to each of the appellants. Judgment was rendered accordingly.
For reversal of the judgment appellants earnestly contend that, since only five grandchildren are mentioned in the bequest, it is impossible to identify the one meant to be excluded and the will is thereby rendered inoperative as to all the appellants under § 14525, Pope’s Digest. This statute provides: “When any person shall make his last will and testament, and omit to mention the name of a child, if living, or the legal representatives of such child born and living at the time of the execution of such will, every such person, so far as regards such child, shall be deemed to have died intestate, and such child shall be entitled to such proportion, share and dividend of the estate, real and personal, of the testator as if he had died intestate; and such child shall be entitled to recover from the devisees and legatees in proportion to the amount of their respective shares, and the court exercising probate jurisdiction shall have power to decree a distribution of such estate according to the provisions of this and the preceding sections.”
In construing this statute in Brown v. Nelms, 86 Ark. 368, 112 S. W. 373, this court held that a will in which the testator provides for his children as a class, without expressly naming them, is a sufficient mention of his children within the statute. The court, speaking through Justice McCullough, said: “We think it is manifest that what was intended by the statute was to declare intestacy as to children of a testator, and thus provide compulsory provisions for them, unless the testator expresses a contrary intention in the will toward the children. Such an intention may be expressed by the testator in his will by providing for them as a class without naming them separately, or by naming them without providing for them. Either method is equivalent to the other, and either the one or the other clearly excludes any intention on the part of the testator to omit his children from the testament. It would, we think, be disregarding entirely the purpose of the statute, and would be putting form over substance, to say that the names of children must,be individually mentioned in a will which provides substantially for each and all of them.”
In LeFlore v. Handlin, 153 Ark. 421, 240 S. W. 712, tlie testatrix bequeathed, “Unto my son Louis LeFlore, of Stigior, Oklahoma, and to his children living at the time of my death, the sum of $100 each, ’ ’ and it was held that the bequest sufficiently designated the grandchildren of the testatrix and that the statute did not apply. The same rule was held applicable where the members of the class referred to were grandchildren in King v. Byrne, 92 Ark. 88, 122 S. W. 96. It was also held in Powell v. Hayes, 176 Ark. 660, 3 S. W. 2d 974, that a reference by a testator in his will to his “heirs” constituted a mention of his children who were his only heirs at law. See, also, Taylor v. Cammack, 209 Ark. 983, 193 S. W. 2d 323.
One of the leading American cases involving the question of class gifts is Thomas v. Thomas, 149 Mo. 426, 51 S. W. 111, 73 Am. St. Rep. 405, where a devise to “the six children of my son” was held to be a gift to the grandchildren as a class. In decisions from other jurisdictions the rule seems to be well established that where a testator misstates the number of legatees or devisees, who are entitled to take as a class under a particular bequest or devise, the estate devised will pass to the actual number falling within the class. In McMasters v. Shellito, 14 Pa. S. Ct. 303, where a testator overstated the number of those entitled to take as a class under a particular devise, it was held that the estate would pass to the smaller number who fell within the class. The court said: “Where a testator devises to the sons or daughters of a person named, and incorrectly speaks of them as being of a particular number, the number mentioned will be disregarded and all who fall within the class, whatever their actual number, will take under the devise: Berkeley v. Palling, 1 Russell, 496, and see.note; Thompson v. Young, 25 Md. 450; Lawton v. Hunt, 4 Strobhart’s Eq. (S. C.) 1; Shepard v. Wright, 5 Jones’ Eq. (N. C.) 20.”
In Lockhart v. Lyons, 174 Ark. 703, 297 S. W. 1018, this court said: “The true rule in the construction of wills, which can be said to be paramount, is to ascertain or arrive at the intention of the testator from the language used, giving consideration, force and meaning to each clause in the entire instrument.” When the entire will is considered we think the testator expressed his intention to include all of the appellants in the bequest to “my five grandchildren, who are children of my daughter, Bert Rand Finley, deceased” by providing for them as a class.' We find nothing-in the other provisions of the will to indicate that he intended to omit any of the children of his deceased daughter from the class named. The reasonable conclusion is that he merely misstated the number of the class and, under the aforementioned rule, the number “five” should be disregarded and all who fall within the class will take under the bequest. The testator did not, therefore, omit to mention appellants within the meaning of § 14525 of Pope’s Digest, supra.
It follows that the trial court correctly construed the will, and the judgment is affirmed. | [
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Bobins, J.
On March 28,1946, the mayor of the city of Searcy, Arkansas, found appellants guilty of misdemeanors and assessed fines against them. They promptly filed affidavits and bonds for appeals. The appeals not having beén lodged in the circuit court, appellants, on October 21,1946, filed in that court a petition for mandamus against appellee, as mayor, to require him to file the appeals. In the petition, the essential recitals of which are conceded, it is set forth that from time to time unavailing demands for filing of the appeals were made by appellants upon the mayor.
Under the provisions of Act 323 of 1939 it is made the duty of one appealing from an inferior court, such as that of mayor, to file the transcript in the office of the clerk of the circuit court within thirty days from the rendition of the judgment appealed from. We construed this Act in these cases: Lytle v. Hill, 205 Ark. 789, 170 S. W. 2d 684; Chavis v. Pridgeon, 207 Ark. 281, 180 S. W. 2d 320.
In both of these cases we held that it is mandatory on the person taking the appeal to see that the transcript is lodged with the clerk of the circuit court within the thirty day period.
It is argued that the allegations in the petition filed below by appellants were sufficient to show fraudulent conduct on the part of the mayor; but we do not find them so. Therefore it is unnecessary for us to discuss .the effect of a showing of fraud on the part of a magistrate in a matter of this kind.
The law plainly imposed on appellants the duty of filing the appeals within thirty days after their conviction; and, if they were unable to obtain the transcript from the mayor within that time, they should have, before the lapse of the thirty day period, applied to the circuit court for a rule on the mayor to require him to deliver the transcript to appellants for filing.
The petition of appellants not having been filed until more than thirty days after the date of the judgment against them did not entitle appellants to the relief prayed, even if all its allegations are true.
- The judgment of the lower court is accordingly affirmed. | [
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Grifein Smith, Chief Justice.
Deniston sought to eject Garland and Lillie Mae Langsford from Lots Five and Six, Block Nineteen, Niven’s Addition to the City of Bison. The defendants’ motion to transfer to equity was overruled and exceptions were saved.
Deniston’s claim of ownership rests upon the State’s deed executed by the Land Commissioner May 16, 1945.
It is conceded that title was in Lnla Culpepper who permitted the property to forfeit for the 1931 taxes. At the Collector’s sale in 1932 the lots were struck off to the State, with certification in 1984. They were included,in a confirmation decree rendered October 11, 1943, under authority of Act 119 of 1935.
It is stipulated that Lula Culpepper, notwithstanding the forfeiture for 1931 delinquencies, paid taxes for 1932 and her husband paid for 1933. Taxes for 1934 were not paid. George Holmes purchased at the Collector’s sale, in 1985, but the Bank of Bison as mortgagee redeemed and thereafter paid taxes through 1939. A third forfeiture occurred when taxes for 1940 were not paid. B. W. Thomasson became the purchaser and paid assessments for 1941,1942, and 1943. The Langsfords procured a special warranty deed from Thomasson January 22, 1944. The County Clerk’s deed to Thomasson evidencing his purchase for the 1940 delinquencies is dated December• 31, 1943. The Bank of Bison quitclaimed to Thomasson July 3, 1945, after its mortgage had been foreclosed. Taxes for 1944 and 1945 were paid by appellees.
Circuit Court, after overruling the motion of appellees to transfer to equity, found from the documents introduced, the stipulation of counsel, and the testimony of the County Clerk, that action of County taxing officials in reassessing the lots for 1932 and in collecting taxes and permitting redemptions from subsequent forfeitures created a legal presumption that Lula Culpepper redeemed after failing to pay the 1931 taxes, hence the State was without power to confirm in October 1943, and the Clerk’s certificate to the Land Commissioner in 1934 was without effect as to the lots in question. Judgment in the ejectment suit from which this appeal comes was rendered in August, 1946. The decision in Koonce v. Woods, ante, p. 440, 201 S. W. 2d 748, was rendered April 7, 1947. It deals with presumptions arising from assessment of real property and payment of taxes for a protracted period of time after forfeiture — in that case seventeen years — and the legal effect of such payments.
Appellees think the instant appeal is controlled by certain expressions in the Koonce-Woods opinion. In commenting upon Wallace v. Hill, 135 Ark. 353, 205 S. W. 699, and Townsend v. Bonner, 205 Ark. 172, 169 S. W. 2d 125, and in comparing the period there involved with the period of payment in the controversy then before us, it was said: “The period of time goes to the matter of good faith of a twofold character: faithful conduct by the State’s officers on the one hand, and good faith upon the part of the taxpayer. The difference in time can have no effect on the legal principle.” A petition for rehearing in the Koonce-Woods case was considered, and overruled May 26th. The opinion as a whole, we think, clearly reflects what the 'Court had in mind — that the presumption under discussion would never attach unless táx payments of the character in question had been made for a full fifteen-year period.
It does not imperatively follow that because appellees cannot invoke the presumption of redemption, reinstatement of assessments, and subsequent tax payments, that they are without a possible remedy. The delinquency for 1931 came when depressed financial conditions had resulted in forfeitures generally throughout the State. This status was dealt with by the Forty-Ninth General Assembly.- Act No. 2 of the First Extraordinary Session was approved August 18,1933. Sec. 2 of Act 2 permitted redemption at any time prior to January 1, 1934, by the payment of taxes due at the time the same- became delinquent plus all cost of the sale, but without penalty or interest. Act No. 2 of the Second Extraordinary Session was approved January 8,1934. Sec. 2 contains the same language found in § 2 of Act 2 of the First Extraordinary Session, but by § 1 the period of redemption is extended to April 10,1934. Act 2 of the Third Extraordinary -Session, approved April 12,1934, contains provisions similar to those of the First and Second Extraordinary -Sessions, but permits redemption at any time before October 1, 1934. Act 16 of the First Extraordinary Session .deals (among other things) with installment payment'of taxes. See also Acts 170 and 282 of 1935.
Since it is stipulated that Lula Culpepper or her husband paid taxes on the lots in 1933 for the assessment of 1932, and in 1934 for the assessment of 1933, the question is, Did either of these payments have the effect of redeeming from the 1931 forfeiture under either of the emergency Acts ?
Redemption under these laws must have been effectuated (if locally) through the County Clerk as distinguished from regular payment to the Collector; but there might be circumstances under which payment to the Collector on direction of the Clerk would in equity be equivalent to payment to the Clerk. Whether the purpose in making payment in 1933 and 1934 was to redeem in the special manner provided is not shown by any testimony; nor does the case appear to have been tried on that theory. In the motion to transfer to equity it was said (and the allegation was not denied) that the confirmation suit remained on the Court’s docket “and passed several terms without an order of continuance. It was removed from the docket and replaced [presumptively] at the time the decree of confirmation was rendered.” It is urged that the landowner was misled and therefore failed to intervene. While these were matters within the Court’s discretion in the absence of substantial evidence of injury, we think that in view of all the facts that have been shown in the action against appellees the case should have been transferred to equity where it could have been fully developed. Reversed and remanded with directions to certify such transfer. | [
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Holt, J.
Harriett Pikes, Administratrix of the estate of Percy Pikes, deceased, brought this action to recover damages to compensate for' the death of her husband, Percy Pikes, a Negro, who was struck and killed, south of the Main Street crossing in Malvern, Arkansas, by one of appellant’s trains at about 4:30 p. m., September 26, 1945. She alleged in her complaint that appellant and its employees, in operating the train, negligently and carelessly failed to keep a lookout, and, after discovering the peril of deceased, failed to use ordinary care to prevent injuring him, and that. they failed to warn him by giving the statutory signals. She sought damages for the benefit of herself as widow and for next of kin in the amount of $2,500, and for damages to the estate in the sum of $500. A jury awarded her $1,265 on her own account and for next of kin, and in a separate verdict assessed “her damage for the benefit of the estate in the sum of $235.”
This appeal followed.
The testimony was to the following effect! At the time appellee’s husband was killed, he was regularly employed at a canning plant near appellant’s yards in Malvern. He was about 56 years of age and earning $25 to $30 per week. In a previous accident, he had lost a leg and was wearing a “peg leg,” at the time he was fatally injured. At about 4:30 p. m., the deceased, when he had started home from his place of work, for his own convenience, walked along a well beaten path between appellant’s main line track and a side track, for some distance, with his back to the oncoming train. This path led across the main line track. While in this situation and approaching the track, he was struck by the outer edge of the front end of the engine and killed instantly. At the time he was struck, he was not at a regular crossing, but was more than 300 feet from the Main Street crossing over which the train passed. The appellant’s employees saw the deceased when he was about 15 feet from the track and approaching it, while the train was about 400' feet away, and there is evidence that they could have seen him for approximately 500 feet or more before he was struck. Appellant’s engineer testified: “Q. What part of your engine hit him? A. The pilot. Q. He wasn’t walking into the side of the engine? A. He didn’t walk into the side of it, no. Q. You hit him with the .extreme part next to.him? A. The corner of it.”
In these circumstances, appellant argues that there was no substantial evidence to take the case to the jury. It is our view, however, after a review of all the testimony, and giving to it its strongest probative force in favor of appellee and the jury’s verdict, 'that a case was made for the jury on appellee’s claim for damages for the benefit of herself and the next of kin, and these damages were recovered under the provisions of the Lookout Statute, § 11144 of Pope’s Digest.
While we agree with appellant that appellee’s intestate at the time he was struck and killed was a trespasser, or a licensee, on the property of appellant, it does not follow in the circumstances that there could be no recovery.
As to the rule governing in such cases, we said in the recent case of Missouri Pacific Railroad Company, Thompson, Trustee v. Merrell, 200 Ark. 1061, 143 S. W. 2d 51: “The fact is that appellee was either a trespasser or a licensee on the track of appellants. ... It can make no difference which, as appellants owed him no more duty as a licensee than they did as a trespasser, which was not to injure him willfully or wantonly after discovering his peril, or if his peril could have been discovered ‘in time to have prevented the injury by the exercise of reasonable care after the discovery of such peril.’ The lookout statute, § 11144 of Pope’s Digest, requires all persons running trains to keep a constant lookout for persons and property on the track, and if any person or property is killed or injured by neglect to keep such lookout, the railroad company shall be liable to the person injured ‘for all damages resulting from neglect to keep such lookout, notwithstanding the contributory negligence of the person injured, where, if such lookout had been kept, the employee or employees in charge of such train of such company could have discovered the peril of the person injured in time,’ etc., as above quoted,” and in Missouri Pacific Railroad Company, Thompson, Trustee v. Farman, 208 Ark. 133, 185 S. W. 2d 91, we said:
“We have had frequent occasion to consider the applicability of the lookout statute as applied to the various circumstances recited in the different opinions, and the law of the subject was summarized in the recent opinion in the case of Mo. Pac. Rd. Co. v. Severe, 202 Ark 277, 150 S. W. 2d 42, as follows: ‘. . . the mere finding of the body of a trespasser, apparently killed by a train, near or on the track, does not, of itself, make a case for the jury. It must be further shown, by testi: mony sufficient to raise a reasonable inference, that the danger might have been discovered and the injury averted by the trainmen, if a proper lookout had been kept. When testimony has been offered, sufficient to sustain the reasonable inference that the danger 'could have been discovered had the efficient lookout required by law been kept, then the burden devolves upon the railroad company to show, by a preponderance of the evidence, that such a lookout had been kept, and it is liable when it fails to do so.’ ”
In the present case, we are unable to say that there was no substantial evidence from which a reasonable inference could have been drawn by the jury that the danger might have been discovered and the death of appellee’s intestate averted by the trainmen had a proper lookout been kept.
’Appellant also insists that the case should be reversed on account of improper and prejudicial argument of one of appellee’s attorneys. The record discloses the following: “If the court please, we object to that statement, that the Missouri Pacific has a heart as cold as steel and would not pay the funeral expenses of the deceased for the reason we don’t feel any liability in this case, and are not supposed to pay it and ask the court to reprimand Mr. Glover. The Court. Mr. Ryan proceed, you have 25 minutes to answer. Mr. Ryan. Note our exceptions to the ruling of the court.”
We agree that this argument was improper and should not have been made. However, since the award of damages by the jury to the appellee for herself and next of kin, on account of her husband’s death, was not excessive, we cannot say that appellant’s rights have been prejudiced by the use of the above language. Obviously, we think the modest verdict would indicate the absence of passion or prejudice in the minds of the jury, and that they were not influenced by it.
Appellant next complains: “Because the court erred in refusing defendant’s motion to declare a mistrial in this cause, after the jury had been empaneled and after the testimony had been taken because of the relationship, as employer, of the juror, Mrs. Matthews, to the plaintiff.” We find this contention to be without merit. It appears that the appellee had on occasions) but “not lately,” done some work for Mrs. Matthews as well as for a number of “other white people.” We think the fact alone that the appellee had 'worked for Mrs. Matthews would not disqualify Mrs. Matthews as a juror. The record does not disclose that Mrs. Matthews was questioned on this point and appellant’s complaint comes too late.
Appellant also argues that the verdict of the jury for the benefit of the estate of the deceased, in the amount of $235 and the judgment for that amount was erroneous, and that this judgment should be reversed and this cause of action dismissed. We think this contention must be sustained.
At the close of all the testimony, the appellant requested an instructed verdict on both causes of action, which the court denied. It is undisputed, in the instant case, that appellee’s intestate was killed instantly. There could, therefore, have been no recovery for the benefit of his state in the absence of conscious pain and suffering on the part of the deceased.
In Brundrett v. Hargrove, Administratrix, 204 Ark. 258, 161 S. W. 2d 762, this court held: (Headnote 5.) “Since appellee’s son was killed instantly, Ms head being crushed and the evidence showed that he gasped only once, a verdict for pain and suffering is not justified. ’ ’
Finally, complaint was made about certain instructions relating to appellee’s right to recover for herself and next of kin. It would serve no purpose to set out these instructions. It suffices to say that after reviewing them, we think the court fairly and correctly declared the applicable law in the circumstances and that this contention is without merit.
Accordingly, the judgment for $1,265 in favor of appellee in her own right and for the next of kin, is affirmed, but the judgment for $235 for the benefit of the estate is reversed and the cause dismissed. | [
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Bobins, J.
Appellants, injured in a collision between the automobile in which they were riding and a truck owned by appellee, which was parked on the highway, brought separate suits against appellee, alleging that their injuries were caused by appellee’s negligence and seeking recovery of damages therefor. The complaints were substantially the same and the suits were consolidated by the lower court.
On demurrers of appellee the lower court held that the complaints did not set forth facts sufficient to show liability of appellee, and, appellants refusing to plead further, judgment dismissing the complaints was entered. To reverse that judgment this appeal is prosecuted.
The portion of the complaints by which, as appellants urge, liability is asserted against appellee is: That when the collision occurred “one Charlie Boy Thompson was-in a drunken stupor and under the steering wheel of said truck; that said driver of said truck was obviously in an intoxicated condition and was unaware, due to his drunkenness, of any of his actions; that said driver of said truck was taken into custody by law enforcement officials and a partially emptied bottle of whiskey was taken from beside said driver of said truck while he was still in said truck.
‘ ‘ That the said Charlie Boy Thompson, driver of said truck, was a known and habitual drunkard and was also at the time of the accident crippled to such an extent that he had to use crutches to walk; that the said Charlie Boy Thompson was the son of Oat Thompson and was staying in the house with Oat Thompson at the time of this accident and was working during the day, when weather permitted, for the defendant herein. Said Charlie Boy Thompson was employed by said defendant herein as his agent, servant or employee to drive the truck for said defendant during rice harvesting season; that the said Oat Thompson was employed by said defendant herein and placed in charge of harvesting defendant’s rice crop; that said Oat Thompson knew and was well acquainted or should have known and been acquainted with the habits of his son, Charlie Boy Thompson, and that his negligence while in the employment and in the course of his employment of said defendant in placing the defendant’s truck in such a place and in such a manner that he knew or should have known that his son would take said truck was the proximate and a contributing cause of this accident between plaintiff and defendant’s truck; that said Oat Thompson kept said truck at his home and had access to and was in charge of said truck at all times, both day and night, and that he negligently, carelessly and unlawfully and without regards of the rights of others, and while in the employment of said defendant left said truck accessible to his son, Charlie Boy Thompson, whom he knew or should have known would take said truck while in an intoxicated condition.
“That the defendant through his agent, servant or employee was negligent and that such negligence was the direct and proximate cause of damages below mentioned suffered by this plaintiff. ’ ’
It will be seen that tbe negligence asserted in tbe complaints, upon which recovery against appellee was sought, was the negligencé of appellee’s servant, Oat Thompson, in leaving the truck “accessible” to his son, Charlie Boy Thompson, when he should have known that Charlie Boy would drive said truck while intoxicated.
Principal reliance of appellants is our decision in the case of Chaney v. Duncan, 194 Ark. 1076, 110 S. W. 2d 21. The doctrine of that case is epitomized in headnote 5 as follows: “If any one permits another to drive his car, knowing such one to be a reckless or careless driver, or knowing that he is in the habit of becoming'intoxicated and driving in that condition, he will be liable for any injury caused by the negligence of such driver. ’ ’
We have no such situation in the case at bar. In that case the owner of the car was held liable for permitting his drunken son to drive the car to another’s injury. In this case the owner is not charged with having permitted a drunken person to drive his car, but we have here an effort to hold the owner liable for the alleged negligence of the owner’s servant in making the truck “accessible” to a drunken driver.
It is axiomatic that before ai master may be held liable for the negligent act of his servant such act must be in the scope of employment of such servant. We have frequently held that the owner of a car is not liable for an injury negligently inflicted by the owner’s servant while driving the car on a mission "of his own. The basis of the holding in stich cases is that the servant, at the time of the injury, is not doing work which the master has authorized him to do, and, therefore, for the time being, is not in reality the master’s agent. “The act of the servant for which the master is liable must pertain to something that is incident to the employment for which he is hired, and which it is his duty to perform, or be for the benefit of the master.” Sweeden v. Atkinson Improvement Company, 93 Ark. 397, 125 S. W. 439, 27 L. R. A., N. S. 124; Carter Truck Line v. Gibson, 195 Ark. 994, 115 S. W. 2d 270.
In the case of Healey v. Cockrill, 133 Ark. 327, 202 S. W. 229, we held that where a chauffeur, being directed by the owner to drive her car from her garage to the front of the owner’s residence, drove the automobile on a mission of his own a distance of several blocks and while returning to his master’s residence negligently injured smother person, the owner was not liable for such injury; and we quoted from our opinion in the case of Sweeden v. Atkinson Improvement Company, supra, as follows: “ ‘Th'e mere fact that he was in the service generally of the master or that the servant was in possession of facilities afforded by the master in the use of which the injury was done would not make the act attributable to the master. The act must have been done in the execution of the service for which he was engaged. ’ ’ ’
We held in the case of Thomas v. Magnolia Petroleum Company, 177 Ark. 963, 9 S. W. 2d 1, that the lower court properly sustained a demurrer to a complaint against an oil company which alleged that the driver of one of the company’s trucks, on a trip for the company, invited appellant, a boy, to ride with him and by negligent operation of the truck injured appellant. We said in that case that, since it was not alleged that the driver had authority from the company to invite appellant to ride, no liability against the company was shown.
In the case of Hough v. Leech, 187 Ark. 719, 69 S. W. 2d 14, the appellee had been awarded in the lower court a judgment against J. D. Hough and H. M. Hough for the negligent shooting of her husband. J. D. Hough owned a store and his son, H. M. Hough, worked for him therein. While J. D. Hough had gone to lunch H. M. Hough secured a pistol and negligently shot appellee’s husband. In denying recovery against the elder Hough the court, in that case, said: “In the instant case the act was committed during the existence of the employment, but it was certainly not committed in the prosecution of the master’s business. It had no connection with the master’s business.”
Holding, in the case of Reid v. Woods, 192 Ark. 884, 95 S. W. 2d 637, that a sheriff who loaned his automobile to his deputy, to be used in making a visit to the deputy’s sister, and having no connection with his business as deputy sheriff, was not responsible for an injury caused by negligent operation of the car, we quoted with approval the following from Blashfield’s Cyc. of Automobile Law, § 3025: “ ‘ Under the general rule a loan of a machine does not carry with it responsibility for the negligence of the borrower, where a servant, while not engaged in the master’s business, and during a time when he is free to engage in his own pursuits, uses the master’s automobile for his own purposes, and while so using it negligently injures another by its operation,, the master is not liable, no'statute so prescribing, although such use is with the knowledge and consent of the master.’ ”
We stated, in the case of Lindley v. McKay, 201 Ark. 675, 146 S. W. 2d 545, (headnote 4) the applicable rule as follows: ‘ ‘ The act of the servant for which the master is liable must pertain to something that is incidental to the employment for which he is hired and which it is his duty to perform or be for the benefit of the master.”
Even where the servant, in whose charge the master had placed a truck to bo used by the servant as a driver-salesman, took the truck, driving it, while he was drunk, on a mission of his own, and negligently injured another, it was held in Fooks v. Williams, 205 Ark. 119, 168 S. W. 2d 193, that the owner was not liable for such injury.
If we should hold that the allegations of the complaints were sufficient' to charge that appellee’s servant impliedly permitted Charlie Boy to drive the truck, there is nothing in the complaints from which it may be deduced that either granting of such permission by Oat Thompson or making the truck “accessible” to Charlie Boy was within the scope of Oat’s employment.
An automotive vehicle is not an inherently dangerous instrumentality. Hunter v. First State Bank, 181 Ark. 907, 28 S. W. 2d 712. Therefore, no liability could be imputed to appellee merely because be or bis servant did not take precautions to prevent tbe improper use of bis truck by an unauthorized and incompetent person.
Tbe complaints did not charge appellee himself with any actionable negligence, and tbe acts or omissions charged as negligence against appellee’s servant were not acts or omissions occurring in the scope of tbe servant’s employment so as to render appellee answerable therefor. The lower court properly sustained demurrers to tbe complaints.
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Holt, J.
This action was instituted June 21, 1946, in the name of the State, in the Benton Circuit Court, by the prosecuting attorney of that district, against J. Frank Smith and Eli Leflar, challenging the right of each of these parties to serve as judge of the municipal court of the city of Rogers. The action is brought under what is known as the Usurpation Statute, §§ 14325-14332, Pope’s Digest.
The petition, and amendment thereto, alleged that Eogers is a city of the first class and by ordinance May 5, 1946, established a municipal court in said city under the authority of 9897-9912, inclusive, of Pope’s Digest. It was further alleged that after the passage of the ordinance, the office of municipal judge was vacant and “the clerk of said municipal court called for an election of a judge by the attorneys and the respondent, Eli Laflar, was designated as said judge by the attorneys voting, . . . and that the respondent, Eli Leñar, is acting as judge of said municipal court, ”... and (at the time the suit was filed) “is assuming to act continuously as municipal judge and for the full term of two years until the next regular city election, by virtue of said election by the attorneys,” and “that Eogers, Arkansas, is a municipal corporation of the first class and that the respondent, J. Frank Smith, is the duly elected mayor of said city, and as such mayor has been assuming to act as ex-officio judge of said municipal court and has tried and decided cases as ex-officio municipal judge. Petitioner states further that said respondent, J. Frank Smith, is also assuming to exercise criminal jurisdiction as judge of the mayor’s court of said city of Eogers,” and it was prayed “that the bench of the municipal court of the city of Eogers be declared vacant and that said court be declared as the court of sole criminal jurisdiction within said city, and for all other relief to which petitioner may show itself entitled.”
Eli Leñar, one of the respondents, alleged that under the ordinance, supra, which he made a part of his response, he was the duly elected and qualified judge of the municipal court of Eogers, entitled to the office, and that J. Frank Smith is a usurper and prayed that the court so declare. Section 4 of the ordinance provides: “Immediately after passage and approval of this ordinance, the clerk of the court shall give notice to attorneys to elect a special judge to fill the existing vacancy, as provided for in § 9901 of Pope’s Digest of the Statutes of Arkansas. Said special judge so elected by the attorneys shall receive the same salary as hereinabove provided for the regularly elected judge, and shall hold office until the next regular city election, at which time, and at each regular city election held every four years thereafter, a municipal judge shall be elected for a term of four years. ’ ’
Mayor J. Frank Smith answered with a general denial, “and for affirmative defense states that the respondent, Eli Leflar, is assuming to exercise the jurisdiction and performing the functions of judge of the Rogers municipal court without legal right and is, therefore, a usurper.”
Three resident citizens and taxpayers intervened and alleged, among other things, “that there is no municipal court in the city of Rogers, and (one) cannot at this time be formed . . , there being no legal authority for the institution of a municipal court in said city,” and prayed accordingly.
The cause was submitted on the pleadings and an agreed statement of facts, the material portions of which were embodied in the judgment of the trial court. The judgment contained the following recitals: “The court further finds that the respondent, J. Frank Smith, is not entitled to assume the office of ex officio judge of said municipal court and that he was not a police judge at the time of the passage of said ordinance No. 292, and that he is not qualified under the law to hold said office. The court further finds that the respondent, Eli Leflar, is not entitled to hold the office of municipal judge under the law in that § 9901 of Pope’s Digest applies only to the election of a special judge when the regular judge of the municipal court is unable to appear; that Eli Leflar was the regularly elected special judge only for those cases which were before the court at the time of said election, and his election by the attorneys did not constitute a filling of the vacancy in the office of municipal judge.
“The court finds that the bench of the municipal court in Rogers is vacant and that both the respondents, J. Frank Smith and Eli Leflar, should be ousted from any right, title or claim of said office of muncipal judge, either regular, special or ex officio.
“It is, therefore, considered, ordered and adjudged by the court that tbe bench of the municipal court of Rogers be and it is hereby declared vacant, and that the respondents, J. Prank 'Smith and Eli Leflar, be and they are hereby ousted from any right, title or claim to the office of judge of said municipal court, either as regular, special or ex officio judge. ’ ’
i
J. Prank Smith, alone, has appealed.
On this state of the record, at the very threshhold, we are met with appellant’s contention that the prosecuting attorney, under what is known as the Usurpation Statute, lacked authority to institute the present suit, and on the authority of State v. Tyson, 161 Ark. 42, 255 S. W. 289, reaffirmed in Purdy v. Glover, 199 Ark. 63, 132 S. W. 2d 821, we must, and do, sustain this contention. In the Tyson case, the prosecuting attorney had brought suit to test the right of one to hold the office of town marshal under the Usurpation Statute, then § 10325, et seq., C. & M. Digest, now § 14325, et seq., of Pope’s Digest. After pointing out, that under § 10328 of C. & M. Digest, now 14328, Pope’s Digest, for usurpation other than county offices, “the action by the State shall be instituted and prosecuted by the attorney general,” this court said: “The remaining question in the case is whether or not the action may be instituted by the prosecuting attorney. The statute quoted above (now § 14327, Pope’s Digest) provides that the prosecuting attorney may only bring such actions against persons who usurp county offices. We held in State v. Higginbotham, 84 Ark. 537, 106 S. W. 484, that such an action could not be brought by the prosecuting attorney against any officer except a county officer, adopting the definition given by the Supreme Court of the United States in Sheboygan County v. Parker, 3 Wall. 93, that ‘an officer of the county is an officer by whom the county performs its usual functions; its functions of government.’ The decisions cited, supra (Payne v. Rittman, 66 Ark. 201, 49 S. W. 814; Whittaker v. Watson, 68 Ark. 555, 60 S. W. 652) are decisive that municipal officers are not county officers within the meaning of the usurpation statute, so the action could not be brought by the prosecuting attorney. The circuit court has jurisdiction in such actions (State v. Sams, 81 Ark. 39, 98 S. W. 1955), but, except in tbe case of county officers, suit tírust be instituted by tbe attorney general. Appellee bad tbe right to challenge the authority of the prosecuting attorney, even though he acted in the name of the State. And since it appears that the action was instituted without legal authority, the circuit court was correct in dismissing the complaint.” There was .no showing of a demand on the attorney general, and his refusal to bring the instant suit.
Some of the sections of the statutes, and decisions of this court, affecting transactions of the nature herein presented, are: 9578 and 9941 of Pope’s Digest, as amended by Act 154 of 1943, and Payne v. Rittman, 66 Ark. 201, 49 S. W. 814, and Hogins v. Bullock, 92 Ark. 67, 121 S. W. 1064, 19 Ann. Cas. 822.
We, therefore, hold that since the office involved here is a municipal office and not a county office, the prosecuting attorney .was without authority to institute the suit and accordingly the judgment is reversed and the cause dismissed. | [
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En. F. McFaddin, Justice.
From a decree, adjudging a foreclosure- and refusing to cancel certain instruments, appellant prosecutes this appeal'.
On November 8, 1944, the appellant, Jim Murphy, executed a note to the appellees James and John Osborne for $1,000, due October 15, 1945, and secured by a mortgage on 40 acres of land. The mortgage was duly acknowledged and recorded. On November 1, 1945, the note being past due and unpaid, the Osbornes, filed this suit for judgment and foreclosure. Murphy filed an answer and cross compaint: (1) he admitted executing the note and mortgage but claimed he had received only $100 instead of $1,000; he offered to confess judgment for $100 and interest, and pleaded failure of consideration for the remaining $900; (2) by way of cross complaint he listed several other instruments (a deed and some mortgages) shown by the record in the Circuit Clerk’s Office to have been executed by him to the Osbornes; and he claimed these were all fraudulent and should be cancelled. The Chancery Court rendered a decree in favor of the Osbornes; and Murphy has appealed.
The evidence in this case is as sharply contradictory as is imaginable. Either the appellees have grossly swindled the appellant or he is trying to use his age and professed ignorance to defraud the appellees. If neither of these conclusions is correct, then the parties must have had many dealings which they would not admit at the trial. We agree with the Chancery Court in the statement that the full truth may never be known- about the dealings between the parties in this case. But the law has certain well established rules which are used to weigh the evidence and reach the result in a cáse such as this, both in the lower court and in this court on appeal. We proceed, therefore, to apply these rules to this' case.
I. The Burden Was on Murphy to Defeat the Note. Murphy admitted signing the $1,000 note sued on. Section 10182, Pope’s Digest, says “Every negotiable instrument is deemed prima facie to have been executed for a valuable consideration ...” Even though the above section comes to us from § 24 of the Uniform Negotiable Instruments Law, adopted by Act No. 81 of 1913, it is declaratory of what has been the law in Arkansas ’ever since Statehood. Gage v. Melton, 1 Ark. 224, holds that (a) a negotiable instrument is presumed to be based on a valid consideration, and '(b) the burden of showing-want or failure of consideration is on the defendant when he admits executing the note. The scores of cases affirming and following that case are collected in West’s Arkansas Digest “Bills and Notes,” § 493. So, when Murphy admitted executing the note, the law placed on him the burden to prove failure of consideration of the $900 as he claimed.
With all the conflicting evidence, we are unable to say that Murphy discharged that burden in the trial court. Some circumstances support Murphy, while others strongly belie his words and indicate the contrary to be true. It would serve no useful purpose to review all the evidence. It is sufficient to announce our conclusion: which is, that Murphy failed to prove failure of consideration of $900 on the note. He failed to prove this by even a mere preponderance of the evidence, which he claims is the applicable rule. Certainly, he wholly failed in the burden on him to offer “clear, cogent and convincing evidence’’ to have the deeds and mortgages can-celled; and that, undoubtedly, is the applicable rule in a case seeking cancellation of deeds and mortgages such as Murphy sought by his cross complaint in this case. See the many cases collected in West’s Arkansas Digest “Cancellation of Instruments,” § 47.
II. The Finding of the Chancery Court will not be Reversed on Appeal unless such Finding is against the Preponderance of the Evidence. Some of the scores of cases recognizing and reiterating this long established rule are collected in West’s Arkansas Digest “Appeal and Error,” § 1009. In the case at bar the chancellor saw each witness when he testified. The chancellor observed the demeanor on the witness stand, the inflection in the voice and the hesitancy or rapidity of the words flowing from the mouth of the witness. The chancellor thus had an opportunity to see more than the mere words on .the printed page which, alone, come to this court. With the testimony in this case in hopeless conflict, we cannot say that the Chancery Court decided against the preponderance of the evidence.
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Minor W. Mill web, Justice.
This is a suit hy appellants, Martha Stone Hardy, Duncan B. Stone and Edythe F. Stone Walker, to cancel certain deeds to appellees, and others, to 16 acres of land situated in and adjacent to the City of Fayetteville, Arkansas. The cause was submitted to the trial court upon the pleadings which consist of a complaint and answer together with numerous exhibits, and a stipulation of the parties.
The record discloses that Stephen K. Stone, grandfather of appellants, died testate in 1909, and under the terms of his will a 34% acre tract of land, including the lands in controversy, was devised to his son and daughter-in-law, A. B. Stone and Edythe F. Stone, parents of appellants, for life, with remainder to appellants. A. B. Stone conveyed his life interest to his wife in 1915. In May, 1925, A. B. Stone and wife, Edythe Stone, together with appellant, Martha Stone Hardy, filed a petition to sell the 34% acre tract and to reinvest the proceeds of the sale in a more suitable home for the parties, or in revenue producing securities. Appellants, Duncan B. Stone and Edythe F. Stone, minors, were made parties defendant, and a decree was entered in accordance with the prayer of the petition, but there was no sale of the property under this decree.
On March 4, 1926, another decree was rendered in the cause again authorizing the sale of the property for reinvestment. This decree shows service of summons on the minor defendants, the appearance of the defendants in person and by guardian ad litem appointed by the court, and answer of said guardian ad litem. The decree was rendered after evidence was heard on the petition and contains the following findings: ‘£ The court further finds that said land is not a suitable home for the said plaintiffs and defendants or any of either the plaintiffs or defendants, that it will require the expenditure of a large sum of money on said land in order to provide a proper residence for either said Edythe F. Stone or of either of the plaintiffs or of said defendants which expenditure of money neither of the plaintiffs or defendants is in a position to expend; that said land does not and cannot produce revenue sufficient for its upkeep and maintenance. The court further finds that it is to the best interest of both the plaintiffs and of all the defendants that the property above described be sold at private sale and that the money derived therefrom be properly invested in a suitable home for the parties hereto or that the same be invested in either income real estate, stocks, bonds, mortgages or other securities to be approved before investment by the court.”
The decree further provided that the 34% acre tract be sold as a whole, or in part, by L. B. Stone, who was appointed commissioner to conduct the sale and required to post bond for faithful performance of the decree. It was further ordered that the funds derived from the sale be impounded subject to investment under orders of the court for the use and benefit of Edythe F. Stone, as sole beneficiary of the life estate, and appellants, as remaindermen. The court retained jurisdiction for further proceedings that might be had in connection with any sale of the lands.
L. B. Stone failed to qualify and act as commissioner and on April 5, 1930, a decree was entered discharging him and appointing A. B. Stone commissioner 'to carry out the provisions of the 1926 decree. The 1930 order required A. B. Stone to make bond. On November 22, 1932, he filed a report of sale of the 16 acre tract in controversy to his sister, Amanda M. Stone, and submitted his deed as commissioner to the court for approval. On the same date an order was entered approving the sale and deed as follows: “On this day A. B. Stone, duly appointed, qualified and acting as commissioner in the above entitled cause having submitted to this court his report of sale of the west sixteen acres of a tract of land involved in the above entitled cause, and having also submitted to the court his deed of conveyance of said sixteen acres to the said Amanda M. Stone for the sum of $1,500 said report and deed are hereby in all things by the court approved.”
Amanda M. Stone held possession of the 16 acre tract from the date of her purchase until April 15, 1944, when she conveyed four acres of the tract to H. E. Parrish, trustee for the bondholders of two improvement districts in which the four acre tract was located. On April 21, 1945, H. E. Parrish conveyed said four acre tract to appellee, Bert S. Lewis, who redeemed the property from the state for delinquent taxes of 1932 and subsequent years.
Amanda M. Stone continued in possession of the remaining 12 acres and paid the taxes thereon until she died testate on March 12,1945. The executor of her will was directed to sell all of her property, including the remaining twelve acre tract in controversy, and to distribute the proceeds of the sale among her brothers ’ children, including the appellants, in equal parts. Appellees, John M. Hilton and Mrs. Fannie Walker, purchased said 12 acre tract at the executor’s sale on October 12, 1945, for $1,250. Appellants participated in a partial distribution of said estate as legatees under the will of their aunt, Amanda M. Stone. The funds distributed, and yet to be distributed, include proceeds of the sale of the 12 acre tract.
A. B. Stone died in 1945 and on April 8,1946, Edythe F. Stone, his widow, conveyed whatever interest she had in the 16 acres in controversy to appellants who instituted this suit on May 23, 1946.
A decree was'entered February 14, 1947, dismissing the complaint of appellants for want of equity and quieting the title of appellee, Bert S. Lewis, to the four acre tract in controversy; also quieting the title of appellees, John M. Hilton and Fannie Walker, to the 12 acre tract.
Appellants do not challenge the jurisdiction of the chancery court over the parties or the subject matter of the decree rendered in March, 1926, under which the sale of the lands was made. They recognize the rule announced in Bedford v. Bedford, 105 Ark. 587, 152 S. W. 129, where this court held that equity had jurisdiction to order the sale of property for reinvestment in which there were different estates involved, including contingent remainders, notwithstanding the fact that one of the remaindermen is a minor. Chief Justice McCulloch, speaking for the court in that case, said: “This court held, in Watson v. Henderson, 98 Ark. 63, 135 S. W. 461, that courts of equity have no jurisdiction to order the sale of a minor’s lands for reinvestment, the exclusive jurisdiction over the estates of minors being vested by the Constitution in probate courts.
“The fact, however, that one of the class of contingent remaindermen is an infant does not deprive the chancery court of jurisdiction, if jurisdiction is otherwise conferred. The fact that the probate court, has exclusive jurisdiction over the estates of infants does, not deprive the chancery courts of jurisdiction to sell parts of their estates, for instance, for the purposes of partition, or for the foreclosure of liens, or in other cases where, upon other grounds, jurisdiction is conferred upon chancery courts. The question in this case is not whether the jurisdiction is exclusively vested in some other court, hut whether there is any authority to sell lands for reinvestment where there are different interests or estates, including contingent remainders.” The court then affirmed the decree of the chancery court approving a private sale of the lands for the purpose of reinvestment, saying: “It is the duty of the chancery court, not only to safeguard the sale itself, but to follow up the reinvestment of the proceeds so as to see to it that the will of the original testator is carried out. This seems to have been done by the court in the present instance. ’ ’
For reversal of the decree appellants earnestly insist that no bond was required of their father as commissioner in the sale of the lands to their a,unt, and that the consideration for the deed was not impounded for the purpose of reinvestment as provided in the 1926 decree. Appellants so alleged in their complaint, but these allegations were denied in the answer of appellees and the burden of proof was upon appellants on these issues. Appellants offered no proof in support of these allegations except the orders and records of the court. Under the decree appointing A. B. Stone commissioner to sell the lands, or a part thereof, for reinvestment he was required to make bond, and in the order approving the sale and deed he is designated as the “duly appointed, qualified and acting” commissioner. The chancery court is a court of general or superior jurisdiction and had jurisdiction of the parties and subject matter and all reasonable presumptions must be indulged in favor of the regularity and validity of the proceedings on collateral attack. In Hooper v. Wist, 138 Ark. 289, 211 S. W. 143, the court said: “It is well settled in this State that in a collateral attack upon a judgment of a court of general jurisdiction every presumption will be indulged in favor of the jurisdiction of the court and the validity of the judgment or decree.”
While the decree under which the land was sold directed the reinvestment of the proceeds of the sale either in a more suitable home for the parties or revenue producing securities, the record is silent as to whether this requirement was followed up by the court. The contention of appellants is that the court was without authority or jurisdiction to confirm the sale without an affirmative showing in the record that the consideration was actually paid into court and reinvested for the benefit of the life tenant and remaindermen. This contention is contrary to the general rule that proceedings of a court of superior jurisdiction with respect to jurisdictional facts, as to which the record is silent, are presumed to be within the scope of its jurisdiction, until the contrary is shown. The case of Flowers v. Reece, 92 Ark. 611, 123 S. W. 773, involved a collateral attack on a judgment of the probate court, and this court said: “The rule is that where the record is silent with respect to any fact necessary to give the court jurisdiction, it will be presumed that the court acted within its jurisdiction.” Since appellants offered no proof to sustain the allegation of their complaint that the funds were not impounded for reinvestment, other than the mere silence of the record on this point, we must indulge the presumption that the chancery court was acting within its jurisdiction when it approved the commissioner’s sale and deed to Amanda M. Stone.
Appellees pleaded the statute of limitations, laches and estoppel in their answer. According to the stipula-^ tion of the parties the youngest of the appellants, Edythe F. Stone Walker, was 33 years of age at the time of the trial and must have been 17 or 18 years of age at the time of the commissioner’s sale of the lands in controversy. Although they were parties to the proceedings leading up to the commissioner’s sale they have stood by for nearly 15 years since the youngest became of age and made no objection to the decree under which the sale was made and acquiesced therein by participating in the distribution of the estate of their aunt, Amanda M. Stone, which included the proceeds of the sale of 12 acres of the 16 acre tract in- controversy. Moreover, appellants have not made any offer to refund any part of the funds arising from the sale of the lands under the will of their aunt," nor have they offered to restore to appellees the purchase price which they were induced to pay on account of the laches of appellants. Appellants rely upon the general rule set out in 33 Am. Jur., Life Estates, Remainders, etc., § 187, to the effect that laches, estoppel or limitations will not run against a remainderman prior to termination of the life tenancy, since the remainderman has no right of possession until the life estate is terminated. In a further treatment of the subject in <§ 189 of the same work and volume the textwriter says: “In contrast to this general view that laches cannot be invoked against a remainderman for omitting to assert his rights during the time that he was not entitled to possession, the courts may refuse to exempt him from the requirement of equity .that a suitor be diligent, and hold that he is barred by the staleness of his claim, where the circumstances make it inequitable to permit the claim to be enforced. A defrauded remainderman cannot, merely because the precedent estate has not fallen in, lie by for a long period of time and then file a bill to rescind his conveyance on account of the fraud. ” In a discussion of the general rule that the owner of real estate by his acts or conduct may estop himself from asserting title thereto, it is said in § 191 of the same work: ‘ ‘ This rule applies . to owners of an estate in remainder, and the owner of such estate, by consenting to a sale of the fee by the life tenant or by inducing such sale, thereby estops himself, as against a purchaser acting in good faith and without knowledge of the remainderman’s title, to assert his title in remainder. And this is especially true where he has received a part of the purchase money.”
In Horn v. Hull, 169 Ark. 463, 275 S. W. 905, this court said: ‘' The doctrine of laches which is a species of estoppel rests upon the principle that, if one maintains silence when in conscience he ought to speak, equity will bar him from speaking when in conscience he ought to remain silent. Gibson v. Herriott, 55 Ark. 85, 17 S. W. 589, 29 Am. St. Rep. 17; Jackson v. Becktold Printing & Book Mfg. Co., 86 Ark. 591, 112 S. W. 161, 20 L. R. A., N. S. 454; Davis v. Harrell, 101 Ark. 230, 142 S. W. 156; Brownfield v. Bookout, 147 Ark. 555, 288 S. W. 51; and Stewart Oil Co. v. Bryant, 153 Ark. 432, 243 S. W. 311.” See, also, Neal v. Stuckey, 202 Ark. 1119, 155 S. W. 2d 683; Pearl City Packet Company v. Thompson, 201 Ark. 1043, 143 S. W. 2d 14; Falls v. Jackson, 208 Ark. 435, 186 S. W. 2d 787.
Under the facts and circumstances presented in this record we hold that it would be inequitable to permit appellants to challengé the validity of the sale held under the 1926 decree, and that they should be estopped from asserting their claim of title to the lands in-controversy. It follows that the Chancellor correctly dismissed the complaint of appellants, and the decree is accordingly affirmed. | [
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WOOD, J.
A petition and bond required by the statute were filed with the county court of Hempstead County, for the proposed creation of a drainage district in Hemp-stead County, Arkansas.
Giles H. Gibson was duly appointed under the statute as engineer to make a preliminary survey of- the territory intended to be embraced in the district. He made the survey and filed a report with the county court, which was approved in all things by the court, but the court on final hearing of the petition for creation of the district refused to grant the same and dismissed the petition. Afterwards Gibson filed his claim in the county court in the sum of $500 for services as engineer in the preliminary survey.
The county court refused to allow the claim and on appeal to the circuit court judgment was entered in favor of the county, from which is this appeal.
Section 1 of act 221 of the Acts of 1911, among other things, provides that: “When three or more owners of real property within a proposed district shall petition the county court to establish a drainage district to embrace their property, * * * and file a good bond to pay for the expenses of survey of the proposed district, in case the district is not formed, it shall be the duty of the county court to enter upon its records an order appointing an engineer, to be selected by the petitioners; provided, the engineer whom they select is a suitable person, and if not, naming an engineer satisfactory to the court, who shall give bond, etc. All expenses incident to the survey and the cost of publication shall be paid by the county as the work progresses upon proper showing; but all expenses incurred by the county shall be repaid out of the proceeds of the first assessment levied under this act.”
The petitioners filed a bond, to the State of Arkansas for the use and benefit of Hempstead County, for the expenses that might be incurred incident to the expense of the preliminary survey of a proposed improvement and conditioned that should the district be formed the obligation was to be null and void, otherwise, to remain in full force and effect.
The language of the statute shows clearly that it was not the intention of the Legislature to make the counties liable for the costs of the preliminary survey of proposed drainage districts where the drainage district is not formed. The statute expressly provides that the petitioners shall “file a good bond to pay for the expenses of the survey of the proposed district in case the district is not formed”’
It is unnecessary to set forth the whole statute, but an examination of it will discover that there is nothing in it to warrant the conclusion that it was the intention of the Legislature to make the county liable for the expenses of a preliminary survey, where the district has not been formed.
The language, to-wit: “All expense incident to the survey and the cost of publication shall be paid by the county as the work progresses upon proper showing,” makes it the duty of the county court upon a proper showing to pay for the work incident to the preliminary survey, while the work of such preliminary survey is in progress. But this language was not intended to create a liability against the county for the expense of such preliminary survey where the district was not formed.
On the contrary the language, “but all expenses incurred by the county shall be repaid out of the proceeds of the first assessment levied under this act,” shows clearly that the Legislature contemplated that the county was not to be liable for the expense of -the preliminary survey where the district was not formed.
While there is some ambiguity in the language of the section, taking it as a whole we reach the conclusion that there is no liability against the county for the expenses of a preliminary survey where the district has not been formed. The language of the act shows that it was the purpose of the Legislature to make the petitioners for the district liable on their bond for the cost of the preliminary survey where the district was not created. The statute expressly provides for a bond to that effect. See Burton v. Chicago Mill & Lumber Co., 106 Ark. 296-305.
Having reached the conclusion, under the undisputed facts, that the statute does not- create any liability against the county, the question is not before us as to whether or not the statute would be valid if it did create such liability. Nor is the question before us as to whether the county is liable where the district has been created.
There was no error in the ruling of the court, and its judgment is, therefore, affirmed. | [
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McCULLOCH, C. J.
The parties to this litigation make conflicting claims to certain lands in Lee County, formerly owned by Clarence McCaleb, who is the common source of the assertion of title. McCaleb owned a large body of land in that county containing about 1,300 acres, including 240 acres described as the SW!4 and the Wb¿> of the SEb£ of section 28, township 3 north, range 3 east, and on January 2, 1912, he sold and conveyed something over 1,000 acres of it to R. W. Buford and his wife, Emma Y. Buford, who subsequently conveyed to one Doan, who in turn conveyed to appellee Mallory. The description in the deed from. McCaleb to the Bufords was, in part, as follows: “The southwest and the west half of the southeast quarter of section twenty-eight (28), 240 acres, less 46 acres east of the railroad.” On the same day McCaleb executed a deed to F. T. Sellers conveying lands aggregating 312.31 acres, among which was a part of section 28, described as follows: “The southwest quarter (%) and the west half of the southeast quarter (bi) of section twenty-eight (28), less 194 acres lying west of the railroad, all in township three (3) north of range three (3) east.”
Sellers was acting as agent for the Bufords in the purchase from McCaleb of the lands embraced in the deed to the Bufords. The deed to the Bufords was filed for record on March 27, 1912, and the deed to Sellers was not filed for record until April 26, 1912. The line of railroad of the St. Louis, Iron Mountain & Southern Railway Company ran north and south through the southwest quarter of section 28, parallel with the east boundary line of the quarter section, leaving 46 acres on the east side of the railroad in that quarter section. The railroad does not touch the west half of the southeast quarter of section 28, and all of the other land described in the deed to the Bufords lie west of section 28.
Appellant Glasscock asserts title under Sellers to the lands conveyed in the deed from McCaleb to Sellers, and he has been in occupancy of the lands in section 28 east of the railroad. This action was instituted by. Mallory against Glasscock in the circuit court of Lee County for recovery of possession of all of the land except 46 acres lying on the east side of the west half of the southeast quarter (W% SEi^) of section 28. Appellant answered denying appellee’s' assertion of ownership of the land, and on his motion the cause was transferred to • the chancery court, where it proceeded to a final hearing which resulted in a decree in favor of appellee quieting his title and awarding possession of all the lands in section 28, except 46 acres lying on the east side of the west half of the southeast quarter.
.According to the facts, as disclosed by the testimony with respect to the location of the railroad, there are 126 acres east of the railroad in the two tracts described in the deeds as the southwest quarter and the west half of the southeast quarter of section 28. That being true, the exception in the deed of “46 acres east of the railroad” was void, and the effect of the deed was to convey the whole of the southwest quarter and the west half of the southeast quarter of section 28, 240 acres. Mooney v. Cooledge, 30 Ark. 640. Appellee had, therefore, a perfect record title to all of the lands in controversy, but he has conceded appellant’s right to 46 acres on the east side of the west half of the southeast quarter of section 28, and the correctness of the court’s decree in awarding it to appellant is not involved in this appeal. Appellee’s deed was recorded first in point of time and his title under it must prevail as against any conflicting claim, of appellant under the deed of McCaleb to Sellers. Penrose v. Doherty, 70 Ark. 256. Appellant cannot claim as an innocent purchaser for the reason that the description in the deed to Buford was sufficient to put him upon notice of the extent of that grant, and also for the reason that the deed to Sellers, which was in the line of his own title, gave record notice that 194 acres of the southwest quarter and the west half of the southeast quarter of section 28 was excluded from the land, leaving only 46 acres of those two sub-divisions to be conveyed by that deed. The legal title having passed to appellee, the burden of establishing grounds for reformation résted on appellant, and we do not think the testimony adduced by him was sufficient to warrant a court of equity in granting that relief. It is clear from the deed that the intention of McCaleb was to convey to the Bufords 194 acres out of those two subdivisions, and this is also apparent in the deed to Sellers.
There is testimony tending to show that Buford understood when he purchased the land that the railroad was to be his east boundary, but it also showed that he was ignorant of the true location of the railroad and supposed that he was to get the full acreage stipulated in his bargain. There are no equities in appellant’s favor which call for a reformation of the deed so as to give him title to all of the land east of the railroad. The rule is well established by this court that the evidence which would justify the reformation of a deed must be clear and decisive, and the testimony in this case does not measure up to that standard. Nor is it sufficient to show that there was an agreement between the owners of the contiguous tracts as to the boundaries. The dispute arises in this case, not as, to location of boundaries, but as to the substance of the respective conveyances under which the parties claim, and there is no reason for applying the doctrine of recognition of boundaries settled by agreement of the parties.
Our conclusion is that the decree of the chancellor is correct and the same is affirmed. | [
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WOOD, J.
The General Assembly at its session of 1919 passed an act entitled “An act to create Horatio and Eastern Eoad Improvement District of Sevier County. ” Acts 1919, act No. 204; 1 Eoad Acts, p. 652.
Included in the above district are the lands embraced in section 18, township 9 south, range 32 west. This land is situated a distance of five miles from theother lands described in the act. All the lands of the district, except that above described, constitute a compact body, the lands being contiguous.
The appellee, a landowner of the district, instituted this action against the appellants, as commissioners of the district, setting up that the act was unconstitutional and void, and prayed that the appellants as the commissioners of the district be enjoined from proceeding under the act. The appellants demurred. The demurrer was overruled. The appellants stood on the demurrer and a decree was entered in favor of the appellee perpetually enjoining the commissioners from proceeding under the act. From which decree is this appeal.
The act is unconstitutional and void because as shown by the allegations of the complaint it contains an entire section “which is situated at a distance of five miles from the remaining lands described in the act and constituting the body of the district,” and excludes, or rather does not include, the lands intervening.
The Government method of designating the land is adopted in the act and the language, “section 18, township 9, south of range 32 west,” is unambiguous. We can not, therefore, substitute for the section named the intervening section which is not named and say that the Legislature intended to include the latter, and not the former, nor can we say that the Legislature intended to include the intervening section.
It is impossible that the lands in section IS, and the other lands five miles distant constituting the main body of the district, would be benefited while the intervening lands receive no benefit whatever. The act, therefore, upon its face shows an arbitrary discrimination between the landowners, who necessarily derive benefit from the improvement. The case under the facts, comes strictly within the rule announced in the recentcase of Heinemann v. Sweatt, 130 Ark. 70-74. In that case we said: “ Words of description employed by the lawmakers cannot be varied, and, reading the description literally, we find a statute which is so arbitrary and discriminatory on its face that it is void. ’ ’
There is an independent section of the act under review which provides: “If for any reason any provision of this act shall be held to be unconstitutional, it shall not affect the remainder of the act, but the act, in so far as it is not in conflict with the Constitution, shall be suffered to stand. ’ ’ Appellant contends that under this provision the lands five miles distant from the main body of the district should be stricken out. The contention cannot be sustained for the reasons given in Heinemann v. Sweatt, supra, as follows: “The doctrine cannot be applied, however, in a case like this which affects the validity of an assessment of lands according to legislative determination. We must treat the statute as a determination by the Legislature that it is appropriate and just to impose the cost of the improvement upon all of the tracts of land included in the district, and if we strike out one of the tracts we vary the legislative decision and impose an additional burden on the other lands described.”
The provision including the section 18, township 9 south, range 32 west, is not independent of the other portions of the section describing the boundaries of the district and it is so interlocked and connected with the other provisions of the statute that it cannot be eliminated without imposing an additional burden upon the landowners in the portion of the district remaining. ■"
The decision in Snetzer v. Gregg, 129 Ark. 542, is not applicable because it was based on a differently worded statute and related to a different state of facts. The statute in that case authorized the assessment of both real and personal property in a district, but declared that if the assessment on one class of property should be judicially decided to be void, it should not affect the validity of assessments on the other class of property. That was an attempt on the part of the Legislature to impose assessments on a class of property which, according to our decision, could not be taxed under the Constitution for local improvements, but the lawmakers declared in advance, if the attempt proved ineffectual, their intention to exercise the power to the extent that it actually existed. In other words, in construing the statute and testing its validity, we struck out the void provision for the assessment of personal property, and, pursuant to the express declaration of the lawmakers as to their purpose, we upheld the valid provision for the assessment of real property.
In the present case we do not, and cannot, strike anything from the statute, for it is void as a whole. The in elusion of section 18 constituted a legislative finding that the tract will be benefited by the improvement and the implication necessarily follows that the intervening omitted lands will also be benefited. The statute is void, not because it includes section 18, but because, while including this, it excludes the intervening lands; and it is not a case where only a part of a statute is void, but one where the whole is void for the reason that the Legislature has omitted lands which, according to its own findings, will necessarily receive benefits from the improvement.
The decision of the chancery court is, therefore, correct, and it is affirmed. | [
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HART, J.,
(after stating the facts). The principal question presented for our consideration is whether the trial court erred in refusing to direct a verdict for the defendant. It is contended that plaintiff was at most a licensee to whom the defendant owed no duty except to refrain from wilfully or wantonly injuring him while on the premises. We cannot agree with this contention. We think the undisputed evidence shows that the plaintiff was on the premises for the mutual advantage of himself and of the defendant and for that reason was there under an implied invitation of the defendant.
L. L. Priest was a witness for the defendant. According to his testimony he had exclusive charge of selling its wood at the time the accident occurred and had been so'employed for several years past. His own testimony makes him an employee of the company and not an independent contractor. He sold the wood for the defendant and received a commission therefor. He did not buy the wood and sell it again on his own account. His testimony is corroborated by that of the other witnesses and made him an employee of the company.
Mr. Thompson in discussing the liability of the owner for injuries from dangerous places on his grounds to persons coming there for the common interest or mutual advantage of both parties, quoted with approval the following clear enunciation of the rule by Judge dray of the Supreme Court of Massachusetts: “The owner or occupant of land is liable in damages to those coming to it, using due care, at his invitation or inducement, express or implied, on any business to be transacted or permitted by him, for an injury occasioned by the unsafe condition of the land, or of the access to it, which is known to him and not to them, and which he has negligently suffered to exist, and has given them no notice of.” Thompson’s Commentaries on the Law of Negligence (2 ed.), vol. 1, sec. 985.
This court has approved the rule as above stated. Hobart-Lee Tie Co. v. Keck, 89 Ark. 128; St. L., I. M. & S. R. Co. v. Wirbel, 104 Ark. 243; St. L., I. M. & S. R. Co. v. Dooley, 77 Ark. 561, and St. L., I. M. & S. R. Co. v. Duckworth, 119 Ark. 246.
The testimony shows that the hole in the ground was caused by the pipe rusting and making a hole in it so that the steam escaped from the pipe and formed a hole of boiling water. This condition had existed for a week or ten days and its existence was known to the defendant. As we have just seen, the plaintiff went upon the premises for the purpose of loading some wood which the defendant had sold him and stepped in the hole while backing his wagon into position preparatory to loading it. He had been directed to go there by the servant of the company who had exclusive charge of selling the wood. It is true this servant testified that he did not have authority to direct the plaintiff to go there for wood after working hours, but he had been exercising such authority for years and the plaintiff did not know of any limitation upon his authority in this respect. Under these circumstances the negligence of the defendant was a question for the jury.
It is also insisted that the plaintiff was guilty of contributory negligence "as a matter of law and for that reason was not entitled to recover. We do not agree with counsel in this contention. As we have seen, the plaintiff was on the premises at the implied invitation of the defendant and it was dark when he got to the place where the accident occurred. It is true, according to the testimony of a witness for the defendant, steam was escaping from the pipe in the ground which caused a vapor to arise from the ground. The plaintiff, however, testified that he could not see the vapor on account of the darkness and did not know that the hole was there. The hole had been there for a week or ten days and was in plain view from where the plaintiff worked in the turning room. According to witnesses for the defendant, the escaping steam or vapor could be easily discernible by any one working in the turning room. The plaintiff, however, said that his view in that direction was obscured by clippings which were thrown from the turning room through the opening and lay piled upon the ground. He stated positively that he had not noticed the escaping steam and did not know that the hole was there. He had no occasion to make an investigation of the matter and it is entirely within the range of probability that he was so engrossed in his work that he did not observe the steam escaping or the vapor rising from the ground at the place in question. Under the circumstances, the contributory negligence of the plaintiff was, also, a jury question.
It is next insisted that the court erred in refusing instruction No. 2. The instruction is as follows: “You are instructed that if the plaintiff was on the yard for his own convenience at the time he was injured, he was not an employee but was a licensee; and the company owed him no duty to exercise even ordinary care in maintaining safe premises for him to go upon.”
There was no testimony upon which to predicate the instruction and the court did not err in refusing it. As we have already seen, the undisputed evidence shows that at the time the accident occurred the plaintiff was there for the purpose of hauling away some wood which he had purchased from the defendant. He was given permission to go there at that hour, and,being upon the premises in the common interest of himself and of the defendant, he was there at the implied invitation of the defendant. There was no testimony upon which to predicate an instruction that he was on the premises as a mere licensee.
The case was submitted to the jury upon proper instructions, framed in accordance with the principles of law above announced, and, finding no prejudicial error in the record, the judgment will be affirmed. | [
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HART, J.,
(after stating the facts). It is the contention of counsel for appellant that the court erred in holding that the judgment was void on account of the presiding judge being disqualified because he had acted as counsel for the appellant in the first, suit against appellees which was dismissed for want of prosecution.
On the other hand, it is the contention of counsel for appellees that the judgment was absolutely void and that no valid execution could issue upon it. The decision of the question involves the construction of article 7, section 20 of the Constitution of 1874, and our decisions relative to it. The section is as follows:
“No judge or justice shall preside in the trial of any cause in the event of which he may be interested or where either of the parties shall be connected with him by consanguinity or affinity, within such a degree as may be prescribed by law; or in which he may have been of counsel or have presided in any inferior court.”
It is claimed by counsel for appellees that according to the 'current of authority where the Constitution or statute expressly provides that- a judge shall not preside or shall not sit in a case by reason of personal disqualification because of relationship, interest or having been of counsel in the cause, his disqualification is absolute, and that any judgment rendered by him is void and, therefore, his disqualification cannot be waived by the parties. We will not consider or review these authorities for the reason that as early as 1884 this court held-that the objection that the judge was disqualified because of relationship was waived by the failure to call the judge’s attention to the fact of disqualification and permitting the case to proceed to judgment. Pettigrew v. Washington County, 43 Ark. 33. This decision has never been overruled; but, on the contrary, has become an established rule of practice in this State since its rendition. It was so understood by this court in the later -ease of Morrow v. Watts, 80 Ark. 57. Doubtless many judgments have been rendered in reliance upon it and many rights have been settled under it. No useful purpose could be served by overruling it; and it might cause much litigation and controversy, or at least might create needless alarm in the minds of lawyers and litigants who, during all these years, have conformed to the decision in the conduct of their affairs.
Again it is insisted by counsel for appellees that this case is not in point; but we do not agree with counsel in this contention. It is true as claimed by him that the circuit court quashed the judgment of the county court against the son of the county judge and affirmed it as to the other defendants. This court said this was not an error of which the appellants could take advantage because they were severally as well as jointly liable. If the judgment of the county court, however, had been void because one of the defendants was the son of the county judge, as is the claim of counsel, in such cases, the circuit court could have acquired no jurisdiction of the case on appeal. Upon appeal from the county court the circuit court acquires only such jurisdiction as the county court had, and may render such judgment only as the county court should have rendered. Pride v. State, 52 Ark. 502, and Price v. Madison County Bank, 90 Ark. 195.
This brings us to a consideration of the question of whether or not, under the facts as disclosed by the record, the personal disqualification of the judge was waived in the case at bar. We answer the question in the affirmative. The record shows that appellees were present in court in person as well as by attorney at the time the judgment in question was rendered. They knew that the presiding judge had been one of the attorneys for appellant when the first suit had been brought and dismissed. The record also shows that they announced ready for trial and allowed the case to proceed to judgment without objection. Having taken their chances of a favorable judgment at the hands of a judge, who they knew was personally disqualified, they cannot, after adverse decision, avail themselves of facts which they knew before the judgment was rendered to get rid of it. In other words, litigants cannot take their chances of a favorable decision, with a judge, who they know is disqualified to sit in the case, reserving the right to set the judgment aside, if it appears to their advantage to do so.
It follows from the views we have expressed that the court erred in holding the judgment void and in quashing the execution issued upon it.
For that error, the judgment must be reversed and the cause remanded with directions to the circuit court to overrule appellee’s motion to quash the execution and for further proceedings according to law. | [
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HAET, J.
This is an appeal from a decree of the chancery court holding that Act No. 221, approved March 10,1919, was a limitation upon the actual cost of the construction of the road provided for in the act and not a limitation upon the liability of the property owners. The road district in question was organized under the general laws providing for the creation and establishment of road improvement districts for the purpose of constructing and maintaining highways in the State of Arkansas. Acts of 1915, p. 1400. Act No. 221, approved March 10, 1919, was a special act relating to the same road, the object of which was to cure certain defects in the road as established under the general act. Therefore it will be seen that the two acts relate to a common subject and have a common purpose. The latter act supplements the prior one and was passed for the purpose of making certain changes in the plans and materials to be used in the construction of the road. It is a cardinal rule of construction that statutes relating to the same subject are to be treated as having formed in the minds of the members of Legislature parts of- a connected whole although considered by that body at different dates and under distinct aspects of the common subject. SuGh statutes are to be read and construed as one statute and as governed by one spirit and policy. Board of Directors of St. Francis Levee District v. Williford, 120 Ark. 415, and Smith, Treasurer v. Farmers Bank of Newport, Ark., 125 Ark. 459. Therefore, it becomes necessary to read the entire section of the special act in connection with the provision of the general act relating to the same subject in order to properly understand and construe it.
Section 3 of the special act is as follows:
“That said commissioners are hereby vested with all the powers, duties and responsibility mentioned and entrusted to them in the aforesaid Act No. 338 of the General Assembly of 1915, and it is made the duty of the commissioners to make and complete the improved highways contemplated by the formation of said improvement district; and that to that end said commissioners shall have the authority to borrow money and to issue negotiable bonds of the district for the requisite sum in maimer and form as provided by said Act No. 338 of the General Assembly of 1915; provided, that said commissioners are hereby authorized and empowered tó so change the plans for said proposed improved highways, so as to reduce the estimated cost thereof, by eliminating the base course called for in the plans and specifications along all parts of said highway where, owing to the nature of the ground and soil such base course can be omitted -without detriment or serious damage to said road, and by reducing the width of the macadamized surface from twelve feet to nine feet, and such other changes as in the judgment of the commissioners, by and with the approval of the engineer for the district, and the State Highway Engineer will tend to lessen the cost of construction and not materially decrease the usable value thereof; and further provided, that the cost of the construction of said road shall not exceed the sum of $3,000 per mile, including the sum of $17,500 already contributed and promised by way of Federal and State aid to the construction thereof, and in no event shall there be charged against or collected upon the real estate included in said district, for the purpose of such road construction, any amount in excess of said sum of $3,000 per mile, including the said amount of $17,500 to be received as Federal and State aid, for the expense of such construction. ’ ’
Section 28 of the general act provides that the board of commissioners shall be authorized to issue bonds for the purpose of securing money with which to carry out and perfect the work of the improvement. It also provides as follows:
“No board of commissioners shall have authority to make and enter into a contract or create a liability in the discharge of which sum of money shall be necessary that will, exclusive of interest, exceed thirty per cent, of the total assessed value of the real property located within the limits of the district. This limit of thirty per cent, is absolute and shall not be exceeded, regardless of the number of roads, the buildings, construction and maintenance and repair of same, or the length of the time required to perfect the work, but in determining whether any contract or liability is within the said limits interest on said indebtedness, or bonds herein authorized shall not be taken as a part of the debt.”
It will be observed that that part of the general act quoted above provides that no board of commissioners shall have authority to enter into a contract or create a liability in the discharge of which a snm of money shall be necessary that will, exclusive of interest, exceed thirty per cent, of the total assessed value of the lands within the district. By using the words, “exclusive of interest,” it is apparent that the framers of the act meant to empower the commissioners to make a contract that the original cost of the construction of the improvement should not exceed thirty per cent, of the assessed value of the land in the district. The avowed purpose of the special act was to lessen the cost of the improvement by providing for certain specified changes in the plans and materials used in making the road and by reducing the width of the macadamized surface. It, also, authorized the commissioners to make such other changes as, in their judgment, by and with the approval of the engineers, would tend to lessen the cost of construction. It is manifest that the words “cost of construction” as here used mean the original cost of building the road according to the altered plans and specifications provided for in the section. Continuing, the section further provides that the cost of construction of said road shall not exceed the sum of $3,000 per mile, including the sum of $17,500 contributed and promised by way of Federal and State aid to the construction thereof, and that in no event shall there be charged aginst the lands in the district for purpose of such road construction any amount in excess of said suni of $3,000 per mile, including the amount received as Federal and State aid, for the expense of such construction.
As we have already seen, the object and purpose of this statute as expressed by its terms was to change the plans and specifications of the road so as to lessen the cost of making it. According to the ordinary and natural meaning of the word “construction,” a road is constructed when that is done which is required to put it in proper condition according to the plans and specifications, including overhead expenses, under which it is built and it is made ready for traffic. We think that the words “cost of the construction of said road” mean the performance of all that is required in the section in regard to the actual building of the road, including grading, macadamizing and everything else necessary to make it a road. The words have nothing to do with interest on deferred payments for the cost of construction. They mean the original cost of making the road under the plans and specifications provided in the section in which they are used. This view is strengthened when we consider that the corresponding section of the general act, under which the improvement district was originally organized provides for a contract for the construction of the improvement for a certain specified cost and expressly states that it is exclusive of interest. This is in the application of the well established rule of construction laid down above.
It follows from the views we have expressed that the decision of the chancellor was correct and the decree will be affirmed.
"WOOD, J., disqualified and not participating. | [
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HUMPHREYS, J.
Appellee instituted a suit against appellant in the Hempstead Circuit .Court to recover damages in the sum of $15,000 for an injury received on May 2, 1917, in falling from a wagon being driven down the west slope of the gravel platform to appellant’s depot in Hope. It was alleged that the west slope was rendered unsafe for wagons being driven down the slope from appellant’s baggage room, through appellant’s negligence in permitting the ground to be cut with washes and hidden from view by growing grass and weeds.
Appellant denied the allegation of negligence, and pleaded contributory negligence on the part of appellee in driving down the west slope, instead of following the roadway down the north slope, prepared by it for the use of persons going to and from the depot.
The cause was submitted to a jury upon the pleadings, evidence and instructions of the court, upon which a verdict was returned and judgment rendered against appellant for $1,000. From the verdict and judgment, an appeal has been duly prosecuted' to this court.
Appellee moved from Louisiana to Springhill, Arkansas. His household goods were shipped and trunks checked to Hope, Arkansas. In company with his brother, J. F. Anderson, he went from Springhill to Hope for his goods and trunks, which came over appellant’s railway and were deposited in appellant’s freight depot and baggage room. ' Appellant had constructed a gravel platform, or dump, about three feet high, extending north and south along the passenger depot and baggage room. The north and south slopes from the platform to the street were from twenty to thirty feet long, and the west slope about half that length, extending from the top of the platform to a level with the street below. The north and south slopes were generally used in approaching and departing from the depot. The general travel was on a well defined or beaten roadway over the dump or platform from either the north or south. There was some travel, however, up and down the west slope by persons going in wagons to and from the depot. Sin Mauldin, who ran a service car and met all passenger trains, saw people frequently turn down the west slope, and was in the habit of driving his own car down it “every day or two.” There was evidence tending to show that a gulley about two feet wide and eight inches deep had been cut by water in the west slope, opposite the baggage room; that it was hidden from" view by grass and weeds that had grown in it and on a part of the slope. After loading a stove and box of goods at the freight depot, south of the passenger depot, appellee and his brother drove up the south approach on the gravel platform and stopped opposite the baggage room door.. The back end of the wagon was near the door and the team and wagon turned in a northwesterly direction. They then loaded the trunks, putting one near the front to sit upon. The most direct route toward their home was to go in the direction in which the team stood, down the west slope and, it appearing to the driver, as well as appellee, that it was all right to drive down that slope, they did so, turning toward the left. They testified that the right wheel dropped into a ditch or gulley, causing the left wheel to cut into the wagon bed and tilt it so as to throw appellee from the wagon and on to the ground and break his kneecap and otherwise injure him; that they did not see the ditch, or gulley, into which the right wheel fell, because it was obscured by grass and weeds growing in and near it. Appellee had observed and knew that the most usual way to drive off the platform to the street was either by the north or south route.
Appellant insists, first, that no duty rested upon it to keep the west slope in repair, because it was not built, or intended, for use as an approach to the platform, or a means of debarkation therefrom; and, second, that the precipitous grade, as well as the ditch, were patent and the drive over it so obviously dangerous that .appellee was guilty of contributory negligence in attempting to drive down said slope, especially in view of the fact that a better way had been prepared, either to the north or south. In other words, appellant contends that, under the law as applied to the undisputed facts, the court erred in refusing to instruct a verdict for it.
It can not be said, as a matter of law, that no duty rested upon appellant to keep the slope in reasonably good repair, for the evidence shows that it was in close proximity to the depot, a part of the construction of the platform, and frequently used as an approach to it. This court has announced and reiterated the general rule that, “Bailroad companies are bound to keep in a safe condition all portion 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 platform where passengers or those who have purchased tickets with a view of taking passage on the cars, or to debark from them, would naturally or ordi nárily be likely to go.” Texas & St. Louis Ry. v. Orr, 46 Ark. 182; St. L., I. M. & S. Ry. Co. v. Barnett, 65 Ark. 255; St. L., I. M. & S. R. Co. v. Dooley, 77 Ark. 561; St. L. & S. F. Rd. Co. v. Caldwell, 93 Ark. 286; Arkansas Midland Ry. Co. v. Robinson, 96 Ark. 32; St. L. & S. F. R. Co. v. Grider, 110 Ark. 436.
Tbe grade of the west slope to the platform was not so precipitous that it can be said, as a matter of law, that it was obviously dangerous to drive upon it. There was a fall of three feet in a distance of ten or fifteen feet. Parties frequently turned down it, and some of them testified that it looked all right for that purpose. Neither can it be said as a matter of law that the gulley eight inches deep by about two feet wide, running diagonally across a part of the slope, in and about which grass was growing, was such a patent defect, or so obviously dangerous, that an ordinarily prudent man would or should not attempt to cross it. Some of the witnesses testified that the gulley was hidden by the grass growing in and near it, and that the slope appeared to be smooth.
The undisputed facts did not warrant a verdict for appellant, so appellant’s request for an instructed verdict was not well grounded.
Under our construction of the instructions, when read together, the case was submitted to the jury on the theory that it was the duty of appellant to exercise ordinary care to keep the approaches to its depot platforms in reasonably safe condition for use by its patrons, and that, before appellee could recover, it must appear from a preponderance of the evidence that he was injured by reason of a hidden gulley in an approach to the platform, of which appellant, or its agents, knew, or could have known in the exercise of ordinary care, and of which appellee did not know and could not have known in the exercise of ordinary care. The jury were plainly told that, “if appellee drove down a steep incline that had obstructions that were patent and readily seen, he is'deemed to have assumed the risk,” and, having thus negligently contributed to the injury, could not recover. In the light of this specific direction, it can not be said, as contended by appellant, that the first instruction given by the court authorized a recovery whether or no appellee selected and drove over an unsafe place when a safe way had been prepared for him.
Appellant’s next insistence, that instruction No. 3, given by the court, assumes that the west slope was one of the approaches to the platform, is not well taken. The language complained of, in the context used, and, when considered in connection with the other instructions given by the court, told the jury, in effect, that, in order to fix liability on appellant, it was necessary for them to first find that the slope was so constructed that reasonably prudent persons going to and from the baggage room would regard and use it as a safe place to drive. We think the issue as to whether the west slope was an approach to the platform was left to the jury, and not assumed by the court.
Specific objection was made to instruction No. 4, given by the court, for the reason, it is said, that it excluded the idea that it was appellee’s duty to take note of all patent or obvious defects on the driveway. The following sentence appears in the middle of said instruction: “The plaintiff (appellee) is only required to take notice of such defects or hazards in the driveway as are patent and obvious to the senses.” Again, in the latter part of the instruction, the jury were told that appellee could not recover if injured on account of defects of which he knew, or ought to have known, in the exercise of ordinary care. It arvrwars to us that the rule, which it is contended is excluded by the instruction, is clearly announced in it.
While there are some inaccuracies in the instructions, upon the whole they embody the law applicable to the facts in the case.
No prejudicial error appearing in the case, the juderment is affirmed. | [
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HAST, J.,
(after stating the facts). It is first insisted that the court erred in giving instruction No. 10 to the jury upon the motion of the State. The instruction is as follows:
“In ordinary cases of one person killing another in self-defense it must appear to the defendant, acting without fault or carelessness on his part, that the danger was so urgent and pressing that in order to save his own life, or prevent his receiving great bodily harm or injury, the killing was necessary, and it must appear also that the person killed was the assailant or that the slayer had really and in good faith endeavored to decline any further contest before the mortal blow or injury was given.”
It is claimed that neither this nor any other instruction given in the case told thé jury that the defendant was not compelled to retreat if he was first assaulted by the deceased with a murderous intent. We can not agree with counsel in this contention. The theory of the State was that the parties were separated when they had their difficulty in the pool room, but that the defendant became very angry and approached the deceased in a restaurant on the same night telling him that he would kill him the next morning or as soon as he got anything to kill him with; that it was not the purpose of the deceased to again attack the defendant unless in his own necessary self-defense; that the defendant subsequently armed himself and passed by the deceased while he was standing by the fire at the merry-go-round; that the deceased shifted his pistol from his left to his right hand side and put his hand on it in order to be ready in case the defendant attacked him; that the defendant walked on by without attacking him, and that the deceased made no motion to shoot the defendant; that the defendant again approached the place where the deceased was standing and without warning suddenly pulled his pistol and fired six times in succession at him; that the deceased did not shoot until after the defendant had fired one time. In short, it was the theory of the State that after the first difficulty the defendant armed himself and hunted up the deceased for the purpose of killing him, and was the aggressor throughout the difficulty.
On the other hand, it was the theory of the defendant that the deceased was the aggressor when the fatal rencounter occurred. According to the defendant’s own testimony he had put his pistol in his pocket at the time his brother closed up the pool room and was going to take it to his home in the country. Before starting home he had done some repair work on the machinery of the merry-go-round and had no thought of shooting the deceased, but only intended to pass by the place where he was standing in order to find a vehicle in which to go home. As he approached the deceased the latter pulled his pistol and shot at him and he in turn thenbegan firing at the deceased. The defendant’s theory that the deceased was the aggressor was submitted to the jury in this, as well as the other instructions given by the court. This theory is contained in the clause in which the jury are told “and it must appear also that the person killed was the assailant.” The theory of the defense as well as that of the prosecution was fully and fairly submitted to the jury in this as well as the other instructions given by the court. Moreover the instruction is substantially in the language of an instruction numbered 7, which was approved in the case of Plumley v. State, 116 Ark. 17.
It is next insisted that the court erred in giving instruction No. 9. The instruction is as follows:
“The killing being proved, the burden of proving circumstances of mitigation that justify or .excuse the homicide shall devolve on the accused, unless by proof on the part of the prosecution it is sufficiently manifest that the defense only amounted to manslaughter or that the accused was justified or excused in committing the homicide. ’ ’
There was no error in giving this instruction. This instruction is a copy of section 1765 of Kirby’s Digest. Cogburn v. State, 76 Ark. 110, and Turner v. State, 128 Ark. 565.
In the first mentioned case the court said that the section of the statute just referred to is a rule of law to be applied when the killing has been proved and there is nothing shown to justify or excuse the act. The court said further that in such a case it may well be presumed that there was no justification, or the defendant would have shown it. In the present case it was shown that the defendant did the killing. In fact, he admitted having done so. Other instructions were given by the court which fully covered the subject of reasonable doubt.
It is next insisted that the court erred in refusing to give instruction No. 6 asked by the defendant. The instruction is as follows:
“You are instructed that under the law a person does not have to wait until the party attacking has actually done him violence before he has a right to strike in his own self-defense, but if the defendant as a reasonably prudent person acting upon the facts and circumstances as they appeared to him, and from his standpoint, actually believed that the deceased was attempting to kill him or do him great bodily injury, then the defendant had the right to defend himself, so if you believe from the evidence in this case that the defendant acting as a reasonably prudent person at the time he killed the deceased, and upon the facts and circumstances as they appeared to him and from his standpoint; believed that the deceased was attempting to kill the defendant or do .him great bodily injury, then the defendant had the right to stand his ground and defend himself and shoot the deceased at the time.”
The court did give at the request of defendant instructions numbered 5, 7 and 9. Instruction No. 5 is as follows:
“You are instructed that if the defendant believed that it was the intention of the deceased to Mil him or do him great bodily injury, and that the defendant without fault or carelessness on his part, shot the deceased, he was justified is so doing; that it was sufficient if the defendant, acting without fault or carelessness on his part, honestly believed that the killing was necessary, if he acted under such- circumstances as made it reasonable to entertain that belief. ’ ’
Instruction No. 7 reads as follows:
“You are instructed that to justify a killing in self-defense, it is not essential that it should appear to the jury to have been necessary; but it is sufficient, if the defendant honestly believed, acting upon the facts and circumstances from his standpoint, and without fault or carelessness on his part, that the danger was so urgent and pressing that the killing was necessary to save his own life or to prevent him from receiving great bodily injury. ’ ’
Instruction No. 9 reads -as follows:
“The jhry are instructed that, in passing on the question as to whether the defendant was acting in his necessary self-defense, you are to consider his conditions and surroundings at the time, and determine whether the circumstances and surroundings were such as to induce in his mind an honest belief that he was in danger of losing his own life or of receiving great bodily injury at the hands of the deceased, and if you believe from the evidence' that such was the case, and that the defendant at the time fired the fatal shot, while acting under such belief, and that he acted with due caution and circumspection and without negligence then it will be your duty to acquit the defendant. ’ ’
A comparison of these instructions which were given by the court at the request of the defendant with instruction No. 6 which was refused will show that the matters embraced in the refused instruction were fully covered in those given by the court at the request of the defendant. His theory of self-defense was fully covered in these and other instructions given by the court.
We find no prejudicial error in the record, and the judgment will be affirmed, | [
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RHÓNDA K. WOOD., Associate Justice
11 Robert Sandrelli was convicted of four counts of rape. After our court of appeals affirmed the convictions, see Sandrelli v. State, 2015 Ark. App. 127, 2015 WL 831195, Sandrelli filed a Rule 37 petition alleging three instances of ineffective assistance of counsel. The circuit court denied the petition without a hearing by a written order. Sandrelli has appealed and argues that he was entitled to a hearing on his allegations. We affirm in part and reverse and remand in part.
This criminal case began when Robert Sandrelli’s son accused him of rape. A jury trial was held in August 2013. The State presented evidence from the victim and law-enforcement officials. Sandrelli testified in his own defense and denied all the allegations. RThe defense also presented evidence from five character witnesses who attested to Sandrelli’s character for truthfulness. The jury coiild not reach a unanimous verdict, so the court declared a mistrial. The State refiled the charges, and second jury trial was held in September 2013. The State’s case was substantially similar to the one it presented in the first trial. But in the second trial, the defense presented no witnesses. The jury was able- to reach a verdict and convicted Sandrelli of four counts of rape.
After the court of appeals issued its mandate, Sandrelli filed a Rule 37 petition wherein he alleged ineffective assistance of counsel. The petition contained three primary allegations of his attorney’s deficient performance during the second jury trial: (1) the attorney had resigned as managing public defender and was under emotional and professional stress; (2) the attorney failed to call any witnesses on Sandrelli’s behalf; and (3) the attorney unilaterally decided that Sandrelli should not testify. The circuit court denied the petition without a hearing. It ruled that the first allegation was conclusory and could not form the basis for a claim of ineffective assistance. The court further ruled that the decisions'regarding which witnesses to call and whether Sandrelli would testify were matters of trial strategy, which also forms no basis for postconviction relief.
This court does not reverse a denial of postconviction relief unless the circuit court’s findings are clearly erroneous. Polivka v. State, 2010 Ark. 152, 362 S.W.3d 918. “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.” State v. Barrett, 371 Ark. 91, 95, 263 S.W.3d 542, 545 (2007).
IgRule 37.3 of the Arkansas Rules of Criminal Procedure provides that an evidentiary hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the prisoner is entitled to no relief. Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999). If the files and the record show that the petitioner is not entitled to relief, the circuit court is required to make written findings to that effect. Ark. R.Crim. P. 37.3(a). Conclusory allegations that are unsupported, by facts do not provide a basis for either an evidentiary hearing or postconviction relief. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55.
We assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United. States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under this standard, the petitioner must first show that counsel’s performance was deficient. Feuget v. State, 2015 Ark. 43, 454 S.W.3d 734. This requires a showing that counsel made errors so serious that counsel deprived the petitioner of the counsel guaranteed to the petitioner by the Sixth Amendment. Id. Second, the deficient performance must have resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial whose outcome cannot be relied on as just. Both showings are necessary before it can be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id.
We agree with the circuit court that the first allegation regarding defense counsel’s stress level was conclusory; therefore, this claim cannot form the basis for postconviction relief. Sandrelli never alleged how his counsel’s stress level led to specific instances of ^deficient conduct. Nor has he alleged how his counsel’s stress level could have altered the outcome of his trial. The record conclusively shows that Sandrelli is entitled to no relief on this basis, and the circuit court’s decision to dismiss this part of the petition without a hearing was not clearly erroneous.
The same is not true for Sandrelli’s second and third claims for relief. , The circuit court held that defense counsel’s failure to call any witnesses, including San-drelli, was not deficient performance because the decision to call witnesses is a matter of trial strategy. For support, the court noted Sandrelli’s presence during voir dire when his counsel announced he did not anticipate calling any witnesses. Because of this, the court concluded that Sandrelli and his counsel" must have agreed, pre-trial, that no witnesses would be called. This finding is clearly erroneous because there were no facts before the court to support it. Generally, the decision to call a witness is a matter of trial strategy. See Stiggers v. State, 2014 Ark. 184, 433 S.W.3d 252. Still, such strategic decisions must be supported by reasonable professional judgment. Id. Based on the record in this case, the court had no way of knowing whether counsel’s decisions were based on his reasonable judgement without a hearing.
In addition, the record fails to conclusively show that counsel’s failure to call additional witnesses resulted in no prejudice. The circuit court addressed this point by stating that counsel’s failure to call character witnesses did not create a reasonable probability of a different outcome. But this ruling contradicts the facts of this case, which are unusual because a “control” case already exists. In Sandrel-li’s first trial, the jury failed to reach a verdict; in the second trial, the jury convicted. In the first trial, the defense offered a robust Ucase, with five character witnesses and the defendant’s own testimony; but in the second trial, the defense offered no case at all. Thus, Sandrelli has a colorable claim that he was' prejudiced because in the first trial there was, in fact, a different outcome.
Again, this appeal presents an unusual case because the first jury trial resulted in a hung jury. Despite this outcome, San-drelli’s counsel called no witnesses in the second trial. This decision must be supported by reasonable professional judgment. The record and files do not conclusively show that it was. Therefore, we reverse and remand for the circuit court to hold a hearing to determine whether counsel’s failure to call witnesses was based on reasonable judgment and, if not, whether this failure prejudiced Sandrelli.
Affirmed in part; reversed and remanded in part.
Danielson, J., concurs.
. We ordered rebriefing after we found a deficiency in the abstract. Sandrelli v. State, 2015 Ark. 450, 2015 WL 7777570 (per curiam). This deficiency has been corrected. | [
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PER CURIAM
| petitioner Terry Swanigan was charged with capital murder in the 1992 shooting death of Lewis Allen. The evidence at trial reflected that Swanigan had confronted Allen inside a shop and pointed a gun at Allen’s face. Swanigan and Allen struggled for possession of the gun. Allen fell backwards during the struggle, and Swanigan fired the gun three times. One of the shots struck Allen, who ran outside, collapsed, and later died. In 1993, Swani-gan was. tried before a jury and found guilty of murder in the first degree. He was sentenced to life imprisonment. We affirmed. Swanigan v. State, 316 Ark. 16, 870 S.W.2d 712 (1994),
In 2002, Swanigan filed in this court a pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis.- The petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. A writ of error eoram nobis Lis an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition had it been known to the trial court and which, through no negligence or fault of the defendant,' was not brought forward before renditibn of the judgment. Newman, 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38.
We denied Swanigan’s petition because it did not establish a ground for the writ. Swanigan v. State, CR-93-1127, 2002 WL 32112531 (Ark. Sept. 12, 2002) (unpublished per curiam). In 2015, Swanigan filed a second coram-nobis petition here. In the petition, he alleged that a writ of error coram nobis should be issued on the grounds that the prosecution in his case violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and because the State used “false testimony” to obtain the convjction. The second petition was also denied. Swanigan v. State, 2015 Ark. 371, 2015 WL 5895415 (per curiam).
laOn February 9, 2016, Swanigan filed a third coram-nobis petition, which is now before us. In the.petition, Swanigan reiterates the claims raised in the second petition that this court denied in 2015.
We find that the instant petition is an abuse of the writ because Swanigan has already raised essentially the same claims in his second petition; accordingly this third petition is subject to dismissal on that basis. Grant v. State, 2015 Ark. 323, at 5-6, 469 S.W.3d 356, 360 (per curiam); see also Jackson v. State, 2009 Ark. 572, 2009 WL 3788895 (per curiam). Swanigan does not allege that he has obtained any new information concerning the allegations since he filed his second coram-nobis petition, and he offers no explanation for his failure to raise any claim he desired to raise concerning the allegations in the second petition. Because Swanigan has alleged no fact sufficient to distinguish his claims in the instant petition from the claims in the second petition, his reassertion of largely the same claims is a misuse of the remedy. See Jackson, 2009 Ark. 572, 2009 WL 3788895; see also United States v. Camacho—Bordes, 94 F.3d 1168 (8th Cir.1996) (res judicata did not apply to bar a second petition for writ of error coram nobis, but abuse-of-writ doctrine was applied to subsume res judicata).
In Rodgers v. State, 2013 Ark. 294, 2013 WL 3322344 (per curiam), we noted that a' court has the discretion to determine whether the renewal of a petitioner’s application for the writ, when there are additional facts presented in support of the same grounds, will be permitted. As stated, there are no additional facts to distinguish this latest petition from the second petition filed by Swanigan. Swanigan has raised no cognizable ground for the writ in any of his three petitions. More- importantly, he has reiterated in this latest petition claims already addressed by this court. Due process does not require this court to entertain an unlimited 1¿number of petitions to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis in a particular case. Grant, 2015 Ark. 323, at 5-6, 469 S.W.3d 356, 360.
Petition dismissed. | [
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BART F. VIRDEN, Judge
I,Cynthia Chandler, the administratrix of the estate of her father, James Harris, appeals the order of the Pulaski County Circuit Court that found that all estate property should go to Harris’s surviving spouse, appellee Sharron Harris. Chandler argues that the circuit court erred in its application of Ark.Code Ann. § 28-39-101(b) (Repl. 2012) concerning spousal allowances and in its decision concerning ownership of certain corporate property. We affirm in part and reverse and remand in part.
|2The decedent, James Harris, died intestate on June 24, 2012, survived by Chandler, his only child, and Harris. Harris and the decedent had been married since 1979.
On July 25, 2012, Chandler petitioned for appointment as administratrix of her father’s estate. She was appointed by an order entered on July 26, 2012. She accepted the appointment and letters of administration were issued that same day.
Chandler filed an inventory of the estate on February 17, 2014, with an approximate total value of $544,000. This included $514,774 of stock in Jim Harris Realty, Inc. (JHR, Inc.), and approximately $30,000 of other property, consisting mostly of guns, hunting and fishing equipment, and a boat and trailer.
Harris objected to the inventory, claiming that it included property she and the decedent had acquired during them marriage, such as the stock in JHR, Inc. She also asserted that all property listed in the inventory, including the JHR, Inc. stock, was her property. Chandler filed a response to Harris’s objection, arguing that the concept of marital property did not apply and that there was a difference between what was marital property in the context of divorce and what was property of the estate.
A hearing on the objection was held on June 23, 2014. On September 18, 2014, the circuit court issued its letter opinion. The court found that two First Security Bank accounts (approximately $183,256) were not corporate accounts because they were payable on the decedent’s death and passed to Harris outside of probate. A five-acre tract of real property in Dallas County was found to have been titled solely in the decedent’s name and, as such, |apassed to the estate subject to Harris’s dower interest. The, court found that the parties had agreed that the items .listed in Exhibit 10 went to Chandler. The court further found that, unless Harris could, show that it was titled jointly with the decedent, all other property listed as corporate assets would go to JHR, Inc. Based on Subchapter S tax documents, the court found that 150 shares of JHR, Inc., belonged to Harris as her separate property and that the remaining 150 shares were to be equally divided between Harris and Chandler. The court found the estate was not entitled to reimbursement from funds in a Capitol Bank account allegedly used to pay Harris’s personal expenses because they were utilized for legitimate business purposes. All other property was to be equally divided between Chandler and Harris.
Prior to entry of the court’s order, Chandler filed a motion for reconsideration, arguing that, pursuant to Ark.Code Ann. § 28-11-3Ó5 (Repl. 2012), the stock in JHR, Inc., should be divided 100 shares to Chandler and fifty shares to Harris. Harris responded and counter-petitioned that specific items of personal property titled in both the decedent’s and her name be found to be her individual property, which included, the boat and trailer, and that furnishings and appliances in the mar? ital home be considered her property.. She attached title documents and invoices showing that the boats, trailers, four-wheelers, and one vehicle were titled in the names of the decedent and Harris. One vehicle appeared to be jointly titled in the corporation, the decedent, and Harris.
' After a hearing on the motions for reconsideration, a final order of distribution was entered. The court found that the decedent and Harris had utilized JHR, Inc., for their Impersonal expenses. The court left unchanged the disposition of the bank accounts and the Dallas County real property; however, the court changed the distribution of some of the property from its original letter opinion. The court divided the shares in JHR, Inc., belonging to the decedent 100 shares to Chandler and fifty shares to Harris!’ The court found that, as the surviving spouse,'Harris was entitled to such furniture, furnishings, appliances, implements, and equipment as shall be reasonably necessary for her use and occupancy of the marital dwelling. The court specifically found that all of the personal property listed in the February 14, 2014 inventory, excluding the items in Exhibit 10, shall be vested in Harris as such items of personal property were reasonably necessary for her use. The court specifically found, based on the testimony of CPA Tracy Fox and Harris, that the items contained on Exhibit A to the inventory were assets owned individually by the decedent and Harris and were in the nature of furniture, furnishings, appliances, implements, and equipment reasonably necessary for her ,use and were therefore assigned to and vested in Harris'. The court also found that a boat, motor, and trailer; two four-wheelers; a cargo trailer; a 2008 Chevy Silverado; and a 2011 Chevy Tahoe were all titled in- Harris’s name and passed to her outside of probate. This appeal followed.
lfiWe review probate matters de novo but will not reverse the probate court’s findings of fact unless they are clearly erroneous. In re Estate of Kemp, 2014 Ark. App. 160, 433 S.W.3d 911. A finding is clearly erroneous when, although there is evidence to support it, the. appellate court is left on the entire evidence with the firm conviction that a mistake has been committed. Id. We must also defer to the superior position of .the lower court sitting in a probate matter to weigh the credibility of the witnesses. ' Id.
In her first point, Chandler argues that the probate court erred in its application of Ark.Code Ann. § 28-39-101 and the timeliness of Harris’s request for a spousal allowance. Section 28-39-101 is concerned with statutory allowances, which are simply other payments to a surviving spouse and minor children. There are actually three allowances provided by the statute: (1) personal property or proceeds of the sale of personal property worth $4,000, but if creditors’ claims prohibit this, then $2,000 as against creditors (Ark. Code Ann. § 28—39—101(a)); (2) such furniture, furnishings, appliances, implements, and equipment necessary for occupancy of the home will be vested in the surviving spouse, provided that he or she was living with the decedent at the time of the decedent’s death (Ark.Code Ann. § 28-39-101(b)); and (3) an allowance during the two months-after the décedent’s death, of property for sustenance, “in accordance with the usual living standards of the family,” but not to exceed $1,000 (Ark.Code Ann. § 28-39-101(c)). These provisions are cumulative, and sections (b) and (c) apply as against both creditors and-distrib-utees. Ark.Code Ann. § 28-39-101(d). These allowances are also in addition to any rights of homestead or dower/curtesy. Spears v. Spears, 213 Ark. 15, 209 S.W.2d 105 (1948). In this case we are | r,concerned with the furniture and furnishings allowance under Ark.Code Ann. § 28-39—101(b).
We first address the timeliness issue. According to Chandler, Harris first requested a spousal allowance .in. her response to Chandler’s’ posttrial motion for reconsideration. Harris responded that she first asserted that the furniture, furnishings, appliances, implements, and equipment were hers pursuant to sections 28-39-101 and 28-11-305 in a motion filed shortly after the decedent’s death. Harris’s attorney also made an oral request for the allowance at the hearing on the motion for reconsideration. The circuit court did not specifically rule on the timeliness issue.
Section 28-39-101 does not specify a time within which the surviving spouse can request for an allowance of the personal property. Instead, section 28-39-101(a)(l) provides that the election for an allowance can be made prior to the sale of the personal property or from the proceeds of such sale. In construing predecessors to this statute,' our supreme court has held that such requests were timely as long as there were funds or personal property from which to pay the allowances still in the hands of the personal representative. Wofford v. James, 204 Ark. 700, 163 5.W.2d 710 (1942) (applying rule to monetary allowances); see also Quick v. Davidson, 261 Ark. 38, 545 S.W.2d 917 (1977) (applying rule to allocation of dower/curte-sy). Chandler cites Wright v. Langdon, 274 Ark. 258, 623 S.W.2d 823 (1981), in support of her argument. Wright is inapplicable to this case because it is not a probate case dealing with a surviving spouse’s request for her statutory allowances, . It is undisputed that no final distribution had been made and that possession of the personal property was still vested in Chandler as the personal representative. Therefore, Harris’s request for her statutory allowances was timely.
Chandler next argues that the circuit court erred in awarding Harris her allowance under section 28-39-101 because there was no showing that such property was necessary for Harris’s use and occupancy of her home. Chandler also argues that the court erred in awarding Harris, as part of her allowance, property that was titled in the corporate name. Although we have concluded that Harris’s request for spousal allowances was timely, we need not address whether the circuit court was correct in its application of section 28-39-101 because the court erred in awarding property that was titled solely in the corporate name to Harris as part of her statutory allowances.
The circuit court found that the boats, four-wheelers, trailers, and pickup trucks were titled in Harris’s name and passed to her outside of probate. However, at least some of the documentary evidence shows that some items were titled solely in the corporate name, making the court’s finding clearly erroneous. Section 28-39-101 is applicable to the personal estate of the decedent. Our supreme court has held that a widow’s allowance under that section cannot be awarded out of the estate of. a partnership in which her deceased husband had, been a partner because partnership assets are not,the separate property of the. decedent partner. See McLerkin v. Schilling, 192 Ark. 1083, 96 S.W.2d 445 (1936). This is akin to the familiar rule that a corporation and its stockholders are separate and distinct entities, even though a stockholder may own the majority of the stock. Thomsen Family Trust v. Peterson Family Enters., Inc., 66 Ark. App. 294, 989 S.W. 2d 934 (1999). A -stockholder does not acquire any estate in the property of a corporation by virtue of his stock ownership; the full 'legal and equitable title thereto is in the corporation. Id.
The circuit court clearly erred in awarding Harris her statutory allowance out of corporate property. Accordingly, we. reverse on this point and remand for further proceedings consistent with this opinion.
Under her second point. Chandler argues that the circuit court erred in its ruling that Harris owned one-half of the corporate stock in her own right. Chandler’s argument is that there is no record of one-half (150 shares) of the corporate stock being transferred from the decedent to Harris;' Harris testified 'that she owned 150 shares in JHR, Inc., as a tenant by the entirety. The record contains documentation that the decedent and Harris made an election to have JHR, Inc., treated as a Subchapter S corporation, with the decedent and Harris each owning 150 shares of stock since June 1985. There are also documents from the state and federal tax authorities acknowledging receipt of the election documents.
The fact that there was no transfer of the shares on the corporate books is not dispositive. The statutes relating to the transfer of shares are designed to protect the corporation in the payment of dividends and are not concerned with the rights of the parties transferring the stock. See Ashley v. Ashley, 393 A.2d 637 (Pa.1978). The Subchapter S election is also some evidence of a gift of 150 shares to Harris. The election was a representation made to a third party, the federal and state tax authorities, that a gift of the shares had been made to Harris and is presumably true. Physical delivery of the stock ^certificates is not an essential element of an inter vivos gift of stock. Bettis v. Bettis, 96 Ark.App. 101, 239 S.W.3d 5 (2006).
Chandler contends that the decision on the stock ownership comes down to whether the corporate documents control or whether the Subchapter S election controls. However, it was not just the documents because Harris testified that she owned corporate stock. The documents from the tax authorities serve to corroborate Harris’s testimony that the election was made. Moreover, the circuit court relied on both the testimony and documentary evidence in finding that Harris owned 150 shares in her own right. Our standard of review decides this issue: “Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.” Rymor Builders, Inc. v. Tanglewood Plumbing Co., Inc., 100 Ark.App. 141, 147, 265 S.W.3d 151, 155 (2007).
Finally, Chandler argues that the circuit court erred in awarding Harris certain corporate property as her separate property. Even though we have reversed the court’s award of Harris’s statutory allowances out of corporate property, there is one other point we need to address. Although Chandler contends that the First Security Bank accounts were corporate property because they used the corporate ID number, she concedes in her brief that the accounts were titled jointly in the names of the decedent and Harris. Therefore, the court correctly ruled that those accounts passed to Harris outside of probate as payable-on-death accounts.
Affirmed in part; reversed and remanded in part.
Gladwin, C.J., and Gruber, J., agree.
. Attached to the inventory was a list of corporate assets taken from the 2011 corporate tax return.
. These were items that had sentimental value to Chandler.
. This finding specifically included a 1997 Welbilt boat, a 1997 Angler boat trailer, a 2004 Support Atlas 5 x 10 utility trailer, a 2005 T/A utility trailer, a 2011 Supp Big Tex utility trailer, all shotguns and weapons reflected on the inventory, ammunition, gun cases, fishing and hunting equipment, and unspecified furniture, furnishings, and appliances.
. These items included the equipment, fixtures, and furniture; a pressure washer; a phone system; a utility trailer; machinery; office equipment; a cargo trailer; a Kubota tractor and implements; a trailer for the tractor; a disc for the tractor; computers; a fireproof safe; and a refrigerator.
. Here, there are no minor children.
. See Ark.Code Ann. § 28-49-101; Dean v. Brown, 216 Ark. 761, 227 S.W.2d 623 (1950); Jensen v. Housley, 207 Ark. 742, 182 S.W.2d 758 (1944). | [
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KENNETH S. HIXSON, Judge
|,Appellant Thomas Wilson, a convicted sex offender, was convicted in a bench trial of failure to comply with registration requirements under the Sex Offender Registration Act. His conviction was based on his failure to report a change of address. Mr. Wilson was sentenced to two years in prison followed by a one-year suspended imposition of sentence. Mr. Wilson’s sole . argument on appeal is that there was insufficient evidence to support his conviction. We affirm.
Arkansas Code Annotated section 12-12-904(a)(Z )(A)(ii) (Supp.2015) provides that a person is guilty of a Class C felony who “[f]ails to report a change of address, employment, education, or training as required under this subchapter.” “Change of address” is defined as “a change of residence or a change for more than thirty (30) days of temporary domicile, change of location of employment, education or training, or any other change that alters |awhere a sex offender regularly spends a substantial amount of time.” Ark.Code Ann. § 12-12-903(4). Arkansas Code Annotated section 12-12-909(b)(l)(A) provides, in relevant part:
(A) Before a change of . address within the State, a sex offender, shall report the change of address to the local law enforcement agency having jurisdiction no later than ten (10) days before the sex offender establishes residency or.is tern: porarily domiciled at the new address.
(B) The sex offender shall report to the local law enforcement agency having jurisdiction of the new address, within three (3) days after relocating to the new address.
On appellate review of the sufficiency of the evidence, we determine whether the verdict is supported by substantial evidence. Ashe v. State, 57 Ark. App. 99, 942 S.W.2d 267 (1997). We view the evidence in the light most favorable to the State, considering only the evidence that supports the verdict. Rollf v. State, 2015 Ark. App. 520, 472 S.W.3d 490. The evidence, whether direct or circumstantial,is sufficient to support- a conviction if it compels a conclusion, and passes beyond mere suspicion or conjecture. Id, .
On January 29, 2015, Mr. Wilson registered as a sex offender with the Marion County Sheriffs Department. Appellant registered as “homeless” and listed his place of residence as Peel, Marion County, Arkansas.
Lt. Russell Stockdale, Sex Offender Officer at the Marion County Sheriffs Department, was the officer who registered Mr. Wilson. Although Mr, Wilson registered as “homeless” and provided no street address on the registration form, he gave Officer Stockdale the location “MC 2050” as the place where he would park his van at night. According to Officer Stockdale, this was a county road. Officer Stockdale testified:
I had been going up there previously to see Mr. Wilson because he was having trouble finding a place to stay. He found that spot and nobody was bugging him there. He kept moving along the road and that spot he found and I verified it. I told him as long as nobody is bothering you there, that will work. I physically saw | athe spot. I did a check on him and saw it that way. His van was going to be his shelter at that spot. He would be there at night and he would ' leave in the mornings. He said his wife had to babysit some kids and he would be there .by ten or eleven o’clock at night.
Officer Stockdale testified that, on March 2, 2015, he went to the place where Mr. Wilson’s van was supposed to have been parked and discovered that it was not there. Officer Stockdale then made contact with appellant’s Boone County probation'officer, Travis Flower, asking Officer Flower to check the GPS records from the electronic ankle monitor that-Mr. Wilson was. required to wear. The GPS-records; which were introduced into evidence by the State, indicated that Mr. Wilson was not present in Peel or anywhere else in Marion County from February 25 through March 10, 2015, which was the last date recorded in the document. The GPS records showed that, during that time frame, Mr. Wilson had been at various locations in Harrison, which is in neighboring Boone County. -
Officer Flower testified 'that he had placed the electronic ankle monitor on Mr. Wilson to track his whereabouts and ensure that he could determine his location at all times. Officer Flower stated that the electronic monitor had to be charged twice a day for an hour at a time. Because Mr. Wilson was homeless, he expressed concern to Officer Flower about Wilson having a location to charge the device. Officer Flower advised Mr. Wilson that it was his responsibility to find a location to charge the electronic ankle monitor, and Mr. Wilson told Officer Flower that he had been charging it at McDonald’s and other locations. Officer Flower gave Mr. Wilson permission to charge the device at McDonald’s. Officer Flower stated that there were two McDonald’s locations in Harrison, but none that he knew of in Marion County. Officer Flower testified that, other than the | ¿current charges for failure to comply with registration requirements, Mr. Wilson was in compliance with his probation and parole.
In this- appeal, Mr. Wilson challenges the sufficiency of the evidence supporting his conviction. Mr. Wilson asserts that his probation officer had essentially given him a verbal pass to temporarily go to Boone County to recharge his electronic ankle monitor. Mr. Wilson contends that there was no testimony that he was permanently moving to Boone County. He further contends that there-was never .any express intent on his part to transfer his residency outside of Marion County, where he was registered. For these reasons, Mr. Wilson argues that there was insufficient evidence that he failed to comply with registration requirements, and that his conviction should be reversed.
• In this case it is undisputed that Mr. Wilson never reported a change of address. Therefore, the pivotal issue is whether there was a “change of address” such to trigger the reporting requirements of the Sex Offender Registration Act. We hold that there was substantial evidence of a “change of address,” and therefore sufficient evidence to support the trial court’s finding that Mr. Wilson violated the registration and reporting requirements of the Act.
The evidence viewed in the light most favorable to the State showed that Mr. Wilson registered as a homeless resident of Marion County, and he thereafter established a place to park his van on a nightly basis with approval of his Sex Offender Officer. Sometime later, that officer made a random check of Mr. Wilson’s usual location on the bounty road in Marion County, only to discover that Mr. Wilson was not there. As a result of his sex offense, Mr. Wilson was required to wear an electronic ankle monitor with a GPS tracking |fisystem. With the use of the GPS technology, the State introduced documentation that Mr. Wilson had not been in his usual overnight location fin Marion County, or any other location in Marion County, for a period of thirteen consecutive, days. During this period, the GPS monitoring consistently tracked Mr. Wil son’s location as being in Harrison, which' is outside of Marion County. Contrary to Mr. Wilson’s argument, this established more than a mere temporary relocation to' Boone County to periodically recharge his electronic ankle monitor. It was evidence comporting with the definition of “change of residence” in that it amounted to. “any other change that alters where a sex offender regularly spends a substantial amount of time.” The applicable registration and reporting statute is one of strict liability, and no mens rea is required. See Morrow v. State, 2014 Ark. 510, 452 S.W.3d 90. Because the “change of address” went unreported by Mr. Wilson, we affirm-his conviction.
Affirmed.
Kinard and Whiteaker, JJ., agree. | [
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BART F. VIRDEN, Judge
11Appellant Rikka I. Pulliam filed a complaint against appellees Sherry P. Murphy, R. Carter Pulliam, and Richard Pulliam, as cotrustees of the-Ray H. Pulliam Living Trust, alleging breach of the trust agreement. The Crittenden County Circuit Court granted summary judgment to ap-pellees. On appeal, Rikka argues that ap-pellees owed a duty of loyalty to her in their administration of the trust and that genuine issues of material fact exist as to whether they bréaehed that duty. We reverse and remand for trial.
I. Background and Procedural History
In June 1997, Ray H. Pulliam and lone 0. Pulliam created a living trust involving 1,320 acres of farmland for the benefit of their five adult children. After the Pul-liams had passed away, four of those children, including Rikka, became cotrustees. Article Seventeen, section five of the trust provided,
laSpecial Instructions Regarding the Farm. During my life, my spouse and I have owned tracts of land which we have referred to among ‘ourselves and our family as' “the farm.” ■ The farm is the real property to be administered 'under Article Eleven pf this agreement upon the death of both my spouse and I. One and a half acres of the farm was sold to our son, R. Carter Pulliam, for consideration of $7,500 ($5,000 per acre) during my lifetime. My Trustee shall offer to any of my other children the same privilege to purchase one and a half acre of land at the same consideration. The consideration need not be actual cash but may also be improvements or work on the farm, for example, but any construction must be farm related. In other words, the construction cannot be a garbage' dump, gravel storage or beer parlor, etc.
(Emphasis added.)
In addition to owning the tract of land referenced in the trust agreement, Carter, along with Richard, leased trust property that they, farmed.
In November 2013, Rikka’s lawyer notified appellees of Rikka’s request to buy a one-and-a-half-acre tract along Highway 79 located just north of Garter’s one-and-a-half acres. Carter objected to selling Rik-ka -that particular tract because the area was used for parking farm equipment and provided access for commercial trucks to reach the granary silos on his property. Sherry -had initially agreed to sell Rikka the tract of land but soon after rescinded her consent to the sale after speaking with Carter, citing the land’s “current use in farming” as her' reason for rescission. Richard did not object to Rikka’s requést tó buy'the tract at issue.' Á méeting of the cotrustees was held in January 2014. Article Sixteen, section eight of the trust provides that
[w]hen more than two Trustees are acting, the concurrence and a joinder of a majority of my Trustees shall control in all matters pertaining to the administration of any trust created under this agreement.
Carter and Sherry voted against the sale,- while Rikka and Richard voted in favor of the sale, resulting in' a tie vote. Haying failed to achieve, .a majority of votes, Carter and | aSherry asked Rikka to select another tract of land to purchase, but Rikka refused.
Sherry, .as president of the Board of Trustees (Board), sent a letter to Rikka’s attorney in February 2014 informing him that the Board had voted against the sale of that particular tract following a thorough review of “the land’s history, current use in farming, and implications if removed, from farming operation.” Sherry also pointed out that the Board ha.d progressed to the business of managing a farm and that Rikka had never been actively involved in farming the land.
In April 2014, Rikka filed a complaint against the other cotrustees alleging that they had intentionally blocked the transfer of land because it would inconvenience Carter’s separate farming operations; that they had willfully and intentionally failed to carry out the terms of the trust in an attempt to deprive her of property to which she had the right to purchase as a beneficiary; and that they had breached the trust agreement by refusing to transfer the property.
. Carter and Sherry moved for summary judgment. Attached to their motion was Carter’s affidavit in which he attested that the one-and-a-half-acre tract of land Rikka had requested to purchase had been improved for use as a parking and staging area for farm equipment; the land had also been improved for, and served as, a pass-through for commercial trucks entering the granary; and the tract was directly adjacent to “the grain silos and storage sheds used in the Trust farming operations.” According to Carter, if that particular tract of land was sold to Rikka, a new site would have to be improved for parking the farm equipment, - and relocating the access road to the granary would necessitate taking 1¿other trust property currently devoted to growing rice and beans, causing a loss to the trust.
In response to the motion for summary judgment, Rikka contended that appellees, as cotrustees, had breached their duty of loyalty to hef as a beneficiary. She presented her own affidavit attesting that the latid she had requested to purchase was known as “the pasture”; that there had been no improvements to that land; that the trust did not engage in any “farming operations” except to lease land to Carter and Richard for their personal farming operations; and that the land Carter and Sherry offered to sell her, in lieu of purchasing the tract at issue, was inferior in that it was in an inconvenient location, was accessible only by a "gravel road shared with heavy equipment, overlooked junk cars, and was otherwise not worth $5,000 an acre.'
II. Trial Court’s Order
In granting summary judgment to Carter and Sherry, the trial court found that the trust did not provide that a beneficiary was entitled to purchase a tract of her choosing over the objections of the other cotrustees; that there was no provision in the trust as to what happened in the event of a tie vote; that appellees were correct in their reading of the trust; and that Rikka must select another tract of land that the majority of the trustees agree to sell to her.
III. Standard of Review
The appellate courts have repeatedly held that summary judgment is to be. granted by a trial court only when it is clear that there are no genuine issues of material fact, to be litigated, and the party is entitled to judgment as a matter of law. Cole v. Laws, 349 Ark. 177, 76 S.W.3d 878 (2002). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and’ demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was- appropriate based on whether the evidentiary items presented by the moving party to support of its motion leave a material fact unanswered. Id. This court views the evidence to a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Id. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. Id.
IV.Arguments
Rikka asserts that appellees, as cotrus-tees, breached their duty of loyalty to her by placing their own personal interests above those of the' beneficiaries. Rikka contends that Carter had a conflict when he voted against selling her the tract at issue in that the farm equipment and grain silos are his personal property. According to Rikka, selling that tract would inconvenience Carter., Rikka maintains that the trust has no farming operations and that the farming operations referred to by Carter and Sherry are Carter’s personal farming operations. Rikka maintains that genuine issues of material fact remain to be tried regarding this conflict.
Carter and Sherry argue that they owed no duty to sell Rikka a specific tract of land, especially when that sale would be detrimental to the remaining beneficiaries. They maintain 16that they administered the trust according to its terms and that, when no majority was achieved, they had no authority to sell Rikka the tract of land she had requested. Carter and Sherry also argue that selling the tract of land to Rikka would have immediate adverse financial effects in that the trust would be required to improve another tract of land for the same purpose that the tract at' issue currently serves, that the trust would permanently lose cultivated land, and that there would be increased fuel costs for rerouting trucks and moving the farm equipment to a more remote location.
V.Duty of Loyalty
Arkansas Code Annotated section 28-73-802(a) (Repl. 2012) provides that a trustee shall administer the trust solely in the interests of the beneficiaries. Section 28-73-802(b) provides that a sale, encumbrance, or other transaction involving the investment or management of trust property entered into by the trustee for the trustee’s own personal account or which is otherwise affected by a conflict. between the trustee’s fiduciary and personal interests is voidable by a beneficiary affected by the transaction unless, among other things, the transaction was authorized by the terms of the trust.
It is permissible for one of several trustees or a sole trustee also to be one of several beneficiaries of a trust, even though conflicts of interest and coincidental benefits to that trustee-beneficiary result. Clement v. Larkey, 314 Ark. 489, 863 S.W.2d 580 (1993). The fact of a coincidental benefit to a trustee is not alone sufficient to establish a breach of fiduciary duty on the part of the trustee. Id. The general rule is that a trustee, in administering a trust, is under the duty of acting exclusively and solely in the interest of the trust estate or the ^beneficiaries within the terms of the trust and is not to act in his own interest by taking part in any transaction concerning the trust where he has an - interest adverse to that of the beneficiary. Hosey v. Burgess, 319 Ark. 183, 890 S.W.2d 262 (1995).
VI.Discussion
While we agree that the trial court correctly construed the trust agreement to require a majority of the trustees to take action, that is not the end of the analysis. The actions of the trustees are subject to review under the limitations and fiduciary obligations imposed by the statutes and case law referenced above. Here, the trial court did not engage in such an analysis. The object of summary-judgment proceedings is not to try the issues, but to determine if there are any issues to be tried, and if there is any doubt whatsoever, the motion should be denied. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000).
As a preliminary matter, resolving all doubts and inferences in favor of Rikka, a plain reading of the trust agreement’s special instructions for the farm does not bar-Rikka from purchasing any one-and-a-half-acre tract of land. The instructions read-as follows: “My Trustee shall offer to any of my other children the same privilege to purchase one and a half acre of land at the same consideration.” The directive contains the mandatory word “shall,” and there is no limiting language in “privilege to purchase one and a half acre of land.”
Rikka has presented issues of material fact to be'tried concerning the conflict between Carter’s fiduciary and personal interests and how it may- have affected his vote preventing Rikka from purchasing, the one-and-a-half-acre tract adjoining his land. When there are genuine questions of material fact with regard to a party’s intent, summary judgment is Isimproper, Bisbee v. Decatur State Bank, 2010 Ark. App. 459, 376 S.W.3d 505. Moreover, summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Bomar v. Moser, 369 Ark. 123, 251 S.W.3d 234 (2007). There are additional disputed issues of fact, e.g., whether and how Carter’s personal farming operations benefit the trust and whether the tract at issue was improved,, and if so, whether it was improved for a purpose that benefits the trust, as opposed to Carter personally.
For the reasons stated above, summary, judgment in this case was inappropriate.
Reversed and remanded.
Gladwin, C.J., agrees.
Gruber, J., concurs. | [
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ROBERT J. GLADWIN, Chief Judge
| Appellant Richard Robinson appeals the order entered on December 29, 2014, by the Cross County Circuit Court. He argues that the circuit court erred in declining to set aside the May 17, 2011 will (Will) of his father based on findings that his stepmother, appellee Benne Robinson, met her burden of proving beyond a reasonable doubt that his father possessed mental capacity, testamentary capacity, and competency to make and execute the Will and that she also met her burden of proving beyond a reasonable doubt that she did not procure the will through undue influence. We affirm.
I. Facts
Harry Robinson, Sr. (Decedent), died on January 10, 2013, at age eighty-six. He had suffered for several years from Parkinson’s disease and various other illnesses, including dementia. Decedent was predeceased by his first wife, Jean Robinson, who died in 1995. They had three sons together. Richard is the only living child of Decedent. The youngest |2son, Lee, died several years prior to Decedent’s death. The oldest son, Harry, Jr., known as Rudyi died on May 11, 2011. Decedent had been a farmer most of his life, and prior to Rudy’s death, Decedent and Rudy had been engaged in a farming partnership. Neither Lee nor Rudy had children surviving them.
Decedent was also survived by his second wife, appellee Benne Robinson (Ben-ne). Decedent married Benne in 1998 when he was seventy-two years old and she was forty-nine years old. The couple had been involved in an ongoing affair since Benne was around twenty years old. Decedent and Benne did not have any children together.
In October 2006, while Decedent was still able to drive, he scheduled an appointment with his attorney, Mr. Danny Glover, and his two living sons, Rudy and Richard, were present for that meeting. At that time, Decedent instructed Mr. Glover to prepare a will, which provided for Benne to have their home and approximately twenty acres and a one-half interest in cattle, and the remainder of the property was to go to his two sons.
Benne learned of the 2006 will' and its contents sometime in 2010, subsequent to which she scheduled an' appointment for Decedent to go to Mr. Glover’s office and execute a new will, dated October 6, 2010, and a limited durable power of attorney. That will set out Decedent’s plan to sell 680 acres of farmland, leaving $800,000 to Rudy, $200,000 to Richard, and the remainder to Benne.
In February 2011, Benne made an appointment for Decedent and took him to Mr. Glover’s office to execute a codicil to the 2010 will, which stated he was selling the property |sunder contract, with ten annual payments of $40,000 to be paid to him, or if he died, to Benne, and when the final balloon payment was made, Rudy was to receive $300,000, Richard $200,000, and the remainder to Benne.
When his brother Rudy died on May 11, 2011, Richard did not immediately go to Decedent but rather went to see Rudy’s wife, Linda, with whom both Decedent and Benne had a strained relationship. When Richard did go to Decedent’s home shortly after Rudy’s death, he told Benne that she was not welcome at Rudy’s visitation’ or funeral. Mr. Glover testified that Decedent told him that he (Decedent) was present when Richard said this.' Decedent’s caretaker, Rebecca Dixon, was also present.
On May 17, 2011, Benne took Decedent to Mr. Glover’s office for -a conference because Decedent wanted to make a new will. The witnesses to the execution of the Will, Casey Shaw and Paula Stroud, and notary, Cathey Haire, each testified that Decedent was acting under his own free will and no undue influence when he signed the Will. Mr. Glover also testified that Decedent was not acting under any undue influence when he signed the 2011 Will. Mr. Glover wrote' a memo on May 19, 2011, wherein he related circumstances concerning his meeting with Decedent outside the presence of Benne prior to execution of the Will on May 17, 2011. There was no proof that Benne told Decedent to make a new will, that Benne drafted the Will, or that she delivered any notes to Mr. Glover concerning the 2011 Will.
The Will was admitted to probate on February 20, 2013, after Decedent’s death. Under the terms of the Will admitted to probate, Benne was the sole beneficiary. On May |41, 2013, Richard filed a petition to set aside the will and a will contest, whereby he alleged that (1) the Will was executed under the undue influence and/or duress of Benne; (2) Decedent was not of sound mind and disposing memory and was mentally incapacitated at the time; (3) the Will was procured by Benne; ■' and (4) Decedent was not competent to sign, in that the Will fails to mention the natural bounties of Decedent’s affections. Benne denied all allegations.
At trial, the circuit court ruled that Richard proved procurement of the Will and that the burden of proof shifted to Benne. In the circuit court’s final order, the circuit court explained that Benne had the burden to prove beyond a reasonable doubt (1) that Decedent possessed testamentary capacity to make and execute the 2011 Will, and (2) that Decedent made the Will without undue influence from Benne. The circuit court then specifically found that Benrie met her burden of proving beyond a reasonable doubt that Decedent possessed mental capacity, testamentary capacity, and competency to make and execute the 2011 Will, and that Benne met her burdén of proving beyond a reasonable doubt that she did not procure the 2011 Will through undue influence. The circuit court denied Richard’s petition in its order entered on December 29, 2014. Richard filed a timely notice of appeal on January 26, 2015.
II. Standard of Review & Applicable Law
We review probate matters de novo but will not reverse the circuit court’s findings of fact unless they are clearly erroneous. Shepherd v. Jones, 2015 Ark. App. 279, 461 S.W.3d. 351. A finding is clearly- erroneous when, although there is evidence to support it, the | sappellate court is left on the entire evidence with the firm conviction that a mistake has been committed. Id. We must also defer to the superior position of the lower court sitting in a probate matter to weigh the credibility of the witnesses. Id. This court’reiterated in Shepherd that.
[a] party challenging the validity of a will must usually prove by a preponderance of the evidence that the testator lacked the requisite mental capacity or that the testator was the victim of undue influence when the will was executed; however, there are certain circumstances that will cause the burden to shift' to the proponent of the will to disprove undue influence. One of those circumstances is when a beneficiary procures the will. Procurement of a will requires the actual drafting of the will for the testator or planning the testator’s will and causing him to execute it. Procurement shifts the burden to the proponent of the will to show beyond a reasonable doubt that the will was not the result of undue influence and that the testator had the mental capacity to make the will. Whether a will was procured by undue influence is a question of fact for the trier of fact. The existence of a confidential relationship between a primary beneficiary and a testator also gives rise tó a rebuttable presumption of undue influence. Whether two individuals have a confidential relationship is a question of fact. A confidential relationship arises -between a person who holds power of attorney and- the grantor of that power.
Id. at 11-12, 461 S.W.3d at 358 (internal citations omitted.) While the appellate court’s review in a will contest must take into consideration that the will’s proponent bore the burden of proof, or the burden of going forward with the evidence beyond a reasonable doubt, the question on appeal is not whether the appellate court has such a doubt; rather, the question on appeal is whether the circuit court’s decision was clearly erroneous. Pyle v. Sayers, 344 Ark. 354, 39 S.W.3d 774 (2001).
III. Discussion
Richard argues that Benne failed to meet her burden of proving beyond a rea sonable doubt that his father possessed mental capacity, testamentary capacity, and competency to 1 fimake and execute the will and also that she did not procure the will through undue influence. In Shepherd, supra, we reiterated as follows:
The questions of mental -competency and undue influence are so closely related and interwoven that. we consider them together. In ■ a case where the mind of the testator is strong and alert, the facts constituting undue influence would be required- to be far stronger than a case in which the mind of the testator was impaired, .such as by disease or advancing age. Testamentary capacity means that the testator must be able to retain in his mind, without prompting, the extent and condition of his property, to comprehend to whom he is giving it, and relations of those entitled to his bounty. The relevant inquiry is not the mental capacity of the testator before or after a challenged will is signed, but rather the level of capacity at the time the will was signed. Undue influence is defined as “not the légiti-mate influence which springs from natural affection, but the' malign influence which results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property.” Uncjue influence may be inferred from the facts and circumstances of a casé, and cases involving questions of undue influence will frequently depend on a determination of witness credibility.
Shepherd, 2015 Ark. App. 279, at 10, 461 S.W.3d at 357 (internal citations omitted).
The circuit court stated as follows in paragraph 30 of its forty-eight páge opinion: ' - •
[Richard] assorts that Mr. Glover confirmed. that there were no discussions with [Decedent] about the alienation of [Richard], about the nature of the claims of [Richard], and [Decedent]’s knowledge of the natural objects of his bounty, etc., and that Mr. Glover never discussed alternatives to protect [Richard] from being disinherited. First, it is the court’s recollection of the testimony that Mr; Glover did discuss with [Decedent] this alienation of [Richard]. Second, they did discuss the nature of [Richard]’s claim and- [Decedent] told Mr. Glover that he'did not want [Richard] to receive any inheritance unless Benne predeceased [Decedent] because of the way [Richard] treated Benne and the way [Richard] treated him. • Third, they discussed [Decedent]’s knowledge of the natural objects of his bounty when [Decedent] told Mr. Glover that he did not want [Richard] to 'réceive any' inheritance éxcept as stated above. Fourth, Mr. Glover is not required to discuss alternatives to protect [Richard] from being disinherited. Mr. Glover is obligated to discuss with [Decedent]- those elements set forth above; however, it is not his obligation to convince [Decedent] to not disinherit [Richard]. At one point in [Richard]’s argument he asserts that [Decedent] did not mention his other sons. He is not required to mention his other sons given the fact that they predeceased him and left no heirs.
. 17The circuit court considered Decedent’s medical records and testimony of the witnesses, and in its opinion, stated,
25.' [Richard] offered medical records as proof that [Decedent] .had suffered from dementia for a long period of time and that he was suffering Aom dementia when he executed the 2011 will. [Richard]’s Exhibit No. 1 begins with the hospitalization of [Decedent] on March 6, 2010. A “history of dementia” was mentioned in the History & Physical Report on March 16, 2010. Confu sion was added by March 26th to the History & Physical Report. Dr. Cathey testified that he thought [Decedent] suffered from dementia and was not competent at the time of the March, 2010, hospitalization. Dr. Cathey did not see or treat [Decedent] after the March, 2010, hospitalization.. Ms. Lisa Stutts, a clinician, performed a Fall. Risk Assessment on [Decedent] on April 7, 2011, at which time she found depression, impaired judgment, impaired memory, and impaired decision making. Ms. Stutts testified on cross examination that she does not know, if [Decedent] had impaired judgment or impaired decision-making capabilities on April 7th or not. She testified that if a doctor writes on a chart a diagnosis of dementia, she writes it down as well in subsequent reports. Memory loss on April 7th was not determined by her. The diagnosis of “cognitive deficit” was not based on her discussions with [Decedent]. [Richardj’s Exhibit No. 1 also captures diagnosis by Dr. Willard Burks who was [Decedent]’s primary physician. His diagnosis was of confusion and dementia during the March, 2010, hospitalization.. He also found Parkinson’s with dementia in March of 2011. Other medical providers also mentioned varying assessments of dementia or cognitive impairment. Ms. Stutts did another Fall Risk Assessment on May 20, 2011, and again opined depression, impaired judgment, impaired memory, and impaired decision making. However, as stated before, she often placed in the assessment that which had already been concluded by someone else. The May 20, 2011, Fall Risk Assessment was three days after Rudy was buried and one day after Dr. Burks had found [Decedent] to be competent and able to conduct his oym business. Ms. Stutts’s assessment was part of a routine visit. Dr. Burks’s assessment was based on a clearly defined purpose, that being to determine [Decedent]’s competency.
The circuit court heard other testimony from Richard’s witnesses Desmond Murphy (Decedent’s friend), Stanley Harrison (Decedent’s cousin), and Linda Robinson (Rudy’s widow). These witnesses testified about Decedent’s failing health and mental capacity. None |sof these people were present when Decedent executed his Will at the office of Mr. Glover on May 17, 2011.
Benne’s witnesses, Kevin Ward and William Ward, were involved in raising horses and cattle. Kevin Ward knew Decedent for many years, relying on him for advice on animal diseases and how to treat them. William Ward was a neighbor who had lived within one-half mile of Decedent for over ten years. Both witnesses testified that Decedent was a “go to guy” on any problems with health issues of livestock. Decedent had such knowledge both before and after making the May 17, 2011 Will.
Dr. Willard Burks, Decedent’s primary-care physician, gave Decedent a mental examination to determine his competency on May 19, 2011, two days after the Will in question was executed. Dr. Burks had known Decedent for over forty years as his patient. They both had interests in K-Bar horses and the lineage. Dr. Burks was well aware of Decedent’s medical condition and his aging. After examining Decedent and questioning him, Dr. Burks concluded that Decedent was competent on May 19, 2011, to take care of his own business concerns. Again, the operative time would be when the Will was signed on May 17, 2011.
After considering this testimony on the issue of testamentary capacity, the circuit court found, to wit:
38. The attesting witnesses-- and the notary public were consistent in their opinions that [Decedent] was competent on May 17, 2011, to- discuss his.will, its contents, his wishes and directives, and to execute the will. While the attestation clause does not state that the witnesses found [Decedent], to be of sound and disposing mind and memory, the witnesses and the notary public all stated that he was on May 17th. They testified that Mr. Glover has a routine regarding the execution of wills |fland that he followed that routine: In Foster v. Foster, 2010 Ark. App. 594, 377 S.W.3d 497, the Arkansas Court of Appeals stated that complete sanity in á medical sense at all times is not essential to testamentary capacity, provided that capacity exists at the time the will is executed and that it is executed during a lucid interval. Every person, who was present during [Decedent]’s execution of the 2011 will, testified that-he was competent at that moment to sign his will. In Foster, the Arkansas Court of Appeals also stated:
... Evidence of the testatrix’s mental condition, both before and after execution of the will at issue, is relevant to show her mental condition at the time she executed the will. Id. The test is whether, at the time the will was executed, the testatrix has a fair comprehension of the nature and extent of her property and to whom she was giving it. Id.
[Richard] offered medical evidence of [Decedent’s] mental capacity before and after the execution of the 2011 will and the court has considered this evidence. However, this court concludes that this evidence is not persuasive; the evidence most persuasive came from Dr. Willard Burks, [Decedent’s] personal physician for many years who knew him well. Dr. Burks, was well familiar with [Decedent’s] physical and mental condition. Dr. Burks testified that two days after the 2011 .will was executed [Decedent] was competent to handle his own affairs. No evidence was presented that [Decedent] suffered from dementia, on the day the 2011 will was executed. Just the opposite evidence was presented. Mr. .Glover, the two (2) attesting witnesses, and the notary public all testified that they were satisfied that [Decedent] was competent on the day the 2011 will was executed.
39. [Decedent] and Benne were married for many years; she took care of him especially during the later years of his life. She had a confidential relationship with him as his spouse and care giver of many years. Hence, the burden of proof shifted to her to prove beyond a reasonable doubt that [Decedent] had the testamentary capacity to make and execute a new will.
40. Based on the above, this court finds and concludes that on May 17, 2011, [Decedent] possessed the mental capacity, testamentary capacity, and competency to discuss with Mr. Glover his desires and directives for the disposition of his estate and that he executed the will while possessing that competency. Whether [Decedent] was of sound and disposing mind and memory on any other day except May 17th is not as important and dispositive as his mental capacity on May 17th. Dr. Willard Burks’s testimony- along with the lay testimony of the witnesses called by [Benne], convinces this court that [Decedent] was competent to execute his will on May 17th and that provisions found in his-will are his wishes, desires, and directives. [Richard’s] petition is denied based on the assertion of lack of testamentary capacity. This court Imfinds that [Benne] met her burden of proving beyond a reasonable doubt that [Decedent] possessed the mental capacity, tes tamentary capacity, and competency to make and execute the 2011 will.
Procurement shifts the burden to the proponent of the -will to show beyond a reasonable doubt that the will was not the result of undue influence and that the testator had the'mental capacity to make the will. The existence of a confidential relationship ' between a primary beneficiary and a testator gives rise to a’rebuttable presumption of undue influence. Simpson v. Simpson, 2014 Ark. App. 80, 432 S.W.3d 66. Direct and circumstantial evidence, such as the nature of the relations and dealings between the testator and the beneficiaries, the extent of the property of the testator, his family connections, the claims of particular persons upon his bounty, the situation and mental condition of the testator, the nature and contents of the will itself and the circumstances surrounding its execution are facts from which fraud and undue influence may be inferred. Id.
After considering the evidence and testimony of witnesses, the circuit court found as follows on the issue of undue influence, to wit:
49. This court finds that [Decedent]’s will was not executed under the undue influence and/or duress of [Benne]; this court finds that [Decedent] was of sound mind and disposing memory and was not mentally incapacitated at the time of the execution of the 2011 will; this court ■finds that [Decedent]' comprehended the nature, extent, and disposition of his estate; this court finds that the 2011 will was not procured by [Benne]; this court finds that [Decedent] was competent to sign the 2011 will and that the will does mention the natural bounties of [Decedent]’s affections for his sole surviving son, [Richard], by the contingent remainder left to him in the event Benne predeceased [Decedent]; and this court finds that there is no requirement that a will must mention predeceased children in order to be valid.
•' 50. In summation, this court finds and concludes that [Benne] proved beyond a reasonable doubt that she did not procure the 2011 will through undue influence. This court finds and concludes that [Benne] proved beyond a reasonable doubt that h, [Decedent] was competent to execute his 2011 will and was of sound mind and disposing memory at that time.
As with Decedent’s testamentary capacity, the circuit court heard testimony from multiple witnesses presented by each party and presented a comprehensive analysis of the evidence in its opinion. To reiterate our standard of review, we will reverse a circuit court’s findings on the questions of both testamentary and mental capacity and undue influence only if they are clearly erroneous,,, giving due deference to the superior position of the circuit judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Harbur v. O’Neal, 2014 Ark. App. 119, 432 S.W.3d 651; see also Simpson, supra.
From our review of the evidence, it is clear that the circuit court considered all of the testimony and evidence presented and thoroughly analyzed it in the comprehensive forty-eight-page opinion. We hold that the circuit court’s findings on "these issues were not clearly erronéous." Accordingly,-we affirm.
iÜfirmed.
Virden and Gruber, JJ., agree. | [
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DAVID M. GLOVER, Judge
11 Joshua Kilgore appeals from the trial court’s May 28, 2015 order confirming the arbitrator’s award (combined interim and final awards) in favor of Robert Mullenax and Senior Dental Care, LLC. He contends the trial court erred in doing so because 1) Arkansas public policy forbids an arbitrator from entering an award against a party who communicates information about fraudulent insurance acts to the Arkansas Insurance Department where the speaker reasonably believes the information to be true, and 2) the arbitrator lacked jurisdiction under the Federal Arbitration Act (FAA). We affirm.
Undisputed Facts
In its interim award, the arbitrator set forth the basic facts of this case, which are not in dispute. We will further condense them here. Robert Mullenax, an insurance agent and business owner, formed Senior Dental Care, LLC (SDC) with Dr. Chad Matone, an | ¡^Arkansas dentist. SDC operates a dental-management company, which administers dental practices that provide dental care to residents of skilled nursing facilities.
Joshua Kilgore, a businessman and licensed nursing-home administrator, approached Mullenax in late 2010 or early 2011 concerning the acquisition of an interest in SDC. Kilgore was familiar with the SDC program through his work as an administrator. On January 1, 2012, Kil-gore, Mullenax, Matone, and SDC executed a purchase-and-sale agreement by which Kilgore was able to purchase membership units in SDC. Section 7 of the purchase-and-sale agreement provided in part:
a. In further consideration of the transfer to Buyer [Kilgore], buyer agrees that he will not Directly or Indirectly, at any time during which he has an ownership interest in the Company [SDC] and for two (2) years thereafter
i. form or be employed by, act as an agent for, or otherwise participate in any sole proprietorship, venture, corporation, partnership, or other entity that is in the business of providing dental care to residents of skilled nursing facilities or assisted living facilities within the state of Arkansas;
ii. solicit work from or provide such dental services to a Customer of the Company or seek to cause any Customer to refrain, in any respect, from acquiring services from or through the Company[.]
Although Matone subsequently left SDC, an addendum to the purchase-and.-sale agreement was executed, leaving the non-compete provisions of the agreement in full force and effect between the remaining owners, Mullenax and Kilgore.
A conflict subsequently developed between Mullenax and Kilgore, resulting in the May 2013 execution of a confidential-settlement agreement and full release (settlement agreement). The parties thereby agreed that they had continuing obligations under the purchase-and-sale agreement and that those continuing obligations included the | ¡¡noncompete provisions. They further agreed that the two-year time period for the noncompete provisions would begin on April 1, 2013, and end on April 1,2015.
The settlement agreement provided in part
Kilgore will not disclose, communicate, make public or publicize in any manner any disparaging or defamatory comments about Mullenax or the Companies [Senior Dental Care, LLC, Con-ceptBLU, LLC, and VitalSound, LLC] or any statements that impugn, disparage, discredit, or detract from Mullenax or the Companies.
Kilgore further agrees to terminate all contractual obligations that he or any company controlled by him had with the Companies, including, but not limited to, the Kilgore Consulting Group, LLC (“KCG”) Consulting Services Agreement with SDC dated November 1,2012.
Both the purchase-and-sale and the confidential-settlement agreements provided that' disputes were to be settled by arbitration under the rules of the American Arbitration Association (AAA).
On June 1, 2013, Kilgore acquired an ownership interest in Care Services Management, LLC (CSM). CSM markets the dental services of Marquis Mobile Dental Services, LLC (MMDS) in the State of Arkansas and elsewhere. It also markets other medical services. CSM’s offices are located in the State of Tennessee. CSM and MMDS operate out of the same location in Tennessee. MMDS and SDC are competitors. CSM uses marketing materials in Arkansas that contain a separate page labeled “Dental Services,” which provides in part:
CSM is able to offer Dental services to all of our clients through the use of two different leaders in on site Dental services, providing one of the only truly legal means of providing dental care in the Long Term Care setting.
|4SDC’s vice president testified that after Kilgore withdrew from SDC, nineteen facilities sent termination notices to either Senior Care Solutions or Senior Works, which are companies affiliated with the SDC dental program.
On January 16, 2014, Mullenax and SDC filed a demand for arbitration with the AAA. Kilgore subsequently called the Arkansas Insurance Department (Insurance Department) and alleged' possible fraudulent insurance acts committed by Mullenax and SDC. The Insurance Department thereafter initiated an investigation concerning Mullenax and the SDC .program. Apparently, nothing of consequence resulted from the investigation, but Mullenax testified that he and SDC spent $7,105 in attorney’s fees and related expenses as a result of the investigation,
Mullenax testified he found it strange that shortly after Kilgore left, nineteen facilities terminated their relationships with SDC-affiliated companies. He acknowledged, however, he had no evidence that anyone left SDC because of any defamation.
Kilgore explained his motivation for call-, ing the Insurance Department was to “see if [he] could use a particular situation as a defense.” He further testified,
I wanted her [an attorney with the Insurance Department] to know that my call was about looking at a couple of defensible angles because I felt like if I could prove that some of the things that he was doing were not'allowed under the Arkansas insurance laws, then it would—-it would essentially wipe out— .any other—any claim that he would have under the noncompete. And at that point in time, that appeared to be the biggest you know situation there, so —
Kilgore then became unhappy with the progress of ■ the Insurance Department’s investigation, and he talked to Senator Percy Malone about it.' Senator Malone contacted the Insurance Department and reported Kilgore ■ had some information that might interest them.
| ¡¡Also, shortly after terminating his relationship with Mullenax and SDC, Kilgore asked Dr. Richard Wike, who was providing optometry services for the Mullenax program, whether “he was still doing the illegal kickback deal with Bob Mullenax.” Dr. Wike had been serving Kilgore’s nursing facilities until Kilgore terminated his relationship with Mullenax and SDC.
At least two persons testified that Kil-gore approached them about his new dental program and stated it was better than that offered by Mullenax, offering one of the persons the brochure that stated CSM provided one of the “only truly legal” means of providing dental care in long-term care (LTC) settings. However, all of the witnesses who testified on the issue stated they did not abandon SDC services because of Kilgore.
Kilgore challenges the arbitrator’s exercise' of jurisdiction under the Federal Arbitration Act as his second point of appeal. For ease of discussion, we address it first and find no error.
Arbitrator’s Jurisdiction
The issue, of whether the arbitrator’s jurisdiction should be exercised pursuant either to the' federal or to the state, arbitration- act was presented to the arbitrator; and he concluded the FAA governed. The trial court confirmed the arbitration' award, finding that “the Arbitration Award 'of the Arbitrator was proper and that there is no basis for vacating, modifying, or correcting the Arbitration Award,” and specifically noting in his posthearing rulings that the arbitrator had fully discussed the jurisdiction issue.
Kilgore contends the arbitrator erred in deciding this case was governed by the FAA because the federal act requires a contract evidencing a transaction in commerce, which he Rargues did not exist here. We find no reason to vacate the award based on the arbitrator’s exercise of jurisdiction under the federal act.
The arbitration clauses of both agreements that were'at issue in the' underlying arbitration (purchase-and-sale agreement and confidential-settlement agreement) provided that disputes were to be settled by arbitration “in accordance with the rules ... of’ or “under the auspices of’ the AAA. As explained by the arbitrator, Rule 7 of the Rules of the AAA provides that the “arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim.”
In addressing the jurisdictional- questions, the arbitrator explained that the FAA applied to all contracts “evideneirig a transaction involving commerce.” In addressing the basic question of “What is a transaction involving commerce?” the arbitrator cited a 1995 United States Supreme Court case, Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995), and explained the Supreme Court concluded that an expansive interpretation of the FAA was correct, viewing “commerce” broadly, observing that the words “involving commerce” are broader than the more commonly used words “in commerce,” and holding that use of the term “involving commerce” in the FAA “signals an intent to exercise Congress’ commerce power to the full.” The arbitrator further explained that the Court in Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003), addressed the question as to whether the contracts must involve commerce or whether they simply must be the type's of contracts in general that involve commerce and ¡ concluded that “the proper focus of the inquiry is not |7upon the individual transaction, but 'upon -‘consideration of the ‘general practice’ those transactions represent.”
With that backdrop, the arbitrator explained,
In,the' arbitration at. hand, it is noted that the parties have agreed in the Purchase and Salé Agreement to arbitrate “[a]ny dispute or controversy between the parties, arising out of or otherwise relating to this Agreement,” and in the Confidential Settlement Agreement and Full Release to arbitrate “any dispute arising under this Agreement.” Although the covenant-not-to-compete covers only activity in Arkansas, Claimant has presented evidence that Kilgore became an owner of a Tennessee business that compétés with SDC and Mullenax’s affiliated dental service companies in Arkansas. Further, the dental services of both SDC and its Tennessee competitor receive monies from federal Medicare and Medicaid, which are “certainly subject to 'Congress’ power to regulate.” Medical supplies and equipment Used in Arkansas by both the Arkansas and Tennessee competitors are purchased and transported in interstate commerce. Because the agreements and their prohibited activities “involve interstate commerce” and are the type of 'activities that usually “involve interstate commerce,” the FAA applies to this arbitration and both the contract and tort claims shall be addressed and decided in this arbitration.
Under the AAA rules, which the parties designated as applicable under both agreements, the arbitrator decides jurisdictional issues. The trial court specifically noted in its ruling at the conclusion of the hearing confirming the arbitrator’s award that the arbitrator had fully discussed the jurisdiction issue. We agree. The arbitrator fully discussed the issue, cited applicable cases, explained the concept of interstate commerce-under those cases, described the contracts, and concluded that the nature of the contracts involved here brought them within interstate commerce. We are not convinced by Kilgore’s argument that the arbitrator lacked jurisdiction under the FAA and that the arbitration award should be vacated on that basis.
| ^Public Policy
Kilgore’s remaining point of appeal contends that the arbitration award should be vacated because it violates Arkansas public policy. He asserts the arbitrator exceeded his powers because Arkansas Code Annotated section 23-60-111 (Repl. 2012) sets forth Arkansas public policy that “no civil cause of action of any nature shall arise against the person for supplying any information” to the Insurance Department relating to suspected fraudulent insurance acts. He argues this statute forbids an arbitrator from entering an award against a party who communicates information about fraudulent insurance acts to the Arkansas Insurance Department where the speaker reasonably believes the information to be true. Again, we find no basis for vacating the arbitration award.
Because we have rejected Kilgore’s challenge to the arbitrator’s exercise of jurisdiction under the FAA, we examine his public-policy challenge under the grounds for vacating arbitration awards set forth in 9 U.S.C. § 10:
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4)where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
The Eighth Circuit Court of Appeals, while recognizing that an arbitrator’s broad authority is not unlimited, outlined the general parameters employed in reviewing aarbitration decisions in Medicine Shoppe International, Inc. v. Turner Investments, Inc., 614 F.3d 485, 488 (2010):
“When reviewing a district court’s order confirming an arbitration award, we review de novo questions of law, but we accept the district court’s factual findings unless clearly erroneous.” Although we review de novo the district court’s legal conclusions, we provide “an extraordinary level of deference” to the underlying arbitration award. Courts have no authority to reconsider the merits of an arbitration award, even when the parties allege that the award rests on factual errors or on a misinterpretation of the underlying contract. “The bottom line is we will confirm the arbitrator’s award even if we are convinced that the arbitrator committed serious error, so long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority.”
(Citations omitted.) The Medicine Shoppe opinion further explains that, prior to the United States Supreme Court decision in Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008), a court could vacate arbitration awards on grounds other than those listed in the FAA. In Hall, however, the Court held that “ ‘the text [of the FAA] compels a reading of the §§10 and 11 categories as exclusive.’” Medicine Shoppe, 614 F.3d at 488.
We wrestled with Kilgore’s public-policy argument, but we concluded Arkansas Code Annotated section 23-60-111 and the facts presented in this case do not provide the type of basis for vacatur envisioned by 9 U.S.C. § 10(4). The arbitrator clearly had the “power” to address the issue before him, i.e., whether Kilgore violated the nondisparagement clause of the Settlement Agreement, and he fully explained why he concluded that Kilgore did violate that clause. In discussing the specific disparagement findings related to Kilgore’s contact with the Insurance Department, the arbitrator was careful to note that Kil-gore’s “primary motivation was not protecting the interest of the public but to gain an advantage in the arbitration that SDC and Mullenax had filed against him, thinking that to discredit or disparage Mullenax might give him an advantage and result [inin the dismissal of the arbitration.” Given the arbitrator’s broad authority, the extraordinary level of deference we provide to the underlying arbitration award, our limited judicial review of arbitration decisions under 9 U.S.C. section 10, and Kilgore’s acknowledgment that his motivation for contacting the Insurance Department was strategic in nature for his own benefit—not out of a sense of public interest—we have concluded he has not demonstrated that the arbitrator exceeded his power to any extent necessary to vacate the arbitration award pursuant to 9 U.S.C. section 10(4).
Affirmed.
Abramson and Harrison, JJ., agree. | [
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RITA W. GRUBER, Judge
|,A Benton County jury convicted appellant Ronald Fennell of harassment, a Class A misdemeanor. His sole point on appeal is that there was insufficient evidence to support the verdict. We affirm.
Appellant was charged with misdemean- or harassment for his actions at a school-sponsored event that occurred December 3, 2010, on the soccer fields next to his son’s elementary school. Appellant’s actions were in response to his disagreement with school representatives’ denial of his request to ride in a hot air balloon. A ride in the hot air balloon was awarded to students who* sold ten coupon books during a fall fundraising event.
Appellant’s son, JF, participated in the fundraiser at Cooper Elementary School selling School Partner books beginning in late August 2010. JF testified that he had participated the | ¿year before, when he was in second grade, and earned several prizes—a “sticky hand” and a radio earpiece. He said that he wanted to earn a portable DVD player in third grade, which required the sale of 125 books, and he spoke with appellant about it. JF, with appellant’s help, sold over 200 coupon books in the 2010 fundraiser, hoping to earn the DVD player plus additional prizes. He was awarded the DVD player, but he was not awarded any other prizes.
Appellant testified that he had helped JF sell coupon books to reach his goal and that, after JF sold 125 books, he called Sissy Kilgo, the PTO president at the time, to obtain more coupon books. His calls occurred on Friday night and numerous times on Saturday of Labor Day weekend. According to Ms. Kilgo’s testimony, Ms. Kilgo was able to get additional books, and her husband met appellant to provide him the extra books. When the fundraiser ended and JF informed appellant that he was entitled to only one prize, the DVD player, appellant became very upset. He testified that he contacted an attorney regarding his legal rights because he felt that his son had been mistreated and defrauded and that the attorney had written a letter and made a phone call, but he did not introduce evidence of this or explain exactly to whom the letter was addressed. He said that he had also contacted School Partners, but he did not remember the name of the person with whom he spoke. He testified that he understood- School Partners had agreed to allow him to ride with JF in the hot air balloon in December in lieu of the additional prizes.
Laura Carlson, who helped with the fundraiser, testified that she had first encountered appellant in late September when he came to trade money for more coupon books one | ¡¡morning before school at a table set up for that purpose. Ms. Carlson said that a kindergarten student had approached the table and that appellant had “pushed in front of her” and asked, “Didn’t you see me standing here?” Ms. Carlson testified that she smelled liquor on his breath and that she contacted the school office. Ms. Kilgo testified that she also saw his interaction with the kindergarten student and said it appeared that appellant had been drinking.
Ms. Carlson also testified that appellant had called the school one afternoon and left a message, which she returned, wanting to know if he could ride in the hot air balloon. She said that she would “look into it” but that for the time being it was for the students as an incentive for selling the first ten couppn books. He told Ms. Carlson that he had also sold the books. Ms. Carlson testified that she contacted School Partners and was informed that, due to liability, it was strictly for the students. She informed appellant of School Partners’ response.
On 'the day Of the event, December- 8, 2010, appellant went to the soccer fields with a video camera “to document what was being said” because he felt that his son had been' mistreated or defrauded. He testified that he had wanted “to get answers.” With video camera in hand and operating, he- approached Ms. Carlson— who was helping children on and off the balloon—and askefi her whether hé could ride, why he could not ride, and who was in charge. She attempted to direct him away from the balloon. He followed her closely with the camera in her face, repeatedly questioning her. Shé testified that he was in her personal space, that she felt threatened, and that she was worried about the safety of the Rstudents. She called 911. As Ms. Carlson spoke with law enforcement on the phone, appellant remained close behind her, continuing to record her on his camera.
Ms. Kilgo testified that she saw appellant following Ms. Carlson with his camera and asking her repeatedly if he could ride in the balloon. She said that he followed Ms. Carlson for a while and then came to Ms? Kilgo, putting the video camera in her face, and asked- her how she felt about being a liar to the children. She testified that he was very close to her at that point and that she was uncomfortable and scared. She said that she called the office for support and that when she walked back into the school, she was shaking.
John Loncarevic, an. officer with the Bentonville Police Department, testified that he was dispatched to the soccer field regarding the complaint made by Ms. Carlson. He said that he spoke with appellant at the scene and that appellant said that his son had been cheated out of some prizes. Appellant tbld Officer Loncarevic that he had been told by School Partners thát he would be awarded the opportunity to ride in’the hot air balloon with his son, and he was upset that the individuals running the event had not allowed him to ride. He told Officer Loncarevic that he brought the video camera to record why they cheated him and his son. Appellant was very upset and frustrated according to Officer Loncarevic. The DVD that appellant recorded-at the event was played for the jury at trial.
The jury convicted appellant of harassment, a class A misdemeanor, and recommended a sentence of thirty days in the county jail, which the court imposed.
We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Tillman v. State, 364 Ark. 143, 146, 217 S.W.3d 773, 774 (2005). In reviewing a 1 ¿challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. The credibility of witnesses is an issue for the jury and not the appellate court. Burley v. State, 348 Ark. 422, 73 S.W.3d 600 (2002). The jury is free to believe all or part of any .witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id Moreover, a jury is not required to believe the defendant’s version of events because he is the person most interested in the outcome of the trial. Newton v. State, 2011 Ark. App. 190, at 5, 382 S.W.3d 711, 714.
On appeal, appellant argues that the evidence was not sufficient to show beyond a reasonable doubt that his activities “served no good purpose.” He claims that he had a good purpose—that is, “to set things right between the PTO, the Fundraiser, School Partners, and his son, who had given his all, was in fact the highest seller, and had been cheated out of his just award, without notice of any kind.”
Appellant was convicted pursuant to Arkansas Code Annotated section 5-71-208 (Repl, 2005), .which provides in relevant part as follows:
(a) A person commits the offense of harassment if, with purpose to .harass, annoy, or alarm another person, without good cause, he or she:
(3) Follows a person in or about a public place;
1 fi(5) Engages in conduct or repeatedly commits an act that alarms or seriously annoys another person and that serves no legitimate purpose; or
(6) Places a person under surveillance by remaining present outside that person’s school, place of employment, vehicle, other place occupied by that person, or residence, other than the residence of the defendant, for no purpose other than to harass, alarm, or annoy.
First, the language in the governing statute does not require the State to prove that appellant’s activities “served no good purpose.” It requires the State to prove that, with purpose to harass, annoy, or alarm another person, “without good cause,” appellant followed that person in or about a public place or engaged in conduct or repeatedly committed an act that alarmed or seriously annoyed another person and “that serve[d] no legitimate purpose.”
Second, in reviewing a challenge to the sufficiency of the evidence, we consider only the evidence that supports the verdict, Stone, supra, and we affirm a conviction if substantial evidence exists to support it. Ms. Carlson testified that appellant, with a video camera, directed at her, repeatedly questioned her about riding in the hot air balloon while she was attempting to organize.and help the children get in and out of it. She said he followed her and continued to comment to her as she called 911. She also .testified that she felt threatened and was concerned for the children. Ms. Kilgo testified that appellant then put the video camera in her face and asked her how she felt about being a liar to the children. Both women testified that appellant made them uncomfortable and was much too close to them. Credibility of witnesses is an issue for the jury, and the jury is not required to believe the defendant’s version. Neivton, supra. Whether appellant had “good cause” or a “legitimate purpose” for his actions is not a question for this court; it was a question for the jury, which |7cleariy thought that he did not. We hold that substantial evidence supports the jury’s verdict.
Affirmed.
Gladwin, C.J., and Virden, J., agree.
. This case is back‘before this court after we ordered rebriefing in Fennell v. State, 2015 Ark. App. 523, 2015 WL 5734394. | [
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McHaney, Justice.
This appeal involves the title to one-fourth of the oil and gas royalty in and to 60 acres of land in Columbia county, described as SW NE and S]/t SE NW, 15-18-22. The land was owned by James H. Atkinson who died intestate February 5, 1892, and who was the owner of 300 acres of other land in said county, not here involved. He left surviving him five children and three grandchildren, appellee Charlie Menshew being one of such grandchildren. One of his daughters, Mattie M., had married A. B. Rowland and, prior to her father’s death, he had either given or planned to give to his said daughter, Mattie M., or to her and her husband, A. B. Rowland, the 60 acres of land here involved, and he put them in the actual possession thereof, but never gave them a deed to said land. Just when they took possession is not shown in the record,'or whether they made any improvements or paid the taxes thereon in his lifetime, but they were in possession for some time prior to his death. On November 18, 1893, all the other heirs of James H. Atkinson, except appellee Menshew who has no interest in this litigation, conveyed said 60 acre tract to “A. B. & M. M. Rowland” in consideration of “a deed release all claims in the real estate of J. H. Atkinson, deceased.” On the same date said “A. B. Rowland & M. M. Rowland” conveyed to “the remaining heirs of the estate of J. H. Atkinson, Dec.,” the other 300 acres of land belonging to said estate. Thus the 60 acre tract was carved out of tlje whole and convejnd to “ A. B. and M. M. Rowland” who conveyed to the other heirs their interest in the 300 acres, and who later or .at the same time partitioned it among themselves. The deed to A. B. and M. M. Rowland was not recorded until April 2,1927, while their deed to the other heirs was not recorded until August 10, 1939.
Appellants O. A., R. A. and J. W. Rowland are the only children of A. B. and Mattie M. or M. M. Rowland. Their mother died intestate May 17, ¿917. They brought this action March 6, 1913, against Charlie Menshew and wife, McAlester Fuel Company, A. B. Rowland and his second wife, and a number of others not concerned iii this appeal, including Charlie Menshew. They alleged their ownership of said 60 acre tract by inheritance from their mother, subject to the right of curtesy of their father, A. B. Rowland, and set out the facts above stated, claiming an agreed partition among themselves as a result of said conveyances. They also allege that on July 5,1939, A. B. Rowland and his present wife executed to appellee, McAlester Fuel Company, a deed conveying a portion of the minerals in said land to it, and that their right to said lands, royalties, rentals and gas payments should be determined, quieted and confirmed against appellees, subject to the admitted life estate of A. B. Rowland and those claiming under him, for which they prayed.
McAlester Fuel Company answered with a general denial of all allegations not admitted, but admitting the conveyance to A. B. and M. M. Rowland of the 60 acre tract in 1893 by the other heirs- of James H. Atkinson, the death of M. M. Rowland in 1917, the subsequent second marriage of A. B. Rowland to his present wife, and the conveyance by them to it of an undivided one-fourth royalty interest in said 60 acre tract for a cash consideration of $2,000, after a confirmation decree which quieted the title thereto in A. B. Rowland and his former wife, then dead, and which action was brought and decree secured at the instance of appellant, J. W. Rowland. They plead estoppel as to all appellants and particularly as to J. W. Rowland, who, it was further alleged, negotiated and participated in the sale and conveyance to it by his father and his then wife of said royalty interest, representing to it that the title was good in his father, having previously been confirmed and quieted in him. Laches, limitations and innocent purchaser were also interposed in bar of the action.
Trial resulted in a decree dismissing the complaint for want of equity, the court finding that James H. Atkin son made a verbal gift of the 60 acres to his daughter, M. M. Rowland, and her husband, A. B. Rowland, and put them in possession; that the heirs of James W. Rowland, in recognition of such verbal gift, executed to them the deed of November 18, 1893; that such gift and deed created an estate by the entirety; that J. W. Rowland is estopped because of his participation in the action to quiet the title in his father and in securing the decree to this effect, and by assisting in and encouragement of the sale by his father to McAlester; and that all the plaintiffs are barred by laches and limitations, the land having been in the actual possession of A. B. and M. M. Rowland since 1892 under a claim of title and that he paid the taxes thereon all these years under color of title, and that the land has been wild and unimproved for more than seven years. This appeal followed.
For a reversal of this decree, appellants contend that the findings of the trial court to the effect that James H. Atkinson made a verbal gift of the 60 acres to his son-in-law and daughter, A. B. and M. M. Rowland, and put them in possession, and that the deed of the other heirs to them of November 18, 1893, was in recognition and confirmation of such gift, creating an estate by the entirety, are erroneous and without evidence to support them. "We do not agree with appellants in this contention. They say that S. W. Atkinson, son and only surviving heir of James H. Atkinson, who testified as a witness for appellants, did not testify there was a verbal gift of this land to A. B. Rowland. While the witness, S. W. Atkinson, was 88 years old at the time of trial, it is not shown that he is not sound .mentally. On direct examination he testified that his father “was aiming to give it to her, that was the understanding, ’ ’ referring to the 60 acres and his sister, M. M. Rowland. On cross-examination, he testified that his father gave 60 acres of land to his sister, Mrs. Rowland, put her in possession of it and she was living on it prior to her father’s death. In answer to the question, “He had already given it to her?” he answered: “We supposed he was going to give it to her; I don’t think he ever made any deed to her to it. ’ ’ He said he supposed the only reason the deed of the heirs was made to Mrs. Rowland was because his father had given it to her, she asked for it and all the heirs agreed, she was living on it and it did not interfere with the main part of the farm anyway. ' While this testimony does not in terms state there was a verbal gift of this land to A. B. Rowland, the fact that the witness and all the other heirs joined in a deed conveying the land to A. B. and M. M. Rowland is strong corroboration of the fact that M. M. Rowland wanted it that way and that the ancestor intended for both of them to have the 60 acres, and the witness was certain that the heirs were carrying out the intention of their father. There is no other explanation of the insertion of the name of A. B. Rowland in the deed, except appellants say in their complaint that “without any reason or explanation therefor, the name of A‘. B. Rowland, the then husband of Mattie M. Rowland, appeared in the deed as a grantee.” A. B. Rowland was present at the trial, but did not testify. Perhaps he could have explained it, but he did not. Nevertheless he was a grantee in this deed and his title as surviving tenant by the entirety cannot be taken away on the assertion that there is no reason or explanation therefor. We think the court, under the circumstances, had the right to presume that parties to the instrument, particularly M. M. Rowland, wanted it in the deed. Had the deed been made to her alone and she had conveyed to a third person who conveyed to her and her husband jointly, there could be no question that they held by the entirety. Instead she, no doubt, had the deed made to them both, which constituted a voluntary settlement. Hannaford v. Dowdle, 75 Ark. 127, 86 S. W. 818; Evans v. Wells, 138 Ark. 454, 212 S. W. 328.
We do not overlook the case cited by appellants, McGraw v. Berry, 152 Ark. 452, 238 S. W. 618, which holds, to quote headnote 1, “An estate by entireties is not created by a conveyance to husband and wife, for purposes of partition, of an interest in real estate which had descended to tlie wife by inheritance.” But that decision was based on a commissioner’s deed in an ordinary partition suit. Perhaps the same rule would apply in a voluntary partition, which is defined by Bouvier’s Law Dictionary as that “made by the owners by mutual consent. It is effected by mutual conveyances or releases to each person of the share which he is to hold, executed by the other owners.” Here, there was no partition in the ordinary sense of that term. All the other heirs conveyed to A. B. and M. M. Rowland and they in turn conveyed their interest in the balance of the estate to all the other'heirs. The fact that the other heirs thereafter executed deeds to each other among themselves, we think, does not bring thiá case within the rule stated in McGraw v. Berry, supra. This case is further distinguished therefrom by the fact that the ancestor made a parole gift of the land to his daughter in his. lifetime. The division of land here made was not a partition thereof within the rule of the McGraw v. Berry case.
Other questions are discussed in the briefs of the parties, including that of estoppel. We agree that appellant J. W. Rowland estopped himself to maintain this action, but since we hold that A. B. Rowland was the surviving tenant of an estate by the entirety in said 60 acres, and that his deed to MoAlester Fuel Company to a royalty interest therein conveyed the title, it becomes unnecessary to discuss this or other questions.
Affirmed. | [
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Holt, J.
Appellants sought to probate a written instrument, alleged to be the last will of Dr. J. F. Boyland, who died April 24, 1944. Appellees contested its probation on the ground that its execution had been procured by the undue influence of appellant, Bessie May Sanders, one of the beneficiaries, who claimed to be the widow of the testator, and on the additional, and principal, ground that the testator lacked testamentary capacity. The parties here are Negroes.
Some evidence was offered by appellees to support the allegation of undue influence in procuring the execution of the will, but the greater part of the testimony was offered to show a lack of testamentary capacity.
Upon a consideration of all the evidence, the trial court found “that the paper writing filed in this Court, on May 1, 1944, and purporting to be the last will and testament of Dr. J. F. Boyland, deceased, is void and not entitled to be probated,” and from the decree comes this appeal.
While the decree does not specifically so recite, it appears from the briefs of counsel to be admitted that the primary ground on which the will was declared void by the court was because of the testamentary incapacity of the testator at the time it was alleged to have been executed.
Appellants. say that there are three questions presented, which are: “1. Was the will duly executed in accordance with the statute? 2. Was the will, or paragraph six thereof, procured by undue influence? 3. Did the Testator at the time of the execution of the will (if it was duly executed) have the necessary testamentary capacity?”
The cause comes to us for trial de novo.
The conclusion we have reached in this case makes it necessary to consider only appellants’ third question, supra, that is whether the testator lacked testamentary capacity.
Dr. Boyland had been married three times before he attempted, at the approximate age of 74, to marry appellant, Bessie May Sanders, in November, 1942. His first wife died in 1899, the second divorced him in 1908, and the third, appellee, Mary L. Boyland, whom he married in 1912, and who lives in Ellendale, Tenn., is his present lawful widow, they never having been divorced. Bessie May Sanders was at the time of her alleged marriage to Dr. Boyland thirty-six years of age, and had, but a short time before, secured a divorce (for which Dr. Boyland furnished the money) and had deserted her three children, — the oldest being six years of age, and the youngest, “just a baby”, — in order to become, in effect, Dr. Boyland’s mistress.
In June, 1943, Dr. Boyland prepared a typewritten instrument in the form of a will, which he signed some time between this date and April 4th or 5th, 1944. Appellants alleged that he completed its execution by having Bev. W. L. Purifoy and W. L. Purifoy, Jr., sign the instrument, as attesting witnesses, in his presence, at his home on April 4th or 5th, 1944, and it is this alleged will that is in question here.
Much of the testimony on the testamentary capacity of the testator is in irreconcilable conflict, and it would serve no purpose to set it out in detail.
In addition to the testimony of the interested contestants (appellees) some eight or nine other and disinterested witnesses testified in effect that Dr. Boyland lacked testamentary capacity for some time prior to March 18, 1944, when he was admitted to Mercy Hospital in Forrest City, until his death on April 24th, a little more than a month later. It appears to be undisputed that Dr. Boyland, for some time prior to his admission to the hospital in Forrest City, was suffering from cancer which continued to grow worse and was the principal, if not the direct cause of his death April 24, 1944.
Among the above disinterested witnesses were Dr. Roy,-who owned and operated Mercy Hospital and who treated Dr. Boyland in his hospital from March 18th to March 30th, and his chief nurse who had Dr. Boyland in charge and saw him four or five times daily, both of whom testified that in their opinion Dr. Boyland lacked testamentary capacity during the time he spent in Mercy Hospital, and thereafter until his death, April 24th. They testified that he grew worse from day to day after his admission to the hospital.
Dr. Roy further testified that he was insane, would have to be committed to an institution, that his physical condition was deteriorating very rapidly and that he did not possess recuperative power to improve to the point where he would be capable of executing a will or transacting other business, and that when he came to the hospital he had been taking drugs to alleviate his constant pain and suffering to the extent of a fourth of a grain of morphine, but after “being admitted to the hospital it would not relieve him and therefore it was necessary to increase it to a half grain * * * every two or three hours.”
Dr. Roy had a degree from the medical college of the University of Tennessee and interned in St. Joseph’s Hospital in Memphis following which he had been in practice for more than two and one-half years and operating a clinic and his own Mercy Hospital in Forrest City.
Of the above disinterested witnesses who testified in effect that Dr. Boyland was mentally incompetent, Delilah LaFlore, after Dr. Boyland was moved to his home on March 30th, went to his home “from three to four times a week,” and would go “at night about 8, and stay until 11, 12 or 1 o’clock;” another, Benjamin Hadley, assistant pastor of Dr. Boyland’s church, visited him “two or three times a week” during this period; a neighbor who lived across the street “was over there every day” and “stayed there several nights for company with the family,” and the first day that he was home from Mercy Hospital, she tried to talk to him, but ‘ ‘he talked so random, I didn’t bother him any more. He didn’t know what he was talking about; said somebody was trying to kill him or rob him, random talk like that; Henry Porter was there “about every other day;” Horace Davis who lived next door “hardly missed a day” seeing Dr. Boyland; witness, L. B. Wilson, lived in the same house with Dr. Boyland, Horace Davis next door, and Mattie Neely just across the street, and these witnesses, from related acts that continuously occurred, thought Dr. Boyland insane when the will was attested on April 4th or 5th, and most of them that he was insane at all times after he came home from Mercy Hospital on March 30th until his death, April 24th.
As against the above testimony of appellees, appellants rely primarily upon the testimony of appellant, Bessie May Sanders, the two attesting witnesses, W. L. Purifoy and his son, W. L. Purifoy, Jr., Dr. Banks and Rev. I. L. Pitts and his wife, all of whom testified, in effect, that in their opinion Dr. Boyland possessed testa-mentary capacity on April 4th and 5th, and for some time prior thereto.
With reference to the testimony of Bessie May Sanders, in the circumstances here, we think it deserves, and we give to it, no credit.
In considering the force to be given the testimony of Rev. Purifoy, Sr., we think it noteworthy that while Dr. Boyland and Bessie May Sanders were admittedly both members of his church, the effect of his testimony was that he knew they were living together, though unmarried, and in effect, approved rather than condemned their reprehensible conduct.
His son testified positively that the will, which he and his father attested as witnesses on April 4th or 5th, was in the handwriting of the testator, Dr. Boyland, or was holographic, when in fact the will in question was typewritten.
According to the testimony of Rev. I. L. Pitts, he visited Dr. Boyland, once at Mercy Hospital, four or five days before he was taken home on March 30th, and again on April 9th in company with eight or nine members of his church, he went to the testator’s home for a prayer service. His wife saw him only once, which was at this service. They both testified that he talked normally and seemed to be in his right mind. The other eight or nine members who were at the service appear not to have testified in this case.
Dr. Banks testified that he graduated from Meharry College, Nashville, Tenn., in 1910, and had been a practicing physician in Forrest City since June, 1915; that he visited Dr. Boyland five times while he was in Mercy Hospital, but not as his physician, and after he returned to his home, he made five more visits, in a professional capacity, April 13, 14, 16, 21 and 24. He always found him “in pain” but able to carry on an intelligent conversation and on all of these visits until about the 16th of April, he considered Dr. Boyland mentally capable of transacting business and making a will.
This is one of those cases wherein the trial court was in a much better position to weigh and consider the testimony, than we could possibly be. Our conclusion, after consideration of all the competent testimony, is that the finding of the chancellor is not against the preponderance thereof and the decree is therefore affirmed. | [
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