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Griffin Smith, Chief Justice.
The appeal by Yarrington is from a decree dismissing his complaint against John Hancock Mutual Life Insurance Company and Robert M. Williams, the plaintiff’s allegations being that Williams as general agent for the Insurance Company contracted with him July 12,1943, for the procurement of applications for retirement participating annuity policies covering members of the Extension Service, University of Arkansas College of Agriculture.
The insurance was initially predicated upon a letter from T. C. Carlson, business manager for the University, in-which he stated that the Board of Trustees had author ized a special committee to enter into an agreement with the John Hancock Company, and that the committee on June 9th “voted to approve and adopt the plan submitted by your Company. . . . Under authority of this action of the committee, you may proceed.”
This plan as originally drawn provided that contributions in favor of employees of the Extension Service would be made by the University to the extent of five percent of the salary of employees who were eligible to participate, but not in excess of an annual salary of $1,500 — such contribution to be from Federal funds administered by the University.
In July 1943 the insurance plan was embodied in a pamphlet termed the Red Book; and in July, 1945, the Blue Book, containing modifications and liberalization of the undertaking, appeared. The Red Book was compiled throiigli joint efforts of the Insurance Company, the University, R. M. 'Williams, and Yarrington. It carried a facsimile print of President Harding’s letter of July 7, 1943, addressed to members of the staff of the Agricultural Extension Service. It is printed in the footnote.
The Red Book was mailed to Extension Service employees. At approximately the same time Williams sent to the listed eligible employees blank application forms to obtain the employee’s authorization that the University might deduct from monthly salaries the amount so made available to match the Federal contribution. These applications were mailed by the employees directly to the Extension Service. They were in turn forwarded to Wil liams, who inserted' Yarrington’s name as the procuring agent or broker. There was no “master” or group policy —only the individual contracts, with the Extension Service named as employer.
Under Yarrington’s contract with appellees, which “tied in” with the Bed Book, he was to receive as a commission 20% of the first year’s premium, and thereafter for nine years 3% per year.
Anticipating that at some time the State would, appropriate funds for contributions similar to those made by the Federal government, Article 14, Sec’s 3 and 4, provided: “Since State appropriated funds cannot be used as employer contributions, . . . amendment to [the general provisions of Article 14] will be made to remove the $1,500 limitation if and when authority is provided for the use of State appropriated funds as employer contributions.”
Yarrington was paid all he claims was due him impolicies issued in 1943 and 1944, and neither "Williams nor the Company contends that he will not be entitled to commissions on premiums paid during the full period — that is, three percent annually for nine years.
In 1945 the General Assembly, by Act 83, approved February 21, authorized use of State funds as contributions, to be matched by employees of the Extension Service, such contributions not to exceed five percent of the employee’s salary. The $1,500 limitation was not included in the Act; whereupon the Blue Book was issued. Like the Bed Book, it carried facsimile of President Harfling’s letter of July 1, with this statement: “A recent appropriation by the General Assembly makes it possible for members [of the staff of the Agricultural Extension Service] to participate [in the annuity insurance] no matter whether they are paid by State funds or by Federal funds. Under the University plan the policyholder makes a monthly payment and the University matches this payment. ’ ’
Yarrington construed Ms contract with Williams and the Insurance Company to he that when State funds became available for contribution purposes, to be used in a manner similar to use of Federal funds, the general plan of insurance was merely enlarged, and that he is entitled to commissions on the business originating subsequent to the Blue Book, and upon increased or enlarged policies in effect July 1, 1945, where the increase came about by reason of Act 83, and by removal of the $1,500 limitation.
While conceding that he did not contribute to preparation of the Blue Book, Yarrington testified that he collaborated with the Extension Service faculty in getting information regarding annuity contracts. The Extension Service was at that time headed by Dean Dan T. Gray, who said to appellant: “Yarrington, we are interested in a retirement annuity for Extension Service employees. They ought to he interested in the best contract that can be written, and I wish you would see what you can do.”
Yarrington was agent at Fayetteville for Guardian Life Insurance Company, hut it did not write annuities. TMs conversation occurred early in the fall or late summer of 1940. Thereupon Yarrington took the matter up with Bob Williams, and Williams in turn referred the subject to John Hancock Company. E. H. Thompson was head of the Extension Service at Little Rock. The information collected by Yarrington, Williams, and others who assisted, was sent to Thompson, but for some reason the policies could not he written at that time. Thompson was replaced by Aubrey Gates. In 1942 Yarrington wrote Gates, asking that the information he had supplied Thompson be returned for further consideration. In this connection Yarrington had direct correspondence with the Hancock Company. The Company responded July 14, 1942, stating that it regretted its inability to accept the business at that time because underwriting restrictions would not enable “the case to qualify.” The letter closed with this statement: “. . . Our only hope would be that the employer do not take action until after we have had an opportunity to modify our present underwriting restrictions. It is conceivable this may be done in the fall, but I am dubious that such modification will take place before then. ’ ’ The modification mentioned in this later was made, and the Company accepted the business.
During the session of the 1945 General Assembly, Williams and Yarrington worked together, and with the Extension Service, to procure State appropriations. Williams and Yarrington, according to appellant’s testimony, considered that if an appropriation should be made the new business would be a continuation of Red Book plans. February 2, 1945, Williams wrote Yarrington as follows: “I have your letter of the 31st, and will certainly do the necessary in connection with the Milum Bill when it comes up in the House. You needn’t worry about that business going elsewhere, as we sewed it up when we entered into contract with the University, as you know. Keep the eagle eye on the situation; and if anything happens, we will get together.”
March 1,1945, Williams wrote W. H. Chatfield, manager of the Salary Savings and Pension Trust Division of the John Hancock Company (Boston). He expressed delight that the Legislature had made statutory provision for state contributions, and added: “We are at work with the local office toward assembling additional data, with a view of making these additions as of July 1,1945.” He then stated that much to his surprise Sam Watkins, agent of another insurance company who appeared to speak with authority, had told him (Williams) that the University desired that commissions, formerly received by Yarrington, should go to Watkins — who, it appears, was threatening to have the business taken from John Hancock and placed with another company unless the commission arrangements should be changed. Williams stated that he was under the impression that “we” had a contract with the University covering the business— and, inferentially, the business was a continuation of the old. He asked that photostatic copy of the contract be sent him. There was this significant statement: “My feeling in the matter is that we are duty bound to the original agent, O. C. Yarrington, and I do not see how we could go around him. We were named the insurer to begin with; and, off-hand, I do not see how the Board of Trustees could give the business to anyone else but the John Hancock unless they construe it in the light of an entirely new contract.”
March 5, 1945, Williams wrote Yarrington, stating that he had talked with one of the University Trustees, “who feels as we do, that the contract was awarded the John Hancock Company for the retirement annuity plan to cover the employees of the Extension Service. It was not awarded just on the basis of taking care of the Federal fund angle, but was so set up to take care of that feature immediately, and hook in with the State angle when the Legislature made the necessary appropriation. ’ ’ There was reference to pressure that might be exerted, with identification of those whom he thought could be of service. He was convinced that these parties, “once they saw the light, will have a change of heart. ’ ’ The concluding sentence was: “Just stay in there and pitch until the very last minute; then, if we see there is no other way in the world but to work out a deal [with Watkins], you and he can get together and try to come to some satisfactory conclusion.”
Williams wrote another letter, in which he referred to Act 83, and in part said: “There seems to be considerable misinformation about the status of an existing contract between our Company and the University of Arkansas. . . . Back in 1942 tile John Hancock Company was awarded the retirement annuity plan [covering Extension Service employees], and in the Legislature of 1943 we attempted to get the same bill passed which has just been enacted. The Board of Trustees gave our Company the specifications for the plan, and after some six months of negotiations the details were satisfactorily worked out. One of the main details was the manner in-which additions to the plan would be handled when and if the State Législature passed an Act to’ take care [of contributions]. Under these pension plans the specifications are rather complicated and it would not only be impractical, but almost impossible, for another Company to write a plan to take care of these additions which would dovetail in with the present plan.” There was much more in the letter emphasizing Williams ’ belief that the contract “we had entered into” was valid, that the business was created in good faith, and in effect that it was generally understood that if the State acted, then the newly available funds would be in the nature of a supplement to the business then resting upon Federal money.
Other letters and conversations — not denied by Williams — conclusively establish the proposition that he dealt with Yarrington on the basis of a general agent authorized by his Company to hold out the inducement that a valid contract had been entered into by himself and. the Company upon the one hand, and the University Board of Trustees on the other, to write the policies. Williams’ letter to the home office stresses this belief; and certainly Williams caused Yarrington to think that valid contractual relationships were a fact. Acting upon these assurances, Yarrington became a motivating agency for procurement of the policies, beginning in 1943 and continuing through June 30, 1945.
Williams did not, in his testimony, seek to conceál his belief that Yarrington was entitled to the business. He testified very frankly regarding conversations, gave Yarrington credit for working up the plan, and explained that the University contract “was not awarded just on the basis of taking care of the Federal fund angle”; but, as he insistently declared, “it was set up to take care of the [Federal feature immediately'], and to hook in with the. State [appropriation] when the Legislature had acted. ’ ’
In writing the home office Williams told Chatfield they were “duty bound to the original agent, Yarrington, and I do not see how we could go around him.” Williams talked with one of the University Trustees, who felt the same way. And he said to Yarrington, “You needn’t worry about tbe business going elsewhere. We sewed it up when we entered into contract with the University. ’ ’
It is argued that, when the extended or enlarged service matured, the University designated the agent who should receive commissions; hence appellees were powerless to interfere. But, as a matter of fact, the University Board did not name Watkins. There were letters and conferences and conversations between Williams, individual Trustees, and others who were interested because of personal relationships; but the University did not, by resolution or other official act, bestow any of the business upon W.atkins. Williams himself made the designation — and he did this at a time when his best judgment was that Yarrington was entitled to the commissions. Finally he abandoned Yarrington when attorneys told him that use of the State fund and elimination of the $1,500 limitation should be construed as a new undertaking. When asked regarding indirect instructions he thought he had received to “cut” Watkins in as broker —that is, when asked whether the directions were official or unofficial, Williams replied:
“No, [they were not official]. But when you find out what’s going on, it’s very helpful. When you know what’s going on, and somebody who is sitting there is helping out, then you would feel more at liberty to say it had come by word of mouth, rather than by anybody coming out and telling it to you. I thought it was being made pretty plain: — they were told, and they told me. ’ ’ And again: “You, instead of the Board of Trustees, designated Mr. Watkins, didn’t you?” Answer: “Oh, if you want to get it down to a needle-point, yes'!”
In their brief appellees construe the right they contend for by saying it became evident the John Hancock Company would not retain the business unless Watkins should be permitted to receive the commissions. Therefore, in order to hold a profitable contract (and it was a contract Williams says ivas not new), — in order to retain this business Williams acquiesced in the unofficial representations he was persuaded to believe had come from an authoritative source; and in doing so he severed his relationship with Yarrington as to policies issued subsequent to June 30, 1945, and as to increases in outstanding policies; and on May 26th he consummated arrangements with Watkins. This he could do insofar as Watkins was concerned, and Yarrington may look only to appellees for compensation.
Appellees say in their brief that “The sole interest of the University in the policies was its agreement to contribute from' funds provided by the Federal government”; for, as was said in a preceding sentence, “No contract was made with the University of Arkansas.-Each employee made a separate application to the Company for an annuity, in an amount determined by him, and by him alone.” Yet, under the same contract, arrangement, understanding, or set-up, the 1945 applications, according to appellees, “were mailed to the employees by Watkins, and he signed his name to the application as procuring agent. ... He was the broker — not only by virtue of appointment by -State officials and the Board of Trustees of the University of Arkansas, but he was also the broker who in fact solicited and procured the applications for each annuity in 1945.” Finally it was said that if Yarrington was prevented from soliciting applications, “It was by the Board of Trustees, and not by Williams.”
It must be remembered that Williams conceded that he, and not the Board of Trustees, appointed Watkins. It is true, of course, that Williams says the pressure was too great to be resisted; but, in failing to meet the-issue at the risk of losing his own business, he assumed whatever liability attached to this choice of action, even though the choice was not one he relished.
The real root contract was made when Carlson wrote Williams in 1943 that the Hancock Company had been selected, that its plan had been approved, and that “Under authority of [this selection by the special committee] you may proceed.” Williams and the Company did proceed, and they contracted with Yarrington. The University Board of Trustees (June 11, 1945) passed a resolution providing for expansion of the annuity plan, and in the resolution said: “Be it resolved that the John Hancock Mutual Life Insurance Company of Boston be continued as the underwriting institution.”
The contract between Williams and Yarrington (July 12, 1943) was indorsed by the John Hancock Company and signed, “ J. H. Ward, Second Viee-President.” Williams subscribed as general agent. A contractual provision was that the agreement might be terminated upon thirty days written notice, “but such termination alone shall not impair the broker’s right to receive [commissions] if any shall accrue on policies issued on applications procured prior to such termination.” Notice of termination must be served personally, or sent by registered mail.
No such notice was given Yarrington. His suit was filed November 20, 1945. He prayed for an accounting, payment of all sums due, and for a decree of specific performance.
The John Hancock Company demurred December 10, 1945, asserting that the complaint failed to affirmatively show a contract to which it was a party. The complaint was amended March 13, 1946, by alleging the joint liability of Williams and his Company. There was a motion to require the plaintiff to make his complaint more definite and certain; and there were other pleadings. Williams’ answer was filed May 27, 1946. It contained a definite disclaimer of liability; and it was, we think, sufficient notice to Yarrington that he would no longer be dealt with as a broker in respect of the annuity contracts.
It is a general rule of construction, applicable to ambiguous contracts, that where the parties have acted in a definite way, and have by such conduct said, in effect, that a particular purpose was contemplated from the very beginning, then courts will give great weight to what the accepted meaning was. Powell v. Baker Ice Machinery Co., 8 Fed. 2d 125; Sternberg v. Drainage District No. 17 of Mississippi County, Ark., 44 Fed. 2d 560; Kahn v. Metz, 88 Ark. 363, 114 S. W. 911, and other similar deci sions. See “Contracts,” West’s Arkansas Digest, Fifth Volume, § 170.
It would be difficult to find a clearer case of construction by tbe parties than tbe one we are called upon to adjudicate in tbe appeal before us. Tbe complete frankness of Mr. Williams leaves little to be supplied by inference. He and his Company contracted witb Yarrington,~ and it was intended that when tbe State appropriation became effective tbe 1943 arrangement would continue and tbe supplemental business merged into it. Tbe University’s resolution of June 11,1945, shows tbe influence of this contract: — “tbe John Hancock Company shall be continued as the underwriting institution.”
Tbe decree is reversed witb directions that an accounting be bad, and that Yarrington have judgment for tbe commissions be is entitled to on business resulting until May 27,1946, tbe date of Williams ’ answer.
President Harding’s letter: “Following a practice adopted by many educational institutions, the University of Arkansas inaugurated several years ago a plan of retirement benefits for members of its faculties and administrative officers. This annuity plan has now been extended to cover the members of the staff of the Agricultural Extension Service. Under the University plan the policyholder makes a monthly payment and the University matches this payment up to a fixed maximum from any funds that have been appropriated for that purpose. It is to be hoped that the protection of this annuity policy may be received in the same spirit of appreciation as it is given and that the spirit of mutual helpfulness may be of great benefit to the University.” | [
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Griffin Smith, Chief Justice.
An order finally dismissing the plaintiff’s cause for want of jurisdiction is appealed from. The question is whether Joseph Allen, who had lived at Hot Springs (making occasional visits to other States) was a resident of Lawrence County ■within the meaning of our statutes authorizing divorce. See “Venue,” Pope’s Digest, Sec. 4383.
The Allens were married at Malvern in March 1943. The complaint alleges separation without cohabitation for more than three years. Act 20, approved January 27, 1939, 7th subdivision; Pope’s Digest, Sec. 4381. *
Testimony by the parties is that they lived together less than three months. In October 1943 the husband sought a divorce in Garland County, alleging indignities. Mrs. Allen’s answer contained similar charges against the plaintiff. .In amended and substituted pleadings it was alleged that Mrs. Allen deserted her husband May 11, 1943. At the December 1944 term Chancellor Garratt dismissed the complaint for want of equity. No appeal was taken. In the meantime a part of Allen’s pension as a Spanish War Veteran had been deducted by the Administration and sent monthly to Mrs. Allen.
Although appellant insists he was a resident of Lawrence County within the meaning of divorce statutes, and supplements this claim with testimony of his boardinghouse landlady who says he maintained quarters and took meals in the establishment for six weeks or more, and supporting witness (the landlady) says she had seen Allen in Hoxie continuously for several weeks, force of this evidence was largely destroyed by the plaintiff’s answers to questions by the Court. Effect of the interrogation was to show that Allen left Hot Springs and went to Lawrence County for the purpose of getting a divorce, “because justice could not be procured at Hot Springs.” There is nothing in the. record to indicate that appellant was denied any of his rights by the Garland Chancellor. In the light of admissions, the Court from which this appeal comes properly held that-it was without jurisdiction. McLaughlin v. McLaughlin, 193 Ark. 207, 99 S. W. 571; Hillman v. Hillman, 200 Ark. 340, 138 S. W. 1051.
There is another reason the divorce should not have been granted on the testimony presented. Allen alleged separation for three years, and Mrs. Allen, while denying other parts of the complaint, admitted separation without cohabitation for the period mentioned. There was no corroboration of the plaintiff’s testimony that the peribd of separation was three years. The evidence is not sufficient. Pryor v. Pryor, 151 Ark. 150, 235 S. W. 419. In Davis v. Davis, 163 Ark. 263, 259 S. W. 751, this statement appears: “So, even if the appellant had admitted all that appellee charged against her, we could not grant him a divorce upon his uncorroborated testimony. ’ ’ Mr. Justice Mehaeey's opinion in Bell v. Bell, 179 Ark. 171, 14 S. W. 2d 551, cited Scales v. Scales, 167 Ark. 298, 268 S. W. 9, and said: ‘ ‘ That case also holds that the rule is well settled that divorces will not be granted upon the uncorroborated testimony of either party, even if admitted to be true by the other party.”
The decision in Goodlet v. Goodlet, 206 Ark. 1048, 178 S. W. 2d 666, copies from Scales v. Scales, where it is said: “The cases are agreed that the purpose of the rule requiring corroboration is to prevent procuring divorces through collusion, and that where it is plain there is no collusion, the corroboration may be comparatively slight.” Other decisions are consonant.
Affirmed.
In the Pryor case, Mr. Justice Wood, who wrote the Court’s opinion, said: “Divorces are not granted upon the uncorroborated testimony of the parties and their admissions of the truth of the matters alleged as grounds thereof”. Citations were Sisk v. Sisk, 99 Ark. 94 136 S. W. 987; Rie v. Rie, 34 Ark. 37; Kurtz v. Kurtz, 38 Ark. 119; Brown v. Brown, 38 Ark. 324; Scarborough v. Scarborough, 54 Ark. 20, 14 S. W. 1098; Kientz v. Kientz, 104 Ark. 381, 149 S. W. 86; Shelton v. Shelton, 102 Ark. 54, 143 S. W. 110; Johnson v. Johnson, 122 Ark. 276, 182 S. W. 897. | [
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McHaney, Justice.
Appellant was convicted in the municipal court of Newport of unlawfully keeping gambling devices, slot machines, in violation of % 3320 of Pope’s Digest, a misdemeanor. He appealed to the Circuit Court where he was again convicted, fined $500 and he has appealed to this Court.
On this appeal the only argument made for a reversal is that the evidence is insufficient to support the verdict and judgment against him, because the slot machines were found in a room called “Lou’s Place” adjacent to or near appellant’s liquor store, both in the same building. Appellant concludes his brief with this statement: “In view of the positive, direct proof that Chester Fortune owned the machines, paid the federal tax on them, set them up, operated them and took the money from them, it is respectfully submitted that the jury was not warranted in finding that the defendant, R. T. Simmons, set up, exhibited and operated the machines as charged in the information. ’ ’
But we think the evidence justified the jury in finding appellant guilty. It is true that Chester Fortune testified in the circuit court that he owned and operated the machines and took the money out of them. He exhibited a federal license in his name showing payment of $300 for three “Coin Operated Gaming Devices.” He made no such claim when the officers took the machines and arrested appellant, although he was present. He made no such claim in the municipal court, did not even testify in that court. He is contradicted hy appellant who told Mr. Huff, the newspaper man, that the machines had been taken out of “Lou’s Place.” Mr. Huff, in relating what appellant told him shortly after the raid on the slot machines was published, said: “He (appellant) told me at that time that the machines were owned by a fellow by the name of Lou and that they were not his machines and that this fellow had contract with bim, that he didn’t know where he was now, but that he.had contracted with him to put the machines back there.”
No one by the name of “Lou” has appeared and claimed to be either the owner of “Lou’s Place” or the owner of the slot machines. So it appears to us the jury might have been justified in finding “Lou” to be fictitious. Although Chester Fortune testified he owned and operated the machines, he also testified when asked “Where do you work?”, answered: “For R. T. Simmons.” Chester was there when the raid was made and his .master was arrested, yet he made no protest that they had the wrong man. He is also contradicted by Mr. Simmons who told the officers they could take the machines out, but he would have some more in there in a day or two; also Mr. Simmons wanted to take the money out of the machines before the officers took them away, but was not permitted to do so. Deputy Foushee testified: “We took the slot machines out and Uncle Bob Simmons wanted the money. The sheriff told him he couldn’t get it, and for him to wait until they came to court.” Appellant’s abstract. None of this testimony is disputed, except as it may be by the late claim of Chester Fortune, the only witness for appellant.
The jury has settled this disputed question of fact against appellant and we think they were fully justified by the evidence is so doing.
The judgment is accordingly affirmed. | [
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Griffin Smith, Chief Justice.
The appeal involves title to 14.42 acres in the northwest quarter of section twenty-seven, 1-N, 3-W, Monroe County. An agreed statement is that in 1920 and prior thereto the fractional east half of the west half of the section was assessed for general taxation. This tract forfeited for non-payment of 1923 taxes, hut the record shows that an assessment was extended in 1927 against “Pt. E% W% Sec. 27, Twp. 1-N, R. 3-W, 14.42 acres.” It was further agreed that for 1927 and subsequent years taxes were paid on this tract “in the manner provided by law.” These payments were by Woods Lumber Company and its predecessor, White River Lumber Company.
February 13, 1933, White River Lumber Company delivered to Eugene Woods its warranty deed conveying “. . . a part of the north part of fractional northwest quarter of section twenty-seven, . . . commencing at an iron post on the east bank of the White River, which marks the southwest corner of Private Survey No. 2309 and the northwest corner of fractional section twenty-seven ; thence north 88 degrees east 910 feet; thence south nine degrees west 916 feet; thence north 81 degrees west 980 feet to the east bank of White River; thence in a northerly direction following the meanderings of bank to the point of beginning, which point of beginning is north 15% degrees east, 735 feet from the last mentioned point, containing 14.42 acres, more or less.”
This deed was recorded April 5, 1933. It was agreed that a portion of the land described had been and is being used by Eugene Woods as part of the yard of Woods Lumber Company. April 6,1931, the State’s title to “Frl. Ei/2, Wy2 Sec. 27, Twp. M-N, R. 3-W, 198.47 acres” was confirmed under Act 296 of 1929, by reason of forfeiture for 1923. July 24, 1940, the State Land Commissioner delivered to H. F. Koonce what was designated a correction deed, conveying “Fractional NE]4 TO Sec. 27, T. 1-N, R. 3-W, containing 34.53 acres.”
Some time before September 26,1944, Koonce undertook to 'enclose the property he had pui’chased from the State, and in so doing encroached upon Woods’ land. Woods procured a restraining order. On final hearing the decree was that the deed of July 24, 1940, was void “insofar as it affects the title of [Woods] to the land [described by metes-.and hound”]. The injunction was made permanent, and this appeal followed.
Section twenty-seven, township one north, range three west, is irregularly formed. The government plat and field notes show that the survey of the east side was made in 1856 and that it started at the southeast corner and ran north a distance of 74.76 chains. But the southeast quarter contains 160 acres, hence the deficiency of 5.24 chains must relate to the northeast quarter, with a measurement of 34.76 chains on the east. A reference to the insert map discloses that this east line intersects the south boundary of Spanish grant No. 2309 at a point twelve links S. 88 degrees west of the southeast corner of the grant, surveyed by N. Rightor in 1817 and subsequently approved as the property of Joseph Mitchell, who claimed in right of Alexander Bridoute.
That1 portion of section twenty-seven lying West of White River was surveyed by H. B. Allis in 1842 and resurveyed by P. B. Starbuck in 1854-55, beginning at the southeast corner of section twenty-eight, thence north. The north line of the northwest quarter of section twenty-seven lying west of the river is 16:63 chains, but this line is not parallel with the south line of the Spanish grant. The north line of the northeast quarter, and the north line of that part of the .northwest quarter of section twenty-seven lying east of the river, are the south line of the grant, and the distance from intersection of the east line of the northeast quarter with the grant, to its terminus on the river, is 56.B3 chains. If this line should he projected across the river it would he approximately seven chains south of where the north line of that part of the northwest quarter west of the river touches the stream.
Appellee argues that the decree should be affirmed (a) because description in the deed under which Koonce holds is indefinite, requiring’ judicial construction, and (b) that some one with a redeemable interest in the forfeited land had effectuated redemption prior to 1927, an assessment having been extended against the 14.42 acres that year. Appellant contends that the presumption of redemption was not sustained by showing the assessment and payment of taxes on “Pt. NW% Sec. 27, T. 1-N, R. 3-W.”
First — (a)—The description “Fractional NE*4 NW% Eec. 27, T. 1-N, R. 3-W, containing 34.55 acres,” is valid under many decisions of this Court. Mr. Justice McCulloch, in the opinion on rehearing in Little v. Williams, 88 Ark. 37, 113 S. W. 340, said that Courts take cognizance judicially of the general system of government surveys, and that terminology employed in relation to them is necessarily a reference to the plats of official surveys; otherwise the terms would be meaningless. See Chestnut v. Harris, 64 Ark. 580, 43 S. W. 977, 62 Am. St. Rep. 213; Crill v. Hudson, 71 Ark. 390, 74 S. W. 299; Rucker v. Arkansas Land & Timber Co., 128 Ark. 180, 194 S. W. 21; Turner v. Rice, 178 Ark. 300, 10 S. W. 2d 885; Alphin v. Banks, 193 Ark. 563; 102 S. W. 2d 558; State v. Guthrie, 203 Ark. 60, 156 S. W. 2d 210. Other cases are to the same effect. The faqt that the land embraced within the description is less than forty acres is of no importance. It follows that, prima facie, Koonce took all of the area within the fractional description.
Second — (b)—At the time Koonce procured his correction deed, Woods owned the land described by metes and bounds, and it was definitely within the description set out in the Koonce deed, for the point of beginning is “an iron pipe on the east bank of the White River, which marks the southwest corner of Private Survey No. 2309.”
Was Koonce charged with notice of what Woods claimed, occupied, and upon which he had been paying taxes for seventeen years ?
Appellant, as the State’s grantee, hás no better position than the grantor. When he procured his deed he obtained only what the State owned. The confirmation decree of 1931 did not vest title if the State’s right to sell for taxes were lacking. In Stringer v. Conway Bridge District, 188 Ark. 481, 65 S. W. 2d 1071, Mr. Justict Mehaeet said: “If taxes on a tract of land had already been paid, the sale would be void,” and confirmation would likewise be void. This holding was cited in Kirk v. Ellis, 192 Ark. 587, 93 S. W. 2d 139.
Does the agreed statement in this case call for application of the rule announced in Townsend v. Bonner, 205 Ark. 172, 169 S. W. 2d 125? The opinion discusses Wallace v. Hill, 135 Ark. 353, 205 S. W. 699, where it was held that, after a lapse of thirty-four years during which time the State, through its officers, had assessed, levied, and collected taxes in the names of the listed owners, “. . . it will not be heard to say that the acts of [such] officers were unauthorized, and that the lands had not been redeemed as authorized by the overdue tax act.” In the Townsend-Bonner case it is said that the property could only have gotten on the tax books through action of officers charged with that duty.
The principle with which we are concerned was emphasized by Judge Martineau in State of Arkansas v. Rust Land <$> Lumber Co., 51 Fed. 2d 555. He mentioned State of Iowa v. Carr, 191 Fed. 257, where Judge Walter H. Sanborn said: “In a controversy between the rights of a State and those of a citizen, while the State is not barred by mere delay, its rights are measured and adjudicated by the doctrine of estoppel, and the other principles and rules of law and equity applicable to the like rights of a citizen under similar circumstances. . ; . The plaintiffs and their grantors had been in possession of the land in controversy for more than twenty years. During this time the State levied and collected taxes upon this land as theirs and had acquiesced in their posses sion, and the plaintiffs had paid taxes and made costly improvements upon the land. There was no equity in the claim of the State, and it was estopped from maintaining this claim by these facts.” There was this quotation from Lord Camden in Smith v. Clay, 3 Brown, Ch. 639: “Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence.”
In Carter v. Goodson, 114 Ark. 62, 169 S. W. 806, the subject matter was land sold by the State to Cartel'. It was held that a prior grant would he presumed. The following language from an opinion by Mr. Justice Shiras in United States v. Chaves, 159 U. S. 452, 16 S. Ct. 57, 40 L. Ed. 215, was quoted with approval: “. . . By the weight of authority, as well as the preponderance of opinion, it is a general rule of American law that a grant will he presumed upon proof of adverse, exclusive, and uninterrupted possession for twenty years, and that such rule will be applied as a presumptio juris et de jure wherever, by possibility, a right maj^ be acquired in any tnanner known to the law. ’ ’
In Carter v. Stewart, 149 Ark. 189, 231 S. W. 887, 232 S. W. 936, Carter claimed under a patent dated in 1917. In writing the opinion Mr. Justice Hart said: “Under its sovereign power, a State imposes a burden upon all its citizens to pay taxes on the property owned by them for the purpose of supporting the government. It is the duty of the officers of the State to place the land in the State on the tax hooks for that purpose as soon as the State has parted with its title to them. Hence when the State has for a long time demanded and collected taxes on property and the property-owner has acquiesced therein by paying taxes, there arises a presumption that there was a legal liability to' pay the taxes, and this furnishes a strong circumstance from which the court may infer a grant from the State. Of course, from the very nature of the thing, the person paying the taxes must be in the uninterrupted and continued possession of the land in order to warrant the court in finding a grant from the State. In such cases the possession of the adverse claimants could have had a legal inception, and the doctrine of presumption of a grant from the State under such circumstances is recognized in many eases.”
With no facts other than the agreed statement that for 1927 and succeeding years taxes were paid by Woods “in the manner provided by law,” it must be presumed that there had been a redemption from the 1923 forfeiture. It is just as reasonable to say that records upon which the Land Office predicated its right to sell were erroneous as it is to say that Monroe County taxing officers improperly assessed the tract containing 14.42 acres; nor is the result necessarily based upon estoppel. When one presumption is balanced against another, there is no logic in the contention that Woods’ rights .are inferior, and that Koonce must prevail because the acreage in controversy fell within the area described in the correction deed.
In applying to the case at bar the principles announced in the Townsend case we are not disregarding the difference between possession and tax payments for 30 years, 66 years, 34 years, and 17 years. The period of time goes to the matter of good faith of a two-fold 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.
We do not have a statute establishing a period directly applicable to the facts here; but by analogy certain legislative acts should be considered. Schmeltzer v. Scheid, 203 Ark. 274, 157 S. W. 2d 193, emphasizes the State’s policy.of protecting rights of one who in good faith pays taxes on real property. By Act 66 of 1899, Pope’s Digest, § 8920, payment of taxes on unimproved and unenclosed land under color of title for a period of seven consecutive years constitutes an investiture of title. Townsend v. Denson, 74 Ark. 302, 86 S. W. 661, and other cases cited in Schmeltzer v. Scheid. .By subsequent legislation (Act 199 of 1929, Pope’s Digest, § 8921) one who pays taxes on wild and unimproved land for a period of fifteen years has color of title as a presumption of law. These statutes, .of course, are not limitation measures. They establish, in the one case, an investiture of title, and in the other there attaches color of title as a legal presumption.
A presumption of law, or a fact, or a condition, is just as binding on the State as on individuals; and the State, by acceptance of a taxpayer’s money, as in the instant case, should be bound in a court of equity by analogous conditions which the lawmakers saw proper to declare as public policy. By this we do not mean that the State can be estopped by acts of its officials they were not authorized to consummate. On the contrary, the same principle heretofore promulgated is given effect, and it is this: After a long lapse of time a grant or conveyance by the State or its officials will be presumed— not as a matter of fact, but one of law.
The result cannot affect redemption rights of those under disability, conferred by Pope’s Digest, §§ 8666 and 13860. The right is not an estate in the land, but a statutory privilege contrived to defeat the tax title. Pope’s Digest, § 13860; Harris v. Harris, 195 Ark. 184, 112 S. W. 2d 40.
The right to redeem runs with the land, and any person who would otherwise acquire title takes with notice. Schuman v. Westbrook, 207 Ark. 495, 181 S. W. 2d 470. No action of the State or its officials can destroy the statutory right of minors, or others under disability, to redeem. This right is not affected by a deed executed by the Land Commission.
The decree permanently restraining appellant from interfering with appellee’s possession is affirmed.
Mr. Justice Millwee- not participating.
[See Deniston v. Langsford, infra p. 780, where comment on this case is made.] | [
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CLIFF HOOFMAN, Judge
|! Mack Hinson appeals after he was convicted of negligent homicide by a Pulaski County jury and sentenced to serve 180 months’ imprisonment. On appeal, appellant’s sole contention is that the trial court erred in denying his motion to suppress the results of a blood-alcohol test because of a warrantless blood draw. We affirm.
Hinson was charged by felony information with negligent homicide. It is undisputed that he was involved in a three-vehicle accident that resulted in one fatality. His 2012 Toyota Prius came into contact with a Dodge 2500 Ram, driven by Chad Mitchell, as they were traveling in the same direction with appellant’s vehicle in the outside lane of the road. Appellant disputed at trial the allegation that he drove into Mitchell’s lane and hit Mitchell’s vehicle first, thereby causing the accident. After the two vehicles came into contact with one another, Mitchell’s vehicle crossed into the center lane and directly hit Narjis Meti’s Mazda in a head-on collision, resulting in Meti’s death. Although appellant initially left the scene in |2his vehicle, he later parked his vehicle in a nearby lot, approximately a thousand feet away, and walked back to the scene of the accident approximately thirty minutes after it had occurred. Appellant gave a blood sample at the scene after he spoke with Officer Ralph Breshears, who was at the scene to investigate the fatal accident.
On November 13, 2013, appellant filed a motion to suppress evidence, alleging that the blood sample and the results of the blood-alcohol test should be suppressed. The State filed a response, arguing that appellant consented to give a blood sample and that the test was ordered in accordance with Arkansas Code Annotated section 5-65-208 (Supp. 2015). A hearing was held on June 5,2014.
At the hearing, Officer Breshears.testi-fied that the accident occurred at approximately 7:00 p.m. on October 21, 2012, near the intersection of Cantrell Road and Sam Peck Road in Little Rock, Arkansas. After appellant had approached him on the scene and informed him that he was involved in the accident, Officer Breshears told him that Meti had been killed as a result of the accident. , Officer Breshears further explained that state law requires that he collect a blood sample from everyone involved in the' accident. At that point, appellant said, “Yes, whatever I can do to help.” A blood sample was collected at the scene by a paramedic, Richard Dearing. Officer Breshears testified that he had the blood sample taken at the scene because he felt that it would be inconvenient for him to place appellant in a police car and then transport appellant to the hospital. Additionally, Officer Breshears’s partner had already left the scene to secure a blood sample from Mitchell, who had already been transported to the hospital after sustaining injuries as a result of the accident. He further indicated that he 13felt that it was important to collect the blood samples because section 5-65-208 required him to do so within four hours. Although he subsequently testified that section 5-65-208 did not specifically require a test to be conducted within four hours, he stated that he tried to collect a sample within four hours because of the time it takes someone to metabolize any alcohol in his or her system.
On cross-examination, Officer Breshears admitted that appellant did not appear to be intoxicated at the scene of the accident. Additionally, he admitted that he did not obtain a search warrant to collect a blood sample, that he did not advise appellant that he had a right to refuse a blood test, and that he did not advise appellant that he had a right to additional testing pursuant to Arkansas Code Annotated section 5-65-204 (Supp. 2015).
■ Dearing testified at the hearing that he was a paramedic and that he collected appellant’s blood sample at the accident scene. He explained that appellant did not refuse the blood draw but instead consented to the test. Appellant testified that he did not refuse to give a blood sample because he did not feel that he had any right •to do so,.as he felt the test was mandatory. Appellant further indicated that Officer Breshears did not explain that he had any right to refuse a blood test or that he had any right to additional testing.
Appellant’s counsel orally argued at the hearing that the results of the blood test should have been excluded because section 5-65-204(d) requires law enforcement to advise a defendant of the right to additional testing. Additionally, he argued that law enforcement violated his Fourth Amendment right in collecting appellant’s blood without a warrant. He argued that appellant’s consent was not voluntary and that exigent circumstances did not exist. I ¿The trial court specifically found that there were exigent circumstances in this case because section 5-65-208 requires that the sample be taken “as soon as practical,” which would be before the alcohol metabolized. The trial court further ruled that law enforcement complied with section 5-65-208 and that law .enforcement was not required to read any rights to appellant. Thus, the trial court denied the motion to suppress.
Appellant filed a motion to reconsider the denial of his motion to suppress on August 25, 2014. He. cited to several cases from other jurisdictions in support of his contention that the blood sample should be suppressed. Additionally, he argued that the officer failed to comply with Arkansas Rule of Criminal Procedure 12.3(b) (2015) because a paramedic drew appellant’s blood instead of a physician or a licensed nurse.
A hearing on his motion for reconsideration was held on-November 13, 2014. Appellant’s counsel argued that appellant’s consent was invalid because he did not have the right to refuse- or withdraw his consent under section 5-65-208. Additionally, he argued that the results should have been suppressed because law enforcement failed to comply with Arkansas Rule of Criminal Procedure Í2.S by having a doctor or nurse collect the blood sample. The trial court summarily denied appellant’s motion.
■ Immediately preceding the jury trial on December 9, -2014, appellant renewed his previous motion to suppress, which the trial court immediately denied. Counsel further argued that Rule 12.3 had not been followed, and the trial court reiterated that his motion was denied. Finally, he argued that section 5-65-208 should be ruled unconstitutional because it mandated a blood draw without a search warrant, but the trial court, again, orally denied | sall of his arguments. After a jury trial, appellant was convicted of- negligent homicide and sentenced to serve 180 months’ imprisonment. This timely appeal followed.
On appeal, appellant has abandoned the majority of the arguments he raised before the' trial court, including his arguments that law enforcement failed to comply with Rule 12.3 and section 6-65-204(d) and that section 5-65-208 is unconstitutional. Additionally, appellant does not contest the sufficiency of the evidence. We do not consider an argument, even a constitutional one, when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. Menne v. State, 2012 Ark. 37, 386 S.W.3d 451. Moreover, this court has been resolute in stating that we will not make a party’s argument for that party or raise an issue sua sponte unless it involves the trial court’s jurisdiction. Id.
Appellant’s sole contention on appeal is that the trial court erred in denying his motion to suppress the results of a blood-alcohol test because of a warrantless blood draw. He argues that exigent circumstances did not exist and that he “did not knowingly and voluntarily consent to the warrantless blood draw, but merely acquiesced to Officer Breshears’s fraudulent claim of lawful authority.” We disagree.
In reviewing the denial of a motion to suppress evidence, this court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause,' giving due weight to inferences drawn by the trial court. Pickering v. State, 2012 Ark. 280, 412 S.W.3d 143. A finding is clearly erroneous, even if there is evidence to | (¡support it, when the appellate court, after review of the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id. We defer to the superiority of the circuit judge to evaluate the credibility of witnesses who testify at a suppression hearing. Id.
The Fourth Amendment provides that “[t]he right of the people’ to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const, amend. IV.- The United-States Supreme Court has held that the compulsory administration of a blood test is subject to the constraints of the Fourth Amendment. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Thus, either a warrant must be obtained or.-an exception to the-warrant requirement must apply. Metzner v. State, 2015 Ark. 222, 462 S.W.3d 650. Exigency and consent are two well-recognized exceptions to the warrant requirement. Metzner, supra, Roe v. State, 2015 Ark. App. 693, 477 S.W.3d 551.
In this case, the trial court did not err in denying appellant’s- motion ‘to suppress because appellant consented to providing a blood sample. Appellant argues that his consent was not freely and voluntarily given because appellant was not advised of his right to refuse consent and that he did not feel free to leave until he gave a blood sample. However, Arkansas Code Annotated section 5-65-208 does not require law enforcement to advise appellant of his right to refuse consent because the test is mandatory under the statute, and appellant does not argue that the statute is unconstitutional on appeal. Section 5-65-208 specifically provides that
' (a) When the driver of a motor vehicle or operator of a motorboat on the waters of this state is involved in an accident resulting in loss of human life or whén there is ^reason to believe death may result, a chemical test of the driver’s dr operator’s blood, breath, saliva,'or urine shall be administered to the driver or operator, even if he or she is fatally injured, to determine the presence of and percentage of alcohol concentration or the presence of a controlled substance, or both, in the driver’s or operator’s body.
(b)(1) A chemical test under this section shall be ordered- as soon as practicable by one (1) of the following persons or agencies:
(A) The law enforcement agency investigating thé accident;
(B) The physician in attendance; or (C)-Other person designated by state law.
(c) The result of a chemical test required by this section shall be reported to the department and may be used by state and local officials for:
(2) Any law enforcement purpose, including prosecution for the violation of any law.
Thus, Officer Breshears complied with section 5-65-208 in requesting appellant to provide a blood sample during his' investigation of the fatal accidént, and the trial court did not err in denying appellant’s motion to suppress after appellant consented to provide the sample. As such, we affirm.
Affirmed.
Vaught and Brown, JJ., agree.
. Although we note that section 5-65-208 has been amended since the date of the accident, the amended language is irrelevant to the issues discussed in this appeal. | [
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PHILLIP T. WHITEAKER, Judge
| ,This case involves a guardianship petition. The appellant, Bernice Rutland, is the paternal grandmother of S.M. and A.M'. She filed a petition for guardianship of both grandchildren. The appellees, Angela and Warren McWhorter, are the parents of the children. The circuit court denied the guardianship petition. Rutland appeals the Saline County Circuit Court order, raising several points on appeal. We find merit, to Rutland’s contention that the trial court improperly weighed the credibility of the evidence in granting ap-pellees’ motion to dismiss and reverse on this point. Because we hold that the trial court improperly weighed credibility in reaching its decision on the appellees’ motion to dismiss and reverse on that basis, we need not reach the merits of her other arguments.
|¾1. Procedural History
Rutland initially filed a joint petition, to be appointed the guardians of the person and estate, .along with her husband, William Rutland. The petition alleged that S.M. and A.M. were incapacitated by reason of their minority, and that the guardianship was necessary to protect the best interest of the children. In essence, Rut-land asserted that the parents were consumed with their own marital problems and that the children’s needs had become secondary. The petition further alleged that S.M. had been diagnosed with ADHD without a proper evaluation; that the parents had been overmedicating S.M. with ADHD medication in an effort to decrease her activity level and make her more docile and compliant; and that S.M. was suffering adverse side effects from the medication. The McWhorters answered, denying that a guardianship was necessary and further asserting that S.M.’s diagnosis was made after an evaluation by a physician and that the child’s demeanor and attitude had improved' after being placed on the medication.
A hearing was held on the petition on March 18, 2015. Rutland presented testimonial evidence that Warren, the father of the children, had engaged in extramarital affairs, had received a DWI, and had been terminated from his job. As a result of Warren’s behavior, Angela, the mother of the children, was depressed and losing focus on the children. Rutland identified specific occasions where this' lack of focus to the children was detrimental,, including (1) an incident wherein A.M. chased S.M. with an aerosol spray can; (2) an incident involving | ¡¡A.M. having access to a screwdriver; (3) allegations of inadequate food within the home and the malnourished appearance of S.M.; (4) incidents of leaving the' home unlocked at night; and (5) incidents of not always properly placing the children- in appropriate car-seat restraints; With regard to S.M.- and medication, Rut-land took issue with the diagnosis, the treatment, and the need for the medication. She reported not observing behavioral problems with S.M. and opined that the McWhorters were simply medicating the child because they could not handle her childish tendencies.
After Rutland presented her case in chief, the McWhorters moved for a directed verdict, which was granted by the trial court. An order of dismissal was entered the next day. Rutland subsequently filed a Rule 52 request for findings of fact and conclusions of law. The court granted the request and entered findings and conclusions on April 1, 2015.
II. Analysis
Rutland first argues that the trial court erred in granting the motion for a “directed verdict.” In ruling on a motion for directed verdict or a motion for dismissal, the standard is the same: the trial court must decide “whether, if it were a jury trial, the evidence would be - sufficient to present to the jury.” Woodall v. Chuck Dory Auto Sales, Inc., 347 Ark. 260, 264, 61 S.W.3d 835, 838 (2001). If the, non-moving party has made a prima facie case on its claim or counterclaim, then the issue must be resolved by the finder of fact. See Swink v. Giffin, 333 Ark. 400, 402, 970 S.W.2d 207, 208 (1998). In evaluating whether the evidence is substantial enough to make a question for the fact-finder, however, the-circuit court may not assess the witnesses’ credibility. First United Bank v. Phase II, 347 Ark. 879, 902, 69 S.W.3d 33, 49 (2002); Swink, 333 Ark. at 403, 970 S.W.2d at 209.
Here, the circuit court granted the motion because it simply did not find the testimony or evidence of the plaintiff to be credible. In.its Findings of Fact and Conclusions of Law, the court stated,
The directed verdict motion was. granted because the Petition failed completely to establish any legitimate need for a guardianship. It was apparent from the testimony and demeanor of the Petitioner that she was not credible in the testimony she offered, and further there was no credible evidence submitted that a guardianship was desirable to protect the interests of the children. Furthermore, [p]arents have a fundamental constitutional right to raise their own children and to make reasonable medical decisions regarding their children. The Petitioner failed to- offer any credible evidence of harm, danger, or unmet needs of the children such that abrogating this significant Constitutional right was necessary in any way to protect the best, interests of the children. Therefore, the Petitioner failed to meet her burden.
(Emphasis added.) The court erred in doing so at this juncture.
The credibility of the witnesses is a matter for the court acting as a finder of fact at the close of all the evidence, not as a matter for the court in evaluating whether the petitioner had presented a prima facie case for purposes of a motion to dismiss. See Rymor Builders v. Tanglewood Plumbing Co., 100 Ark. App. 141, 265 S.W.3d 151 (2007) (holding trial court erred in weighing credibility of evidence on a motion to dismiss at close of plaintiff s case-in-| ¿chief). Because the trial court improperly. evaluated the credibility .of the evidence in ruling on the appellees’ motion to'dismiss, we. reverse and remand for further proceedings.
We are mindful of the additional arguments raised by Rutland on appeal. However, we decline to address the remaining issues as they either may not recur or may be readdressed by the trial court on remand.. We are reluctant to tie the hands of the trial court on retrial in matters addressed to its discretion. See Larimore v. State, 309 Ark. 414, 421, 833 S.W.2d 358, 361 (1992).
Reversed and remandéd.
Kinard and Hixson; JJ., agree.
. William Rutland subsequently moved to amend the petition, withdrawing his request to be appointed coguardian of the children. His motion was granted, and he was dismissed with prejudice. Therefore, he is not a party to this appeal.
. In their brief, appellees question the' finality of this order for appellate purposes, noting that they had filed a statutory counterclaim for attorneys’ fees, which remained outstanding. However, under Arkansas Rule of Appellate Procedure—Civil 2(a)(12), all orders in probate cases (save a few exceptions not applicable here) are immediately appealable. Therefore, there is no finality problem,
. While the appellees styled their motion as one for directed verdict, because the underlying matter was resolved at a bench trial, we treat the motion as one for dismissal. Ark. R. Civ. P. 50(a) (2012); Baptist Health v. Murphy, 2010 Ark. 358, 373 S.W.3d 269.
. She argues that the court utilized the wrong standard in assessing the validity of the petition, committed a discovery violation by erroneously granting a protective order and by displaying bias and hostility toward her claims, | [
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CLIFF HOOFMAN, Judge
| Appellant Neil Taylor Nelson appeals from the Washington County Circuit Court’s order denying his motion to transfer his cáse to the juvenile division or, in the alternative, to extend juvenile jurisdiction. On appeal, Nelson argues that the circuit court erred in denying his motion. We affirm.
On November 19, 2013, Nelson (DOB 11/22/95) was charged as an adult with four counts, of raping his eleven-year-old cousin in violation of Arkansas Code Annotated section 5-14-103 (Repl. 2013). Oh March 19, 2015, Nelson filed a motion to transfer his case to the juvenile division or, in the alternative, to -extend juvenile jurisdiction based on the fact that he was seventeen years of age when the offenses were alleged to have been committed.
A juvenile-transfer hearing was held on May 7; 2015. • Detective Rick Frisby testified that Mary Rose Morelik, Nelson’s step-grandmother, brought her granddaughter, H.M., to the Springdale Police Department in November 2013 because she suspected that H.M. had 12been sexually assaulted' by Nelson. According to Frisby, H.M. disclosed during the interview that Nelson had used a spoon to unlock her bedroom door and had digitally penetrated her. H.M. indicated that her grandparents had been locking her bedroom- door in an attempt to protect her from Nelson, who also resided in the home. Frisby testified that a fork with broken tines was found inside the residence, and Morelik informed him that Nelson had used the fork to unlock H.M.’s door. Nelson was interviewed and admitted that he had sexual intercourse with H.M. on four separate occasions. He further admitted that it was his idea and indicated that it was a mistake.
Jeremy Kelly testified that he had been Nelson’s probation officer from February 2012 until August 2013. Kelly indicated that Nelson had previously been adjudicated a juvenile delinquent in 2012 based on his commission of several criminal offenses, including theft of property and breaking or entering. Kelly stated that Nelson did not do well on probation initially, and it was revoked. Kelly testified that Nelson then received a second term of probation, which he successfully completed in August 2013. According to Kelly, if Nelson’s current case was transferred to the juvenile division, he would not be eligible for any rehabilitative services through the juvenile court because he was older than eighteen years of age. Kelly stated that the only option would be to refer Nelson to the Department of Youth Services (DYS) so that he could be placed in one of two inpatient juvenile detention facilities.
Scott Tanner, the juvenile ombudsman who provides postdispositional advocacy for youth committed to DYS, also testified that Nelson would be limited to two inpatient treatment programs through DYS due to his age. Tanner indicated that these programs 13would require a minimum of twelve to fourteen months and that Nelson would then need to undergo a risk assessment or another psychosexual evaluation prior to placement in the community. Tanner stated that all of this treatment would have to be completed by Nelson’s twenty-first birthday. Tanner testified that another option would be an extended-juvenile-jurisdiction (EJJ) designation. With that option, Nelson would have the right to a jury trial in the juvenile division. If the allegations were found to be true, Nelson would still have to complete treatment through DYS and then undergo outside treatment, a risk assessment, and another hearing to determine whether he had been rehabilitated. Again, Tanner testified that all of these requirements would have to be completed before Nelson turned twenty-one years old.
Lewanna Hellwig testified that she was Nelson’s special-education teacher at Springdale High School. She indicated that Nelson’s academic performance was poor and that he read and wrote on a first-grade level. She stated, however, that Nelson did not put forth a lot of, effort in her classroom. Hellwig indicated that Nelson was aware of the difference between right and wrong and that he understood that his actions had consequences.
LaDena Eads, the assistant principal in charge of special services, testified that Nelson scored in the extremely low range of functioning on an intelligence test and that he had below-average verbal skills. Eads indicated that Nelson had learning disabilities and that he qualified for an individual-education plan.
Stephen Nichols testified that he is a psychologist and that he had examined Nelson on two occasions to determine his mental status and fitness to proceed in court. Nichols | indicated that Nelson was fit to proceed. In addition, although Nelson had a mental defect in the form of a mild intellectual disability, Nichols testified that Nelson understood the criminality of his conduct and was able to conform his conduct to the requirements of the law. According to Nichols, it was clear that Nelson had the ability to understand the difference between right and wrong.
Susan Moody, Nelson’s mother, testified that Nelson was born in the Marshall Islands and that he was premature and weighed only two pounds at birth. Moody stated that Nelson had medical issues and that he was in the hospital on four occasions when he was a baby. Since the family had moved to the United States, Moody testified that Nelson had resided with his grandfather the majority of the time.
Following the hearing, the circuit court entered an order on May 21, 2015, denying Nelson’s motion to transfer his case to juvenile court or, in the alternative, to extend juvenile jurisdiction. Nelson filed a timely notice of appeal from this order.
For his sole point on appeal, Nelson argues that the circuit court erred by denying his motion to transfer or for an EJJ designation. Specifically, Nelson contends that the circuit court failed to consider and give appropriate weight to evidence that was admitted concerning his intellectual disability and his educational background.
Pursuant to Arkansas Code Annotated section 9-27-318(c)(l) (Repl. 2016), a prosecuting attorney may charge a juvenile in either the criminal or the juvenile division of circuit court when the case involves a juvenile who is at least sixteen years old when he has engaged in conduct that, if committed by an adult, would be a felony. Upon the motion of Neither party, the division of the circuit court in which a delinquency petition or criminal charges have been filed shall conduct a hearing to determine whether to transfer the case to another division. Ark.Code Ann. § 9-27-318(e). The movant has the burden of proving the necessity of a transfer, and the circuit court shall order the case transferred only if it finds by clear and convine-: ing evidence that such a transfer is warranted. Nichols v. State, 2015 Ark. App. 397, 466 S.W.3d 431. We will not reverse a circuit court’s decision on whether to ti-ansfer a case unless it is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id.
When ruling on a motion to transfer, a circuit court is required to consider and make written findings on all of the following factors set forth in Arkansas Code Annotated section 9—27—318(g):
(1) The seriousness of the. alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court;
(2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
(3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted;
(4) The culpability of the juvenile, including the level of planning and participation in the alleged offense;
(5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence;
(6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile’s home, environment, emotional attitude, pattern of living, or desire to be treated as an adult;
(7) Whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile’s twenty-first birthday;
|„(8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense; ■
(9) Written reports and other materials relating to the 'juvenile’s mental, physical, educational, and social history; and
(10) Any other factors deemed relevant by the judge.
In addition, when a party has requested an EJJ designation, these same factors are to be considered by the circuit court. Ark. Code Ann. § 9-27-503(c). For an EJJ designation, the movant has the burden to prove by a preponderance of the evidence that such a designation is warranted. Ark. Code Ann. '§ 9-27-503(b).
Nelson argues that the circuit court failed to appropriately consider the factors found in section 9-27-318(g)(6) and (9) because it did not give sufficient weight to his intellectual disability or educational background. He further argues that the circuit court failed to discuss how his deficits in growth and learning affected his maturity and behavior.
In its written order, the circuit court made the following findings concerning the two statutory factors that Nelson challenges on appeal:
9. That the Defendant has been diagnosed with Intellectual Disability Mild.
10. However, the Defendant is able to plan a crime. He’s pled guilty to theft of vehicles twice. He planned sufficiently to get' into a high school locker room when the rest of the players were out playing football and knows when and where to look in another student’s backpack and get money out of it. That the Defendant is what you might call street smart.
11. That the Defendant is acting like he wants to be an adult. He wants to drive a car. He wants to have money, and he wants to have iPhones. And in this ease, he wants to have sex.
15. That the Defendant had early health problems due to a premature birth. However, there is no evidence that these problems were a factor in this case. •
16. That the Defendant is of low intelligence and has a mild intellectual disability. [ 7But that the Court believes, based on the evidence at the hearing, that the defendant is street smart and that he is highly capable of planning and carrying out crimes both against persons and property.
With regard to his intellectual disabilities, Nelson contends that the circuit court failed to appropriate any weight to this issue or discuss how it would negatively impact his maturity and his behavior. We disagree. The circuit court specifically recognized that Nelson suffered from an intellectual disability; however, it found from the evidence presented regarding his prior juvenile offenses that he nonetheless had the ability to plan crimes and was “street smart.” - .The court noted that there was no evidence -that Nelson’s premature birth- and health problems as a young child had affected his conduct. The court instead found that Nelson’s past actions showed that he wanted to be treated like an adult. All of this evidence was relevant to the factors contained in section 9-27-318(g)(6) and (9), which require that the circuit court consider the juvenile’s maturity and sophistication as determined by his environment, pattern of living, and desire to be treated like an adult, in- addition to any written reports or other material related to the juvenile’s mental, physical, educational, and social history. Thus, contrary to Nelson’s argument, the circuit court in this case properly considered the evidence submitted concerning his intellec tual disability. While the court stated that it was not placing as great of a weight on subsections (g)(6) and (9) as it was on other statutory factors, the circuit court is not required to give equal weight to each of the factors. Nichols, supra.
Nelson further argues that the circuit court failed to consider his “educational history as it relates to his intellectual disability and maturity despite there being ample evidence |sadmitted .during the transfer hearing that [he] was a, very immature juvenile who was not able to progress in school as other children of the same age were.” Specifically, Nelson contends that the circuit court ignored evidence from his school records and from two of his educators.
This argument is also without merit because the evidence from Nelson’s school records and from his teachers primarily demonstrated that he had low intellectual functioning. As discussed above, the circuit court did specifically consider and discuss Nelson’s intellectual disability as it related to the required statutory factors. Moreover, while Nelson’s special-education teacher testified that he was low functioning and was a. slow learner, she also indicated that he was aware of the difference between right and wrong and understood that his actions had consequences. To the extent that Nelson is contending that the court failed to place sufficient weight on the evidence that was admitted regarding his educational history, again, the circuit court is not required to weigh each statutory factor equally. Nichols, supra. Accordingly, ■ Nelson has failed to demonstrate that the circuit court’s denial of his motion to transfer or, in the alternative, for extended juvenile jurisdiction - was clearly erroneous.
Affirmed.
Vaught and Brown, JJ., agree. | [
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RAYMOND R. ABRAMSON, Judge
h Caroline Adams appeals from the March 6, 2015 order of the Washington County Circuit Court terminating her parental rights to her two-year-old daughter, E.F. This case reache's us for the second time on appeal after we ordered rebriefing, specifically directing Adams’s counsel to address whether the Indian Child Welfare Act (the “ICWA”) was applicable to the proceedings below.
Adams’s counsel argues that the ICWA' did not govern and, therefore, the higher standard that would apply for termination of parental rights to an Indian child was not applicable. Adams’s counsel has refiled a no-merit brief pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6—9(i), asserting that there are no issues of arguable merit to support the appeal Land requesting to be relieved as counsel. The motion is accompanied by an abstract and addendum of the lower court’s proceedings and a brief which explained why none of the trial court’s rulings present a mecritorious ground for appeal.
In accordance with Ark. Sup. Ct. R. 6-9(i)(l)(Aj, counsel for Adams has reviewed the record for all rulings adverse to her made by the court on all objections, motions, and requests, and there were none. The clerk of this court notified Adams that she had the right to file pro se points for reversal under Arkansas Supreme Court Rule 6-9(i)(3). Adams has filed pro se points. For the following reasons, we grant the motion to withdraw and affirm.
On December 26, 2013, the Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect after Caroline Adams was arrested and charged with third-degree domestic battery by Fayetteville police on December 20, 2013. The trial court entered an ex parte order for emergency custody on December 26, 2013, which placed E.F. in the custody of DHS. On January 3, 2014, the court found probable cause and set the adjudication hearing for Friday, January 31, 2014. In an order entered on | ¡¡February 5, 2014, the court found, by clear and convincing evidence, that E.F. was dependent-neglected and was at substantial risk of serious harm, as a result of neglect by Adams.
The court specifically found that Adams was under the influence of methamphetamine, that she had admitted to ingesting large amounts of methamphetamine, and that she had been arrested for domestic battery against her mother. Adams had been taken to Washington Regional Medical Center for medical treatment and hospitalized for several days due to ingestion of methamphetamine. There was no legal caretaker for E.F. because the putative father had not yet established paternity and was living in Maryland. At the time of the hearing, Adams was incarcerated on charges of conspiracy to deliver methamphetamine.
On June 18, 20Í4, a reviéw hearing was held, and the court found that the goal of the case was reunification with a concurrent goal of adoption. Adams continued to remain incarcerated. She had not maintained contact with DHS, had not submitted to weekly drug screens or a drug-and-alcohol assessment, and, had not attended parenting classes offered. Adams, however, stated that she was in counseling in prison and was availing herself of programs offered to her while incarcerated.
On November 5, 2014, the court held a permanency-planning ■ hearing, and the court found that Adams had not complied with any of the court orders or the case plan. On November 17, 2014, DHS filed a petition for termination of Adams’s parental rights. In the petition, DHS alleged that terminating Adams’s parental rights was in the juvenile’s best interest and-that the juvenile would be subject to potential harm if returned to her mother’s | custody. Ark.Code Ann. § 9—27—341(b)(S)(A)(i) <&' (ii) (Repl. 2015). DHS also alleged that the child had been adjudicated dependent-neglected and-had continued-to be out of appellant’s ■ custody for more than twelve months and, despite meaningful efforts .by DHS to rehabilitate appellant and correct the conditions, that .caused removal, those conditions had not been remedied- by ap pellant. Ark.Code Ann. § 9-27-341(b)(3)(B)(i)(a).
DHS also purported that other issues had arisen after the filing of the original petition that demonstrated return of the child to appellant’s custody would be contrary to her health, safety, or welfare, and despite the offer of appropriate family services, appellant had manifested the incapacity or indifference to remedy the subsequent issues or factors. Ark.Code Ann. § 9—27—341(b)(3)(B)(vii)(ct). Specifically, DHS alleged that Adams had remained incarcerated throughout the case on charges of manufacturing, delivery, and possession of methamphetamine. She did not obtain stable housing or employment, did not submit to drug screens, and did not maintain contact with DHS. Further, DHS argued that Adams’s fourteen-year sentence in the Arkansas Department of Correction constituted a substantial time period of the child’s life, as the child was almost two years old at the time, and Adams had been incarcerated for a majority of the child’s life. Ark.Code Ann. § 9-27—341(b)(3)(B)(viii).
On February 4, 2015, the court held the termination hearing and found that DHS had proved by clear and convincing evidence all the grounds alleged in the petition. Because the ICWA was not applicable, this was the correct burden of proof. The order terminating RAdams’s parental rights was entered on March 6, 2015, and this no-merit appeal follows.
Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. King v. Ark. Dep’t of Human Servs., 2014 Ark. App 278, 2014 WL 1856767. However, courts are not to enforce parental rights to the detriment or destruction of the health and well-being of a child. Id. Termination-of-parental-rights cases are reviewed de novo. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). An order forever terminating parental rights must be based on clear and convincing evidence that termination is in the child’s best interest. Ark. Code Ann. § 9-27-341(b)(3)(A). In determining whether termination is in the child’s best interest, the circuit court must consider the likelihood that the child will be adopted if the termination petition is granted and must consider the potential harm, specifically addressing the effect on the health and safety of the child caused by returning the child to the custody of the parent, parents, or putative parent or parents. Ark.Code Ann. § 9-27-341(b)(3)(A)(i) & (ii).
Additionally, DHS must prove at least one' statutory ground for termination by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3)(B). Clear and convincing evidence is defined as that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Dinkins, supra. This court does not reverse a termination order unless the circuit court’s findings were clearly erroneous. Meriweather v. Ark. Dep’t of Health & Human Servs., 98 Ark. App. 328, 255 S.W.3d 505 (2007). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Yarborough v. Ark. Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006). However, in determining whether a finding is clearly erroneous, an appellate court gives a high degree of deference to the trial court, as it is in a far superior position to observe the parties before it and to judge the credibility of witnesses. Dinkins, supra.
In this case, termination of Adams’s parental rights was appropriate. Adams remained incarcerated throughout the entire case after being sentenced to fourteen years in the Arkansas Depart ment of Correction. DHS caseworker Rasheda Morris testified that E.F. was likely to be -adopted, explaining that DHS had found another adoptive placement only two days after learning that the current foster parents could not adopt at that time. In Adams’s pro se points on appeal, she argues that termination was improper because E.F. could have been placed in another relative’s home.- However it is well settled that this court has rejected this argument:
Arkansas Code Annotated sections 9-27—-355(b)(1) and 9-28-105, which concern the placement of juveniles by DHS, both state that a relative of the juvenile shall be given preferential consideration for placement if the. relative meets all relevant child protection standards and it is in the best interest of the juvenile to be placed with them. However, section 9-27-341 [the termination-of-parental-rights statute] does not contain any such requirement, and this court has held that section 9-27-355 is not relevant to a request for TPR.
Ogden v. Ark Dep’t of Human Servs., 2012 Ark. App. 577, at 5, 2012 WL 4832337; see also Henderson v. Ark. Dep’t of Human Servs., 2012 Ark. App. 430, 2012 WL 2427259; Davis v. Ark. Dep’t of Human Servs., 2010 Ark. App. 469, 375 S.W.3d 721 (holding that the statutory provision applies only to initial placement and not to placement when termination of parental rights has been requested). Here, caseworker Morris’s testimony that E.F. was adoptable was sufficient to support the adoptability factor of the termination statute. See Cobbs v. Ark. Dep’t of Human Servs., 87 Ark.App. 188, 189 S.W.3d 487 (2004).
At both the termination hearing and in her pro se points, Adams argues that even though she was sentenced to fourteen years in the penitentiary, she would be released on parole in eight months. However, it is the length of the sentence that controls, not whether the parent is eligible for an early release through parole..' See Ark.Code Ann. § 9-27-341(b)(3)(B)(viii). Because Adams was sentenced to a fourteen-year term of imprisonment when E.F. was less than two years old, the trial court’s findings were not clearly erroneous.
Adams argues for the first time in her pro se points that there is no proof that DHS provided a copy of the petition to the Cherokee and/or Choctaw Tribes. However, as noted previously, the record before us contains no indication that the issue of ICWA compliance was ever raised by Adams in the trial court proceedings. As such, it is not preserved and is barred from being addressed here. See Hall v. Ark. Dep’t of Human Servs., 2012 Ark. App. 245, 413 S.W.3d 542.
There were no adverse rulings other than the termination itself. Having carefully examined the record and the brief, as well as Adams’s pro se points, we conclude that counsel has complied with the requirements established by the Arkansas Supreme Court for no-merit |sappeals in termination cases and that the appeal is wholly without merit. Accordingly, we affirm the order terminating Adams’s parental rights and grant counsel’s motion to withdraw.
Affirmed; motion to withdraw granted.
Harrison and Glover, JJ., agree.
. Bobby Frakes is the child's biological father, and his rights were also terminated on March 6, 2015, but he is not a party to this appeal.
. The incident arose from a domestic disturbance between Adams and her mother, Darlene Lisa Brown. Adams admitted to the arresting officer that she had used methamphetamine, and the officer believed that she had recently swallowed ah unknown amount of methamphetamine.
. In the court’s January 3, 2014 order, it noted that since Adams was a member of the Choctaw Tribe and the putative father was a member of the Cherokee Tribe, the respective tribes would be provided a copy of the petition, notice of the next scheduled hearing, and advice of rights pursuant to the -ICWA. However, there is nothing in the record to indicate that the issue of ICWA compliance was ever raised by Adams, As such, we are barred from considering on appeal any challenge related to ICWA. See Lauman v. Ark. Dep't of Human Servs., 2010 Ark. App. 564, 2010 WL 3422459 (which held that the failure to raise ICWA argument below barred the appellate court from considering the challenges for the first time on appeal).
, E.F. was in a preadoptive placement with Ms. Adams’s aunt and uncle, Carlene and Fredie Huffman. | [
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KENNETH S. HIXSON, Judge
I! This appeal concerns the community-notification level assigned to appellant Vernon Keith Dillard pursuant to the Sex Offender Registration Act of 1997, The express purpose of that Act is to release certain information about sex offenders to the public in order to protect the public safety. Ark.Code Ann. § 12-12-902 (Repl. 2009). On January 8, 2014, appellee Sex Offender Assessment Committee (SOAC) assessed Mr. Dillard as a Level 4 sex offender. Mr. Dillard sought judicial review of the SOAC’s assessment, and on June 2, 2015, the Garland County Circuit Court entered an order upholding appellant’s status as a Level 4 sex offender and denying him any relief. Mr. Dillard now appeals to this court, arguing that the SOAC lacked statutory authority to declare him a Level 4 sex offender and 12asking that we reverse and modify his status to that of a Level 3 sex offender. We affirm the agency decision, and we therefore affirm the circuit court order.
This appeal is governed by the Administrative Procedure Act (APA). For purposes of our review in this case, the APA provides that an agency decision may be reversed or modified if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the agency’s statutory authority; (3) made upon unlawful procedure; or (4) affected by other error of law. Ark.Code Ann. § 25-15-212(h) (Repl. 2014). The appellate court’s review is directed not toward the circuit court, but toward the decision of the agency. State Sex Offender Assessment Comm. v. Wallace, 2013 Ark. App. 654, 2013 WL 5965187. In this case, Mr. Dillard does not challenge the sufficiency of the evidence supporting the SOAC’s decision or allege an abuse of discretion; he instead claims only that the agency’s decision was in excess of its statutory authority under the provisions of the Sex Offender Registration Act. Therefore, our review is limited to ascertaining whether the agency’s decision runs afoul of one, of the criteria set out in section 25—15—212(h)(1)-(4). See Brown v. Sex Offender Assessment Comm., 2014 Ark. App. 236, 2014 WL 1512881.
The record demonstrates that Mr. Dillard has multiple prior convictions for sex offenses committed against young boys. In 1983, Mr. Dillard was convicted of sodomy in Oklahoma after admitting to oral sex with a twelve-year-old male. In 1987, also in Oklahoma, Mr. Dillard pleaded guilty to indecent proposal to a child, and in that case the victims were brothers, ages ten and thirteen. Mr. Dillard’s most recent conviction occurred |sin Arkansas in 1992 after he pleaded guilty to rape committed against a twelve-year-old male, and he was sentenced to thirty-five years in prison.
While Mr. Dillard remained incarcerated in Arkansas in 2007, the SOAC assessed him as a Level 4 sex offender. Mr. Dillard was released from prison in 2010, and in February 2013 he requested a reassessment of his community-notification level. Based on the assessment process, an assessment report was completed and the Community Notification Assessment Unit assigned Mr. Dillard as a Level 4 sex offender. On administrative review, the SOAC found by a majority vote that Mr. Dillard was a sexually dangerous person, and thus confirmed that he was a Level 4 sex offender. The SOAC made extensive findings of fact in support of its decision, including that Mr. Dillard’s 1992 conviction was a result of his forcible rape of a minor; that Mr. Dillard had subsequently been removed from a sexual-abuse treatment program because of his nonamenability to treatment; that Mr. Dillard’s screening scale for pedophilic interest was at the highest level; and that Mr. Dillard minimized his prior offenses because, according to him, all of the child victims gave their “consent.” It is from this reassessment as a Level 4 sex offender that Mr. Dillard appealed to the circuit court and now to the court of appeals.
The Sex Offender Assessment Committee Guidelines and Procedures describe the community-notification levels as 1 (low) through 4 (high), compatible with the public’s 14need to know about the sex offender depending on the severity of risk to the public. As relevant to this appeal, the levels are described as follows:
Level 3: Typically offenders in this category have a history of repeat sexual offending, and/or strong antisocial, violent or predatory personality characteristics. These are individuals whose offense and criminal history require notification throughout the community.
Level 4: Sexually Dangerous Person refers to a person who has been adjudicated guilty of a sex offense or acquitted on the grounds of mental disease or defect of a sex offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sex offenses. The designation indicates that the highest and most visible means of community notification is required.
The Level 4 designation requires a finding that the offender is a “sexually dangerous person,” which is also defined in the Sex Offender Registration Act of Arkansas Code Annotated at section 12-12-903(15)(A) (Supp. 2015). Prior to a 2013 amendment, the .same statutory definition was used to define a “sexually violent predator.” However, the 2013 amendment also added § 12-12-903(15)(B), which provides that “[a] person previously classified as a sexually violent predator is now considered a sexually dangerous person.” So it is clear that the terms “sexually violent predator” and “sexually dangerous person” are synonymous.
In this appeal, Mr. Dillard argues that the SOAC erred, as- a matter of law, in declaring him a Level 4 sex offender because no court had ever, within the time and manner required by law, declared him to be a “sexually dangerous person.” Mr. Dillard relies on Arkansas Code Annotated section 12-Í2-918 (Supp. 2015), which provides:
(a)(1) In order to classify a person as a sexually dangerous person, a prosecutor may allege on the face of an information that the prosecutor is seeking a determination that the defendant is a sexually dangerous person.
(2)(A) If. the defendant is adjudicated guilty, the court shall enter an order directing an examiner qualified by the Sex Offender Assessment Committee Uto issue a report to the sentencing court that recommends whether or not the defendant should be classified as a sexually dangerous person. .
(B) Copies of the report shall be forwarded, immediately to the prosecutor and to the defense attorney.
(C) The report shall not be admissible for purposes of sentencing.
(3) After sentencing, the court shall make a determination regarding the defendant’s status as a sexually dangerous person.
(b)(1) In order for the examiner qualified by the committee to prepare the report:
(A) The defendant may be . sent for evaluation to a facility designated by the Department of Correction; or
(B) The committee may elect to send • an examiner to the local or regional detention facility.
(2) The cost of the evaluation shall be paid by the Department of Correction.
(c)(1) Should evidence be found in the course of any assessment conducted by the committee that a defendant appears to meet the criteria for. being classified as a sexually dangerous person, the committee shall bring this information to the attention of the prosecutor, who will determine whether to file a petition with the court for the defendant to be classified as a sexually dangerous person.
(2) The sentencing court shall retain jurisdiction to determine whether a defendant is a sexually dangerous person for one (1) year after sentencing or for so long as the defendant remains incarcerated for the sex offense.
(d)(1) The judgment and commitment order should state whether the offense qualified as an aggravated sex offense.
(2) Should the aggravated sex offense box not be checked on the commitment order, the court will be contacted by the committee and asked to furnish a written determination as to whether the offense qualifies as an aggravated sex offense.
Mr. Dillard contends that the above legislation mandates that, for a defendant to be classified as a sexually dangerous person and thus subject to a Level 4 assessment, such finding must be made by a court and not the SOAC. Mr. Dillard argues that, because the SOAC did not have the statutory authority to declare him a Level 4 offender, we should reverse and modify his offender level to Level 3.
We conclude that the SOAC did not exceed its statutory authority in finding Mr. Dillard to be a sexually dangerous person and assessing him as a Level 4 sex offender. |fiThe Sex Offender Registration Act was not enacted until 1997. Therefore, the court presiding over Mr. Dillard’s rape Conviction in 1992 could not have made such a designation under the terms of Arkansas Code Annotated section 12-12-918, as that section'did not yet exist.
Moreover, the SOAC’s Guidelines and Procedures explain the following options for designating a sexually dangerous person:
Potential routes for determination as to whether an individual should be designated a Sexually Dangerous Person:
1. Pursuant to § 12-12-918, a prosecu- . tor may allege SDP status and upon conviction, the Court shall enter an order for an assessment by an examiner qualified by the SOAC. SOCNA will prepare a report to be sent to the Court with copies to the prosecuting attorney and the defense attorney. Upon receipt of a report, the Court shall determine if SDP status is appropriate.
2. Pursuant to A.C.A § 12-12-922, if during the course of a SOCNA assessment grounds are found for believing that an individual may be a SDP, that information will be presented to the SOAC by SOCNÁ. SOÁC will determine whether the offender meets the criteria for SDP by a majority vote.
The potential routes as described above are accurate.
Arkansas Code Annotated section 12-12-918 pertains to offenders during the prosecution of a criminal case, and permits the trial court to classify a person as a sexually dangerous person. However, Arkansas Code Annotated section 12-12-922 (Supp. 2015) alternatively gives the SOAC authority to conduct its own assessment on the issue. Arkansas Code Annotated section 12-12-922(a) provides:'
(a)(1) The alternative procedure under this section may be used for sexually "dangerousperson evaluations if information that was not availablé to the court at the time of trial emerges in the course of a sex offender evaluation.
(2)(A) Examiners qualified by the Sex Offender Assessment Committee shall include in the assessment of any sex offender convicted- Of a sex offense a review as |7to whether the frequency, repetition over time, severity of trauma to the victim, or established pattern of predatory behaviors suggests that the sex offender is likely to engage in future predatory sexual offenses.
(B) If a mental abnormality or personality disorder is suspected, a licensed psychologist or psychiatrist qualified by the committee may conduct further assessment to determine the presence or absence of a mental-abnormality or personality disorder.
(C) If further assessment under subdivision (a)(2)(B) of this section is conducted by a licensed psychologist or psychiatrist qualified by the committee, the report of the further assessment shall be presented to the committee.
Pursuant to subsection 12—12—922(b) (1) (A), a sex offender may challenge an assigned risk level by submitting a written request for an administrative review. Pursuant to subsection 12—12—922(b)(4)—(6), the administrative review is conducted by the SOAC, and.after its review, the SOAC issues its findings to the sex offender, Ark.Code Ann. § 12-12-922(b)(7)(A)(i). Consequently, contrary to appellant’s argument, there was statutory authority for SOAC to find him to be a sexually dangerous person. Therefore, we affirm the agency’s assessment of appellant as a Level 4 sex offender.
Affirmed.
Kinard and Whiteaker, JJ., agree.
. It is undisputed that Mr. Dillard is required to register as a sex offender.
. Arkansas Code Annotated section 12-12-917(h) (Supp. 2015) provides that a sex offender or sexually dangerous person may request the committee to reassess the assigned risk level of the sex offender after five years have elapsed from the initial risk assessment.
. We observe that our supreme court previously affirmed an agency assessment of a Level 4 sex offender in Parkman v. Sex Offender Screening & Risk Assessment Committee, 2009 Ark. 205, 307 S.W.3d 6. | [
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McHaney, Justice.
Appellee and appellant were married in 1933. They lived together on appellee’s 80-acre farm in Mississippi county since 1934, until a separation in December, 1945. Appellee brought this action for divorce in January, 1946, on the ground of habitual drunkenness and abusive treatment and for the possession of said 80-acre farm. They are each 74 years of age. Trial resulted in a decree for appellee as prayed, and in the dismissal of a cross-complaint of appellant which sought, not a divorce from appellee, but a money judgment against her for sums he claimed to have expended in reducing the mortgage indebtedne'ss against said farm.
For a reversal it is argued that the decree is not supported by a preponderance of the evidence, and that appellee failed to prove the statutory requirement, § 4386, sub-division Third, “That the cause of divorce occurred or existed within five years next before the commencement of the suit.”
We think appellant must fail on both points. .The proof abundantly shows that appellant is addicted habitually to the use of intoxicating liquors to excess, in fact to such extent that he gets drunk regularly and has been doing so for many years and up to and after the separation took place; that particularly when intoxicated he is abusive of appellee, using vile and profane language to her; and that oh some occasions he has struck her. It is also true that appellee will, on occasions, take a drink with appellant and that she can swear back at him with some expertness and vehemence, but the evidence is to the effect that he often over-persuaded her to thus yield to temptation. '
Both have been previously married and divorced from their respective spouses on several occasions. We think the evidence sufficient to support the decree, and it is accordingly affirmed. | [
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Smith, J.
This suit was brought to recover the value of certain property alleged to have been sold by the defendants to the plaintiffs, which the defendants did not own. There was a verdict and judgment for the defendants from which is this appeal. A reversal of this judgment is asked upon the grounds that the court erred in giving certain instructions and in refusing to give certain others.
The defendants, Marvin and Lona Walker, husband, and wife, owned a lot in the town of Cove, Polk county, on which there was a filling station. They had given a lease on this lot to one Yahraus, who was the distributing agent for the Conoco Oil Company in that territory, which was recorded, but which did not describe or refer to the property in question. After procuring this lease Yahraus and the Walkers entered into a contract providing for the use of certain filling station equipment which Yahraus owned, with the right to remove upon the termination of the contract. Yahraus testified that the custom in that area was almost universal for the oil companies, or their distributing agents, to own the equipment, the purpose being to control the sale of oil and gas used in the station.
At the time of making the contract, out of which this litigation arose, Walker was in the naval service, stationed in Oregon, and his wife resided there with him.
The Walkers had employed one Jim Boss to operate the station, and Boss was operating it when the plaintiff Barton applied to Boss to purchase it. Boss had no authority to sell, but there was a discussion of the terms upon which it was thought a sale could be made, and a telegram was prepared which was dictated by Barton, but written and paid for by Boss reading: “B. H. Barton offers $5,000 inside and out less clothing.” There was a room in the station which appears to have been used as living quarters. Boss took the telegram to the telegraph office, but before sending it struck out the words “less clothing” and inserted the words “less personal property. ’ ’
Upon receipt of the telegram, Walker obtained a leave of absence and returned home to close the deal upon the terms as he understood the telegram. Upon his arrival at Cove he learned that Barton had not sent the telegram which he received. There was a discussion which continued over until the following day. Mrs. Walker announced that she would not sell unless certain things which she had in the building were excepted from the sale, and that concession appears to have been made.
The Walkers removed their personal effects, and there appears to have been no objection to this action, but Barton testified that Walker removed certain other articles without his knowledge or permission, including an electric fan and certain aluminum ware. Barton testified that they finally agreed on everything which was being reserved and not sold except a refrigerator and a bedroom suite, anc| this difference was finally settled when Walker proposed and Barton agreed that Walker might retain the refrigerator and the bedroom suite provided Walker would order and pay for 200 gallons of a high grade of gasoline to be placed in one tank, and 250 gallons of a lower grade of gasoline to be placed in another tank. The gasoline was delivered as agreed and was paid for by Walker. Barton testified that he gave Walker a check for $5,000 upon the assumption that he had acquired title to everything in and connected with the filling station, which had not been reserved, and that there was never at any time any intimation that the filling station equipment, including tanks, pumps, etc., were not being sold.
Walker testified that when the difference in the telegram which Barton authorized Ross to send and the one which Ross did send was discovered, the deal was called off. Ross candidly admitted that he had made the change without Barton’s knowledge or consent. Walker testified that the day after he had called the deal off, Barton came to the station, sat down at a table and asked, “What I would have to keep and make a trade, so when I put in some personal things that wasn’t supposed to go according to the deal before and he said yes and traded.” Walker further testified, “Before we finally traded we were walking around and he was just looking, and I told him all that was there was mine except the company equipment. He never asked any questions and I presumed that he knew what/the company equipment was. I told him the company equipment did not go in the deal, and he did not ask any questions whatever. ’ ’
This testimony was categorically denied by Barton, who testified nothing was said about company equipment, and that he had no knowledge that anything was not being sold except those items which it was agreed should be reserved, and that the protracted discussion of these items could have left no doubt that Walker knew he thought he was buying everything that had not been reserved from the sale.
After operating the station about a month, Barton learned that certain equipment which he thought he had bought was the property of Yahr'aus, whereupon he brought this suit. At the trial Walker proposed to refund the money paid him and to rescind the sale, but when the proposition was accepted, Walker refused to carry through his proposition.
Plaintiff asked an instruction to the effect that if Walker “permitted the plaintiff to believe, or lead the plaintiff to believe he was obtaining property from the defendant which the defendant did not own” there was liability for the value of the property sold which the defendant did not own. The court modified the instruction by striking out the phrase “permitting the plaintiff to believe” and gave the instruction as modified, and an exception was saved to the modification. We think the instruction as modified' correctly declared the law applicable to the facts in issue. It declared the defendants liable if they “lead the plaintiff to believe.” This might have been done by action, or by inaction, which lead the plaintiff to' believe that he was buying property which the seller did not own, or did not intend to sell, in which event there would be a liability as declared in the instruction given as modified. But unless by some action or inaction on. Walker’s part, Barton was misled as to what was being sold, there was no liability.
These principles are discussed in the annotated case of Donovan v. Aeolian Co., 270 N. Y. 267, 104 A. L. R. 549, 200 N. E. 815. In that case a piano was purchased under the impression it was new when in fact it was secondhand. The seller made no direct affirmation that the piano was new or unused. In the body of that opinion it was said: “If the seller does not know that the buyer is acting under the belief that the article is new and unused, and has done nothing to induce that belief, the buyer cannot complain. There is no duty upon the seller to speak where silence does not constitute deception. Silence may, however, constitute fraud and deception where the seller has notice that the buyer is acting upon a mistaken belief as to a material fact. It depends upon the circumstances of each case whether failure to disclose is consistent with honest dealing. Where failure to disclose a material fact is calculated to induce a false belief, the distinction between concealment and affirmative misrepresentation is tenuous. Both are fraudulent.”
An instruction was given, however, which we think was error requiring reversal of the judgment. It reads as follows:
“You are instructed that the plaintiff was charged with notice of all matters appearing of record and affecting the title to the property in controversy as well as the rights of the parties in possession of same other than the defendants.”
As has been said, Walker had given Yahraus a lease on the property, which was of record, but there is no controversy about the title to the lot. This lease makes no reference to the personal property which Yahraus allowed Walker to use. There was a written agreement between Yahraus and Walker as to the use of this property which was offered in evidence, but which had not been recorded, and the instruction charges the jury with notice of the rights of the parties in possession of same other than the defendants, and the specific objection was made that there was no testimony that anyone other than Walker was in possession of the property. The instruction was confusing and may well have been misleading, and we think it was error to give it.
When the suit was brought a writ of garnishment issued which tied up $2,500 of money Walker had on deposit in a bank. When the verdict was returned in favor of the defendant, the garnishment was discharged and without submitting the question of damages' to the jury, the court rendered judgment in the sum of $100 as damages. While this was irregular and did not conform to the proper practice, we cannot say that it was erroneous, if a cause of action did not exist, as was found by the jury, for the reason that the money was impounded for eight months, and the interest thereon for the time it was impounded at six per cent, would be $100’.
For the error indicated the judgment is reversed, and the cause will be remanded for. new trial.
Mr. Justice Millwee not participating. | [
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Smith, J.
On September 18, 1934, Broma C. Towns filed suit for divorce from his wife Era, on the ground of indignities. She filed an answer and cross complaint denying appellant’s right to a divorce. She did not ask a divorce in her cross complaint, but did pray an allowance of alimony pendente lite. Thereafter the suit progressed as one for separate maintenance.
On January 11, 1935, the court entered an order requiring appellant to pay $15 costs, $35 attorney’s fee, and $15 per month for appellee’s support, and on June 3, 1935, the allowance was increased from $15 to $30 per month. The alimony was not paid as directed, and on September 7, 1936, another hearing was had and appellant was directed to pay $592.25 due under the previous orders and to pay $30 per month and $100 attorney’s fee and it was further ordered that execution therefor might issue, or that appellant be proceeded against for contempt. It does not appear whether the execution was issued or not.
On June 30,1939, a petition was filed in which it was alleged that appellant was in arrears in the payment of alimony to the extent of $1,939.80, and it was prayed that judgment therefor be rendered and that an order be entered directing the issuance of an execution. Hearing was set for November 27, 1939, and was re-set for March 5, 1940. Appellant was in the Army and this fact probably accounts for the delay which had occurred, but on March 5,1940, the motion came on for further hearing on appellant’s petition that he be relieved from the payment of any alimony then remaining unpaid. Oral evidence was heard and the court made the finding that there was due as of October 3, 1939, under prior orders the sum of $2,107.40.
On October 3, 1939, appellant filed a motion asking to be relieved from the further obligation to pay alimony or maintenance, it being alleged that he was not financially able to make further payments and that his physical condition would not permit him to do work, by which he could earn an income. It was ordered that appellant be relieved from making further payments until such time as he had recovered sufficiently to earn an income. But it was ordered and'decreed at the March 5, 1940, hearing that appellee have judgment for the unpaid balance due her in the sum of $2,107.40 for which execution might issue and “That all future payments of maintenance be suspended pending further orders of the court.” No appeal was prayed or taken from this order.
A petition for scire facias was filed August 17, 1945, to renew this judgment to which a response was filed containing the following 'allegations. Subsequent to the rendition of the judgment and decree above referred to on March 5, 1940, appellee obtained a divorce from appellant, on September 6,1940, in the State of Louisiana, and on September 14, 1940, married one Joe Taylor. It was prayed that the former orders for payment of alimony be vacated and set aside.
It was alleged that appellant’s physical condition had not changed since March 5, 1940, at which time he had been relieved from future payments. It appears from his response that he had continued to serve in the army -until May 17, 1943, when he was honorably discharged on account of an existing disability. It was alleged also that respondent owned no property upon which an execution could be levied.
The petition for scire facias and the response (to which there were attached exhibits showing appellee’s divorce and subsequent re-marriage, and appellant’s discharge from the army) was heard on September 25,1946, upon which hearing it was ordered that the judgment of March 5, 1940, be renewed, it being wholly unpaid.
This order recites all the pleadings filed and orders entered in relation to the alimony, and maintenance money, and it was adjudged and decreed on September 25, 1946, “that said judgment (of March 5, 1940) be and the same is hereby revived and that the lien thereof be and the same is hereby renewed for a period of three year's from the rendition hereof and that the amount due under said judgment is $2,918.75 * * and this appeal is from that decree.
This increase in the judgment results from the addition of the interest on the judgment of March 5, 1940, and not from the charge of any additional alimony after that date.
For the reversal of this decree it is first insisted that the decree of March 5, 1940, relieved appellant from the payment not only of the current alimony, but also from the payment of accrued alimony then unpaid because of the finding as,to his then existing physical condition. But the decree did not relieve him from the payment of accrued alimony. It is expressly to the contrary. This was a final decree and if erroneous or improper an appeal should have been taken from it.
In the case of Green v. Green, 168 Ark. 937, 272 S. W. 655, it is said: “A decree rendered for an accrued sum becomes final with the end of the term and cannot be set aside at a subsequent term, even though found to be erroneous. In that respect it is the same as any other judgment or decree of a court of record.” This language was quoted and the holding reaffirmed in the case of Erwin v. Erwin, 179 Ark. 192, 14 S. W. 2d, 1100.
It will be noted that the judgment does not include any alimony accruing subsequent to March 5, 1940, nor does it include any alimony which accrued since appellee’s divorce and re-marriage. Cases are cited by appellant holding that the right to collect alimony terminates with re-marriage of the wife and this is a rule of universal application, but we have been citéd no case holding that the re-marriage of the wife extinguishes her claim for alimony which had previously accrued and we shall not so hold. The pertinacity of the husband in refusing to comply with the order of the court might reduce the wife to the necessity of borrowing money from family or friends and such a loan might be made upon the strength of the decree requiring the husband to pay, and upon the faith that the decree would eventually be enforced when the loan might and would be repaid.
It was held in the case of Calhoun v. Adams, 43 Ark. 238, that errors or irregularities in obtaining a judgment cannot be set up by demurrer or plea to a scire facias to revive, and it was there also stated that scire facias is not the institution of a new suit, but is a continuation of the old one and that its object is not to procure a new judgment for the debt but execution of the judgment that has already been obtained.
In the case of Kurtz v. Kurtz, 38 Ark. 119, Justice Bakin said that it was not a convenient practice to grant permanent alimony during the natural life of the wife, and that a greater inconvenience would be incurred by making future payments of alimony liens upon real estate, but he also said that “As for all sums ordered to be paid at once, and for which execution may issue, they are already general liens, without being so expressed.”
Here there was no allowance of a lump sum nor for any definite period, but a monthly allowance, which is a practice many times approved by this court, but final judgment was rendered for all the accrued unpaid alimony. If this was error, and we do not so hold, that judgment was final and no appeal was ever prosecuted and it is not now subject to review.
Appellant did apply to the court in October, 1939, to be relieved from future payments, but prior to that time he had, filed no pleadings setting out that he was physically or financially unable to make the payments ordered by the court, nor had he appealed from such orders, nor did he appeal from the judgment and decree of March 5, 1940.
In the case of Sneed v. Sneed, 172 Ark. 1135, 291 S. W. 999, Dr. Sneed, the husband, was ordered to pay his wife alimony in the sum of $40 per month. He made the payments for two years and thereafter made no payments until his default amounted to $4,800. Dr. Sneed was left a legacy of $1,000 which his divorced wife sought to impound and apply on this debt. Mrs. Sneed recovered judgment and pending the appeal therefrom she died. Revival of the case was resisted, but revival was ordered by the court. Mr. Justice Hart in upholding the right to garnish this legacy there said: ‘ ‘ The law is that a wife who secures a judgment for alimony in a suit against her husband for a divorce is a creditor, and a conveyance made in fraud of her rights as such may be set aside or the property subjected to the lien of the judgment, provided that the rights of purchasers without notice and for a valid consideration have not intervened.” (Citing cases). Among the cases there cited was the case of Austin v. Austin, 143 Ark. 222, 220 S. W. 46, in which case it was held that in a suit for divorce where decree was in favor of the wife, the court had authority to declare a lien in favor of the attorney for his fee upon the real estate conveyed by the husband to defraud his wife.
It is argued that a judgment for past due alimony is not such a judgment as may be revived by scire facias, but that contention cannot be sustained. In the chapter, Scire Facias, 47 Am. Jur. § 14, p. 471, it is said: “Strictly speaking, scire facias is a proceeding at law, and hence not available for the enforcement of decrees and other'determinations of other courts. Where, however, a statute authorizes writs of execution to issue for the enforcement of decrees of probate, chancery, and other courts, such decrees are substantially placed on the same footing as a judgment of a court of law, and the power to prosecute proceedings thereon by scire facias is impliedly conferred.”'
No contention is made that the judgment of March 5,1940, which long since became final has been satisfied, in whole or in part, and that judgment was properly revived and the decree so holding is affirmed. | [
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Smith, J.
A decree was rendered March 22, 1943, foreclosing a deed of trust executed by Salena Coleman and her husband to appellants, who do business under the firm name and style of A. Hirsch & Company. Salena was the owner of the mortgaged land. There was a sale ' by a commissioner, appointed to make it, at which Hirsch & Company became the purchaser. The commissioner’s report of the sale was confirmed and his deed to the purchaser was approved, and about two years later suit in ejectment was filed to recover possession of the land described in the deed of trust which had been foreclosed.
Salena filed a suit in which she alleged that the decree had been rendered without service upon her, and that the debt which the deed of trust secured had been paid before the institution of the foreclosure suit. Salena died before the trial from which is this appeal, and the cause was revived in the name of Mattie Perkins, her daughter, and sole heir at law.
. The case appears to have been treated, and to have been tried as a proceeding under §§ 8248, 49, and 50 of Pope’s Digest. The complaint filed by Salena upon which process issued and was served complies with § 8248, Pope’s Digest, which reads as follows: “The proceedings to vacate or modify the judgment or order on the grounds mentioned in the fourth, fifth, sixth, seventh, and eighth subdivisions of § 8246 shall be by complaint, verified by affidavit, setting forth judgment or order, the grounds to vacate or modify it, and the defense to the action, if the party applying was defendant. On the complaint, a summons shall issue and be served,, and the proceedings had as in an action by proceedings at law. ’ ’
Hirsch & Company filed an answer to Salena’s complaint which denied that the foreclosure decree had been rendered without service of process for a debt which had been paid. After hearing much testimony .it was decreed, . . that the plaintiff has brought herself within the statutes, entitling her to have vacated and set aside the decree of foreclosure as prayed in the complaint. It is therefore considered, ordered, adjudged and decreed that the decree of foreclosure, heretofore made and had in the case of Ludwig Hirsch and Edmund Hirsch, doing business as A.' Hirsch & Company, against Salena Coleman, be and the same is hereby vacated, set aside and held for naught; from all of which defendants except and pray an appeal to the Supreme Court, which exceptions are noted of record and the prayer for appeal granted. ” .
No findings of fact were made in the decree, but we assume that two findings were made: first, that the decree was rendered without service, and second, that Salena had a meritorious defense in that she did not owe the debt, or all of it, for which the decree rendered judgment. Sections 8249 and 8250, Pope’s Digest, required these findings before granting the relief prayed and these findings must haye been made to confer authority to vacate the decree.
The first question, whether- there had been service is a close question of fact, and we are unable to say that the chancellor’s finding is contrary to a preponderance of the evidence.
The return upon the summons reads as follows: “I have this the 16th day of March, 1942, duly served the within by delivering a true copy of same to the within named Squire Coleman and Mattie Perkins, daughter of Salena Coleman, who is over the age of 16 years, and lived in the house with Salena. ‘Signed, F. F. Kitchens, by W. H. Shotts, Deputy Sheriff.’ ”
Shotts, the deputy sheriff who served the summons and made the return thereon, testified that he had no recollection of the age or appearance of Mattie Perkins. He asked’the person to whom he delivered the copy of the summons who she was, and received the answer that she was a daughter of Salena Coleman, and that the person served was living in Salena’s house. This makes a prima facie showing that the summons was served as required by law.
But the testimony sustains the finding which the court must have made before granting the relief prayed that the summons had not been served upon Mattie Perkins, but upon Mattie’s daughter, a young girl, and that the place of service was not then Salena’s usual place of abode. This testimony is to the following effect. Salena and her husband separated the last of February, or the first of March, 1939, and Salena did not cultivate the land after that time, but turned the place over .to Frank Perkins; who was her daughter’s husband, with the understanding that he would pay her $65 per year rent, and would pay the balance due on the debt secured by the deed of trust which Salena had given to Hirsch & Company. Salena moved to Clarendon that year, and remained there about four years. She took her household furniture and personal effects with her to Clarendon, but left everything else on the farm, including the farm implements, a mule, wagon, feed, seed, etc., and remained in Clarendon thereafter except for two visits, each of only a few days duration, made during the Christmas holidays.
Without reciting the testimony in detail of the several witnesses who testified as to Salena’s residence after 1940, it will suffice to say that it is sufficient to support the finding that she did not live on her farm at the time the summons was served. In other words, while the farm belonged to Salena it was not her home or usual place of abode at the time the summons was served according to the return thereon. This return is prima facie evidence of service, hut it is not conclusive where the testimony shows it to be false. Karnes v. Ramey, 172 Ark. 125, 287 S. W. 743.
Mattie testified that neither she nor Salena knew anything about the foreclosure suit until the ejectment suit was filed, and that they supposed the debt had been paid inasmuch as Hirsch & Company took possession and removed all the personal property from the farm which was of a value greater than the balance due according to a statement which had been furnished her and her husband by Hirsch & Company’s bookkeeper. Hirsch & Company took possession of all the personal property after a controversy had arisen between Hirsch & Company and Prank Perkins over certain A.A.A. allotments. This was done under a chattel mortgage which Prank had given on all the personal property Salena owned and had left on the farm. Mattie and Prank testified that when this chattel mortgage was given it was with the understanding that Prank had assumed payment of Salena’s debt and that Prank executed the mortgage with Salena’s consent. Mattie testified that the bookkeeper for Hirsch & Company gave her a statement of Salena’s account which she produced in court showing a balance due of $164.82.
The decree of foreclosure is not in the record, but there is in the record a document purporting to be a statement of-Salena’s account at the end of 1938, showing a balance due of $487.72, and Salena’s complaint or petition to vacate the foreclosure decree alleges that the judgment rendered against Salena in that decree was for the sum of $510.03.
The finding which must have been made that there was no service of process as required by law is not contrary to the preponderance of the evidence, and the decree of foreclosure was • therefore properly vacated provided the showing was made that there was a meritorious defense.
We think this showing was also made.. The court did not find whether any debt was due which the deed of trust secured, and we are unable to do so from the record before us. It is insisted that the entire account against Salena was void for the reason that it included certain usurious charges of interest, and so it does. But this does not invalidate the entire account inasmuch as no agreement to pay the usurious interest was shown. The record does not show whether the court found the debt was void because of the usurious charge of interest. If the court so found, this was error. Cammack v. Runyan Creamery, 175 Ark. 601, 299 S. W. 1023.
But even so, there was a meritorious defense in that Salena did not owe all the debt for which the mortgage was foreclosed, and may not have owed any of it. Perkins may or may not have paid all the dqbt which he said he assumed. Of course his agreement to assume the debt did not discharge it unless there was a novation, whereby it was agreed that Salena should be discharged and it may be true that the personal property belonging to Salena which Hirseh & Company took possession of was of sufficient value to discharge the debt. The récord does not show whether this is true or not.
We have copied the ordering part of the decree, and as we understand the decree, its effect is to vacate the order of foreclosure and leaves that suit pending' for the determination of the question whether Salena’s debt has been paid, and if not, how much was unpaid. It is not urged that the appeal is premature, and we decide only the questions which are presented by the record and argued in the briefs.
The decree from which is this appeal vacating the foreclosure decree will be affirmed, but the cause must, nevertheless, be reversed for- the decision of the issues which apparently have not been decided, that is, whether Salena’s debt has been paid in full, and if not, what balance was due. | [
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Minor W. Millwee, Justice.
This is a suit hy appellant, Harmon Morgan, to enjoin appellee, Commissioner of Revenues for the State of Arkansas, from the collection of taxes on appellant’s income for the year 1943.
On October 10, 1946, appellee notified appellant in writing that he had failed to file an income tax return for the year 1943; that information coming to the Revenue Department revealed that appellant had earned a net income of $12,737.73, upon which there was due the State of Arkansas taxes, penalty and interest in the sum of $370.49, payment of which was demanded. Appellant protested the demand and a hearing before the Commissioner resulted in rejection of appellant’s claim of exemption and a renewal of the demand for payment of the tax. Appellant then filed this suit in the Miller Chancery Court to enjoin appellee from enforcing the demand for payment of any part of the tax, penalty and interest assesséd against him.
Appellant alleged in his complaint that he was a resident and citizen of Texarkana, Arkansas, and derived his entire income from the operation of a clothing store in Texarkana, Texas; that appellee sought collection of the tax under and by virtue of the provisions of Act 162 of 1943; that said act is unconstitutional and void in its entirety because of the proviso contained in § 2 which states that no income arising from the use, production or sale of real estate, situated in another state, but owned by a resident of Arkansas, should be included in the income of such resident for income tax purposes; that said proviso rendered said Act 162 unconstitutional for numerous reasons set forth in the complaint.
In his answer appellee admitted most of the allegations of the complaint. He denied that the tax against appellant was sought to be assessed and collected under Act 162 of 1943 and specifically alleged that such tax was assessed and sought to be collected pursuant to the provisions of Act 118 of 1929 as amended. The answer also denied the allegations of the coniplaint relating to the alleged unconstitutionality of Act 162 of 1943.
The cause was heard by the Chancellor upon the pleading's and a stipulation in which it was agreed that appellant at all times mentioned was a resident and citizen of Texarkana, Miller county, Arkansas, and during 1943 and subsequent years has derived his entire income from the operation of a clothing store located in Texarkana, Texas, which is his sole place of business; that it is the duty of appellee to administer the Income Tax Act (Act 118 of 1929) as amended and supplemented by Act 162 of 1943, and by other statutes; that during 1943 appellant received a net taxable income of $12,737.73 from the aforesaid business conducted in the State of Texas and this amount was his only income for that year; that in 1943 appellant paid a poll tax and personal and real property faxes, including taxes on his home, in Miller county, Arkansas; and that he paid personal property taxes in Texas on the aforesaid store merchandise and fixtures, including taxes imposed by the state, county and municipal authorities of that state. The written notice and demand for payment' of the tax, penalty and interest together with the rejection of appellant’s claim of exemption were attached to and made a part of the stipulation.
A decree was entered dismissing the complaint of appellant and ordering payment of the delinquent tax, penalty and interest due the State of Arkansas in the sum of $370.49. The decree contains the following findings made by the trial court:
‘ ‘ 1. That plaintiff is now, and was during the entire year of 1943, a citizen and resident of the City of Texarkana, Miller county, Arkansas;
“2. That plaintiff now receives, and received during the year of 1943, his entire income from the operation of a clothing store which is located in Texarkana, Texas;
“3. That no part of plaintiff’s income for the year 1943 was derived from the use, sale or production of real property located outside the State of Arkansas;
“4. That under this set of facts the plaintiff owes and should pay to the State of Arkansas an income tax on Ms entire net income for the year of 1943, from whatever source and wherever derived, pursuant to the provisions of Act 118 of 1929. ’ ’
The primary contention of appellant for reversal of the decree is that Act 118 of 1929 does not authorize the collection of a tax from a resident individual on income earned in another state, and that the first legislative attempt to grant such power was made in Act 162 of 1943. In Art. II, § 3(a) of Act 118 of 1929 it is provided: “A tax is hereby imposed upon and with respect to the entire income of every resident, individual, trust or estate, which tax shall be levied, collected and paid annually upon such entire net income as herein computed, at the following rates, after deducting the exemptions provided in this Act; . ...”
Article III, § 8 (1) of Act 118, supra, provides: “The words ‘gross income’ include gains, profits and income derived from salaries, wages or compensation for personal service, of whatever Mnd and in whatever form paid, or from professions, vocations, trades, business, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, royalties, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever. ’ ’
The Chancellor held that the language of the above sections of the statute empowered the State of Arkansas to tax its resident citizens on their total income, whether derived from inside or outside this state. It is insisted by appellant that the refereiice to “entire net income” of an individual resident in § 3(a) of Act 118, supra, means entire net income derived from property located or business transacted within tMs state. It is also contended that the term “from any source whatever” used in Art. Ill, § 8(1), supra, does not relate to the place where the revenue is obtained, but applies solely to the revenue agencies listed in the paragraph in which the term is used. We cannot agree with appellant’s interpretation of the meaning of the language employed by the Legislature. While the statute does not specifically assert that the foreign income of an individual resident is subject to the tax, there is no exception which may be construed as exempting income earned outside the state, and the Act is clearly made applicable to the entire income ,of every resident regardless of the source of such income.
In Dunklin v. McCarroll, Commissioner, 199 Ark. 800, 136 S. W. 2d 675, it was held that this state was empowered by Act 118 of 1929, supra, to tax the income derived from sources outside the state by an individual resident. In that case Dunklin was a partner in a mercantile business which operated both in Arkansas and Oklahoma. The Arkansas business of the partnership was conducted separately from the Oklahoma business and the income derived from the operation of the business in each state was separable. Dunklin paid a tax to Arkansas on the income of the partnership business in this state and paid to Oklahoma a tax on the income from the Oklahoma business. The Commissioner of Revenues of this state made an assessment upon the unreported Oklahoma income, contending that all of Dunklin’s income, no matter where earned, should have been reported to the State of Arkansas and a tax paid thereon. To avoid payment of the tax Dunklin, as does appellant here, relied on the case of McCarroll, Commissioner, v. Gregory-Robinson-Speas, Inc., 198 Ark. 235, 129 S. W. 2d 254, 122 A. L. R. 977, which held that a domestic corporation doing business both within and without the state was exempt from the payment of an income tax upon the income derived outside the state because domestic corporations doing business wholly outside the state were exempt by Act 220 of 1931. This court, in holding Dunklin liable for the tax upon the income earned in Oklahoma, discussed the right of the state to tax its citizens upon income earned outside the state, saying: “A number of state courts have held that a state may tax its resident citizens on their total income, no matter from what source derived. State v. Weil, 232 Ala. 578, 168 So. 679; Featherstone v. Norman, 170 Ga. 370, 153 S. E. 58, 70 A. L. R. 449; Maguire v. Tax Commissioner, 230 Mass. 503, 120 N. E. 162, aff’d 253 U. S. 12, 40 S. Ct. 417, 64 L. Ed. 739; State v. Gulf, M. & N. R. Co., 138 Miss. 70, 104 So. 698; Crescent Mfg. Co. v. Tax Commission, 129 S. C. 480, 124 S. E. 761; Village of Westby v. Bekkedal, 172 Wis. 114, 178 N. W. 451.”
While the decision in the Dunklin case was based primarily upon the right of the lawmakers to classify individuals separately from corporations in the imposition of income taxes, the effect of the decision was to enforce payment by a resident individual of this state of a tax upon income earned in another state. The conclusion reached is in harmony with the principles of con- ' struction approved in the earlier cases of Wiseman v. Madison Cadillac Co., 191 Ark. 1021, 88 S. W. 2d 1007, and Wiseman v. Gillioz, 192 Ark. 950, 96 S. W. 2d 459. In the last mentioned cases this court adopted the. following statement from Cooley on Taxation (4th ed.) Yol. 2, § 672: “An intention on the part of the Legislature to grant an exemption from the taxing power of the State will never be implied from language which will admit of any other reasonable construction. Such an intention must be expressed in clear and unmistakable terms, or must appear by necessary implication from the language used, for it-is a well-settled principle that, when a special privilege or exemption is claimed under a statute, charter, or act of incorporation, it is to be construed strictly against the property owner and in favor of the public. This principle applies with peculiar force to a claim of exemption from taxation. Exemptions are never presumed, the burden is on a claimant to establish clearly his right to exemption, and an alleged grant of exemption will be strictly construed, and cannot be made out by inference or implication, but must be beyond reasonable ■doubt. In other words, since taxation is the rule and exemption the exception, the intention to make an exemption ought to be expressed in clear and unambiguous terms; it cannot be taken to have been intended when the language of the statute on which it depends is doubtful or uncertain; and the burden of establishing is upon him who claims it.”
Appellant relies on the case of State ex rel. Attorney General v. Burnett, 200 Ark. 655, 140 S. W. 2d 673, in support of his contention that the state may only tax the income of a resident which is earned here. That case involved the power of this state to impose a tax on the income of a nonresident derived from sources outside Arkansas. The only question for decision was the right of the state to combine income earned inside the state by one nonresident spouse with income earned outside the state by the other nonresident spouse in determining the exemption of the former under § 16 of Act 118, supra. The right to tax the income of residents of this state was in no manner involved and the case is clearly distinguishable on the facts from the Dunklin case and the case at bar.
The second, or alternative, contention of appellant is that if the power to tax foreign ipcome of resident individuals was granted by Act 118 of 1929, then that act was rendered unconstitutional by Act 162 of 1943 to the extent that it attempts to impose such tax. It is insisted that the proviso contained in § 2 of Act 162 of 1943 rendered that act unconstitutional in its entirety and that Act 118 of 1929 is likewise ifnconstitutional when read and construed with Act 162, s-upra. The record fails to disclose that appellant urged the unconstitutionality of Act 118 of 1929 in the chancery court. If it'be conceded that Act 162 of 1943 is unconstitutional (which we do not decide), we do not agree that the right and power to impose the tax on appellant conferred by Act 118 of 1929 would be thereby destroyed.
Act 162 of 1943 is entitled “An Act to Prevent Double State Income Taxation of Individual Residents of Arkansas. ” In § 1, it is provided that an individual resident of Arkansas whose gross income includes income derived from sources outside the state shall be entitled to a credit for the amount of income tax which such taxpayer owes to another state for the same year. Section 2 establishes the procedure for obtaining the credit allowed in § 1 and contains the further proviso that no income which arises from the use, production or sale of real estate situated outside this state shall he included in the income of the resident individual for income tax purposes. Section 3 is the emergency clause and declares: “ . . . that Arkansas residents are being prevented from engaging in business and owning property in other states because of double income taxation on the same income . . . ”
It will be observed that Act Nq. 162, supra, is in no sense a taxing act, but is an act designed to create an exemption in favor of a resident individual taxpayer whose income from business or property in another state was already taxable under Act 118 of 1929. The State of Texas has not levied a tax against the income derived from appellant’s business located there, nor is appellant’s income derived from the use, sale or production of real property situated in that state. However, if it be assumed that appellant is in position to attack Act 162 of 1943, and that said act is unconstitutional and void, this would leave the taxing provisions of Act 118 of 1929 unaffected and unimpaired thereby. The general rule is that an unconstitutional statute is a nullity and in legal contemplation is as inoperative as if it had never been passed. In 11 Am. Jur., Constitutional Law, § 154, p. 841, it is said: “It has even been held that if' a portion of an act which is an amendment of another act already in force is invalid and is .inseparable from the remainder of the amendment, the entire amending act may be declared inoperative without in any way affecting the original act.” In Merritt v. Gravenmier, 169 Ark. 779, 277 S. W. 526, it was held that, where a special act of 1919 had been declared valid in a previous decision of this court, it was error to hold that the act was invalidated by reason of an amendment thereof by an act of 1921 since, if the amendatory act was invalid, it left the former act unimpaired.
We conclude, therefore, that the taxing provisions of Act 118 of 1929 are still in force and effect, irrespective of the validity of Act 162 of 1943, in so far as appellant’s liability for the tax in question is concerned. The Chancellor was correct in so holding and the decree is accordingly affirmed. | [
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] |
Griffin Smith, Chief Justice.
East Arkansas Construction Company was enjoined from operating a rock crusher between seven o’clock p. m. and seven a. m. The restraining order was issued August 23, 1946, effective August 26th. Upon showing that the Company, prior to information that legal steps would be taken against it, had contracted with State Highway Department, and that definite commitments for deliveries not later than October 1 were outstanding, this Court permitted continuation of 24-hour milling until October 1st. This was done after a temporary supersedeas had been executed August 31st by an individual Judge. When on September 23d the matter came before the entire Court, issues were briefly stated and the Company agreed (respondent acquiescing) that night work would be discontinued October 1st. Appeal is on the merits. Contention of the Company is that a preponderance of- evidence shows (a) that the crusher is situated in an industrial area outside the corporate limits of Jonesboro, but adjoining it; (b) that T. D. James is estopped from maintaining the suit and Harry O’Neil in effect consented to activities; and, (c) other plaintiffs (appellees here) have not met the burden assumed in asserting that night operation of the crusher is attended by objectionable incidents justifying a court of equity in restricting use to the period allowed by the injunction.
There is testimony that the area surrounding the crusher has always been industrial property and it is not denied that the district is beyond Jonesboro’s city limits. On the other hand, witnesses owning homés, or residing near the crusher, contend that the distinction between “industrial,” and “residential,” is not defined by use to such an extent that industrial activities of an unusually objectionable nature should be permitted to destroy nor mal home comforts and the ordinary utilitarian purposes for which such property is designed.
E. A. Stuck, a witness for the defendants, testified that the crusher and appurtenances were located on property once owned by Barton Lumber & Brick Company and lies west of the Jonesboro Brick Company. The crusher is on land formerly occupied by a brick plant. When asked regarding general nature of the entire area with reference to residence property, Mr. Stuck said: “I would say the territory has always been industrial property. The natural boundary [in part] is Old Highway No. 1, known as the ‘Aggie’ Boad. The Barton Lumber & Brick Company [on the north] is the old Greensboro Boad. It extends about 2,000 feet beyond what is known as New Highway No. 1. In the past this whole area has been [industrial or non-residential] property. Becently a new shoe factory, Johnson’s Welding Shop, and a grocery store have been put up north of New Highway No. 1 and a little west of this location. The shoe factory is east of ‘the line of the crusher,’ and northwest of the.brick company. The welding shop is west of the shoe factory. South of the crusher the Snyder Drug Company has erected a concrete block warehouse 60 x 150 in size. East of the warehouse, along the old highway, the property is vacant except ‘for a space and a frontage’ used by Frape Truck Line. For a while the truck company maintained its shops there, with storage for vehicles. The old J., L. C. & E. By. has a spur track, and there are other such extensions. ’ ’
Testimony as a whole*sustains the Chancellor’s finding (though not expressed affirmatively in the decree) that while the area had gradually acquired characteristics of an industrial nature, yet along with this development homes were erected without reason for apprehension that extraordinary and continuous inconveniences would be experienced, but to the contrary that the ordinary noise, smoke, dust, and movements incidental to the character of industry then being operated would be the approximate measure of molestation. If O’Neil, who leased a right of way to appellant, or James, who bought of O’Neil and accepted $100 from appellant for right-of-way facilities, were the only injured parties, we would unhesitatingly say they are without equitable rights.
The rock crusher was not built until June, 1945. Extent to which it was operated during the first few months following installation is not shown. But it is definitely disclosed that all-night work did not begin until two or three weeks before the instant suit was filed. If it be conceded that the area was more suitable to industrial use than residential occupancy, the fact remains that erection of some of the homes was prior to crusher work on a continuous schedule — even before the crusher was put on the property — and certainly before its management inaugurated a 24-hour, seven-day week program. Witnesses testified that from eight to twelve heavy gravel trucks were used most of the time, being frequently compelled to reduce speed on account of road conditions and to shift gears; that this sometimes caused “back-firing” and other emergency noises; that headlights from trucks flashed through windows, and that the entire district was brilliantly illuminated to facilitate work. Because of the noise, employes who had to communicate with each other spoke loudly; while occasionally crude jokes were told. Effect was that some of the residents were unable to gain sleep until exhaustion aided them, often after two o ’clock a. m.
In Fort Smith v. Western Hide & Fur Co., 153 Ark. 99, 239 S. W. 724, Chief Justice McCulloch, in writing the Court’s opinion, used this illustration: “The case affords, perhaps, an example where a business established at a place remote from population is gradually surrounded and becomes part of a populous center, so that a business that formerly was not an interference with the rights of others has become so by the encroachment of the population. Under these circumstances pri vate rights must yield to the public good, and a court of equity will afford relief, even where a thing originally harmless under certain circumstances has become a nuisance under changed conditions.” [In the Fort Smith case the Hide & Fur Company was within the corporate limits.]
Jones v. Kelley Trust Co., 179 Ark. 857, 18 S. W. 2d 356, is in point. It was there said that, although a rock crusher had been used in the vicinity for many years, “. . . the operation of the plant by appellees appears from the evidence to be materially different from the operation of the quarry and rock crusher formerly. ’ ’ It was then said that the plaintiffs below were not estopped. In the Jones-Kelley case restrictive directions were contained in the decree appealed from, and this Court held that the Chancellor acted with appropriate circumspection. A paragraph from the opinion is: “The cases holding that the rights of habitation are superior to the rights of trade, and, whenever they conflict, the right of trade must yield to the primary or natural right [are collected in a note to Bristol v. Palmer, 83 Vt. 54, 74 Atl. 332, 31 L. R. A. (N. S.) 881, and in 20 R. C. L. 480.”] See American Jurisprudence, v. 39, pp. 333-4; Corpus Juris, v. 46, p. 670.
Mr. Justice Mehaeey, who wrote the opinion in Jones v. Kelley Co., expressed the broad proposition that “Every person is entitled to the undisturbed possession and enjoyment of his own property. ’ ’ However, scope of the statement is diminished by the subjoined sentence where it was said: “The mode of enjoyment is necessarily limited by the rights of others;”
Granting that, in a general sense, appellants are entitled to “the undisturbed possession and enjoyment of their own property” — (in this instance a rock crusher) use to which machinery and necessary appurtenances are put may depend upon locality, proximity to others, deportment of employes, and sometimes (as in the case at bar) whether operations are continuous, or are restricted to ordinary working hours.
In view of the evidence, we are not able to say that the Chancellor erred in directing that operations be discontinued from seven o’clock in the evening until seven o ’clock a. m.
Affirmed.
Plaintiffs other than James were: E.,;P. Johnson, George Coekran, C. W. Gray, Ezra Down, Charles Hague, W. M. Coleman, and A. Bagget. Harry O’Neil was not a plaintiff.
East Arkansas Construction Company is owned by J. M. Cartwright and Mary E. Kennedy. Apparently it is not incorporated. | [
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Ed. F. McFaddin, Justice.
Appellee, Wilhite, was indicted for violation of § 1 of Act 193 of 1943, it being-alleged that Wilhite had “by the use of force and violence attempted to prevent W. C. Rogers from engaging-in work . . . contrary to the statute . . . ” Wilhite was tried under the indictment; and at the conclusion of the testimony offered by the State, the trial court announced that the evidence was insufficient to support a verdict of guilty as charged, and thereupon instructed the jury to return a verdict finding- Wilhite not guilty of any violation of § 1 of said Act 193. Because of this instructed verdict, the State has attempted to appeal to this court under the provisions of §§ 4253-4, Pope’s Digest.
At the threshold of this appeal, the State is faced with the fact that the record contains no motion for new trial. To overcome this deficiency, the Attorney General points to a sentence in the case of State v. Gray, 160 Ark. 580, 255 S. W. 304, in which sentence it is mentioned that there was no motion for new trial in that case, and nevertheless the court then proceeded to dismiss the appeal on another point. Tlie full sentence to which the Attorney General points is this: “There was no motion for new trial, and no statement that the second count was intended to charge the same offense as the first count, hut in a different mode, and no such statement is made in the record anywhere. ’ ’ The statement, that there was no motion for new trial, was clearly a surplusage, because the State’s appeal was dismissed on another ground.
We have a number of cases decided by this court preceding and following the case of State v. Gray, and in each of these cases, now to be mentioned, it is clearly stated that there must he a motion for new trial filed in the circuit court as an essential to an appeal by the State, on any matter that does not appear on the face of the record.
In State v. Smith and Longan, 117 Ark. 384, 175 S. W. 392, the State attempted to appeal, hut failed to include in the record any motion for new trial as against the appellee, Smith, and as to him we said: “ . . . there is no motion,for new trial in the record. The bill of exceptions agreed upon between Smith’s counsel and the attorney representing the State shows that the court, at the conclusion of the introduction of evidence, gave a peremptory instruction in favor of the defendants, and it is necessary for a motion for new trial to have been filed in order to bring the ruling before us for review.”
In State v. Moore, 166 Ark. 499, 266 S. W. 460, the State attempted to appeal without a motion for new trial, and we said: “It is a well-settled rule of this court that, where there is no motion for a new trial, only errors appearing on the face of the record will he considered on appeal. Smith v. Wallis-McKinney Coal Co., 140 Ark. 218, 215 S. W. 385; Free v. Adams, 148 Ark. 654, 228 S. W. 371.”
In State v. Neil, 189 Ark. 324, 71 S. W. 2d 700, the State attempted to appeal in a case where the trial court had instructed a verdict of not guilty. The record did not show that the motion for new trial had been presented to the trial court within the proper time; and, in affirming the judgment, we said: “A motion for a new trial is essential to the review of an alleged error which does not appear upon the face of the record, and is essential in this case to a review of the action of the court in directing the jury to return a verdict of not guilty. The purpose of a motion for a new trial is to call the alleged errors occurring during the trial to the attention of the court, and to afford an opportunity for correction by granting a new trial if the errors may not otherwise be corrected. Nordin v. State, 143 Ark. 364, 220 S. W. 473.”
These three cases are ruling. Since there was no motion for new trial in the case at bar, and since the only question raised is the sufficiency of the evidence to support the verdict, we hold that the failure to file the motion for new trial is fatal to the appeal. Affirmed.
Robins and Millwee, JJ., concur.
The circuit court, in directing a verdict of not guilty of any violation of § 1 of said Act 193, at the same time directed a verdict of guilty of assault and battery. The jury fixed the fine at $50, and there is no appeal from that conviction of assault and battery. | [
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Minor W. Minlwee, Justice.
Appellant, Bertis F. Thurman, was charged by information with the crime of first degree murder in the killing of Charles M. Boiler on January 1, 1946. The jury found appellant guilty of murder in the second degree and fixed his punishment at 10 years in the penitentiary. This appeal is prosecuted from the judgment rendered on the jury’s verdict.
Viewed in the light most favorable to the state, the testimony reveals the following facts: Appellant and Charles M. Roller resided about eight blocks apart in Lincoln, Washington county, Arkansas. On the day in question the Roller family had finished their evening meal and retired to their living room. The Roller home faces west and there is a door leading to a west front porch from the living room. This door had a window in it and there were two other windows on the west side of the living room. The front porch was enclosed by lattice work with an opening at the point of entrance to the front door and two other diamond shaped openings on the west side. It was dark and lights were on in the living room and dining room which was east of, and adjacent to, the living room. Blinds on the windows were up.
Roller’s dog began barking about 6:15 p. m. Roller arose from a couch upon which he was lying and walked to the front door to investigate. He opened the door and walked outside. As he closed the door behind him, or shortly thereafter, a shot was fired and Roller staggered back into the living room. After he was laid on the floor by a son, Roller said to his wife, “Vernie, meet me in heaven.” Mrs. Roller asked him if he was going to heaven and he said, “Yes,” and then stated, “It was Thurman, Bertis Thurman.” Shortly thereafter Roller stated to the men who accompanied an ambulance that had arrived to take him to the hospital, “Don’t take me away. 1 want to die at home, and I haven’t got long.” Before Roller was removed to the hospital, Cecil Remington, a night marshal and deputy sheriff, asked Roller if he knew who shot him and Roller replied, “Yes, it was Bertis Thurman — I wasn’t over five or six feet from him and looked him directly in the face.” Roller died at 7:19 p. m. from the effects of a shotgun wound in his left side about one inch above the twelfth rib.
About two weeks before the killing appellant called at the Roller home in the afternoon. He identified him self and told Mrs. Roller that he had caught her husband prints in a field or garden within 20 feet of the south with his (appellant’s) wife that morning. When Mrs. Roller said she was sorry but could not help that, appellant replied: “I can. I got my gun this morning, but my wife knocked it out of my hand. Just remember there is always another time.” Mr. Roller informed her husband of this conversation. Three days prior to the killing appellant’s wife filed suit for divorce.
Officers went to appellant’s home shortly after the shooting and took him into custody. A single barrel shotgun with a loaded shell in it was found in appellant’s house. The gun had an odor of “freshly fired” gunpowder. Appellant informed the officers that the gun had not been fired for months. He also stated that the loaded shell was the only one he had possessed for months. The next day the officers found the metal end of an empty shell in appellant’s stove. One end of the shell had been burned and it was the same type and brand as the shell found in the gun. The gun and shells were turned over to a ballistics expert with the state police who testified that the burned shell was fired from appellant’s gun according to certain tests made by the witness.
On January 2, 1946, the sheriff found some foot-side of the Roller home. A wooden box was placed over one of the prints to preserve it. Two or three days later the sheriff secured appellant’s shoes and placed one of them in the track which had been preserved. The sheriff and an attorney who assisted in the investigation testified that the shoe exactly fit the track.
Appellant denied that he shot deceased and offered an alibi which was corroborated by several witnesses who testified that appellant was either at his home or a filling station across the street at the time of the killing. Two of these witnesses accompanied appellant on a trip to the country on the afternoon in question and testified that appellant wept about his family troubles and was in a hurry to get back to Lincoln. There was a conflict in the testimony as to the time it would take to walk from appellant’s home to the Roller home. The-evidence was also in dispute as to whether light would radiate through the windows and front door of the Roller home sufficiently to, permit identification of a person near the1 front porch under the conditions existing at the time the fatal shot was fired.
Appellant’s first contention for reversal of the judgment is that there was no valid information filed in the case. The information is dated January 2, 1946, and signed, “Jeff Duty, Prosecuting Att’y, by Glen Wing, Deputy Pros. Att’y.” Appellant made no objection to the information before going .to trial. The record discloses that appellant waived arraignment and pleaded not guilty without challenging the form or sufficiency of the information. The jury was impaneled and sworn and the state had rested its case when appellant moved for an. instructed verdict of not guilty “for the reason that evidence has been introduced that there was no proper information filed in this case in the time and manner and by the person required by law. ’ ’ There was evidence that the prosecuting attorney was out of the county and that his deputy, who purportedly signed the information, was ill on the date the information was filed. The sheriff testified that he enlisted the assistance of another attorney in making his investigation of the case, but there was no showing that this attorney had anything to do with filing the information or that it was not actually signed and filed by the deputy prosecuting attorney. This attorney and the circuit clerk, before whom the information was filed, testified before the state rested its case and neither was questioned about the filing of the information.
The objection to the information came too late. Section 3882 of Pope’s Digest provides: “Upon the arraignment, or upon the call of the indictment for trial, if there is no arraignment, the defendant must either move to set aside the indictment or plead thereto.” In Whitted v. State, 188 Ark. 11, 63 S. W. 2d 283, this statute was construed as requiring a defendant to present his objections to the validity or regularity of the indictment on arraignment, or call of the indictment for trial, except where the question of the sufficiency of the indictment to charge a public offense is involved.' It was there said: “This statute contemplates that, before the trial of the cause, the accused shall present such objections as he cares to make to the return of the indictment. ’ ’ See, also, Carpenter v. State, 62 Ark. 286, 36 S. W. 900; Ware v. State, 146 Ark. 321, 225 S. W. 626; Holt v. State, 171 Ark. 279, 284 S. W. 1.
In Geoates v. State, 206 Ark. 654, 177 S. W. 2d 919, the objection was that the information was not sworn to by the deputy prosecuting attorney. The court held that the objection should have been tested by motion to quash before trial, saying, “It is contemplated that, before trial, the defendant shall present such objections as he cares to make where there is want of formality in bringing the accusation.” It was further said in that case, “In the absence of statutory mandates relating to an information, laws pertaining to indictments are applicable when not inconsistent with the nature of the process.” Under the authorities cited appellant waived the objection to the information and the trial court did not err in overruling the motion for an instructed verdict on this ground.
It is next argued that error was committed in the admission of dying statements of deceased, the contention being that it was physically impossible for deceased to have seen his assailant, and that his statements constituted a mere expression of opinion on his part that appellant was the assailant. Appellant relies on the case of Jones v. State, 52 Ark. 345, 12 S. W. 704. In that case deceased was sitting by his fireside at night when he was shot by someone who fired from the outside through a crack in the house. It was held that a declaration by the deceased that a person other than defendant shot him was inadmissible because a mere opinion and the court said: “A mere expression of opinion by the dying-man is not admissible as a dying declaration, and it is immaterial whether the fact that the' declaration is mere opinion appears from the statement itself, or from other undisputed evidence showing that it was impossible for the declarant to have known the fact stated. If, upon any view of the evidence, it is possible for the declarant to know the truth of what he states, his declarations, being otherwise competent, should be received and considered by the jury in the light of all the evidence.”
The facts in the Jones case, supra, are clearly distinguishable from those in the instant case. We cannot say, as a matter of law, that it was physically impossible for the deceased to have observed and recognized appellant at the time of the shooting. We think the trial court properly submitted to the jury the question whether the statements attributed to the deceased were in fact made, and, if made, whether same were true or false. Burns v. State, 155 Ark. 1, 243 S. W. 963; Gray v. State, 185 Ark. 515, 48 S. W. 2d 224. In this connection the court gave instruction No. 20’ at the request of appellant which reads in part: “The Court has permitted some evidence to go to the jury as to a statement said to have been made by the deceased after he was shot. This testimony should not be considered by the jury in arriving at a conclusion as to whether the defendant did the shooting unless the jury first finds beyond a reasonable doubt that the deceased knew that it was the defendant who shot him. If the jury finds that such a statement was made upon the mere suspicion or belief that it was the defendant who shot him they should disregard it. All the facts and conditions surrounding the parties at the time of the shooting should be taken into consideration by the jury in arriving at a conclusion. ’ ’ This instruction was more' favorable to appellant than he was entitled to, under the law.
It is next contended that the court erred in permitting the sheriff and his assistant to testify concerning the comparison of the footprint found near the Roller home with the shoe of appellant. It is earnestly insisted that the taking of appellant’s shoe while he was a prisoner and making, the comparison with the track found near the Roller home in the absence of appellant, or his counsel, violates the rule against self-incrimination. The testimony reflects that appellant voluntarily removed his shoes and gave them to the sheriff at the latter’s-request. There is no evidence of force being used, and, as stated by the Iowa court in State v. Arthur, 129 Iowa 235, 105 N. W. 422: “It is not enough to say that defendant had reason to believe that his shoes would be taken from him by force if he did not voluntarily surrender them.”
This court has uniformly held testimony concerning tracks and footprints discovered near the scene of a crime admissible if a connection with defendant by means of comparison is shown. Easter v. State, 96 Ark. 629, 132 S. W. 924; Trimble v. State, 150 Ark. 536, 234 S. W. 626; Penton v. State, 194 Ark. 503, 109 S. W. 2d 131; Hendrix v. State, 200 Ark. 973, 141 S. W. 2d 852; Nolan and Guthrie v. State, 205 Ark. 103, 167 S. W. 2d 503. In Ilendrix v. State, supra, the court quoted with approval a headnote to the case of Biggs v. State of Indiana, 201 Ind. 200, 167 N. E. 129, 64 A. L. R. 1085, as follows: “The taking of his shoes from one arrested for stealing corn, to show the tracks made by them were like tracks near the crib from which the corn was stolen, does not violate a constitutional provision that one shall not be compelled in a criminal case to bear witness against himself.” In People v. Breen, 192 Mich. 39, 158 N. W. 142, defendant’s shoes were taken by an officer for the purpose of comparing them with footprints and the officer was permitted to testify that 'the shoes seemed to fit the footprints. The Michigan court held that the testimony was not objectionable as requiring defendant to give testimony against himself although he was not present when the shoes were being compared with the footprints. We conclude that there was no violation of the rule against self-incrimination in the admission of the testimony concerning the footprint and the comparison made with the shoe of appellant.
It is also contended that error was committed in the trial court’s refusal to grant a new trial on account of newly discovered evidence. Ex parte affidavits of Grace Funk and Calvin Thomas were attached to the motion for new trial. The affidavit of Grace Funk details suspicious behavior of her former husband, Charlie Hinkle, before and after the killing and concludes with the opinion that Roller was killed by Hinkle. It is also stated in the affidavit that the facts set forth therein were related to counsel for appellant and others at a conference in affiant’s home in Lincoln on the day before the trial. Evidence, to be newly discovered, must be found out since the trial, and it must appear that it could not have been known at the, time of the trial by the exercise of reasonable diligence. Reeder v. State, 181 Ark. 813, 27 S. W. 2d 989. It is apparent from the affidavit of Grace Funk that her testimony, if admissible, was not newly discovered.
The affidavit of Calvin Thomas is to the effect that appellant was at the filling station across the street from his home when Thomas visited there about 6 p. m. on the day of the killing and when he left, “ which was some time after 6 o’clock p. m.” This evidence was merely cumulative to the testimony of several other witnesses who testified in support of the alibi offered by appellant. There was no abuse of the broad discretion abiding in the trial judge in refusing to grant a motion for new trial based on this evidence. Carter v. State, 174 Ark. 871, 298 S. W. 7.
It is finally insisted that the conviction for second degree murder does not reflect a p'roper verdict, since appellant should have either been convicted of first degree murder, or acquitted, under the evidence. The trial court gave instructions defining the lower degrees of homicide at the request of appellant. It is true that the jury might have found appellant guilty of the higher degree of homicide under the evidence, but he .cannot complain of their failure to do so. Roberts v. State, 9'6 Ark. 58, 131 S. W. 60; McGough v. State, 113 Ark. 301, 167 S. W. 857.
Other assignments of error set out in the motion for new trial are not argued by appellant. We have care fully considered these and find them to he without merit. No error appearing in the record, the judgment is affirmed. | [
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Holt, J.
June 16, 1930, appellee, O. W. Knight, secured a judgment against appellant, Hattie Fisher Kiales, for $232.72, in a justice court in Osceola, Arkansas. An execution was issued and a nulla tona return made. September 6th thereafter, a transcript of this judgment was filed in the office of the circuit clerk in Osceola. December 8,1937, a scire facias writ was issued, and by proper proceedings, judgment of revivor secured and entered January 4, 1938, at a regular term of the circuit court at Osceola. May 8, 1938, proper transcript of this revived judgment was filed with the circuit clerk at Blytheville, Arkansas (Mississippi county is divided into two districts, Osceola and Chickasawba, Blytheville being the situs for the courts in the latter district).
February 11, 1939, Mrs. Riales purchased “Lots 1 and 2, Block 4, Davis Third Addition to the city of Blythe-ville, Arkansas.” Each of these lots, adjoining, measured 50 x 150 feet.'
December 12, 1944, Mrs. Riales conveyed to her son, appellant, Hartwell Edwin Fisher, for “$1.00 and other good and valuable consideration,” the property. The deed of conveyance contained the following provision immediately following the description of the property: “I hereby expressly reserve the right to manage, control and receive all the uses and benefit of the aforesaid property during my lifetime.”
April 2, 1945, appellee, Knight, caused execution to issue out of the circuit court at Blytheville and in due course, the sheriff, appellee, Hale Jackson, levied upon the following described property: “The south forty-one (41) feet of lots 1 and 2, block four (4), Davis Third Addition to the City of Blytheville, Arkansas,” and advertised its sale for June 15, 1945.
On June 12th, appellants filed suit to enjoin the sale,- and as grounds, alleged that Mrs. Riales had sold the property to her son, reserving to herself, a life estate, that the property was her homestead and not subject to execution. A temporary injunction was obtained.
Thereafter, on June 18,1945, Knight caused a second execution to issue from the Osceola District and the property was advertised for sale under the same description as in the first execution, supra.
July 30th, appellants filed an amendment to their complaint in which they alleged that the lots in question did not belong to Mrs. Riales but to her son and again sought injunótive relief from the execution and sale. Another temporary injunction was granted.
Thereafter, on September 1st, appellees answered with a general denial and filed a cross complaint in which they sought to cancel the deed from Mrs. Riales to her son as a fraud upon appellant’s creditors.
Upon a hearing on August 20, 1945, the trial court found that the deed from Hattie Fisher Biales to her son was a valid conveyance, not fraudulent, and dismissed Knight’s cross complaint for want of equity. There was a further finding that Mrs. Biales had reserved a life estate in the property and that said life estate was subject to sale under execution, dismissed appellant’s complaint for want of equity and further “that the defendants (appellees) are directed to proceed with the sale under execution as if no restraining orders had been issued herein.”
From the decree comes this appeal.
We think the trial court correctly held that the deed from Mrs. Biales to her son dated December 12,1944, was valid and without fraud. There was no showing that Mrs. Biales was insolvent at the time she executed this deed and appellees’ revived judgment in 1938 did not constitute a lien on these lots at the time the deed was executed, more than six years thereafter.
Appellants argue that the property in question constituted the homestead of Mrs. Biales and therefore was not subject to sale under execution to satisfy her debt to appellee, Knight.
It was stipulated at the trial that the two lots exceeded in area one quarter of an acre. The record reflects that there is a large residence on “the north end of these two lots, ’ ’ which has been converted into two apartments and Mrs. Biales and her son occupy one and rent the other for $20 per month. There are also two other houses on the property, each of which Mrs. Biales rented for $20 per month.
On October 5,1939, Mrs. Biales borrowed $2,500 from the Georgia State Savings Association, and out of this money it appears the two rent houses were constructed on the property and improvements made. A mortgage on the property was given to the Association as security for the loan, which was to be repaid in 96 monthly install ments of $34.37 each, and on the date of trial approximately $1,000 remained unpaid.
While Mrs. Niales put in issue her homestead, we think the court’s finding that she failed to establish the right to claim the property as exempt on this ground was not against the preponderance of the testimony. The burden was upon her and she failed to meet it. Pace v. Robbins, 67 Ark. 232, 57 S. W. 213.
Finally, appellants say: “It is our contention that the reservation in the deed does not constitute á life estate” in Mrs. Niales. They concede, however, that “a life estate is a free hold estate in the land; and, of course, is subject to sale under execution for the debts of a life tenant.”
We cannot agree that a life estate was not reserved to Mrs. Niales in the deed to her son, supra. The language used by Mrs. Niales, we think, clearly and expressly reserved to her during her life, “the right to manage, control and receive all the uses and benefit of the aforesaid property.” This expressed reservation' covered and described the entire property and reserved to Mrs. Niales individually for her own use, gratification and benefit, an estate for life.
We cannot agree with appellants that the present case is controlled by Drennen Adx. v. Ross et al., 21 Ark. 375. That case is clearly distinguishable on the facts. The language there used was held not sufficient to reserve a life estate, but there is the implication that had language similar, in effect, to that used in the present case been employed, a life estate would have been reserved— in that case.
Finding no error, the decree is affirmed. | [
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Robins, J.
Appellant, charged by information with assault with intent to kill, was by a jury found guilty of aggravated assault and his punishment was fixed at a $500 fine and imprisonment in jail for sixty days. He has appealed from a judgment entered on the verdict.
The following assignments of error are urged as grounds for reversal:
(1) That the trial court erred in giving instruction No. 3 at the request of the State.
■ (2) That the court erred in refusing to give instruction No. 13 requested by appellant.
I.
Instruction No. 3, given at the request of the State, was incorrectly worded in that certain portions necessary to complete the meaning of same were apparently omitted. But only a general objection to this instruction was made. If the omission of the appropriate words had been called to the attention of the trial • court a correction thereof would have no doubt been made. Since the instruction was not inherently wrong, a general objection thereto was not sufficient. Burnett v. State, 80 Ark. 225, 96 S. W. 1007; Bell v. State, 93 Ark. 600, 125 S. W. 1020; Banks v. State, 133 Ark. 169, 202 S. W. 43; Markham v. State, 149 Ark. 507, 233 S. W. 676; Guerin v. State, 150 Ark. 295, 234 S. W. 26; Graves v. State, 155 Ark. 30, 243 S. W. 855; Poyner v. State, 158 Ark. 643, 244 S. W. 17; Williams v. State, 156 Ark. 205, 246 S. W. 503; Miller v. State, 160 Ark. 469, 254 S. W. 1069; Wilkerson v. State, 180 Ark. 280, 21 S. W. 2d 183; Atwood v. State, 184 Ark. 469, 43 S. W. 2d 70.
II.
Appellant’s requested instruction No. 13 was as follows: '
“You are instructed that if you find from the evidence that the defendants had the right to be at the place where they were found by the prosecuting witness, and if you further find that the cause of the altercation, if any, between defendants and the prosecuting witness was the result of the attempt, if any, of the prosecuting witness to prevent the defendants from carrying on their lawful occupation or from being at the place where they were then located, then the defendants and each of them had the right to defend themselves against a threatened assault and that in so doing, if you find that they did so defend themselves, they would not be guilty of any violation of law, and if you find from the evidence that they did so defend themselves without provoking such altercation, if any, then you will find the defendants not guilty of any charge.”
The court gave the following instruction which embodied all the declarations of law, contained in the above instruction, which appellant was entitled to have made to the jury, to-wit:
“You are instructed that the defendant, Pete Sammons, had the right, if he was engaged in a lawful occupation at a place where he had the lawful right to be, to defend himself against an unlawful assault and to use all means which a reasonably prudent person would deem necessary under the circumstances as then appearing to him, acting without fault or carelessness in arriving at such conclusion to protect himself against such unlawful assault, if any was committed upoii him by Marvin ' Walker.”
We have frequently held that it is not error for a trial court to refuse a requested instruction where the declaration of law contained therein is given to the jury in other instructions. Hicks v. State, 193 Ark. 46, 97 S. W. 2d 900; Denton v. State, 189 Ark. 284, 71 S. W. 2d 197; Hannah v. State, 183 Ark. 810, 38 S. W. 2d 1090; Wallin v. State, 210 Ark. 616, 197 S. W. 2d 26.
Numerous other instructions, in which the necessary-elements of the offenses charged in the information were properly explained, and in which the law of self-defense was correctly set forth, were given to the jury. The instructions, taken as a whole, fairly and fully presented the principles of law applicable.
It is not urged by appéllant that the evidence was not sufficient to sustain the verdict. However, we have carefully reviewed the testimony and find that it abundantly supports the jury’s finding.
No error appearing in the record, the judgment of the lower court is affirmed. | [
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Robins,-J.
Petitioners, certain citizens of the incorporated town of Cammack Village, in Pulaski county, Arkansas, ask us to grant a writ of prohibition against the respondent, judge of the third division of the Pulaski Circuit Court, commanding him not to proceed further with a certain suit instituted in said court (No. 34203) by John Corny'n as plaintiff against petitioners and others as defendants, in which Cornyn seeks to contest a special election held in Cammack Village on November 19, 1946, on the question of annexation of Cammack Village to the city of Little Rock.
On October 3, 1946, there was filed with the county clerk of Pulaski county a petition signed by electors of Little Rock, and by electors of Cammack Village, asking for annexation of Cammack Village to Little Rock. The city council of Little Rock approved the petition and the county court made an order directing that an election be held to determine the will of the electors of each of the affectéd municipalities as to the proposed annexation.
The election was held on November 19, 1946. The returns, as canvassed by the county court, showed that in Little Rock 308 electors voted for the proposed annexation and 112 electors voted against it, and that in Cam-mack Village 141 electors voted for the annexation and 139 electors voted against it. Since the proposal received a majority of the votes cast thereon in each municipality the county court, on November 26,1946, entered an order declaring that the proposed annexation had received the necessary popular endorsement.
On the same day John Cornyn, an elector of Cam-mack Village, filed suit in the circuit court, naming as defendants the petitioners, the county judge of Pulaski county,*and the mayor of Little Rock, and certain other parties. In his complaint, Cornyn alleged that the petition for annexation was improperly filed with the county clerk prior to its presentation to the city council of Little Rock, that an insufficient number of electors signed this petition, that the officials holding said election were not properly named, and that seven of the 141 persons who voted in favor of said annexation in Cammack Village were not qualified electors. The names of these seven persons and the reasons for their alleged ineligibility as voters were set forth in the complaint, the prayer of which was for a judgment declaring that the proposal had failed to carry.
To this complaint there was filed a “demurrer and motion for finding of law, ’ ’ in which it was set forth that the court had no jurisdiction to hear the complaint because the General Assembly has not provided a method for contesting elections such as is involved here. A motion to dismiss, in which the propriety of the action as against the county judge and the mayor of Little Bock was challenged, was also filed.
The lower court overruled the demurrer and denied the motion to dismiss, but directed that the cause be held in abeyance so as to afford petitioners an opportunity to ask this court for a writ of prohibition. The instant proceeding ensued.
The statute involved in the case at bar is Act No. 318 -of the General Assembly of Arkansas of 1913, and appears (in part) in §§ 9504, 9505 and 9506 of Pope’s Digest as follows:
Ҥ. 9504. Method of consolidation. When the inhabitants of any city or incorporated town lying adjoining or contiguous to another smaller municipal corporation of any class in the same county (and municipal corporations separated by a river shall be deemed contiguous) shall desire that said city or incorporated town shall annex to it or consolidate with it said smaller municipal corporation, they may apply by petition in writing signed by the inhabitants so applying, to be in number not less than fifty qualified electors from each of said municipal corporations, to the city or town council of said larger municipal corporation, which petition shall describe the municipal corporations to be consolidated and shall also name the person or persons authorized to act in behalf of the petitioners in presenting said petition as hereinafter provided for. When such petition shall be presented to said council it shall be lawful for the said council to pass an ordinance in favor of said annexation and approving and ratifying said petition, in which event it shall be the duty of the person or persons named in said petition as authorized to act in behalf of the petitioners, to file said petition, together with a certified copy of said ordinance, in the office of the county clerk of the county in which said municipal corporations are situated.
“§ 9505. Special election. Upon presentation of said petition to the county court by said authorized person or persons, the county court shall at once order and call a special election in both of said municipal corporations on the question of said annexation, and shall give thirty days’ notice thereof by publication once a week in some newspaper with a bona fide circulation in said territory, and by notices posted in conspicuous places therein. The court shall appoint one judge and one clerk in each ward or other division of each municipal corporation, and the mayor and city council of each of said municipal corporations shall select two judges and one clerk for each of said wards or other divisions having the qualifications of electors, to act as judges and clerks of election within said respective wards. The county court shall fix all polling places at which the voting shall take place, and said election shall be held and conducted in each, corporation in the manner prescribed by law for holding elections for cities or incorporated towns so far as the same are applicable, expenses thereof to be paid by said larger city or incorporated town. . . . The returns of said elections shall be made to the county court, and the result thereof declared by said court.
* § 9506. Election contests. Any elector shall have the right to test the legality and fairness of said election and the declared results, in a proceeding before the circuit court and without being required to give bond for costs; provided, that no such contest shall interfere with the consolidation until finally decided. At any election held under this act all qualified electors, residents of both municipalities, shall be allowed to vote on the adoption or rejection of the proposed annexation or consolidation, and if a majority of the votes cast in each of said respective municipalities, considered as a separate and distinct unit, and without reference to the vote cast in the other thereof, shall be in favor of consolidation or annexation, then said county court shall declare by an appropriate order said annexation or consolidation consummated, and upon the making of such order, the said smaller municipal corporation and the territory comprising it shall in law be deemed and be taken to be included and shall be a part of said larger municipal corporation; and the inhabitants thereof shall in all respects be citizens thereafter of said larger municipal corporation. If a majority of said votes of either municipal corporation shall be against annexation, then said city or incorporated town shall not be again permitted to attempt the consolidation within two years, thereafter. ’ ’
It is first argued by petitioners that the lower court was without jurisdiction to hear the complaint of Cornyn because the first sentence of § 9506, supra, is unconstitutional and void in that it failed to provide a “mode” for the contest as required by Art. XIX, § 24, of the Con-, stitution of Arkansas. '
A cardinal rule which courts must follow in dealing with legislative enactments is that all doubts as to the validity of the legislation must be resolved in favor of the Act under consideration, and it is the duty of the courts to give to the statute such a construction, if possible, as will enable the Act and all parts thereof to be effective. Wells, Fargo & Company’s Express v. Crawford County, 63 Ark. 576, 40 S. W. 710, 37 L. R. A. 371; Compton v. State, 102 Ark. 213, 143 S. W. 897.
Now it is obvious that the legislature, in enacting this statute, meant that any elector who conceived that the election had not been properly conducted might have the regularity of the election reviewed in the circuit court and relief there awarded from the result of illegal practices in the election, such as the counting of votes of those not qualified to vote. While the Act does not prescribe the form of pleadings or details of procedure, it may be assumed that the lawmakers intended that the contest proceeding would be adapted to existing procedure in the circuit court.
This provision authorizing a contest in the circuit court, as to the validity of an election of this kind, was written in practically the identical language, into the first statute on the subject, Act No. '86 of the General Assembly of 1903. It was carried forward, in almost the .same wording, in the subsequent revisions of the law and finally into the present statute. (See Act 154 of 1907, and also Act 318 of 1913.)
The failure of the G-eneral Assembly to include in the law a provision limiting the time in which such a contest should be instituted does not in itself render the statute invalid. The power of determining what period of limitation shall be applicable to a particular cause of action is an essentially nomothetic one. 34 Am. Jur. 14; Barnhardt v. Morrison, 178 N C. 563, 101 S. E. 218; Osborne v. Lindstrom, 9 N. D. 1, 81 N. W. 72, 46 L. R. A. 715, 81 Am. St. Rep. 516. It is not urged that by any unreasonable delay in instituting the contest there has arisen such an estoppel as would bar the action; in fact Cornyn filed his complaint on the same day that the county court declared the result of the election.
That the legislature has, during all these years, continued this same provision in force is strong proof of a firm legislative intent that a forum and a remedy be provided for any affected elector to contest the result of an election on a proposal to annex one municipality to another. We conclude that the legislative will to authorize the circuit court to act in cases of this kind ought not to be thwarted merely because the wording of the statute extending such authority might be said to be inept or incomplete in some particulars.
It is next urged by petitioners that the circuit court did not have original jurisdiction in this matter. The matter of extending the boundaries of Little Bock by annexing to it the smaller municipality was not one over which the county court had exclusive jurisdiction. City of Little Rock v. North Little Book, 72 Ark. 195, 79 S. W. 785. Nor is there anything in the constitution that forbids the legislature to authorize the circuit court to entertain a contest of this kind as an original proceeding. On the contrary, the circuit court is, under the constitution, the great reservoir of unassigned judicial power and it has original jurisdiction in all cases where jurisdiction is not expressly vested by law in some other tribunal.
Chief Justice E-nglish, in the case of State v. Devers, 34 Ark. 188, said: “The constitution prescribes, limits and defines, with more or less accuracy, the jurisdiction to be exercised by all of the courts except the circuit courts, and instead of attempting to define their jurisdiction (other than appellate) leaves to them the great residuum of civil and criminal jurisdiction not distributed exclusively to other courts.”
Chief Justice Qocitrill thus expressed the rule in the case of Whitesides v. Kershaw, 44 Ark. 377: “All jurisdiction was parceled out and distributed by the Constitution, and the jurisdiction not expressly granted to some other court, or authorized to be granted, is reserved to the circuit courts. ’ ’
In the case of Payne v. Rittman, 66 Ark. 201, 49 S. W. 814, a claimant to the office of city marshal filed a suit partaking both of the nature of a quo warranto proceeding to oust the occupant of that office and also of the nature of an election contest to- question the correctness of the election returns under which the 'occupant claimed the office. There was no 'statutory provision giving authority to the circuit court to hear a contest of an election for that office. In sustaining the jurisdiction of the circuit court in that case this court said: “The defendant interposed his demurrer also to the second paragraph of the complaint, which calls in question the jurisdiction of the circuit court to try a contested election. The plaintiff, on the other hand, cohtends that, no other tribunal having been named by law as having jurisdiction in contests for the office, it follows that the circuit court has such jurisdiction inherently, under the 11th section of article 7 of the constitution, .which reads ‘as follows: ‘The circuit courts shall have jurisdiction in all civil and criminal cases, the exclusive jurisdiction of which may not be vested in some other court provided for by this constitution. ’ It is said by this court in Heilman v. Martin, 2 Ark. 158, that ‘a plea to the jurisdiction of the circuit court must show that there is some other court having jurisdiction.’ And now it should appear, not only that there is some other court having jurisdiction, but exclusive jurisdiction. State v. Devers, 34 Ark. 188.” Like holdings are found in Whittaker v. Watson, 68 Ark. 555, 60 S. W. 652, and in Sumpter v. Duffie, 80 Ark. 369, 97 S. W. 435.
"While the statute authorized the county court to canvass the returns, it did not provide that one who would question these returns must appeal from the finding of the county court. The circuit court not only has appellate jurisdiction over the county court, but is given by the constitution (Art. VII, § 14) “a superintending control” over such tribunals; and this superintending control is the exercise of original and not appellate jurisdiction. Anthony, Ex parte, 5 Ark. 358; Levy v. Lychinski, 8 Ark. 113.
So the legislature did not create an inharmonious or unworkable scheme of procedure when it empowered the county court to canvass the returns of the election, and, at the same time, authorized the circuit court, with its constitutional power to review action of'lower tribunals, to adjudicate a contest of the election in an original proceeding.
It is finally contended by petitioners that even if the circuit court should be permitted to hear the contest it should be required to eliminate from the complaint, as not germane to such a proceeding, those portions relating to the insufficiency of petitions for the election and of notice thereof. The complaint, with its allegation that enough unqualified voters cast their ballots for the proposal to change the result, stated a good cause of action within the jurisdiction of the circuit court. Since this is so, prohibition does not lie. Russell v. Jacoway, 33 Ark. 191; Macon v. LeCroy, 174 Ark. 228, 295 S. W. 31; Bassett v. Bourland, 175 Ark. 271, 299 S. W. 13; Schley v. Dodge, 206 Ark. 1151, 178 S. W. 2d 851. It is unnecessary, therefore, for us to consider the appropriateness of other allegations in the complaint, as they may never become essential to a decision of the controversy.
The writ of prohibition is denied. | [
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Minor W. Mill wee, Justice.
This is an action by appellee, Howard Knox, against appellants, James Boyles and wife, to recover a real estate broker’s commission alleged to be due appellee for his services in finding a purchaser for appellants’ tourist court located in Harrison, Arkansas.
Appellants listed the property with appellee and Tom Brown, another broker, jointly, in July, 1945, with the understanding that the two brokers would share a 5% commission equally if a buyer were found by either of them. Appellants placed a price of $24,000 on the property and agreed to extend credit for a part of the purchase price if the buyer was unable to pay all cash. Through the efforts of appellee, Herman W. Bush of Lubbock, Texas, became interested in purchasing the tourist court. Appellee introduced Bush to appellants and the property was inspected. Bush made an offer to purchase on the basis of a cash payment of $8,000 with the balance of $16,000 payable according to a definite schedule of monthly payments. Appellee apprised appellants of this offer and conducted further negotiations between the parties which culminated in the execution of the following agreement:
“OFFER AND ACCEPTANCE
Aug 15 1945
To Howard Knox Agent
You are hereby authorized to offer for my account the sum of
Two Hundred Dollars
for the following described property: City View Gamp consisting of 15 cabins <$> equip and 4 Boom House unfurnished Balance of down payment in 30 days
This amount is to be paid in the following manner:
Cash or trade as per statement below down $ 8,000.00
Loan to be assumed or placed for my account
Balance payable
$150.00 per month summer $16,000.00
100.00 per month winter $.......................
Total Interest at 5% $24,000.00
TRADE OR OTHER SPECIAL CONDITIONS
May June July Aug Sept Oct
summer months
Nov Dec Jan Feb March April
winter months
GENERAL CONDITIONS
It is understood that the owner or owners shall furnish complete abstract showing good title, or policies of title insurance, pay all taxes now due or delinquent, and make conveyance to me or my order by warranty deed, date of which shall fix time for dating of notes, adjustment of rents, interest and insurance.
Possession given Possession sept 15
Attached hereto is check for the sum of $200.00 to become.part of payment on acceptance of this offer and if for any reason the offer is finally rejected said sum is to be returned without expense to me. This offer is to hold good if accepted within at once days from date.
Signature Herman W. Bush
Phone 29969 Address Lubboclc Texas
THE ABOVE OFFER IS HEREBY ACCEPTED
this 15 day of Aug 1945. We agree to pay a broker’s commission of $1200.00.
Jas. Boyles
Fleetie D. Boyles
Owners.”
The above instrument was prepared by appellee upon a printed form shown to have been in general use by real estate brokers in that locality. We have italicized that portion of the agreement which was written in by the parties. After execution of the agreement, Bush returned to his home in Texas for the purpose of making arrangements for the balance of the cash payment of $8,000. Several days later he returned to Harrison and according to his testimony, was ready, willing and able to complete the down payment of $8,000 and execute a mortgage to secure payment of the balance of the purchase price under the written agreement.
In the meantime an “escrow contract” was prepared at the suggestion of appellants providing for payments as set out in the agreement of August 15,1945. This contract provided that a deed to Bush be placed in escrow to be delivered upon full payment of the purchase price; that default in any payment of principal or interest for 90 days should result in a termination of the contract, and all sums previously paid should be considered as rentals and forfeited as liquidated damages for breach of the contract. The contract also prohibited Bush from transferring or selling his interest in the property until the unpaid indebtedness had been reduced to $8,000. Bush had the proposed escrow contract examined by a competent lawyer and declined to accept those provisions relating to forfeiture and limitation upon Bush’s right to transfer his equity in the property.
Bush also had a mortgage drafted providing for payments according to the schedule set out in the agreement of August 15, which he offered to execute as security for the unpaid balance. Appellants refused to accept a mort gage or any arrangement to - secure payment of the $16,000 balance other than that provided in the escrow contract. Appellee refunded the $200 earnest payment made by Bush, who refused to accept the escrow arrangement. Appellee then brought this action for recovery of a broker’s commission of 5% in the sum of $1,200.
/The issues were tried before a jury resulting in a verdict and judgment in favor of appellee for $600. Both parties have appealed from the judgment.
The first contention of appellants for reversal is that the evidence is insufficient to sustain the verdict because the written agreement between appellants and Bush of August 15, 1945, did not constitute an enforceable contract. It is argued that the agreement is so indefinite and incomplete that an action for specific performance of its terms could not be sustained. Appellants cite a number of cases involving actions for specific performance of contracts for the sale of lands and insist that the agreement of August 15, 1945, must have been sufficient to sustain such an action before appellee is entitled to recover his commission. While the agreement between appellants and Bush may not have been skillfully drafted, it fixes the sale price at $24,000 and provides for a cash payment of $8,000 to be made in 30 days. It also provides a definite schedule of monthly payments of $150 for six months of each year and $100 for the other six months of the year to discharge the unpaid balance of $16,000 and interest thereon at 5 per cent. Under § ¿398, Pope’s Digest, the specification of “interest at 5% ” in the agreement would require calculation of interest at the rate of 5 per cent, “per annum.” It is true that the agreement did not specify the method by which payment of the unpaid balance was to be secured. According to the testimony on behalf of appellee, it was the insistence of appellants that payment of the unpaid balance could be secured by the method specified in the- proposed escrow arrangement, and in no other way, that caused the sale to fall through.
However, if it be conceded that the agreement of August 15th was not sufficiently definite in its terms to sustain an action for specific performance, this would not preclude appellee from recovering a commission, if he, in fact, produced a buyer who was ready, willing and able to take the property on terms which were satisfactory to appellants at the time the agreement was made.
In Dillinger v. Lee, 158 Ark. 374, 250 S. W. 332, it was the contention of appellant, as here, that his contract with the purchaser, Haskins, did not constitute an enforceable contract. Chief Justice McCulloch, speaking for the court in that case, said: ‘ ‘ Conceding that no enforceable contract was entered into between appellant and Haskins, still this does not affect the right of appellees to a commission, for they had complied with their part of the contract by producing a bargainer ready, willing and able to take the property on terms which were satisfactory to appellant. In other words, appellant’s contract with appellees was not that they must sell or exchange the land in order to earn a commission, but that they should have a commission for finding a purchaser or bargainer who was ready, willing and able to take the property on the specific terms. ”
In Moore v. Irwin, 89 Ark. 289, 116 S. W. 662, 20 L. R. A., N. S., 1168, 131 Am. St. Rep. 97, this court said: ‘ ‘ The business of a real estate broker or agent is only to find a purchaser, and the settled rule as stated by the courts is that, in the absence of an express contract between the broker and his principal, the implication generally is that the broker becomes entitled to the usual commission whenever he brings to his principal a party who is able and willing to take the property and enter into a valid contract upon the terms then named by the principal, although the particulars may be arranged and the matter negotiated and completed between the principal and purchaser directly.” In Poston v. Hall, 97 Ark. 23, 132 S. S. 1001, the court said: “Where a real estate broker produces a purchaser who is ready, willing and able to purchase the property upon the terms under which the agent is authorized to negotiate the sale, and the owner refuses to convey, the agent is entitled to his commission.” See, also, Reeder v. Epps, 112 Ark. 566, 166 S. W. 747; Lasker-Morris Bank & Trust Co. v. Jones, 131 Ark. 576, 199 S. W. 900; Emerson v. E. A. Strout Farm Agency, 161 Ark. 378, 256 S. W. 61.
In Branch v. Moore, 84 Ark. 462, 105 S. W. 1178, 120 Am. St. Rep. 78, this court held (headnote 3): “In an action by a broker to recover compensation for effecting a sale of defendant’s land, it was no defense that the land constituted defendant’s homestead, and that he could not lawfully sell the land without his wife’s .consent, as plaintiff was not seeking to enforce a contract to sell land, but to recover compensation for services rendered.”
In the case at bar appellee was not seeking to enforce the contract to sell the tourist court, but was asking compensation for his services. The controlling question for determination by the jury was whether appellee produced a purchaser who was ready, willing and able to buy the property on terms which were satisfactory to appellants at the time of their agreement with Bush. This question was presented to the jury under conflicting evidence. In testing the legal sufficiency of the testimony to sustain the verdict on this issue, we must view it in the light most favorable to appellee. Appellants testified that the provisions of the proposed escrow contract were discussed and agreed upon prior to, and contemporaneously with, the agreement of August 15,1945, but they were unable to explain why these provisions were not incorporated in that agreement. Testimony on behalf of appellee was to the effect that the unpaid balance was to be secured by a mortgage and that the escrow arrangement was an afterthought on the part of appellants and insisted upon in order to prevent completion of the sale under the agreement previously made. In this connection there was testimony that appellants found a cash buyer for their property after their agreement with Bush and sought to discourage Bush from going ahead with the sale. Bush de nied that any mention was made to him of the escrow arrangement until several days after the agreement of August 15, 1945.
Under this evidence the jury could have reasonably concluded that completion of the sale was prevented through the fault of appellants in insisting upon terms which had never been previously proposed to the purchaser. If appellants considered the provisions of the escrow method of security for payment of the unpaid balance indispensable to a sale, they should have incorporated these provisions in the written agreement with the purchaser. The early case of Beebe v. Ranger, 35 N. Y. Super. Ct. (3 Jones & Spence) 452, involved facts similar to those in the instant case. There an owner of real estate placed it in the hands of brokers for sale stating his terms to be a certain sum and a certain proportion payable in cash. The brokers procured a purchaser who agreed to those terms. When the contract of sale was being prepared the seller insisted on the insertion-of a forfeiture clause therein which had not been previously proposed to the purchaser, and the sale, on account thereof, fell through. In holding the brokers entitled to a commission the court said: “If the defendant had wished to protect himself from liability for the services rendered by the plaintiffs, he should have stated as part of his terms of sale, when asked what they were, that he would require this forfeiture clause to be inserted in the contract of sale.
“From the willingness of the purchaser to complete the contract, in case the forfeiture clause was not insisted on, and his finding the contract satisfactory in all other respects, there is not much force in the seller’s objection, that their minds had not met on the interest and insurance clauses, or the kind of mortgage to be given.”
We, therefore, conclude that the question whether appellee earned his commission by producing a purchaser who was ready, able and willing to buy the tourist court upon the terms authorized by appellants has been settled by the verdict which is supported by substantial evidence.
Appellants also contend that the trial court erred in giving certain instructions requested by appellee. We deem is unnecessary to set out these instructions, but have carefully examined them and find that the declarations of law contained therein have been approved in those cases which we have heretofore discussed. Other cases to the same effect are collected and discussed in Nelson v. Stolz, 197 Ark. 1053, 127 S. W. 2d 138. It is insisted that these instructions conflicted with certain instructions given at the request of appellants and were misleading to the jury. It is sufficient to say that appellants did not raise this objection at the trial.
On his cross appeal, appellee contends that the trial court erred in refusing to direct a verdict in his favor for $1,200. Under the joint listing of the property with appellee and Tom Brown, another broker, the two agents were to share the commission equally in the event of a sale by either broker. Brown testified that he declined to join in the suit with appellee for recovery of his (Brown’s) part of the commission. Under these circumstances we think the jury was warranted in concluding that Brown had waived the right to recover his share of the commission and correctly rendered a verdict for only that part which appellee was claiming. -
Finding no error, the judgment is affirmed on both the direct and cross appeals. | [
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Minor W. Millwee, Justice.
This is an appeal from a decree of the Baxter Chancery Court vacating a final decree rendered in appellant’s favor at a former term of court.
«On November 1, 1945, appellee, Rena Young, instituted suit against appellant,- W. H. Raymond, to quiet title to a 40 acre tract of land and to cancel a clerk’s tax deed issued to appellant in 1944 under a forfeiture and sale of the tract for the taxes of 1941. Appellant filed a general demurrer and answer denying the allegations of the complaint and claiming ownership of the land in controversy by virtue of his tax deed.
The cause was heard before Hon. J. M. Shinn, the regular chancellor of the 11th Chancery District, on January 21,1946, which was an adjourned day of the October, 1945, term of court. Appellee offered the testimony of two witnesses in support of the allegations of her complaint. Appellant, relying upon the failure of appellee to establish the invalidity of the tax deed, declined to offer testimony. After argument of counsel, the chancellor took the case under advisement for a decision in vacation with the privilege of counsel to submit written briefs in support of their respective contentions.
On July 23, 1946, an adjourned day of the April, 1946, term of court, Hon. Garner Fraser, Judge of the 14th circuit, presiding on exchange with the chancellor of the 11th Chancery District, entered a decree dismissing the complaint of appellee for want of equity. This decree recites that the cause had been previously argued and submitted for decision upon the pleadings and evidence taken on January 21, 1946. The following findings are embraced in the decree: “That the evidence introduced on behalf of the plaintiff, Rena Young, fails to establish legal or equitable grounds for voiding the tax deed of the defendant, W. H. Raymond, covering the SW]4 of the NE14 of section 3, township 17 north, range 12 west, in Baxter county, Arkansas. The Court further finds that the plaintiff is not entitled to a transfer of this cause to the Circuit Court because the evidence had been concluded and the case argued and submitted to the Court for a decision prior to the request for a transfer and further that the plaintiff is not entitled at this time to a non-suit of the cause for the same reason. ’ ’
No appeal was prosecuted from the decree of July 23, 1946, but on a subsequent date, which is undisclosed by the record, appellee filed a motion to vacate said decree. The motion alleged that about three months after the trial on January 21,1945, former counsel for appellee forwarded a motion and brief to the regular chancellor by mail requesting the court to grant appellee a non-suit; that about 30 days later one of her present counsel talked with the chancellor by long distance telephone and requested that a non-suit be granted and was advised by the chancellor that court would reconvene in Baxter county on July 15,1946; that present counsel then stated that his duties as prosecuting attorney required his presence in Pocahontas on that date; that appellee and her counsel had no notice that court would be held on July 23, 1946, but thought the motion for non-suit had been granted on July 15, 1946, as had been previously requested. The prayer of the motion was that the decree of July 23, 1946, be vacated, and that appellee’s motion for non-suit be granted. The motion was unverified and appellee did not offer testimony to support it.
The motion to vacate was sustained by the regular chancellor on October 21,1946, which was the first day of the October, 1946, term of court and the cause was set for hearing in January, 1947. This appeal is from the order of October 21, 1946, vacating the decree of July 23, 1946.
We first consider the contention of appellee that the decree of October 21,1946, vacating a decree rendered at a former temp of court is not a final and appealable order. It is insisted that the decree did not dispose of the issues since the case was set down for a new hearing, and that the appeal is, therefore, premature. This court held to the contrary in Ayers v. Anderson-Tully Co., 89 Ark. 160, 116 S. W. 199. It was there said: “The proceeding, under the statute, to have a judgment set aside which was rendered at a former term is equivalent to an independent action instituted for that purpose, and the order of the court either vacating the judgment or refusing to do so is final in the sense that it determines the rights of the parties under the judgment; even though, after vacating the judgment, it leaves the original action still pending for further proceedings. ’ ’ See, also, Knights Honor of the World v. Epps, 123 Ark. 371, 185 S. W. 470; Robinson v. Citizens Bank, 135 Ark. 308, 204 S. W. 615. The subsequent decree vacating the former decree in the instant case was final and appealable even though the chancellor failed to grant appellee’s prayer for a non-suit and left the cause pending for further hearing.
We think it is clear from the recitals of the decree of July 23, 1946, that the chancellor on exchange had before him the evidence upon which the cause was heard by the regular chancellor and the motion for a non-suit and brief which had been mailed to the chancellor in vacation.. According to the allegations of the motion to vacate, appellee’s motion for non-suit was not made until over three months after the cause had been heard and taken under submission for final decree in vacation. Under the first subdivision of § 1485' of Pope’s Digest, it is within the discretion of the court to permit a plaintiff to take a non-suit where a case has been finally submitted to the chancellor for decision, and this court will not reverse unless it appears that the court has abused its discretion. St. L. S. W. Ry. Co. v. White Sewing Machine Co., 69 Ark. 431, 64 S. W. 96; Watts v. Watts, 179 Ark. 367, 15 S. W. 2d 997. Appellee contends that the case was not finally submitted until the written briefs had been filed and relies on the case of Carpenter v. Dressler, 76 Ark. 400, 89 S. W. 89, where the motion for non-suit was made during the course of the oral argument before the chancellor. It was held that the court abused its discretion in refusing to grant a non-suit under facts entirely different from those involved in the case at bar. "We think there was no abuse of discretion on the part of the chancellor on exchange in refusing appellee’s request for a non-suit under the circumstances of the instant case.'
The court lost control over the decree of Jnly 23, 1946, with the ending of the April, 1946, term of court and was without authority to vacate that decree at a subsequent term except in the manner, and upon the grounds, specified in §§ 8246 and 8248, Pope’s Digest, or by bill of review under the chancery practice. Turner v. Vaughn, 33 Ark. 454; Mitchell v. Fowler, 181 Ark. 857, 28 S. W. 2d 66. Section 8248 provides that the proceeding to vacate or modify the judgment or order on the grounds mentioned in subdivisions 4-8 of § 8246 shall be by a verified complaint setting forth the judgment or order and the grounds to vacate or modify it. The requirement that the complaint be verified has been held to be jurisdictional and one that must be complied with. Merriott v. Kilgore, 200 Ark. 394, 139 S. W. 2d 387; Pattillo v. Toler, et al., 210 Ark. 231, 196 S. W. 2d 224. However, if we treat that requirement as one that could be waived, the allegations of the motion to vacate do not set up any of the grounds specified in the statute. Appellee did allege that she and her counsel “thought” that a non-suit would be entered on July 15,1946, upon the request previously made, but sufficient facts were not alleged to demonstrate that they wore warranted in reaching this conclusion. When counsel for appellee made the oral request for a non-suit in vacation, the chancellor merely advised counsel the date court would next he in session and in no manner indicated that the motion would be granted.
It follows that the chancellor erred in granting appellee’s motion to Vacate the decree rendered in favor of appellant on July 23, 1946. The decree from which this appeal comes is, therefore, reversed, and the cause will be remanded with directions to dismiss appellee’s motion to vacate the decree of July 23,1946, and to reinstate said decree dismissing the complaint of appellee for want of equity, and for such further proceedings as may be necessary in accordance with the principles of equity and not inconsistent with this opinion. | [
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Ed. F. McFaddin, Justice.
This appeal concerns the stock law in Prairie county.
Appellants, claiming to be a majority of the qualified electors residing in Des Arc township, Prairie county, Arkansas, filed their petition in the county court, on December 3, 1945, to have their township declared exempt from the general stock law of that county. They claimed that compliance with § 346, Pope’-s Digest, gave them the right to have such exemption. Appellee appeared as a remonstrant against the petition. The county court made the exemption order sought by appellants; and appellee appealed to the circuit court, where the county court order was reversed, and the appellants’ petition was dismissed. This appeal, here, challenges the judgment of the circuit court; and presents for our consideration three points: (1) Judicial notice of county stock laws; (2) the validity of the 1944 stock law of Prairie county; and (3) the efficacy of § 346, Pope’s Digest, to appellants’ situation. We consider these points.
I. Judicial Notice of County Stock Laws. The circuit court, without requiring any evidence, took judicial notice of the fact that Prairie county had enacted a county-wide stock law at the general electipn in November, 1944, and that the voters of the county in that election were acting under the powers and provisions of Act 4 of 1935 and Amendment No. YII to the Constitution (which amendment was adopted November 2, 1920, and declared adopted by the special Supreme Court in Brickhouse v. Hill, 167 Ark. 513, 268 S. W. 865). In thus taking judicial notice of the county stock law, the circuit court was correctly applying and following the holdings of this court in the cases of Skiles v. State, 150 Ark. 300, 234 S. W. 721; Crumbley v. Guthrie, 207 Ark. 875, 183 S. W. 2d 47; and Hughes v. State, 209 Ark. 125, 189 S. W. 2d 713. In Crumbley v. Guthrie, we said:
“In the decree the Chancellor said: ‘Prairie Township ... is part of a stock law district wherein it is unlawful for stock to run at large.’ There was no proof to support this finding. On rehearing in Skiles v. State, 150 Ark. 300, 234 S. W. 721, there was answer to the appellant’s contention that no proof had been introduced showing that a stock law enacted by the Legislature had been put into operation by vote of the people, as prescribed by that statute. The Court, speaking through Chief Justice McCulloch, concluded that adoption of the terms of a statute 'by election ‘ . . . is a matter of which the Court should take notice judicially. It is a law in operation in a locality which was within the jurisdiction of the Court, and the Court should take cognizance of it without the necessity of it being brought to the attention of the Court by proof.’ We think the defendant below had a right to rely upon this opinion and to rest the matter on allegation, in the absence of proof that the law was not adopted.”
To aid a court in applying judicial notice, it is proper ‘ to call attention to the place where the fact or law may be found which is to be judicially noticed — as we said in J. R. Watkins Med. Co. v. Johnson, 129 Ark. 384, 196 S. W. 465:
“Being required to take notice of those laws, it is our duty to pursue inquiries sufficient to make that knowledge real as far as possible.”
In 20 Am. Jur. 52, in speaking of how the court may actually know the matters of judicial notice, this is said:
“If they are proper subjects of judicial knowledge, the judge may inform himself in any way which may seem best at his discretion, and act accordingly. ’ ’
To aid this court in actual knowledge of the matter óf judicial notice, the appellee has filed here a duly certified copy of the order of the county court of Prairie county of November 14, 1944, declaring the result of the election on the county-initiated stock law; and the order has the full text of the law, and the vote thereon. Section 13301, Pope’s Digest, (being § 7 of Act 4 of 1935) requires such a record to be kept by the county clerk. The authenticity of this certified copy is not challenged by appellants, so we take, it to be correct. Thus, we know actually the matter of which we take judicial notice; and we know that the voters of Prairie county by vote of 1,091 to 433 adopted, at the general election on November 7, 1944, a county-wide stock law which provided (in part) :
“All of Prairie county, Arkansas, is hereby made a livestock restricting area, and it shall be unlawful .for horses, mules, ... cattle ... or any other animals of like kind to run at large in said county; . . . ”
Neither the sufficiency of the vote nor the legality of the procedure leading up to the election is here attacked; so we 'take the measure as duly adopted.
II. The Validity of the 1944 Stock Law of Prairie County. The appellants claim that the 1944 stock law of Prairie county applied to the entire county, and that only part of the county had a stock law prior to 1944; and therefore — appellants claim — the county-initiated act was an attempt to amend previous laws, and consequently was void under that provision of Constitutional Amendment No. VII, Which reads:
“ . . . but no local legislation shall be enacted contrary to the Constitution or any general law of the State, ...”
Our holding in the case of Smith v. Plant, 179 Ark. 1024, 19 S. W. 2d 1022 is a complete answer to appellants’ contention in this regard. Appellants admit that, prior to the 1944 general election, only the south part of Prairie county had a stock law. This admission, even if we did not know that fact judicially, makes the facts in the case at bar ‘ ‘ on all fours ’ ’ with the facts in Smith v. Plant, supra, where — in denying the same contention as is here made — we said:
“But, since the electors of White county have not exercised the option of putting into effect a general law in White county prohibiting livestock from running at large, we are of the opinion that the provisions of Initiative Act No. 1 of White county are not in conflict with any general law in force and effect in White county.”
We, therefore, conclude that the county-wide initiated stock law of Prairie county of 1944 is constitutional, as against the attack here made; and we proceed to determine whether appellants’ petition entitled them to the relief prayed against the county-wide stock law.
III. The Efficacy of Section 346 Pope’s Digest to Appellants’ Situation. This section of Pope’s Digest is § 2 of Act 258 of 1919, which act amended Act 156 of 1915 (see § 335, et seq., Pope’s Digest, where some of these sections are codified). The 1915 act allowed 25 per cent of the qualified electors of three or more townships in a county to petition for an election to determine whether the stock law would be in effect in such townships. The 1919' act (by § 2 thereof, which is now § 346, Pope’s Digest) promulgated a method whereby one township could secure exemption from the stock law voted by the other townships.
It will thus be seen that § 346, Pope’s Digest, applies only to a situation where the stock law was put into effect in a county by the procedure set forth in Act 156 of 1915 as amended by Act 258 of 1919. The stock law of Prairie county as voted in 1944 did not go into effect by the method set forth in these sections, but became effective by the method outlined in Amendment No. VII to the Constitution which specifically authorized county-initiated acts.
We have examined the county-initiated stock law of Prairie county as adopted at the 1944 general election, and find no provision in that law which authorizes any proceeding — such as is here attempted — to exempt a township from the county-wide law; and since § 346, Pope’s Digest, does not apply to a county-initiated act, it follows that the appellants’ petition was improperly brought and was therefore correctly dismissed by the circuit court.
Affirmed.
The appellants’ brief says: “Many years ago a law was enacted which made a great majority of the southern district of Prairie county into- a stock law. Thereafter, other townships of the county, under the general law existing, availed themselves of the right, and by majority, either through petition or election, created stock law districts in much more of the county until the point had been reached where probably more than half of Prairie county was in a stock law.” | [
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Ed. F. McFaddin, Justice.
The question for determination on this appeal is: was there sufficient evidence introduced to take the case to the jury, on the issue of whether the school district had adequate cause to discharge the schoolteacher?
FACTS
On September 17, 1945, the appellee, Alread School District, entered into a written contract with the appellant, Miss Crownover, whereby the district employed her to teach school for eight months at a salary of $100 per month. The contract was on the regular form used by school districts in this state. Miss Crownover com meneed teaching the same day the contract was signed, and continued until January 11, 1946, when she received from the school board a written notice of discharge. She was paid for the four months she had taught, but was denied payment for the remaining four months. She filed this action against the school district for $400 as the balance claimed by her under the contract. The school district defended on the ground that it had the right to discharge Miss Crownover for adequate cause, which cause will be discussed herein. The case was tried to a jury under instructions admitted to be correct; and there was a verdict and judgment for the school district. For a reversal, Miss Crownover brings this appeal, and urges here only one assignment of error, to-wit, that the trial -court erred in refusing to direct a verdict in her favor.
OPINION
At the outset, we state two general rules of law applicable to this appeal:
(1) "When the appellant claims that the trial court erred in refusing an instructed verdict for appellant, then on appeal this court must give the evidence for the appellee its highest probative value. Benefit Assn. v. McKamey, 205 Ark. 949, 171 S. W. 2d 937, and cases there cited. See, also, Ross v. Alexander, 205 Ark. 663, 169 S. W. 2d 863.
(2) A teacher, although employed for a fixed term, may be discharged by the school board at any time for incompetency, negligence in the discharge of duties, or willful refusal to obey lawful and proper orders. 47 Am. Juris. 387, “Schools,” § 126. Every contract made with a teacher includes the implied power of the board to dismiss for adequate cause. 47 Am. Juris. 386, “Schools,” § 125. Our own cases have recognized and applied the rules stated in this paragraph. Some of our cases are: School District v. Maury, 53 Ark. 471, 14 S. W. 669; Argenta School District v. Strickland, 152 Ark. 215, 238 S. W. 9; Ottinger v. School District, 157 Ark. 82, 247 S. W. 789; Gardner v. North Little Rock School District, 161 Ark. 466, 257 S. W. 73; Berry v. Arnold School District, 199 Ark. 1118, 137 S. W. 2d 256. See, also, West’s Arkansas Digest, “Schools and School Districts,” § 141; and see annotation in 49 A. L. R. 482, where cases are collected on the right of a school board to discharge a teacher at any time for incompetency or negligence in the discharge of duties.
With these recognized principles of law to guide us, we revert to the question: Was there sufficient evidence introduced to take the case to the jury on the issue of whether the school board had adequate cause to discharge the teacher! Disinterested witnesses testified as to Miss Crownover’s quick temper and sharp language. The school principal detailed a series of incidents going to show that Miss Crownover was unable to maintain discipline in her room, and was negligent in the discharge of her duties. The school principal téstified that Miss Crownover had (a) refused to obey, the orders of the school principal; (b) insulted him, and otherwise shown him disrespect in the presence of the pupils; (c) failed to keep order in her schoolroom; (d) humiliated the pupils; and (e) engaged in a snowball fight during school hours. In addition, it was testified by the president of the school board that he personally visited her classroom, and observed the complete lack of discipline and order there existing. The secretary of the school board testified that on January 10,1946, when the principal attempted to resign because of his inability to have Miss Crownover obey the rules of the principal, the secretary went to Miss Crownover and asked her to meet with the directors and school principal to see if the existing differences could be settled; and the secretary testified that Miss Crown-over absolutely refused to meet with the directors and school principal.
From the evidence already mentioned, it is our opinion — in the light of the cases and authorities cited — that a fact question was made for the jury. Of course, there was evidence offered by Miss Crownover that she was not at fault; but the weighing of the evidence is not for this appellate court. We emphasize that, in all of the evidence there is not the slightest indication or intimation that Miss Crownover was guilty of any act touching her character or integrity. This was her first effort as a schoolteacher; it is possible that she did not possess, at that time, the poise, patience, fortitude and equilibrium so essential to a teacher of children in. the seventh and eighth grades. Her experience at the Airead School District will undoubtedly tend to increase her efficiency, for experience is a good teacher. But under the record before us, there was sufficient evidence to carry the case to the jury, and so the judgment of the circuit court is in all things affirmed. | [
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Ed F. MoFaddin, Justice.
Mr. Sam V. Bracy, Sr., executed his last will and testament on August 26, 1942. He departed this life on August’ 7, 1946, and his will was admitted to probate on August 27, 1946. Various interested parties filed this suit on January 11, 1947, seeking a construction of paragraph 11 of the will. All persons who could possibly take under any construction of the will were joined either as plaintiffs or defendants. The prayer of the complaint was:
“(a) That paragraph eleven of the will of Sam V., Bracy, Sr. be construed by this court; (b) that if it be found that a valid trust was created by said will, said trust be terminated, the property be sold, and the j>roceeds of sale be divided among the beneficiaries of the trust in proportion to their respective interests as determined by the court; (c) that if it be found that a valid trust was not created by the said will, title to said property be quieted in the owners thereof as determined by the court; (d) for all other relief to which the parties hereto may be entitled.”
After hearing the evidence, the chancery court found that paragraph 11 was “void as violating the rule against perpetuities ’ ’; and entered a decree reading:
‘ ‘ That paragraph eleven of the will of Sam V. Bracy, Sr., deceased, be and it is hereby declared to be void and of no effect. It is further ordered that the title to the above-described property be and it is hereby quieted in the heirs at law of Sam Y. Bracy, Sr., as follows: An undivided one-third interest in Sam V. Bracy, Jr., an undivided one-third interest in Mary Bracy Manning, an undivided one-sixth interest in Alfred M. Bracy, and an undivided one-sixth interest in Nancy Bracy.”
Appellants are parties who would take under paragraph 11 if it be valid either as a trust or as a fee simple devise. Appellees are those four heirs at law to whom the chancery court awarded the property. The will of Mr. Bracy (evidently prepared by himself without the aid of legal counsel) contains 16 numbered paragraphs. Para-, graph 1 directs payment of debts; paragraph 2 appoints executors; paragraphs 3-10, inclusive, and 13, 14 and 16 make various bequests and devises to (a) his son, Sam V. Bracy, Jr., (b) his daughter, Mary Bracy Manning, and (c) his two grandchildren, Nancy Bracy and Alfred M. Bracy, II (who are the children of testator’s deceased son, Alfred M. Bracy, I). There is no residuary clause in the Avill.
Paragraphs 3 and 14 each use this language in making the disposition: “It is my desire that . . .” (name of beneficiary) “. . . inherit . . .” Most of the other paragraphs use this language: “I direct that . . .” (name of beneficiary) “. . . inherit . . .”. We mention this to show that the language “it is my desire that- (beneficiary) inherit” is used in the will to constitute a devise; but the use of the word “de sire” without the word “inherit” does not appear as intended to constitute a devise.
Paragraph 11 of the will — which is the one here involved — reads:
“Eleventh, Now it is my desire that my own parental family and descendants inherit the ‘White Oaks Home’, twenty acres, my nieces and nephews and their children, the same to be used for reunion purposes or at times rental property. I desire that this property be kept in good condition and beautified with trees and flowers. I further desire that my nieces as listed below act as committee in charge of same.
“Gladys Cross, Chairman, and title in her name as trustee,
“Mrs. Helen Cockrill
“Miss Carolyn Baird
“The executive committee will cooperate with them.”
Appellees urge here — as they did in the chancery court — that this paragraph was an attempt to create a trust for the benefit of all the “parental family” of the testator (we shall subsequently notice the expression “parental family”), and that the attempted trust violates the rule against perpetuities; and therefore (they say) the entire paragraph is void and the 20 acres referred to in that paragraph descend to the appellees as the heirs at law, since there was no residuary clause; and they cite, inter alia, Bernstein v. Bramble, 81 Ark. 480, 99 S. W. 682, 8 L. R. A., N. S. 1028, 11 Ann. Cas. 343; Combs v. Combs, 172 Ark. 1073, 291 S. W. 818; First National Bank v. Marre, 183 Ark. 699, 38 S. W. 2d 14; Cockrill v. Armstrong, 31 Ark. 580; Thomason v. Phillips, 192 Ark. 107, 90 S. W. 2d 228; Moody v. Walker, 3 Ark. 147; American Law Institute’s Restatement of the Law of Trusts, §§ 24 and 32; Prof. Gray’s work, “The Rule Against Perpetuities,” Fourth-Ed., §§ -629, 202, 246, 214, 215, 373, 332.
Appellants offer a number of alternate suggestions for the construction of the will: one of which is that no trust was created, but only a fee simple devise to the “parental family,” and that any reference to a trust is merely precatory; another is that, if a trust was created, it can be terminated at any time, and thereupon the property would descend to all of the “parental family.” Appellants cite, inter alia, Union Trust Co. v. Madigan, 183 Ark. 358, 35 S. W. 2d 349; Combs v. Combs, supra; Ramseur v. Belding, 206 Ark. 415, 175 S. W. 2d 977; Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244; Martin v. Gray, 209 Ark. 841, 193 S. W. 2d 485; Thompson on Wills, §§ 174, 192, 194, 282, 296, 357; 69 C. J. “Wills,” §§ 1269, 1204, 1300, 3678, 1150, 1332, 3496, 1504, 1506, 1517, 1526, 1757, 1681, 1780, 1831, 1523; American Law Institute’s Bestatement of the Law of Property, § 375; 48 C. J. “Perpetuities,” § 90.
Undisputed evidence shows that it is impossible to keep the property for “reunion purposes” as referred to •in paragraph 11 of the will. Gladys Cross, Helen Cock-rill and Carolyn Baird are parties appellant, not only individually, but also as trustees, if there be a trust. We are therefore not required to decide whether the trust (if there be one) should be continued. The rule of cypres is not invoked. If appellants prevail, they want the property sold, and the proceeds divided. If appellees prevail, they will determine their own method of disposition.
In construing this will, certain rules must be remembered :
3. “ The paramount principle in the construction of wills is that the general intention of the testator, if not in contravention of public polmy or some rule of law, shall govern.” Union Trust Co. v. Madigan, supra.
2. ‘ ‘ That intent must be ascertained from the whole will taken together; and no part thereof to which meaning and operation can be given, consistent with the general intention of the testator, shall be rejected. Where the words of one part of a will are capable of a two-fold construction, that should be adopted which is most consistent with the intention of the testator, as ascértained by other portions of the will. And where the intention of the testator is incorrectly expressed, thé court will effectuate it by supplying the proper words.” Cox v. Britt, 22 Ark. 567, and Union Trust Co. v. Madigan, supra.
3. “Where the language used by the testator is doubtful in its meaning, rules of construction are invoked to enable the courts to arrive at the intention, and, in cases of ambiguous provisions, certain presumptions must be indulged.” Union Trust Co. v. Madigan, supra.
4. “The intention of the testator to dispose of his entire estate will be presumed, unless the language of the will shows to the contrary . . . This presumption, though not controlling, must always be taken into account when the language employed is so ambiguous as to require construction.” Id.
5. “Wills are liberally construed, and every legitimate conclusion is indulged in order to reach a just and equitable result. . . . and in cases of doubt the construction should be in favor of the first taker because it is against the policy of the law to tie up property . . . ” Id.
6. ‘ ‘Courts, in arriving at the true meaning and intent of the testator, incline against any construction of the will which would double portions to the partial exclusion of others equally meritorious.” Id.
7. ‘ ‘ Whether precatory words impose an imperative obligation on legatees, or are but the expression of a hope or recommendations, the carrying out of which is left to the discretion of such legatees, must now, according to'the weight of authority, be determined by the language actually used, the context, and the consideration of the will as a whole.” Wooldridge v. Gilman, 170 Ark. 163, 279 S. W. 20.
8. “When the expression which a testator uses is really ambiguous, and is fairly capable of two constructions, one of which would produce a legal result, and the other a result which would be bad for remoteness, it is a
fair presumption that the testator meant to create a legal rather than an illegal interest . . . and therefore the fact that a provision would he too remote, if construed in a certain way, is a reason for supposing that it was not intended to be construed in that way, which, although ir cannot avail against a clear form of wording, may well be held to govern when the expression is ambiguous.” Prof. Gray’s work, “The Rule Against Perpetuities,” 4th Ed., § 633.
"We do not lengthen this opinion by listing other rules and citing other cases. Counsel have cited us to no case where language exactly like that found in paragraph 11 has ever been construed; and a discussion of the reasons impelling 'our conclusions would serve no useful purpose. We reach these conclusions:
I. The property should be sold, and the proceeds divided per stirpes to the “parental family” of Mr. Sam Y. Bracy, Sr.
II. The “parental family,” as that expression is shown by the proof in this case, means that we consider the parents of Mr. Sam V. Bracy, Sr., as the stem of descent; and the proceeds of the property in paragraph 11 will be divided into nine equal parts and distributed per stirpes, one part each to the following: (1) heirs at law of Sam Y. Bracy, Sr.; (2) heirs at law of Mary Bracy Benson; (3) Anibel Bracy Hudson, or her heirs at law; (4) heirs at law of Adele Bracy Cross; (5) heirs at law of India Bracy Buchanan; (6) Eugene Daniel Bracy, or his heirs at law; (7) heirs at law of Clara Bracy Cross; (8) Junius T. Bracy, or his heirs at law; (9) heirs at law of W. F. Bracy. The persons who will take in each instance are to be determined as of the time of the distribution.
In reaching our conclusions we have examined numerous adjudicated cases and text writers, some of which are: In re Keegan’s Estate, 37 N. Y. S. 2d 368; Magill v. Magill, 317 Mass. 89, 56 N. E. 2d 892; annotation in 154 A: L. R. 1411, entitled “Who included in term ‘family’ in be quest or devise”; annotations entitled “Taking per stirpes or per capita under will” found in 16 A. L. R. 15, 31 A. L. R. 799, 78 A. L. R. 1385, and 126 A. L. R. 157; and annotation on “Precatory Trusts” in 49 A. L. R. 10; 70 A. L. R. 326; and 107 A. L. R. 896.
It follows that the decree of the chancery court is reversed, and the cause is remanded with directions to enter a decree, and proceed in keeping with this opinion. | [
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McHaney, Justice.
Appellant and his former wife were married in this State in 1938. A girl child, Juanita Elaine, was born to them in 1939. Appellant divorced his former wife by decree of a Florida court on February 2, 1943, the ground thereof being adultery, and the custody of their little girl was awarded to him. He was then and had been for some time serving in the IT. S. Navy. The former wife had left the baby with appellees, her stepfather and her mother who lived in Searcy county, and had gone to Key West, Florida, where appellant found her living in adultery with another man whom she later married. Appellant left the child with appellees and returned to his service in the Navy, sending her about $100 per month for her support. In July, 1944, appellant took the child to his own home, he having married again. In December, 1945, he established his home on a farm in Boone county where he is now living with his present wife, a child by her, and Juanita Elaine.
This action for the custody of Juanita Elaine was brought by his former wife. On May 10, 1946, the court entered a decree awarding its custody to appellant, its father, with the privilege of visitation on the part of the mother; that the grandparents be permitted to visit with said child and have it visit with them at reasonable times,' especially in the school vacation in the summer it should he permitted to visit in their home for as much as three weeks. In this decree is this clause: “All parties hereto are enjoined from removing said infant beyond the jurisdiction of this court without permission of the court.”
On October 31, 1946, appellees filed an intervention in the cause for the modification of said decree, praying that they be permitted to have the child visit in their home from Friday afternoon to Sunday afternoon one week end per month, at least one-half of the Christmas holidays and for the entire summer vacation. Appellant contested their right to this division of the custody of his child on the grounds that there was no change in conditions to justify same, and that as her father and in her best interests he ought to have the eclusive right to direct her social and educational life without interference from third persons.
After an extended hearing and on November 13,1946, the court granted appellees, interveners, the right to have the custody of said child in their home from Friday afternoon to Sunday afternoon the last week end of each month during the school term. From this order comes this appeal which was filed here February 6, 1947.
Thereafter, on April 21, 1947, appellant filed in the trial court a petition to modify the decree of November 13, 1946, in so far as it provides that said child visit with appellees during the last -v^eek end of each month and the former decree restraining him from removing said child from the jurisdiction of the court. He set up changed conditions, not necessary here to enumerate, which require him to remove to Farragut College and Technical Institute for a training course in forestry, to qualify him for a position with the Forestry Service of the U. S., available to him under the G. I. Bill of Rights, at government expense. It is an emergency situation that requires immediate acceptance. Provision is made for his family including the child here involved. The court declined to “pass upon said motion at the present time while the cause is nendina: on anneal in the Sunreme Courts that the motion should he taken under advisement until the cause is reached and determined by the Supreme Court. ’ ’ An appeal therefrom was allowed by the clerk of this court on April 30, 1947, and has been consolidated for consideration with the former appeal.
We think the court erred in modifying its decree of May 10,1946, wherein the exclusive custody of said child was given to its father, appellant. By that decree appellees were given all the right over said child to which they were entitled, to visit it and have it visit with them in their home at reasonable and convenient times.' There is no showing here that appellant is an incompetent or unfit person to have the exclusive custody of his own child. There is no showing that he is unable to provide for her physical, mental or moral training essential to her well being. On the contrary it is shown that he is living in a comfortable rural home, providing for her and his family the comforts and many of the conveniences of life, including the sending of her to school, church and Sunday school. He provided for her when she was living with appellees, while serving his country, to an extent far in excess of her needs.
As between the father and the grandparents, it was held, in Baker v. Durham, 95 Ark. 355, 129 S. W. 89, that “by statute, as well as at common law, the father, unless incompetent or unfit, is the natural guardian of his minor children, and entitled to have their custody and the care of their education,” headnote 1. See, also, Verser v. Ford, 37 Ark. 27; Herbert v. Herbert, 176 Ark. 858, 4 S. W. 2d 513. Appellant is, therefore, entitled to the unrestricted custody of his child Juanita Elaine and the trial court erred in modifying the original decree so as to give appellees her custody a part of the time.
While there was no thought on appellant’s part that a condition might arise in the near future .that would necessitate his and his family’s removal from the jurisdiction, and the consequent removal of said child therefrom, at the date of the original decree, May 10,1946, we think the appeal from the modification decree of Novem ber 13,1946, brings tbe whole record before us, including the decree of May 10, and we think under the peculiar and extraordinary circumstances that have arisen since November 13, the injunction against her removal by appellant, if so intended, should be dissolved.
The appeal on appellant’s motion to modify which has been consolidated with the original appeal is not from a final and appealable order. We treat it as a motion to advance and for an immediate mandate.
The decree of November 13 is reversed with directions to enter a decree in accordance with this opinion, to dissolve the injunction as to appellant, and an immediate mandate is ordered. | [
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PIolt, J.
Ed. I. Myers, father of appellee, Lyla Myers, died testate in February, 1938. He left surviving his widow, Effie M., and three children, Rhea B., Correze and Lyla, appellee. Under his will, he left practically ail of his property, including a business operated under the name of Ed. I. Myers Company, to his widow, Effie M. Myers.
Mrs. Effie M. Myers took over the business, which she found in debt, and after acquiring and adding a beer distributing business and putting some personal funds into it, she, with the help of her son, Rhea, and Lyla, operated it profitably.
On January 1, 1941, Mrs. Effie M. Myers, Rhea and Lyla entered into the following contract or agreement: ‘ ‘ That Ed. I. Myers departed this life in February, 1938, leaving his entire estate, including the business of Ed. I. Myers, to Effie M. Myers, his wife; that she continued the operation of the business and R. B. Myers devoted his entire time and attention to the operation of the business for himself, Effie M. Myers, his mother, and Lyla M. Prather, his sister, who also assists him there.
‘ ‘ That it is desirable to enter into a memorandum for the purpose of dividing any profits from the operation of the business. That it is mutually agreed that B. B. Myers serve as manager of the business. Lyla M. Prather agrees to perform such services as she may be called upon; that all profits derived from the operation of the business, after paying all expenses, shall be divided as follows: 35 per cent, to Effie M. Myers, 40 per cent, to B. B. Myers, 25 per cent, to Lyla M. Prather.
“That accurate statements of the business shall be furnished to Effie M. Myers at any time she may request such information, and annually; that Ernest E. Long be retained as bookkeeper; that drawing accounts for each of the parties be agreed upon from time to time, to be charged against their respective distribution from the profits; that the agreement remain in full force for a period of five years from date, and thereafter, until rescinded in writing, by one or more of the parties.
“The agreement is dated January 1, 1941, and is signed by Effie M. Myers, B. B. Myers, and Lyla M. Prather '(now Lyla Myers).”
They operated under this instrument, dividing all profits as provided therein, until the death of Effie M. Myers July 29, 1944.
Mrs. Myers died testate and under the terms of her will, with the exception of $10 devised to each of her two sons, Bhea B. and Correze, and $1,000 to E. E. Long, a relative and bookkeeper of the company, Lyla Myers was her sole beneficiary.
Following their mother’s death, Bhea and Lyla operated the Ed. I. Myers Company until Bhea’s death May 1, 1945, under an oral agreement or contract, to operate it on a 50-50 partnership basis.
• For approximately one month after Bhea’s death, appellant, Grace Myers, Bhea’s widow, took charge of the business and operated it until June 1,1945, when she procured, in her own right, the beer distributing franchise, took over and asserted ownership of all the assets of the Ed. I. Myers Company, and began operating under the name of “Country Club Distributing Company.”
Mrs. Ed. I. Myers on July 1, 1943, signed and delivered a bill of sale reciting a transfer to Rhea Í3. Myeijs of all her right and interest in the Ed. I. Myers Company for a recited-consideration of $10 “and other good and valuable consideration.”
Prior to the filing of the present suit the parties, in an effort to settle their interests in the Ed. I. Myers Company, entered into a written contract whereby Grace Myers placed $30,000 in a Little Rock bank to secure appellees’ interests. It was agreed that an audit of the books and records of the company should be made and to this end, an accountant was employed and paid a fee of $1,050, out of this $30,000 fund, which left a balance of $28,950. The audit dated September 14,1945, showed the interests of the parties as of May 31, 1945, to be as follows : “Estate of Mrs. Ed. I. Myers — $8,999.81, Estate of R. B. Myers — $31,605.92, Lyla Myers — $32,906.49, Total —$73,512.22.” ' .
Following this audit, the parties were still unable to agree upon a settlement of their interests and this suit was filed August 30, 1945, by Lyla Myers, individually and as sole devisee (except $1,020) and as executrix of the estate of her deceased mother, Mrs. Ed. I. Myers, against Grace Myers individually and as sole devisee (except $200) and as executrix of the estate of her deceased husband, Rhea B. Myers, to recover appellees’ interests in the assets of the Ed. I. Myers Company.
Appellees sought an accounting, the appointment of a receiver, payment of all debts, division of assets and for all proper relief. Appellants answered with a general denial. After an extended hearing, the trial court found, in effect, that the instrument signed by Mrs. Effie Myers, Rhea B. and Lyla on January 1, 1941, was a contract creating a partnership arrangement under which they operated until Mrs. Effie Myers’ death July 29,1944; that the bill of sale, supra, was canceled by mutual agreement of Mrs. Effie Myers and her son, Rhea, soon after it was signed; that they never operated under it and that it never went into effect, and “that the sole consideration for said bill of sale was a note for $3,500 signed by Bhea B. Myers, payable to Mrs. Ed. I. Myers, 120 days after date, which note was not paid, was treated of no effect and destroyed”; that following Mrs. Effie Myers’ death, Lyla and Bhea entered into an oral partnership agreement under which they owned and operated the Ed. I. Myers Company, each receiving one-half of the profits,' until Bhea died May 1, 1945, and thereafter that Grace Myers operated said business until June 1, 1945.
The court further found that the parties on June 2, 1945, entered into the contract as above, wherein appellants placed $30,000 in a local bank for the purpose of securing appellees ’ interests; that thereafter the parties agreed that appellants might retain all assets of the Ed. I. Myers' Company, except the $28,950, supra, and that appellants would pay in cash,any amounts adjudged to be the value of appellees’ interests and fixed a first lien on the assets of the business in appellees’ favor.
It further found the interests of the parties to be as that found by the auditor and set out in his report, supra.
Accordingly, the court decreed that Lyla Myers, as executrix of the estate of Mrs. Effie Myers, deceased, have judgment against appellants in the amount of $8,999.81, and that Lyla Myers, in her own right, have judgment against appellants in the amount of $32,906.49, and that appellees “have a specific lien on the fund of $28,950 and on all assets of the business, to secure the payment of the judgments.”
From the decree comes this appeal.
Appellants say that “the sole question présented is whether or not there existed a partnership between B. B. Myers, during his lifetime, and his sister, Lyla Myers, in the operation of the business known as ‘Ed. I. Myers Company.’ ”
They argue that no partnership existed and in support thereof “that B. B. Myers purchased the business of Ed. I. Myers Company from his mother, Mrs. Effie M. Myers, on July 1,1943, by bill of sale, for a valuable consideration,” and that appellants owned tbe business thereafter.
The trial court found from the competent testimony before-it that there was a partnership, first among Mrs. Effie Myers, Rhea and Lyla, and between Rhea and Lyla after Mrs. Effie Myers ’ death, and .that this bill of sale, upon which appellants rely, was rescinded by Rhea and his mother by mutual agreement and never became effective.
■ A large amount of testimony was introduced by the parties on the question of a partnership and whether this bill of sale had been rescinded. Much of this testimony was conflicting, and some incompetent, as was held by the court and admitted for the record only. However, the following significant acts of the parties, which in the circumstances speak louder than words, are undisputed:
After the bill of sale was executed July 1,1943, Mrs. Effie Myers, Rhea and Lyla continued to operate the business under the contract of January 1, 1941, until Mrs. Effie Myers’ death, July 29, 1944, dividing the profits among them on a basis of 35 per cent., 40 per cent, and 25 per cent., as the contract provided, and following Mrs. Myers’ death, Rhea and Lyla continued to operate the business on an oral partnership basis of 50 per cent, of the profits to each.
There was no change in the method by which the books and records of the Ed. I. Myers Company were kept following the date of the bill of sale.
From the date of the January 1, 1941, contract until Rhea B. Myers died May 1, 1945, returns for Federal income tax purposes were made to the Government by Rhea B. Myers on a partnership basis.
When these facts, along with the remaining testimony, are considered, we cannot say that the findings of the Chancellor that the bill of sale in question was rescinded and never became effective and that the parties operated as a partnership are against the preponderance of the testimony.
In Afflick v. Lambert, 187 Ark. 416, 60 S. W. 2d 178, this court said: “It is well settled that the parties to a contract may at any time rescind it in whole or in part by mutual consent, and the surrender of their mutual rights and the substitution of new obligations is a sufficient consideration,” and in the more recent case of Ferguson v. C. H. Triplett Company, 199 Ark. 546, 134 S. W. 2d 538, we said: “The law is settled in this state that while parol testimony cannot be received to vary the terms of a written contract, parol testimony is admissible to show that the written contract has been rescinded and an oral contract made. It is frequently impossible to show that a contract had been abandoned and a new one made, except by oral testimony. ’ ’
We conclude, therefore, that on the whole case the findings of the court are not against the preponderance of the testimony and accordingly, the decree thereunder should be, and is, in all things affirmed. | [
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Robins, J.
By the lower court’s decree appellee was granted an absolute divorce from appellant on the ground that appellant had been guilty of such indignities toward appellee as to render his life with her intolerable. Appellant seeks to reverse that decree.
These parties were married in 1918, and lived together until 1945, when appellee left his home because, as he averred, his wife’s constant nagging and quarreling made it impossible for him longer to live with her. Seven children, six of whom are living, were born to them, the youngest being thirteen years of age and the eldest twenty-eight years of age at the time of the trial.
Appellee testified that several years before the separation appellant began to quarrel at him and to make unjust accusations against him and that this conduct on her part continued until it injured his health and forced him to leave home.
Appellant and five of their children, in their testimony, denied appellee’s version.
It is unnecessary for us to determine which account of this unfortunate controversy is supported by a preponderance of the evidence, because a careful reading of the entire record discloses that there was no sufficient corroboration of appellee’s testimony. .
The rule in this state, long established and uniformly adhered to in our decisions, is that in order to justify the granting of a divorce the testimony of the complaining-spouse, as to the grounds for divorce, must be corroborated by that of some other witness. Rie v. Rie, 34 Ark. 37; Kurtz v. Kurtz, 38 Ark. 119; Scarborough v. Scarborough, 54 Ark. 20, 14 S. W. 1098; Kientz v. Kientz, 104 Ark. 381, 149 S. W. 86; Arnold v. Arnold, 115 Ark. 32, 170 S. W. 486; Welborn v. Welborn, 189 Ark. 1063, 76 S. W. 2d 98; Calhoon v. Calhoon, 209 Ark. 80, 189 S. W. 2d 644.
Appellee introduced four witnesses, but none of them testified to any such conduct on the part of appellant as would justify a decree of divorce against her. One of these witnesses was a physician, who testified as to appellee’s bad health, and stated that he had concluded from appellee’s “psychical history” that appellee’s health had been adversely affected by domestic discord. Another was a neighbor who stated that on one occasion appellant told her that appellee had been keeping bad company; and appellee’s other two witnesses testified merely as to the good character of appellee. None of these witnesses corroborated appellee as to any mistreatment of him by appellant.
Counsel for appellee argue that corroboration as to these alleged indignities is to be found in the testimony of appellant and that of their children, who testified on her behalf. Even if the testimony of appellant reflected any admission of appellee’s charges against her — and we find no such admission in her testimony — this would not obviate the requirement that appellee’s testimony be corroborated. Pryor v. Pryor, 151 Ark. 150, 235 S. W. 419; Read v. Read, 158 Ark. 643, 240 S. W. 410; Scales v. Scales, 167 Ark. 298, 268 S. W. 9. The children of these parties did testify that there had been some trouble between their parents, but they placed the blame therefor on appellee, saying that he was high tempered and that he began the arguments. They praised their mother and said that she had done her duty to appellee in every way.
Since there was no corroboration of the testimony of appellee, the lower court erred in granting the divorce.
So much of the decree of the lower court as awards a divorce to appellee is reversed and this cause is remanded with directions to dismiss appellee’s complaint for want of equity. | [
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Holt, J.
October 6, 1945, Earl Page brought suit against his wife, Minnie A. Page, for divorce. He attached to, and made a part of his complaint, a complete written property settlement made between him and his wife on October 5, 1945, which was duly signed by both parties. Summons was duly served on Minnie A. Page on the date the suit was filed and on this summons, she noted her entry of appearance and waiver. A decree of divorce and the confirmation of the property settlement was rendered'by the court October 9,1945. The property settlement was embodied in and made a part of the decree.
Subsequent to the entry of this decree, on January 10, 1946, Earl Page died testate without surviving issue. By the terms of his will, he gave all the property that he then owned to appellee, Maude Woodson, a sister, and to others.
On January 16, 1946, less than a week after Mr. Page’s death, appellant, Minnie A. Page, filed suit against appellees in which she sought to set aside the property settlement on the ground that she entered into the settlement under duress, consisting of threats by Mr. Page to take her life if she contested the divorce action or refused to execute the property settlement; that the duress continued to exist until shortly before Mr. Page’s death, and that he had agreed to remarry her.
On February 11, 1946, Mrs. Page filed another suit in which she sought to vacate the decree of divorce on the grounds of fraud and duress, and in addition, alleged that she had a meritorious defense to the divorce action which she was prevented from exercising by threats of Mr. Page, and that Mr. Page had no grounds for divorce.
Appellees interposed a general denial to the complaints in both actions; and the two causes, after having been consolidated, proceeded to trial. After a prolonged and patient hearing, the chancellor found the issues in favor of appellees and dismissed both complaints for want of equity.
This appeal followed.
The record in this case is voluminous, containing approximately 800 pages. Much of the testimony is conflicting and some incompetent.
While the cause comes here for trial de novo, under our well settled rule, we must affirm unless we can say that the findings and decree of the trial court were against the preponderance of the evidence.
We think no useful purpose would be served in an attempt to detail and analyze the testimony to determine where the preponderance lies. It suffices to say that, after reviewing the evidence and giving consideration to what we deem to be the competent testimony, as the trial court no doubt did, we are unable to say that the findings of the chancellor, and the decree based on those findings, are against the preponderance of the testimony.
The trial court heard much of the evidence presented direct from the witness stand and was therefore in a much better position to determine its truth and where the preponderance lay, than we could possibly be.
Earl Page had been a cripple since birth. His lower limbs were withered and drawn up so as to make them useless. He moved about by the use of his arms propelling himself on two wooden blocks, which he grasped in his hands. At times, he used a wheel chair.
Through strenuous effort and determination, and with the help of appellant, whom he had married approximately twenty years prior to his death, he had accumulated substantial property and acquired a prominent place in State politics, having held state office for ap: proximately sixteen years. He truly was a typical example of a man who, under the severest physical handicaps and hardships, by determination and will power, lifted himself “by his own boot straps.”
Mrs. Page testified that her husband threatened her with a pistol and that he would kill her if she refused to accede to a divorce and property settlement. She had had business experience and worked along with her husband.
Before appellant could prevail, in the present case, it devolved upon her to establish, by a preponderance of all the testimony, that the decree of divorce, and the property settlement which was embodied in that decree, were obtained through duress or fraud and this, as indicated, we think she has failed to do. During negotiations leading up to the property settlement which does not appear to be unfair or inequitable, appellant consulted able counsel as to her property rights, and this attorney, not of present counsel, testified that he advised her fully relative thereto, that the contract was carefully reviewed and certain changes which she desired were made, and as to whether Mrs. Page appeared to be acting under threat or duress from her husband at the time, the attorney testified : ‘ ‘ I did not believe, with the energy, push and intelligence that Mrs. Page had, that anybody could make —could force- — her to do anything she didn’t want to do.”
There is still another reason why the appellant cannot prevail in this action, and that is, that she has been estopped by conduct amounting to laches.
It appears certain from the evidence that the duress claimed-by. appellant grew out of alleged threats of Earl Page to take her life prior to and leading up to the divorce decree and property settlement.
Immediately following the divorce decree, Mr. Page went to Yell county where he remaiiied until December 13th, when he suffered a heart attack. He was in a Little Rock hospital from December 14th to December 24th, and soon after Christmas, he went to Carlsbad, New Mexico, where he remained until his sudden death January 10, 1946.
We find no evidence of any duress or threats subsequent to the property settlement and divorce decree. In these circumstances, Mrs. Page waited more than three months after the decree of divorce, and for approximately a week following Mr. Page’s death, and when he could no longer speak for himself, before bringing the present suit. Certain it is that, for practically the entire time subse quent to tlie divorce until Mr. Page died, Mrs. Page was not threatened by her husband and was beyond the range of possible physical violence. It was during this time that the law required prompt action on her part, and this she failed to take.
Under the heading of ‘ ‘ Duress and Undue Influence ’ ’ in 17 Am. Jur., p. 902, § 25, the text writer says: “Generally. — A contract entered into under duress being, as has-been seen, generally considered not void, but merely voidable, it is, like other voidable contracts, valid until it is avoided by the person entitled to avoid it. A contract entered into under duress may be ratified after the duress is removed. Such ratification results if the party entering into the contract under duress accepts the benefits growing out of it or remains silent or acquiesces in the contract for any considerable length of time after opportunity is afforded to avoid it or have it annulled. This is particularly true where such transaction has operated to alter legal rights by transferring them to another. While a contract voidable for duress may be ratified, either by express consent, or by conduct inconsistent with any other hypothesis than that of approval, still the intention to ratify is an essential element, and is at the foundation of the doctrine of waiver or ratification. It is essential that the influence of the duress must be removed before conduct becomes voluntary. The fact that the act which was done under duress is not repudiated for a long time will not amount to a ratification where it appears that at no time during such period of time was the duress removed.”
“The law requires promptness in repudiating an agreement alleged to have been induced by duress.” Maisel et al. v. Sigman et al., 205 N. Y. S. 807, 123 Misc. 714.
No certain or definite period of time is necessary to establish laches. Each case must depend on its own peculiar facts. On this’ question, we find in 19 Am. Jur., p. 345, § 499, this language: ‘ ‘ The period establishing laches is not ‘ one which can be measured out in clays and months as though it were a statute of limitations. ’ The determi nation of the question as to laches vel non proceeds in the light of the circumstances of the case. What might be inexcusable delay in one case would not be inconsistent with diligence in another. ’ ’
In Bauer, Executor, v. Brown, 129 Ark. 125, 194 S. W. 1025, this court said: “It is well established, and this court is committed to the principle that a party seeking to cancel a decree of divorce for fraud, irregularity or deceit must proceed with diligence after discovery of the fraud. Such relief will not be granted if the complaining party is guilty of laches or unreasonable delay in seeking the remedy,” and in Neal v. Stuckey, 202 Ark. 1119, 155 S. W. 2d 683, we find this language:
“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. (Citing cases.) Under these and many other decisions of this court which might be cited, the general rule of the doctrine of laches is that equity may in the exercise of its own inherent powers refuse relief where it is sought after undue and unexplained delay, and where injustice would be done in the particular case by granting the particular relief asked. Each case must be governed by its own facts; what would be an unreasonable delay in one ease might not be in another. ’ ’
In Cartier v. Hengstler, 166 Ark. 303, 266 S. W. 304, this court said: .“Appellee and cross-appellant is also barred by laches. He is seeking affirmative relief in a court of chancery. Inasmuch as fraud renders a transaction voidable at the election of the person defrauded, the law requires that the exercise of this election shall be in a reasonable time after the discovery of the fraud. ‘A party who sets up a fraudulent misrepresentation of fact as a ground of relief or defense must not be guilty of laches.’ ”
We think under these well settled rules of law, and on the facts presented here, that the decree was in all things correct, and accordingly is affirmed. | [
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Holt, J.
May 11, 1946, W. F. Seegar, appellee, intervened in the suit of the State of Arkansas, wherein the State sought to confirm its title to certain tax forfeited lands in Little River county. Included in the State’s complaint were the following tracts involved here: “NE% of NE% and SE% of NW14 of section 15, township 11 south, range 32 west,” which appellee alleged he owned by purchase from the original owner. He further alleged that this property forfeited for nonpayment of taxes for 1942, was sold to the State and certified to it on June 2, 1945, but that the sale was void for several reasons, among them being: “The record of the levying court is indefinite, ambiguous and is not properly authenticated and the proceedings thereunder are null and void. . . . There was included in the cost of sale 25 cents for each 40 acre tract as cost of publication of the delinquent land list. Said property was all assessed in the name of R. A. Spence, was in the same section and contiguous and under the law constituted one tract and the amount of 25 cents charged as costs for publication of each 40 acre tract in the delinquent land list was excessive and renders the tax sale void. ’ ’
He further alleged that appellant and cross complainant, Sam Seligson, purchased said lands from the State by deed dated January 18, 1946, that the State had no title to convey, that the sale was void and prayed accordingly.
Appellant, Seligson, denied generally all the allegations that the sale was void, bnt admitted his purchase of the property from the State after proper appraisal. He further alleged that he paid the .State $300 for the two tracts, plus expenses of deed and costs.
The trial court found the tax sale void, that the State had no title to convey, that appellee owned the land and entered a decree November 18, 1946, accordingly.
This appeal followed.
At the outset we are met with appellee’s earnest contention that the decree must be affirmed for the reason that the oral evidence taken in the case was not properly preserved and brought into the record and, therefore, it must be presumed that the evidence was sufficient to support the Chancellor’s findings and decree. In support of this contention, he says: ‘ ‘ There is no order of the Court approving the bill of exceptions and ordering the same filed, neither is there any verification as to the correctness of the bill of exceptions by the judge of the trial court.”
It is true that the Court did not sign or approve a bill of exceptions. However, as we shall presently point out, the court’s failure so to do, in the circumstances here, was not essential to preserve the testimony nor was a bill of exceptions necessary.
The decree recites that “the cause is submitted to the court upon the complaint of the plaintiff, the answer and cross complaint of intervener, the answer of the cross defendant to the intervener, the stipulation of the parties hereto, the oral evidence taken ore terms before the court and the exhibits introduced in said cause.”
At the beginning of the trial, in taking of testimony following the pleadings, the record recites: “Be it remembered that on this the 18th day of November, 1946, the same being a regular day of November, 1946, term of the Little River Chancery Court, comes on for hearing and to be heard the above numbered and entitled cause, the Honorable A. P. Steele, the regular Chancellor for the Sixth Chancery District of Arkansas, present and presiding, and the following proceedings were had and done:
“The testimony of the witnesses taken by the Little Biver Chancery Court on the 18th day of November, 1946, and by the court orddred to be reported by Norma H. Sain, the official reporter of this Court, and upon application of either party to the suit to be transcribed and filed as depositions in this action.”
There follows interrogation of witnesses, stipulation and exhibits and at the conclusion the certificate of the court reporter in the following form:
“I, Norma H. Sain, official court reporter for the Sixth Chancery District of Arkansas, do hereby certify that the foregoing pages, numbered from 1 to 21, inclusive, contain a true and correct transcription of my shorthand notes taken at the trial of the within numbered and entitled cause, in the Little Biver Chancery Court on the 18th day of November, 1946, and covers all oral testimony and exhibits (such part as pertains to School District 22) introduced in said trial.
“Witness my hand as such official reporter on this 25th day of January, 1947. (Signed) Norma H. Sain, Official Court Beporter, Sixth Chancery District of Arkansas.”
The record further discloses that the twenty-one' transcribed pages of the official court reporter’s shorthand notes of the proceedings at the trial were properly filed with the Circuit Clerk, W. W. Bishop, on February 5, 1947. The record on page 7 recites: “Little Biver County, Arkansas, Filed 2/5/47, W. W. Bishop, Circuit Clerk. ’ ’
It is conceded that the applicable statute governing appeals from the Sixth Chancery District is Act 202 of 1927, the pertinent provisions of which are: “Section 2. It shall be the duty of said reporter to attend all regular and adjourned terms of the Chancery Courts of the 6th Chancery District, and, upon request of the Court or counsel for either party, shall make a complete and accurate stenographic report of all oral testimony or proceedings had before the Court which stenographic notes shall be filed with the Clerk of the Court of the county wherein said cause is pending as a permanent record. . . . Said stenographer shall transcribe the notes so taken at the request of the Court or counsel for either party and shall make an original and two carbon copies thereof, and the original shall be delivered to the Clerk of the Court to be used in the transcript of said record on appeal to the .Supreme Court, etc. . . .
“Section 3. The original copy of said transcribed notes when filed with the Clerk of the Court, as herein directed, within the time provided by law for appeals to the Supreme Court, shall be treated as depositions filed in said cause as fully and completely as if filed within the term of the court.”
It will be noted that under the plain terms of this act, the original copy of said transcribed notes when filed with the clerk of the Court as therein directed, within the time provided by law for appeals to the Supreme Court, shall be treated as depositions filed in said cause as fully and completely as if filed within the term of the court.
We think there was a literal compliance with the statute in this case. The Court Reporter filed with the Circuit Clerk an original copy of her transcribed notes well within the six months period for an appeal and, in accordance with the court’s order, said copy became depositions in this case and a part of the record on appeal without the signature or verification of the trial judge.
Such was the effect of the holding of this court in the case of Lemay v. Johnson, 35 Ark. 225. There, this court said: “In equity cases, al'1 papers properly filed in the cause become, on appeal, parts of the record, to be included in the transcript. No motion for a new trial is essential», nor is a bill of exceptions necessary, except where oral evidence has been used, and not taken down and filed as depositions, or interlocutory transactions have occurred which would be otherwise excluded from the record,” and in Chicago Title & Trust Co. v. Hagler Special School District No. 27, 178 Ark. 443, 12 S. W. 2d 881, we said: “Under our practice, depositions, when filed, or oral evidence ordered to be reduced to writing and filed as depositions, become a part of the record in a chancery court. Fletcher v. Simpson, 144 Ark. 436, 222 S. W. 710; Harmon v. Harmon, 152 Ark. 129, 237 S. W. 1096; McGraw v. Berry, 152 Ark. 452, 239 S. W. 618; C. A. Rees & Co. v. Pace, 156 Ark. 473, 246 S. W. 491; Rose v. Rose, 9 Ark. 507; Lemay v. Johnson, 35 Ark. 225; and Casteel v. Casteel, 38 Ark. 477.”
Appellee contended below, and argues here, that the tax sale was void because 25 cents for each of the two 40 acre tracts, or a total of 50 cents, was charged for publication, when the two tracts under the law, Act 170 of 1935, were contiguous, constituted but one tract, and but one charge of 25 cents should have been assessed. The trial court sustained this contention, and we agree with appellant that it erred in so doing.
The rule announced in the very recent case of Moses v. Gingles, 208 Ark. 788, 187 S. W. 2d 892, applies with equal force here. There, it was held that since the three tracts of land there involved were contiguous within the meaning of Act 170 of 1935, supra, they should have been advertised and sold as one tract, at a total cost of 25 cents, and that their sale as three separate non-contiguous 40 acre tracts, at a total cost of 75 cents, invalidated the sale. Obviously the inference is that had the three tracts been in fact non-contiguous, as in the present case, the sale in that case would have been declared valid. We there said: ‘ ‘ Section 2 requires the clerk to publish such delinquent list, as corrected by him, with this proviso: ‘Provided that within any section, a section, quarter section, eighty acres or less contiguous acreage owned bv one person shall be listed and published as one tract. All contiguous city lots in any city block owned by one person shall be listed and published under one item and as one tract. ’ Section 9 provides: ‘ The legal fees for the publication of delinquent real property shall be twenty-five cents per tract. . . . ’
“Obviously the reason the Legislature requires the county clerks to list contiguous tracts in any section, which are shown to be owned by one person, as one tract for publication, is to save costs of publication. The requirement is mandatory whatever the reason for its enactment, and these provisions were not repealed by Act 282 of 1935. Thomas v. Branch, 202 Ark. 338, 150 S. W. 2d 738. In fact, Act 170 of 1935 was the only authority for the publication of the delinquent land list and the legal fee for publication is 25 cents per tract as fixed by § 9, and the term ‘tract’ as there used means a tract as limited by the proviso in § 2.”
In the present case, the two 40 acre tracts, we think, are obviously by their calls, nori-contiguous, in fact, they do not even touch each other, their nearest corners being approximately one-fourth mile apart. Webster defines contiguous as “in actual contact; touching,” and Bouvier’s Law Dictionary (Rawle’s Third Revision), p. 655, defines contiguous: “In close proximity, in actual close contact, Arkell v. Ins. Co., 69 N. Y. 191, 25 Am. Rep. 168; as, contiguous proprietors are those whose lands actually touch.”
Appellee next argues that the tax sale was void because “the. record admittedly shows that the certificate of the County Board of Education, composed of the County Judge, the County Clerk and the County Supervisor, showed the vote of the amount of tax in District No. 22, in which the land was located, to be ‘eighteen’ without designating whether the word eighteen referred to mills, dollars or cents.”
We cannot agree with this contention.
It is undisputed that the levying court met November 16, 1946, for the purpose of levying taxes . . . making appropriations, etc., and the minutes or record of the proceedings kept by the county clerk, as was his duty, refléct the following: “The several justices of the peace of Little River county as hereinafter set out, were present and answered to their names on roll call by the County Clerk as follows, to-wit: (Naming twenty-two.) There were 22 justices of the peace present. The 'County Judge, D. W. Lowry, declared a quorum present and ready for the dispatch of business when the following proceedings were had, to-wit: . . .
‘ ‘ School Tax Levies: Upon a motion by L. F. Wheelis, and seconded by Nathan Furlow, the following levies were made on all real, personal and mixed property within the respective school districts of Little River county, Arkansas, subject to taxation for the year 1942, and as hereinafter set out and voted by the voters of the several school districts at the regular school elections in Little River county, Arkansas, in the 1942 as fixed by law and certified by the several school districts, in the time and in the manner required by law, and which levies are in words and figures as follows, to-wit:
Voted for
School Dist. Total Mills General Fund For Building Fund
No. 22 18 ' 18
“Upon roll call the above levies for school purposes were adopted by unanimous vote.
“Upon a motion made by F. K. Davis and seconded by J. M. Weatherspoon the adjournment order was made and there being no further business the motion carried by a unanimous vote.
County Judge.”
While it is true the word “mills” does not follow the figure “18,” the millage voted by the people of School District 22, the order of the levying courts supra, levying this tax, definitely shows that 18 mills were levied against this property, as voted by the district, and we think this levy valid. This identical question was decided against appellee’s contention in the very recent case of London v. Montgomery, ante, p. 434, 201 S. W. 2d 760, wherein we held: (Headnote 5.) “With certificate from the County Board of Education that District No. 22 (Stuttgart) had voted ‘18’ as a tax, the quorum court assessed ‘18.’ Held, that the assessment was in mills, not dollars, or cents; hence not ambiguous or uncertain.”
Finally, appellee argues that the record, or minutes, of the proceedings of the levying court, supra, reciting that a tax levy of eighteen mills was made, was not signed by anyone, or properly authenticated, and this invalidated the tax sale here involved. We think this contention also untenable. This court, in the case of Hilliard v. Bunker, 68 Ark. 340, 58 S. W. 362, held that (Headnote 4) “the proceedings of the levying court are not invalid because the record was not signed by the members of the court present and participating,” and in the opinion, said: “The objection that the record of the day’s proceedings were not signed by the members of the court present and participating does not go to the validity of the proceedings so noted by the clerk as shown in the record. In the first place, the authorized officer having written up the minutes upon the record, and their verity not having been called in question, the county court having general jurisdiction of the subject-matter, and being a superior court, the truth of the minutes could be'established by parol.”
Having concluded that the tax sale was in all things valid, the decree is reversed and the cause remanded, with directions to enter a decree not inconsistent with this opinion. | [
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Holt, J.
Two causes of action, consolidated here, are presented on this appeal from separate judgments in the Franklin Probate Court, Ozark District, construing the separate wills of William C. Bill, deceased, and Ada May Bill, deceased, who were husband and wife. Mr. Bill died May 20,1945, and Mrs. Bill, his widow, died May 22, 1945. Each was approximately 70 years of age at the time of death and had resided in Ozark approximately 50 years. No issue survived.
Their separate wills were, in effect, almost identical, that of Mrs. Bill having been executed May 30, 1940, and that of Mr. Bill, December 8,1942.
That part of Ada May Bill’s will, material here, is as follows: “To Bertie Walker McLane, I give, devise, and bequeath my home place together with -all the personal property therein, located on lots 7, 8, 9 and 10, all in block 16, in the Town of Ozark, Arkansas.
“Then after all expenses.are paid, if anything remains, real estate, personal property, or mixed, money or any other valuable assets, shall be gathered together by a trustee, selected by the parties interested and named in this will and approved by the court having jurisdiction and shall be equally divided between the following persons and institutions: The First Methodist Church of Ozark, Arkansas. Mrs. Louella Bice. Mrs. Bessie Hail Travis.”
That part of William C. Bill’s will, material here, is identical with the above provisions of Mrs. Bill’s will except that the word * ‘ place ’ ’ after the words ‘ ‘ my home ’ ’ is omitted in his will so that it reads “my home, together,” etc.
The appellant, Bertie Walker McLane, is in no way related to either Mr. or Mrs. Bill. ,
When appellant, Bertie Walker McLane, took charge of the home given to her under both wills, following the deaths of Mr. and Mrs. Bill, she found in a lock box in the home six Postal Savings Certificates in the aggregate amount of $1,800 and an insurance policy in the amount of $2,000 on the life of William C. Bill. There was in the garage on the place a Chevrolet automobile. There was also discovered a contract of sale for a portion of the home place, “part of lot 6 and all of lots 7 and 8, block 16, Town of Ozark, Arkansas,” that had been entered into during the life of William C. Bill with Ernest Moore and Lou 01-lie Moore, and their note in the amount of $700 given for the purchase price of this property.
J. P. Chancey, administrator of Mrs. BilPs estate, filed petition, with her will annexed, in the probate court for directions as to disposition of the proceeds from the life insurance policy on the life of William C. Bill, payable to his wife, Ada May Bill, “if she should survive him, otherwise to insured’s administrator.” He alleged that, appellant, Mrs. McLane, was claiming all the proceeds from this policy, and each of the residuary legatees, the church, Mrs. Travis and Mrs. Rice, who had been made parties, were each claiming a third interest in the proceeds from said policy.
Following a trial, the probate court found that the proceeds from this policy of insurance should be divided equally among the three residuary legatees, the First Methodist Church of Ozark, Mrs. Katherine Hail Travis and Mrs. Louella Rice, share and share alike. From the judgment of the court, Mrs. McLane has appealed.
On the same date that the administrator filed the petition, supra, in the Ada May Bill’s estate, he also filed a separate petition in the William C. Bill’s estate for instructions and directions from the probate court, (1) to whom he should pay the proceeds from the Postal Savings Certificates, (2) who was entitled to the automobile found in the garage, and (3) who was entitled to the $700 promissory note.
It appears that in 1939, Mr. Bill opened a Postal Savings account with the Post Office in Ozark and at the time of his death, as above indicated, six certificates evidencing this account in the Post Office were found in the home.
All of this property was claimed by appellant, Mrs. McLane, under the will, supra. The three residuary legatees were made parties to this action also.
Upon a trial of this cause, the probate court found that the proceeds from the Postal Savings Certificates should be divided equally among the three residuary legatees, the church, Mrs. Rice and Mrs. Travis, one-third to each, but that appellant should have the automobile and the $700 note.
From this judgment, Mrs. McLane has appealed. The appellees, the three residuary legatees, have cross-appealed from that part of the judgment awarding the car and note to appellant.
In short, it is the contention of Mrs. McLane here that under the terms of the wills, supra, since she was given the “home place, together with all the personal property therein,” this provision carried with it not only the home, but that “personal property” included the proceeds from the insurance policy, the Postal Savings Certificates, the automobile and the promissory note. She was, as above noted, awarded the automobile and the note, but denied any interest in the insurance policy and the Postal Savings Certificates.
Was the term “personal property therein,” broad enough to include, as appellant contends, not only the note and the automobile, but the proceeds from the Postal Savings Certificates and the insurance policy which were choses in action? We do not think it was, in the circumstances here, and it is our view that the judgment of the trial court was in all things correct. The insurance policy and the Postal Savings Certificates were choses in action purely.
One of the cardinal rules in construing a will is to ascertain the intention of the testator. This must be done from all the language within the four corners of the will according to the meaning of the words used, as was said tby this court in Wooldridge v. Gilman, 170 Ark. 163, 279 S. W. 20: “The primary rule of construction in the interpretation of a will is to ascertain the intention of the testator, according-to the meaning of the words he has used, deduced from a consideration of the whole will and a comparison of its various clauses in the light of the situation and circumstances which surrounded the testator when the instrument was executed,” and as expressed in Lockhart v. Lyons, 174 Ark. 703, 297 S. W. 1018: “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.” (Citing many cases.)
In the very recent case of Quattlebaum v. The Simmons National Bank, Administrator, 208 Ark. 66, 184 S. W. 2d 911, we said: “In the recent case of Dickens v. Tisdale, 204 Ark. 838, 164 S. W. 2d 990, we said: ‘All the cases are to the effect that the primary purpose of construing a will is'to arrive at the testatrix’s intention in making it, and the rule of construction applicable in all cases is that the will should be read in its entirety, from its four corners, as many cases express the thought;’ . . . and in Duensing v. Duensing, 112 Ark. 362, 165 S. W. 956, this court said: ‘The cases all agree that the testator’s intention can be gathered only from the will itself and that extrinsic evidence is not admissible to prove an intention in regard to the disposition of the property not expressed in the will.’ ”
Again, in the case of Wilson v. Storthz, 117 Ark. 418, 175 S. W. 45 (headnote 1), the court held: “The testator ’s intention must be gathered from the will, and, while evidence may be received to explain any ambiguity in the designation of a beneficiary, yet neither the scrivener, nor anyone else, however closely related to the testator, can be permitted to testify that the testator meant or intended any disposition of his property hot expressed in the will. ’ ’
When the wills of Mr. and Mrs. Bill are considered in their entirety, giving full meaning, purpose and effect to every part thereof, we think they are clear and unambiguous, and manifest the intention of these two fine old people to give to appellant, related to them in no way, the home place where they resided, together with all “personal property” in the home, which “personal property” in its usual sense and common meaning, carried only the usual and ordinary household effects, and did not include the insurance policy and the Postal Savings Certificates which were choses in action, or evidences of the right to claim the actual money or property, not in the home, which they represented.
In 17 C. J. S., p. 175, under the phrase, “contents of the house not otherwise hereinafter bequeathed,” under reference to footnote 15, we find this language: “15. Choses in action not included. In determining whether or not a bequest couched in the language of the quoted phrase passed the contents of a small safe, found in the house and containing jewelry, savings bank books, and insurance policies, having a surrender or transfer value, the court held the articles of jewelry embraced by the phrase, but not the savings bank books or insurance policies,, since choses in action, are not to be considered as contents of a house. Old Colony Trust Co. v. Hale, 302 Mass. 68, 18 N. E. 2d 432.”
In Webster v. Wiers, 51 Conn. 569, the court there said: ‘ ‘ The question presented by this case is with regard to the construction to be given to a clause of the codicil to the will of Lucy Churchill which is as follows :
“ ‘I give and bequeath to my grand-nephew, Milton W. Woodford, all my household effects, books and papers of value, and everything the house contains, the same to be taken by him without inventory or appraisal, to be his and his heirs’forever.’ . . .
“It would be a very unnatural thing that a testator should describe such property, and of such value, merely as household effects and as a part of all the house contained, or even as books and papers of value. It is hardly credible that a particular allusion to them should not have been made if she had intended to embrace them in the bequest. We are of the opinion that the note and savings bank book, with the deposits represented by the latter, did not pass by the codicil to Milton M. Woodford, but that they became a part of the residue provided for in the original will. ’ ’
In 3 Page on Wills, 3d (Lifetime Ed.), § 970, we find the rule stated as follows: “Sec. 970. Money and Choses in Action described by Location. . . . Cboses in action have no locality, although the ecclesiastical courts had held that their presence gave jurisdiction for administration. They are only evidences of obligations. For these reasons, it has been held that a gift which is, by its terms, broad enough to include choses in action, and which describe the property as located in a certain place, does not pass choses, although the written evidence thereof is situated in such place. A gift of ‘ securities ’ in a certain vault does not pass a bank account, although the bank book was kept in such vault, ’ ’ and in Rood on Wills, 2d Ed., § 517, under the subject of Personal Property Described by Location, “Securities Found in the Place,” the text writer said: “The danger of describing personal property by location has often been observed. It may comprehend much today and nothing tomorrow; and the effect may be changed by honest or fraudulent removals without the testator’s knowledge or consent. A gift of the contents of a house will seldom if ever pass choses in action evidenced by notes, bonds, or other ■ securities found there; and all the more clearly land would not pass by reason of a deed of it being found there. But coins and current paper money have generally been held to pass. And a gift of the contents of some place where such valuables are usually put for safe keeping, such as the contents of a safety deposit box, would include not merely the pen, pencils, and jewelry there found, but all choses in action evidenced by securities found there, though not transferable without indorsement.”
In the case of Old Colony Trust Company v. Hale, Mass., 302 Mass. 18 N. E. 2d 432, 120 A. L. R. 1207, decided in 1939 by the Supreme Court of Massachusetts, it was said: “The first clause of the will of the testatrix provides as follows: £I give to Mrs. Harriet C. Hale, my cousin, now of 22 Arnold Street, Northampton, Massachusetts, two hundred thousand dollars ($200,000); also my house and land situated at 10 Beech Road, Brookline, Massachusetts, and the contents of the house not otherwise hereinafter bequeathed; also my silver now in the vaults of the Bay State Trust Company; also all my rugs now stored in the.Boston Storage Warehouse not otherwise hereinafter bequeathed; also my large bar pin with eleven diamonds; and also my diamond semi-neekless with a diamond heart attached.’ . . .
“After the death of the testatrix there were found in a small safe in her house at 10 Beech Road, ‘among other items of personal property,’ three savings bank books representative of total deposits of $8,433.36, fire and other insurance policies covering the premises and its contents and having a transfer value of $228.48, policies of automobile insurance which were surrendered by the petitioners, who received $53.62, the surrender value thereof, and articles of jewelry appraised at $471. The jewelry that was specifically bequeathed to the respondent by the will was not in the house at 10 Beech Road when the testatrix died, but was in a safe deposit vault.
“The sole question for decision is whether the contents of the safe pass under the devise and gifts of the ‘house and land situated at 10 Beech Road . . . and the contents of the house not otherwise hereinafter bequeathed’ to the respondent. . . .
“Where, as in the case at bar, the bequest is simply of the ‘contents of the house’ not otherwise disposed of in the will, the word ‘contents,’ being a word of comprehensive meaning, must receive its full import unless some very distinct ground can be derived from the context, and a consideration of the will as a whole in accordance with the settled rule governing its construction . . . for regarding it as used in a special and restricted sense. . . . It is the general rule, however, that choses in action will not pass under a bequest of the contents of a house. (Citing cases.) . . .
“In Popham v. Aylesbury, 1 Ambl. 68, 69, also cited in Stuart v. Marquis of Bute, 11 Ves. 657, 662, a bequest of ‘my house and all that shall be in it at my death,’ was held to pass cash and bank notes found in the house, but not to pass promissory notes and securities, as they were evidence of title to things out of the house and not things in it.”
As to the automobile found in the garage, we think little need be said. We think the trial court correctly held that this was personal property within the home, within the meaning of the language used in both wills.
We also think that the $700 note was properly awarded to appellant. It appears that W. C. Bill, subsequent to the execution of the wills, entered into a contract to sell a part of the real property, which he had devised to appellant, to Everett Moore. No deed was ever executed, but a bond for title and the note for the balance of the purchase price had been. The legal title, therefore, to the property sold to Moore passed to appellant, Bertie Walker McLane, subject to the right of Moore, who, when he paid the purchase price to appellant, would be entitled to a conveyance of the.legal title, the devise of this property to her under the wills never having been revoked. Such is the effect of § 14522, Pope’s Digest, which provides :
“Devise while testator under contract to convey. A bond, agreement or covenant, made for a valuable consideration by a testator to convey any property devised or bequeathed in any last will and testament previously made, shall not be deemed a revocation of such previous devise or bequest, either in law or equity, but such property shall pass by the devise or bequest subject to the same remedies, on such bond, agreement or covenant, for the specific performance or otherwise against the devisees or legatees as might be had by law against the heirs of the testator or his next of kin, if the same had descended to them.”
Finding no error, the judgment is affirmed both on direct and cross-appeal. | [
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Holt, J.
Appellant, Carl E. Bailey, in September, 1945, bad prepared by a firm of Little Bock architects. complete plans and specifications for a business building which he contemplated erecting in North Little Bock. Mr. Eichenbaum, one of the members of the firm of architects, submitted these copies of the plans and specifications to a number of building contractors, including the appellee, Carter Contracting Company, with an invitation to each to submit a sealed bid for the construction of the proposed building. ' These invitations to the contractors to bid were based upon the plans and specifications, contract documents and information contained therein, and provided that all bids were to be received in sealed envelopes and opened at 2 6 ’clock p. m., October 9, 1945, by appellant. The invitations to the bidders contained in the snecifications the following restriction: “No modifications of bids already submitted will be considered unless such modifications are received prior to the hour set for opening.”
The sealed bid of appellee, Carter Contracting Company, was mailed to appellant on October 8th, and received by him in the morning of October 9th. Accompanying this bid was a bid bond executed by appellee, Central Surety & Insurance Corporation of Kansas City, Mo., in the amount of 5% of the bidder’s proposal or bid, which was received in lieu of a cash deposit to secure the bid.
In the specifications upon which bids were made was the following provision: “Certified check or bid bond: Bidders are required to use the proposal form attached to and made a part of the contract documents. Each proposal must be accompanied by a certified check, cashier’s check, or bid bond acceptable to the owner in an amount equal to at least 5% of the proposal, payable without condition to the owner as a guarantee that the bidder if awarded the contract will promptly execute such contract in accordance with the proposal and in manner and form required by the contract documents, and will furnish good and sufficient bond for the faithful performance of the same. The bid security of the three lowest bidders will be retained until the contract is awarded or other disposition is made thereof. The bid security of all bidders except the three lowest will be returned promptly after the canvass of bids.”
At 2 o’clock, October 9th, all bidders, with the exception of appellee, Carter Contracting Company, assembled in Mr. Bailey’s office where the bids were opened as provided in the notice and invitation to bid. The bid of the Carter Contracting Company in the amount of $31,700 was lowest, whereupon appellant announced to the bidders present his acceptance and award of this bid to the Carter Contracting Company, whereupon the unsuccessful bidders or contractors took their respective bids and departed.
On October 10th, the day following the opening of the bids, Mr. Eichenbaum, one of the architects, received the following telegram from Forrest City, Arkansas, signed by appellee, Carter Contracting Company: ‘ ‘ Raise our Bid Carl Bailey Building Twenty Eight Hundred Dollars.” This message was marked “October 9th, 7:30 p. m.”
There was dispute as to whether the Carter Contracting Company was notified by Mr. Eichenbaum the afternoon of the 9th after the bids were opened or on the morning of the 10th (after the receipt of the telegram) that its bid had been accepted as the low bid.
Some days later, the Carter Contracting Company, through its Mr. V.,N. Carter, a member of the company, after his return from Forrest City, conferred with appellant and refused to execute the contract to construct the building on its bid of $31,700, but offered to execute the contract for the sum of $34,500, the amount of its sealed bid plus $2,800'. Appellant refused to accept the modification and made demand for the penalty of 5%, amounting to $1,585, set forth in appellee’s proposal and as provided in the bid bond of appellees hereinafter referred to.
Upon appellee’s refusal to comply with appellant’s demand for the penalty as liquidated damages, the present suit was instituted, which resulted in a verdict in favor of appellees. This appeal followed.
The material facts are undisputed. It was the theory of appellees below, and the theory upon which the cause appears to have been submitted to the jury, that before Mr. Bailey could recover, he must not only show that he opened the sealed bid or offer and accepted and awarded same at the hour specified, but that he must go further and show that thereafter such acceptance on the part of Mr. Bailey was communicated to the Carter Contracting Company, and before the receipt by Mr. Bailey of the modification telegram, supra.
It was appellant’s contention that when he opened the sealed bids at the appointed hour in the presence of the bidders present and immediately announced to them that appellee, Carter Contracting Company, was the low bidder and that the award of the contract would be made to it, the Carter Company bid then became irrevocable and it became bound to execute a contract to carry out the award made to it for the construction of the building in question on its bid of $31,700, regardless of the telegram which was not received until after the bids were opened.
It is our view that appellant’s contention is correct and must be sustained and on the undisputed facts here, the trial court erred in refusing to give appellant’s request for an instructed verdict in his favor.
The proposal of the Carter Contracting Company above referred to to make a contract to construct the building for $31,700 is as follows: “Carl Bailey Company, North Little Bock, Arkansas, Gentlemen: The undersigned, in compliance with your invitation for bids for general construction, including plumbing and heating for a building to be erected in North Little Bock, Arkansas, having examined the plans and specifications with related documents and the site of the proposed work, and being familiar with all the conditions surrounding the construction of the project, hereby propose to furnish all labor, materials, and supplies, and to construct the project in accordance with contract document, within the time set forth herein, and the prices stated below. These prices are to cover all expenses incurred in performing the work required under the Contract Documents, of which this proposal is a part.
“We acknowledge the receipt of the following addenda: One (1), Two (2) and Three (3). Proposal: For all work described in the specifications for the general construction, including plumbing and heating, for a building to be erected in North Little Bock, Arkansas, and shown on the plans for same, we agree to perform all the work for the sum of Thirty-One thousand seven hundred & No/100 Dollars ($31,700). We propose to complete all of the work under this contract in 150 consecutive calendar days, from and including the date of ‘Notice to Proceed.’
“Upon receipt of notice of acceptance of this hid, we will execute the formal contract attached within ten days, and will deliver a Surety Bond for the faithful performance of this contract. The bid security attached, without endorsement in the sum of 5% of proposal, is to become the property of Carl Bailey Company, North Little Rock, Arkansas, in the event the contract and bond are not executed within the time above set forth, as liquidated damages for the delay and additional work caused thereby. Respectfully submitted, Carter Contracting Company, By Y. N. Carter (Signed) Partner. Arkansas License No. 24. Phone Forrest City No. 497.”
The “bid security attached” to the proposal in the form of a “bid bond” contained the following provision: “The conditions of this obligation are such, that if any awards made by said obligee to the above bounded principal under a public invitation for construction of building on East Broadway, North Little Rock, Arkansas, shall be accepted by said principal and said principal shall enter into a contract for the completion of said work, and give Bond with the Central Surety & Insurance Corporation, as surety, or with other surety or sureties to be approved by the obligee, for the faithful' performance thereof, then this obligation shall be null and void; otherwise to remain in full force and effect.”
As we interpret this provision of the bid bond, it means that the Central Surety & Insurance Corporation became bound at the time the obligee, Mr. Bailey, opened the bids and announced the award to the successful or low bidder, to the bidders present, to pay the penalty of 5%, in the event the Carter Company failed to enter into a contract to construct the building for the amount of its bid, which bid among other things, provided that “no modifications of bids already submitted will be considered unless such modifications are received prior to the hour set for opening.” The telegram came too late to constitute a modification.
The obvious purpose behind the submission of sealed, written bids is to induce bidding contractors to submit the lowest possible bid without any knowledge as to the amount that other contractors might hid. Unless sealed bids are held to be irrevocable after they are opened and, the low bidder announced, then certain it is that the customary procedure followed by builders, as in the instant case, in calling for written, sealed bids and accompanied by security, would be a vain and futile thing.
Carter had the right at any time before the bids were opened to modify or withdraw his bid, but he was required to do so before they were opened. The opening of the bids in the presence of the other bidders and the ascertainment and declaration by Mr. Bailey that the Carter Company had been the lowest and had been accepted as such, constituted an award and any modification of the bid that Carter thereafter made came too late. It is undisputed that Carter’s telegram was not sent or delivered until after the bids were opened and Carter’s bid accepted and the award made to him.
The general rulé announced in 43 Amer. Jur., Title Public Works and Contracts, § 62, p. 804, is in this language: “As a general rule, at law a bidder for a public contract cannot, in the absence of special' circumstances, either withdraw his bid or proposal or recover the deposit made, pursuant to the requirements of the advertisement for bids, at the time of the submission of his bid, although in equity the bidder will be protected where it would be inequitable to compel him to perform the contract or forfeit the deposit in the case of his refusal or failure to perform, and there are numerous exceptions and qualifications to the rule at law. ’ ’
In Northeastern Construction Company et al v. City of Winston-Salem, 83 Fed. 2d 57, 104 A. L. R. 1142, referring to the general rule, the court said: “Thé weight of authority is to the effect that bids of this nature are irrevocable and cannot be withdrawn, especially after the opening of the bids. Note in L. R. A. 1915A, 225.”
Appellees did not ask for a transfer of this case to chancery court, so as to be afforded forum in which it could assert an equitable defense, based on the alleged mistake in the calculation of its bid; but, if it had properly asserted such a defense, the showing made by it was not sufficient to entitle it to such relief. Such was the effect of the decision in the case of William M. Crilly v. The Board of Education of the City of Chicago, 54 Ill., App. 371, which we think sound.
For the error indicated, the judgment is reversed, and judgment will be entered here in appellant’s favor for the amount sued for, $1,585, with interest and costs. | [
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Griffin Smith, Chief Justice.
Each plaintiff sued for $3,000 to compensate personal injuries and each procured a judgment for $2,000. Each was severity-eight years of age when the trial was had, and each, by substantial evidence, proved that he sustained serious injuries.
Van Veneer Company operates a plant at Malvern. Missouri Pacific, by contract, entered the premises with its spur track, over which logs for the mill and the materials it required, together with finished products, were transported. This track was laid near the veneer company’s boiler room. Ross and Launius were standing on a concrete walk close to the boiler structure and approximately eight feet from the railway. They were talking with Ralph VanDusen, president of the veneer company, when the injuries occurred. A train, carrying supplies for an extension of the spur, backed in from a connecting line. The new construction was not a requirement of the veneer company, but was being built by Missouri Pacific as facilities for business beyond VanDusen’s plant. Witnesses testified to a practice of placing strong planks across the railroad for the convenience of veneer company employes. These were under control of mill workers, but would sometimes be removed by railroad crewmen.
The day appellees were injured the engine with cars attached had backed into the siding or spur. The engine went eighty, or eighty-five feet farther than it did when serving the veneer company. When theonission had been completed the train headed out, but in passing the point where Ross, Launius, and VanDusen stood, some part of the engine or tender struck one of three planks stacked near the track. This plank, according to VanDusen, was lying at an angle of about twenty-three degrees in respect of the rail nearest Ross, Launius, and VanDusen. It was on the fireman’s side. The plank was shoved or pushed a short distance, (one witness said eight' or ten feet) and precipitated against the bystanders with sufficient force to throw Ross and Launius to the concrete. VanDusen was struck and slightly injured, but did not fall.
The Railroad Company insists (1) that the verdicts were contrary to the law, contrary to the evidence, and contrary to the law and the evidence. In the manner presented this/raises the question of sufficient evidence. It is argued that appellees — particularly Ross — were tres passers. Ross testified that he went to the plant to buy veneer for use in making a blackboard; Launius claimed he was seeking employment and that he had spoken to VanDusen concerning the matter.
The defendant did not prove any veneer company ride requiring applicants for work, or customers, to present themselves at a particular place; nor was there any attempt to show that it was not reasonable for these men to engage in conversation with VanDusen at the point where the three met, or to remain there as they did. It was shown that the boards (two inches thick, twelve inches wide, and twelve- or seventeen feet long) were not moved after the train backed in; hence, inferentially, appellant argues that some one connected with VanDusen’s plant, or an independent agency, must have changed position of the top plank — otherwise it would have been hit when the train passed the stack on its inbound trip. The railroad company thinks that this inference necessarily arises from the fact that no one was known to have touched the boards during the interim in question.
Appellees advance what they think is a tenable explanation by pointing to that part of VanDusen’s testimony where it is*said that the top plank was at an angle of twenty-three degrees; that it was physically impossible for engine or .tender-projections (such as steps, etc.) to have brushed by the board if but slight contact was made with its side and when direction of travel was toward the short end of the board; but on the return trip contact was such as to put pressure against the obstruction, forcing it from its position and hurling it against the plaintiffs.
There is no drawing or chart illustrating the physical situation upon which this inference rests. Personal testimony does not, in exact words, establish the concurring events in sequence precisely as we have presented them. Still, reasonable inferences deducible from pertinent evidence justified the jury in finding that some one negligently placed the planks too close to the railroad, and that their position should have been seen if an appropriate lookout had been kept. Therefore, when negli gen.ce of the agency responsible for placement materially supplemented negligence of the appellant, and when injury resulted, Missouri Pacific cannot escape responsibility on the ground that its operatives did not in fact see the danger. It is true the engineer and fireman testified they were keeping a lookout; but it is equally true that the plank was not suddenly and unexpectedly put in the position from which it was dragged. It must have been on top of the two others, and it was bound to have extended far enough toward the track for some part of the engine to have struck it.
The second contention for reversal is that the Court erred in refusing to permit appellant to introduce in evidence the contract it had with the veneer company, wherein there are obligations as to maintenance. The Court was correct. Appellant could not contract against its negligence to the exclusion of rights accruing in favor of third parties. But even if this were legally possible the contract would not have a place in this record because at the time of injury the railroad company was extending the line for its own purposes.
It is next insisted that the Court acted prejudicially in requiring Dr. Hodges to answer the question, (asked by the appellees’ attorney) “Isn’t it reasonably possible that from this injury, this man may have a stroke ? ’ ’ Following an objection the Court ruled that the witness should answer. An exception was saved.
The answer was not of importance. The Doctor said, “I don’t know.” He then added: “I don’t know, [but] I would say this: He does have “autorokosis” and could have any time.” Assuming that the Doctor said arteriosclerosis and that the stenographer erroneously transcribed “autorokosis,” the answer was but an assertion that a condition existed, from which the physician believed that paralysis might result. Preceding the question just quoted, Dr. Hodges was asked: “From an injury to the brain to the extent of a ruptured blood vessel, and to such an extent that you were required to draw blood off his spine on two occasions, (and you say you saved his life) is it reasonable to infer from that injury that this man may have a stroke of paralysis ? ’ ’ Answer: “Any man 77 years old with hardening of the blood vessels and a hypertensive heart is liable to have [a stroke] any time. Mr. Ross’ blood pressure was never high, though; in fact it was low: 110 over 80 the hospital record showed. The other day I took his blood pressure and it was 130 over 90.” Question: “Doctor, let’s get back to the question, please: isn’t it reasonably possible that this man from this injury may have a stroke?” Answer: “Now, Bill, I don’t know about that, except that I do think the blood vessel healed where it ruptured.”
These questions and answers were not objected to. It was only when plaintiffs ’ attorney insisted upon a yes or no response that the objection was interposed.
It is quite clear that Dr. Hodges thought the primary injury had healed and that the hypertension spoken of was not caused by the blow Ross received.
The fourth and fifth assignments relate to instructions regarding negligence, and were not erroneous.
Appellant thinks it was error for the Court to tell the jury that the law furnishes no definite rule by which physical pain and suffering may be measured for the purpose of assessing damages, and “this must be left to the sound discretion and judgment of the jury, based upon the evidence in the case.” It is contended that the instruction was misleading and that it created in the minds of the jurors a belief that “a large amount of damages might be found. ’ ’ The instruction was not erroneous. The objection as. shown by the record was based in part upon appellant’s contention that the jury could infer it had a right to compensate for mental pain and anguish. This phase of the instruction is not carried forward in the assignments.
Argument is made in respect of other instructions asked, and as to some refused. It is our view that no prejudice resulted and that the objections are not sound.
The judgments were not excessive. Boss was knocked to the concrete paving and suffered a brain concussion. He was unconscious for five or six days, but this condition did not immediately follow the injury. The patient, when taken home, complained of headaches, requiring hospitalization. Dr. Hodges made a spinal puncture. It disclosed a ruptured blood vessel. Blood was in the spinal fluid. G-lucose was administered intravenously as nourishment. Spinal punctures were made on three occasions, after which Boss regained consciousness and began to improve. He still complains of headaches and dizziness.
Launius sustained a fracture of the pelvis bone on the left side. He was hospitalized one day and was directed to remain in bed a month. The patient complained of other injuries.
The testimony shows that each appellee suffered injuries other than those here detailed.
The record is free of prejudicial errors, and the judgments must be affirmed. | [
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Smith, J.
This is a suit in ejectment involving an eight-acre tract of land lying between the adjoining farms of appellant Gambill, defendant below, and appellee, Wilson, the plaintiff below. Inasmuch as the cause was heard with the consent of the parties by the court sitting as a jury, we must give the testimony tending to support the court’s finding its highest probative value in determining the question of fact upon which the cause was decided, that is whether plaintiff was estopped to assert title. The court below held that he was not, and rendered judgment accordingly, and from that judgment is this appeal.
We, therefore, state the case as Wilson, the plaintiff, testified. He purchased a 200-acre tract of land and under a misapprehension as to its south boundary took possession of the land in litigation, cleared and cultivated it for a period of 10 years under claim of title, but he never at any time paid any taxes thereon. The land in question was assessed for taxation under the description': Pt. southwest quarter, northwest quarter, section 20, township 15 north, range 5 east, and was sold under that description for the non-payment of the 1928 general taxes. The land was certified to and purchased from the State by one Burton, and the deed to him employed the same defective description under which it had been sold for taxes, but Burton conveyed the land to Gambill under a correct description. Wilson knew nothing of the tax sale and the deed from the State until in February preceding the trial. He attempted to buy the land from Burton, who asked $400 for his dee"d, a price he was not willing to pay. Prior to this tax sale Gambill, who like Wilson was unaware of the correct line between their adjoining farms, attempted to buy the eight acres from Wilson, who declined to sell.
Gambill knew nothing about the tax deed until Wilson told him about it, and Wilson said to Gambill, “I’ll see John [Burton]. If he won’t let me have it you get it if you can. I ain’t going to pay him $400 for it.”
Gambill and Wilson had agreed to build and to divide the cost of a fence on the south side of the land, and this fence, if built, would have enclosed the land as a part of Wilson’s farm. There had been no dispute as to the boundary line between Gambill and Wilson, but Wilson admitted that the tract in litigation was not a part of the land which he had purchased, and for which he had a deed, and he was aware of the fact “that it was cut off of Gambill’s forty acres” before the occurrence of the incidents on which Gambill bases his plea of estoppel. Wilson admitted that he told Gatnbill that he was unable to trade with Burton, and that “for him to go ahead and get it” and Gambill then bought it from Burton for $300 and he had an abstract of the title made which cost him $25.
Now before either party was aware that Burton had obtained the deed from the State, they had bought the material to build a fence on the south side of the eight-acre tract. Gambill did obtain a deed from Burton and so advised Wilson, and they together proceeded to build a fence, not on the south line as originally intended, but on the north line, the result being that the eight-acre tract was enclosed and became a part of Gambill’s farm'.
Wilson testified that when he learned that the land to which he had no record title had been sold to the State for taxes, which he had not paid, he supposed he had lost the land and that as he was unable to trade with Burton he so advised Gambill, and that at his suggestion Gambill bought it. Later he was advised that he had not lost his title. This opinion was no doubt based upon the correct assumption that the deed from the State to Burton was void because of the defective description of the land and Wilson, after being so advised, brought this suit to recover possession of the land which had become a part of Gambill’s farm by building the fence referred to. As has been said Wilson assisted Gambill in building the fence.
Wilson was correctly advised under the facts stated, that he had acquired title to the eight-acre tract by reason of his adverse possession, and further that the deed from the State was void because of the defective description of the land in that deed.
The judgment should therefore be affirmed unless under the facts stated Wilson has estopped himself to question the validity of the title, which according to his own admission he had induced Gambill to buy.
Numerous cases are cited and quoted from in the briefs of opposing counsel, and among others Thomas v. Spires, 180 Ark. 671, 22 S. W. 2d 553, and Lacey v. Humphres, 196 Ark. 72, 116 S. W. 2d 345, and it is upon the second of these cases that Gambill chiefly relies. Each of these cases recognized and stated the law to be that the plea of estoppel in pais is available in actions at law as well as in suits in equity.
There is some similarity of facts in each of these cases to the instant case, in that one person had induced another to buy land. The plea of estoppel was sustained in the case last cited, but not in the first, and it is upon the case first cited that Wilson chiefly relies for affirmance of the judgment here appealed from.
In both cases there had been a ■ forfeiture to the State for the non-payment of the taxes due thereon, and while it is true that the land owner in each case thought he had lost his land by reason of the forfeiture, there is a distinction between the case of Thomas v. Spires, supra, and the instant case. In the first case it was said that the testimony was sufficient to raise a question for the jury whether the land owner had induced the purchaser to buy upon the representation that he had abandoned all claim to the land, inasmuch as he had testified that it was his intention to keep the land if he could' get someone to redeem it for him.
Here the testimony is undisputed that Wilson abandoned the land and placed Gambill in possession of it. He did this by assisting in building a fence which enclosed the land as a part of Gambill’s farm. In this connection it may be said that according to the undisputed testimony, Wilson was advised soon after obtaining a deed to the 200 acres which he now owns, that his deed did not cover the eight acres here in litig;ation, and that it was in fact a part of the tract of land to which Gambill had title.
One Darr, a neighbor and friend of Wilson, was called by Wilson'as a witness, and it was Darr who told Wilson that Burton had a deed to the eight-acre tract. Darr testified that he told Wilson about the deed and “He [Wilson] said he would as soon Burton had it [the land] as anybody else, as it was not his.” Wilson admitted that he knew that the eight-acre tract was, as lie expressed it, “eat off before Gambill bought it,” but that Gambill had made no claim to it. In other words, the eight-acre tract had been a part of the land described in the deed under which Gambill acquired title to the land adjoining that of Wilson.
Wilson attempts to identify this case with the case of Thomas v. Spires, supra, and to distinguish it from the case of Lacy v. Humphres, supra, by saying that “Wilson never at any time indicated that he was abandoning the land, and was not going to pay the taxes on it. ’ ’ But Wilson admitted that he never at any time paid the taxes on it, this for the reason, no doubt, that it was not included in the description of the land to which Wilson had a paper title. And the undisputed testimony shows that Wilson did abandon the eight-acre tract, and he did this by assisting in building a fence which sepa-' rated the eight acres from his land and enclosed it as a part of Gambill’s farm. After Gambill had purchased the eight acres from Burton, he and Wilson were uncertain as to the boundary line of this tract and they called Darr in to assist in locating the line, and'the new fence was located in accordance with this survey.
The undisputed testimony shows that after telling Darr that the eight acres did not belong to him, and that he would as soon Burton had it as anyone else, Wilson adyised Gambill that he had lost this land, and that it could be purchased by anyone willing to pay the price which Burton asked,-but which he was unwilling to pay.
This is not a case where Gambill acted independently of Wilson, or where there was mere silence on Wilson’s part when he should have spoken, but it is a case where Wilson induced Gambill to buy the land and this conduct on Wilson’s part was voluntary and originated with Wilson and not with Gambill. Certainly Gambill did nothing to mislead Wilson, who was in full possession of all the facts and acted on his own judgment in suggesting that Gambill buy the land.
The briefs of opposing counsel cite many cases dealing with the question of estoppel in pais and a number are cited in the case bi M & P Bank v. Citizens’ Bank, 175 Ark. 417, 299 S. W. 753. Chief Justice Hart there quoted and approved the following statement from the case of Trapnall v. Burton, 24 Ark. 371: “A man is estopped when he has done some act which the policy of the law, or good faith, will not permit him to gainsay or deny; and when the principle of estoppel is understood, and unwise legislation or decision does not push the doctrine beyond reasonable limits, it is one of the wisest and most just and righteous doctrines of the law. The whole principle' of equitable estoppel is that, when a man has deliberately 'done an act or said a thing, and another person, who had a right to do so, has relied on that act or word, and shaped his conduct accordingly, and will be injured if the former can repudiate the act or recall the word, it shall not be done; but, of whatever things the act was evidence, in the nature of things, and on ordinary principles, it shall be taken to be conclusive evidence; and what was said, the party shall not deny to have been true. ’ ’
"We conclude in the application of these legal principles to the facts herein recited that the judgment should have been rendered in appellant’s favor.. The judgment from which is this appeal will therefore be reversed, and the cause remanded with directions to set aside the judgment from which is this appeal, and dismiss the case. | [
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McCULLOCH, J.
Appellee instituted this action against appellant railway company to recover compensation for personal injuries received while he was a passenger on one of appellant’s trains en route from Thomburg to Bigelow. It was a mixed train, hauling logs and other freight, and carrying a coach for the accommodation of passengers. The passenger coach was derailed and appellee sustained serious personal injuries.
The charge of negligence in the complaint is that appellant “permitted the roadbed, track, rails and ties to deteriorate, to become defective and the rails spread, rendering the same unsafe for the proper and careful operation of the train, by reason whereof the said coach was thrown from the track and caused to turn over as above alleged.”
The answer contained a denial of the charge of negligence and the trial of the issues before a jury resulted in a verdict in appellee’s favor awarding damages in a substantial sum.
It is conceded that the evidence is sufficient to sustain the verdict, both as to negligence of appellant company and also in the amount of the award of damages. The only ground urged for reversal of the judgment is that the court erred in giving instruction Ño. 1, which reads as follows:
“You are instructed that when the plaintiff became a passenger on the defendant’s railroad at Thornburg for the purpose of being transported to Bigelow, it became and was the duty of defendant to use the highest degree of care for his protection from injury which a prudent and cautious man would have exercised, consistent with the mode of conveyance and practical operation of the railroad, and if you find from a fair preponderance of the evidence that the railroad company failed to exercise this degree of care, and that by reason of such failure plaintiff was injured, then your verdict will be for the plaintiff. ’ ’
There was specific objection to the instruction on the ground that the language should be changed so as to make it apply only to the exercise of care in the operation of this particular train, and not to the general operation of the railroad. The objection is untenable for the reason that there is no issue in the case as to negligence in the operation of this particular train, and the charge of negligence relates solely to the failure to exercise proper care with respect to the condition of the railroad track. The company owed its passengers the same degree of care in that regard.
“Railroad companies are bound to the most exact care and diligence,” said Judge Battle, speaking for the court in Arkansas Midland Ry. v. Canman, 52 Ark. 517, “not only in the management of trains and cars, but also in the structure and care of the track, and in all the subsidiary arrangements necessary to the safety of the passengers.”
An instruction limiting the degree of care to the operation of this particular train would, therefore, have been inapplicable to the issues involved in the present case. The substance of the instruction, if not the exact form, has been repeatedly approved by this court. St. Louis, Iron Mountain & Southern Ry. Co. v. Purifoy, 99 Ark. 366; Dillahunty v. Chicago, Rock Island & Pacific Ry. Co., 119 Ark. 392.
Judgment is affirmed. | [
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McCULLOCH, C. J.
Appellee, W. P. Wofford, instituted this action at law against appellant Bush as receiver of the St. Louis, Iron Mountain & Southern Railway Company, to recover damages for an alleged breach of contract whereby appellant’s agents employed appellee to do grading work with four teams for a period of sixty days. Appellant denied that he executed the contract in question, and also denied that, if there was such a contract, it was broken by appellant. There was a trial of the issues before a jury which resulted in a verdict in favor of appellee, and an appeal has been duly prosecuted.
The first contention is that the testimony is not sufficient to sustain the verdict in that there was no contract covering a definite period of time. Appellee testified that he was employed by the section foreman to work with four teams for sixty days. He testified that when the foreman first approached him with the proposition to do the work he declined to do so on the ground that he then had a good job hauling coal and was afraid that if he went to work in the railway service they might stop him from working before he could work long enough to make the job a remunerative one. His testimony was, in substance, that tbe foreman then proposed to hire him for the period of sixty days, and that he aggreed to go to work under those ter-ms, and that'the price was also agreed on. This testimony made an issue for the determination of the jury as to whether or not the contract was in fact entered into'as claimed by appellee.
Again, it is urged that the testimony is insufficient because there was no authority on the part of the section foreman to enter into a special contract fixing a definite period of service for an employee. Appellant adduced testimony establishing the fact that there was a rule of the company not to employ men in service of this kind for a definite time, but to employ by the hour or by the day, and it is contended that the section foreman was without actual authority. Conceding that the undisputed evidence establishes lack of actual authority, it cannot be said that the evidence was insufficient to warrant a finding that the .action of the foreman was within the apparent scope of his authority or at least within the apparent scope of the authority of Mr. Blake, the roadmaster, who gave express authority to the section foreman to enter into the contract. The testimony shows that Mr. Blake .authorized the section foreman to make the contract with appellee for performance of services during the period of sixty days. Blake was a general agent, and appellee was not put upon inquiry as to restrictions upon his authority. Three States Lumber Co. v. Moore, 132 Ark. 371. Blake was authorized to employ men to perform services of this kind, and the fixing of the terms of the employment was within the apparent scope of his authority. Appellee had worked for appellant before that time in similar service, and it was a question for the jury to determine whether or not he was apprised of the actual authority of the road-master.
Again, it is said that the undisputed evidence shows that appellee first broke the contract by withdrawing two of his teams from this work, and that he could have earned as much by hauling coal from a mine after he was discharged from appellant’s service. The evidence is not unms putea on tnose questions, and we .are ol tne opinion tnat there was enough to justify a submission ox tne issue to the jury.
Jiirror is assigned m the ruling of the court in refusing to give an instruction (No. 4) which would have told tne jury that if “it was the custom or rule of the company to employ labor of the character in question by the uay only, and that this custom was known to the plain-tin, or by the exercise of ordinary diligence or inquiry could have been known to him, then he is charged with a notice and knowledge of this fact, and if, with such knowledge and notice, he entered into a contract with the agent of the company of a character not authorized by the defendant, then he cannot recover in this cause. ’ ’
This instruction is, for the reasons already stated, incorrect in telling the jury that the duty rested on appellee to inquire concerning the authority of the agent. Three States Lumber Co. v. Moore, supra.
The court submitted to the jury in an appropriate instruction the issue as to the charge that appellee abandoned the contract, and there was no error in refusing the instruction on that subject requested by appellant.
We find no error in the proceedings, and the judgment is therefore affirmed. | [
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HUMPHREYS, J.
Appellee instituted suit in replevin in the Logan Circuit Court, Northern District, against appellant, for the possession of a barn, placed upon appellant’s land while he occupied the premises under lease, which expired in the year 1915. Appellee alleged that the barn was built under permission to remove same .after the expiration of the lease; that his right to remove the barn had not expired ;_that he was entitled to the immediate possession of the property, but appellant was wrongfully detaining same; that the barn was of the value of $350, and that by reason of the wrongful detention of same, he was damaged in the sum of $100.
Appellant answered, denying the material allegations of the complaint and affidavit in replevin, and pleaded, by way of further defense, a written contract between them, of date December 22, 1915, under the terms of which, it was alleged, appellee’s right of removal of said barn expired before the institution of this suit.
The cause was submitted to .a jury upon the pleadings, evidence and instructions of the court, upon which a verdict was returned in favor of appellee for the barn, or its value, $350, and damages in the sum of $150. A judgment was rendered in accordance with the verdict, from which, under proper proceedings, an appeal has been prosecuted to this court.
In the year 1910, or 1911, .appellee verbally leased a farm from appellant’s agent, Honea Crossno, which lease expired in the year 1915. Crossno became interested as a partner in the lease the following fall. During the term of the lease, appellee and,his partner built a barn upon the land. Appellee afterwards purchased his partner’s interest in the lease and barn. In the fall of 1915, a dispute arose between appellee and appellant which resulted in the institution of a suit by .appellee against appellant. The suit was compromised by the execution of a written rental contract, of date December 22, 1915, for the rental of the farm for the year 1916. Appellee bound himself by one of the provisions in the contract to pay appellant $775 for the use of the land for the year 1916, and the right to remove the barn from the premises within twelve months after the expiration of the lease, or by January 1, 1918. Over the objection of appellant, appellee was permitted to testify that the barn was built under contract that it should remain the personal property of himself and partner, with the right to remove it from the premises just as other personal property. An exception to the admissibility of this evidence was properly preserved. The evidence on the part of appellee also tended to show that in December, 1917, some five days before the time expired under the contract for moving the barn, appellant extended the time indefinitely to appellee for moving same. The evidence on the part of appellant tended to show that the barn was built upon the land without, any understanding that it should remain the personal property of appellee and his partner, with the right to remove it from the premises at any time; also to show that appellant never extended the time to appellee for removal beyond January 1, 1917, the time specified in the contract. Under the view of this court as to the disposition of the case, we deem it unnecessary to set out the substance of the evidence responsive to the issues collateral to the main question involved on this appeal.
The cause was sent to the jury on the theory that if the barn was ever personal property, it was always personal property, and that appellee had a right to remove it even though he did not remove it bv the time agreed upon in the written lease for the year 1916. This was error, because the character of such an improvement, or fixture, may be determined by contract either express or implied. The rule is well settled in this State that such structures may be treated either as real estate or personal property, dependent upon the intention as to how they shall be regarded and treated by the parties interested. Markle v. Stackhouse. 65 Ark. 23: Bemis v. First National Bank, 63 Ark. 625; Field v. Morris, 95 Ark. 268; Bache, Receiver, v. Central Coal & Coke Co., 127 Ark. 397. Appellee suggests that the rule laid down is in conflict with the doctrine announced in the cases of Buffalo Zinc & Copper Co. v. Hale, 136 Ark. 10, 206 S. W. 661; Beauchamp v. Bertig, 90 Ark. 351, and Harmon v. Kline, 52 Ark. 251. We see nothing in them contravening this rule. On the contrary, each of the cases recognizes the doctrine that tenants must remove buildings placed by them upon leased premises within the time specified in their leases, else they immediately become a part of the real estate t9 which attached. The written contract between the parties in the instant case provided that the barn should remain the property of appellee until January 1, 1918, if removed from the premises by that time; which was, in effect, an expressed intention between them that it should become a part of the real estate if it remained on the premises thereafter. The theory upon which the case was submitted to the jury was contrary to the plain terms of the written contract. The character of the structure or fixture having been determined by an unambiguous written contract between the parties on December 22, 1915, it was error on the part of the court to admit oral evidence tending to establish the character or nature thereof at a prior date. The .antecedent oral lease under which the barn was built on the premises by appellee and his partner, and the dispute between the parties, growing out of said contract, were merged into the compromise contract of date December 22, 1915; so, it was improper to admit oral evidence confirming or contradicting the unambiguous written contract. Tillar v. Wilson, 79 Ark. 256; Soudan Planting Co. v. Stevenson, 83 Ark. 163; Zearing v. Crawford, McGregor & Camby Co., 102 Ark. 575.
Appellant also insists that the alleged waiver on her part of the time specified in the contract, in which to remove the barn, was void, first, because not in writing; and, second, without consideration.
• As to coming within the statute of frauds and therefore void, appellant cites section 3656 of Kirby’s Digest, which is as follows: “No contract for the sale of goods, wares and merchandise, for the price of thirty dollars or upward, shall be binding on the parties unless, first, there be some note or memorandum, signed by the party to be charged; or, second, the purchaser shall accept a part of the goods so sold, .and actually receive the same ; or, third, shall give something in earnest to bind the bargain, or in part payment thereof. ’ ’
The oral extension of time, if granted, in which to move the barn was in no sense a ‘ ‘ sale of goods, wares and merchandise,” and, therefore, not 'included in or controlled by the terms of the statute cited.
Neither was the extension of time, if granted, in which to move the barn, void for the want of consideration. The detriment that would have resulted to appellee in the loss of his right to remove the barn, by reason of the extension of time, if not enforced, was sufficient to support the new agreement for further time in which to move it. This identical question was involved in the case of Nothwang v. Harrison, 126 Ark. 548. In upholding a contract for an extension of time to cut and remove timber from lands held under a timber lease, the court said: “An agreement as to the time or manner of the exercise of some legal right when so acted upon that the right has become valueless unless it may be enjoyed pursuant to the agreement, is a sufficient consideration to support a contract to that effect.”
It is also insisted by appellant that the court erred in refusing to instruct that the burden was upon appellee to prove that appellant had waived her right to the barn. Waiver is the gist of this action. In fact, it is the only ground upon which appellee can sustain his action at all. The burden rests upon him to prove his case by a preponderance of the evidence. The party asserting a waiver must establish it by the weight of the evidence. Beene v. Green, 127 Ark. 119.
Lastly, there appears to be a difference between learned counsel as to the measure of the damages applicable, in case appellee should prevail. Appellee is not in a position to make use of the barn while on appellant’s land, nor to move it in its present form to other lands and use it. In order for appellee to use it as a barn, it must be torn down and rebuilt on Ms own premises. In other words, appellee can only make use of it when reduced to its original state of lumber. Lumber would have no rental value. It follows that appellee could not recover damages for the use of non-usable property. Appellee could not, therefore, recover damages for the loss of its use. His damages would consist of its depreciation in value from the time he attempted to move it until recovery, with interest on the whole amount at the rate of six per cent, per annum from the date he demanded it. Cobbey on Replevin (2 ed.), p. 492, section 914.
For the errors indicated, the judgment is reversed and the cause remanded for a new trial. | [
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"WOOD, J.,
(after stating the facts). It was proved that the Bank of Cave Springs was duly incorporated and the appellees, among others, are put down as the stockholders, together with the number of shares owned by each, as appears from the certificate required to be filed by the president and directors of the corporation, and which was filed for record on the 10th day of September, 1909, with the county clerk. Section 845 of Kirby’s Digest.
The testimony, as set forth in the above statement, tends to prove that the Bank of Cave Springs became indebted to the Judsonia State Bank, as evidenced by a note, which was executed by the Bank of Cave Springs for $2,500, and, also, its overdraft for $893; that E. R. Hughes, the president of the Bank of Cave Springs, afterwards executed his individual note to cover the sum total of this indebtedness, at which time the Judsonia State Bank delivered to him the $2,500 note and overdraft account, and endorsed the $2,500 note without recourse and that afterwards the Judsonia State Bank transferred the individual note of E. R. Hughes, and also the note of the Bank of Cave Springs and its overdraft, to the Pangburn State Bank for the sum of $3,600.
Counsel for the appellees contend that the stockholders are not liable for the indebtedness of the Bank of Cave Springs to the Judsonia State Bank, because the latter bank accepted Hughes’ personal note with collateral security for the amount of the indebtedness represented by the note and overdraft, and transferred said note to Hughes without recourse, and also its overdraft account. Professor Tiedeman in his work on Commercial Paper, at section 260, says:
“When an endorsement is made ‘without recourse’ the endorser relieves himself of all liability for the dishonor of the paper. But, whatever popular impression it may produce, such an endorsement is not recognized in law as having cast any suspicion upon the character of the paper, or the financial responsibility of the parties to it.”
While the words “without recourse” "tend to show that the Judsonia State Bank, the payee of the note, had accepted the-individual note of Hughes in payment of the note of the 'Bank of Cave Springs and had transferred its title in such note to Hughes, yet the testimony set forth in the statement shows that such was not the purpose of the endorsement, but, on the contrary, the preponderance of the evidence shows that the purpose of the delivery of the note and overdraft account to Hughes was to enable him to make collection of the same from the Bank of Cave Springs and its stockholders, and that the individual note executed by him was given, not for the purpose of paying off an indebtedness of the Bank of Cave Springs to the Judsonia State Bank, but for the purpose of becoming a joint maker and jointly liable for such indebtedness.
We are convinced that the title to the note executed by the Bank of Cave Springs to the Judsonia State Bank, and also the overdraft account, was not transferred by the above transaction to Hughes. But, if we. were mistaken in this, the appellant could still maintain this suit, for there is no testimony whatever in the record to show that either Hughes or the Bank of Cave Springs has paid the note and overdraft account. Even if it were proved that Hughes had paid the note, he was but a joint maker and the Bank of Cave Springs would still be liable to his estate because the debt, as represented by the note and overdraft, was primarily its obligation. It must be remembered that this is a suit by the receiver of the in solvent Bank of Cave Springs to recover the assets of snch bank, alleg-ed to have been illegally withdrawn by its stockholders.
Where stockholders of a banking corporation, knowing that the bank is insolvent, sell their stock to the cashier and are paid out of the bank’s assets, the effect of the transaction is a withdrawal of their stock from the bank on account of its insolvency in fraud of creditors, and such payments may be recovered by the receiver of the bank for the benefit of its creditors. Corn v. Skillern, 75. Ark. 148. See 34 Cyo. 401, and cases there cited. The receiver of an insolvent bank stands in the place of and represents such bank. He must collect and administer its assets for the benefit of creditors, stockholders and all who are interested in the financial affairs of the corporation. Jordan v. Harris, 98 Ark. 200. Even if the testimony had shown that Hughes had paid the debt of the Bank of Cave Springs to the Judsonia State Bank, the other stockholders would be liable to him for their pro rata part of such indebtedness, and a stockholder is entitled to have the liability of other stockholders enforced, and the directors have no right to cancel the note. It would be the duty of the receiver of the bank to require the stockholder who had not paid for his stock to' pay for .the same and to require those who had illegally withdrawn funds to refund the same. Bank of Des Arc v. Moody, 110 Ark. 39; 34 Cyc., supra.
Now, the undisputed testimony shows that at the time of the institution of this suit, the Bank of Cave Springs was insolvent, and that there was an outstanding indebtedness against it. This being true, such of the appellees, who were stockholders, who had wrongfully withdrawn the funds paid for their stock, or who were indebted for stock subscribed, were liable pro tanto to the creditors of the insolvent bank.
It follows that the court erred in dismissing the appellant’s complaint for want of equity.
There was testimony tending to prove that certain stockholders turned their stock certificates back to the cashier and that he returned notes, that had been given for stock, to the parties who gave them, and also refunded money that had been paid by certain stockholders for stock.
There appears to be some uncertainty and confusion in the record as to the precise action taken by the stockholders and as to who were the stockholders, and the number of shares of stock held by those who were stockholders and as to the notes that were returned and the amount of money that was refunded, and to whom.
Inasmuch as the cause must be reversed, we will leave this matter open for further proof and a determination of the trial court.
The decree is reversed and the cause will be remanded with permission to the parties, if they so elect, to take further testimony, and for such other proceedings as may be necessary according to law and not inconsistent with this opinion. | [
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, Smith, J.
Appellee, plaintiff below, brought suit in ejectment to recover possession of a tract of land in Greene county, which suit, on motion of appellant, defendant below, was transferred to equity, where upon a trial, possession was awarded as prayed, and from that decree is this appeal.
Through mesne conveyances appellee acquired the State’s claim of title to the land based upon a decree confirming the sale of the land to the State for nonpayment of the taxes due thereon for the year 1938. This confirmation decree was rendered November 2,1942, and within less than a year from the date, appellant filed, pursuant to and in compliance with § 8719, Pope’s Digest, as amended by Act 423 of the Acts of 1941, p. 1227, a petition praying that the confirmation decree be set aside, and that he be permitted to redeem the land from the tax sale. Appellant testified that the clerk of the court accorded him this right upon paying the taxes for which the land had sold, and those which had subsequently accrued up to the date of his redemption.
In his petition to redeem, appellant alleged his lack of knowledge of the confirmation proceeding until after the rendition of the confirmation decree, and he alleged that the tax sale which had been confirmed was invalid for the reason that the clerk of the county court had failed to attach to the record of the 1938 delinquent tax list the certificate required by § 13848, Pope’s Digest. That allegation was shown to be true and is not questioned and this omission rendered the tax sale invalid. Cecil v. Tisher, 206 Ark. 962, 178 S. W. 2d 655; Devore v. Beard, 208 Ark. 476, 187 S. W. 2d 173.
In the case of Redfern v. Dalton, 201 Ark. 359, 144 S. W. 2d 713, we said that under the provisions of § 9 of Act 119 of the Acts of 1935, pursuant to which the confirmation decree had been rendered, a landowner might within one year after the rendition of the confirmation decree, make the showing that he had no knowledge of the pendenc}7* of the confirmation proceedings, -and also that he had meritorious defense against the rendition of the decree, in which event he would have the right to redeem from the tax sale which had been confirmed. And it was there further held that a showing that the sale was invalid for any reason was a meritorious defense within the meaning of this statute.
Appellant has therefore made the requisite showing of a right to redeem, provided he owned or had such-an interest in the land as entitled him to question the confirmation decree. This is the controlling question in the case.
It was said in the case of McMillen v. E. Ark. Inv. Co., 196 Ark. 367, 117 S. W. 2d 724, quoting-from the case of Woodward v. Campbell, 39 Ark. 580, that: “Statutes providing for redemption from tax sales always receive a liberal construction. Almost any right, either at law or in equity, perfect or inchoate, in possession or in action, or whether in the nature of a charge or incumbrance on the land, amounts to such an ownership as will entitle the party holding it to redeem. Certainly a party claiming the land under an executory contract to purchase it is the owner within the meaning of the act. ’ ’ A number of later cases have reaffirmed that holding.
It is conceded that the original title to the land had been acquired by the New England Securities Company and that this title was conveyed to Securities Savings Circle “D” by the New England Securities Company. This Securities Savings Circle “D” was formed by employees of the New England Company and there was some question as to whether it was a corporation or a partnership. At any rate, this Circle, acting through J. W. Ramsey, Jr., its trustee, entered into a “contract of sale and rent” on October 1, 1927, with appellant, whereby the Circle contracted to sell appellant the land in question for the sum of $600, to be paid in annual installments of $100 each, the first of which was due in 1928. The contract provided that upon failure to pay any installment it should “from the date of such failure be null and void and that any rights acquired under the contract shall cease, and that the premises should revert to and revest in the Circle without any act of reentry.” And further that if occupanci^ continued after default, rent should be paid at the rate of $45 per year.
Appellant Harrison testified that he took possession of the land upon the execution of this contract, and that he has since continuously been in possession either personally or through someone holding under him. He admitted that he had not made the payments required or any of them, but testified that he had paid the taxes every year until 1938, and the land was sold for nonpayment of the taxes for that year, and that he had paid no taxes subsequent to that date.
After such testimony had been taken, appellee procured a quitclaim deed executed in the name of Savings Circle “D,” an unincorporated association, signed and acknowledged by “J. W. Ramsey, Jr., surviving officer” and by “M. S. Gibson, Member of the Board of Directors.” This deed was dated October 17, 1944, and its validity is questioned upon the ground that appellant claims also to have a deed from Circle “ D ” dated August 23, 1938, executed by J. W. Ramsey, Jr., whose acknowledgment of the deechrecited that it was executed “under authority conferred by resolution of its Board of Directors.”
Appellee apparently is relying upon this deed for the purpose of showing that appellant acquired no title under his deed from the Circle as her deed from the Circle represents a title which she acquired after filing this suit. Percifull v. Platt, 36 Ark. 456; Dickinson v. Thornton, 65 Ark. 610, 47 S. W. 857.
Appellant paid $100 for his deed, while appellee paid $250 for hers.
The decree from which is this appeal finds that appellant had no title or interest in the land as he had forfeited his rights as purchaser under his original contract with Circle “D,” for the reason that he had made none of the payments which his contract required, and that through'this failure he forfeited all interest in the land, and it was’ further found by the court that the deed to appellant from Eamsey and Hall above referred to, conveyed no title for the reason that they had no title to convey, and had executed the deed in the name of the Circle without authority.
We reverse the decree for the reason that we think the court was in error in holding that appellant had no such interest in the land as would entitle him to intervene in the confirmation proceedings and to redeem from that decree. Unquestionably appellant entered into the possession of the land in 1927 as a purchaser, and he paid the taxes thereon until 1938, and he testified that he had remained in'possession since the date of his contract. The court correctly held that through failure to make the payments required by the contract of purchase, appellant had forfeited his rights under the contract. But this right to assert a forfeiture was for the benefit of appellant grantor in the contract to sell, and we think the testimony shows that this right was waived. Appellant testified that for several years after taking possession of the land he received many letters from the ’Circle demanding payment of the purchase money notes, to which he did not respond for the reason that he had no money and for that reason also he failed to pay the taxes. He testified further that he finally received a letter from the Circle in •which he was directed to remain on the land and take care of it. Although the contract of sale gave the Circle the right to demand payment of rent at the rate of $45 per year, no rent was demanded and none was paid.
Considerable correspondence took place between appellee and persons professing to represent the Circle, concerning the purchase of the land from the Circle. We copy from this correspondence certain statements which show that the right to assert the forfeiture was never claimed. In one of these letters it was said, that while appellant had not paid all the taxes and none which had recently accrued, he had paid some of them for his own protection, and that “otherwise possession of the property would have been questioned long before this.” In another letter it was stated that “by the terms of the contract of sale, we hold Mr. Harrison owes $600 plus 17 years interest, he having paid nothing on the contract during all these years.” It was said in this letter that “an assignment of our sale contract with Harrison might be a help to you in getting possession, as it is certain that Harrison would not want to pay the purchase money notes and the interest which had accrued on them. ’ ’ ' This letter mentioned also the deed to appellant from Circle “D” and referred to it as fraudulent. Finally for a consideration of $250 paid to persons claiming to be lawful representatives of Circle “D” these persons executed a quitclaim deed to appellee, and assigned their interest in the sales contract executed to appellant.
It will be observed that these persons as representatives of Circle “D” asserted and assigned a claim for 17 years interest and not rent. Certainly if appellant owed the interest due under the contract, he had an interest in the contract. It appears to be undisputed that Circle “D” never at any time collected or attempted to collect any rent, but did make demands for payment of principal and interest. Although the Circle had the right under the contract of sale to declare the contract had terminated, it did not do so. On the contrary, the Circle permitted appellant to remain in possession. Indeed, appellant testified that he was directed to remain in possession and that testimony is not denied. Appellant’s testimony is also undisputed that payment of rents was never demanded. The testimony also shows that long after the right to assert a forfeiture had arisen, the Circle made demand not for the payment of rent, but for the principal and interest. In the meanwhile from time to time appellant made various repairs including the building of a fence. These repairs were neither extensive or expensive, but it cannot be said that they were trifling or unsubstantial.
In correspondence between appellee and the persons who executed the deed in the name of the Circle, it was stated that appellant owed $600 “plus 17 years interest” and it was proposed to assign this claim, not for rent, but for principal and interest, and this was done when the deed was executed. To induce appellee to buy the land from the Circle the person who executed the deed wrote appellee: “By the terms of the contract of sale we hold, Mr. Harrison owes $600 plus 17 years interest, he having paid nothing on this contract during all these years. To substantiate your tax title, it would seem that an assignment of our sale contract with Harrison, to you might help in getting possession. With this contract you could make a demand on him for payment of his notes and it is certain that he would not be disposed to pay you the principal and interest due on them. This might be of more value in getting possession than our deed, which- under the circumstances can only be a quitclaim; executed by Mr. J. W. Ramsey who- is the only surviving officer of the organization holding our title. ’ ’
The date of this letter was September 15, 1944, and the quitclaim deed and the assignment to appellant’s contract were executed a few days later. The suit in ejectment had been filed November 16,1942.
We conclude, therefore, that the right to claim a forfeiture had been waived inasmuch as the Circle assigned the right to collect the interest due under it. If a forfei ture liad been claimed, rent would have been due, but not interest. Hanson v. Brown, 139 Ark. 60, 213 S. W. 12; Wade v. Texarkana B. & L. Assn., 150 Ark. 99, 233 S. W. 937.
Appellant’s right to intervene may be sustained not only under his contract to purchase, but through his possession óf the land under a deed from persons claiming the right to convey the title of Circle “D.” The court found this deed invalid as fraudulent, but while it may have been void, it was not fraudulent so far as appellant was concerned. He employed the services of an abstracter of land titles to procure it. This abstracter testified that he had prepared numerous abstracts of title to lands owned by the New England Securities Company and that the records showed that the title of the New England Securities Company had been conveyed to Securities Savings Circle “D,” and he was advised that the Savings Circle ‘ ‘D ” had divided its assets among its members and was operating under that name both in Kansas City,^Missouri, and in Little Rock, and that in the division of its assets the Little Rock branch had been given lands in both Mississippi and Greene counties, in which latter county the land in litigation is located. This witness testified that he purchased the land for appellant from persons operating the Little Rock office, and obtained the deed to appellant above referred to.
Appellant testified that he had possession both under this deed and under the contract of purchase above referred to. The court found, however, that the deed to appellant was executed by persons having no authority to do so, and we cannot say that that finding is contrary to the preponderance of the evidence.
But appellant had a claim of title to the land which he was entitled to have adjudicated, and this claim of title was such an interest in the land as entitled him to intervene in the confirmation proceedings and to redeem from the decree.
The state of the record is, therefore, that appellee now has title to the land acquired after the institution of this suit in ejectment under'her deed from the authorized representatives of Circle “D,” hut she does not have-title ■under the deed based upon the confirmation decree, the title upon which she based her suit from which decree appellant has redeemed.
The decree will, therefore, be reversed and the cause remanded with directions to adjudge what title appellant now has under his original contract of purchase from Circle “D” and the cause is remanded for that purpose. | [
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Smith, J.
Appellant who operates a twenty-two room hotel in the City of Fort Smith was convicted of a violation of Act 110 of the Acts of 1945. The relevant portions as applied to the testimony of this case, appear in the second paragraph of § 5 of the Act and read as follows:
“Further, it shall be unlawful for any operator of a tourist camp, hotel or rooming house, or any employee of such operator to accept as a guest any person without requiring a full registration as provided in § 2 of this Act, or knowingly to accept as a guest a person who has registered under a false name or who has registered with another under a false representation as to tíieir relationship, or who has falsely represented the current license designation of his automobile.”
The testimony in this case is in irreconcilable conflict and it w*as the function of the jury to weigh and sift it and to determine what portions of it were credible and should be believed. The verdict of the jury, finding the appellant guilty, reflects that the testimony offered by the prosecution was believed, and if so the verdict was abundantly sustained by this testimony which was to the following effect.
One Walter Griffin was a guest at the hotel on the night of January 17,1946. He was found in room number sixteen, with a woman named Ruby Orton at about 3:35 on the morning of January 18th. Both Griffin and the woman were undressed. Griffin had been assigned a different room. There appears on the hotel register the name of O. J. Johnson and wife, who had been assigned to room sixteen. Griffin and the woman found in the room with Mm were arrested and appellant was later arrested by the officers at about 3:35 a. m., and the officers testified that appellant told them at the time of his arrest that Griffin had registered as Mr. and Mrs. C. J. Johnson. Appellant was well acquainted with Griffin, who for a period of several years had from time to time been a guest at this hotel. Griffin, who was a railroad man, was a guest at the hotel on the night in question, having been assigned room thirteen.
The officers testified that they went to room sixteen, which had been assigned to C. J. Johnson and wife, and when they entered the room they found Griffin and the woman, both undressed, and both officers testified that appellant told them he ‘ ‘had registered them in. ’’ If this testimony is true, appellant knew that Griffin had registered under a fictitious name, and the testimony is undisputed that the woman registered as his wife, was not his wife.
Griffin and the woman were taken to the police station and appellant was later brought there, and all three were released when appellant posted a hundred dollar cash bond for each of them. Griffin and the woman entered pleas of guilty in the municipal court, to the charge preferred against them, and Griffin paid both fines. Neither Griffin nor the woman testified at the trial from which is this appeal.
Appellant offered testimony to the effect that a man and woman who called themselves C. J. Johnson and wife, applied for accommodations. Appellant asked them if they were married, and the man produced his marriage license, and other testimony was offered to the effect that this man and not Griffin signed the hotel register. But the testimony of the officers as to appellant’s statement to them when the arrest was made sharply conflicts with this testimony. One of the officers testified as follows: “ Q. I will ask you if you know whether or not Mr. and Mrs. C. J. Johnson occupied a room in the Ozark Hotel and paid a fine? A. C. J. Johnson paid two fines, according to this check. W. M. Griffin and Ruby Orton. Q. You say they registered as Mr. and Mrs. C. J. Johnson, do you know her, and Walter M. Griffin and Ruby Orton? A. Yes, they plead guilty to it and said they did. Q. They told you they registered that way? A. Yes, and plead guilty and paid the fine. Q. You say Philpott told you that? A. Yes, sir. Q. And Griffin told you that? A. Yes, sir.”
The testimony of the other officer was to the same effect, and if true it is sufficient to sustain the conviction and the judgment must be affirmed and it is so ordered. | [
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Ed. F. McF addin, Justice.
This is a divorce suit; and the only question on appeal is, whether the appellee was a bona fide resident of Arkansas “for two months next before the commencement of the action,” as is required by § 4386, Pope’s Digest. We refer to the parties as they were styled in the lower court.
D. L. Crane filed this divorce suit on February 11, 1946. The defendant is a resident of Florida. Upon learning of the suit by letter from the attorney ad litem, she appeared specially, on March 5, 1946, and moved the court to dismiss the complaint for want of jurisdiction “for the reason that the plaintiff is not and has not been a resident of Garland county, Arkansas, for the time and in the manner prescribed by law to give this court jurisdiction.” The evidence on this motion was heard on March 12, 1946. The chancery court denied the motion, and the' defendant preserved her exceptions. Plaintiff then introduced some evidence as to alleged cause of divorce; and a decree was granted on the grounds of indignities, i.e., alleged acts of jealousy. On this appeal the defendant relies solely on the issue of residence. We, therefore, refrain from detailing, or passing on, the sufficiency of the evidence as to the grounds of divorce.
I. The Residence Requirement. The Arkansas requirement as to residence in the “ninety-day divorces” is found in § 4386, Pope’s Digest; and requires, inter alia: “The plaintiff, to obtain a divorce, must prove, . . . a residence fot two months next before the commencement of the action. ’ ’
The plaintiff was a colonel in the United States Army. We have several recent cases involving residence requirements as applied to persons in the armed services. Some of these cases are: Kennedy v. Kennedy, 205 Ark. 650, 169 S. W. 2d 876; Mohr v. Mohr, 206 Ark. 1094, 178 S. W. 2d 502; Feldstein v. Feldstein, 208 Ark. 928, 188 S. W. 2d 295; O’Keefe v. O’Keefe, 209 Ark. 837, 192 S. W. 2d 556. In the O’Keefe case we quoted from the Mohr case:
“ ‘There are cases which hold that a person in the service of the United States may acquire residence in a state where he is in service sufficiently to invoke the jurisdiction of the courts of that state in divorce matters. . . . But in each of these cases there was something more than mere presence at a military post in the state. Without lengthening this opinion to analyze the holdings of other courts, we hold that there must be overt acts sufficient to demonstrate a real and bona fide intent to acquire residence here' before the State of Arkansas — as a silent third party to every divorce suit here — will allow its courts to be used as the haven of the transient and dissatisfied spouse.’ ”
We also held in the O’Keefe case that proof of residence must be corroborated the same as every other essential fact in a divorce case. With the foregoing cited cases as guides, we examine the evidence in the case at bar.
II. The Evidence as to Residence. The plaintiff, aged fifty years, was born in Florida, and is the eighth generation of his family to live in that state. He owns a home and other property in Florida; and his three children, ages 14, 5 and 2 years, respectively, live with their mother in that state. Colonel Crane has been in the Army 28 years. From 1941 to 1943 he Tpis in many theaters of European warfare. He was with his wife and family in Florida for three months in 1943; and then in November of that year he went overseas to Asiatic campaigns. He returned to the United States on November 10, 1945, suffering from an asthmatic ailment; and, at his request, was sent to the Army-Navy Hospital in Hot Springs, Arkansas, for treatment. He reached Hot Springs on November 16, 1945, and stayed at the Army-Navy Hospital until December 5,1945. Examination by doctors at the hospital indicated he might have to be retired from active service because of ,the asthmatic ailment. If -so retired, he would, of course, seek the best climate to alleviate his suffering from astiima. His Army doctor in Hot Springs advised him to try. several places for climatic reactions,.and settle in the locality best suited to him.- Acting on this advice, Colonel Crane purchased a car in Hot Springs, and left that city on December 5, 1945, and reached San Francisco, California, on December 12, 1945, where he maintained a hotel room continuously until February 8, 1946. He says that from December 5, 1945, until February 8, 1946, he visited Oklahoma, Texas, Arizona, New Mexico, Nevada, Wyoming, Utah and California, and found the climate in Arkansas gave him more relief than the climate of any of these other states. So, on February 8, 1946, he left California, and arrived in Hot Springs on February 16,1946. He secured a room at a hotel, where he was living at the time of the hearing on March 12, 1946. On February 11, 1946, his attorney filed the present suit; and the question is whether Colonel Crane was a bona fide resident of Arkansas for two months prior to February 11th.
Colonel Crane’s testimony — while a tribute to the climate of Arkansas — does not prove that he was a bona fide resident of Arkansas for 60 days prior to February 11, 1946. In fact, Ms testimony shows the contrary: it was only after Colonel Crane had visited all these other states that he reached the conclusion to reside in Arkansas; he intended to reside where the climate best suited his asthmatic ailment; he visited these other states to decide; and then returned to Arkansas. So, it is clear that he did not become a dona fide resident of Arkansas until he returned to this state on February 16, 1946. His residence could not begin before that date. He, therefore, did not have two months’ residence when he filed the present suit on February 11,1946.
The other facts relied on by Colonel Crane to corroborate his claim for residence, as beginning on November 16, 1945, fall short of sufficient corroboration:
(a) His assessment of property in Arkansas was made on March 11, 1946, which was after the filing of this suit. See O’Keefe v. O’Keefe, supra.
(b) The fact that he was initiated into the Hot Springs lodge of the Benevolent and Protective Order of Elks on February 18, 1946, does not furnish corroboration, because there is no proof in this record as to the residence requirement of that order.
(c) The fact that, when he purchased his automobile in Hot Springs in 1945, he secured an Arkansas license tag, does not corroborate his claim of residence, because (1) the license fee is a tax for the privilege of driving on the highways, and not a. tax on the property or possession thereof. (Wiseman v. Madison Cadillac Co., 191 Ark. 1021, 88 S. W. 2d 1007); and (2) even a non-resident must procure an Arkansas license for his motor vehicle if he does not have a license in the state of his residence, etc. (See §§ 6614 and 6632, Pope’s Digest, as amended by Act 72 of 1941 and Act 60 of 1945.)
To detail all of the testimony would unduly prolong this opinion, but none of it affords sufficient corroborative evidence on the question of bona fide residence for two months before the filing of the divorce suit. The decree of the chancery court is, therefore, reversed, and the cause dismissed; hut without prejudice to the plaintiff ’s right to file a new suit when he can make sufficient proof to meet the requirements as to a bona fide residence.
McHaney, J., dissents.
In addition to the cases and annotations cited in the O’Keefe case, we add the following: Annotation in 158 A. L. R. 1474; Sturdavant v. Sturdavant, 189 S. W. 2d 410 (decided by the Court of Appeals of Tennessee on November 4, 1944); Zimmerman V. Zimmerman, 175 Ore. 585, 155 Pac. 2d 293 (decided by the Supreme Court of Oregon on January 16, 1945.) See, also, Parseghian v. Parseghian, 206 Ark. 869, 178 S. W. 2d 49. on the sixty-day requirement. | [
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Ed. F. MoFaddin, Justice.
In this, divorce suit, appellant is the wife, and appellee, the husband. They were married in Massachusetts in 1929, and have two children. In 1942, appellee filed a suit for divorce in Florida on the ground of cruelty. The divorce was denied by the Florida Circuit Court, and that holding was affirmed by the Supreme Court of Florida on March 23, 1945, in the case of Cassen v. Cassen, 155 Fla. 768, 21 So. 2d 458.
The appellee came to Arkansas for a divorce. He arrived here on January 3, 1946, and rented a room ,by the week at a hotel in Little Eock. His suit for divorce was filed on March 6, 1946; and, until after his suit had been filed, he did not evidence by affirmative acts any intention to reside permanently in Arkansas. The appellant, a resident of Massachusetts, was summoned by warning order and notified by attorney ad litem. .She appeared specially for the sole purpose of challenging the jurisdiction of the Arkansas court; and she claimed that the appellee was not a bona fide resident of Arkansas.
From a decree finding appellee to be a bona fide resident, and granting him a divorce, there is this appeal, which necessitates a re-examination of our holding in Squire v. Squire, 186 Ark. 511, 54 S. W. 2d 281, in the light of subsequent cases which likewise involved the question of bona fide residence as essential to jurisdiction of the court to grant a divorce.
In Squire v. Squire, supra, in speaking of a party who was granted a divorce, we said:
‘ ‘ She frankly admitted that she came to this State to obtain a divorce; that she would remain here if she could secure employment to support herself and child. Even though she moved to this State to bring a divorce suit and had the intention of leaving after the divorce was granted, this would not deprive the court of jurisdiction, if she were actually and in good faith a bona fide resident for the period prescribed by the statute.”
Before a person can become a resident of' this state so as to have his marital status determined by the courts of this state, he must, in truth and in fact, be a bona fide resident of, the state, as hereinafter defined. The following cases attest that this court had repeatedly indicated that the Squire case should be thus modified. In Barth v. Barth, 204 Ark. 151, 161 S. W. 2d 393, in denying a divorce, we held that bona fide residence was required. In Gilmore v. Gilmore, 204 Ark. 643, 164 S. W. 2d 446, we said: • “In the instant case there was a want of jurisdiction if appellee were not a bona fide resident of Arkansas.” In Feldstein v. Feldstein, 208 Ark. 928, 188 S. W. 2d 295, in denying a divorce, we said: ‘ ‘ The evidence in this case is not sufficient to show that appellee ever became a bona fide resident of Arkansas.”
In O’Keefe v. O’Keefe, 209 Ark. 837, 192 S. W. 2d 556, we quoted from Mohr v. Mohr, 206 Ark. 1094, 178 S. W. 2d 502, as follows: “ ‘Without lengthening this opin,ion to analyze the holdings of other courts, we hold that there must be overt acts sufficient to demonstrate a real and bona fide intent to acquire residence here before the State of Arkansas — as a silent third party to every divorce suit here — will allow its courts to be used as the haven of the transient and dissatisfied spouse.’ ”
In Porter v. Porter, 209 Ark. 371, 190 S. W. 2d 440, we expressly stated that Squire v. Squire had become a controversial holding. In Tarr v. Tarr, 207 Ark. 622, 182 S. W. 2d 348, Mr. Justice Knox, in his splendid dissenting opinion, pointed to the conclusion we are now reaching in the present case.
A divorce decree in this state, to fulfill all the requirements for full faith and credit under the United States Constitution, can determine status only when there is a bona fide residence in this state. We quote from § 111 of the American Law Institute’s Restatement of the Law on Conflict of Laws: “A state- cannot exercise through its courts jurisdiction to dissolve a marriage when neither spouse is domiciled within the state.”
So, now, we overrule Squire v. Squire, supra, insofar as it holds that a person who comes to this state for the purpose of obtaining a divorce and who does not have the animus manendi (which has always been held an essential ingredient of residence), may be said to be a bona fide resident of this state; and by “bona fide residence,” we mean the same as domicile. . We quote from* and adopt as our own and as ruling in this state, the language of the United States Supreme Court in Williams v. North Carolina, 325 U. S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577, 157 A. L. R. 1366:
“Under our system of law, judicial power to grant a divorce — jurisdiction, strictly speaking — is founded on domicile. Bell v. Bell, 181 U. S. 175, 21 S. Ct. 551, 45 L. Ed. 804; Andrews v. Andrews, 188 U. S. 14, 23 S. Ct. 237, 47 L. Ed. 366. The framers of the Constitution were familiar with this jurisdictional prerequisite, and since 1789 neither this court nor-any other court in the English-speaking world has questioned it. Domicile implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance. The domicile of one spouse'within a state gives power to that state, we have held, to dissolve a marriage wheresoever contracted.”
This essential as to bona fide residence, must exist, not only at the time the decree is rendered, but also must have existed at the time the suit was filed. Parseghian v. Parseghian, 206 Ark. 869, 178 S. W. 2d 49; Porter v. Porter, 209 Ark. 471, 190 S. W. 2d 440; O’Keefe v. O’Keefe, 209 Ark. 837, 192 S. W. 2d 556.
Tested by tbe rule of these cases, the appellant failed to prove that he was a bona fide resident of Arkansas at the time his suit was filed; and his subsequent affirmative acts, in an endeavor to establish such residence, cannot be allowed any retroactive effect. So, the decree of the chancery court is reversed, and the cause dismissed, with appellee to pay all costs of the chancery court and this court.
An interesting discussion of the Squire case may be found in' § 134, et seq., “Arkansas Conflict of Laws,” a volume published in 1938 by Dr. Robert A. Leflar, now Dean of the Law School of the University of Arkansas.
See 17 Am. Juris. 278 and 279, “Divorce and Separation,” §§ 249-50; 27 C. J. S. 644, et seq., “Divorce,” § 76; annotations in 106 A. L. R. 6 and 159 A. L. R. 496, “What Constitutes Residence or Domicile Within State for Purpose of Jurisdiction in Divorce.” See, also, the article on “Extraterritorial Divorce” by Prof. Ernest G. Lorenzen in Yale Law Journal, Vol. 54, p. 799. | [
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Ed. F. MoFaddin, Justice.
This appeal presents for determination: (1) whether land previously deeded to a school district had reverted; and (2) whether the building reverted with the- land. Some of our cases on reversion of school property are: Steele v. Rural Special School District, 180 Ark. 36, 20 S. W. 2d 316; McCullough v. Swifton Consolidated School District, 202 Ark. 1074, 155 S. W. 2d 353; Williams v. Kirby School District, 207 Ark. 458, 181 S. W. 2d 488; Rose v. Marshall School District, 210 Ark. 211, 195 S. W. 2d 49; Vandale Special School District v. Feltner, 210 Ark. 743, 197 S. W. 2d 731.
The factual situation in the case at bar is somewhat different from that existing in any of the adjudicated cases. The facts here are:
A. In 1915, Mr. J. H. Hollis conveyed by warranty deed 2% acres of land to the Hollis Special School District, with this clause of reversion in the deed: ‘ ‘ This deed is made with the understanding that in case the property ever ceases to be used for public school purposes that the land, but not the improvements thereon, is to revert to the grantor herein. ’ ’
B. The Hollis Special School District erected a school building on the 2% acres, and used the same for school purposes. In 1930, the Hollis Special School District was consolidated with the appellee school district (which is hereinafter called the “district”); but the consolidated district continued to have school for the lower grades in the Hollis school building until May, 1940. Since then, there has been no school in the Hollis building. In 1940, the district canceled the fire insurance on the building, and allowed the building to be used as a meeting place for the ladies of the Hollis community. The only school property remaining in the building was a stove, some blackboards, and a few desks; and all of this property was moved on April 26, 1946, when the district sold the building to J. L. Brown, who was to raze it, and remove the materials. Brown agreed to pay the district $1,500 for the materials.
C. When J. H. ITollis executed the deed to the Hollis School District in 1915 as aforesaid, he owned a total of 240 acres, of which the 2% acres was a part. After the death of J. H. Hollis, his heirs conveyed to N. T. Hollis the entire.240 acres by deed dated August 16, 1944. Then, on October 2,1944, N. T. Hollis conveyed to the appellant, Mrs. Milner, the 237% acres by deed, which also contained this language in the granting clause: “Also, the reversion of the J. H. Hollis estate in and to the following parcel of land (but not the buildings thereon) described as follows': . . .” (then follows the description of the 2y2 acres conveyed by J. H. Hollis to the Hollis Special School District in 1915, as aforesaid.)
Mrs. Milner had the 2y2 acres placed on the tax books, and paid taxes thereon. She cnt pnlpwood timber from the 2y2 acres, and exercised other acts of ownership over the land (but not the building) from the date of her deed until the filing of this suit. The school district tried to purchase from Mrs. Milner one acre (where the building was located) out of the 2%-acre tract. One of the school directors testified in this regard: “Q. Did you, after she had bought it, ask her if she would consider selling one acre of the land back to the school district? A. Yes, sir. Q. You had that conversation? A. Yes, sir. Q. At that time you evidently didn’t think you owned the land or the building either, did you? A. I didn’t know about the land. I thought she had the land, but there never was any doubt about the building. Q. Why did you want to buy an acre back? A. So we wouldn’t have to move the building.”
D. Such was the condition of affairs when, on April 26, 1946, the school district sold the building to J. L. Brown as aforesaid. Then, on April 30, 1946, the appellant filed the present action against the appellee school district and J. L. Brown to enjoin the removal of the building: appellant claiming the building to be attached to the real estate, and therefore belonging to her under her deed from N. T. Hollis as aforesaid. Pending the litigation, the parties agreed, by stipulation to avoid prejudice, that the $1,500 might be deposited in court in lieu of the building, and that Brown might (and did) remove the building. As a result of the trial, the chancery court entered a decree holding (1) that the school district was the owner of the building, and (2) that the school district was the owner of the 2y2 acres, and that it had not reverted to Mrs. Milner. To reverse that decree, there is this appeal.
I. The Building. We affirm the decree of the chancery court in finding against Mrs. Milner’s claim to the building or the proceeds thereof. In the deed from J. H. Hollis to Hollis Special School District (predecessor of appellee school district) it was definitely stated that the improvements would not revert with the land. Likewise, in the deed from N. T. Hollis to Mrs. Milner, it was stated that .the building would not revert to Mrs. Milner. The effect of these conveyances was to prevent the building from becoming, or passing as, a part .of the realty. The presumption of a structure becoming realty (as was held in Waldo Fertilizer Works v. Dickens, 206 Ark. 747, 177 S. W. 2d 398) was overcome by the recitals in the said deeds in this case. In 22 Am. Juris. 780 the general rule is stated: “Generally a building erected on the land of another by his consent or license does not become part of the realty, but remains the property of the person annexing it. The same results will be achieved if the owner expressly consents or agrees that the building shall remain personalty; . . . This rule certainly holds when there is an express reservation of a right to remove the building; . . .” See, also, 42 Am. Juris. 199, “Property,” § 18.
We dispose of appellant’s contentions:
(a) Building as a fixture. Appellant cites the majority and concurring opinions in Williams v. Kirby District, supra, wherein were cited statements from 42 Am. Juris. 199 and 22 R. C. L. 59, to the effect that a building permanently fixed to the freehold became a part of the realty, and passed with it. But appellant evidently overlooked that portion of the text in 42 Am. Juris. 199 which, after stating the above rule, adds this significant language, which is applicable to the case at bar, to-wit: ‘ ‘ The general rule is otherwise, .however, where the improvement is made with the consent of the landowner, and pursuant to an understanding, either expressed or implied, that it shall remain personal property. ’ ’
Likewise, appellant evidently overlooked, from 22 E. 0. L. 59, the following portion of the text, which, after stating the general rule urged by the appellant, then states the following as an exception: “. . . but it is otherwise as to a building . . . erected with-the consent of the landowner and with the understanding either expressed or implied that it shall remain personal property.” The building in the case at bar comes within the scope of the quotation just recited. It was excepted from the Hollis conveyances, and did not become a part of the realty. The language in the reverter clause in this case specifically excepts the building from reverting with the land. Such language did not appear in the reverter clause in the case of Williams v. Kirby District, supra.
(b) Limitations. Mrs. Milner’s deed was dated October 2,1944; and on April 26, 1946, the district sold the building to Brown. We are cited to no statute of limitations that could have ripened Mrs. Milner’s possession into title in that short period, even assuming that she had possession of the building during all of such time— which the proof shows she did not.
(c) Estoppel. It was not until after Mrs. Milner had purchased the Hollis land that she ever had any conversation with any representative of the school district, so she presents no facts to make a claim of estoppel by representation. See Rogers v. Galloway Female College, 64 Ark. 627, 44 S. W. 454, 39 L. R. A. 636; and also 19 Am. Juris. 653. In view of what has been stated, it is unnecessary for us to consider the district’s claim as to whether Mrs. Milner is herself estopped by the recitals in her deed from claiming the building. In this connection, see 19 Am. Juris. 627, “Estoppel,” § 29; 16 Am. Juris. 610, “Deeds,” § 301; and annotation in 39 A. L. R. 128. We therefore affirm the chancery court in refusing Mrs. Milner ’s claim for the building or its proceeds.
II. The Land. We reverse that portion of the decree of the chancery court which found against Mrs. Milner’s claim for the 2% acres of land, because we hold that there had been an abandonment of the land for school purposes within the purview of the reverter clause, as contained in the deed from J. H. Hollis to the school district. The following facts appear in this case:
(1) No school had been held on this land since 1940.
(2) The building had ceased to be used for school purposes, and had become a community center.
(3) The land had been placed on the tax books in the name of Mrs. Milner, and she had paid the taxes.
(4) A representative of the school district had attempted to buy one acre of land from her (being the acre on which the building was situated).
(5) Finally, the district had contracted for the removal of the school building; and the directors testified that they had no intention of ever erecting another classroom building on the land.
The concurrence of all five of these unexplained fEyyts presents a case in which the preponderance of the evidence shows an abandonment of the land. It is true that the directors testified that they intended that a small building should be erected on the land for children to use while waiting for the school bus; but the transcript does not disclose a single instance where school children had used the building-as a waiting station in the entire period between 1940 and 1946. On the contrary, the record shows that the school children congregated on the porch of a building across the road from the school. Furthermore, the declaration as to future intentions to erect a bus station on the land was also dependent on several contingencies, and was never removed from the realm of abstract speculation. Without lengthening this opinion by commenting on each bit of evidence, it is sufficient to say that the facts in this case are more similar to those which existed in the case of Steele v. Rural District, supra, than to the facts which existed in the cases of McCullough v. Swifton District, supra, and Rose v. Marshall District, supra.
We conclude that the decree of the chancery court should be, and is, affirmed insofar as the building and its proceeds were awarded to the school district; but the decree is reversed insofar as concerns the 2% acres of land, and that part of the cause is remanded to the chancery court with directions to enter a decree adjudging to Mrs. Milner the 2% acres of land and the possession thereof. Since Mrs. Milner instituted this suit primarily to recover the building, and has never succeeded in that regard, we therefore adjudge the cost of all courts against her. ', | [
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Griffin Smith, 'Chief Justice.
Following the death of her husband in April 1945, Mrs. Stella S. Terrell continued operation of the small store they owned at Strong. The appeal is from a judgment padlocking the place of business because liquor was kept there for sale, contrary to law. It is insisted that proof was insufficient to support the judgment, that the law was misconstrued; that the 'Court abused its discretion in refusing to grant an appeal from the defendant’s plea of guilty in the Mayor’s Court, and that in any event the direction to close, predicated upon disregard of the Court’s prior injunctive order, should have been limited to one year. We agree with the last contention only.
April 27, 1946, on affidavit of Prosecuting Attorney Lamar Smead, a warrant was issued charging Mrs. Terrell with the illegal sale of intoxicating liquors. The case was docketed April 30th. When the defendant pleaded not guilty there was a continuance until the complaining officer and Mrs. Terrell’s attorney could agree upon a date. Bond was set at $500.
Mrs. Terrell was promptly arrested on a second warrant in which she was charged with possession of intoxicating liquors “for the purpose of sale in her store building located in Strong, Arkansas.” Although pleading not guilty she was fined $500.
A third warrant — issued April 30 — -charged Mrs. Terrell with possession of intoxicating liquors for the purpose of sale “in her home in Strong, Arkansas.” Notwithstanding denials that the transaction occurred, the defendant was fined $500. A fourth and a fifth warrant were served, one charging illegal transportation of liquor for the purpose of sale in the store building, the other charging possession for the purpose of sale. In each of these cases a $500 fine was assessed.
May 29, 1946, Mrs. Terrell appealed from the convictions. The record indorsement appearing on the transcript of Case No. 162 — possessing intoxicating liquors for the purpose of sale in the store — is, “Pleads guilty in Circuit Court, assessed $100 and cost by Gus W. Jones, Judge. Paid.” The date is Sept. 11, 1946.
In the case before us the Prosecuting Attorney testified that in consequence of a discussion of all of the charges (Mrs. Terrell having been represented by Mr. Walter L. Brown, a highly reputable attorney) it was agreed that if the defendant would pay the single reduced fine and promise to not further violate the liquor laws, other cases would be dismissed. Prior to this time (May 3) Circuit Court had, on petition of the Prosecuting Attorney, enjoined Mrs. Terrell from operating the place in an unlawful manner in respect of possession or sale of liquor.
This brings us to a consideration of the permanent injunction and so-called padlock order.
February 22, 1947, a City Marshal and Constable of Strong observed appellant’s fifteen-year-old son Damon and a boy named Fife as they came from the direction of Mrs. Terrell’s home carrying a package. An hour later there was a second trip. The officer detained the boys in an alley back of Mrs. Terrell’s store. Concealed in a bag were three bottles, each containing a fifth of a gallon of liquor; also three bottles of “half-pint” liquor. In the aggregate there was slightly less than a gallon of intoxicants.
When taken before the Mayor three days later the boys were accompanied by Damon’s mother who testified the liquor was hers and that she had sent for it. Under this evidence the causes were transferred to Juvenile Court. Mrs. Terrell was promptly arrested, charged with “having intoxicating liquors in possession for sale.” She entered a plea of guilty and was fined $150. This was promptly paid by check. The following afternoon a temporary restraining order directing that the store be closed was served upon Mrs. Terrell. On the return day (March 10) the cause was continued until March 15th. On that date there was filed in Circuit Court a prayer for appeal from the judgment of February 25th. Act 125, approved February 26, 1943. Acting, as he believed, within the discretion conferred, Judge Jones declined to grant the prayer; whereupon an appeal was -asked. At the same time response was filed to the proceeding designed to make the temporary injunction permanent.
At the hearings in this case and on the petition for appeal, testimony was taken regarding circumstances under which Mrs. Terrell entered her plea of guilty and paid the fine of $150. In determining whether the limited injunction of 1946 had been violated, the investigation was comprehensive. Prosecuting Attorney Smead testified that when the $100 fine was paid he and Mr. Brown, the latter representing Mrs. Terrell, agreed that a plea of guilty should be entered with a fine in one case, and upon the defendant’s promise that she would not in the future violate the liquor laws, other pending criminal charges would be dismissed. In response to the Court’s question, “In that petition in 1946, how much whiskey was involved?” Mr. Smead replied: “There was a great lot in the place at that time, and there were several times when the officers went there and found numbers and numbers of empty bottles, probably fifty: a hundred or more at various times. ’ ’ Continuing, the witness said: £ £ This whiskey was found secreted in a secret place. ’ ’
Marshal Baskin testified that he had noticed various people “drinking and coming out [of the store]; I see them coming out of there drinking.” On cross-examination this statement was modified with the explanation that he had not actually seen the persons mentioned taking whiskey, but had observed their conduct and demeanor. In 1946 two raids were made. This witness did not arrive until the whiskey had been found by two other officers, but he saw them bringing it out. A small hole, fourteen or eighteen inches square, “had been cut in the loft.” As a result of two raids a total of “sixty some odd bottles, ’ ’ not including empties, were taken. There were probably seven “fifths,” nine pints, and forty-four half pints.
The defendant insisted in the Court below, and argues here, that she was “tricked” into entering the pleas of guilty, having been assured by officers that payment would end the matter; hence, she urges, there is no competent proof that she kept liquor for sale, or that she violated the 1946 injunction. It is further asserted that in sending her son for the whiskey February 22 Mrs. Terrell was preparing to go on a picnic with friends, and that she had been directed by a physician to take whiskey medicinally because of a heart condition. A further defense is that the quantity of intoxicants transported by young Terrell was less than a gallon, and under Acts 91 and 423 of 1947 possession of not more than a gallon of liquor in dry territory is lawful and there is no presumption it was intended for sale.
Act 423 was not approved until March 28th — more than a month after the alleged offense was committed. The printed volumes of the Acts of 1947 carry a purported emergency clause to Act 91, but records in the Secretary of State’s office disclose that it failed of adoption. Result is that it could not become effective until ninety days after adjournment of the legislative session.
Evidence that Mrs. Terrell was imposed upon and that she entered pleas of guilty in ignorance of her legal rights is not sufficiently convincing to warrant us in reversing the trial court. The Judge carefully reviewed major transactions and stated his conclusions and gave reasons for his action. In determining that Damon Terrell’s possession was the possession of his mother, the Judge considered the defendant’s record, proximity of her car to the store, the reasonableness or unreasonableness that with a heart ailment she intended to take the quantity of liquor in question on a picnic for use of herself and friends — and he concluded the more rational inference was that the liquor had been obtained for sale. The defendant’s evidence in contradiction is not sufficient to justify a reversal of' this finding.
In Futrell v. State, 207 Ark. 452, 181 S. W. 2d 680, it was held that while the Court, in respect of a nuisance, might permanently enjoin, and that as punishment for violation of an abatement injunction the place of business might be closed, such closing could not be for a period in excess of one year.
It will be presumed in the case at bar that the Court intended the word “permanently” to cover the maximum period allowed by law. Upon remand the judgment will be made to reflect this intent.
With this modification the judgment is affirmed.
The Court sustained an objection that this testimony, in part, was hearsay, but substantially the same facts were established by an officer who had direct information. | [
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Smith, J.
By this appeal appellant seeks a reversal of a judgment sentencing him to the penitentiary for an assault with intent to rob D. L. Matthews. He alleges three errors for the reversal of the judgment: (a) That he was convicted upon the uncorroborated testimony of Eugene Belcher, an admitted accomplice; (b) that a requested instruction was erroneously refused; and (c) that certain incompetent testimony was admitted over his objection.
Belcher testified that he was a boarder in appellant’s home, and that both had been employed for a week picking cotton for 'Matthews, and that appellant suggested that they make some easy money by robbing Matthews. The first plan was to entice Matthews to a tourist camp and rob him there, but that plan miscarried.
A second plan eventuated in the attempt to rob for which appellant was convicted. The details as testified to by Belcher were as follows: The assault was committed December 7, 1946, and appellant and Matthews spent much of that day together, and they drank both whiskey and beer, and Matthews admitted that he was considerably under the influence of this liquor, but denied being-drunk. The plan was that appellant would drive Matthews’ car home and that on the way he would stop the car at an appointed place where Belcher would be hidden in a ditch, and that when he and Matthews got out of the car, Belcher would appear armed with a pistol, and disguised with a mask, and would “stick up” both appellant and Matthews and rob them.
Belcher testified that he hid himself in the ditch as agreed, and that in about twenty minutes Matthews ’ car, driven by appellant, appeared and stopped at a place about fifteen feet from Belcher’s place of concealment. There was a small mudhole in the road, and instead of driving around it as other cars had done, appellant stopped Ms car in the mudhole and stated that he had to attend a call of nature, and both he and Matthews got out of the car, one on the right side, the other on the left. But appellant, who was driving, got out on the left-hand side and walked around the car and 'stood by the side of Matthews and was standing there when Belcher arose from the ditch and advanced, pistol in hand, demanding that appellant and Matthews hold up their hands. The command to “stick ’em up” was repeated, Matthews recognized Belcher’s voice and when Belcher began feeling for Matthews’ pockets the latter grabbed the pistol and a struggle ensued, and Matthews either tripped and fell or was knocked down to the ground with Belcher on top of Mm. Belcher testified that he saw appellant raise his hand and that he thought appellant struck Matthews, but he later testified that he had no recollection of having been struck.
While Matthews was on the ground he called on appellant for help, which was not given. Appellant may not have been as drunk as Matthews, or may have had less courage, but he gave Matthews no assistance. The lights on Matthews’ car had been turned off, but before the robbery was completed a car drove by and Belcher desisted in his attempt to rob. He removed his mask and told Matthews that he was sorry for what he had done. Matthews responded, “Just forget about it and I will say nothing about it and you do the same,” and appellant said, ‘ ‘ That is the thing to do before it gets into court. ’ ’ Appellant cursed Belcher and said he wanted nothing more to do with him. The testimony is undisputed, however, that Belcher spent that night at appellant’s home.
The pistol which Belcher had when the assault was made was produced at the trial, and there was testimony that on the afternoon of that day appellant exhibited a pistol in the place of business of one Flanagan who testified that the pistol which he there saw resembled the pistol which Belcher used in the assault, but Flanagan could not say that it was the same pistol.
Matthews testified that he did not remember that anyone had struck him, but that when he reached home he found a wound on'his head and blood on his hat and in his hair. The admission of this testimony is one of the errors assigned, the ground therefor being that the hat produced at the trial on which there were blood stains, had not been properly identified, but Matthews did testify that the hat in question was the one which he was wearing when he was assaulted.
Appellant requested that the court instruct the 'jury: “That under the law the defendant is presumed to be innocent, and that that presumption attends him throughout the trial and is strong enough within itself to acquit the defendant, until and unless the State proves him guilty beyond a reasonable doubt.” The refusal to give this instruction is assigned as error.
But the court had charged the jury fully and correctly as to the law in regard to a reasonable doubt, and had instructed the jury that1 ‘ The defendant is presumed to be innocent until proven guilty and if upon the whole case there is a reasonable doubt of his guilt, then it will be your duty to acquit him.”
The instructions had all been given before appellant requested the instruction set out above, and the court evidently thought that the subject had been sufficiently and correctly covered and that it was not necessary to multiply instructions. The instruction might well have been given, but we think it was substantially covered by those which were given, and that it v/as not error to refuse to repeat what had already been said.
The chief insistence for the reversal of the judgment is that the testimony of Belcher was without substantial corroboration. Upon this issue the court correctly charged the jury as to the necessity for, and the character and sufficiency of the corroboration of the testimony of an accomplice, which the law requires. It is urged that the only corroboration of Belcher’s testimony connecting appellant with the commission of the crime is the fact that appellant was present and refused, when requested, to render assistance to Matthews in his struggle with Belcher.
It may be conceded that such testimony alone would not suffice to corroborate appellant an accomplice, but the case does not rest upon that fact alone. Matthews testified that appellant in driving the car to his home, did not travel the route he usually employed, but that this. fact did not arouse his suspicion as the route taken led to his home, but there is a significant circumstance which the jury may have found was not a mere coincidence, and that is that appellant did in fact stop the car at the place where Belcher testified that it was agreed the car would stop, this being the place where Belcher was in hiding in a ditch. It is true that after the assault appellant cursed Belcher and stated that he wanted nothing more to do with him, but it is also true that he joined in a suggestion that the matter be dropped before it got into court, and more significant is the undisputed testimony that after being “held up” by Belcher he permitted Belcher to spend the remainder of the night in his home. This testimony is corroborative of that of Belcher that the “holdup” was a scheme whereby it would appear to Matthews that both he and appellant were being “held up,” and that by calmly submitting to being “held up,” Matthews would offer no resistance. This inference is, we think, reasonably deducible from the testimony in its entirety and furnishes the corroboration of Belcher’s testimony which the law requires.
The judgment must therefore be affirmed and it is so ordered. | [
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G-rieein Smith, Chief Justice.
The appeal questions a decree holding that certain minerals pertaining to an old right-of-way through 560 acres were not reacquired by the appellants who through adverse possession prevailed as to the severed fee.
During and before 1917 Mrs. J. F. Jones owned the acreage in question, including minerals. She conveyed a 100-ft. strip to Sherve Lumber Co. The following year (1918) Sherve sold to Dorsey Land & Lumber Co., a corporation. In 1925 this grantee conveyed all of its property to Dorsey Corporation, (chartered by Delaware) the transaction by express terms including the strip which forms the subject matter of the controversy here.
In 1932 Dorsey Land & Lumber Company, by its vice-president, undertook to quitclaim to Mrs. Jones the 100-ft. strip. The Dorsey Corporation, presumptively insolvent, was placed in the hands of a receiver — Abel Davis — appointed by an Illinois State Court. This occurred in 1927. The litigation was transferred to a Federal District Court, where the appointment of Abel was confirmed; that is, his .status as receiver was recognized by the U. S. Court, where he continued to serve. In 1933 the receiver conveyed to ft. Brown, acting for himself and H. M. Mclver, all of the Dorsey Corporation’s property in Miller County, Arkansas. The so-called ancient logroad grant (about ten miles long by 100 feet wide) was minutely described by metes and bounds. Mclver later surveyed the strip and caused a plat of it to be made. March 24,1937, Brown conveyed half of the minerals incident to the strip. By mesne conveyances The Carter Oil Company acquired, prima facie, an oil and gas lease covering half of the interest. July 18, 1944, appellants filed their suit, alleging that the conveyance from Dorsey Land & Lumber Co. to Mrs. Jones was color of title. The land was wild and uninclosed, and she or those holding through her had continuously paid taxes on the full 560 acres, irrespective of outstanding mineral claims.
After the suit was begun it was discovered that the Tax Assessor, in extending 1936 assessments, showed the strip to be in Township Seventeen, when the correct description was Township Sixteen. In listing for taxation that part of the strip under which minerals are claimed by appellees (and as to which The Carter Oil Company lease pertains) the area was plotted in such manner that the property in question was designated Lot 17. It is not disputed that in assessing the minerals the trustee’s grantees correctly described the property in Township Sixteen. Difficulty arose when the Assessor’s records were transcribed.
When Dorsey Land & Lumber Company’s vice-president executed the deed to Mrs. Jones in 1932 the attempt was to quitclaim property conveyed to Dorsey Corporation in 1925. But, say appellants, the deed was color of title, and subsequent payment of taxes served to defeat appellees. The issue therefore is, Can one by the payment of taxes on wild and unenclosed land for seven consecutive years acquire by adverse possession the right to undivided interests in minerals under a part of such land when the facts show that on some date between the first and final tax payments (constituting the seven-year period) the.minerals had been conveyed to a' third person, it being assumed that the grantor of mineral rights had authority to sell, and that the instrument by which it was sought to effectuate the conveyance was legally sufficient as to form?
Before severance of the mineral estate the owner of real property has title not only to the land surface, but to that beneath and above the surface. Bodcaw Lbr. Co. v. Goode, 160 Ark. 48, 254 S. W. 345, 29 A. L. R. 578; Grayson McCleod Lbr. Co. v. Duke, 160 Ark. 76, 254 S. W. 350; Claybrooke v. Barnes, 180 Ark. 678, 22 S. W. 2d 390, 67 A. L. R. 1436; Huffman v. Henderson Co., 184 Ark. 278, 42 S. W. 2d 221; 1 Am. Jur. 857; 1 Summers Oil & Gras (Permanent Edition), p. 138. In each of these citations there is the declaration that severance of the min- ' eral estate or any part is completely effected by execution and delivery of a deed conveying such mineral estate, or conveying the land and reserving or excepting all or a portion of the minerals. Mr. Justice Hart, speaking for the Court in Claybrooke v. Barnes, 180 Ark. 678 at p. 682, 22 S. W. 2d 390, at p. 392, 67 A. L. R. 1436, said:
“Where there has been a severance of the legal interest in the minerals from the ownership of the land, it has been held as to solid minerals, and the same rule has been applied to oil and gas, that adverse possession of the land is not adverse possession of the min- ■ eral estate, and does not defeat the* separate interest in it . . .”
Once a mineral estate has been severed by grant or reservation, and the fee simple in the land is otherwise held, it is the duty of the assessor, when informed by personal notice or a recorded deed, to separately assess such mineral. Sec. 13600, Pope’s Digest; Huffman v. Henderson Co., for, “When this has not been done [mineral rights have not been assessed separately from the surface] the assessment made will be held to apply only to the surface rights”.
While in the case at bar it is shown that a separate assessment of the minerals was undertaken, but failed on account of clerical error, this is immaterial, since an assessment after severance reaches only the land surface or fee, as distinguished from minerals.
It is conceded that under the authority of cases mentioned, if severance had been effected before the first payment of taxes by the adverse claimant, no title would have been acquired to the separate mineral estate; but it is argued that since the Jones payments began prior to such severance the statute was thereby put in motion as against the then undivided whole, both land and minerals, and its effect could not be interrupted by the severance.
At common law constructive possession of wild and uninclosed land followed the title and was deemed to be in the record owner until possession Was invaded by actual occupancy. Hardie v. Investment Guaranty & Trust Co., Limtd., 81 Ark. 141, 98 S. W. 701. By early statute Arkansas departed from this rule and enacted that such possession would be deemed to be in the person paying-taxes under color of title for seven consecutive years. Pope’s Digest 8920. This is the law here sought to be invoked by the adverse claimant. This statute is not in itself one of limitation, but merely creates a constructive possession by the payment of taxes and this creates a right to oust the constructive possession of the record owner, with the result that “ . . . it is only by applying thereto the general statutes of limitation that such possession, like actual possession, can ripen into title by limitation”. Hubble v. Grimes, ante, p. 49, 199 S. W. 2d 313. Under this statute payment of taxes constitutes possession for each year in which payment is made, (Price v. Greer, 76 Ark. 426, 88 S. W. 985) beginning with the first payment and continuing, only as long as made. Gaither v. W. A. Gage Co., 82 Ark. 51, 100 S. W. 80; Cotton Wood Lbr. Co. v. Hardin, 78 Ark. 95, 92 S. W. 1118; Macrae v. Johnson, 78 Ark. 603, 92 S. W. 1120. These payments must be unbroken for at least seven consecutive years. Updegraff v. Marked Tree Lbr. Co., 83 Ark. 154, 103 S. W. 606. The statutory bar giving rise to the right to legal title does not attach until expiration of the seven-year period. Price v. Greer. Such possession may be broken (1) by actual possession adverse to tax payment claimant, (2) legal proceedings by record owner against claimant, (3) payment of taxes for one or more years by record owner or any other person not acting for claimant, or (4) failure by claimant to make payment for any one or more of the seven years. Sibly v. England, 90 Ark. 420, 119 S. W. 820; Southern Lbr. Co. v. Ark. Lbr. Co., 176 Ark. 906, 4 S. W. 2d 928; Straub v. Capps, 178 Ark. 709, 13 S. W. 2d 294; Carmical v. Ark. Lbr. Co., 105 Ark. 663, 152 S. W. 286.
Since the adverse claimant’s constructive possession cannot ripen into title until expiration of seven full years from first payment, it follows that legal title to the mineral interest was in the record owner at the time of its conveyance, and transfer of title vested a good and merchantable title in the mineral grantee. The fact that at the time the land was held adversely did not prevent a transfer of this interest. While at common law one out of possession could not convey lands, the rule was early abolished in this state by statute. Pope’s Digest 1809. See Cloyes v. Beebe, 14 Ark. 489; Moore v. Sharp, 91 Ark. 407, 121 S. W. 341, 23 L. R. A., N. S. 937.
The deed having effectively transferred title to the mineral interest, it became the duty of the assessor to make separate assessments of mineral and land rights. The fact that the assessor failed to separately list the severed mineral interest is not material; for, as was said in Huffman v. Henderson Co., “. . . the assessment made will be held to apply 'only to the surface rights.” Since there can be no valid collection or payment of taxes without a valid assessment, it follows that neither the adverse claimant nor anyone else could have paid taxes on the mineral estate after severance. Tax payments by the adverse claimant applied only to the surface and to the unsevered mineral right.
The primary requirement of § 8920 of Pope’s Digest is that the adverse claimant pay taxes on the claimed property for seven full years. It follows that where there was failure to pay on a severed mineral interest for such time, (although such payments were made on the land and the unsevered portion of the minerals) the dominant estate claimant, nevertheless, did not acquire title. This would be true even though there had been an honest belief that payment was on the entire interest — since actual payment and not intent controls.
Affirmed.
Dorsey Land & Lumber Company’s authority to do business in Arkansas was revoked April 21, 1931. Dorsey Corporation, according to records in.the Secretary of State’s office, Was authorized to do business in this State October 13, 1925. H. S. Dorsey was named as agent for service. This corporation withdrew from Arkansas March 3, 1927.
After mentioning applicable decisions, ■ the opinion continues: “The rule [that an owner of minerals does not lose his right or his possession by any length of nonuse, nor did the owner of the surface acquire title by the statute of limitations to the minerals by his exclusive and continued occupancy and enjoyment of the surface merely] was approved by this court in Bodcaw Lumber Co. v. Goode, where it was said: ‘The rule of those authorities is that the title to minerals beneath the surface is not lost by nonuse nor by adverse occupancy of the owner of the surface under the same claim of title, and that the statute can only be set in motion by an adverse use of' the mineral rights, persisted in and continued for the statutory period.’
“So it may be taken as settled that the two estates, when once separated, remain independent, and title to the mineral rights can never be acquired by merely holding and claiming the land, even though title be asserted in the minerals all the time. The only way the statute of limitation can be asserted against the owner of the mineral rights or estate is for the owner of the surface estate or some other person to take actual possession of the minerals by open ing mines and operating the same. It is only when such possession has continued for the statutory period that title to the mineral estate by adverse possession is acquired.” | [
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Robins, J.
Appellee, a negro “extra gang” laborer, while working for appellant on appellant’s right-of-way, was struck and injured by a piece of ice thrown from a passing train by one of appellant’s employees. Appellee brought suit against appellant for $10,000 damages, alleging that he had been permanently injured by the negligence of appellant’s servant as aforesaid. Appellant filed answer in which it was not denied that appellee was injured at the time and place and in the manner set forth in the complaint, but the extent of the injury as alleged by appellee was denied and appellant set up as a defense that, after the injury, appellant and appellee had made a compromise, under which appellee had been paid the sum of $1,500, and had executed a release of his claim growing out of said injuTy.
Appellee filed a response in which he alleged that the release was not binding on him because he had been induced to execute it by misstatements of appellant’s physician and claim agent as to the extent of the injury.
The trial jury returned a verdict in favor of appellee for “$5,000, less the $1,500 already paid him,- net $3,500.” Prom judgment entered, on the verdict this appeal is prosecuted.
Por reversal these contentions are urged hy appellant :
1. That appellee’s cause of action against appellant was barred by the release, and the lower court should have instructed the jury to find for appellant.
2. That the amount of the verdict was excessive.
I.
Both bones, between the knee and the ankle, in the left leg of appellee were broken as a result of being-struck by the piece of ice. He was taken to a hospital where he was treated'by the assistant division surgeon of appellant. Appellee’s leg was put in a cast, and he went home on the first Monday in September, but was never able to return to his work for appellant.
After some prior negotiations a claim agent of appellant made a settlement with appellee for the agreed sum of $1,500, took a release from him and gave him a check for $1,500, which appellee cashed. Appellee could not read, but could sign his name. 'The release was read over to appellee, before he signed it, by appellant’s road-master. It is set forth in the release that it was not made in reliance on anything said by a “company physician, claim agent, or other employee” of appellant.
Appellee testified that the assistant surgeon of appellant told him that his leg was in fine shape, that he would be able to go back to work in a few days and would walk as well as ever; that the claim agent told him he was doing fine and that it looked like he could go back to work in a few days; that he saw the doctor about two weeks before the settlement; that he relied on the statement of the claim agent in making the settlement ; that he had never been able to.go back to work on the railroad; that before he worked for appellant he had farmed, but since his leg was broken he had been unable to do any farm work; that he still suffered pain from the injury to Ms leg; that in settling he was using Ms own judgment based on what the doctor said; that he thought the settlement was fair when he made it; that if he had known the real condition of his leg he would not have made the settlement; that he was told that his leg would get well and that was why he made the settlement.
A physician testified on behalf of appellee that he had made X-ráy pictures of appellee’s leg; that the pictures showed there had been a fracture through the larger leg bone; that the fracture had healed firmly, but with considerable deformity; that the leg is crooked and “bows”; that appellee “has got all of the union that he could ever get”; that witness “would not advise breaking it over”; that witness “would advise him to go through life in the manner that his leg is now”; that he will have a disability for the rest of his life; that there is some difference in the length of appellee’s legs; that this type of fracture was very difficult to handle.
Appellant’s division surgeon and his assistant testified that appellee had a good recovery considering Ms age, but conceded that appellee had a “bow” in the bones of his leg as a result of tMs injury. The assistant division surgeon also testified that he did not think it advisable to break the bone to straighten it; that he did assure appellee he would be all right, but did not tell him when he would be able to return to work; and that at the time he talked to the claim agent he believed that the leg would return to a normal condition and that appellee would have the same use of it as before.
•The question of the validity of the release as a bar to appellee’s action was submitted to the jury on an instruction, not complained of here, the effect of wMch was to tell the jury that it was not binding if the evidence showed that appellant’s physician represented to appellee that Ms leg had properly healed and he would not have a permanent injury and that appellee relied on this representation in signing the release and it developed that his leg had not healed properly and that appellee did, in fact, have a permanent and disabling injury. •
In tlie case of F. Kiech Manufacturing Company v. James, 164 Ark. 137, 261 S. W. 24, we held (headnote 4): “Where plaintiff, injured in defendant’s employment, signed a release relying upon a mistaken opinion of the defendant’s doctor that his injury was not permanent, he was not bound thereby, notwithstanding the release recites that he acted on his own judgment, and that no representations were made upon which he relied.”
In the note to the decision in the case of St. Louis-San Francisco Railway Company v. R. L. Cauthen (112 Okla. 256), 241 P. 188, 48 A. L. R. 1447, at p. 1523, this language is used by the annotator: “But, notwithstanding the fact that they [releases] have sometimes expressly declared in effect that the releasor relied on his own judgment, and not on representations of others, such a declaration has been held not to preclude avoidance of the release on the ground of misrepresentations by the releasee’s physician as to the nature or extent of the injuries.” The F. Kiech Manufacturing Company case, supra, was cited in support of this rule.
The holding in the case of Kiech Manufacturing Company v. James, supra, was followed in the case of Ozan Graysonia Lumber Company v. Ward, 188 Ark. 557, 66 S. W. 2d 1074, where we held (headnote 8): “Where plaintiff, injured in defendant’s employment, signed a release relying upon a mistaken opinion of defendant’s doctor that his injury was not permanent, he was not bound thereby, though the release recited that he acted upon his own judgment, and that no representations induced him to make the settlement.”
In discussing a similar question we said in the case of Standard Oil Company of Louisiana v. Gill, 174 Ark. 1180, 297 S. W. 1020: “The fact-that a short time intervened, about 20 days, from his discharge to the time of the release, would not change the .result, and neither would the fact that he was suffering at the time he signed same; the question being: Did he honestly rely on the assurance of his physicians that he would soon recover, and this was a question for the jury?” Other cases in which the same doctrine was enunciated are: St. Louis, I. M. & So. Ry. Co. v. Morgan, 115 Ark. 529, 171 S. W. 1187; Griffin v. St. Louis, Iron Mountain & Southern Railway Company, 121 Ark. 433, 181 S. W. 278; Sun Oil Company v. Hedge, 173 Ark. 729, 293 S. W. 9; Missouri Pacific Railroad Company v. Elvins, 176 Ark. 737, 4 S. W. 2d 528; National Life & Accident Insurance Company, Inc., v. Hitt, 194 Ark. 691, 109 S. W. 2d 426.
Appellee’s testimony, as to the circumstances surrounding the execution of the reléase was not seriously contradicted by appellant’s witnesses. The claim agent who made the settlement testified that a few days before the settlement was made he talked with the assistant surgeon of appellant about appellee’s injury and (the claim agent) admitted that he “probably” told appellee that appellant’s assistant surgeon had advised him (the claim agent) that appellee’s leg was in good condition and that he would be able to go back to work about January first. But, conceding that there was a dispute in the testimony as to this phase of the case, such conflict was for the jury to settle, and, in determining whether the evidence was sufficient to support the verdict, we must give the evidence on behalf of appellee the strongest probative force that it will reasonably bear. St. Louis, Iron Mountain & Southern Railway Company v. Coleman, 97 Ark. 438, 135 S. W. 338.
We cannot say, when all the testimony is considered in the light of our pronouncements in the above cited cases, that the lower court erred in submitting the question of the validity of the release to the jury, or that the jury’s finding that the release was executed under a mutual mistake of fact was without support in the evidence.
II.
Nor can we say, as a matter of law, that the amount of the jury’s verdict was excessive. Appellee was 55 year's old at the time of his injury. He was illiterate and capable of doing only manual labor. There was testimony indicating that his ability to do this kind of work had been seriously impaired for the remainder of his life and that he would always have a certain amount of lameness. Under this proof we cannot say that the amount awarded by the jury to appellee is so excessive as to entitle appellant to relief therefrom.
The judgment of the lower court is affirmed.
Grieein Smith, C. J., and MoHaney and Holt, JJ., dissent. | [
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Minor W. Mill wee, Justice.
W. T. Wilson was a colored farmer and schoolteacher residing near Portland in Ashley county in 1916 when he married appellee, Annie Wilson, one of his former pupils. Wilson was 14 years older than appellee. They resided in Ashley county for about seven years where he continued to teach school three months of each year and conducted farming operations on rented lands. Appellee kept house, assisted.in the farm work, and, at odd times, engaged in hairdressing for the colored women of the community. The husband , transacted all their business affairs.
The couple moved to Warren in Bradley county, Arkansas, in 1923. In October, 1923, Wilson purchased two lots for $200 in block 5, Butler’s Addition to the City of Warren, located near the mill of the Bradley Lumber Co. In 1924, a home was built on one of these lots where the parties resided until his death in 1944. In October, 1924, five lots were purchased in blocks 5 and 6, Butler’s Addition, for $375. In November, 1926, five other lots were purchased in block 5, Butler’s Addition. Construe tion of small three-room rent houses was begun in 1924 and by 1928 fifteen of these houses had been built on the lots in blocks 5 and 6 of Butler’s Addition. In March, 1940, a purchase was made from Mattie Gould of lots 16 and 17, Bell’s Subdivision of the E. N. Wilson Addition, and lot 10, block 4, Butler’s Addition, to the City of Warren, upon which seven rent houses were located. In March, 1941, lots 7 and 8, block 6, Butler’s Addition to the City of Warren were purchased from Leanna Winters for $300. There were two rent houses on these lots which were paid for from rentals. W. T. Wilson was made grantee in the deeds evidencing all these purchases.
W. T. Wilson continued to teach in the colored schools at Warren from 1924 until his retirement in 1937. His salary was $75 a month for eight months during most of this period. He also looked after the rental of the tenant houses. After his retirement from the teaching profession, he drew a small monthly retirement pay until his death in 1944. Appellee kept house and for several years engaged in hairdressing. She also kept a few boarders who were employed by the lumber company. She assisted her husband in the collection of rentals and the earnings of both were placed in a common fund administered by the husband.
W. T. Wilson inherited 40.17 acres of land in Ashley county from his father’s estate following the death of his mother in 1936. In October, 1943, he executed a lease of this land to William Bozeman for,the years 1944, 1945 and 1946. This lease provided for annual rentals of $200, payable to Wilson, and further stipulated that in the event of Wilson’s death during the term of the lease such rentals should be paid to appellee.
W. T. Wilson died September 1, 1944, childless and intestate. He was survived by appellee, his widow, and the appellants who are the brothers and sisters and other collateral heirs of deceased. Appellants are all of age. The deceased owed no debts at the time of his death and owned little personal property. Appellee received $150 from one life insurance policy and another for $55 was payable to the estate of the deceased.
Efforts of the parties to effect an amicable settlement of their respective interests in the estate failed, and appellee brought this suit in chancery court alleging that she was entitled to the rentals due under the three-year lease of the 40 acres in Ashley county owned by her husband at the time of his death; that her husband was made sole grantee in all the deeds to the Warren properties without her knowledge until after his death; that one-half of the purchase price of these properties was furnished by appellee and purchase made with the intent and understanding between appellee and her husband that the property would belong to them jointly; and that a resulting trust should be declared in appellee’s favor to the extent of her .payment of one-half the purchase price in all .the Warren property. Appellee prayed that she be adjudged the owner of the $600' rentals due on the lease of the Ashley county 40-acre tract and that her life estate be quieted in said lands. She also prayed that her title to a three-fourths undivided interest in fee in the Bradley county property be quieted and confirmed.
In their answer, appellants admitted that all the deeds to the Warren property were made to W. T. Wilson as grantee, and denied the other material allegations of the complaint. Appellants prayed for an accounting of rents, the appointment of a receiver, and for distribution of the respective interests of the parties according to the law of descent and distribution.
The cause was submitted to the chancellor upon the pleadings, stipulations and the depositions of numerous witnesses whose testimony comprises four of the six volumes of the transcript. A decree was entered on July 8, 1946, adjudging appellee to be the owner of the $600 rentals accruing under the lease of the Ashley county lands and quieting her life estate therein. In addition to the undivided one-half interest with which appellee became endowed as a widow in the three lots purchased from Mattie Gould, the court decreed a resulting trust in her favor to an undivided one-half of the one-half interest owned by her husband at the time of his death in this property. The court denied appellee’s prayer that a resulting trust be declared in her favor in the other Warren properties. Appellants were charged with 70 per cent, of the costs and appellee with 30 per cent. There were several other matters determined by the decree which are not involved in this appeal.
Appellants have appealed from so much of the decree as holds appellee entitled to the $600 rental and establishes a resulting trust in the property acquired from Mattie Gould. They have also appealed from that part of the decree which makes them liable for 70 per cent, of the court costs.
Appellee has cross appealed from that part of the decree which denies a resulting trust in her favor in the remainder of the Warren properties.
MOTION TO DISMISS
Appellee has filed with her brief a motion to dismiss the appeal for appellants’ failure to properly abstract the record in compliance with Rule IX (b) of this court. There are several obvious defects in the abstract furnished by appellants. It is unnecessary to point them out since appellee has cured this deficiency and waived her motion to dismiss by supplying us with a correct abstract of the record. Springfield v. Steen, 99 Ark. 241, 138 S. W. 453; Sears v. Scott, 210 Ark. 392, 197 S. W. 2d 33.
In Springfield v. Steen, supra, the court said: “Where the appellee has made a proper abstract, which is accepted by appellant as correct, or to which no objection is made, and then asks us to affirm the judgment for noncompliance with Rule 9 by appellant, we have denied his motion, and have taxed appellant with the additional costs because appellee has performed the duty to the court which is required of appellant.” So here appellants will be charged with the additional costs incurred by appellee in abstracting the record, and appellee’s motion to dismiss is denied.
RENTALS
Appellants contend that the chancellor erred in finding appellee entitled to the $600 in rentals under the lease of the 40-acre farm in Ashley county, the ancestral estate of W. T. Wilson, deceased. This lease was executed by W. T. Wilson in October, 1943, and contains the following provision: “It is expressly understood and agreed by and between lessor and lessee that in the event of the death of lessor during the term of this contract, such rentals as may be due from lessee under the terms of this contract shall be paid to Annie Wilson, wife of lessor.” Appellants insist that appellee is merely made the agent of her husband’s estate for collection of the rental moneys in the event of his death before maturity of the lease.’ If such had been the intention of the parties, it would have been a simple matter to have added this restriction on the rights of appellee in the wording of the lease.
We think the trial court correctly construed the terms of this paragraph of the lease and that appellee became the owner of the rentals accruing after the death of her husband. The situation is analogous to that where a. deed conveys property, but reserves its use and possession for the lifetime of the grantor. In Hatcher v. Buford, 60 Ark. 169, 29 S. W. 641, 27 L. R. A. 507, this court said: “We think the better doctrine upon the transfer of the title to gifts causa mortis is that which accords with Justinian’s definition, and recognizes the subject-matter of the gift as becoming the property of the donee in the event of the donor’s death, i. e., the donor’s death is a condition precedent to the vesting of the title to the thing given in the donee. This seems to be the rule adopted by the English courts of chancery, and is supported also by eminent American courts and text writers.” See, also, Ammon v. Martin, 59 Ark. 191, 26 S. W. 826; Gross v. Hoback, 187 Ark. 20, 58 S. W. 2d 202.
Another clause of the lease provides that it should become inoperative at' the discretion of the survivor in case of the death of either the lessor or his wife. When the lease is considered in its entirety, and in connection with the congenial and cooperative relationship that existed between the lessor and appellee throughout their married life, it is susceptible of no other construction than that given by the trial court, and his finding on this issue will not be disturbed.
RESULTING TRUST
Appellee sought to have a resulting trust declared in her favor to the extent of one-half of the undivided one-half interest of her deceased husband in all the Warren properties. “Such a trust cannot he established by a slight preponderance of the testimony, nor anything short of evidence that is clear, convincing and satisfactory.” Keith v. Wheeler, 105 Ark. 318, 151 S. W. 284. The applicable rule was stated by Chief Justice Hart, speaking for the court, in Kerby v. Feild, 183 Ark. 714, 38 S. W. 2d 308, as follows: “In order to constitute a resulting trust,"the purchase money or a specified part of it must have been paid by another or secured by another at the same time, or previously, to the purchase, and must be a part of the transaction. In other words, the trust results from the original transaction at the time it takes place and at no other time, and it is founded upon the actual payment of money and upon no other ground. ’ ’ In Kline v. Ragland, 47 Ark. 111, 14 S. W. 474, this court held (headnote 1): “Where the purchase money for land conveyed to the husband is paid in whole or in part by the wife, she has an equity to have a trust declared and enforced against him to the extent of her payment. ’ ’
Appellee alleged in her complaint and sought to prove that one-half the price of the lots first purchased in Bradley county was furnished by her from the proceeds of the sale of 13 head of cattle given to her by her father before the parties moved to Warren. She testified that she turned the cattle over to her husband who used the proceeds of the sale in purchasing the lots. She does not attempt to say how much the cattle sold for, or that she contributed any specified sum toward the purchase price of the lots. Her testimony relative to the sale of cattle was disputed by several neighbors of her father who testified that the latter was a poor tenant farmer who never owned more than one or two head of livestock at any time.
There was a large volume of testimony on this issue and it would serve no useful purpose to attempt to detail it here. After a careful consideration of this evidence we are of the opinion that it fails to show clearly and convincingly that there was a payment made by appellee, or an agreement with reference thereto, at the time of the purchase, or prior thereto, in connection with the 1923, 1924 and 1926 purchases. Appellee relies upon such cases as Gainus v. Cannon, 42 Ark. 503; Leslie v. Bell, 73 Ark. 338, 84 S. W. 491; and Eckles v. Whitehead, 196 Ark. 680, 119 S. W. 2d 550. In the Gainus case the court refused to declare a resulting trust and, in an appraisal of the evidence offered to support the widow’s claim, said in part: “An examination of the evidence, which has been made under a very natural tendency to support her claim against the collateral heirs of her husband, fails to disclose any definite, clear agreement, on his part, to exercise and hold this fund as her trustee for her separate use. . . . Much of it consists of casual expressions with regard to his wife’s ownership, which are commonly used by husbands with regard to property obtained through the wife, or which has been furnished by the husband with a special view to the wife’s comfort or gratification. It is the conventional language of domestic affection, and does not ordinarily mean to imply legal or equitable title. . . . The proof that the husband received the money under a self-imposed trust to convert it into a'home-for her separate use is too indefinite and unsatisfactory to warrant a reversal of the decree on this point.” In the other cases cited by appellee it was clearly shown that either the husband purchased the property with funds derived from his wife’s separate estate or that she actually paid a definite portion of the purchase price.
Appellants insist that the trial court erred in declaring a resulting trust in appellee’s favor in the purchase from Mattie Gould in 1940. At the time of this purchase both husband and wife had retired and their primary source of income was the rentals from the tenant houses. During the years intervening since 1926, appellee had engaged in dressing hair and keeping boarders and contributed regularly to the family earnings in an amount equal to or greater than her husband. She also assisted in the renting of the properties. The grantor in the deed, Mattie Gould, testified that she sold the property to both Wilson and his wife and it was understood that the deed would be made to both of them. She had the deed prepared and thought it had been made to both. They paid for the property with the proceeds of a loan from an association which was secured by the joint obligation of both parties. This loan was discharged by the rentals from tenants of the houses on the property. We think this testimony, when considered in connection with other evidence of statements made by the deceased about the time of the purchase, was sufficient to sustain the finding of the chancellor that appellee furnished one-half the purchase price of the property, and that a trust resulted to that extent in her behalf.
COUNT COSTS
Appellants insist that the trial court erred in assessing 70 per cent, of the court costs against them and 30 per cent, against appellee. Appellants cite § 10530, Pope’s Digest, relating to costs in partition suits which reads: ‘ ‘ The costs of the division shall be apportioned among the parties in the ratio of their interests, and the costs arising from any contest of fact or law shall be paid by the party adjudged to be in the wrong.” The instant suit involved not only a partition of the property, but the setting aside of dower and homestead and awarding statutory allowances. It also involved the right to rentals from the ancestral estate and the issue of resulting trust. We have uniformly held that the matter of taxation of costs in chancery cases is within the discretion of the chancellor and unless there is an arbitrary abuse of power on his part we will not disturb the award. Mt. Nebo Anthracite Co. v. Martin, 86 Ark. 608, 111 S. W. 1002; Penix v. Pumphrey, 125 Ark. 332, 188 S. W. 816. Appellants say they offered appellee what she was entitled to receive under the statutes of descent and distribution prior to the beginning of the suit. But they did not offer the $600 in rentals nor recognize her right to a resulting trust in a part of the property. Appellants have been “adjudged to be in the wrong” on these issues, and we cannot say that the chancellor abtised his discretion in placing the greater burden of the costs upon them.
It follows that the decree of the trial court must be affirmed on both the direct appeal and cross appeal. The costs in this court will be apportioned as in the trial court and appellants will be taxed with the additional expense incurred by appellee in abstracting the record. | [
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Robins, J.
The instant suit is an effort on the part of appellant, Miss Isabella Mack, aged 82, to recover $5,000 for balance of purchase money admittedly due to her on the sale of her home, a forty acre tract near Fayetteville, Arkansas. Having been denied any relief in the lower court, she has appealed.
In her complaint, which named as defendants the appellees, R. H. Marvin and his wife, Mabel J. Marvin, Fulbright Investment Company, George F. Caudle and his wife, Thelma Caudle, appellant alleged that she sold the land on March 20, 1946, to appellee R. H. Marvin, acting as agent for appellees Fulbright Investment Company and George F. Caudle and wife, for $7,800, of which she was paid $2,800,, and for balance she received two checks drawn by appellee Marvin on a Fayetteville bank, each for $2,500 and dated, respectively, May 15, and June 15, 1946; that when she accepted these post-dated checks appellee Marvin showed her a statement of his bank account, reflecting that at the time he had about $9,000 on deposit in the bank on which the checks were drawn; that when she presented the checks for payment the bank refused to pay same because appellee Mabel J. Marvin, wife of R. H. Marvin, had withdrawn all balance in said account, it being payable to either appellee Marvin or his wife; that in 1944, appellees R. H. Marvin and Mabel J. Marvin had acquired a forty-five acre tract, described in the complaint, in Washington county, conveyance'having been made to both of them; that after appellee Marvin obtained deed from appellant for her property he, for the purpose of cheating and defrauding appellant, conveyed said jointly owned tract to Ms wife.
Appellant prayed for judgment against all of the appellees for $5,000, asked that same be declared a lien on the lands sold by appellant to appellee Marvin, and She also prayed that the deed executed by appellee Marvin to his wife be set aside and a lien declared on the land therein described in favor of appellant for the amount of her judgment. Notice of Us pendens was filed by appellant.
In their answers appellees Caudle and wife and Fulbright Investment Company denied that appellee Marvin was their agent in purchasing the property from appellant, and alleged that they, without any notice that appellee Marvin had failed to pay the purchase money to appellant, bought the land from him and paid him therefor.
Appellee Marvin entered his appearance, but filed no answer. His wife’s answer was a general denial.
To sustain the issues on her part appellant offered the testimony of appellee Marvin, herself, Berry Vaughn and Richard B. Greer.
Appellee Marvin testified that he obtained the deed (wMch recited payment of consideration in full) from appellant, paying a total of $2,800 in cash and bonds and turning over to her the two checks referred to in the complaint; that he sold tMrty-five acres of the property to appellee Fulbright Investment Company and five acres to appellee Caudle; that he conveyed his interest in the forty-five acre tract (purchased by him and his wife) to his wife; that the transaction with appellant was “individual”; that the checks were post-dated “because the wife and I needed the money to use on the place”; that he did have on deposit at that time enough money to pay the checks; that the principal part of the money obtained from appellant’s property went to pay for construction of the house he and his wife were building; that after spending this money he borrowed $14,400 and deposited that in the joint account, but his wife, without his knowledge, drew out the amount of the account, thus causing the checks given to appellant to be dishonored; that in selling appellant’s property to Caudle and Fulbright Investment Company he made a profit of'$900; that he was not the agent of Fulbright Investment Company and Caudle; that appellee Mabel Marvin was á bookkeeper before her marriage; that the property where he and his wife lived was their homestead; “that there was no part of this transaction that Mrs. Marvin was not totally familiar with”; that the homestead of himself and wife was worth-$65,000; that Miss Mack didn’t need the money and we did; that his wife knew all about these transactions. This witness introduced in evidence copies of the conveyances involved, including the deed executed by appellee Marvin to his wife, filed for record on July 19, 1946, by which he conveyed the forty-five acre home place to her.’ (An estrangement between appellees Marvin and his wife, with consequent suit for divorce by her, seemed to have occurred after the transaction with appellant)
Appellant testified that when appellee Marvin gave her the post-dated checks and obtained the deed from her he told her the checks would be paid and at the same time showed her a bank statement showing he had on deposit in the bank on which these checks were drawn between eight and nine thousand dollars; that the checks were returned to her unpaid by the bank.
Berry Vaughn, vice-president of the bank on which the checks were drawn, introduced ledger sheets showing the account of appellees ft. H. Marvin and wife. This account showed deposits of $7,500 and $1,200 on March 21, 1946, these deposits presumably covering proceeds of purchase money obtained from appellees Fulbright Investment Company and Caudle; and also showed subsequent withdrawals which reduced the balance to $396.23 on May 8,1946, after which the account continued to show a small balance until June 29, 1946, when a deposit of $14,400 was made, which was all withdrawn by July 5, 1946; that, judging from endorsements on the two $2,500 checks drawn in favor of appellant by appellee Marvin, these checks were presented to his bank on July 13, 1946.
Richard B. Greer, circuit clerk, identified the deeds involved and testified as to the time of recording same.
Appellant, being recalled, testified that appellee Marvin had given her his promissory note for $5,500 in lieu of the checks, but that she returned the note to Marvin and kept the cheeks.
At the conclusion of the testimony on behalf of appellant, appellees Mabel J. Marvin, George F. Caudle and wife and Fulbright Investment Company filed demurrers to the testimony and asked for dismissal of the complaint. The lower court sustained these demurrers and rendered decree dismissing appellant’s complaint.
We have heretofore, on motion of appellant, dismissed her appeal as to appellee George F. Caudle and wife.
There is no testimony indicating that appellee Fulbright Investment Company, in buying the thirty-five acre tract from appellee Marvin, after he had obtained from appellant conveyance to himself reciting full payment of purchase money, was other than an innocent purchaser for value. The lower court therefore properly dismissed the complaint as to it.
The action of appellees in filing demurrers to the testimony introduced by appellant was, under our opinion in the case of Kelley v. Northern Ohio Company, 210 Ark. 355, 196 S. W. 2d 235, equivalent to a submission of the case for final decision on the testimony offered by appellant. In the Kelley case, supra, we construed Act 257 of 1945 and considered the effect of a demurrer by defendant to evidence offered by plaintiff in a chancery case. We there said “that the appellees [defendants] waived the right to introduce proof by moving for a decree.” Therefore, we treat the case between appellant and appellees Marvin and wife as having been fully heard and finally disposed of by the court below.
The net effect of the testimony in this case is:
Appellant delivered to Marvin a deed, reciting payment in full of purchase money, conveying to him prop- • erty worth $7,800, and receiving therefor $2,800 in cash and bonds and post-dated checks for $5,000 which proved worthless. When Marvin, a few days after obtaining the deed from appellant, conveyed this property to Caudle and Fulbright Investment Company he collected from them in cash $8,600. Instead of using this money, which arose from appellant’s property, to pay her the balance of $5,000 on the purchase money which he owed her, he and his wife used this money in improving real estate jointly owned by them, the interest of appellee Marvin therein having been conveyed to his wife before the due date of the post-dated checks. Mrs. Marvin had full knowledge of all these transactions. She was not ignorant of business affairs, having been an accountant before her marriage.
If the decree of the lower court is affirmed it means that Miss Mack has irretrievably lost $5,000 and that appellee Marvin and his wife have been unjustly enriched at Miss Mack’s expense in the same amount.
Appellee Marvin and his wife did not deny this unjust enrichment. He filed no answer, but in his testimony sought to justify his conduct on the ground that his wife was to blame for the situation, because she withdrew from the bank the funds from which the post-dated checks could and should have been paid; and it is urged on behalf of appellee Mabel J. Marvin that she did not owe appellant anything and that she was within her' rights when she, with full knowledge of the obligation to pay appellant the amount of the post-dated checks, withdrew the balance in the bank; and it is further argued in her behalf that the property into which this money was diverted was her homestead and therefore exempt from any claim of appellant. Such specious defenses may not be sustained in a court of equity.
When appellant turned over to Marvin the deed conveying her home to him without receiving, as miich as half of the purchase money therefor, she made it possible for Marvin to deal with this property as his own, and, in view of her age, her evident lack of experience in business affairs and her blind confidence in Marvin, and in view of the fact that, though he had taken from Miss Mack a conveyance acknowledging full payment by him to her when in truth he had at that time paid her only $2,800 of the purchase money, Marvin immediately after collecting it converted to his own use the money obtained by him from Caudle and Fulbright Investment Company for appellant’s property, we think there arises naturally an inference that Marvin intended, when he obtained her deed, to defraud appellant, and that therefore a constructive trust in favor of appellant, as to her property and its proceeds, arose when appellee Marvin received his deed which enabled him, without paying appellant her purchase money, to sell the property; in good conscience his relation to her was something more than that of mere debtor. Lilly v. Barron, 144 Ark. 422, 222 S. W. 712. Under the circumstances appellee Marvin in a sense became appellant’s agent pro hác vice, and when he collected the purchase money from Caudle and Fulbright Investment Company honesty and good faith demanded that he use these funds to pay his unsecured obligation to appellant. Instead of doing this, he used this trust fund to improve his own property.
“One of the most common cases,” says Judge Story, “in which equity acts upon the ground of implied trusts, in invitum, is where a party has received money which he cannot conscientiously withhold from another party.” Story, Eq. Jur. (13th Ed.), § 1255. “A constructive trust is substantially an appropriate remedy against unjust enrichment. It is raised by equity in respect of property which has been acquired by fraud, or where, although acquired originally without fraud, it is against equity that it should be retained by the person holding it.” 54 Am. Jur. 169; Restatement of the Law, Title “Restitution,” p. 639.
“An abuse of confidence rendering the acquisition or retention of property by one person unconscionable against another suffices generally to ground for equitable relief in the form of the declaration and enforcement of a constructive trust, and the courts are careful not to limit the rule or the scope of its application by a narrow definition of fiduciary or confidential relationships protected by it. . . . The origin of the confidence reposed is immaterial.” 51 Am. Jur. 173.
While appellant in her complaint asked that a lien in her favor be declared on the land conveyed by appellee Marvin to his wife, she did not allege specifically the existence of the trust relationship between her and said appellees. But, in equity, pleadings may be considered as amended to conform to the proof. Fidelity & Deposit Co. of Maryland v. Cowan, 184 Ark. 75, 41 S. W. 2d 748; G. H. Hardin & Co. v. Nettles, 192 Ark. 610, 83 S. W. 2d 315. Since the evidence in this case shows the existence of the trust the lower court should have treated the complaint as amended to conform to the proof in this regard.
A trustee may not defeat a trust by investing the trust fund in other property. In such a case equity will permit' the cestui que trust to follow the misapplied fund into the property which it purchased or improved. Remchard v. Renshaw, 102 Ark. 309, 143 S. W. 1092; Humphreys v. Butler, 51 Ark. 351, 11 S. W. 479.
The fact that the property of Marvin has been conveyed to his wife does not alter the situation, because, under the testimony, she was fully aware of her husband’s transaction with Miss Mack and knew that money that in good conscience belonged to Miss Mack was used in improving the property which her husband conveyed to her; and according to the undisputed testimony it was Mrs. Marvin’s act in withdrawing all the money from the joint account which caused the two checks payable to appellant to be dishonored.
“As a general rule, provided the property can be traced or identified, any third person who has obtained trust property or its product, by a transfer made in violation of the trust, and who is not a bona fide purchaser for value without notice, stands in the same position as the original trustee and takes the property . . . subject to the beneficiary’s right to reclaim it and impress it with the trust.” 65 C. J. 986. Pindall v. Trevor, 30 Ark. 249; Fidelity & Deposit Co. of Maryland v. Cowan, 184 Ark. 75, 41 S. W. 2d 748.
There is nothing in the record to indicate that Mrs. Marvin asserted in the lower court a homestead right in the property held by her. But such a claim, even if properly and seasonably made, would not be availing. Trust funds may be traced into a homestead, and a lien in favor of a wronged cesUd que trust may be impressed on the homestead into which trust money has been diverted.
This is not an attempt to subject, by execution or other process, a homestead to payment of debts due by the owner thereof. In such cases there is a constitutional exemption in favor of the owner except as to liabilities growing out of purchase money, mechanics’ liens, and conversion of funds by a trustee of an express trust. But here we are concerned with tracing into a homestead, and recovering out of same, funds wrongfully obtained by the owner and used to improve the homestead; and in such, a case the wrongdoer may not avail himself of the homestead exemption to defeat the claim of one whose funds have, in violation of a trust, been used to improve or purchase the homestead.
While most of the adjudicated cases deal with the purchase of homestead with trust funds, there is no difference between the effect of use of such funds to buy a homestead and the use thereof to improve a homestead; and the courts do not hesitate to grant an equitable lien in favor of one whose money is used by a trustee ex maleficio to improve a homestead. Smith v. Green, 243 S. W. 1006; Jones v. Carpenter, 90 Fla. 407, 106 So. 127, 43 A. L. R. 1409.
Dealing with this question, the Supreme Court of Tennessee in the case of Preston v. Moore, 133 Tenn. 247, 180 S. W. 320, L. R. A. 1916C, 578, said: “May a trustee ex maleficio prevail upon a claim to right of homestead in the realty produced by the avails .of his fraud on the cestui que trust, against the latter, when the fund is followed into the realty? An affirmative response would shock one’s sense of what is equitable, and it is not the response'the law gives. Thompson in his work on Homesteads, § 338, says: ‘If B has purchased a homestead with the money of A, under such circumstances as would make bim a resulting trustee for A, of course he can asse'rt no right of homestead as against A; since, in the eye of a court of equity, A is the owner of the property, and not B.’ This court in Gordon v. English, 3 Lea, 634, referred to the text of Mr. Thompson with approval, and held that not only in cases of resulting trust proper, but also in a case which involved ‘a trust which has all the qualities and effects of a resulting'trust proper,’ was the rule applicable. The wrongdoer, it was there said, ‘cannot acquire a homestead right as against the person whose money has been used. The money due the beneficiary is in reality purchase money, against which the homestead exemption cannot prevail. ’ ’ ’
In the case of Kemp v. Enemark, 194 Cal. 748, 230 P. 441, the Supreme Court of California .held that where a husband by deceit obtained funds with which to purchase and improve land which yras traded for other land as to which the wife attempted to assert a homestead right against the claim of the person deceived, such homestead right could not be maintained, and in its opinion the court quoted this language from an earlier opinion, Shinn v. MacPherson, 58 Cal. 596: “There is no provision of the homestead law that affords a cloak for such a transaction. That law was enacted for beneficent purposes, designed to secure home for the family, but . . . was never intended ‘to be a secure and impregnable asylum in which to deposit peculations from others.’ ”
We conclude that, since a trust relation, with appellant as the beneficiary and appellee Marvin as the trustee, was shown by' the testimony, appellant had the right to trace the trust fund into the property (owned at that time by appellees Marvin and wife) which it was used to improve and that a lien may be impressed thereon for the benefit of appellant, even though it has been conveyed to appellee Mabel J. Marvin.
It follows from what has been said that the decree of the lower court, in so far as it dismissed appellant’s complaint against appellee Fulbrigbt Investment Company for want of equity, is affirmed; and, in so far as it dismissed the complaint against appellees R. H. Marvin and Mabel J. Marvin, the decree of the lower court is reversed and the cause remanded to the lower court with directions to render decree against appellees R. H. Marvin and Mabel J. Marvin for $5,000 with interest on $2,500 thereof from May 15, 1946, and on $2,500 thereof from June 15, 1946, at the rate of six per cent, per annum, and to declare a lien therefor in favor of appellant on the land described in the above mentioned conveyance executed by appellee R. H. Marvin to appellee Mabel J. Marvin, and providing for foreclosure of said lien and sale of said land in accordance with the practice for foreclosure of mortgages in chancery court; and all costs of both courts to be adjudged against said last named appellees. , | [
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Smith, J.
This is a petition for a writ of mandamus, and as grounds for its issuance the following facts were alleged: Petitioner, a resident citizen of Lonoke county, is an independent candidate for the office of County Judge of Lonoke county, and the defendants constitute the Board of Election Commissioners for that county. Pursuant to, and in compliance with, § 4705, Pope’s Digest, he filed a petition with the said Board of Election Commissioners, praying that he be certified as an independent candidate for the office of County Judge of Lonoke county. The petition addressed to the Election Commissioners was filed with them October 21,1946, and contained the names of seventy-seven alleged electors of that county. On October 25,1946, petitioner was advised by the Election Commissioners that his name would not appear on the ballot as an independent candidate at the election to be held on November 5, 1946,- because thirty-four of the seventy-seven signers of the petition were not electors for the reason that they had failed 'to sign their assessment blanks when their poll taxes were assessed, and eight of said signers had paid no .poll tax at all, and that his name would not be placed on the ballot as a candidate for the reasons stated. This action of the Election Commissioners was alleged to have been arbitrary and unauthorized and it was prayed that a writ of mandamus issue, requiring the Election Commissioners to place petitioner’s name on the ballot as a candidate pursuant to the petition filed by him.
A demurrer to the petition for mandamus was sustained and the petition dismissed, and from that order is this appeal.
Section 4705, Pope’s Digest, pursuant to which the original petition was filed, provides that: ‘ ‘ The nominations of candidates shall he certified in the following manner: By the chairman and secretary of any convention of delegates, or of the canvassing board of any primary election, held by authority of an organized political party in the State, or subdivision thereof, in which such convention or primary election is held; and also, by electors of the State, district, county, township, ward of a city or incorporated town, for which the nomination is made. Provided, the number of signatures of electors so required shall not be less than fifty, nor more than one thousand, for the State or any district or county, and not less than ten, nor more than fifty, for any township, or ward of a city or incorporated town. ”
The statute does not prescribe how, or in what manner Election Commissioners shall determine the sufficiency of the petition of one who wishes to become a candidate by petition. But of necessity, they have the right to determine the prima facie sufficiency of the petition. For instance, they may and should count the number of signers and if it were found that there were less than fifty of these, the petition should be dismissed. But here the Election Commissioners exercised a power which the law did not confer upon them. After ascertaining that eight persons who signed the petition had not paid their poll taxes, leaving sixty-nine who had paid, they proceeded to determine the validity of the poll tax receipts of thirty-seven signers who had paid their poll taxes. After deducting the names of the eight signers who had not paid their poll taxes, there remained on the petition the names of sixty-nine persons, who had paid, and a prima facie showing of compliance with the law' had been made, and the power and authority of Election Commissioners was at an end.
The duties of the Election Commissioners are ministerial and not judicial. They have the power to determine whether a prima facie showing of a sufficient petition has been made, but they have no other function.
Now the ballot cast at an election by one not eligible to vote may be discarded, although he possesses a poll tax receipt. In other words, a poll tax receipt does not qual ify one to vote, who is not otherwise qualified. Provision is contained in § 4730, Pope’s Digest, for challenging the right to vote of one who is not eligible. The statute just cited provides that: . . when the ballot of any voter is thus challenged, it shall be the duty of the judges and clerks in said election precinct to make and retain a list of the names of all such persons so challenged and the ballots of all such persons shall be counted, preserved and separated from the remaining ballots to the end that the right of any. such person to vote may be later determined either by the county central committee or the court in which an election contest may thereafter be filed.” There a practice is prescribed and a power is conferred to determine the elector’s qualifications. But here this is not true after a prima facie showing has been made of the sufficiency of the petition to have one’s name placed on the ballot.
It will be remembered that this is not an election contest, nor is it a proceeding to enjoin the Election Commissioners from certifying the name of one as a candidate who had petitioned that action. Those would be judicial proceedings in which the facts could be inquired into and determined. Here the Election Commissioners, after determining that holders of sixty-nine poll tax receipts had signed the petition, then proceeded to adjudge also the question whether those persons had properly assessed their poll taxes. The law confers no such authority, and their determination cannot be given a judicial effect.
The opinion in the case of Irby v. Barrett, 204 Ark. 682, 163 S. W. 2d 512, is decisive of this question. There the Chairman and Secretary of the Democratic State Committee had refused to certify the name of Irby as a candidate for the State Senate from the district in which he resided, as required by the rules of the Democratic party. It was conceded that Irby had complied with the rules of the party to become a candidate, but the Chairman and Secretary of the party committee refused to certify Irby’s name as a candidate for the reason, as found by them, that Irby was ineligible to serve if elected, inasmuch as he had been convicted of a felony, to-wit: the crime of embezzling public money. In awarding the writ of mandamus directing that Irby’s name be certified as a candidate, we held that the Chairman and Secretary were without power to refuse to certify the candidacy of one who had complied with the rules of the party in that behalf. In so holding we said: ‘ ‘ Certainly no law of this state confers that power and we are cited to no rule of the party conferring it. Certain it is that the chairman and secretary of the state committee are clothed with no judicial power. Their duties are purely ministerial,
In that connection, it was there further said: “If the chairman and secretary of the committee have the right to say that because of the decision of this court petitioner is ineligible to be a candidate for office, they may also say, in any case, that for some other reason a candidate is ineligible. For instance, it has been held by this court in many election contests that one must pay his poll tax; that he must do so after proper assessment in the time and manner required by law; and that otherwise he is not eligible even to vote, and unless he were a voter he could not hold office. So with other qualifications, such as residence. May this question be considered or decided by the chairman and secretary of the committee ? It may be that such power can be conferred upon them by laws of this state or the rules of the party; but it is certain that this has not yet been done. If this can be done, and should be done, the door would be opened wide for corrupt and partisan action. It might be certified that a prospective candidate has sufficiently complied with the laws of the state and the rules of a political party to become a candidate, and, upon further consideration, that holding might be recalled; and this might be done before that action could be reviewed in a court of competent jurisdiction and reversed in time for the candidate to have his name placed on the ticket. It would afford small satisfaction if, after the ticket had been printed with the name of the candidate omitted, he have a holding by the court that the name should not have been omitted. ’ ’
That opinion cited a case from Kentucky, and another from Louisiana which fully sustained our holding, and we are now cited to an opinion by the Supreme Court of Nevada in the case of State v. Glass, 44 Nev. 234, 197 Pac. 472. There a circuit court had upheld the action of a county clerk in striking from his files a certificate of nomination for a public office, for the reason that signers of the petition to have the petitioner’s name placed on the ballot as a candidate had neglected to add to their signatures their places of residence as required by law. A strong opinion discussed the power of officers who have only a ministerial duty to perform, and in reviewing the action of the circuit court it was said: “We do not think that the legislature intended to vest in a mere ministerial officer such important power as to pass upon the validity of a nomination certificate before accepting and filing it.” Nor do we.
It is urged, however, that the case is now moot, and should be dismissed for that reason. It is moot in the sense that we cannot now afford appellant petitioner any relief, but it is not moot in the sense that it is important to decide a practical question of great public interest, which may arise in any future election.
The question presented is one which may arise at any election hereafter held where ministerial officers usurp a judicial function. There is here a question of practical importance and of great public interest, and if not now decided, some other candidate may be deprived of the right to run for a public office and his right to do so mqy become a moot question before it could be decided, on account of unavoidable delay in the law.
A consideration of such a possibility induced the Supreme Court of Oklahoma, in the case of Payne v. Jones, 146 Pac. 2d 113, to decide a question which would otherwise have been dismissed as being a moot question, and gave as the reason for so doing that the case was of a type which soon becomes moot, and it would be difficult to get a decision before it also became moot when tbe question again arose.
Tbe Supreme Court of Pennsylvania, in tbe case of Werner v. King, 310 Pa. 120, 164 Atl. 918, dealt with a case which, under the facts stated, had become moot, but the court said: “These facts render moot the question raised. Ordinarily this would be stated, without more, and the appeal dismissed. We have, however, dealt with the substantial question involved, because it is one which can be raised any year hereafter, when the lists are about to be advertised, unless settled by us; but, having done this, we must enter an order appropriate to the existing situation; The appeal in this case is dismissed.” Nevertheless, for the reason stated, the question presented was decided. See Brown v. Anderson, 210 Ark. 970, 198 S. W. 2d 188.
So here, we have a question which may arise at any future election and under the circumstances which would prevent a decision until the question had likewise become moot. We hold, therefore, that the Election Commissioners were without authority to refuse to certify appellant’s name as a candidate, although the decision profits him nothing, and his appeal must now be dismissed for the reason that we are powerless to render him any assistance in the enforcement of a right wrongfully denied him.
It is insisted that the demurrer was properly sustained for the reason that the petition.for the writ was hot verified.1 This was a question which should have been raised by a motion to require verification or to dismiss for the refusal to verify and not by demurrer. Hardwick v. Campbell & Co., 7 Ark. 118; Mayor v. State Bank, 8 Ark. 227; Loring v. Flora, 24 Ark. 151; Greenfield v. Carlton, 30 Ark. 547; Clarke v. Wanamaker, 184 Ark. 73, 40 S. W. 2d 784.
It was error to have sustained the demurrer to the petition, but as no relief can be afforded, the cause is dismissed. Having jurisdiction to determine this question, it is ordered that all costs be assessed against appellees. | [
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Grieein Smith, Chief Justice.
March 3, 1946, Garst signed Consolidated Motor & Aviation 'Company’s conditional sales contract covering a Studebaker automobile. The “bona ficle cash delivered price, including sales tax and extra equipment, ’ ’ was $843, w:ith a cash payment of $300. At the same time Garst signed a retail buyer’s order. It shows “cash delivered price in Little Rock, $843; cash on delivery, $300; net balance due, $543.” Supplementing these entries the following appears: “Special notes, $45.99; balance, 15 monthly notes of $45.99 -each; balance due, $543; rec. fee, etc., $146.85; grand total, $689.85.” The purchaser signed a buyer’s statement in which it was noted that the obligation would be carried by Commercial Credit Corporation.
Attached to the conditional sales contract, perforated for easy detachment, was Garst’s negotiable note for $689.85 payable to Consolidated, providing for payment in fifteen monthly installments of $45.99, beginning April 6, 1946. This noté was sold to General Contract Purchase Corporation.
■ March 26 following execution of the note and contract, Garst replied to a letter from Purchase Corporation. He acknowledged receipt of the Corporation’s “outline of time payment contract,” saying, “I am paying a usurious and unlawful rate of interest upon the balance of $543.”
Purchase Corporation responded April 2d, stating ■ that the note was for $689.85. The “rates charged,” it said, “were certainly within reason for a fifteen-months contract, for, as you know, this covers a considerable amount of insurance. . . . You may be quite certain that these charges are in no way unlawful.”
Grarst refused to pay the note maturing April 6th. In a letter dated April 10th Purchase Corporation told Grarst it was not required to define the term ‘ ‘ time price differential; [for], as we stated previously, this figure represents insurance, investigation charges, bookkeeping and legal cost of setting up your account.” "When the May note was not paid it was explained that the insurance premium was $36.25, finance company service ' charge $43.44, aiid that $67.16 was set up as a dealer’s reserve fund “which is authorized as a protection against any loss due to repossession or damages to this collateral. ’ ’
May 14 Purchase Corporation, invoking an acceleration clause contained in the note, declared all installments due; and on May 18 it brought an action of replevin, executed bond, and procured possession of the automobile, value of which was alleged to be $700.
In an answer and cross-complaint Grarst alleged that his agreement was to pay $843 for the car; that interest charged exceeded the legal rate; that he had offered to pay the balance of $543; that the contract and note he signed were in blank, and that he relied upon the seller to fill in the agreed amount, but that instead of doing so an item of $146.85 was fraudulently inserted. He alleged that Consolidated had damaged him in the sum of $1,000; that Purchase Corporation’s action in repossessing the car had injured him to the extent of $5,000, and he prayed judgment against U. S. F. & Gr. for $1,400, amount of the bond it had executed.
Appeal is from directed verdicts (1) for the plaintiff, Purchase Corporation, and (2) for the defendants named in the cross-complaint, Consolidated, and H. S. F. & Gr.
First. — The Court correctly directed the jury to find for Purchase Corporation. The-note was negotiable, and there is no evidence that the assignee had knowledge of any infirmities. Garst admitted signing it, bnt insists that the monthly installment items of $45.99 were not on the, document when he subscribed. He also signed the buyer’s statement, in which it was said that the obligation would be carried by Purchase Corporation; hence he had actual notice that it would be transferred. This, however, was not controlling, since the note was negotiable.
Before usury can be sustained it-must be shown that there was an agreement upon the part of the lender to receive, and on the part of the borrower to give, a greater rate of interest than ten percent for the use of money. Citizens Bank v. Murphy, 83 Ark. 31, 102 S. W. 697. In Perry v. Shelby. 196 Ark. 541, 118 S. W. 2d 849, it was held that while it is not necessary that both parties be informed as to the facts constituting usury, it is necessary that the lender have an intention to charge an illegal rate of interest, or that he be cognizant of the facts constituting usury. It was said in Harper v. Futrell, 204 Ark. 822, 164 S. W. 2d 995, 143 A. L. R. 235, that a conditional sales contract wap not void because computations on an interest basis showed a greater charge than ten percent per annum. The carrying cost was not based on a loan of money, but was “a part of the purchase price which the purchaser agreed to pay.”
The rule would be different if in fact the finance company actually advanced money to the purchaser and by subterfuge added items t.o disguise the transaction in ■ order to realize more than the maximum permissible contract rate.
There is nothing in the testimony here sustaining appellant’s position that Purchase Corporation knew there had been an unauthorized addition.to the contract; hence as to it the judgment must be affirmed, notwithstanding a contention that form of the verdict and judgment was improper. It was, “We, the jury, find for the plaintiff for possession of the automobile ... or its value.” It is argued thdt under this verdict, Purchase Corporation has a judgment for possession of the car and for the value. No objection to form was made when the jury was directed to return the verdict October 3d. Nothing was said in protest until October 14 when motion ior a new trial was filed. The objection came too late, but judgment must be construed as one for possession; and not, in addition, for the value. Appellant has not been injured by failure of the jury to ascertain the value. Purchase Corporation alleged it was $700, and this was not denied.
Second. — It is urged in the brief that the entire transaction was void because, under OPA appraisement, $843 was the top price. Violation of the so-called “ceiling” was not alleged in the answer and cross-complaint. However, there was evidence that the maximum cash price was $843. It was not shown other than by appellant’s unsupported assertion that no more could be charged if installment payments were allowed; nor is appellant in position to take advantage of this alleged overcharge. The point was not raised in the motion for a new trial.
Third. — Appellant’s testimony, and that of his wife, present a question of fact in respect of the assertion that the price, whether cash or .credit, was $843. While we know that in general practice time contracts with installment payments are higher than cash sales, yet in a particular case we do not have judicial notice that cash and credit price were not the same.
It is possible, but highty improbable, that Consolidated told Garst the sale price, whether for cash or on time, would be $843. Garst admits having discussed payments — whether the contract would run for twelve or fifteen months. He was told what the monthly payments would be — “forty, or perhaps forty-one dollars.” This was for fifteen-months. If we should accept the maximum figures authorized by appellant, the balance would be $615 — not $543, as he contends. It is therefore self- evident that some authorization was given for completion of the contract through insertion of a definite amount.
Still, it cannot be said that a factual question was not presented. It follows that the judgment in favor of Consolidated must be reversed and the cause remanded with directions to permit this part of the controversy to be submitted to a jury. | [
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Smith, J.
Appellee recovered judgment in a suit in unlawful detainer for the possession of a house and lot in the city of Little Bock and for the rent thereon, from which is this appeal. Two questions are presented for decision: (1) whether proper notice to vacate had been served, and (2) whether appellee had met the requirements of the Office of Price Administration Bent Control by showing that she had an immediate, compelling necessity for the possession of the property.
Appellee served notice May 21,1946, upon appellant to vacate the premises on or before July 2, 1946. The property had been rented upon a monthly basis for a rental of $50 per month, payable semi-monthly in advance. There had been no default in the payment of the rent.
The rent was usually paid to one Mattingly, as appellee ’s agent, and the testimony is in irreconcilable conflict as to the circumstances and conditions under which rent was paid and accepted after the expiration of the time given in the notice to vacate. The cause was heard by the court sitting as a jury, by consent of the parties, and the judgment from which is this appeal recites that the court “doth find all such issues of fact and law in favor of the plaintiff and against the defendant.” In accordance with settled rules of practice, we must give to the testimony of appellee its highest probative value in testing its sufficiency to support the judgment of the court. When thus viewed it is to the following effect:
On the first rent paying period after the notice to vacate had matured, appellant tendered to Mattingly a half of a month’s rent in advance, which Mattingly declined to accept. An appeal was made .by appellant to appellee for a two weeks’ extension of time, which was given under the assurance that the property would be vacated at the end of that time. The property was not vacated as promised at the expiration of the two weeks ’ extension, when a tender of two additional weeks’ rent was made to Mattingly, who was assured, that while appellant had not found a place, he was about to find one and would surrender possession at the end of two weeks if given that additional time, and Mattingly accepted the rent upon the promise and assurance that possession would be surrendered at the end of the extended time.
Possession was not surrendered as promised and on August 3d a second notice to vacate was served, and flu's suit was thereafter brought when possession was not delivered as required by the notice to vacate.
The rent attorney for the local rent control office testified that the first notice to vacate was submitted to and approved by his office, but that his office was not advised of the second notice and had not approved it. The attorney introduced and identified certain rules and regulations which had been promulgated by the Price Control Administration with an interpretation of Eegulation 6 (a) 6, which interpretation and construction reads as follows:
“Interpretation 6 (a) (6) — VIII Meaning of ‘Immediate Compelling Necessity.’
Under section 6 (a) (-6), as amended by Amendment 67, a landlord, other than a member of the services during the war, desiring to secure possession of a dwelling-unit owned by him prior to October 20,1942, or the effective date of the rent regulations in this particular area, whichever is later, must establish to the satisfaction of the court (1) that he in good faith desires to occupy the premises as his home and (2) that he had an immediate compelling necessity to obtain possession. If he can establish (1) but not (2) he must apply to the area office for a certificate of eviction which will in proper cases be issued conditioned upon an appropriate waiting period.
“The criteria to determine whether an immediate compelling necessity exists should be strictly applied. Since the only difference between a proceeding under section 6 (a) (6) and a petition under section 6 (a) (1) is that in one case a landlord obtains immediate possession and in the other must wait for a time before the tenant is dispossessed, the need for possession must be real, immediate and urgent. ‘Compelling necessity’ imports more than desire or convenience. The prejudice to the landlord by imposing delay on his ability to obtain immediate occupancy must be of a character that would demonstrate very real hardship. ’ ’
In the case of Bowles, Price Adm., v. Seminole Rock & Sand Co., 325 U. S. 410, 65 S. Ct. 1215, 89 L. Ed. 1700, the Supreme Court of the United States discussed the behalf and in that connection said: “But the ultimate effect of departmental interpretation of its rules in this criterion (in the interpretation of these rules) is the administrative interpretation, which becomes of controlling-weight unless it is plainly erroneous or inconsistent with the regulation.”
It is insisted that the demand for possession contained in the first notice which apparently was approved by the Administration was waived inasmuch as rent was accepted after the notice to vacate had been given, and in support of that contention appellant quotes from 32 Am. Jur., § 944, of the chapter on Landlord and Tenant, a statement to the effect that very slight acts on the part of the 'landlord suffice to sustain the finding that the landlord has consented to an extension of the rental contract. But in view of the court’s findings as to the facts, appellant could not have supposed that appellee intended to abandon the demand for possession inasmuch as the testimony shows that the rent accepted after the service of the notice was accepted with the express understanding that the demand for possession was not being waived and upon the promise that- the demand would be complied with if a short indulgence of time was given. We conclude therefore that there was a notice to vacate which complied with the law in that behalf, and that the second notice was not required.
It is argued that appellant may not be evicted for the reason that the Bent Control Administration has not acted upon the second notice to vacate, and that there was no showing of the immediate compelling necessity for appellee to have possession of her property which Begulation b (a) (6) requires to evict a tenant without this permission.
We think, however, that the court was warranted in finding that this showing of necessity was made. It is to the following effect. Appellee, an elderly lady, lived with her nephew in an old house which had been the family homestead. The house had so deteriorated that extensive and expensive repairs were required, and she did not have the means to make them. So she sold the house in which she was living on an agreement to deliver possession on or about August 3, 1946.
Appellee testified that through sympathy she had agreed to permit appellant to retain possession for the extended period, but with the distinct understanding that the house here in litigation, a five room cottage, would be delivered in time for her to move into it after surrendering possession of her old home, and when this was not done she had to place her household effects in storage, ,and she now has no home. She also testified that the bedrooms in her old house, which she sold, were all upstairs, and that it was difficult for her to climb the stairs.
We think this testimony supports the finding of an immediate, compelling necessity which authorizes appellee to recover possession without the consent of the Price Control Administration, if a renewal of this consent is required, and the judgment of the court below is therefore affirmed. | [
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Per Curiam.
This is a companion to causes Nos. 8303 and 8316, consolidated.
The Chancellor issued an order to the effect that if certain named defendants should deposit in the registry of Logan Circuit Court at Paris the sum of $42,500 on or before May 31, 1947, conditioned to pay damages recovered by plaintiffs for whose protection the deposit was made, in condemnation proceedings, then the order restraining entry upon the lands involved would be dissolved. Thereafter petition was filed in this Court praying that the chancery court be prohibited from interfering with orders of Logan Circuit Court as they affected the district. On June 27, 1947, the deposit of $42,500 was made. See opinion in causes Nos. 8303 and 8316, O’Kane v. McLean Bottom Levee & Drainage District No. 3, ante, p. 938, this day delivered.
The petition for prohibition is dismissed. The injunction is dissolved, and the proceedings upon which it rests are dismissed.
The Court’s mandate will issue at once. ■ | [
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Holt, J.
This action was brought for a construction of the will of F. G. Weeks, which contained the following provisions: “1. I hereby direct that all my just debts, including funeral expenses, be paid out of my estate before the payment of any bequests. 2. It is my will and desire, and I hereby direct, that my body be embalmed and buried in accordance with my station in life.
“3.1 give and bequeath to my daughter, Helen Louise Weeks, now living in Kiel, Wisconsin, United States Liberty Bonds of the par value of three thousand dollars ($3,000), said Liberty Bonds to be assigned and delivered to my said daughter as follows: Five hundred dollars ($500) par value as soon after my decease as may be convenient and practicable and the sum of fifty dollars ($50) or its equivalent in Liberty Bonds each and every succeeding month thereafter until the entire amount of three thousand dollars shall have been paid; and to carry out the foregoing I direct my executrix hereinafter named'to set apart enough Liberty Bonds as soon after my decease as practicable and I further direct that the interest that shall accrue on said bonds so set aside shall be paid to the said Helen Louise Weeks.
“4.1 give and bequeath to my son, Marvin F. Weeks, now living at Lansing, Michigan, United States Liberty Bonds of the par value of three thousand dollars ($3,000), said Liberty Bonds to be assigned and delivered to my said son as follows: Five hundred dollars ($500) par value as soon after my decease as is convenient and practicable, and fifty dollars ($50) par value on each and every succeeding month thereafter until the entire amount of three thousand dollars shall have been paid; and to carry out this bequest I direct my executrix to proceed as" set out in paragraph three above, it being my will that the said Marvin F. Weeks shall have and receive all interest that shall accrue on the said bonds set apart for him.
“5.1 give and bequeath unto my beloved wife, Louise McGrie Weeks, all the rest, residue and remainder of my estate of whatever kind or nature and wherever located or situate, real, personal or mixed, to have and to hold for her own personal use so long as she shall live, and at her death I direct that whatever remains of said bequest be divided between my son, Marvin F. Weeks, and my daughter, Helen Louise Weeks, share and share alike.
“6. I hereby nominate and appoint my wife, Louise McGrie Weeks, executrix of this my last will and testament and direct that she serve without bond.
“In witness whereof, I have hereunto set my hand this 5th day of May, 1925. (Signed) F. G-. Weeks.”
Appellant made the will a part of her complaint and alleged that each of the bequests of $3,000 in United States Liberty Bonds to Helen Louise Quaid and Marvin F. Weeks had been paid and these bequests fully discharged and that under the terms of said will plaintiff was entitled to receive and to have and to hold for her. own personal use, so long as she may live, all of the rest and residue of the estate of the said F. G. Weeks; that under the terms of said will, Helen Louise Weeks Quaid and Marvin F. Weeks have only a contingent interest in as much of said residue as remains at the death of plaintiff.
She prayed “for an order of this Court construing the will of the said F. G. Weeks to mean that plaintiff (appellant) is entitled to receive and to have and to hold for her own unrestricted personal use, so long as she may live, all of the rest, residue and remainder of the estate of the said F. G. Weeks beyond the bequests to the said Marvin F. Weeks and Helen Louise Weeks Quaid, and that she be authorized to have any securities owned by F. G. Weeks at the time of his death transferred to her individually and to fully receipt for such securities.”
In their answer, appellees alleged that under paragraph 5 of the last will and testament of F. G. Weeks all of the property of said deceased, real, personal and mixed, was bequeathed to them, share and share alike, subject to a life estate in the plaintiff, and their prayer was “that plaintiff be required to file in this proceeding a statement listing and describing the real and personal property of which F. G. Weeks died seized, and upon final hearing hereof that title to said property be adjudged to be in the defendants, share and share alike, subject to a life estate in the plaintiff, and for all proper relief. ’ ’
Upon a hearing, the trial court found: ‘ ‘ That under paragraph 5 of the last will and testament of F. G. Weeks, deceased, the plaintiff, Louise McGie Weeks, was bequeathed a life estate in the real and personal property owned by said deceased at the time of his death, remaining after payment of the bequests contained in paragraphs 3 and 4 of said will, and that the defendants, Marvin F. Weeks and Helen Louise Weeks Quaid, were bequeathed the remainder in fee subject to the life estate of the plaintiff.
“The Court further finds that the plaintiff has in her possession the following described property owned by the deceased, F. G. Weeks, at the time of his death, to-wit: Port of New York Authority Bonds, Series E, No. 16303, par value $1,000, No. 16304, par value $1,000. State of Missouri Bonds, Series H, No. 5918, par value $1,000, No. 5919, par value $1,000, No. 5920, par value $1,000. Missouri Boad Bonds, Series G, No. 1149, par value $1,000, No. 6910, par value $1,000. City of Detroit Utility Bonds, No. 4827, par value $1,000. Certificate No. 2743, Jefferson Hotel Corporation Stock. Lot 14, Glenwood Addition,' Bock Island, Illinois. Lots 19 and 20, New Shop Addition, East Moline, Illinois,” and decreed that the plaintiff, Louise McGie Weeks, “has a life estate in the foregoing described property and all other property which she has in her possession coming into her hands under the last will and testament of F. G. Weeks, deceased, and that she shall receive the income from such property for and during her natural life and upon the death of said Louise McGie Weeks, that title in fee to said property in the hands of Louise McGie Weeks coming to her under the last will and testament of F. G. Weeks, deceased, shall be vested in the defendants, Marvin'F.. Weeks and Helen Louise Weeks Quaid, share and share alike.”
From the decree comes this appeal.
In interpreting- and construing’ a will, there are some well established rules of construction to guide us. This court said in Webb v. Webb, 111 Ark. 54, 163 S. W. 1167: “As to the effect and operation of a will, as a general rule, in the absence of language showing a contrary intention, it speaks from the death of the testator. But when the purpose is to ascertain what the intention of the testator was from the construction of the language used by him in the will, then the will should be construed as of the date of its execution,” and in Wooldridge v. Gilman, 170 Ark. 163, 279 S. W. 20, said: “The primary rule of construction in the interpretation of a will is to ascertain the intention of the testator, according to the meaning of the words he has used, deduced from a consideration of the whole will and a comparison of its various clauses in the light of the situation and circumstances which surrounded the testator when the instrument was executed. Bloom v. Strauss, 73 Ark. 56, 84 S. W. 511; and Colton v. Colton, 127 U. S. 300, 8 S. Ct. 1164, 32 L. Ed. 138.”
It would be difficult, if not impossible, to find two wills worded exactly alike. Each must be interpreted according to its particular wording, in the light of the conditions and circumstances surrounding the testator when he made the will, and in arriving at his intention, we attempt to place ourselves as nearly as possible in the position of the testator at the time of its execution.
On the record presented, we are unable to disting-uish the present case in principle from Johnson v. Lehr, 192 Ark. 1004, 96 S. W. 2d 20, which, we think, is controlling. The will in that case was almost identical in wording, and in all respects similar in effect to the one presented here. There the will provided:7 “After the payment of such funeral expenses and debts, I give, devise and bequeath unto my beloved wife, Maude Taylor Williams, all of my property, both personal and real, wherever situated or located for her own personal use as long as she may live and at her death should there be any property or moneys left after the payment of her funeral expenses and debts are paid, it is my desire that the residue be divided equally, etc.”
In the present case, it will be observed that the testator used the following language: “5. I give and bequeath unto my beloved wife, Louise McGrie Weeks, all the rest, residue and remainder of my estate of whatever kind or nature and wherever located or situate, real, personal or mixed, to have and to hold for her own personal use so long as she shall live, and at her death I direct that whatever remains of said bequest be divided between my son, Marvin F. Weeks, and my daughter, Helen Louise Weeks, share and share alike.”
In the Johnson v. Lehr case, this court in construing the paragraph, supra, from the will, in that ease, said: “The language of this paragraph is unambiguous and clearly devised the unlimited use, with implied power of sale, of all the testator’s property, both real and personal, to his wife, Maude Taylor Williams. There is nothing in the clause to indicate that the testator devised a life estate only in the property to his widow with a vested remainder therein to his nephew and to the heirs of his wife to be selected by her. It is true that the testator devised any residue that might not be used by his widow to his nephew and her heirs to be selected by her, but this was far from vesting in the nephew and her heirs a remainder absolute in the estate. Such remainder as they might acquire under the will was contingent upon his widow dying before she used it by sale or otherwise. The widow’s deed to appellee under her implied power to sell the property to pay her husband’s debts or for her own personal requirements passes or will pass the fee simple title to appellee when accepted by him.
“The implied power of sale is just as effective as an express power to sell would have been. There could not be any question, if express power had been given to sell, that a sale would have passed a fee simple title to any of the property sold by the widow.”
In United States of America v. Moore, 197 Ark. 664, 124 S. W. 2d 807, we said: “The great weight of authority, however, including this court, supports the rule that a life estate may be created, coupled with power of disposition, and that such power does not change the life estate into a fee for the reason that the power of disposition is not in itself an estate, but is an authority so to do derived from the will. See 17 R. C. L., p. 624, § 13. We so held in Archer v. Palmer, 112 Ark. 527, 166 S. W. 99, Ann. Cas. 1916B, 573, even though the power of disposition might defeat the rights of the remainderman.”
In determining the testator’s intention under paragraph 5, or the meaning of that paragraph, we must bear in mind that at the testator’s death, after his widow had paid to each of his children $3,000 in Liberty Bonds, or a total of $6,000, in accordance with bequests to them, there remained eight other bonds above listed of the par value of $8,000. Just what income these bonds produced is not shown. There was also a certificate of stock in a hotel, along with a lot in Rock Island, Illinois, and two lots in the “New Shop Addition,” East Moline, Illinois. Since the record here discloses that the real property described in the will is situated in-another state, the only property over which the lower court had jurisdiction was the bonds, securities and personal property mentioned in the complaint. Williams v. Nichol, 47 Ark. 254, 1 S. W. 243. As to the value of this hotel stock and whether revenue producing, the record is silent.
In these circumstances, did the testator intend that his widow should be limited to use only the income, if any, from these eight bonds, three lots and a certificate of stock in a hotel, when he bequeathed unto his “beloved wife, ... all the rest, residue- and remainder of my estate . . . real, personal or mixed, to have and to hold for her own personal usé so long as she shall live”? We do not think that such was his intention. That he did not so intend, we think, is emphasized by the provision that immediately followed, “and at her death I direct that whatever remains of said bequest be divided between my son . . . and my daughter . . .” There would seem to be no purpose in the use of this latter provision if the testator had not intended that his widow might use the principal as well as the revenue from the property bequeathed to her for her personal use and needs during her lifetime. Had Mr. Weeks not intended to empower his widow, appellant, to so use all or any part of this property during her life, he could have very easily so provided with such a clause as “at her death, I direct that such property so bequeathed be divided between my son, Marvin F. Weeks, and my daughter, Helen Louise Weeks, share and share alike.”
We hold, therefore, that appellant under the terms of the will was given a life estáte in the property bequeathed with full power of sale and disposition, for her own personal use and needs during her life, and whatever ' remains at her death to be equally divided between the two children, supra.
For the error indicated, the decree is reversed and the cause remanded with directions to enter a decree not inconsistent with this opinion.
Smith, McHanby and McFaddin, JJ., dissent. | [
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Griffin Smith, Chief Justice.
The action was for personal injuries and property damages following a collision between appellee’s automobile and appellant’s bus, July 3, 1945. The complaint alleged that Redman sustained damages to his person and property in the sum of $50,900. The jury was instructed that there was no legal proof that the plaintiff’s automobile was damaged, hence if a verdict should be returned it should not include compensation for property loss. Appeal is from judgment for $12,000, principally to compensate a knee injury. There is evidence of complete recovery; but on the other hand medical witnesses testified to partial impairment. If this were the only issue plaintiff would prevail and judgment for an appropriate sum would be affirmed. Venue, however, was challenged; and on this point appellants are correct.
Redman, thirty-five years of age, was born in Izard County. At an early age he was taken by his parents to White County, where his mother still lives at Searcy. After marriage in 1938 Redman worked for Arkansas Pipe Line Company at various places in the State. In 1942 he accepted employment in electrical construction incident to war plants and moved with his wife and two children to Hot Springs. There he rented a home and remained until December, 1943.
Redman’s next move was to Tennessee. In December, 1944 (having spent approximately a year at Oak Ridge, living with his family in a trailer) he returned to White County, Arkansas, accompanied by Mrs. Red-man and the Wo children. Early in December he obtained work with a sub-contractor who assisted in building the naval ordnance plant near Camden, in Ouachita County. During the same month he purchased a home in Hattieville, Conway County. The warranty deed recites that the property includes a dwelling house, barn, and garage. Redman assessed this property, household goods, and other effects, for 1945 and 1946. Furniture stored in Hot Springs was moved to Hattieville. Thereafter appellee’s wife and two children, and his wife’s mother, occupied the property. The question is whether appellee was a resident of Ouachita County in July, 1945, within the meaning of Act 314 of 1939.
When the mishap resulting in Redman’s injury occurred he was en route from Hattieville to Searcy. The collision was on Highway 67, two and a half miles from Jacksonville, in Pulaski County. Redman’s wife had spent the week end with him in Ouachita County. He had takep. her home, and was on his way to Searcy to get his mother-in-law, ultimate destination being Camden.
While working at the ordnance plant Redman was assigned to quarters in the naval barracks, but when his wife came on visits the couple procured hotel accommodations at Smackover. Their eldest child (seven years of age) was in school at Hattieville.
J. B. Dodds, one of appellee’s attorneys, happened to be driving on Highway 67 when the wreck occurred. After bringing Redman to North Little Rock Dodds took him to a hospital at Searcy, where he remained six days. The institution’s records show that appellee gave his address as 211 South Oak St., Searcy. This was his mother’s home.
November 17,1944, Redman applied to the Arkansas Revenue Deppartment for a driver’s license. The Supervisor’s certificate, admitted in evidence, shows that Redman’s address was given as Hattieville, “ . . . and the information contained in»the application upon which said license was issued was supplied by the person to whom the license was issued”. After the driver’s license was issued (appellee says it was procured by his mother-in-law) he applied for license to operate his automobile. The application was made Dec. 4, 1944: Question: “Did you make that application?” Answer: “Yes, Sir”. Question: “In person?” Answer: “In person. I traded a car off that had Tennessee tags: when I did that I had to buy [new ones in Arkansas”].
The home purchased by appellee at Hattieville was the only one he had ever owned. He went “nearly every week” from Camden to Conway County to be with his fajnily. He had never voted or paid a poll tax in Ouachita County; nor, seemingly, had he ever participated in a primary, although he thought “maybe” he had paid a poll tax in Tennessee.
Another circumstance emphasized by appellants bearing upon Redman’s residence is an official report by the State Police. On cross examination questions were: “You don’t know who advised the State Patrolman that your name was Doyle Redman, and your address was Hattieville, do you?” Answer:“ I did that in North Little Rock”. Question: “You told [the patrolman] that your name was Doyle Redman, and your address was Hattieville?” Answer: “Yes, Sir”.
After the collision appellee was required to go to North Little Rock, where he was charged with reckless driving. Bail was supplied by a professional bondsman. After being released Dodds took him to Searcy, where hospitalization began. Prosecution did not follow the arrest.
In the face of explicit answers given to the direct questions just quoted, the following is reflected by redirect examination:
Question: “When you went back to North Little Rock did you, dr not, give your address to the patrolman as Hattieville?” Answer: “I wouldn’t say, but I don’t think so”. Question: “What is your best judgment?” Answer: “I would sáy ‘no’. I don’t know whether I did, or Mr. Dodds did. I don’t have any recollection of it”.
Appellee relies upon Norton v. Purkins, Judge, 203 Ark. 586, 157 S. W. 2d 765, where it was said that “reside”, as used in Act 314, does not necessarily mean one’s permanent abode “or legal residence or domicile”. Undisputed evidence in the Norton-Purkins case was that the plaintiff went to Ouachita County to engage in work Norton-Wheeler Stave Company was having done there. Hudson (the plaintiff) was accompanied by his wife and children and lived at Bearden, estimated by various witnesses as a minimum of a few months and a maximum of two years. One of Hudson’s children was in a Bearden school and had been attending the institution for approximately four months when.the injury resulting in litigation occurred. The opinion, written by Mr. Justice G-reenhaw, contains the statement that “Even though Hudson claimed Cleveland County as his legal domicile with the fixed intention of ultimately returning there, still we are constrained to hold, from the facts in evidence, that he was a resident of Ouachita County on the date of his alleged injury within the meaning of the Yenue Act”.
The case affords an excellent example of the Court’s determination that a plaintiff’s contentions in respect of residence must he considered in connection with his conduct, from which an intent will be deduced.
In the Norton-Purldns case Hudson had some household effects in Cleveland County, and had a temporarily rented residence; but by actions he had very definitely shown a purpose to reside elsewhere.
So, in the case at bar, Redman — insofar as family life was concerned — had settled in Hattieville. It is true he continued working at the ordnance plant; but, almost concurrently with accepting the employment, he bought a home in Conway County, took his furniture out of storage at Hot Springs, shipped it to Hattieville as soon as the residence became available, and even before possession could be acquired he moved his wife, children, and mother-in-law to the town to await occupancy. The act of buying this property would not of itself be conclusive. If thereafter Redman had disclosed a purpose to remain a resident of Ouachita County and had, by substantial conduct, evidenced this decision of mind, a different situation would be presented.
Another case in point is Twin City Coach Co. v. Stewart, Adm’r., 209 Ark. 310, 190 S. W. 2d 629. There was no disagreement as to the majority opinion that venue was in Logan County; but, since this opinion held that an instructed verdict for the defendant should have been given, facts connected with the decedent’s actions affecting the contention that she had chosen Port Smith as her residence were not detailed. The dissenting opinion, while expressing the majority’s view that venue was in Logan County, elaborated upon evidence touching venue, and disagreed with the general result. (Shephard v. Hopson, 191 Ark. 284, 86 S. W. 2d 30.)
The judgment is reversed and the cause is remanded with directions to sustain the defendants’ motion to quash service.
The statute' in part reads: “All actions for damages for personal injury or death by wrongful act shall be brought in the county where the accident occurred which caused the injury or death, or in the county where the person injured or killed resided at the time of injury.” | [
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Ed F. MoFaddin, Justice.
The refusal of the circuit court to grant appellant’s motion for judgment notwithstanding the verdict is the basis of this appeal. Appellant filed action against appellee in the justice of the peace court for $150 claimed as earned real estate commission. There was a written complaint and a written answer, which latter was a general denial. From a plaintiff’s judgment in the justice of the peace court there was appeal to the circuit court, and trial de novo to a jury. The defense was, that the contract relied upon by appellant had been materially changed, thereby releasing appellee from all liability. Neither side asked for an instructed verdict, and the case was submitted to the jury for a general verdict on instructions not complained of here.
The jury returned a general verdict for appellant for $1. Before entry of judgment on the verdict, appellant filed motion for judgment notwithstanding the verdict for the full amount of $150, claiming: (1) that under the evidence the amount of ,the recovery was not in issue; (2) that, if the plaintiff was entitled to any amount, he was entitled to the full amount claimed; and (3) that, since the jury found for the plaintiff for $1, therefore the court should enter a judgment non obstante veredicto for plaintiff for $150. The circuit court denied the said motion for judgment non obstante veredicto, and gave appellant 30 days in which to prepare, tender and file his bill of exceptions. The appellant never filed a motion for new trial; and appellee here moves for affirmance because of the absence of any motion for new trial.
We, therefore, have for decision, whether, in this case, it was necessary to file a motion for new trial in the lower court in order to challenge here the order of the circuit court (1) refusing the appellant’s motion for judgment non obstante veredicto, and (2) entering a judgment in accordance with the verdict of the jury. We make reference to 33 C. J. 1177, et seq., and 30 Am. Juris. 844, et seq., for the benefit of those who desire to study: (1) the common-law practice regarding motion non obstante veredicto; (2) the absorption of the motion in arrest of judgment by the motion non obstante veredicto; (3) the original idea that the motion non obstante veredicto was granted only to the party entitled to such relief on the face of the pleadings; and (4) how the consideration of the evidence gradually crept into the picture. These matters are all interesting, but not vital to this case.
We have many cases in Arkansas regarding motion for judgment non obstante veredicto. Some of these cases are: Collier v. Newport Water Light & Power Co., 100 Ark. 47, 139 S. W. 635, Ann. Cas. 1913D, 458; Scharff Distilling Co. v. Dennis, 113 Ark. 221, 168 S. W. 141; Coleman v. Utley, 153 Ark. 233, 240 S. W. 10; Jackson v. Carter, 169 Ark. 1154, 278 S. W. 32; Fulbright v. Phipps, 176 Ark. 356, 3 S. W. 2d 49; Moore v. Rogers Wholesale Grocery Co., 177 Ark. 993, 8 S. W. 2d 457; Oil Fields Corp. v. Cubage, 180 Ark. 1018, 24 S. W. 2d 328; McGuire v. Robertson, 182 Ark. 759, 32 S. W. 2d 624; Stanton v. Arkansas Democrat Co., 194 Ark. 135, 106 S. W. 2d 584. To discuss each of these cases, or to attempt to differentiate each statement therein, would unduly prolong this opinion. But, here are some of the rules which may be deduced from these cases, as they interpret and apply §§ 8227-8229, inclusive, Pope’s Digest:
(A) When it appears from the face of the pleadings that either side is entitled to a judgment thereon, their the party so entitled may have a judgment notwithstanding the verdict; and on appeal to this court in such case, there need be no motion for new trial filed in the lower court; because the question presented here is one based entirely on the record, i.e., the pleadings.
(B) But when the motion for judgment notwithstanding- the verdict is asked because of matters claimed to appear in the evidence — as distinct from the pleadings — ■then the party who seeks to invoke the jurisdiction of this court must first have filed a motion for new trial in the lower court.
Applying these principles to the case at bar: (1) the appellant was not entitled to a judgment on the face of the pleadings, because there was a complaint and a general denial; (2) the appellant’s claim for relief is based on matters that appear in the evidence; and (3) since there was no motion for new trial in the lower court, there is therefore no question presented to this court for decision.
Appellant says that in each of the cases of Coleman v. Utley, supra, and Jackson v. Carter, supra, this court considered, and decided on the merits, the motion for judgment non obstante veredicto without reciting- that a motion for new trial had been filed in the lower court; and appellant cites these cases as authority for his position in the case atibar. But we have examined the original transcript in each of the cases last cited, and find that there was a motion for new trial in each case. In the case at bar the transcript shows no motion for new trial, so the cases relied on by the appellant do not support him.
Cases from other states aff-ord the appellant no support, because such cases arose under statutes and court rules different from our own. In 3 C. J. 984 the text reads: “A motion for new trial is not a condition precedent to the right to review denial of a motion for judgment notwithstanding- the verdict. ’ ’ But this quoted text is based on the North Dakota case of Satterlee v. Modern Brotherhood of America, 15 N. D. 92, 106 N. W. 561; and a study of that case shows that the North Dakota rules of practice are different from ours. For instance, the opinion recites, that in North Dakota it is not necessary to present a motion for new trial in the lower court in order to argue in the Supreme Court the action for the trial court in granting or denying an instructed verdict. In Arkansas such a motion for new trial is necessary.
Likewise, in 4 C. J. S. 825, the text states: “. . . a motion for new trial is not a condition precedent to the right to review denial of a motion for judgment notwithstanding the verdict.”
The quoted text is based on two Colorado cases, being Fincher v. Bosworth, 76 Colo. 69, 230 Pac. 596; and Armstrong v. Gresham, 70 Colo. 502, 202 Pac. 706. A study of each of these cases convinces us that the Supreme Court of Colorado was discussing errors that appeared on the face of the record, rather than errors that occurred in the course of the trial.
Coming back to the case at bar: Since the appellant was not entitled to a motion non obstante veredicto on the face of the pleadings, and since the evidence presented a sharp question of liability vel non, and since there is no motion for new trial in the record, therefore, the judgment of the circuit court is in all things affirmed. | [
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Minor W. Millwee, Justice.
Appellees are five citizens of Montgomery county, Arkansas, and instituted this suit in equity on behalf of themselves and 66 other former stockholders in the Montgomery County Canning Company to enjoin appellants, E. L. Peterson and the canning company, from dismantling and removing a canning plant from Montgomery county and to require specific performance of a contract to continue operation of the plant at Mt. Ida, Arkansas.
In the complaint filed October 7, 1946, it is alleged that on February 19, 1946, Montgomery County Canning Company, an Arkansas corporation, through its duly authorized officers executed a contract with appellant, E. L. Peterson, whereby it agreed to sell Peterson all the assets of the corporation including the canning plant, . equipment and the lands upon which the plant was located in Mt. Ida for $7,000 and the further consideration that Peterson would improve and expand the plant to better serve the farmers of the surrounding territory; that on February 23, 1946, all of the stockholders of the canning company sold, transferred and delivered their respective shares of stock in the canning company to appellant, Peterson, under a written assignment as follows : “E. L. Peterson of Salisaw, Oklahoma, has agreed to pay the mortgage indebtedness now existing against the Montgomery County Canning Company aggregating Seven Thousand Dollars if the stockholders of said company will transfer and assign all of the stock owned by each and for and in consideration of such transfer of stock, the said E. L. Peterson agrees to pay Two Thousand Dollars on the past due indebtedness of the Montgomery County Canning Company as evidenced by his check in that amount, dated February 19th, 1946, and to assume indebtedness of Five Thousand Dollars which is the balance due by said Company for money borrowed, and he also agrees to improve and expand said Canning Plant in such way that it will be enabled to serve the farmers, berry and vegetable growers in this territory and to operate the plant in the town of Mount Ida, Arkansas.”
The complaint further alleged that, at the time of the sale and transfer of the stock to Peterson, it was represented to the shareholders that Peterson was an experienced and successful manager and operator of canning plants, and the sole consideration and motive in transferring their stock was to establish and secure to the farmers in the surrounding territory a canning plant that would furnish a local market for the vegetable and berry growers in said territory; that it was agreed that the canning plant would remain and be operated at its present location as a permanent industry; that none of the shareholders who transferred his stock to Peterson received any consideration in money or property, but said transfer was made under the agreement and belief that the plant would remain at its present location and be operated for the benefit of the people in the territory; that soon after acquiring the stock, Peterson transferred some of the shares to other parties, elected new officers and continued to operate under the name of Montgomery County Canning Company; that during the spring canning season of 1946 appellants canned 11 car loads of blackberries which were purchased from local farmers.
It was further alleged that on October 4, 1946, appellant canning company, under the management of appellant Peterson and in violation of its agreement with appellees, began dismantling and removing the canning plant and equipment to Mabisfield, Sebastian county, Arkansas; that under present market conditions it is impossible for appellees to secure canning equipment of similar type, and they will suffer irreparable injury by removal of the machinery and equipment from its present location; and that appellees have no full and adequate remedy at law for the damages they will suffer if appellants be allowed to proceed with the dismantling and removal of the plant and equipment.
The prayer of the complaint is that appellants be enjoined from proceeding to dismantle or remove the buildings and equipment of the canning plant, and from selling the lands upon which the plant is located; that a temporary injunction be granted, restraining appellants from dismantling and removing the buildings and equipment of the plant, and upon final hearing that the injunction be made permanent; and that appellants be required to comply with their contract with appellees and to continue operating the canning plant at Mt. Ida, Arkansas. A temporary injunction was granted restraining appellants from dismantling or removing the plant and equipment upon execution and filing of bond by appellees in the amount of $500.
Appellants filed a motion to dismiss the complaint alleging that the suit was one to require them to specifically perform an executory contract, and that the chancery court was without jurisdiction; that the relief sought is such that obedience to the decree could not be compelled by ordinary processes of the court; that there was a lack of mutuality of obligation, and that appellees have an adequate and complete remedy at law. Although the motion did not contain a prayer for damages, appellant, E. L. Peterson, testified that damages in the sum of $8,911.51 were sustained by appellants as a result of the issuance of the temporary injunction on October 7, 1946.
The motion to dismiss, which was in reality a demurrer and apparently treated as such by the chancellor was sustained on November 7, 1946, and a decree was entered dismissing the complaint of appellees and denying damages to appellants on account of the issuance of the temporary injunction. Appellants have appealed from that part of the decree denying damages against appellees for wrongful issuance of the temporary injunction. Appellees have cross-appealed from the order of the court sustaining the motion to dismiss the complaint.
We first consider the cross-appeal which involves the correctness of the trial court’s action in sustaining the motion to dismiss the complaint. Appellants say the trial court correctly applied the doctrine laid down in Leonard v. Board of Directors of Plum Bayou Levee District, 79 Ark. 42, 94 S. W. 922, 9 Ann. Cas. 159, in dismissing the complaint. In that case the levee district brought suit against Leonard alleging that he had agreed to complete construction of a levee and had abandoned the work. The district prayed that Leonard be enjoined from removing his teams and that he be compelled to proceed with the work. This court held the suit one to require specific per formance of the executory contract to construct the levee and that equity was without jurisdiction, the district having an adequate remedy at law. The court said: “Equity will not decree specific performance of an executory contract to do work, for the obvious reason that there is no method by which its decree could be enforced.
“The jurisdiction of equity will not be exercised to decree a specific performance, however inadequate may be the remedy for damages, where the contract is of such a nature that obedience to the decree could not be compelled by the ordinary processes of the court.”
The rule announced in the Leonard case, supra, was reaffirmed in later decisions. Caldwell v. Donaghey, 108 Ark. 60, 156 S. W. 839, 45 L. R. A., N. S. 721, Ann. Cas. 1915B, 133; Nakdimen v. Atkinson Imp. Co., 149 Ark. 448, 233 S. W. 694. Under this rule appellants could not be required to continue operation of the canning plant at Mt. Ida by a decree of specific performance, but it does not necessarily follow that appellees would be thereby precluded from injunctive relief to restrain an attempted breach of the contract by the dismantling and removal of the plant. Warmack v. Major Stave Co., 132 Ark. 173, 200 S. W. 799. A contract cannot be rescinded merely because it is of such a character that specific performance cannot be demanded. 17 C. J. S., Contracts, § 417. In 28 Am. Jur., Injunctions, p. 273, it is said: “It was formely thought that an injunction would not be granted to restrain the breach of ally contract, unless the contract was of a character that the court could specifically enforce. But the fair result of the authorities may be said to be that where the case is one in which the negative remedy by injunction will do substantial justice between the parties by compelling the defendant to carry out his contract or lose all benefit of the breach, and the remedy at law is inadequate, and there is no reason or policy against it, the court will interfere to restrain conduct which is contrary to the contract, although it may be unable to enforce specific performance of it. ’ ’ The case of Pitcock v. State, 91 Ark. 527, 121 S. W. 742, 134 Am. St. Rep. 88, is cited in support of the statement of the textwriter. If the complaint in the case at bar stated a good cause of action for injunctive relief, the chancellor erred in dismissing the suit even though the court was without jurisdiction to grant specific performance of the contract.
It is true that equity will not restrain a breach of contract where the remedy at law is adequate and complete. McDaniel v. Orner, 91 Ark. 171, 120 S. W. 829. It appears from the complaint in the instant case that the parties affected by a breach of the contract are numerous ,so that redress at law would require a multiplicity of suits. It further appears that it would be difficult to accurately measure pecuniary, damages that appellees might suffer as a result of the breach of the contract by appellants. It is also alleged that it is impossible to secure equipment of the type sought to be removed. Under these circumstances, we are unwilling to say the remedy of law is adequate.
Appellees alleged in their complaint that appellant Peterson agreed to improve, expand and continue operation of the canning plant at Mt. Ida and that this agreement was the primary consideration for the transfer of the stock in the corporation to Peterson. The complaint further alleges that appellants breached this contract by proceeding to dismantle and remove the plant in October, 1946. It is also alleged that Peterson agreed to operate the plant at Mt. Ida as a permanent industry, but the written assignment set out in the complaint does not provide for a definite period of operation. However, the agreement is not fatally indefinite for that reason since it will be implied that performance is to be for, or within, a reasonable time. As this court said in Merrill v. Sypert, 65 Ark. 51, 44 S. W. 462, what would be a reasonable time “will depend upon the facts and circumstances surrounding the parties and influencing their conduct in entering upon the contract. ’ ’
The agreement relied upon by appellees in the instant case is somewhat analagous to a contract between a railway company and a landowner whereby the latter conveys land in consideration of an agreement by the railway company to erect and maintain a depot, or other appurtenance, at a particular place. In an annotation in 7 A. L. R., p. 817 the rule adopted by the majority of jurisdictions in such cases is stated as follows: ‘ ‘. . . in the absence of a specified term of years or of express and suitable words showing an intention that performance shall be perpetual, a covenant or condition subsequent for the maintenance of a railroad or its appurtenances is sufficiently complied with by a performance covering a term of years, varying in the cases which have.so held from five to sixty years.” The case of Railway Company v. Birnie, 59 Ark. 66, 26 S. W. 528, is cited in support of this rule. There the defendant railway company agreed to erect and maintain a depot upon certain lots in consideration of the deeding of the lots to the company by the plaintiffs. This court held it to be a question for the jury whether the maintenance'of the depot for 11 years was a sufficient compliance with the agreement. In determining whether the depot was maintained for a reasonable time this court said it was for the jury “to say whether the time was reasonable in the sense that it gave the plaintiffs ‘full, opportunity’ to substantially realize the benefits they at the time of the donation ‘reasonably expected to accrue to them frQm the location of the depot’.”
By reference to the rule prevailing in the railway cases we do not mean to suggest that the term of performance held sufficient to constitute a reasonable time therein would be likewise applicable here. It may develop that appellants have already maintained the plant at Mt. Ida for a reasonable period of time under the proof that may be adduced on this issue. They should not be enjoined from removing the plant if its maintenance in Montgomery county is shown to be an impossible or impractical undertaking for them under proper management.
We conclude that the complaint of appellees stated a cause of action for injunctive relief and that the trial court erred in sustaining the motion to dismiss. It necessarily follows that the temporary injunction should not have been dissolved until appellees were afforded an opportunity for a hearing to determine whether the writ had been wrongfully issued. That part of the decree which, on direct appeal, denies damages against appellees for wrongful issuance of the temporary injunction is, therefore, affirmed. On the cross-appeal, the decree will be reversed and the cause remanded with directions to overrule the motion to dismiss the complaint, and for further proceedings not inconsistent with this opinion. | [
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Robins, J.
Appellant challenges the correctness of the judgment of the lower court affirming an order of the Arkansas Public Service Commission by which appellant was granted a temporary certificate authorizing it to operate a motor transportation line as a common carrier of passengers from Little Rock to Fordyce and return over U. S. Highway No. 167 up until January 1, 1947, but was denied authority to operate said line permanently.
On April 22, 1940, L. N. Gray, doing business as Eagle Transportation Company operating a bus line over U. S. Highway No. 167 between El Dorado and Fordyce under authority of a certificate issued by the Arkansas Corporation Commission, predecessor of the Arkansas Public Service Commission, filed petition with the Commission asking that his bus route be extended from Fordyce to Little Bock over U. S. Highway No. 167. The Commission on November 21, 1940, made an order over the protest of the Missouri Pacific Transportation Company hereinafter designated as “Missouri Pacific,” extending Gray’s permit so as to authorize him to operate with closed doors over the extension requested by him. This order was reversed by this court on January 11, 1943. See Missouri Pacific Transportation Company v. Gray, 205 Ark. 62, 167 S. W. 2d 636. While this litigation was pending the Southwestern Greyhound Lines, Inc., hereinafter designated as “Greyhound,” acquired the'rights of Gray under the certificate issued to Gray by the Corporation Commission.
Shortly after the decision in the Gray case was rendered Greyhound filed another application for certificate to authorize it to operate over U. S. Highway No. 167 between Fordyce and Little Bock. On May 19, 1943, over objection of Missouri Pacific, the Commission authorized Greyhound to operate with open "doors between Little Bock and Fordyce on Highway No. 167, but the certificate was limited to a period of one year. By supplemental orders of the Commission this certificate has been extended from year to year, the last certificate expiring on December 31, 1946.
To support its final application, from the order on which this appeal is being prosecuted, appellant offered the testimony of 24 witnesses. These witnesses lived at El Dorado, Hampton, Calion, Fordyce and Sheridan, and included city officials and representatives of commercial organizations'. The effect of this testimony was to show that traffic over bus lines between El Dorado and Little Rock had greatly increased in the years following 1941; that the buses on both lines were generally well filled with passengers and in some cases crowded in spite of the fact that after the Greyhound service was instituted Missouri Pacific added a number of buses to its line. In 1940, Missouri Pacific operated two round trip schedules daily between Little Rock and Fordyce and in 1945 it was operating five round trips daily, and Greyhound in 1945 was operating three round trips daily. Appellee’s entire revenues from the operation of this route in 1941 was $37,834.34 and its revenue over the same line for the first nine months of 1945 was $181,-452.73. Appellee offered no testimony except that of some of its officials and employees, who testified as to traffic and revenue on the line in question.
These two questions are presented on this appeal:
(1) . Is the decision of this court in the case of Missouri Pacific Transportation Company v. Gray, supra, res judicata on the question of the propriety of granting the certificate of authority asked for by appellant herein?; and,
(2) . Has there been made a sufficient showing of public necessity and convenience to require the granting of certificate of authority to appellant?
I.
The decision in the Missouri Pacific Transportation Company v. Gray case, supra, necessarily dealt with the traffic situation at the time the application of Gray was filed with and acted upon by the Commission, and this court, in its opinion, recognized the possibility of the future need of the additional service offered by appellant and expressly authorized the granting of certificate for such service whenever such need might arise.
In the case of Schulte v. Southern Bus Lines, ante, p. 200, 199 S. W. 2d 742, we said: “A determination of the propriety of granting an application such as is here involved must always be governed by the peculiar facts shown; and a decision in such a case does not control con sideration of another similar application on a subsequent occasion if a materially different fact situation may be proved.”
After the Commission acted on Gray’s application the United States became engaged in history’s,greatest war, a conflict that required the speedy mobilization of our manpower and industrial resources to an extent never before known. The movement of men and women of the armed forces between homes and encampments, and the assembling of vast numbers of workmen in factories and arsenals brought on unprecedented traffic conditions.
In the case at bar, there has been shown amenormous increase in bus traffic over the route involved. While some of the causes of increased traffic have ended with the close of hostilities, there is nothing in the testimony to indicate that there has been so far, or that there will be in the future, a marked diminution of such traffic.
Furthermore, when this court was dealing with the matter of the Gray case, supra, it appeared from the record that Gray had only limited facilities to offer, while in the case at bar it is conceded that appellant is one of the important motor passenger carriers of the nation and affords up-to-date, safe and comfortable buses to the traveling public.
We conclude that the traffic conditions, as shown by the record, at the time of the filing of the application involved herein, are so materially different from those reflected by that of the Gray case and the facilities of appellant are so unlike those of Gray that the decision in that case is not conclusive of the issues here.
II.
By the service afforded under the certificates granted to appellant and to appellee the traveling public is afforded two excellent motor transportation lines from El Dorado to Little Bock — that of the Missouri Pacific Transportation Company via Camden and Fordyce through Sheridan to Little Book and that of Greyhound through Calion, Hampton, Fordyce and Sheridan.
The advantage to the public of the additional line through Hampton and Fordyce, as operated by appellant, is obvious and is pointed out in the testimony of numerous witnesses. The record also reflects that since the Greyhound line has been in operation the Missouri Pacific Transportation Company line has added to and improved the facilities provided by it for travelers. At the time the application involved herein was filed, there was evidently sufficient traffic to justify the operation of both lines.
In the case of Schulte v. Southern Bus Lines, supra, it was said that the paramount consideration in disputes of this kind is always the convenience of the public, and in that case we called attention to the fact that the legislature, in authorizing the issuance of certificates of authority to public motor carriers, had specifically provided that no such certificate should confer any proprietary or property rights for the use of .the public highway.
We said in the case of Lienhart v. Bryant, 209 Ark. 764, 192 S. W. 2d 530, in referring to a proceeding of this kind: “By clear implication the public is an interested party. This is true because its convenience and necessity are subjects of first concern.” See, also, Santee v. Brady, 209 Ark. 224, 189 S. W. 2d 907, and Camden Transit Company v. Owen, 209 Ark. 861, 192 S. W. 2d 757.
In view of the great convenience to the traveling public afforded by the motor carrier line being operated by appellant and the further fact that, so far, the operation of this line has not been destructive of the business of appellee, we conclude that the Commission should have granted a certificate authorizing appellant to continue to give the service heretofore authorized under the temporary permit.
But the certificate to be granted to appellant should contain a limitation (authorized by § 10 of the “Arkansas- Motor Carrier Act, 1941, Act No. 367”) to the effect that, should in the future a showing be made that the continued operation of appellant over the route in dispute would entail a destructive rather than a healthy competition and that public convenience would be best served by the operation of only one carrier over the route in controversy; the Commission might cancel appellant’s certificate, and, in determining whether this should be done, the fact that appellee pioneered the route would be a factor in the situation to be considered by the Commission.
The judgment of the lower court is reversed and this cause is remanded with directions to the lower court to enter judgment directing the Public Service Commission to issue certificate of authority to appellant in accordance with what has been said in this opinion. | [
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Holt, J.
Appellees, Virgil Davis and wife, brought this action against A. P. "Williams and Mary W. Williams, his wife, residents of Montana, for specific performance of a contract to-sell and convey a 200 acre farm in Faulkner county, Arkansas. A. P. Williams filed no answer and did not appear. Appellant, Mary W. Williams, defended on the ground that she was the owner- of the farm in question, and had never authorized anyone to enter into a contract to purchase with appellees.
From a decree against appellant, Mary W. Williams, in favor of appellees, ordering specific performance, comes this appeal.
The record discloses that appellees had rented and cultivated the land involved from H. W. Williams of Rockford, Illinois, for the years 1942 to 1945, inclusive, through Williams ’ agent in charge, C. W. Manar of Mc-Alester, Oklahoma.
H. W. Williams died in February, 1945. He was the brother of A. P. Williams.
In August, 1945, appellee, Davis, while still in possession of the farm as tenant, began negotiations with Manar to purchase it. An offer of Davis by letter September 4,1945, to Manar to purchase the farm for $2,500 was conveyed to A. P. Williams by Manar in a letter to Williams dated September 25, 1945, in part as follows: “I have been the agent for Mr. H. W. Williams for Oklahoma and Arkansas for several years, and regret very much his passing away in February.
“I am advised by Mrs. Taylor that the farm in Faulkner county, Arkansas, known as the Bartley Farm, belongs to you. Mrs. Taylor wrote me some time ago that she was sending you the papers on this farm and giving you my name. I now have an offer to purchase this farm for $2,500 payable as follows: $1,000 cash and $500 per year for 3 years with the deferred payments bearing 6% interest per annum. . . . Our charges would be 5% sales commission. . . '. Should you be interested in this offer, you can advise me and I will draw the deed and mail to you to be executed and will attend to the drawing of the notes and mortgage and closing the matter up, etc.”
Mr. A. P. Williams answered this letter October 19, 1945, and accepted the offer of Davis to purchase, as follows: “I will accept the offer on the Bartley farm for $2,500, $1,000 cash and $500 per year for three years with deferred payments bearing 6% per annum. When you send the deed, notes and mortgage, I will return the executed deed promptly. My brother always spoke highly of you and said his business dealings with you were always satisfactory.”
Appellant, Mary W. Williams, admitted that this letter was in her handwriting. She testified that she wrote it at the direction of her husband.
October 22nd following, Manar, by letter, informed Davis that A. P. Williams had accepted his offer to purchase, if it. still stood, whereupon Davis answered by letter : “In regard to your letter I will say that I will take the place. You fix the papers and send to the First National Bank at Conway, Arkansas, and your $1,000 dollars will be sent at once. My wife’s name is Lottie Davis.”
Following the receipt of this letter, Manar on October 26th wrote A. P. Williams“I am enclosing deed for you to execute and return, you and Mrs. Williams will both sign. Please mail me the abstract as soon as you get this letter. I am mailing Mr. Davis the three $500 notes and mortgage to execute and return to me, etc. ’ ’
November 26th following, A. P. Williams wrote Manar: “I have just received an offer of $3,000 cash for the Bartley farm which I would like to accept. It seems to me this is nearer what the farm is worth than the former offer of $2,500.”
This letter was also admitted by appellant to be in her handwriting. She testified that it was written at the direction of her husband.
November 30th, Manar answered A. P. Williams, in part: “On September 25, 1945, I submitted to you his offer setting out what the expense would be in closing the deal up and on October 19, 1945, you wrote me accepting the offer and on October 22, 1945, I wrote to Mr. Davis that his offer had been accepted, and that if the offer still stood for him to advise me his wife’s name and I'would make out the necessary papers and order the abstract. I had letter right back telling me his wife’s name and I made out the deed on October 26,1945, and mailed to you to be executed and returned and had been expecting it ever since. I have Mr. Davis’ notes and mortgage in my office awaiting the return of the deed and abstract and I see no way around the matter. Mr. Davis has taken out insurance on this property and had mortgage clause attached which I am enclosing. I am also enclosing a mortgage for $1,500, and 3 notes for $500 each due November 1,1946-1947 and 1948, etc.”
January 22, 1946, an attorney for A. P. Williams wrote Manar: ‘ ‘ On January 9, 1946, for the first time Mr. Williams saw the abstract of title and title papers concerning the farm involved, and he thereupon learned that title to the property does not stand in his name, etc.”
Thereafter, appellant, Mary W.. Williams, and her husband, A. P. Williams, refused to carry out the contract to sell the farm to appellees and the present suit was begun December 28, 1945.
January 15,1946, Mary W. Williams filed for record in Faulkner county, a deed conveying the land here involved to her. This deed had been executed by H. W. Williams and his wife November 20, 1937, and Mary W. Williams testified that she had no information about the execution of this deed until January 9, 1946, when she found it in her safe deposit box. We quote from her testimony (taken by deposition): “When did you first see and examine said deed, or instrument, and assert your title to said lands? Explain. Ans. January 9, 1946. It was placed in my safe deposit box in Rockford, Illinois, by H. W. Williams during his lifetime, but I did not know of this deed until I examined the contents of the box on January 9,1946.”
The original deed was in evidence and the Chancellor found that it bore ‘ ‘unmistakable evidence of having been handled many times.” Only a copy of the deed appears in the record here.
Appellant also testified that in December, 1945, she visited the farm in question in Faulkner county and made a partial inspection. She made no further explanation of her purpose in visiting the farm.
We quote from the Chancellor’s findings: “Mrs. Williams testified that she had no knowledge of her ownership of the land until January 9, 1946, when she exam ined tlie contents of her lock box in which, she says, the deed had been placed by her brother-in-law during his lifetime. Acting upon the theory that her husband was the owner of the land, and that she had only an inchoate right of dower, she appears to have been willing to join her husband in a conveyance of the land which he, with her knowledge and consent, had contracted to sell to Davis on the terms agreed upon. She did all the correspondence, and thereby participated in the negotiations for the sale of the land regardless of whether it belonged to her husband or to her, and while her testimony is undisputed by any direct testimony that she was acting under a misconception of the fact that she was the owner, her testimony is strangely contradicted by the fact that the deed under which she asserts title was executed, on November 20,1937, and that she knew nothing about it until January 9,1946. . . . Her participation in the negotiations of her husband to accomplish a sale of the land, and the fact that she must have known during these negotiations that the title rested in her amounts to an estoppel on her part to avoid the contract of sale.”
After a review of all the testimony, we are unable to say that these findings of the trial court are against the preponderance of the testimony. It must be remembered that since Mary W. Williams was a party to this action and interested in the result, her testimony cannot be regarded as undisputed. Bell v. Lackie, 210 Ark. 1003, 198 S. W. 2d 725.
It seemed unreasonable to the Chancellor, as it does to us, that this deed under which appellant claims the title to this farm could have been placed in her safe deposit box, without her knowledge, some time between 1937, the date of its execution, and January 9,1946, when she claims she first discovered it. According to her own testimony, this deed “was placed in my safe deposit box. ’ ’ Just how H. W. Williams, or anyone else, could get into this box, she does not explain. She makes no contention that the box was held jointly by her and H. W. Williams. She knew of the negotiations with appellees leading up to the agreement to sell the farm from the very beginning. All was done with her khowledge and consent. She did part of the correspondence.
In the circumstances, as indicated, we think the Chancellor’s finding that she was estopped to assert that she did not know she owned the land is not against the preponderance of the testimony.
This court in the very early case of Jowers v. Phelps, ad., 33 Ark. 465, had this to say on the question of estoppels in pais: “Estoppels in pais, depend upon facts, which are rarely in any two cases precisely the same. The principle upon which they are applied is clear and well defined. A party who by his acts, declarations, ox-admissions, or by failure to act or speak under circumstances where he should do so, either designedly, or with willful disregard of the interests of others, induces or misleads another to conduct or dealings which he would not have entered u£>on but for this misleading influence, will not be allowed, afterwards, to come in and assert his right, to the detriment of the person so misled. That would be a fraud. But it is difficult to define special acts or conduct whjch in all cases would amount to axx estoppel. Generally it is said that if the owner of property, with a full knowledge of the facts, stands by, and permits it to be sold to an innocent purchaser, without asserting his claim, he will be estopped. . . . The leading idea is that a person shall not do, or omit to do, anything regarding his rights, which if taken advantage of by him, would work a fraud upon another; but, in this as in all other cases involving fraud, the exact limits and boundaries of fraudulent conduct are left undefined, to be applied by the Chancellor to the facts before him. ... To stand by and see a sale to an innocent purchaser would be, however, a breach of moral duty, unless the owner meant to abide by it.”
Appellant argues here, however, that appellees could not avail themselves of the defense of estoppel for the reason that it was not specially pleaded. It is true that, as a general rule, estoppel must be pleaded to be available as a defense to a claim; however, there is a well defined exception that arises, as in the present case, when “the estoppel or waiver is admitted in evidence or becomes an issue without objection at the time that it was not pleaded, this objection that it was not pleaded is waived and the estoppel is as conclusive as if pleaded specially, whether it is an estoppel in pais, a waiver, etc.” 19 Am. Jur., p. 850, § 197. ■
In this case there were no objections to the evidence bearing on the question of estoppel, on the ground that it had not been'pleaded, and therefore it was within the sound discretion of the trial court to treat the pleadings as amended to conform to such proof.
This court in Brotherhood of Railroad Trainmen v. Long, 186 Ark. 320, 53 S. W. 2d 433, held: (Headnote 6) “Where no objection was made to proof of an estoppel on the ground that it had not been pleaded, it was not an abuse of discretion to treat the pleadings as amended to conform to such proof. ’ ’ See, also, Anglin v. Marr Canning Company, 152 Ark. 1, 237 S. W. 440.
While the two cases just referred to were suits at law, estoppels in pais may be set up the same in law as in equity.
In Thomas v. Spires, 180 Ark. 671, 22 S. W. 2d 553, we said: “As a general rule an estoppel in pais may be set up in actions at law as well as in suits in equity. ’ ’
Finding no error, the decree is affirmed. | [
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Ed F. McFaddin, Justice.
The question for decision is whether the property of the appellant, Missouri Pacific Hospital Association, is exempt from taxation. The appellees are Pulaski County, the City of Little Rock, the Little Rock Special School District, and John M. Rose, as a property owner in Pulaski county. The status of the appellant, and the use of its property will be discussed subsequently.
Appellees filed petition, with the Arkansas Public Service Commission to have the property of the appellant placed on the assessment roll for ad valorem taxes. The Public Service Commission, after hearing evidence, made the order sought by the appellees, and rendered a written opinion that has proved helpful to this court. The Pulaski Circuit Court affirmed the order of the Public Service Commission; and the appellant has appealed, presenting the points herein listed.
I. Is the Appellant’s Property “Used Exclusively for Public Charity,” and Therefore Exempt? The answer to. this question depends on the use of the appellant’s property measured to the applicable constitutional provisions. Article XVI, § 5 of the Arkansas Constitution says, in part:
“ . . . the following property shall be exempt from taxation: . . . buildings and grounds and materials used exclusively for public charity.”
' Article XVI, § 6 of the Constitution says:
“All laws exempting property from taxation other than as provided in this Constitution shall be void. ’ ’
Some of our cases construing the constitutional lan-' guage “used exclusively for public charity” are: Brodie v. Fitzgerald, 57 Ark. 445, 22 S. W. 29; Hot Springs School District v. Sisters of Mercy, 84 Ark. 497, 106 S. W. 954; Grand Lodge F. & A. M. v. Taylor, 146 Ark. 316, 226 S. W. 129; School District of Ft. Smith v. Howe, 62 Ark. 481, 37 S. W. 717; and Robinson v. Indiana & Arkansas Lumber Co., 128 Ark. 550, 194 S. W. 870, 3 A. L. R. 1426. These cases afford the guide to a decision in the present case.
Acting under Art. XVI, § 5 of the Constitution, the Legislature, by Act No. 114 of 1883 (now found in § 13603, Pope’s Digest) provided:
“All property described in this section, to the extent herein limited, shall be exempt from taxation . . .
“Seventh. All buildings belonging to institutions, of purely public charity, together with the land actually occupied by such, institutions, not leased or otherwise used with a view to profit, and all monies and credits appropriated solely to sustaining and belonging exclusively to such institutions.”
This subdivision has been several times before this court; but, as pointed out in Brodie v. Fitzgerald, supra, the right of exemption must be found in the Constitution rather than in the statute, since Art. XYI, § 6 so provides.
Appellant claims that its property is exempt as coming within the last clause of Art. XYI, ^ 5, supra, that is:
“All buildings and grounds and materials used exclusively for public charity.”
We proceed, therefore, to determine whether the use made of appellant’s property is “exclusively for public charity”; and these facts appear to be admitted: (1) Appellant is a benefit association organized under the laws of Missouri, and composed of the employees of the Missouri Pacific Railroad Company and. the Missouri Pacific Transportation Company. (2) Appellant owns the hospital in Little Rock; and the employees of the railroad and transportation companies support the hospital by contributions from their wages and salaries each month; and these employees have absolute and exclusive control over the hospital, which is open to retired employees of these companies, and also to members of the families of the employees. (3) The hospital is principally open only to these people; but, in addition, the hospital receives some people who become sick or are injured on the property of the railroad or transportation' company. (4) The hospital does not “go out and take in the public generally that might come in and ask for admission.” (5) As previously stated, the hospital is supported by assessments made on the wages and salaries of employees. (6) These assessments are fixed by the Board of Trustees of the hospital, based on a scale depending on the amount of wages of each employee. (7) The assessments- are made to meet the requirements of the hospital; and, in the event that the hospital accumulates a surplus, the assessments are reduced or temporarily suspended.
The above admitted facts, as to the use and financing of the appellant’s property, show that the property is not used “exclusively for public charity” within the rule announced in Hot Springs School District v. Sisters of Mercy, supra. In the reported case this court (speaking through Mr. Justice Hart) held the following to be some of the essentials existing in that case, and to be necessary to allow exemption of the property as “used exclusively for public charity”:
A. The institution was open to any worthy sick person regardless of ability to pay.
B. No funds were diverted from the institution. Whatever profit was realized from those who paid went to the benefit of those who could not pay, to extend and enlarge the charity of the hospital.
Neither of these two essentials is present in the case at bar. The appellant’s hospital is not open to “any worthy sick person”; it is open only to Missouri Pacific employees, their families, and persons who may become sick or be injured on Missouri Pacific property. Furthermore, if the hospital accumulates a surplus, then such is returned to the members by reducing or temporarily suspending assessments. In short, the proof here shows that the appellant’s hospital is not used “exclusively for public charity”; and the úse is the determining factor. As stated by Chief Justice McCulloch in Grand Lodge v. Taylor, supra: “This language of the exemption clause refers, riot to the character of the corporation or association owning the property sought to be exempted, but, regardless of the character of the owner, to the direct and exclusive use of the property for public charity. ’ ’
In 51 Am. Juris., 606, et seq., there is an exhaustive discussion of hospitals as exempt from taxation. In 61 C. J. 500, et seq., this matter is also discussed. Of course, the decision in any state depends, to a large extent, on the wording of the constitutional provision in such state. Our Constitution limits the exemption to property “used exclusively for public charity”; and is much more restrictive than provisions in the constitutions of some other states. The wording of the restriction determines the distinction in some of the cases, as is pointed out in Annotations and cases cited in 51 Am. Juris., 606, et seq., from which -vye quote a part of the text:
“Hospitals as such enjoy no inherent exemption from taxation, and their property is taxable except so far as exempted by constitutional provisions or legislative enactments. . . . Hospitals claiming exemption have the burden of showing that they clearly come within the terms of the exemption enactments. . . . Where the benefits of a hospital are restricted to a special class, the rules of law generally pertaining to such situations in the case of charitable institutions govern. So, a hospital to which the general public has no legal right of entry, and from which it may be excluded at the discretion of the managers, is not entitled to exemption from taxation as a purely public charity. A hospital maintained by a corporation created for the purpose of maintaining it for the benefit of employees of a railroad company, and used for treatment solely of members of an association composed entirely of such employees, is not for strictly charitable purposes within the meaning of a constitutional tax exemption. ’ ’
To sustain the last-quoted sentence, there is cited the case of Chaffee County v. D. & R. G. R. Co. Employees’ Relief Assn., 70 Colo. 592, 203 Pac. 850, 22 A. L. R. 902. In that case the Supreme Court of Colorado held that the hospital, very much like the one in the case at bar, was not exempt from taxation, since its property was not “used solely and exclusively for strictly charitable purposes.” The constitutional provision in Colorado concerning exemption is very similar to ours, and the hospital association in the Colorado case is very similar to the hospital association in the case at bar.
A most enlightening case, construing our own constitutional provision as applied to a hospital operated for benefit of railway employees, is the case of S. L. S. W. Ry. Co. v. Yates, 23 Fed. 2d 283. In that case the U. S. Circuit Court of Appeals of the 8th Circuit decided that a hospital in Texarkana, Arkansas, was not exempt from taxation. The court said:
“Funds to support the institution are to be obtained by assessments, based on a wage-earning scale, collected monthly from the employees. There are other provisions which emphasize those above quoted or outlined but sufficient has been said to show the general plan of the trust to be that the use of the property is confined to the employees (and their dependents) of appellant and its affiliated lines. The public in general, nor any part thereof, nor any indefinite class have any right to any use in this property and it is in no wise supported by any charitable gifts or donations, but only by the direct beneficiaries thereof and by contributions, in the form of loans, from the railways whose employees are protected. In short, it is simply the familiar plan of a hazardous business providing hospital and medical services for those engaged therein. It seems to us that this is clearly not a usage ‘exclusively for public charity.’ We base the above conclusion on ah independent construction of this provision of the Arkansas Constitution. However, there are certain Arkansas Supreme Court decisions which tend to support, if they do not compel the same conclusion. Those are Hot Springs School Dist. v. Sisters of Mercy, 84 Ark. 497, 106 S. W. 954; McDonald v. Shaw, 81 Ark. 235, 242, 98 S. W. 952; Fordyce v. Woman’s Christian National Library Association, 79 Ark. 550, 96 S. W. 155, 7 L. R. A. (N. S.) 485. In all, of these cases that court has held that to constitute a public charity within the meaning of this constitutional provision, the trust must be for. the benefit of an indefinite class of persons. Another case, Arkansas Midland R. Co. v. Pearson, 98 Ark. 399, 135 S. W. 917, 34 L. R. A. (N. S.) 317, seems closely analogous, if not directly in point.”
There áre many cases on the question here at issue. Some cases support the views already expressed; and some are to the contrary. We make no effort to list all such cases, nor to distinguish and discuss those, apparently or actually holding to the contrary. It is sufficient to say that we reach the conclusion, in line with the cases and authorities we have cited, that the appellant’s property is not “used exclusively for public charity,” and is, therefore, not entitled to tax exemption under our constitutional provsion.
II. Act 40 of 1931. The appellant relies most strongly on this act as granting the exemption from taxation. This act, which may be found in § 13587, Pope’s Digest, reads:
“All corporations or institutions heretofore or hereafter organized, created and operated as a hospital for the purpose of treating the members of said organization and others, not leased or otherwise used with a view of profit, are hereby declared to be institutions of public charity and shall be free from taxation.”
But the vice of the appellant’s argument in reliance on this act lies in the unconstitutionality of the act as applied to ‘the facts in this case. Art. XVI, § 5 of the Constitution provides what property is exempt from taxation; Art. XVI, § 6, as previously quoted, says:
“All laws exempting property from taxation other than as provided in this Constitution shall be void.”
When we hold, as we did in section I, supra, that the appellant’s property was not “used exclusively for public charity,” then Art. XVI, § 6 of the Constitution strikes down any legislative attempt to grant appellant any exemption from taxation. In Supreme Lodge v. Board of Review, 223 Ill. 54, 79 N. E. 23, 7 Ann. Cas. 38, the Supreme Court of Hlinois struck down'a legislative enactment which allowed a tax exemption broader than the constitutional provision. That is what we are obliged to do here. What was said in Brodie v. Fitzgerald, supra, is not only apropos; but is ruling:
“Section 6 provides that ‘All laws exempting property from taxation other than as provided in this Constitution shall be void.’ It follows that if this property> is not exempt from taxation under the Constitution, it cannot be exempt under any act of the General Assembly, as the section last quoted is a limitation upon the power of the Legislature to exempt property from taxation.”
We, therefore, conclude that Act 40 of 1931 is unconstitutional insofar as it attempts to grant tax exemption to property not exempt under Art. XYI, § 5 of the Constitution; and for that reason does not support the appellant in the case at bar.
III. Res Judicata. Finally, appellant cites orders of the Pulaski County Court made in 1925 and 1931, and an order of the Arkansas Tax Commission made in 1929, each declaring appellant’s'property to be exempt from taxation; and appellant claims that these orders render res judicata any and all questions as to taxability of appellant’s property in the present proceedings.
Against this plea, the appellees offer several defenses, some of which are: (1) administrative rulings are never res judicata; (2) there was no identity of parties as between any of the previous proceedings and the case at bar. We find it unnecessary to discuss-or decide these contentions, because we hold that a judgment rendered in one year, holding property to be exempt from taxes because “used exclusively for public charity,” is not res judicata regarding the taxes on the property for a subsequent year. The great weight of authority is to the effect that an adjudication upon liability for taxes of one year is no bar to an action for taxes for a subsequent year. In Keokuk & W. R. Co. v. Missouri, 152 U. S. 301, 38 L. Ed. 450, 14 S. Ct. 592, the U. S. Supreme Court said: “A suit for taxes for one year is no bar to a suit for taxes for another year. The two suits are distinct and separate causes of action.”
In City of Newport v. Commonwealth, 106 Ky. 434, 50 S. W. 845, 51 S. W. 433, 45 L. R. A. 518, the Kentucky Court of Appeals said: “An adjudication upon a liability for taxes for one year is no bar to an action for taxes for a subsequent year. ”
In Bank v. City of Memphis, 101 Tenn. 154, 46 S. W. 557 the Tennessee Supreme Court said: “The plea of res adjudicata is limited in its effect, in tax cases, to the taxes actually in litigation, and is not conclusive in respect to other taxes assessed for other and subsequent years. ’ ’
In Lakeshore Ry. Co. v. People, 46 Mich. 193, 9 N. W. 249 the Supreme Court of Michigan said: “The result of a suit for taxes of a particular year is not res judicata in subsequent suits between the same parties for taxes of other years, and the decisions upon legal questions arising in the first case are important only as precedents.”
To the same effect see Chicago R. Co. v. Cass County, 72 Neb. 489, 101 N. W. 11, 117 A. S. R. 806; City of Davenport v. C. R. I. & P. R. Co., 38 Iowa 633; Shreveport Creosting Co. v. Shreveport, 119 La. 637, 44 So. 325; and State v. Brotherhood of R. Trainmen, 74 O. App. 263, 54 N. E. 2d 320. See, also, 34 C. J. 966.
We, therefore, hold that the appellant’s plea of res judicata is without merit.
The judgment of the Circuit Court is in all things affirmed. | [
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McHaney, Justice.
Appellee is the owner of a building in Russellville, Arkansas, which has been under written lease to appellant to operate a picture show therein from January 1,1941, to December 31,1945, at a monthly rental of $90 for the first two years and $100 for the last three years. In addition to the usual terms and conditions, the lease provided for certain passes to appellee and her family as follows: “As a further consideration of rent herein specified, the party of the second part agrees to furnish four (4) annual passes to any and all picture shows operated by them in the City of Russell-ville, Arkansas, said passes issued to the party of the first part and members of her family, as follows: One pass to Mrs. Mattie Boswell; one pass to Vestal Boswell; one pass to Mr. and Mrs. Cletis Boswell (and small son), during the term of this lease.”
On September 11, 1945, appellant wrote appellee a letter, calling her attention to the expiration date of the lease, December 31, 1945, and expressing a desire to extend the lease for another five years. A lease extension agreement executed by appellant was enclosed for this purpose, which provided that the terms and conditions set out in the original lease should bind the parties for an additional five years. On September 16, 1945, appellee wrote appellant she would “have to have an increase of $25 per month,” over the $100 per month she was then getting. On September 26, 1945, appellant wrote appellee, in part, as follows: “We have been your tenants quite a while in Russellville, Mrs. Boswell, and I am sure that we have been satisfactory. If you insist upon the $25 per month increase in rental, we have no alternative but to accept same; however, I do believe that in fairness on the extension of the lease, this should be increased for the first two years at $112.50 per month, and for the remaining three years at $125 per month. The rental on this building has increased from $50 per month from the time that it was rented to Mr. McGinnis to $100 per month that we are paying now.
“I am leaving this matter up to your own decision as I know that you will be fair about same. ’ ’
At this point appellee seems to have consulted her attorney, Mr. Hays, for, on October 9,1945, her attorney answered appellant’s letter next above quoted, stating that the said letter and the proposed extension of lease agreement had been referred to him. In this'letter appellant was advised that the rent would have to be $125 per month; that a new lease agreement would be required and that an exact duplicate ,of the then lease would be satisfactory, except the monthly payments would be $125 and except as to passes. In this connection Mr. Hays wrote appellant the following: “It seems that the original passes issued by your corporation provided for admission to all shows as set out in the paragraph on ‘Passes’ on page three, however, later these passes excepted passes for Sunday, Saturday, or Holiday shows. Cletis Boswell, objected very strongly to this change in passes and now insists there shall be a clear understanding that the passes -during the term would admit to all shows, subject of course to excise tax. It seems that the local manager and Mr. Boswell had some sharp words about it and Mrs. Boswell insisted this matter be clearly expressed. The four passes mentioned for Cletis Boswell shall be for himself ‘and family.’ He has one boy who would have to pay child’s admission and another boy who would become chargeable during the term of a five-year lease. You understand, as I do, that it is the little things that make the most difficulty in closing such matters. .
“Under Mrs. Boswell’s direction we ask that you prepare a new lease contract embracing changes as to the monthly rental and passes, and mail same to us for approval. ’ ’
Replying to this letter on October 17,1945, appellant sent Mr. Hays a new lease agreement embodying the same terms as the old lease except the monthly rentals were to be $125, and except the clause as to passes .which limited them to one pass for appellee, one for Vestal Boswell, and one each for Mr. and Mrs. Oletis Boswell. In its letter of said date appellant refused to change the condition of the passes, refused to remove the restriction against their use on Saturdays, Sundays and holidays. In reply to this letter Mr. Hays vjrote appellant on October 31, 1945, asking that the lease, as to passes, be changed to read, “one pass each to Mr. and Mrs. Cletis Boswell and family,” which added the words “and family” to the lease as written, and returned same to appellant. In reply to this letter appellant wrote Mr. Hays on November 1, 1945, declining to make the change in the lease agreement suggested, and, in part, said: “In as much as we have complied with Mrs. Boswell’s letter of September 16 in an increase of $25 per month rental, we have taken the position that our lease is extended for that period of time. If Mrs. Boswell wishes to execute the leases on this basis, we will be glad to send them to you for her signature. ’ ’
Appellee wrote appellant on January 2,1946, that its lease had expired and its further occupancy of said building “is permissive only, from month to month.” The check of appellant of January 9, for $125, was returned to it by appellee on January 10, as also the passes sent to her. On January 8, she wrote appellant notifying it that she would require the surrender of said building at the expiration of 30 days, and to have same vacated on or before February 10.
On February 12, appellee caused a notice to be served on appellant to quit and deliver up the possession of her building on or before February 15.
On February 16, appellee brought this action against appellant in unlawful detainer, gave bond in the sum of $5,000 and secured a writ of possession. Appellant gave a cross-bond and retained possession. Trial before the court sitting as a jury resulted in a judgment for appellee against appellant for the possession of said building and for the use and occupation thereof the sum of $887.50 on the basis of $125 per month from January 1 to August 3, 1946, with interest thereafter until paid at 6 per cent, and costs.
From this judgment there is here a direct appeal by appellant from the judgment for possession of the building and a cross-appeal by appellee from so much of the judgment as limited her recovery for damages to $125 per month for the use and occupancy of said building since January 1,1946.
For a reversal of the judgment for possession, appellant contends that its letter to appellee of September 26, 1946, in answer to her letter of September 16, and particularly the sentence therein which said: “If you insist upon the $25 per month increase in rental, we have no alternative but to accept same,” constitutes a “complete acceptance of Mrs. Boswell’s proposition to rent to appellant the property for another five year period.” Assuming without deciding that this is true, we cannot agree that a completed contract was rbade, because the amount of the monthly rental was not the only consideration moving to appellee to be agreed upon. The clause regarding passes was a part of the consideration for the lease as shown by the clause above quoted from the original lease agreement, and about which the parties never did agree. This is clearly demonstrated by the letter of appellee’s attorney to appellant of October 9, 1945, and ’ its reply thereto of October 17,' and is further emphasized by their respective letters dated October 31 and November 1.
It thus appears that there was no meeting of the minds of the parties at least to one of the essential terms of the contract, the passes, and, therefore, there was no binding contract. In Southern Cotton Oil Co. v. Frauenthal, 145 Ark. 394, 224 S. W. 730, we said: “It is true, as contended by counsel for the plaintiff, that a binding contract of sale may be entered into by letters and telegrams, and that an acceptance by letter or telegram of an unconditional offer made in the same manner will constitute an obligatory contract. Allen v. Nothern, 121 Ark. 150, 180 S. W. 465, and cases cited, and J. I. Case Threshing Machine Co. v. Southwestern Veneer Go., 135 Ark. 607, 205 S. W. 978. It is equally well settled that before the contract is consummated each party must agree to the same proposition,- and the agreement must be mutual to every essential term of the contract.”
In the recent case of Gatling v. Goodgame, 209 Ark. 867, 192 S. W. 2d 878, we said: “It is well settled that in order to make a contract, there must be a meeting- of the minds as to all terms.” Citing a number of cases. But learned counsel for appellant contends that the matter of passes was a courtesy extended by appellant to appellee, and was an after thought brought up to find a loophole to evade carrying out the terms of the contract. The question of passes, we think, was not merely a courtesy by appellant to appellee, but was in compliance with an express provision of the original contract, and was a requirement demanded by appellee for a new contract and refused in the form demanded by appellant. We cannot say this consideration was de minimis.
As to the cross-appeal of appellee but little need be said. She contends that the rental value of the building is $200 per month and offered in evidence a check from another party dated December 15, 1945, for $1,800 for rent for 1946, if he could get possession of the building. But the fact remains that appellee offered to rent the building to appellant for $125 per month for five years. The court found this amount to be the correct measure of damages for holding over, and we think there was substantial evidence to support the finding.
The judgment will be affirmed both on the direct and cross-appeals.
Griffin Smith, C. J., dissents. | [
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McHaney, Justice.
Sub-District No. 1 to Drainage District No. 2 of Jefferson County brought this action against appellee, David Martin, a negro, to cancel a deed from the State to appellee, dated August 21, 1945, to the east one-half, northeast quarter of section 32, township 4 south, range 7 west, on the ground that the forfeiture and sale to the State for the 1937 taxes were void and the State acquired no title becáuse of a previous foreclosure and sale to the plaintiff in 1936 for delinquent assessments in plaintiff district. Also the cancellation of a deed from Plum Bayou Levee District to appellee, dated September 17, 1945, to the same land, was sought on the ground that said deed amounted to a redemption only, since appellee was relying on his purchase from the State and recognized his obligation to pay the taxes due said levee district. Cancellation of both deeds was sought to remove them as clouds on plaintiff’s title.
Appellee Martin answered with a general denial and by way of cross-complaint against appellant, an attorney of Pine Bluff, Arkansas, alleged that he employed appellant as his attorney and paid him a fee of $35 to investigate the records and to advise appellee whether he could purchase from the State and several improvement districts his father’s old home place, consisting of 80 acres in section 32-4-7; that subsequently appellant advised appellee that he had located his “Home 80,” and that he could secure title from the State for $100 which appellee paid to appellant on July 2, 1945, receiving a receipt therefor; that on August 15, 1945, appellant wrote him that, if. he would bring in $400’ more, appellant could get title from the improvement districts involved, which amount was paid to appellant on August 20, 1945, for which he holds appellant’s receipt; that on September 7, 1945, appellant again wrote him that the improvement taxes “look all right and you bring me $300, if you can, and it clear that up,” which he did on September 10, 1945, for which he holds a receipt; that appellant negligently purchased in appellee’s name from the State the land above described which was not appellee’s “Home Place” and paid the sum of $329 for the State’s deed, when he should have purchased the title of plaintiff district, and with such title he could have redeemed from the State for $1, because said district acquired the title before the State’s lien for general taxes attached and for which it was sold to the State (See Act 206 of 1943); that, on September 17, 1945, appellant, as his attorney, purchased for him the title of Plum Bayou Levee District for which he paid $21.05, but failed to purchase the title of plaintiff district, or that of three other districts, each of which had foreclosed their liens for delinquent improvement district assessments on said lands; that said action on the part of appellant as attorney for appellee constituted negligence or fraud; and that, if plaintiff should prevail, he should have judgment against appellant in the sum of $835, with interest, for which he prayed.
Appellant appeared and moved to strike the cross-complaint on the grounds of misjoinder of actions, and that appellee had an adequate remedy at law, and that a court of equity had no jurisdiction. He also moved to require the cross-complaint to be made more' definite and certain. These motions were overruled. He answered the cross-complaint admitting his employment as attorney for appellee for the purposes alleged, the payment to him of the sums of money as alleged, the writing of the various letters, the purchase from the State by him for appellee the land above described, the payment to the State of $329 for its deed and practically all other material allegations of the cross-complaint, but specifically denied that his actions as attorney for appellee constituted negligence or fraud, that he should be made a party to the action, or that appellee should recover against him. He further answered with a lengthy explanation or attempted justification of his dealings with appellee, and again denied that he misrepresented anything or was negligent in any manner as attorney for him, and concluded with a special demurrer to the jurisdiction. He attached to his answer certain exhibits from “A” to “R,” inclusive, consisting of correspondence with appellee and others, including certain memoranda regarding various improvement district taxes and titles.
Trial resulted in a decree canceling the deeds of the State and the Plum Bayou Levee District to appellee for the reasons alleged in the complaint. No appeal has been taken from that part of the decree. As to the cross-action the court found: “That the cross-defendant, A. D. Chavis, obtained from David Martin the sum of eight hundred thirty-five and 00/100 dollars ($835) upon the representation that he would ascertain whether what David Martin called his ‘home 80’ as State land and would obtain a good title thereto from the improvement districts within which it was located, as well as clear the State title and obtain a deed from the record owner; that instead of carrying out this agreement, the said A. D. Chavis did not, so far as the evidence in this case shows, examine the abstract records to determine which was the Martin 80 acres, although the same were readily accessible to him and although he had examined said abstract records at other times in the past; that instead of obtaining a good title to the Martin place, which was the west half of the northeast quarter of said section 32, the said A. D. Chavis obtained two deeds, one from the State of Arkansas and one from Plum Bayou Levee District on the east half of the northeast quarter of said section, leaving five improvement district titles outstanding.
“That the said A. D. Chavis expended the sum of three hundred twenty-nine and 00/100 dollars ($329) to obtain a deed from the State of Arkansas when the State’s title could have been cleared by payment of one dollar ($1) under Act 206 of 1943; that such deed was void, operated to convey no title to the defendant and was an absolute waste of that much money. As already stated in this. decree, the Plum Bayou Levee District deed was also subject to cancellation so that the said cross-defendant has rendered no service of any sort to the defendant and that said cross-defendant has made no effort to contact the plaintiff or Drainage District No. 2 of Jefferson County, Arkansas, which are separate entities, Bradley Slough Drainage District, Sub-District No. 1 to Bradley Slough Drainage District or No Fence District No. 2, all of which districts embrace the‘land herein involved; that said cross-defendant also failed to obtain a deed from Miss Emma White, who was the record owner prior to the sales to said improvement districts.
“That the sums expended by said cross-defendant-follows:
“Deed from the State of Arkansas, $329; deed from Plum Bayou Levee District, $21.05; subsequent taxes in ,Plum Bayou Levee District, $190; recording two deeds, $3, or a total of $543.05, and that said cross-defendant has converted to his own use the remainder of the $835 paid him, which amounts to $291.95.
“That the said cross-defendant, A. D. Chavis, is guilty of fraud in misleading and deceiving his client, David Martin, in his so-called effort to clear the title of either the west half or the east half of the northeast quarter of said section 32; that the services of said cross-defendant resulted in no benefit whatsoever to the defendant and that said cross-defendant is not entitled to the thirty-five dollars ($35) fee paid him for determining whether the Martin ‘home 80’ was State land subject ,to being purchased by the defendant.”
Judgment was rendered against appellant for $835 with interest at 6 per cent, from the date of the decree, March 5, 1946. This appeal is from that part of said decree.
One of the questions relied on for a reversal of the judgment against him by appellant is that the cross-complaint was improper because he had no interest in the original cause of action. Section 1426 of Pope’s Digest provides that: “A defendant may file a cross-complaint against persons other than the plaintiff .. . . when a defendant lias a cause of action against a co-defendant, or- a person not a party to the action, and affecting the subject-matter of the action . . Appellant says he had no interest in the action of plaintiff against appellee to cancel the two deeds he had procured for appellee as his attorney and for which he had received from appellee $835 to cover purchase price and fee. We think he did and that he should not be heard to say that he did not, in view of the facts here presented. Appellant did everything that was done in the unsuccessful attempt to acquire the title to land for appellee who trusted him implicitly and did nothing but follow the advice of appellant to put up more money when called upon to do so. Had appellant taken the title in his own name and then conveyed to appellee, he would have been a necessary , party defendant in the original action, and a cross-action against him by appellee certainly would have been proper. In substance, his position here is the same and the cross-action was proper. Compare Taylor v. Harris, 186 Ark. 580, 54 S. W. 2d 701. Having jurisdiction in the main suit, the court retained it to administer complete relief. Taylor v. Harris, supra. See, also, Norfleet v. Stewart, 180 Ark 161, 20 S. W. 2d 868, where chancery entertained jurisdiction of a suit to recover money paid by a client to an attorney to be used in settling a judgment for damages against the client, which was converted by the attorney.
In Maloney v. Terry, 70 Ark. 189, 66 S. W. 919, 72 S. W. 570, it was held, to quote a headnote: “Chancery has jurisdiction of a suit by a client to have his attorney declared a trustee where the attorney, settling a claim against the client, fraudulently procured and retained a greater sum than was paid to settle the claim, although an action at law for money had and received would also lie.”
Appellant also contends that he was guilty of neither negligence or fraud in the transaction complained of. The trial court found that appellant “is guilty of fraud in misleading and deceiving his client,” but whether it was fraud, negligence, or breach of duty, the result would
be tbe same, and we think the least that can be said about it is that it was negligence or breach of duty. For instance, he used appellee’s money to the extent of $329 to buy the State’s title, when an investigation of the county records would have disclosed that the title to the tract had, previous to the sale to the State, been acquired by plaintiff district, and that a deed from the State would convey no title because the land was not subject to general taxation while the title is in an improvement district. Robinson v. Indiana & Ark. Lbr. & Mfg. Co., 128 Ark. 550, 194 S. W. 870, 3 A. L. R. 1426, and a number of cases following it. See Sheppard’s Ark. citations. Moreover, had he bought the plaintiff’s title, or that of the levee district or either of the four.other improvement districts, he could have gotten a deed from the State for $1 by following the provisions of Act 206 of 1943, and thus have saved his client $328. After he acquired a deed from the State, he got a deed from the levee district, paying $21.05 therefor, and then paid the accrued taxes to the district in the sum of $190. The court’s decree canceled both titles and there is no appeal from said decree. As a net result appellee has been out $835, of which appellant has retained for his own use $291.95, and appellee got nothing but a sad experience, including a lawsuit, for his outlay. In Norfleet v. Stewart, 180 Ark. 161, 20 S. W. 2d 868, we held that “actual fraud in such cases is not necessary to give the client a right to redress. A breach of duty is constructive fraud, and is sufficient.” Citing Baker v. Humphrey, 101 U. S. 494, 25 L. Ed. 1065, Chief Justice Hart, for the court, there said: “A fiduciary relation exists between attorney and client, and the confidence which the relationship begets between the parties makes it necessary for the attorney to act in the utmost good faith. He must not only not misrepresent any fact to his client, but there must be an entire absence of concealment or suppression of any facts within his knowledge which might influence the client, and the burden of establishing the fairness of the transaction is upon the attorney. This rule is of universal application, and is recognized by all of the text-writers on the subject.”
In the recent case of Johnson, Admr., v. Rolf, 208 Ark. 554, 187 S. W. 2d 877, 188 S. W. 2d 137, after citing Norfleet v. Stewart, supra, and, after saying that, in the relationship between attorney and client, “there must be an entire absence of concealment or suppression of any facts within the attorney’s knowledge which might influence the client, and the burden of establishing fairness of the transaction under investigation rests on the attorney,” we quoted from Thweatt v. Freeman, 73 Ark. 575, 84 S. W. 720, the following: “Equity regards the relation of attorney and client much in the same light as that of guardian and ward, and will relieve a client from hard bargains or from an undue advantage secured over him by his attorney. And the client, in order to' secure such relief, is not bound to show that there has been any imposition or fraud, nor is the transaction necessarily void; but if it is a transaction in which the relation between the parties .exerted, or might reasonably have exerted, any influence in the attorney’s favor; then the burden of establishing its perfect fairness is thrown upon the attorney.”
From all of these cases it appears certain that the trial court had jurisdiction.
The evidence as to the vital facts is not in dispute, most of them being stipulated. Appellant did not testify and he called only one witness, the county clerk, to prove that the east one-half of the northeast quarter of said section forfeited in the name of Miss Emma White, from whom he unsuccessfully sought to get a quitclaim deed thereto.
We do not review the evidence, as to do so would unduly extend this opinion. We have carefully considered all of it and find it amply sufficient to support the judgment which is accordingly affirmed. This affirmance is without prejudice to appellant’s right to apply to the chancery court, when he shall have satisfied the judgment against him, for subrogation to the right of appellee, if any, to the return from the State of the sum paid to it, or to the Plum Bayou Levee District. | [
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Griffin Smith, Chief Justice.
Lots Two and Three of Block Five, C. H. Taylor’s Addition to the City of Little Rock, front east on Brown St., Lot Two being north. When appellant purchased Lot Two in 1920 that part west of a residence was separated from Lot Three by a fence extending to a storage room on the southwest corner. The fence and storage room were blown down hv a storm in 1937. Thereafter a garage was erected on the site formerly occupied by the store room, but the fence was not rebuilt.
In 1944 appellees purchased Lot Three without knowing that five feet of the lot had been cut off by the fence destroyed in 1937; nor were they aware that a part of the reconstruction then used as a garage extended more than three feet south beyond the original line separating Lots Two and Three. Trees had grown up on the five-foot strip upon which former owners of Lot Two had encroached, two of which were cut by appellant in January 1946. When appellees — who had purchased Lot Three just two years before — observed their neighbor’s actions in cutting the trees, they had their property surveyed, and for the first time ascertained that the controverted strip was originally part of Lot Three. Appellant placed a line of small stakes along the course of the old fence, determining the position by postholes that had not entirely filled with dirt and debris. The stakes were removed by one of the appellees; whereupon appellant sued to restrain appellees from interfering with her possession of the area in question. It was stipulated that appellees had the record title. The only question is whether appellant’s conduct in respect of the appropriated property was such as to give title by adverse possession.
Appellant testified that during her entire ownership of Lot Two she paid taxes on the fenced portion of Lot Three thinking it belonged to her. We think, however, that a rational construction of what she intended to say is that Lot Two was assessed as such, and payment was under a description that did not include the five-foot strip; nor did she think, in making the original purchase, that a greater area was covered by the deed than that pertaining to Lot Two as platted when laid out. Appellant’s sitaution is somewhat similar to that of Winston, who claimed land belonging to Martin in Lot Seven, Block Five, C. F. Stifft’s Addition. In the opinion it was said that “One who purchased a.city lot and later built on it, but who, through mistake as to the southern boundary, used for driveway purposes a small strip of the eontinguous lot, (then vacant) did not thereby ‘raise the flag’ his grantee could later take advantage of, the grantor having testified it was not his intention to sell anything not appropriately a part of his possession”. Martin v. Winston, 209 Ark. 464, 190 S. W. 2d 962.
While it is true that appellant in the case at bar testified she intended to purchase the land under fence, she also testified it was not her purpose to buy anything but the lot. It is not contended that she did not receive the full front footage pertaining to Lot Two. Appellant did not, at any time before 1944, mention to anyone the claim she now advances. Her sole reliance is upon the fact that the area was under fence ten years ago, that the garage or a building preceding it extended onto Lot Three when she bought the property, and that prior to 1937 she built a sidewalk along the full length of Lot Two and over the five-foot strip.
Appellant testified very positively that the buildings heretofore referred to “ . . . marked the southwest corner of the ground purchased in 1920 . . . and the fence was a part of that building”. At another time she said that the building was twelve or fourteen inches “inside of where the original fence line was”. It follows that if the buildings were fourteen inches north of the line claimed as the old fence row, and the new construction occupied the same area, it is now three feet and ten inches south of the true line, and 'not five feet as the contention seeks to establish.
Inasmuch as appellant has all of the land she actually purchased, and has not at any time, by word, (or by action other than occupancy by tenants) asserted an intention to appropriate the land, and since the property was not fenced when appellees bought Lot Three in 1944, we think the controversy is resolved into a situation where the relationship of adjacent homeowners shifted from one of mutuality to hostility-, and that in the course of litigation circumstances and physical facts have been construed beyond warrant. It would be manifestly inequitable to require appellees to surrender five feet of the lot they purchased when it is quite clear from the pleading's that they contemplated ownership of the full lot; nor does the testimony imperatively require that the law applicable to adverse possession be applied in order to defeat a just determination of the issues. Value of the so-called garage appears to be comparatively small and its removal will not involve appreciable cost.
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■Smith, J.
The essential and controlling facts in this case are covered by stipulation of opposing counsel, and may be stated as follows: Appellee, a transportation company, bought certain busses, the number not being stated, from a manufacturer or dealer in St. Louis,, Missouri, a completed sale being made in that city. The busses were shipped to appellee at Pine Bluff, Arkansas, and the State Revenue Commissioner is demanding and endeavoring to collect from appellee a tax of two per cent of the purchase price of the busses under the provisions of paragraph (e) of § 3 of Act 386 of the Acts of 1941. This attempt of the Commissioner was enjoined in the decree from which is this appeal. For the reversal of this decree the contention is made that the tax levied upon new automobiles under the statute referred to is a use tax and not a sales tax, and the correctness of this contention is the question presented for decision.
The purpose of Act 386 as reflected by the title is “To Provide for Raising Revenue to Sustain the Common Schools; to Provide Free Text Books for the First Eight Grades Thereof: to Substitute Homestead Exemption Taxes and to Provide Funds for State Charitable Institutions, for Library Services and for the Objects of the Welfare Commission,” and to provide these funds “by Prescribing and Levying Specific Taxes Upon Gross Receipts Derived From Sales,” and to provide for the ascertainment, assessment and collection thereof.
If the Act authorizes the collection of a use tax, that fact is not revealed by its title, but rather is concealed. The title of an act is not controlling in its construction, although it may be considered in determining its meaning when in doubt. Matthews v. Byrd, 187 Ark. 458, 60 S. W. 2d 909.
Section 1 of this Act 386 reads: “This Act shall be known and cited as'‘The Arkansas Gross Receipts Act of 1941. ’ Authority for the levy and collection of the tax is found in § 3 of the Act, the first paragraph of which reads as follows; ‘There is hereby levied an excise tax of two (2%) per centum upon the gross proceeds or gross receipts derived from all sales to any person subsequent to the effective date of this Act, of the following :...”.
Sub-paragraphs of this section of the Act (a), (b), (c), (d), and (e) enumerate the property, service, etc., upon which the tax is imposed, and the second paragraph of sub-paragraph (e) reads as follows': “The tax levied by this Act in respect to the sale of new automobiles shall be paid by the user or consumer to the Commissioner of Revenues instead of being collected by the dealer and the Commissioner shall be required by this Law in issuing automobile license for new cars to require payment of the two per cent tax levied hereby before issuing said licenses.”
It is upon the paragraph just quoted that the Commissioner relies for his authority to collect the tax here in question.
This Act 386 of 1941, by which number it will be hereinafter referred to, superseded Act 154 of the Acts of 1937, hereinafter referred to by that number.
Act 154 has a section, number 4, corresponding to $ 3 of Act 386 and paragraph (F) of Act 154 reads as follows: “Every person, as defined in this Act, shall report to the Commissioner as a retail sale the use or consumption by Mm of anytMng on ■which the sales tax has not been paid under this Act .which would have been levied had it been sold at retail in this state, and shall pay the sales tax thereon.”
Under the authority of paragraph (F) of § 4 of Act 154 it was sought in the case of Mann v. McCarroll, 198 Ark. 628, 130 S. W. 2d 721, to collect a use tax on certain gin and other machinery bought in another state, and used in this state, just as the Commissioneir of Revenues is attempting to do in the. instant case. But it was there said: “There is no controversy about these several sub-divisions (A), (B), (C), (D), and (E), but (F) is the questioned provision. Now it is contended by the appellee that sub-division (F) in itself levies or imposes the use tax. We have just called attention to the imposition of the sales tax in a quoted portion of § 4. The only tax, therefore, that is imposed is a sales tax. We seek in vain for any language that lays or imposes a ‘use tax’. We may not so amend an act of the Legislature to levy and collect a tax apparently not even contemplated by the law-making body. If sub-division (F) be given any interpretation or construction at all, it must be such interpretation or construction as will relate to the only tax that is imposed by said Act 154, and that is the retail sales tax.”
It was also said in the Mann case, supra, “The quoted first part of § 4 above set out indicated clearly that the Legislature knew a tax had to be levied or imposed before it could be collected and there can be no question that it levied a sales tax. There is no language whereby a use tax was levied or by which such fact might be determined by actual or necessary implication. In fact, the very provisions which the' appellee now argues are sufficient to levy a use tax and provide for its collection designate such tax as was levied as . the sales tax levied in the first part of this section. ’ ’
It was there further said: “The purpose of the said sub-division (F) aforesaid, is valid beyond question if it be treated purely as part of the machinery to aid in the collection of a. sales tax, and not in fixing liability upon property not subject thereto.”
So, also, the second paragraph of sub-section (e) of section 3 of Act 386 must be construed as the method of collecting the sales tax when such tax is due, and not as imposing another and a different tax, to-wit, use tax.
The concession is frankly made in the state’s brief that a sales tax may not here be collected, as a completed sale was made in another state, unless Act 386 has imposed a use tax. The case of McLeod, Commissioner v. J. E. Dilworth Co., 205 Ark. 780, 171 S. W. 2d 62, (affirmed by the Supreme Court of the United States, 322 U. S. 327, 64 S. Ct. 1023, 88 L. Ed. 1304) is decisive of the question that a sales tax may not be collected in this case. It was also held in effect in the Dilworth case, supra, that the tax imposed by Act 386 is in reality a retail sales tax such as was imposed by Act 154.
In a very recent case of State ex rel. Com. of Revenues v. Hollis & Co., 209 Ark. 455, 190 S. W. 2d 986, it was said: “The tax sought to be collected by appellant is based on Act 386 of 1941, p. 1056, the short title of which is “The Arkansas Gross Receipts Act of 1941.” It is a sales tax and not a use tax act, and has been so treated by this court in all cases subsequent to its enactment. See McLeod, Commissioner v. J. E. Dilworth Co., et al., 205 Ark. 780, 171 S. W. 2d 62. ’ ’
It is not without significance that following the decision in the Dilworth case, supra, in which the opinion was delivered April 26, 1943, that the General Assembly at its ensuing 1945 session passed a bill imposing a use tax in certain cases, which was vetoed by the Governor.
We conclude therefore, that Act 386 does not authorize the collection of a use tax and the decree enjoining the attempt to collect it will therefore be affirmed. | [
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M. MICHAEL KINARD, Judge
| Appellant Gain, Inc. (Gain), appeals from the trial court’s order denying its motion for summary judgment based on the doctrine of charitable immunity. After a de novo review, we conclude that the trial court erred, and we reverse and remand for further proceedings.
Appellee Meranda Martin, the adminis-tratrix of the estate of Virgil Brown, Jr., deceased, filed a wrongful-death and survival action .against Gain and others in October 2013. Gain purports to be a charitable organization providing services to adults with debilitating major mental illness. Martin asserted that Gain was negligent in providing ^services to Brown and to Kenneth Ray McFadden, Jr., which resulted in McFadden killing Brown. Gain filed a motion to dismiss and a motion for summary judgment, asserting the affirmative defense of charitable immunity. Gain later filed an amended motion for summary judgment, along with its articles of incorporation, bylaws, an affidavit from its executive director, and documents to confirm its nonprofit and tax-exempt status.
Martin filed a response along with several documents, including Gain’s application for tax-exempt status and tax forms for the years 2007 through 2011. After a hearing, the trial court entered an order denying Gain’s motion for summary judgment.' The trial court found that Gain had established a prima facie case that it was entitled to summary judgment, but Martin had met her burden of rebutting Gain’s entitlement to the defense of charitable immunity solely through her argument that Gain did not receive enough money in contributions or donations to qualify for charitable immunity. Gain now appeals.
As a general rule, the denial of a motion for summary judgment is neither reviewable nor appealable. Arkansas Elder Outreach of Little Rock, Inc. v. Thompson, 2012 Ark. App. 681, 426 S.W.3d 779. The general rule does not apply, however, where-the refusal to grant a summary-judgment motion has the effect of determining that the appellant is not entitled to its defense of immunity from suit, as the right of immunity from suit is effectively lost if a case is permitted to go to trial. Id. This case is, therefore, appealable.
The issue of whether a party is immune from suit is purely a question of law and is reviewed de novo. Thompson, supra. Our standard of review for summary judgment is well settled:
IsSummary 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 moving party is entitled to judgment ás a matter of law. Once a 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. After reviewing undisputed facts, summary judgment should be denied if,' under the evidence, reasonable minds might reach different conclusions from those undisputed facts. On appeal, we determine if summary judgment was appropriate based on whether the evi-dentiary items presented by the moving party in support of its motion leave a material question of fact unanswered. This court views the evidence, in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties.
Jackson v. Sparks Regional Medical Center, 375 Ark. 533, 539, 294 S.W.3d 1, 4-5 (2009) (citations omitted).
The essence of the charitable-immunity doctrine is that entities created and maintained exclusively for charity may not have their assets diminished by execution in favor of one injured by acts of persons charged with duties' under the entity. George v. Jefferson Hospital Association, 337 Ark. 206, 987 S.W.2d 710 (1999). Because the doctrine favors charities and results in a limitation-of potentially responsible persons whom an injured party may sue, we give the doctrine a very narrow construction. Thompson, supra. The burden of pleading and proving this affirmative defense is on the party asserting it. Id. To determine whether an organization is entitled to charitable immunity, our courts consider the following factors:
(1) whether the organization’s charter limits it to charitable or eleemosynary purposes, (2) whether the organization’s charter contains a not-for-profit limitation, (3) whether the organization’s goal is to break even, (4) whether the organization earned a profit, (5) whether any profit or surplus must be used for charitable or eleemosynary purposes, (6) whether the organization depends on contributions and donations for its existence, (7) whether the organization provides its services free of charge to those Uunable to pay, and (8) whether the directors and officers receive compensation.
Thompson, 2012 Ark. App. 681, at 6, 425 S.W.3d at 784. These factors are illustrative, not exhaustive, and no single factor is dispositive of charitable status. Id.
The first and second^ factors are established by Gain’s articles of incorporation, which provide that Gain is a public-benefit corporation under the Arkansas Nonprofit Act of 1993 and that its purposes include providing “integrated, comprehensive services for people with mental illnesses, mental retardation, and other diagnoses' that impair quality of life” and using any funds “for charitable and educational purposes as a nonprofit corpora tion.” See Jackson, supra; Anglin v. Johnson Regional Medical Center, 375 Ark. 10, 289 S.W.3d 28 (2008). Gain also argues that it is a public charity that is tax exempt under section 501(c)(3) of the Internal Revenue Code. Martin argues only that the articles of incorporation do not contemplate providing services to “violent criminally insane” people like McFadden.
Other evidence submitted by Gain as to the third, fourth, and fifth factors supports Gain’s entitlement to charitable immunity. Dennis Wells, Gain’s executive director, stated in his affidavit filed with Gain’s motion for summary judgment that Gain’s financial goal was to break even on a yearly basis. Wells also stated that, since 2011, Gain had not made a profit and had operated at a deficit in each of those years. In the event Gain did make a profit, Wells noted that Gain was required to use the profit for charitable purposes. The articles of incorporation provide that all funds collected shall be applied “to accomplish the purposes for which the corporation is organized.” Martin argues that Gain failed to provide information on how its profits were used in years that it earned profits and why no profits | swere earned in other years, but she offered no evidence to rebut Gain’s assertions.
The sixth factor considers whether the organization depends on contributions and donations for its existence. Wells’s affidavit states that “Gain depends on contributions and donations, along with state and federal financial assistance, Medicaid, and contracts with state and federal agencies for its existence.” Martin argues that Gain was clearly dependent on government grants and Medicaid for its operations, not private gifts and contributions, which totaled only $660 in 2011. Martin contends that the lack of gifts and charitable contributions is an issue that makes summary judgment improper.
In Neal v. Davis Nursing Association, 2015 Ark. App. 478, 470 S.W.3d 281, we held that the nursing home, which received only $100 in donations for two consecutive years, clearly failed to satisfy this factor. In other cases, our supreme court has noted that modern hospitals, with rare exception, would find it extremely difficult to operate wholly or predominantly on charitable donations. Jackson, supra; George, supra. In Jackson, most of the hospital’s operating funds -were provided through Medicare, Medicaid, and individual patients or their private insurers. The supreme court held that the fact that the hospital received most of its funding through sources other than contributions or donations did not negate its overriding charitable purpose.
As for the seventh factor, Wells’s affidavit states that Gain has always provided its services free of charge to those unable to pay. Gain also asserts that it satisfies the eighth factor because, as Wells’s affidavit states, Gain’s officers and directors are all volunteers who receive no compensation for their services. Gain’s bylaws and tax documents support this | (¡assertion. Martin made no argument disputing Gain’s evidence as to these factors.
In addition to the eight factors, we have held that another relevant consideration is whether the charitable-entity form has been abused. See Neal, 2015 Ark. App. 478, at 3, 470 S.W.3d at 283; Watkins v. Arkansas Elder Outreach of Little Rock, Inc., 2012 Ark. App. 301, 420 S.W.3d 477. The flow of money and the relationship between the facility and other service providers can be critical to determining whether an entity is truly charitable or merely a conduit through which to funnel money and divert profits. Neal, supra. Martin, however, has not offered any argument or evidence that Gain conceals prof its or otherwise abuses the charitable-entity form.
As the trial court found, Gain made a prima facie showing of entitlement to summary judgment. Based on the totality of the evidence and the relevant considerations, we cannot agree with the trial court that Martin met proof with proof sufficient to demonstrate a genuine issue of a material fact when she rebutted the proof of only the single factor of dependence on private donations. “No single factor is dispositive of charitable status.” Thompson, supra. Entities with overriding charitable purposes do not lose entitlement to charitable immunity based solely on the fact that they do not depend on donations. See Jackson, supra; Anglin, supra; George, supra. Gain established that it was entitled to charitable immunity, and the trial court erred in denying its motion for summary judgment. We reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
Whiteaker and Hixson, JJ., agree.
. The other named defendants were Arch Insurance Company; Darrell Davis, individually and as case manager and employee of Gain; and Dr. Leslie Smith, individually and as medical director and employee of Gain. Arch was granted summary judgment, and Martin filed an amended complaint. Martin subsequently filed a second amended complaint against several other defendants who were later dismissed. | [
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Smith, J.
This is a suit in replevin to Tecover possession of an automobile, and the controlling question in the case is the one of fact, whether the title to the car had been reserved when it was sold.
This issue of fact was submitted to a jury under instructions of which no complaint is made. There was a verdict and judgment against plaintiff, from which is this appeal, and for the reversal of that judgment it is insisted that the juiy’s verdict was contrary to the undisputed evidence.
The testimony in plaintiff’s behalf was to the following effect. He was a licensed automobile dealer, and operated a garage in the city of Clarksville. He sold the car in question to a man who said his name was • George Young, for the cash consideration of $1,023, and he detailed this transaction as follows: “He (Young) wanted to give me a check when I thought it (the sale) was to be for cash. When I took the check I told him we would not make up the papers until tomorrow when the check cleared, and I would go to the bank the first thing in the morning and get the money. He told me he had to get his men and take them to work at his mill, and that is the reason he wanted the car because he needed transportation.” The court asked the witness, “Is that all?” Plaintiff answered, “He was supposed to come back the next morning and we were supposed to make out the papers. The only thing said about title was that I would deliver title when the check cleared. I took the check and if it had been good and the man had not come back I would have considered the car sold, and would have delivered title to it. I did retain title to the car.” The sixteen year old son of plaintiff, who was employed at his father’s garage, gave testimony to the same effect.
The check was drawn on a bank in Hussellville, a city about twenty-five miles from Clarksville, and was presented for payment there the following morning, when payment was refused for the reason that drawer of the check had no account in the bank on which it was drawn.
The purchaser drove the car to Mena, sold it to a dealer there, and defendant purchased the car from this dealer and received a bill of sale therefor. Defendant had no information that there was any question about the title of the car.
It was held in the case of Home Fire Ins. Co. v. Wray, 177 Ark. 455, 6 S. W. 2d 546, that a contract reserving title to an automobile in the seller until payment of the purchase price thereof need not be in writing, but may rest wholly in parol, and the seller may deliver possession to the buyer on such condition, and a subsequent purchaser without notice of such reservation acquires no title as against the original seller.
Appellant relies upon this case for the reversal of the judgment from which ,is this appeal. But there must have been a contract in which title is reserved and this is the question of fact which was submitted to the jury. To make such a contract it is essential that the reservation of title must have been agreed upon and assented to by both buyer and seller, and the testimony is not very definite that the buyer had assented. Moreover the jury may not have credited the testimony that there was a reserva- . tion of the title. The interest of appellant and his son is such that their testimony may not be treated as undisputed, and this interest makes the truth of their testimony, although not disputed by any witness, a question of fact for the jury. In the case of Skillern v. Baker, 82 Ark. 86, 100 S. W. 764, 118 Am. St. Rep. 52, 12 Ann. Cas. 243, it was held that the general rule that where an unimpeached witness testified distinctly and positively to a fact and is not contradicted, and there is no circumstance shown from which an inference against the fact testified to by the witness can be drawn, the fact may be taken as established and a verdict directed accordingly, is inapplicable where the witness is interested in the result of the suit, or facts are shown which might bias his testimony, or from which an inference might be drawn unfavorable to his testimony or against the fact testified to by him. That holding has been reaffirmed in numerous subsequent cases.
The circumstances of this sale are such that we cannot say that the jury acted arbitrarily in not crediting the testimony of appellant and his son. The car was being repaired and was evidently sold for all it was worth, possibly much more. There is no question but that the check was accepted and the car delivered. Now it is true that appellant testified that he did not intend for the title to pass until the check had been cashed, but that as a matter of accommodation he permitted the purchaser to use the car in carrying certain employees to his mill. He made no inquiry about the location of this mill or where the employees were who were to be transported to it. The jury may have found that appellant made himself too credulous to be believed. The sale was supposed to be for cash, and there was no occasion for a reservation of title in any papers to be prepared the next day after cashing the check. Appellant admitted that he would have considered the deal closed if'the check had been cashed, whether the purchaser returned or not.
The jury heard the witnesses testify, and saw their manner of doing so, and their narrative did not carry conviction, and required a question by the court to clarify it. These facts together with the interest of the witnesses in the case yu'event us from holding that there was no question of fact upon which the jury had the right to pass, and the judgment must therefore be affirmed and it is so ordered. | [
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Griffin Smith, Chief Justice.
Liquor in transit from Louisiana to Mississippi was taken from two motor trucks in Chicot 'County by agents of the State Revenue Department. Its value is said to be in excess of thirteen thousand dollars. When the contraband was brought to Little Rock it was placed in storage. The Commissioner instituted an action in Pulaski Circuit Court to procure an order of confiscation, and Leach intervened. The sole question is whether venue was in Chicot or Pulaski County.
It was stipulated that the transporters were apprehended with two trucks between Lake Village and Eudora. The vehicles were being driven by W. A. Lunceford and Jake Turnbull. Lunceford and Leach were joint owners of the shipment. It is conceded that the transaction was unlawful and that Act 357 of 1941 was not in any respect observed. It is unnecessary, therefore, to enumerate the several concurring acts or omissions that rendered the transaction illegal. Drivers of the trucks were arrested for trial under Act 219 of 1943.
We agree with the intervener as appellant that Turn-bull and Lunceford cannot be tried in Pulaski County on the misdemeanor charge. Venue would lie in any County through which they passed or into which they entered with the liquor. Act 357 subjects to confiscation intoxicants such as those here involved, but before an owner’s rights can be divested there must be proper order of a court of competent jurisdiction. The proceeding is in rem and the Court’s action is independent of criminal charge, made so by the statute. But it is contended by appellant that'the liquor was wrongfully taken from Chicot County, hence an action against it in Pulaski County cannot be maintained.
The applicable Act of 1941 has not been construed and the controversy presents an issue of first impression. Since condemnation must be by a court of competent jurisdiction, answer to appellant’s challenge of the judgment must rest upon a determination that the statutory language is susceptible of but one meaning; or, if ambiguous, the intent may be deduced from the sentence when read in connection with the purpose sought to be attained.
Section three of the Act is a mandate that confiscated liquors be turned over to the Commissioner of Revenues. The Commissioner’s duties are state-wide, and his action in detaining Lunceford and Turnbull and holding the consignment was not an abuse of powe.r. It is reasonable to believe that if the General Assembly had intended to restrict venue to the County where the liquor was taken, it would have said so. As to condemnation Circuit Court has general jurisdiction. Whether Pulaski Circuit was a court of “competent” jurisdiction as contemplated by the Legislature when Act 357 was passed depends upon venue. The term is defined by Webster as the place or county in which the alleged events from which an action arose took place.
The legal fiction is that the event or action or conduct justifying confiscation and condemnation of liquor inheres to the commodity. Its offense is against the people as a whole as distinguished from those in a particular county, judicial circuit, or subdivision of the State. The situation is somewhat analogous to a nuisance which may be abated by destroying the thing that offends, or enjoining those responsible for maintaining it.
The Court did not err in its findings, and the judgment must be affirmed. It is so ordered.
Duties of the Commissioner in respect of enforcement of laws affecting alcoholic beverages are found in § 6 of Act 7 of the Extraordinary Session of August, 1933, Pope’s Digest § 14198; §§ 5, 11, and 12 of Act 69 of 1935, Pope’s Digest §§ 14227. 14233 and 14234; § 8 of Act 109 of 1935, Pope’s Digest § 14180. [The printed volume of the Acts of the Extraordinary Session of 1933 and 1934, p. 20, shows the following paragraph in § 2 of Act 7 of the August 1933 Session “The term ‘light wine’ means the fermented liquor made from malt or any substitute therefor and having an alcoholic content of not in excess of 3.2 percent by weight.” The original engrossed bill reads: “The term ‘light wine’ means the fermented juice of grapes or other small fruits, including berries, and having an alcoholic content of not in excess of 3.2 per cent by weight.” But see Act 108 of 1935]. | [
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Robins, J.
Appellant, a taxpayer of Lafayette county, Arkansas, seeks to reverse a decree of the lower court, by which appellant’s suit, to enjoin the issuance and sale of bonds for the purpose of building a county hospital, was dismissed for want of equity.
In his complaint appellant alleged that appellee, as county judge, was about to sell bonds in the sum of $150,000 to be issued by the county, and that the proposed bond issue was illegal for the following reasons:
1. The county court had failed to prescribe the correct form for the ballot that was used in the election held to authorize the bond issue, in that the amount of tax to be levied was not shown thereon.
2. The sheriff’s proclamation for said election was defective because it did not show that a bond issue was to be voted on or the millage necessary to be levied to pay principal and interest of said bonds.
3. The ballots used in said election did not show that a bond issue was being voted on nor did they show the amount of building tax to be levied.
4. The order approving the plans and calling the election was not sufficient because the location of the hospital was not stated therein.
5. A building tax “similar” to the one to be levied for the construction of the hospital had already been levied for the construction of a courthouse, authorized at an election held in 1940.
6. The county judge was without authority to advertise and sell the bonds for the hospital construction until after the levying court had levied a special building tax for said purpose, and that such levy had not been made.
Appellee, in his answer, did not dispute the allegations in the complaint, but denied that the legal consequences of the facts alleged were as averred by appellant; and appellee also alleged in the' answer: “That it does not require the full five-mill tax to pay off the balance of the courthouse bonds, . . . and that the proposed issue for the county hospital, ... will never require more than a mill and half to a two-mill tax, so that the county has not exhausted its power under Amendment No. 17 to the Constitution as amended by Amendment No. 25, to issue hospital bonds, by the issuance of the outstanding courthouse bonds.”
Appellant demurred to the answer and the case was tried on the pleadings by the lower court, which made findings sustaining each of the contentions of appellee.
The objection of appellant to the form of the ballot used is not well founded. Amendment No. 17, as amended by Amendment No. 25, does not require that the ballot set forth the rate of tax to be levied. Dealing with this identical question in the case of Turnbow v. Talkington, 191 Ark. 492, 86 S. W. 2d 940, we said: “It was not contemplated that the electors should vote for the levy of any particular rate of taxation.” The provisions of Act No. 294 of 1929, requiring that the amount of the proposed bond issue (for refunding) and the amount of the tax to be levied therefor be shown on the ballot, do not apply to an election called to determine whether the proposed courthouse, jail or hospital shall be built. It does not vitiate the election for the rate of tax that it is proposed to levy to be stated on the ballot; and we have said thdt when this is done, a levy exceeding the amount stated on the ballot may not be made. Cisco v. Caudle, County Judge, 210 Ark. 1006, 198 S. W. 2d 992.
Nor is it necessary that the election proclamation or the ballot contain information apprising the voter that a bond 'issue to pay the cost of construction is contemplated. Under Amendment No. 17, after the plans for the building and estimate of the cost are approved by order of the county court, the questions as to whether the building shall be constructed and as to whether the tax shall be levied must be submitted to the voters. If the voters favor both the construction and the tax this authorizes the levy of the tax and the issuance of the bonds.
We conclude that the election proclamation and the ballot form were in substantial compliance with the provisions of the constitutional amendment.
There is nothing in Constitutional Amendment No. 17 that required the county court, prior to the holding of the election to ascertain the will of the voters as to the proposed construction and tax therefor, to designate the site of the proposed hospital. Therefore, the failure of the county court to make such designation did not invalidate the election and other proceedings involved herein.
We are unable to determine from the record before us the rate' of the tax levied by the levying court of Lafayette county in 1940, under the authority of Amendment No. 17, for the purpose of building a courthouse. The complaint alleges that in pursuance of an election there was levied in 1940, to pay for construction of a courthouse, a tax “similar” to the one proposed for the construction of the hospital, but nowhere in any of the pleadings is there any statement of the amount of millage so levied. We said in the case of Cisco v. Caudle, County Judge, supra: “Unquestionably a tax, not exceeding five mills, may be authorized by the electors for the building of a courthouse, a jail, or a hospital, not for each of them, but for any one or all of them. The entire power might be exhausted in the construction of any one of the three, but the amendment does not require that it shall be.”
So, if a five-mill tax was levied in 1940 for the courthouse construction, the power of the county to levy anv further tax under the authority of Amendment No. 17 was thereby exhausted and no other such tax may be levied until all bonds issued to pay for construction of the courthouse have been retired. The fact that it may not be necessary, in order to pay such bonds, to collect the full amount of the levy as made by the levying court would not authorize any increase in the amount permitted to be levied for another building, because we may look only to the order of the levying court fixing the rate to be collected to ascertain the amount of the then authorized tax. Of course, if a tax of less than five mills was levied by the levying court for the construction of the courthouse, an amount of millage equal to the difference between the rate so levied and five mills would still be available for the construction of a hospital.
It is provided by § 5 of Amendment No. 17 that, if a majority vote in the election for the building and for the tax, “then the levying court at any regular, special or adjourned term thereafter held, may levy, ... a special building tax ... to pay for such improvements, . . . ”
By § 6 of said amendment it is provided: “When such tax has been so voted and the amount thereof levied as shown above provided, then [emphasis ours] the county court or judge thereof may issue and sell interest-bearing negotiable bonds or notes . . . ”
It will be seen that the amendment plainly requires that the levy of the tax should precede the issuance and sale of the bonds. It follows that the lower court erred in holding that, the appellee was authorized to advertise and sell the bonds in advance of the order of the levying court making the levy of tax as authorized in § 5 of Amendment No. 17.
The decree of the lower court is reversed and the cause remanded with directions to sustain appellant’s demurrer to appellee’s answer and for further proceedings not inconsistent with this opinion. | [
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Smith, J.
Appellant Swan filed suit to recover damages for loss by fire of certain garage equipment and other personal property. For his cause of action he alleged that appellee, the defendant, had brought upon appellant’s premises a tank, containing gasoline, and had negligently permitted gasoline to escape from the tank, and spread over the concrete floor and negligently permitted said gasoline to become ignited thereby destroying the property, the value of which is here sued for. There was a verdict and judgment for the defendant, from which is this appeal.
Appellant and appellee entered into a verbal contract to the effect' that appellee would furnish for appellant’s use in a garage which appellant operated, a five hundred gallon, three and one-half feet by eight feet, galvanized iron gasoline storage tank owned by appellee. The tank had previously been in use and appellee wished to paint it, and to dry it under cover, so he put the tank on the inside of the garage. He took out the foot valve to see what was in the tank, and some gasoline spilled out on the floor. Appellee testified that about a gallon of gasoline ran out and covered about six or seven feet of the concrete floor. According to appellant, as much as two or three gallons ran out and covered a much larger area than that admitted by appellee.
According to appellant’s testimony, appellee was smoking a cigarette when he came into the garage, but no one testified that he was smoking at the time the gasoline was ignited. However, appellant testified that appellee admitted the day after the fire that he was to blame, and two witnesses testified that appellee told them that he struck a match to light a cigarette, and that the gasoline went up in flames.
Appellee denied this testimony and stated that he did not strike a match and did not do anything else to set the gasoline afire, although he admitted that he had a cigarette holder in his mouth, but he testified there was no cigarette in the holder, and that he quite commonly carried a cigarette holder in his mouth which had no cigarette in it. A witness testified that appellee was 'in one end of the building owned by himself, and that he noticed when he came in that appellee had spilled gasoline on the floor and that about five minutes later he saw fire all over the back end of the building.
Appellant requested the court to give an instruction, numbered one, reading as follows:
“You are instructed that gasoline when exposed to air is volatile and is easily ignited when it comes in contact with a flame of fire. In view of its highly dangerous character it is the duty of every one handling it to use a degree of care to prevent its escape in proportion to the dangers which is his duty to avoid, and failure to use such degree of care is negligence and renders such person liable for consequent damages proximately due thereto.
“So in this case you are instructed that if you find from a preponderance of the evidence that the defendant, M. J. Attaway, negligently permitted or allowed gasoline to escape from his tank and .flow over, upon or adjacent to premises occupied by plaintiff as alleged and that such gasoline became ignited (through the negligence of defendant) and thereby destroyed plaintiff’s property as alleged, then your verdict should be for the plaintiff. ’ ’
The court gave the instruction after modifying it by . inserting the phrase enclosed in parenthesis reading, “through the negligence of defendant,” ami an exception was saved to the modification.
The modification is defended upon the ground that its effect was only to require a finding that appellee’s negligence had caused the fire. But it does more than that. It will be observed that the modifying phrase immediately follows the phrase, “and that such gasoline became ignited,” so that the modification required a finding not only that appellee was negligent in spilling the gasoline, but also that it -was ignited through his negligence.
In this connection the court gave, over appellant’s objection, an instruction, numbered two, reading as follows:
“You are instructed that you cannot presume negligence on the part of the defendant from the mere facts that he allowed gasoline to pour or escape from the tank which he was installing and that said gasoline caught afire from some cause and that said fire damaged or destroyed property of plaintiff (if you do ■ find such facts). The mere happening of an accident is not proof of negligence and does not in and of itself entitle the plaintiff to recover.”
We will consider this instruction, numbered two, and the modification of instruction numbered one, set out above, together. Their effect when read together is to tell the jury that they could not presume, which means find, negligence on the part of appellee from the mere fact that he had allowed gasoline to pour out, or escape from the tank which he intended to install. The fair intendment of instruction No. 2 is that mere proof that appellee spilled gasoline on the floor would not support a finding of negligence. Whether spilling the gas and not removing it was negligence, was a question which should not have been withdrawn from the jury. If this was negligence, the concurring negligence of another, if there was concurring negligence, would not have operated to excuse both, but would rather have had the effect of rendering both liable. The existence of negligence would depend upon the finding whether appellee should have anticipated the probable consequence of spilling the gasoline and not removing it. It is familiar law that where the concurring negligence of two or more persons operates to cause an injury, all are liable, although the negligent act of no one of them alone would have caused the injury.
Now the instruction, numbered two, read in connection with instruction No. 1, as modified, eliminates any question of liability for concurring negligence by requiring the finding that the gasoline' was ignited through the negligence of defendant — appellee.
It cannot be said as a matter of law that appellee was gnilty of no negligence contributing to the damage. Whether he was guilty of any negligence contributing to the injury was a question of fact which should not have been withdrawn from the jury.
It was held in the case of Taggert v. Scott, 193 Ark. 9301, 104 S. W. 2d 816, that one is not liable for a result which could not by the exercise of ordinary care have been foreseen or anticipated. But the converse of the proposition is equally true. One is liable for a result which, in the exercise of ordinary care, would have been foreseen and anticipated.
In 45 C. J. 935, Chapter — Negligence, the statement appears that “Where the intervening agency was of such a nature that it could not reasonably have been anticipated, such agency becomes the proximate cause, even though the injury would not have occurred except for the original negligence.”
We think the record presents the question whether the damage should have reasonably been anticipated, and if so, a case was made for. the jury.
Such is the effect of the opinion in the case of Gibson Oil Co. v. Sherry, 172 Ark. 947, 291 S. W. 66. There the owner of an automobile had his tank filled at a filling station with what was supposed to be gasoline. When it was discovered that the tank had not been filled with gasoline, the car was towed back to the filling station, and the filling station operator began draining off the fluid which contained enough gasoline to ignite. The tank was drained out on the floor, and its contents flowed on the' floor into a gutter into the street about twenty feet away. The car owner knew they were draining the gasoline out of the tank of his car, but he did not know it would run out across the sidewalk into the gutter, and while the gasoline was being drained out of the tank, the car owner walked out on the sidewalk and lit his pipe with a match. He then threw the lighted match into the street, and it ignited the gasoline. The flames followed the track of the gasoline and destroyed the plaintiff’s car. A judg ment was rendered for the value of the car, which was affirmed in the case cited.
It was there said that in view of the highly dangerous character of gas and its tendency to escape, a gas company must use a degree of care to prevent the escape proportionate to the dangers which it is its duty to avoid, and that if it fails to exercise this degree of care, and injury results therefrom, the company is liable, provided the person suffering the injury, either in person or in property, is free from contributory negligence. It was there said further'that “the defendant should have anticipated that someone passing by might' throw a lighted match into the gutter, which would ignite the vapor formed by the gasoline coming in contact with the air and thereby destroy the plaintiff’s automobile. Thus it will be seen that the negligence of the defendant was the proximate cause of the destruction of the plaintiff’s property.”
So, here, we think there was a question for the jury, whether, under the circumstances stated, appellee.should have anticipated that if he allowed the gasoline to spread out over the floor, and did not remove it, someone else might ignite it. In the case cited it was held that the owner’s contributory negligence was also a question for the jury, and that question was submitted to the jury. Here there is no question of contributory negligence.
For the errors indicated, the judgment must be reversed, and it is so ordered. | [
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Grippin Smith, Chief Justice.
The appellants here were appellants in the case decided October 7, 1946. In the former proceeding they were tried on an indictment charging that by the use of force and violence they prevented Otha Williams from engaging in work as a laborer. The charge was based upon a part of § 1 of Act 193 of 1943. Cole et als. v. State, 210 Ark. 433, 196 S. W. 2d 582. The judgments were reversed and the causes remanded for a new trial because testimony was erroneously admitted.
On remand the indictment was quashed and the defendants went to trial on information filed by the Prosecuting Attorney.' The verdicts were that each should serve a year in the State Penitentiary.
For reversal it is argued (a) that evidence does not support the verdicts; (b) Act 193 cannot be construed to apply to facts presented; (c) Section 2 of Act 193 is unconstitutional and its validity has not been determined; and (d) the defendants’ plea of former jeopardy should have been sustained.
First. — (d)—This contention cannot be maintained. The defendants were convicted when tried on the indictment — an indictment they alleged was void because of alleged irregularities in the selection of grand jurors. When the causes were remanded the Prosecuting Attorney elected to proceed by information. In so doing he disregarded the indictment: a result the defendants had sought. The principles announced in State of Arkansas v. Clark, 32 Ark. 231, are in point. See also Johnson v. The State, 29 Ark. 31, 21 Am. Rep. 154. It is cited in the Clark case. Fox v. The State, 50 Ark. 528, 8 S. W. 836, was an appeal from a conviction under an indictment charging false imprisonment.1 Fox had formerly been indicted for robbery, and acquitted. This Court held that in the circumstances of that case false imprisonment was an ingredient of the robbery charge for which Fox had stood trial and as to which he had been found not guilty; hence there could be but one prosecution. Lee v. The State, 26 Ark. 260, 7 Am. Rep. 611, is not contrary. That case was decided when the Constitution of 1868 was in effect, its provision being that “ ... no person, after having been once acquitted by a jury, for the same offense shall be again put in jeopardy of life or liberty.” The Constitution of 1874 is: “ . . . and no person, for thfe same offense, shall be twice put in jeopardy of life or liberty.” Effect of the case is that dismissal of a valid indictment against one who insists upon trial before a jury then sworn amounted to an acquittal, and a plea of former jeopardy was good against a second indictment for the same offense.
Second. — -(c)—We have heretofore construed applicable provisions or sections of Act 193 as cases involving the -legislation were presented. In Smith and Brown v. State, 207 Ark. 104, 179 S. W. 2d 185, it was said that the Act was not open to constitutional objections. That statement, of course, was intended to apply to the facts of the appeal then being considered. In Gurein v. State, 209 Ark. 1082, 193 S. W. 2d 997, the provisions of the Act formerly dealt with were treated as constitutional upon authority of the Smith-Brown case. To the extent that judicial construction of a Legislative Act would deprive an accused person of equal protection of the law, Amendment Fourteen to the Federal Constitution would be violated; but that question is not involved in the dispute with which we are dealing. Our consideration in this respect is directed to the single proposition that force and violence were employed by two of the defendants.
A literal construction of that part of § 2 of Act 193 making it a felony for any person “acting either by himself, or as a member of a group or organization, or acting in concert with one or more persons, to promote, encourage, or aid [in the character of unlawful assemblage there prohibited”] would', it is said, prevent peaceful picketing. The Act does not have this purpose in view, and if it did that part would be struck down by the Courts. Riggs v. Tucker Duck & Rubber Co., 196 Ark. 571, 119 S. W. 2d 507.
Information in the instant case, while charging that Cole, Bean, and Jones violated the quoted provision of $ 2 of the Act, also accused them of using force and violence to prevent Williams from working. The use of force or violence, or threat of the use of force or violence, is made unlawful by § 1.
Third. — (b)—In view of the fact that the judgments as to Cole and Jones are affirmed without invoking any part of § 2 of the Act, it is not necessary to discuss the construction appellants think the facts do not sustain.
Fourth. — (a)—It is admitted that a labor dispute existed and that while the defendants were not “walking picket” they were striking against Southern Cotton Oil Company in Little Rock. Facts incident to the difficulty between Campbell and Williams are set out in the opinion of October 7,1946. There is substantial testimony in the record before us that Cole was on the scene where a group of strikers had gathered to await exit of Williams and others from the mill, five of the employes having remained at work. Cole carried a club, or walking stick. He told Willie Brown to go ahead, that “they” were net after him — but, inferentially, were waiting for Williams. Jones said, “Come on, boys,” and the strikers “flew up like blackbirds and came fighting.” No witness testified to any activity by Bean. Willie Johnson merely saw him standing across the street. Brown ‘ ‘ never did see Bean. ” Elvie Washington merely “saw” Bean, but did not say what he was doing. Bishop Jackson said ‘ ‘ Bean had been there on the corner, but had gone and was about half a block away. ’ ’
These were the material witnesses who testified for the State. References to time and place were directed to the assault upon Williams by 'Campbell. Williams in defense used a pocket knife, inflicting wounds from which Campbell died.
While it is probable that Bean was associated with Cole and Jones in their undertaking, Act 193. is highly penal, and we feel that evidence to sustain a conviction should not rest upon any but a substantial basis.
The judgments as to Cole and Jones are affirmed; as to Bean the judgment is reversed with directions that the cause be dismissed.
Mr. Justice Frank G. Smith and Mr. Justice McHaney think the evidence was sufficient to affirm as to all of the defendants, and therefore dissent as to the reversal of the judgment against Bean; Mr. Justice Robins dissents on the ground that the evidence was insufficient as to all three of the defendants. ' , | [
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Kobins, J.
Appellee brought unlawful detainer proceedings in the. circuit court to recover possession of certain real estate, with a dwelling house thereon, which appellee had rented by the month to appellant, and to recover the sum of $30 rent thereon. Default in payment of rent and service of notice to quit was alleged in appellee’s complaint. Possession was delivered to appellee under writ issued by the clerk.
Appellant filed demurrer to the complaint, and on overruling thereof answered, denying the material allegations of the complaint, and in cross complaint asked damages for improper ouster.
A trial jury returned a verdict in favor of appellee for possession of the property and for $30 rent. From judgment on the verdict this appeal is prosecuted.
I.
It is first contended by appellant that the circuit court had no jurisdiction because under Act 28 of the General Assembly of Arkansas, approved February 6, 1941, exclusive jurisdiction of unlawful detainer suits, where-the rent involved does not exceed $200, was vested in the municipal court and justice of the peace court. The portipn of that Act material to this controversy is as follows: “ ‘When Writ to Issue. When any person to whom any cause of action shall accrue under this act shall file in the office of the clerk of the circuit court of the county in which the offense shall be committed, or, if the rent involved does not exceed two hundred ($200) dollars, in the office of the clerk of the municipal court of any city in said county, or before any justice of the peace of the township where the lands lay, a complaint or statement in writing signed by him, his agent or attorney, specifying the lands, tenements or other possessions so forcibly entered and detained, or so unlawfully detained over and by whom and when done, and shall also file the affidavit of himself or some other creditable person for him, stating that the plaintiff is lawfully entitled to the possession of the lands, tenements, or other possessions mentioned in the complaint, and that the defendant forcibly entered upon and detains the same, or unlawfully detains the same after lawful demand therefor made, such clerk, or justice of the peace, shall issue a writ of possession directed to the sheriff, where the action is commenced in the circuit o-r municipal court, or the constable, where the action is commenced before a justice of the peace, commanding him to cause (if the plaintiff give security according to law) the possession of the lands, tenements or other possessions in the complaint mentioned to be delivered to the plaintiff without delay, and to summon the defendant to appear in court on the return day of the writ and answer the plaintiff in the premises. ’ ’ ’
The Constitution of Arkansas ($ 40 of Art. VII) thus prescribes the jurisdiction of justices of the peace: “They shall have original jurisdiction in the following matters: First, exclusive of the circuit court, in all matters of contract where the amount in controversy does not exceed the sum of one hundred dollars, excluding interest, and concurrent jurisdiction in matters of contract where the amount in controversy does not exceed the sum of three hundred dollars, exclusive of interest; second, concurrent jurisdiction in suits for the recovery of personal property where the value of the property does not exceed the sum of three hundred dollars, and in all matters of damage to personal property where the amount in controversy does not exceed the sum of one hundred dollars; third, such jurisdiction of misdemeanors as is now, or may be, prescribed by law; fourth, to sit as examining courts and commit, discharge or recognize offenders to the court having jurisdiction, for further trial, and to bind persons to keep the peace or for good behavior; fifth, for the foregoing purposes they shall have power to issue all necessary process; sixth, they shall be conservators of the peace within their respective counties, provided a justice of the peace shall not have jurisdiction ivhere a lien on land' or title or possession thereto is involved.” (Italics supplied.)
Authority for creation of municipal courts is found in § 43 of Art. VII of the Constitution as follows: “Corporation courts for towns and cities may be invested with jurisdiction concurrent with justices of the peace in civil and criminal matters, and the General Assembly may invest such of them as it may deem expedient with jurisdiction of any criminal offenses not punishable by death or imprisonment in the penitentiary, with or without indictment, as may be provided by law, and, until the General Assembly shall otherwise provide, they shall have the jurisdiction now provided by law. ’ ’ 1
Under the plain language of the Constitution a justice of the peace “shall not have jurisdiction where a lien on land or title or possession thereto is involved”; and the Constitution authorized the creation of municipal courts with only “jurisdiction concurrent with justices of the peace in civil . . . matters . . . ”
Now the right of the respective parties to possession of the rented premises is the very essence of an action for unlawful detainer.
It follows that, insofar as it purports to vest jurisdiction in justices of the peace and municipal courts to hear and determine actions for unlawful detainer, Act No. 28 of the General Assembly of 1941 is contrary to the Constitution and void. The circuit court did not err in retaining jurisdiction.
II.
Appellant next urges that his demurrer should have been sustained because the complaint fails to show that notice to quit was served on appellant for the proper time. In support of this contention our cases holding that a tenancy from month to month may be terminated only by notice for thirty days are cited. But in the case at bar nonpayment of rent when due was alleged. Under § 6035, Pope’s Digest, it is provided: “Every person . . . who shall fail or refuse to pay the rent therefor when due, and after three days’ notice to quit and demand made in writing for the possession thereof by the person entitled thereto, his agent or attorney, shall refuse to quit such possession, shall be deemed guilty of an unlawful detainer.” So, under the allegation of the complaint (found true by the jury) that there was a default in the rent, it was necessary to allege and prove service of notice to quit for only three days. Parker v. Geary, 57 Ark. 301, 21 S. W. 472; Lindsey v. Bloodworth, 97 Ark. 541, 134 S. W. 959.
Nor is the contention of appellant as to the insufficiency of the description in the notice well’ founded. The property was described in the notice as “the premises owned by me but now occupied by you situated on the ‘Logtown Hill’ road just outside of Van Burén, Arkansas.” It is not disputed that appellant was in possession of a small dwelling house owned-by appellee in the named locality. The notice could not have referred to any other property and therefore was not misleading. “Generally speaking a description of the premises in a complaint for forcible entry and detainer is sufficient if it enables identification of the property.” 36 C. J. S. 1178. “Great strictness and accuracy of description is not required in complaints in forcible entry and detainer.” Fink v. Schmidt (Mo. App.), 245 S. W. 566.
III.
It is next urged by appellant that the complaint was defective in that it was not alleged therein that appellee had ever been in possession or was entitled to the possession of the property. It was alleged in the complaint that the plaintiff was the owner of the property, had rented it to the defendant (appellant) for a stipulated rent, which had not been paid, and that notice to quit had been served on the defendant for three days. This was sufficient.
IV.
For reversal it is further argued by appellant that} his name is not P. A. Lingo, as he was designated in the notice to quit, the complaint and the summons. He does not deny that the notice to quit and the summons were both served on him and that he in fact was renting appellee ’s house. Under the circumstances the mistake, if any, as to his name did not affect his substantial rights, and such a defect must be disregarded under the provisions of § 1466, Pope’s Digest.
Furthermore, appellant did not in any pleading raise this question until after the trial, when lie incorporated his contention relative thereto in the motion for new trial. It was too late then to make such an objection, even if it would have been available in any event.
V.
It is finally urged that the lower court erred in permitting counsel for appellee to ask appellant if he had paid a fine for being drunk. 'As to this the transcript shows: “Q. You say your name is James L. Lingo? A. Yes, sir. Q. You are the Lingo that occupied the house of Jim Myers on Logtown 'Hill and got evicted? A. It says P. A. Lingo. Q. You are the same man? A. My name is James L. Q. You are the same man that was ejected from that house? A. Yes, sir. Q. You are the same man that they had in jail down here last week? Mr. Rains: I object, that was after this suit was filed. The court: He has a right to ask him if he has been in jail. Mr. Rains: The rule is to ask the man if he has been convicted. The court: He may state. Mr. Rains: Save our exceptions. Mr. Starbird: Q. You paid a fine in municipal cpurt for drunkenness about a week ago, is that right? A. Yes, sir, it is right. I paid a fine of $23.50,1 have got a receipt in my pocket, I pay my bills.”.
It will be noted that no objection was made to the question as to payment of fine for drunkenness; and appellant did not answer the question as to his being in jail. Under the circumstances no prejudice could have resulted from the first question; and no objection was linade to the last one.
No error appearing llie judgment is affirmed. | [
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Robins, J.
The chancery court of Garland County on May 12, 1942, in a suit instituted by appellants, Tom McGuire and T. D. Short, against appellee, Ida Levi, and others, rendered decree enjoining appellee, Ida Levi, and other defendants, and their “assigns,” from “operating any boating businesses of any kind or character along Stokes’ Creek” within the limits of the shore line on this stream owned by Ida Levi at the time she sold and conveyed to appellant, McGuire, a portion of her land bordering op Stokes’ Creek.
Appellee, Ida Levi, originally owned land extending for more than a mile along Stokes ’ Creek. She conveyed to appellant, McGuire, one acre with a frontage of 467 feet on the creek and at the same time executed a written agreement whereby she covenanted with McGuire that McGuire should have exclusive “commercial boating privileges” along the shore line of the land retained by Mrs. Levi, so long as McGuire should remain the owner of the land sold to him by Mrs. Levi. This contract appears to have been recorded, but whether it was acknowledged, so as to entitle it to record, is not shown in the transcript before us. Alleged violation of this agreement was the basis of the original Suit, and of the injunction granted therein.
On October 8, 1946, appellants filed a petition, in the same suit, alleging that the appellees, L. Clayton, White Wood Lodge, Mary Bessler, Wig Warn Lodge, W. D. Smithey, Circle L. Banch, T. J. Housley and Edge-water Lodge, who, it was averred had, since the rendition of the above decree, become the “assigns” of Mrs. Levi, were engaged in commercial boating in violation of said decree; and citation for contempt against all of said named appellees was prayed.
Besponses were filed by said appellees, and the response of appellees, Smithey and Housley, in addition to a denial of violation of the injunction by them, contained a prayer that the original decree be vacated. The court heard the matter on oral testimony and, finding that the injunction had not been violated, dismissed the contempt proceedings, but did not vacate the injunction.
Appellants, McGuire and Short, have appealed from that part of the decree by which the appellees were absolved from the contempt charge; and appellee, Smithey, has cross-appealed and urges error in the failure of the court to set aside the injunction.
We have carefully reviewed the testimony and we cannot say that the finding of the lower court that violation of the injunction was not established is against the weight of the evidence. That part of the decree must therefore be upheld under our long established rule that we do not reverse the finding of a chancery court on a fact question unless the finding is against the weight of the testimony.
Appellee, Smithey, in support of his cross-appeal, argues that the agreement entered into by his grantor, appellee Ida Levi, by which she bound herself and her assigns not to engage in commercial boating in the named area, was not such a covenant as would run with the land and therefore was not binding upon appellee, Smithey, and that the original injunction, granted in the decree of May 12, 1942, in so far as it affected assigns of Mrs. Levi, was erroneous and should be vacated as to him.
Smithey was not a party to the original proceeding, but enforcement against him was sought on the ground that the injunction was against Ida Levi and her assigns, and that Smithey, having purchased land in the affected area from Ida Levi, was bound by its provisions. Assuming that Smithey was thus bound by the decree, he could not have it vacated now solely on the ground that it was erroneous — it has become final as to him as well as to all the other defendants. If Smithey is not thus vicariously bound by the original decree, he has no right to attack it. So, in either view of the matter, the lower court properly refused his prayer that the decree be vacated as to him.
Decree of the lower court is affirmed on direct appeal and on cross-appeal. | [
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Holt, J.
April 4,1946, proceeding under the authority of Act 94 enacted by the General Assembly of 1941, appellee,'the State Board of Optometry, instituted this action in the Union chancery court to enjoin appellant from the practice of optometry within the City of El Dorado, Arkansas,” or within the court’s jurisdiction. As grounds for the relief prayed, it was alleged that appellant was practicing the profession of optometry without having procured a license as required by the act.
A general denial was interposed by appellant.
Upon a hearing, the trial court granted appellee’s prayer,, and entered a permanent injunction against appellant. From this order and decree comes this appeal.
For reversal, appellant says that the evidence was not sufficient to show that appellant had no license under the provisions of the act and therefore it was error to grant the injunction. We cannot agree with this contention.
The act is constitutional and valid, Melton v. Carter, 204 Ark. 595, 164 S. W. 2d 453, and reaffirmed in Ritholz v. Arkansas State Board of Optometry, 206 Ark. 671, 177 S. W. 2d 410.
Among its provisions are the following: “Section 3. The Board shall meet at least twice each year; and at its first regular meeting shall elect a President, a Vice-President, a Secretary-Treasurer. A record of its proceedings shall be kept which shall be open for public inspection at reasonable times; and said Board shall make a report 'annually to the Governor showing all receipts and disbursements of moneys, and a summary of all business transacted during the year. . . . Section 5. No person, except those already duly licensed by the Board, shall practice Optometry until he shall have passed an examination conducted by the Board. . . . All persons making application for examination and for registration shall be required to pay to the Treasurer of the Board a fee of Twenty-five Dollars. . . . Section 6. All registered Optometrists shall annually pay Ten Dollars to the Treasurer of the Board as a renewal license fee. . . . Section 8. The Board shall have the following powers in addition to those already conferred above: . . . (5) to bring suit in its proper name to enforce or restrain the violation of any provision of this Act. . . . Section 12. The following Acts are hereby declared to be unlawful Acts: . . . (4) for any person, firm or corporation or partnership not having a license to engage in the practice of optometry. . . .
“Section 15. The violation of any provision of this Act may be enjoined by the 'State Board in the Chancery Courts of this State, even though such violation may be punishable by fine, the intention of this Act being to provide a speedy means of protecting the public which has not heretofore existed. ’ ’
The material facts were to the following effect: Appellant maintained an office in the city of El Dorado in which he maintained optical equipment, such as charts, with which to test eyes, trial lenses, frames and other scientific instruments, which he used in fitting eye glasses. Three witnesses testified that they went to appellant, had glasses fitted, and paid him for these professional services.
Dr. George H. Brown testified that he was secretary-treasurer of the, Arkansas Board of Optometry. He was first appointed in 1935 to this position and served until 1938, when he resigned. He was reappointed in April, 1945, and was in charge of the board’s files and records. He had searched these records and files since the board’s organization in 1913 to the present, and appellant had never made any application for a license, and no license authorizing him to practice had been issued. He exhibited to the court a book containing a roster of all men licensed to practice optometry in Arkansas. The board’s records and files were kept by its secretaries in succession up to date, and were turned over to them under oath. Licensed optometrists pay dues to him as treasurer and appellant has never paid any dues. A man may go thirty, days without paying dues and is then suspended. The record book itself was not introduced in evidence. Appellant did not testify and offered no testimony.
As we view the evidence, it supports the finding of the chancellor that appellant was practicing optometry without a license, contrary to the act, supra, and that appellee was entitled to the injunctive relief prayed.'
While the evidence of Dr. Brown, secretary-treasurer of the hoard, principally relied upon by appellee here to show that appellant had no license to practice the profession of optometry, as the act required, was of a negative nature, it was, we think, sufficient. Dr. Brown as secretary-treasurer of the board had the care and custody of its files and records and was thoroughly familiar with them.
This court in Thomas v. Spires, 180 Ark. 671, 22 S. W. 2d 553, said: “While matters of record must be proved by exemplification of the record, negative matter may be proved by those familiar with the record and papers. Hendry v. Willis, 33 Ark. 833.”
Our holding in this case is also in accord with the general rule as announced in *32 C. J. S., p. 736, § 807, subdivision (d): “Parol evidence is generally admissible to prove a negative, that is, that facts or documents do not appear of record. Where it is sought to prove a negative, that is, that facts or documents do not appear of record, or that as to certain acts or proceedings the record is silent, parol evidence is admissible as primary proof; the record is not higher evidence.”
Finding no error, the decree is affirmed. | [
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Smith, J.
Mrs. Lizzie Lipscomb was tbe admitted owner of a lot in tbe City of G-urdon, which she rented to G-. E. Billingsley. She failed to pay the taxes due on the lot for the year 1936, and it was sold in 1937 to the State, and this sale was confirmed September 4, 1940, in a suit brought by the State for that purpose. The State sold and conveyed the lot to. Billingsley by deed from its Land Commissioner, dated November 28, 1943, at which time Billingsley was in possession as the tenant of Mrs. Lipscomb, and since that time he has refused to pay rent and claims title under his deed from the State.
Mrs. Lipscomb brought this suit to cancel the State’s deed to Billingsley and to recover unpaid rents. The facts just stated are undisputed. Billingsley, in his answer, alleged ownership of the lot under his deed from the State, and prayed that his title be quieted," or if not, that he have judgment for taxes paid and improvements made by him.
Mrs. Lipscomb attacked the confirmation decree, and alleged that the tax sale which it purported to confirm was void for the following reasons: (a) The notice of sale was not published for the length of time required by law; (b) The County Clerk’s Certificate of Publication was not certified; (c) The delinquent list was not kept posted in the Clerk’s office for a year.
Conceding the sufficiency of the proof to establish these defects in the sale, they do not suffice to nullify the confirmation decree as none of them relate to the power to sell for the taxes admittedly due and-unpaid on the lot. Other defects in the sale were alleged, but no proof was offered to sustain those allegations.
The confirmation decree was rendered under and pursuant to the provisions of Act 119 of the Acts of 1935, p. 318. This act has been considered and construed in numerous cases which have resulted in holdings as follows : When the power to sell land for the non-payment of the taxes due thereon did not exist, the sale is void, and the confirmation thereof may be collaterally attacked. If, however, the power to sell existed, but was defectively exercised, the defects may be and are cured by appropriate confirmation proceedings which are not attacked within the time, and in the manner provided by law. See Stringer v. Fulton, 208 Ark. 894, 188 S. W. 2d 129, and the earlier cases on the subject there cited. We hold, therefore, that the confirmation decree .vested in the State the title formerly owned by Mrs. Lipscomb.
The court made no finding on this issue, but did find and decree that the deed from the Land Commissioner to Billingsley was void for the reason that at the time of its execution Billingsley was in possession of the lot conveyed, as the tenant of Mrs. Lipscomb. The court then proceeded to state an account as to betterments, etc., which finding is challenged by both Mrs. Lipscomb and Billingsley, but this finding need not be considered if Billingsley acquired title to the lot by his purchase from the State, notwithstanding his occupancy as tenant at the time of his purchase.
The cases of this and of all the courts uniformly hold, and they are beyond numbering, that a tenant in possession of land belonging to another cannot, while occupying the land, as tenant, acquire for his own benefit a title adverse to that of his landlord, without first surrendering. possession. But Billingsley did not acquire an adverse title. He acquired the landlord’s title which had vested in the State under the confirmation decree. It was expressly held in the early cases of Bettison v. Budd, 17 Ark. 546, and Ferguson v. Etter, 21 Ark. 160, that a tenant in possession, and while in possession, might acquire at a tax sale the title of his landlord.
These cases have never been overruled or qualified. There was a departure, more apparent than real, from this holding in the case of Waggoner v. McLaughlin, 33 Ark. 195, where a tax deed to a tenant was canceled. But the tenant tax purchaser had, in that case, improperly availed himself of the provisions of §§ 172 and 173, Ch. 148 of Gould’s Digest, which gave actual settlers upon forfeited lands a preferential right to purchase. The court there said: “But they (the tax purchasers) availed themselves of a possession which they held as tenants, as a basis to acquire title as actual settlers, which no one else under the circumstances could have acquired against them. They had no right to make use of a possession thus acquired, to found upon it a claim hostile to the landlord. If they had intended that, they should have restored possession, that the landlord might be free to contest the validity of the forfeiture to the State, and have the advantage of possession.”
That the court did not intend and did not in fact, overrule the earlier cases bolding that a tenant might acquire his landlord’s title through a tax sale is clearly shown by the opinion subsequently rendered in the case of Pickett v. Ferguson, 45 Ark. 177, where it was said: “On the other hand, it is settled law in this state that a tenant, who is under no obligation to pay the taxes, may purchase at tax sale the lands of which he is in possession and may set up such title, and the sale, if otherwise valid, extinguishes the landlord’s title and cuts off the lease. Bettison v. Budd, 17 Ark. 546; Ferguson v. Etter, 21 Id., 160.”
This holding in the case of Pickett v. Ferguson was reaffirmed in the recent case of Ray v. Stroud, 204 Ark. 583, 163 S. W. 2d 173, and the still later case of Sims v. Petree, 206 Ark. 1023, 178 S. W. 2d 1016 is to the same effect.
The case chiefly relied upon by appellee for affirmance of the decree from which is this appeal is that of Casey v. Johnson, 193 Ark. 177, 98 S. W. 2d 67, but there is no intimation in that opinion of any intention to overrule or impair the holdings in the earlier cases. The case of Casey v. Johnson is somewhat similar to the case of Waggener v. McLaughlin, supra, in that it was necessary for the tenant to use the possession which he had as a tenant to perfect his title as a donee and obtain the donation deed.
The decree of thq court below will, therefore, be reversed and the cause will be remanded with directions to dismiss the complaint and to qniet appellant’s title as against appellee, inasmuch as it is not contended that appellant was under any obligation to pay the taxes for the non-payment of which the lot was sold to the State. Hunt v. Gaines, 33 Ark. 267. | [
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McHaney, Justice.
Appellant brought this action against appellees, who are respectively the Commissioner of Revenues for the State of Arkansas and the Sheriff of Union county, to cancel a distraint warrant issued by the Commissioner for the collection of additional income taxes for the years 1939 and 1940 in the sum of $432.95, and which was delivered to the Sheriff for collection by levy as for an execution, and to enjoin them from the collection of any additional taxes. He alleged that, in the year 1911, he entered into a contract with his wife, Lizzie LeCroy, “whereby in selling all real property wherein the wife had an inchoate right of dower, and when she joined, released and relinquished same, she would receive one-third of the net proceeds derived from any and all sales in lieu of and in full compensation for her inchoate dower rights so released. Same to become her sole and separate prop erty, which contract has been fully complied with and fully performed.” He sets out a number of real estate sales by him during 1939 and 1940 wherein his wife joined to release and relinquish her dower rights and in which she was paid one-third of the net proceeds of said sales. One such sale is particularly stressed, it being an oil lease sold to C. H. Murphy, Jf., on June 20, 1940, subject to the wife’s dower rights and which rights were released to Murphy by her on September 30, 1940, by separate instrument and she received from Murphy $400 therefor. He alleged that, notwithstanding no part thereof was paid to or received by him, the Commissioner was holding that it all belonged to him and charged him with same contrary to law, and that he had paid all taxes on income properly chargeable to him.
Appellees answered denying appellant’s right to claim credit on his net income for the amount of such sales of real property so delivered to his wife. They alleged that more than 30 days had expired after appellant had been notified by the Commissioner of the assessment of the additional tax, and that no hearing had been requested by appellant and no appeal taken therefrom, and that the court was without jurisdiction. A temporary restraining order was issued.
Trial resulted in a finding by the court that appellant and his wife entered into the oral agreement as alleged by him in 1911, and that said agreement was faithfully and fully complied with since said date, but also found that the temporary order should be dissolved and that the complaint should be dismissed for want of equity. A decree was entered to this effect and this appeal followed.
For a reversal appellant contends, first, that he has the right to contract generally with his wife in regai to her inchoate right of dower in his real estate and that any income ‘ accruing to her under such contract is not taxable income to him; and, second, in the absence of any such contract, where he sells property subject to her dower interest and she later, by a separate instrument, releases her rights to such purchaser and receives pay therefor direct from the purchaser, the money paid to her is not taxable to him. These are the principal questions raised by this appeal.
We cannot agree with appellant on either contention. A wife is not endowed of her husband’s real estate. Only the widow is so endowed. Section 4396 of Pope’s Digest provides that: “A widow shall be endowed of a third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage, unless the same shall have been relinquished in legal form.” Until her husband’s death the wife.’s right of dower is inchoate, that is, it is contingent upon his death during her lifetime. While it is a valuable contingent right, it is not such an interest in her husband’s property as may be conveyed by her. It may only be “relinquished” by her to her husband’s grantee in the manner and form provided by statute. Section 1815 of Pope’s Digest provides: “A married woman may relinquish her dower in any of the real estate of her husband by joining with him in the deed of conveyance thereof, or by a separate instrument executed to her husband’s grantee or any one claiming title under him, and acknowledging the same in the manner hereinafter prescribed.” In § 1834 “manner hereinafter prescribed” is set out, in that by “voluntarily appearing before the proper court or officer, and in the absence of her husband declaring that she had of her own free will signed the relinquishinment of dower for the purposes therein contained and set forth without compulsion or undue influence of her said husband. ’ ’
Act 27 of 1939 authorizes married women to relinquish dower and waive homestead in the husband’s lands, minerals or timber to the husband’s grantee by power of attorney properly executed.
There is no statute in this State which authorizes a wife to convey her dower rights to anyone. She can only relinquish such rights, not convey, and then only to her husband’s grantee or one claiming title under him.
In Smith v. Howell, 53 Ark. 279, 13 S. W. 929, Judge Hemingway for the court said: “The inchoate right of dower during the lifetime of the husband is not an estate in land — it is not even a vested right, but ‘a mere intangible, inchoate, contingent expectancy’. The law regards it as in the nature of an incumbrance on the husband’s title, and the statute cited provides a means whereby he may convey his title free from the incumbrance. She joins not to alienate any estate, but to release a future contingent right. The grantee must look alone to the husband’s conveyance for his title. The relinquishment can be invoked for no purpose but to aid the title passed by his deed which contains it; therefore, when that title fails, the relinquishment becomes inoperative.” See Robbins v. Robbins, 181 Ark. 1105, 29 S. W. 2d 278, where we held that dower does not ripen into an estate or an interest therein until the husband’s death. In Tatum v. Tatum, 174 Ark. 110, 295 S. W. 720, 53 A. L. R. 306, in a suit to impound a portion of the proceeds of oil runs accruing to an undivided interest in lands formerly owned by her husband and conveyed by him in which she did not relinquish her dower right, we held that she had a contingent interest which should be protected if it could be done consistent with equity. This rule was reaffirmed in B. H. & M. Oil Co. v. Graves, 182 Ark. 659, 32 S. W. 2d 630. These and other cases hold that the right of dower is a valuable right. In Hershey v. Latham, 46 Ark. 542, it was held, headnote 1: “A wife’s relinquishment of dower, or cession of any other rights of property, is a sufficient consideration for a settlement upon her by her husband out of his own property,” in a suit by a creditor of the husband claiming a fraudulent conveyance to the wife. In Skelly Oil Co. v. Murphy, 180 Ark. 1023, 24 S. W. 2d 314, we held that, “Since the wife’s inchoate right of dower is not a vested right in property, it is not protected from legislative impairment or destruction by the constitutional guarantees for the protection of property or the rights of citizens, and it is not an impairment of the obligation of a contract to change or abolish it before the right becomes vested.” Headnote 1. This hold ing was made under Act 315 of 1923 which barred the wife’s dower in certain cases.
So, we conclude that, while appellant had the right to contract with his wife to pay her a portion of the sale price of real property sold by him to induce her to relinquish her right of dower therein to his vendee, he did not thereby change the law of dower as enacted by the Legislature and construed by this court. His payments to her under such contract are nothing more than gifts. Of course, appellant could give to his wife all or any part of his income from such sales, but even so, the income would be taxable to him just as though he had not given it away.
The same thing is true with reference to the sale to Murphy, above mentioned. She executed a separate instrument to Murphy relinquishing her dower rights to him in exact conformity with the statute, some three months after appellant had executed the lease to Murphy, for a consideration of $400 cash. By this instrument she conveyed no estate in the land. Her husband had conveyed the title to the land by his lease. She simply released and relinquished her possibility of dower to his grantee. Therefore, the profits arising from the transaction must be held to be income accruing to appellant and the $400 paid to her as a gift from appellant.
Another question argued relates to the correctness of the amount of the additional tax levied. We think appellant lost his right to question the amount by riot proceeding under the provisions of 14054 and 14055 of Pope’s Digest which provide an ample remedy for the taxpayer under the income tax law, and 14055 prohibits the issuance of any injunction, writ or order to prevent or stay the collection of income under said Act, which applies to the assessment of additional taxes also. Section 14049. ’See McCarroll, Commissioner v. Gregory-Robinson-Speas, Inc., 198 Ark. 235; 129 S. W. 2d 254, 122 A. L. R. 977.
The decree is, accordingly, affirmed. | [
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G-rifein Smith, Chief Justice.
The question is whether it was proper for the Court to direct a verdict for the plaintiff.
Essential facts, as shown by stipulation, are that on January 11, 1943, American National issued its policy of insurance on the life of Henagan A. Kidd for $2,000 with Mattie M. Kidd as beneficiary. The quarterly premium of $15.44 due January 9, 1946, was paid. However, there was failure to meet a similar obligation due April 9th, nor was it discharged during the grace period. At default the cash surrender or loan value was $38. The insured died May 19, 1946, from accidental injuries.
The trial Court’s view was that a duty rested upon the insurer to apply and charge as a loan an amount equal to the delinquent premium. Terms of the policy, introduced as an exhibit, must control.
It provides that after premiums have been paid for three years loans will be made on security of the policy at the rate of $19 per one thousand of insurance. An option is that the Company may defer a loan (except where proceeds are to be applied in payment of premiums) for a period not in excess of ninety days after application is made.
In directing the jury to find for the plaintiff, the Judge held that “even though the contract does not mention it,” a duty rested upon the Company to use any funds in its possession belonging to the insured “to extend the life of this insurance.”
Correctness of this ruling depends upon what the contracting parties had agreed to when the policy was written.
Under the general heading “Non-Forfeiture Provisions” a subsection of the policy reads: “Paid-up Insurance. If the cash value [as heretofore defined] is not selected this policy shall automatically continue as nonparticipating paid-up life insurance payable in a single sum at the same time and under the same conditions as this policy, except as to premium payments, for the amount as shown in the ‘Table of Guaranteed Values.’ But any indebtedness on this policy will reduce the amount of paid-up insurance in such proportion as the indebtedness bears to the cash value at the due date of the premium default.”
The table of guaranteed values then follows, printed and typewritten quite prominently, after which loan provisions appear as a part of the same sheet. We are not concerned with actual loans. It was stipulated that no application was made, nor was there an attempt to revive the policy. There was likewise an agreement that the fund conditionally available was sufficient to purchase $106 in paid-up insurance, and this amount was tendered prior to suit. Each side moved for a directed verdict and neither requested any other instruction.
Although the policy became effective January 9th, appellee treats the contract as one requiring “quarterly” premium payments, thus applying a policy year as distinguished from a calendar year. This is unimportant. From language creating loan privileges not in excess of the cash surrender value, appellee undertakes td rationalize that the term “default” has reference to the period beginning with expiration of the grace period rather than due date of the premium; hence, it is contended, the addition of thirty-one days to April 9th would carry the insurance to May 11th. Since death did not occur until May 19th, “ . . . [the insured] had thirty-one days after default to exercise the available option.”
We think that a reading of all applicable phrases of the policy requires the construction that ‘‘ default” means a failure to-pay premiums when due. To this default was added a grace period of thirty-one days. Nor are we left to speculate on construction in this respect. Section 13 of Privileges and Provisions expressly states that “If any premium is not paid on' or before the date it falls due, such premium is in default.” Payment might have been made within thirty-one days from the default period, but it was not.
This presents the question, What was the status after the grace period had terminated as expressed by terms of the .contract? The non-forfeiture provisions make answer. First, the policy may be delivered to the Company and it will pay the insured the cash surrender value. Secondly, a loan may be applied'for. If proceeds are to be used in paying premiums it must be effectuated expeditiously, but if not intended for application in that manner, such loan may be deferred for ninety days after application is made. But, if the cash value is not selected —and, of course, application for a loan would exclude the presumption of such selection — “ . . . this policy shall be automatically continued as non-participating paid-up life insurance.” The amount of insurance (in this case $106 by agreement) is that purchasable under the terms of the particular policy when the loan or cash surrender value is applied as a single premium.
Extended insurance and paid-up insurance were discussed in National Reserve Life Insurance Co. v. Cole, 194 Ark. 433, 108 S. W. 2d 471, where it was said that although the two are distinct, each is paid up. Extended insurance carries with it the principal amount of the policy (less contractual deductions) for a determined period, while paid-up insurance is for the amount existing values will'purchase, but it is in effect during the full period of the insured’s life without payment of additional premiums.
The principal involved in the case at bar was presented in Life & Casualty Insurance Co. of Tennessee v. Goodwin, 189 Ark. 1073, 76 S. W. 2d 93. The provision construed was that if default in payment of premium should be made after the policy had been in force three years, it would “automatically at time of lapse be unconditionally commuted to non-forfeitable paid-up insurance. . . . ” There was a subjoined option, referred to in language deleted from the preceding quotation, permitting the insured to receive the policy’s cash surrender value or paid-up insurance, provided demand should be made within ninety days from commutation. Effect of the Goodwin decision is to say that where a contract creates options, but expressly provides that upon failure to exercise the right of selection a stipulated result attends and becomes binding upon the insurer, neither the insured nor his beneficiaries can thereafter complain that a different treatment should have been given, when circumstances disclose that action on the part of the insurer would in the particular case have^ been more advantageous to a beneficiary.
Appellee contends that it would be unjust and inequitable for a court to permit the Company to enforce the contractual language relating to automatic commutation, hence there can be no lapse or forfeiture. It is trite to emphasize the rule that equity follows the law; and where legally permissive relationships have been established between competent parties by a contract which defines reciprocal duties and obligations, we are not at liberty to substitute for these commitments a new obligation, and then impose it as an equitable variant merely because one of the principals neglected to do something that developments proved would have been more advantageous.
The judgment is reversed and the cause is remanded with directions to enter judgment for the item of $106 only.
The paragraph relied upon to support this argument is: “After three full years premiums have been paid hereon and within thirty-one days of default in the payment of any subsequent premium, one of the following equivalent options, subject to any indebtedness hereon, may be elected by filing a written request with the Company at its home office, accompanied by the policy.” | [
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Smiti-i, J.
An indictment against appellant charged him with the offense of possessing beer, for purposes of sale, in a prohibited district. In a response to a motion filed by appellant, the prosecuting attorney filed a bill of particulars which recited that he was unable to state the actual percentage of alcohol by weight of the beer, but that a label on each bottle of the beer recited that it contained not more than five per cent, of alcohol by weight.
A stipulation was entered into by counsel for the state and for appellant reading as follows: “At this time it was stipulated by and between the parties that the beer and ale in question in this case contains not less than one-half of one (1%) per cent, alcohol by weight and not more than five (5%) per cent, alcohol by weight; and that Polk county is known as a ‘dry county,’ the people of the county having by a majority vote voted against the manufacture and sale of intoxicating liquors under Initiated Act 1 of 1942, the election being held during the month of April, 1946.”
Appellant was found guilty upon his trial, and fined $250, and from that judgment is this appeal.
Two questions are presented for decision: First, whether it is a violation of the law to have possession of beer, in dry territory, containing more than one-half of one percent., but less than five per cent, of alcohol by weight, for purposes of sale; and second, if so, whether appellant had such possession.
The beer was found in a building occupied by Post No. 4451 of the Veterans of Foreign Wars, in the city of Mena, in Polk county, which, as stipulated, had become “dry territory” pursuant to an election held under authority of Initiated Act No. 1 of 1942, appearing at page 998 of the Acts of 1943.
In § 2 of this Act, it is provided that: ‘ ‘ Intoxicating .liquor is hereby defined to include any beverage containing more than one-half of one per cent, of alcohol by weight,” and § 6 of the Act recites that: “Itis hereby expressly declared that this Act shall be cumulative to the liquor laws now in force in this state, . . .”
One of the laws on the subject is found in paragraph C of § 14134 of Pope’s Digest, which reads as follows: “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 liquor with intent to sell the same in violation of this Act, . . . shall be guilty of a_ misdemeanor . . .” We conclude therefore that it is a violation of the law for one to have beer, or other intoxicating liquors in his possession in dry territory for purpose of sale. The remaining question is whether appellant had possession of the beer in question for purpose of sale. If the beer had.been or was being sold, the implication is that it was possessed for that purpose. Was it so possessed?
Pursuant to a legal search warrant, the chief of police and other officers of the city of Mena raided the building occupied by the Post. When the officers entered the building they found only appellant present. He was the Post Commander. The "officers found thirty-six cases of ass'orted beer and ale, .and a quantity of beer which had been placed in the ice box to cool. A number of empty bottles were found inside the building, and a number of broken bottles were on the floor and around the tables in the room. There was found also some slot machines having money in them, and appellant proposed, when the officers took charge of the machines, that if the machines were not disturbed, he, appellant, would have the place cleaned up, and that they would, not have any more beer there. The officers testified that appellant stated that they were selling the beer and operating the slot machines for the purpose of raising money for a building fund for the Post, but the Post Commander denied making that statement.
Appellant admitted, however, that he was the Post Commander, and that the beer had been bought in Ft. Smith and hauled by truck to Mena, and had been paid for out of the Post fund which had been started by the sale of an automobile. He further testified that the beer had been bought for the use of the members of the club, although he admitted that one person, not a member, had drunk beer in the clubroom. There was a building fund box located on the bar, where the beer was served, in which box persons served dropped as much as a quarter of a dollar, although he testified that this was not required and was not always done, and that members sometimes drank beer.without making a deposit. But it is fairly inferable that members were not expected to sponge on the club.
This witness also testified that the end sought was to augment the building fund, and it is certain, and no testimony was required to prove, that this could not be done by furnishing free beer to the Post members or visitors. Dances had been given to increase the building fund, but these had not been profitable, and the witness candidly admitted that, but for what he • called contributions to the building fund, the beer would not have been provided.
It is not intimated that appellant derived or expected any personal gain or emolument from the disposition of the beer, but this Avas not essential to constitute a sale. If he aided, assisted in making and participated in the sale, he Avas as much responsible and liable as if the sale had been made for or by him, or for his account; nor may he escape liability because he Avas not the owner of the beer, as ownership Avould be and is unimportant if he participated in the sale. Bird v. State, 175 Ark. 1169, 299 S. W. 40.
The law may not be evaded by resort to subterfuge designed to conceal the character of the transaction, and as no one testified that the beer had been bought to be given away, the court sitting as a jury was warranted in finding that it had been bought to be sold to augment the building fund, and that the contributions made by depositing money in the box on the bar, placed there for that purpose, was the method by which the sales were made. There could be no higher proof that the beer was possessed for purposes of sale, than the proof of the fact that it was sold, and the judge was warranted in finding that the club headquarters was, within the meaning of the portion of § 14134, Pope’s Digest, above quoted, “a place for another to secure” the beer possessed, which could not be sold in Mena without violating the law.
The judgment is therefore affirmed. | [
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Smith, J.
John Robert Dotson, who was the nominee of the Republican Party for the office of Sheriff of Madison county at the general election held in that county on November 5, 1946, was opposed for that office by Berry Denney, the Democratic candidate. Lester Keck, W. J. Ledford and Elmo Ritchie were the election commissioners having supervision of the election. The first named was the representative of the Republican Party, while the two latter were the Democratic election commissioners.
After the election had been held and the commissioners began to count and compile the returns of the election, and after compiling all the returns except the absentee ballots, it was found that only a few ballots separated the candidates, and that the absentee ballots, of which there were about two hundred, would be decisive of the election. They counted and have certified fifty-one of these, of which the Republican candidate received thirty-one votes, and the Democratic candidate, twenty votes, but they made no count and filed no certificate as to the remaining one hundred fifty absentee ballots. The Republican election commissioner demanded that the remaining ballots be counted and certified and when that demand was refused Dotson filed suit in the circuit court praying that a writ of mandamus issue, requiring the commissioners to count and certify all the regular absentee ballots. The Republican commissioner filed an answer in which he admitted the truth of all the allegations contained in the complaint, and specifically admitted that the Democratic election commissioners “are refusing to consider, count or certify said legal ballots in said ballot box.” The Democratic commissioners filed an answer in which they averred that “all the legal ballots cast al-e now in the Absentee Ballot Box for Madison county, Arkansas, have been counted and the tabulation is now complete; that they are now ready to certify said legal ballots in said Absentee Ballot Box, that they have complied with the law and are ready and willing to further comply with the law and certify said count of all true and legal ballots as the true returns of all the legal votes cast and now in the Absentee Ballot Box in and for Madison county, Arkan sas; that their tabulation of said election is now complete, that they are now ready to certify the result of said election. ’ ’
After the writ of mandamus was denied they did certify to the 'Secretary of State that fifty-one absentee ballots had been cast. According to the undisputed testimony there, were two hundred ballots in the absentee ballot box. Section 4780, Pope’s Digest, requires the county election commissioners to prepare ballots for the use. of absentee voters, and § 4781 prescribes the affidavit which the voter must execute to accompany his ballot, and § 4782 provides how the ballot may be transmitted to and be returned by the voter to the county clerk of the county in which the voter resides, who does not personally cast his absentee ballot. These section's were amended in 1941 in respects unimportant here to recite. By § 4797, Pope’s Digest, it is made perjury to willfully swear falsely as to any statement required to be made in those sections of the statute.
Section 4783, Pope’s Digest, reads as follows: “All such ballots as provided in §§ 4781 and 4782 shall be by the county clerk given to the county election commissioners in cases of general elections; said ballots shall be opened and if found regular, shall be counted as cast and registered as a part of the total vote for or against all candidates or measures submitted in any special or general election.”
This section defines the duties and limits the power of the election commissioners in counting those ballots which have not been challenged, as authorized by § 4795, Pope’s Digest, which reads as follows: “The vote of any absent voter may be challenged for any cause, and the board of election commissioners, canvassing board of said primary party or chairman and secretary shall have all the power and authority by law as' judges of election of primary to hear and determine the legality of such ballot. ’ ’
Their duty where no ballot was challenged, and none was challenged here, except by the commissioners themselves, who held no hearing to determine that question, is defined by § 4783, Pope’s Digest, which has been copied above.
Election commissioners thus serve a dual capacity. First and primarily as a canvassing board, and where no voters have been challenged, as in this case, their duties are purely ministerial. They have the duties of election commissioners in canvassing absentee ballots and while acting in that capacity they have the power and authority of election judges to hear and determine the legality of the challenged ballots. They have and are given no power to arbitrarily disfranchise an elector who has cast a ballot, regular on its face, and may do so only after a hearing and determination of its 'legality.
The elector has the right to be heard in defense of his ballot before he is disfranchised, and the commissioners did not accord that right. It was proposed that the ballots, which were at hand, be examined in open court. This request was denied. This hearing and determination should have been held there, or at some other place, before a qualified elector was denied the highest and most valuable right of his franchise, that of exercising the right to vote and to have his vote counted. As has been said, this was not done. The commissioners refused this hearing and for reasons which they did not disclose except to say they were satisfactory to themselves, they counted and certified only fifty-one of the absentee ballots.
Now the testimony shows that some of the ballots in the absentee ballot box were not “regular,” that is they had not been prepared as required by the section of the statute above cited, but it does not appear how many of such ballots there were. These were properly excluded from the count as only regular-ballots of qualified electors may be counted, but all regular ballots of such electors should have been counted. The commissioners were without authority to exclude any regular ballots of qualified electors. What are regular ballots? The obvious answer is that they are those which are prepared and cast as substantially required by law. Did the commissioners count all the regular ballots'? The ¿undisputed testimony is that they did not.
Commissioner Ledford was the principal witness for himself and his Democratic associate, and when asked why he had not counted the one hundred fifty ballots which were rejected he answered, “Well there are several reasons, some being illegal on their face.” When asked in what respect, he answered, “Well probably the affidavit was not properly signed or made out. Others had not been signed. There are a number of reasons that those were rejected.” In other words, the majority of the commissioners passed upon the question of the legality of the ballots as well as their regularity in an ex parte manner. The law gave them the power to pass upon regularity from the face of the ballot, but did not give them the power to pass on their legality without a hearing and determination of that question.
The testimony of the Republican election commissioner was not denied that a considerable number of the ballots were rejected and not counted because of some opinion of the other commissioners “not based on the formality of the face of the ballot, or of the affidavit.” The commissioners therefore failed to discharge a ministerial duty which the law imposed on them, as they should have counted all the ballots which were regular, and not challenged, in as much as they were without power to pass upon their legality, without a hearing on the question, which decision would require a consideration of such questions as the age and place of residence o,f the voter, etc.
The trial court was evidently of the opinion that the commissioners had the power to pass upon the question of the legality as well as the regularity of the ballots in an ex parte manner. That this is true is reflected by the order of the court denying mandamus, which reads as follows: “The court’s order will be to the effect that the commissioners will be required to certify the results of the election within the time prescribed by law. As I understand it, there is no dispute about that part of it. They can certify what they consider to be the legal bal-, lots in this particular instance, along with all the other matters that they have before them as commissioners, the absentee ballots being the only matter of dispute here.” Pursuant to this decision the commissioners certified to the Secretary of the State fifty-one ballots which they determined were legal ballots, but made no count or certificate as to the remainder, and from that action, approved as above stated by the court, is this appeal.
This case is somewhat similar to the recent case of Carroll v. Schneider, ante, p. 538, 201 S. W. 2d 221, in that we are deciding a question which has become moot. In that case it was said: “It is urged, however, that the case is now moot, and should be dismissed for that reason. It is moot in the sense that we cannot now afford appellant petitioner any relief, but is not moot in the sense that it is important to decide a practical question of great public interest, which may arise in any future election.” For the reason stated we there decided the question presented, although the case was moot, and for the same reason we now decide the question here involved.
This is not an election contest, nor was the case of Carroll v. Schneider, supra. It is a suit to compel the election commissioners to perform a ministerial duty which they failed to perform, when without hearing or detemination of the legality of the ballots they refused to count them for “various reasons” which were not stated.
It has been many times held that mandamus is an appropriate remedy to require an officer to perform a duty purely ministerial. It does not lie to control the discretion of the officer, nor does it lie to correct an erroneous decision already made. But he may be directed to perform his duty and to do so in the manner required by law.
Here the commissioners had not certified the results of the election when the suit was filed, although they testified that they were ready and prepared to do so. The request was made and denied that all the ballots Which were at hand be exaanined in open court, and that the legal ballots be counted in the presence of the court. There may have been no authority for counting the ballots in the presence of the court, but there was full authority for requiring the commissioners to count and certify all the regular ballots cast by qualified electors. ' This they had not done and did not offer to do, as they asserted the right to pass upon questions other than that of the regularity of the ballots without a hearing and determination of the facts, and that action was approved by the court.
There being no challenge of any absentee ballot as contemplated by § 4795, Pope’s Digest, the duties of the election commissioners were those merely of a canvassing-board and were purely ministerial and these duties they neglected and refused to perform as required by law.
That the duties of canvassing boards are purely ministerial has been definitely and frequently' decided by this court. Howard v. McDiardmid, 23 Ark. 100; Patton v. Coates, 41 Ark. 111; Willeford v. State, 43 Ark. 62; Wheat v. Smith, 50 Ark. 266, 7 S. W. 161; Pitts v. Stuckert, 111 Ark. 388, 163 S. W. 1173.
This is not a case where the validity of any absentee ballot has been challenged, which might have been done under the authority of § 4795, Pope’s Digest, in which event the election commissioners would have had the power and authority of election judges to hear and determine the legality of the ballot challengedbut is a case where without challenge, the commissioners have for reasons largely undisclosed, but satisfactory to themselves, counted only a fourth of the absentee ballots. In the absence of a challenge the ballots should have been counted, if found regular, the duty of the commissioners in that circumstance being that of a canvassing board.
The time for filing an election contest is regulated by statute and the result of this opinion cannot extend, or enlarge the time for filing such contest. If this election has not been contested, the decision of the question here presented would be moot, as it was in the Carroll case, except for the public interest and importance of declaring the correct practice to be followed in holding future elections.
Having jurisdiction to decide the question here presented, although no relief may inure to appellant, it is ordered that all costs be assessed against appellees.
McHaney, Robins and Millwee, JJ., dissent. | [
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KAREN R. BAKER, Associate Justice
hOn July 2, 2015, Arthur Hicks, Jr., was convicted of capital murder by an Arkansas County jury. Pursuant to Ark. Code Ann. section 5-10-101(c)(1)(B)(2)(Repl. 2013), the parties agreed to allow the circuit court to sentence Hicks. The circuit court sentenced Hicks to life imprisonment with the possibility of parole in 28 years and an additional seven-years incarceration for the use of a firearm in the crime. Hicks timely appealed to this court. On April 7, 2017, we ordered rebriefing because the Attorney General failed to certify its review pursuant to Rule 4—3(i) of the Arkansas Rules of the Supreme Court. Subsequent to this order, the parties have filed additional briefs and the case is ripe for review.
From his conviction and sentence, Hicks presents two issues on appeal: (1) the circuit court erred in permitting hearsay testimony of the emergency medical technician under a hearsay exception and (2) the circuit court erred in denying Hicks’s motion for directed |2verdict because the evidence was not sufficient to sustain the conviction for capital murder.
On July 30, 2014, Hicks was charged with one count of capital murder in the July 22, 2014 death of Daniel Ruffin. The State’s theory at trial was that Hicks, in the course of committing or attempting to commit a robbery, caused Ruffin’s death. Vera Strange, Ruffin’s mother, testified that she, her husband, and Ruffin lived at 1311 South Maple Street in Stuttgart. Ruf-fin’s routine was to come home from his job at Wal-Mart, put his headphones on, and walk his dog, Lazarus, on the same path on the streets around their home every day. Ruffin’s walks included passing the business that his mother and her husband owned, S & W Produce, which was less than a block from their home. Strange further testified that on the day of the crime, Ruffin left their home after work with his headphones on to walk his dog. Strange testified that after Ruffin left to go on his walk, she went to visit a friend at the hospital. While at the hospital, Strange received a phone call that Ruffin had been shot.
Radek “Eric” Sanek, Ruffin’s neighbor, testified that he lived at 1304 South Maple Street, and on the day of the crime passed three boys walking south on Maple as he drove home between 4:30 and 5:00 p.m. Sanek identified Hicks as one of the boys he passed. Sanek testified that he was unloading cedar wood from his car and heard a gunshot. He further testified that he looked down the street and saw Ruffin holding his chest running toward his home screaming “Oh my God. Oh my God.” Sa-nek and his wife ran to help Ruffin and found him bleeding, holding his chest, and lying underneath his truck. Sanek testified that he called 911 as his wife talked to Ruffin and tried to keep him calm until the paramedics arrived.
IsNext, Stuttgart Fire Department Fireman and Emergency Medical Technician, David Payan, testified that on the day of the crime, he responded to a call that a man who had been shot and was found underneath a pickup truck at 1311 Maple Street. Payan testified that when he arrived, Ruffin was halfway under the truck with a red stain on his shirt, and Payan could see a gunshot wound. Payan testified that he pulled Ruffin out from underneath the truck, cut 'his shirt off, and began to administer medical assistance to the gunshot wound that had gone through Ruffin’s chest and exited from his back, known as a “through and through” wound. As to Ruf-fin’s condition, Payan testified that “he was alert and oriented ... he looked scared,” and was alert enough to speak to Payan. Over Hicks’s objection, Payan testified that while administering medical attention, he asked Ruffin about the shooting:
Payan: I was ... trying to stop the bleeding and [Ruffin] told me that he was walking along the road and three—three guys came up and asked him what he had in his pockets. And he said, “Nothing but a cell phone.”
And one of them said to, “Give it to me.”
And [Ruffin] said, “Nq.”
And that’s when one guy shot [Ruf-fin].
Payan also testified that upon examination, he was aware that Ruffin’s left lung had no sounds at all and that Ruffin’s condition was serious.
Kiasean Casey testified that on the day of the crime, around 4:00 p.m., he met Hicks and Kendall Smith at S & W Produce. Casey testified that he was on the phone and was walking approximately half a block in front of Hicks and Smith. Casey testified that as the [4boys walked down Maple Street, he passed Ruffin. Casey further testified that after he passed Ruffin, he heard a gunshot go off. After he heard the gunshot, he turned and saw Ruffin and the blood all over his shirt. Casey testified that he stood in shock for approximately 45 seconds and then he ran to his uncle’s house. Casey also testified that after he heard the gunshot, he saw Hicks putting the gun in his pocket as Hicks ran off.
Kendall Smith testified that on the day of the incident, he met up with Hicks and Casey at S & W Produce. Smith testified the boys left on foot, he was side by side with Casey, and Hicks was a few feet behind them. Smith testified that he heard Hicks say, “Pm going to hit him,” as Ruf-fin was walking up the street toward the boys with his dog. Smith further testified that after he heard Hicks say, “I’m going to hit him,” he heard a gun cock “like click/clack.” Smith testified that he turned toward the noise of the gun and saw Hicks raising his hand with the gun, pointing it at Ruffin “like he was going to rob him.” Further, Smith testified that he heard the following conversation between Hicks and Ruffin:
Hicks: What’s in your pockets?
Ruffin: A phone.
Hicks: I need That.
Ruffin: Is that a BB gun? Is the gun fake?
Hicks: No, it ain’t fake. Do you want to see what the bullet feel like?
Smith testified that after Hicks said the gun was not a fake, Hicks shot Ruffin at point-blank range. Smith testified that he took off running, and before he got home he heard the sirens coming toward the area.
[(¡Finally, Hicks testified in his own defense. Hicks testified that he did not have a conversation with Ruffin regarding the gun and did not realize that the gun was loaded. Hicks further testified that the gun went off accidentally, and after the gun fired he walked away not realizing that Ruffin had been shot. In Hicks’s statement to the police immediately after the shooting he stated that he had shot Ruffin “for no reason.” Hicks denied that he attempted to rob Ruffin.
Based on the above-stated facts, Hicks was convicted of capital murder and sentenced as described above. This appeal followed.
Points on Appeal
I. Sufficiency of the Evidence—Robbery
We now turn to Hicks’s two points on appeal. Although Hicks challenges the sufficiency of the evidence in his second point on appeal, due to double-jeopardy concerns, we first address his challenge to the sufficiency of the evidence supporting his conviction. Bowker v. State, 363 Ark. 345, 352, 214 S.W.3d 243, 247 (2005). Hicks asserts that the circuit court erred in denying his motion for directed verdict, alleging that the evidence did not support his conviction for the murder of another person in the commission or attempted commission of a robbery, Hicks further contends that the State’s proof of culpable mental state was insufficient to prove that he caused the death under circumstances manifesting extreme indifference to the value of human life.
We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Whitt v. State, 365 Ark. 580, 232 S.W.3d 459 (2006). In reviewing a challenge Rto the sufficiency of the evidence, this court assesses the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005). This court will affirm a judgment of conviction if substantial evidence exists to support it. Id. Substantial evidence is evidence that 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. We need consider only that testimony that supports the verdict of guilty. Id. Further, circumstantial evidence may provide a basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Id. Whether the evidence excludes every other reasonable hypothesis is left to the jury to decide. Id. Finally, the credibility of witnesses is an issue for the jury and not the court. Id. The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.
Additionally, when construing a statute, we must construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Thompson v. State, 2014 Ark. 413, at 5, 464 S.W.3d 111, 114.
Hicks was convicted of capital murder under Ark. Code Ann. § 5-10-101(a), which states in pertinent part:
(a) A person commits capital murder if:
(1) Acting alone or with one (1) or more other persons:
(A) The person commits or attempts to commit:
...
(v) Robbery, § 5-12-102;
... and
In the course of and in furtherance of the felony or in immediate flight from the felony, the person ... causes the death of a person under circumstances manifesting extreme indifference to the value of human life[.]
Next, “robbery” is defined in Ark. Code Ann. § 5-12-102:
(a) A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately after committing a felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person.
Finally, the underlying felony is an essential element of a capital-felony murder charge. Flowers v. State, 342 Ark. 45, 49, 25 S.W.3d 422, 425 (2000). To prove capital-felony murder, the State must first prove the felony. Id. Here, the prosecution needed to prove only that Hicks attempted to commit robbery. Id., Ark. Code Ann. § 5—10—101(a)(1); Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985). An attempted robbery is established by proof that the defendant purposely engaged in conduct that constituted a substantial step in a course of conduct intended to culminate in the commission of a robbery. Ark. Code Ann. § 5-3-201(a)(2).
With these standards in mind, we turn to Hicks’s challenge to the sufficiency of the evidence supporting his conviction. Hicks contends that the State failed to prove he committed or attempted to commit robbery but the gun went off accidentally. Turning to | sthe facts of Hicks’s case, we must review the testimony presented.
Sanek testified that on the day of the crime, he passed the three boys walking south on Maple as he was driving home around 4:30-5:00 p.m. and identified Hicks as one of the boys that he passed. Sanek further testified that he was unloading his car and heard a gunshot. He testified that he looked down the street and saw Ruffin holding his chest, running toward his home, screaming, “Oh my God. Oh my God.”
Smith testified that as the men walked together, Smith heard Hicks say, “I’m going to hit him,” as Ruffin was walking up the street towards the men. Smith further testified that after he heard Hicks say “I’m going to hit him,” he heard a gun cock, “like click/clack.” Smith testified that he turned toward the noise of the gun and saw Hicks raising his hand with the gun, pointing it at Ruffin “like he was going to rob him.” Further, Smith testified that he heard the following conversation between Hicks and Ruffin:
Hicks: What’s in your pockets?
Ruffin: A phone.
Hicks: I need that.
Ruffin: Is that a BB gun? Is the gun fake?
Hicks: No, it ain’t fake. Do you want to see what the bullet feel like?
Smith testified after he heard Hicks state the gun was not fake, Hicks shot Ruffin at point blank range.
Next, Casey testified that while walking, after he passed Ruffin, he heard a gunshot go off. After he heard the gunshot, he turned and saw Ruffin and the blood all over his shirt 19and saw Hicks putting the gun in Hicks’s pocket as Hicks ran off.
Payan, EMT, testified that he responded to the call where Ruffin had been shot and found Ruffin bleeding underneath a pickup truck at 1311 Maple Street. Over Hicks’s objection, Payan testified that while administering medical attention, he asked Ruffin about the shooting:
Payan: I was ... trying to stop the bleeding and [Ruffin] told me that he was walking along the road and three—three guys came up and asked him what he had in his pockets. And he said, “Nothing but a cell phone.” And one of them said to, “Give it to me.”
And [Ruffin] said, “No.”
And that’s when one guy shot [Ruf-fin].
Upon review; from the testimony set out above, we conclude that the State presented substantial evidence that Hicks purposely engaged in conduct that constituted a substantial step in a course of conduct intended to culminate in the commission of a robbery. Specifically, there was evidence that Hicks intended to rob Ruffin and took a substantial step in that direction when he approached Ruffin with a weapon, demanded his phone, and pointed the weapon at Ruffin at point-blank range. Here, the record demonstrates that there was sufficient evidence for the jury to find that Hicks committed the underlying felony of attempted robbery. Accordingly, in viewing the testimony in the light most favorable to the jury’s verdict and that which is consistent with guilt, we hold that substantial evidence supports the jury’s conclusion that Hicks committed capital murder.
Hicks next contends that the State’s proof of culpable mental state was insufficient to Improve that Hicks caused Ruffin’s death under circumstances manifesting extreme indifference to the value of human life. However, we do not reach the merits of this claim because Hicks did not challenge the State’s proof of that element at trial, and, the claim is therefore not preserved for review. We do not address arguments that are raised for the first time on appeal. Buford v. State, 368 Ark. 87, 243 S.W.3d 300 (2006); Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000). Likewise, parties cannot change the grounds for an objection on appeal, but are bound by the scope and nature of their objections as presented at trial. Id.; Tavron v. State, 372 Ark. 229, 231, 273 S.W.3d 501, 502 (2008). Accordingly,' we do not find error and affirm the circuit court on Hicks’s challenge to the sufficiency of the evidence,
II. Hearsay Testimony
For his second point on appeal, Hicks asserts that the circuit court erred by allowing the State to introduce a hearsay statement by EMT David Payan regarding a.statement Ruffin had made to him while receiving medical treatment. At trial, Hicks asserted that the statement was inadmissible hearsay and did not fall within one of the exceptions to hearsay: dying declaration, excited utterance or present sense impression. The circuit court allowed the testimony as “an exemption'to the hearsay rule.”
The State responds that .the circuit court properly allowed the statement and this court should affirm the circuit court because the statement was admissible either as an excited utterance or as a dying declaration. The State further responds that the statement was admissible under- “other hearsay exceptions.”
Here, the statement Hicks contends the circuit court erroneously admitted occurred |nduring Payan’s testimony about what the victim told .him at the crime scene. Payan testified that he had responded to a 911 call and was administering medical care to Ruffin. Payan testified that Ruffin had suffered a gunshot wound that was through Ruffin’s chest and exited out his back. As to Ruffin’s condition Payan testified that “he was alert and oriented ... he looked scared,” and he Was alert enough to speak to Payan. Over Hicks’s objection, Payan testified that while administering medical attention, he asked Ruffin about the shooting:
Payan: I was ... trying to stop the bleeding and [Ruffin] told me that he was walking -along the road and three—three guys came up and asked him what he had in his pockets. And he said, “Nothing but a cell phone.”
And one of them said to, “Give it to me.”
And he said, “No.”
And that’s when one guy shot him.
Payan also testified, that upon examination,, he was aware that Ruffin’s left lung had no sounds at all and that Ruffin’s condition was serious.
In reviewing evidentiary issues on appeal “the decision to admit or exclude evidence is within the sound discretion of the circuit court, and we will not reverse a circuit court’s decision regarding the admission of evidence absent a manifest abuse of discretion.” Morris v. State, 358 Ark. 455, 193 S.W.3d 243 (2004); Pugh v. State, 351 Ark. 5, 89 S.W.3d 909 (2002). Moreover, we will not reverse absent a showing of prejudice. Id.
With regard to hearsay statements, Rule 801 of the Arkansas Rules of. Evidence defines “Hearsay” as a statement, other than one.made by the declarant while testifying at the trial or hearing, offered in evidence to prove the.truth of the matter asserted. Hearsay is I ^inadmissible except as provided by law or by the rules of evidence. Ark. R. Evid. 802 (2017). Arkan sas Rule of Evidence 803(2) provides in pertinent part:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(2) ■ Excited Utterance. A statement relating to a startling, event or condition made while the declarant was under the stress of excitement caused by the event or condition.
Ip analyzing Rule 803(2), we have recognized that there are several factors to consider when determining whether a statement falls under this exception: the lapse of time, the age of the declarant, the physical and mental condition of the de-clarant, the characteristics of the event, and the subject matter .of the statement. Davis v. State, 362 Ark. 34, 207 S.W.3d 474 (2005); Flores v. State, 348 Ark. 28, 69 S.W.3d 864 (2002); Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (1994) (adopting these factors from the Eighth Circuit’s decision in United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980)). For the exception to apply, there must be an event which excites the declarant. Flores, 348 Ark. 28, 69 S.W.3d 864. In addition, in order “to find that 803(2) applies, it must appear that the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive rather than the product of reflection and deliberation.” Peterson v. State, 349 Ark. 195, 199, 76 S.W.3d 845, 847 (2002) (quoting Fudge v. State, 341 Ark. 759, 769, 20 S.W.3d 315, 320 (2000)). The statements must be uttered during the period of excitement and must express the declarant’s reaction to the event. Moore, 317 Ark. 630, 882 S.W.2d 667. It is for the circuit court to determine whether the statement was made under the stress of excitement. Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994).
|iaHere, Ruffin made' the statement within minutes of being shot at pointblank range while Payan was rendering medical attention to Ruffin. The record demonstrates that Ruffin was bleeding and that he had crawled under his truck. Ruf-fin’s statement was in reaction to the shooting, and Payan testified that Ruffin was alert and oriented, but scared. Based-on the circumstances in this case, the statement was.made in response to the shooting and was therefore admissible under Rule 802 as an excited utterance.
■ In this case, Ruffin’s statement to Payan was made after Ruffin had been shot at point-blank range “through and through.” Ruffin knew he was bleeding, he was hiding underneath his truck, and he was not trying to move. The evidence showed that Ruffin’s condition was grave and that he was aware that his injuries were serious. Based on the facts of this case, we cannot say that the circuit court abused its discretion in determining that Ruffin’s statement was admissible. Accordingly, we affirm the circuit court’s ruling.
In compliance with Arkansas Supreme Court Rule 4—3(i), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to Hicks, and no prejudicial error has been found.
Affirmed.
Hart, J., concurs. | [
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RAYMOND R. ABRAMSON, Judge
I,This appeal involves a boundary-line dispute. Bob Clark runs a cattle-farming operation over 411.5 acres of land, part of which is subject to this dispute. Clark originally acquired 120 acres from David Maness that were landlocked, and so Clark asked his neighbor, N.A. Caughron, for a right-of-way to get to the landlocked property. Caughron declined. Later, Clark sued Caughron to quiet title for the encroaching fence line and for unlawfully'removing timber belonging to Clark. Caughron counterclaimed, asserting that the fence line established the boundary by acquiescence, or alternatively by adverse possession. After a bench trial, the circuit court found in favor of Caughron and held that “by acquiescence and open and notorious possession for a period in excess of seven years that the parties’ boundaries in the areas in dispute should be fixed by the old fences.” For | athe following reasons, we affirm.
Clark filed a timely notice of appeal, raising the following points: (1) the circuit court erred in finding the fence line was a boundary by acquiescence, and (2) the circuit court erred in its alternative finding of adverse possession. This court reviews boundary-line cases de novo. Teague v. Canfield, 2014 Ark. App. 712, 2014 WL 7189933; Stadler v. Warren, 2012 Ark. App. 65, 389 S.W.3d 5. But we will not reverse the circuit court’s findings of fact unless they are clearly erroneous. Fletcher v. Stewart, 2015 Ark. App. 105, 456 S.W.3d 378. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite conviction that a mistake was committed. Id. In reviewing a circuit court’s findings of fact, we give due deference to its superior position in determining witness credibility and the weight to be accorded their testimony. Id. However, this court does not defer to the circuit court on a question of law. Smith v. Smith, 2011 Ark. App. 598, 385 S.W.3d 902. Because the location of a boundary is a disputed question of fact, we will affirm the circuit court’s finding unless it is clearly against the preponderance of the evidence. Reynolds v. GFM, LLC, 2013 Ark. App. 484, 429 S.W.3d 336.
Using these standards, we examine the facts presented to the circuit court. Clark indicated that initially he bought 120 acres of landlocked land from David Maness. After Clark’s neighbor, N.A. Caughron, had declined his request for a right-of-way to get to the landlocked property, Clark approached another neighbor, Anton Simon. Simon also declined to give Clark a right-of-way over his land, but he offered to sell 291.5 acres of his land that joined Clark’s property. After assembling the contiguous parcels, Clark discovered an easement through a church and adjacent cemetery. He then contacted the county judge, |swho commissioned a survey by Eddie Wheeler. Wheeler’s survey indicated that the fence line between Clark’s and Caughron’s land was encroaching 15 to 18 feet onto Clark’s land.
Clark subsequently contacted Billy Cau-ghron (“Billy”), who is N.A.’s son and his agent by virtue of power of attorney. Billy told Clark, “Don’t cut my fence.” Clark agreed and then obtained the survey for the Simon land, which had previously been performed, ■ and he and Billy walked the property together. On that walk, the two encountered a. pile of stones with blue paint that Billy indicated was the corner of the property as reflected on the Remold survey in 1982. Clark then painted the rock pile red.
Later, Clark commissioned a new survey from Lane Housley. Housley found that Caughron’s fence was encroaching • on Clark’s land about 300 feet where it met the Simon land and almost 600 feet where it met the Maness land. Clark asked Billy to split the cost of' a survey to establish their true boundary; Billy declined. Clark then commissioned Housley to survey both the Simon and Maness properties. Housley could not find the corner markers referenced in the Remold survey. Clark, Billy, and the Housley team met to discuss the findings, and Billy insisted the corners were different than the survey findings. No pin could be found, however, and the stone markers had disappeared.
Clark then sued Caughron to quiet title for the encroaching fence line and for unlawfully removing timber belonging to Clark. Caughron then counterclaimed, claiming the fence line established the boundary by acquiescence, or alternatively, by adverse possession. On appeal, Cau-ghron also objected to Clark’s statement of the case, which is recounted above, and added several points that were presented to the circuit court but were omitted from Clark’s recitation of the facts. First, Cau-ghron points-out that he had built.the | ¿fences that have been in place for over 50 years on the southern boundary of the property and nearly 45 years on his western boundary. Furthermore, neither of the two previous contiguous landowners had ever disputed the location of the fences representing the boundaries. Caughron and Simon (who is Clark’s predecessor in title to the west) had an agreement that Caughron’s western boundary line would be where it is presently located. Furthermore, Simon and Caughron both contributed to the financial cost of building the fence pursuant to a survey to memorialize it.
Caughron notes that Clark purchased the property on both the west side and the south side of Caughron’s land without getting a survey or speaking with him prior to the purchase on either occasion. Caughron also points out that Clark did not file the action objecting to the location of the fences until seven years after the purchase of the two properties bordering his land. At trial, six people testified that since the 1970s, they had visited, been on, and hunted on Caughron’s property and that they were not aware of anyone having ever challenged him on the ownership or right to possession of the land. Nor had they seen any evidence of the fences having been moved during, their period of exposure to the land. All of the witnesses had visited the land again just before trial and testified that there had been no changes in the fences or the boundary lines since they had been on it the last time. None of their testimony was rebutted or challenged by Clark. * 1
Finally, Caughron testified that he had “brushhogged” the pastureland. in question, had selectively sprayed trees with herbicide, had logged it, had run cattle on it, had built .ponds on it, had. fertilized the pastureland, and had maintained and repaired the fences.
IfiClark’s first point on appeal is that the circuit court erred by finding a boundary by acquiescence. In Myers v. Yingling, 372 Ark. 523, 527, 279 S.W.3d 83, 87 (2008), our supreme court held that “whenever adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line and thus apparently consent to that line, [the line] becomes the boundary by acquiescence.” Myers, 372 Ark. at 527, 279 S.W.3d at 87 (emphasis added). A boundary line by acquiescence is inferred from the landowners’ conduct over many years so as to imply the existence of an agreement about the location of the boundary line, and in such circumstances, the adjoining owners and their grantees are precluded from claiming that the boundary so recognized and acquiesced is not the true one. Id.
Here, the circuit court did not err by finding a boundary by acquiescence. The circuit court was correct in finding that both Caughron’s southern line and western line were established by acquiescence. The southern line was created when a predecessor in title to David Maness, the Clarks’ own immediate predecessor in title, owned the property in the 1950s and before there was any fencing marking the line between them, pointed out to Cau-ghron where the line separating their properties should be located. The western line was created when Simon made an agreement with Caughron to build the fence on the surveyed line between them. Clark’s argument that Caughron “committed fraud when he fenced the area at the prior owner’s request” is not supported by the evidence. The unrebutted testimony reflects that the Clarks’ predecessor, Simon, and Caughron, had an agreement as to where the fence should be built—on the blaze line created by surveyor Robert Smith’s crew.
|fiThe circuit court concluded that the fence, was in fact, built on that blazed line; and that the Clarks’ predecessor in title, Simon, inspected the fence line immediately after it had been completed and annually or semiannually thereafter for about 25 to 30 years. The circuit court also concluded that Simon never had anything to say about the fence or its location except that he was pleased with it. As such, we hold that the circuit court’s decision on this boundary was not clearly erroneous.
We further do not agree with Clark’s second argument that the circuit court erred in its alternative finding of adverse possession. In order to prove ownership of land by adverse possession, the party claiming possession must show continuous possession of the property for seven years. Robertson v. Lees, 87 Ark. App. 172, 183, 189 S.W.3d 463, 471 (2004). The claimant must also prove that possession was actual, open, notorious, continuous, hostile, exclusive, and accompanied by an intent to hold against the true owner. Washington v. Washington, 2013 Ark. App. 54, at 6, 425 S.W.3d 868, 862. Clark argues that Caughron did not hold and possess the land against, and in contravention of, the rights of Clark and his predecessors in title. The circuit court did not find merit in this argument. The court held that Caughron owned the disputed property by adverse possession. We agree because there was no testimony presented about possession except for the unrebutted testimony that Caughron acted as any landowner would act in using his own land.
Clark .himself shows that he did not regard Caughron’s occupancy and ownership of the land to be permissive when Clark testified that he asked Caughron’s permission to cross- his land. In Rabjohn v. Ashcraft, 252 Ark. 565, 480 S.W.2d 138 (1972), our supreme court held that the landowners’ agreement can be parol only and need not even be expressed but | ,can be inferred from long, continued acquiescence of the owners plus occupation to the line. These are the very facts that were before the circuit court here.
A common theme throughout Clark’s brief is that the fences complained of were either constructed fraudulently or fraudulently maintained, or both. There is no proof to support this assertion. Accordingly, we do not address it further. We cannot say the circuit court’s decision was clearly erroneous; therefore, we affirm.
Affirmed.
Gruber, C.J., and Harrison, J., agree. | [
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LARRY D. VAUGHT, Judge
11 This is an appeal from an order entered on December 19, 2016, by the Yell County Circuit Court, terminating appellant Ethel “Amanda” Thomas Threadgill’s parental rights to her minor child, I.T. (born January 25, 2004). Amanda argues that the circuit court clearly erred in terminating her parental rights because ap-pellee, the Arkansas Department of Human Services (DHS), failed to prove grounds supporting termination. We affirm.
The record shows that the initial removal by DHS of I.T. and her older sister, T.W. (born December 16, 1998), from Amanda’s custody was on July 31, 2015, based on allegations 1 aof neglect; specifically, failure to protect. The affidavit filed with the petition for emergency custody and dependency-neglect alleged that the Arkansas State Police had an open investigation of sexual abuse of T.W. perpetrated by Amanda’s husband, Isaiah. As part of that investigation, Amanda had agreed to keep I.T. and T.W. away from Isaiah at all times. It was alleged in the affidavit, however, that Amanda, I.T., and T.W. had been seen in a vehicle with Isaiah and that Amanda admitted Isaiah was in the car with her and the girls.
The circuit court adjudicated I.T. and T.W. dependent-neglected on October 7, 2015. The court found that T.W. gave a video-taped statement claiming that Isaiah sexually abused her and that she had been diagnosed with a sexually-transmitted disease. The court also found that there was evidence that T.W. had been sexually abused in the past by her grandfather, her uncle, and her mother’s ex-boyfriend. Amanda testified at the adjudication hearing, denying that Isaiah sexually abused T.W. and claiming that T.W. made up the story. Amanda conceded that she broke her promise not to have Isaiah around T.W. or I.T. The court did not find that Isaiah sexually abused T.W.; however, the court did find that T.W. had been sexually abused in the past and now had a sexually transmitted disease. The court further found that Amanda had failed to comply with the protection plan and that T.W. was fearful to go home. The court found that the goal of the case was reunification and ordered Amanda to submit to drug testing; attend and complete parenting classes; obtain and maintain stable housing and income; attend counseling; cooperate with DHS; and comply with the case plan.
la A review-hearing order was entered on December 11, 2015, wherein the circuit court found that Amanda was complying with the case plan by attending counseling, parenting classes, and NA/AA meetings; attending visitation; and maintaining transportation. However, she was living with Isaiah, and he was her main source of income. A second review-hearing order was entered on April 22, 2016. In that order, the circuit court found that Amanda was complying with the case plan by completing parenting classes; attending counseling and visits; and having appropriate housing, income, and transportation.
Following a permanency-planning hearing, an order was entered on August 10, 2016, wherein the circuit court found that there had been some progress toward the case plan but without further detail, found that not enough progress had occurred for reunification. The court set the matter for a fifteen-month permanency hearing, adding that the case could be heard as a termination-of parental-rights case if DHS filed and properly served a petition.
DHS filed a petition for termination of parental rights on September 23, 2016. DHS alleged two grounds to support termination against Amanda—“failure to remedy,” Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(q) (Repl. 2015) and “subsequent factors,” Arkansas Code Annotated section 9-27-341(b)(8)(B)(vii)r<%).
After a hearing, the court, from the bench, granted DHS’s petition to terminate Amanda’s parental rights to I.W. The court found that DHS had made meaningful efforts to rehabilitate Amanda, which included parenting classes; counseling, which Amanda attended sporadically; visitation; and other assessments “to no avail.” The court found that Amanda had had domestic-violence issues with her husband, Isaiah, to whom she was still married; she had very recently revealed that she had an addiction to methamphetamine; she had used | ¿methamphetamine during the case; she had moved numerous times during the case; and she was living with a new boyfriend, who gave her $300 a month to meet her expenses. The court lastly found that affording Amanda three additional months to work on her case would not result in reunification. The court stated that “there is just too much turmoil in this matter ... we have had probably more hearings in this case in fourteen months than we have had in I don’t know how many cases that I have heard as a judge ... I just don’t see we are making progress ... and this child needs permanency.”
In the termination order entered on December 19, 2016, the circuit court found that Amanda had an unstable financial situation; she failed to display improvement of her parenting skills; she failed to support her children during the case; she had an unstable relationship with Isaiah and had left him; and she had moved back in with I.T.’s father for a day and a half in August 2016, during which time she had used methamphetamine with him. This appeal followed.
We review termination-of-parental-rights cases de novo. Knuckles v. Ark. Dep’t of Human Servs., 2015 Ark. App. 463, at 2, 469 S.W.3d 377, 378. At least one statutory ground must exist, in addition to a finding that, it is in the. child’s' best interest to terminate parental rights; these must be proved by clear and convincing evidence. Id., 469 S.W.3d at 379 (citing Ark. Code Ann. § 9-27-341 (Supp. 2013); M.T. v. Ark. Dep’t of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997)). Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Id., 469 S.W.3d at 379. The appellate inquiry is whether the circuit court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id., 469 S.W.3d at 379. Credibility determinations are left to the fact-finder, here, the circuit court. Id., 469 S.W.3d at 379. Only one statutory ground is necessary to terminate parental rights. Sanford v. Ark. Dep’t of Human Servs., 2015 Ark. App. 578, at 11, 474 S.W.3d 503, 510.
In this appeal, Amanda challenges the circuit court’s finding of grounds used to terminate her parental rights. Regarding the subsequent-factors ground, she argues that the evidence does not support the circuit court’s finding that DHS provided appropriate family services.
The subsequent-factors ground, section 9-27-341(b)(3)(B)(vii)(o), states:
That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety,' or. welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent the placement of the juvenile in the custody of the parent.
Ark.. Code Ann. § 9-27-341(b)(3)(B)(vü)rq). Amanda argues that there was no evidence that DHS offered “appropriate family services.” She contends that although DHS provided | (¡general services to her, i,e., parenting classes, counseling, and visitation, no services were offered to address Amanda’s specific needs, i.e., her drug addiction or her volatile marriage with Isaiah.
DHS contends that Amanda’s argument is procedurally barred because she did not appeal from prior orders in-which the circuit court found reasonable efforts by DHS despite the fact that, under Arkansas Supreme Court Rule 6—9(a)(1), they were final, appealable orders. DHS contends that the failure to appeal from any of the previous orders in which a circuit court has determined that DHS made meaningful efforts toward reunification precludes this court from reviewing those findings with respect to the periods of time covered by those prior orders.
In Schubert v. Arkmsas Department s Human Services, the supreme court stated that, “[pursuant to Rule 6-9(a)(1)(B), disposition, review, and permanency planning orders are only appealable ... if the court enters an order in compliance with Ark. R. Civ. P. 54(b) (2009). Thus, not every order entered in a dependency-neglect case can be immediately appealed[.]” 2009 Ark. 596, at 5, 357 S.W.3d 458, 461; see also Bean v. Ark. Dep’t of Human Servs., 2016 Ark. App. 58, at 3, 2016 WL 324592.
Here, the circuit court found that DHS had made reasonable efforts to provide family services in its December 11, 2015 review order; its April 22, 2016 review order; and its October 20, 2016 fifteen-months review order. However, none of these orders have Rule 54(b) certificates. Further, Amanda raised the argument at the termination hearing. Accordingly, she has not waived- her argument regarding the services offered by DHS.
17In reaching the merits of this argument, we hold that the circuit court did not clearly err in finding that DHS provided appropriate family services to Amanda. DHS provided foster care, therapeutic foster care, case-management services, PACE evaluation, DDS referrals, medical services, counseling for the juveniles, counseling for Amanda and Isaiah, transportation, parenting classes, visitation, and transitional life services for T.W, There was evidence that -the parenting classes addressed domestic-violence issues. Further, while Amanda argues that she needed drug treatment, the evidence shows that Amanda did not disclose her methamphetamine addiction to DHS. She testified that she did not tell DHS or the circuit court about her meth addiction when they asked because “it seemed like you all wasn’t really serious.” She first shared this information with her counselor in September 2016—just one month prior to the termination hearing. At the hearing, she testified that she was an addict and that she had used methamphetamine during the case. Finally, the circuit court stated in its oral findings that, based on the “turmoil” in the family, three months’ additional time requested by Amanda for further DHS services would not result in the progress needed to reunite her with I.T. Based on this evidence, we hold that the circuit court did not clearly err in finding that DHS provided appropriate family services to Amanda sufficient to support the subsequent-factors ground. We affirm.
Affirmed.
Klappenbach and Murphy, JJ., agree.
. The parental rights of I.T.’s father, Anthony Triggs, were also terminated pursuant to the same order, but he has not appealed.
. T.W. was part of this case; however, because she was three months from her eighteenth birthday at the time the petition to terminate parental rights was filed, DHS did not pursue termination of Threadgill’s rights to her.
.The record reflects that T.W. has the mental capacity of a ldndergartner.
. The court stated that it had had seven hearings in the case.
. The court referred to an incident during the case, in June 2016, when Amanda and Isaiah were traveling to Little Rock to visit I.T., and they got into an altercation in the vehicle. Amanda testified that Isaiah had been drinking, and he abandoned her in Little Rock. She said that she had to call I.T.’s foster mom to pick her up and drive her to Dardanelle. Amanda further stated that she and Isaiah separated a couple of months later because he was physically abusing her.
. Amanda does not challenge the circuit court’s finding that termination was in I.T.’s best interest.
. Amanda does not dispute the other required elements of the subsequent-factors ground.
. Because we are affirming the subsequent-factors ground, we need not address Amanda’s challenge to the failure-to-remedy ground, | [
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PHILLIP T. WHITEAKER, Judge
_JjThis appeal arises from an action that was originally before the Little Rock Civil Service Commission (“the Commission”). The Little Rock Fire Department (LRFD) terminated the employment services of ap-pellee Chris Muncy. Muncy appealed his termination to the Commission. The Commission upheld the termination, and Mun-cy appealed to the Pulaski County Circuit Court. The circuit court reversed the decisions of the LRFD and the Commission to terminate Muncy’s employment. The appellants—the City of Little Rock, the Commission, and the LRFD—appeal the circuit, court’s decision. Muncy has filed a cross-appeal, asserting that ■ the circuit court erred in declining to award him attorney’s fees. We reverse on direct appeal and affirm on cross-appeal.
.|⅞1, Background
The LRFD, as an entity of the City'of-Little Rock, has the statutory authority to govern and regulate its employees. Arkansas Code Annotated section 14-51-302 (Repl. 2013) provides that “[a]ll employees in any fire ... department ... shall be governed by rules and regulations set out by the chief of their respective ... fire departments after rules and regulations have been adopted by the governing bodies of their respective municipalities.” In 2012, the LRFD issued á policy memorandum declaring that any uniformed employee of the LÉFD who tested positive for illegal or controlled drugs would be terminated. Specifically, the policy provided- as follows:
Uniformed members of the Little Rock Fire Department can most easily describe this policy statement as the standard regarding the use of alcohol or illegal or controlled drugs. Illegal or controlled drugs include but are not limited to: anabolic steroids, amphetamines, barbiturates, benzodiazepine, metabolites, cocaine metabolite, methadone, methaqualone, opiates, PCP, pro-poxyphene and THC metabolite. *This list is not all inclusive; employees may be screened for additional substances as determined by the Fire Chief and could include drugs designated as controlled substances in the Arkansas Criminal Code as may be amended from time to time.
A uniformed Little Rock Fire Department employee with a verified positive drug result confirmed by . a Medical Review Officer (MRO) shall be terminated.
(Emphases in original.)
Adler the policy was issued, the LRFD developed a protocol for its implementation. Each month, the LRFD chooses seventeen employees at random to be drug-screened. The selected employees each provide a urine sample. The urine sample is screened utilizing an Enzyme Multiplied Immunoassay Test (EMIT). If a positive result is obtained, the urine Rsample is forwarded for a different confirmatory test—a chromatographic- and mass-spectrometer-based test (GC/MS)—which analyzes the sample at a. molecular level. If a sample tests positive for methamphetamine, the toxicology lab will then conduct an isomer test to determine the ratio of D-methamphetamine (the illicit form of methamphetamine) to L-methamphetamine (a variant with little stimulatory effect that is the active ingredient in Vicks inhalers). If the D-form of methamphetamine is greater than 20%, the test will be considered positive for D-methamphetamine.
On July 22, 2014, Muncy was randomly selected to be drug-tested. On the initial test, his urine sample was positive for amphetamine and methamphetamine, with a result of 222. Because of the. positive result, the LRFD followed its protocol and requested a confirmatory screening by GC/MS test. The GC/MS testing of Mun-cy’s urine sample indicated a methamphetamine concentration of 17,138 nanograms per milliliter (ng/ml) and an amphetamine concentration of 2,894 ng/ml. Because of that positive result, an isomer test was conducted to determine the ratio of D-methamphetamine to L-methamphetamine. Muncy’s sample was 85% D-form and 15% L-form. Based on the results of Muncy’s drug screen, the LRFD terminated his employment.
RMuncy appealed his termination to the Commission, which voted 'to uphold Muncy’s termination. Muncy then appealed the Commission’s decision to the Pulaski County Circuit Court pursuant to Arkansas Code Annotated section 14-51-308(e)(1) (Repl. 2013); Although this statute provides for an appeal from a civil service commission, the circuit court proceeding is in the nature of an original action. Daley v. City of Little Rock, 36 Ark. App. 80, 818 S.W.2d 259 (1991). The circuit court does not merely-review the decision of the'civil service commission for error, but instead conducts a de novo hearing on the record before the civil service commission and any additional competent testimony that either party might desire to introduce. Id. Here, the circuit court both considered the transcript of the proceedings before the Commission and took additional testimony. We will discuss the testimony and evidence before the Commission as it was presented before .the circuit court.
The LRFD presented evidence of the reasons for its drug policy. Gregory Summers, fee chief of the LRFD since 2009, explained that the reason for the policy was due to the “safety sensitive work” of the LRFD, stating that “we definitely don’t want anybody operating our equipment that’s under the influence of any type of drug.” Summers further noted that firefighters “have a responsibility not only to the citizens that they’re there to protect, but also to their co-workers.... Other firefighters need to be able to trust each other with their lives.” Summers also testified that he would be uncomfortable reinstating a firefighter who had tested positive for drug use. He stated that it would “send a bad message to every other firefighter .... If an exception is made for Mr. Muncy, it destroys the policy, and if that’s the case, then we shouldn’t even have one.” Summers pointed out that he had | ¿fired other firefighters who had positive drug tests, including one who tested positive for marijuana after attending a “hookah” party, even though that firefighter claimed he did not know what was in the hookah. Summers explained, “So intentional [or] unintentional, he tested positive for drugs and was terminated.” Assistant Chief of Operations Douglas Coney added that the policy was “basically a zero-tolerance policy, [and] if you flunked it, whether it’s a listed drug or not, you’re fired.”
Both the LRFD and Muncy presented testimony concerning the drug testing that led to Muncy’s termination. Brent Staggs, a medical review officer, testified for the LRFD. Staggs reviewed Muncy’s drug test and a list of prescription medications that Muncy was taking. Staggs acknowledged that Muncy had a prescription for a Vicks inhaler. According to Staggs, however, the Vicks inhaler contained only the L-isomer of methamphetamine and not the D-isomer. Staggs testified that the Vicks inhaler thus could not explain Muncy’s positive drug test. In fact, Staggs did not see any prescription on Muncy’s list of medications that would contain the D-isomer and that would explain Muncy’s positive test for methamphetamine.
Similarly, Staggs noted that Muncy had a prescription for Adderall, which could show up on a drug test as amphetamine. Staggs opined that this would explain Muncy’s positive result for amphetamine; he testified, howevei*, that although methamphetamine can break down into amphetamine, “amphetamine can never turn into methamphetamine.” Staggs said he was unable to find any medical explanation for Muncy’s results. Staggs also pointed out that the amount of methamphetamine in Muncy’s sample—more than 17,000 ng/ ml—was |fi“fairly high.” Given that anything over 500 ng/ml is positive, Staggs pointed out that Muncy was thirty times over the cutoff.
In response to this testimony, Muncy presented the testimony of Dr. Alex Pap-pas. Dr. Pappas said that when he was contacted to testify, he was told there was something wrong with the test, but he could not find anything wrong with it, saying it was “scientifically a good-looking test.” Dr. Pappas acknowledged that the test had been properly confirmed, but he was bothered by its inconsistency with Muncy’s history and his past behavior. He suggested that it was possible that Muncy “could have only recently started using methamphetamine,” and it was “possible he could be the unlucky guy who got tested not long after he started a new drug.” Dr. Pappas opined that the supplements Muncy used to increase his sex drive would “probably not be something he could have ordered on the internet that has a derivative of methamphetamine in it.”
Muncy also presented testimony concerning his character. Muncy testified about his employment history, noting that he had been in the Navy, had been a commercial diver for a nuclear power plant, and had worked as an EMT. He said that he had never failed a drug test at any previous place of employment. He adamantly denied ever taking methamphetamine, although he conceded that he had been taking testosterone injections for a while to enhance his sex life. He could not deny the positive drug test, however, and he could offer no explanation for it. Muncy called several witnesses on his own behalf, including his captain, several fellow firefighters, and friends. Each one testified that Muncy gave no indication in his behaviors or actions that he was on methamphetamine or any other kind of |7drug. His coworkers testified that they had never seen him do anything or behave in any way that caused them to fear for their safety. Even Assistant Chief Coney agreed that Muncy was a good firefighter, and Chief Summers acknowledged that he had been shocked when he heard that Muncy had tested positive and said that he had no indication from Muncy’s behavior or demeanor that he was on methamphetamine.
At the conclusion of the trial, the court ruled from the bench that Muncy’s positive drug test was “pretty obvious and it’s conclusive.” The court questioned, however, whether the “situation [was] so severe ... that the zero tolerance policy is justified.” The court stated that it understood the purpose of the policy, but given Muncy’s history and good character, it concluded that the sanction of termination was too severe. The court therefore determined that a thirty-day suspension and demotion from the rank of apparatus engineer to that of firefighter would be appropriate.
An order to that effect was entered shortly thereafter. In addition to the thirty-day suspension and demotion, the court also ordered the LRFD to pay Muncy back pay in the amount of $44,376.23. The LRFD filed a timely notice of appeal, and Muncy filed a timely notice of cross-appeal.
II. Standard of Review
The supreme court explained the process for reviewing appeals that arise from actions before the civil service commission in City of Little Rock v. Hudson, 366 Ark. 415, 236 S.W.3d 509 (2006), as follows:
As noted above, the proceeding underlying this appeal is a decision by the Little Rock Civil Service Commission. The circuit court reviews decisions of the Civil | ^Service Commission de novo and has jurisdiction to modify the punishment fixed by the Commission even if the court agrees that the officer violated department rules and regulations. City of Van Buren v. Smith, 345 Ark. 313, 46 S.W.3d 527 (2001); City of Little Rock v. Hall, 249 Ark. 337, 459 S.W.2d 119 (1970). The circuit court does not merely review the decision of the Civil Service Commission for error, but instead conducts a de novo hearing on the record before the Civil Service Commission and any additional competent testimony that either party might desire to introduce. Daley v. City of Little Rock, 36 Ark. App. 80, 818 S.W.2d 259 (1991); Ark. Code Ann. § 14-51-308(e)(1)(c) (Repl. 2000). The effect of this statutory provision for a de novo appeal to circuit court is to reopen the entire matter for consideration by the circuit court, as if a proceeding had been originally brought in that forum. Civil Service Commission of Van Buren v. Matlock, 206 Ark. 1145, 178 S.W.2d 662 (1944). Although the transfer from a civil service commission is called an appeal in Ark. Code Ann. 14-51-308(e)(1) (Supp. 2005), the circuit court proceeding is in the nature of an original action. Daley, supra.
This court then reviews the findings of the circuit court to determine whether they are clearly against the preponderance of the evidence. City of Van Buren v. Smith, supra; Tovey v. City of Jacksonville, 305 Ark. 401, 808 S.W.2d 740 (1991). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mis take has been made. Foundation Telecommunications v. Moe Studio, 341 Ark. 231, 16 S.W.3d 531 (2000).
Hudson, 366 Ark. at 417-18, 236 S.W.3d at 512.
III. The LRFD’s Appeal
On appeal, both parties concede that the circuit court had the jurisdiction to modify the punishment meted out by the Commission. The LRFD, however, argues that the circuit court’s decision to overturn Muncy’s termination vitiates its zero-tolerance drug policy and was therefore clearly erroneous. In support of its argument, the LRFD cites City of Little Rock v. Bates, 270 Ark. 860, 607 S.W.2d 68 (Ark. App. 1980). In Bates, police officer Bill Bates-was discharged from the Little Rock Police Department after the department determined that he had violated numerous sections of its rules and regulations. The Civil Service Commission upheld' the termination, but the Pulaski County Circuit Court ordered Bates to be reinstated. |9On appeal, our court held that the circuit court’s decision was clearly erroneous. Specifically, our court noted that there was uncontroverted evidence that Bates had violated the police department’s rules and regulations on multiple occasions. Because the evidence clearly demonstrated that Bates had violated the department’s policies, we held that the circuit court’s decision was not supported by substantial evidence. Bates, 270 Ark. at 866-67, 607 S.W.2d at 71-72.
Muncy, in turn, maintains that the circuit court could easily have concluded that termination was too harsh a sanction. He relies on City of Little Rock v. Hall, 249 Ark. 337, 459 S.W.2d 119 (1970). In Hall, police officer Lester Hall was terminated by the Little Rock Police Department for slapping a prisoner. The Commission upheld his termination, but the Pulaski County Circuit Court reduced that sanction to a thirty-day, suspension. The supreme court upheld the circuit court’s decision, primarily because the officer had an exemplary service record, there was no evidence that he had struck the prisoner with anything other than an open fist, and he had had previous encounters with the same prisoner “without unusual event.” Hall, 249 Ark. at 340, 459 S.W.2d at 121. Muncy posits that the same result should be reached in his case.
We disagree that either case is controlling in the present appeal because neither Bates nor Hall involved a zero-tolerance policy like the' one promulgated by the LRFD. Rather, we consider the facts of this case to be more análogous to the fact situation described in Petty v. City of Pine Bluff, 239 Ark. 49, 386 S.W.2d 935 (1965). There, the City of Pine Bluff had an ordinance requiring that all members of its fire department live within the city limits or in sufficiently close proximity thereto. The appellant,’ Petty, was indefinitely suspended from the Pine Bluff Fire Department for moving outside' the city limits in violation of the ordinance. The supreme court affirmed Petty’s suspension, finding the evidence was overwhelming that Petty had violated the fire department’s policy to which no previous exceptions had been allowed. Petty, 239 Ark. at 53-54, 386 S.W.2d at 938. While we find that Petty is helpful, it is none theless not an appeal dealing with a zero-tolerance drug policy.
As stated earlier, we use a clearly erroneous standard of review in appeals from a civil service commission. We review the circuit court’s findings to determine whether they are clearly against the preponderance of the evidence. See City of Van Buren, supra. In the present case, the circuit court made, a factual finding that acknowledged the overwhelming evidence of Muncy’s positive tests for methamphetamine; indeed, the scientific evidence supporting that finding was uncontroverted. The court stated that it understood the purpose of the policy, but it questioned whether the “situation [was] so severe given that test that the zero tolerance policy is justified” based on Muncy’s history and good character. We cannot agree. The LRFD has the authority to govern and regulate its employees. Ark. Code Ann. § 14-51-302. The LRFD provided legitimate public-policy reasons behind its zero-tolerance policy |n on drug usage and the necessity for consistency in the application of that policy. Muncy, despite his good reputation, clearly violated the policy. We are thus left with a definite and firm conviction that a mistake has been made, see Hudson, supra, and we therefore reverse the circuit court’s reversal of Muncy’s termination.
IV. Muncy’s Cross-Appeal
In his cross-appeal, Muncy argues that the circuit court should have awarded him attorney’s fees. Arkansas Code Annotated section 14-51-308(e)(1)(B)(iv) (Repl. 2013) provides that where an appeal is taken from the civil service commission to circuit court, the circuit court .may award reasonable attorney’s fees to the prevailing party. As we have reversed the circuit court’s decision, Muncy is no longer the prevailing party, and his argument is therefore moot.
Reversed on direct appeal; affirmed on cross-appeal.
Glover and Hixson, JJ., agree.
. A completely clean sample will have a value of -100, and anything over zero is considered positive.
. The GC/MS test’s, cutoff for a positive test is 500 ng/ml.
.Muncy, who denied ever taking methamphetamine, subsequently sought additional . testing at his- own expense. His independent test, howeverpwas also positive for methamphetamine.
, In fact, our research did not reveal a civil ■ service commission appeal, in Arkansas specifically involving a zero-tolerance drug policy like the one in this case.
. Petty built a house six miles outside of the city limits after that ordinance went into effect, but he, signed a statement averring that he was a resident of Pine Bluff, using his brother’s address as his own.
. The circuit court even noted that the concentration of methamphetamine in Muncy’s sample was “a fairly high level.” | [
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BART.F. VIRDEN, Judge
|,A Benton County jury convicted appellant Jeran Sorum of rape, second-degree sexual assault, and first-degree computer exploitation of a child. He was sentenced to an aggregate term of twelve years in prison. Sorum argues that (1) there was insufficient evidence to support each of his convictions, (2) his convictions for rape and second-degree sexual assault violate the prohibition against double jeopardy, and (3) the trial court erred in excluding evidence based on the rape-shield statute. We affirm.
I. Jury-Trial Testimony
Sergeant Mike Lira with the Benton County Sheriffs Office testified that the child-abuse hotline received a report from the principal of the Siloam Springs High School about an incident that had occurred off campus involving a student. Lira ar ranged for a forensic interview of that student, K.G., at the Children’s Advocacy-Center. Lira said that KG. disclosed that she had been sexually assaulted by Sorum. Lira’s investigation revealed that on ^Friday, September 27, 2013, twenty to twenty-five people—mostly teenagers—attended a party at Thomas King’s residence and that alcohol was served. The victim was said to have been “extremely intoxicated.” While Lira was interviewing witnesses about the party, he learned that there was a video from the party. Lira obtained a search warrant for Sorum’s cell phone. The video had been deleted, but a detective retrieved it using new technology. The video depicts Sorum and Andrew (“Drew”) Wall in a room with K.G. passed out on a mattress. Lira testified to what he thought he heard being said on the video. He attributes the following statements to Sorum:
1. “Wake up. Get in that ass. Oh yeah.”
2. “I want to fuck that again, Drew.”
3. “Get in there, bitch. If you don’t do it, you’re the biggest pussy I ever met.”
4. “Should we really put a condom on it and fuck her with it? You gotta hold her shorts.”
5. “Help me. Put it on the broomstick. Do it now. Start with the condom. Use the condom now.”
6. “Give me—give me the fucking condom. Are you going to put it on your dick or not?”
7. “Oh, you’re not? See if, uh, hold this. Watch this. This is redneck fucking, dude. Fat bitches have done gone to bed.”
Wall testified that he pleaded guilty to computer exploitation of a child in the second degree, and he admitted having told many inconsistent versions of the incident. Wall stated that he and Sorum were intoxicated but were aware that KG. was “very high.” Wall said that he and Sorum were “messing with some cats” in the hallway outside the bedroom where KG. slept. Wall stated that, before going into the bedroom, Sorum had seen a broom |sand had said, “I’m gonna fuck her with this broom.” Wall used Sorum’s cell phone as a flashlight. Wall stated that the cell phone’s battery had died at some point, that he had handed the phone back to Sorum, and that he had gotten a flashlight from his truck and returned to the room. Wall stated that Sorum had put a condom on the broomstick, pulled down KG.’s pants, and put the broomstick in her vagina. He said that, although she had been sleeping, KG.’s eyes suddenly opened when the broomstick went inside her. Wall admitted sending the following message to KG. on Saturday night, September 28, 2013, via Facebook: “Something happened to you that night.” When KG. asked what had happened, Wall wrote, “You got f d with a broomstick.”
Isaac Postoak testified that he pleaded guilty to computer exploitation of a minor. Postoak stated that he had attended King’s party, but he denied being in the room with Sorum and Wall. He said that on the following day several friends from school were in his garage smoking K2, which he described as “artificial marijuana that you buy from a store,” and talking about the party. Postoak testified that So-rum said that he “had fucked [KG.] with a broomstick” and that everybody had thought it was a joke until Sorum played a video. Postoak recalled seeing Sorum “poking around at [KG.]” and putting a condom on a broomstick.
K.G. testified that she was fifteen years old at the time of King’s party. She said that she had consumed two or three beers and then switched to a “pretty big” bottle of Everclear that she shared with a friend. She and her friend were dancing inside, and they went outside where it was cooler. KG. took off her shirt, under which she wore a sports bra. She then got on the ground and started throwing up repeatedly. She said she was dizzy, stumbling, |4and “wasn’t really aware of what was going on.” Her friends helped her inside, undressed her, and put her in the shower because she had thrown up on- her clothes and had vomit in her hair. KG.’s friends then dressed her in sweatpants and a sweater belonging to someone else and took her to a back bedroom where she lay down on a mattress and fell asleep. KG. said she remembered waking up several times. The first time she awoke, she saw a bowl in front of her with vomit in it. The second time she awoke, Postoak had her hand down his pants, and she had pulled away. The third time she woke up, Manuel Crus had come into the room and was “asking me if I wanted to,” to which she had yelled, “No!” She awoke again to find Sorum on top of her with her legs pinned between his, and she turned her head and saw a bright light. KG. said that she was “pretty certain” Wall was holding a cell phone, which illuminated the room. KG. said that she was certain that Sorum was on top of her. She said, “Since the flashlight was pointing towards our direction, it made Jeran a lot more clearer than anything else, his curly hair and all of his characteristics from his body.” She also testified that she had known Sorum before that night. K.G. said that her sweatpants had been pulled down below her knees and that her vaginal area was “really wet.” KG. stated that, when she awoke the following day, “it really burned to pee.” She said that she had suffered no pain while urinating before that night.
Three young men testified about the day after King’s party when they were smoking K2 in, Postoak’s garage. Manuel Crus, who had attended King’s party, recalled Sorum saying, “Remember last night? We were all drinking. We were all messed up. I have this video.” Crus testified that, while watching the video, “[t]he words out of Jeran’s mouth were that he fucked [KG.] with a broomstick. No mistake about that. I remember it clearly.” Bren-den |sHyde testified that Sorum was' “excited” about showing them the video and said that he had “screwed” or “fucked” a girl with a broomstick. Jeremiah Knife-chief testified that Sorum had pulled out his cell phone, showed them a video, and said something to the effect of “screwing a girl with a broomstick.”
Sorum took the stand in his own defense. He testified that he was seventeen years old at the time of King’s party. He stated that he and others had been videotaping and taking pictures during the party. Sorum testified that he and Wall were intoxicated, that they had wandered into a bedroom, and that Wall had his (Sorum’s) cell phone. Sorum said that he first realized KG. was in the room and passed out when he saw her from the cell phone’s light. Sorum said that Wall was recording when they entered the room. He stated that he and Wall were “just kinda goofing around” and “drunkenly exploring.” Sorum said that he had taken a kitten and had thrown it on KG. According to Sorum, KG. was wearing sweatpants and a sweater and was under a blanket. He testified that Wall had handed him a broom for some reason and that he -had begun swinging it around and had hit Wall with it. Sorum recalled that he and Wall had made a lot of noise in their attempts to wake K.G. and that he had eventually begun “prodding” her with the broomstick. He admitted touching her “thigh region.” So-rum described KG. as a friend from school and said that when friends pass out at parties, they “get messed with.” He testified that Wall had produced a condom, opened the wrapper, and handed the con- dora to him. Sorum said that “[w]e did not have any plan that was sexual at all." Sorum said that he had unrolled the condom onto the broomstick, swung it around a few more times, “sort of danced around the room a little more,” and then left the room, Sorum said that he left the party soon after that. He said that | pthe following morning, Wall and a , female returned his phone and that he had not even realized that he had forgotten it at the party.
Sorum was asked about the voices on the video. He said, “I have no clue what I meant by ‘Get in that ass.’ I have no clue if I even said that. I did not hear it,” He did not recall saying any of the things on the video testified to by Lira. He said that he did not recall the “redneck fucking” comment but said, “I did hear that. I did hear something along the lines of that. I did hear that. More like what was said was probably like this is redneck shit. The room is redneck. It was trashy redneck. I didn’t hear ‘This is redneck fucking, dude.’ I did not hear that.”'
Sorum further testified that everyone was smoking K2 in Postoak’s garage the following day and talking about how crazy the party had gotten. Sorum started “going through” his cell phone and realized for the first time that there was a video. Sorum said that he had told the other boys, “Let’s watch this.” He denied saying that he had “fucked,” “f d,” or “screwed” a girl with a broomstick. When asked why his good friends would say otherwise, he said that they were either mistaken or lying and maybe trying “to save their own ass.” Sorum said that the video was dark and of “crappy quality” and that no one had been excited about watching the video. He said that he had immediately deleted it because they “couldn’t see anything really.”
Sorum testified that he first began to hear rumors about King’s party on Monday, September 30, 2013, at school. On cross-examination, Sorum was shown Fa-cebook messages between him and K.G. The following messages were sent Sunday, September 29:
K.G.: wtf [what the fuck] jeran I herd wtf u did
JjSqrum: wtf did I do
K.G.: nvm [never mind] its drew talking shit he’s saying u fucked me with a broom
Sorum: Ok well tell drew to stfu [shut the fuck up]
, Confronted with the Facebook messages, Sorum conceded that he was aware of the “rumors” before Monday. Sorum denied having conversations with. Wall and Postoak, about what they needed to say to the cops.
• Wall was recalled to the stand. He testified that Sorum had come to his house, had asked him not to cooperate with the police, and had said that they needed to come up with a story together. Postoak was also recalled to the stand. He testified that Sorum had come to speak with him a couple of times about “trying to get together and avoid getting caught up in this mess,” Postoak said that Sorum had" told him that they should come up with a plan and have the same story “so that this would blow over” and that if he “came up with a lie good enough that we could get out of it.”
II, Discussion
A. , Sufficiency of the Evidence
In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Burnside v. State, 2015 Ark. App. 550, 472 S.W.3d 497. We affirm a conviction if substantial evidence exists to support it. Id. Substantial evi dence 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, It is the jury’s duty to resolve conflicting testimony and determine the credibility of witnesses. Id.
I sl. Rape
A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person who is incapable of consent because he or she is mentally incapacitated. Ark. Code Ann. § 5—14—103(a)(2)(C) (Supp. 2015). “Deviate sexual activity” means any act of sexual gratification involving the penetration, however slight, of the labia majora or anus of a person by any body member or foreign instrument manipulated by another person. Ark. Code Ann. § 5—14—101(1)(B).
Sorum does not challenge the fact that K.G. was incapable of consent. Below, Sorum challenged the penetration element in the term “deviate sexual activity.” On appeal, he also argues that the State failed to prove sexual gratification. This argument, however, is not preserved for our review because it is being raised for the first time on appeal. Patton v. State, 2013 Ark. App. 583, 2013 WL 5744922.
Sorum, argues that the only evidence of penetration was from Wall’s testimony and that there is no reasonable probability that Wall’s version is correct. Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975). Wall gave several different versions of the story and denied facts that were beyond dispute, e.g., he supplied the condom. Sorum contends that Wall’s testimony was based on a drunken memory from over two years prior to the trial and that the video is the “absolute proof of what took place in the room.”
The jury heard Sorum’s voice on the video and could have reasonably concluded that Sorum intended to penetrate KG.’s vagina with the broomstick. Although the video did not depict the penetration, there was testimony that the. video stopped abruptly because the battery in Sorum’s cell phone had died during the recording. Even without the video, |9the jury determines the credibility of witnesses and could have believed Wall’s testimony that Sorum penetrated K.G.’s vagina with the broomstick. There was also testimony from several of Sorum’s friends—some of whom were reluctant witnesses—that So-rum, when showing them the video, said that he had “fucked,” “fd,” or “screwed” KG. with the broomstick. We hold that there was substantial evidence to support Sorum’s conviction for rape.
2. Second-Degree Sexual Assault
A person commits sexual assault in the second degree if the person engages in sexual contact with another person who is incapable of consent because he or she is mentally incapacitated. Ark. Code Ann. § 5-14-125(a)(2)(C). “Sexual contact” means any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female. Ark. Code Ann. § 5-14-101(10). “Sexual gratification” is not defined in the statute, but our supreme court has construed the words in accordance with their reasonable and commonly accepted meanings. Farmer v. State, 341 Ark. 220, 15 S.W.3d 674 (2000).
Again, Sorum does not challenge the fact that KG. was incapable of giving her consent. Below, he argued that there was no proof of sexual gratification and questioned whether the contact was sexual in nature. Sorum has abandoned his challenge to the element of sexual contact on appeal. Dillard v. State, 313 Ark. 439, 855 S.W.2d 909 (1993).
ImSorum argues that there was no proof of sexual gratification and that it is “much more plausible” that he was just intoxicated and “messing with K.G.” as he had done in the past with party attendees who passed out. He points out that the State’s circumstantial evidence must exclude every reasonable hypothesis other than his guilt.
Whether the evidence excludes every other hypothesis is for the jury to determine. Baca v. State, 2013 Ark. App. 524, 2013 WL 5371954. Moreover, it has consistently been held that it is not necessary for the State to provide direct proof that an act is done for sexual gratification if it can be assumed that the desire for sexual gratification is a plausible reason for the act. Farmer, supra. Considering Sorum’s statements on the video and testimony about his excitement when replaying the video for his friends while bragging about what he had done to K.G. with a broomstick, the jury could reasonably conclude that Sorum’s actions were taken in an effort to achieve sexual gratification. Moreover, the jury was not required' to believe that Sorum was only playing a harmless prank on his friend. We hold that there was substantial evidence supporting Sorum’s conviction for second-degree sexual'assault.
3. Computer Exploitation
A person commits computer exploitation of a child in the first degree if the person causes or permits a child to engage in sexually explicit conduct and knows, has reason to know, or intends that the prohibited conduct may be photographed, filmed, reproduced, reconstructed in any manner, including on the Internet, or part of an exhibition or performance. Ark. Code Ann. § 5-27-605(a)(1) (Supp. 2015). “Sexually explicit conduct” means actual or simulated sexual intercourse or deviate sexual activity, among other things. Ark. Code Ann. § 5-27-601(15). “Deviate sexual activity” means any act involving the | n penetration, however slight, of the labia majora or anus of a person by any body member or foreign instrument manipulated by another person. Ark. Code Ann. § 5-27-601(7)(B).
Below, Sorum argued that “sexually explicit conduct” must refer to “deviate sexual activity,” which requires the element of penetration and that evidence of penetration was lacking. His argument on appeal has changed, and Sorum relies on the subchapter definitions under Ark. Code Ann. § 5-27-302. He argues that KG. was not engaged in “sexually explicit conduct” as defined by section 5-27-302(4) in that (1) the State alleged that actual conduct occurred—not simulated, and (2) the conduct alleged to have occurred did not make it appear to a reasonable viewer to be “(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, (B) bestiality, (C) masturbation, (D) sadomasochistic abuse for the purpose of sexual stimulation, or (E) lewd exhibition of the genitals or pubic area of any person or the breast of a female.” Ark. Code Ann. § 5-27-302(4).
Subchapter 3’s title is the “Arkansas Protection of Children Against Exploitation Act of 1979.” Ark. Code Ann. § 5-27-301. Subchapter 6 involves computer crimes against minors. Each subchapter has its own definitions section. Although there are similarities, we are dealing with subchapter 6 and not 3. Therefore, we cannot address what amounts to a new argument for the first time on appeal, and Sorum has abandoned his challenge regarding penetration under “deviate sexual activity” as defined by Ark. Code Ann. § 5-27-601(7)(B).
Sorum also argues for the first time on appeal that there was no evidence that he knew, had reason to know, or intended the conduct would be filmed. A directed-verdict motion requires the movant to apprise the trial court of the specific basis on which the | ¶ ¿motion is made. Patton, supra. Arguments not raised at trial will not be addressed for the first time on appeal, and parties cannot change the grounds for an objection on appeal, but are bound by the scope and nature of the objections and arguments presented at trial. Id.
B. Double Jeopardy
The Fifth Amendment to the United States Constitution provides that no person shall be twice put in jeopardy of life or limb for the same offense. Hughes v. State, 347 Ark. 696, 66 S.W.3d 645 (2002). Arkansas’s Constitution is similar. Ark. Const. article 2, § 8. 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. However, the defendant may not be convicted of more than one offense if one offense is included in the other offense. Ark. Code Ann. § 5-1-110(a)(1). An offense is included in an offense charged if the offense is established by proof of the same or less than all of the elements required to establish the commission of the offense charged. Ark. Code Ann. § 5-1-110(b)(1).
Sorum asserts that second-degree sexual assault is a lesser-included offense of rape and cites this court’s decision in X.O.P. v. State, 2014 Ark. App. 424, 439 S.W.3d 711. He says, therefore, the trial court violated the prohibition against double jeopardy. Sorum, however, did not move to dismiss on double-jeopardy grounds below. When the argument of double jeopardy was not raised below, we cannot consider that argument on direct appeal. State v. Montague, 341 Ark. 144, 14 S.W.3d 867 (2000).
C. Rape-Shield Statute
Under Arkansas’s rape-shield statute, Ark. Code Ann. § 16-42-101 (Repl. 1999), evidence of a victim’s prior sexual conduct is inadmissible by the defendant to attack the | ^credibility of the victim, to prove consent or any other defense, or for any other purpose. Ark. Code Ann. § 16-42-101(b); State v. Rapp, 368 Ark. 387, 246 S.W.3d 858 (2007). An exception to this rule exists when the trial court, at an in camera hearing, makes a written determination that such evidence is relevant to a fact in issue and that its probative value outweighs its inflammatory or prejudicial nature. Id. The purpose of Ark. Code Ann. § 16—42—101(b) is to shield victims of rape or sexual abuse from the humiliation of having their personal conduct, unrelated to the charges pending, paraded before the jury and the public when such conduct is irrelevant to the defendant’s guilt. Taylor v. State, 355 Ark. 267, 138 S.W.3d 684 (2003). Accordingly, the trial court is vested with a great deal of discretion in determining whether the evidence is relevant, and we will not overturn the trial court’s decision unless it constituted clear error or a manifest abuse of discretion. Id.
Prior to trial, Sorum filed a motion to present evidence under Ark. R. Evid. 411 and Ark. Code Ann. § 16-42-101 to prove his mistaken-identity defense. Specifically, he wanted to admit a crime-lab report that he asserts revealed two semen- stains that were found on clothing worn by the victim. One semen sample matched Postoak’s DNA profile, and the other sample came from an unknown source but excluded So-rum. as a contributor. Sorum thps sought to admit the “exonerating DNA test results.”
An in camera hearing was held, and defense counsel argued that
there is' unidentified semen stain on this sweatshirt the alleged victim wore the night in question ... we think it happened prior to any interaction between this • defendant, Drew Wall, the other codefendant, and the alleged victim—at some point Isaac Postoak, according to his own testimony and what he’s pled to, came in and videotaped himself having sex with the-alleged victim, in this case. And given the fact 114that he’s one of the sets of semen on this sweatshirt, that would probably , make sense if you think about it. He’s already pled out so it’s not really an issue. I mean, he’s not denying he had some form of consensual sex with this girl that night. I think the second set of DNA, which does hot match Mr. Sorum’s, which is this mystery DNA ... clearly, it goes to exonerate the fact that if our defense is mistaken identity, this girl wás passed-out drunk that night— she doesn’t even remember having sex with Postoak at first, only later did she confirm that—then in Postoak’s—his description of that particular sexual event mirrors very closely factually what she later in her second and third statements to police, not her first statement—the first statement she doesn’t identify Mr. Sorum at all. She said, some guy came in and I was too drunk to push him off of me. Didn’t identify Jeran Sorum or anything. But later she says, oh, I guess I did have consensual sex with Postoak. And Postoak says, oh, yeah, it’s consensual. Whatever. That still doesn’t account for this mystery DNA on there. And again, if the story is—if her story is going to be well, Jeran Sorum came in and had unconsensual sex with me and/or did something with a broomstick with me, again we’re not asking her who she had sex with last week, we’re not asking her anything ab,out that, what her sexual knowledge is, we’re asking what happened probably within a good 30 minutes it sounds like either before or after this alleged rape ... I don’t care who she had sex with before and I don’t care what she did after. That’s all we’re asking is that narrow probably half-hour window of time. And I don’t— I’m not even going to ask her who was the other DNA. .1 just want the serologist [from] the lab to come up here and say we found two sets óf DNA. Whose was it? Postoak and somebody else.
The State argued that it was not alleging sexual intercourse as the method of rape and not alleging that Sorum ejaculated on or in K.G. Rather, the State alleged that Sorum had penetrated K.G.’s vagina with a foreign instrument and therefore evidence about semen was completely irrelevant. Also, the State pointed out that the clothing worn by the victim had been .picked up off the floor to dress K.G. “[s]o we don’t know if that othqr semen stain is from an encounter weeks earlier with other people.”
The trial court- entered an order specifically denying Sorum’s “motion to introduce DNA evidence of unknown origin.” The trial court found that it clearly violated the rape-shield statute and that the probative value of the evidence was not outweighed by its prejudicial impact.
1 ^Subsequent to the in camera hearing, the State filed-a motion in limine to exclude any reference to KG.’s prior sexual contact with Postoak on the bases that it was wholly irrelevant to the charges against Sorum, was excluded by the rape-shield statute, was more prejudicial than probative, and would only confuse and mislead the jury.
At a bench conference during trial, the trial court addressed motions that had not previously been put on the record. The trial court mentioned, among other things, the State’s motion in limine to exclude any reference to prior sexual contact between KG. and Postoak. Defense counsel said, “Same thing, Your Honor, no objection there.” The trial court then granted the State’s motion.
1, Evidence of DNA on KG.’s clothes
The DNA evidence was not relevant given the nature of the State’s allegations against Sorum. In Thacker v. State, 2015 Ark. 406, 474 S.W.3d 65, the trial court had refused to admit semen samples found on the victim’s bedsheet and pillow that did not match Thacker’s DNA profile. In rejecting his argument that the trial court erred because the evidence was relevant to his theory that someone other than him was the rapist, our supreme court upheld the ruling, reasoning that, because Thacker had not ejaculated while in the bedroom, evidence of DNA would not be probative to his theory of misidentification. Here, admitting the DNA report would not-have exonerated Sorum because the State alleged that he penetrated the victim with a broomstick, thus DNA evidence was not relevant.. We cannot say that the trial court abused its discretion in excluding this evidence.
- | ifi2. Evidence of EG. having sex at the party
On appeal, Sorum argues that evidence that K.G. had sex with Postoak at the party would demonstrate that KG. was mistaken about her recollection of the event; it would show that she mistakenly identified Sorum; and it would explain why her pants were down, why her vaginal area was wét, and why she experienced painful urination the next day. He further argues that case law has repeatedly recognized that testimony of the alleged victim’s sexual activity may be introduced if it occurred around the same time as the criminal offense charged.
Defense counsel, referenced sexual activity between KG. and Postoak in his rape-shield motion and at the hearing, but he did so in the context of seeking to introduce the results of the DNA report. To the limited extent one could even say that defense counsel made an argument to admit such evidence, the trial court did not rule on the matter in that the written order referenced only the DNA evidence of unknown origin. Rounsaville v. State, 372 Ark. 252, 273 S.W.3d 486 (2008). The trial court, therefore, was never asked to assess the relevance of KG.’s sexual activity and to engage in a balancing of prejudicial impact and probative value as required by the rape-shield statute. When the trial court was contemplating its ruling on the State’s motion in limine precisely covering the subject of KG.’s prior sexual contact with Postoak, defense counsel stated that he had no objection to excluding that evidence, even if he mistakenly believed that the matter had been decided by the trial court’s earlier rape-shield ruling. Sorum’s challenge was thus waived, and we do not address his arguments on appeal. See Dillard, supra.
|17In any event, defense counsel failed to proffer the evidence he sought to admit at the in camera hearing. Specifically, defense counsel referred to statements he asserts were made by Postoak and K.G., yet he did not provide those statements or any testimony. At an in camera hearing, the defendant must offer the evidence of prior sexual conduct. Dicandia v. State, 2010 Ark. 413, 2010 WL 4354239. The failure to proffer evidence so that this court may determine prejudice precludes review of the issue on appeal. Id. See also Marcum v. State, 299 Ark. 30, 771 S.W.2d 250 (1989) (rejecting rape-shield argument where there was no proffer in the record of the evidence Marcum proposed to introduce); Farrell v. State, 269 Ark. 361, 601 S.W.2d 835 (1980) (refusing to reach the merits of rape-shield argument because the offer of proof of the victim’s prior sexual conduct was inadequate).
Affirmed.
Whiteaker and Murphy, JJ., agree.
. Sorum did not argue below .or on appeal that Wall was an accomplice whose, testimony required corroboration, which precludes our review of the issue. Bryant v. State, 2011 Ark. App. 348, 384 S.W.3d 46.
. Arkansas Rule of Evidence 411 involves the • admissibility of evidence of a victim’s prior sexual conduct,
. "Same thing” refers to defense counsel’s earlier statement in response to the State's motion in limine to exclude evidence of prior sexual conduct between.K.G. and Sorum. He said, "I'd say that’s a belt-and-suspenders after the rape shield motion.” | [
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LARRY D. VAUGHT, Judge
| TAppellants, Arkansas Department of Correction (ADC) and the Public' Employee Claims Division of the-Arkansas Insurance Department (collectively referred to throughout as appellants), appeal the decision of the Arkansas Workers’ Compensation Commission (the Commission) reversing the Administrative Law Judge’s (ALJ) decision and awarding appellee, Christie Dawn Jennings, benefits under Arkansas Code Annotated section ll-9-505(a) (Repl. 2002). We affirm.
On April 20, 2015, Jennings began working as a correctional officer at the East Arkansas Regional Unit of the ADC (commonly known as the Brickeys Unit). On June 29, 2015, Jennings was serving food in the barracks when she slipped on the wet floor and twisted her right knee. She alerted a coworker to the injury, and her coworker contacted the lieutenant. The lieutenant and the sergeant came down to the barracks and instructed Jennings to fill out an injury report, which she did. They then sent her to see Dr. James Jacobs in Wynne, and she | ¿was seen by Dr. Jacobs that day. Dr. Jacobs diagnosed her with a “sprain of right knee” and wrote that she was “unable to work.” The ADC paid temporary total-disability benefits beginning June 30, 2015. On July 1, 2015, an MRI on Jennings’s knee revealed “ederrta surrounding the superficial MCL, suggesting a grade I sprain” and “[pjatellofemoral and medial femorotibial compartment chondromalacia” with “small knee joint effusion,” At a follow-up appointment on July 6, Dr. Jacobs again found that Jennings could not work. On July 13, Dr. Jacobs recommended that Jennings “wear knee brace, return to work 7/14/15.” It is undisputed that the ADC paid temporary total-disability benefits through July 13, 2015.
Jennings then returned to restricted work at the Brickeys Unit. She performed restricted, duties for one month, working in the isolation area. She sat at a desk in a guard station and kept a log of ,who' entered and exited the building. Although the general policy was to rotate employees to new work assignments every two weeks, Jennings worked the desk in isolation for a month while her knee continued to heal. On or about August 4, 2015, Jennings was rotated to a patrol position in the barracks. Jennings testified that the patrol job required a significant amount of walking and climbing stairs, which she had not done since her injury. She testified that when she woke up on the morning after her first day on patrol duty, her knee was severely swollen and she could not walk. She immediately called both her lieutenant and the ADC’s designated contact person for workers’-compensation claims, Rudy Bischof (whom she could not reach). Jennings theri went to see a doctor, who took her off work for a week due to the swelling in her knee. Bischof returned Jennings’s phone call and instructed her to see Dr, Jacobs, which she did. Dr. Jacobs put Jennings on light duty from August 12 until she [3could be seen by an orthopedic surgeon, Dr. Guinn, on August 26. It is undisputed that the ADC reinstated temporary total-disability benefits on August 6.
On August 26, Dr. Guinn performed an MRI, diagnosed Jennings with a “Grade I MCL,” and prescribed physical therapy, a new knee brace, and “sitting duty” at work. Because the ADC had a policy of periodically rotating employees to different positions, it did not put her on a desk job such as the one she had just completed. Jennings was told that there were no light-duty positions available, and then on August 31, 2015, the ADC terminated Jennings’s employment, stating that she was not a “qualified employee” under the Family Medical Leave Act (FMLA). Jennings’s termination letter stated that once she had recovered and could perform all necessary job functions, she could reapply for her job and .would be-“considered for rehire.’.’ It is undisputed that the ADC continued to pay Jennings’s temporary total-disability benefits until she reached maximum medical improvement and was released by Dr, Guinn to return to full duty.
On November 12, Jennings’s attorney corresponded with the ADC counsel and demanded that Jennings be reinstated to her previous position, with all benefits, rank, pay, seniority, etc., as it was before she was terminated. The ADC refused to reinstate Jennings.
Jennings filed a claim for additional compensation for a period beginning November 9, 2015, pursuant to Arkansas Code Annotated section 11-9-505 due to the ADC’s refusal 'to return her to work. The ADC controverted the claim. After a hearing, the ALJ ruled in favor of the ADC, finding that Jennings had not proved that she was entitled to benefits. In an |4opinion dated October 25, 2016, the Commission reversed the.ALJ and awarded Jennings benefits under section 11-9-505. The Commission awarded Jennings her average weekly wages for a period beginning November 10, 2015, and not exceeding one year, benefits hot to be subtracted.
In appeals from the Arkansas Workers’ Compensation Commission, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings, and we must affirm if those findings are supported by substantial evidence. Mullin v. Duckwall Alco, 2016 Ark. App. 122, 484 S.W.3d 283. The issue on appeal is not whether the appellate court would have reached a different result or whether the evidence could support a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm. Id.
Arkansas Code Annotated section 11—9— 505(a)(1) states:
Any employer who without reasonable cause refuses to return an employee who is injured in the course of employment to work, where-suitable employment is available within the employee’s physical and mental limitations, upon order of the Workers’ Compensation Commission, and in addition to other benefits, shall be liable to pay to the employee the difference between benefits received and the average weekly wages lost during the period of the refusal, for a period not exceeding one (1) year.
Ark. Code Ann. § 11-9-505 (Repl. 2002).
On appeal, appellants argue that the Commission erred because (1) Davis v. Dillmeier, 330 Ark. 545, 956 S.W.2d 155 (1997), interpreted subsection 505(a) as not allowing for additional benefits when the claimant was no longer receiving workers’compensation benefits; (2) Jennings had not proven her entitlement to 505(a) benefits; (3) the Commission awarded a full year of benefits to Jennings despite the fact that a full year had not yet elapsed | sat the time of the ruling; and (4) the Commission awarded her 505(a) benefits without subtracting any other benefits, when there was evidence that she received unemployment.
Appellants argue that Davis is controlling and prohibits an award of. 505(a) benefits in this case, In Davis, the Arkansas Supreme Court held that a claimant who was no longer receiving workers’-compensation benefits for disability was not entitled to benefits under subsection 505(a) because the statute allows for 505(a) benefits “in addition to other benefits.” Ark. Code Ann. § 11-9-505(a)(1). However, Davis has been narrowed and distinguished by subsequent cases, which noted that Davis was not a workers’-compensation case but was instead a civil rights case originating in circuit court. See, e.g., Clayton Kidd Logging Co. v. McGee, 77 Ark. App. 226, 230, 72 S.W.3d 557, 559 (2002). In fact, in Davis, the court specifically addressed whether the claims arose under subsection 505(a) and instead found that “this case presents an issue ‘of employer discrimination, rather than a situation where the employer has refused to return the injured employee to work.” Davis v. Dillmeier Enters., Inc., 330 Ark. 545, 551, 956 S.W.2d 155, 158 (1997).
In Clayton Kidd Logging, we affirmed the Commission’s award of 505(a) benefits, even though McGee was not receiving workers’-compensation disability benefits, saying conclusively that “Davis is not applicable to the case at hand,” in part because Davis is legally distinguishable as a civil-rights case and in part because Cynthia Davis had returned to work while she was receiving medical treatment and was later terminated only after she had fully concluded her workers’ compensation claim, making the case factually distinguishable. Clayton Kidd Logging Co., 77 Ark. App. at 230, 72 S.W.3d at 560. Finally, in Clayton Kidd Logging we relied on Torrey v. City of Fort Smith, 55 Ark. App. 226, 934 S.W.2d 237 (1996), a workers’-compensation case in which we held that, before section ll-9-505(a) benefits may be awarded, several requirements must be met: the employee must prove by a preponderance of the evidence (1) that he has sustained a compensable injury, (2) that suitable employment that is within his physical and mental limitations is available with the employer, (3) that the employer refused to return him to work, and (4) that the employer’s refusal to return him to work is without reasonable cause. Notably, the Torrey factors do not include any inquiry into whether the claimant is also receiving disability benefits. In Torrey, and again in Clayton Kidd Logging, we explained that “the legislative intent that the injured worker be allowed to reenter the work force permeates the language of sections of the Act.” Torrey, 55 Ark. App. at 230, 934 S.W.2d 237, 239 (1996).
In the present case, appellants are attempting to resurrect an argument we have previously considered and rejected. We again hold that Davis is distinguishable from workers’-compensation cases such as Torrey and Clayton Kidd Logging, and it provides no basis for reversal in the present case. An award of workers’-compensation disability benefits is hot a statutory prerequisite to an award of 505(a) benefits.
Appellants also argue that Jennings failed to prove that she was entitled to 505(a) benefits under the Torrey factors. As discussed above, Torrey established a four-prong test for awarding such benefits. Here, appellants do not challenge the first two factors, but they argue that the ADC did not refuse to return Jennings to work because it told her she could reapply for a position when she recovered and that its decision was not without reasonable cause.
First, we note that, even while recovering from her injury, Jennings could have, and tried to, return to work. Despite the ADC’s contention that Jennings was “off work with no 17return date,” Jennings had not been completely taken off work by her physician, she was simply given a work restriction of light or “sitting” duty. While the ADC told her that no light-duty positions were available, the evidence reveals that she had previously been given such a position, working at a desk in the isolation area for approximately a month. While the ADC has an internal policy of rotating workers to new assignments every two weeks, it is disingenuous for ADC to argue that light-duty work was not available to Jennings. Such work clearly existed within the scope of Jennings’s employment.
However, Jennings only sought and was awarded 505(a) benefits for ADC’s refusal to put her back to work when she fully recovered from her injury and could work without medical restriction. ADC contends that it did not refuse to return Jennings to work because it told her that she could reapply for an ADC job once she recovered. Jennings’s counsel demanded reinstatement to her previous position, which the ADC refused. We agree with the Commission’s findings that allowing an injured employee to “reapply” and “be considered” for employment is not sufficient to meet the statutory requirement that the employer return the employee to work. That is because the option to “reapply” and “be considered” for employment necessarily involves an element of uncertainty as to the outcome of the application process. Moreover, even if Jennings were rehired, she would have lost credit for the time she had successfully worked during her probationary period, requiring her to start anew. Both the plain language of the statute and its recognized purpose focus on returning an |8injured employee to work, and we agree with Jennings that reinstatement, rather than reapplication, was required.
Similarly, we reject the ADC’s argument that Jennings failed to prove the fourth Torrey prong because her failure to reapply for ADC employment gave the ADC “reasonable cause” not to return her to work. As discussed above, reapplication is not the equivalent of reinstatement, and the record clearly shows that Jennings’s attorney made a formal demand for reinstatement, which the ADC refused.
The ADC also argues that Jennings is not entitled to benefits under subsection 505(a) because, as a probationary employee, she was not protected by the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. The ADC claims that it cannot be held liable for abiding by the federal policy codified in the FMLA. This argument is unpersuasive. While it is true that Jennings was not covered under the FMLA’s job-protection provisions, she is not seeking a remedy under the FMLA. Instead, Jennings properly claimed that she was entitled to benefits under Arkansas workers’-compensation law. For Arkansas workers who are injured on the job, subsection 505(a) provides job protections apart from, and in addition to, what the federal government provides pursuant to the FMLA. Simply put, the' FMLA is irrelevant to the case at bar. While the ADC was not required to hold Jennings’s job and reinstate her under the | nFMLA, it is required to do so under subsection 505(a) of the Arkansas Code. Our state legislature has deemed it appropriate to grant enhanced job protections for those who are injured on the job, beyond what the FMLA generally provides for all covered employees.
Additionally, the ADC’s argument that interpreting subsection 505(a) in this way violates our state’s employment-at-will doctrine is misguided. While it is true that Arkansas is, by common law, an employment-at-will state, a common-law doctrine cannot override the clear and specific enactments of the Arkansas General Assembly in passing Arkansas Code Annotated section 11-9-505(a). It is a basic rule of statutory construction that we are to give effect to the intent of the legislature by giving words their- usual and ordinary meaning. Ark. Soil & Water Conservation Comm’n v. City of Bentonville, 351 Ark. 289, 92 S.W.3d 47 (2002). As former Chief Justice Howard Brill notes in Arkansas Law of Damages, “[t]he public policy exception to the at-will doctrine prevents employees from being discharged in violation of a well-established and substantial public policy of the state. Public policy is established by the Constitution and statutes.” Howard W. Brill & Christian H. Brill, Arkansas Law of Damages, § 19:2 (6th Ed. 2014).
The ADC next argues that it was error for the Commission to award benefits for a full year, when a full year had not yet elapsed since the date Jennings demanded and was denied reinstatement. However, the Commission’s order specifically states that “In accordance with the Court’s holding in Torrey, the claimant is entitled to continuing additional .benefits beginning November 10, 2015 for a period not exceeding one year.” Just as the Commission did not, in its written opinion, actually calculate her average weekly wage, it did not specify that she should be paid that wage for a full year, but instead simply cited to Torrey and the |1flstatute for the principle that the benefits cover the period in which the employer refuses to reinstate the claimant up to a year."
The ADC’s last argument is that the award of 505(a) benefits should have been reduced to reflect evidence that Jennings received unemployment benefits during the period covered by the award. This issue was not presented to the Commission as a question to be litigated in this casé, and the Commission made no specific findings on this topic. Moreover, the argument is undeveloped on appeal; the ADC has provided no legal citations on which we could base a reversal. To the extent that the ADC appears to rely on a separate workers’-compensation statute,. Arkansas Code Annotated section ll-9-506(a), which prohibits the award of disability benefits for any week that an injured employee receives unemployment benefits, that statute is not applicable here because 505(a) benefits are not disability benefits. Alternatively, to the extent that the ADC is arguing that unemployment benefits are contemplated under subsection 505(a)’s language allowing a claimant to recover “the difference between benefits received and the average weekly wages lost during the period of the refusal,” the Commission did not make , any finding that Jennings was receiving benefits of any kind, and the ADC argued below and on appeal that she was not.
Affirmed.
Klappenbach and Murphy, JJ., agree.
. The ADC paid benefits until November 8, 2015. Jennings was released to return to work on November 9, 2015.
. The cases on which appellants rely are distinguishable: they deal with the reasonableness (fourth Torrey prong) of the employer's refusal to hire the claimant for a different position when the claimant could no longer perform his or her previous work, see Miner v. Yellow Transp., Inc., 2009 Ark. App. 197, 301 S.W.3d 12; Lepel v. St. Vincent Health Servs., 96 Ark. App. 330, 333, 241 S.W.3d 784, 787 (2006), or where the employer provided a work accommodation and the claimant was terminated for other reasons, see Robertson v. Pork Group, Inc., 2011 Ark. App. 448, 384 S.W.3d 639. Appellants have neither cited, nor have we found, any case holding that designating an employee as “eligible to reapply” for her previous position generally satisfies subsection 505(a)’s reinstatement requirement.
. Specifically, appellants arguéd that Jennings was not entitled to 505(a) benefits under Davis because she was not receiving Workers'-compensation benefits. It did not address how or if unemployment benefits would have factored into that analysis. | [
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COURTNEY HUDSON GOODSON, Associate Justice
hThe State of Arkansas brings this interlocutory appeal from the Hot Spring County Circuit Court’s order dismissing the misdemeanor negligent-homicide charges against appellee Benjamin Ward Ledwell due to the expiration of the one-year statute of limitations. For reversal, the State argues that the circuit court erred in its interpretation of Arkansas Code Annotated section 5—1—109(f) (Supp. 2015). We reverse and remand.
On May 12, 2016, Arkansas State Police Special Agent Jimmie Thomas II, prepared an application for an arrest warrant for Ledwell. The affidavit alleged that, on May 19, 2015, Ledwell had committed four counts of negligent homicide, a Class A misdemeanor, when the vehicle he was driving crossed over the center line of Arkansas Highway 7 and hit another vehicle head-on, causing the death of all four occupants in the vehicle. The affidavit further stated that a blood sample obtained from Ledwell shortly after the accident | ¡>had tested positive for benzodiazepines and that Xanax and hydrocodone/acetami-nophen tablets were found inside his sock.
Based on the information contained in the affidavit, on May 13, 2016, the Hot Spring County Circuit Court found probable cause to support the negligent homicide charges, and the circuit court clerk issued a bench warrant for Ledwell on May 16, 2016. The warrant was served on June 2, 2016, when Ledwell voluntarily surrendered to police custody, and on June 6, 2016, the criminal information was filed charging him with four counts of negligent homicide.
Ledwell filed a motion to dismiss' the charges on October 14, 2016, arguing that the prosecution was not commenced within the applicable one-year statute of limitations. At the November 10, 2016 hearing on the motion, Ledwell specifically contended that because the criminal information had not been filed until June 6, 2016, which was more than one year after the accident had occurred, the statute of limitations had expired on the misdemeanor offenses pursuant to Arkansas Code Annotated section 5-1-109(b)(3)(A). In response, the State asserted that the arrest warrant had been issued on May 16, 2016, within the one-year statute of limitations. The State also presented the testimony of the, Hot Spring County Circuit Court clerk, who indicated that it was her practice to issue an arrest warrant after the prosecutor’s office had presented a criminal information and probable-cause affidavit. A case file with these documents would then be created once the arrest warrant had been returned. Because the arrest warrant had been issued based on the criminal information and affidavit, and the warrant was issued within one year of the accident, the State argued that the prosecution had been timely commenced in accordance with Arkansas |sCode Annotated section 5—1—109(f). The State asserted that there was no requirement in this subsection that the criminal information or other supporting documentation be filed in order for the prosecution to have “commenced.”
Following posthearing briefing, the circuit court entered an order on November 29, 2016, granting Ledwell’s motion to dismiss. The court found that the charging documents in this case had not been filed until June 6, 2016, and that the statute of limitations for the prosecution of the misdemeanor charges had expired by that date. The State timely appealed the circuit court’s order of dismissal on December 8, 2016.
As a threshold matter, we must first decide if we have jurisdiction to hear the State’s appeal in this case. Unlike that of a criminal defendant, the State’s right to appeal is limited to the provisions of Rule 3 of the Arkansas Rules of Appellate Procedure—Criminal. State v. Colvin, 2013 Ark. 203, 427 S.W.3d 635. Pursuant to Rule 3(d), we will not consider an appeal by the State unless the correct and uniform administration of the criminal law requires review by this court. Ark. R. App. P.—Crim. 3(d). In addition, we review only State appeals that are narrow in scope and that involve the interpretation, not the application, of a criminal rule or statutory provision. State v. Jenkins, 2011 Ark. 2, 2011 WL 143571; State v. Pittman, 360 Ark. 273, 200 S.W.3d 893 (2005). State appeals that merely demonstrate that the circuit court erred are not permitted. Jenkins, supra.
As the State contends, the issue presented in this appeal is whether the circuit court erred in its interpretation of Arkansas Code Annotated section 5-1-109(f). Because this is an issue of first impression involving statutory interpretation, our decision will have widespread application and is necessary for the correct and uniform administration. of the | .(Criminal law. Accordingly, jurisdiction of this appeal is properly in-this court. See, e.g., State v. Coble, 2016 Ark. 114, 487 S.W.3d 370 (accepting State appeal involving interpretation of Ark. Code Ann. § 5-14-110(a)(4)(C)).
We review issues of statutory interpretation de novo, as it is for this court to decide the meaning of a statute. Newman v. State, 2011 Ark. 112, 380 S.W.3d 395. Criminal statutes are construed strictly, and any doubts are resolved in favor of the defendant. Id. The primary rule of statutory interpretation is to give effect to the intent of the legislature. Id. We first construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language; if the language of the statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Id.
Pursuant to. Arkansas Code Annotated section 5-1-109(b)(3)(A), prosecution of a misdemeanor offense must be commenced within one year of the commission of the offense. “A prosecution is commenced when an arrest warrant or other process is issued based on. an indictment, information, or other charging instrument if the arrest warrant or other process is sought to be executed without unreasonable delay.” Ark. Code Ann. § 5-1-109(f). The Original . Commentary to-section 5-1-109 explained that “other charging instrument” was “intended to encompass affidavit complaints, citations, summons, and similar instruments which are presently or may hereafter be employed in non-felony prosecutions.” Original Commentary to Ark. Code Ann. § 5-1-109 (Repl. 1995).
The circuit court in this case interpreted subsection (f) to require that an indictment, information, or other charging instrument be filed in order to commence a misdemeanor | ^prosecution, regardless of whether an arrest warrant based’on that charging instrument had been issued prior to the expiration ,of the limitations period. In reaching this decision, the circuit court cited Administrative Order No. 2(a), which provides that “[a]ll papers filed with the clerk.... shall be noted chronologically in the dockets and filed in the folio assigned to the action and shall be marked with its file number,” and it also cited Administrative Order No. 2(b), which states that a judgment, decree, or order is “entered” when stamped or otherwise marked by the date and time and the word “filed.” Ark. Sup. Ct. Admin. Order No. 2(a), (b). In addition, the circuit court referred to our decision in Halfacre v. Kelley, 2016 Ark. 171, 2016 WL 1554614 (per curiam), wherein we emphasized a clerk’s duty to file-mark orders in accordance with Administrative Order No. 2(b).
As the State argues, however, this authority is not relevant to the question whether a misdemeanor prosecution -has been commenced under Arkansas Code Annotated section 5-1-109(f). The plain and unambiguous language in this subsection states that a prosecution commences when an arrest warrant is- issued based on a criminal information or other charging instrument. There is no requirement in this statute that the charging instrument be filed of record within the one-year-limitations period. Further, this interpretation is consistent with the Original Commentary and the 1988 Supplemental Commentary to section 5-1-109, both of which indicate that subsection (f) changed pre-Code law by providing that a prosecution commences with the issuance of an arrest warrant rather than the filing of criminal charges. Original Commentary & 1988 Supp. Commentary to Ark. Code Ann. § 5-1-09 (Repl. 1995). See also Clark v. State, 2012 Ark. App. 496, 423 S.W.3d 122 (holding that a prosecution for a misdemeanor offense began on the date the arrest warrant was issued, not on the date the warrant was filed with the clerk).
Accordingly, we agree with the State that the circuit court erred in its interpretation of section 5—1—109(f) and in concluding that the prosecution in this case had not commenced within the applicable limitations period. Because the circuit court erred by granting Ledwell’s motion to dismiss, we reverse and remand for further proceedings.
Reversed and remanded.
. While Ledwell argues that no documents were filed of record in this case until after the statute of limitations had expired and that he therefore did not receive proper notice of the prosecution, section 5—1—109(f) is concerned only with whether a prosecution has been timely commenced. Ledwell does not dispute that the arrest warrant was issued prior to the expiration of the statute of limitations, nor does he contend that the criminal information and other charging documents filed subsequent to his arrest were insufficient to give him notice of the charges against him. | [
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N. MARK KLAPPENBACH, Judge
11 Appellee Christopher Phillips, an officer employed by appellant Little Rock Police Department (“LRPD”), admittedly violated particular internal rules and regulations of LRPD in April 2014. As a consequence, LRPD’s police chief made the decision to demote Phillips from the rank of sergeant to the rank of patrolman. Phillips appealed this decision to the civil service commission, which ultimately affirmed the police chiefs decision. Phillips appealed again to the Pulaski County Circuit Court. After hearing the matter de novo, the circuit court found that, as a consequence of admitted rule and regulation violations, the proper sanction for Phillips was to be assessed a thirty-day suspension without pay instead of demotion to patrolman. LRPD appeals from the order entered on March 4, 2016, in Pulaski County Circuit Court that set aside the demotion and imposed the thirty-day suspension. LRPD |2seeks reversal, arguing on appeal that the circuit court clearly erred and that demotion was the proper sanction. We affirm.
First, we set out the legal framework of this particular subject in Arkansas law prior to conducting our appellate review. The right of appeal by the city or employee is given from any decision of the civil service commission to the circuit court within whose jurisdiction the commission is situated. Ark. Code Ann. § 14-51-308(e)(1)(A) (Repl. 2013). The circuit court reviews decisions of the civil service commission de novo and has jurisdiction to modify the punishment fixed by the commission even if the circuit court agrees that the officer violated department rules and regulations. City of Little Rock v. Hall, 249 Ark. 337, 459 S.W.2d 119 (1970); City of Little Rock v. Young, 34 Ark. App. 135, 806 S.W.2d 38 (1991). The circuit court may modify the punishment even if the evidence it relies on in doing so was not presented to the commission. City of Van Buren v. Smith, 345 Ark. 313, 46 S.W.3d 527 (2001). The effect of this statutory provision for a de novo appeal to circuit, ¡court is to reopen the entire matter foi consideration by the circuit court, as if a proceeding had been originally brought in that forum; the circuit court proceeding is in the nature of an original action. City of Little Rock v. Hudson, 366 Ark. 415, 236 S.W.3d 509 (2006).
The standard of review in these matters is well settled. We review the findings of the circuit court to determine whether they are clearly against the preponderance of the evidence. Tovey v. City of Jacksonville, 305 Ark. 401, 808 S.W.2d 740 (1991). In our review of the circuit court’s findings; we give due deference to the circuit court’s superior position to determine the credibility of the witnesses and the weight to be accorded to them testimony. Carson v. Cnty. of Drew, 354 Ark. 621, 128 S.W.3d 423 (2003). Further, disputed facts and determinations of witness credibility are within the province of the fact-finder. Hudson, supra.. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has. been made. Found. Telecomms. v. Moe Studio, 341 Ark. 231, 16 S.W.3d 531 (2000).
At this juncture, we set out a more expansive examination of the proceedings that led to this appeal. The material facts are not in dispute and were largely stipulated. On April 12, 2014, two police officers (Kenneth Baker and Brittney Gunn) were involved in an automobile accident wherein Baker backed his patrol car into the' front bumper of Gunn’s patrol car. This caused Gunn’s push bumper to be out of alignment. After arriving back at the substation, Gunn began to prepare an accident report when Sergeant Phillips told Gunn to discontinue' the report. Phillips examined the damage, determining that Baker’s vehicle had minor scratches on the rear bumper and that Gunn’s vehicle had its push bumper out of place. Phillips believed that the damage could be easily repaired, so he consulted with another officer 14(Jason Deno). Deno had training and several years of experience in auto body and collision repair. Deno- believed that he could repair the damage with tools from his home. Phillips authorized Baker, Gunn, and Deno to take Gunn’s vehicle to Deno’s home and attempt repair. After about an hour, the three officers reported back to Phillips that the repair attempt was unsuccessful and that a bolt had broken during the attempt. Phillips and Deno then went to the city garage and obtained a replacement bolt from a wrecked police unit.
Phillips instructed Baker, Gunn, Deno, and a probationary officer riding with Deno (Todd Davis) to meet him at the rear of a nightclub, Electric Cowboy, at its garage area. These officers remained out of service with Phillips’s authorization for the few hours they spent at Electric Cowboy. Phillips spoke to the manager at the nightclub, who agreed to help Phillips repair the bumper. In order to put the bumper back into place, they used a rubber mallet to push it and a tow strap attached to a truck to pull it; then they replaced the broken bolt. The manager advised Phillips that the vehicle’s broken crossmember needed to be welded back into place. Phillips told the officers that the incident would be reported to Lieutenant Thomas the next day and that if Thomas did not approve of the actions taken, a file on the incident would be generated.
Deno and Davis became uncomfortable and left "the nightclub. The manager welded the crossmember after disconnecting the electrical wires from the- bumper, reconnecting the wires afterward. Touch-up paint was applied to the bumper. Phillips, Baker, and Gunn then returned to the police substation.
LOn April 13, 2014, Phillips had Lieutenant Thomas examine the push bumper to determine whether an accident file should be completed. Phillips reported that the push bumper had been damaged but that he had repaired the damage. Thomas did not believe the vehicle to be seriously damaged, so Thomas signed a notation of damage in the vehicle’s damage book but wrote that no further action was necessary.
On April 23, 2014, a police officer (Donna Lesher) took this vehicle to an authorized repair location after it was reported that the strobe lights were not working. Lesher discovered that the push bumper had been damaged and repaired in a manner not consistent with LRPD policy. Le-sher reported this to Captain Hastings. Thomas overheard the conversation, and Thomas said that the damage resulted from an accident that had happened on April 12, 2014. Phillips heard this conversation as he approached, adding that there was a minor accident and that he had fixed the damage with help from a friend. Hastings' ordered Thomas to investigate the situation.
Phillips later said that he told Thomas on April 23 that he had welded the broken crossmember, but Thomas said that he was unaware of that. Phillips acknowledged that the police patrol unit did not belong at a nightclub for the purpose of repairs, and he acknowledged that he mis-allocated LRPD manpower by directing the officers to bring the vehicle to Electric Cowboy on thé evening of April 12'.
The police chief determined that Phillips had violated two general orders and four rules and regulations of the LRPD. The violations concerned requirements that any accident | ¿resulting in damage be followed by an accident report with certain protocol for vehicle repairs; that no repair be made without the permission of the police chief; and that officers refrain from conduct unbecoming an officer or in dereliction of their duty. The police chief believed that Phillips was trying to help his subordinate officers and did not have bad intentions, that he had exercised bad judgment, that he was honest and took responsibility for his actions, and that he had a good police record. In the end, the police chief demoted Sergeant Phillips to the rank of patrolman, although he did not preclude him from participating in future promotional opportunities.
Officers Deno and Baker each received a one-day suspension for violating LRPD rules. Officer Gunn received a letter of reprimand. Probationary Officer Davis was given informal counseling, a copy of which was added to his personnel file.
Phillips appealed his demotion to the civil service commission, which upheld the findings that Phillips had violated multiple rules and regulations and that the police chiefs decision to demote Phillips was the proper sanction. Phillips appealed this decision to the circuit court.
Phillips’s attorney asserted that the appropriate sanction was a thirty-day suspension without pay, which would translate into a one-twelfth reduction in Phillips’s salary, without the drastic economic and professional hardship that a demotion would impose. His attorney |7pointed to Phillips’s previous eighteen years of outstanding service in the LRPD. His attorney also noted that the prior police chief had customarily permitted officers the discretion to handle minor accidents with minor damage without requiring the filing of reports. LRPD’s attorney argued that Phillips had set a bad example for his subordinates, he had gone beyond any pri- or custom and beyond common sense in this situation, and he had negatively affected the respect and credibility he had earned with the officers beneath his rank. LRPD’s attorney pointed out that this happened after LRPD had received bad publicity regarding another officer being on trial for shooting and killing a suspect. Thus, LRPD asserted, LRPD had a new police chief who was justifiably being very protective of LRPD’s reputation.
The trial court ruled from the bench that Phillips clearly did not have any evil intent but rather exercised bad judgment; that Phillips had a good record and ultimately was honest and took responsibility for his error in judgment; and that it was “obvious that this was a stupid series of actions that got out of control.” The trial court acknowledged that it was “hard to figure out when a minor accident becomes a major one.” The trial court concluded that demotion was too severe a punishment, setting it aside and imposing a thirty-day suspension without pay. A formal order was subsequently entered, and this appeal followed.
There is no question that Phillips violated LRPD rules and regulations in this situation; the issue is solely what the proper sanction is for these transgressions. LRPD asserts on appeal that this turned out to be a major repair undertaking, that Phillips did not have “carte blanche Rto do as he pleased and violate the Department’s rules,” that he had damaged his reputation within LRPD, and that he needed to demonstrate his capability to exercise good judgment before being placed in a supervisory position again. LRPD considers a thirty-day suspension to be “a mere slap on the wrist,” noting that demotion is a less drastic sanction than termination.
Phillips counters that the trial court did not clearly err in finding demotion to be too harsh in this situation. Phillips also asserts that loss of a month’s pay is not an insignificant punishment. He cites City of Little Rock v. Hall, 49 Ark. 337, 459 S.W.2d 119 (1970), as support for the trial court’s decision. In Hall, a police officer was discharged for slapping a suspected felon, but the circuit court found the punishment to be too severe, reducing the sanction to a thirty-day suspension. Officer Hall had unjustifiably struck the suspect, but the trial court found it compelling that Hall, who had eight years on the force, had been an exemplary and dedicated officer. The trial court’s reduction in punishment was affirmed by our supreme court. Phillips also cites City of Van Buren v. Smith, 345 Ark. 313, 46 S.W.3d 527 (2001), as supporting an affirmance of the trial court. In Smith, a firefighter’s termination for using profanity was reversed by the circuit court, which imposed a thirty-day suspension instead. Our supreme court affirmed the circuit court, holding that the decision to reduce the punishment was not clearly against the preponderance of the evidence.
LRPD responds that Hall is distinguishable from Phillips’s case because Phillips committed multiple rule violations and involved other police officers, which resulted in far |3greater repercussions for LRPD. LRPD acknowledges that the circuit court had the authority to reduce Phillips’s penalty, but it urges our court to have a definite and firm conviction that a mistake was made in doing so. We are not left with such a definite and firm conviction. .
We acknowledge that Phillips’s rule violations were more egregious than those in Smith and Hall. Phillips admittedly violated LRPD policy and involved other officers. Nonetheless, Phillips had no evil intent, he was attempting to help lower-ranking officers, he had served admirably for eighteen years on the force, and he took responsibility for his error in judgment. It was undisputed that LRPD’s previous police chief had permitted the exercise of some discretion in deciding to handle minor repairs without formally adhering to reporting and repair protocol. In light of this evidence, we cannot say that the trial court’s decision to impose a thirty-day suspension without pay was clearly erroneous. We are not left with a distinct and firm conviction that the trial court made a mistake.
Affirmed.
Vaught and Murphy, JJ., agree.
. This appeal was originally filed by LRPD in the Arkansas Supreme Court, which transferred the appeal to our court pursuant to an opinion handed down on May 4, 2017, Little Rock Police Department v. Phillips, 2017 Ark. 165, 2017 WL 1827796. The supreme court held that the statutory language in Arkansas Code Annotated section 14-51-308(e)(2)(A) (Repl. 2013), giving the right of appeal from circuit court to the supreme court in civil-service appeals, does not limit appellate jurisdiction to the supreme court. The supreme 'court held that “civil service appeals pursuant to section 14-51-308 shall be filed in the court of appeals unless there is another basis for [supreme court] jurisdiction," Id. See also Bales v. City of Fort Smith, 2017 Ark. 161, 518 S.W.3d 76.
. Phillips presented evidence from a professor of economics to explain the financial consequences of demotion, calculating a permanent demotion for Phillips to be a loss well in excess of $100,000. In contrast, a thirty-day suspension without pay would result in an approximate $6,000 loss in income. | [
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Riddick, J.,
(after stating the facts.) This is an appeal by a’ defendant from a judgment convicting him of murder in the second degree, and assessing his punishment at fifteen years’ imprisonment. We have read the instructions given by the presiding judge, and find nothing calculated to prejudice the rights of the defendant.
Counsel contends that the court erred in reading to the jury, as part of his charge, a section of the digest which provides that, “the killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide devolves on the accused,” etc. Kirby’s Digest, § 1765. Counsel say that the giving of this section eliminated the doctrine of reasonable doubt, but' we do not think so. When taken in connection with the instruction on the question of reasonable doubt given by the court, it means nothing more than that, when the killing is proved, if the State produces no evidence tending to mitigate or excuse the homicide, it devolves on the accused to do so; but when any evidence is introduced, either on the part of the State or the defendant, which, taken in connection with the other evidence in the case, raises in the minds of the jury a reasonable doubt of the guilt of the defendant, they should acquit. This was a correct statement of the law. and is not in conflict with the decision in Cogburn v. State, ante, p. 1x0, but, as we think, is supported by that decision.
Again, it is said that the court told the jury that, in order to make out the crime of murder in the second degree, it was not necessary to show a- specific intent to take life. But this was also correct, for the main distinction between murder in the first and second degree is that to make out the crime of the first degree such a specific intent must be shown, while it is not necessary in the second degree. Brassfield v. State, 55 Ark. 556.
It is contended with much force that the court erred in permitting the prosecuting attorney to prove before the jury the testimony of David Hughes, given on the trial before the examining court. It was shown that Hughes testified before the examining court that the defendant was present, and had opportunity to cross examine, that Hughes did not live in this State, was a resident of Missouri, and that it was not probable that his attendance could be procured. His testimony had been taken down in writing by a witness who was present at the examining court. This witness identified the writing which he had made at the request of the examining magistrate, and testified that it was a correct statement of the testimony of Hughes, and contained the substance of all his testimony given at the trial. The presiding judge thereupon allowed it to be read to the jury. Counsel admit that it#was proper to prove the testimony of a witness who is beyond the jurisdiction of the court, when a proper foundation has been laid; but they contend that it was not proper to introduce this statement as evidence. We admit that of itself the writing was of no probative force, and that, even had it been made by the magistrate, it would not of itself have been competent evidence. Payne v. State, 66 Ark. 545. But the testimony of this absent witness might have been proved by any one who heard him testify and could remember the testimony. And. when a person who heard him testify reduced the téstimony of the witness to writing at the time of the trial, and knows that it contained' the substance of all his testimony, he may be allowed ü> refresh his memory by looking at the writing. When the testimony is too long for the witness to repeat accurately, but he is able to testify that the writing is an accurate statement of it, he may read the writing to the jury as his testimony of what the absent witness testified on the former trial. Wilkins v. State, 68 Ark. 441. There are many cases which hold that this may be done, even though the witness has no present recollection of the former testimony, if he knows that the writing was made by him at the time of the former trial, and that it is a correct statement of the testimony of the absent witness. The weight of authority seems to support that view. 16 Cyc. 1106. The testimony goes to the jury for their consideration, and may be contradicted by the testimony o'f any other witness who was present at the former trial and heard the testimony. Now, in this case, the witness who attended the former trial and took down the testimony of the absent witness, not only identified the writing, but, after examination of it, testified from the writing and from his present recollection that it was a correct statement of the testimony' of the former witness, though, on account of its length, he was doubtless unable to repeat the testimony accurately without the aid of the writing. Under these circumstances we do not think the court erred in allowing this writing to be read as a part of the testimony of the witness. Though the bill of exceptions is not quite clear on this point, after considering it, we think this is what was done in the trial court, for the presiding judge refused to allow the writing to be read to the jury until witness had testified that he made it on the former trial, and that it was a correct statement of the testimony of the absent witness, and contained the substance of all the testimony given by such witness. The contention of appellant on this point must therefore be overruled.
Neither can we sustain the further contention that the defendant was surprised b>y this and other evidence on the part of the State. The general rule is that the doctrine of surprise does not apply to the testimony of witnesses of the opposite party, nor to evidence introduced by such party, when the same tends to support the issues joined and is Such as might reasonably have been anticipated. Hughes testified before the examining magistrate; and as his testimony was material, defendant should have anticipated that, if Hughes was absent from the State, his former testimony would be proved.
Lastly, it is contended with much earnestness that the evidence was not sufficient to justify a verdict of murder in either degree. It seems to us very clear that this was not a premeditated, deliberate killing. It was the result of a sudden quarrel between the defendant and Pursur. But there was evidence that the defendant, angered by some indecent language used towards him by Pursur, commenced the assault upon him with a knife, and that Pursur only used the chair in an endeavor to protect himself. On the other hand, there was evidence tending to show that the affray was commenced by Pursur’s striking the defendant with a chair. The jury evidently found that the defendant commenced the assault; and, although this assault was provoked by indecent language of Pursur, still provocation caused by words only is not sufficient to reduce a homicide -from murder to manslaughter, Vance v. State, 70 Ark. 272. There is a conflict of' evidence, and the finding of the jury as to the grade of the offense must stand. But, taking the whole evidence together, we are well convinced that this is not a very aggravated case of murder. It was done under heat of passion caused by very provoking language on the part of Pursur, and under circumstances which in our opinion show that the punishment assessed by the jury is excessive. While passion created by words only does not reduce a homicide from murder to manslaughter, still such provocation may well be considered in assessing the amount of punishment, and we believe, in view of all the evidence, that justice will be best subserved by reducing the punishment to five years’ imprisonment in the penitentiary.
With that modification the judgment will-be affirmed. | [
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Battle, J.
D. W. and A. G. Anderson sued thé Wm. Fait Company for breach of contract. They alleged that on the 29th of May, 1902, they entered into a contract with the defendant, by which the defendant agreed to ship to them a carload of groceries and produce in cases, according to specifications to be furnished by plaintiffs in a reasonable time; that the goods were to be paid for according to their market prices at the time of the agreement; that they furnished the defendant in a reasonable time with a list of the goods to be shipped; and that it.wholly failed to ship the same, to their damage of $400.
The defendant denied these allegations, and that it made any contract with the plaintiffs, and pleaded the statute of frauds. They recovered a judgment for $151, and the defendant appealed.
The appellees were merchants doing business in the town of Newport, in this State. Appellant was a corporation engaged in selling produce in the city of Baltimore, in the State of Mary land. Dunn & Powell were merchandise brokers, doing business in Little Rock, Ark. On the 29th of May, 1902, Dunn & Powell sent the following telegram to appellant: “Book Anderson Newport assorted car futures same price as others.’ To this to it the same day by mail: “We will send you specifications on the Newport car in a few days.” Dunn & Powell received from appellant, dated May 29, 1902, a letter, as follows: “We have your telegram which read as follows: ‘Book Anderson Newport assorted car futures, same price as others.’ To this we wired you this afternoon that we have entered this order which we now confirm [meaning corroborate]. We accordingly have entered this order, and await your letter confirming [corroborating] with specifications.” All such orders were subject to the approval of the appellant. On June 9, 1902, Dunn & Powell received a letter from Wm. Fait Company, dated June 7, 1902, as follows: “Referring to your telegram of May 29, which read, ‘Book Anderson Newport assorted car future goods same price as others,’ we beg to say that up to this present time we have no mail confirmation to this order, nor have we •any assortment, and the order is therefore canceled. We cannot have these things remain open indefinitely.” On June 10, 1902, appellees, through Dunn & Powell, sent specifications, and on the 13th of the same month appellant declined to ship the goods.
The statute of frauds is in part as follows: “No contract for the sale of goods, wares and merchandise, for the price of thirty dollars or upward, shall be binding on the parties unless, first, there be some note or memorandum, signed by the party to be charged; or, second, the purchaser shall accept a part of the goods ordered, and actually receive the same; or, third, shall give something in earnest to bind the bargain, or in part payment thereof.” Kirby’s Dig. § 3656. There was no compliance with this statute. The only written evidence of a contract was the telegrams and letters set out above. The goods to be sold were not specified. There was no acceptance by appellant of any antecedent definite order. The goods to be purchased were to be selected out of a list of about 162 articles, and the quantity purchased of each was to be designated. Until such specifications were made, there could have been no definite agreement. There was no direct and unequivocal acceptance of any proposal which by acceptance could have become a complete contract. On the incomplete stipulations nothing could have been recovered at law. There was never an agreement as to the most essential part ■of a contract of sale, the appellant having declined to treat further with appellees before the specifications were furnished. Wheeling Steel & Iron Co. v. Evans (Md.) 55 Atl. 373.
The judgment of the circuit court is reversed, and a judgment upon the merits will be entered here in favor of appellant, and for $10 damages by reason of the attachment, which is •dissolved. | [
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McCueeoch, J.
The Attorney General brought this suit in the Pulaski Chancery Court to restrain the Auditor of State from drawing his warrant upon funds appropriated by an act of the General Assembly approved March 17, 1905, the title and preamble of which read as follows: “An act to promote the efficiency of the Arkansas State Guard, and for other purposes. Whereas, the strength of the Arkansas State Guard, shown by official roster, active force, aggregates 2,141 officers and men; and whereas, said organization has heretofore been recognized by the national government, receiving therefrom all allotments, under section 1661, Revised Statutes, as amended, or other laws: and whereas, it is essentially required of the organized militia, if same shall have further support of the national government, that certain duties be actually performed according to the laws of Congress relating thereto; and whereas, in order to carry out the provisions of the act of Congress approved January 21st, 1903, it is necessary that the State render financial aid to its citizen soldiery: Therefore, be it enacted by the General Assembly of the State of Arkansas,” etc. The act then proceeds to appropriate the sum of $25,000, or so much thereof as may be necessary, for the purposes provided for, specifying the items for -which the same shall be expended, viz., salaries and contingent expenses of officers of the State Guard, for expenses of military encampments, practice, etc., rent of armories and storage rooms, and for other expenses in maintaining the organization of the State Guard, and handling and preserving the military equipments. The validity of the act is called in question on the ground that in neither branch of the Legislature, on the vote for final passage, did the bill receive in its favor the votes of two-thirds of the members of each house, as required by section 31 of article 5 of the Constitution of the State. That section of the Constitution and the preceding section read as follows:
“Sec. 30. The general appropriation bill shall embrace nothing but appropriations for the ordinary expense of the executive, legislative and judicial departments of the State. All other appropriations shall be made by separate bills, each embracing but one subject.
“Sec. 31. No State tax shall be allowed, or appropriation of money made, except to raise means for the payment of the just debts of the State, for defraying the necessary expenses of government, to sustain common schools, to repel invasion and suppress insurrection, except by a majority of two-thirds of both houses of the General Assembly.”
It is conceded that the bill received in its favor the votes of a majority, but not two-thirds, of the members of each house. The Attorney General contends that the subject-matter of the appropriation does not fall within either of the exceptions expressed in section 31, and required for its passage the affirmative vote of two-thirds of both houses of the General Assembly. We are therefore asked to declare that on account of the failure to receive the necessary affirmative vote the bill never became a law. On the other hand, it is contended for appellee that the appropriation was for the “necessary expenses of government.”
The duty and power of courts to declare an act of the legislative body void because in conflict with the Constitution, either from want of constitutional power to enact it or from lack of observance of some of the forms or conditions imposed by the Constitution, is so plain and well established that we indulge in no discussion of that question at this time. It is equally well established, however, that such power should be exercised by the courts with great caution, and only when the terms of the Constitution have been plainly violated. Chief Justice Marsh are, who first authoritatively announced the doctrine that courts possess such power, subsequently said: “The question whether a law be void for its repugnancy to the Constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station, could it be unmindful of the solemn obligation which that station imposes; but it is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts to be considered void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.” Fletcher v. Peck, 6 Cranch, 87, 3 L. Ed. 162. A similar expression is given by the same learned court in the case of Ogden v. Saunders, 12 Wheat. 213, 6 L. Ed. 606, where Mr. Justice Washington said: “But if I could rest my opinion in favor of the constitutionality of the law on which the question arises on no other ground than this doubt so felt and acknowledged, that alone would, in my estimation, be a satisfactory indication of it. It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt.” Judge CoorEy, in treating the same subject, says: “The rule of law upon this subject appears to be that, except where the Constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operates according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the State, except as those rights are secured by some constitutional provision which comes within the judicial cognizance. The protection against unwise and oppressive legislation, within constitutional bounds, is by appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil: but the courts cannot assume their rights. The judiciary can only arrest the execution of a statute when in conflict with the Constitution. -It cannot run a race of opinions upon points of right, reason, and expediency with the lawmaking power.” Cooley’s Const. Lim. (7th Ed.) p. 236. The same learned author at another place (page 255)'says: “The duty of the court to uphold a statute when the conflict between it and the Constitution is not clear, and the implication which must always exist that no violation has been intended by the Legislature, may require it in some cases, where the meaning of the Constitution is not in doubt, to lean in favor of such a construction of the statute as might not at first view seem most obvious and natural. For, as a conflict between the statute and the Constitution is not to be implied, it would seem to follow, where the meaning of the Constitution is clear, that the court, if possible, must give the statute such a construction as will enable it to have effect.”
The same presumption is indulged in favor of the legislative enactment with reference to the form of the statute and the constitutional prerequisites and conditions as to the subject-matter of the legislation. Waterman v. Hawkins, 75 Ark. 120; Cooley, Const. Lim. p. 195.
This court, in the case of State v. Sloan, 66 Ark. 575, 53 S. W. 47, in upholding the validity of an act providing for the building of a new state capítol, the bill for which had not received the votes of two-thirds of both houses of the Legislature, said: “There is nothing in the Constitution of this State defining what is a necessary expense of government, or denying or limiting the right of the Legislature to determine the question. On the contrary, the right is impliedly delegated to it; for the power to appropriate money to defray the necessary expenses of government carries with it the right to determine what is a necessary expense. Upon this principle local and special laws have been upheld by this court, notwithstanding the Constitution denies to the Legislature the power to pass a special or local law in any case where a general law, which would afford the same relief, could be enacted; holding that the power to pass a special or local act under given circumstances empowered it to determine when the circumstances existed” — citing Davis v. Gaines, 48 Ark. 370, 3 S. W. 184; Boyd v. Bryant, 35 Ark. 73, 37 Am. Rep. 6; Carson v. Levee District, 59 Ark. 513, 27 S. W. 590; Powell v. Durden, 61 Ark. 21, 31 S. W. 740 To the same effect, see St. Louis S. W. Ry. Co. v. Grayson, 72 Ark. 119. The court in the Sloan Case did not mean to lay down the .doctrine, nor do we now, that the power of the Legislature to determine what is a necessary expense of government is arbitrary, bounded by no limitations, and absolutely beyond control by the judicial department. We can readily call' to mind subjects for appropriattion so obviously beyond the scope of what may be deemed necessary expenses of government that the courts could, and in duty should, ignore a legislative determination, and declare as a matter of law that the same do not fall within that class. The words “necessary expenses of government,” as employed in the Constitution, do not refer to the necessity, expediency, or propriety for the amount of the appropriation, but are intended as a classification of a character of expenses which may be provided for by appropriations without the concurrence of more than a majority of both houses of the Legislature; and when the expense is such as may fall within that classification, and the Legislature has made appropriation to defray the same, the courts must accept as final the legislative determination that they are necessary expenses of government. The preceding section of the Constitution regulating appropriations to defray the ordinary expenses of government, when read with the section now under consideration, makes a distinction between the “ordinary expense of government” and other necessary expenses, and is a distinct recognition by the framers of the Constitution of the fact that there may be necessary expenses of government which are not ordinary expenses, and that the Legislature may, by a bare majority vote, make appropriations to defray the same. If they be necessary expenses of government — that is to say, proper and necessary expenses incurred in the administration of government — appropriations therefor may be made by a majority vote only, though they be extraordinary, and not incurred as ordinary expenses in the administration of government. The Supreme Court of Indiana, in dealing with a kindred subject relating to the power of the courts in passing upon the constitutionality of a statute, said: “While the power to act does not exist until the contingency arises, the Legislature must of necessity be left with large discretion in determining whether or not the contingency has arisen which calls forth the exercise of the power. When it has in fact arisen, or when, in the exercise of its sound discretion, the Legislature, without any apparent purpose to evade the Constitution, determines that it has, and authorizes a debt to be contracted, unless it is apparent at first blush that the condition did not exist which justified the exercise of the power, the action of that body is not subject to review, or liable to be controlled by the judicial department.” Hovey v. Foster, 118 Ind. 502, 21 N. E. 39. The Supreme Court of California, in speaking of the conclusive presumption to be indulged in favor of a statute, said: “In the exercise of their [the Legislature’s] rightful authority, they have decided that the exigency has arisen demanding the exercise of the power, and they have directly declared that the object of the law and the debt created by it is to aid in repelling invasion, suppressing insurrection, enforcing the law, and preserving and protecting the public property: and this decision cannot be reviewed or set aside by the court.” Franklin v. State Board, 23 Cal. 173.
The question, then, arises: Is the appropriation in question for the purpose of “defraying the necessary expenses of government,” within the meaning of the Constitution, or is it obviously not what may be deemed a necessary expense of government? Since an early day the establishment, organization, and maintenance of the State militia as a citizen soldiery, .instead of a large standing army maintained by the National government, has been the object of governmental solicitude and encouragement, both State and National. No useful purpose can be served by a discussion of that policy at length; as it is a part of the history of the republic. Suffice it to say that in each Constitution adopted by the people of this State an organized militia is provided for, and is distinctly recognized as a part of the executive branch of the State government. Article 11 of the present Constitution, which is similar to the provision on that subject in the former Constitutions of the State, declares what shall constitute the militia, and contains a mandatory provision that the same “shall be organized, officered, armed and equipped and trained in such manner as may be provided by law;” and that “the Governor shall, when the General Assembly is not in session, have the power to call out the volunteers or militia, or both, to execute the laws, repel invasions, repress insurrections and preserve the public peace in such man ner as may be authorized by law.” Pursuant to the several Constitutions of the State, laws have at all times been written upon the statute books of the ¡State providing for the organization of the militia and volunteer companies, and for the equipment and maintenance of the sárne as a part of the executive branch of the State government in the enforcement of the law and preservation of the public peace. We think it is therefore plain that the framers of the Constitution, in providing how appropriations should- be voted “to defray necessary expenses of government,” did not mean to exclude from that term the organization and maintenance of the militia, which was by that instrument, and which had ever been by the organic law of the State, recognized as an arm of the executive department of the State government. The legislative determination that the expense of maintenance of the organization was a “necessary expense of government” is conclusive, and cannot be reviewed by this court.
It is conceded by the Attorney General that the militia is a necessary part of the government; that the designation of the militia as “all able-bodied male persons, residents of the State, between the ages of 18 and 45 years,” etc., constitutes the militia a branch of government, but it is insisted that the State Guard as a volunteer organization forms no part of the militia, nor of the State government. It will be observed, however, that the Constitution in the same article provides for the organization of volunteer companies, and provides that the Governor may call out either the volunteer or militia, or both, to execute the laws, etc., thus manifesting an intention to treat them both alike as a part of government. Stress is laid in the argument on the part of the State that the preamble of the act recites that, “in order to carry out the provisions of the act of Congress approved January 21, 1903, it is necessary that the State render financial aid to its citizen soldiery,” and that this language negatives any intention on the part of the lawmakers to provide for thé appropriation as a necessary expense of government. It is manifest, however, that the primary object of the Legislature was,-as the title of the act plainly states, “to promote the efficiency of the Arkansas State Guard” by supplementing the funds offered for that purpose by the National government with an appropriation of the State’s funds. Regardless of the forms and recitals of the act, it was an appropriation to maintain the State Guard, and, as we hold that that is a part of the necessary expenses of government, the act must be sustained. We cannot look to the motives which influenced the members of the Legislature to determine the object and validity of a statute, nor can we review the legislation as to its propriety or expediency.
It is further urged against the validity of the act that it violates the provision of the Constitution (section 30, art. 5) to the effect that bills for appropriations other than the ordinary expense of the executive, legislative, and judicial departments of the State shall be made by separate bills, each embracing but one subject. It is argued that the part of the act making an appropriation for the use of the Adjutant General, in effect, repeals section 5295, Kirby’s Dig., providing that the duties of Adjutant General shall be performed, without compensation, by the private secretary of the Governor, and that it is foreign to the main object of the bill. It is sufficient to use the language of Judge Cooley, which has been quoted with approval by this court, as follows: “The general purpose of these provisions is accom.plished when a law has but one general object, which is fairly indicated by its title. To require every end and means necessary or convenient for the accomplishment of this general object to be provided for by a separate act relating to' that alone would not only be unreasonable, but would render legislation impossible.” Cooley’s Const. Lim. (7th Ed.) p. 205. In State v. Sloan, supra, this court said: “The unity of the subject of an appropriation is not broken by appropriating several sums for several specific objects, which are necessary or convenient or tend to the accomplishment of one general design, notwithstanding other purposes than the main design may be thereby subserved.”
The chancellor concluded that the statute in question was legally passed, and dismissed the complaint for want of equity. The decree is affirmed. | [
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McCulloch, J.
Appellee filed her complaint against her husband, J. E. Malone, in the chancery court of Woodruff County for divorce on the ground that he was guilty of such con duct toward her as rendered her condition intolerable. Appellant answered, denying the allegations of improper conduct toward his wife, and also filed his cross-complaint on the ground of wilful desertion for a period of one year.
The chancellor granted the prayer of the complaint, and decreed a divorce.
The case presents only a question of fact, and, after a careful consideration of the testimony, we are convinced it is insufficient to warrant a dissolution of the bonds of matrimony, and that the conclusion of the learned chancellor was erroneous.
Appellant and appellee were married in June, 1898, he being then 21 years of age and she 32, and they lived together until some time in November, 1899, when she left him and returned to the house of her mother. Appellee testified that soon after their marriage appellant began a course of harsh and unkind treatment, frequently calling her a fool, and upon one occasion, upon a trivial pretext, slapped her in the face, and upon another, when he was sick and irritable, threatened to throw a’ mug at her. Her description of the latter scene is as follows: “At another time he drew a mug on me. I was out of the room, and he was sick at the time, and called me several times, and I didn’t hear, and when I went to the room he began to fuss, and I told him he was like a sore-headed bear, and he drew the mug, and told me if I didn’t shut my mouth he would knock me in the head with it. I told him if he did hit me with it I would leave him then and there and go home to my mother, and he said if he had a pistol he would shoot me.” She further testified that she left appellant, and went to her mother in November, 1899, because she learned that he intended to leave her in a few months.
The testimony of appellee was corroborated in part by her daughter by a former marriage, who was xi years of age, and testified to some instances related by appellee. Appellee called another witness, J. M. Daughtry, who testified that he knew thé parties, lived in about two and a half miles from them, and visited at their home about every two weeks. He said he knew of only one instance of improper conduct of appellant toward his wife, which he described as follows: “I happened in when Mrs. Malone was taking up ashes. Mr. Malone made the remark, ‘Why haven’t you a fire? Hurry up; I am cold. I am in the notion of throwing this cup at you.’ I spoke to him, and said. ‘Mr. Malone, ain’t you ashamed to talk to your wife that way?’ and I stepped out.”
This was substantially all the evidence in support of appellee’s alleged ground for divorce.
Appellant testified, denying all the charges of improper conduct or harsh or unkind treatment towards his wife, except that he slapped her on account of an improper accusation which she made against him. He describes the occurrence as follows; “I became vexed, and told her she was foolish for believing such, and in discussing the matter or trying to reason with her we both became angry, and had the worst ‘spat’ or quarrel we ever had. I told her if she was foolish enough to believe such she should have her jaw slapped. She dared me to slap her, and I did. After having realized what I was doing, I slackened the blow, and. it could not have inflicted any pain whatever.” He denied that he ever struck her, or offered to strike her on any other occasion, or made a practice of calling her a fool.
Appellant introduced two witnesses, who lived near them for several months before the separation occurred; one lived in about fifty yards and the other, one Crenshaw and wife, lived in the house with appellant and appellee. Both of these witnesses testified that they saw no evidence of harsh or unkind treatment on the part of appellant.
We think that the preponderance of the testimony is in favor of appellant, and that appellee has established no grounds for divorce. Even her own testimony and that of her two corroborating witnesses do not clearly establish the existence of a state of facts upon which a court of equity should interpose relief by a dissolution of the bonds of matrimony.
In the case of Kurtz v. Kurtz, 38 Ark. 119, Judge Eakin, speaking for the court, approving the rule laid down in Rose v. Rose, 9 Ark. 507, that the personal indignities contemplated by the statute as grounds for divorce included “rudeness, vulgarity, unmerited reproach, haughtiness, contempt, contumely, studied neglect, intentional incivility, injury, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of .■settled hate, alienation and estrangement,” said: “It must be confessed that this position goes to the very verge of safety, and should be pressed no further. In applying it the chancellor should act with great caution to avoid the gradual approach, by imperceptible steps, to the practice of holding all matrimonial bickerings by which parties may render each other unhappy to. be valid ground of divorce. Where there are no fixed and well-defined barriers of principle, it is difficult to limit the encroachment of precedents setting in one direction. Each so nearly supports the next that before one is aware the bounds of reason are passed.”
In Cate v. Cate, 53 Ark. 484, Chief Justice Cockriee said that ■“courts are not quick to interfere in domestic quarrels, and where the parties are equally at fault it must be shown at least that there is something that makes cohabitation unsafe, to move the courts to interfere.”
We think that this court has gone to the limit in the case of Rose v. Rose, supra, and that it' would be extending the rule ■entirely too far to hold that a divorce should be granted upon the testimony of appellee, corroborated only by the daughter, who was but 9 years old at the time of the occurrence about which she undertakes to testify, and by one other witness who relates one instance of harsh language used by appellant to his wife. By her own admission she was not always as considerate of her husband’s feelings as her duty demanded. One of the instances-she relates of his unkind treatment when he threatened to throw amug at her was provoked by her own inconsiderate conduct and remark while appellant was sick. To our minds the evidence shows that both parties were somewhat at fault, and that both, by failure to exercise that “mutual forbearance and mutual forgiveness” which the relation demanded, aggravated rather than tended to ameliorate their unhappy conjugal state.
It may be that the opposition to the marriage shown to have been manifested by appellee’s mother and other near kindred was continued, as claimed by appellant, after the marriage, and was responsible in some measure for the dissensions which led to the final separation; but at any rate it appears that neither party came up to the full conjugal duty to prevent the separation.. Upon the proof introduced both were at fault, and both should have been denied relief.
The decree for divorce must therefore be reversed, and the cause dismissed for want of equity either in the complaint or cross-complaint; and it is so ordered. | [
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McCulloch, J.
Appellant assigns error committed by the court in modifying the first instruction asked in its behalf and in giving over its objection several instructions asked by the defendant. The bill of exceptions recites that the court modified instruction numbered 1, asked by the plaintiff, and gave instructions numbered 2, 3, 4, 5, 6 and 7 asked by defendant, to which the plaintiff excepted; but the instructions are neither copied nor called for in the bill of exceptions, and cannot therefore, be noticed, even though there is found in other parts of the transcript what purports to be instructions of the court of corresponding numbers. Newton v. Russian, 74 Ark. 88. We must therefore presume that the jury were properly instructed; and as the testimony was sufficient to sustain the verdict, and no other error of the court is pointed out, the judgment must be affirmed. It is so ordered. | [
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PIlLL, C. J.
Perry and Sadler entered into a written contract on November 11, 1890, containing, among many other clauses, this one: “Said Perry to deed, unincumbered, to said Sadler the Keywoód place, say about 68 acres, more or less, and 32 acres off lower side of Brown place, along the upper side of Key-wood place.” Pursuant to this contract two deeds were executed, one to R. C. Sadler, and one to R. C. Sadler and Elizabeth C. Sadler, his mother, to different tracts. In the deed to R. C. Sadler “all of north half of the southeast quarter except the 32 acres off the south side in section 15, township 6 north, range 20,” etc., is conveyed. In the deed to Sadler and his mother the following description is found: “The south half of the southeast fractional quarter, containing 68 acres more or less, and 32 acres off of the south side of the north half of southeast fractional quarter, all in section 15, township 6 north of the base line, and range 20 west fifth principal meridian,” etc.
. The Keywood place was conveyed to Perry in 1883 as “the south half of the southeast quarter of section 15, in township 6 north and range 20 west, containing 66 acres more or less.” This action is brought by appellants, claiming a small tract of .62 of an acre, being described in the governmental survey as southwest fractional quarter of section 14, township 6 north, range 20 west, and its accretions and the accretions to said 68-acre and 32-acre tracts. It is undisputably shown that it was an unintentional oversight in the conveyance to Perry and from Perry to Sadler that said fractional quarter section of section 14 was not included. It was a small wedge-shaped tract running almost to the dwelling house on the Keywood place, including part of the yard and garden. This part of it was inclosed with other land, and all of it under control of the owner of the Keywood place. The parties did not know that this fraction did not pass under the deeds, as they supposed all of this land was in section 15, and it was clearly shown that it was intended to be conveyed. The chancellor held that it and its accretion passed to Sadler, and in this the decree is right.
The Keywood place fronts the Arkansas river, and there is a large accretion there formed by alluvium. Appellants contend that the contract and conveyance were to convey to Sadler 100 acres, no more nor less, and that the 32 acres were to be conveyed from the Brown tract, in order to add to the Keywood tract of 68 acres, to constitute the-100 acres, and that the accretions did not go with the conveyances, as the xoo acres were conveyed without them. The -contract to convey the Keywood place shows that the tract going under that name, containing approximately 68 acres, was to be conveyed, and the conveyance of it contained the words “more or less,” indicating that the acreage was an approximation, and not a fixed quantity. This court has adopted the rule of the Supreme Court of the United States in regard to conveyances affecting accretions. This is the principle which governs here: “Where a waterline is the boundary of a named lot, that line remains the boundary, no matter how it shifts, and a ■deed describing the lot by number or name conveys the land up to that shifting line, exactly as it does up to the fixed side lines.” Towell v. Etter, 69 Ark. 34. The conveyance of the Keywood place by name in the contract, and the conveyance of what was supposed to be the Keywood place by the Governmental survey numbers (and which was in fqct all of it except this small tract which the chancellor reformed the deed to convey), carried the line to the river, and included the accretions. The chancellor so held, and his holding is affirmed.
The chancellor held that the accretions fronting the 32-acre tract did not pass to Sadler and his mother, and that, as the appellant, Mrs. M. C. Perry (wife of the other appellant) had acquired title to all of that tract except the 32 acres conveyed to Sadler and his mother, she was entitled to the accretions between it and the river. The appellees, Sadler and mother, cross appeal from this part of the decree.
The contract and deed designated a certain number of acres to be taken from a certain part of the Brown place. It was appropriately described, so that the lines could be, and they were, laid out in accordance therewith. When located, there was an accretion between the lines thus located and the river. This tract was not described by name or number, like the Keywood place, thereby carrying the boundary to the shifting water line; but this boundary was fixed, and the acreage determined by the contract and deed.
The chancellor was right, and the cross appeal sustained, and the decree is in all things affirmed. is not | [
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McCulloch, J.
This was an action in ejectment brought by Mrs. G. M. Wheeler against R. A. and M. A. Dowdle to recover part of an accretion, which she claims had been formed.to the original land of which she held title.
The Dowdies filed an answer, denying that the land was an accretion to Mrs. Wheeler’s land and alleging that it was an accretion to their lands, and also pleaded the seven years statute of limitation. The case was transferred to equity on motion of the defendants. A decree was rendered in Mrs. Wheeler’s favor, and the Dowdies appealed.
There is no question that Mrs. Wheeler owns the original land to which she claims the land in controversy is an accretion, and that it was at one time upon the north bank of the Arkansas River. The same is true as to the title of the Dowdies to the original land to which they claim the land is an accretion. The plats of the original United States surveys show that the original land owned by the Dowdies is situated south of the Point Remove Creek, which at that time emptied into the Arkansas River at the terminus of the Old Cherokee line — the land of the Dowdies coming to the creek immediately opposite this point . or a little south thereof — and that the original land of Mrs. Wheeler bordered upon the Arkansas River some distance, perhaps sixty-three rods, below the mouth of the creek, and down the stream of the Arkansas River. Point Remove Creek flows in an easterly direction, and the Arkansas River from the mouth of the creek, at the time of the original survey, flowed in an easterly direction. The old Cherokee line, commencing on the old bank of the river at or near the mouth of Point Remove Creek, runs north, 53 degrees east, thus forming, with the old channel of the river, an acute angle with the apex at the mouth of the creek. It is shown that the accretion began to form up stream, and gradually extended down stream until the land in controversy was formed in front of the original land owned by Mrs. Wheeler. In front of the original land of the Dowdies accretion was formed which is in their possession, and their right thereto is not controverted. As the accretion gradually extended down stream, the mouth of Point Remove Creek extended itself eastward along the old channel of the river until it passed the original land of Mrs. Wheeler, and is how some distance below (east) of her east boundary. Its bed, east of the old mouth, is now along the old channel of the river. It is three chains wide at low water, and four and one-half to five chains wide at high water, and has at all times separated the accretion in controversy from Mrs. Wheeler’s original land.
It is the contention of appellants that the land in controversy is not accretion to Mrs.‘Wheeler’s land, and that the formation began as an accretion to the Dowdies’ land; and as it gradually continued down stream, the extension of Point Remove Creek kept pace with its progress, thus preventing any contact with or accretion to Mrs. Wheeler’s land. They say that the land in controversy belongs to them; that,, the formation having commenced as an accretion to their land, their title followed its progress down stream; or that the title to this land is .in the State. At any rate, they contend that it is not an accretion to Mrs. Wheeler’s land, and does not belong to her.
The burden is upon Mrs. Wheeler to prove that it is an accretion to her land. Appellants may rely upon the weakness of the title of their adversary. Nix v. Pfeifer, 73 Ark. 201, and cases cited.
A careful consideration of the evidence convinces us that the chancellor was correct in his conclusion that the land in contro-, versy was an accretion to the original tract of Mrs. Wheeler. There is much plausibility in the contention of appellants, but it ignores certain facts clearly established by the evidence. They contend that the channel of Point Remove Creek runs with the old bank of the river, but it is established by the proof that there is a narrow margin of accretion between the old shore line of the river and the bank of the creek. This goes to show that there was a deposit against the shore line before the waters of the river receded, that this process continued until the bed of the river rose to the level of the creek’s bed, and that then, as the waters of the river receded, the flow from the creek prevented further deposits in its extended channel, and established a permanent channel ¿long the old bed of the river. This theory is, we think, far more consistent with the physical facts existing now, and within the recollection of witnesses, than the theory advanced by appellants that the flow from the creek followed the recession of the waters of the river before there could be a deposit against the old shore line, and that the deposit began at the extended south bank of the creek. If the deposit formed in the manner which we have stated, it is, in a legal sense, an accretion to the lands of appellee, and became her property, notwithstanding the conceded fact that the flow of water from the creek separated it from the original tract.
We held in Nix v. Pfeifer, supra, that “when the formation begins with a bar or an island detached and away from the shore, and by gradual filling in by deposit, or by gradual recession of the water, the space between bar or island and mainshore is joined together, it is not an accretion to the mainland in a legal sense, and does not thereby become the property of the owner of the mainland.” So, if it were proved that there was no deposit against the old shore line, and no recession of the waters therefrom, the formation out from the mainshore would be a bar or island, and would in no sense constitute an accretion to the mainland. This is what was held in Crandall v. Smith, 134 Mo. 633, which is relied upon by learned counsel for appellants to sustain their contention. We find, however, the facts to be to the contrary in this case. The fact that a stream or body 'of water separ ates the accretion from the original shore line would, as said by the Missouri Supreme Court (DeLassus v. Faherty, 164 Mo. 361), at first blush seem to be an insurmountable barrier to a claim of ownership on the part of the shoreowner; yet, where it is shown, as in the case at bar, that the formation began by a deposit against the shore of the mainland, the subsequent existence of an intermediate stream of water between the accretion and mainland does not exclude such claim of ownership.
This brings us to a consideration of appellant’s plea of the seven years statute of limitations. They allege and undertake to prove that they have held actual adverse possession of the land in controversy for more than seven years continuously next before the commencement of the suit. The chancellor also found against them on this issue.
The only character of occupancy attempted to be proved by appellants is the following: The extended channel of Point Remove Creek on the north side, and the new channel of the Arkansas River on the south and east, form a headland or neck of land extending eastward from the former mouth of the creek, and appellants erected across this neck or headland a wire fence from the creek near its former mouth to the bank of the river. They claim this to be an inclosure in which they pastured cattle— the river and creek forming natural barriers, which, with the wire fence, completed the inclosure. They also show that along the creek in a few places at intervals they stretched wires to prevent cattle from attempting to cross the creek. This, however, is disputed, and the testimony is conflicting in regard thereto.
It is no objection that natural barriers are taken advantage of in constructing enclosures of land, provided that the same are not out of proportion to the artificial barriers erected. If the natural, together with-the artificial, barriers used are sufficient to ■clearly indicate dominion over the premises, and to give notoriety to the claim of possession, it is sufficient to put the statute of limitation-in motion. Goodwin v. McCabe, 75 Cal. 584; Sanders v. Riedinger, 51 N. Y. Supp. 937; Thomas v. United States, 136 Fed. 159. “Natural barriers may or may not be of such a character as to serve as part of an enclosure by which a party subjects land to his dominion and control, and so acquires possession of it.” Goodwin v. McCabe, supra.
The question, after all, in such cases is whether the enclosure, like other acts of possession and claim of ownership, is sufficient to “fly the flag” over the land, and put the true owner upon notice that his land is held under an adverse claim of ownership. We think that in this case these acts were insufficient to sustain a claim of adverse possession. They did not constitute such notoriously hostile acts as necessarily put the owner of the land upon notice. This is especially true because the fence erected by appellants from creek to river bank was not on the land of Mrs. Wheeler, and its presence there was not notice to her that her land was fenced. She was not bound to take notice of the natural objects —the creek and the river — as barriers enclosing her land. We hold that appellants pasturing cattle within such inclosure did not, under the circumstances, constitute adverse possession so as. to ripen into title.
Upon the whole case, we find no error in the decree of the chancellor, and the same is affirmed. | [
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Riddick, J.,
(after stating the facts.) The question presented by this appeal is whether the promise of the defendant upon which the plaintiff seeks to recover comes within the statute of frauds, and is invalid because not in writing. Counsel for defendant contends that, conceding the testimony of plaintiff to be true as the jury has found it, the substance of the whole transaction was an agreement by the defendant Long to pay the debt of the barber Keath, and that such an agreement is within the statute, and must be in writing in order to bind the defendant. But, while the price of the work and the material had been agreed on between McDaniel and Keath, McDaniel did not order the material nor commence the work until Long promised to pay for it if Keath did not. The bath tubs, fixtures and other improvements were to be put in a building owned by Long, and the jury were justified in finding that it was beneficial to him to have such improvement made, and that, in order to induce McDaniel to order the material and do the work, he made the promise. If the testimony of McDaniel was true, he was induced to order the material and do-the work by virtue of this promise of Long that he would see that plaintiff was paid. It was then a debt of Long, as well as of Keath, and the promise of Long to pay was founded on a consideration directly beneficial to him, and the statute does not apply.
“Where,” says the Court of Appeals of New York, “the primary debt subsists and was antecedently contracted, the-promise to pay it is original when it is founded on a new consideration moving to the promisor and beneficial to him, and such. that the promisor thereby comes under an independent duty of payment, irrespective of the liability of the principal debtor.” White v. Rintoul, 108 N. Y. 222.
No objections are urged' against the instructions; and while the case is a close one on the facts, we think the evidence sufficient to support the judgment.
The newly discovered evidence for which the defendant also asked a new trial was cumulative, and on the whole case we are of the opinion that-the judgment should be affirmed. | [
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Riddick, J.,
(after stating the facts.) This is an appeal from a judgment of the circuit court, in a case tried before the judge of that court without a jury. The court was not asked to make any declarations of law, and the only question presented by the appeal is whether the evidence is sufficient to support the finding and judgment of the court in favor of plaintiff. The note upon which the judgment sued on was based was made payable to D. Á. Robinson, G. M. U. B. F. & S. M. T. The evidence shows that these letters stand for Grand Master, United Brothers of Friendship and Sisters of the Mysterious Ten. But this title, following the name of the payee in the note, was only a designation of the person to whom it was to be paid, and, considered in connection with other parts of the note, shows that the note was to Robinson in his own right. The suit in which the first judgment on this note was rendered was brought before a justice of the peace, and no complaint was filed except the note itself. The note shows on its face that it was due to Robinson in his own right, and not as the representative of the .society, and was set out in full in the judgment. When the judgment is considered as a whole, we do not think that it shows that it was rendered in favor of Robinson in his representative capacity. The evidence as to whether the plaintiff or the society was the real owner of this judgment was conflicting, and the finding of the court that he was the owner has evidence to support it.
Though the case is a close one on the evidence, the finding of the circuit court settles the case, so far as the facts are concerned; and, as no error of law appears; the judgment must be affirmed. It is so ordered. | [
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Wood, J.
The undisputed testimony shows that Gibbs was a subcontractor under Ford; that the Dalhoff Construction Company had no contract with him. The uncontroverted proof also shows that the Dalhoif Construction Company had no money in its hands belonging to Gibbs at the time the writ of garnishment was served on it. True, appellee’s witnesses testify that they heard Dalhoif say “that Gibbs got scared and run off before he was hurt; that there was $550 coming to him.” But Dalhoif did not say that his company was owing Gibbs any money, or that any money was coming to Gibbs from his company. Nor does the language warrant such an inference, in view of the positive proof, undisputed, that whatever was due from the Dalhoif Construction Company under its contract was due to Ford, and not to Gibbs; that Gibbs left some claims of laborers unpaid, which were liens upon the work, and which Ford had to pay off, and that it not only consumed all the money going to Gibbs on the contract, but that the Dalhoif Construction Company was compelled to advance Ford more money than was due him on the contract to pay the balance of these liens, and is still owing part of this balance.
In view of this proof we are of the opinion that the court erred in not giving instruction number one. The majority of the judges are also of the opinion that there was no evidence to justify the court in submitting to the jury the question as to whether or not Ford was the agent of the Dalhoif Construction Company, and that the court erred in doing so.
For the error indicated the judgment is reversed, and the cause is remanded for new trial. | [
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Hill, C. J.
This case is set for July 10, and'appellant filed abstract and brief in apt time, and the appellee, instead of filing its abstract and brief, has invoked the ruling of the court on the sufficiency of the abstract of appellant in a motion to dismiss for noncompliance with Rule IX.
The court cannot take time to read the record and briefs in advance of submission to settle questions determinable in the trial, and confines its ruling to the matters appearing in the motion and response thereto. The appellee says that five witnesses testified for appellant on material issues, and nineteen testified on behalf of appellee, and that the testimony is material. and bearing on the issues, and that brought out by appellee on cross-examination of appellant’s witnesses goes to sustain the verdict and justify the instructions, and that appellant omits this testimony and all reference to it, except an excerpt from appellant’s testimony. The appellant responds that he has abstracted the pleadings and all other matters in the record necessary to a full understanding of all questions presented to the court. It appears that the instructions of the trial court are the matters here complained of, and appellant, having set them forth fully, says this testimony is immaterial, and most of it was brought out by appellee, and that it is its duty to abstract its own testimony under the rule. In this appellant is mistaken. He must abstract the entire case, so far as it is material to the issues raised on appeal, and the rules do not contemplate that each side abstract its own version of the case, but that the appellant abstract all that is necessary. In case of difference of opinion as to what is necessary to a full determination of the issues presented, the appellee can abstract such further matters as he sees proper.
The substance of the evidence is always material in testing the instructions; and if it is not set out, then the only question on the instructions before the court is whether any facts would justify the instructions. It does not by any means follow that the appellant must set out all of a vast volume of testimony. On the contrary, the rules contemplate an abridgment of it, except when its sufficiency is raised; but it is necessary to set out the substance of ail matters to which testimony was adduced in order to properly determine whether the instructions are correct. If counsel regards this testimony as immaterial, he can dispose of it in a very short way by stating that evidence was adduced tending to prove certain facts, and give appropriate references to the witnesses and the pages of the record where such testimony may be found. Then, if appellee conceives that this statement of the effect of the testimony is not full enough or not accurate, it is his duty to abstract so much of it as he may deem necessary to present his view of it. Appellant offers, if, in the opinion of the court, his abstract is not sufficient, to file an additional one; and the court, believing ajopellant has in good faith tried to comply with the rule, will not dismiss the cause, but grants him oné week in which to further abstract the case. * | [
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Wood, J.
This is a suit by appellee against appellant to quiet -title to the northwest quarter of section 24, township 13 south, range 32 west, in Little River County. Appellee deraigned title through various parties from the United States to himself. He also deraigned title to the south half of the northwest quarter, supra, through John B. Jones, from the State of Arkansas. Under the overdue tax law the appellant claimed title by virtue of a donation deed executed June 21, 1871. The chancellor tried the issue upon facts precisely similar to those set forth in Wagner v. Arnold, 72 Ark. 371, 80 S. W. 577, and held that appellee’s title was valid and superior to the title of appellant, and canceled appellant’s donation deed, and quieted the title of appellee to the land in controversy. For the reasons given in Wagner v. Arnold, sitpra, that was error, for which the judgment must be reversed. As to the north half of the northwest quarter of said section, the decree will be entered here for appellant, dismissing the complaint of appellee as to said tract. But as to the south half of the northwest quarter, supra, it appears that the court did not pass upon appellee’s claim of title through the overdue tax decree set up in his complaint. Appellant claims in his brief that this claim was abandoned. Appellee claims that it was not abandoned. The record is silent upon the question. The chancellor found “that the plaintiff, John H. Arnold, claims said tract of land [the northwest quarter, supra] and deraigns his title in the following manner, towit: .The State of Arkansas to the heirs of GeorgeW.Underhill, deceased; Virginiar Diamond, as sole surviving heir at law of George W. Underhill, deceased, to John B. Jones; John B. Jones to the Pulaski Land Company; and the Pulaski Land Company to John W. Arnold, the plaintiff.” The chancellor, having found that this title to the whole tract was “valid, and superior to the title of defendant,” deemed it unnecessary to proceed to pass upon the claim of title also set 'up by plaintiff to the south half of the northwest quarter, above mentioned. But the record only shows that the court did not pass upon this claim. It does not show that plaintiff abandoned it. Inasmuch as it appears that the lower court did not pass upon and determine whether this claim of appellee to the south half was superior to the title of appellant, we will remand the cause as to that claim, with directions to the lower court to proceed, if the plaintiff so desires, to pass upon that issue. | [
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McCuuuoch, J.,
(after stating the facts.) According to the pleadings and testimony in the case, the Cox note was delivered by appellee to appellants as collateral security for debt owing by the former to the latter. The note bears date of September 27, 1898, and was payable in forty-nine days after date, and therefore fell due on November 15, 1898. The evidence is conflicting as to whether appellants presented this note to the makers, and in due time notified appellee of its nonpayment; but it is undisputed that the note was indorsed and delivered to appellants by appellee before maturity, or at least some time before the date of the execution of appellee’s note to appellants, December 13, 1898. This being true, appellants cannot be held liable for a failure to make demand of payment and give notice of nonpayment. Appellee, by subsequently executing to appellants his note and mortgage for the full amount of his debt, waived any liability of appellants to him as indorser by reason of their failure to have made demand and given notice of nonpayment. If he intended to insist upon a credit of the amount of the Cox note, he should have claimed it before executing his note to appellants for the full amount of his debt.
By retaining possession of the Cox note as collateral security to appellee’s note to them, appellants were bound only to use reasonable diligence to collect it, and are liable only for negligence in failing to take the proper steps to collect the note and protect appellee from loss. Colebrooke on Col. Securities, §114; Jones on Pledges & Col. Securities, § § 692, 693; 22 Am. & Eng. Enc. Law, pp. 901, 902; Hanover Nat. Bank v. Brown (Tenn.), 53 S. W. 206; Reeves v. Plough, 41 Inch 204; Cooper v. Simpson, 41 Minn. 46, 42 N. W. 601, 4 L. R. A. 194, 16 Am. St. Rep. 667.
The evidence in this case does not show (the burden of proof being upon the appellee to establish that fact) that appellants failed to exercise due diligence to collect the note, or that any loss resulted from appellants’ alleged failure to present the note for payment and promptly notify appellee of the nonpayment. Appellants were not liable for mere delay in enforcing the collateral, especially where there has been no demand upon them to sue the makers of the note. Colebrooke on Col. Securities, § 208; Friend v. Smith Gin Co., 59 Ark. 86; 26 S. W. 374.
Appellee had a perfect right to pay off the debt to appellants at any time, and require a surrender of the collateral note; but, having failed to do this, or make demand upon appellants to sue on the note, he cannot complain of mere delay on the part of appellants in forcing payment of the collateral note. The same may be said of the Cahoon note. The evidence does not show that appellants ever accepted the note as a pro tanto payment, or otherwise than as collateral security, or that they ever consented to a sale of the mortgaged chattels. At most, they were only guilty of delay in bringing suit to enforce the security. We think the chancellor erred in allowing appellee credit for either of these notes'.
The note sued on stipulated that it should bear “interest from date at the rate of ten per cent, per annum,” without any stipulation for interest after maturity.. Under the rule established by many decisions of this court, interest must be computed at the rate of ten per cent, from date to maturity, and thereafter at six per cent. Newton v. Kennedy, 31 Ark. 626, 25 Am. Rep. 592; Pettigrew v. Summers, 32 Ark. 571; Gardner v. Barrett, 36 Ark. 476; Johnson v. Myer, 54 Ark. 437, 16 S. W. 121. Computing interest according to this rule, and after allowing appellee all credits for payments made, including the payment of $56.09 made since the commencement of this suit, we find that appellee is still indebted to appellants in the sum of $124.38, with interest at six per cent, per annum from February 4, 1902, the date of the last payment.
The decree is therefore reversed and remanded, with directions to enter a decree in favor of appellants for the above amount and interest aforesaid, .and costs of suit, and that the mortgage be foreclosed. | [
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Wood, J.,
(after stating the facts.) The only reversible error we find in this record is the failure of the court to give instruction number seven. It was a close question on the evidence as to whether or not the assault made by the conductor was in self-defense, and in the discharge of his duty as conductor. These matters were fully and properly submitted to the jury, and we would not disturb their finding, because there is ample evidence to sustain it. But it is by no means true that the verdict was justified by the “uncontradicted testimony in the case.” On the contrary, the verdict might very well have been for appellant on the evidence, and it is impossible to tell what influence the improper argument of counsel, set out in the statement, might have exerted in producing the verdict. After appellant objected to it, and the court permitted the counsel to proceed, the argument was thus approved by the court, and went to the jury with the same force as an instruction from the court, to the effect that they might consider the negligence of the defendant, in writing the pass, if it was negligently written, in determining the liability of the defendant. The argument was exceedingly improper and prejudicial, and the court should not have permitted it, and especially after it had been permitted the court should have granted appellant’s seventh request, in order to counteract all possible damaging effect of such argument. This instruction, asked at that time, was an effort on the part of the appellant to have the court correct the improper argument of counsel, and nullify whatever prejudicial influence it might have had upon the jury. The appellant was clearly entitled to it, for the assault of the conductor on the passenger bearing the pass could never have been contemplated even as a remote consequence of any negligence in writing the pass. Such assault certainly could not be considered anywhere within the range of the natural, ordinary and reasonable, or even remotely probable, effect of negligence in making out the pass. St. Louis, I. M. & S. R. Co. v. Bragg, 69 Ark. 402; 1 Suth. on Dam. 57; McDaniel v. Snelling, 96 Mass. 295; Scheffer v. Ry. Co., 105 U. S. 252; Milwaukee & S. P. Ry. Co. v. Kellogg, 94 U. S. 475.
Ror the error indicated the judgment is reversed, • and the cause is remanded for new trial. | [
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