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RITA W. GRUBER, Judge
1TAppellant Jamie Reyes pleaded guilty in January 2013 to second-degree sexual assault and two counts of failure to appear. The court entered a sentencing order on January 29, 2013, sentencing appellant to concurrent six-year terms of imprisonment on the failure-to-appear convictions and to ten years’ suspended imposition of sentence (SIS) on the conviction for second-degree sexual assault, to run consecutively to the two concurrent sentences of imprisonment. One of the conditions of the SIS was that appellant enroll in and complete the Reduction of Sexual Victimization Program (RSVP), which is a course of treatment for sexual offenders incarcerated in the Arkansas Department of Correction. On December 11, 2013, the State filed a petition to revoke appellant’s suspension, alleging that he had failed to enroll in and complete the RSVP as ordered. The trial court revoked | ¡.appellant’s suspended sentence and sentenced him to eight years’ imprisonment plus twelve years’ SIS. On appeal, appellant argues that the trial court erred in revoking his SIS for failure to complete the RSVP. We reverse the trial court’s order revoking appellant’s SIS and reinstate the January 29, 2013, sentencing order as modified herein.
A trial court may revoke a defendant’s suspension at any time prior to the expiration of the period of suspension if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension. Ark.Code Ann. § 16-93-308(d) (Supp. 2013). This court will not reverse the trial court’s decision to revoke unless it is clearly against the preponderance of the evidence. Owens v. State, 2009 Ark. App. 876, at 6, 372 S.W.3d 415, 419. On appeal, appellant argues that the evidence was insufficient to prove that he “inexcusably” failed to comply with a condition of his suspension as required for revocation under Ark.Code Ann. § 16-93-308(d). “Forgivable, pardonable, and excusable behavior” does not justify a probation revocation. Schubert v. State, 2013 Ark. App. 698, at 4, 2013 WL 6097999.
The parties do not dispute the facts. Robert Parker, the mental-health administrator for the Arkansas Department of Correction,' testified for the State, and appellant testified for the defense. Both confirmed that a program-referral' form requesting that appellant be enrolled in the RSVP was completed during appellant’s intake process at the ADC in February 2013. According to Mr. Parker, this automatically placed appellant on the waiting list for the program. He stated that the waiting list at the time of the hearing had 1500 inmates. He also testified that it would be difficult for someone with a six-year sentence to |sget into the RSVP before they were released. Mr. Parker did not know the average wait time to get into the RSVP, but he confirmed that appellant had been on the waiting list from the time he began his incarceration.
Documents introduced into evidence also established that appellant wrote a note to the ADC mental-health services that was received on June 4, 2013, explaining that he needed to be enrolled in the RSVP “ASAP.” The RSVP program administrator sent a response to appellant stating that no one “gets started ASAP” and that he must “wait his turn.” The administrator asked for appellant’s “TE” date (transfer eligibility) and asked him whether he was sure that he wanted to enroll in the RSVP. Appellant responded on June 16, 2013, explaining that his TE date was January 14, 2014, and that he needed to get into RSVP “ASAP” if he could. The RSVP program analyst responded by letter to appellant on July 8, 2013, stating that his name was on the RSVP waiting list, that the list was ranked by TE dates, and that he did not need to do anything more. On November 26, 2013, appellant was released early from the ADC pursuant to the prison-overcrowding Emergency Powers Act 418 of 1987. At the time he was released, he had not begun the RSVP.
Appellant testified that he was not told that he could remain in the ADC to complete the RSVP rather than be released under the Emergency Powers Act. The State argued in closing that appellant had the opportunity to stay at ADC, enroll in the program, and complete it, which he chose not to do, but the State did not introduce any testimony or |4other evidence to support this argument regarding an inmate’s options when ordered released under this Act. Although not a condition of his SIS or parole, appellant testified that his parole officer recommended that he complete a sexual-behavior course with a counselor, which he was doing at the time of the hearing. The court found that a condition of appellant’s SIS was completion of the RSVP, that appellant failed to complete the RSVP, and that the only way to complete the RSVP was to be incarcerated; therefore, the court revoked his SIS and sentenced him to eight years’ in the ADC plus twelve years’ SIS — including a condition that he complete the RSVP — in order to allow him time in the ADC to complete the RSVP.
It is undisputed in this case that appellant did all he could while incarcerated to enroll in the RSVP. Unlike appellant in Seamster v. State, 2009 Ark. 258, 308 S.W.3d 567, who never entered or completed the RSVP as required by his SIS conditions because he refused to comply with the RSVP’s entry requirements, appellant in this case attempted on several occasions to enroll and to be placed at the top of the waiting list for the RSVP. There was no evidence presented that appellant had the option to stay incarcerated when ordered released under the Emergency Powers Act. Despite making a significant effort to complete a condition of his SIS — enroll in and complete the RSVP — appellant was effectively prevented from doing so by the ADC. This does not provide a basis to revoke his SIS. We hold that the violation was not “inexcusable” and thus does not justify revocation. The trial | ¡¡court's decision is clearly against the preponderance of the evidence. Accordingly, we reverse the court’s order revoking appellant’s SIS.
We also hold that appellant’s underlying SIS is an illegal sentence. The issue of an illegal sentence cannot be waived by the parties and may be addressed for the first time on appeal. State v. Webb, 373 Ark. 65, 69, 281 S.W.3d 273, 276 (2008) (citing Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002)). If we hold that a trial court’s sentence was illegal and that the error had nothing to do with guilt, but only with the illegal sentence, we can correct the sentence in lieu of remanding. Harness v. State, 352 Ark. 335, 339, 101 S.W.3d 235, 238 (2003). In Arkansas, sentencing is entirely a matter of statute. Walden v. State, 2014 Ark. 193, at 3, 433 S.W.3d 864, 867. In Walden, our supreme court interpreted Ark.Code Ann. § 5-4-307(b) as requiring suspended sentences imposed with terms of imprisonment for different crimes to run concur rently. Id. at 10-11, 433 S.W.3d at 871. In this case, the court ran the ten-year SIS consecutively to the two six-year terms of imprisonment for three separate crimes. We modify the sentencing order to reflect that the SIS ran concurrently with the two prison sentences imposed; accordingly, appellant’s SIS began to run on January 29, 2013, and not on the day he completed his term of imprisonment.
Order revoking SIS reversed; January 29, 2013, sentencing order reinstated as modified.
Kinard and Brown, JJ., agree.
. Appellant’s order of conditional release was subject to parole conditions, including no contact with the victim or victim’s family and registration as a sex offender.
. We note that while the judiciary may order a defendant to enroll in and complete a rehabilitative program while on SIS, it is powerless to ensure that there 'are adequate resources for a defendant to comply. | [
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PER CURIAM
|, On November 14, 2013, judgment was entered reflecting that appellant Olajuwon Smith had entered pleas of guilty to multiple felony offenses. On January 21, 2014, appellant filed in the trial court a timely, verified pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013). The petition was dismissed on January 23, 2014, on the ground that it did not comply with Rule 37.1(b), which sets out certain requirements for the form of a petition under the Rule. On January 31, 2014, appellant filed a second petition under Rule 37.1, which the court denied on February 14, 2014, on the ground that appellant was not entitled to file a second petition under the Rule inasmuch as the court had not dismissed the first petition without prejudice to filing a second petition. Appellant filed a notice of appeal on February 27, 2014, designating that the appeal was being taken from the February 14, 2014 [¡¡order. Now before us is that appeal and several motions filed by appellant that pertain to the appeal. As we find that the February 14, 2014 order should be affirmed, the motions are moot.
Rule 37.2(b) provides that all grounds for relief available to a petitioner under the Rule must be raised in his or her original petition unless the original petition was denied without prejudice to filing a second petition. If a first petition under the Rule is denied without leave to proceed with a second petition, a petitioner under the Rule is barred from submitting a subsequent petition. Ewells v. State, 2014 Ark. 351, 439 S.W.3d 667 (per curiam); see also Cooper v. State, 2014 Ark. 243, 2014 WL 2158142 (per curiam) (noting that Rule 37.2(b) does not permit a second petition for postconviction relief unless the first such petition was specifically denied without prejudice to filing a subsequent petition).
Failure to comply with Rule 37.1(b) is not a jurisdictional defect, and the trial court may rule on a petition that does not conform to the Rule. Moss v. State, 2013 Ark. 431, 2013 WL 5878130 (per curiam); Barrow v. State, 2012 Ark. 197, 2012 WL 1631806 (per curiam). We held in Moss that, when a petitioner timely files his verified petition that does not comply with Rule 37.1(b), the trial court has the discretion to act on the merits of the petition, dismiss it without prejudice to filing a petition that conforms to Rule 37.1(b), or dismiss the petition.
Appellant urges this court to overturn the trial court’s holding that the second petition was not authorized by the Rule because there was good cause for his failure to file a conforming | .¡petition. He contends that his first petition was not in compliance with Rule 37.1(b) as the result of his being denied access to the court because of the inadequate law library at the prison where he is incarcerated. He argues that he was not afforded adequate information and assistance from the library in preparing the first petition, and, thus, he should have been permitted to proceed with a second petition that conformed to Rule 37.1(b).
Appellant’s argument is unavailing. First, appellant did not appeal from the order that dismissed his original petition. His appeal is from the February 14, 2014 order that denied relief on the ground that a second petition was not allowed under the Rule. Moreover, even if appellant’s argument could be said to apply to the denial of the original petition, he did not demonstrate that he was entitled to file a subsequent petition.
While persons who are incarcerated may face certain obstacles in pursuing access to the courts, we take judicial notice that appeals from posteonviction orders are frequently lodged in this court by incarcerated persons who have filed petitions that conform to Rule 37.1(b). The fact that those conforming petitions are filed by petitioners who also may be assumed to confront certain hurdles occasioned by their incarceration suggests that Rule 37.1(b) is not unduly burdensome.
While there is no constitutional right to a postconviction proceeding, when a state undertakes to provide collateral relief, due process requires that the proceeding be fundamentally fair. Davis v. State, 2010 Ark. 366, 2010 WL 3794178 (per curiam). The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Id. Due process does not require courts to provide an unlimited opportunity to present postconviction claims. Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (per curiam); Maulding v. State, 299 Ark. 570, 776 S.W.2d 339 (1989) (per curiam). This court has held that certain procedural requirements or other limitations on postconviction relief do not violate the right to due process. See, e.g., Croft v. State, 2010 Ark. 83, 2010 WL 569744 (per curiam) (a petition under the rule not verified in accordance with Rule 37.1(c) is subject to dismissal); Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988) (per curiam) (requiring a petition for postconviction relief to meet certain threshold requirements is fundamentally fair). Placing certain limitations on the length and form of petitions under the Rule is an entirely reasonable restriction on petitioners seeking postconviction relief. See Davis, 2010 Ark. 366.
This court is not unmindful of the holdings by the United States Supreme Court in Martinez v. Ryan, — U.S. -, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) and Trevino v. Thaler, — U.S. -, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). The Martinez Court held that, when state law requires a prisoner to use a collateral attack rather than a direct appeal to raise a claim that his trial attorney was not effective under the Sixth Amendment, the prisoner’s failure to comply with state rules in bringing his collateral attack on the judgment will no longer bar a federal judge from granting habeas relief on that claim, if the prisoner had no attorney to represent him in the collateral proceeding or that attorney was ineffective and if the petition filed in the state court had a meritorious claim. In Trevino, the Court extended its holding in Martinez to cases in which a state’s procedural framework make it unlikely in a typical case that a defendant would have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal. Neither Martinez nor Trevino requires this court to forgo procedural rules that serve to streamline the | ¿process by which petitioners present claims for postconviction relief to the trial courts. The prompt and orderly disposition of petitions for postconviction relief requires standards to control the content, length and form of the petitions, and the number of such petitions that each petitioner is permitted to file. See Maulding, 299 Ark. 570, 776 S.W.2d 339.
Affirmed; motions moot.
Hart, J., dissents.
. We have reversed and remanded on appeal where the trial court dismissed the petition solely on the basis that it did not have jurisdiction to act on a petition that did not conform to Rule 37.1(b). Moss, 2013 Ark. 431. In the instant case, the trial court did not dismiss appellant’s petition for lack of jurisdiction; it dismissed for failure to comply with the Rule, and it did not provide that appellant could submit a second, complying petition. | [
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M. MICHAEL KINARD, Judge
| Stanley Ray Hunt II appeals from his conviction at a jury trial of three counts of rape, for which he was sentenced to concurrent terms of forty years in the Arkansas Department of Correction. He contends that the trial court erred in admitting evidence that he fled from police when they sought to arrest him on the charges and erred in giving a nonmodel jury instruction stating that evidence of flight could be considered as circumstantial evidence corroborative of guilt. We affirm. •
In May 2012, appellant’s niece, N.H., told her school principal and vice-principal that appellant had been sexually assaulting her for a number of years. N.H. was fourteen years old at the time that she first reported the abuse, and she stated that it began some five years earlier, when she was in the fifth grade. Appellant admittedly was made aware of the victim’s allegations almost immediately after they had first been made. Appellant was not arrested for the alleged rapes, however, until almost one year later, in April 2013. When police officers |2finally located appellant and went to arrest him, he fled and escaped, eventually turning himself in a few days later. Prior to trial, appellant moved in limine to prohibit the State from introducing any .evidence concerning his flight to avoid arrest. At the hearing, appellant’s trial counsel argued that appellant’s flight was irrelevant to the rape charges. He contended that flight to avoid arrest is simply immaterial in any way to one’s guilt or innocence of any offense other than the crime of fleeing itself, something with which appellant was not charged. While at one point counsel made a passing reference to appellant’s flight having occurred “almost a year after the victim” was first interviewed, he repeatedly argued that appellant’s flight was probative of nothing more than that appellant did not want to be arrested for crimes that he had not committed. He insisted that flight is not probative of one’s consciousness of guilt because “the state of mind of the defendant can only be known to him.” At the end of the hearing, appellant’s counsel also stated that appellant could have fled because of the possibility that the police would find drugs in the residence. The trial court denied appellant’s motion in limine and permitted the State to introduce evidence of appellant’s flight as being independently relevant to appellant’s consciousness of guilt.
At trial, the State first presented evidence of the charged crimes through the testimony of the victim, school officials to whom she confided, and a pediatrician who examined the victim. The State then called Detective Melissa Smith of the Conway Police Department, who testified that the matter was first assigned to her on May 7, 2012. She began trying to contact appellant. Despite her efforts contacting other law enforcement and following several leads regarding where appellant might have been, the detective was unable to locate appellant | ¡¡over the next nine months. In February 2013, a warrant for appellant’s arrest on these charges was obtained. At that time, Officer Chris Derrick took over the search for appellant. The officer familiarized himself with the background information in the case, spoke to the investigators, questioned his contacts in the community, and spoke to appellant’s family members and friends, including appellant’s girlfriend and his mother, in an unsuccessful effort to locate appellant. On several occasions in February and March 2013, Officer Derrick dis cussed the case with appellant’s girlfriend and mother in unsuccessful attempts to have them convince appellant to turn himself in to face the charges.
On April 11, 2013, Officer Derrick received a tip that appellant might be found at a particular address just outside the Conway city limits. After having an undercover investigator approach the residence and visually confirm that appellant was present, Officer Derrick enlisted the assistance of other police officers and members of the United States Marshals Service to go with him to the residence to arrest appellant. Over appellant’s earlier relevancy objection, officers were allowed to testify that appellant ran out the back door as they approached the residence. They identified themselves as police officers and ordered appellant to stop, but he refused and escaped. Despite an intense search using additional officers, a helicopter, and police dogs, appellant could not be found. Appellant turned himself in four days later.
After the State rested its case, appellant testified in his own defense. He categorically denied having ever sexually abused the victim; He further testified, in response to his own attorney’s questions on direct examination, that he had, indeed, fled and escaped when the |4police came to arrest him on April 11. He maintained that he was unaware that he was being sought for the rape charges, insisting that he ran because his friend had been dealing drugs from the residence and that he (appellant) was afraid of being arrested for possession of a controlled substance. Appellant admitted, however, that no drugs were actually found in the house.
On appeal, appellant’s new counsel first contends that the trial court erred in denying the motion in limine. Appellant has abandoned that part of the argument that he made below that evidence of flight is per se irrelevant to consciousness of guilt. Instead, he now argues that evidence of flight to avoid detection or arrest is inadmissible unless the State first shows the existence of a connection between the flight and the particular crime for which one is then being tried. Appellant maintains that a sufficient connection was not shown in this case. He specifically relies on (1) the eleven-month length of time between the original allegations by the victim and the' date on which the authorities attempted to arrest him and he fled; (2) his position that he did not know at the .time of his flight from police that there was a warrant for his arrest on the rape charges; and (3) his position that there were other reasons unrelated to the rape charges causing him to flee on the day in question, namely his fear that he would be arrested for the drugs present in the residence. To the extent that appellant’s current argument was preserved for appeal by being made below, we find no reversible error.
Arkansas Rule of Evidence 404(b) prohibits introduction of evidence of other crimes, wrongs, or acts to prove the character of a person in order to show that he acted in conformity therewith. However, the rule expressly permits introduction of such evidence if |sit is admissible for another purpose, including proof of intent, motive, or knowledge. The rule applies to evidence of prior and subsequent bad acts. Anderson v. State, 2009 Ark. App. 804, 372 S.W.3d 385; Fitting v. State, 94 Ark. App. 283, 229 S.W.3d 568 (2006). Moreover, the rule’s list of permissible purposes for other-acts evidence is not exhaustive. It has long been the law, for example, that application of the rule permits proof of acts by the accused that constitute admissions by conduct designed to obstruct justice or avoid punishment for a crime. See Kidd v. State, 24 Ark. App. 55, 748 S.W.2d 38 (1988). Proof of such acts can “consti-tut[e] circumstantial evidence of consciousness of guilt and hence of the fact of guilt itself.” Id. at 62, 748 S.W.2d at 41 (quoting E. Cleary, McCormick on Evidence § 271(c), at 808 (3rd ed. 1984)). Included in this class of acts are flight from the scene or from one’s usual haunts after the crime, resisting arrest, and escapes or attempted escapes from confinement. Kidd, 24 Ark. App. at 62, 748 S.W.2d at 41. See also Hayes v. State, 2014 Ark. 104, 431 S.W.3d 882 (evidence of flight is admissible to show consciousness of guilt, even if the flight was not immediately after the alleged commission of the crime); Eliott v. State, 342 Ark. 237, 27 S.W.3d 432 (2000) (flight of a person charged with the commission of a crime has some evidentiary value on the question of his probable guilt); Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000) (evidence of flight to avoid arrest may be considered by the jury as corroborative of guilt); Murphy v. State, 255 Ark. 90, 498 S.W.2d 884 (1973) (evidence of flight, even if it does not immediately follow a crime, is generally admissible as a circumstance to be considered in determining guilt).
| (¿Evidence offered under Rule 404(b) must be independently relevant, thus having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Turner v. State, 2009 Ark. App. 822, 2009 WL 4673794. On appeal, we accord the trial judge wide discretion in balancing the conflicting interests to determine whether the probative value of such evidence is substantially outweighed by the danger of unfair prejudice. Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997). We will not disturb the trial court’s decision to admit or reject evidence submitted under Rule 404(b) absent a showing of manifest abuse of discretion. Bond v. State, 2011 Ark. App. 429. Abuse of discretion is a high threshold that does not simply require error in the trial court’s decision but requires that the trial court have acted improvidently, thoughtlessly, or without due consideration. Dixon v. State, 2011 Ark. 450, 385 S.W.3d 164.
From our review, we cannot conclude that the trial court erred in determining that a sufficient showing was made that evidence of appellant’s flight was independently relevant to his consciousness of guilt. While it is true that almost a year had passed since the victim’s allegations against appellant first came to light, appellant cites nothing for the proposition that the amount of time that passes before flight is determinative of admissibility. Here, there was also evidence that Conway police had been actively seeking to contact appellant to investigate' the rape charges since the case was first turned over to the police department. The search for appellant included considerable contact with various members of the community. When the warrant for appellant’^ arrest on the rape charges was issued in mid-February 2013, just weeks before the failed arrest attempt, the search intensified, and police held multiple discussions 17about the case with some of appellant’s close friends and family in an effort to get appellant to turn himself in. Considering appellant’s knowledge of the victim’s allegations against him almost immediately after they had first been made; the continual, active, and unsuccessful search for appellant throughout the ensuing eleven-month period; the issuance of a warrant for appellant’s arrest for the rapes relatively close in time to the arrest attempt and his accompanying flight; and the knowledge of appellant’s close friends and family that he was still being sought in connection with this case, we conclude that one could rea sonably infer that appellant knew that he was wanted by the police for the alleged rapes and that he fled to avoid being arrested for them. Under the circumstances of this case, appellant’s insistence that he was unaware of the rape charges and his claim instead that he ran simply because he was afraid of potential drug charges do not render the evidence of flight inadmissible; rather, his own version of why he fled was a matter of weight and credibility for the jury. See Cooper v. State, 317 Ark. 485, 879 S.W.2d 405 (1994); Killcrease v. State, 310 Ark. 392, 836 S.W.2d 380 (1992). We find no abuse of discretion by the trial court.
Appellant next contends that the trial court erred when it instructed the jury that “[ejvidence that the defendant fled to avoid arrest or detection by the police may be considered by you in your deliberations as circumstantial evidence corroborative of the guilt of the defendant.” He argues that, when evidence of flight is introduced as circumstantial evidence of a separate, charged crime, the jury must be told how to use the evidence. He contends that the instruction given was insufficient because it did not. contain sufficient cautionary language. Specifically, he argues that the court should have spelled out more | ^particularly that guilt could not be presumed from evidence of flight alone and that the jury was entitled to disregard the proof of flight altogether given the existence of reasons to flee other than to avoid capture for the crimes charged. We find no reversible error.
First, we agree with the State that this issue largely was not preserved for appeal. At trial, appellant objected to the State’s proposed instruction and argued that no instruction should be given on the subject. He took issue with the court’s decision to give any instruction on the subject since Arkansas has never adopted a model instruction addressing it. An appellant cannot change his grounds on appeal but is limited to the scope and nature of the objections presented at trial. Hampton v. State, 2014 Ark. 303, 437 S.W.3d 689.
To the extent that appellant argued both at trial and on appeal that the instruction given somehow shifted the burden of proof to appellant to disprove guilt, we disagree. The instruction plainly used the word “may” and left for the jury the decision whether to attach any weight to the evidence of flight.
Affirmed.
Gruber and Brown, JJ., agree. | [
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RHONDA K. WOOD, Associate Justice
b Samuel Hartman appeals his convictions for rape and tampering with physical evidence. He argues that substantial evidence does not support the convictions. He also contends that the circuit court erred when it failed to remove a juror with ties to the rape victim’s family and failed to give a lesser-included-offense jury instruction for the rape charge. We affirm on all points except for the tampering-with-physical-evidenee conviction, which we reverse and dismiss.
I. Background Facts
Samuel Hartman’s stepdaughter, E.R., told her mother that Hartman had touched her genitals. E.R. was nine-years old at the time. Her mother decided to take E.R. to a forensic psychologist for an interview. Hartman found out about the interview and | ^became upset. A fight ensued. E.R. ran to a neighbor’s house for help, and the neighbor called the police.
After the police arrived, Hartman agreed to go to the police station for an interview. At the station, Officer Jonathan Little began questioning Hartman and recorded the interview with a small digital-recording device. Hartman eventually admitted that he had touched E.R.’s genitals. Officer Little ended the interview, stopped recording, and stepped out of the room, taking the device with him to allow Hartman to make a phone call in private.
While Hartman was on the phone, Officer Little reentered the room, placed the recording device down, and exited. Officer Little could see Hartman through partially open mini-blinds and observed Hartman standing up near the device’s location. After Hartman finished his call, Officer Little came back into his office, turned the recording device off, and took Hartman to jail.
Officer Little later noticed there were too many files on the recording device. Before he interviewed Hartman, there were five files on the device. The interview should have been file six, and Hartman’s phone call should have been file seven. Instead, nine files were on the device. After further investigation, Officer Little discovered that his original interview with Hartman was not one of the nine extant files.
The case proceeded to a jury trial. There, E.R. testified that Hartman had penetrated her. Further, Officer Little recounted both Hartman’s confession and the events following, including his discovery of the missing and added files to the recording device. At the end of the trial, the jury convicted Hartman of rape and tampering with | «(physical evidence. Hartman was sentenced to life in prison for the rape conviction and six years in prison for the tampering-with-physieal-evidence conviction. The court ruled that the sentences would run concurrently.
II. The Rape Conviction
Hartman argues that his rape conviction is not supported by substantial evidence and that the circuit court erred when it denied his directed-verdict motions. Specifically, he argues that the victim, E.R., gave inconsistent statements to her mother and a forensic psychologist, that E.R. had a motive to lie, and that no physical findings backed up E.R.’s testimony that penetration had occurred. However, Hartman’s directed-verdict motions did not raise these specific arguments, and these issues are not preserved for review.
Arkansas Rule of Criminal Procedure 33.1 provides the requirements for making a directed-verdict motion:
(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense.
Ark. R.Crim. P. 33.1(a), (c) (2014). In order to preserve for appeal a court’s decision on a directed-verdict motion, the issue must be stated clearly and specifically to the circuit court. Pinell v. State, 364 Ark. 353, 219 S.W.3d 168 (2005). One reason for the specificity | ¿requirement is to allow the State, if justice requires, to reopen its case to present the missing proof; another reason is to ensure that this court does not decide an issue for the first time on appeal. Id.
Here, Hartman’s defense counsel made the following directed-verdict motion at the close of the State’s case-in-chief:
Defense Counsel: First off, concerning the charge of rape, although I think maybe the State has — may have made a prima facie' case for a lesser[-included offense], I do not believe they have met the burden on the rape charge— concerning the charge of rape and the elements thereof.
Defense counsel also renewed the directed-verdict motion following the close of all the evidence:
Defense Counsel: Now coming to the issue of rape. Although the rape statute is a little more broad under — for sexual intercourse and deviate sexual activity, the State has argued throughout the case under deviate sexual activity. For that reason I believe that the State, at best, may have made again a sexual contact thing but — and I know that the Court has got the issue concerning our Supreme Court has addressed the issues of the over-broadness and vagueness perhaps of the deviate — definition of deviate activity here; but I believe that the State has not met its burden in showing that the actions of our client meet the deviate sexual activity.
Neither of these motions made the specific arguments that Hartman now pursues on appeal. Because these arguments were never raised to the circuit court, Hartman’s argument is not preserved for our review. See Williamson v. State, 2009 Ark. 568, 350 S.W.3d 787. We therefore affirm the rape conviction.
| rIII. The Tampering-'with-Physical-Evidence Conviction
Hartman argues that his conviction for tampering with physical evidence is not supported by substantial evidence and that the court should have granted his directed-verdict motion. He specifically argues that the State failed to provide evidence that he, Hartman, ever touched the recording device. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Whitt v. State, 365 Ark. 580, 282 S.W.3d 459 (2006). When reviewing a challenge to 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. Gillard v. State, 366 Ark. 217, 234 S.W.3d 310 (2006). We will affirm a judgment of conviction if substantial evidence exists to support it. Id. Substantial evidence is evidence 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. Green v. State, 2013 Ark. 497, 430 S.W.3d 729.
Circumstantial evidence may constitute substantial evidence to support a conviction. Thornton v. State, 2014 Ark. 157, 433 S.W.3d 216. To be substantial, the circumstantial evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Id. Whether circumstantial evidence excludes every other reasonable hypothesis is usually a question for the jury. Murry v. State, 276 Ark. 372, 635 S.W.2d 237 (1982).
A person commits the offense of tampering with physical evidence if he alters, destroys, suppresses, removes, or conceals any record, document, or thing with the purpose of impairing its verity, legibility, or availability in any official proceeding or | ^investigation. Ark.Code Ann. § 5-53-111(a) (Repl. 2005). The offense is a felony if the person impairs or obstructs the prosecution or defense of a felony. Ark. Code Ann. § 5-53-lll(b)(l).
Viewing the evidence in the light most favorable to the State, we conclude that the jury had to speculate to convict Hartman of tampering with physical evidence. There was no direct evidence that Hartman ever touched the digital recorder. The only evidence to suggest that Hartman had touched the recording device was Officer Little’s testimony that the device should have had seven, rather than nine, recordings on it; his testimony that his interview with Hartman’s confession was missing; and the two audio recordings that were played to the jury, which suggested that there were two recordings after the confession instead of only one. All of these things could have resulted from the recorder malfunctioning. Moreover, Officer Little never testified that he listened to the recording of the confession before he noticed it was missing. As a result, the evidence failed to exclude every other reasonable hypothesis, and the jury had to speculate that the confession was actually properly recorded and later removed, that the device did not malfunction, and that Hartman deleted and added recordings. Accordingly, substantial evidence does not support Hartman’s conviction for tampering with physical evidence, and we reverse and dismiss his felony conviction for that charge.
IV. Juror Removal
Hartman also contends that the circuit court should have removed a juror with ties to E.R.’s family. At the beginning of the trial’s second day, the defense called a witness 17who testified that before jury selection started she had seen one of the jurors talking to E.R.’s great-great-aunt. The great-great-aunt was sworn and testified that she knew the juror’s family but that the two never discussed the trial during their approximately seven-minute conversation. Hartman argues that the court erred when it failed to excuse this juror. We do not reach this argument because Hartman failed to ask the court to remove the juror.
After the court heard testimony from the two witnesses regarding the juror’s relationship with the victim’s family, the court and defense counsel engaged in the following colloquy:
Defense Counsel: Well the disparaging thing from the Defense standpoint is obviously we have put a juror on the panel that knows that family, the family of the victim; and obviously if we knew that, we wouldn’t have put him on the jury.
The Court: Well I don’t recall anybody asking in voir dire.
Defense Counsel: We had one peremptory challenge left, and had we known his relationship with that family, I would have utilized that peremptory challenge.
The Court: Well we are not going to go back and conduct another voir dire on a question you all had an opportunity to inquire into. Furthermore, I don’t see any prejudice has been shown here. I just don’t see any.
Once this exchange ended, the court moved on to other matters. At no point did the defense ask the judge to remove the juror in question. This court has made it clear that it is up to the appellant to obtain a clear ruling on an issue in order to preserve that point for appeal. Anderson v. State, 357 Ark. 180, 163 S.W.3d 333 (2004). In order to preserve an argument for appeal, there must be an objection in the trial court that is sufficient to apprise that court of the particular error alleged. Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996); Moore v. State, 321 Ark. 249, 903 S.W.2d 154 (1995). Hartman failed to ask for the juror to be removed; therefore, he has waived his, right to pursue this argument on appeal because he never raised a specific error to the court.
V. Lesser-included Instruction
Finally, Hartman contends that the circuit court erred when it refused to give his proffered jury instruction for second-degree sexual assault, which he argues is a lesser-included offense of rape. A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen (14) years old. Ark.Code Ann. § 5-14-103(a)(3) (Repl. 2013). A person commits second-degree sexual assault if he is eighteen (18) years of age or older and engages in sexual contact with another person who is less than fourteen (14) years of age and not his spouse. Ark.Code Ann. § 5-14-125(a)(3). Hartman acknowledges that we have rejected the argument that second-degree sexual assault is a lesser-included offense to rape in two previous cases. Webb v. State, 2012 Ark. 64; Joyner v. State, 2009 Ark. 168, 303 S.W.3d 54. We reasoned that second-degree sexual assault is not a lesser-included offense of rape because it requires proof of two elements that rape does not: the defendant’s age (18 or over) and the defendant’s marital status (not married to the victim). A conviction for rape does not require proof of these elements, which means “sexual assault is not ‘established by proof of the same or less than all of the elements re quired’ to establish rape.” Joyner, 2009 Ark. 168, at 12, 303 S.W.3d at 61 (citing Ark.Code Ann. § 5 — 1—110(b)). Adhering to stare decisis, |9we decline to overrule our settled precedent on this issue. See Brown v. State, 321 Ark. 413, 903 S.W.2d 160 (1995). We hold that the court did not abuse its discretion when it declined Hartman’s request to include a lesser-included-offense jury instruction.
VI. Rule 4-3(i) Compliance
Under Arkansas Supreme Court Rule 4-3(i) (2014), the record has been reviewed for all objections, motions, and requests that were decided adversely to Hartman and no prejudicial error has been found.
Affirmed in part; reversed and dismissed in part.
. Hartman was also convicted of interfering with an emergency communication, but he has not appealed that conviction.
. Hartman separately challenged the felony nature of the charge, a point we decline to address because we have reversed the underlying conviction. | [
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WAYMOND M. BROWN, Judge
| lAppellants appeal from three circuit court orders: (1) an order granting summary judgment to appellees; (2) an order denying appellants’ motion to set aside summary judgment and dismissing their counterclaim; and (3) an order quieting title in the disputed property in appellees. On appeal, appellants argue that the circuit court erred in (1) granting summary judgment in favor of appellees because appellants had standing to defend their title to the real property and there were genuine issues of material fact to be litigated; and (2) dismissing their counterclaim and third-party complaint on the ground of res judicata. This case was previously before this court wherein we dismissed the matter for lack of a final order. Appellants have now cured the deficiency, and we proceed to 12address the merits of their two points for reversal. We affirm on the first point and reverse the latter for which we remand.
Appellees filed a petition to quiet title against their neighbors, appellants, on February 7, 2012. Subsequently, appel-lees filed a motion for summary judgment against appellants on May 15, 2012. The circuit court held a hearing on appellees’ quiet-title petition on July 3, 2012. On July 13, 2012, the circuit court entered an order granting appellees’ motion for summary judgment. Therein, the circuit court granted appellees ten days to amend their pleadings to include any additional necessary parties to the quiet-title action.
On July 23, 2012, appellants filed a counterclaim for adverse possession against ap-pellees and a third-party complaint to quiet title against Linda Graham, individually and as trustee of the Taletta Merritt Revocable Living Trust u/t/d August 1, 2001; Raymond L. Merritt; and Taletta Merritt, and if deceased, the unknown heirs of Taletta Merritt (deceased). On the same date, appellees filed an amended petition to quiet title against appellants, Raymond Merritt, and Rhonda Merritt. Appellees filed a motion to dismiss appellants’ counterclaim against them on August 9, 2012.
IsiOn August 15, 2012, Raymond L. Merritt filed a motion to dismiss the third-party claim against him. On September 28, 2012, the trial court entered an order dismissing without prejudice appellees’ complaint against Raymond L. Merritt. On October 19, 2012, appellants filed an amended counterclaim to quiet title against appellees. On October 25, 2012, the morning of the scheduled hearing on appellants’ counterclaim, appellants filed a motion to set aside the summary judgment. Both pleadings were addressed at the hearing. Following the hearing, the circuit court entered an order on October 80, 2012, dismissing without prejudice Linda Graham, individually and as trustee of the Taletta Merritt Revocable Living Trust, and Raymond Merritt. On November 5, 2012, the circuit court entered an order denying appellants’ motion to set .aside summary judgment and dismissing the amended counterclaim. On November 27, 2012, appellants filed a notice of appeal from the court’s November 5 order.
Following a hearing on appellees’ petition to quiet title on December 21, 2012, the circuit court entered a decree quieting title in the disputed property in appellees on December 26, 2012. On January 22, 2013, appellants filed an amended notice of appeal stating that they were appealing from orders entered on July 23, 2012; November 5, 2012; and December 26, 2012.
Following this court’s dismissal of the matter for lack of a final order, on January 22, 2014, appellants filed a motion for final decree stating that neither Rhonda Merritt nor Taletta Merritt had been served in the proceeding and the respective claims against them should be dismissed. On February 19, 2014, an order was entered dismissing all claims against Rhonda Merritt and Taletta Merritt. This timely appeal followed.
|4I. Summary Judgment
Summary judgment may be granted by a trial court only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, clearly show that there are no genuine issues of material fact to be litigated and the party is entitled to judgment as a matter of law. When the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing a genuine issue as to a material fact. On appellate review, we must determine whether summary judgment was proper based on whether the evidence presented by the moving party left a material fact unanswered. This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Where there are no disputed material facts, our review must focus on the trial court’s application of the law to those undisputed facts.
On appeal, appellants argue that they demonstrated clearly that there were genuine issues of material fact in dispute due to appellants’ assertion that the appel-lees’ use of the disputed property was with appellants’ permission and appellants’ claim of adverse |fipossession of the disputed property. The disputed property was an abandoned fifty-foot easement between the properties of appellants and appellees. In 1999, the City of Fayetteville abandoned the easement by ordinance. At that point, Arkansas Code Annotated section 14-801-306 applied. Said section states that:
Upon the adoption of the ordinance, absolute ownership of the property abandoned by the city or town shall vest in the owners of the real estate abutting thereon. Each abutting owner shall take title to the center line of the street or alley so abandoned[.]
Upon abandonment by the city, appellants’ predecessors to the north of the disputed property and appellees to the south, each obtained ownership of the disputed property to its center at twenty-five feet.
A claim of adverse possession is made against the “true owner” of the disputed property. In this matter, at the time the easement was abandoned, Taletta Merritt owned the abutting property now owned by appellants; therefore, ownership of the north twenty-five feet of the abandoned easement vested in Taletta Merritt. Merritt then conveyed a portion of her property to the Taletta Merritt Revocable Living Trust (Trust); the conveyance did not name or mention the twenty-five-foot property previously abandoned by the city. When appellants bought the north-abutting property from the Trust, it did not include the twenty-five-foot property because the Trust could not Uconvey what it did not own. Appellants never acquired any deed conveying ownership of the disputed property to them. Because appellants were not the owners of the disputed property, they could not give permission to appellees for its use.
At the time appellees filed their petition to quiet title in the disputed property, it is clear that the owner of thé disputed property was the heir of Taletta Merritt, deceased, and not appellants. “Only a claimant who has a personal stake in the outcome of a controversy has standing.” Accordingly, we hold that the circuit court committed no error in finding that appellants had no standing to defend against appellees’ adverse possession claim. Summary judgment was proper; therefore, we affirm as to this point.
II. Res Judicata
Appellants argue next that the trial court erred in dismissing their counterclaim where it had specifically granted appellants the opportunity to claim the real property at issue by adverse possession. Appellants rely a great deal on a statement from the circuit court at the summary-judgment hearing that it would “reserve [appellants’] rights if they would like to ... make that affirmative claim of adverse possession.” This language did not make it into the circuit court’s order on the matter, which dismissed appellants as parties altogether, so appellants’ reliance thereon is misplaced. However, we find merit in appellants’ argument nonetheless. Appellees argue that because appellants lacked standing to defend against their adverse-possession claim due to lack of color of title, they lacked standing to bring their own claim. We disagree with appel-lees’ argument.
|yThe doctrine of res judicata has two aspects: claim preclusion and issue preclusion. The purpose of res judicata is to put an end to litigation by preventing a party who has already had a fair trial on the matter from litigating it again. Res judicata bars relitigation of a subsequent suit when (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action; and (5) both suits involve the same parties or their privies. Where a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Res judicata bars relitigation of claims that were actually litigated in the first suit as well as those that could have been litigated. Strict privity in the application of res judicata is not required. Instead, for privity, there only needs to be a substantial identity of the parties.
| ^Appellees’ argument focuses on the requirement in Arkansas Code Annotated section 18-11-106 that a claimant for adverse possession hold color of title. As such, appellees cite the following:
(a) To' establish adverse possession of real property, the person and those under whom the person claims must have actual or constructive possession of the real property being claimed and have either:
(1)(A) Held color of title to the real property for a period of at least seven (7) years and during that time paid ad valorem taxes on the real property.
However, appellees neglect to acknowledge the following, which also followed the word “either” above:
(2) Held color of title to real property contiguous to the real property being claimed by adverse possession for a period of at least seven (7) years and during that time paid ad valorem taxes on the contiguous real property to which the person has color of title.
Appellants had no standing to defend against appellees’ claim because they had no color of title due to the disputed property having remained the property of Tal-etta Merritt by her failure to include the same in her deed conveying property to her trust, from which appellants bought their property. However, because appellants own property contiguous to the disputed property on which they have paid taxes for at least seven years, they had their own separate right to bring a claim for adverse possession, without regard to whether the court stated so in its order. By definition, a typical adverse-possession claim comes from someone without color of title to the disputed property. The only issues remaining, for res judicata purposes, are whether a final, appealable order had been entered prior to appellants’ assertion of their claim and whether appellants’ adverse possession claim was barred, as determined by the circuit court.
|flFor a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. An order is not final and appealable merely because it settles the issue as a matter of law; to be final, the order must also put the court’s directive into execution, ending the litigation or a separable branch of it.
This whole matter began when ap-pellees filed their petition to quiet title on February 7, 2012. They then filed a motion for summary judgment on May 15, 2012. The circuit court entered an order granting appellees’ motion for summary judgment on July 13, 2012, without deciding the merits of appellees’ petition; rather, it granted appellees ten days to amend their pleadings to include any additional necessary parties to the quiet-title action. The court also dismissed appellants from the action, finding that they had failed to establish standing • in the matter. ' The question of title to the property was specifically not fully contested. In fact, the court did not enter an order deciding the merits of appellees’ petition to quiet title until December 26, 2012. Because the court left open action to be taken by appel-lees and did not dispose of appellees’ quiet-title petition, this order was not final. This court specifically found that no final order had been entered when it first received this appeal. Although a decree quieting title in appellees was entered on December 26, 2012, a final order was not entered until February 19, 2013. Accordingly, 11flbecause no final order had been entered, appellants were free to file their own counterclaim for adverse possession. We hold that the circuit court erred in finding that appellants’ claim of adverse possession was barred by res judicata. We reverse the circuit court’s order dismissing appellants’ counterclaim and remand on this issue.
Affirmed in part; reversed in part and remanded.
Kinard and Gruber, JJ., agree.
. Mancabelli v. Gies, 2013 Ark. App. 685, 2013 WL 6097996.
. During the hearing, the court stated that it did “think there’s a problem with an issue of fact with respect to the [Appellees'] Petition to Quiet Title in that there may be a necessary party that’s not been named.” Accordingly, at the conclusion of hearing, the circuit court dismissed appellants’ answer, but did not grant appellees’ petition to quiet title. Instead, it allowed appellees to contact the Merritts, the property’s former owners, to determine if they were necessary parties. Furthermore, the circuit court orally stated that it was preserving appellants’ affirmative adverse-possession claim, which they had incorrectly attempted to assert at the hearing without having previously filed a petition asserting the same. However, the circuit court specifically found that appellants had no ownership interest in the disputed property.
. Grayson & Grayson, P.A. v. Couch, 2012 Ark. App. 20, at 12, 388 S.W.3d 96, 104 (citing Lee v. Martindale, 103 Ark. App. 36, 286 S.W.3d 169 (2008)).
. Id. (citing Dodson v. Allstate Ins. Co., 365 Ark. 458, 231 S.W.3d 711 (2006)).
. Watkins v. S. Farm Bureau Cas. Ins. Co., 2009 Ark. App. 693, at 6, 370 S.W.3d 848, 853 (citing Windsong Enters., Inc. v. Upton, 366 Ark. 23, 233 S.W.3d 145 (2006)).
. Id. (citing Cole v. Laws, 349 Ark. 177, 76 S.W.3d 878, cert. denied, 537 U.S. 1003, 123 S.Ct. 509, 154 L.Ed.2d 400 (2002)).
. Id. (citing Parker v. S. Farm Bureau Cas. Ins. Co., 104 Ark. App. 301, 292 S.W.3d 311 (2009)).
. (2013).
. Ark. Code Ann. § 14-301-306(a).
. Lynch v. Bates, 2012 Ark. App. 123, at 4, 388 S.W.3d 922, 925 (citing Smith v. Smith, 2011 Ark. App. 598, 385 S.W.3d 902; Trice v. Trice, 91 Ark. App. 309, 210 S.W.3d 147 (2005)).
. Chubb Lloyds Ins. Co. v. Miller Cnty. Cir. Ct., 2010 Ark. 119, at 4, 361 S.W.3d 809, 812 (quoting Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 371 Ark. 217, 220, 264 S.W.3d 465, 467 (2007)).
. Hooten v. Mobley Law Firm, 2011 Ark. App. 778, at 5, 387 S.W.3d 298, 302 (citing Bisbee v. Decatur State Bank, 2010 Ark. App. 459, 376 S.W.3d 505).
. Williams v. Nesbitt, 2012 Ark. App. 408, at 5, 421 S.W.3d 320, 323 (citing Hardy v. Hardy, 2011 Ark. 82, 380 S.W.3d 354).
. Hooten, supra (citing Joyel Corp. v. Cochran, 366 Ark. 175, 234 S.W.3d 278 (2006)).
. Williams, supra.
. Hooten, supra (citing Winrock Grass Farm, Inc. v. Affiliated Real Estate Appraisers of Ark., Inc., 2010 Ark. App. 279, 373 S.W.3d 907).
. Id. (citing Parker v. Perry, 355 Ark. 97, 131 S.W.3d 338 (2003)).
. Id.
. Allen v. Allen, 99 Ark. App. 292, 296, 259 S.W.3d 480, 484 (2007) (citing Roberts v. Roberts, 70 Ark. App. 94, 14 S.W.3d 529 (2000)).
. Id., 99 Ark. App. at 297, 259 S.W.3d at 484 (citing Morton v. Morton, 61 Ark. App. 161, 965 S.W.2d 809 (1998)).
. Mancabelli v. Gies, 2013 Ark. App. 685, 2013 WL 6097996.
. We note that appellants titled their petition for adverse possession as a "counterclaim and third party complaint to quiet title[;]" however, this was not appellants’ answer and appellants’ answer did not include a claim for adverse possession. It would not be in the interest of justice and fair play to be blindly guided by the title of a motion or pleading. Cornett v. Prather, 293 Ark. 108, 111, 737 S.W.2d 159, 160 (1987). We continue to abide by the well-established rule that a pleading will not be judged entirely by what it is labeled but also by what it contains. Id. at 111, 737 S.W.2d at 161. Though titled a “counterclaim," we acknowledge that this pleading was in fact a petition to quiet title. | [
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Minor W. Millwee, Justice.
This suit involves the title to 120 acres of wild and unimproved timber lands in Polk county. In 1925 the United States issued its patent to R. A. Smith who conveyed to Oscar Phillips in 1928. Oscar Phillips conveyed to W. H. Burns and Kate Burns, his wife, in 1932 and the latter reconveyed to Oscar Phillips by warranty deed on May 8, 1946. On June 1, 1946, Oscar Phillips conveyed by warranty deed to appellee, Coyle Watkins.
The land forfeited for the 1941 taxes and a local agent of Paul Brown and John Entriken, non-residents, purchased at a tax sale on November 9, 1942. A clerk’s tax deed was issued to Brown and Entriken on November 11, 1944. On November 14, 1945, a decree was entered on the ex parte petition of Brown and Entriken confirming their title to the lands. On December 30, 1946, Brown and Entriken conveyed by quit claim deed to O. F. Phillips, who is not related to appellee, Oscar Phillips. O. F. Phillips conveyed by a quit claim deed to appellant, Charles Hensley on February 3,1948.
Taxes on the land for the years 1942 to 1945, inclusive, were paid by W. H. Burns. Appellee, Coyle Watkins, paid the 1946 taxes and appellant paid taxes for the year 1947.
On July 10,1948, appellees, Oscar Phillips and Coyle Watkins, filed this suit for confirmation of their title and to cancel the 1942 tax sale, the clerk’s deed based thereon and to vacate the confirmation decree rendered in favor of Brown and Entriken on November 14, 1945. The complaint alleged the 1942 tax sale to be void because the clerk did not, before the date of sale, make a certificate showing publication of the delinquent list of lands as required by law, and that the 1945 decree of confirmation based on said void sale was erroneously granted.
Appellant answered with a general .denial and alleged that appellees were barred from attacking the 1945 confirmation decree by the provisions of Ark. Stats. (1947), § 84-1325 and also by a decree confirming title in the State in 1938.
Trial resulted in a decree in favor of appellees holding the 1942 tax sale void and that the confirmation decree of November 14, 1945, was illegally obtained and • granted. The 1942 tax sale was ordered cancelled and the 1945 confirmation decree vacated. Title was ordered confirmed in appellee, Coyle Watkins, upon refund to appellant of taxes paid by him for the year 1947.
Appellant’s principal contention for reversal is that appellees are barred from attacking his title by Ark. Stats. (1947), § 84-1325 (§ 8719, Pope’s Digest). This statute provides that owners of lands embraced in a confirmation decree in favor of the State shall be barred from attacking said decree after the lapse of one year. Appellant cites cases which hold that the alleged defect in the 1942 tax sale is an irregularity which is cured by a confirmation decree rendered pursuant to the statute. While appellant alleged in his answer that title had been confirmed in the State, there is nothing in the record to indicate that the land in controversy was ever sold or certified to the State, or that it was involved in a confirmation suit brought by the State. If the land forfeited for taxes prior to 1941, it was apparently redeemed, since it was continuously assessed in the name of the owner. Under the record here presented, the State had no title or interest in .the land to which appellant could be subrogated under § 84-1325, supra.
The record discloses that the sale at which the appellant’s predecessor in title purchased the land was held November 9, 1942. It is undisputed that the certificate of the county clerk showing publication of the delinquent list of lands required by Ark. Stats. (1947), § 84-1103, was made January 7, 1943. The clerk who made the certificate was not clerk when the lands sold. The case of Cecil v. Tisher and Friend, 206 Ark. 962, 178 S. W. 2d 655, also involved the validity of a tax sale of lands in Polk county. It was there held that the failure of the clerk to make and attach the certificate of publication of the delinquent list prior to the date of sale rendered the tax sale void. It was further held in that case that two years actual adverse possession by the holder of a clerk’s tax deed was necessary to bar an action of the owner of the original title to recover the land under the provisions of Ark. Stats. (1947), § 34-1419, 8925, Pope’s Digest).
In Hixon v. Fulks, 210 Ark. 204, 194 S. W. 2d 870, relied on by appellant, we held (Headnote 3) : “Since the sale under which appellant claimed was void, and he had not had actual possession of land which was wild and unimproved, he could not successfully resist appellee’s action to cancel his deed.” See, also, Standard Securities Co. v. Republic Mining & Manufacturing Co., 207 Ark. 335, 180 S. W. 2d 575. It is undisputed that the land here involved is wild and unimproved and that-neither appellant nor his predecessors in title have ever been in actual possession. It follows that the 1942 tax sale was invalid and open to attack by appellees, unless the confirmation decree of November 14, 1945, operated to cure the defect in said sale.
Brown and Entriken received their tax deed from the clerk November 11, 1944, and obtained the confirmation decree upon their ex parte petition on November 14, 1945. This decree recites that petitioners are the owners and in possession of the wild and unimproved lands; that notice has been published as required by law; that no person has intervened to claim an interest in the land; and that no person owns or claims any interest therein adverse to that of petitioners. Ark. Stats. (1947), §§ 34-1901 to 34-1912, set forth the procedure by which title to wild and unimproved lands may be quieted. If Brown and Entriken, appellant’s predecessors in title, were proceeding under this statute, then the record discloses that there was no compliance with § 34-1909, which provides that the confirmation decree shall not be binding on any person who has paid taxes on the land within seven years unless he be made a party. In Grayling Lumber Co. v. Tillar, 162 Ark. 221, 258 S. W. 132, it was held that a decree of confirmation under this statute was void as to a person who paid taxes within seven years preceding the filing of the petition for confirmation and who was not made a party. It was also held that the suit brought by such omitted party for the purpose of quieting his title and vacating the decree of confirmation constituted a direct attack thereon.
Although appellees did not pay taxes within seven years preceding the filing of the confirmation petition by Brown and Entriken their grantor, W. H. Burns, did pay said taxes for the years 1942 to 1945 and was not made a party to the confirmation suit. Appellees succeeded to all the rights of W. H. Burns under their respective warranty deeds and were, therefore, entitled to the relief granted by the trial court under this statute.
If the 1945 confirmation decree was obtained under the provisions of Ark. Stats. (1947), §§ 34-1918 to 34-1925, the record also shows that the petitioners did not comply with this statute. Section 34-1920 provides there shall be no confirmation unless the petitioner or those under whom he claims have paid the ta;xes on the lands for at least two years after the expiration of the right of redemption, said payment of taxes to be three consecutive years immediately prior to the application to confirm, and that copies of tax receipts showing such' payment shall be filed with the petition. Brown and Entriken paid no taxes on the land in controversy and the payments required by the statute were made by appellees’ predecessor in title, W. H. Burns. It follows that the 1945 confirmation decree was ineffectual to confirm title in appellant’s predecessors in title under this statute.
Appellant also contends that appellees failed to meet the requirements of Ark. Stats. (1947), § 84-1313, which sets out the grounds upon which a clerk’s tax deed may be defeated and provides “But no person shall be permitted to question the title acquired by a deed of the Clerk of the County Court, without first showing that he, or. the person under whom he claims title to the property, had title thereto, at the time of the sale, or that title was obtained from the United States, or this State, after the sale, and that all taxes due upon the property have been paid by such person, or the person under Avhom he claims title as aforesaid . . . ” One of the grounds mentioned in the statute is the omission “to give notice of the sale.”
Appellant argues that since the failure of the clerk to make the certificate to the delinquent list prior to the sale is not mentioned in § 84-1313, supra, appellees are not in position to question the clerk’s deed to Brown and Entriken. We held to the contrary in Standard Securities Co. v. Republic Mining & Manufacturing Co., supra, on the authority of the cases of Cooper v. Freeman Lumber Co., 61 Ark. 36, 31 S. W. 981, 32 S. W. 494, and Logan v. Eastern Ark. Land Co., 68 Ark. 248, 57 S. W. 798. It was said in these cases that the failure of the county clerk to properly execute and attach the certificate to the delinquent list prior to the sale is a meritorious defense which the owner cannot be deprived of by the deed of the county clerk to the purchaser at the tax sale. It was also held in the Standard Securities Co. case that a landowner, who failed to pay taxes on the land continuously since its forfeiture, was not precluded from asserting invalidity of the tax sale on account of the failure of the clerk to properly execute the certificate.
As previously stated neither appellant nor his predecessors in title paid any taxes on the land until 1948. It was then that appellees learned for the first time of the 1945 confirmation decree and the present suit was instituted. We cannot agree with the contention that as between appellant and appellees the former has the superior title and will be deemed to have been in possession during the two years prior to commencement of the instant suit. Where land is wild and unimproved, it is in the constructive possession of the person holding the legal title. Chancellor v. Banks, 92 Ark. 497, 123 S. W. 650. Since the decree in favor of Brown and Entriken was illegal and void as against appellees, the latter had a perfect paper title to the lands which was superior to the title of appellant, and the lands being wild and unimproved were in the constructive possession of appellees and those under Avhom they claim.
The decree canceling the outstanding title of appellant and quieting the title of appellee, Coyle Watkins, is accordingly affirmed. | [
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George Rose Smith, J.
This petition for a writ of prohibition presents a question of first impression in Arkansas. Petitioner was charged by separate informations with the involuntary manslaughter of three persons, caused by his driving a ear in reckless, willful and wanton disregard of the safety of others. Ark. Stats. (1947), § 41-2209. After trial and conviction upon the first information petitioner interposed a plea.of former jeopardy to the other charges.” The court below rejected the plea; we are now asked to forbid a second trial.
As in most states, our constitution provides that no person shall be twice put in jeopardy of life or liberty for the same offense. Ark. Const., Art 2, § 8. The situation in which a single act has caused several injuries or deaths has created two lines of authority in the American decisions. Doubtless this disagreement is occasioned by the fact that this situation lies at the intersection of conflicting principles -of public policy. On the one hand, the apparent injustice of trying a man repeatedly for the consequences of a single action has led many courts to hold that there is only one offense. On the other, the natural inclination to attach greater gravity to the killing of several persons than to the killing of one has been emphasized by other courts in finding multiple offenses in the same act.
We touched upon but did not decide the question in Jones v. State, 61 Ark. 88, 32 S. W. 81, on which both petitioner and respondent rely. There we pointed out that some authorities hold that but one offense results from a single act and volition. We distinguished those cases, however, on the ground that the deaths in the Jones case were not in consequence of one act, although closely connected in point of time.
We also said that Jones conld not have been convicted of the murder of A under an indictment for the murder of B, or vice versa. The respondent insists that this language is decisive here, but this approach does not reach the heart of the problem. If a thief simultaneously steals two objects, the State may charge him with the theft of one, and under that indictment he cannot be convicted of stealing the other. A plea of double jeopardy would nevertheless bar a second trial for larceny; for there is only one offense, which the State cannot subdivide by making separate accusations. Thus if the deaths in the Jones case had really been one offense, the State could not have split the public cause of action into piecemeal charges. We must evidently go beyond the language of that opinion to answer the question now presented.
When the crimes involve ■ the element of intent we see no difficulty in finding two offenses in one act. If the accused kills two people by immediately successive pistol shots, it is unlikely that any court would forbid a second trial. As far as the policy against double jeopardy is concerned, we do not see that it makes any difference if the accused accomplishes the same purpose at one stroke, as by the use of poison or a shotgun. If he has a distinct and severable intention to bring about the death of each victim, then each intention is a necessary element of a separate offense against the State. This point of view is well expressed in People v. Warren, 1 Parker’s Cr. Rep. (N. Y. ) 338.
To what extent is this reasoning applicable to the present case? What the'statute punishes is driving with reckless, willful and wanton disregard for the safety of others.. The offense does not involve intent in the sense of a deliberate desire to bring about a certain result. Petitioner accordingly urges us to follow such cases as State v. Wheelock, 216 Iowa 1428, 250 N. W. 617, holding that a single act of negligence does not constitute three offenses even though it causes three deaths.
We need not express an opinion as to the merits of the rule just stated, for here we are confronted with conduct that was reckless rather than merely negligent. Recklessness is more closely akin to intent than is sometimes realized. It has been described as conduct involving a risk to others that is out of all proportion to its own utility. As the disproportion between utility and risk increases, a point is reached at which the degree of culpability becomes indistinguishable from that inherent in activity by which harm to others is consciously intended. See Rest., Torts, § 282, Comment cl. We have said that willful negligence involves consciousness of one’s conduct and contains an element equivalent to constructive intent. Froman v. J. R. Kelley Stave & Heading Co., 196 Ark. 808, 120 S. W. 2d 164.
Whether particular conduct is cautious or reckless depends upon its attendant circumstances. To drive a car at sixty miles an hour may demonstrate extreme caution upon a race-track and yet may be almost as culpable as murder if done in a crowded city street. Here petitioner is charged with driving recklessly, willfully and wantonly in such circumstances that three people were killed. It is stated that he was under the influence of intoxicants at the time. On the basis of these allegations we must treat petitioner’s conduct as being equivalent to a conscious and deliberate disregard for the safety of others. Such behavior borders so closely upon that motivated by actual intent that we have no hesitancy in saying that the same reasoning is applicable. Petitioner risked a violation of the statute as to each person whose life he imperiled and may be held separately responsible for each death proximately resulting from the prohibited conduct.
Writ denied.
Griffin Smith, C. J., Robins and MoFaddin, JJ., concur. | [
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Frank G. Smith, J.
This case was disposed of on a demurrer to the complaint which was sustained and from which decree is this appeal. We therefore copy in full appellant’s summary of its allegations.
Appellant, a citizen and taxpayer of the State, who is the owner of outstanding refunding bonds issued under Act No. 4 of 1941, hereinafter referred to as Act No. 4, brought this suit against appellees members of the State Board of Fiscal Control, for himself and all others similarly situated, to enjoin the sale and issuance of $7,000,000 of State Highway construction bonds authorized by Act No. 5 of the 1949 General Assembly, hereinafter referred to as Act No. 5.
Act No. 5, approved January 20,1949, authorizes the State Board of Fiscal Control to issue not exceeding $28,000,000 of general obligation bonds of the State for construction and reconstruction of highways aiid bridges ■ in the fiscal years 1949 to 1952 inclusive, provided that the issuance of the $28,000,000 in bonds was approved by the electors at a special election called by the Governor, for which the Act provided. The Act provides that the election shall be conducted by the county board of election commissioners as constituted immediately prior- to the last general election. An emergency clause was attached. No referendum petition has been filed.
Both Act 4 and Act 5 authorize the issuance of bonds for road purposes, and Act 5 was patterned after Act 4 and it is quite apparent that in drawing the latter act the former was carefully considered.
Several questions were raised, which will be considered, hut the important and controlling question is whether Act 5 impairs the obligations of the contracts made under the authority of Act 4.
Section 12 of Act 4 made allocations of highway revenues coming into the State Highway Fund each year which were designated in the opinion in the case of Clayton, State Treasurer, v. City of Little Rock, 211 Ark. 893, 204 S. W. 2d, 145, as allocations A, B, C, and D. Section 12 of Act 5 employs the same designation of allotments A, B, and C.
By allotment A in both Acts the first $10,250,000 of highway revenue as it comes into the State Highway Fund is set aside for highway maintenance and debt service for bonds issued under Act 4, in the proportion of 30% for highway maintenance, and 70% exclusively for current debt service and the redemption and purchase of such bonds.
Allotment B is identical in both Acts and both allotments are contractual in their nature. The revenues referred to in both allotments A and B come from the sale of motor fuel used in transportation on the highways of the State, and from license fees and auto division fees which must of course be maintained in order that the highway may he so used, the use of which involves the sale of motor fuel on which the tax is imposed and collected.
It was said in the case of Scougale v. Page 194 Ark. 280, 106 S. W. 2d, 1023 that: “Whatever enactment abrogates or lessens the means of the enforcement of a contract impairs its obligation,” and it remains to be considered whether Act No. 5 has lessened the security given by Act No. 4 to the purchasers of bonds issued under the provisions of that Act.
We copy from appellant’s brief his statement of the contentions why Act No. 5 has impaired the obligations incurred under Act No. 4, and no other reason in support of that contention is suggested. They are:
“1. Notwithstanding the fact that Act No. 5 of 1949 respects and preserves contractual rights in allocations A, B and 0, the change in allocation D impairs the contractual rights of the holders of outstanding bonds issued under Act No. 4 of 1941 and of counties and municipalities of the State, contrary to the contract clauses of the Federal and State Constitutions, which renders the Act void;
“2. The covenant in Act 5 not to permit the present laws to be amended so as to reduce the annual revenue pledged to meet the debt service of the bonds is invalid, as it contracts away the police power of the State and thereby renders the entire Act void;
“3. If the covenant not to permit the present laws to be amended so as to reduce the annual revenue pledged to meet the debt service is valid, the provision in subsection G of § 10 of Act No. 5 allocating the next $2,500,000 for a refund of a portion of the taxes paid on gasoline used in farm equipment, as the Legislature may determine, is in effect a reduction of the annual revenue pledged for debt service and violates the covenant and is void.
“4. The resolution of the State Board of Fiscal Control providing for notice of the sale of the bonds is based upon a certification by the State Highway Commission of the funds available for the fiscal year ending March 31, 1949; whereas, Act No. 5 of 1949 contemplates that said certification should be based upon the revenues of the fiscal year in which the bonds are issued which would be the fiscal year beginning April 1, 1949, and, therefore, the issuance of the bonds at this time would be premature;
“5. The emergency clause of Act No. 5 does not state facts sufficient to constitute an emergency under Amendment No. 7 of the Constitution of Arkansas and for that reason the Act, if valid, could not go into effect until ninety days after the adjournment of the Legis lature, and since the Act was not effective on February 15,1949, the election held on that date was premature and void;
“6. Act No. 5 of 1949 creates vested rights. Amendment No. 7 to the Constitution of Arkansas forbids an emergency on any act creating a vested right. Therefore, the Act is invalid as an emergency measure. For that reason the Act, if valid, could not become effective until ninety days after the adjournment of the Legislature and the election, therefore, was void;
‘ ‘ 7. The election on the bonds was not conducted by the county election boards provided for in Initiated Act No. 3 of 1948, and in some counties notice of the election was not given by proclamation of the sheriff, as required by the general election laws, and for this reason the election was void; and
“8. As the bonds would pledge the faith and credit of the State and its revenues, and were not approved by the people at a valid election, they would contravene amendment No. 20 of the Constitution of Arkansas. ’ ’
In answer to these contentions it may be said that allocations A and B are in fact contractual in their nature, and it would impair the obligations of the bond contract to change them, but they have not been changed. They are the same in both Acts and each contains the contractual provisions for the payment of the bonds, so that the holders thereof have not been deprived of any security given them under Act No. 4 by Act No. 5.
Allotments C and D of Act No. 4 are not contractual in their nature as they relate to distribution of highway funds after allotments A and B have been fully made. The allotments C and D of Act No. 4 are allotments which are in the nature of gratuities and the State is under no contractual obligation to continue them. They may be given or withheld at the State’s pleasure. -It was so held in the Clayton case supra, and they cannot be given until allotments A and B have been observed.
In § 10 of Act No. 5, allocations A, B, D, E, H, and I will become contractual sections when bonds are issued under said Act No. 5, and allocations C, F, and G of § 10 of Act No. 5 are gratuity sections, as that term is used in Clayton v. Little Bock, supra.
As tbe security offered to the bond holders when the bonds were sole! and issued under Act No. 4 has not been impaired or lessened, the objections contained in paragraphs 1, 2 and 3 of appellant’s complaint are not well taken and cannot be sustained.
Appellant contends that under § 3 of Act 5 the certificate of the Highway Commission as to money available for construction of roads should be for the fiscal year beginning April 1, 1949, and not for the fiscal year ending March 31, 1949, and that therefore the issuance of the bonds at this time would be premature.
Section 1 Act No. 5 defines the word “year” or “fiscal year” as meaning the 12 month period beginning-each April 1st and ending the following- March 31st, and pursuant to the directions of § 3 the Fiscal Board prepared a certificate which recites that the Highway Commission had on April 8, 1949, certified the amount of revenue available to the State Highway Department for the construction and reconstruction of highways and bridges to be less than $13,000,000, so that the condition precedent for issuing $7,000,000 in bonds existed. In view of the facts stated we think it was the intent of Act No. 5 that the first issuance of bonds would be in the fiscal year beginning April 1, 1949, and this conclusion is supported by the recitals in the emergency clause of the Act as to the condition of the roads of the State and the urgency for their repair.
At the special election called and held pursuant to Act No. 5, the proposed bond issue was approved by a vote of 108,290 for, to 24,457 against, but it was alleged that in some counties notice was not given by the sheriff as provided in the general election law. As to this allegation it may be said that it is common knowledge that elections were held in all the counties in the State, and that a substantial vote was polled in each of them, considering the fact that the election was a special one involving only a single question. In the case of Brown v. Bradberry, 214 Ark. 937, 218 S. W. 2d 733, where a similar question was raised it was said: “A second answer is that procedural directions when viewed retrospectively are not mandatory unless of the essence of what is to be accomplished. Though enforceable by appropriate action taken before the voters have spoken the participating majority will not (in the absence of fraud) be deprived of the fruits of its victory upon a showing that a ministerial act was overlooked. One of the frequently-quoted cases in which after-election complaints are discussed is Wheat v. Smith, 50 Ark. 266, 7 S. W. 161. See, also, Henderson v. Gladish, 198 Ark. 217, 128 S.W. 2d, 257. Many other decisions hold that the will of a majority cannot be defeated because of procedural omissions that did not prevent a fair expression.”
It is insisted that the emergency clause of Act 5 does not state facts sufficient to constitute an emergency under Amendment No. 7 to the Constitution and for that reason the Act if valid, did not go into effect until ninety days after the adjournment of the Legislature and for this reason the election on February 15, 1949, was premature and void.
We think, however, that the emergency clause sufficiently declares the existence of an emergency within the meaning of Amendment to the Constitution No. 7. Its recitals are as follows:
“Section 20. It has been found and it is hereby determined by the General Assembly that many of the highways of the State are in a dangerous condition caused by lack of funds for their repair and maintenance and are a daily menace to the traveling public; that the repairs and construction of the present public roads and the construction of new roads contemplated by this Act are necessary for the safety of the traveling public, and that such repairs, reconstruction, and new construction should be commenced as early as practicable in the spring of the year 1949; that low interest rates now prevail which have created a market advantageous to the issuance of bonds; that the duration of such low interest rates is uncertain for the following reasons: (a) the consensus among bond dealers and other experts is that the long term trend of interest rates is upward; (b) that the recent decline in the interest rates upon State and municipal securities is opposed to the forecasted long term trend of interest rates and may prove to be of short duration; (c) the supply of State and municipal securities is constantly being augmented by the issuance of large amounts of bonds by the States and municipalities, and (d) the possibility of war; that the State should take advantage of the present favorable market and its failure to do so will result in great financial detriment of the State; that only by this Act can the said dangerous condition of the State highways be promptly remedied and for that reason it should take effect without delay; and for said reasons it is hereby declared necessary for the preservation of the public peace, health and safety that this Act should become effective without delay. An emergency, therefore, is declared to exist and this Act shall take effect and be in force from and after its passage and approval by the Governor.”
If the conditions of the roads are such as they were found and declared to be, their immediate repair is urgent. The emergency clause of Act 5 is as definite as was that clause in Act No. 4 which was sustained in the case of Fulkerson v. Refunding Board, 201 Ark. 957, 147 S.W. 2d, 980. Having an emergency clause the Act was effective when approved by the Governor, subject of course to the right of referendum. In the Fulkerson case as in this, the special election provided for in each Act was held within the time when the Act was subject to the right of referendum, but it may be said here, as it was said in the Fulkerson case, that since a valid emergency clause was attached to Act No. 5, the election provided for therein was properly held without waiting for the expiration of ninety days after the adjournment of the General Assembly.
It is argued that Act No. 5 creates vested rights prohibited by Amendment No. 7 to the Constitution. Similar objection was made to Act No. 4, § 18 of which reads as follows: “This act shall not create any right of any character, and no right of any character shall arise under or pursuant to it, unless and until bonds authorized by this act shall have been issued and actually sold or exchanged by the board. ’ ’
It was held in the Fulkerson case supra, as shown in a headnote of that case, that: “Since, under Act No. 4 of the 1941 session of the General Assembly providing for the refunding of the state’s highway bonds it is provided that no vested rights shall accrue thereunder until the consent of the people had been given at an election to be held for that purpose, no vested rights can arise until that condition is performed.” Act No. 5 has a similar proivsion and must of course be given, the same construction. The election had been held, but no bonds have been sold under Act No. 5 so that no one is yet in position to claim that he has any vested right under Act No. 5.
It is insisted that inasmuch as Initiated Act No. 3 had been approved by the electors of the State and was in effect when the bond election was held, that the bond election should have been held in accordance with the provisions of the Initiated Act. It may be answered that Act No. 3 applies only to the election of public officers and to initiated and referred measures.
Act No. 5 is not an initiated measure and has not been referred and does not involve the election of any public officers. Moreover Act No. 5 provides in § 15 thereof that, “The County Boards of Election Commissioners of tlae several counties of this State, as constituted immediately prior to the last general election, shall hold and conduct this election, anything in Initiated' Act No. 3 of 1948 to the contrary notwithstanding, * * We hold therefore that the bond election was held pursuant to law.
Upon the insistence that the State has contracted away its police powers, but little need be said. The police power and the taxing power which we hold here has not been exceeded, are different powers. The police power appertains to such rules and regulations relating to personal and property rights as affects the public health, public safety and public welfare. Bacon v. Walker, 204 U. S. 311, 27 S. Ct. 289, 51 L. Ed. 499; Williams v. State, 85 Ark. 464, 108 S. W. 838, annotated in 26 L. R. A., N. S. 482, 122 Am. St. Rep. 47.
It is the right of the State to regulate all activities within its territorial limits, protecting the public welfare and as applicable here, it is the right of the State to regulate the traffic on the state highways in such matters as speed limits, limiting the weight of vehicles, and regulating the conduct of persons in using the highways, etc. There is nothing in the Act which impairs or restricts the power of the State in these respects, or for that matter relating to those powers.
It may finally be said in answer to appellant’s last objection that there has been no contravention of Amendment No. 20 to the Constitution. This amendment provides that except for the purpose of refunding the existing indebtedness of the State and for assuming and refunding valid outstanding road improvement district bonds, the State shall issue no bonds or other evidence of indebtedness pledging the faith and credit of the State, or any of its revenues, for any purpose whatsoever except by and with the consent of the majority of the qualified electors of the State, voting on the question at a general election, or at a special election called for that purpose. But it appears from what has already been said ¿here has been no violation of this amendment, for the reason that the consent of the majority of the qualified electors of the State, voting on the question at a special election called for that purpose, has been given to the proposed bond issue.'
A brief has been filed by an amicus curiae which déals with the policy of issuing these bonds and raises questions and presents arguments which should have been addressed to the General Assembly and may not be considered by us.
We think Act No. 5 is free from any of the constitutional objections urged against it and the demurrer to the complaint was properly sustained and the decree is therefore affirmed.
George Rose Smith, J., non-participating’. | [
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Griffin Smith, Chief Justice.
The litigation presents a question of fact: Whether property to which the appellant had a record title had been appropriated by appellees and held long enough to sustain the plea of adverse possession.
Highway No. 82 in Union County extends east and west where the northeast corner of Section 31 and the northwest corner of Section 32 are common — just beyond the El Dorado city limits toward Magnolia. South of the highway in Section 32 a strip of land 30 feet wide and 210 feet long was retained by Mitcham when he sold lots east of it in 1937.
.February 18, 1937, Carl and Rachael Lawrence executed to Joe and Agnes Temple their deed to a lot described by measurements, the east side being 208.71 feet along the line of Section 31. Under this deed all of the Temple property was west of Section 32. These proprietors went into possession February 24, 1937.
In 1945 Mitcham, by letter of August 27th, complained that a hedgé and fence maintained by the Temples were east of the true boundary. The original suit in ejectment was transferred to equity, where the Chancellor found that the area in controversy was so situated in 1937 when the Temples entered under the Lawrence deed that, in the light of subsequent conduct, hostile possession of a full-length strip 14 feet wide on the south end and 17.30 at the north had ripened into title.
As a predicate for his decree the Chancellor made written findings in the form of an opinion. He mentioned appellant’s testimony that as early as 1944 complaint was made to Joe Temple. The Chancellor personally inspected the property, took note of the condition of hedge and fence, and used this information (presumptively procured by consent of the parties) as aid to a better understanding of what the witnesses had testified to. This, of course, was permissible when so limited. From all of the facts, and the physical conditions observed, — such, for instance, as the size of the hedge as indicative of age, and its alignment with the partial fence farther south — it was determined that the questioned possession had been adverse for more than seven years before 1944.
We are unable to say that these findings are not supported by a preponderance of the evidence; hence the decree must be affirmed. | [
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Griffin Smith, Chief Justice.
Street Improvement District No. 567 was formed in Little Rock in order that certain paving might be done. The proceeding resulting in this appeal originated with a complaint by taxpayers who alleged invalidity of the organization because two lots in Cedar Heights Addition were not included. A demurrer to the answer was overruled, hence the record alone is before us.
The controversy is based upon appellant’s contention that failure to list for assessment purposes two tracts lying immediately north of West Twentieth Street was a jurisdictional error not susceptible of correction.
Block Pour of Cedar Heights Addition was sought to be brought in under the designation,' “Lots Pour to Nine, inclusive, Block Pour, all in Cedar Heights Addition to the City of Little Rock.” The lots are in two tiers, No. 1 being the northeast, followed on the south by 2, 3, 4, 5, and 6. The second tier lies immediately west, with Lot 12 on the north. It will be seen that Lots 6 and 7 adjoin 5 and 8 on the south. -
It is alleged that “a strip of ground 23 feet wide marked ‘B ’ lies immediately south of Lot 6,” and that the same condition exists as to Lot 7, the designation there being “A.” But the complaint goes further and says that “. . . south of Lot 7 in said Block 4 the strip of land marked ‘A’ is to be found.” Appellant thinks that the District’s failure to mention Lots “A” and “B” requires an injunction against the proposed bond issue.
In an effort to cure the defect, if such existed, taxpayers favoring the District proceeded under Act 661 of 1919, Pope’s Digest, §§ 7372-77, 2 Ark. Stats. 20-1101, et seq., and procured from Pulaski County Court a judgment of correction. It is urged that the Act conferring this power upon County Courts is unconstitutional when applied to municipal improvement districts; or, if the Act per se be valid, the order affecting District 567 was void because it dealt with an indispensable prerequisite. McRaven v. Clancy, 115 Ark. 167, 171 S. W. 88.
We do not find it necessary to discuss either of these matters. Ownership of the property in question is not shown. In the absence of proof touching initial formation of Block Pour, the Court could have found that these 23-foot “strips of ground” were parts of Lots 6 and 7. The only indications of severance are dotted lines run ning east and west. Bnt it naay be observed that a similar line is drawn across Lot 5, and there is no contention that the cut-off area was not a part of Lot 5. It is possible— even probable — that the dotted lines are arbitrary designations showing where the regular 50-foot lots would end, and that Lots 6 and 7, instead of being 50 feet wide, are 73 feet. We do not know that they would not be appropriately assessed, and the only question is whether the two 23-ft. strips are within the District. Not only does appellee’s answer assert that one of the strips is “immediately south of Lot 6 in said Bloch Four,” but the demurrer admits this to be true. Since the two strips are similarly situated, one could not be within the block, and the other beyond it.
The case is not like Riddle v. Ballew, 130 Ark. 161, 197 S. W. 27, where the ordinance establishing a local improvement district omitted property included in the petitions. It was there said that it was for the property owners, and not the council, to determine what descriptions should be contained in the District. But in the case at bar the disputed area was in Block Four, and it is fairly inferable that each 23-ft. strip is a part of the parent lot.
Affirmed.
Mr. Justice Frank G.. Smith concurs. | [
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George Rose Smith, J.
The appellant and John Jefferson, who were divorced in 1938,- owned a lot in North Little Rock as tenants by the entirety. The appellees are Lewis and Jessie Ford, W. I. Stout and John Jefferson. The case arises from appellant’s attempt to sell the property to the Fords and from her transfer of their purchase money note to Stout.
The divorce decree did not purport to affect the couple’s joint ownership of the property. Jefferson lived on the land for a year or two after the divorce was granted, but his occupancy ended when the house burned completely. Appellant had acquired a tax deed from the State, and according to her testimony she and her second husband then proposed to build another house on the lot. She says that Jefferson disclaimed any interest in the property and told her to do whatever she wanted to with it. Jefferson denies that he made any such disclaimer of his interest in the lot.
Appellant and her second husband did build a new house on the lot and occupied it from 1944 until 1948. Appellant then contracted to sell the property to the Fords for $2,100, of which $600 was paid in cash and the balance was evidenced by a promissory note payable in monthly installments. The note recited that it was executed in connection with and was made a part of the contract to sell the land. The effect of this provision was to burden the note with the'terms of the contract and thus to destroy negotiability. Trice v. People’s Loan & Investment Co., 173 Ark. 1160, 293 S. W. 1037.
When the Fords went to the house to take possession they found that it was occupied by John Jefferson, who had moved in when the appellant and her second husband vacated the house. The appellant and the Fords then consulted an attorney not now in the case, who gave appellant an opinion stating that she had good title to the property and was entitled to sell it. On the faith of this opinion Stout bought the installment note from the appellant for $1,000. The transfer was by delivery only, without indorsement.
The Fords consulted another attorney and learned that appellant’s tax title was not valid as against her first husband and that she did not have merchantable title to the land. They then brought this suit to obtain cancellation of the note and contract and to recover the sum of $726 which they had paid to appellant. The chancellor granted this relief and also gave Stout a judgment against appellant for the $1,000 he had paid for the note. Jefferson and appellant agreed in open court that the property might be sold, and the decree directed that half the proceeds of sale be paid to Jefferson and that the other half be applied first in satisfaction of the Fords’ judgment and then toward the payment of Stout’s judgment. There was also a provision as to appellant’s present homestead which will be discussed later on.
Appellant insists that she is not liable to the Fords for the reason that her contract with them did not require her to deliver a warranty deed. In this respect the contract provides that upon completion of the payments the appellant will execute a deed warranting title against all claims arising through or under her. Appellant’s theory is that Jefferson’s outstanding interest would not have been a claim covered by the terms of her special warranty. But that question.is beside the point as long as the contract is still in the executory stage. Appellant bound herself to convey the land to the Fords, and in the absence of any exceptions in the agreement her obligation was to deliver merchantable title. Until a deed is accepted by the purchasers, they are entitled to rescission upon a showing that the vendor’s title is not marketable. Yeates v. Pryor, 11 Ark. 58, 75-76.
Appellant seeks also to escape liability to Stout and relies upon the fact that she did not endorse the note when she sold it to him. The note, as we have seen, is nonnegotiable; so Stout took subject to the Fords’ defenses against appellant. Since they undoubtedly have a good defense to the obligation, Stont in fact acquired a worthless piece of paper instead of an enforcible demand. Thus there was a total failure of consideration, entitling Stout to rescind the transaction and recover the money paid by him to appellant. Tri-State Const. Co. v. Watts, 152 Ark. 110, 237 S. W. 690.
We are asked to limit John Jefferson’s share of the proceeds of sale to one half the value of the vacant lot rather than one half the entire proceeds of sale. If appellant’s testimony as to his abandonment of his interest in the property were undisputed it might be possible to work out an estoppel against Jefferson’s claim to an interest in the improvements made by appellant and her husband. But Jefferson denied having disclaimed his interest, and the chancellor elected to accept his testimony rather than the appellant’s. Too, Jefferson did not have to agree to a sale of his interest in the land, and he did so upon the understanding that he would receive half the proceeds. Without his cooperation the appellant’s interest alone could have been sold, and in view of Jefferson’s possible survivorship it is unlikely that her interest would have brought a fair price if sold separately. We cannot permit appellant to take advantage of Jefferson’s cooperation by varying the agreement by which he acquiesced in the sale.
Appellant’s final contention, however, is meritorious. It was shown that a substantial part, if not all, of the money she received from the Fords and Stout was used by her in the purchase and improvement of her present home in Little Bock. The chancellor followed these funds into the property and gave the Fords and Stout a lien to secure any part of their judgments remaining unsatisfied after the sale of the North Little Bock property. This was error. While it is true that a purchase money lien may be asserted against a homestead when the loan is obtained for the specific purpose of buying the property, that principle does not apply here. The Fords advanced money to appellant for the purpose of buying the North Little Bock house and lot, and Stout advanced money for the purpose of buying the note. Even though they all were told by appellant that she intended to use the money to buy a home, that was merely an incidental matter. This situation is more like that in which a loan is made for general purposes and is in fact used to acquire a homestead. We have held that the lender does not then have any recourse against the property acquired • with the money lent. Starr v. City Nat. Bank, 159 Ark. 409, 252 S. W. 356.
Appellees urge us to uphold the chancellor’s action upon the theory that the debt is owed by appellant in the capacity of a trustee, so that the homestead exemption is inapplicable. No trust relationship existed, however. We cannot impose a constructive trust, for appellant’s conduct was not fraudulent. She believed that she owned the property and had her former attorney’s opinion to that effect. Nor was there an express trust. Although two or three of our earlier cases indicated that a vendor holds title to the property in trust for the vendee, it is now firmly established that their relationship is in substance that of mortgagor and mortgagee, just as if a deed had been delivered and a mortgage executed to secure the unpaid balance. These cases are analyzed in Best., Trusts, Ark. Anno., § 13. Hence the appellees’ judgments are for mere breach of contract, against which the homestead exemption must he recognized.
That part of the decree fixing a lien upon appellant’s present home is reversed; in other respects the decree is affirmed, with costs to the appellees."
Griffin Smith, O. J., not participating. McFaddin, J., dissents in part. | [
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Robert A. Leflar, J.
E. F. Campbell was convicted of the felony of involuntary manslaughter, and appeals.
J. R. Laney was killed on U. S. Highway 71 near Waldron in a collision between an automobile driven by defendant Campbell and one driven by Laney. Defendant alleges a variety of grounds for reversal of the judgment of conviction of involuntary manslaughter rendered against him for this killing.
(1) After the collision, the defendant pleaded guilty to an information for drunken driving filed against him in a Justice of the Peace court in Scott County. It is not established clearly that the drunken driving to which defendant pleaded guilty was identical with his driving at the time of the fatal collision, but it may be assumed that it was. Defendant contends that it was identical, and that the conviction for drunken driving in the Justice of the Peace court bars this later charge of involuntary manslaughter growing out of the same act. This is in effect a plea of former jeopardy. The plea is ineffectual.
In State v. Hall, 50 Ark. 28, 6 S. W. 20, a defendant was indicted at the same time for murder and for carrying a pistol as a weapon. It was admitted that the two indictments related to the same transaction. In holding that this did not require the quashal of either indictment, the Court said: “But neither the offense nor the matter can be said to be the same, when the two indictments are so diverse as to preclude the same evidence from sustaining both and when each indictment sets out an offense differing in all its elements from that in the other, although both relate to one transaction. . . . A person might at the same time commit both offenses and be justly punishable for both. The two indictments would be entirely dissimilar; and a conviction or acquittal upon one would have no effect upon the other prosecution.” In Whitted v. State, 187 Ark. 285, 59 S. W. 2d 597, a prior acquittal for bank robbery was held not to bar a prosecution for burglary growing out of the same transaction. “Since . . . the offenses charged against appellants were separate and distinct offenses, defined by separate and distinct statutes, and not dependent upon the same evidence to support conviction, the plea of former acquittal is not good, and was properly denied.” Ibid., 187 Ark. at 288, 59 S. W. 2d at 598. For cases expressly holding that a former conviction for drunken driving does not bar prosecution for a homicide arising from the same act, see People v. Townsend, 214 Mich. 267, 183 N. W. 177, 16 A. L. R. 902; Utah v. Empey, 65 Utah 609, 239 Pac. 25, 44 A. L. R. 558. These are different offenses, related not by definition but only by concurrence in time and space, and the situation here is not one in which the double jeopardy rule applies.
(2) Defendant contends that he was improperly prosecuted for involuntary manslaughter under Pope’s Digest, § 2982, on the ground that the applicability of this section to automobile homicides was superseded by Act 300 of 1937, § 48, appearing in Pope’s Digest, § 6706, Ark. Stats. (1947) § 75-1001. This Court held otherwise in Phillips v. State, 204 Ark. 205, 161 S. W. 2d 747, determining that the State might base its prosecution under such facts on either provision of the statutes. Apart from that, Pope’s Digest, § 2982, was amended by Act 169 of 1947 to include expressly deaths proximately resulting from “injury received by the driving of any vehicle in reckless, willful or wanton disregard of the safety of others. . . .” Ark. Stats. (1947) § 41-2209. This was the law under which the present prosecution was maintained.
(3) Defendant also argues that there was insufficient evidence to sustain a conviction on the essential point of “lack of due caution and circumspection,” or “reckless, willful or wanton disregard of the safety of others,” in his driving. There was substantial evidence that he was driving while drunk, including not only his own plea of guilty to that charge, but also partly emptied whiskey bottles in his car, his testimony on the stand that he had taken three drinks, and the testimony of other witnesses that he seemed drunk or had whiskey on his breath at the time of the wreck. The decedent’s wife, who was beside decedent in his car, testified that defendant was coming toward them fast on the wrong-side of the road. The sheriff testified that the skid marks showed that both front wheels of defendant’s car were on the wrong side of the road at the point of collision. There was evidence that defendant had bumped other cars a little while before the collision with Laney’s car. The evidence is more than ample to sustain the jury’s verdict.
(4) Defendant asserts that there was a marker put up by the State Highway Department near the point of collision, indicating a 55-mile speed limit for passenger cars, and on that basis alleges error in the Court’s denial of a requested instruction to the effect that if the defendant was otherwise in due care, “and was not driving his said automobile at a greater speed than 55 miles per hour at this given point, then you must acquit this defendant.” The instruction was properly denied. The governing law requires that “no person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing.” Ark. Stats. (1947) § 75-601. Speed limits do no more than fix the maximum; they do not grant an indiscriminate license' to drive at the indicated speed under any and all conditions, and specifically under the conditions indicated by the evidence in this case. See Rapert v. State, ante, p. 768, 223 S. W. 2d 192.
(5) Defendant also complains of the Court’s denial of proffered instructions, dealing with reasonable doubt and the presumption of innocence, but these matters were amply and accurately covered by other instructions given by the Court.
The judgment of the Circuit Court is affirmed. | [
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Minor W. Millwee, Justice.
M. L. McCullough died intestate in White county February 10,1940, survived by his widow, Carrie McCullough, and four children, all of age. At the time of his death, M. L. McCullough owned and occupied as his homestead the 75 acre tract of land involved in this suit. Carrie McCullough continued to occupy and use the lands as a homestead until her death on March 5, 1948. None of the children occupied the lands after the death of their father and prior to the death of their mother.
Pearl B. McCullough, one of the surviving children of M. L. McCullough, deceased, died intestate and without issue April 11, 1945, survived by his widow, Verla Bee Maloney, who has since remarried and is the appellant here. Appellees are the other three surviving children and heirs of M. L. McCullough, deceased, and brought this suit against appellant to quiet their title to the lands in controversy alleging the facts heretofore stated and that appellant was claiming some interest in the land. It was further alleged that Carrie McCullough had a “life and home stead estate” in said lands and that the remainder interest of Pearl B. McCullough was contingent upon his surviving his mother and was destroyed upon his death without bodily heirs prior to the death of the life tenant.
Appellant’s answer and cross complaint admitted the -truth of the allegations of the complaint except the assertion that Pearl B. McCullough was a contingent remainderman. Appellant also alleged in her answer that she was entitled to “one-half of whatever interest her late husband, Pearl B. McCullough, has or holds in the estate of his deceased father”.
Appellees’ demurrer to the answer and cross-complaint was sustained and upon appellant’s failure to plead further same was dismissed and a decree rendered in favor of appellees.
Appellant insists that she is entitled to dower in the lands in controversy as the widow of Pearl R. McCullough, deceased, under Ark. Stats. (1947), § 61-206 which reads: “If a husband die, leaving a widow and no children, such widow shall be endowed in fee simple of one-half of the real estate of which such husband died seized, where said estate is a new acquisition and not an ancestral estate; and one-half of the personal estate, absolutely and in her own right, as against collateral heirs; but, as against creditors, she shall be endowed with one-third of the real estate in fee simple if a new acquisition and not ancestral, and of one-third of the personal property absolutely, Provided, if the real estate of the husband be an ancestral estate she shall be endowed in a life estate of one-half of said estate as against collateral heirs, and one-third as against creditors.” This statute appeared in Kirby’s Digest as § 2709; and Ark. Stats. (1947), § 61-201, appeared as § 2687 of Kirby’s Digest. These statutes were construed by this court in McGuire v. Cook, 98 Ark. 118, 135 S. W. 840, Ann. Cas. 1912D, 776, where it was held that an intermediate life estate in another will defeat the widow’s right to dower unless it terminates in the lifetime of the husband. Justice Frauenthal, speaking for the court, there said: ‘ ‘By this enactment we do not think the Legislature intended to create in the widow an estate in her deceased .husband’s lands different in any essential from the estate of dower known at the common law, except as therein expressly provided. At common law it was esssential that the husband should have been seized in possession during coverture in order to entitle his widow to dower in his land. The seisin of her husband was an indispensable prerequisite to entitle the widow to such dower, and an outstanding freehold estate in another before marriage destroyed her claim. Mr. Washburn says: ‘The husband must have been seized of the premises at some time during coverture’ (1 Washburn on Real Property, (6 Ed.), § 390); and further he says that if the husband has only a reversion or remainder after a freehold estate in another, though it be a fee, it will not give to his wife a right of dower therein unless by the death of the intermediate freeholder or the surrender of his estate to the husband. 1 Washburn on Real Property, § 183. In order to constitute seisin, it was necessary that there should be an actual corporeal seisin or the right to make such immediate seisin in the husband during coverture to entitle the widow to dower. Gentry v. Woodson, 10 Mo. 224. Where there is a life tenant, and the husband has only a remainder or reversion in the land, the seisin is in the life tenant; and therefore dower does not attach to realty in which the husband has only an interest in remainder or reversion, unless the particular estate terminates during the coverture . . .
‘ ‘ The same character of seisin that was required by the common law in the husband is required by our statute in order to entitle the widow to dower. In Tate v. Jay, 31 Ark. 576, this court said: ‘Seisin is either in deed or in law; seisin in deed is actual possession; seisin in law, the right to immediate possession. Unless such seisin existed during coverture, there can be no dower because it is an indispensable requisite to her right to dower, so declared by statute. ’ ’ ’
The court further said: “We think that under these express provisions it was manifestly intended that the requisites necessary to constitute dower at common law were also necessary to constitute the estate created by this statute. In the case of Tate v. Jay, 31 Ark. 576, it was said that seisin was an indispensable requisite to entitle the widow to dower under the provisions of § 2687 of Kirby’s Digest because it was so declared by that statute. Likewise, we think that seisin of the husband is a necessary requisite under § 2709 of Kirby’s Digest to entitle the widow to the dower therein provided, because it is so declared by that statute, which says that she shall be endowed of a certain portion of the real estate ‘of which the husband shall die seized.’ Watson v. Watson, 150 Mass. 84, 22 N. E. 438; Carter v. McDaniel, 94 Ky. 564, 23 S. W. 507.”
Tliis interpretation of the statute has been reaffirmed in later cases. Murphy v. Booker, 139 Ark. 469, 214 S. W. 63; Sadler v. Campbell, 150 Ark. 594, 236 S. W. 588; Field v. Tyner, 163 Ark. 373, 261 S. W. 35; Roetzel v. Beal, 196 Ark. 5, 116 S. W. 2d 591. It is in accord with me rule followed generally as stated in the annotation to Geldhauser v. Schulz, 93 N. J. E. 449, 116 Atl. 791, 21 A. L. R. 1073, as follows:: “To entitle a widow to dower at common law, or under a statute declaratory of the common law, the husband must have been seised, either in fact or in law, of an estate of inheritance in the land at some time during coverture. When, therefore, the husband had previous to his death .simply a vested remainder expectant on a life estate, his widow cannot be endowed, for, as in such a case the husband never had either possession or any present right of possession, he cannot be said to have had a seisin of any sort, either actual or legal.”
Appellant argues that homestead and dower are not regarded as estates and that Pearl R. McCullough took a vested remainder in the lands upon the death of his father and that said vested interest descended to his heirs upon his death. In Jones’ Ark. Titles, § 867, the author says: “The term ‘homestead’ has three meanings: (1) The homestead premises, or the land and dwelling occupied as a home; (2) the homestead exemption, or right to reserve the home from the claims of creditors; (3) the homestead estate, or the interest of the widow and minor children in their deceased hus-' band’s and father’s homestead, or the interest of the minor children in their deceased mother’s homestead.” We are here dealing with homestead within the meaning of the third concept stated by the author.
Some jurisdictions take the view that the homestead interest is not an estate at all, but merely an exemption or privilege, while others hold that the claimant is vested with an estate in land. 26 Am. Jur., Homestead, § 5; 40 C. J. S., Homestead, § 3. In Killeam v. Carter, 65 Ark. 68, 44 S. W. 1032, it was said of a homestead that a widow, strictly speaking, had no estate in the land itself but only the right of occupancy and that she “can only be consid erecl a tenant for life upon condition that she do not abandon.” However, in the earlier case of Jones v. Turner, 29 Ark. .280, the court said of a homestead: ‘ ‘ The estate thus created is a peculiar one, made equally for the benefit of the wife and children; it may be likened to a joint tenancy, with right of survivorship.” See, also, McCloy & Trotter v. Arnett, 47 Ark. 445, 2 S. W. 71; Rowland v. Wadley, 71 Ark. 273, 72 S. W. 994. In Colum v. Thornton, 122 Ark. 287, 183 S. W. 205, it was said: "Our Constitution gives the homestead to the widow for life without any restrictions . . . The Constitution vests in the widow an estate for life and in the children during their minority.” See, also, Butler v. Butler, 176 Ark. 126, 2 S. W. 2d 63; O’Connell v. Sewell, 191 Ark. 707, 87 S. W. 2d 985.
It is true that the dower interest of a widow under § 61-206, supra, vests in her immediately upon the husband’s death and upon her death will descend to her heirs. Barton v. Wilson, 116 Ark. 400, 172 S. W. 1032. But such dower interest only vests in the widow in real estate "of which the husband shall die seized”.
The answer to the contention that the remainder interest vested in Pearl R. McCullough upon the death of his father and descended to the heirs of the remainder-man at his death, is that appellant, the widow, does not take as an heir of her deceased husband. She takes dower by virtue of the statute. Robertson v. Adams, 163 Ark. 290, 260 S. W. 37.
Homestead is a valuable right, interest or estate in land which vests in the widow "during her natural life” under Art. 9, § 6 of our Constitution unless and until abandoned or forfeited by the widow. In the case at bar the widow, Carrie McCullough, exercised her homestead right in the lands in controversy until her death which occurred after the death of her son, Pearl R. McCullough. Pearl R. McCullough never had either possession or any present right of possession and was, therefore, never seized of an estate of inheritance in the land during coverture. Appellant, his widow, was not, therefore, entitled to dower in the land.
It follows that the chancellor correctly sustained the demurrer to appellant’s answer and cross-complaint and the decree is affirmed. | [
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Minor W. Millwee, Justice.
Appellant was convicted in Blytheville Municipal Court of the offense of speeding. On appeal to Circuit Court the case was tried before the circuit judge sitting as a jury and appellant was found guilty and assessed a fine of $5.00.
The only question presented is whether there was substantial evidence to support the triál court’s conclusion that appellant was driving a motor vehicle upon a highway “at a speed greater than was reasonable and prudent under the conditions then existing”.
The facts are undisputed. Tom Smalley, a member of the State Police, testified: “Q. State to the Court the circumstances of the arrest; what caused you to arrest him and so forth. A. I was entering Blytheville on Highway 158, commonly known as the air base road. He passed me on the highway at a high rate of speed at the first curve just at the city limits. Q. What kind of a vehicle was it? A. A one and a .half ton truck tractor. He was detached from his trailer. I turned and followed him for two and a half miles and stopped him at the first entrance to the air base. Q. Did you get by? A. Yes, sir, I clocked him. Q. Did you clock him? A. Sure, an accurate clock of 58 miles per hour. Q. You say he was driving a ton and a half tractor? A. Yes, sir, (Mr. Smith: You said, ‘Tractor’. It wasn’t a tractor, it was a truck.) Q. Was it a Chevrolet truck? A. Truck-tractor, that they pull a semi-trailer with. Q. Could you also put a bed on that and make a one and a half ton truck out of it? A. Yes, sir, it could be done. Q. The only difference between that and what is commonly known as a one and a half ton truck, you would just have to put a bed on that? A. Yes, sir. Q. And this has a fifth wheel to pull a trailer? A. Yes, sir.”
Ark. Stats. (1947), § 75-601, prohibits the driving of any vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing. It further designates certain speeds which, if exceeded, shall be prima facie evidence of unlawfulness. Sub-section (b) of the statute prohibits speeds upon the highway greater than the following: “3. Passenger vehicles sixty (60) miles per hour. 2. Passenger busses and half-ton trucks fifty-five (55) miles per hour. 3. Trucks carrying five tons or less with brakes on all wheels forty-five (45) miles per hour. 4. Trucks carrying more than 5 tons and not more than seven and one-half (7%) tons, brakes on all wheels, forty (40) miles per hour. 5. Trucks carrying three (3) tons, without brakes on all wheels, trucks carrying seven-one-lialf (7%) tons or more and all school busses, thirty-five (35) miles per hour, providing, however, that school busses equipped with brakes on all wheels when carrying children over main highway on journeys attending athletic contests, etc., may be operated not to exceed 45 miles per hour.” By Sub-section (c) a driver is not relieved from the duty to decrease speed when approaching and going around a curve by the fact that he is driving at a speed lower than the prima facie limits fixed by the statute.
Appellant contends that the vehicle operated by him is a “truck-tractor” as defined in Ark. Stats. (3947), § 75-403 (a) and not a “truck”; and that the speed of this type vehicle is. not restricted by § 75-601, supra, other than it not be driven at a speed which would be unreasonable and imprudent under existing conditions. According to Webster’s New International Dictionary, 2d Ed., the original meaning of “truck” seems to have been a strong small wheel, but the word is now applied generally to “any of numerous vehicles for transporting heavy articles.” The vehicle here involved is what is commonly called a “bob-tail truck” in that it was being operated without a trailer. It is, nevertheless, a truck, and not a passenger vehicle, within the meaning of the statute. Under the evidence here it is unnecessary to determine whether § 75-601, supra, prohibits the driving of any truck at a speed in excess of 55 miles per hour.
The undisputed testimony shows that appellant was driving his vehicle at a high rate of speed on a curve “just at the city limits,” and that the officer immediately pursued him for two and one-half miles and clocked his speed at 58 miles per hour. This evidence was substan tial and sufficient to support the judgment of. the trial court that appellant was driving at a greater speed than was reasonable and prudent under the conditions then existing.
Affirmed. | [
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Ed. F. McFaddin, Justice.
This is an appeal by the wife from a chancery decree granting her husband a divorce on the ground of indignities. A careful study of the record discloses that the husband did not offer evidence of any specific acts of indignities; so the decree must be reversed because of the insufficiency of the evidence. This opinion could well stop at this juncture, except for the fact that we are reversing the Chancery Court, and therefore feel constrained to discuss the evidence and the controlling authorities in order to clarify the result that we have reached.
This suit was filed in September, 1946, at a time when the plaintiff (appellee), Charles Smith, was in Italy in the Armed Forces of the United States. It appears that the plaintiff completed one enlistment in the Army in the fall of 1945, and re-enlisted in the spring of 1946. The complaint alleged that the parties separated on December 1, 1945 “because the defendant was guilty of such indignities towards him as to render his condition in life intolerable, in that she treated him with rudeness, contempt, studied neglect and open insult, habitually and systematically pursued. ’ ’
The plaintiff’s deposition was taken before a Commissioned Officer of the U. S. Army (inferentially in Italy) on December 9, 1946. The only portion of the plaintiff’s testimony even remotely bearing on the cause of the separation is as follows:
“Q. When did you and the defendant separate? A. We separated about the first day of December, 1945. Q. Where did the separation take place? A. The separation took place in Hot Springs, Arkansas. Q. What was the cause of the separation? A. She nagged and fussed at me all the time, and claimed that she had tuberculosis, a fact I knew nothing about; and when I was discharged from the Army I found her in fine shape and was unable to get along with her at all. She seemed to be interested only in getting all the money she could out of me. .. . . Q. Was her conduct such as to render your condition in life intolerable ? A. It certainly was. ’ ’
Thus the plaintiff’s testimony was a mere generalization, without detailing any specific facts to support the alleged grounds for divorce.
The only other witness for the plaintiff was his mother, a lady 71 years of age and a resident of Mississippi, whose testimony was in the form of a deposition taken in December, 1947. She testified that in May, 1945, she went to Hot Springs to visit her daughter-in-law, and that on such visit she observed that a man called “Happy” came to see the defendant (appellant); and that “Happy” and the defendant went driving in a car. The foregoing is the only specific evidence by this witness seeking to cast any reflection on the defendant; and this evidence related to an incident alleged tó have occurred more than six months before the separation, and not even claimed by the plaintiff to have been the cause of the separation.
We have repeatedly held in divorce cases that proof must be made of specific acts and conduct showing the indignities relied on in order that the court may properly determine whether the proof is sufficient to support the claimed ground for divorce; that testimony which amounts to no more than mere inference and conclusions of the witness should be rejected; and that a decree will not bé granted upon the uncorroborated testimony of one of the parties. In Settles v. Settles, 210 Ark. 242, 195 S.W. 2d 59 we reiterated the holdings' as to the quantum and quantity of the evidence essential to obtain a divorce decree on the ground of indignities. Appellee’s evidence in the case at bar does not measure up to the requirements of our holdings. •
Furthermore, the facts here are strikingly similar to • the facts in the Waldren case, for here, as in that case, the plaintiff wrote to his wife after the separation; and such letters show that the plaintiff’s desire to be relieved of his marital vows, was not because of defendant’s fault, but because the plaintiff wanted to be “free.” While in Italy, the plaintiff wrote the defendant several letters, one of them reading in part:
“I think I owe you some kind of explanation of my reasons for wanting the divorce. I hope you take this the right way, as I am now laying all my cards on the table and doing something I have never needed to do before, asking for a chance at happiness. Not only asking but begging. First, as you know, I have never been satisfied with anything in my life. I can’t help this, I’m just built that way. But now I have or rather want something that I am very much satisfied with and that is this girl in Florence. She means more to me than my life. I love her with every ounce of heart, body and soul. If I can’t have her, I don’t care what happens; and right now I am at the point of doing something drastic. This is why I’m asking you to either get a divorce, or do not oppose the suit I have started. I am begging for this, Joe, not only begging for a divorce but my life also. Never before in my life have I written a letter like this, but never before have I felt the same way I am feeling now. ’ ’
As before stated, there is in this record no evidence that the plaintiff had grounds for divorce: rather, he wanted a divorce in order that he might marry another.
• The decree of the Chancery Court is reversed, and cause is remanded.
Walldren v. Walldren, 187 Ark. 1077, 63 S. W. 2d 845.
Dunn v. Dunn, 114 Ark. 516, 170 S. W. 234.
Alston v. Alston, 189 Ark. 525, 74 S. W. 2d 239.
Walldren v. Walldren, 187 Ark. 1077, 63 S. W. 2d 845. | [
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Holt, J.
This cause is here on appeal from a judgment of the Circuit Court reversing an order and award of the Arkansas Workmen’s Compensation Commission. We are asked on motion of appellees to dismiss appellants’ appeal and affirm the judgment of the trial court for the reason “that the appellants failed to file a Motion for New Trial in the Washington Circuit Court after that court had entered judgment in this cause. ’ ’
It is conceded that no motion for a new trial was filed by appellants. However, they earnestly contend that such motion was not required under the provisions of our original Workmen’s Compensation Law (Act 319 of 1939), — which was in effect in 1946 when the alleged injury arose.
The question presented appears to be one of first impression. Pertinent provisions of § 25 of the act, after providing the procedure in taking an appeal to the Circuit Court from the Commission’s order, are: “ (b) * * * Such appeal may be taken by filing notice of appeal with the Commission, whereupon the Commission shall under its certificate return to the Court all documents and papers on file in the matter, together with a transcript of the evidence, the findings and award, which shall thereupon become the record of the cause. Upon appeal no additional evidence shall be heard and in the absence of fraud, the findings of fact made by the Commission within its powers shall be conclusive and binding. The Court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other: 1. That the Commission acted without or in excess of its powers. 2. That the award was procured by fraud. 3. That the facts found by the Commission do not support the award. 4. That there was not suffi cient competent evidence in the record to warrant the making of the award.
“Appeal from the Circuit Court shall be allowed the same as in civil actions.”
It will be observed that the section, supra, specifically provides that “the Commission shall under its certificate return to the Court all documents and papers on file in the matter, together with a transcript of the evidence, the findings and award, which shall thereupon become the record of the cause.”
It is further provided that on the appeal to the Circuit Court “no additional evidence shall be heard and in the absence of fraud the findings of fact made by the Commission within its powers shall be conclusive and binding. ’ ’
The rule is well settled that no motion for a new trial is necessary where error appears from the record itself. Stevenson’s Supreme Court Procedure, Revised 1948, page 31.
“ ‘Neither a motion for a new trial nor a bill of exceptions is necessary where the errors complained of do not grow out of, the evidence or instructions, but appear from the record itself.’ ” Suit v. State, 212 Ark. 584, 207 S. W. 2d 315. See Ford v. State, 100 Ark. 515, 140 S. W. 734.
It is also equally as well settled that no bill of exceptions is necessary where error is apparent from the record. Stevenson’s Supreme Court Procedure, Revised 1948, page 47.
In the recent case of Herron Lumber Company v. Neal, 205 Ark. 1093, 172 S. W. 2d 252,—a Workmen’s Compensation case, we said: ‘ ‘ Section 25 of the Arkansas Workmen’s Compensation Act provides that the duty certified transcript of the evidence heard by the commission, and the findings and award of the commission, shall ‘become the record in the cause.’ Under this provision of the statute a bill of exceptions on appeal to this court was not necessary, since the cause' was tried in the circuit court upon the record made before the commission, and a copy of this record, properly authenticated, has been filed in this court as a part of the record made in the lower court. ’ ’
In the present case, it is conceded that no new evidence was taken in the Circuit Court, there being no allegation of fraud or that the Commission acted without or in excess of its powers. The Circuit Court, therefore, could consider and did consider only the record filed before it by the Commission, according to the plain'mandate of the statute.
The identical question presented here was decided by the Supreme Court of Missouri in State ex rel. May Department Stores Co. et al. v. Haid et al., 327 Mo. 567, 38 S. W. 2d 44. The provision of the Workmen’s Compensation law there (§ 44) is identical with our § 25, supra. In this case the court said: “The precise question thus presented to this court for decision is whether, on an appeal from a final award of the Workmen’s Compensation Commission * * * the evidence had. and taken before the Compensation Commission, the documents and papers filed with the commission, and the findings of fact and final award of the commission, when certified and returned to the Circuit Court by the Compensation Commission, pursuant to the mandate and directions of section 44 of said Compensation Act, constitute the record of the circuit court, so as to be reviewable on an appeal from a judgment of the circuit court, duly taken and allowed to a superior court, in the. absence, and without the necessity, of a motion for new trial and a bill of exceptions in the circuit court. * * *
‘ ‘ What we do decide and hold herein is that the matters, proceedings, .and evidence had and taken in a compensation proceeding before the Workmen’s Compensation Commission, and certified and' returned by the Commission to the Circuit Court for its judicial review, intrinsically constitute the record of the Circuit Court in such compensation proceeding, by virtue of the' express language and requirement of the Workmen’s Compensation Act, and that such record of the Circuit Court is reviewable on an appeal duly allowed and taken to a superior court from a judgment of the Circuit Court thereon, without the necessity, and in the absence, of a bill of exceptions and a motion for new trial in the Circuit Court.”
This appears to be a correct, sound and well reasoned opinion and in accord with the great weight of authority.
As indicated, where, as in the present case, there was no new evidence or other proceedings in the Circuit Court, and the trial court reviewed the complete record certified to it by the Workmen’s Compensation Commission, we hold a motion for a new trial was not necessary.
If, however, the Act should be construed to permit additional evidence to be presented to the Circuit Court,, for example in cases where it may be alleged that the award was procured by fraud, we hold that a motion for a new trial would be necessary.
Accordingly, the motion to affirm is denied.
Justice George Rose Smith concurs. | [
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Ed. F. McFaddin, Justice.
In what was commenced, as a simple suit to enjoin a trespass on land and to recover damages, there has been injected the question of the correct boundary line between Scott and Sebastian Counties; and this boundary line question, like Banquo’s ghost, “will not down.” It turns up at every angle of this litigation.
The appellee, Sebastian County Coal & Mining Company, filed suit in the Sebastian Chancery Court claiming ownership of the following lands alleged to be in Sebastian County, Arkansas, to-wit: “The NW% NW% Sec. 5, Twp. 3 N., R. 32 W.; and NEy4 NE%, Sec. 6, Twp. 3 N., R. 32 W.; and the Frl. N1/2 Sec. 1, Twp. 3 N., R. 33 W.”
The complaint alleged that the defendant John Pruitt (appellant here) had trespassed on the lands and had cut and removed timber therefrom. The prayer was for injunction and damages. The defendant Pruitt admitted that he had cut and removed the timber from the lands, but claimed by proper pleadings (1) that the lands were in Scott County and therefore the Sebastian Chancery Court was without jurisdiction; and also (2) that he held under a tax title (based on a Scott County forfeiture) which he claimed to be superior to the plaintiff’s claim of title.
This was a local action under § 1386, Pope’s Digest, which requires such an action to be prosecuted in the county in which, the land is situated. Even if they had desired — which they did not — the parties could not by consent have conferred jurisdiction of the subject matter in this case. ; so the jurisdictional and sharply contested issue was whether the lands were in Scott or Sebastian County. The Chancery Court held that they were in Sebastian County, and awarded plaintiff the injunction and damages. The defendant has appealed.
We find that this Court on previous occasions has decided county boundary line issues in suits between individuals. Bittle v. Stuart was a suit between private litigants (as distinguished from a quo warranto proceeding or an action between disputing counties); and this Court, in an opinion by Mr. Justice Eakin, determined the validity of a legislative enactment concerning the boundaries and the territory embraced in Clark County. Reynolds v. Holland was a suit between private litigants; and this Court — again speaking by Mr. Justice Eakin — determined the location of the boundary line between counties. Crawford v. Brown was a private action to recover land alleged to be in Clark County. The defense was that the land was in Hot Spring County; and this Court, by Mr. Justice Riddick-, in deciding the issues, necessarily determined a disputed county boundary question. In Crow v. Roane this Court, speaking by Mr. 'Justice McCulloch, settled the boundary line between Miller and Little River Counties, in litigation between individuals. Until the Legislature provides that an adjudication of county boundary lines be determined only in a proceeding in which the interested counties be parties, or in which the State act by quo warranto, the cases heretofore cited are precedent and authority for a county boundary line dispute to be indirectly adjudicated in a suit between individuals.
Each side has presented the case with skill and care. Along with the oral testimony, 50 exhibits were introduced, including more than 20 maps. Before we proceed to consider the question here presented — that is, the boundary line between Scott and Sebastian Counties in ranges 31, 32 and 33 west — we state facts necessary to present the contentions.
Scott County was created from parts of Crawford and Polk Counties by Act of the Arkansas Territorial Legislature of November 5, 18.33; and that Act fixed — insofar as is here involved — the north boundary of Scott County to be “the line between Townships 3 and 4 North of the Base Line.” In other words, north of Scott County was Crawford County, and the north boundary line of Scott County in Ranges 31, 32 and 33 was the north line of Township Three. The Arkansas Territorial Legislature on October 24, 1835 adopted an Act enlarging the boundaries- of Scott County; and the General Assembly of the State of Arkansas on December 16, 1838 adopted an Act more particularly defining the line between the Counties of Scott and Crawford. The north line of Scott County, insofar as is here involved, remained as established by these three Acts (November 5, 1833; October 24, 1835 and December 16, 1838) until the creation of Sebastian County.
Sebastian County was created from parts of Crawford, Polk and Scott Counties by the Act of the General Assembly of January 6, 1851. That Act took a strip of land off of the west side of Scott County about 13 miles east and west, and about 18 miles north and south; and all of such territory so taken in Ranges 31, 32 and 33 was south of the north line of Township Three. The taking of this territory from Scott County by the Act of 1851 is claimed by the appellant to have been unconstitutional ; and this will be discussed in topic I.
The ordinance of June 1, 1861, of the Arkansas Secession Convention returned to Scott County all of Sebastian County that was south .of the Poteau Motmtain. Appellee claims that this ordinance definitely established the boundary line between Scott and Sebastian Counties to be the top of the Poteau Mountain; but the appellant claims that the description in this 1861 or clinance was too indefinite to be valid. Discussion of this ordinance is contained in topic II.
The aforementioned Acts of 1851 and 1861- are apparently tbe only legislative enactments which attempted to fix the boundary between Scott and Sebastian Counties; but the appellant lists a number of subsequent Acts which he claims constitute recognition of the questioned boundary line to be the north line of Township Three. These various Acts cited by the appellant, as well as his other contentions will be discussed in topics III and IV.
What we are really required to decide is whether the lands described in the complaint in this case are in Sebastian County; but to decide that question we must necessarily decide the larger question as to the boundary line between Scott and Sebastian Counties in Ranges 31, 32 and 33 West. ■ The territory drawn into dispute in this case is all of the land (approximately 3800 acres) that lies south of the north line of Township Three and north of the center ridge line of the Poteau Mountain. Roughly, it is a triangular area beginning on the Arkansas-Oklahoma boundary line, and being approximately two miles wide north and south, and extending easterly and north of the top of the Poteau Mountain range to the point where that mountain range crosses the north line of Township Three. A diagram showing the area is attached to this opinion. It is appellant’s contention that the Scott County line extends due east and west along the north line of Township Three, just as stated in the Act of 1833 creating Scott County. It is the appellee’s contention that the Scott County line extends along the high point of the Poteau Mountain range, as stated in the Act of 1861. With the contentions thus stated, we now consider the topics as previously indicated.
I. The Act of 1851 Creating Sebastian County. Art. IY, § 29 of the Constitution of 1836 (in force in 1851) provided: “No County now established by law shall ever be reduced by the establishment of any new county or counties to less than 900 square miles, . . .”
Appellant says that by the Act of 1851 — creating Sebastian County — territory was taken from Scott County to such a great extent that what remained was in fact less than 900 square miles. Here is appellant’s language on this point:
“Appellant relies on the fact that the Act of 1851, creating Sebastian County, was unconstitutional and, therefore, a nullity, to that part which proposed to take a part of Scott County, a county established at the adoption of the Constitution of 1836, and add the same to Sebastian County, a new county; because, in doing so, the Act would reduce the area of Scott County below the constitutional limit of 900 square miles. Therefore, the boundary line, with reference to Sections 5 and 6 of Township 3 North, Range 32 West, and Section 1 in Township 3 North, Range 33 West, would be the township line between Townships 3 and 4 North as established in the Act of 1833, originally establishing Scott County.”
. A determination of how many square miles of territory were left in Scott County after the creation of Sebastian County, necessitates a study of the Act of November 5, 1833 (creating Scott County), with the territorial changes made by the Acts of October 24, 1835; December 16, 1838; December 5, 1840; January 2, 1845, and January ' 6, 1851. Judicially, we know the county boundaries; and it is our conclusion that there remained in Scott County after the creation of Sebastian County in 1851, an area in excess of 972 square miles. This is true, because the Act of October 24, 1835 had enlarged Scott County. This Act was not discussed in any of the briefs on this case. The territory given Scott County by the said Act of October 24, 1835, remained a part of Scott County until Sarber County (now Logan County) was organized by the Act of the General Assembly of March 22, 1871. So, on the fact question, it appears that Scott County did have more than 900 square miles of territory remaining after the Act of January 6, 1851, had created Sebastian County; and therefore Scott County is in no position to complain about the unconstitutionally of the said Act.
But, even assuming — for the purposes of further answer to appellant’s argument — that Scott County did in fact have less than 900 square miles of territory remaining after the creation of Sebastian County by the Act of January 6, 1851, nevertheless, the diminution of territory of Scott County to less than 900 square miles did not appear on the face of the Act of January 6, 1851, and that Act was allowed to go into effect. So far as the record here discloses, and so far as our additional research has revealed, this is the first litigation challenging the validity of the Act of 1851. Sebastian County began to function as a county in 1851, and has so continued ever since.
The provision of Art. IY, § 29 of the 'Constitution of 1836 — concerning a minimum of 900 square miles for a county, as previously copied — was changed by subsequent Constitutions, so that in the Constitution of 1874 (present one) the provision makes the minimum 600 instead of 900 square miles. Furthermore, the Constitution of 1874 recognized in several places the existence of Sebastian County; and schedule I to the Constitution of 1874 says:
“All laws now in force which are not in conflict or inconsistent with this Constitution shall continue in force until amended or repealed by tbe General Assembly,
Tbe Act of 1851 (as modified by tbe Act of 1861 subsequently to be mentioned) was in force at tbe time of tbe adoption of tbe Constitution of 1874 and was not inconsistent with that Constitution.
Again assuming that tbe Act of 1851 originally bad been susceptible of being defeated by Scott County under the provisions of tbe Constitution of 1836, nevertheless, our Court files do not disclose that any such effort was ever made. We find no adjudication of unconstitutionality of tbe Act of 1851 at tbe time that tbe Act might have been held to be unconstitutional. Instead, tbe constitutional minimum was itself reduced, and Scott County will have more than 600 square miles of territory, even after tbe result of tbe present litigation is announced.
Tbe actual existence of tbe Act of 1851 is an operative fact, and has bad consequences which cannot be justly ignored. Tbe past cannot be erased now by a judicial declaration at this late hour; so we bold that tbe question of tbe constitutionality of the Act of 1851 comes at léast 65 years too late, since tbe Constitution of Í874 cured tbe then unchallenged defect in tbe Act of 1851.
II. The Act of 1861. After tbe Act of 1851 creating Sebastian County, tbe next legislation affecting tbe boundary line between Scott and Sebastian Counties was tbe ordinance of June 1/ 1861, of tbe Arkansas Secession Convention. Tbe historical background of this Act is necessary in considering its legality. On January 15, 1861, tbe General Assembly of Arkansas adopted an Act directing tbe Governor of tbe State to call a General Election to be held on February 18,' 1861, so that tbe People of tbe State could vote for or against a secession convention, and could select delegates from each county. Tbe election was called, and resulted in an affirmative vote for such convention, and tbe naming of delegates. Accordingly, tbe Arkansas Secession Convention met at the State Capitol on March 4,1861; adopted a resolution of secession; and drafted the Constitution of 1861. Also, the same convention at a later date passed a number of laws — each called an “Ordinance” — dealing with matters entirely domestic and not concerned in any wise with the waging of the war for secession. Among other such domestic ordinances, there was the one of June 1, 1861, concerning the boundary between Scott and Sebastian Counties, section 1 of which reads:
‘ ‘ That all that part of Sebastian County lying south of the Poteau Mountain, and taken from the County of Scott for the purpose of creating the County of Sebastian, be, and is, hereby attached to and made a part of the County of Scott.”
Neither party to this present litigation has raised any question about the legality per se of this ordinance of the Arkansas Secession Convention of 1861; but wé point out that in the case of Baldy v. Hunter, Mr. Justice Harlan, speaking for the Supreme Court of the United States, said: ' •
“. . . judicial and legislative acts in the respective states composing the so-called Confederate States should be respected by the courts if they were not ‘hostile in their purpose or mode of enforcement to the authority of the national government, and did not impair the rights of citizens under the Constitution. ’ ” .; ■
That opinion discussed in a scholarly manner the validity of the Acts of the Legislatures and of the judgments' of the Courts in the various Confederate States during' the War Between the States; and under the holding in Baldy v. Hunter, supra, the said Act of the Arkansas Secession Convention of 1861 concerning Scott and Sebastian Counties is not void as an act against the United States of America. We therefore consider the Act as valid in that respect.
Appellee claims that the effect of the ordinance of June 1,1861, was to make the top of the Poteau Mountain Range the dividing line between the two counties. Appellant claims that the quoted language in the said ordinance is too indefinite to be valid. In Crawford v. Brown and in Crow v. Roane we had eases in which the Legislature had made a river to be the common boundary line between two counties; and we held in each case that the language was sufficiently definite to constitute a boundary line. Here, the territory going to Scott County is described as “lying south of the Poteau Mountain”; and because of the facts now to be discussed, we hold this to be a definite description.
The evidence in this case shows that the Poteau Mountain has only one range that enters Arkansas from Oklahoma, and that such range extends several miles to the east, and finally crosses the north line of Township Three in Section 3, Township 3 N., Range 31 West. There are hillocks and isolated peaks to the north of the main range, but there is only one main range of the Poteau Mountain in the affected area; so the description “lying south of the Poteau Mountain,” as used in the 1861 ordinance, has definite refereneé to the main range. In John Bassett Moore’s International Law Digest, vol. I, p. 616, the rule as to boundaries is succinctly stated by that eminent jurist: “Where a boundary follows mountains or hills, the water divide constitutes the frontier. ’ ’ In C. C. Hyde’s work on International Law, vol. I, p. 242, the rule is stated: “A range of mountains or hills may be the boundary between two states. In such case the line of demarcation follows the water shed. ’’
In the case of Belding v. Hebard, 103 Fed. 532, it was recognized that the crest of the great mountain ranges extending across the State in a southwesterly direction is the boundary line between Tennessee and North Carolina.
In the case at bar the Act (Ordinance) of 1861 separating Scott and Sebastian Counties did not say “South of the foot of the Poteau Mountain,” but said “South of the Poteau Mountain,” so we hold that this Act of 1861 is valid, and fixed the water divide of the Poteau Mountain Range as the common boundary line between Scott and Sebastian Counties in ranges 31, 32 and 33 west, since there was territory in these survey ranges (31, 32 and 33 west) that had been taken from Scott County in 1851 to form a part of Sebastian County.
III. Subsequent Legislation. Appellant insists that the General Assembly of Arkansas has, by legislation since 1861, repeatedly recognized the North Line of Township Three as the boundary line between Scott and Sebastian Counties. There are six such legislative enactments cited by appellant. We identify and give the caption of each:
(1) Act 213 of 1907, “An Act Organizing Certain Territory in Sebastian County into a Special School District to be Known as the West Hartford Special School District. ’ ’
(2) Act 463 of 1911, “An Act to Create a Special School District at Bates, in Scott County, and to Authorize it to Borrow Money, and for Other Purposes.”
(3) Act 113 of 1915, “An Act Adding Certain Territory to the Bates Special School District, and for Other Purposes.”
(4) Act 346 of 1919, “An Act to Cure Alleged Defects in the Organization of the Bates Special School District and the Issuance of Bonds by the Bates and Gipson Special School District of Scott County, Arkansas, and for Other Purposes.”
(5) Act 670 of 1919 (found on p. 2586 of Yol. II of the Road Acts of 1919), “An Act to Create the Poteau Yalley Road Improvement District, of Scott County, Arkansas. ’ ’
(6) Act 371 of 1923, “An Act Creating the,Referendum Road District of Sebastian County, Arkansas.”
While the title of an act is not controlling, nevertheless, as Mr. Justice Eakin said in Reynolds v. Holland, 35 Ark. 56:
“The title of the act affords the clue to its intention. ’ ’
It will be observed that each of these six acts deals with .some special matter, and did not profess- an intention to effect a change in the boundary line between Sebastian and Scott Counties. Any change of boundary line by any or all of these acts can be claimed only by urging that such latter act or acts by implication amended the 1861 act, which had fixed the boundary between the counties. Previous statutes may be amended by implication necessarily resulting from subsequent legislation; but such Implied amendments are not favored.
In 59 C. J. 857, in speaking of implied amendments to statutes, this language appears:
“It has been very generally stated that amendments of statutes by implication are not favored and will not be upheld in doubtful cases. Ordinarily, the legislature’s enactment of a law will not be held to have changed a statute that it did not have under consideration at the time of enacting such law; and implied amendments cannot arise merely out of supposed legislative intent in no way expressed, however necessary or proper it may seem to be. An amendment by implication can occur only where the terms of a later statute are so repugnant to an earlier statute that they cannot stand together. ’ ’
In Sutherland on Statutory Construction (3rd Ed.), § 1913, the holdings are summarized in this language:
“Amendments by implication, like repeals by implication, are not favored and will not be upheld in doubtful cases. The legislature will not be held to have changed a law it did not have under consideration while enacting a later law, unless the terms of the subsequent act are so inconsistent with the provisions of the prior law that they cannot stand together.”
There is nothing in either Act 213 of 1907, Act 463 of 1911 or Act 371 of 1923 to support Appellant’s contention that any or all of these acts hy implication could have been intended to effect a change of boundaries between the counties here involved.
It is true that in Act 113 of 1915, in Act 346 of 1919 and in Act 670 of 1919 there is mention of certain land sections as being “in twp. 3 N., R. 32 W. in Scott County, Arkansas.” Some of the said land sections were in fact in the strip of land here in dispute, and are in Sebastian County by virtue of the Act (Ordinance) of June, 1861, supra. Appellant insists that the effect of each and all of these three Acts ( i. e., the one of 1915 and the two of 1919, just mentioned) is to recognize these land sections as being in Scott County. We hold that it was not the purpose of any of these said Acts to change the county boundaries, but to change boundaries of special districts. The land sections were definitely described without reference to any county. In Rogers v. Magnolia Oil and Gas Co. we held that a description was sufficiently definite which made no reference to any county, but described the lands by section, township and range in accordance with the public survey. So in the Acts here in question, the description of the lands by section, township and range shows the location of the lands, and the mention of the county is surplusage.
Applying the rule against implied amendments, as previously stated, we hold that it was not the purpose of the Legislature, in enacting any or all of these six special Acts, to change the boundary between Scott and Sebastian Counties, as fixed .by the Act of 1861. The very nature of these' special Acts forbids a holding that the Legislature intended to amend the prior law of -1861 fixing the boundaries between Scott and Sebastian Counties.
IV. Appellant’s Contention that the Claimed Boundary was Established by Recognition and Acquiescence. Finally, appellant insists that Sebastian and Scott Counties and the citizens of each, as well as the public generally, have all the time recognized this disputed territory as being in Scott County; and that such recognition and acquiescence should control in this case. But we hold that this argument is based on a theory of limitations against the Sovereign, which theory has never been recognized in this State. In Bittle v. Stuart, 34 Ark. 224, Mr. Justice Eakin said:
“Where no constitutional inhibitions exist, the counties are under the control of the sovereign power, which may, at pleasure, alter their boundaries, change their names, burden them with obligations, or even, it is said, abolish any particular one or more; furnishing, however, another county organization for all parts of the territory.”
Likewise, in Reynolds v. Holland, 35 Ark. 56, the same eminent jurist said: “The power to change county lines is inherent in the legislature, subject to express constitutional restrictions, and the essential requisites of the state which are implied in our frame of government. See case of Eagle, et al. v. Beard, 33 Ark. 497.”
The fact that the Legislature alone has the power to change county boundaries was clearly held by this Court in the case of Cox v. State, 68 Ark. 462, 60 S. W. 27, in which case there arose a question as to the boundary line between Lafayette and Miller Counties. A witness testified that the south bank of Red River was “considered the boundary line” between the counties. This Court held that the boundary line was fixed by the Act of the Legislature — it was the center of the river — and could not be altered by public understanding.
To support Ms argument on tMs point of recogMtion and acquiescence, appellant cites a line of cases, such as Puget Sound National Bank v. Fisher (Wash.), 100 Pac. 724, and Russell v. Robinson (Ala.) 44 So. 1040, in each of which cases the actual county boundaries were indefinitely delineated in the legislative acts, and the Court allowed, evidence of acquiescence in order to clarify the uncertainty in the land survey. But even these cases cited by appellant recognize that the sole power to fix county boundaries is in the Legislature, subject only to constitutional restraint. In Russell v. Robinson, supra, the Supreme Court of Alabama said:
“Counties are political subdivisions of the state, created for public convenience in the administration of government. Their territorial limits are fixed by the Legislature, and outside of constitutional provisions whatever of jurisdiction and powers they possess are derived from the same source. They have no power or authority to alter or change their territorial limits or boundary lines. This is a right reserved to the Legislature of the State, and to be exercised in the way prescribed in the Constitution. ’ ’
In the latter case of Elmore County v. Tallapoosa County, 131 So. 552, the Supreme Court of Alabama said:
“If a boundary line of a county can be determined as a question of law, acquiescence in another line by contiguous counties is immaterial. Acquiescence can be considered only where' there is uncertainty because of a conflict in the calls, descriptions, or monuments employed in the act fixing the line; . . .”
In the case at bar the legislative Act of 1861 fixed the dividing line of the Poteau Mountain range in Townships 31, 32 and 33 as the common boundary line between Scott and Sebastian Counties. Such was a definite legislative determination, and no amount of recognition or acquiescence can change that boundary-! line as fixed by the Legislature.
Conclusion: The decree of the Chancery Court is correct in all respects, and is accordingly affirmed.
Millwee, J., dissents.
See Drainage Dist. v. Hutchins, 184 Ark. 521, 42 S.W. 2d 996.
Mo. Pac. R. Co. v. Henry, 188 Ark. 530, 66 S.W. 2d 636.
34 Ark. 224.
35 Ark. 56.
74 Ark. 568, 86 S.W. 425.
86 Ark. 172, 110 S.W. 801.
Sections 17-103 to 17-108 (inclusive) Ark. Stats, oí 1947, and also sections 2380 to 2385 (inclusive) of Pope’s Digest come to us from Chapter 37, secs. 1 to 6 (inclusive) of the Revised Statutes of 1837, and provide how counties may have boundary lines surveyed; but these provisions have not prevented the adjudication of county boundaries in private litigation, such as is the ease at bar.
See p. 98 of Acts of the General Assembly of the Territory of Arkansas of 1838.
See page 16 of the Acts of the Arkansas Territory of 1835.
See p. 81 of the Acts of the General Assembly of the State of Arkansas of 1838.
See page 81 of the Acts of the General Assembly of the State of Arkansas of 1851.
Crow v. Roane, 86 Ark. 172, 110 S.W. 801; Cox v. State, 68 Ark. 462, 60 S.W. 27.
See p. 16 of the Acts of the Arkansas Territorial Legislature of 1835.
See Act 25 of the General Assembly of Arkansas of 1871.
See Greene County v. Clay County, 135 Ark. 301, 205 S.W. 709, in which this Court refused to hold void an enactment because the Act did not disclose on its face that less than 600 square miles remained.
The Constitution of 1861, Art. IV, § 28 said: “No county now established by law shall ever be reduced by the establishment of any new county or counties to less than 625 square miles . . The Constitution of 1864, Art. IV, § 27 said: “No county now established by law shall ever be reduced, by the establishment of any new county or counties, to less than 600 square miles . . . .” The Constitution of 1868, by Art. XV, § 12, used the same figure of 600 square miles, as does also the present Constitution of 1874, by Art. XIII, § 1.
Art. XIII, § 5 allowed Sebastian County to have two districts.
Art. XVIII named Sebastian County.
Art. VIII, § 1 provided that Sebastian County should have a representative.
This language is paraphrased from that of Chief Justice Hughes, found in the case of Chicot County Drainage District v. Baxter St. Bk., 308 U.S. 371, 84 Law Ed. 329.
See page 70 of the Ordinance of the State Convention of 1861.
171 U.S. 388, 43 Law Ed. 208, 18 S. Ct. 890.
74 Ark. 568, 86 S.W. 425.
86 Ark. 172, 110 S.W. 801.
To the same effect, see Hall on International Law, 6th Ed., p. 123; Glenn on International Law, p. 56.
Act (Ordinance) of June 1, 1861 may be found on p. 70 of the Ordinances of the State Convention of Arkansas of 1861.
See McLeod, Comm’r., v. Commercial Natl. Bank, 206 Ark. 1086, 178 S.W. 2d 496; Little Rock v. Quindley, 61 Ark. 622, 33 S.W. 1053; Pace v. State, 189 Ark. 1104, 76 S. W. 2d 294; City of Little Rock v. Black Motor Lines, 208 Ark. 498, 186 S.W. 2d 665.
For recent cases following the above, see Hogg v. Caudill, 254 Ky. 409, 71 S.W. 2d 1020; Genereaux v. Petit (Wash.), 19 Pac. 2d 911; Belknap v. Schock (West Va.), 24 S.W. 2d 457; and Harding v. Mutual Benefit Assn., (Idaho), 39 Pac. 2d 306.
156 Ark. 103, 245 S.W. 802.
Even though the holding as to venue in that case was changed in the subsequent case of Bottom v. State, 155 Ark. 113, 244 S.W. 334, so that the crime could be prosecuted in either county, nevertheless, the statement of the Court, as to the Legislature having sole authority to change boundary lines, remains unchallenged.
See 20 C. J. S. 773 where may be found other cases expressing the same views. | [
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Griffin Smith, Chief Justice.
In September 1946 Louis Longinotti, Sr., and G. II. Britt, were partners conducting Citizens Club Booky — a place where gambling-contracts were made. Longinotti’s son, Louis Junior, was an employe. T. L. Rhodes, 53 years of age, operated a grocery store and sub-bakery. He patronized the Club on September 25th and engaged in a bet argument with the elder Longinotti. The younger Longinotti, working within a few feet from where the verbal controversy took place, projected himself into the dispute by bodily assaulting Rhodes, who sustained severe facial injuries. In a proceeding for damages and punitive assessment the jury returned a verdict for $4,750 without designating what part of the award was -to compensate actual injury and what was apportionable to the exemplary demands.
In this appeal the partners contend (1) that a plea of res judicata should have been sustained; '(2) Longinotti, Jr., in assaulting Rhodes, acted beyond the scope of his employment; (3) the Court erred in giving plaintiff’s Instruction No. 3, which allowed compensation for future suffering on account of the injuries; (4) the verdict is excessive.
The first assignment is predicated upon an incomplete trial October 27, 1947, and the Court’s action in granting a.nonsuit after having stated that the cause would be dismissed as to the elder Longinotti and Britt for want of evidence. A complete transcript of discussions in chambers discloses that it was the Court’s purpose to grant the nonsuit, even though the Judge had formerly expressed a purpose to dismiss. This was not an abuse of discretion, and the point'must be decided against appellants.
The evidence was sufficient to sustain appellee’s contention that young Longinotti was employed by his father and Britt. In fact, each admitted the relationship. The only question in this connection is scope of the employe’s duties. Generally speaking, he was a clerk, sometimes working at a desk adjusting accounts, but at times mixing with patrons. Just before the assault on appellee, young Longinotti was “behind the counter”, a distance of several feet from where the elder Longinotti and Rhodes were engaged in a dispute. As one witness expressed it, young Longinotti was “at the low counter behind the payoff on horses, where he worked all the time ’ ’, and the controversy between the senior Longinotti and Rhodes was based on Rhode’s contention that he (Rhodes) had bet on a designated entry.
Although testimony regarding the physical encounter is in sharp dispute, there was substantial basis for a jury finding that Rhodes, when informed that his horse had not won, told the elder Longinotti he was a ‘ damned rascal’. The accused man walked to a position near his son, who to reach Rhodes vaulted inpediments and struck right and left. He was a trained boxer, an instructor in an athletic organization, and had no difficulty in severely punishing Rhodes, who retreated across the room and leaned or fell against a so-called catwalk. Prom a standpoint of substantiality, the evidence was sufficient to show an unnecessary assault viciously pursued, and executed in the interest of the assailant’s father in circumstances from which the jury could conclude that the action was concurred in.
The elder Longinotti testified that instructions had been given to call the police in case arguments with patrons occurred, but facts were shown from which the jury had a right to believe that young Longinotti, an expert fighter, was at least a “bouncer’s” relay, and with approval of the two partners was expected to handle emergency disputes.
Instruction No. 3 told the jury that if it should find for the plaintiff there was a duty to ‘ ‘ consider ’ ’ whether the injured man was likely to suffer in the future from effects of the wounds. It is insisted there was no evidence showing a probability of future pain or impairment, hence the instruction was abstract.
There was testimony showing impairment that had continued from the attack until'trial, and in Dr. Reed’s opinion future suffering on a gradually declining scale could be expected. This testimony, considered in connection with appellee’s description of his injuries and the after-effects, justified the instruction.
While the jury’s award of $4,750 appears to be rather liberal, there were aggravating circumstances that place the appellants in an indefensible position. In the first place, treating the jury’s verdict as a finding that the assault was unprovoked — -a conclusion amply supported —the force employed was wholly unwarranted. Dr. Reed described head injuries as “. . . a deep stellar laceration below the left eye, [involving] a contusion with a sub-conjunctival hemorrhage”. In the layman’s language, “flesh of the left cheek was lorn from the center,, and then torn out from that center to lines extending in many directions, exposing the antrum — one of the sinuses”, and leaving scars. A large number of stitches . [some said twelve] were required to close the wound, which had bled profusely. Bandages were not removed for seventeen days, and the left eye “watered” until January. Rhodes also reported to Dr. Reed (but not until three weeks after the encounter) that his back had been bruised, resulting in severe pains in extremities. Anti-pain medicines were prescribed.
Appellee undertook to emphasize his damages by showing that the nature of his injuries required constant attention by his wife, with the result that the grocery store and sub-bakery were closed, and later sold at a loss. The Court properly excluded this testimony in the form it was offered.
Appellants argue that the size of the verdict shows conclusively that something was allowed as exemplary damages. Our cases hold that, as a predicate for exemplary awards, actual damages must be found. Kroger Grocery & Baking Co. v. Reeves, 210 Ark. 178, 194 S. W. 2d 876. What the rule rejects is punishment where actual injury has not been shown. In the ease at bar serious trauma is undisputed and was sufficient for substantial recovery. Appellants, through a requested verdict apportionment, could have separated the elements, but. they did not ask that this he done.
Affirmed. | [
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ROBERT L. BROWN, Associate Justice.
[¡This appeal raises one point for our consideration: whether the circuit judge employed the right legal standard in this termination-of-guardianship case. We conclude that the judge did not, and we reverse and remand.
On August 5, 2004, appellant Jena Graham (“Graham”), gave birth to a son, C.M., while incarcerated in the Arkansas Department of Correction. On the same day, with the written consent of Graham and the baby’s father, Gary Matheny, C.M.’s paternal grandmother, Della Darlene Matheny (“Matheny”), petitioned the circuit court for guardianship of C.M. Her petition was granted by court order, and letters of guardianship were issued on August 5, 2004.
On July 17, 2005, Graham was released from prison, and on October 25, 2006, she filed a petition to rescind the guardianship. Graham’s petition asserted that she “is no longer incarcerated and has made vast improvements in her life and therefore desires to have her son | ^returned to her care and custody.” The petition further maintained that “a material change in circumstances has occurred which warrants a change in guardianship to be awarded back to [Graham].” On January 18, 2007, Matheny responded to the petition and denied that there had been a material change in circumstances as it pertained to C.M. She also asserted that it was not in C.M.’s best interest to terminate the guardianship.
The circuit judge held a hearing on Graham’s petition on February 26, 2007. At the hearing, the following witnesses testified: Matheny; Graham; Tommy Glanton, the Assistant Executive Director of Recovery Centers of Arkansas, Graham’s employer; Sybil Ward, an employee of Jefferson Comprehensive Care Systems and co-founder of Wards of Serenity, a nonprofit agency that counsels recovering addicts; Jennifer Bryant, Director of Keeping the Faith, a battered women’s shelter, and Graham’s best friend; and Brenda Bryant, Graham’s mother.
Because the only issue before this court is the legal standard to be used in termination-of-guardianship cases, we briefly summarize the hearing testimony. Mathe-ny testified that Graham had not done anything since her release from prison to cause her any concern and that she believed C.M. should eventually be returned to Graham’s custody. She also told the judge that she thought that because C.M. was so young, the guardianship should continue for the present time. Graham testified that she had been drug free following her release. She told |sthe judge that she was employed full time and had a suitable house where C.M. would have his own room. The other witnesses testified that Graham appeared to have been rehabilitated after prison.
Following the testimony, the circuit judge and counsel for Graham and Mathe-ny discussed the appropriate legal standard to use in guardianship-termination proceedings. According to Graham, the purpose of the guardianship was for Math-eny to care for C.M. while she was incarcerated, and now the guardianship was no longer necessary. She contended that it was in C.M.’s best interest to be reunited with his mother. Matheny’s counsel responded that, according to this court’s precedent, it was Graham’s burden to prove that it was in C.M.’s best interest to terminate the guardianship. She further claimed that Graham failed to plead that it was in C.M.’s best interest to terminate the guardianship in her original petition and likewise neglected to prove it during the hearing. Matheny’s counsel then argued that the only change in circumstances Graham proved related to her life and not to the circumstances of C.M.’s life. The circuit judge concluded the hearing by asking the parties to brief the issue.
On May 2, 2007, the circuit judge entered an order in which he concluded that the guardianship would remain in effect and that Graham should have visitation. The judge specifically found that “Jena Graham appears to be rehabilitated” and that “Matheny’s primary concern about rescinding her guardianship over [C.M.] is that Jena Graham needs to be more attentive to the child and spend more time with him.” After citing case law, the judge held:
|tl. While the testimony is uncontro-verted that Jena Graham has rehabilitated herself, the law provides that a change in Jena Graham’s circumstances is not sufficient to modify custody and rescind this guardianship.
2. In order to rescind this guardianship, the Court must find that there has been a material change in the child’s circumstances and that it would be in the best interests of [C.M.] In this case, the law works to separate the child from a natural mother who is fit to care for her child. However, there has been no material change in circumstances in [C.M.’s] situation. Therefore, the guardianship will remain in effect.
A review hearing was set and, on November 11, 2007, the circuit judge heard additional testimony from Graham, essentially to the effect that circumstances had remained the same since the February hearing. Graham did tell the judge that she had missed two visitations in that time and that she was still employed full time and was not using drugs. On January 31, 2008, the judge entered a final, appealable order, denying Graham’s motion to rescind the guardianship and setting a permanent visitation schedule for Graham.
Graham urges in her appeal to this court that she should not be required to show any change in circumstances in order to have her son returned to her custody other than the fact that she has been rehabilitated and is now a fit parent. She writes in her brief: “Where a mother voluntarily gives up custody while she puts her own life back together, for the best interest of the child, the law should only require that she must then come back into court and prove she has changed her life such that she is a proper and fit person, once again, to be a parent.” The appellee, Matheny, did not file a brief in the instant appeal.
The standard of review in probate proceedings, which include guardian-ships, is well settled:
[We review probate proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. 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. When reviewing the proceedings, we give due regard to the opportunity and superior position of the probate judge to determine the credibility of the witnesses.
See, e.g., Smith v. Thomas, 373 Ark. 427, 431, 284 S.W.3d 476, 479 (2008) (citing Devine v. Martens, 371 Ark. 60, 65, 263 S.W.3d 515 (2007)). It is also axiomatic that this court does not give the same deference to the circuit judge with respect to matters of law. See, e.g., Freeman v. Rushton, 360 Ark. 445, 449, 202 S.W.3d 485, 487 (2005).
We begin our analysis by noting that all guardianship proceedings in Arkansas are governed by statute. See Ark.Code Ann. §§ 28-65-101 to -603 (Repl.2004 & Supp. 2007). According to the statutes, a guardian is “one appointed by a court to have the care and custody of the person or of the estate, or of both, of an incapacitated person.” Id. § 28-65-101(3) (Supp.2007). The Arkansas General Assembly made clear that, in the case of original guardianship actions with respect to children, natural parents enjoy a preference in the law. Id. § 28-65-204(a). Nevertheless, this court has also long held that “any inclination to appoint a parent or relative [as guardian] must be subservient to the principle that the child’s interest is of paramount consideration.” See, e.g., Smith, 373 Ark. at 432, 284 S.W.3d at 479 (quoting Blunt v. Cartwright, 342 Ark. 662, 669, 30 S.W.3d 737, 741 (2000)).
Once a guardianship has been created, section 28-65-401 of the Arkansas Code establishes the process for terminating that guardianship. That section provides:
(b) A guardianship may be terminated by court order after such notice as the court may require:
h(l) (A) If the guardianship was solely because of the ward’s minority, and either the ward attains his or her majority or the disability of minority of the ward is removed for all purposes by a court of competent jurisdiction.
(B) However, if the court finds upon a proper showing by substantial compe tent evidence that it is in the best interest of the ward that the guardianship be continued after the ward reaches majority, the court may order the guardianship to continue until such time as it may be terminated by order of the court;
(2) If the ward becomes a nonresident of this state; or
(8) If, for any other reason, the guardianship is no longer necessary or for the best interest of the ward.
Id. § 28-65-401(b). In addition to this statutory language, this court has said that we “equate a petition to terminate a guardianship to a change of child custody among natural parents.” See Smith, 373 Ark. at 432, 284 S.W.3d at 479; see also Crosser v. Henson, 357 Ark. 635, 643, 187 S.W.3d 848, 853 (2004).
In change-of-custody cases, this court has adopted a material-change-of-circumstances standard, which places the burden on the noncustodial parent to prove “changed conditions that demonstrate that a modification of the [custody] decree is in the best interest of the child.” See, e.g., Lloyd v. Butts, 343 Ark. 620, 624, 37 S.W.3d 603, 606 (2001). However, in both change-of-custody and termination-of-guardianship cases, this court has reiterated that “the polestar remains the best interest and welfare of the child.” Id.; Smith, 373 Ark. at 433, 284 S.W.3d at 480 (“[I]n both custody and guardianship situations, the child’s best interest is of paramount consideration.... ”).
The pivotal issue in this case is whether the circuit judge properly applied the material-change-of-circumstances test to Graham’s termination-of-guardianship petition instead of the statutory standard set forth under section 28 — 65—401(b)(3) that (1) the guardianship is no |7longer necessary, or (2) termination is in the best interest of the child. We conclude that this was error.
We turn then to an analysis of our case law. In 1979, this court decided a change-of-custody case, Jones v. Strauser, 266 Ark. 441, 585 S.W.2d 931 (1979). In Strauser, the appellant, Jones, and his wife divorced and agreed that their minor daughter should be placed in the custody of her maternal grandparents, the Strau-sers, and the Strausers were awarded custody of the child. The year after the custody order was entered, Mr. Strauser died, and Jones petitioned the court to modify the custody decree and award custody of the child to him. Jones urged that Mr. Strauser’s death was a change in circumstances and that it was in his daughter’s best interest for him to be awarded custody. Jones specifically stressed that the law awarded him a preference, as the natural parent, over Mrs. Strauser. The trial judge found that it was in the best interest of the child to remain with her grandmother and denied Jones’s petition.
This court affirmed and stressed that the best interest of the child was “the polestar in every child-custody case.” Id. at 443, 585 S.W.2d at 932. We then added that “[o]rdinarily it is true that, as between a parent and a grandparent, the law awards custody to the parent unless he is incompetent or unfit to have custody of the child.” Id. We also found that while Jones’s consent to the original custody order did not cause him to forfeit his parental preference forever, “its effect was so diminished that he bore the burden of showing a change in circumstances subsequent to that award which required or justified a change in the custody when considered from the standpoint of the child.” Id. We held that the judge’s finding that | sit was in the best interest of the child to remain in the custody of Mrs. Strauser was not clearly against the preponderance of the evidence.
In 1990, the Arkansas Court of Appeals relied on this court’s reasoning in Stmuser in a termination-of-guardianship case. See In re Guardianship of Markham, 32 Ark. App. 46, 795 S.W.2d 931 (1990). In Markham, Beth and Wayne Markham, biological parents of L.R., formally consented to have Wayne’s aunt, Brenda Buck, and her husband, Randall, appointed as guardians of L.R. Approximately six months after the guardianship order was entered, the Markhams filed a petition to rescind the guardianship. During a hearing in the trial court, the Markhams testified that the Bucks were only keeping L.R. until they could “get back on their feet.” The judge also heard testimony about the child’s health and the circumstances surrounding her life. Following the hearing, the judge declined to terminate the guardianship.
The court of appeals affirmed and relied on the best-interest standard for the termination of a guardianship as set out in section 28-65-401(b)(3), as well as language from this court in Strauser. The court of appeals specifically held that the Markhams bore the burden “to show that a termination of the guardianship would be in [L.B.j’s best interest” and further held that “the language of Ark.Code Ann. § 28-65 — 401(b)(3) indicates that the termination of a guardianship for the best interest of the ward is a matter which lies within the probate court’s discretion.” Id. at 50, 795 S.W.2d at 933. The court of appeals concluded that there was evidence from which the trial judge could have determined it was in L.B.’s best interest to remain in the care of the Bucks.
([Six years later, the court of appeals considered another termination-of-guardianship case with facts analogous to the instant case and seemed to clarify its holding in Markham. See Hooks v. Pratte, 53 Ark. App. 161, 920 S.W.2d 24 (1996). In Hooks, Ronya Pratte and Vaughan Hooks had a child, J.H., out of wedlock. In July 1992, Pratte left J.H. in the care of Hooks’s mother, Sandra Goodier, while she obtained treatment for her addiction to cocaine. In October of the same year, Hooks and Pratte agreed to have Goodier appointed as J.H.’s guardian. In February 1994, Pratte petitioned the court to terminate the guardianship and argued that she consented to it in order to obtain treatment but understood that it would be voluntarily terminated when she was rehabilitated. The trial judge ordered that a home study and drug-screening test be performed on Pratte, and, following the completion of both, the court entered an order terminating the guardianship of J.H. The judge specifically found that “the circumstances that had led to the letters of guardianship being issued had changed to the extent that it would be in [J.H.j’s best interest to terminate the guardianship and reunite [him] with his mother.” Id. at 163, 920 S.W.2d at 26.
Hooks and Goodier appealed, arguing that the trial judge erred in considering only whether the guardianship was still necessary under the statutory standard and that Markham’s holding required Pratte to prove that it was also in the best interest of J.H. to terminate the guardianship. The court of appeals acknowledged its holding in Markham but said that it “should not be interpreted as providing the only guideline a probate court can consider in terminating a guardianship.” Id. at 165, 920 S.W.2d at 27. The court indicated that, according to section 28-65-401(b)(3), “a guardianship may be terminated if, for any reason, the]^guardianship is no longer necessary or for the best interest of the child.” Id. (emphasis in original).
Next, in Crosser v. Henson, this court addressed the proper standard to use in termination-of-guardianship cases. 357 Ark. 635, 187 S.W.3d 848 (2004). In Crosser, James and Melissa Henson had a child, C.H., born in Mississippi, where the Hensons lived. After C.H. was born, Melissa left James, and her mother and stepfather, Charles and Karen Crosser, offered to help James care for C.H. The Crossers resided in Jonesboro. Subsequently, both James and Melissa signed consent forms and agreed to the Crossers being appointed guardians of C.H. The Arkansas probate court then entered an order naming the Crossers as C.H.’s guardians. In April 2001, James obtained a divorce from Melissa in Mississippi, and the Mississippi court granted him custody of C.H. In February 2003, James filed a motion to terminate the guardianship in Arkansas and also requested that the Arkansas court grant him custody of C.H. The Crossers responded by filing a petition to adopt C.H.
The trial judge ruled that the 1998 guardianship was void ab initio because that court lacked jurisdiction at that time under the Uniform Child Custody Jurisdiction Act. The judge then granted James’s motion to terminate the guardianship and ruled from the bench that he could not consider the best interest of the child unless the natural parent was unfit. The judge also denied the Crossers’ petition to adopt C.H. On appeal, this court first overruled the trial judge’s finding that the 1998 court lacked jurisdiction to enter the original guardianship. We | nthen proceeded to treat the case as a termination-of-guardianship case, as opposed to an original child-custody case, as James had urged, and analyzed whether the trial judge used the proper standard to determine whether to grant James’s motion to terminate the guardianship.
The Crosser court first discussed Lloyd v. Butts, which, as already described, was a change-of-custody case. Id. at 641^12, 187 S.W.3d 848, 852 (citing Lloyd, 343 Ark. at 626, 37 S.W.3d at 607). In Lloyd, Michael Butts was awarded custody of two children when he divorced Kimberly Butts. One of the children was Michael’s biological child, but the other was determined to be the biological child of another man, Derek Lloyd. In the divorce proceedings, the trial judge found that Kimberly and Derek were “nefarious and devious” and were “unfit and unsuitable for custody of the children.” One year later, Kimberly and Derek, who had since married, petitioned the court to modify the custody order. The judge found that they were no longer unfit parents but also held that no material change in circumstances had occurred involving the children, and that it was in the children’s best interest to remain in Michael’s custody.
This court affirmed that decision in Lloyd and restated the rule that “a judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child.” 343 Ark. at 624, 37 S.W.3d at 606. This court also explained that the rule operates to “promote stability and continuity in the life of the child, and to discourage the repeated relitigation of the same issues.” Id. at 625, 37 S.W.3d at 606. Our opinion in Lloyd made clear that the party seeking a modification of custody has the burden to show a material change in circumstances and that 112“a change of circumstances of the noncustodial parent is not sufficient to justify modifying custody.” Id. at 625-26, 37 S.W.3d at 607.
The Crosser court next turned to the Markham opinion and cited it for the proposition that, by consenting to an original guardianship order, the natural par ents bore the burden of showing that a termination would be in the best interest of the child. 357 Ark. at 642, 187 S.W.3d at 853. We also said that we viewed the case “as a custody-modification case, since the Crossers clearly had custody of [C.H.] by virtue of the 1998 guardianship.” Id. at 643, 187 S.W.3d at 853.
Our specific holding in Crosser, however, was that the circuit judge erred because he believed that the natural-parent preference was binding and because he did not conduct a best-interest analysis relative to the child. Id. The Crosser opinion concluded with the following statement: “Determining whether the child is to be better off with one party versus another is precisely what the court should decide: The natural-parent preference and the fitness of that parent are not the absolute determinants in custody-modification matters, as our case law makes clear.” Id. The opinion, though, did not mention the statutory standard for termination-of-guardianship eases enacted by the General Assembly in section 28 — 65—401(b)(3).
Most recently, this court decided Smith v. Thomas, another case in which the natural father petitioned to terminate a guardianship previously granted to the child’s maternal grandparents. 373 Ark. 427, 284 S.W.3d 476 (2008). In Smith, Danny and Sandra Thomas were named guardians of their grandson, B.S., after his mother, the Thomases’ daughter, died. |1sB.S.’s father, Bryan Smith, also petitioned the court to be named B.S.’s guardian, but the judge found that it was in the child’s best interest to be placed with his grandparents because Smith was a full-time college student and could not provide B.S. the stability he needed. Over two years after the original guardianship was created, Smith moved to terminate it. He contended that he had gotten married, was earning a stable income, and had maintained continuous contact with B.S. throughout the guardianship period. The circuit judge found that Smith was “qualified” but expressed concern about some other facts that arose in the hearing, which related to Smith’s smoking, his failure to complete parenting classes, and a domestic-battery incident involving him. Ultimately, the circuit judge denied Smith’s motion to terminate the guardianship because he found it was in B.S.’s best interest to remain in the custody of the Thomases.
On appeal, we affirmed and held that the judge’s finding that it was in B.S.’s best interest to remain in the custody of the Thomases was not clearly erroneous and the natural-parent preference was subservient to the best interest of the child. Id. at 434, 284 S.W.3d at 481. Again, this court did not cite to the statutory standard set out in section 28-65-401(b)(3).
Graham, finally, directs this court to our decision in Devine v. Martens that “it is not in a child’s best interest to take custody from a natural parent who has rectified all issues related to his or her fitness, and grant custody to a third party, such as that child’s grandparents.” 371 Ark. 60, 74, 263 S.W.3d 515, 526 (2007). Devine, however, was not a termination-of-guardianship case. Rather, in Devine, the circuit court had entered an original guardianship in favor of the minor child’s grandparents, after finding the biological mother 114to be unfit. This court’s holding in that case was that “the circuit court clearly erred in finding Devine to be an unfit mother and removing [the child] from her care.” Id. at 72, 263 S.W.3d at 524. Devine does not support Graham’s position in the instant appeal because it did not involve the proper legal standard to be applied in a termination-of-guardianship matter.
Because of the law set out above and by the trial court in the instant case, we conclude that there is confusion regarding the standard to be used in termination-of-guardianship cases. We take this opportunity to clarify the law on this point.
First, it is clear to this court that the standard to be applied in termination-of-guardianship cases has been fixed by the General Assembly in section 28-65-401(b)(3), and that standard is (1) whether the guardianship is no longer necessary, or (2) whether termination is in the best interest of the ward. The statutory standard is crafted in the disjunctive and is applicable to terminations involving wards who are adults and wards who are children.
Second, when a guardianship has been established for a child, and a termination is sought, the court must first focus on whether, under current facts, the guardianship is still necessary. That, of course, is the first statutory standard.
Third, even if significant facts have changed relevant to the guardianship, such as Jena Graham’s release from prison and her rehabilitation in the instant case, that does not automatically decide the issue of whether the guardianship of a child is still necessary under the first statutory standard. What is in the best interest of the child must always be examined under the first standard to determine whether the guardianship should be terminated. Best |15interest of the child is the paramount consideration in termination cases, as we said in Crasser and Smith.
Fourth, unlike an original guardianship action, when the guardianship of a child has been in effect for a period of time, the stability of the child’s environment and how well the child is functioning in that environment become critical factors, in addition to other factors, in deciding the child’s best interest under the statute.
Fifth, a change-of-custody analysis using the material-change-of-circumstances standard should not be done in termination-of-guardianship cases. Again, the proper standard has been fixed by the General Assembly in section 28-65-401(b)(3). This court acknowledges citing the material-change-of-eircumstances standard in Crosser and Smith, which were both termination-of-guardianship cases. But, again, using this change-of-custody analysis has led to confusion, as evidenced by the instant case where the circuit judge referenced the best interest of the child but concluded that changed circumstances for only the non-custodial parent precluded him from terminating the guardianship.
We hold, therefore, that analyzing this case under the change-of-eircum-stances standard as if the case were a child-custody matter is the wrong analysis to be performed by the circuit judge in this termination case and that the proper analysis should be done under the standard set out in section 28-65-401(b)(3). We reverse the order denying Graham’s petition to terminate the guardianship and remand for further proceedings using the statutory standard.
[(¡Reversed and remanded.
HANNAH, C.J., and DANIELSON, J., concur.
. Graham filed a motion for default judgment on December 21, 2006, but no ruling was obtained.
. The circuit judge's order states that the hearing was held on January 26, 2007, but the court reporter’s transcript listed the date as Monday, February 26, 2007.
. This was a guardianship action because, despite the Henson’s separation, they were ‘ still married. | [
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ROBERT L. BROWN, Justice.
liAppellant Joseph F. Rounsaville appeals from his convictions for rape, kidnapping, and terroristic threatening and his sentences of life imprisonment as a habitual offender, thirty years imprisonment, and twelve years imprisonment, respectively. He raises two points on appeal: (1) that the circuit judge erred in admitting the testimony of a prior rape victim under Arkansas Rules of Evidence 403 and 404(b), and (2) that the State’s evidence was insufficient to support his convictions. We affirm.
On December 4, 2006, Rounsaville was charged in Lonoke County Circuit Court with rape, kidnapping, and terroristic threatening, involving an adult victim, C.G., in 2004. At a pretrial hearing on June 16, 2008, Rounsaville moved under Arkansas Rules of Evidence 403 and 404(b) to prohibit the State from introducing evidence at trial that he had raped another victim, K.T., under circumstances similar to those involving C.G. Rounsaville 12claimed that the K.T. evidence was not relevant to the only issue in the C.G. case, which was whether she had consented to sex. He urged that the evidence be excluded because the two encounters were not sufficiently similar, that the probative value of the evidence was outweighed by the risk of prejudice, and that the evidence was offered for the sole purpose of inflaming the jury.
The State’s retort was that it intended to introduce the evidence because the similarities between Rounsaville’s actions with the two women showed his intent to commit the crimes for which he was charged, showed that he followed the same plan with respect to both matters, and rebutted his claim that C.G. had consented to sex.
At a pretrial hearing on August 26, 2008, Rounsaville renewed his motion in limine to prevent the State from presenting evidence of his encounter with K.T. under Rule 404(b), which the circuit judge subsequently denied.
Rounsaville was tried before a jury on September 16, 2008. In C.G.’s testimony, she revealed that she had met Rounsaville at a friend’s house in Lonoke in October of 2003, when she was recovering from an accident. Rounsaville offered to, and did, drive her home that night. After that meeting, Rounsaville began to stop by C.G.’s house during his lunch break to see how she was doing and to talk about the problems he was having with his wife. At some point, the two had consensual sex together in a motel room in Hot Springs.
hAccording to C.G., Rounsaville showed up at her house on December 31, 2003. He was intoxicated and demanded that she have sex with him. When she refused, he took her clothes off and forced her to have sex with him. Afterward, he apologized and acted remorseful. C.G. stated that she forgave him because she did not think it would happen again. In early 2004, Rounsaville offered to help C.G. move into a mobile home in Lonoke. She accepted, and he paid for the entire move.
In April of 2004, C.G. called Rounsaville to ask if she could borrow some money. Rounsaville came over to her house, carrying some extra clothes, and acted “really irritated,” she said. He went into her bedroom and told her to take off her clothes. C.G. refused and told Rounsaville that “we’re not going to do this. I don’t need the money that bad.” Rounsaville slammed C.G.’s bedroom door and locked it, shoved her to the bed, and began to take her clothes off. When C.G. resisted, he told her that women who were single parents sometimes had “to do this to get money.” She pleaded with Rounsaville to stop and told him that her fourteen-year-old son would be home at any moment.
In ■ response, Rounsaville slapped her, pushed her face down on the bed, and tied her arms behind her back. He then took her underwear off and penetrated her anally while C.G. begged him to stop. Eventually, Rounsaville pulled C.G. off the bed by her hair, forced her to her knees, slapped her several times, and made her perform oral sex on him. She testified that Rounsaville kept saying that he was her “master,” that she had to call him “master,” and that anytime he wanted to come over to her house, she had to do whatever he said because |/‘that's the price [she] had to pay.” Rounsaville then forced her back onto her bed where he began to penetrate her vaginally.
At some point, C.G.’s son came home and knocked on her bedroom door. According to C.G., Rounsaville told her son that they were talking and would be out in a minute. Rounsaville then let her get dressed and said to her: “If you say a word, I will cut your throat.” Rounsaville placed the extra clothes he had brought in her dresser and told her that “whenever he wanted to be there, if he needed to hide from his wife, he was going to be there.”
C.G.’s son, E.G., testified that he came home from riding his bike with a friend and heard a commotion coming from his mother’s bedroom. He' knocked on the bedroom door and, when nobody came to answer, he began to pound on the door. Eventually, Rounsaville opened the door slightly and told E.G. that his mother was busy. Rounsaville closed the door, and E.G. returned to his room. When E.G. came out of- his room later, Rounsaville was gone, and he could hear his mother crying in her bedroom. He testified that his mother did not come out of her room for two days.
After presenting the testimony of C.G. and her son, the State called K.T. to testify about her similar problems with Rounsa-ville. She testified that she started dating Rounsaville after meeting him at a nightclub. At the time, K.T. was severely depressed due to the recent deaths of her father and older brother, problems with her sixteen-year-old daughter, and her struggles as a recovering alcoholic. K.T. revealed that she frequently discussed these |,.¡problems with Rounsaville. Later, when K.T. lost her job, Rounsaville offered to let K.T. move in with him, which she then did. According to K.T., things went well for about a week, but soon after that, Rounsaville became “extremely aggressive towards [her] as far as sex” and would tell her that she had to do whatever he wanted sexually because she did not have money for rent. Rounsaville also demanded that K.T. call him “master.”
Eventually, K.T. began to fear Rounsa-ville and decided to move out after arguing with him one day about his sexual demands. She packed some of her things and used a kitchen chair to barricade the door to her bedroom. Rounsaville later forced open the door and began screaming and hitting her in the head. He ripped open KT.’s shirt, grabbed a knife, and began threatening to cut off one of her nipples.- K.T. ran out of the bedroom, and Rounsaville followed, hitting and shoving her from behind. When K.T. fell over a couch, Rounsaville forced her to perform oral sex on him. When she refused to cooperate, he pushed her face down on the couch and tied her hands behind her back. He then began to penetrate her anally. After a while, Rounsaville dragged K.T. to the bedroom, tied something around her neck, put a pillow over her face, and told her “you wanted to die, I’m going to help you die,” in apparent reference to a previous suicide attempt by K.T. When Rounsa-ville let her up, she went into the bathroom. There, Rounsaville - dragged her into the shower and proceeded to urinate on her. From there, he forced K.T. back into the bedroom where he began to penetrate her vaginally. K.T. said that she then bit |fiRounsaville’s arm until she tasted blood, at which point he hit her “really hard in the head” and let her go.
The prosecutor additionally presented the testimony of Melinda Perkins, K.T.’s probation officer after her theft conviction, and Detective Jerry Keefer. Perkins testified that she noticed bruises on K.T.’s face when she showed up for her probation appointment. When Perkins asked K.T. if she had been in a car accident or had trouble with one of her sons, K.T. started crying and said that the man she was living with had beaten her up. K.T. then showed Perkins bruising on her arms, back, ankles, wrists, and thighs. Perkins asked if K.T. had been raped, and K.T. said, “yes.” Detective Keefer next testified that he executed a search warrant on Rounsaville’s house in connection with KT.’s allegations. He stated that he found evidence consistent with KT.’s testimony that she had barricaded herself in a room. He also found torn clothing in the bedroom and a zip tie in a trash can.
Rounsaville was convicted of rape, kidnapping, and terroristic threatening and, on appeal, he challenges the sufficiency, of the evidence with regard to all three convictions. Although Rounsaville raises this issue as his second point on appeal, double jeopardy concerns require this court to review his sufficiency-of-the-evidence argument first. See Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147.
This court treats a motion for directed verdict on appeal as a challenge to the sufficiency of the evidence. Ward v. State, 370 Ark. 398, 260 S.W.3d 292 (2007). This court will affirm the circuit judge’s denial of a motion for a directed verdict if there is substantial 17evidence, either direct or circumstantial, to support the jury’s verdict. Id. This eourt has repeatedly defined substantial evidence as “evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture.” Young v. State, 370 Ark. 147, 151, 257 S.W.3d 870, 875 (2007). Furthermore, “[t]his court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered.” Id. In determining whether there was substantial evidence to support the verdict, this court looks at all of the evidence presented, including any evidence that is alleged to have been admitted in error. See, e.g., Goodwin v. State, 373 Ark. 53, 281 S.W.3d 258 (2008). In addition, the credibility of witnesses is an issue for the jury and not the court. See Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). The fact-finder is free to believe all or part of a witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.
A challenge to the sufficiency of the evidence is preserved by making a specific motion for directed verdict at both the conclusion of the State’s case and at the conclusion of all of the evidence. Ark. R.Crim. P. 33.1 (2008); Maxwell v. State, 373 Ark. 553, 285 S.W.3d 195 (2008). The rationale behind this rule is that “when specific grounds are stated and the absent proof is pinpointed, the circuit court can either grant the motion, or, if justice requires, allow the State to reopen- its case and supply the missing proof.” Pinell v. State, 364 Ark. 353, 357, 219 S.W.3d 168, 171 (2005). Without a circuit court ruling on a specific motion, there is nothing for this court to review. Ashley v. State, 358 Ark. 414, 191 S.W.3d 520 (2004).
lAfter the State rested its case, Rounsa-ville’s counsel moved for a directed verdict, stating as follows:
I don’t feel that the state has met their burden in showing that the sex was not voluntary. I don’t believe they made a prima facie ease. I don’t think that there’s enough evidence to support the kidnapping or the terroristic threatening. We’d ask that the Court direct a verdict for the defendant in this matter.
The circuit judge denied the motion for directed verdict. At the close of all of the evidence, Rounsaville’s counsel again moved for a directed verdict and stated as follows:
I think that the testimony from the alleged victim — she stated on the record that it — I left my notes in the back, but allegedly she said, “Okay. If we’re going to do this, let’s do this.” And I think her testimony was, during the anal sex, she said, “Stop, it hurts,” and so he stopped and started having her perform oral sex, according to her own testimony, and that when she said, “I don’t want to have oral sex anymore,” he then stopped and began vaginal intercourse. Each time she said, “No, I don’t want to do this,” he stopped. I think that was in the record, according to her testimony, and those are the specific grounds for why they didn’t meet their burden of proof.
The circuit judge again denied Rounsa-ville’s motion for directed verdict.
It is clear to this court that Roun-saville failed to make a specific motion regarding the sufficiency of the evidence to prove the charges of kidnapping and ter-roristic threatening at both the close of the State’s case and the close of all of the evidence. Accordingly, his sufficiency argument relating to the jury’s verdict on those two charges is not preserved for our review. See Elkins v. State, 374 Ark. 399, 288 S.W.3d 570 (2008).
That leaves his challenge to the sufficiency of the evidence relating to rape. Rounsaville was convicted of rape in violation of Arkansas Code Annotated section 5—14—103(a)(1), which provides that a person commits rape “if he or she engages in sexual | ^intercourse or deviate sexual activity with another person ... [b]y forcible compulsion.” “Forcible compulsion” is defined as “physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person.” Ark. Code Ann. § 5-14-101(2) (Repl.2006). This court has defined “physical force” as “any bodily impact, restraint or confinement, or the threat thereof.” Freeman v. State, 331 Ark. 130, 132, 959 S.W.2d 400, 401 (1998). The test used to determine whether there was physical force is “whether the act was against the will of the party upon whom the act was committed.” Id. at 133, 959 S.W.2d at 401.
We conclude that the State’s presentation of C.G.’s own testimony was sufficient evidence for the jury to conclude that Rounsaville’s actions were against her will. This court has repeatedly held that a rape victim’s testimony alone is substantial evidence to support a rape conviction. See, e.g., Ellis v. State, 364 Ark. 538, 222 S.W.3d 192 (2006). C.G. testified that she refused when Rounsaville demanded sex, that she resisted when he began to take her clothes off, that he repeatedly slapped her in the face, that he tied her hands behind her back and anally raped her while she begged for him to stop, that he forced her to perform oral sex on him, that he forced her to have vaginal sex, and that after the attack was over, he told her that he would kill her if she told anyone about what had happened. Her testimony is more than sufficient to show that the sex acts were against her will, and, thus, substantial evidence exists to support the element of forcible compulsion under Arkansas Code Annotated section 5 — 14—103(a)(1).
ImNext, Rounsaville asserts that the circuit judge erred in admitting the testimony of a prior rape victim, K.T., under Arkansas Rules of Evidence 404(b) and 403. He argues that the testimony should have been excluded under Rule 404(b) because it was not independently relevant but was offered to show his bad character traits and that he acted in conformity with those traits and because the details of the prior rape were not sufficiently similar to the circumstances of the rape for which he was charged. Rounsaville also claims that the testimony should have been excluded under Rule 403 because its prejudicial ef- feet outweighed its probative value. We disagree on both counts.
Arkansas Rule of Evidence 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
The test for admissibility under Rule 404(b) is whether the evidence is independently relevant, which means that it has the tendency to make the existence of any fact or consequence to the determination of the action more or less probable than it would be without the evidence. See Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001). We give considerable leeway to the circuit judge in determining the degree of similarity between the circumstances of a prior crime and the particular crime at hand required for the admission of evidence of the prior crime under Rule 404(b). See Sasser v. State, 321 Ark. 438, 447, 902 S.W.2d 773, 778 (1995) (citing 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 112 n.4 and accompanying text (2d ed.1994)). In reviewing the admission of evidence under Rule 404(b), we have noted that circuit judges have broad discretion in deciding evidentiary issues, and their decisions are not reversed absent an abuse of discretion. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000).
This court has previously recognized that, in prosecutions for sexual offenses, evidence of prior similar incidents may be independently relevant under Rule 404(b) to rebut a defendant’s claim that a sexual encounter with a victim was consensual. See, e.g., McCullough v. State, 2009 Ark. 134, 298 S.W.3d 452 (evidence that defendant unlawfully entered the apartments of two other women in similar circumstances admissible in trial for rape and residential burglary because independently relevant to rebut defendant’s claim that victim had voluntarily allowed him into her apartment and consented to sex); Davis v. State, 362 Ark. 34, 207 S.W.3d 474 (2005) (evidence of prior similar incident admissible under Rule 404(b) in trial for attempted rape because independently relevant to rebut defendant’s claims that his encounter with the victim was consensual).
In the instant case, Rounsaville’s counsel argued at trial that Rounsaville’s encounter with C.G. was entirely consensual and that C.G.’s testimony to the contrary was not credible. In light of this defense, the evidence that Rounsaville raped K.T. under similar circumstances was independently relevant in light of his argument that his April 2004 sexual | ^encounter with C.G. was consensual. We hold that the circuit judge did not abuse his discretion by admitting the evidence of Rounsaville’s rape of K.T. under Rule 404(b).
Likewise, we conclude that the circuit judge did not err in admitting the evidence under Rule 403. Rule 403 provides that, “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.” Ark. R. Evid. 403 (2008). This court has noted that evidence offered by the State in a criminal trial is likely to be prejudicial to the defendant to some degree, otherwise it would not be offered. See, e.g., McCullough, 2009 Ark. 134, at 7, 298 S.W.3d at 455. Nevertheless, the evidence should not be excluded under Rule 403 unless the defendant can show that the evidence lacks probative value in view of the risk of unfair prejudice. Id. This court reviews a circuit judge’s ruling under Rule 403 for an abuse of discretion. Eubanks v. State, 2009 Ark. 170, 303 S.W.3d 450.
As already noted, the evidence of Roun-saville’s encounter with K.T. was relevant to the issue of whether his encounter with C.G. was consensual. It was also probative evidence that the rape took place. In light of the broad discretion afforded the circuit judge in weighing the probative value of challenged evidence against the danger of its unfair prejudicial effect, we cannot say that the circuit , judge abused his discretion in allowing this evidence under Rule 403.
liaThe record in this case has been reviewed for reversible error. pursuant to Arkansas Supreme Court Rule 4-3(i), and none has been found.
Affirmed.
. The circuit court had earlier denied the same motion regarding Rule 403 and Rule 404(b) prior to a mistrial of the first trial that occurred during voir dire. | [
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Griffin Smith, Chief Justice.
Town Creek, with its source north of Malvern, runs through part of the City, and eventually, empties into Ouachita River. Magnet Cove Barium Corporation in its milling operations utilizes the creek for disposal purposes. Ore-bearing earth, from which barium is separated, goes through the mill where large quantities of water are used in conjunction with chemicals, in consequence of which a liquid residue passes into the drainway. When dry it becomes whitish gray; and because of the high state of pulverization, this excess — referred to as “tailings’’ — hardens and forms a coating on lands adjacent the creek, or it is deposited irregularly'when during wet weather an overflow of the stream occurs.
J. Millard Smith owns 145 acres, some on either side of the creek, beginning at a point approximately a mile below the mill. The farm was purchased “twenty or thirty years ago ” at a cost of $120 per acre. In a complaint filed February 12, 1945, Smith alleged that mud and slush discharged from the Corporation’s mill impaired the creek to such an extent that its waters were destroyed for fishing purposes. Cattle, drinking, from the stream, were injured or found the adulteration so offensive as to avoid it. During high water deposits containing minerals and chemicals flooded valuable parts of Smith’s lands. When the creek returned to its banks sediment caused permanent impairment, resulting in damages of $2,500. In addition to compensation, the plaintiff asked that the defendant be enjoined from dumping its tailings into the creek.
In response to the Court’s direction that the complaint be made more definite and certain, an amendment filed April 27th described the land with particularity and increased from $2,500 to $9,000 the amount of damages alleged.
August 3d of the same year J. B. Smith and Guy Haltom intervened, each alleging he owned lands “adjacent to Town Creek and to the Ouachita River.” They adopted Millard Smith’s complaint in so far as applicable to them, emphasizing that prior to pollution the river was a clear, navigable stream, to which game fish and other varieties were indigenous. The waters, it is said, “ . . . have been extensively used as a public fishing and outing stream since Arkansas has been inhabited by the white race — much used by the public for bathing, watering stock, and for sport and commercial fishing by those living in the vicinity, and by visitors.” The defendant Corporation’s conduct in dumping its refuse into Town Creek, said the complaint, damaged these two interveners, who asked that an injunction issue. There was no demand for compensation.
Answering Haltom and J. B. Smith, the Corporation asserted that Hot Spring Circuit Court consolidated complaints filed by them in which they alleged that by reason of the defendant’s act in dumping its tailings into Town Creek, use of their lands had been totally destroyed. Haltom recovered judgment for $600, and Smith $100.
The Chancellor rejected injunction pleas of each of the three, holding — in respect of Haltom and J. B. Smith —that their rights were adjudicated in the Circuit Court action, hence res judicata barred them. J. Millard Smith was not entitled to this extraordinary remedy, there being adequate facilities at law.
The contention that rights of Haltom and J. B. Smith had been adjudicated is, prima facie, correct. There is nothing in the abstract to show that the Circuit Court judgments did not compensate the prevailing plaintiffs in all respects. If full payment were made for total injury, there could be no recurring loss. Since the pleadings are not available we must assume that matters covered by the judgments justified the Chancellor’s findings. We also think the Chancellor acted with judicial discretion in declining to restrain appellee on the showing made by J. Millard Smith.
A great deal of testimony was supplied from which the Chancellor could have found that J. Millard Smith’s farm had been extensively damaged. Austin. Inglis, surveyor, had prepared a drawing (spoken of by attorneys and witnesses as a map) showing the Smith property, with designation of areas believed to have been damaged by deposits of barium sediment, boundaries marking cultivated and non-tillable lands, and giving other information helpful to the trial Court in arriving at an understanding of the physical layout. This witness “thought he would be safe in saying something like half of the land had been overflowed, ‘and has this on it.’ ” He then added, “You can find evidence, [but] of course they cultivated it.”
Specifically the Court understood (as indicated by a question) that Inglis had testified damages extended to 20.4 acres. A question on cross-examination was: “The only land that has been greatly damaged is this piece right here — I am talking about the land they have been farming recently: the only appreciable damage is in the south corner of the northeast southwest?” Answer: “I don’t know what it would take to damage a piece of land, because it did have an awful lot of it. I don’t know whether it damaged it or whether it didn’t. ” Inglis later testified that during the preceding four years half of the twenty acres affected by sediment had been in cultivation: — “that is just an estimate; it could vary from it a little bit. I made this map. ’ ’
There were other references to the map. Unfortunately it has not been included in the bill of exceptions; hence the Chancellor had access to it, but we do not. It would be helpful in understanding what other witnesses had in mind — areas to which they pointed while testifying.
Source of Smith’s damages — whether from appellee’s mill, or contributed to by others — is in substantial dispute. Town Creek has its source three or four miles north and east of Malvern. It flows in a southwesterly direction through a part of the City. Ouachita River is three miles southwest of Malvern. The creek has been intersected at a point two miles north of the municipality by a canal cut for-use of Acme Brick Company. Through it sand and clay are carried into the creek during high water periods. The industrial community of Perla, two miles north of Malvern, disposes of sewage through two septic tanks. These empty into the creek. Another septic tank appurtenant to Jernigan Addition east of Malvern connects with Town Creek. In addition the Negro settlement east of the City, with out-of-doors toilets, drains into the creek. A stockyard, railroad refueling station, and other sources of contamination add to the burden of pollution.
. Appellants introduced testimony that except during rainy - weather the creek was clear before its waters reached appellee’s mill, and discolored thereafter. On the other hand there was testimony that the flowage was laden with feculence to such an extent that human consumption of fish would endanger health; nor was it advisable that the waters be used for bathing or swimming.
In arriving at a determination of apportionable responsibility the Chancellor had to consider contributing causes that were not easily divisible by any accepted method of admeasurement. One witness in assigning reasons he would not want some of the land — approximately 25 acres — said it wasn’t worth anything “with its possibilities in the future.” There was evidence, however, that the Company had changed its methods of operation in respect of the creek, and that in the future the acts complained of would be restricted or eliminated entirely. Some of the witnesses, while conceding that a coloring-coat of what appeared to-be brownish powder or “talcum, ’ ’ was on some of the land, did not know the extent of injury it would cause or whether its effects could be neutralized by relatively inexpensive treatment.
An example of the difficulty an appellate court has in reviewing records containing testimony by witnesses who indicated by gesture, or pointed to maps, or who spoke of areas known to those who were listening, is found in the following illustration:
(Referring to a photograph, shown as an exhibit and brought into the bill of exceptions) — “what is that picture?” A. “That is across the creek from where this first picture you gave me was made. ” Q. “ That is back in here? ” A. “ Oh, yes. ’’ Q. “After you cross this creek it is south of where it makes its turn back to the old river?” . . . (Answer to another question) : “The barn sits right here.” Q. “We were right up the creek showing all the vacant places.” A. “I still believe you are farther back here than that. Here is where you come up out of the slough on the road: here is the road that goes out to Cox’s corner. Here is your road.” Q. “I guess we were right along here. ” A. “ Yes, and the ponds are over here.”
In their effort to present a comprehensive review.of all that took place in the courtroom, appellants have virtually copied the testimony instead of abstracting it. Much is irrelevant and repetitious.
It was “found” that J. Millard Smith had been damaged to the extent of $750. A preponderance of the evidence must have convinced the judicial mind that in view of all of the facts this sum would compensate the plaintiff for that part of his injury inflicted by the defendant. It does not mean that the actual loss did not exceed this sum; nor can it be supposed that absolute accuracy has been achieved.
The word “preponderance” in its application to evidence has been defined so often that the term itself is aphoristic. The law, or practice, requires that the result of a controverted matter submitted to judicial investigation shall be sustained by a preponderance of the evidence. ' In the Restatement, Model Code of Practice, the conclusion is that “It is everywhere agreed that ‘preponderance of the evidence’ means evidence of greater convincing force. ’ ’ In Superior Lloyds of America v. Foxworth, Tex. Civ. App., 178 S. W. 2d, 724-5, it was held not error to charge that “preponderance of the evidence” meant greater weight or degree of the testimony. The term does not mean preponderance in amount, but implies an overbalancing in weight. — United States v. Mancini, D. C. Pa., 29 F. Supp. 44-5. A somewhat different expression is: “ ‘Preponderance of the evidence’ is a preponderance of all reasonable inferences that might be drawn to prove principal facts sought to be established, sufficiency to outweigh all other contradictory inferences.” Firemen’s Fund Indemnity Co. v. Perry, 5 So. 2d 862-3, 149 Fla. 410:
The words “weight,” “credibility,” “overbalancing,” “degree,” “force,” “tipping of the scales,” and others of similar connotation, have been used by opinion writers so long that one would suppose their inclusion in “preponderance of the evidence” gives to the term a fixed, inflexible meaning, applicable alike to all cases where the rule invokes the use. Much must be left to the Judge who considers the evidence. Nature of the testimony, demeanor of the witness if the hearing is oral, opportunity for acquiring the information it is sought to impart, interest in the subject matter or in the parties to be affected, bias based upon political, secular, or novel social beliefs, regard for accepted conventions in dealing with conduct and behavior, environment, a capacity to understand, fidelity to the oath that has been taken,— these and other considerations are, or may be, components of that general result called “preponderance.” The number of witnesses is not controlling, and may even be unimportant. It is possible for cumulus error to overshadow intrinsic truth, and the statement of a single witness may be entitled to more consideration than assertions of a dozen whose source of knowledge or capacity for appraising values impairs the probative force of testimony.
In the instant case many of the witnesses were dealing objectively with what to them appeared to be deposits of sediment presumptively injurious to the soil; and no doubt they were. But the period of impairment — whether for a single season, two years, or for a greater time — was largely speculative. There was no exact nor even relatively accurate standard by which to gauge results. This, of course, was not imperative to a decision. It did, however, place upon the Court a responsibility for exercising that sometimes difficult duty of determining what testimony preponderated. This had to be done in circumstances where intangible elements were present.
To change the judgment by increasing it to a particular sum would be a guess. The appellant who contends $750 is insufficient fixed $9,000 as. an appropriate figure. There is no showing that between the time he thought $2,500 was enough and the time his demand was increased to $9,000 (an interval of two and a half months) additional damages had accrued. This discloses an attitude of uncertainty evidenced by the plaintiff in the ratio of five to eighteen.
For the reasons that have been expressed we are unable to say the Chancellor erred, and the decree must be affirmed. It is so ordered.
Meriwether Sand & Gravel Co. v. State, 181 Ark. 216, 26 S. W. 2d 57, is cited. In that case regulatory power of the sovereign was invoked. In the instant case the State was not a party.
We are not discussing the test on review of law cases, where the question is whether there was substantial evidence. | [
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Smith, J.
On April 14,1945, appellee, H. E. Sullins, at that time a citizen and resident of Hereford, Texas, negotiated and entered into a contract with one "W. C. Branscum, as agent of the United Farm Agency, a corporation engaged in the real estate business, for the purchase of a farm of which C. E. Gowen was the owner.
'On the date stated a written contract was prepared by Branscum, as agent, which recited that Gowen had contracted to sell and Sullins had contracted to buy a farm there described as ft. E. listing No. 432 — 164 acres. Branscum had prepared and circulated literature, copies of which had been received by Sullins, which referred to lands the agency had for sale by number, the land of Gowen being listed as No. 432. The contract recited that the purchase price of the land was $4,400, payable as follows: “Amount paid on execution of the contract, $1,000. Additional cash on delivery of deed, $3,400 . . . and agrees to pay the balance as follows: $500 as soon as abstract and deed is approved.” The contract also recites that “It is mutually agreed that- should either party hereto fail or neglect to perform his part of this agreement, he shall forthwith pay and forfeit as liquidated damages to the other party, a sum equal to ten per cent of the agreed price of sale, except, that if said agreed price is less than $2,000, said sum shall be $200. Deed shall be delivered on the............day of......................................., 19........., at...............o ’clock, at the office of.............................................in the city. of..........................................as soon as paid in full. ’ ’ Other recitals indicate that a blank form was used in the preparation of the contract.
On the same day and under the same date to-wit, April 19, 1945, Branscum prepared a written contract entitled “Contract and Escrow Agreement.” This writing recited that Gowen, as party of the first part, agrees “to sell and execute a warranty deed and abstract to (Sullins) the party of the second part, certain lands described as being in section 14, T. 14 N., ft. 11 W., containing 164 acres, for a consideration of $4,400, of which sum $1,200 is being paid down and $500 upon completion-of deed and abstract, and the balance to be paid in annual installments of $900 each, with interest at 6% on the unpaid balance beginning with the first installment payment of $900, on or before April 16, 1946, and $900 on' April 19 of each year until the full amount of $2,700 is paid in full.” It was also recited “that party of the second part, after having read this contract, agrees on his part to make the down payment of $1,200 and $500 and the balance as set out above.” And further‘that “It is understood that the deed and a copy of the contract shall be held in escrow in the bank at Mt. View, to be collected by said bank, and placed to the credit of the party of the first part, and when all payments have been made said deed to be delivered to the party of the second part. ” '
It was further recited that “It is understood that in the event of the failure of the party of the second, part to pay either of the installments in the deed when due, all become due and payable, and this contract becomes null and void, and the deed reverts to the grantor at the option of the grantor.” Other provisions relate to the payment of taxes which we do not recite. It will be observed that the escrow agreement makes no reference to the payment of damages by the party failing to perform.
This suit was brought by .Sullins against Gowen and against Branscum, both as agent and individually, to recover the payment made, and for liquidated damages for which the original contract provides, it being alleged that they had breached the contract in the manner hereinafter recited, and at the trial judgment was rendered for those amounts, and from that judgment is this appeal.
We think it clear that the escrow agreement, using that term to distinguish one writing from the other, was not intended to cancel and abrogate the sales contract, although it does modify it as to the time and manner of making payments, and it is not insisted that the provisions in the sales contract referring to the abstract were deleted or annulled. The insistence is that the agreement with reference to the abstract was performed. The court below was of the opinion that the writings having been executed simultaneously, or one immediately following the other, should be read together as being-intended to evidence a single contract.
The pleadings and the testimony make it perfectly clear that all parties contemplated and intended that the two writings would make a single contract. It is well settled in this state that in the' absence of anything to indicate a contrary intention, instruments executed at the same time for the same purpose, and in the course of the same transactions are, in the eyes of the law, one instrument and will be read and construed together. Raleigh Co. v. Wilkes, 197 Ark. 6, 121 S. W. 2d 886; Daugherty v. Merrifield, 190 Ark. 537, 80 S. W. 2d 72. The court below so construed the writings, and we think correctly so, indeed appellants quote from and rely upon the sales contract in several respects.
Both writings were prepared and executed in Mountain View. Sullins’ wife had accompanied him there, and she inspected the property proposed to be sold, along with her husband, and while neither writing reflects the fact, it is agreed that Mrs. Sullins ’ name, as well as that of her husband, was to be used in buying the land and the deed was to be made to them as tenants by the entirety.
The escrow agreement required that a deposit of $1,200 be made and acknowledged that it had been made, and this money was deposited with the bank as the escrow agent. At the same time a joint deposit in the bank was made in the name of Sullins and his wife, the purpose thereof being to have the money on hand with which to conqplete the payment required to be made, “upon completion of deed and abstract.” Sullins testified that not knowing how much he would be required to pay down, he had brought with him a cashier’s check for $1,500, of which $1,000 was paid to Branscum and this with $200 previously paid on another proposed contract, which was never consummated, made the $1,200, the receipt of which was acknowledged in the escrow agreement. That agreement did not require Sullins to make the $500 deposit and he testified that he made it to be used when the contract was closed as he did not wish to carry the money back with him to Texas and it was left with the bank as a joint deposit of himself and his wife. Sullins was only required to pay the $500 when the abstract had been delivered and the title approved.
After the writings had been signed, Mr. Sullins and his wife returned to their home in Texas where they separated, but they became reconciled and their separation was of short duration. But while they were separated Mrs. Snllins wrote a letter, dated May 19,1945, to Mr. Branscum reading as follows:
“I am writing you in regard to the place of Mr. C. E. Glowen as I have not heard from you all about the deed and abstracts, don’t know if they are o. k. or not, as you all have waited so long, I have changed my mind about the farm, as Mr. Sullins and I have separated, and I can’t handle the farm alone if you have any town property on your list, let me know. As soon as I finish selling-out here will be up and invest in town property. I drew a draft for $500 on bank there. Answer by return mail.”
The court below refused to admit this letter, which was evidently written by Mrs. Sullins while in a “pet,” for the reason no doubt that Mr. Sullins, the contracting-party, if aware of it, ignored it and insisted upon its completion and tendered performance of it. Sullins testified that his wife had no authority to cancel the contract, and he did not authorize that action.
The $500 to which Mrs. Sullins referred was the deposit of that sum to the joint account of Mr. and Mrs. Sullins, which had not been plaóed in escrow, and was not required to be, but was subject to the check of either Sullins or his wife. Appellants treat the withdrawal of this deposit as a breach of the contract which absolved them from the obligation to. perform. But they had no right to do so, as the.$500 was not due to be paid until an abstract of the title had been furnished and approved. Whether this is true is the real question in the case.
Appellants apparently were of the opinion that the withdrawal of the $500 deposit not only absolved them from any obligation to complete the contract, but entitled them to retain the advance payment which had been made. That theory does not appear to be now asserted, but it was of course erroneous as it was held in the case of Osborne v. Fairley, 138 Ark. 432, 211 S. W. 917, that only in the event that the vendor had tendered an abstract of title and deed to the purchaser, and the latter had failed or refused to accept same could the vendor esact his forfeiture of the earnest money. Bran- scum testified that when the $500 deposit was withdrawn, he paid Gowen $800 of the $1,200 referred to in the escrow agreement.
That an abstract of the title was to-be prepared and furnished' to Sullins is not disputed. The contract of sale so provides and when Sullins completed the payment of the $1,200, Branscum wrote on the receipt therefor the words, “Subject to approval of deed and abstract.”
Sullins and his wife drove to and returned from Mt. View in their automobile, a trip which required eight days. After returning to Texas, Sullins completed the disposition of his holdings in that state, and had the money in hand to complete the contract, which he was willing, able and quite anxious to do, as he had sold his home.
On June 9, 1945, which was of course subsequent to the letter written by Mrs. Sullins, Mr. Sullins wrote the bank a letter reading as follows:
“On April 19th H. E. Sullins of Hereford, Texas, and C. E. Gowens place a real estate contract and money in escrow in your bank. The contract has not been furnished and I do not have the address of Gowens.
“Will you please send the abstract to me for examination, or have Gowen to do the same.”
When the abstract was not forwarded as requested, Sullins directed the attorney he had employed to examine the abstract to write the bank about the abstract, and under date of June 23, 1945, the attorney wrote the bank as follows: “Please send the abstract at once. Mr. Sullins is ready to close the deal, but of course wants to know that he gets title to the land.” These and certain other letters make certain the fact that Mr. Sullins did not consider the letter from his wife above referred to as having annulled the contract of sale. The president of the bank testified that he advised Branscum -and Gowen of the receipt and contents of the letter above quoted.
On July 18th, Gowen wrote Sullins the following-letter :
■ “After giving you far more than ample time to make up your mind I will still give you until August 1st, 1945, to pay the $500 upon the delivery of the deed and abstract.
“As a matter of fact you killed your contract when you failed to leave the $500 in the bank to take up the abstract when I delivered same, but unless you do so by August 1st, 1945,1 will tell Mr. Branscum to sell it again.
“So trusting you will see fit to do so at once but positively not later August 1st, 1945.”
Even this letter made no offer to furnish Sullins the abstract, but demanded that $500 additional be deposited as a condition upon which the abstract would be delivered.
On July 23d, Sullins’ attorney wrote Branscum requesting- him to forward the abstract and stated: “If you will send the abstract to Mr. Sullins or to me, the same will be examined at once and if you have a good .title, we will close at once.”
Altogether Sullins and his attorney wrote nine letters over a period of three months, all demanding that the abstract be furnished. A number of these were registered, and the registry receipts show that they were delivered. The admission' of these letters was objected to upon the ground that they were not the original letters, but were admittedly copies, and only one had been written by Sullins himself.
The original letters were not in Sullins possession, but it was shown that all the letters except the one which Sullins personally wrote were typewritten, and copies thereof were offered in evidence.* Before the trial, notice was given pursuant to § 5147, Pope’s Digest, to produce the original letters, in which notice it was stated that if the original letters were not produced, carbon copies would be offered in evidence. It was objected also that Sullins had written only one of these letters, but he testified that his attorney had written the others at his direction, and as it is not denied that they were received, the copies were admissible as showing the contents of the originals, to the effect that Snllins wanted only the opportunity of approving the title before proceeding to complete his payments.
As has been said the escrow agreement did not require or contemplate that the abstract should be placed in escrow, along with the contract and deed and the deposit, but the abstract was delivered to the bank some days later. The president of the bank admitted that the bank had received one or more of the letters above referred to, which he had shown to Branscum and Gowen, but he did not forward the abstract to Snllins as he thought he had no authority to do so in the absence of directions to that effect from Branscum or Gowen, which he did not receive.
There was testimony to the effect that when the sales contract and the down payment were deposited with the bank Snllins said he would return in about 30 days and complete the contract, and appellants say they were ready at all times to deliver the abstract upon demand, but Sullins did not appear and make that demand as he was required to do, and had agreed to do.
Appellants say that the only provision in the contract with reference to an abstract was that the $500 payment would be made “upon completion of the abstract” and that there was nothing in the contract requiring that the abstract be delivered and approved and that appellee’s contention in this respect made an issue of fact for the jury to pass upon, as “the agreement of sale and the contract are both silent on this point. There is nothing in either requiring appellants to deliver the abstract to the appellee in Texas, and no requirement in either that the abstract was to be examined and approved by an attorney. ’ ’
We think it was clear, however, that the entire contract was dependent upon the approval of the title. It is undisputed that the contract called for an abstract, and it is also undisputed that the abstract was never sub mitted for an examination notwithstanding the frequent requests for its submission. The correspondence referred to made clear the fact that Sullins did not personally intend to examine the abstract, but had employed an attorney to perform that service, and it appears unreasonable to suppose that it was contemplated or was the duty of Sullins to come from his home in Texas to get the abstract for examination by his attorney in Texas, when a few cents postage would have carried the abstract to appellee through the mail.
The court below ignored this contention in an instruction directing the jury to return a verdict for the amount deposited and for the liquidated damages for which the contract provided. On this issue, the one of fact in this case, the court stated to the jury.
“In entering into this agreement, the plaintiff Sullins had a right to have this abstract delivered to him and to have it examined by an attorney of his selection whether in Arkansas or Texas or any other State; and it was the duty of these defendants when he demanded the abstract, if he did so within a reasonable time, and he did according to the evidence here, to have that abstract mailed down there to his attorney and when he wrote in here for it they should have forwarded this abstract down there so that this man could have this abstract examined.”
Certainly the mere preparation of the abstract did not discharge appellants’ duty to appellee under the contract, and as the opportunity to examine the abstract was not afforded, the verdict in appellee’s favor was properly directed, and the judgment thereon is affirmed. | [
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Grieein Smith, Chief Justice.
W. B. Goyne, a resident of Kilgore, Texas, authorized his son, L. A. Goyne, to sell 450 acres of Sevier County land. The son, who lived at Lockesburg, Ark., listed the property with Oscar J. Pate, a realtor, at $11,500. There was a dispute re- gar ding the son’s authority, but this becomes unimportant in view of conclusions we have reached.
The contract of June 22, 1945, was that for a period of twelve months Pate should have the exclusive right to sell. Such agency should continue until terminated by written or oral notice. If the property were sold by Pate “during the twelve-month period”, Goyne was obligated for a commission of $575. The concluding paragraph is: “I further agree to pay said commission to Oscar J. Pate if said property be sold or otherwise disposed of by any other person, firm, or corporation including the undersigned, during the above period, or after the above period, on information given, received, or obtained through this agency”.
L. A. Goyne made a. direct sale, for $11,500, without reference to Pate. The latter claimed five per cent, and sued when refused. With completion of evidence -each side requested a directed verdict and neither asked other instructions. The Court then made findings of fact and declarations of law. An appeal is from a judgment disallowing the commission.
Pate testified that immediately after the contract was signed he began making seller-buyer contacts. A prospective purchaser in Louisiana desired information not disclosed with the listing. Thereupon the agent wrote L. A. Goyne that an interested “prospect” wanted to be clear as to certain details. This letter was dated June 27th. Goyne replied the following day, stating that during the preceding night he had sold. He also said, “If you have been out any money I will pay you when I see you”. Pate construed the contract to mean that even if the landowner made a direct sale irrespective of information given or effort exerted by him, the commission had been earned because the contract was exclusive.
The Court found (a) on a disputed question of fact that L. A. Goyne was authorized by his father to make the contract, but (b) that the owner reserved the right to act on Ms own account “. . . unless said property be sold by, or tbrougb information given, received, or obtained through [Pate]”.
We sustain tbe Court’s declaration of law.
Tbe instrument was prepared by or for Pate. Tbe caption is, “Exclusive Listing Contract”. Tbe consideration mentioned in paragraph 1 is services rendered and to be rendered “in selling or assisting [Coyne] to sell or exchange tbe property”. Tbe second paragraph provides that if tbe lands are “sold or otherwise disposed of by Oscar J. Pate” tbe commission is earned.
Clearly tbe two paragraphs are so worded as to justify tbe belief by one to whom a service offer is made that compensation does not become due until a sale has been effectuated tbrougb efforts exerted by tbe agent or by reason of services, for there is tbe expression “if tbe property be sold or otherwise disposed of”. But tbe final paragraph adds materially to what has gone before. Here it is stipulated that tbe commission is earned “if said property be sold or otherwise disposed of by any other person, firm or corporation including tbe undersigned”. If tbe contract bad ended there its intent would have been clear, and a sale by tbe owner would be tbe equivalent of a sale by tbe agent. In brief, tbe mere fact of listing, coupled with anticipated efforts in procuring a purchaser, would be sufficient consideration. If tbe owner sold there would be a conclusive presumption tbe commission bad been earned, and purpose of tbe contract served.
Tbe parties, however, chose to limit tbe liability by adding “. . . on information given, received, or obtained tbrougb this agency”.
It is conceded that Pate was not in touch with the .actual buyer. Tbe first knowledge be bad that this purchaser existed was when Groyne’s letter of June 28th was received; hence we must consider tbe contract as though it read, “I agree to pay said commission if tbe property is sold by any other person, firm, or corporation (in- eluding the undersigned) on information given, received, or obtained through this agency”.
Where there is inconsistency between general’and specific provisions, the specific provisions ordinarily qualify meaning of the general provisions, and where words or other manifestations of intention bear more than one reasonable meaning an interpretation is preferred which operates more strongly against the party from whom they proceed, unless their use by him is prescribed by law. Restatement of the Law, “Contracts”, Ch. 9, § 236, (c-d). This rule, says American Law Institute, is based upon the conclusion that ‘ ‘ Since one who speaks or writes can, by exactness of expression, more easily prevent mistakes in meaning, than one with whom he is dealing, doubts arising from ambiguity of language are resolved against the former in favor of the latter”. See W. T. Rawleigh Co. v. Wilkes, 197 Ark. 6, 121 S. W. 2d 886.
We are not dealing with a case where nature of the ambiguity justifies introduction of parol evidence and where the Court refused to submit the issue. Witnesses were heard and a determination of the facts was left to the Judge. .
It having been found that Coyne did not sell on information “given, received, or obtained” through Pate, the Court did not. err in holding against liability.
An appeal was, taken from the Court’s holding that L. A. Coyne had the right to sign his father’s name to the contract. This issue is eliminated by our construction of the third paragraph.
Affirmed.'
L. A. Goyne, as a witness at the trial resulting in this appeal, testified that although his father told him to sell the land, there was an express direction that it should not be listed with the real estate agent. | [
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Smith, J.
This appeal is from a judgment imposing the death sentence upon appellant at his trial, upon the charge of having murdered one Frank Simpson under circumstances shocking and pathetic, as stated in the brief filed by his counsel. The testimony showed a killing so deliberate and brutal that no defense except insanity was available and this was the defense interposed.
The testimony shows that appellant was enamoured of and engaged to marry Margaret, the deceased’s daughter, who was employed in a moving picture theater. She reported for duty at 7:00 p. m. and it was appellant’s custom to drive her to her place .of employment. He appeared at her home for that purpose on the evening of April 28, 1947, and asked her where she had been at 3:00 on the afternoon of the preceding day. She explained that she had been engaged in delivering some cosmetics for which she had taken orders, but the expía nation did not satisfy appellant, and he demanded further explanation. She saw at once that appellant was drunk and she told him that he could not take her to the theater where she worked. Appellant said he would show her and he proceeded to try to force her to enter his truck. She resisted and a struggle ensued during which Margaret’s sister appeared and attempted to rescue Margaret who finally freed herself and 'ran into her home and hid in a closet. Appellant began searching for Margaret and announced that he would kill anyone who attempted to interfere with him. Margaret’s father heard the commotion, came upon the scene and asked appellant what the trouble was, whereupon appellant shot Simpson and beat his head into a pulp with an iron bar. .
It appears that appellant had sustained a serious head injury some years before, and he testified that when he drank to excess, as he had done on that occasion, he lost all control of his mental faculties and became insane. After his arrest appellant was taken tp the State Hospital for observation and one of the physicians who had made a full report on his case, and who had had appellant under observation at the hospital, testified that while appellant was abnormal and psychopathic, he was not insane, and was not insane when he killed Simpson. Three other physicians, two of whom were psychiatrists, testified that appellant was not insane at the time of the trial, or at the time he killed Simpson.
Testimony was offered bearing on the question of appellant’s sanity at the time of the killing, and this question was submitted to the jury under instructions, to which no exceptions were saved, and of which no complaint is now made. The verdict of the jury under these instructions reflects the finding that appellant was not insane then or at the' time of the killing. His testimony at his trial gives no indication of insanity at that time.
It is assigned as error that the court erred in permitting the trial to proceed during the absence of appellant’s counsel, during which absence the prosecuting attorney made an argument to which objection would have been made, had defendant’s attorney been present. This argument was to the effect that the imposition of a life sentence did not always, or usually, mean that the accused would remain in the penitentiary during the balance of his life.
The record does not show that appellant’s counsel asked to be or was excused from the trial during its progress, or that he asked that the trial be temporarily suspended, and the only basis for this assignment of error appears in the motion for a new trial, where it is recited that counsel was excused to attend his wife in an emergency, and that before his return to the court the alleged prejudicial argument had been made, of which he was unaware until after the trial had been completed.
It is not the function of a motion for a new. trial to bring such matters into the record. A similar question arose in the case of Cravens v. State, 95 Ark. 321, 128 S. W. 1037, where it was assigned as error in the motion for a new trial that the court had erred in not permitting the defendant to offer certain testimony. In holding that this testimony, alleged to have been offered in evidence, could not be considered, Judge Hart there said: “We cannot consider this alleged assignment of error. The bill of exceptions does not show that such testimony was offered to be introduced by the defendant. It is true that such appears to be the case from the motion for new trial, but motions for new trials cannot be used to bring into the record that which does not otherwise appear of record. It is the office of a bill of exceptions to bring upon the record matters which do not appear upon the judgment roll or record proper, and motions for new trials have never been used for that purpose. Foohs v. Bilby, 95 Ark. 302, 129 S. W. 1104; Cox v. Cooley, 88 Ark. 350, 114 S. W. 929. In the latter case the Court said: ‘The motion for new trial cannot be used, and has never been used, to incorporate anything into the record or any exceptions to anything done by the court. Its sole use is to assign errors already committed by the court, except for newly discovered evidence as provided in the sixth paragraph of section 6215, Kirby’s Digest.’ ”
Trial courts cannot be by-passed in this manner and be deprived of the opportunity of passing upon a question of fact as to what had happened at the trial.
Affidavits of certain jurors, who tried the case, were offered in evidence, these being to the effect that but for the argument of the prosecuting attorney they would not have agreed to a verdict imposing the death sentence, but would have agreed only to a verdict imposing a life sentence. The slight value and the dangerous character of such testimony is shown by the fact that these jurors when examined in open court gave explanations of the conditions under which and the purposes for which they had made the affidavits, which largely destroyed their evidentiary value, had they been admissible. But the policy of the law opposes the admission of the testimony of jurors impeaching their verdict, and this policy is crystalized into a statute reading as follows: “A juror can not be examined to establish a ground for a new trial, except it be to establish, as a ground for a new trial, that the verdict was made by lot.” Section 4060, Pope’s Digest.
A number of cases are cited in the note to this section of the statute. In one of these, that of Jones v. State, 161 Ark. 242, 255 S. W. 876, it was held that the defendant’s counsel might not inquire of the jury if they would have voted for a conviction if the court had given a certain instruction, and in another case, that of Wallace v. State, 180 Ark. 627, 22 S. W. 2d 395, that it might not be shown by a juror that the separation of the jury resulted in prejudice to the defendant. And in another of these cases, that of Post v. State, 182 Ark. 66, 30 S. W. 2d, 838, that a juror would not be permitted to testify that a verdict was not unanimous.
A later case, that of Goodnaugh v. State, 191 Ark. 279, 85 S. W. 2d, 1019, on a motion for a new trial, testimony of jurors that older jurors persuaded younger ones to agree to a verdict by assuring them that the court would suspend the sentence held properly excluded, as jurors may not impeach their verdict except to show that it was arrived at by lot.
It was assigned as error that the jury had not been kept together as the court had directed should be done, and that a person not a qualified elector of Carroll county, where the trial was had, was placed in charge of one of the jurors, who did not remain with other jurors at night. ■ The jury was composed of eleven men and one woman, and they were all given accommodations for the night on the third, or top floor of a local hotel. The eleven men were assigned to three rooms, and the lady was given another room, which modesty required. But this lady was in the charge of the court reporter, a lady who spent the night with this juror. This lady reporter testified that she was not a qualified elector of Carroll county, but was a qualified elector of Washington county, another county in the same judicial circuit. We know of no law which required that she be a qualified elector. It was shown, however, that she was sworn and admonished as to her duties as required by law, and she testified that no one communicated with the lady juror while she was separated from her fellow jurors.
Other members of the jury were at all times in charge of a regular bailiff who had been sworn and admonished as required by law and who appeared to have béen meticulously careful about obeying the admonitions of the court to keep the jury together, and to permit no one to talk with them except that he permitted one juror to give telephone directions to his son about the care of his stock, and except also that he permitted the jury to attend a moving picture show. But it was shown-that the bailiff had arranged for the jury to sit together, on a rear row of seats, and that no member of the jury had any conversation with anyone except other members of the jury. We do not give our approval to the action of the bailiff in taking the jury to a moving picture show where some outside contacts were unavoidable, but the affirmative showing was made that the jury was kept together as well as could be and that the jury was not subjected to any influence impeaching the integrity of the trial.
Finding no error, the judgment must be affirmed and it is so ordered. | [
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Ed. F. McFaddin, Justice.
This appeal presents a direct attack by a property owner'on certain proceedings affecting the appellee district.
A brief review of the history of the district is necessary to understand the issues presented in this appeal. The district was organized in 1935 under the alternate levee and drainage statutes (§§ 4455, eb seq., Pope’s Digest). Even though the appellee was named a “drainage district,” its purpose was to construct a levee to protect lands from overflows, and this is permissible for such a district (see § 4489, Pope’s Digest). The district comprised 7,086 acres possessed by 89 owners. The levee constructed in 1936 was found to afford inadequate protection; and in each of the years of 1938, 1941 and 1943, additional work was done on the levee. The benefits assessed in 1936 proved insufficient to finance the additional work; and in 1943 additional benefits were assessed. In 1945, a flood destroyed a portion of the levee, so that further work was imperative. The United States Corps of Engineers agreed to construct a new “set-back” levee if the landowners would provide the right of way.
Then came the proceedings here involved. In 1946, a map was made showing that 4,186 acres (of the original 7,086 acres in the district in 1936) would be protected by the new set-back levee. Thereupon, a petition, signed by the owners of 2,507 acres (of the 4,186 acres to be protected) was filed in the county court under the provisions of §§ 4526-28, Pope’s Digest. The petition prayed that the plans be revised, so that there would be a reassessment of benefits on the said 4,186 acres. The county court found that the petition was signed by a majority in acreage, and granted the order, which we refer to as the “revised plans order.” Appellant, as a property owner of a portion of the 4,186 acres affected (and also of other lands in the district) duly appealed to the circuit court.
An assessment of benefits (based on the revised plans) was filed. The county court confirmed the as sessed benefits so filed, and made an order for the annual collection of 5% of the benefits. Appellant duly appealed to the circuit court from the said “benefits and levy order.”
The circuit court affirmed the county court’s “revised plans order,” and also the county court’s “benefits and levy order;” and appellant has appealed to this court. The question now before us may be summarized: Did the 1946 petition — signed by the owners of 2,507 acres — contain a majority?
It is admitted by all parties that in the matters here involved the appellee has proceeded under the provisions of § 4526, et seq., Pope’s Digest, which sections are a part of Act 203 of 1927. This act has been before this court in several cases; some of them are: Indian Bayou District v. Dickie, 177 Ark. 728, 7 S. W. 2d 794; Grady District v. Free, 178 Ark. 346, 10 S. W. 2d 854; St. L. S. F. Ry. Co. v. Sub-district No. 1, 179 Ark. 567, 17 S. W. 2d 299; Berry v. Cousart Bayou District, 181 Ark. 974, 28 S. W. 2d 1060; and Cox v. Drainage District, 208 Ark. 755, 187 S. W. 2d 887. In Cox v. Drainage District, supra, we held that, after the improvement originally contemplated had been made, if a new or additional improvement not in the nature of maintenance should be undertaken, then — under Act 203 of 1927 — -there must be presented to the proper court a petition asking for the new work, and said petition must be signed by a majority in value, acreage or number of the landowners in the district. In Indian Bayou District v. Dickie, supra, we held that the petition would be sufficient if it contained a majority of acreage or valuation or owners.
It is not contended that the 1946 petition here involved was signed by a majority in value or acreage or owners of the entire lands in the appellee district, but it is insisted that the petition is signed by the owners of a majority of the acreage of the lands to be benefited by the new levee: that is, the petition is signed by the owners of 2,507 acres of the territory of 4,186 acres to be benefited. Stated another way, the district contends that, the fact that the district contains 7,086 acres is immaterial, since only 4,186 acres will be protected by the proposed new levee, and will be taxed for the costs of the right of way, and therefore only the owners of a majority of the 4,186 acres need sign the petition. Furthermore, the district argues that the action of the commissioners approved by the county court, in assessing benefits for the new levee on only 4,186 acres (out of the 7,086 acres originally embraced in the district), in effect reduced the territory of the district so that only 4,186 acres are now in the district.
The circuit court agreed with the appellee, and made these findings: “ (1) that the majority in value, acreage or number, refers to the new project; (2) the court construes § 4528, Pope’s Digest, to mean that there must be a majoritj7- in value, acreage or number of the new project; ... (4) the court finds that it is not necessary that there be a majority in acreage and in value and in numbers of the old or original district; (5) that the word ‘district’ as used in this section means the new project and not the old or original district organized in 1935.”
We cannot agree with the learned circuit court in the above-quoted findings. There is no provision in the statutes here involved which authorizes a change in the boundary lines of the district to be made in the manner here attempted. The sub-district procedure (see § 4501, Pope’s Digest) was not here followed or involved. Any district organized under § 4455, et seq., Pope’s Digest, is for the purpose of making a local improvement, with the costs to be paid by an assessment on the benefited lands. Such a district is of statutory origin, and it possesses only the powers conferred by the statute, plus those powers necessarily implied. Board v. Fleming, 93 Ark. 490; 125 S. W. 132; Board v. S. W. Land & T. Co., 112 Ark. 467, 166 S. W. 589; Keystone District v. Drainage District, 121 Ark. 13, 180 S. W. 215; Wood v. Drainage District, 110 Ark. 416, 161 S. W. 1057; and Shewmake v. Hudson, 171 Ark. 739, 285 S. W. 382.
Appellee does not argue that there is any statute which empowers the court, in computing the acreage required on the petition, to exclude all lands in the district except those thought to be benefited by the new project. But appellee does argue that, since such exclusion is apparently equitable and fair, it should be sustained, even in the absence of statutory authority. We cannot agree. Courts must administer the law as it is written in the legislative enactments. Legislative authority, permitting the reduction of the acreage of an improvement district in the manner here attempted, might be expedient or desirable; but sufficient answer to the appellee’s contention is this: The General Assembly has granted no such power; nor has it authorized any such procedure as appellee is here attempting to pursue.
Berry v. Cousart Bayou, District, 181 Ark. 974, 28 S. W. 2d 1060, involved practically the same question as is here presented. We quote excerpts from the facts in that case:
“In order to protect the system of drainage contemplated, the board of directors upon petition of real estate owners alleged to be a majority of those to be benefited by the proposed improvement, but not a majority in either number, acres, or value of the owners of real property in the entire district, filed an application . . ., setting up the necessity for the proposed improvements^ describing the same and the plans for the construction of said improvement, . . . The assessment of benefits was not on the entire lands of the district, but was an additional assessment of benefits against the lands which the assessors found would be benefited by the proposed improvement.”
Under these facts we held — inter alia — that the petition for the “revised plans order” must be signed by a majority in number, or acreage, or valuation of the entire district, .and not merely by a majority of those in the 'territory alleged to be affected by the revised plans order. We adhere to that holding.
It follows that the circuit court erred in affirming the orders of the county court involved in this appeal. The judgment of the circuit court is reversed, and the cause remanded, with directions to enter an order reversing and setting aside the said orders of the county court of May 16, 1947, here involved, and remanding the case to the county court with directions for further. proceedings not inconsistent with this opinion.
We secure these words “revised plans” from § 4528, Pope’s Digest.
The district exercised the power of eminent domain, and has taken a portion of appellant’s land for the new set-back levee. That condemnation suit appears to be pending in the circuit court. This present opinion does not directly affect that litigation; for all that appears in this record, the district may obtain elsewhere ample funds to obtain the right of way. | [
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Holt, J.
Appellee, the father of Raymond McCarn, 17 years of age, sued appellant, Railroad Company, for damages to compensate him for loss of contributions in the death of his son, which resulted from a collision between appellant’s freight train and an automobile in which Raymond was riding, and belonging to appellee, on a street crossing in Luxora, Arkansas.
Appellee alleged in his complaint, negligence of appellant in failing to giye the statutory warning signals (§ 11135, Pope’s Digest).
Appellant’s answer was a general denial and affirmatively pleaded that the collision resulted solely from the negligence of appellee’s' son, Raymond, and Junior G-raves who was the driver of the car.
A jury awarded damages in the amount of $4,000, and from the judgment comes this appeal.
. For reversal, appellant first questions the sufficiency of the evidence to support the verdict. No complaint was made as to the instructions except the court’s refusal to direct a verdict for appellant.
In determining whether there was substantial evidence to support the verdict, we must view it in the light most favorable to appellee.
The collision occurred about 1 -.30 Sunday afternoon, February 28, 1944. It was cloudy and misting rain. Appellee’s soii, Raymond, along with four other boys, whose ages were from 16 to 19, were in the automobile when the collision occurred. Junior Craves was driving and Raymond was sitting by his side on the front seat. The automobile was a 1931 Chevrolet sedan in good repair.
The boys drove easterly on Calhoun Street to the crossing, in question, at a speed of from fifteen to twenty miles per hour. The train, a local freight consisting of seven cars and the engine, was moving about fifty miles per hour when the collision occurred. On their left, or north side of Calhoun Street, before the boys reached the crossing, there were several obstructions, including a filling station, a story and a half dwelling house, a shed and a garage. Back of the shed and further to their left, facing and bordering the right of way, was a section foreman’s house, in front of which were several trees which tended to obstruct the view. There was also a number of telephone or telegraph poles along the railroad right of way. The one and a half story house was approximately 100 feet west of the crossing and the garage approximately 88 feet. These obstructions were on their left or north, the direction from which appellant’s train was coming. On account of the obstructions, the evidence tended to show that the driver of the automobile could not see the track any appreciable distance north, or to his left, until he had reached a point 88 feet from the crossing.
There was affirmative testimony which, however, was not undisputed, to the effect that the whistle was not blown nor was the bell rung, until the collision occurred.
As a result of the collision appellee’s son, Raymond,' and two of his companions were killed instantly. The train ran approximately 1,000 feet after striking the automobile before it was stopped.
J. D. Betterton, 19 years of age, one of the boys who survived the collision, testified: (Here we quote from appellant’s brief.) “Junior Craves was driving. I was the last one to get in it; sat on left end of rear seat; we started to Luxora, Junior Craves driving; Shannon Craves and Raymond McCarn were on front seat, Raymond McCarn in the middle, Shannon Craves on right end of front seat. We were driving to Luxora on Highway 61; it was misting rain, the concrete pavement wet. We were all talking and driving 20 or 25 miles an hour. Couldn’t see anything until we got to those trees and along up there a train was coming. We tried to get out of the car. The driver started stopping the car, but it was so close on him he couldn’t stop it and the train hit the car. We looked both ways when we got around the trees and the house on the left of the highway and saw the train and started to get out. When I saw the train it" was right on us. Whistle wasn’t blowing, bell not ringing until about the time it hit the car. . . .
“I looked for a train after we got around the trees. We were making around fifteen miles an hour I ,imagine when we went on the track. Have seen many trains running over this crossing and a train may come along at any time. We slowed down for the crossing. The front wheels were not quite on the track when I saw the train. I know all of us looked for the train. . .. As soon as we saw the train everyone tried to ■ avoid the accident. The train was right on us when we got to the track and I hadn’t seen it before.”
The other survivor, Shannon Craves, 17 years of age, testified that he was in the front seat on the right. His brother was driving. “When we saw the train my brother did everything he could to stop”; that the car was practically stopped when they got on the track and that his brother began to slow down to go over the cross ing. He was asked: “After you — now, I believe you say after you passed by the ‘Y’ there, going on to the track, or up to where you come to the house and trees you say you passed out from, was there any way for you to know that there was a train coming unless the bell had been ringing or the whistle blowing? A. No, sir. Q. You couldn’t see the train in that position? A. We couldn’t see, it was blind. Q. Do you state positively that when you saw the train coming that the bell was not ringing and the whistle was not blowing? A. I am positive.”
We deem it unnecessary to detail all of the evidence. It suffices to say that we have carefully reviewed it and have reached the conclusion that a case was made for the jury.
If it be conceded that the evidence showed that the driver of the car in which appellee’s intestate was riding was guilty of negligence, we are also of the view that the evidence shows that the Railroad 'Company was also guilty of negligence. A situation was therefore presented in which it became necessary for the negligence to be compared. The jury was instructed:
“If you find from the evidence in this case that the collision was the result of the failure of defendant’s employees to give the statutory signals by ringing the bell or blowing the whistle as the law directs, your verdict should be for the plaintiff, unless you further find that the driver of the car was guilty of some negligence that caused or contributed to the injury complained of, and that his negligence was equal to or greater than that of the trustee, his agents, servants and employees. If you find that the driver of the car was guilty of some negligence that contributed to the injury complained of, but that his negligence was of less degree than that of the trustee, if any, then the amount of recovery-should be diminished in proportion to such contributory negligence.”
If it be said that the evidence was sufficient to apply the rule of imputed negligence to appellee’s intestate, still the jury necessarily, under the instruction, must have found that the negligence of the driver of the car was less than, or did not equal that of the Bailroad Company.
In view of the instruction, supra, which was not unfavorable to the Bailroad Company we do not consider whether, at a given point either as to distance or time before the driver of the automobile reached the crossing a duty rested upon appellee’s intestate to warn the driver of danger.
In the very recent case of Smith, Administratrix, v. Missouri Pacific Railroad Company, Thompson, Trustee, 208 Ark. 40, 184 S. W. 2d 951, a railroad company crossing case where a freight train collided with a truck in a situation similar to that presented here, and the primary question was whether the statutory signals were given, we there said: “Here the whistle was not blown, nor was the bell rung. The approaching train, of course, made considerable noise which the intestate could have heard had he listened, just as he could have seen the train had he looked, but the statute imposes upon all railroads the duty of giving notice of the approach of a train to a crossing by blowing the whistle or ringing the bell ‘ . . . at a distance of at least eighty rods from the place where the said road shall cross any other road or street. ’ Section 11135, Pope’s Digest. . . .
“A note of the bell, or a blast of the whistle would have given intestate the warning which the statute requires, and might have awakened him from his lethargy and averted the collision inasmuch as he was approaching the track not directly, but at an angle of 45 degrees, which to that extent diminished the range of his vision, and while this did not lessen his duty to look, it did make looking less effective,” and it was there held (headnote 4) : “Since there is room for an honest and intelligent difference of opinion as to the degrees of negligence on the part of the parties, the jury should have been permitted to compare this negligence under an instruction requiring the damages to be reduced in the proportion which the negligence of appellant’s intestate boye to the negligence of appellee,”
So here, the driver of the automobile was approaching the crossing at a speed of about fifteen miles per hour with his view to the left or north, the direction from which the train was approaching, obscured by the many obstructions above mentioned, and had either of the statutory signals been given, he might have been warned of the fast approach of the train in time to have stopped the car and avoided the collision.
Finally, appellants arg-ue that the verdict was excessive. We cannot agree.
Appellee’s son was at the time of his death a little over seventeen years of age and lived at home assisting his father run his 40-acre farm, doing the usual duties and chores required of a farm hand. There was evidence ‘that it would cost appellee $2.50 a day to replace the services of his son. Raymond worked for his father an average of four days per week. During 60 days of the cotton picking season, Raymond averaged about 325 pounds per day, four days per week, picking cotton. He averaged about $7.50 per day. He was a dutiful son, bright and healthy. The appellee estimated his son’s services to be worth $1,000 per year to him. He was the youngest child and had never expressed any intention of leaving home.
As has many times been said, there is no certain yardstick by which to measure the value of the loss of services in a case of this nature. Necessarily, the recovery must depend largely upon the facts presented in each case.
In Missouri Pacific Transportation Company v. Parker, Admr., 200 Ark. 620, 140 S. W. 2d 997, we said: “The recovery of damages for the pecuniary loss sustained by a parent for the wrongful death of a minor child and the amount of such recovery have been the subject of numerous decisions of this court. We think it would be a work of supererogation to review and attempt to apply or distinguish principles to or from the case at bar. Those interested in the subject may find them reviewed and applied in Morel v. Lee, 182 Ark. 985, 33 S. W. 2d 1110, where a verdict was reduced to $2,500 for the death of a four-year-old child; in Chapman v. Henderson, 188 Ark. 714, 67 S. W. 2d 570, where a verdict for $7,500 was sustained for death of a 20-year-old son who earned $5.50 per day and was the sole support of his mother; in Davis v. Gillin, 188 Ark. 523, 66 S. W. 2d 1057, where a verdict for $12,500 was reduced to $2,500 for the death of a six-year-old child; in Ark. P. & L. Co. v. Hoover, 182 Ark. 1065, 34 S. W. 2d 464, where a verdict for $10,000 was reduced to $5,000 for the death of an adult son; in Ark. P. & L. Co. v. Adcock, 184 Ark. 614, 43 S. W. 2d 753, where a verdict for $2,500 was reduced to $2,000 for the death of a 17-year-old son; in Mooney v. Tillery, 185 Ark. 457, 47 S. W. 2d 1087, where a verdict for $1,500 for a 22-year-old son was sustained; and many other similar cases cited in the cases mentioned. The amount of the recovery is necessarily speculative. No one can know or testify what the value of the services of a minor child, less its necessary expense, will be.”
So here, we are unwilling to say on all the evidence presented that the jury’s award of $4,000 is excessive.
On the whole case, finding no error, the judgment is affirmed. | [
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McHaney, Justice.
Appellant is a distributor of Aireon Phonographs, coin operated music machines, with his place of business in Oklahoma City, Oklahoma. Appellees, partners, are engaged in the placing of coin operated music machines on locations, in cafes and similar places, on a commission basis, with their office in Cotter, Arkansas.
On August 9, 1946, at Cotter, appellees entered into a written conditional sales contract with appellant for the purchase of five of such machines at a total price of $4,485, of which $1,500 was paid in cash, and for the remainder executed their note, payable monthly thereafter in installments of $285 each. The machines were thereafter shipped, and were received by appellees on August 19,1946. One of said machines so received would not operate. The other four were placed on location, and, as appellees contend, operated irregularly and very unsatisfactorily, so that they were a complete failure for the purpose intended. Appellees failed to pay the installment of $285 which became due on September 9, or any installment due thereafter, and, on January 11, 1947, appellant repossessed said machines, in an action in replevin brought by it .on said written contract. Appellees filed an answer and a cross-complaint alleging the recision of the contract and seeking a recovery of the down payment of $1,500' because of defects in the machines constituting a breach of the implied warranty in the sales contract of suitability of the machines for the purpose intended.
Trial resulted in a judgment based on a jury verdict for $1,500 against appellant, and he has appealed.
The contract is a conditional sales contract, whereby title was retained in appellant until the purchase price had been paid in full, and, with reference to warranties, had this paragraph: “This contract contains the entire agreement between the parties hereto and is not subject to cancellation and no warranties, agreements or guarantees have been made by Seller unless endorsed hereon in writing. No provision hereof shall be excluded, modified or limited except by written instrument expressly referring thereto and setting forth the provision so excluded, modified or limited . . .”
Appellant’s contention is that there was no warranty of quality of the machines, either expressed or implied, and that the court erred in submitting the question of an implied warranty to the jury. The court read to the jury § 15 of Part 1 of Act 428 of 1941, entitled “An Act to Make Uniform the Law of 'Sales of Goods,” relating to implied warranties, and then instructed them as follows : “In this case if you believe by a preponderance of the evidence that the defendant buyers in this case, Berry and Lonon, expressly or by implication made known to the seller, the plaintiff in this case, the particular purpose for which the goods, or the phonographs, were required, and you find that the buyer relied on the seller’s skill or judgment, then there would have been an implied warranty, and there would be an implied warranty that the phonographs would be reasonably fit for such purpose.
“You are further instructed that the defendants in this case would not be entitled to recover, even though you find that under the facts of the case there was an implied warranty on the part of the plaintiff and even though you should find that the phonographs were defective unless the defects of the phonographs were of a substantial nature; If the defects of the phonographs, if any did exist, were of a minor nature and could be corrected by someone who knew how at not too great, or unreasonable expense, then in this case, it would have been the duty of the defendants to make such minor corrections,- or have them made, and if the plaintiff were to blame for any such minor defects, if any, ask the plaintiff to pay for such adjustments. It is only in case and where substantial or material defects were in the phonographs that would enable the defendants to recover against the plaintiff in this suit.”
We’ think the statute, as read to the jury, was applicable and the court’s instruction applying it as the law of the case, as just quoted, was a correct declaration of the law, and furnished the jury with a succinct and simple guide to apply the facts in the case thereto. Moreover, even if the statute and the instruction were inapplicable, appellant did not object or except thereto, neither did he assign it as error in his motion for a new trial, his only reference to the instructions in his motion for a new trial is, “The court erred, generally, in its instructions to the jury. ’ ’ Said motion, in paragraph 4, says the court erred “in refusing to direct a verdict for plaintiff.” But, if appellant requested a directed verdict, his abstract does not show it.
We do not set out the evidence for appellees tending to show that the machines were so defectively constructed that they were not suitable for the purposes for which they were purchased. There was ample evidence to take the case to the jury under the instruction of the court, above set out, to sustain a finding for either party.
The judgment is, therefore, affirmed. | [
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Holt, J.
This suit was begun November 5, 1946, by appellees, Jennie P. Rightor and Josephine Thompson, against the American Casualty Company, appellant, to recover'$808 for attorney’s fees incurred by appellees in the defense of an action brought against them by the administrator of the estate of Louis Warren Tilghman, deceased. They also ask for 12 per cent, penalty and attorney’s fees.
Appellees alleged in their complaint that they were engaged in farming operations near Helena and owned and operated a 1940 1%-ton International truck; that appellant, company, on July 22, 1944, issued to them its policy of insurance whereby it agreed to insure appellees against loss or damage caused by its operation and that appellant would, at its expense, defend any suit brought against appellees for damages resulting from its operation; that on February 23, 1945, while said truck was being operated by appellees, it was caused to strike and kill Warren Tilghman, a 7-year-old child. They further alleged proper, notice of the action and the filing of the suit was given to appellant, wherein damages were sought in the amount of $10,000; that although requested to defend, appellant repudiated its contract of insurance and refused to assume the defense of the action; that appellees were compelled to employ counsel and defend the action which was submitted to a jury in April, 1946, and a verdict returned in favor of appellees; that they incurred an expense of $808 in defending the suit.
Their prayer was for judgment against appellant for damages for its failure to defend the action.
Appellant’s answer denied generally the allegations of the complaint and alleged the affirmative defense that the policy of insurance in question “provided that it should not apply while the automobile was being used for the towing of any trailer or semitrailer not covered by like insurance with the.company,” and that the accident alleged in appellees’ complaint occurred at a time when the truck described in the policy was towing a semitrailer, not insured by the company.
By agreement, the cause was submitted to the court, sitting as a jury, and from a judgment in favor of appellees is this appeal.
For reversal, appellant says: “The risk of loss was one specifically excluded by the terms of the policy contract itself and the coverage of the policy cannot be extended by the doctrine of estoppel based upon acts of the "insurer’s agent.”
The insurance contract in question provides: “Item 3. The insurance afforded is only with respect to such and so many of the following coverages as are indicated by a specific premium charge or charges. The limit of the company’s liability against each such coverage shall be as stated herein, subject to all the terms of the policy, having reference thereto.
Coverages. Limits of Liability. Premiums.
(Show separately for each auto.)
A — Bodily injury liability $10,000 each person. $20,000 each accident..............................,........................................$35.20
B — Property damage liability $5,000 each accident...$10.90
C — Medical payments.............................................................................
Total premium........................................................................$46.10
“Item 4. Description of the Automobile. Tr. of Model. Trade name and model. Body type; Truck load capacity or factory gross weight; Tank gallonage capacity ; or Bus Seating capacity — 1940 International 1%-ton truck; Serial number 23525; Motor number 33846. . . . American Casualty Company of Reading, Pennsylvania, agrees with the insured named in the declarations made a part hereof, in consideration of the payment of the premium and in reliance upon the statements in the declarations and subject to the limits of liability, exclusions, conditions and other terms of this policy:
“1. Coverage A — Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services, because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising ont of the ownership, maintenance or use of the automobile. ’ ’
Under section 11, the company agreed with assured to “defend in his name and behalf any suit against the insured alleging such bodily injury, sickness, disease, including death resulting therefrom . . . even if such suit is groundless, false or fraudulent. ’ ’
Under section IV, the contract provides: “Except when specifically stated to the contrary, the word ‘automobile’ whenever used in this policy shall mean the motor vehicle, trailer or semitrailer described in this policy. The word ‘trailer’ shall include semitrailer.”
Under the heading, “Exclusions,” it is provided: “This policy does not apply . ... (c) under coverages A and B, while the automobile is used for the towing of any trailer owned or hired by the named insured and not covered by like insurance in the company.”
The great preponderance of, if not all, the evidence showed that W. D. Knoble, who wrote the policy in question, was at the time of its issuance, the general agent of appellant with full power to solicit, issue and deliver the policy to appellees.
Knoble testified that he was connected with the Walker Insurance & Eealty Company, which represented a number of insurance companies including appellant company; that he knew Dr. Eightor and the equipment used by him in managing appellees’ farms, which included a truck with trailer attached; that Dr. Eightor directed him to cover that equipment, truck and trailer, and that he issued and delivered the policy of insurance in question here to appellees intending to cover the truck and trailer, but by oversight the trailer was not mentioned In the policy. He further testified: “Q. How long had this equipment been covered by this- policy, or a similar policy, from your office by a different company? A. The equipment was purchased in 1940. Q. Then the equipment had been covered by a policy from your office since 1940? A. Yes, sir. Q. What was, in fact, a proper description of the equipment you undertook to insure under the policy? A. The proper description of the property I undertook to insure was a .ton and a half International truck with a trailer attached. Q. Has the premium been paid on it? A. The premium would have been $4.75 more if the exact trailer had been described. Q. You knew of the trailer? A. Yes, sir, it was my intention to insure the complete equipment. Q. If you had described the equipment properly and submitted a statement to Dr. Rightor would the premium have been paid? A. Yes, sir. Q. He paid what was required? A. Yes, sir. Q. It was your intention to insure this particular equipment? A. Yes, sir. Q. You didn’t have any instructions from Dr. Rightor or any other person to omit the trailer or any other equipment for the purpose of decreasing the premium? A. No, sir. Q. Have you seen this particular truck and trailer going up and down the streets? A. I have, yes, sir. Q. Did you ever inspect the equipment? A. Yes, sir, on the day of the issuance of the policy. . . .
“Q. The endorsement providing for the semitrailer was left off this policy by an oversight or a mistake? A. By an oversight, or otherwise we intended to insure it. . . . Q. It was merely by reason of an oversight that it was omitted? A. Yes, sir. Q. Previously you had been insuring it without exception? A. Yes, sir. Q. You intended to do it in this case? A. Yes, sir. Q. You knew you were expected to do so by Dr. Rightor? A. Yes, sir. Q. You are familiar with the character of equipment that was being used at the time of the accident? A. Yes, sir. . . . Q. Your agency has authority to issue these policies? A. Yes, sir. Q. It is a general agency in that respect? A. Yes, sir.”
It thus appears that Knoble knew that both the truck and trailer were to be covered by the policy and that he intended to insure both. The evidence is undisputed that a previous agreement existed between Knoble and appellees that this truck and trailer be kept insured from year to year, and pursuant to this agreement Knoble, for approximately four years prior to the issuance of the policy here, had carried in another company, the same risk intended to he assumed by the present policy, but in 1944 insurance was changed to appellant company,'and by an oversight, the property insured here was described as a truck instead of a truck and semitrailer, which was intended to be covered.
By the general agent’s frank admissions he inspected the equipment intended to be insured. He had previously written the risk and was familiar with physical facts relating to the machine — -that is, its general purpose and proportions. Whether a truck, truck with trailer, or truck with semitrailer, the fact remains that Knoble intended to protect appellees from liability occasioned by its operation. The entity was in his presence. A mere error in describing this equipment when writing the policy cannot relieve from liability the company that accepted a premium (though slightly less than the standard charge) to insure it, believing it had, and causing appellees to think so.
On the evidence presented by this record, an oral contract was established by the parties to insure the trailer along with the truck described in the written contract, and we treat the pleadings as amended to conform to the proof.
“According to a uniform holding of this court, the trial court’s findings and judgment will not be reversed, when they are in conformity to the evidence in the case, notwithstanding the pleadings fall short of the facts in evidence, for in such case the pleadings will be considered as amended to suit the facts.” Davis v. Goodman, 62 Ark. 262, 35 S. W. 231.
The acts, in this connection, of the general agent, Knoble, which were within the scope of his authority as general agent, were the acts of his company, appellant, his principal, and were binding on appellant. “Where an agent does anything within the real or apparent scope of his authority it is as much the act of the principal as if done by the principal himself.” Allemania Fire Ins. Co. v. Zweng, Trustee, 127 Ark. 141, 191 S. W. 903.
“This court has held that an agent authorized to issue policies of fire insurance may make a valid parol executory contract to insure or to issue a policy of irisur anee. King v. Cox, 63 Ark. 204, 37 S. W. 877, and Aetna Ins. Co. v. Short, 124 Ark. 505, 187 S. W. 657.” New Hampshire Fire Insurance Company v. Walker, 178 Ark. 319, 11 S. W. 2d 772.
The applicable rule is stated in 29 American Jurisprudence, p. 151, § 135, as follows: “It is generally held that where otherwise valid, oral contracts of or for insurance entered into by general agents or by duly authorized agents acting in such respect within the apparent or ostensible scope of their authority are binding on the-insurance company which they represent. . . . An agent authorized to make the necessary surveys, and negotiate and conclude all the terms of the contract, and to fill up and countersign policies, may bind his company by a parol contract to issue a policy.”
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Minor W. Millwee, Justice.
Appellant, J. W. McCall, and his wife, Lou'McCall, filed this suit to quiet title to a small parcel of land in Baxter county, Arkansas, described as follows: “That part of the northeast quarter of the southeast quarter of section 35, township 20, range 13, west, described as follows: One acre, more or less, lying due east of the Oakland Cemetery tract and extending to the east boundary of said forty.” They alleged that they acquired title to said land by a warranty deed from W. Gr. Shively and wife on July 15, 1944, and that appellees, B. M. Owen, W. M. Owen, and J. W. Owen, claimed some interest in the lands.
Appellees filed an answer and cross-complaint claiming title to the lands in controversy under a deed from Lou McCall dated September 24,1946. They also alleged that the 32-acre tract had been enclosed by a substantial fence for more than 20 years and that appellees and their predecessors in title had been in adverse possession of a small portion of the 1-acre tract claimed by the McCalls for more than 10 years; that appellant, J. W. McCall, was trespassing upon their lands by occupying a cabin on the west side of the tract without right; and that the description in the deed under which J. W. McCall claims title is indefinite and void. They prayed that title to any part of -the 1-acre tract lying within their fences be quieted.
Lou McCall died prior to the trial in chancery court. Since she held title to the 1-acre tract with J. W. McCall by the entirety, the latter, as survivor, proceeded as sole plaintiff. Upon a trial of the issues the chancellor held that appellees had acquired title to the small parcel of land in dispute by adverse possession and a decree was entered quieting their title to the lands lying within the fence which enclosed the 32-acre tract.
The evidence discloses that the deed to appellees of the 3'2-acre tract is described by metes and bounds as lying in section 36, but the fence along the west side of the tract deviates from the section line between sections 35 and 36 so that it encroaches upon section 35 for a short distance enclosing a triangular strip containing approximately one-fourth of an acre. The greater portion of this strip lies in the southeast quarter of the northeast quarter of section 35 and appellant has and claims no title to this portion, but does claim title to the southern portion of the small strip, which lies in the northeast quarter of the southeast quarter of section 35, under the description in the deed from W. G. Shively and wife.
In 1932, the 32-acre tract was owned by Floyd A. Elston and wife who employed M. E. Curlee, a real estate broker, to sell the lands. A deed from the Elstons with the name of the grantee left blank was attached to a memorandum authorizing the bank, where the deed was left, to insert the name of the grantee when a buyer was found. When Curlee closed the sale of the land to Lou McCall in 1939, her name was inserted as grantee according to the written instructions of the grantors. J. W. and Lou Me- Call lived on the 32-acre tract from 1939 until 1946 when M. E. Curlee closed a sale of the tract to appellees. Curlee told appellees the fences were on the line and Lou McCall executed and acknowledged a memorandum in which she agreed to give full possession of the 32-acre tract. Following a description of the tract as employed in the. deed, this memorandum recites, “being all of what was originally known as the Jesse G. or J. G. Stone lands as the same is now fenced and containing 32 acres, more or less, all in township 20 north, of range 13 west.”
M. E. Curlee sold the 1-acre tract to W. G. Shively and wife shortly after Lou McCall purchased the 32-acre tract. The Shivleys bought the 1-acre tract with the understanding that the division fence was on the section line. A short time after purchasing the tract W. G. Shively had the lines surveyed and some dispute arose between him and Lou McCall over the line. However, Lou McCall refused to recognize Shively’s claim to the land within her fence and the McCalls continued to use the strip as a garden spot and later built three small cabins on the disputed strip. When the McCalls purchased the 1-acre tract from the Shivelys for $250 in 1944 a store building was located on that part of the tract lying outside the fence of appellees. According to the testimony of the county surveyor the description employed in the deed from the Shivelys to the McCalls as “1 acre, more or less, lying due east of the Oakland Cemetery tract and extending to the east boundary of said forty” would include a small triangular area of a few feet inside appellee’s fence south of the southernmost of the three cabins as shown on a plat made by the witness and introduced in evidence.
Several witnesses testified that the fence enclosing the 32-acre tract had been maintained for 30 or 40 years on the same lines and that appellees and their predecessors in title, including the McCalls, had been in possession of the enclosed tract during that period using and claiming title to the lands.
It is conceded b}^ appellants that the owners of the 32-acre tract acquired title to the lands in controversy by adverse possession prior to 1938. It is insisted, however, that M. E. Cnrlee acquired title to the 32-acre tract in 1932 and became the owner of both tracts when he purchased the 1-acre tract in 1938; and that he subdivided the lands by thereafter conveying the two tracts according to the political subdivision lines. The evidence does not support appellant’s contention that Curlee became the owner of the 32-acre tract in 1932, or at any other time. Lou McCall did deed the tract to Curlee in 1941, but it is undisputed that this deed was given as security for a loan and that Curlee reconveyed to Mrs. McCall when the loan was repaid in 1943. Curlee had conveyed the 1-acre tract to the Shivelys prior to 1941. It is true that he supervised the property during the' time the deed was held by the bank and before it was sold to Lou McCall, but he had no title.
Moreover, if Curlee had been the owner of both tracts in 1939, appellants’ contention would be without merit. The applicable rule is stated in 11 C. J. S., Boundaries, p. 651, as follows: “A practical location made by the common grantor of the division line between the tracts granted is binding on the grantees who take with reference to that boundary. The line established in that manner is presumably the line mentioned in the deed, and no lapse of time is necessary to establish such location, which does not rest on acquiescence in an erroneous boundary, but on the fact that.the true location was made, and the conveyance in reference to it.” It is clearly shown by the evidence that the 32-acre tract was purchased and sold by Lou McCall with reference to the fence as the division line. By the instant suit appellant attempts to assert rights directly opposed to the claim made by him and his wife during the 7-year period they held possession of the 32-acre tract, and contrary to the written sales contract executed by Lou McCall when she conveyed the lands to appellees.
The finding of the trial court that appellees-acquired title to the lands within their fences by adverse possession is fully supported by the preponderance of the evidence, and the decree is accordingly affirmed. | [
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Holt, J.
June 27, 1944, R. L. Rinehart and wife executed to appellee, Farm Bureau Lumber Corporation, a timber deed to certain timber on land involved here. The deed provided that the lumber corporation should have until December 31, 1945, within which to cut and remove the timber conveyed, and the further provision “with the understanding that if requested, the grantors will give an additional three months without charge. ’ ’
This timber deed was not recorded until November 16,1945.
September 10, 1945, appellants, T. L. Thackston and wife, entered into a contract to purchase the land here involved from R. L. Rinebart and wife, and the contract to purchase was consummated by the execution and delivery, on September 29, 1945, of a warranty deed by the Rineharts to the Thackstons. This warranty deed contained the usual warranty against all claims whatsoever and that the land was free from all liens and incumbrances. It is undisputed that at the time the Rineharts made this deed to the Thackstons, the Thackstons were advised that a timber deed in favor of appellee, lumber company, was outstanding which gave the appellee, company, until December 31, 1945, within which to cut and remove the timber, but had not been recorded. There is a dispute as to whether the Thackstons also had knowledge that the timber deed contained a provision for extension without charge for ninety days after December 31, 1945. November 16, 1945, the Rineharts executed an extension agreement to the lumber company to expire March 31, 1946.
Appellee, Farm Bureau Lumber Corporation, brought the present suit February 8,1946, against the Thackstons to recover the value of the timber, alleging that the Thackstons had prevented the cutting and removal thereof.
Appellants ’ answer denied all material allegations in appellee’s complaint and further alleged by way of cross-complaint that if such timber deed existed, they had been defrauded by the Rineharts, ‘ ‘ and if it be determined upon the trial of the issues in this cause that the said R. L. Rinehart, through false and fraudulent representations, sold said property to the defendants, and that plaintiff (appellee company) has a prior claim, the said R. L. Rinehart should respond to defendants (appellants) in damages to the amount of any prior claim established by said plaintiff upon final hearing.”
His prayer was “that the plaintiff’s complaint be dismissed for want of equity, that the said R. L. Rine hart be made a party to this action, and in case judgment be rendered against defendants, (appellants), they in turn have judgment against the said R. L. Rinehart. ’ ’
After making the Rineharts parties to the suit and upon a trial, the court found in favor of appellee, Farm Bureau Lumber Corporation, against appellants for the sum of $2,000.
The court denied appellants’ prayer for a judgment and relief against the Rineharts.
This appeal followed.
On the record presented, we have reached the conclusion that the court correctly found and entered a decree in favor of the appellee, lumber company, against the Thackstons for the value of the timber under the terms of the timber deed, supra, from the Rineharts to it, but erred in denying the relief prayed by the appellants, the Thackstons, against the Rineharts.
As has been indicated, it appears to be undisputed that at the time the Rineharts delivered their warranty deed to the land involved here, the Thackstons were informed and had knowledge of the unrecorded outstanding timber deed and of the provision therein that the lumber company should have until December 31, 1945, to cut and remove the timber, although the warranty deed contained nothing to indicate any outstanding claims or liens of any kind.
While the Thackstons denied any knowledge of the extension provision in the timber deed, the testimony' on this point is somewhat conflicting and we are unable to say that the finding of the trial court thereon, in favor of appellee, lumber company, is against the preponderance thereof.
In Broderick v. McRae Box Co., 138 Ark. 215, 210 S. W. 935, this court said: “Prior to the execution of the deed to the land from Hall to Broderick, Hall, by a written contract, sold and conveyed the timber to a third person. According to the testimony introduced for the defendants, McRae Box Company and Hale, Broderick was informed by Ms vendor before the execution of the deed by the latter to the former that the timber had been sold. This was actual notice to Broderick and put him on inquiry as to the rights of the parties who had purchased the timber. (Citing cases.) It is true that Broderick denied that Hall told him that he had sold the timber at the time he made the contract with him for the sale ■of the land; but the testimony as to notice need only be established by a preponderance of the evidence.”
We are unable to find any evidence of fraud,'and there is no allegation, or proof, of mistake as to any provisions of the warranty deed.
In these circumstances, as between the Thackstons and the Rineharts, the rule is well established • that the Rineharts would be bound by the covenants of warranty in their deed to the Thackstons.
The rule is stated in Texas Company v. Snow, 172 Ark. 1128, 291 S. W. 826, as follows: “Knowledge, or notice, however full, of an incumbrance, or of á paramount title, does not impair the right of recovery upon covenants of warranty. The covenants are taken for-the protection and indemnity against known and unknown incumbrances or defects of title,” and in Broderick v. McRae Box Co., supra, this court said: “The deed in the absence of fraud or mistake is the final contract between the parties and cannot be varied or modified by parol evidence. In the application of this rule, this court has held that an oral agreement between the vendor and purchaser of land made at the time of the execution of the deed to the effect that crops growing on the land shall be excepted from the conveyance and remain the property of the Vendor is of no effect and may - not be proved by the vendor. Gibbons v. Dillingham et al., 10 Ark. 9, 50 Am. Dec. 233, and Gailey v. Ricketts, 123 Ark. 18, 184 S. W. 422. So, too, it was held in Hardage v. Durrett, 110 Ark. 63 160 S. W. 883, L. R. A. 1916E, 211, Ann. Cas. 1915D, 862, that, parol evidence is not admissible to show that a covenant against encumbrances was not intended by the parties to apply to a particular encumbrance, in the absence of a Question of fraud or mistake, and when no exception to that, effect is contained in the deed itself.”
It follows that the decree of the lower court in favor of appellee, Farm Bureau Lumber Corporation, is affirmed, and the decree in favor of the Rineharts on the cross-complaint of the Thackstons, is reversed and the cause remanded with directions to render a decree in favor of the Thackstons against the Rineharts for $2,000.
Costs to be divided equally between the Rineharts and the Thackstons. | [
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Ed. E. MoFaddin, Justice.
This is a divorce suit; and the decree of the chancery court must be reversed, and the cause dismissed under the authority of Cassen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585. In that case we held that a plaintiff must be a bona fide resident of Arkansas, and have the animus manendi — that is, he must be domiciled here — before he can invoke the jurisdiction of the courts of this State to obtain a divorce. The proof in the case at bar falls short of this residential requirement.
Joseph Swanson (appellee) and. Maudie Swanson (appellant) were married in Oklahoma in 1925. They have continued to live in Oklahoma, except when Joseph Swanson came to Arkansas in August, 1945, which trip will be discussed presently. The parties lived together as husband and wife -from 1925 until shortly prior to September, 1939, when Maudie Swanson filed — in Osage county, Oklahoma — a petition for separate maintenance. Joseph Swanson, by cross complaint in that case, sought a divorce on the grounds of indignities; but the divorce was denied him, and separate maintenance was awarded Mauclie Swanson for herself and the two children born of the-marriage. After the denial of his prayer for divorce, Joseph Swanson wrote his wife a letter, which read:
“Jan. 15, 1943
“Maudie Swanson
“908 No. Cincinnati
“Tulsa, Oklahoma
“Maudie:
“It is very foolish to go on as we have for the past several years. Now, that I have a job I would agree to a reasonable settlement. If you won’t agree to some kind of reasonable terms.I’ll just go, ahead as I have always planned and save enough money to get a divorce from another state. I am going to divorce you if it is the last thing I ever do. I hope you can see1 things clearer than you have in the past and we can get this settled which will be much better for us all.
“Yours truly,
“J. N. Swanson.”
In 1944, Joseph Swanson filed a suit for divorce in Osage county, Oklahoma, claiming indignities and other grounds. Whether this suit is still pending is a disputed question; but the answer is immaterial to our decision here. > At all events, no divorce decree was obtained by Joseph Swanson in that case. On August 13, 1945, he came to Hot Springs, Arkansas; and, at an undisclosed date in November, 1945, filed suit for divorce in Garland county, Arkansas, but took a voluntary nonsuit on December 12, 1945.
Then, on April 8, 1946, Joseph Swanson filed the present divorce suit in Garland county, alleging as grounds, three-years separation and also indignities (i. e., the 5th and 7th grounds of § 4381, Pope’s Digest, as amended). The evidence is voluminous, and not very complimentary to either party; but there is no occasion for us to detail any of it here, except the meager portion now to be quoted, that bears on tbe issue of whether Joseph Swanson ever became a bona fide resident of Arkansas within the rule announced in the case of Cassen v. Cassen, supra.
On May 15,1946, Joseph Swanson stated in his deposition: “ Q. How long have you continuously lived and resided here in Hot Springs, Arkansas, with Mr. Struble? A. Since August 14,1945, up to this date. ’ ’
At the hearing before the court on October 15, 1946, Joseph Swanson was cross-examined about the letter he wrote to Maudie Swanson, as previously copied; and the following questions and answers appear:
‘ ‘ Q. What did you come to Arkansas fori A. I moved to Arkansas. Q. For what purpose? A. To live here, and I wanted to get a divorce, too. Q. You came here for the purpose of getting a divorce? A. Not exactly; I told you I moved here. But I would like to have a divorce, too. Q. You, of course, knew when you came over here about the three-year statute in this state? Did you know about that? A. Yes, I believe I did.
“Q. I say you knew about it when you moved over here. A. Yes, I knew about it. Q. If these allegations of indignities are true and the proof of them are true, why didn’t you establish that fact in your Oklahoma court over there where you people have always lived? A. That is something up to the lawyers; I don’t know. They fooled around with it for a year. Q. What did they ‘fool around with it’ for? A. I don’t know; I know I got hold of my lawyer and told him if he couldn’t get something done, to stop it. Q. Did you try to get the case set down? A. Yes, and then he moved to Nevada and I told him to drop the case. Q. That was the last case? A. Yes.”
Joseph Swanson was corroborated on the fact of his actual presence in Arkansas; but such actual presence is far from the animus manendi of remaining in Arkansas and becoming domiciled here. This he did not show. Rather, when we consider: (1) his two previous unsuc cessful efforts in Oklahoma to obtain a divorce; (2) his letter to his wife announcing that he would get a divorce in “another state”; (3) his previous divorce suit in Garland county; and (4) his own admission that he came to Arkansas “to' live here, and-1 wanted to get a divorce, too ’ ’ — when we consider all these facts, coupled with his absolute failure to testify or offer any evidence of any bona fide intention to'make Arkansas his domicile — we reach the conclusion that Joseph Swanson came here to get a divorce, and not to make Arkansas his domicile. Therefore, under the rule of the Cassen case the Garland Chancery Court erred in awarding a divorce to Joseph Swanson.
The divorce decree was granted by the chancery court on November 19, 1946; and the opinion in Cassen v. Cassen, supra, was not delivered by this court until April 28, 1947. Nevertheless, when Cassen v. Cassen overruled the holding in Squire v. Squire the effect was the same as if the Squire case had never been the law. See Carter Oil Co. v. Weil, 209 Ark. 653, 192 S. W. 2d 215. Therefore the decree of the Garland Chancery Court is reversed, and the cause is dismissed.
There have been various applications for suit money, court costs, maintenance and attorney fees. The trial court at one time .awarded Maudie Swanson $150 attorney fees and $50 suit money; and, later, allowed $100 as additional attorney fees. Under our order Joseph Swanson has paid $110 on the costs in this court. We now order him to pay the balance of all unpaid costs in both courts. After reviewing the entire record, we deny Maudie Swanson any further or additional attorney fees; and we also set aside all orders in this case made by the Garland Chancery Court conceiming prospective payments for support or alimo^r. While the Arkansas courts have jurisdiction, in a case such as this, to award separate maintenance, nevertheless, we think justice will best be served by remitting these parties to the courts of Oklahoma — the State of their domicile, as disclosed by this record — for any support money and maintenance orders. Previous orders for separate maintenance have been made there.
Reversed and dismissed.
McHaney, J., dissents.
That was case No. 19780 in the Garland Chancery Court. All the pleadings in that case are not brought into the present record; but the record here does show a motion filed in that case, and also shows that Joseph Swanson was cross-examined in this suit about that case.
186 Ark. 511, 54 S. W. 2d 281. | [
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Griffin Smith, Chief Justice.
The appeal requires construction of a contract, the Chancellor having held when the case was transferred from Circuit Court on the defendants’ prayer for reformation that the plaintiffs, a partnership doing business as Block Realty Company, were entitled to a commission of $650 from the Ellises, husband and wife, who sold their home on North Jackson Street in Little Rock to Dr. and Mrs. Doyle W. Fulmer.
Essentials of the contract are copied in the margin '
Material facts are not disputed. Dr. and Mrs. Ellis were advertising the property for sale. The realty Company sent James L. Banks, Jr., to discuss a listing. When Mrs. Ellis explained that her husband would not be in Little Rock until the following Sunday, Banks made an appointment for that date, in consequence of which the contract was procured. Banks, as a witness, readily admitted he told appellants he thought the Company would find a purchaser who would pay the price asked. During the fifteen-day period Banks took several “prospects” to see the property, but. none was interested.
C. I. Wallace, another Company agent, called Mrs. Ellis and made an appointment to show the place to Mrs. Fulmer the following day. As an exhibit to testimony given by Wallace he filed Mrs. Fulmer’s letter to the Company, dated October 9th, authorizing purchase for $13,000 cash. Wallace insisted that Mrs. Ellis did not object when he took Mrs. Fulmer to see the home. On the contrary, “she was very nice in cooperating”.
After receiving Mrs. Fulmer’s written proposal to' purchase, Wallace telephoned Mrs. Ellis, who replied that Dr. Ellis was out of the city, but she promised to discuss the matter with her husband when he returned. Mrs. Ellis telephoned later and said she was not interested in Mrs. Fulmer’s offer. When asked whether he tried to get Mrs. Ellis to make a contract, Wallace replied, “That is correct”. He then stated in substance that the agency had not procured a customer'who was-ready, willing, and able to pay $15,000 for the home. The witness was asked whether, when he took Mrs. Fulmer to see Mrs. Ellis, he knew the contract had expired. His reply was: “It expired that night, L believe. If I recall correctly, it expired the night that I called her; that was the last day of the contract”. And again: “You didn’t ask for a new contract? Your written contract had expired, but you asked for permission to bring the customer out?” Answer, “That is correct”. '
Appellee’s complaint contained the allegation that “The time set forth in said listing contract expired before a suitable purchaser was found, but the day follow ing the expiration of said listing contract, plaintiff’s agent, Cliff Wallace, found a prospective purchaser”.
Dr. Doyle W. Fulmer testified that he authorized Mrs. Fulmer to make the $13,000 offer submitted by Wallace, but he did not see the place until approximately two weeks after it had been shown to Mrs. Fulmer. He did. not make an inspection during the original negotiations with Wallace. About October 22, after Mrs. Fulmer’s offer had been rejected when made through the Block agency, Dr. Ellis called Dr. Fulmer and asked whether he was still interested in the property. The reply was in the affirmative, “provided the price is as originally offered”. Dr. Fulmer had at no time considered paying more than $13,000.
Mrs. Fulmer testified that when she went with Wallace to see the place October 9th she made the offer of $13,000, adding that “not one penny more” would be paid. A check for $100 was given Block by Mrs. Fulmer to bind the offer. This money was later, returned. When a request was made for the refund Wallace first stated he did not believe the property could be bought for $13,000. Later he reported the offer had been definitely rejected. As an approach to the final transaction, Mrs. Ellis called Mrs. Fulmer and explained that while she thought the property to be worth $15,000, “she would take a little less”. It was not until five or six telephone conversations had been engaged in directly between the Ellises and the Fulmers that the deal was closed. In the meantime Block had seemingly discontinued efforts to get the parties together on a price. Mrs. Fulmer told Wallace she was seriously considering buying directly from the ownérs, and he replied, ‘Go right on through: you have a good buy there”.
Mrs. Ellis testified that after she had advertised the place at $15,000, Baymond Block and James Banks, Jr., came to see her. Both were “enthusiastic” in their belief that the amount asked could be procured. On the day following termination of the fifteen-day period Baymond Block called by telephone. Mrs. Ellis “was on the point of reminding him” that the contract was at an end, but before the intended call could be made Block telephoned. One of his first statements was, “I suppose you realize this is the last day of our contract. We would like to renew it: wouldn’t you?” Mrs. Ellis replied, “No, we are not interested in carrying it, any further. Since the contract has expired, won’t you please come out and remove your [advertising] signs? because I suppose that is your part of it”. Mrs. Ellis then testified:
“He talked and talked of all that they could do, and then I said, ‘Well, you .haven’t done it. It does not look like you are going to get our price, so we will just go on our own from here out, because this is the end of it. We are not interested in extending the contract” ’.
Other expressions of a similar nature were used. The net result of all testimony is that Mrs. Ellis explicitly told Block there would not be an extension of the contract. Dr. Ellis, when forming the purpose to sell, had concluded to move to Fayetteville, where he was connected with the University; and, as Mrs. Ellis expressed it, “our time was running out”.
We agree with the Chancellor that facts did not warrant reformation of the contract. There was no mutual mistake, nor were the explanations and representations made by Banks to Ellis such as to support the allegation of fraud in procuring the signatures. Irrespective of what was said before the agreement was executed, Dr. Ellis had the opportunity to read the writing which embraced final understandings, and if he did not do this it was an act of individual carelessness as to which it was too late to recede. Denial of reformation, however, does not exclude relief.
When Mrs. Fulmer was taken by Wallace to inspect the property, the contract was treated as having terminated through expiration of the fifteen-day period. The original listing was given in order that the Ellises might realize $15,000 net. They were only willing to pay a commission above this sum. Block must have understood this, because he endeavored to procure a renewal or extension. The contractual language fixing fifteen days “. . . or thereafter until notified by us in writing ” is of no benefit to appellees because the requirement that notice should be in writing is waived. The “period above stated” — during which a commission would be payable if the property were sold “no matter by whom or m what manner” — is not a sufficient predicate for the demand.- The term had expired before Dr. and Mrs. Ellis sold for $13,000. The expression, “according to the price and terms of payment herein specified” clearly has reference to $15,750, or $15,000 net. The provision, “. . . or any price and terms we may hereafter authorize them in writing or verbally to accept” is of no value to appellees because there was no such authorization.
The decree is reversed and the cause dismissed.
“We have this day placed with Block Realty Company for sale, the property described [on the reverse side of this card]. The said . . . Company shall have the sole and exclusive agency of the property from fifteen days [from September 23, 1946] and thereafter until notified by us in writing of its withdrawal from sale, and we authorize [a sale to be made] . . . according to the price and terms of payment herein specified, or any price and terms we .may hereafter authorize them to accept, . . . price of property to be $15,000 net; $15,750 gross. If said property be sold or disposed of during the period above stated, no matter by whom or in what manner, or after the above period, on information obtained through this agency, we agree to pay to the Block Realty Company a commission of five per cent. . . . We also agree to offer this property only at the price of $15,750 and on the terms in this contract. . . .”
In Restatement of the Law of Contracts, § 407, p. 768, the rule is said to be that whenever two persons contract, no limitation self-imposed can destroy their power to contract again. | [
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Minor W. Millwee, Justice.
Appellee, Lee Wilson & Co., was plaintiff in the circuit court in an action against appellant, St. Louis-San Francisco Railroad Company for damages by fire to a carload of alfalfa meal. Plaintiff alleged that on June 20,1946, it delivered 113 bags of alfalfa meal to defendant for shipment at Armorel, Arkansas; that the meal was accepted by defendant, placed in a boxcar'and bill of lading issued and signed by defendant’s regularly appointed agent, E. M. Regenold. It was further alleged that the meal was' thereafter destroyed by fire caused by a spark from defendant’s engine and was not delivered as directed by the bill of lading. There was a prayer for judgment for $351.71, the alleged value of the meal destroyed, and for interest and costs.
Defendant answered denying the allegations of the complaint. At the conclusion of plaintiff’s testimony, defendant moved that the court take the case from the jury and find for defendant on the ground that the proof failed to sustain the allegations of the complaint.
The trial court held the proof insufficient to sustain that part of the complaint which alleged the fire was caused by the locomotive of defendant and withdrew that issue from the jury’s consideration, but overruled that part of the motion relating to defendant’s liability for the loss under the shipping contract. After defendant introduced its evidence on the latter issue, each party requested an instructed verdict in its favor. Thereupon, the trial court found for plaintiff in the sum of $351.71, which the parties agreed to be the value of the alfalfa meal destroyed. Defendant has appealed. Plaintiff has cross-appealed from the action of the trial court in withdrawing from the jury the consideration of the question whether defendant’s locomotive caused the fire.
Plaintiff conducts extensive farming operations in the vicinity of Armorel, Arkansas, where it maintains a warehouse from which it makes carlot shipments of cotton, cottonseed, alfalfa meal and soybeans. Defendant does not maintain a freight station at Armorel, but freight service is provided over its line from Blytheville, Arkansas, trips being made every other day by the Blytheville switching crew. Prior to June 19, 1946, defendant’s crew placed two cars on the loading track which runs alongside plaintiff’s warehouse. On June 19th .the loading of one car had been completed and the other was loaded in the west end with.alfalfa meal. The half loaded car was switched to the main track where it was attached to an empty car and returned to the siding for further loading. The loading operation was then completed and the car was sealed and a bill of lading issued by E. M. Regenold, as agent for the defendant.
A fire was discovered in the west end of the car on the morning of June 20th and 113 bags of meal were destroyed. Regenold notified defendant of the fire and the burned meal was replaced by other meal and the car resealed with a new serial number which was noted on the bill of lading. On the same date the reloaded ear was hauled to its .destination by the railway company.
E. M. Regenold is plaintiff’s manager at Armorel. ■Several years prior to the fire., defendant gave Regenold written authority to sign bills of lading for the railway company on shipments of cotton and cottonseed made by plaintiff. This authority was renewed from year to year. Regenold testified that for five years, or longer, he had signed bills of lading, not only for the shipment of cotton and cottonseed, but also for alfalfa meal and soybeans, and that defendant had accepted these shipments without objection until after the fire occurred.
There was some dispute of this testimony by defendant’s agent at Blytheville, Arkansas, who testified that he had made protests to Mr. Vance, plantiff’s office man at Armorel, prior to the fire. A letter from the Blythe-ville agent to Regenold, written several months after the fire, was introduced in evidence. This letter discloses that Regenold continued to sign bills of lading for shipments of alfalfa meal and soybeans after the fire, and he was asked to discontinue this practice. The Blythe-ville agent also testified that, about two years prior to the writing of this letter, a similar letter had been written to Vance, but no such letter was introduced in evidence.
On the direct appeal it is first contended by defendant that there was no delivery of the car of alfalfa meal to it prior to the fire damage. Both parties agree that the rule to be applied in determining this question is stated in Bogart & Co. v. Wade, Receiver, 132 Ark. 49, 200 S. W. 148, as follows: “The test as to whether the relation of shipper and carrier had been established is: Had the control and possession of the cotton been completely surrendered by the shipper to the railroad company? Whenever the control and possession of goods passes to the carrier and nothing remains to be done by the shipper, then it can be said with certainty that the relation of shipper and carrier has been established. Railway Co. v. Murphy, 60 Ark. 333, 30 S. W. 419, 49 Am. St. Rep. 202; Pine Bluff & Arkansas River Ry. Co. v. McKenzie, 75 Ark. 100, 86 S. W. 834; Matthews & Hood v. St. L., I. M. & S. Ry. Co., 123 Ark. 365, 185 S. W. 461, L. R. A. 1916E, 1194,”
Defendant relies on the Bogart case, supra, for reversal here, but the facts are distinguishable from those in 'the instant case. In that case plaintiff placed the cotton on the carrier’s platform where it remained 8 or 10 days without shipping orders being given before it was damaged by fire. The cotton was not loaded and as stated by the court: “The only issue in the case was whether or not the cotton was placed on the platform for .immediate shipment and received by the railroad company for that purpose. ’ ’ The evidence on that issue being conflicting, it was held that error was not committed by the trial court in refusing to give a peremptory instruction in favor of the plaintiff.
The facts in the instant case are similar to those in Pine Bluff & Arkansas River Ry. Co. v. McKenzie, supra, where the commodity was burned about 3 a. m. of the day on which the carrier’s conductor had promised to move the car. Mr. Justice Battle, speaking for the court, said: “Here appellant, in pursuance of its custom, at the request of the appellee, had left cars on its sidetrack, with the agreement, implied if not expressed, that it would remove the cars the next day, if they were loaded, and carry them on to their destination. Notice of that fact was given to appellant. The cars were loaded and closed. The control and possession of their contents were completely surrendered to the railroad company. Nothing remained to be done by the appellee. The cotton and seed awaited the coming of the appellant’s train. The cars were in its possession, and were the receptacles in which it accepted the delivery of the cotton and seed. They were left there for that purpose and with that understanding. The delivery was complete, and appellant is responsible for their loss.”
Appellant also relies on t'lie case of Matthews & Hood v. St. L., I. M. & S. Ry. Co., supra. There the railroad had no agent at Gasset, the point of shipment, nor was a bill of lading issued. According to custom, a receipt was to be issued to the shipper by the carrier’s conductor after the latter was notified that the car was loaded. The car was loaded and destroyed by fire before the shipper noti fied the carrier that it was ready for shipment. The case was distinguished from the McKenzie case, supra, and the court said: “We do not think under the facts of the present case that there was any delivery of the cotton. There could have been none until the conductor had been notified that the car was loaded and ready for immediate shipment, and had accepted the same either verbally or by .issuing a conductor’s receipt according to custom.”
Under the facts in evidence in the instant case the trial court, sitting as a jury, was warranted in concluding that the delivery of the car of meal to defendant for shipment had been completed at the time the fire occurred. The car was upon the defendant’s sidetrack and had been loaded, closed, sealed and the bill of lading issued by Regenold, whose authority to act as defendant’s agent had not been questioned.
Defendant also insists that even though Regenold had authority to sign bills of lading for the shipment of alfalfa meal, still plaintiff is bound by the terms of § 4, paragraph “f,” of the contract of shipment appearing on the back of the bill of lading. The case of Chickasaw Cooperage Co. v. Y. & M. V. Ry. Co., 141 Ark. 71, 215 S. W. 897, is said to be authority for defendant’s contention. In that case the commodity was destroyed by fire, under conditions similar to those in the instant case, at Clarksdale, Mississippi, where the railway company maintained a regular freight agency. This court held that there was no delivery where the.loaded car was on the siding until it was attached to a train, even though a regular freight agency.was maintained, under the following provision of the bill of lading: “Property destined to or taken from a station, wharf or landing at which there is no regularly appointed agent shall be entirely at risk of owner after unloaded from cars or vessels, and when received from or delivered on private or other sidings, wharves or landings shall be owner’s risk until the cars are attached to and after they are detached from trains. ’ ’
In other words, this court held that the second clause of the above paragraph was applicable to a station where there was a regularly appointed agent. This case was decided in 1919. Two years later the U. S. Supreme Court placed a different construction on the identical provision in the case of Yazoo & M. V. R. Co. v. Nichols & Co., 256 U. S. 540, 41 Sup. Ct. 549, 65 L. Ed. 1081. The court held that the second clause of the provision of the bill of lading, like the first, was applicable only to stations where there was no regularly appointed agent. Mr. Justice Brandéis, speaking for the court, said: “It could not have been intended that at stations where there are regularly appointed agents outgoing loaded cars for which bills of lading have issued and which are left standing on a siding solely to await the carrier’s convenience are to be at the risk of the shipper.”
The above provision, which was construed by this court and the U. S. Supreme Court, was a part of the Uniform Bill of Lading authorized by Congress and approved by the Interstate Commerce Commission. We have pointed out the conflicting interpretations placed on the provision to demonstrate that we would feel bound' to follow the construction adopted by the U. S. Supreme Court if we were again confronted with the same question.
The provision of the bill of lading involved in the case at bar is: “Property destined to or taken from a station, wharf, or landing at which there is no regularly appointed freight agent shall be entirely at risk of owner after unloaded from cars or vessels or until loaded into cars or vessels, and, except in case of carrier’s negligence, where received from or delivered to such stations, wharves or landings shall be at the owner’s risk until cars are attached to and after they are detached from locomotive or train or until loaded into and after unloaded from vessels.” This paragraph is also a part of the Uniform Bill of Lading approved by the Interstate Commerce Commission, and it is not unreasonable to assume that the change of wording might have resulted from the interpretation placed on the former provision by the U. S. Supreme Court.
Was Regenold the “regularly appointed freight agent” of the defendant within the meaning of this provision of the shipping contract? When the evidence is given its highest probative value in support of the trial court’s finding on this issue we hold that he was, and that the above provision of the shipping contract is inapplicable here. It is true that Regenold was not a salaried employee of the defendant and that there was no regular freight depot maintained by defendant at Armorel. However, the defendant authorized and permitted Regenold to perform the duties of a freight agent in signing bills of lading for the shipment of commodities by the plaintiff. He was defendant’s regularly constituted and appointed agent for this purpose, and the arrangement was for the mutual benefit of the parties. The testimony shows that defendant ratified the unauthorized acts of Regenold in signing bills of lading for shipment of alfalfa meal. It is well settled that when a principal has knowledge of the unauthorized acts of his agent and remains silent when he should speak, or accepts the benefits of such acts, he cannot thereafter be heard to deny the agency, but will be held to have ratified said agent’s unauthorized acts. Coffin v. Planters’ Cotton Company, 124 Ark. 360, 187 S. W. 309, and cases there cited; Kirkpatrick Finance Co. v. Stotts, 185 Ark. 1089, 51 S. W. 2d 512; Restatement of the Law of Agency, Vol. I, § 94.
The delivery of the alfalfa meal having been completed when the fire occurred, defendant became liable for the loss and the judgment of the trial court is affirmed on the direct appeal. It, therefore, becomes unnecessary to determine the issue raised by plaintiff on the cross appeal, i. e., whether the trial court erred in withdrawing from the jury’s consideration the question of defendant’s responsibility for the origin of the fire. | [
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Robins, J.
The chancery court, in appellee’s suit against her stepchildren, the appellants, granted her prayer that title to two parcels of real estate in Hemp-stead county be divested out of appellants, as heirs at law of their father, G. T. Crews, and invested in her; and they have appealed.
One of these tracts is in the south half of the southeast quarter of section 27, township 12, south, range 24, west, and will be referred to as the ‘ ‘ home place. ’ ’ The other is certain business property situated in block 36 of the City of Hope, which will be referred to as the “business property.”
Appellee is 71 years old and was first married to W. O. Shipley, who died in 1936. For many years appellee and Mr. Shipley had owned as partners the “Shipley Studio,” a photographic shop in Hope. They both worked in the shop and appellee acquired great proficiency in taking photographs and in the development and printing thereof.
Upon the death of Mr. Shipley the studio became the property of appellee and she continued to operate it, doing most of the work herself.
Appellee and George T. Crews were married in July, 1938. He was then clerking in a dry goods store at a salary of $12.50 a week. In addition to that income he was receiving a small pension as a veteran of the Spanish-American War. He owned no property. A few weeks after their marriage Mr. Crews began working in the studio and continued to do so until it was sold. Appellee continued to do the dark room work, developing, drying and retouching.
In 1940, appellee executed to Mr.' Crews a deed for a half interest in the “home place.” Her explanation of this conveyance was that, the property required some repairs, some of which Mr. Crews made; and he said that “as he was going to put his labor and his money . . . into the improvements, if • anything happened to me, he wonld lose all that and have no home to go to as my heirs would inherit the place. He said that if we owned the place, the home, in the entirety . . . if I would execute a deed to that effect, if I died first he would have a home and my heirs could not take it away; on the other hand, if he went before I did, then the place would be all mine. That is the reason I executed that deed.” However, the effect of her deed was not to create an estate by the entirety, but to vest in Crews an undivided one-half interest in the property.
On December 20, 1944, the “business iDroperty” was purchased from Carrel for $8,000, which was paid by a check drawn on the bank account of “Shipley Studio.” ■The conveyance from Carrel was made to G. T. Crews and Rosa Crews, his wife. The $8,000 in the bank account arose from a sale of part of the “home place” for $3,000, the sale of the studio for $1,000, and from the earnings of the studio, which became very profitable after location of the Proving Grounds near Hope by the government in 1941.
In 1945, appellee joined with her husband in exeT cuting a deed conveying the “business property” to Miss Doris Shields who, in turn, conveyed it to Mr. Crews, there being no pecuniary consideration for either transaction. Appellee testified that she executed this deed at the request of her husband and in consideration of his promise that he would will the iDroperty to her. She further testified that he later told her he-had executed such a will, and as to this she was to some extent corroborated by another witness, who stated that on one occasion she heard Crews tell appellee that he had attended to the will and that it was in the lock-box. No will executed by Crews was ever found.
Appellants recognize the rule that a parol contract to execute a will may be enforced in equity where such contract is founded on a valid consideration, duly performed, and where the facts as to the consideration and the agreement are established by clear, cogent and convincing testimony. Naylor v. Shelton, 102 Ark. 30, 143 S. W. 117, Ann. Cas. 1914A, 394; Speck v. Dodson, 178 Ark. 549, 11 S. W. 2d 456.
But appellants argue that this rule may not be ap-^ plied here because, to do so would result in allowing proof of such oral agreement to vary the terms of a written instrument — the deed. We do not agree. We have frequently held that parol testimony may be received to show the actual consideration for which a' deed is executed, and to show that such consideration was different from that expressed in the writing. Pate v. Johnson, 15 Ark. 275; St. Louis & North Arkansas Railroad Company v. Crandell, 75 Ark. 89, 86 S. W. 855, 112 Am. St. Rep. 42; Morton v. Morton, 82 Ark. 492, 102 S. W, 213; Mewes v. Mewes, 116 Ark. 155, 172 S. W. 853; Lay v. Gaines, 130 Ark. 167, 196 S. W. 919; Hartsfield v. Crumpler, 174 Ark. 1179, 297 S. W. 1012; Rowland v. Ward, 178 Ark. 851, 12 S. W. 2d 785; Seivell v. Earkey, 206 Ark. 24, 174 S. W. 2d 113; Dickey v. Stevens, 208 Ark. 111, 184 S. W. 2d 955.
The deed executed by appellee and Crews to Doris Shields recited a consideration of ten dollars and the purpose of the parties to have the grantee- reconvey to Crews, so as to vest title in him. The parol testimony to the effect that the real consideration of this conveyance was the promise of Crews to devise the property to appellee was admissible under the rule laid down in the above cited authorities.
It is finally argued that the testimony is not sufficient to establish the oral contract relied on by appellee. We have reviewed all the evidence carefully, and, when it is considered along with the undisputed facts as to the situation of these parties, and the origin of the funds with which this property was. bought by appellee and Crews, we conclude that the agreement asserted by appellee was shown by evidence measuring up to the required standard.
■ However, we do not find that the agreement to devise, according to the testimony of appellee, extended to the interest of Crews in the “home place.” Appellee conveyed the half interest in this 'property to Crews in 1940, and there is no evidence reflecting that an, agreement to will it to her was made at that time. Of course, if her later conveyance of the “business property” had been made upon consideration of a promise by Crews to devise to her his interest in the “home place,” as well as the “business property,” such an agreement would have justified in entirety the decree of the lower court. But her testimony showed that the promise to devise, made by Crews at the time of the transfer of the “business property,” referred only to that property/ Appellee testified: “He said . . . that if I would make the deed giving him — deeding the place over to him, you know that business property, he in turn would make a will leaving it to me, then, at his death.” ' Nowhere in her testimony is there any statement by her that Crews had agreed to will to her the half interest in the “home property. ’ ’
While appellee testified that she thought the deed she was executing to Crews would create an estate by the entirety as to the “home place,” it was not shown that any fraud or deception, as to the contents of the deed, was practiced on her. Mere mistake of a party as to the legal effect of an instrument does not vitiate the instrument or afford ground for reformation. Louis Werner Sawmill Co. v. Sessoms, 120 Ark. 105, 179 S. W. 185; Security Life Insurance Company v. Leeper, 171 Ark. 77, 284 S. W. 12; Magnolia Petroleum Company v. McFall, 178 Ark. 596, 12 S. W. 2d 15; Fullerton v. Storthz, 182 Ark. 751, 32 S. W. 2d 714; Clark v. Trammell, 208 Ark. 450, 186 S. W. 2d 668; Booe v. Booe, 210 Ark. 709, 197 S. W. 2d 474.
It follows that the lower court’s decree as to the “home place” must be reversed, and that part of the decree pertaining to the “business property” must be affirmed; and, since title to real property is involved, this cause is remanded to the lower court with directions to enter a decree in accordance with this opinion, costs of both courts to be adjudged against appellants. | [
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Ed. F. McFaddin, Justice.
On September 23, 1947, appellant, Floyd Lee Poole, was convicted of rape (§ 3403, Pope’s Digest), and sentenced to death,. He brings this appeal; and § 4257, Pope’s Digest, prescribes the extent of the review. There were eight objections made by the defendant in the course of the trial. We find it necessary to discuss only the one objection that necessitates a reversal.
On July 19, 1945, an information was filed charging Floyd Lee Poole (hereinafter referred to as ‘ ‘ defendant”) with the crime of rape, alleged to have been committed on April 13, 1945. On July 20, 1945, the circuit court — upon -suggestion that insanity, might be an issue — ordered the defendant committed to the State Hospital for examination as provided by Initiated Act No. 3 of 1936 (see p. 1384, et seq., of the Acts of 1937). A report was duly made by the superintendent of the State Hospital (who, at that time, was Dr. A. O. Kolb) under date of August 21,1945, stating that the defendant was then insane and was probably insane at the time of the alleged offense.
Thereupon — on February 18,1946, — the circuit court made an order (hereinafter referred to as the “1946 order”), reading as follows:
“On this 18th day of February, 1946, this cause coming on for trial, comes the State of Arkansas, by James C. Hale, Prosecuting Attorney for the Second Judicial District, the defendant, Floyd Lee Poole in custody of the Sheriff of Crittenden county and by his attorney of record, Edward J. Reubens, and upon formal arraignment in open court, the defendant by his counsel entered a plea of not guilty by reason of insanity to the charge of rape as alleged in the proper information heretofore filed in this court.
“Counsel for the defendant stated in open court that the defendant had been examined by Dr. James R. Falls, a competent doctor of medicine of his own choosing, and that'he was, at the time of the commission of said offense, and is now, non compos mentis; that the report of Dr. A. C. Kolb, Superintendent of the Arkansas State Hospital for Nervous Diseases, which had hereto fore been made a part of this record was in all respects accepted as true and relied upon by the defendant; that such report of Dr. A. C. Kolb found that the defendant was suffering from cerebrospinal syphilis, is not now legally responsible for his actions, and was not legally responsible for his actions at the time of the commission of the offense for which defendant stands charged.
“Being fully advised in the premises the court doth find that the defendant, Floyd Lee Poole, is insane and not legally responsible for his actions; that the defendant was insane and not legally responsible for his acts at the time of the commission of the felony with which he stands charged; that the defendant, Floyd Lee Poole, should be confined in the Arkansas State Hospital for Nervous Diseases as provided by law.
“It is, therefore, the order and judgment of this court that Floyd Lee Poole be taken by the Sheriff of Crittenden county and delivered to the Arkansas State Hospital for Nervous Diseases to be confined therein as provided in § 16 of Act 241 of the Acts of the State of Arkansas for the year 1943.
“It is the further order and judgment of this court that all further action in this cause be stayed and held in abeyance by reason of the insanity of the defendant until the further order and direction of this court.”
On January 13, 1947, the defendant (having escaped from the State Hospital) was found at large, and was taken in custody by the Sheriff of the county and brought before the Crittenden Circuit Court; and an order was made (hereinafter referred to as the “1947 order”), in part as follows:
“On this 13th day of January, 1947, this matter being brought, before this court, comes the State of Arkansas by James C. Hale, Prosecuting Attorney within and for the Second Judicial District, and the Defendant, Floyd Lee Poole, in the custody of the Sheriff of Crittenden county.
“Being fully advised in the premises the court doth find:
“That Floyd Lee Poole was properly charged with the crime of rape by information, filed on the 19th day of July, 1945; that this court subsequently on the 20th day of July, 1945, entered its order directing the defendant to be delivered to the State Hospital for Nervous Diseases for observation and examination, the insanity of the defendant having been properly suggested; that thereafter on the 21st day of August, 1945, the State Hospital for Nervous Diseases by and through Dr. A. C. Kolb, the Superintendent thereof, furnished this court with a report of the examination of the defendant which report stated that the defendant, Floyd Lee Poole, was diagnosed as having psychosis with cerebrospinal syphilis and that he was not legally responsible for his acts at the time of the examination or at the time of the alleged crime. The court thereupon entered its order on February 18, 1946, committing the defendant, Floyd Lee Poole, to the State Hospital for Nervous Diseases according to the provisions of § 16 of Act 241 of the Acts of Arkansas for the year 1943.
“Being further advised in the premises the court doth find . . . that the defendant was not properly confined and on two occasions thereafter departed from .the institution and resumed the illegal acts . . . ; that the Sheriff of Crittenden county was again advised and again took the defendant into custody.
“It is the order and judgment of this court that Floyd Lee Poole be taken by the Sheriff of Crittenden county, Arkansas, and delivered to the Keeper or Superintendent of the Arkansas State Hospital for Nervous Diseases; the Superintendent of said institution is hereby directed to keep the defendant, Floyd Lee Poole, who is by this court found to be an insane criminal, securely confined in the proper ward of said institution from this date until the further order of this court.”
Later in 1947, Dr. G. W. Jackson, then superintendent of the State Hospital, reported that the defendant was sane; so the defendant was returned to the Crittenden Circuit Court, and on September 23, 1947, he was placed on trial on the original information filed on July 19, 1945, as heretofore mentioned. At that trial — from which comes this appeal — the defense was insanity. The trial court first admitted in evidence on behalf, of the defendant the 1946 and 1947 orders; but at the conclusion of the evidence, and after the defendant had rested his case, the court excluded both of the said orders. This appears in the record:
“The Court: Gentlemen of the jury, during the progress of the trial of this ease an order dated the 18th of February, 1946, made by Judge Killough, committing the defendant to the Hospital for Nervous Diseases, and an order made by this court on the 13th day of January,. 1947, committing the defendant to the State Hospital for Nervous Diseases, was admitted in evidence. It has now been determined that these two orders were not properly admitted in evidence before you, and you are told in' arriving at your verdict in this case that you are not to consider these orders for any purpose.”
The defendant duly excepted to the above ruling; and the exclusion of these orders is one of the points argued for reversal.
It is a rule of almost universal recognition that in criminal cases, when insanity is relied on as a defense, an adjudication declaring the defendant to be an insane person is competent to go to the jury as evidence on that issue. The adjudication may be prior to the alleged offense or reasonably subsequent to the alleged offense, for which the defendant is being tried. Such adjudication is not conclusive of the insanity of the defendant, but is admissible in evidence for consideration by the jury with all the other evidence bearing on the question of the defendant’s insanity. Our own case of McCully v. State, 141 Ark. 450, 217 S. W. 453, is directly in point. In that case the defendant was being tried for incest, and offered an adjudication of the probate court committing the defendant to an insane asylum. The trial court refused to admit the probate record in evidence, but this court reversed the trial court, and held that the record of commitment to an asylum was admissible on the issue of insanity. Mr. Justice Wood, speaking for this court, said:
“To determine the issue as to whether the appellant was insane at the time of the alleged commission of the offense, testimony tending to show the mental condition of the accused both before and after the commission of the act was competent. 1st McClain on Criminal Law, p. 186. .
“In criminal cases the record of inquisitions of lunacy or insanity is competent to go to the jury as evidence on that issue, but the weight of such evidence is for the jury.”
Cases from other jurisdictions are in accord with our holding, that an adjudication of insanity is competent evidence to he offered upon the defendant’s trial for the commission of a crime alleged to have been committed either prior or subsequent to the adjudication of insanity. Some such cases are: Davidson v. Commonwealth, 171 Ky. 488, 188 S. W. 631; State v. McMurry, 61 Kan. 87, 58 Pac. 961; Wheeler v. State, 34 Ohio St. 394, 32 Am. Rep. 372; Hempton v. State, 111 Wis. 127, 86 N. W. 596; People v. Farrell, 31 Cal. 576; State v. Glindemann, 34 Wash, 221, 75 Pac. 800, 101 A. S. R. 1001; Bond v. State, 129 Tenn. 75, 165 S. W. 229; and Smedley v. Commonwealth, 139 Ky. 767, 127 S. W. 485. See also 16 C. J. 558 and 23 C. j. S. 203, and annotations in 7 A. L. R. 568 and 68 A. L. R. 1390 on the topic, “Admissibility and probative force, on issue as to mental condition, of evidence that one had been adjudged incompetent or insane, or had been confined in insane asylum. ’ ’
The excluded orders of the circuit court — as heretofore mentioned — had a direct bearing on the issue of the defendant’s insanity. It was under the 1946 order that the defendant was confined in the State Hospital under the provisions of § 9, et seq., qf Act 241 of 1943, which provides that such an order of the circuit court is authority for the superintendent of the State Hospital to receive and hold a defendant until his restoration to sanity. The 1947 order directed the recommitment of the defendant because there was no showing that he had been restored to sanity. Certainly, these court orders made in 1946 and 1947 had a direct bearing on the question of the defendant’s insanity and were admissible in evidence under the authorities previously cited.
Two contentions are urged against reversing this case because of the exclusion of these orders. We discuss these arguments.
1. It is claimed that the 1946" order was based on the report of Dr. A. C. Kolb, then superintendent of the State Hospital, and that the report itself was introduced in evidence, and that Dr. Kolb was a witness at the present trial, so- — it is insisted — -that there was no error in the court’s refusal to admit the 1946 order based on Dr. Kolb’s report. To that contention the answer is twofold: (a) The judgment shows that other matters were before the court in 1946 besides Dr. Kolb’s report. One such matter was the statement in open court that the defendant had been examined by Dr. James R. Falls, who found the defendant to be non compos mentis. This statement in the 1946 order stands as a stipulation of what Dr. Falls’ testimony would be; and Dr. Falls was not shown to be present at the trial from whence comes this appeal, (b) Furthermore, the court, when it made the 1946 order, was not bound to accept Dr. Kolb’s report, even though substantiated by Dr. Falls’ testimony. The 1946 order gave judicial approval to the report, and constituted an adjudication by the court that the defendant was then insane. Section 9 of Act 241 of 1943 provides for such an adjudication to be made as the basis for committing the defendant to the State Hospital. The adjudication is much stronger than the report of the superintendent and the testimony of witnesses; and the adjudication itself is what is admissible. In McCully v. State, supra, the circuit court, in refusing to admit the adjudication, said that the “best evidence' is to bring in witnesses before the jury and let them testify as to his sanity or insanity.” As previously stated, we reversed the trial court in the McCully case, and rejected the same argument as is here advanced. The 1947 order does not recite upon what evidence the court acted, but considerable factual matters are contained in the order, which recites — inter alia — that the defendant “is by this court found to be an insane criminal.” So, certainly, the 1947 order, constituting an adjudication and' recommitment to the State Hospital, was admissible in evidence for the reasons heretofore stated.
2. The second argument urged against the admissibility of the court orders of 1946 and 1947 is, that they wer.e merely preliminary steps in the same case, and— as such — were only interlocutory orders and do not come within the general rule first stated herein. The answer to that argument is, that the 1946 and 1947 orders were adjudications of insanity, authorized and required to be made as the legal foundation for committing the defendant to the State Hospital. They were made under the authority of § 9, et seq., of Act 241 of 1943, and were as final as any adjudication of insanity. In Carson v. State, 198 Ark. 112, 128 S. W. 2d 373, the defendant was determined to be insane and was committed to the State Hospital; and later, upon restoration to- sanity, was returned for trial. That is exactly the procedure here followed. A well-considered case , on the question here at issue, and involving facts somewhat similar to those in the case at bar, is that of Bond v. State, 129 Tenn. 75, 165 S. W. 229. Bond was indicted in January, 1909, for obtaining money under false pretenses, the offense alleged to have been committed in November, 1908. In November, 1909, he was adjudged insane. In 1910, he was arraigned on the indictment, but found insane and ordered committed to the hospital for the insane. Then in September, 1913, upon apparent restoration to sanity, he was tried on the original indictment. At this trial Bond’s defense was continued insanity; and he sought to introduce in evidence the adjudication of insanity made in' 1909, and the commitment order of 1910. The trial court refused to admit the adjudication order and the commitment order; and the Supreme Court of Tennessee reversed the conviction because of such error by the trial court.
Another well-considered case on the point at issue, and involving a somewhat similar state of facts, is that of Smedley v. Commonwealth, 139 Ky. 767, 127 S. W. 485. Smedley was charged with embezzlement. After indictment, he was adjudged insane and committed to the asylum by the trial court, and his case continued. Later, the superintendent of the asylum certified that Smedley was sane, and he was then placed on trial on the original indictment. At his trial he sought to introduce in evidence the adjudication of insanity. The lower court ruled the adjudication to be inadmissible, but the Court of Appeals of Kentucky reversed the trial court, saying:
“We are further of the opinion that appellant’s complaint of the exclusion by the court from the consideration of the jury of the record containing the writ, judgment, and other proceedings in the inquisition of lunacy offered in evidence by appellant to show that he had properly been found and adjudged of unsound mind shortly before his trial is well founded, for the exclusion of this evidence was error.
“It appears that the inquest was held at the same term of the court at which appellant’s trial under the indictment occurred, and that from the time of the inquest until within a few days of his trial he was confined in the lunatic asylum at Hopkinsville; his return to the custody of the jailer of McCracken county having-been ordered by the court upon a written statement from the superintendent of the asylum that his mind had been restored. His principal defense was that he was of unsound mind at the time of committing the crime charged in the indictment, and much of the' evidence introduced in his behalf tended to show that throughout his term of office as county clerk, and down to the time of the trial, he was greatly addicted to the use of morphine or other drugs by which hi's mind was much impaired, if not destroyed. Thus it will be seen that the inquest of lunacy furnished an important link in the chain of evidence upon which rested his main defense.”
We conclude that the trial court in the case at bar erred in excluding the 1946 and 1947 orders from being considered by the jury, on the question of the insanity of the defendant. That such error was prejudicial is settled by our case of McCully v. State, supra, where — for a similar error — we reversed the judgment of the trial court and remanded the cause for a new trial; and such is our order in the present case.
In some instances in the record the name is spelled Pool; in others, Poole. The person is the same.
The original transcript on McCully v. State shows (1) that the indictment charged the offense to have been committed on January 15, 1918, and (2) that the defendant was committed to the asylum on July 14, 1918.
Sections 9 to 12, inclusive, of said Act 241 of 1943 are substantial reenactments of §§ 12555 to 12558, inclusive, Pope’s Digest, which are taken from Act 174 of the Acts of 1893, and were construed by this court in ex parte Baker, 121 Ark. 537, 182 S. W. 279. | [
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Ed. F. McFaddin, Justice.
This is a boundary line dispute between neighbors.
In January, 1942, appellee Jones purchased a farm of 40 acres. On the north his neighbor was the appellant McGowan; and on the east, the appellant Gregory. In the summer of 1946, Jones had his 40 acres surveyed by the county surveyor; and, according to that survey, the preexisting Jones-McGowan line should be farther north, and the preexisting Jones-Gregory line should be farther east. Acting on the 1946 survey, Jones cut some timber, and was preparing to change the fences when McGowan and Gregory filed this suit to enjoin Jones. McGowan also asked timber damages. The chancery court, after hearing the witnesses, sustained Jones’ 1946 survey; and McGowan and Gregory have appealed. Since the boundary lines between Jones and his neighbors were established at different times, it will make for clarity if we consider the issues separately.
I. J ones-McGowm Line. The fence between the Jones land and the McGowan land has been on the same line for more than 34 years. Mr. Ally Hancock’s father owned the Jones land from 1911 to 1916. In 1913, Ally Hancock, and the then owner of the McGowan land, established the boundai-y line between the two tracts. Ally Hancock says that he started at an existing marker on the east and ran the line west to another existing marker, and then built a rail fence on the line thus determined. The owner of the present McGowan land recognized the rail fence made bjr Hancock to be the dividing line.
In 1917, McGowan acquired his land, and his grantor showed him the rail fence as the line. Ed Hancock was the then owner of what is now the Jones land. The rail fence continued as the accepted boundary until Ed Hancock proposed that he and McGowan erect a wire fence. McGowan agreed. He furnished part of the wire; and the wire fence was put on the line where the old rail fence had been. Thus, for 34 years the rail fence line established in 1913 has continued as the line agreed to by all concerned. Under these facts, we hold that the Jones-McGowan line should remain on the old rail fence line. and that the 1946 survey comes too late. In Goodwin v. Garibaldi, 83 Ark. 74, 102 S. W. 706, Mr. Justice Riddick, in sustaining a long-existing boundary between adjacent owners, quoted the classic language of Hon. U. M. Rose, as found in Cimningham v. Brumbach, 23 Ark. 336: “ . . . better that ancient wrongs should be unredressed than that ancient strife should be renewed.” Robinson v. Gaylord, 182 Ark. 849, 33 S. W. 2d 710, is another case in which an old line was sustained, even against a new survey.
Appellee argues that the original rail fence line was established by a mutual mistake, and should be changed to the 1946 line, and cites Randleman v. Taylor, 94 Ark. 511, 127 S. W. 723, 140 Am. St. Rep. 141, as authority-for such contention. Furthermore, appellee says that there was no dispute prior to the establishing of the rail fence line, so — appellee says — the rule stated by 'Chief Justice Hart in Robinson v. Gaylord, supra, and restated in Peebles v. McDonald, 208 Ark. 834, 188 S. W. 2d 289, does not apply to this case. It is true that in this case the original rail fence line was established without a prior dispute as to boundary; but the recogniation of that line for the many intervening years (34 in this case) shows a quietude and acquiescence for so many years that the law will presume an agreement concerning the boundary.
In Deidrich v. Simmons, 75 Ark. 400, 87 S. W. 649, there had been no dispute prior to the establishment of the fence line which had been accepted as the common boundary for many years; and in that case Justice Mc-Culloch, speaking for this court, said: “The proprietors of adjacent lands may by parol agreement establish an arbitrary division line, or ,an agreement may be inferred from long-continued acquiescence and occupation according to such line, and they will be bound thereby. * ’
So in the case at bar the recognition of a common boundary for a long period of time is evidence of agreement and acquiescence, which may well exist without the necessity of a prior dispute. See 8 Am. Juris. 804. As stated in the annotation in 69 A. L. R. 1491: “ . . . where the owners of adjoining land occupy their respective premises up to a certain line, which they mutually recognize and acquiesce in as the boundary line for a long period of time, . . . they and their grantees are precluded from claiming that the boundary line thus recognized arid acquiesced in is not the true one, although such line may not be in fact the true line according to the calls of their deeds.”
We reverse that portion of the decree of the chancery court dealing with the Jonqs-McGowan line, and remand the case, with directions to enjoin any change of the original boundary line.
II. The Jones-Gregory Line. The north part of the J ones-Gregory fence has been on the same line for over 35 years. This line extends from the northeast corner of the Jones tract south to a road referred to in the evidence as the ‘ ‘ C.C.C. road. ’ ’ The rules of law announced in the discussion of the Jones-McGowrin line determine our holding in regard to the north part of the Jones-Gregory line. The south part of the Jones-Gregory fence (that is, from the C.C.C. road to the south boundary of the Jones tract) appears .to have been constructed by Gregory in 1941. This was less than seven years before the filing of this action. The 1941 fence is clearly off of the line, and the 1946 survey is approved as to all of the Jones land south of the C.C.C. road. To this extent only, the decree of the chancery court is sustained.
Conclusion: McGowan claimed that Jones had cut pine timber from lands north of the old Jones-McGowan line. This claim is established by the evidence, but the amount is small. The evidence shows that Jones cut five pine trees containing 300 feet of lumber. The value is fixed by the. witnesses at $4.00. McGowan is entitled to judgment for this amount, and for all of his costs. All of the costs as are actually apportioned to the Jones-McGowan dispute are to be paid by J ones. The remaining costs are to be paid equally by Gregory and Jones. The decree of the chancery court is therefore reversed, and the cause remanded with directions to enter a decree and proceed consistently Avith this opinion. | [
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Bobins, J.
The lower court sustained appellee’s motion to dismiss complaint of appellants asking for an accounting by appellee of what they alleged was a trust fund belonging to them. The ground of dismissal, asserted by appellee and sustained by the lower court, was that the controversy presented was one over which the United States District Court for the Eastern District of Arkansas had sole jurisdiction by reason of a bankruptcy proceeding theretofore instituted therein.
The sole question presented by this appeal is ’ whether the lower court was without jurisdiction by reason of this bankrrlptcy proceeding.
In 1929, Francis Guy Fulk and certain of the appellants borrowed from the Federal Bank & Trust Company the sum of $362,500 bearing interest at 6 per cent, from date to maturity and at 10 per cent, thereafter, and to secure the said indebtedness executed to the Federal Bank & Trust Company a trust' deed on certain . real estate in Little Rock.
Being unable to pay the indebtedness, Francis G. Fulk, Jr., as administrator of the estate of Francis Guy Fulk, one of the mortgagors, who had died intestate, filed á petition on April 7, 1936, in the United States District Court for the Eastern District of Arkansas, Western Division, under the provisions of § 74 of the Bankruptcy Act, listing the debts and assets of the estate, and asking that proceedings be had for a “composition or extension,” as provided for under that section. Petitions in identical form were filed in the bankruptcy court by Florence M. Fulk, Augustus M. Fulk and Frank M. Fulk, other makers of the $362,500 note.
These petitions having been referred to the referee in bankruputcy no action, other than the appointment of J. H. Penick as trustee, was had in regard to these petitions for more than three years.
The United States District Court, on June 30, 1939, made an order, reciting the amendment of the Bankruptcy Act by the “Chandler Act,” of June 22, 1938, which, as the court order set forth, “extends and gives greater power to debtors in making arrangements with their creditors regarding debts secured by real estate in what is called Real Estate Arrangements under Chapter XII,” and referring the proceeding to the referee in bankruptcy for “such further proceedings therein as are required by the Bankruptcy Act.”
In March, 1940, the debtors filed in the bankruptcy court an “Amended and Substituted Proposal” for an extension, in which, for the purpose of effectuating the settlement proposed, all of the other named appellants joined. This proposal provided that the creditors, holding first mortgage notes aggregating $362,500, plus ac crued interest to October 31, 1939, amounting to $57,450, should forgive one-half of the interest, reduce the interest rate from 6 per cent, to 4 per cent, and should accept new notes aggregating $391,225, payable November 1, 1944; that the debtors should, in order to secure this debt, join in a deed of trust to a trustee to be selected by the note holders, conveying to such trustee the four tracts described in the deed of trust of May 22, 1929, and that they would execute deeds-conveying said real estate to this trustee selected by the note holders, which deeds were to be placed in escrow for the extension period; and that if the indebtedness were not fully paid by November 1, 1944, the escrow agent should deliver the deeds to the trustee, for the creditors, in full satisfaction- of the indebtedness due from debtors. It was also provided in the proposal that the trustee might, at his discretion, use any surplus arising from rentals of the property to purchase some of the outstanding notes to be executed by the debtors. None of this surplus was so used.
This proposal was accepted by the creditors, and, upon application of the debtors for confirmation of the arrangement, under Chapter XII of the Act of Congress relating to bankruptcy,-11 U. S. C. A., § 801 et seq., was confirmed by the bankruptcy court on April 22, 1940, and the court at the same time ordered that all title and interest of the trustee in bankruptcy in the real estate be divested out of him, and all title revested in the debtors, so that they .might carry out their agreement by executing conveyances as stipulated.
T. J. Gay was selected as trustee by the creditors, and the trustee in bankruptcy was directed by the federal court to turn over all funds in his hands to Mr. Gay. The deed of trust was executed by the debtors to T. J. Gay, trustee, and deeds of conveyance to T. J. Gay, trustee, were also executed by the debtors and were placed with the Commercial National Bank as escrow agent.
J. H. Penick, trustee in bankruptcy, filed his' report in the United States District Court, on June 21,1940, and the court on that' day made an order discharging him as sucli trustee and canceling' his bond. This is the last order of record in the bankruptcy proceedings.
T. J. Gay, the trustee selected by the creditors, took possession of the properties described in the deed of trust to him, operated and'managed same for the period .of the extension, and on November 1, 1944, the debt not having been paid, made demand upon the escrow agent for the deeds, and the escrow agent delivered the deeds to him. The debtors, as they had agreed to do in their proposal, after their deeds had been delivered by the escrow agent to the trustee, aided the creditors in disposing of the property by giving written assurance that they claimed no equity of redemption therein. ■
When the deeds were delivered to T. J. Gay, trustee, he had on hand certain moneys which accrued from the operation of the properties.
This suit was brought in the chancery court to have an accounting of and to recover these funds, on the theoiy that they were surplus funds, arising from administration of the trust.
Appellee, T. J. Gay, trustee, filed a motion to dismiss the complaint, ass'erting that the bankruptcy court had exclusive jurisdiction to determine the disposition to be made of the fund involved.
Appellee Gay, in his individual capacity, and not as trustee, filed motion on October 15, 1945, in the chancery court, reciting that he had by agreement of all parties paid into the registry of the court the sum of $25,000 “to cover any possible judgment for excess funds, if any, remaining in his hands November 1, 1944, should a judgment be rendered for the plaintiffs in the above entitled cause.” In the order of the lower court dismissing appellants ’ complaint for want of jurisdiction it was directed that the sum of $25,000 paid by Gay into the registry of the .chancery court should remain therein pending our decision on this appeal.
The record reflects that the entire subject matter of the litigation in the federal court was, by an order of that court, agreed to by all parties in interest, taken out of that court, and under the approved arrangement, title of the trustee in bankruptcy to the property involved was divested out of him and invested in appellants, so that they might, in accordance with the composition agreement, execute conveyances to a trustee selected by the creditors. The trustee of the bankruptcy court was discharged and his bond canceled by that court. The trustee selected by the creditors gave bond to guarantee the faithful performance of his duties, and this bond was filed, not in the bankruptcy -court, but with the escrow agent agreed upon by the parties. Appellants executed the deeds to the property and delivered them to the escrow agent, who, in compliance with the arrangement, finally delivered them to the creditors, who apparently have sold the property. The trustee under the contract was not required to, and did not, make any report to the bankruptcy court, and that court has never exercised or been called upon to exercise any control over this trustee or the funds which he was handling. Under the terms of the composition arrangement, approved by the federal court, appellants have been, by reason of the delivery to the creditors of the deeds by the escrow agent, fully disr charged from all liability on the indebtedness which caused the jurisdiction of the bankruptcy court to be invoked and which formed the basis of its jurisdiction.
It thus appears that the debt which precipitated the bankruptcy proceeding has been paid; that the title and possession of all property being administered by the bankruptcy court was by order of that court revested in the debtors. The creditors have obtained all the property, and the debtors have been absolved from the debt. The function of the bankruptcy court in the premises has been fully discharged, and the order of that court authorizing the composition, and discharging the trustee, was in effect a final dismissal of the case.
It is not necessary, for an order of court to constitute a dismissal or termination of litigation, that apt and exact words to that effect be used.
It’ is sufficient if it appears from the order made that all matters of which the court has jurisdiction in the case have been disposed of, so that there remains no further relief to be 'awarded and no further jurisdiction to be exercised.
In disposing of a contention somewhat similar to that made by appellee here, it was said in Andrews v. Smith, 5 F. 833:
“When the compromise agreement was made the trustees were, as has been before stated, in possession, and were also receivers to raise the rent due the lessor from the income. That agreement made provision for all rent then due, and provided a new basis for it thereafter, for certain specific payments, and for the application of the residue of the net income; and then that ‘all claims and demands between the parties hereto, not herein otherwise provided for, shall be waived and abandoned, and no further claim or proceeding shall be made or had in respect thereto.’ The agreement was carried into effect, but the trustees were not otherwise formally discharged as receivers, and because they were not formally discharged it is said that the receivership continued. But a receiver is the hand of the court, and whatever property he holds is held for the court. After that agreement there was no property left in the custody of the court for a receiver to have. The parties had provided for the custody and disposition of the property, and left nothing for the court to do about it. There was no occasion for the court to discharge'them, for the parties themselves had accomplished the discharge. Had any party insisted upon their continuing as receivers as against the bondholders, the request could not well have been granted.”
Other cases in which somewhat similar views were expressed are: International & Great Northern Railway Company, et al., v. Anderson County, et al., 246 U. S. 424, 38 S. Ct. 370, 62 L. Ed. 807; Shields v. Coleman, 157 U. S. 168, 115 S. Ct. 570, 39 L. Ed. 660; Wabash R. Co. v. Adelbert College, 208 U. S. 38, 28 S. Ct. 182. 52 L. Ed. 379.
The 1898 Bankruptcy Act (subdivision j of § 202, 1937 Edition, Title 11, U.S.C.A.) provides that upon confirmation of a composition the consideration thereof should be distributed, and, unless the court should deem proper to retain jurisdiction to protect the estate and enforce terms of the extension agreement, “the case be dismissed.” The present law (Chandler Act of June 22, 1938) provides that after confirmation of the arrangement, unless otherwise provided in the arrangement, and except in certain contingencies not present in the case at bar, the case shall be dismissed. It therefore appears that the bankruptcy law contemplated that, in a situation such as existed when the federal district court approved the arrangement between appellants and their creditors, the proceeding in that court should be terminated.
It is argued.by appellees that the fund sought to be reached by appellants in the case at bar is a “surplus” which arose in and from the bankruptcy proceeding and as such must be administered by the bankruptcy court. But under the record here this fund did not arise in or from the bankruptcy proceeding. The fund arose solely from the operation of the property, after the bankruptcy court had surrendered it, and the parties — debtors and creditors — had taken charge of it and placed it in the hands of their own trustee, who was responsible for his administration to these debtors and creditors and to no one else.
We conclude that, since the fund herein involved did not arise from any proceedings in the bankruptcy court or from any operation of any official of that court, and the federal court had fully adjudicated all matters involved in the proceeding before it and had made an order by which it should have, and, in reality, has divested itself of jurisdiction in the matter, the chancery court had jurisdiction of the case at bar.
The views expressed above make it unnecessary to decide whether the appellee, by depositing the disputed fund in the lower court and asking an acquittance of all further liability has, in reality, asked from that court affirmative relief, as if by bill of interpleader, and has thereby waived any right to object to. jurisdiction. Norton v. Miller, 25 Ark. 108; Morgan Engineering Company v. Cache River Drainage District, 115 Ark. 437, 172 S. W. 1020; DuFresne v. Paul, 144 Ark. 87, 221 S. W. 485; Purnell v. Nichol, 173 Ark. 496, 292 S. W. 686; Rader v. Payne, 188 Ark. 899, 68 S. W. 2d 457; Chamber of Commerce of Hot Springs v. Barton, 195 Ark. 274, 112 S. W. 2d 619.
The decree of the lower court is reversed and the cause remanded with directions to the lower court to overrule appellee’s motion to dismiss and for further proceedings not inconsistent with this opinion and the principles of equity. | [
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Per Curiam.
We are asked to prohibit the trial court from proceeding in this cause for the asserted reason that it is without jurisdiction of parties for want of valid service. The petition is denied on authority of Twin City Lines, Inc., v. Cummings, Judge, ante, p. 569, 206 S. W. 2d 438, decided by this court December 15, 1947. Cases are there cited in support of the rule that where in preliminary proceedings factual matters are presented for the trial court’s determination, prohibition will not be predicated upon an alleged erroneous decision. | [
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Ed F. McFaddin, Justice.
The question here is the validity of a condition subsequent in a deed to a county.
On October 28,1928, appellant, E. E. Jeffries (joined with his wife, who relinquished her dower and homestead), executed, acknowledged and delivered to Wood- ruff county, Arkansas, a deed which — omitting signatures, description, dower clause, date and acknowledgement (and with italics our own) — reads as follows:
“Know All Men By These Presents:—
“That we, E. E. Jeffries and Willie Jeffries, his wife, for and in consideration of the sum of thirty-two hundred and fifty ($3,250) dollars, paid by Woodruff County, Arkansas, as follows, to-wit: Thirty-two hundred and fifty dollars, cash in hand (the receipt of which is hereby acknowledged), the above price being on a basis of $100 per acre.
“It is understood between the parties hereto, that this conveyance is made to Woodruff county, Arkansas, only to be used for county purposes and should the same-be at any time abandoned for county purposes, the same shall revert in fee simple to the grantors malting this conveyance, grant, bargain and sell unto the said Wood-ruff county, Arkansas, and unto its assigns forever, the following lands lying in the County of Woodruff and State of Arkansas, to-wit: (description of the 32% acres).
“To have and to hold the same unto the s.aicl Wood-ruff county, Arkansas, as above set out and unto its assigns forever, with all appurtenances thereunto belonging, as above set out for county purposes. And we hereby covenant with the said County of Woodruff in State of Arkansas that we will forever warrant and defend the title to said lands against all claims whatever, and that said lairds are free from all liens and incumbrances. ’ ’
The italicized language is the “condition subsequent” to which we will frequently refer in this opinion.
On January 24, 1947, the State of Arkansas, on the relation of J. II. Moody as prosecuting attorney, and for the use and benefit of Woodruff county, filed this action in the circuit court against E. E. Jeffries (his wife being-deceased), alleging that the defendant had wrongfully entered the lands described in the said deed, and did wrongfully hold possession thereof, and prayed for possession and $.3,250 for breach of warranty. By amend ment to the complaint it was alleged that the Woodruff county Quorum Court had authorized the purchase of the property in 1928 for courthouse purposes and other county purposes, and that the county judge had been authorized to pay the $3,250 to Jeffries only after the title should be “in all things fully approved and confirmed by proper deed”; and that the deed executed by Jeffries (as heretofore partially copied) did not comply with the said authorization because of the inclusion therein of the condition subsequent as heretofore italicized. Copies of the quorum court proceedings were made exhibits to the amendment.
By answer and amendment, the defendant pleaded the validity of said condition subsequent as contained in the deed, and defendant further alleged:
“. . . that Woodruff county has wholly abandoned the use of the above lands for county purposes and they were in the possession and use of private persons throughout the entire year of 1946, without right or authority, and for this reason the defendant re-entered the lands on January 1, 1947, for the purpose of declaring a forfeiture to him as grantor of the lands under the condition subsequent which was broken, and the defendant now holds the lands and claims the reversion of the title to him because of the above facts. ’ ’ Defendant also alleged that before making this deed to Woodruff county in 192.8, he had refused to sell the lands unless the said italicized language he placed in the deed; and that the attorney then representing Woodruff county had advised the defendant that said condition subsequent was in all things valid. Defendant also denied every material-allegation in the plaintiff’s pleadings, and prayed that the complaint and amendment be dismissed.
Plaintiff filed a general demurrer to the answer and amended answer. The circuit court sustained the demurrer; and, upon the defendant’s refusal to plead further, a final judgment was entered, awarding the possession of the land to the plaintiff. From that judgment there is this appeal.
At the outset, we point out that we are not here concerned with the distinction between (1) an estate on condition subsequent, and (2) an estate subject to conditional limitation; because, in the case- at bar, there was an actual re-entry. So we will continue to refer to the deed as creating a “condition subsequent.” We have upheld such a clause in deeds to individuals, railroads, religious organizations, and school districts. For cases' on condition subsequent, see West’s Arkansas Digest, “Deeds,” § 155. Generally, the rule is that the grantor has the right to impose a condition subsequent; and the party alleging invalidity, as violative of public policy, has the burden of establishing such invalidity. 18 C. J. 359, et seq.
But the appellee contends (1) that it is against public policy for a county to take title to property on condition subsequent, and (2) that the quorum court did not authorize the county judge to acquire the property by a deed other than a fee simple deed. We discuss these contentions.
I. Is the Condition Subsequent in the Deed to the County Void as Against Public Policy? The appellee answers the question in the affirmative; and, bottomed on that answer, says that the clause in the deed is void, and therefore the county received a fee simple title. Appellant says the condition subsequent is not against public policy. In Woodruff v. Berry, 40 Ark. 251, and again in Paul v. Stuckey, 126 Ark. 389, 189 S. W. 676, L. R. A. 1917B, 888, we had occasion to consider a definition of “public policy” as applicable to the facts in those cases. It is possible that since these cases, the words, “public policy” have experienced such an expansion in use and meaning that “no exact and precise definition . . . can be found” to fit all cases. (See 50 C. J.' 858 and 13 O. J. 426). Concerning that possibility of an -en larged definition, we need not speculate, because, at all events, the source of public policy has not changed; and in Arlington Hotel v. Rector, 124 Ark. 90, 186 S. W. 2d 622 we said: “The facts presented do not show that the contract between'Rector and the old company violated any principle set forth in the Constitution and laws of the United States'or of this State, nor in the decisions of their courts. These are the sources which ..must be consulted to determine an issue of public policy. Vidal v. Girard’s Executors, 2 How. 127-197, 11 L. Ed. 205; Elliott on Contracts, § 651 and note; Hartford Fire Ins. Co. v. Chicago, etc., Ry. Co., 62 Fed. 904 s.c., affirmed 17 C. C. A. 62, 30 L. R. A. 193; (xreenhood on Pub. Policy, p. 1, rule 2 note.” So, to determine public policy, we look to the Federal and State Constitutions, statutes and court decisions.
There is no claim by appellee that any federal constitutional or statutory provision or adjudicated case announces any controlling public policy applicable to the situation here. Nor is it contended that any provision of the State Constitution declares any public policy in this situation. But appellee does insist that certain state statutes and adjudicated cases declare — either expressly or by inference — that a condition subsequent in a deed to a county is void as against public policy. We proceed to examine these statutes and cases cited by appellee.
(a) Section 2395, Pope’s Digest, relates to the deed for a new courthouse site to be tendered before a courthouse removal election can be ordered. This section has no application to the case at bar, because no courthouse removal election was alleged in the case at bar. For the same reaspn, the cases construing this section have no application here.
(b) Section 2456, Pope’s Digest, says that, if there be no suitable ground for that purpose (i. e., courthouse and jail, as mentioned in § 2451) belonging to the county, the commissioner of public buildings “shall select a proper piece of ground at the seat of justice, and may purchase or receive by donation a lot or lots of ground for that purpose, and shall take a good and sufficient deed in fee simple for tlie same to the county, and shall make report of his proceedings to the court at its next term.5 ’
If the deed in question was for the location of a courthouse or jail on the property — which defendant’s answer denies — , then it is clear that Woodruff county in 1928 did not receive a fee simple deed. But the plaintiff did not allege that the report of the proceedings was made by the “commissioner of public buildings” at the next term of the county court. Even if we should say— which we do not — that the county judge could also be the “commissioner of public buildings,” still the plaintiff’s pleadings did not bring the case within the purview of § 2456. Certainly the plaintiff below (appellee here) could not by demurrer to the answer avail himself of the provisions of the statute, when the allegations in the complaint were not sufficient to invoke such statute.
(c) Section 2477, Pope’s Digest, is the applicable statute under the state of the record here before us. That section reads (with italics our own) :
“All deeds, grants and conveyances made and duly acknowledged and recorded, as other deeds of conveyance, to any county or to the commissioners of any county or any other person, by whatever form of conveyance, for the use and benefit of any county, shall be good and valid, to all intents and purposes, to vest in such county, in fee simple or otherwise, all such right, title, interest, and estate as the grantor-in any such deed or conveyance had at the time of the execution thereof in the lands conveyed and was intended thereby to be conveyed.”
This is the general statute on county ownership of lands, and the italicized portions clearly show that the county is authorized to take title to land ‘.‘in fee simple or otherwise”; and that the deed accepted by the county conveys what “was intended thereby to be conveyed.” In the case at bar, it is clear that a fee on condition subsequent was intended to be conveyed, rather than a fee simple.
This § 2477 shows a legislative recognition that a county may acquire property 'for general county purposes by deed that conveys less than the fee simple title; and this statute — instead of raising an inference that a deed to a county with a condition subsequent is void as against public policy- — leads inevitably to the conclusion that the public policy, as declared by the Legislature in the said statute, is to the effect that in general property matters (as distinct from §§ 2395 and 2456, a condition subsequent in a deed to a county is in accordance with public policy and not void as against public policy.
(d) The only two Arkansas cases cited by appellee as involving a deed to a county with a condition subsequent are Skipwith v. Martin, 50 Ark. 141, 6 S. W. 514, and State v. Baxter, 50 Ark. 447, 8 S. W. 188. In the Skipwith case, Pulaski county had accepted for a jail location a deed which contained a condition subsequent. The case was decided on another issue, rather than the validity of the condition; but the court, by way of clarification, said:
“If this is a condition at all, it must be agreed that it is a condition subsequent. Such a condition does not prevent the vesting of the title. The question of performance or nonperformance of a condition subsequent could interest no one but the grantors, whom the appellants in this case do not pretend to represent. Schulenberg v. Harriman, 21 Wall. 44; 4 Kent’s Com. 131.”
In State v. Baxter the federal government had deeded certain lands to Garland County for courthouse and jail purposes. The opinion” merely mentioned the reverter clause in this language:
“Whether the title was subject to be divested by the failure of the grantee to use it as a site for public buildings, or not, is a question not now presented for decision. The United States only can take advantage of such failure, if anyone can. Martin v. Skipworth, 50 Ark. 141, 6 S. W. 514.”
These cases are far from announcing any public policy forbidding a county from accepting for general county purposes a deed with condition subsequent, and are far from declaring void any such language in the deed. We therefore conclude that no public policy is offended in the case at bar under the state of the record before us, i. e., on demurrer to an answer, which denies the allegations in the complaint.
II-. The Authority of the County Judge Under the Orders of the Quorum Court. Appellee contends that the county judge had no authority from the quorum court to accept less than a fee simple title. That allegation may or may not be true; but it does not alter the fact that the answer alleges and the demurrer admits that the county judge, on advice of his attorney, did accept the deed here involved. Whether the county judge exceeded his authority, and, if so, the effect thereof on this transaction — these are matters which may be. considered on the merits, rather than on a demurrer to the defendant’s answer.
We conclude that the judgment of the circuit court sustaining the demurrer and rendering judgment for the plaintiff should be, and is, reversed at the cost of the appellee. We remand the cause with directions to overrule the demurrer and proceed not inconsistently with this opinion.
See Goodwin v. Tyson, 167 Ark. 396, 268 S. W. 15.
See Moore v. Sharpe, 91 Ark. 407, 121 S. W. 341, 23 L. R. A., N. S. 937, and St. L. S. F. Ry. Co. v. White, 199 Ark. 56, 132 S. W. 807.
See Pettit v. Stuttgart Institute, 67 Ark. 430, 55 S. W. 485, and Johnson v. Lane, 199 Ark. 740, 135 S. W. 2d 853.
See Steele v. Rural Special School District, 180 Ark. 36, 20 S. W. 2d 316, and Williams v. Kirby District, 207 Ark. 458, 181 S. W. 2d 488. | [
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Grieein Smith, Chief Justice.
The appeal is from the Court’s refusal to enjoin Hex Houston from closing a road.
L. E. Messer is the owner of slightly more than three acres of land touching Lake Hamilton, purchased in May 1946 from Eugene Miller. In 1935 Houston and his wife purchased three and a quarter acres bordering the lake and embracing what is known as Five Points Landing. In 1944 Houston’s father purchased for him the northeast quarter of the southwest quarter of section twenty-one, township three south, range nineteen west (Garland County) except the northeast quarter, owned by J. E. McMinn. Messer’s property lies north of the Houston acreage on which the landing is located — where the Houston home was built.
In 1935 the IToustons began operation of an enterprise in the nature of a fishing resort, later adding summer cottages. At the time this business was started the immediate area was wild and unimproved. Highway No. 7 is west of the northeast quarter of the southwest quar ter. A continuation, of the highway intersects the west side of the government survey north of the center. A lateral leads to the south, but curves and extends east through the survey, entering the Houston lakefront site approximately twenty feet south of the southwest corner of Messer’s property. Distance from the highway lateral to the east side of the government survey is 1,750 feet and this highway is identified on an exhibit map as “Existing Road Over Houston Property”.
When Messer purchased from Miller in 1946 his purpose was to operate a resort or recreational center, necessitating an “in” and “out” way to Highway No. 7. Houston informed Messer that the “Existing Road” was private, but offered to give his competitor an easement over the land farther north. The new road would parallel the south side of McMinn’s land, then turn north to intersect with another road into Highway 7. Distance is about 850' feet. Cost of construction, however, was more than Messer was willing to pay. He therefore asked that Houston be restrained from closing the old road, alleging it had been used by the public for at least ten years, hence prescriptive rights attached.
While there is testimony that for many years occasional visitors to the lake area had not been interfered with in their use of what witnesses termed a road, others mentioned it as a trail, irregularly defined, and not part of any public system. Prior to Miller’s ownership, the property presently owned by Messer belonged to Mrs. Newt Searcy. She testified that the road through Howe’s land — bought by the elder Houston for his son — was in existence before Miller acquired the property sold to Messer, but she did not know how long the road had been there, or whether public or private in origin. One witness said the County had worked it. Others had seen people use the road as a way to Five Points Landing. All were in substantial accord that the territory was comparatively virgin.
Roscoe Owens testified that Houston paid him to build the road in 1938. There was then an old way that meandered around stumps and between trees, but it was quite unsatisfactory. Owens bad used bis equipment to make grades and bad blown up stumps.
Rex Houston testified that prior to 1938 tbe way was “more or less a trail”. Wlien Owens made tbe improvements be (Houston) paid tbe bills. Nothing was contributed by the County. Those who have made use of the improved facilities were impliedly invited to do so in order to reach Five Points Landing and become Houston’s guests. Messer was the only person who had ever attempted to make adverse use.
B. M. Wilson testified that he assisted Owens in building the road. The old trail was crooked, full of mudholes, and meandered through the woods to such an extent that heavy equipment could not be moved over it. When asked what Houston did, Wilson replied, “He straightened the road. We hauled enough rock and brush out there to get the grader in”.
There is nothing in the record indicating anything but permissive use by Iiowe, who sold to appellee’s father, W. H. Houston.
As a part of the Court’s opinion in Boullioun v. Constantine, 186 Ark. 625, 52 S. W. 2d 986, Mr. Justice Butler mentioned two rules: First, that a way of necessity can be raised only out of land granted or reserved by the grantor, but not out of land of a stranger; and, (2) “. . . where the claimant has openly made continuous use of the way over occupied lands unmolested by the owner for a time sufficient to acquire title by adverse possession, the use will be presumed to be under claim of right; but where the easement enjoyed is across property that is uninclosed, it will be deemed to be by permission of the owner, and not to be adverse to his title”.
Facts in the case at bar bring it easily within this rule. For many years the territory was unimproved, having been visited occasionally for its scenery, or by persons interested in out-of-the-way places. There is no evidence even suggestive of an adverse claim by .those engaged in the infrequent visitations — nothing to indicate to a proprietor that something other than an ac commodation was involved. In these circumstances it cannot be said that the so-called flag of right or hostility wap being carried along the trail.
The Chancellor did not err in holding that the use was permissive. Affirmed. | [
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] |
Griffin Smith, Chief Justice.
The appeal is an attack upon constitutionality of Act 186 of 1935 as amended by Act 220 of 1945. The enactment of 1935 was held to be good when attacked by Jack Gray and T. G. Allen upon the grounds (a) that it reached nonresidents only and was therefore repugnant to § 18 of art. 2 of our Constitution; (b) that it offended the Fourteenth Amendment to the Federal Constitution, and (c) that it was a burden upon interstate commerce. State v. Gray et al., 192 Ark. 1045, 96 S. W. 2d 447. The opinion does not show the Act was questioned on the ground that it imposes a prohibitive tax under the guise of regulation and then omits regulation. Sections 1 and 2 of Act 186 were discussed in the Gray opinion.
In November 1946 C. V. McGriff was arrested in Forrest City. The charge was that as traveling salesman for Olan Mills Portrait Studios he had not paid the taxes levied by Acts 186 and 220. Upon conviction he was fined $25.
It is stipulated that Olan Mills as a partnership does business in approximately twenty states. The home office is at Chattanooga, Tenn. Studios in Arkansas are at Pine Bluff and Little Rock. Business has been conducted at Pine Bluff since 1939. Operations extend to all counties of the State. The partnership has paid all taxes levied by the State, including sales tax, unemployment compensation, and in addition has complied with municipal requirements. The only complaint is that there is refusal to meet exactions of Acts 186 and 220. The stipulation contains this sentence: “The reliability and good faith of the firm in the conduct of its business [are] not questioned. ’ ’
The following is copied from the agreement:
“In the light of experience of Olan Mills Studios, reasonable estimates of the results of the Company’s' sending one of its sales crews into an Arkansas town the size of Forrest City [would be]: Gross receipts, including sales of extra prints, frames, etc., $2,000. Costs [incident to realization of the gross receipts would be: (a) advance selling, 20% or $400; (b) photographer and showing proofs, 25% or $500; (c) supervision, 7% or $140; (d) total spent in Arkansas, 52% or $960; (e) administrative expense, including city licenses, 10% of sales and other taxes, but excluding the taxes laid by Act 186 as amended by Act 220, $200; (f) manufacturing expense, 36% or $720; (g) net profit, $40. Taking into consideration all areas in which the Company operates in the United States, its average net profit on operations in a town or city is five percent of the gross receipts. This figure has not yet been attained in Arkansas.”
It is first contended by appellants that the tax is an unreasonable burden on interstate commerce. The facts show that “in addition to the permanent studios” traveling road crews or sales units are employed. For example it is said that in a town such as Forrest City there would be an advance force consisting of from two to five salesmen who would canvass for customers “soliciting orders for appointments for'pictures. 7 In a city of six thousand population the time required for solicitation is from two to three days. The salesmen are followed by a photographer who establishes temporary headquarters — usually at a hotel. At the appointed time the photograph is “taken.” Negatives -are then sent by express . . . to one of the Company’s three finishing plants. All negatives from Arkansas . . . are sent to Chattanooga. There they are developed and the proofs are printed. By appointment made by mail proofs are shown to the customer by another representative and the customer places his order for future delivery. The proofs with the order are sent by mail to the finishing plant at Chattanooga. The order is for delivery from Chattanooga, and “no part of the processing, finishing, or manufacturing is performed in Arkansas.”
Although negatives were completed and prints sent by mail, it is stipulatecfthat the Company maintains three finishing plants; and, while “all negatives from Arkansas are sent to Chattanooga,” it is not disclosed whether negatives from other states are sent to Pine Bluff or Little Rook; hence it is inferable that domestic fipishiiig plants áre operated. At least the possibility is not excluded; nor is it shown that collection for pictures sent from Chattanooga is not made by the Little Bock or Pine Bluff offices. With the record in this condition we are not willing to rest the decision upon interstate commerce.
The two Acts declare that “the vocation, occupation or business of going into and .about the city or county soliciting orders through the sale of coupons, or otherwise, for portrait photographic work, enlargements and tinted portraits in water colors or in oils, by nonresident photographers not having a permanently established place of business within this State” is a privilege, and taxable as such. The Gray case seemingly holds that a citizen of one county is a nonresident in his relations to the citizens of another county, and the Act of 1935 was thought to establish a proper classification within the meaning of Sec. 18 of art. 2 of our constitution; and, while there is not an express finding that photography is not a matter of right, there is the comment that the statute’s exception saves from the tax “those only . . . who have a permanently established business of one year’s duration immediately prior to the application for the privilege of doing such hu,siness.”
Treating this expression as judicial assent to the legislative determination that the operation is a privilege, we must deal with it as such. But see Stuttgart Rice Mill Co. v. Crandall, 203 Ark. 281, 157 S. W. 2d 205.
The exactions laid by legislative enactment, and resulting in appellant’s conviction for refusing to pay, are not a tax on property. Privileges, as such, may be taxed by the State. Article 16, Sec. 5, Constitution of 1874. As was said by Chief Justice McCulloch in Ex Parte Byles, 93 Ark. 612, 126 S. W. 94, 37 L. R. A., N. S. 774, we need not stop to consider whether the statute imposes a tax for revenue purposes or is merely a police regulation, for'the Legislature can exercise either power. If the statute be found free from objection on the charge of un-, just classification, it can be justified either as a police regulation or as a privilege tax imposed for the purpose of raising revenue.
Does the legislation, under the guise of a revenue measure, disclose a purpose to prohibit rather than to control?
A rule frequently emphasized is that when a legislative body having power to tax a certain subject matter actually imposes such a burdensome assessment as'effectually to destroy the right to perform the act or use the property, then validity of the enactment depends upon the nature and character of the thing or operation destroyed. If so great an abuse of the taxing power is manifest as to render valueless natural and fundamental rights which no free government could consistently violate, it is the duty of the judiciary to hold such act unconstitutional. in any other case, however, since the taxing power conferred by the Constitution knows no limits except those expressly stated in that instrument, it must follow that if a tax is within the lawful power, the exertion of that power may not be judicially restrained because of the results to arise from its exercise. American jurisprudence, v. 51, Taxation, p. 80, Sec. 49. The text is supported .by McCray v. United States, 195 U. S. 27, 49 L. Ed. 78, 24 S. Ct. 769, 1 Ann. Cas. 561.
In Spencer v. Merchant, 125 U. S. 345, 8 S. Ct. 769, 31 L. Ed. 763, Mr. Justice Gray said that the judicial department of government was without authority to prescribe to the legislative department limitations upon the exercise of an acknowledged power. Although the power to tax may be used oppressively, the responsibility of the legislature is not to the courts, but to the people by whom its members are elected. But, said Mr. Justice White in the McCray opinion, if a case is presented where abuse of the taxing power is so great as [to show that the constitution did not intend that it be conferred], and where it is plain to the judicial mind that the power has been called into play not for revenue, but solely for the purpose of destroying rights which could not be rightfully destroyed consistently with the principles of freedom and justice upon which the Constitution rests, it would then be the duty of courts to say that such an arbitrary act was not merely an abuse of delegated power, “but was the exercise of an authority not conferred. ’ ’
It must be clear from the citations we have given that somewhere between the twilight zone of unlimited authority to tax, and the right to tax privileges either for revenue or to defray the cost of regulation, there is a limit beyond which legislative enactment may not go merely because it has power to mark the boundary of common rights upon the one hand and the control of a privilege upon the other. Concedihg that the legislative power is unlimited in certain particulars, and that motives may not be challenged, nevertheless it does not imperatively follow that where the General Assembly has sought by the same enactment to produce revenue and to regulate, the person affected is without a remedy.
In Conway v. Waddell, 90 Ark. 127, 118 S. W. 398, the Court considered a municipal ordinance regulating street peddling and street exhibitions, and fixing a license fee. Mr. Justice Wood, speaking for the Court, said the tax was manifestly for the purpose of regulation ancl revenue, adding, “The fee and tax of $25 per day for the privilege of carrying on the business . . . renders the ordinance for such purposes void on its face.”
In 1925 the Supreme Court of Michigan held that a statute requiring transient merchants to pay a license fee of $3,000 per year was palpably oppressive and void. People v. Raivley, 231 Mich. 374, 204 N. W. 137, 39 A. L. R. 1381. The opinion cites Chaddock v. Day, 75 Mich. 527, 4 L. R. A. 809, 13 Ann. St. Rep. 468, 42 N. W. 977,. where it was said: “It is quite common in these latter days for certain classes of citizens — those engaged in this or that business — to appeal to the government-national, state, or municipal — to aid them by legislation against another class of citizens engaged in the same business, but in some other way. This class legislation, when indulged in, seldom benefits the general public, but nearly always aids the few for whose benefit it is enacted, not only at the expense of the few against whom it is ostensibly directed, but also at the expense and to the detriment of the many, for whose benefit all legislation should be, in a republican form of government, framed and devised. This kind of legislation should receive no encouragement at the hands of the courts, and be only upheld when it is strictly within the legitimate power of Congress, or the state or municipal legislatures.” In conclusion the same opinion says: ‘ ‘ While a wide latitude must be given legislative discretion, and courts will not calculate to a nicety the exact expense of issuing licenses, there comes a point where the exaction is so palpably, so grossly, excessive that courts cannot close their eyes to the fact that such legislation is either taxation under the guise of regulation, or enacted in restraint of trade and for the purpose of prohibiting "the conduct of the business.”
The case with which we are dealing, being one involving taxation and regulation, does not fall precisely within the classification pointed to by the Michigan court. The opinions are cited to emphasize the duty of courts to look through a transparent legislative superstructure and determine when an Act rests upon an untenable base.
Although this Court’s opinion in the Gray case was decisive of Act 186 on the points raised, it is interesting to note that the General Assembly of 1943 by Act 58 made certain changes. They are not important because Act 220 of 1945 is the final word. But the emergency clause in aid of Act 58 is a recognition that Act 186 was aimed at interstate business. By use of the term “intrastate” it shows a purpose to prefer one class of business at the expense of the other. Since the Act has been superseded its importance is that of illustration only.
The applicable Acts require that one who goes from house to house soliciting orders through sale of coupons, “or otherwise” shall procure a receipt from the County Clerk. This receipt may be cancelled by the Clerk upon a showing that it was obtained through fraud or misrepresentation. Section 4(a) of Act 186 fixes a tax of $150 per annum,.payable in advance; (b) for each solicitor or canvasser connected with the enterprise, $25 per year; (c) for each hundred portrait photographs or tintypes or fraction thereof, made or exposed within or without the corporate limits of any city or town in the county (whether the work shall be finished in this State or not), the sum of $10, payable on Monday of each week.
Although the emergency clause attached to Act 220 contains a finding that many citizens are being defrauded by unreliable itinerant photographers, no method of inspection is set up other than a direction to Prosecuting Attorneys (Act 186) to prosecute “all violations.” Since the only violation would be failure to pay the license fees and taxes, the Acts are essentially a blockade against competition.
The judgment of conviction is reversed because the Acts are invalid.
In Cause No. 8312-Roger West et al. v. A. L. Hutchins, Chancellor, prohibition to St. Francis Chancery Court — this Court’s order of June 30, 1947, is set aside for the reason that the subject matter has been disposed of by the opinion in the instant appeal.
Writ of error denied by U. S. Supreme Court, 225 U. S. 717, 32 S. Ct. 836, 56 L. Ed, 1270. | [
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Holt, J.
Appellant, Orkin Exterminating Company of Arkansas (hereinafter called Orkin) is engaged in the-business of pest control, principally in the extermination of rodents, bugs, vermin, termites, etc. It operates in sixteen states, including Arkansas. Necessary to the carrying on of its work, Orkin learned the nature and habits of the insects and rodents, the kind of chemicals and the best compounds to be used in their destruction, without endangering or damaging human beings, domestic animals, furniture, woodwork, etc. For this purpose Orkin maintained a research department where chemicals are mixed and formulae are reported, for their proper application and use. At its own expense it trained its branch managers in the use of these chemicals, as well as new ones coming on the market, and also in new techniques in their application.
Appellee, E. B. Murrell, began working for Orkin in 1935 in Memphis, Tennessee, was specially trained and put to work in pest control. In 1938, he was transferred to Little Rock, made branch manager, and worked for appellant until he entered the Army in 1944. In October, 1945, he was released from the Army and resumed his former position as manager of Orkin’s Little Rock office. under a written contract, or agreement, dated November 1, 1945. This contract, among other provisions, provided :
“Whereas, the Company is engaged in the exterminating, fumigating and termite control business, being a business that requires secrecy in connection with its methods and systems employed by it in eradicating and controlling rats, mice, roaches, bugs, vermin, termites, beetles and other insects; and
“Whereas, for the proper protection of the business of the company it is absolutely necessary and essential that all matters connected with, and arising out of or pertaining to the company’s business and the company’s methods, and the names of the company’s customers be kept secret, and
“Whereas, the territory known as cities of Little Rock, Ft. Smith, Clarksville, Van Burén, Hot Springs, Dumas, Pine Bluff, Camp Robinson, Ark., and a 75 mile radius of each of these said cities has been solicited by the company through its sales representatives and through advertising mediums and a large, valuable and extensive trade has been established and maintained at a great expense to the said company, and
“Whereas, the said company has a substantial amount of customers in the said territory known as' cities of Little Rock, Ft. Smith, Clarksville, Van Burén, Hot Springs, Dumas, Pine Bluff, Camp Robinson, Ark., and a 75 mile radius of each of these said cities and the names of said customers are within the exclusive knowledge of the company and are of great value to the company, and
“Whereas, the said Ernest Butler Murrell, being, referred to herein as the employee and party of the second part, desires to enter into the emplojr of said company, and
“Whereas, a great loss and damage will be suffered and sustained by the said employer (referred to herein as the company) if, during the term of this contract or for a period of one (1) year immediately following the termination of this contract,- the said employee should for himself, or in behalf of, or in conjunction with any other person, persons, firm; company, partnership or corporation, call upon, solicit, sell, or endeavor to sell or solicit any customer or customers of the said company, or use any of the methods and systems now employed by the company in eradicating and/or controlling rats, mice, roaches, bugs, vermin, termites, beetles and other insects within the territory” above described “or any and all other things and products incidental to the business, or solicit,-divert, or take away any such customers or the business or the patronage of the said company during the aforesaid time. . . .
“Now, therefore, the said parties hereto for and in consideration of the premises and the mutual covenants and agreements hereinafter contained, and by them respectively to be kept and performed, covenant and agree as follows:
“1. The said company agrees to employ and does by these presents employ Ernest Butler Murrell as manager, and hereby agrees to pay or have paid to the said employee twenty per cent. (20%) commission on deposits from income from the Little Bock territory or at such wages, salary or commission as may hereinafter or from time to time be agreed upon.
“2. The said employee covenants and agrees that he will at all times faithfully and industriously perform all the duties of the said company which may be required of him and that he will devote his entire time and attention to such duties; that he will keep a true and just account with all customers of the company and will turn in and settle for any and all products, merchandise or other property of the company that may come into his possession by reason of this said employment.”
. Other essential sections of the contract, in effect, provide:
3. Murrell agrees that he will not undertake to endorse Orkin’s name on checks or other papers nor will he obligate Orkin without first securing its written cop.r sent. If requested, Murrell will furnish a fidelity bond in the amount of $1,000.
4. All bids and proposals shall be submitted on regular forms and Murrell will submit sales and office reports to Orkin as it may from time to time request.
5. All orders and contracts shall be subject to acceptance or rejection by the president of Orkin.
6. Orkin shall have the right to withhold any sums due from Murrell and apply the same on his indebtedness to Orkin.
7. Murrell expressly covenants and agrees, which covenant and agreement is of- the essence of this contract, that at no time during the term of this agreement or for a period of one year immediately following the termination of his employment, regardless of whether such termination is voluntary or involuntary, will he, for himself or in behalf of any other person or corporation, call upon any customer of Orkin for the purpose of soliciting or selling to such customer any exterminating, fumigating or termite control service for the purpose of eradicating rats, mice, roaches, bugs, vermin, termites, beetles aiid other insects; nor will he in any way, directly or indirectly, for himself or in behalf of any other person or corporation, solicit, divert or take away any customer of Orkin during the term of his employment or for one year following the termination of this agreement.
8. Murrell further covenants and agrees that during said period he will not, for himself or in behalf of any other person or corporation, engage in the pest control business within the territory above described. He will not, directly or indirectly, solicit or attempt to solicit business or patronage of any person or corporation within the said territory for the purpose of selling a service for the eradication or control of rats, mice, roaches, bugs, etc., and other insects, and such other business and service now engaged in by Orkin. He will not disclose to any person any of the secrets, methods or systems used by Orkin in and about its business.
9. Murrell agrees that he will not, during the term of his employment nor for one year following the termination of such employment, service contracts and accounts or work in the territory above described for any person or corporation, selling any kind of pest control service or anj^ service or products for the extermination and control of rats, mice, roaches, etc., or any other items or products now handled by Oi’kin or any products incidental to the business of Orkin.
,10. It is agreed that the term of employment shall be for a period of not less than three months after this date, provided the employee faithfully performs his duties. After the expiration of three months, the employment may be terminated by either party upon giving fifteen days notice to the other.
Appellee, Murrell, carried on appellant’s business as manager until February 15, 1947, when he resigned, and on March 6th thereafter (quoting from appellee’s brief) “entered the pest control business for himself contending that the restrictive covenant in the Orkin contract was oppressive, unjust-and void.”
• On March 11, 1947, Orkin filed suit in the Pulaski Chancery Court to restrain Murrell from carrying on his pest control business which it alleged he was doing in violation of the terms of the contract, supra.
Appellee answered in which he alleged among other things that the restrictive covenant in the contract was void as against public policy.
Upon a hearing there was a decree which provided “that the defendant, Ernest B. Murrell, be, and he is hereby, restrained and enjoined from soliciting personally or through agents or employees or through other persons, the customers of plaintiff who were serviced by him as an employee or as manager of plaintiff’s branch office in Little Bock. Provided, however, that this decree does not prohibit solicitation of business by the defendant by the" ordinary and usual advertising methods and means; and provided further that nothing in this decree shall prevent the defendant from engaging in the extermi nat.ing, eradication, fumigating or termite control busi ness and its associated seiwices.”
From this decree comes this appeal.
On the record presented, it is undisputed that the parties here, entered into a written mutual contract wherein appellee, Murrell, expressly agreed that on his part he would not for a period of one year following the termination of his employment solicit customers of appellant, Orkin, or engage competitively in the same line of business within certain territory.
As we view the case on the record, the primary and decisive question presented is whether that contract is valid and enforceable. We think it was and that the trial court erred in holding otherwise.
Appellee admitted the execution of the contract, that he resigned and thereafter “embarked upon his own business of pest eradication and control, that being the business which he is best capable of performing, and in such business has solicited customers generally and in all probability has solicited former customers of plaintiff. ’ ’ The facts disclose that appellee did solicit and procure a large number of appellant’s best customers.
As manager of the Little Bock office he had access to all records, customers’ lists and credit ratings. He was receiving a 20% commission of the gross intake.
As indicated, supra, he received special training to enable him to carry on appellant’s work, at appellant’s expense.
Appellant does not contend that the contract here involved does not impose a restriction upon appellee, but does contend that the restriction imposed was a reasonable one and therefore valid and enforceable.
The general rule is stated by the Supreme Judicial Court of Mass., Norfolk, in the case of Quincy Oil Co. v. Sylvester et al., 238 Mass. 95, 130 N. E. 217, 14 A. L. R. 111:
“The main contention of the defendants is that the contract is void as against public policy. Under modern trade conditions a contract is not void at common law because it imposes restraint upon competition, unless that restraint is unreasonable, and tends to the prejudice of the public. When on considering the contract in the light of the business and situation of the parties and the circumstances with reference to which it was made, it appears that the restraint contracted for is for an honest purpose, is only such as affords á fair protection to the legitimate interests of the party in whose favor it is imposed, and not so large as to interfere with the interests of the public, the restraint is held to be reasonable, and the contract valid,” and in our own case, Edgar Lumber Company v. Cornie Stave Company, 95 Ark. 449, 130 S. W. 452, we said: “A contract in restraint of trade is valid when founded on a valuable consideration, if the restraint imposed is reasonable as between the parties and not injurious to the public by reason of its effect upon trade.' Whether or not the restraint is reasonable is to be determined by considering whether it is such only as to afford a fair protection to the interest of the party in whose favor it is given, and not so large as to interfere with the interests of the public.”
We think the restraint imposed upon appellee, in the circumstances, was such as would only afford a fair protection to the interest of Orkin.
The. very recent decision of the Supreme 'Court of North Carolina (opinion December 18, 1946) in the case of Orkin Exterminating Co. Inc. v. Wilson, 227 N. C. 96, 40 S. E. 2d 696, applies, we think, with equal force here. In that case, the facts were similar and the contract involved was in all respects the same in effect as the one here before us, except that the noncompetitive clause was two years instead of one. There, Wilson, after terminating his services with the appellant, Orkin, opened up a competitive business of his own and solicited Orkin’s customers. Wilson was the manager of Orkin sales office in Winston-Salem. There, the court said: “It is obvious that in the performance of his duties as such manager, thp employee acquired an intimate knowledge of bis employer’s business, and bad a personal association with bis customers, wbicb, when bis employment terminated for any cause, would enable tbe employee, if employed by a competitor of bis employer, to injure tbe business of tbe latter. We think tbe covenant is reasonable in its terms and not unreasonable in-time or territory. . . . Tbe parties themselves, when tbe instant contract was made, regarded tbe restriction as reasonable. They are dealing with a situation of wbicb both were familiar ... It is limited both as to time and place. We cannot say that tbe restraint put upon the defendant by bis contract is unreasonable as presently applied. ’ ’
Appellee relies strongly upon American Excelsior Laundry Company v. Derrisseaux, 204 Ark. 843, 165 S. W. 2d 598. We think that case clearly distinguishable on tbe facts. There tbe restraining period was for five years and not one as here, and as was pointed out, “tbe contract did not bind either party to continue tbe relationship for any definite period of time,” where as in tbe present case, tbe contract bound both parties to a term of employment for not less than three months from tbe date of its execution. In that case, there was primarily involved a list of customers wbicb appellee, Derrisseaux, had built up on a laundry route and wbicb he solicited after going into business for himself in competition with tbe laundry company and former employer.
In tbe present case, trade secrets, special training and confidential information were involved and tbe facts materially different. “Whether a contract is void, as in restraint of trade, depends on tbe facts of each case, etc.” Robbins v. Plant, 174 Ark. 639, 297 S. W. 1027, 59 A. L. R. 1128, (beadnote 1).
Another case relied upon by appellee was that of Witmer v. Arkansas Dailies, Inc., 202 Ark. 470, 151 S. W. 2d 971. Again tbe fact situation is different. In that case Dailies was engaged in soliciting advertising from manufacturers and Witmer was its manager. He worked under an employment contract, tbe terms of wbicb made no provision forbidding competition on bis part upon termination ■ of his employment.' There, we said that it would abridge competition to restrain Witmer, “especially where the employee had not contracted when entering into the employment to refrain from establishing an independent business of like nature. . . . Certain restrictions have been imposed upon employees when severing their relationship with an employer. For example where the particular business in which he had been employed had trade secrets an employee is not permitted to set up an independent business of a similar nature and use the trade secrets of his employer or confidential information received from his employer in the new or independent business in which he engages, but it is allowable for him to use his experience and knowledge gained during the period of his employment in Ms independent business.’5
Appellee voluntarily entered into this mutual contract situation which he now seeks to undo. The situation in which the parties find themselves is of their own choosing. We think the finding of the trial court that the one year restriction was unreasonable was, in the circumstances, contrary to the preponderance of the testimony, and, accordingly, the decree is reversed and the cause remanded with directions to enter a decree granting to appellant the injunctive relief prayed. | [
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Ed. F. McFaddin, Justice.
This appeal necessitates a decision as to the appellant’s right to maintain such an action as was attempted by him.
Appellant, as a citizen and taxpayer, brought this action in the law court against appellee, as sole defendant. The complaint and amendment (each duly verified) alleaed:
(1) that McCoy was claiming to be the city attorney of Malvern, and had drawn the salary for two months, and would continue to draw the salary unless enjoined;
(2) that McCoy had not been duly appointed as city attorney, because the council minutes — copy attached to the complaint — showed that McCoy’s appointment was not made by resolution or ordinance as provided by law, and also showed that the individual vote of each member of the city council was not taken and recorded as provided by law ;
(3) that McCoy had not signed the oath of office as city attorney, and was “a cle facto officer and therefore not entitled to any salary, fees or other' emoluments of the office.”
(4) that the Attorney General of Arkansas- had refused to bring this action, and so plaintiff brought it.
The prayer was, that McCoy should be ordered to repay the city the money already received by. him, and should be enjoined from collecting or receiving ány further sums from the city for services as city attorney. The defendant demurred generally and specifically to the complaint; and the court sustáined the demurrer, and dismissed the complaint on the plaintiff’s refusal to plead further. This appeal challenges that judgment.’
Appellant’s Contentions. In addition to urging that McCoy is nót a cle ju/re officer, appellant claims that this is a suit to protect the revenue of the city, and that such a suit can be prosecuted by any citizen and taxpayer, and he cites Davis v. Wilson, 183 Ark. 271, 35 S. W. 2d 1020. Appellant also says that, when the Attorney General refused to bring this action, then appellant could bring it as a citizen and taxpayer; and he cites Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380; Gladish v. Lovewell, 95 Ark. 618, 130 S. W. 579; and Green v. Jones, 164 Ark. 118, 261 S. W. 43.
Appellee’s Contentions. Appellee claims that this is an action seeking to try McCoy’s right to the office, and therefore cannot be brought by the plaintiff, as a citizen and taxpayer; and cites Davis v. Wilson, supra. Appellee also says that an action like this one must be brought either (1) by the Attorney General in his capacity as such (citing Vanhoose v. McGregor, 172 Ark. 1012, 291 S. W. 422, and Cherry v. Webb, 196 Ark. 17, 115 S. W. 2d 865); or (2) by the person entitled to the office, in a proceeding under the usurpation statute (citing § 14326, Pope’s Digest, and State v. Tyson, 161 Ark. 42, 255 S. W. 289). Appellee further says that, when the Attorney General refused to bring this action, the plaintiff’s remedy was to proceed against the Attorney General by mandamus, and cites Vanhoose v. Yingling, 172 Ark. 1009, 291 S. W. 420, 51 A. L. R. 559.
OPINION
Without lengthening this opinion by commenting on the various contentions, we hold that the trial court was correct in sustaining the demurrer. It is reasonably clear that this was not a suit to protect the revenue, but was an action to try McCoy’s right to the office of city attorney. A suit to protect the revenue is in equity. The plaintiff brought this as an action at law. See Davis v. Wilson, supra.
As an action at law,..a proceeding of this nature cannot be brought by a citizen and taxpayer, but must be brought .either by the Attorney General, or by the person entitled to the office in a proceeding under the usurpation statute, supra. The situation in the case at bar is similar to that'recited in Vanhoose v. McGregor, supra; and the holding in that case is ruling here. There, Vanhoose and other citizens of Woodruff county instituted an action to oust McGregor from the office of sheriff, claiming that he was not a qualified elector. They alleged that both the prosecuting attorney and the Attorney General had refused to institute the action. The trial court sustained McGregor’s demurrer to the complaint; and, on appeal, we said:
“This action was brought under Chapter 178 of Crawford & Moses’ Digest, which provides against the usurpation of office. ■ The statute does not confer author ity upon private citizens to bring the suit. The only proper parties to the suit to oust one who has usurped a county office are the person entitled to the office, or the prosecuting attorney. The demurrer was properly sustained to the complaint on account of a defect of parties. ’ ’
If we substitute the words “Attorney General” for “Prosecuting Attorney,” then, the above quotation is decisive of this case.
Affirmed.
That was the usurpation statute, which is now Chapter 164. Pope’s Digest.
In Cherry v. Webb, 196 Ark. 17, 115 S. W. 2d 865, we made the italicized language read as here quoted.
See State v. Tyson, supra. | [
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Crieein Smith, Chief Justice.
The question is whether Circuit Court erred when it approved the method of computation adopted by Workmen’s Compensation Commission in awarding benefits to appellee. Act 319, approved March 15, 1939.
The claimant’s weekly earnings were $17.35. Sixty-five per cent, is $11.28. It is conceded there was an injury-caused impairment of 25% denominated by the Act as permanent partial disability. Following the accident of May 17, 1945, Maxey collected full compensation until June 1, 1946 — a period of 54 weeks. The healing period having terminated, evidence established the partial impairment. Payment of the minimum of $7 provided by § 10 of Act 319 was ordered for 396 weeks. This period was arrived at by subtracting from the maximum of 450 weeks the time taken for healing.
Appellants contend for a construction of the Act which would require payment of benefits at $11.28 for 25% of the maximum period, — that is, 112% weeks. If this were done appellee would receive $1,269 instead of $2,772, as awarded.
It is argued that any other construction would result in an absurdity. What appears to have been overlooked in reaching this conclusion is that the lawmaking body may enact a statute that a reasonable objector would view as unreasonable, and yet it would be constitutionally permissive. There are practical considerations the General Assembly must deal with that do not address themselves to Courts; and when we conclude that a particular purpose was intended, the judiciary is not at liberty to defeat that end merely because in exceptional circumstances an inequitable result attends.
In the case before us 25% of $11.28 is $2.82, and 450 times. $2.82 is $1,269 as appellants say. But a payment of $2.82 is $4.18 short of $7. What, then, are we to do with § 10 where it is written that compensation shall not exceed $20 per week nor be less than $7 ¶ To emphasize the minimum there is added, “provided, however, that in no case shall the compensation be less than $7 per week”.
Our attention is called to Caddo Quicksilver Corporation v. Barber, 204 Ark. 985, 166 S. W. 2d 1, where the Commission dealt with a 90% permanent partial disability sustained by the claimant, tinder § 13(c) particular injuries are compensable for determined periods. Payment for loss of a leg is 65% of average weekly wages, to continue for 175 weeks. We affirmed Circuit Court’s finding that the Commission was correct in directing pa3rment at $13.36 for 157% weeks — ninety per cent of 175 weeks. This construction, say appellants, is a judicial determination that in all cases involving permanent partial disability the maximum number of weeks mentioned in the Act as the period of compensation should be reduced by the percentage of disability.
We agree that seeming inconsistencies occur where the minimum of $7 is allowed for permanent partial disability if 65% of the claimant’s weekly wage is less than $7. For example, 65% of a weekly wage of $10.77 equals $7. If in that case the degree of impairment is one-fourth, weekly payments on a percentage basis would be $1.75. If the disability be 10’% the claimant would receive weekly benefits of seventy cents; and for a compensable period of 450 weeks the gross yield is $787.50 in the first instance and $315 in the second. If the minimum of $7 is awarded the allowance is $3,150 in either case. Result would be that a claimant incapacitated to the extent of five, ten, fifteen, or any percent less than twenty-five would receive the exact compensation paid to one sustaining a 25% injury. This is seemingly at variance with accepted notions of fitness or order, but the anomaly is of legislative creation and is permissive.
Since we are not permitted to place a construction upon the Act that would defeat an essential purpose expressed by the Legislature, the judgment must be affirmed. It is so ordered. | [
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Minor W. Millwee, Justice.
Appellee, William Joyner, is the owner of the east half - of lot 12, block 6, Midland Hills Addition to the City of Little Rock, Arkansas, which is located on the north side of.Markham Street immediately west of, and adjacent to the commercial area known as “Stifft Station.” Under a city zoning ordinance enacted in 1937 the lot is classified as “B,” one-family residence property.
Appellee applied to the city engineer for a permit to construct a commercial building on the property in which he proposed to maintain an electrical supply business. Issuance of the permit was refused on the ground that it would be in violation of said zoning ordinance. Appellee then filed this suit in chancery court against the City of Little Rock, and its officers, praying that the property be reclassified as in the “F” commercial district and that the proper officials be directed to issue the building permit.
The complaint alleged the property was located adjacent to a growing business district, the normal and reasonable expansion of which embraced the lot; that said property is no longer desirable for residence purposes because of the proximity of the commercial district; that the denial of the permit was unreasonable, discriminatory, and oppressive in that it deprived appellee ■ of his property without due process of law in violation of the state and federal constitutions; and that appellee had no adequate remedy at law.
The answer of the city denied the allegations of the complaint and further alleged that, in enacting the zoning ordinance, consideration was given to the fact that the property was subject to a covenant which appears in all deeds from the grantors who formed the addition, restricting the use of all property therein to residential purposes and forbidding the erection of any residence costing less than $2,500.
On the trial of the issues appellee offered the testimony of C. E. Faulhaber, J. I). Walthour and A. W. Sloss, three witnesses of long experience in the real estate business. The effect of their testimony is that the property involved is situated adjacent to a well established business district which has expanded in a westerly direction to the point where appellee’s property is located; that the property is no longer desirable as residence property and would be much more valuable as business property. Commercial buildings are located on both sides of Markham Street east of appellee’s lot, and the property immediately across the street from appellee’slot has been rezoned for commercial use. Appellee’s home is located on the west portion of his lot and the building which he plans to erect will adjoin his residence on the east side. The east side of the structure proposed by appellee will border on an alley which separates his lot from a grocery store building. The witnesses'were positive that the erection of the store building would not be detrimental to adjacent property in the addition. None of the other property owners in the area has registered any complaint against the proposal to rezone the property.
The only evidence offered to dispute this testimony was that of the engineer-director of the City Planning Commission who, according to a stipulation, would testify, if present, that there is no need for expansion of the Stifft Station business area; and that if appellee’s property is rezoned, it would decrease the value of surrounding residential property, insofar as rezoning for commercial purposes would ordinarily decrease the value of the surrounding property.
The chancellor entered a decree rezoning the property by placing it in the “F” commercial classification and directing the issuance of the building permit sought by appellee. The court also cancelled the restrictive covenant contained in the deed from the grantors who formed the addition, and all subsequent similar covenants pertaining to the property in question.
As previously stated, appellee’s lot is situated across the street from lots which have been rezoned for commercial purposes. The property across the street is known as the Bentley property and extends farther west-’ ward than does the lot of appellee. In the case of City of Little Rock v. Bentley, 204 Ark. 727, 165 S. W. 2d 890, this court upheld the action of chancery court in declaring the zoning ordinance void as applied to the Bentley property, and in enjoining interference with its use for commercial purposes. The power of courts to review the action of municipal authorities in the classification of property was reaffirmed and the leading case of Little Rock v. Pfeifer, 169 Ark. 1027, 277 S. W. 883, was cited in support of the rule that an unreasonable and arbitrary restriction imposed by the zoning authority may be set aside by the chancery court. In the Bentley case the court also reaffirmed the following statement appearing in the Pfeifer case: “As the size of the business district grows, it ceases to be a residence district to that extent within the purview of the zoning ordinance, and any attempt on the part of the city council to restrict the growth of an established business district is arbitrary. When a business district has been rightly established, the rights of owners of property adjacent thereto cannot be restricted, so as to prevent them from using it as business property.”
Other cases in which the ordinance under consideration has been before this court are, City of Little Rock v. Sun Building & Developing Co., 199 Ark. 333, 134 S. W. 2d 583; McKinney v. City of Little Rock, 201 Ark. 618, 146 S. W. 2d 167; and City of Little Rock v. Williams, 206 Ark. 861, 177 S. W. 2d 924. The finding of the chancery court on the question whether the classification of tlie property by the zoning authorities is unreasonable and arbitrary has been uniformly upheld where it is supported by the preponderance of the evidence. The finding- of the chancellor in the instant case that the normal expansion of the business district necessitates the revision of a classification that has become unreasonable and arbitrary, as applied to the property of appellee, is fully supported by the preponderance of the evidence and will not be disturbed.
It is also insisted that the chancellor erred in cancelling the restrictive covenant placed in the deed from the grantors who formed the addition, and by its terms restricts the use of the property to residential purposes. Appellants rely on the case of Storthz v. Midland Hills Land Co., 192 Ark. 273, 90 S. W. 2d 772, where this court upheld the decree of the chancery court in refusing to cancel the same provision in a deed. In a discussion of the question whether such covenants are subject to cancellation in equity, the court said: “Adverting to the first query of law, we conclude that the weight of authority is to the effect that equity will and should entertain a bill which has the purpose of cancelling a restrictive covenant in a deed as a cloud upon title wherein it is alleged that the conditions' surrounding the property have so changed as to utterly destroy its value fot the purpose for which the restriction was promulgated to prevent, and that this change of conditions is due to no fault on the part of the petitioner and will work no irreparable injury to others. Osius v. Barton, 109 Fla. 556, 147 So. 862, 88 A. L. R. 394; Rector v. Rector, 130 App. Div. 166, 114 N. Y. S. 623; McArthur v. Hood Rubber Co., 221 Mass. 372, 109 N. E. 162; Tiffany on Real Property, §§ 1425, 1457 and 1458; 18 C. J. 402.
“Stated another way, equity should entertain jurisdiction to cancel a restrictive covenant in a deed where it would be oppressive and inequitable to give the restriction effect as where the enforcement would have no other result than to harass or injure the one without accomplishing the purposes for which originally made.”
The testimony in the case at bar shows that conditions surrounding the property upon which appellee proposes to build have changed since promulgation of the restriction to the extent that its utility for residential purposes has been materially impaired, if not wholly destroyed, by the natural development of the business district. The same showing was made in the Storthz case, but it was further shown in that case that the property was situated across the street from, and faced, a well developed residential section and many property owners asserted a grave and' irreparable injury to their homes if the restriction were removed. Appellee’s lot faces property across the street which is zoned for commercial use and there is no proof of injury to surrounding residential property, nor has any property owner complained of the reclassification decreed by the chancellor. On the contrary, the preponderance of the evidence is to the effect that commercial use of appellee’s property will be beneficial, and not harmful, to surrounding property. Under this state of facts enforcement of the restrictive covenant would be oppressive and inequitable in that appellee would be deprived of the logical use of his property without accomplishing the purposes for which the covenant was originally made. We conclude, therefore, that no error was committed in cancellation of the restrictive covenant as applied to appellee’s property insofar as the parties to this suit are concerned. The finding on this issue would not be applicable to persons or corporations, if any, not properly made parties to this suit.
Appellants also argue that appellee did not exhaust his administrative remedy by applying to the Board of Adjustment as required by § 18 of the zoning ordinance before institution of the present suit. According to a stipulation of the parties, appellee filed a petition for reclassification with the board after institution of his suit, but action thereon was refused pending the outcome of the instant proceeding. It was further stipulated that any part of the ordinance might be used as evidence by either party at the trial, but that part of the ordinance which sets out the administrative relief afforded a prop erty owner has not been introduced in evidence and is not before us. This court does not ordinarily take judicial notice of municipal ordinances. City of Malvern v. Cooper, 108 Ark. 24, 156 S. W. 845; Lowe v. Ivy, 204 Ark. 623, 164 S. W. 2d 429. It is the general rule that one seeking to restrain the regulation of a board or commission should first exhaust his remedy at law where that remedy is adequate. 28 Am. Jur., Injunctions, § 266. An attempt to obtain a building permit and exhaust the remedies provided by a zoning ordinance is not a prerequisite to a suit to enjoin enforcement of the ordinance on the ground that it is invalid in its entirety. Euclid v. Ambler Realty Co., 272 U. S. 365, 71 L. Ed. 303, 47 Sup. Ct. 114, 54 A. L. R. 1016. Since we are not apprised of the nature of the administrative relief provided in the ordinance in the instant case, we are unable to determine whether appellee failed to exhaust his administrative remedy and brought his suit prematurely.
No error appearing, the decree is affirmed. | [
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RITA W. GRUBER, Judge.
11 Members of the Lonoke County Sheriffs Office went to Travis L. White’s residence on June 20, 2012, acting on information that a stolen pistol and a lawn mower might be located there. White, who was inside the residence with three other people when officers arrived, consented to a search of his house and anything on the property. Officers arrested him for felon in possession of a firearm after finding a firearm, a box of ammunition, and his wallet inside his aunt’s Ford F-150 truck. He and his cousin were taken to the sheriffs office, where White was Mirandized and gave a statement in which he acknowledged that he had driven the truck earlier in the day but denied that the gun belonged to him or that he knew it was in the truck.
Evidence at the bench trial in the circuit court included testimony by officers and White. At the trial’s conclusion, White was convicted on the firearms charge. He subsequently filed a motion to reconsider, which was orally argued to the circuit court and |2was denied. The State requested “the full range of punishment” at the sentencing phase of trial, and White requested probation in order to keep his job and continue supporting his two children. The court agreed that probation was appropriate, stating, “This case has caused me pause, not only on the guilt phase but also on the sentencing phase.” The court then pronounced a sentence of seventy-two months’ probation. White now appeals, challenging the sufficiency of the evidence to show that he constructively possessed the gun. We affirm.
Arkansas Code Annotated section 5-73-103(a) (Supp.2013) provides that no convicted felon shall possess or own a firearm. A showing of constructive possession, which is the control or right to control the contraband, is sufficient to prove possession of a firearm. Argo v. State, 53 Ark.App. 103, 105, 920 S.W.2d 18, 20 (1996). Constructive possession can be implied where the contraband was found in a place immediately and exclusively accessible to the accused and subject to his control. Id. Constructive possession may be established by circumstantial evidence, but when such evidence alone is relied on for conviction, it must indicate guilt and exclude every other reasonable hypothesis. Id.
White argues that the evidence did not exclude every reasonable hypothesis other than his guilt. He notes testimony that his cousin had driven the truck the day before officers searched it and that before he (White) was able to drive it on the morning of the search, he had to get the key from his cousin. White points out that other people were in the residence |Rat the time the gun was found in the truck; no one could say when the gun was put there; other people had access to the truck, in which there was a prescription bottle belonging to someone named “Jennifer”; no fingerprints were taken from the gun; and the cousin initially claimed ownership of the gun, changing his story only when officers mentioned that the gun might be stolen and he was confronted with the possibility of being AWOL from the military.
White argues that there are other reasonable hypotheses as to who put the gun in the truck: specifically, his cousin or one of the other two persons in the house. He asserts that speculation is required to conclude that he put the gun in the truck or was in the truck at a time the gun was there. In support of his argument, he cites Williams v. State, 94 Ark.App. 440, 236 S.W.3d 519 (2006), where we reversed the circuit court’s finding that the appellant constructively possessed a gun found in the apartment he jointly occupied with his girlfriend.
The appellant in Williams was already outside in the parking lot when police arrived to investigate a weapon-disturbance call. 94 Ark.App. at 444, 236 S.W.3d at 522. There were no signs that a struggle had occurred in the two-bedroom apartment or that the girlfriend had been in a struggle. Id. at 442, 236 S.W.3d at 521. Under the right side of the bed in one bedroom, an officer found a pistol case containing a Ruger .44 magnum with a laser-sighting system and loaded with six hollow-point bullets. Id. The officer did not know if the gun had ever been fired, and no fingerprints were taken from the bag, the gun, or the bullets. Id. There was no testimony regarding who had placed the gun under the bed, if appellant slept on the right side of the bed or even in that particular bedroom, if he was the person who had brought the gun into the apartment, if the gun was found with any of his |4personal belongings, or that he was the subject of the weapon-disturbance call. Id. at 444, 236 S.W.3d at 522. We held that evidence of the gun’s presence in the jointly occupied apartment, along with the officer’s testimony that the gun was large and difficult to handle, was not sufficient to link appellant to the gun. Id.
On appeal, we view the evidence in the light most favorable to the State, considering only the evidence that supports the verdict. Clayton v. State, 2011 Ark. App. 692, 2011 WL 5563189. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, either direct or circumstantial. Barron-Gonzalez v. State, 2013 Ark. App. 120, 426 S.W.3d 508. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. For circumstantial evidence to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Id. The question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is a decision for the fact-finder, whose determination will not be disturbed unless it reached its verdict using speculation and conjecture. Id.
Under these standards, the evidence in the present case is as follows. Officer Keenan Carter testified that he ' assisted in searching the truck, which he had often seen White driving, and that the firearm was located under the truck’s center fold-down console. He further testified,
If you’re looking through the window from the passenger’s side of the vehicle, you could see just the tip of it and the tip of the holster that it was in. It wasn’t wedged down far underneath there.... The firearm itself ... was inside the holster that was underneath the armrest.
|fiCarter also testified about the location of the ammunition and White’s wallet:
[Y]ou could pull a lever there in the front and [the console] would open up like a clamshell and that’s the contents of it, being ammunition that would fit and function in that firearm, and the brown wallet there belonging to Mr. White. That is 9 mm ammunition and the firearm I found underneath there was a 9 mm. The location of that wallet is sort of to the side but on top of the ammunition.
In summary, the partially hidden gun was visible through the window of the vehicle, the gun was beneath the console, and White’s wallet was inside the console just above a box of ammunition matching the caliber of the weapon.
Viewed in the light most favorable to the State, the evidence established that the gun was in the truck in plain view, located in close proximity to White’s personal effects; that White exercised regular control over the vehicle; and that, although he was not in the vehicle at the time the gun was discovered, he had driven the truck on the morning the gun was found. It was up to the circuit court to decide whether White constructively possessed the firearm and whether all other hypotheses were reasonably excluded. We hold that there was sufficient evidence that White constructively possessed the gun.
Affirmed.
WALMSLEY and HARRISON, JJ„ agree.
. White preserved this issue by making a specific directed-verdict motion at the close of the evidence. Although he called his motion one for a directed verdict, the motion at a bench trial is properly a motion to dismiss. Ark. R.Crim. P. 33.1(b) (2013). A motion to dismiss at a bench trial is a challenge to the sufficiency of the evidence. E.g., Dobbins v. State, 2013 Ark. App. 269, at 3, 2013 WL 1775610. | [
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JOSEPHINE LINKER HART, Associate Justice
hDiamante, LLC (Diamante) appeals an order of the Saline County Circuit Court denying its motion to compel arbitration with unnamed class members. On appeal, Diamante argues that the circuit court (1) erred in denying its motion to compel arbitration of the unnamed class members on the ground that Diamante had waived its right to arbitrate those claims; and (2) the court of appeals’s finding in the first arbitration opinion that the arbitration provision in the club’s bylaws is valid and enforceable as law of the case and therefore binding on the unnamed class members. The appellees have filed with this court, and we have taken as part of this case, a separate motion to dismiss this appeal. They assert that (1)' this is the second appeal relating to arbitration by Diamante; the first, filed in the court of appeals, affirmed the circuit court’s finding that a delay of seven months waived its right to arbitrate, and the current case involves a delay .of at least ten months; ,and (2) a trial on the merits was completed in this case and, as of the filing of the class’s motion on August 128!, 2014, the parties , were awaiting the circuit court’s decision. Appellees contend that this appeal is either moot or frivolous. We have jurisdiction over this appeal pursuant to .Arkansas Supreme Court Rule 1 — 2(a)7 (2014), and Arkansas Rule of Appellate Procedure-Civ. 2(a)(12) (2014).
A review of the procedural history of this case is necessary: for. a full understanding of the issues. Diamante operates a private-membership golf club located in Hot Springs Village. ■ There are approximately 450 privately owned lots around the golf course and clubhouse. The lots are in two subdivisions, the Diamante Subdivision and the Diamante Villas Subdivision. Supplemental declarations of covenants and restrictions (supplemental declarations) are on file in the Saline County land records. The supplemental declarations run with the land and create certain obligations and restrictions referred-to as “tie-in rights.” • Among those tie-in rights are requirements .that lot owners become “Full Golf' Members” of the Diamante Country Club (the. Club); pay monthly dues to the Club; and grant Diamante a lien and foreclosure right with respect to the lot that arises in the event of failure.to pay the monthly Club dues.
Initially, Gary Dye and Linda Dye'were the only plaintiffs in the lawsuit.. They filed a declaratory-judgment complaint on February 3,- 2012, asking the circuit court to declare the tie-in rights unenforceable. On March 9, 2012, Diamante filed a motion to dismiss based on the statute of limitations. After the circuit court denied the motion, on May 21, 2012, Diamante filed its response to the Dyes’ declaratory-judgment complaint.
On May 31, 2012, the Dyes moved to certify the other property owners in the I,.¡Diamante subdivision as class members. Diamante filed a response and moved that the certification be; held in abeyance pending • discovery concerning the proposed class. ■'
’ The Dyes, still acting as individuals, amended their complaint on September 10, 2012. Nine days later, Diamante filed a response that included a motion to compel arbitration with the Dyes. On September 24, 2012, the Dyes filed a response to the motion to compel arbitration, asserting that the agreement to arbitrate was contained solely within the bylaws and not in the supplemental declarations, and therefore the agreement did not run with the landi and that, even if there was a valid agreement to • arbitrate, Diamante had waived enforcement by submitting to the jurisdiction of the court to decide the controversy. -
That same day, Diamante moved for a continuance of the class-certification hearing and requested that the proceedings be stayed pending a ruling on its motion to compel arbitration. On Séptember 25, 2012, the Dyes filed a response, opposing the continuance and stay. In it, they reasserted that there was no valid agreement to arbitrate and, alternatively, if there was a valid agreement, it was waived by Diamante’s participation in the lawsuit. The Dyes amended their response on October 1, 2012.
■ Oh November 14, 2012, the circuit court denied Diamante’s motion to compel arbitration with the Dyes’ as individual plaintiffs. It found that Diamante had waived arbitration by unnecessary delay that prejudiced the Dyes. Further, the circuit court found that there was - no valid arbitration agreement: Diamante filed a notice of appeal from this order on December 7, 2012. On November 6, 2013, the court of appeals affirmed. Diamante v. Dye, 2013 Ark.App. 630, 430 S.W.3d 196. While it found a valid agreement |4to arbitrate, it held that' Diamante’s delay of seven months between the filing of the original complaint and when it first moved to- compel arbitration, as well as the filing of numerous motions and responses resulted in a waiver of the contractual right to arbitrate.
Meanwhile, on November 19, 2012, the Dyes amended their motion for class certification. The next day, the circuit court certified the class. Diamante filed a motion to reconsider on November 30, 2012, assérting that the class definition had changed significantly in the Dyes’ amended motion to certify and that it had not been allowed adequate time to respond. After .the Dyes filed their response on December 5, 2012, the circuit court granted the motion to reconsider and vacated its certification order on December 13, 2012. On December 19, 2012, Diamante filed its response to the amended-certification motion. On February 12, 2013, the circuit court granted class certification. Diamante timely filed a notice of appeal from that order on March 5, 2013. On December 5, 2013, this court affirmed the class certification. Diamante v. Dye, 2013 Ark, 501, 430 S.W.3d 710.
In its appeal of the class certification, Diamante argued that the circuit court abused its discretion by including members' of the class who signed documents agreeing to arbitrate controversies pursuant to the Diamante bylaws. By so agreeing, Diamante contends that the claims or defenses cannot be “typical” of the claims and defenses of the appellees. Further, it asserted that it will have to determine which class members’ claims are subject to arbitration, which would leave the superiority and predominance requirements unsatisfied. In affirming the circuit court, we noted that “the differences in-the bylaws and Club ^membership agreements with regal’d to arbitration were found by the circuit court to be of no effect on the pending litigation,” and that finding was not appealed. We also noted that, at the time that the circuit court granted class certification, it had already heard and rejected Diamante’s motion to compel arbitration with them as individual plaintiffs.
On June 27, 2013, the Dyes, acting now as class representatives, filed a second amended motion for declaratory judgment. Diamante responded on July 15, 2013, and listed “arbitration” as an affirmative defense. On December 5, 2013, Diamante moved for summary judgment. The class representatives filed a third amended petition for declaratory judgments a week later. On December 20, 2013, the class representatives responded to Diamante’s motion for summary judgment. That same day, Diamante filed a motion to compel arbitration. In its motion, Diamante asserted that the court of appeals had determined that the arbitration agreement was valid. ■ Diamante moved to have the proceedings stayed as to the unnamed class members and that arbitration be ordered. On December 30, 2013, the class representatives responded to Diamante’s motion.
On April 25, 2014, the circuit court entered an order denying Diamante’s motion to compel arbitration. The order incorporated by reference the circuit court’s oral findings. Those findings are as follows:
I have a lot of respect for Judge Glad-win, and at the risk of not running afoul of his' opinion, I’m going to deny this motion based on the Respondent having waived just as it did previously. Although ■ I will say, I do not understand Judge Gladwin’s opinion.
Diamante timely filed 'a notice of appeal on May 5, 2014. While the appeal was pending, the circuit court conducted a trial on the merits on July 11, 2014. However, no final order Rhas been issued in this case.
We first consider the appellees’ motion to dismiss this appeal. They asserted two main arguments in support of their motion: (1) this is the second appeal relating to arbitration by Diamante; in the first appeal, the court of appeals affirmed the circuit court’s finding that a delay of seven months waived Diamante’s right' to compel arbitration and the current ease involves a delay of at least ten months; (2) a trial' on the merits was completed in this case and, as of the filing of the class’s motion dn August 21, 2014, the parties were awaiting the circuit court’s decision. Accordingly, the appellees contend that this appeal is either moot or frivolous.
Essentially, the appellees’ first point is that the court of appeals ruling in this case would be law of the case on whether Diamante waived the right to compel arbitration. The law-of-the-case doctrine prohibits a court from reconsidering issues of law and fact that have already been decided on appeal. Carter v. Cline, 2013 Ark. 398, 430 S.W.3d 22. The doctrine provides that a decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review. Id. The purpose of the doctrine is to ensure consistency in a single continuing lawsuit and to preclude reconsideration of matters already decided. Id. The law-of-the-case doctrine is binding on the appellate court whether the decision In the first appeal is right or wrong. Id.
We note, however, that the court of appeals decision only addressed the issue of whether Diamante had waived the right to compel arbitration as to the Dyes, when the Dyes were individual plaintiffs, not the class representatives in a class action. Thus, it ,is not |7conclusive on the issue of whether Diamante had waived arbitration as to the class members who were subsequently added to the lawsuit upon class certification. See Newberg on Class Actions § 7:12 (5th ed.); see also Gregory v. Preferred Fin. Sol., 2013 WL 6632322 (M.D. Ga.). Accordingly, we hold that this argument does riot' compel dismissal of this appéal.
- Regarding the appellees’ second argument, essentially that the case was rendered moot by a final decision on the merits, no such ruling has been entered. Accordingly, we decline to dismiss this appeal on this basis as well. We. therefore consider Diamante’s appeal.
We review a circuit court’s order denying a motion to compel arbitration de novó on the record. Bigge Crane & Rigging .Co. v. Entergy Ark., Inc., 2015 Ark. 58, 457 S.W.3d 265. While we are mindful of the court’ of appeals decision that there was a valid arbitration agreement between Diamante and the Dyes, that ruling does not apply to the subsequent motion to compel arbitration as to the unnamed class members. See Newberg on Class Actions § 7:12 (5th ed.). Looking solely at the circuit court’s findings, quoted above, we concluded that there is no clear ruling by the circuit court on this issue relative to the unnamed class members.
| sIn Bank of the Ozarks v. Walker, 2014 Ark.. 223, 434 S.W.3d 357, we held that before we can consider whether a circuit court’s order concerning the grant or denial of a motion to arbitrate on the basis of a contract defense, the order must first expressly find that there was a valid agreement to arbitrate. .When no such findings are made, we reverse and remand the case to the circuit court to make those findings. Id. see GGNSC Holdings, LLC v. Chappel, 2014 Ark. 545, 453 S.W.3d 645. We therefore reverse and remand this case to the circuit court to rule on whether there was a valid agreement to arbitrate between Diamante and the unnamed class members.
Reversed and remanded.
Special Justice David Sterling joins.
Special Justice Paul Byrd dissents.
Danielson and Wood, JJ., not participating;
. It does raise an interesting question: Could Diamante's appeal of a motion to compel arbitration survive a decision on the merits by the circuit court? Diamante cites Britton v. Co-op Banking Group, 916 F.2d 1405 (9th Cir.1990), as support for the proposition that it does. However, Britton is distinguishable. There, one of the defendants in a securities-fraud suit moved to compel arbitration. His ■ requested stay was denied. He subsequently failed to comply with discovery requests, and the trial court entered a default judgment against him as a sanction. The primary issue there, and in other cases discussing Britton centered on whether district-court proceedings were stayed pending appeal of the denial of a motion to compel arbitration. In the case before this court, the issue of whether proceedings were stayed pending the appeal was riot, raised or contested by any party. | [
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BART F. VIRDEN, Judge
|,Appellant Malia Drinkwitz appeals from the Crawford County Circuit Court’s order granting visitation with Malia’s children, M.D.1 and M.D.2, to the paternal grandparents, appellees Jerry and Susan Drinkwitz. On appeal, Malia argues that the trial court erred' in granting visitation becausé the Drinkwitzes failed to prove that visitation was in the children’s best interest given that (1) they had not lost their relationship with the children, (2) they could show- no harm that came from limiting their contact, and (3) they, had demonstrated an unwillingness to cooperate with her concerning visitation. We agree in. part with Malia’s first point and therefore reverse and vacate the visitation order.
L. Factual Background
Malia and the children’s father, Zachary Drinkwitz, divorced in December 2010, and Malia was awarded custody of the children. There was evidence that Zachary’s drug abuse was a factor in the divorce. Zachary neither regularly exercised his visitation rights nor paid Lany child support; however, his parents, the Drin-kwitzes, had frequent contact with the children.
In August 2013’,' the Drinkwitzes filed a motion for grandparent-visitation rights. They alleged that, although they had always maintained a close relationship with the children, Malia had begun keeping the children away from them. Malia denied this - assertion; - In April '2014, the trial court entered a temporary order establishing a visitation schedule. In the final order, the trial court granted visitation rights to the Drinkwitzes. From that order comes this appeal.
II. Hearing in June 201k
Susan testified that after Malia’s divorce from her son, the children continued to attend family holiday events and birthday parties. Also, the Drinkwitzes continued to babysit as needed and to pick up the children from school. According to Susan, between August 2012 and July 2013, they probably saw the children at least once a month.
The evidence showed that some time after August 2012, the children were at the Drinkwitzes’ home visiting, and Zachary was present. Despite Malia’s specific request that Zachary not be left alone with the children, the Drinkwitzes permitted him to take the children on what they thought was a quick trip to Dollar General. Instead, Zachary took the children to the home of his girlfriend, who was said to have “major drug issues,” and introduced them to their new half brother, whom they did not know about. Malia was upset when she discovered where they had gone. Susan, while denying any prior knowledge of Zachary’s intentions, conceded that she used very poor judgment in permitting her son to | stake the children. Susan testified, however, that, even after that incident, Malia permitted them to see the children.
Susan testified that they did not see the children over Christmas 2012 and that it was not until mid-January 2013 that the children got their Christmas presents. January 2013 was the first time Malia had not allowed the children to travel with them to attend another grandchild’s birthday party in Northwest Arkansas. The Drinkwitzes saw the children in March for their annual daffodil, trip, but they did not see the children again until the end of July or early August when they met at a mall. According to Susan, Malia told her at that time that “she was starting a new life”; that they would be moving soon; and that it was time to “cut off all emotional ties with the family.” Susan claimed that she asked for visitation between March and July but that her phone calls and text messages went unanswered by Malia, which she said was unusual. Susan testified that Malia had explained in a text message that they were busy, and Susan conceded that Malia was working with them on visitation “in her way,” After the Drinkwitzes filed their petition in August, Malia did not bring the children by to visit in September, October, and November 2013, but the Drinkwitzes saw the children around Christmas 2013.
During those months before Christmas, Susan appeared at M.D.l’s school without Malia’s permission with balloons and a card instructing, the child to ask Malia . to come by the Drinkwitzes’ house. On another occasion, Susan passed a note to M.D.l’s friend to give her saying that her father was fine after having been beaten with a baseball bat and encouraging her to hide the note in her desk at school. Susan conceded that her actions were ^inappropriate and may have contributed to a breakdown of trust.with Malia. Susan testified that she had no complaints about Malia as a mother and her ability to make decisions that were in the best interest of her children.
Jerry testified that he and Susan filed for grandparent-visitation rights because they wanted “some sort of known amount of time” with the children. He stated that, even though they had been seeing the children all along, he felt like they had lost a relationship with the children in 2013 because Malia was “road-blocking” them. According to Jerry, after Susan went to M.D.l’s school,' Malia threatened to get a restraining order.
Malia testified that she was engaged to be married and wished to .move out of state. Malia agreed that prior to 2012 the Drinkwitzes had more access to the children but insisted that she did not cut off contact with them. She said that she had asked the Drinkwitzes to speak with her first about activities, instead of getting the children’s hopes up, but that they had simply gone around her. Malia testified that, when they met at a mall in July 2013, she asked Susan not to remind her children that they had missed another grandchild’s birthday party or tell how their cousin had cried when he did not get to see them- because -news of that sort upset the children.
Malia read a text message she had sent to Susan: “While I Mil continue to have [M.D.l' and M.D.2] have time Mth you, T do not feel that strong family ties Mth the rest of the family should be encouraged.” Malia explained that, while she had no problem Mth the ^children seeing their cousins, other family members had called her a bitch, said she was- “crazy and bipolar,” threatened her, and suggested that she was taking drugs. Malia expressed her concern that those family members would speak negatively about her and try to turn her children against her.
Malia testified that she wanted the children to know their grandparents. She said that she had never not permitted the DrinkMtzes to see the children but that she wanted to be able to put parameters on the visitation. . Malia said that she would permit the DrinkMtzes, to, see the children even if the court denied their request for visitation rights. She testified that after the case was heard in February 2014, the visitation resumed at that time. Malia testified that the DrinkMtzes did not ask for visitation after they filed their petition and that she was uncertain whether she could''contact them while the litigation was pending.
The attorney ad litem, Cheryl Anderson, submitted a report following the hearing. She wrote that M.D.1 and M.D.2 were “incredibly bright, entertaining and engaging” and were “doing exceptionally well,” despite their father’s drug addiction. She noted that the children were at ease when interacting Mth the DrinkMtzes but had expressed their desire that Malia be able to decide when they see their grandparents. She wrote, “I don’t know that the relationship had been lost at the time of the filing of the petition, although I recognize and appreciate that [the DrinkMtzes] perceived it to be lost. The grandparents clearly were no longer enjoying the frequency and quality of the contact they had once had.” Anderson opined that Malia was a fit mother and that the DrinkMtzes were good grandparents. Anderson wrote:
| (¡Malia did continue to allow the children to have a relationship Mth their grandparents until she reached a breaking point that can be attributed to a breach of trust. I believe that Malia had fostered the continued relationship between her children and the DrinkMtz grandparents even after the nasty divorce had concluded, through post-divorce cycles of visitation Mth a Dad who would cyclically be sober and then impaired. To me, she demonstrated a Mllingness to go the extra mile to keep the children connected Mth Dad’s family longer and more significantly than many other parents might have done in the same or similar circumstances.... It is difficult to know if Malia would have come back around as she had done in prior instances when she was disappointed by the grandparents’ actions.
The trial court entered an order in August 2014 granting the DrinkMtzes visitation rights until Zachary chose to exercise his rights as their father. In determining that visitation Mth the DrinkMtzes was in the children’s best interest, the trial court found that (1) the DrinkMtzes had a close relationship Mth and loved their grandchildren; (2) the children would likely be harmed by a loss of the relationship based on “family heritage, reputation in the community, education and family experience”; and (3) the DrinkMtzes said that they were willing to cooperate Mth Malia “and observe her ‘rules’ in regard to the children.”
III.Argument
Malia argues that the Drinkwitzes’ petition for visitation rights was premature and should have been denied because they failed to show that the relationship between them and their grandchildren had been lost. We agree in part with Malia’s first point and therefore decline to reach the merits of her other points.
IV.Standard of Review
The fixing of visitation rights is a matter that ultimately lies within the sound discretion of the circuit court. In re Adoption of J.P., 2011 Ark. 535, 385 S.W.3d 266. Abuse of discretion is discretion applied thoughtlessly, without due consideration, or improvidently. Hollingsworth v. Hollingsworth, 2010 Ark. App. 101, 377 S.W.3d 313. Our appellate courts have traditionally reviewed matters that sounded in equity de novo on the record. Morris v. Dickerson, 2012 Ark. App. 129, 388 S.W.3d 910. We will not reverse a finding of fact by a circuit court unless it is clearly erroneous. Forano v. Elliott, 2012 Ark. App. 484, 422 S.W.3d 162. A finding of fact is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all of the evidence is left with a definite and firm conviction that a mistake has been made. Id. We give due deference to the superior position of the trial court to view and judge the credibility of the witnesses, and this deference is even greater in cases involving child custody or visitation. Id. The main consideration in making judicial determinations concerning visitation is the best interest of the child. In re Adoption ofJ.P., supra.
V.Discussion
Arkansas Code Annotated section 9-13-103(b)(l) (Supp. 2013) provides that a grandparent may petition a circuit court for reasonable visitation rights with a grandchild if the marital relationship between the parents of the child has been severed by divorce. There is a rebuttable presumption that a custodian’s decision denying or limiting visitation to. the petitioner is in the best interest of the child. Ark.Code Ann. § 9-13-103(c)(l). To rebut the presumption, the petitioner must prove by a preponderance of the evidence that (1) the petitioner has established a significant and viable relationship with the child and (2) visitation with the petitioner is in the best interest of the child. Ark.Code Ann. § 9 — 13—103(c)(2)(A) & (B). There is no dispute that the Drinkwitzes had a significant and viable relationship with IsMalia’s children.
Section 9-13-103(e) provides that to establish that visitation with the petitioner is in the best interest of the child, the petitioner must prove by a preponderance of the evidence the following: (1) the petitioner has the capacity to give the child love, affection, and guidance; (2) the loss of the relationship between the petitioner and the child is likely to harm the child; and (3) the petitioner is willing to cooperate with the custodian if visitation with the child is allowed.
Our supreme court has observed that our grandparent-visitation statute “gives the parent’s decision presumptive or special weight in deciding whether grandparent visitation is in the best interest of the child,” as required by the Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). In re Adoption of J.P., 2011 Ark. 535, at 15, 385 S.W.3d at 275. Here, Susan conceded that Malia is a fit mother, and the attorney ad litem described Malia as “a fit mother and a good mother.” We hold that, under the facts of this case, the trial court clearly erred in finding that the Drinkwitzes rebutted the presumption that Malia’s decision to limit visitation was in her children's best interest.
To the extent that Malia suggests that the Drinkwitzes were required to show that their relationship with the children was 'lost, our case law indicates that a petitioner must show that the relationship was lost or would be lost. Oldham v. Morgan, 372 Ark. 159, 271 S.W.3d 507 (2008). “[I]f there is a relationship'in existence that, while limited, has not been lost, and if there is no evidence that the relationship would be lost were grandparent visitation not established by the court, a grandparent’s petition for visitation is premature.” Harvill v. Bridges, 2012 Ark. App. 683, at 3, 2012 WL 6096673. The trial court did not make a specific finding that the relationship was lost or would be lost if visitation rights were not granted, and the evidence would not support such a finding.
The Drinkwitzes alleged in their petition for visitation that Malia was “starting to keep” the children away from them, which is some acknowledgment that the relationship was not lost. Moreover, the evidence does not show that the relationship would be lost absent a court order. In Oldham, supra, our ‘ supreme court reversed the trial court’s visitation order because there was no evidence that the relationship had been lost or would be lost; rather, the grandmother only wanted to safeguard her future right, to visitation with the child. Similarly, Jerry testified that them petition was filed in order to establish “some sort of known amount of time” with Malia’s children. Further, Susan testified that she did not believe that they would see the children again without a visitation order in place, but this fear of what the future held was unfounded considering that Malia had in the past demonstrated a willingness to facilitate a relationship between her children and their grandparents. We hold that the trial court abused its discretion in awarding visitation rights to the Drin-kwitzes because they failed to sustain their burden of proving that visitation was in the children’s best interest in that they could not show that the relationship with their grandchildren was lost or would be lost. Therefore, we reverse and vacate the visitation order.
Reversed.
Gruber and Whiteaker, JJ., agree.
. An agreed order was entered in August 2014 permitting Malia to relocate to Oklahoma, where her fiancé lived. | [
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JOSEPHINE LINKER HART, Associate Jüstiee
1 lAppellant, Ken David Swindle, sued appellee, Southern Farm Bureau Casualty Insurance Company (SFB), for breach of contract. SFB moved for summary judgment, and the circuit court granted the motion and awarded attorney’s' fees to SFB pursuant to Rule 11 of the Arkansas Rule's of Civil Procedure! On appeal, Swindle argues that, after filing suit, SFB paid to him the sum he sued for, and thus, he was the prevailing party in the lawsuit and entitled to an award of attorney’s fees under Arkansas Code Annotated section 16-22-308 (Repl. • 1999). ’ He further argues that the circuit court erred in sanctioning him under Rule 11, because SFB did not provide him with notice of their request for sanctions. We affirm the circuit court’s decision to deny him fees as the prevailing party but reverse the circuit court’s | ..decision to sanction Swindle under Rule ll.
In his complaint, Swindle alleged that he represented David Doman and Áraceli Perez for damages that they sustained in a motor-vehicle collision. The driver of the other vehicle was insured by SFB. Swindle informed SFB of his attorney’s Kens on Doman’s and Perez’s claims. According to the complaint, SFB offered to settle both Dornan’s and Perez’s claims, and both accepted. Swindle further alleged that he had disbursed $24,500 in reliance on the settlement but that checks written by SFB were never honored by SFB’s bank. Swindle sought recovery of the $24,500.
In its answer to Swindle’s complaint, SFB alleged that Swindle’s claims were spurious and not presented in good faith and that the claims were made for an improper purpose such as to harass or to cause unnecessary delay and needlessly increase the cost of litigation. SFB asked that the circuit court dismiss the lawsuit, sanction Swindle under Rule 11, and order Swindle to pay the costs of litigation, including an attorney’s fee.
Swindle moved for a “judgment on the pleadings.” In his motion, he stated that he had filed the action in order to receive payment on a contract, that SFB had issued payment, and that he had received the funds. He asserted that because he had obtained the reKef he sought, there was no material issue of fact remaining on the underlying issue. He concluded that the only remaining issue to be considered was his request for attorney’s fees. He requested that a judgment be entered by the court finding in his favor and reserving the assessment of costs and attorney’s fees.
|RIn response, SFB asserted that Swindle’s receipt of the funds was not the result of his filing of a cause of action and denied that Swindle was entitled to an award of attorney’s fees. SFB further asserted that the complaint should be dismissed and that the court should award SFB costs and attorney’s fees, either as the prevaiKng party in a contract suit or as sanctions pursuant to Rule 11.
No hearing was held. In its order granting summary judgment to SFB, the circuit court concluded that Swindle had filed a frivolous claim against SFB without proper and reasonable investigation. The court granted SFB summary judgment and imposed sanctions in the form of awarding attorney’s fees to SFB. In a separate order, the court awarded attorney’s fees and expenses in the sum of $6785.65.
Swindle raises two issues on appeal. In his first issue, he observes that the underlying question — his entitlement to the payment of the $24,500 by SFB— was resolved in his favor by SFB’s payment of the funds to him. He argues that because SFB paid him after he had filed his complaint for breach of contract, he was the prevailing party in the lawsuit, and thus, he was entitled to an award of attorney’s fees. This issue is one of statutory interpretation, and bur review is de novo because it is for this court to decide what a statute means. See, e.g., Berryhill v. Synatzske, 2014 Ark. 169, at 4, 432 S.W.3d 637, 640.
Arkansas Code Annotated section 16-22-308 (Repl. 1999) provides as follows:
In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.
I/The statute provides that in an action for breach of contract, the “prevailing party” may be allowed a reasonable attorney’s fee.
This court has noted federal precedent for the proposition “that in a judicial process the plaintiff seeks damages or some change in position by the defendant, and regardless of how that is achieved, by settlement, trial, or otherwise, the plaintiff then is the prevailing party.” Burnette v. Perkins & Assocs., 343 Ark. 237, 243, 33 S.W.3d 145, 150 (2000). This court held, however, that “prevailing party contemplates at least some adjudication on the merits of the actions.” Id., 33' S.W.3d at 151.- The “key to being the prevailing party is that there has- been an adjudication on the merits of issues central to the litigation.” BKD, LLP v. Yates, 367 Ark. 391, 395, 240 S.W.3d 588, 592 (2006). To be a prevailing party, “there must be resolution of the underlying merits of the claims at issue.” Id., 240 S.W.3d at 592.
Swindle claims that he prevailed on the issue of his entitlement to the payment of the $24,500. SFB’s payment of the $24,500 to Swindle, however, was not made as a result of an adjudication by the circuit court resolving the merits of the issue. Thus, Swindle was not the prevailing party; accordingly, ’ he was not entitled to an award of attorney’s fees under section 16-22-308.
In his second issue on appeal, he argues that SFB failed to comply with the requirements of Rule 11 in seeking Rule 11 sanctions because SFB did not provide him with twenty-one days’ notice of its proposed Rule 11 motion and never filed a separate. motion for sanctions in accordance with Rule 11. In response, SFB acknowledges that it did not comply with Rule 11 but nevertheless asserts that Rule 11(a) permits a court, “upon its own initiative,” to impose | sRule 11 sanctions, including a reasonable attorney’s fee.
In Weaver v. City of West Helena, 367 Ark. 159, 238 S.W.3d 74 (2006), this court held that the circuit judge abused his discretion in imposing sanctions under Rule 11. There, Judge L.T. Simes imposed Rule 11 sanctions on his own motion. As in this case, there was no separate motion for sanctions, and the appellant was not given notice that Rule 11 sanctions would be addressed.- This court held as follows:
In summation, the procedural requirements for the imposition of sanctions under Rule 11 were disregarded. by Judge Simes, and the appellant was sub jected to a do facto Rule 11 hearing of which he was ,given no notice. That hearing occurred before the court 'attempted to establish the falsity of the allegations in the motion for recusal, and the court ultimately failed to establish that the allegations were false. Judge Simes relied on improper bases in his order imposing the sanctions. For the foregoing reasons, we conclude that Judge Simes abused .his discretion by imposing sanctions upon the appellant under Rule 11. Based on the record before us, it appears that Judge Simes has violated the Arkansas Code of Judicial Conduct. Accordingly, we direct the clerk of this court to forward a copy of this opinion to the Arkansas Judicial Discipline and Disability Commission.
Id. at 165, 238 S.W;3d at 79 (emphasis added). The clear holding of Weaker is that an attorney or party is entitled to notice before the circuit court can impose Rule 11 sanctions.
In Arkansas Judicial Discipline & Disciplinary Commission v. Simes, 2011 Ark. 193, 381 S.W.3d 764, Justice Baker, in her dissent, noted that Rule 11(a) states that “[i]f a pleading, motion, or other paper is signed in violation of this rule, the court, upon 'motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction.” In considering Rule 11(a), Justice Baker wrote that “[i]n Weaver, this court determined that Judge Simes conducted a de facto Rule 11 hearing without notice to Murray and Weaver and stated that ‘no separate motion for sanctions was made in this case, | fiand such a motion is required by Rule 11 before sanctions may be imposed.’ This is simply wrong.” Id. at 26,.381 S.W.3d at 780 (Baker, J., dissenting).
Once this court has interpreted its rules, that interpretation becomes a part of the rule itself. Arnold v. Camden News Pub. Co., 353 Ark. 522, 528, 110 S.W.3d 268, 272 (2003). Thus, at the time sanctions were imposed against Swindle, Rule 11 did not allow a circuit court to impose, without notice, sanctions on an attorney or party on its own initiative. Accordingly, we reject SFB’s alternative argument.
We further acknowledge SFB’s argument that it is nevertheless entitled to attorney’s fees under Arkansas Code Annotated section 16-22-308, which provides that, in a contract action, “the prevailing party may be allowed a reasonable attorney’s fee.” An award of attorney’s fees under section 16-22-308 is not mandatory; rather, it is a matter within the discretion of the circuit court. S. Bank of Commerce v. Union Planters Nat’l Bank, 375 Ark. 141, 149, 289 S.W.3d 414, 420 (2008). Despite SFB’s argument in its pleadings before the circuit court that it was entitled to attorney’s fees under section 16-22-308, the circuit court did not award fees ón that basis. Rather, the circuit court awarded attorney’s fees as a Rule 11 sanction. Because the circuit court did not award attorney’s fees or make a ruling on SFB’s request for fees under section 16-22-308, we decline to affirm the award of attorney’s fees on this alternative basis.
Affirmed in part; reversed in part; court of appeals opinion vacated.
Special Justice Warren E. Dupwe joins in this opinion.
Hannah, C.J., and Danielson and Wood, JJ., concur in part and dissent in part.
Wynne, J., not participating.
. Given our conclusions, we need not address whether Swindle’s complaint sounded in eon-tract or consider the evidentiary arguments raised by Swindle in his brief.
. Rule 11 has since been amended. Under the new rule, this court acknowledges that an attorney or party should have notice and an opportunity to respond, as Rule 11(c)(6) states that if a court is to impose, ”[o]n its own initiative,” Rule 11 sanctions, then the attorney or party is to be given “a reasonable time to respond, but not less than 14 days.” | [
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M. MICHAEL KINARD, Judge
| íAppellant Mae Weaver appeals from the decision of the Arkansas Workers’ Compensation Commission that she failed to prove that her neck injury was a com-pensable injury. She argues that there was sufficient proof, including medical evidence that the Commission disregarded, that her condition was causally, related to her work activities. We affirm. .'
In March 2013, appellant alleged that she had suffered a compensable gradual-onset neck injury from her work at the Arkansas • Department of Correction (ADC). .Appellant had previously litigated a shoulder-injury claim against the same employer, but the Commission found that the injury was not compensable and this court affirmed. See Weaver v. Arkansas Department of Correction, 2013 Ark. App. 158, 2013 WL-841122. A hearing was held on her neck-injury claim on February- 26, 2014.
Appellant testified that she was fifty-four years old. She had worked for 'the ADC as |2a correctional officer, from January 2006 through March 2011. Appellant usually worked in the tower, where her duties involved raising and lowering a basket on a rope pulley system using her arms. Appellant described this as strenuous work, noting that the basket alone weighed fifteen to twenty pounds. When weapons were put in the basket,- the total weight was usually about -twenty-five pounds, but at times it-could weigh a maximum of thirty to forty pounds. Appellant said that she raised and lowered the basket ten to fifteen times per day and that it put pressure and strain on her neck and upper extremities.
Deputy Warden Richard Ball testified that the steel-mesh basket weighed- about fifteen pounds and that it would -be unusual for the basket and its contents to weigh thirty to forty pounds. He said that raising and lowering the basket was not strenuous because the pulley, assists and. bears most of the weight. Appellant said that she had discussed the heaviness of the basket with a supervisor but did not report any neck problems. Appellant testified that she had also used her arms to pat down inmates, climb a ladder to get into the tower, and fire weapons and. lift weights for her yearly physical. She claimed that she ■ had. not engaged in any strenuous activity outside of work while she was employed or thereafter. .
Appellant said that she first began having'- neck-relatdd symptoms in 2006, about six months after she started work at the ADC; however, her symptoms were not severe enough to seek treatment. In 2007, she sought -treatment with her primary-care physician, Dr. Sudhir Kumar. - She complained of pain and burning in her right arm, numbness in three fingers, and .pain in. her elbow and neck; the office note stated that there was no trauma and that her symptoms had been going on for a couple of weeks. Dr-. Kumar took an x-ray of | ¡¡her cervical spine, which showed “mild arthritic changes,, age appropriate.” Appellant testified that this was mild pain that she learned to live with and that she did not know it was work related at the time.
In May 2011, appellant had surgery on her right- shoulder;; performed by Dr. Jay Lipke. She followed up with Dr. Lipke in the months after her surgery. A clinic note dated December 19, 2011, stated that appellant was having continued problems with both shoulders, and she had “a new orthopedic complaint (right cervical, right shoulder and right upper extremity pain) to the.level of the hand.” ..Cervical x-rays were done, and Dr. Lipke diagnosed “cervical degenerative disc disease with, right upper extremity cervical nerve root irritation.” Appellant testified that this was when she found out her neck was causing her symptoms, but she still did not realize that her, problems were caused by her work. •
Appellant began seeing Dr. Robert Abraham- in June 2012 with complaint's of neck pain and right arm pain. He diagnosed her with cervical radiculopathy. On July 3, 2012, Dr. Abraham performed an anterior cervical discectomy with fusion at C4-5, C5-6, and C6-7. Appellant testified it was after her cervical surgery that 'she found out her-neck problems were work related. She said that Dr. Abraham informed her family during the Surgery that she had an extensive amount -of “wear and tear” in her neck and that it was more than he had anticipated. Appellant concluded that this “wear and. tear” was work ■related because she could not figure out anything else that would have caused extensive wear and tear.
Appellant continued seeing Dr. Abraham after her surgery. On August 31, 2012, Dr. 14Abraham signed what appellant describes as a preprinted form with two options, apparently prepared by appellant’s former attorney. Dr. Abraham placed a checkmark next to the following statement:
It is my opinion to a reasonable degree of medical certainty, or at least 51% probability based upon the information presented to me, including a history given by the patient, that the major cause of Mae Weaver’s neck injury and need for surgical treatment was her work for the Arkansas Department of Correction.
More than a year later, appellant’s attorney sent a letter to Dr. Abraham describing appellant’s work activities and asking several questions regarding the cause of appellant’s injury. In a letter dated September 27, 2013, Dr. Abraham responded in relevant part as follows:
The following statements will be with a reasonable degree of medical certainty. Ms. Weaver’s neck disease was extensive and is probably a combination of factors with work related activity being a definite causative element. One specific -incident would hot be the cause of cervical spine disease. The work activity that Ms. Weaver performed could affect both her neck and shoulder. The fact that she used her arms and hands for repetitive physical activities is a causative factor for cervical disk disease. When a person engages in strenuous physical activity with the arms it places stress on both the shoulder joint and neck. ■ The subsequent stress can damage the intervertebral disk and facet joints. Patients may not have a significant amount of pain with cervical disk abnormalities, - however neurologic dysfunction can be more serious due to the loss of function that may result. Ms. Weaver’s complaints were apparent to her and her loss of function was present on her physical exam.
The administrative law judge found that appellant’s claim was barred by the statute of limitations. Appellant appealed to the Commission, which concluded that her claim was not barred but .that she had failed to prove that her neck condition was causally related to her work-related activities.- The Commission noted that appellant failed to report a work-related cervical injury until March 18, 2013, some eight months after her cervical surgery. The Commission found that waiting until after her surgery to attribute her neck condition to her |fiwork was “convenient” and “unbelievable.” The Commission further stated as follows:
Likewise, Dr. Abraham’s opinion as to causation is vague and ambiguous, and appears to be based primarily on the claimant’s account to him of her injury. Furthermore, while Dr.-Abraham stated that the claimant’s work-activities “could” have caused her cervical problems, he stated further that the claimant’s neck disease was “extensive” and probably caused by a “combination of factors” with work related activity being a ’factor. We find that this language is too speculative to constitute a medical opinion within a degree of medical certainty as is statutorily required. Therefore, we reject Dr. Abraham’s theory of causation.
Noting Dr. Kumar’s and Dr. Lipke’s findings, the Commission concluded that the preponderance of the evidence demonstrated that appellant’s cervical condition was due to deterioration caused by aging. Appellant now appeals the Commission’s decision.
In appeals involving claims for workers’ compensation, our court views the evidence in a light most favorable to the Commission’s decision and affirms the decision if it is supported by substantial evidence. Galloway v. Tyson Foods, Inc., 2010 Ark. App. 610, 378 S.W.3d 210. Substantial evidence exists if reasonable minds could reach the Commission’s conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission; if reasonable minds could reach the result found by the Commission, the appellate court must affirm the decision. Id. The Commission is not required to believe any witness, and it may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Id.
A claimant seeking benefits for a gradual-onset injury to the neck must prove by a preponderance of the evidence that (1) the injury arose out of and in the course of his employment; (2) the injury caused internal or external harm to the body that required medical services or resulted in disability or death; and (3) the injury was the major cause of Rthe disability or need for medical treatment. Kimble v. Labor Force, Inc., 2013 Ark. App. 601, 430 S.W.3d 156; Ark.Code Ann. § 11-9-102(4)(A)(ii)(b) & (E)(ii) (Repl. 2012). “Major cause” is defined as more than fifty percent of the cause. Ark.Code Ann. § 11~9-102(14)(A). Medical opinions - addressing compensability must be stated within a reasonable degree of medical certainty. Ark.Code Ann. § ll-9-102(16)(B).
Appellant argues that the Commission misinterpreted Dr. Abraham’s statement and wrongly detérmined that his use of the word “could” in one sentence modified and tainted his entire opinion. She argues that Dr. Abraham did not merely find that work-related activity was a factor, as the Commission stated; instead, he found that work-related activity was “a definite causative element.” Appellant also claims that the' Commission did not refer to the August 31, 2012 correspondence from Dr. Abraham or explain why it should be rejected. ADC claims that the medical reports indicate that appellant’s neck condition was worsened by her shoulder surgery, which was not compensable; that appellant never reported to any doctor that her neck condition may be work related; and that Dr. Abraham’s reports were speculative. Furthermore, ADC contends that appellant lacked credibility in that she did not conclude her condition was work related until after her neck surgery.
Dr. Abraham opined that appellant’s extensive neck disease was probably caused by a combination of factors and that' her work activity was a definite causative element'. He did not state that the alleged work injury was the major cause of the need for treatment as required for this to be a compensable injury. Regarding Dr. Abraham’s earlier 17correspondence, he was given two preprinted options to choose from: one stated that work was the major cause of appellant’s injury and need for treatment, and the other stated that the neck injury did not result from her work. In this document, there was no option for Dr. Abraham’s ultimate opinion that work was one of several causes, and there is no evidence that he had any knowledge at the time of what appellant’s work activities were.
It is within the province of the Commission to weigh conflicting medical evidence; however,, the Commission may not arbitrarily disregard medical evidence or the testimony of any witness. Roberts v. Whirlpool, 102 Ark. App. 284, 289, 284 S,W.3d 100, 104 (2008). Here, the Commission did not arbitrarily , disregard or misinterpret Dr. Abraham’s opinion. . It considered the opinion and gave it appropriate weight in conjunction with the evidence of appellant’s degenerative condition as noted by E>r. Kumar and Dr. Lipke. The Commission may accept or reject medical opinions and determine their medical -soundness and probative force. Galloway, supra. We find no merit in appellant’s argument. . . t
In Kimble, supra, the' claimant alleged that he had sustained a compensable neck injury from his work throwing tree limbs into a wood chipper. He recalled feeling sore in his shoulder and neck after work, but he did not report any injury or stop work. On his day off, Kimble experienced severe pain in his shoulder and was hospitalized. Based on a cervical MRI, doctors concluded that he suffered from multilevel degenerative disc disease and a posterior central-disc extrusion at C3^4 causing moderate midline ventral-cord impingement. Kimble testified that when advised of the MRI results, he “figured” that his work was | «probably what caused it. This court affirmed the Commission’s finding that Kimble failed to prove that his neck injury arose out of and in the course of his employment. We noted that he failed to report any type of neck problem to his co-employees or his employer; he left work unaware that he had suffered a neck injury; and he did not report any type of neck problem to his doctors when he sought treatment. The only evidence in the .record on causation was Kimble’s admittedly speculative testimony that he “figured” that his neck condition had been caused by his work the previous week.
Similarly, here, appellant testified that she “couldn’t figure out where else” she could have sustained extensive wear and tear in her neck. She first asserted this conclusion nearly two years after she had left work at the ADC without ever reporting a neck injury. Speculation and conjecture, even if plausible, cannot take the place of proof. Kimble, supra. We hold that substantial evidence supports the Commission’s decision that appellant failed to prove a compensable neck injury.
Affirmed.
Whiteaker and Hoofman, JJ., agree. | [
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Grieein Smith, Chief Justice.
This is a suit by Kansas City Southern Railway Company to recover income tax payments made under deficiency assessments for 1941 and 1942. Deductions reported by' the Railway Company applicable to operating expenses are involved. While discussions relating to these items were in progress it was found that a determination of the correct method of accounting for one year would be decisive of contentions affecting the second year; hence for the purpose of this opinion 1941 alone is discussed.
Act 118, approved March 9, 1929, Art. II, Sec. 3(e),’ Pope’s Digest Sec. 14026(e), fixes the method for determining taxable income of a utility such as we are dealing with.
Exhibit, “A” is a majj of the system, starting at Kansas City and extending generally southward to Texarkana and from there southeastward to Shreveport, thence to New Orleans.
The income from railway operations for 1941 applicable to the entire system is shown by the Company’s auditor-witness Anderson to have' been $19,163,035.29, with expenses of $12,275,828.76. That part of the income apportionable to Arkansas is $3,248,586, against which operating expenses claimed are $2,239,472.46. The Commissioner contends that the expense item is excessive by $158,421.86 and that the- correct amount should be $2,-081,050.60.
The second point of disagreement relates ,to cost of freight cars hired, rented, or leased by the system. The entire outlay is given as $1,031,670.26, with $212,303 apportioned to Arkansas. The Commissioner thinks the apportionment should have been $174,856.25 and disallowed $37,446.75.
A third point of difference between the Commissioner and the Company involved interest on the funded debt. An agreement favorable to the Commissioner’s claims was reached, eliminating that part of the controversy.
It is conceded that the Arkansas law was complied with by State auditors in making the deficiency recommendations to the Commissioner, hence a construction of the Act is not required- except to the extent that an understanding may be had regarding provisions it is claimed place an undue burden on interstate commerce and at the same time produce discriminatory results. There is a contention that enforcement of Act 118 in its application to the Company’s system — made unusual because of geography and state boundaries — has the effect of taking property without due process of law.
Kansas City Southern as a whole operates in six states — Missouri, Oklahoma, Kansas, Arkansas, Louisiana, and Texas. In addition it controls other lines, one of which — the Arkansas Western — runs from Forester, Ark., and joins theK. C. S. at Heavener, Okla. Another is the Arkansas & Louisiana.
Anderson’s testimony was that in 1941 the Company’s total main line mileage was 878.78, of which 17.56% or 154.31 miles traversed Arkansas. Exact mileage varies from year to year with improvements or abandonments, but this is unimportant here.
Operating expenses claimed by the Company to be apportionable to Arkansas are reported to the Interstate Commerce Commission under more than a hundred different headings, such as maintenance of right-of-ways, operation of trains, and other elements entering into the general plan of transportation.
As previously mentioned, operating expenses for 1941 charged to Arkansas were $2,239,472.46, or 68.94% of $3,248,596 revenue apportionable to Arkansas. It is conceded by the Company that the system operating ratio computed according to Act 118 is 64.06. This is arrived at by dividing operating expenses of $12,275,828.76 into operating revenue of $19,163,035.29. If, however, the deduction of $158,421.86 is taken from operating expenses of $2,239,472.46 claimed by tbe Company to be apportionabl'é to this State, tbe remainder is $2,081,050.60, and tbe ratio of tbis expense to tbe operating revenue of $3,-248,596 is 64.06% instead of 68.94- — a difference of 4.88%.
Two methods of calculations are discussed by tbe auditors. One is based upon revenue ratio, tbe other on operating ratio. Under tbe revenue ratio method income of $19,163,035.29 is divided by that part apportionable to Arkansas ($3,248,596) and tbe result is 16.95%. If we multiply system operating expenses of $12,275,828.76 by 16.95% tbe result is $2,081,050.60. Using tbe operating ratio method tbe item of $3,248,596 is multiplied by tbe Arkansas ratio of 64.06% to produce $2,081,050.60.
But, irrespective of percentage yields, tbe essential fact is that included in tbe expense account of $2,239,-472.46 there is an alleged overcharge of $158,421.86, and tbe question is whether tbe method used by tbe Railroad Company when it deviated from our statute was appropriate. If tbe system operating ratio of 64.06% is appropriate, then tbe controverted difference of $148,421.86 is accounted for and tbe Commissioner’s allowance of $2,-081,050.60 is correct.
As a point of argument tbe Railway Company has taken ratios based upon a list of grouped expenses in their relation to system expenses, “as compared with other operating performance ratios for Arkansas in 1941,” as follows: Track miles, 17.56; train miles, 17.90; locomotive miles, 17.23; car miles, 20.65; net ton miles revenue; 19.55; passenger miles revenue, 19.47. Tbe total of these items is 114.36, tbe average of these ratios— 114.36 divided by 6 — being 19.06. But tbe Company’s witness testified that locomotive miles in 1941 were 19.23% — not 17.23% as tbe tabulation shows. In explaining why tbe revenue ratio of 16.95 as provided by tbe Arkansas statute should not apply, Anderson testified that tbe Company realized greater net ton-mile revenues from that part of its system outside of Arkansas, there being “more remunerative rates and divisions for movement of petroleum products eastbound from Shreveport and Texarkana and for military supplies and equipment consigned to Camp Crowder in Missouri and Camp Polk in Louisiana. Another cause is that, since less traffic is originated or terminated in Arkansas than in the other states, there is a proportionately greater amount of intermediate or bridge traffic, which moved generally at less remunerative divisions of through rates than for originated or terminated traffic”; hence, says the witness, remuneration received for traffic is not a proper measure whereby the cost of such movement may be gauged. It is complained by the Railroad Company that in applying to Arkansas the system operation ratio in order to obtain intrastate operating expenses, there is the erroneous assumption that Arkansas net ton-mile revenue rate is the same as for the system as a whole, and that the cost to the Company for moving a ton of freight one mile is greater in Arkansas than the overall average.
It is then said that long heavy grades peculiar to Arkansas and not a factor in other states has been considered. From Neal Springs, north to Rich Mountain in this State, — a distance of seventy-six miles, there is a climb of about 1,500 feet, the greater part of the grade being 1.35%. Where the railroad crosses into Arkansas at the northwest entrance there is an elevation of 500 feet in twenty-nine miles. The only other comparable grades are those encountered north of the Arkansas-Missouri line where for a distance of ten miles the average is 1.80%.
When asked how he arrived at the conclusion that operating costs were greater in Arkansas than the system average, Anderson replied that it came about partly by reason of the Full Crew Law, heavier grades than in other states, and “less terminal expenses in Arkansas.”
The second deficiency assessment relates to the Company’s method of computation in apportioning to Arkansas $212,303 of a system total of $1,031,670.26 paid as hire for freight cars. The basis adopted by the Company was that of freight car expense mileage to system — 20.58% of the gross amount. The Commissioner’s auditors made their computations upon the basis of 16.95% — revenue ratio — with the result that Arkansas ’ proportionate charge would be $174,856.25, or $37,446.75 less than that fixed by the Company.
While insisting that the method of computations made by Company accountants was fairer than that established by Arkansas law, and mentioning heavy grades, disproportionate income from freight, and correspondingly higher costs for handling, the Company readily admitted it did not have figures available to show how much greater these costs would be by reason of some of the factors mentioned. An exception — an instance where generalities gave way to a total item — was the charge made to Arkansas on account of the Full Crew Law. This, said Anderson, entailed an added burden of $50,577.85. No other state in which the Company operates requires a full crew: that is, a fireman, engineer, conductor, and three brakemen where the freight train consists of as many as twenty-five cars and the Company operates not less than fifty miles of railroad.
This added cost, it is insisted, is peculiar to Arkansas, and the Company’s system gains nothing because of the requirement that an extra brakeman must be supplied.
The Company’s Exhibit No. 1 shows that its main line enters Arkansas east of the southwest corner of Missouri. The direction from Kansas City is slightly west of south to a point between Siloam Springs and Watts, where the State line is crossed and Oklahoma is entered. The road then runs through Oklahoma to a point between Plummer in that state and Howard, Ark., where it again enters this State. A branch from Spiro, Okla., goes to Ft. Smith, Ark. Continuing south from the boundary between Plummer and Howard the line goes to Ogden, Ark., then into Oklahoma, and remains on that side of the boundary until a point south of Bloomburg, Texas, is reached and a small portion of the southwest corner of Arkansas is traversed before the line enters Louisiana south of Ravanna.
It is a matter of common knowledge that railway crews operate between fixed divisions. These are not shown on any of the maps, nor does evidence touch this point. Result is that the crews required by Act 116 of 1907 are not used exclusively in this State, but ordinarily perform services on the entire division they travel, and are not changed until convenience of the substitution requires it. One extra brakeman is assigned to trains of twenty-five cars or more. Appellee’s report to Interstate Commerce Commission, copy of which is required by law to be filed with the Arkansas Public Service Commission, shows (Item 401, Account 720) that for 1941 total payment to trainmen in Arkansas freight service was $167,-894. This is one of the items entering into the total of $2,239,472.46 representing Arkansas’ proportion of operating expenses; and, of course, it is a prima facie showing that the overall cost for trainmen was the amount officially reported. Yet, according to Anderson’s testimony, .it would seem that $50,577.85 of $167,894 (or slightly more than thirty per cent, of the total) was incurred by the requirement that one extra brakeman be used.
Reference had been made to an operating ratio of 68.06% as distinguished from the Company’s claim'of 68.96%. Account No. 720 where the charge.of $167,894 for trainmen is found, shows the grand total of operating expenses apportionable to Arkansas to be $2,210,869, and not $2,239,472.46 as testified by Anderson. But the explanation is that the 1942 operating ratio of $3,794.353 (76.92%) was subject to “ . . . the State proportion of adjustment on Federal [income tax] return for 1941, $2,210,869.” Assuming that by some bookkeeping entry in consequence of which the State’s proportionate charge of Federal tax for 1941 was increased, and that in 1942 an adjustment of accounts resulted, the fact remains that this entry of $28,603 was not part of the operating expenses utilized in arriving at the ratio of 68.06%. This differential of .88-plus per cent., multiplied by the apportionable Arkansas revenue of $3,248,596, is equal to $28,603.
' Illustrating appellee’s attitude in taking credit in all instances where a particular ratio worked to its advantage, and in adopting a different method when the result would be to its disadvantage, attention might be called to the frankness with which the witness Anderson disposed of the State’s contention that the Act of 1929 should control. He said: “We purposely and intentionally disregarded requirements of the Arkansas statute in filing our returns because we felt that our formula was more nearly correct than the formula provided by law.”
An action brought in the United States District Court for the Western District of Oklahoma involved principles similar to those presented by the instant appeal. Trustees for Chicago, Rock Island and Pacific Railway Company brought an action against the Oklahoma Tax Commission to recover additional state income taxes which had been paid under protest for the years 1941 and 1942. The District Court, without a jury, found in favor of the Commission. The Circuit Court of Appeals for the Tenth District affirmed. Fleming et al. v. Oklahoma Tax Commission, 157 F. 2d 888. Certiorari was denied by the United States Supreme Court, 329 U. S. 812, 67 S. Ct. 634.
The Court of Appeals said that the Commission treated the Railroad as a unitary enterprise and allocated the net system income according to the formula provided by the Oklahoma law, employing three factors in the allocation. The trial court concludéd as a matter of law that the three statutory arithmetical factors were not unreasonable or arbitrary in the absence of affirmative proof to the contrary, and that the Railroad had failed to show that employment of the applicable methods was arbitrary. The very nature of a vast interstate transportation system, said the appellate court, brings it especially within the concept of a unitary system. “A railroad”, said Judge Huxman, “may well be likened to a spider’s web, in which all of the strands are necessary to the common design and each contributes its necessary part to a single goal. . . . In a long line of cases the [IT. S.] Supreme Court has recognized the right of a Sfate to value the property of a unitary enterprise, including railroads, as a unit, and apportion to the state its fair ratable portion of such value by methods fairly tending to reflect its ratable portion of such unit value. . . . Mathematical exactness in allocating system value is impossible of attainment. Any method will contain imperfections”.
Weeks might be spent checking calculations found in the Railroad Company’s report to Arkansas Public Service Commission and comparing these figures with abstract or explicit statements made by Anderson in attempting to show that the formula used by the Commissioner’s auditors was unfair, hence arbitrary and discriminatory. It is said that in apportioning to Arkansas 20.58% of the total cost of rented cars, account must be taken of the system showing of the proportion in miles that rented cars were used in this State. This is purely arbitrary and does not disprove the Commissioner’s right to apply the lower figure — 16.95%, or the revenue ratio. Many of these cars were oil tankers sent to the Louisiana and Texas fields as empties and there loaded for dispatch to undisclosed destinations. Whether these were large or small cars, whether the revenue load in proportion to weight or mileage was greater than it would have been if a different build or size of car had been used — these factors are not shown and cannot be found in the record.
In the system of accounting, Arkansas Western Rail-way Company made its own income tax return to the Commissioner, showing a net loss of $30,012.36 for 1941, $25,307.41 being apportionable to Arkansas. How, and to what extent, business originating on Arkansas Western entered into appellees computations is not disclosed.
A mere glance at the map filed as apellee’s Exhibit “A” will readily impress an observant person with the interdependence of the so-called unitary system.
No method of accounting could show with even reasonable exactness what part, let us say, of a fifty-car train moving from Texarkana to Kansas City, or from West-ville to Joplin, represented revenues apportionable to Arkansas under the Company’s accounting methods; nor is the cost of operating such a train satisfactorily explained on a ratio basis. Car mileage figures included in appellee’s computations may in some-instances include entire trains of empty tankers en route to the Louisiana or Texas oil fields, but on the return or “pay” trip these same cars may be routed from Port Arthur, Beaumont, or other points without again touching the system’s lines in Arkansas; yet the rentals would, according to the Company’s methods, be disproportionately charged to Arkansas on a car-mile basis when in truth cars were moved over rails in this State to increase the system’s ability to earn elsewhere.
We do not share appellee’s belief that because Arkansas requires a full crew in handling freight trains of 25 cars or more the system as a whole is discriminated against. The requirement is a legislative declaration of public policy, a safety measure thought necessary to insure the expeditious handling of long trains. Heavy grades and use of additional fuel, and sometimes an extra engine, — these are matters peculiar to the transportation territory entered by the Company for development and service. Tracks in Arkansas are essential to the remainder of the system, and there is no scientific or mathematically accurate way of determining exactly how much or how little in a relative sense the Arkansas track-age contributes to Kansas City Southern as a whole. We must conclude, therefore, that the Company has not sustained its burden of proving the Act discriminatory; nor has its property been taken without due process of law.
The decree is reversed, with judgment here for the Commission.
“When the business of such utility is partly within and partly without the State, their net income within the jurisdiction of this State shall be ascertained by taking their gross ‘operating revenues’ within Tthis] State, including in this gross ‘operating revenues’ within the State the equal mileage proportion within the State of their interstate business and deducting from their gross ‘operating revenues’ the proportionate average of operating expenses or operating ratio for their whole business as shown by the Interstate Commerce Commission standard classification of accounts. To the net operating revenues thus determined shall be added revenues from miscellaneous operations within the State and other non-operating income from sources within the State, together with a proportionate part based upon the ratio of gross operating revenues from sources within the State to their entire gross operating revenues of all non-operating income from sources other than within this State and deducted therefrom miscellaneous operating expenses within the State and a proportionate part of all deductions from gross income as set forth in the Interstate Commerce Commission Classification of accounts based upon the proportionate average of operating expenses for their whole business.”
Act 116, approved March 28, 1907, Pope’s Digest, Secs. 11155-56. [See Kansas City Southern Railway Co. v. State, 116 Ark. 455, 174 S. W. 223.]
Appellee’s Exhibit “A,” “Kansas City Southern & Louisiana and Arkansas Lines” does not distinctly show in all cases where the state lines are crossed. Reference is had to a profile map, attached to £hg transcript as an exhibit at p. 72, | [
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Ed. F. MoFaddin, Justice.
This appeal necessitates a research into the common law doctrine of bona vacantia • — that is, “vacant goods” or “unclaimed property” or “personal property without an owner.”
The State of Arkansas, on the relation of the Attorney General, filed a complaint in the Pulaski Circuit Court against the Phillips Petroleum Company, which complaint — omitting caption and signature — reads as follows ;
“The plaintiff, State of Arkansas, alleges that the defendant, Phillips Petroleum Company, is a Delaware corporation lawfully authorized to do business in Arkansas, where it is engaged generally in the oil business.
‘ ‘ That this cause is brought both at common law and pursuant to § 11981, Pope’s Digest, authorizing a ‘suit in the name of the State to recover any forgotten or lost or other outstanding public interests or property . . .
to which the State, either in law or equity, may have or claim title . . . ’
“That defendant now holds in its possession and custody and has held, therein continuously for more than seven years prior to April 15, 1947, various moneys, rents, royalties, credits, and other personal property, which have been unclaimed, forgotten, abandoned, or otherwise lost by various persons (including individuals, firms, associations, partnerships, and corporations), both known and unknown; that defendant received, obtained, procured, and came into possession and custody of said personalty by virtue of various leases, contracts, conveyances, and other agreements, express or implied, relating to real and personal property located in Arkansas.
“That said personalty, being bona vacantia, is subject to appropriation by plaintiff in its sovereign capac ity, after due notice to former owners and claimants and an opportunity for asserting their rights.
“That following plaintiff’s request therefor, defendant refused to disclose the names, addresses, and other information relating to said former owners and to the personalty so held by defendant for said period; that plaintiff is entitled to said information which is material to this cause, within defendant’s own knowledge, and wholly unknown to plaintiff; and that plaintiff attaches hereto interrogatories, supported by affidavit, addressed to defendant, and calling for such information.
“Wherefore, plaintiff prays for an order directing defendant to answer said interrogatories attached hereto ; that defendant be ordered to pay and deliver into the registry of this court all such personalty aforesaid held for said period and for such persons; that on receipt thereof by the clerk of this court, an order be entered absolving defendant of and from all liability to any and all former owners and claimants to said personalty; that all former owners and claimants thereto, be given a reasonable time, on proper notice, for the assertion of their rights, if any, in and to said property; and that a final order and judgment be entered appropriating to and vesting in plaintiff any residue, for costs and all other proper and general relief. ’ ’
Attached to the complaint were interrogatories which —omitting affidavit — read as follows :
“Interrogatories to Be Propounded to Dependant
“1. Do you now have in your possession or custody any moneys, rents, royalties, credits, or other personal property, which you have held continuously for more than seven years prior to April 15,1947, which personalty has laid unclaimed or forgotten or abandoned or otherwise lost by any person (including an individual, firm, association, partnership, and corporation), both known and unknown, which property you received or obtained or procured or came into your possession or custody by virtue of any lease, contract, conveyance, or other agree ment, express or implied, relating to real or personal property located in Arkansas?
“2. If yonr answer is in the affirmative, then file a schedule disclosing the following information:
“A. The last known name and address of such person. If unknown please so state.
“B. The kind, type, nature and value of each item of said personalty so held by you.
“C. The legal description of the real or personal property situated in Arkansas, from whence each item of said personalty was derived.”
The circuit court sustained the defendant’s demurrer, and when the plaintiff elected to stand on the complaint, a final judgment was entered dismissing the complaint. From that judgment there is this appeal; and the State seeks to reverse the judgment by reliance on (1) § 11981, Pope’s Digest, and (2) the common law doctrine of bona vacantia. We consider these contentions.
I. Section 11981, Pope’s Digest. This is a part of Act 194 of 1915, and the portion germane to this cause reads: “It shall be the duty of the Attorney General, . . . to institute suit in the name of the State to recover any forgotten or lost or other outstanding public interests or property . . . ” This language merely empowers the Attorney General to institute a suit, and has no bearing on the question of whether the complaint in this case states a cause of action.
II. Bona Vacantia. The gist of the complaint is, that the defendant holds — and has held for more than seven years — unclaimed, abandoned and forgotten money belonging to unnamed persons; that this money belongs to the State as bona vacantia; and that the defendant refuses to disclose the names of the persons “wholly unknown to plaintiff,” to whom such money formerly belonged. The prayer is, that the defendant be required to deposit the money in the registry of the court and answer the interrogatories, so that the State may proceed to obtain the money. Does this complaint state a cause of action under the common law doctrine of bona vacantia1
A. The Arkansas Statutes. Chapter 58, Pope’s Digest, is entitled “Escheats.” (See §§ 5087, et seq., Pope’s Digest.) This chapter, in prescribing tye method by which the-State may receive personal property, is based entirely on the assumption that there must have been a previous administration of the estate of a known decedent. That condition does not exist under the allegations in the complaint in the case at bar, so this statutory proceeding has no application to this case. After analyzing our escheat statutes, appellant concedes that they do not cover such a situation as is here presented, saying:
“The above is the conventional type of escheat legislation applying only to death cases where there are no known takers. In the present situation we are dealing with the escheat of unclaimed and abandoned personalty, irrespective of the death of the owner. We are not contending that the owners are dead, they may or may not be. Therefore, the above statutes have nothing to do with this ease. As a result we must turn to the common law to determine the State’s right to such property. ’ ’
B. The Common Law. At common law, “escheat” referred to real estate which reverted to the crown in the absence of heirs; and bona vacantia referred to personal property. “In the ease of personal property the crown takes because it is property without an owner — that is, bona vacantia. As to such property, following the common law, it is not strictly correct to term the right an ‘escheat.’ ” (19 Am. Juris. 380.) In modern American decisions the distinction between the State taking personal property by bona vacantia, and real property by escheat, has been largely disregarded, and many cases refer to the State’s taking of personal property as being ‘ ‘by escheat. ’’ But in the case at bar it is important that we keep in mind the distinction between escheat and bona vacantia; because the State — to prevail in this case— must establish that at common law, the doctrine of bona vacantia applies to a situation similar to the one alleged in the present complaint.
Section 1679, Pope’s Digest, is Chapter 28, § 1 of the Revised Statutes of 1838, and reads: “The common-law of England, so far as the same is applicable and of a general nature, and all statutes of the British Parliament in aid of or to supply the defect of the common law made prior to the fourth year of James the First (that are applicable to our own form of government),, of a general nature and not local to that kingdom, and not inconsistent with the Constitution and laws of the United States or the Constitution and laws of this State, shall be the rule of decision in this State unless altered or repealed by the G-eneral Assembly of this State.”
Did the common law doctrine of bona vacantia apply to a situation such as is here presented? In ascertaining the common law, we not only look to our own cases, but we revert to the early English cases, and the early writers on the common law, such as Blackstone, Kent and Bracton. Cases from other American states are also persuasive as to what was the common law. See 12 C. J. 198, et seq.
The most exhaustive modern case which we have found on bona vacantia is that of Illinois Bell Telephone Co. v. Slattery (7 Cir.), 102 Fed. 2d 58. In that case the telephone company had been ordered by the regulatory body of Illinois to make overcharge refunds to subscribers. After several years of attempted refunds, there still remained many unclaimed refunds in the possession of the telephone company, and the State of Illinois sought to capture all these unclaimed refunds under the common law doctrine of bona vacantia. The Circuit Court of Appeals denied such relief to the State. Judge Majors, in the opinion of the court, reviewed the English cases on cases in this language:
“Numerous cases are cited wherein it is claimed the doctrine has been recognized. We think it would serve no useful purpose, however, to discuss them. They perhaps, without exception, fall within one or more of the follow-; ing categories:
“ ‘ (1) death intestate with no next of kin of person capable of inheriting;
“ ‘ (2) non-charitable trust with a failure of beneficiaries; or
“‘(3) corporation dissolved leaving property to which neither stockholders nor creditors were entitled under the English corporation law.’ ”
Categories .(2) and (3), supra, could have no possible application- to the case at bar. Even if it should be claimed that this case falls in category (1), nevertheless, the State has not alleged that any named person died intestate; so the State has not brought this case within the purview of any of the above categories.
The most scholarly modern article that we have found dealing with the doctrine of bona vacantia is in 34 111.-Law Review 171, entitled “Bona Vacantia Resurrected.” The writer of that article delved deep into the bona vacantia, and summarized the holdings of those musty tomes of the common law. He sharply criticized the conclusion reached by the Circuit Court of Appeals in Illinois Bell Telephone Co. v. Slattery, supra. But, even so, we conclude that no well-reasoned reported case has sustained the doctrine of bona vacantia based on a complaint such as the one in the case at bar, where neither specific definitely knoivn property is shown to exist, nor any known person is ever claimed -to have held any property. One or another of these allegations has been made in every case to which our attention has been directed.
To elucidate: If the complaint in the case at bar had alleged (1) that a definitely named article of personal property was held without any known owner, then a case for bona vacantia might have been made; or, (2) that a definitely known person had died or disappeared leaving a chose in action, and that such party had no known heirs, then the common law doctrine of bona vacantia might have been invoked under either allegation. At common law, either the former owner or the definite property must have been known.
But in the complaint, here, there was no allegation as to either known property or known person. The complaint in this case is what has been denominated in some opinions as a “fishing expedition.” This characterization carries with it no aspersions, and connotes no reflection. The term “fishing expedition,” as used in the cases, indicates a proceeding instituted or carried on for the purpose of obtaining information on which to base a subsequent proceeding or defense, the nature of which subsequent proceeding or defense to be necessarily dependent on the information obtained in the first proceeding. Mr. Justice Butler used the expression “fishing expedition” in City National Bank v. Wofford, 189 Ark. 914, 75 S. W. 2d 666. We review a few eases from other jurisdictions, where this expression, “fishing expedition, ’ ’ has been used:
(1) In People v. Pueblo, 109 Colo. 411, 126 Pac. 2d 339, there had been an election regarding a city ordinance to increase the salaries of city employees, and on the face of the returns the ordinance had been rejected. Thereafter, certain city employees brought an action alleging only general irregularities with no specific allegations. The Supreme Court of Colorado, in denying the attempted discovery, said: “This is clearly one of those cases generally characterized by courts of review as ‘fishing expeditions,’ and, as such, condemned . . . ”
(2) In Marietta Mfg. Co. v. Hughes, 9 W. W. Harr. 511, 2 Atl. 2d 922, the plaintiff had sued the defendant for delay in furnishing engines to be installed in dredges being constructed for the U. S. Government, and had alleged that such delay caused the plaintiff to pay damages to the Federal Government. The defendant moved that the plaintiff be required to produce all of its books and all of its files containing the correspondence with the U. S. Government. The Delaware ‘Court, in denying the motion, said: “That the defendant is again- fishing for possible evidence, and not, in fact, asking for discovery of what actually appears to be evidence, is also apparent. ’ ’
(3) In the Great Northern Construction case, 50 Misc. 467, 100 N. Y. S. 564, there was a proceeding in a Canadian court to wind up a corporation. A commission issued to take depositions in New York State to discover the assets of the corporation. The New York court held that the proposed depositions were merely in aid of a “fishing expedition,” and refused to require that they be taken.
(4) In Royster v. Unity Life Insurance Company, 193 S. C. 468, 8 S. E. 2d 875, certain dissatisfied policyholders brought suit for return of their premiums, and, then, for themselves and all others similarly situated, sought an examination of the books of the insurance company. The Supreme Court of South Carolina, in denying such at tempted examination said: ‘ ‘ The present case has all the earmarks of a fishing expedition, an enterprise which this court has time and again stated that it does not favor. ’ ’
(5) In State v. District Court, 114 Mont. 128, 133 Pac. 2d 350, there was a suit ostensibly to perpetuate testimony, blit of that suit the Supreme Court of Montana said: “The proceeding launched by the petitioner is what the courts have often spoken of as a fishing expedition, in this instance having for its purpose the discovery of facts and information as the basis for litigation. The relator is under compulsion to come with all his books and records, expose everything he has that tells the story of his business for twenty-five years, submit it all to the scrutiny of the man who is planning a lawsuit against him. Clearly this would be a violation of the relator’s right to security against unlawful search and seizure of his papers and effects, and cannot be allowed.”
So, in the case at bar, the State has asked the court to require the defendant to disclose the confidential information contained in its books, so that the State may use that information on which to predicate action for recovery. Neither our statutes nor our cases concerning discovery envisage at the initial stage of a proceeding, such relief as is here sought. To allow the claimed right of the sovereign to be exercised through such a “fishing expedition” as is here attempted would be far in excess of the common law doctrine of bona vacantia.
C. The Bank Deposit Cases. The appellant has cited cases from other jurisdictions, each of which has upheld, as constitutional, a statute which allows the State to obtain unclaimed bank deposits. Such a statute usually: (1) requires all banks to furnish the State with a list of all deposits that have remained inactive and unclaimed for a number of years; (2) authorizes the State to file proceedings based on such furnished information; (3) requires the bank named in such proceedings to pay into court the unclaimed money as reflected by the. said report made and involved in the proceedings; and then (4) provides for publication, etc., and an order to be entered by the court escheating such unclaimed money to the State. Many states have adopted some such a statute, which is sometimes referred to as a “statute for the escheat of old bank deposits. ’ ’ A few of the cases involving,such a statute are: Commonwealth v. Dollar Savings Bank, 259 Pa. 138, 102 Atl. 569, 1 A. L. R. 1048; State v. Security Savings Bank (Cal. Dist. Ct.), 154 Pac. 1070; same case in Cal. Sup. Ct., 168 Cal. 419, 199 Pac. 791; same case in U. S. Sup. Ct., 263 U. S. 282, 68 L. Ed. 301, 44 Sup. Ct. 108, 31 A. L. R. 391; Anderson Natl. Bank v. Reeves, 293 Ky. 735, 170 S. W. 2d 350; same case on second appeal, 294 Ky. 674, 172 S. W. 2d 575; same case U. S. Sup. Ct., 321 U. S. 233, 88 L. Ed. 692, 64 S. Ct. 599, 151 A. L. R. 824. There are also annotations on this point in 1 A. L. R. 1054, 31 A. L. R. 398, 151 A. L. R. 836.
But these bank deposit cases have no direct bearing on the question here before us, because we have no such statute in this State, and therefore have never had occasion to pass on the constitutionality of such a statute.
In this.present proceeding the appellant is seeking to obtain alleged unclaimed monies without any statutory authority, but under an asserted common law doctrine;' and the fact, that various states have enacted statutes designed to reach unclaimed monies, is a rather strong argument that, as to such states, the right to obtain the unclaimed money was not considered to have existed at common law, but to exist only by force of the statute.
Conclusion: We hold that the complaint does not state a cause of action under the commoh law doctrine of .bona vacantia, because there is neither a named known party alleged to have been the former owner of the uncertain property, nor is certain known property alleged to have had a former owner, now unknown.
Affirmed.
Bouvier’s Law Dictionary, Third Edition,.defines bona vacantia: “Goods to which no one claims a property, as shipwrecks, treasure-trove, etc.; vacant goods.”
Ballentine’s Law Dictionary defines bona vacantia: “Personal property without an owner. Such property at common law went to the crown, but not, strictly speaking, by escheat.”
Black’s Law Dictionary, Third Edition, defines bona vacantia: “Vacant, unclaimed or stray goods. Those things in which nobody claims a property, and which belonged, under the common law, to the finder, except in certain instances, when they were the property of the king. 1 Bl. Comm. 298.”
These quoted words are from the complaint, supra. It was conceded by the appellant in the oral argument before this court that the names of all parties — whose money, etc., the defendant was alleged to hold — were entirely unknown to the plaintiff.
For some cases bearing- on this, see: Commonwealth v. Blanton’s Executors (Kentucky, 1842) 2 B. Monroe’s Reports 393; Johnston v. Spicer (N. Y. Court of Appeals, 1887), 107 N. Y. 185, 13 N. E. 753; Howard v. Schmidt (South Carolina, 1829), Richardson’s Equity-Cases, p. 452; Center v. Kramer (Ohio, 1925), 112 Ohio St. 269, 147 N. E. 602; State v. O’Day (Oregon, 1902), 41 Ore. 495, 69 Pac. 542; State v. Kearns (Montana, 1927), 79 Mont. 299, 257 Pac. 1002; In re Payne’s Estate (1932), 208 Wis. 142, 242 N. W. 553. See, also, generally 21 C. J. 851.
The English cases cited in the opinion are: Middleton v. Spicer (1783), 1 Brown, Ch. 201; Dyke v. Walford (1846), 5 Moo. P. C. C. 434; in the Privy Council (1848), 12 The Jurist 839; In re Barnett’s Trust (1902), 3 Brit. Rul. Cas. 198; In re Wells (1933), 1 Ch. Div. 29.
Some of the cases and authorities, in addition to those mentioned in Illinois Bell Telephone Co. v. Slattery, supra, are: 2 Bracton, De Legibus Angliae (1879) 271; 1 Bracton De Legibus Angliae (1878) 61-3; 2 Kent Commentaries (12th Ed. 1873) 322; 2 Holdsworth, History of English Law (3rd Ed. 1923) 222-3; 3 Holdsworth, History of English Law (1909) 352; Ames, Lectures on English History (1913) 188; 1 Blackstone Commentaries (Sharswood Ed. 1860) 200-8; Butler’s Notes, 1 Coke’s Commentaries upon Littleton (18th Ed. 1823) L. 3, c. 4, § 300; Commonwealth of Kentucky v. Thomas, 140 Ky. 789, 131 S. W. 797; Enever, Bona Vacantia (1927) p. 16.
Some of our statutes are: Sections 1239 to 1241, inclusive, Pope’s Digest, Joint biability; § 561, Pope’s Digest, Attachment; § 1472, et seq., Pope’s Digest, Interrogatories Annexed to Pleadings; § 6123, Pope’s Digest, Garnishment; § 5376, et seq., Pope’s Digest, In Aid of Execution.
Some of our cases are: City National Bank v. Wofford, 189 Ark. 914, 75 S. W. 2d 666; Vandover v. Lumber Underwriters, 197 Ark. 718, 126 S. W. 2d 105; Aycock v. Bottoms, 201 Ark. 104, 144 S. W. 2d 43,
Official legislative journals disclose that in the 1939 General Assembly two bills were introduced, each seeking to provide for the escheat of unclaimed bank deposits. These bills were H.B. 379 (which was withdrawn) and H.B, 484 (which died on the calendar). | [
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Smith, J.
This suit was filed against the Bank of Malvern and Robert Smith. The latter was not served with process, so that the pending suit is against the bank alone. A demurrer was sustained to the complaint and the cause was dismissed so that the question presented, is whether a cause of action was stated against the bank.
We condense the allegations of the complaint, and state them as follows. The defendant is a corporation engaged in the general banking business in the City of Malvern. The plaintiffs are the successors in office of the organizers of a religious organization known as The Church of God in Christ, which collected and accumulated a fund of $340.80 to repair their place of worship, which sum was deposited with defendant bank by Jesse Davis, its treasurer, and Robert Smith, its secretary; “that the said Robert Smith, secretary, by connivance and fraudulent schemes concocted and carried out by; through and with the Bank of Malvern, its agents, servants, and employees, drew said money out of said bank deposit, and disposed of the same without authority of the plaintiff or its existing officers, upon whose proper demand the banlr failed and refused to pay said deposit to them, and through fraud and connivance with the said Robert Smith, they have caused to be taken out of plaintiff’s account and placed beyond the possession and control of the plaintiff, to their deprivation and damage, for which they have no adequate remedy at law. ’ ’ Wherefore judgment for the amount of the deposit was prayed.
The demurrer alleged, (1) That the complaint did not state facts sufficient to constitute a cause of action; (2) That the complaint is merely a suit for damages, and does not state a cause of action, cognizable in a court of equity; and (3) That plaintiffs do not have the legal capacity to sue; that plaintiff is not a religious organization, that neither of the parties plaintiff are trustees for the Church of God in Christ, nor is Jesse Davis, treasurer for the Church of God in Christ. The demurrer was sustained and the complaint was dismissed.
A motion to make this complaint more definite and specific might, and very properly, have been filed and sustained, as for instance, how and in what manner and by what fraud and connivance with any officers of the bank Bobert Smith was permitted to withdraw the deposit, without authority to do so. But we are considering the sufficiency of the complaint on demurrer, and must give its allegations such effect and such intendments as they appear prima facie to have.
Considering the grounds of the demurrer in reverse order, it may be said that the denial of the right of the plaintiff to sue raises a question of fact, as the complaint alleges the possession of this authority by the plaintiffs, and the demurrer cannot raise the question how they derived authority. A motion to make specific might require this showing.
The second ground of demurrer that the complaint does not state a cause of action in the court of equity is, of course, correct, as the suit is merely one for the wrongful conversion of a deposit in which wrongful act the officers of the bank participated. But even so, this is not ground for demurrer. Section 1243, Pope’s Digest, provides: “An error of the plaintiff as to the kind of proceedings adopted shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings by an amendment in the pleadings and a transfer of the action to the proper docket.”
We have held in numerous cases that bringing an action at law in equity is not ground for demurrer, as the error should be corrected by the transfer to the proper forum. A late case to this effect is that of Higginbotham v. Harper, 206 Ark. 210, 174 S. W. 2d, 668.
The first ground of demurrer is that the complaint does not state facts sufficient to constitute a cause of action which is of course a ground for demurrer. But the fact that the church raised the money, deposited it in the bank for a specific purpose, and that the officers or an officer of the church withdrew, the deposit for his own use, or for another purpose, would not make the bank liable. This would be true even though the deposit was a trust fund and known to be such.
In the recent case of Hartford Accident & Indemnity Co. v. E. C. Bradley, 211 Ark. 1069, 204 S. W. 2d 792, we said: “Now the law is that a bank has the right to presume, without making investigation, that the payee in a check, properly signed by the depositor, drawn against an account known to be a trust fund, has the right to cash the check and convert the proceeds to his personal use, without liability therefor against the bank, unless the bank knows or is chargeable with knowledge that the depositor has violated his trust in drawing the check, thereby participating in the wrongful conversion of the proceeds of the check.”
The cause of action alleged is that by and through fraud and connivance with the officers of the bank, Robert Smith was wrongfully permitted to withdraw the deposit. This allegation of course imputes knowledge that the bank was aware that Smith had no right to withdraw the deposit, but fraudulently permitted him to do so. In other words, fraud on the part of the bank is alleged in permitting 'Smith to withdraw the deposit.
We conclude, therefore, that while the cause of action is very inartistically drawn, a cause of action was nevertheless stated, and the decree is reversed and the cause remanded with directions to overrule the demurrer and transfer the case to the law docket. | [
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Ed. F. McFaddin, Justice.
This appeal must be decided on the issue of venue, thus leaving entirely undecided the question of liability.
On January 7, 1946, appellee Sanford received injuries while employed by appellant railway company, and he brought this action under the Federal Employers’ Liability Act (IT. S. C. A. Title 45, § 51, et seq.). The injury occurred in Hempstead county, Arkansas, of which county Sanford was a resident at the time of the injury. He brought this action in Pike county; and appellant duly and seasonably objected to the venue, and presents that issue in this court.
By Act 314 of 1939, the Arkansas Legislature provided that “all actions for damages for personal injury . . . shall be brought in the county where the accident occurred which caused the injury ... or in the county where the person injured . . . resided at the time of the injury . . .” In C. R. I. & P. Ry. Co. v. Bone, 203 Ark. 1067, 160 S. W. 2d 51, and in Mo. Pac. R. Co. v. Kincannon, 203 Ark. 76, 156 S. W. 2d 70 we held that this 1939 act was determinative of venue in actions brought against a railroad company; so the present action is governed.by the said venue Act 314 of 1939, unless the Federal Employers’ Liability Act affords a litigant under that act a different venue from that afforded by the state'statute. Does it? That is the question posed in this appeal.
In U. S. C. A. Title 45, § 56 the Federal Employers’ Liability Act says in part: ‘ ‘ The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States, . . .”
Thus, the act confers jurisdiction, but does not mention venue. The Supreme Court of Minnesota discussed the federal statutes in the case of Doll v. C. G. W. Ry., 159 Minn. 323, 198 N. W. 1006, and held that, in actions in state courts brought under the Federal Employers’ Liability Act, the question of venue was to be settled under the applicable state venue statute, saying:
“The question of the jurisdiction of the state courts to entertain this action being settled by the act of Congress, we are now come to a niere question of venue and not of jurisdiction. Congress may create rights and provide for their enforcement in the State courts . . . But Congress may not go farther and govern the state courts on questions of venue, nor direct where or within what limited portion of the state its courts may function with respect to cases within their jurisdiction. That is a question for local regulation and state authority. . . .
“To hole! otherwise would be to consider the acts of Congress and the rules of the United States District Court governing federal jurisdiction and procedure in the district of Minnesota applicable to and controlling the state courts. In other words, it would have to be considered that section 6 of the Employers’ Liability Act by implication has amended, pro tanto, the statutes of Minnesota concerning venue.”
The Minnesota case was cited with approval by the Supreme Court of the United States in Bainbridge v. Merchants & Miners Transportation Co., 287 U. S. 278, 53 S. Ct. 159, 77 L. Ed. 302, which involved a question of venue of state courts in actions arising under the Merchant Marine Act (U. S. C. A. Title 46, § 688). The United States Supreme Court held that the venue was to be determined by the state statute, saying:
“If the question were more doubtful than we think it is, we should be slow to impute to Congress an intention, if it has the power, to interfere with the statutory provisions of the various states fixing the venue .of their own courts. It follows that the venue should have been determined by the trial court in accordance with the law of the state.”
Since the Merchant Marine Act and the Federal Employers’ Liability Act are similarly worded as regards jurisdiction, this holding of the Supreme Court of the United States is highly persuasive on the qúestion here presented. So we hold that the Federal Employers’ Liability Act fixes jurisdiction, but that venue is left to the state to determine by its applicable statute; and that the venue for appellee’s action, if brought in the state court, must be in Hempstead county, where the appellee resided, and where the injury occurred'.
The judgment of the Pike Circuit Court is reversed, and the cause dismissed without prejudice to appellee’s right to file an action in the proper venue. | [
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Robins, J.
This appeal requires construction of a deed executed on April 22, 1940, by Ed Winkle and wife, now deceased, to appellants; Cora Winkle McBride and Susie Winkle Moser, conveying certain lands in Izard county. The chancery court sustained a demurrer to appellants ’ complaint against appellees, who, with appellants, are all the heirs at law of said Ed Winkle, deceased, in which appellants asked that the title to the lands described in the complaint be quieted in appellants in fee simple. This appeal followed.
The deed in question, with description of lands and acknowledgment omitted, and with portions thereof necessary to a construction thereof italicized, is as follows:
“Know All Men By These Presents:
‘ ‘ That we, Ed Winkle and Fannie Winkle, his wife, for and in consideration of the sum of ($1.00), One Dollar and other good and valuable consideration, in hand paid by Susie Moser and Cora McBride, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell and convey unto the said Susie Moser and Cora McBride, with the proviso that it cannot be sold or mortgaged by them or either of them, and unto their heirs forever, the following lands lying in the County of Izard and State of Arkansas, to-wit:
“Should either Susie Moser or Cora McBride die leaving no children living their interest or claim in the above described lands to revert to the other heirs of said Ed Winicie.
“To have and to hold the same unto the said Susie Moser and Cora McBride and unto their heirs forever, with all appurtenances thereunto belonging.
“And we hereby covenant with the said Susie Moser and Cora McBride that we will forever warrant and defend the title to said lands against all claims whatever.
“And I, Fannie Winkle, wife of the said Ed Winkle, for and in consideration of the said sum of money, do hereby release and relinquish unto the said Susie Moser and Cora McBride all my right of dower and homestead in and to said lands.
“Witness our hands and seals on this 22 day of April, 1940.
“ (Signed) Ed Winkle
“ (Signed) Fannie Winkle.”
It is first argued by appellants that, under our decisions in the case of Letzkus v. Nothwang, 170 Ark. 403, 279 S. W. 1006, and First National Bank of Ft. Smith v. Graham, 195 Ark. 586, 113 S. W. 2d 497, the provision in the deed forbidding alienation by the grantees must be held void. A decision as to the validity of this provision would not necessarily be determinative of the question involved herein and we pretermit such decision.
Appellants urge that the provision “should either Susie Moser of Cora McBride die leaving no children living their interest or claim in the above described lands to revert to the other heirs of said Ed Winkle” is similar to a provision in a deed which we held in the case of Henson v. Breeze, 129 Ark. 155, 195 S. W. 359, to vest a fee simple estate in the grantee. There is a very material difference between the language of the deed in the Henson case and that of the deed involved in the case at bar. In the Henson case the effect of the provision in the deed therein considered was to vest title, on the death of the grantee, in the grantee’s heirs. But in the deed herein involved it was provided that on the death of the grantees without bodily heirs the land should go to the heirs of the grantors.
In recent years many of the courts, including this one, have adopted the rule that the intention of the parties, as ascertained from all the language of the deed, rather than the application of hard and fast formulae anciently established, should govern in the construction of the instrument. Luther v. Patman, 200 Ark. 853, 141 S. W. 2d 42; Carter Oil Company v. Weil, 209 Ark. 653, 192 S. W. 2d 215; Coffelt v. Decatur School District No. 17, ante, p. 743, 208 S. W. 2d 1.
Construing the deed involved here, in accordance with this rule, we are impelled to conclude that it was the intention of the grantors, clearly revealed by the language of their deed, to vest in the grantees a life estate, with fee simple in the children of the grantees, and, in event of failure of such children, the fee to vest in Winkle’s heirs at law.
It follows that the decree of the lower court was correct and it is affirmed. | [
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Robins, J.
Appellants ask ns to reverse the circuit court’s judgment by which it was ordered that seven slot machines belonging to appellant Swan and 20 slot machines belonging to appellant Bell be destroyed.
It is conceded that all these slot machines were gambling devices. Some of them, when seized, contained coins, showing they had been in actual use. No question is raised as to the validity of the search warrants under which they were seized by the sheriff. The slot machines owned by Swan were found in his warehouse. Bell’s slot machines were seized in a room at the-rear of Hopper’s barber shop.
The sole contention of appellants is that sin.ce the slot machines were not actually set up, so as to “cater to the public,” they were not liable to seizure and destructi on.
By § 3320 of Pope’s Digest, the setting up, keeping or exhibiting of any gaming table or gambling device-is made a misdemeanor, punishable by finé and imprisonment.
Section 3327, Pope’s Digest, provides: “It is hereby-made and declared to be the duty and required of the judges of the Supreme Court, the judges of the circuit courts and of the justices of the peace, on information given or on their own knowledge, or where they have reasonable ground to suspect, that they issue their warrant to some peace officer, directing in such warrant a search for such gaming tables, or devices hereinbefore mentioned or referred to, and directing that, on finding any such, they shall be publicly burned by the officer executing the warrant.”
The statute does not require that the gaming devices be found set up and ready to operate before they may be seized and destroyed. By § 3320, supra, the keeping of these machines is made a misdemeanor, and their possession, at any place in this state, is outlawed.
' The validity of the statute invoked here was upheld by this court in the case of Garland Novelty Company v. State, 71 Ark. 138, 71 S. W. 257; and the right to destroy gaming devices thereunder has been sustained in these cases: State v. Sanders, 86 Ark. 353, 111 S. W. 454, 19 L. R. A., N. S. 913; Howell v. State, 184 Ark. 109, 40 S. W. 2d 782; Steed v. State, 189 Ark. 389, 72 S. W. 2d 542; Stanley v. State, 194 Ark. 483, 107 S. W. 2d 532; Albright v. Muncrief, 206 Ark. 319, 176 S. W. 2d 426.
Appellants call our attention to this provision of the constitution of Arkansas (§ 22, Art. II): “The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.”
It has often been held that the constitutional guaranty of the .right' of property affords no protection to one who holds property that is dangerous to public health or subversive of public morals.
Answering a contention similar to that made in the instant case by appellants, the Supreme Court of Idaho, in the case of Mullen v. Mosely, 13 Idaho 457, 90 Pac. 986, 12 L. R. A., N. S. 394, said: “Under the constitution, no man’s property may be taken without due process of law; but, when he invokes the protection of this constitutional provision, he must show that he is invoking it for the protection of something that is really property, and falls within the meaning of that term. He is entitled to his day in court when his 'property rights are invaded, but this guaranty can scarcely be invoked where he seeks his day in court that he may dispute with the officers of the law the right of possession of instrumentalities, tools, and machines contrived and designed as a ready means to be directed against society, and in violation of the laws of the land in the commission of crime. ’ ’
To the same effect is this holding of the Supreme Court of Illinois in the case of Frost v. People, 193 Ill. 635, 61 N. E. 1054, 86 Am. St. Rep. 352; “The legislature have determined' that gambling implements and apparatus are pernicious and dangerous to the public welfare, and the keeping of them is an offense prohibited by law. They are therefore not lawful subjects of property, which the law protects, but have ceased to be regarded or treated as property, and are liable to seizure, forfeiture and destruction without violating any constitutional provision. ’ ’
These slot machines, along with all other gambling devices, have been declared contraband under the laws of this state, and the lower court properly ordered their destruction.
The judgment appealed from is accordingly affirmed. | [
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Robins, J.
The Workmen’s Compensation Commission awarded appellee compensation from November 2, 1945, to January 16,1946, at the rate of $20 per week and also hospital and surgicál fees amounting to $203.75, on his claim against appellant, Harding Glass Company, his employer, for disability from hernia. On appeal the circuit court entered judgment affirming the Commission’s award.
Appellants ask us to reverse the judgment of the lower court, and the award of the Commission, on the ground that the hernia suffered by appellee did not meet the specifications of the Workmen’s- Compensation Act as to hernia compensable under the Act, which require that before a claim for disability on account of hernia may be allowed the Commission must be satisfied:
“ (1) That the descent of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;
“(2) That there was severe pain in the hernial region;
“ (3) That such prostration resulted so that the employee was compelled to cease work immediately. ’ ’
Appellee was wheeling glass in the plant of appellant in a cart and while dumping liis load, weighing five or six hundred pounds, he felt a stinging in his left side. When he took a bath that night he noticed a “ridge” in the place where he had felt the ‘ ‘ stinging. ’ ’ The next morning he showed the “ridge” to his brother. His brother, who ,lmd previously suffered a hernia, expressed the opinion that appellee had a rupture. He then reported the injury to a representátive of his employer who sent him to a clinic. A physician at the clinic examined him and told him he had a definite hernia which would finally break through, but advised him to continue work as long as he was able. On advice of this physician he was off from work for eight days (for one day of which he was paid compensation) then returned to work. On September 27, 1945, appellee attempted to tilt a heavily loaded barrow and on the following morning felt a soreness, which caused him to go back to the clinic. The doctors at the clinic, who examined him then and again on October 16,1945, found that he had a “potential hernia.”
On October 27, 1945, appellee filed a claim for compensation and a request that he be operated on for the hernia at the expense of his employer and its insurance carrier, as provided for in the Workmen’s Compensation Act.
Testifying before the • Commission on October 25, 1945, Dr. Crigler, one of the physicians at the clinic who had examined appellee, said: “ Q. Do you think he should be operated on! A. That is the only way he will get permanent relief.” (Afterwards Dr. Crigler testified that he meant that the claimant was in such a mental state that it was best to operate on him.)
' A statement from Dr. H. B. Thompson to this effect was introduced: “I found him [appellee] with an acute left protruding inguinal hernia which was giving him quite a bit of pain and he was unable to work at this time, therefore I advised him to have immediate surgery.” Dr. Thompson’s examination occurred one week before he was operated on by Dr. Thompson on November 2, 1945. Dr. Thompson stated that he operated on appellee for protruding inguinal hernia.
It was shown in this case that appellee, while engaged in his work, on two occasions suffered a severe strain, with ensuing pain in the inguinal region, and that an examination on one occasion disclosed a partial or “potential” hernia, and that following the last strain a physician found an acute protruding hernia. The physician to whom the employer sent appellee, when the injury first developed, directed him to desist from work for eight days, and the employer’s insurance carrier actually paid him for one day’s disability from that cause. After the second strain a hernia, necessitating an operation, ensued.
When all the facts and circumstances shown by the proof are considered, we cannot say that the Commission did not have reasonable grounds for determining that the requirements for compensable hernia had been met in this case.
Accordingly the judgment of the lower court is affirmed.
Act No. 319 of 1939. | [
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Robins, J.
Appellee in bis replevin suit against appellants, Horace Hale and Carl Porter, marshal and deputy marshal, respectively, of Prescott, was awarded judgment for possession of fifty-four and a half pints of intoxicating liquor. These officers and the prosecuting attorney, who had intervened for the State of Arkansas below, have appealed.
Appellee purchased the liquor, which bore the proper federal and state revenue stamps, in Little Eock, and transported same to Prescott. There the marshal and his deputy arrested appellee, seized the liquor and took appellee before the mayor of Prescott.
The sale of intoxicating liquor anywhere in Nevada county i,^ forbidden by law.
Appellee entered a plea of guilty to a charge of possessing liquor for sale in “dry” territory and a fine, which has been paid, was assessed against him on said charge. The mayor also ordered the marshal to destroy the seized liquor, but before this could be done the instant suit was filed.
We have not been favored with a brief by appellee; and in its judgment the circuit court made no findings of fact or of law. The complaint in the replevin suit is formal and contains no allegation from which we may deduce the grounds on which the lower court ordered the liquor to be returned to appellee.-
By the provisions of § 14134, subdivision (c), Pope’s Digest, the keeping of intoxicating liquor for sale in territory wherein the sale thereof is forbidden by law is made a misdemeanor; and the seizure and destruction of liquor so kept is authorized by Act 13 of the General Assembly, approved February 13, 1899, § 6184, Crawford & Moses’ Digest, which, though not repealed, apparently is omitted from Pope’s Digest. The offense here involved was committed before the approval of Act No. 423 or Act No. 91 of the General Assembly of 1947.
In the case at bar appellee confessed to a violation of the law — keeping intoxicating liquor for sale in “dry” territory — and paid a fine therefor. The mayor properly ordered the destruction of the liquor seized by the officers when they arrested appellee.
The judgment of the lower court is reversed and appellee’s complaint is dismissed. | [
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Robins, J.
Appellee filed claim with the Workmen’s Compensation Commission on September 6, 1945, asserting that he had a compensable disability, caused by “silicosis or heart ailment.” '
A referee of the Commission, on account of a dispute in the medical testimony, referred the matter to a medical board, in conformity with § 14 (c) (4) of the Arkansas Workmen’s Compensation Law. Act No. 319 of 1939. The medical board reported that it found no evidence of claimant’s being afflicted with silicosis or tuberculosis, but found “that the inhalation of dust in the employment has aggravated a preexisting heart condition, which in our opinion, renders the claimant totally and permanently disabled from following any occupation.”
Appellants, alleging that the findings by the medical board as to tuberculosis and as to the disablement of appellee by inhalation of dust were improperly made, filed a motion asking that these findings by the board be stricken. The Commission made an order in which it was recited that these findings by the medical board were made by inadvertence and by reason of a mistake of law, striking these findings from the report of the medical board.
The referee thereafter made an older, based on all the evidence, to the effect that appellee was entitled to compensation “for injury arising by reason of traumatic aggravation of a preexisting heart condition,” and fixed his compensation at $20 per week.
On review the Commission found that “claimant is totally and permanently disabled because of a heart con dition wliiqli preexisted liis employment with the respondent company and which may have been accelerated by the manual labor which he performed as an employee of that company. There is, however, no showing either before the referee or before this Commission on review that claimant’s condition was aggravated by an accident or accidental injury.” On this finding the Commission reversed the award of the referee and dismissed the claim.
The circuit court set aside the order of the Commission and entered judgment directing an award of $20 per week to appellee. To reverse the circuit court’s judgment this appeal is prosecuted.
It is not disputed that appellee had been working for the Batesville White Lime Company - for twenty-three years and was forced to quit work on account of a total and permanent physical disability. Much of the time his duties kept him around a rock crusher where the air was heavily impregnated with dust. A report of the Division of Industrial Hygiene of the Arkansas State Board of Health made J uly 30,1945, showed that employees at this plant were working in an excessive amount of dust and in this report certain changes necessary to ameliorate unheáltliful conditions at the lime quarry were recommended. It is not seriously contended that the finding of the medical board that inhalation of dust by appellee during his work had aggravated the diseased condition of his heart and caused his disability was not responsive to the evidence.
The Commission, however, took the position that, since this inhalation of dust continued over a period of years, so that the damage to the appellee’s heart by the additional strain imposed on it was probably gradual, there was no trauma, so as to admit of a finding of accidental injury within the meaning of the term as used in the Workmen’s Compensation Law.
All the courts of this country are agreed that, in determining whether a disputed claim under the Workmen’s Compensation Law should be allowed, the terms of the Act must be given a liberal interpretation in favor of the claimant; and the Act itself provides that in a proceeding to enforce a claim under the Act “there shall be a prima facie presumption . . . that the claim comes within the provisions of this Act. ’ ’
The word “accidental” has often been construed to mean “unexpected” or “fortuitous,” or “not to be reasonably anticipated.”
Now there is nothing in the proof in this case to justify a conclusion that the injury to appellee’s heart by breathing the excessive amount of dust was one which appellee might have reasonably expected or ■ anticipated. Certainty it was accidental as far as he was concerned; and there is much authority for a holding that an injury, not necessarily the result of one impact alone, but caused by a continuation of irritation upon some part of the body by foreign substances may property be said to be accidental. *
Thus it was held in the case of McNeely v. Carolina Asbestos Company, 206 N. C. 568, 174 S. E. 509, a proceeding under the Workmen’s Compensation Act, that pulmonary asbestosis produced by employee’s inhalation of asbestos dust over a period of five months was an “injury by accident” and compensable. The court in that case said: “Unless we attempt to whittle down or enlarge words or undertake to put big threads through the eyes of little needles, it would seem manifest that our Act did not undertake to limit compensation to cases where the injury was begun and completed within narrow limits of time, but that it used the expression ‘injury by accident’ in its common-sense everyday conception as referring to an injury produced without the design or expectation of the workman.”
In the case of Frankamp v. Fordney Hotel et al., 222 Mich. 525, 193 N. W. 204, the Supreme Court of Michigan held that a waitress at a hotel who was disabled by an 'attack of typhoid fever, caused by her drinking contaminated water at the hotel, had suffered an accidental injury within the meaning of the Workmen’s Compensation Act.
The Kansas City Court of Appeals (Mo.) in Rinehart v. F. M. Stamper Company, 227 Mo. App. 653, 55 S. W. 2d 729, holding that disability from pneumonia contracted by an employee while working in a refrigerator was an accidental injury within the purview of Workmen’s Compensation Law, said: “To constitute an accident within the definition of that word the event need not reach its consummation immediately.”
The Supreme Court of Colorado, in the case of Carroll v. Industrial Commission of Colorado, 69 Colo. 473, 195 P. 1097, held that where the dust-laden condition of the air in which an employee was working brought on an attack of heart trouble culminating in death, the result was “an accident” within the meaning of the Workmen’s Compensation Act.
Likewise, where a latent tubercular condition was revived by employee inhaling dust during the period of employment, the disability was held by the Idaho Supreme Court, in the case of Beaver v. Morrison-Knudsen Company, 55 Idaho 275, 41 P. 2d 605, 97 A. L. R. 1399, to be an accident within the meaning of the term as used in the Workmen’s Compensation Act, notwithstanding inability to specify the exact time when the injury was received or the dangerous draught of dust inhaled.
The Massachusetts Supreme Judicial Court, in Re Madden, 222 Mass. 487, 111 N. E. 379, L. R. A. 1916D, 1000, dealing with a claim under the Massachusetts Workmen’s Compensation Act, said: £ ‘ When a preexisting heart disease of the employee is accelerated to the point of disablement by the exertion and strain of the employment, not due to the character of the disease act-' ing alone, or progressing as it would in any rational work, there may be found to have been a personal injury.”
The same court, in Carl Johnson’s Case, 279 Mass. 481, 181 N. E. 761, upheld a finding of the Industrial Accident Board that a workman who had been exposed to noxious fumes from 1909 to 1927, which fumes finally caused or aggravated chronic bronchitis and emphysema, had sustained a compensable “personal injury” within the meaning of the Workmen’s Compensation Law of that state.
We held in the case of Murch-Jarvis Company v. Townsend, 209 Ark. 956, 193 S. W. 2d 310, that where an employee was disabled by the aggravation of a bronchial asthma by dust inhaled by him in his working place the disability was the result of an accidental injury as the phrase is used in the Workmen’s Compensation Law.
We conclude that, even though the evidence did not show the exact instant at which the disability of appellee could be said to have occurred by reason of breathing the dust, nevertheless, as shown by the proof, the inhalation of this dust did aggravate appellee’s heart ailment to the point of totally disabling him, and therefore the finding of the referee that appellee suffered an accidental injury in the course of his' employment was correct.
Tt follows that the judgment of the lower court must be affirmed. | [
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RHONDA K. WOOD, Judge.
11 This dispute among ten siblings returns to us after we dismissed an earlier appeal for lack of a final order. See McCall v. Grunwald, 2013 Ark. App. 232, 2013 WL 1456761 (McCall I). The dispute involves approximately 150 acres of real property that was conveyed to a trust established by the parties’ parents. One sibling, appellant Donna Grunwald, is opposed by her remaining siblings, appellees Sherall Dean McCall, Reba Gayle McCall Sisco, Richard Marvin McCall, James Paul McCall, Jesse Lee McCall, Mary Jaequline McCall Weems, Sarita Sue McCall 12(Cox) Meacham, Clara Jeanne McCall Williams, and Randi Colleen McCall Scott (“the siblings”).
The siblings petitioned the court to terminate the trust, to remove Grunwald as trustee and appoint a successor trustee, and to compel Grunwald to provide an accounting. Grunwald petitioned the court for a declaratory judgment asserting that her mother had executed a valid handwritten amendment to the trust. The court granted Grunwald summary judgment on the siblings’ petition. The court directed a verdict in favor of the siblings on Grun-wald’s complaint. This appeal and cross-appeal challenge those rulings. We affirm on direct appeal and reverse and remand on cross-appeal.
In our first opinion, we set forth the following factual background.
Jack Gail McCall and Vella Marie McCall established the McCall Family Revocable Living Trust, u/d/t July 19, 1994, as the settlors and initial trustees, with Grunwald named as successor Trustee.
Jack McCall died ... [and] Vella McCall, as surviving trustee, executed a quitclaim deed transferring the real property to herself and Grunwald as joint tenants with rights of survivorship. She also executed a document purporting to revoke the trust.
On February 9, 2006, [the siblings] filed an action (... referred to as the deed litigation) against Vella McCall and Grunwald. The complaint alleged undue influence on the part of Grunwald and the incapacity of Mrs. McCall. In addition to requesting a return of the real property to the trust, [the siblings] sought the appointment of a successor trustee in place of Grunwald. Vella .McCall died on February 26, 2006.
|aBy order entered on July 9, 2010, the deed litigation was resolved. The circuit court found that there was no undue influence on the part of Grunwald. However, the court found that Vella McCall was incapacitated at the time she executed the deed and revocation of trust. The court declared title to the properly was “vested in the Trust and any valid amendments.” Grunwald was not replaced as successor trustee. No appeal was taken from this order.
On March 2, 2011, [the siblings] filed the present action seeking an accounting for the trust, the removal of Grunwald as successor trustee, the appointment of a new successor trustee, and the termination of the trust.
Grunwald filed a response to the petition in which she ... denied the material allegations of the petition. She also referenced the prior deed litigation and attached a copy of the court’s order in the deed litigation....
Grunwald filed a Complaint for Declaratory Judgment requesting that the circuit court declare a certain handwritten document signed by Vella McCall to be an amendment to the McCall Family Revocable Living Trust. The gist of this purported amendment was that Vel-la McCall wanted to place the farm in the names of Clara Jean McCall Williams and Grunwald as of the time of her death so they could keep the farm operating as a family farm. She also filed a motion to dismiss, later amended to include a motion for summary judgment, asserting that [the siblings’] petition was barred by the purported amendment to the trust instrument, as well as other provisions of the trust instrument. She also argued that res judicata and judicial estoppel were further bases for barring the petition.
At the conclusion of a July 6, 2011 hearing on the motion for summary judgment, the court took the matter under advisement. The court noted that a hearing on Grunwald’s claim for declaratory judgment was reserved.
McCall I, 2013 Ark. App. 232, at 2-4, 2013 WL 1456761 (footnote omitted).
Ultimately, on October 13, 2011, the court granted Grunwald summary judgment and the siblings appealed. We dismissed the siblings’ previous appeal for lack of a final order because the court had yet to rule on Grunwald’s declaratory-judgment petition. The circuit court then proceeded with the case and held a bench trial on Grunwald’s complaint for declaratory judgment on the handwritten document as an amendment to the trust. The only witness was Grunwald. The issue of McCall’s competency was raised and the court stated, l/T’ve taken judicial notice of previous testimony ... she was not competent at that time.”
When Grunwald rested her case, the siblings’ attorney made a motion for directed verdict primarily based on Grun-wald’s failure to introduce the handwritten document into evidence. The court granted the directed verdict: “I have nothing before me on which I can refer to or rule on as to what would constitute an amendment and what the terms of that amendment would be. I have nothing to look at.” Grunwald appealed and the siblings cross-appealed.
We address the direct appeal first. Grunwald’s arguments are (1) the court erred by taking judicial notice of testimony that occurred in the first deed litigation case, (2) the court erred by granting the siblings’ motion for directed verdict, and (3) upon reversal, she is entitled to a new judge due to her allegations that the court was biased against her. We affirm on each point.
First, the issue of whether the court erred by taking judicial notice of an expert witness’s prior testimony is not preserved for our review. Grunwald had filed a motion in limine on this point, but failed to obtain a ruling. When the court de-dines to rule on a motion in limine, it is necessary for counsel to make a specific objection during the trial. Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995). Because she failed to object at trial, we cannot consider her argument. Travis Lumber Co. v. Deichman, 2009 Ark. 299, 319 S.W.3d 239.
Second, the court correctly granted the motion for a “directed verdict” against |fiGrunwald. When a party moves for a directed verdict or a dismissal in a bench trial, it is the trial court’s duty to review the motion by deciding whether, if it were a jury trial, the evidence would be sufficient to present to the jury. See Woodall v. Chuck Dory Auto Sales, Inc., 347 Ark. 260, 61 S.W.3d 835 (2001). Here, Grun-wald never introduced the handwritten document purporting to be an amendment to the trust into evidence. Grunwald argues that she presented sufficient evidence of Vella McCall’s intent to amend the trust and that the handwritten document was that amendment. It is true that much of Grunwald’s testimony focused on her mother’s intent to modify the trust. However, she failed to introduce the document purporting to be that amendment into evidence. Because she failed to introduce the document into evidence, we cannot consider whether the handwritten document was effective to amend the trust. See Rodriguez v. Ark. Dep’t of Human Servs., 360 Ark. 180, 200 S.W.3d 431 (2004).
Third, Grunwald’s recusal argument is waived because she did not raise it in a timely manner. In Ashley v. Ashley, we held, “To preserve a claim of judicial bias for review, appellant must have made a timely motion to the circuit court to recuse. Without such motion, the disqualification of a judge may be waived.” 2012 Ark. App. 230, at 3-4, 2012 WL 1111381 (citations omitted). Grunwald points to several examples of what she contends are exhibitions of the court’s bias against her. For example, she points to a colloquy between the court and her attorney where the court said, “I’m not trying to try your case, Ms. France.” Another example was where the attorney for the siblings made an objection and the court, after stating Ifithat the objection was going to be its next point, said that it was not trying to make objections for opposing counsel. However, neither time did Grunwald object to the court’s actions. Together with the fact that she did not seek recusal until after the court had granted the directed verdict results in the waiver of the issue. Ashley, supra; see also Powhatan Cemetery, Inc. v. Colbert, 104 Ark.App. 290, 292 S.W.3d 302 (2009) (holding that trial court did not abuse its discretion in refusing to recuse where recusal is not sought until after an adverse decision was rendered). For the above reasons, we affirm on Grun-wald’s direct appeal.
Turning to the cross-appeal, we reverse the circuit court’s decision granting Grunwald summary judgment on the siblings’ claims. It is difficult for us to glean the precise reason for the court’s decision on summary judgment. The court took the matter under advisement following the hearing and then issued an order that simply states:
The court is very familiar with the facts of the case and notes that many of the issues raised by the parties were closely related to the issues tried in case number Carroll County CV 2006-14 WD. Upon review of all the arguments, pleadings and statements of counsel the court finds that [Grunwald’s] motion for summary judgment is granted.
The siblings filed a motion asking the court to make findings of fact and conclusions of law regarding the specific basis for the court’s ruling. The court failed to rule on the motion, and it was deemed denied. Thus, on appeal, the siblings list multiple points for reversal on their cross-appeal, in essence arguing that there was no conceivable persuasive reason for the court to grant summary judgment.
A motion for summary judgment should be granted if there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. Ark. R. Civ. P. 56(c)(2). On review, we view the evidence in the light most favorable to the party against 17whom the motion was granted and we resolve all doubts in favor of that party. Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844. However, as to issues of law, we conduct a de novo review. Id.
Given that the court’s order specifically referenced the prior-deed litigation case, we focus on arguments surrounding that case’s effect on the current litigation. Grunwald contended that the siblings’ action was barred by res judicata and/or collateral estoppel. Before we can determine if res judicata applies to the present case, we must determine the specific claims that were presented in the earlier deed litigation. Carmical v. City of Beebe, 316 Ark. 208, 871 S.W.2d 386 (1994). After comparing the claims made and ruled upon in the deed litigation and the claims presented by the siblings in the present case, we cannot say that the present case is barred by the order deciding the earlier case.
The deed litigation concerned claims that Vella McCall did not have the capacity to transfer assets from the trust to herself and Grunwald. It was alleged that McCall was subject to Grunwald’s undue influence, which resulted in the purported transfers of all assets from the trust, as well as McCall’s revocation of the trust. Further allegations were that McCall, as trustee, had not provided an accounting to the beneficiaries of the trust. The relief sought was the setting aside of the transfer of the property and revocation of the trust, requiring the trustee to provide an accounting, and the naming of a successor trustee.
In contrast, the present case seeks to replace Grunwald as successor trustee because of her self-dealing with the trust property and her failure to provide an accounting. These events could not have occurred until she became the successor trustee after her mother’s death. The present litigation also seeks the termination of the trust and the distribution of the assets of the [¡¡trust according to the terms of the trust instrument.
Although res judicata can bar issues which may have been raised in the earlier litigation, Deer/Mt. Judea Sch. Dist. v. Kimbrell, 2013 Ark. 393, 430 S.W.3d 29, we cannot say that the issues sought to be raised by the siblings in this litigation are barred by res judicata.
In addition; the siblings were not estopped from pursuing the current litigation. The doctrine of judicial estoppel prevents a party from availing himself of inconsistent positions in litigation concerning the same subject matter. Breckenridge v. Breckenridge, 2010 Ark. App. 277, at 8, 375 S.W.3d 651, 657. The siblings’ position concerning the trust has not changed. In the prior deed litigation, the siblings con tended that the farm land remained in the trust and that their mother had not amended the trust. This position remains consistent in the current litigation. We therefore hold that the siblings are not judicially estopped in this matter.
Accordingly, we reverse and remand the summary judgment for further proceedings on the siblings’ petition.
Affirmed on direct appeal; reversed and remanded on cross-appeal,
GLOVER and VAUGHT, JJ., agree,
. Grunwald’s children, Jacob Grunwald and Joshua Grunwald, were named defendants in the siblings’ petition. However, there were no allegations involving Jacob or Joshua Grunwald in the petition. For ease of writing we will refer to Grunwald as the sole appellant.
. See Ark. R. Civ. P. 50(a) (stating that in nonjury cases a party should move for dismissal instead of a directed verdict at the end of the plaintiff's case). | [
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LARRY D. VAUGHT, Judge.
| j Appellants, Heather Callison and Joseph Davidson, appeal from the order entered on April 2, 2014, by the Garland County Circuit Court, adjudicating their daughter, ED (d/o/b July 16, 2012), dependent-neglected and finding the existence of aggravated circumstances. Appellants concede the dependency-neglect finding. Their sole challenge on appeal is that there is insufficient evidence to support the trial court’s finding of aggravated circumstances. We affirm.
The relevant evidence presented at the adjudication hearing revealed that on January 9, 2014, the Department of Human Services (DHS) exercised a seventy-two-hour hold on ED after an incident that had occurred earlier that day. Davidson left ED, who was approximately eighteen months old, in the care of Callison for about thirty minutes while he ran an errand. When he returned, Callison ran into the yard with an unresponsive ED in her arms. Callison |2told Davidson that ED had fallen off the couch. Davidson administered CPR and called 911. Meanwhile, Callison attacked the family dog, whom she blamed for the child’s condition.
ED was taken to the emergency room in Hot Springs for treatment. There, she was intubated on a ventilator for respiratory support. Also, drug testing on ED indicated the presence of methadone and benzodiazepines. ED was transferred that same day to Arkansas Children’s Hospital in Little Rock, where she was treated by pediatrician Dr. Karen Farst. Dr. Farst testified that ED’s altered level of consciousness and breathing distress raised concern that she had been exposed to or ingested a drug. Subsequent drug testing of ED at Children’s Hospital did not confirm the presence of methadone; however, it did confirm the presence of tramadol, one of Callison’s prescribed pain medications. Dr. Farst testified that the consumption of too much tramadol can cause respiratory depression and coma. She further testified that
the event that [ED] suffered was a life-threatening event. She had to have ... help with her breathing because she was so impaired from what had happened. So without medical care she could ... have actually either had some permanent brain damage from lack of oxygen or even died from this. And so ... it was a very severe situation. And ... my biggest concern, really, was for her ... ongoing safety if she ... stayed in an environment where this type of thing could happen to her.
Judy Jenson, the Department of Children and Family Services Investigator, testified that based on her investigation, the allegations of failure to protect, inadequate supervision, and |smedical neglect were true. She said that her investigation revealed that Davidson was aware that Callison suffered from untreated mental-health issues (bipolar disorder and schizophrenia); she had been acting erratically for the last six weeks; she left her medicine on the floor, within ED’s reach, and Davidson was afraid that ED would put it in her mouth; and Callison was not able to safely and appropriately care for the child.
Davidson testified that Callison suffered from “bipolar depression” and that he had been concerned about her behavior in November and December of 2013, but that he took her to the doctor, who prescribed a medication, and her condition improved. He added that Callison’s behavior on the day of the incident was normal and that he would not have left ED with Callison otherwise. He offered no explanation for how ED could have consumed tramadol, stating that Callison kept her medicine away from ED.
At the conclusion of the hearing, the trial court from the bench found that ED was dependent-neglected based on inadequate supervision. The trial court cited evidence that Callison had been acting erratically for the six weeks leading up to the incident and that she had dropped her medication on the floor. The trial court further found that ED was subjected to aggravated circumstances of extreme cruelty based on Dr. Farst’s testimony that ED experienced a life-threatening event and could have died or suffered permanent brain damage.
Thereafter, the trial court entered an adjudication and disposition order, reiterating its dependency-neglect finding and stating,
[T]he Court finds that the parents subjected the juvenile to aggravated circumstances in that the juvenile was subjected to extreme cruelty and was neglected or abused such that the abuse or neglect could endanger the life of the child. The Court further finds that the father’s testimony was not credible.
^Additionally, the trial court found that the goal of the case was reunification, and it approved the DHS case plan. It is from this order that appellants appeal.
In dependency-neglect cases, the standard of review on appeal is de novo, but we do not reverse the trial court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Churchill v. Ark. Dep’t of Human Servs., 2012 Ark. App. 530, at 9, 423 S.W.3d 637, 641. 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., 423 S.W.3d at 641. In reviewing a dependency-neglect adjudication, we defer to the trial court’s superior position to observe the parties and judge the credibility of the witnesses. Parker v. Ark. Dep’t of Human Servs., 2011 Ark. App. 18, at 14, 380 S.W.3d 471, 478. Deference to the trial court is even greater in cases involving child custody, as a heavier burden is placed on the trial judge to utilize to the fullest extent his or her powers of perception in evaluating the "witnesses, their testimony, and the best interest of the children. Culclager-Haynes v. Ark. Dep’t of Human Servs., 2010 Ark. App. 518, at 2, 2010 WL 2522035.
A dependent-neglected juvenile includes one who is at substantial risk of serious harm because of abuse, neglect, or parental unfitness to the juvenile or to a sibling. Ark.Code Ann. § 9-27-303(18)(A) (Supp. 2013). Here, the appellants do not challenge the dependency-neglect finding made by the trial court. Instead, they contend that insufficient evidence supports the trial court’s finding of aggravated circumstances based on extreme cruelty.
DHS argues we need not reach the merits of the appellants’ appeal and must affirm based on our holding in Payne v. Arkansas Department of Human Services, 2012 Ark. App. 500, 2012 WL 4207304. In | ¡¡Payne, the appellant conceded the dependency-neglect adjudication but sought a “partial reversal” of the adjudication order, arguing that the trial court’s “finding of aggravated circumstances and disposition of immediate termination” was clearly erroneous. Payne, 2012 Ark. App. 500, at 1, 2012 WL 4207304. We disagreed and affirmed, noting that the trial court made no aggravated-circumstances finding; pointing out that the appellant conceded the adjudication finding of dependency-neglect; and holding that the appellant did not separately appeal the disposition of the case. Id. at 2-3.
The facts of the instant case are distinguishable from Payne. Here, the trial court made a finding of aggravated circumstances — which was not made in Payne. The aggravated-circumstances finding was a separate finding made in addition to the dependency-neglect finding — it was not a disposition. The disposition of the case, as set forth in the trial court’s order, was reunification, and the trial court’s order directed that the case plan be followed to that prospective end. There is no indication on this record that the appellants are seeking to appeal this disposition. Therefore, the holding in Payne is inapplicable to the instant case. We hold that appellants’ challenge to the aggravated-circumstances finding is part of the adjudication decision and is properly before our court. See Cole v. Ark. Dep’t of Human Servs., 2014 Ark. App. 895, 2014 WL 2804982.
| (¡On the merits of appellants’ appeal, we hold that the trial court’s finding of aggravated circumstances because of extreme cruelty was not clearly against the preponderance of the evidence. Arkansas Code Annotated section 9-27-S03(6)(A) (Repl.2013) defines “aggravated circumstances” as occurring when a child has been abandoned, chronically abused, subjected to extreme or repeated cruelty. The evidence in this case supports the trial court’s finding that ED was subjected to aggravated circumstances in the form of extreme cruelty.
There was testimony that Callison suffered from significant, untreated mental-health conditions and had been acting erratically in the weeks leading up to the incident, that Davidson was aware of Calli-son’s condition and her erratic behavior, and that he acknowledged that ED was not safe in Callison’s care. There was also evidence that Callison placed her harmful medications within the reach of ED and that Davidson was aware of this as well. Despite his concerns for ED’s safety, the testimony showed that he left ED in the care and custody of Callison. While in Callison’s care ED experienced what Dr. Farst described as a life-threatening incident that could have resulted in permanent brain damage or death. ED’s lab testing revealed tramadol and methadone in her system. Finally, appellants offered no plausible explanation for ED’s condition.
We acknowledge Davidson’s testimony at the adjudication hearing that on January 9 Callison’s mental-health condition had improved and that he had no concerns about leaving ED in Callison’s care. However, the trial court specifically found that Davidson’s testimony was not credible, and we defer to the trial court’s superior position to observe the parties and judge the credibility of the witnesses. Parker, 2011 Ark. App. 18, at 14, 380 S.W.3d at 478. 17Accordingly, we hold that the trial court’s finding of aggravated circumstances based on extreme cruelty was not clearly erroneous and affirm the trial court’s adjudication and disposition order.
Affirmed.
GLOVER and WOOD, JJ., agree.
. Dr. Farst testified that the failure of the second test to detect methadone did not necessarily mean that it was not present in the first sample taken from ED in Hot Springs because methadone can "clear out of [a person's] system on the next void.” She also said that the benzodiazepine, which showed up on the initial drag screen, could have been given to ED by hospital personnel in order to intubate her.
. In Payne, the appellant checked the box labeled "adjudication,” not "disposition,” on her pre-printed notice of appeal. Payne, 2012 Ark. App. 500, at 2 n. 1, 2012 WL 4207304.
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LARRY D. VAUGHT, Judge
• | Appellant Fire Systems ^Technology,' Inc. (FST), appeals from the Crawford County Circuit Court’s order granting partial summary judgment foreclosing on construction loans made by appellee First Community Bank of Crawford County. The bank has raised the issue of whether FST timely filed the record on appeal, a jurisdictional requirement. We conclude that we' lack jurisdiction to decide this appeal; therefore, we dismiss it.
The events leading up to this appeal began in 2009 when Armstrong Remodeling and Construction, LLC; Armstrong Remodeling, LLC; James Eric Armstrong; Gary Armstrong; and Harvester’s Fellowship Church (collectively, Armstrong) contracted with FST to act 'as a subcontractor for two construction projects located at an adjacent apartment complex and church. The bank financed the projects with, a series of ¡construction loans and took mortgages to secure, the debts.
^.Contending that it had completed its work without receiving payment, FST filed a materialmen’s lien against the property in July 2010. -It later filed suit in August 2011 to foreclose -its lien, but did not name the bank as a party. In July 2012, FST ¡obtained a foreclosure judgment against Armstrong, containing a declaration" that its hen held "first priority. The property was ordered-to be sold if the judgment was not paid. Two separate sales were held, one for each property, with- FST the successful bidder in both instances for the amount of its judgment.
In the meantime, on January 25, 2012, the bank filed a. separate case seeking to foreclose on three "construction notes and mortgages it received from Armstrong for the apartment complex. The bank was also seeking to enforce personal guaranties. In an amended complaint, the bank added FST and another judgment creditor of Armstrong as defendants. The bank amended its complaint a second time, to seek foreclosure on two more notes and mortgages on the church property.
FST answered, denying the material allegations and asserting that it held a first-priority judgment hen against the property, based on the judgment it had previously received in the lien-foreclosure case. Later, FST filed a counterclaim to the bank’s foreclosure action seeking to quiet title to the property it received through the two commissioner’s deéds. FST also claimed that any hen the bank may have was junior to its hen because the bank did not record its mortgages until after construction had begun. The bank answered the amended counterclaim and filed a motion to dismiss or, in the alternative, for summary judgment.
|sOn February 14, 2013, the bank filed a motion for partial summary judgment to declare its mortgage superior to all other hens. The bank asserted that, even if FST’s hen was valid, the underlying debt was merged into and extinguished by FST’s judgment in the lien-foreclosure case.
FST filed a summary-judginent motion on its amended petition to quiet title. In its motion, FST contended that there was no dispute that the foreclosure of its mate-rialman’s lien was proper and that it was entitled to priority over the bank’s mortgage lien.
Following a hearing, the circuit court granted the bank’s summary-judgment motion to dismiss FST’s counterclaim for quiet title and denied FST’s countermotion for summary judgment. The court found that the bank’s mortgage was superior to FST’s lien. The court also found that FST’s failure to include the bank as a party in its foreclosure action meant that it could not foreclose on the bank’s lien and that FST stood in Armstrong’s shoes, meaning it took the property subject to the bank’s mortgage lien. A “Partial' Judgment and Decree of Foreclosure” memorializing the court’s ruling was entered on July 15, 2013. The order contained a Rule 54(b) certificate. The order also specifically reserved issues between the bank and two guarantors.
FST filed a notice of appeal from the order granting partial summary judgment to the bank oh August 7, 2013. It filed.an amended notice of appeal on August 15, 2013. However, FST did not lodge the record or otherwise pursue its appeal at that time.
After FST had filed its notices of appeal, the commissioner’s sale of the property took place on August 28, 2013. The bank was the successful purchaser, bidding $750,000 for the |4apartment property and $300,000 for the church property. The confirmation of the reports of sale and approval of the commissioner’s deeds was made by orders entered on- September 3, 2012.
Orders dismissing' the bank’s' remaining claims 'against- the two guarantors were entered on June 26, 2014, and July 10, 2014. FST filed a notice of'appeal on August 8, 2014, designating only the July 2013 orders on partial summary judgment as the orders from which it appealed. •
The jurisdictional issue raised by the bank is that FST’s.appeal of the July 2013 orders is not timely because it failed to lodge the record within ninety days from its first notice of appeal, which was filed August 7, 2013. The orders, from which FST appeal ,(the July 20Í3 orders) contained Rule 54(b) certificates.' Rule 2 of the Arkansas Rules of Appellate Procedure-Civil, which governs what orders are appealable, provides that an appeal may be taken from an order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties if the circuit court has directed entry of a final judgment as to one or more but fewer than all the claims or parties and has made an express determination that there is no just reason for delay and has executed the certificate required by Rule 54(b) of the Arkansas Rules of Civil Procedure. Ark. R.App. P.-Civ. 2(a)(ll) (2015). In other words, an order containing a Rule 54(b) certificate is immediately appealable. Id. Although Rule 2(a) uses the term “may,” the supreme court has held that orders that may be appealed under this |5rule must be' appealed within thirty days after they are entered as required by Rule 4(a), or the right to appeal thát order is lost. In re Estate of Stinnett, 2011 Ark. 278, at 7, 383 S.W.3d 357, 361. Thus, because of the inclusion of the Rule 54(b) certificates, FST was required to pursue its appeal of the July 2013 orders at that time. It could not wait until the conclusion of the case before,appealing from the orders granting partial summary judgment to the bank. Although, FST did file timely notices of appeal from .the July 2013 orders, it inexplicably failed to file the record. The timely lodging of the record has been deemed a jurisdictional requirement to perfect an appeal. Seay v. Wildlife Farms. Inc., 342 Ark. 503, 29 S.W.3d 711 (2000). Accordingly, we do not have jurisdiction of any portion of this appeal that challenges the July 2013 orders.
FST argues that the Rule 54(b) certificate is invalid and, therefore, it was not required to perfect the appeal in 2013. We disagree. Whether an order has properly been appealed pursuant to Rule 54(b) is indeed a jurisdictional "question. See, e.g., Jones v. Huckabee, 363 Ark. 239, 213 S.W.3d 11 (2005). However, it is for the appellate court — not FST' as the appellant — to determine whether the order properly fits within one of the subsections of Rule |fi2 once an appeal is lodged. Sloan v. Ark. Rural Med. Practice Loan & Scholarship Bd., 369 Ark. 442, 255 S.W.3d 834 (2007). Such a determination for Rule 2 purposes is always secondary to whether á timely notice of appeal and record have been filed. Stinnett, supra; Sloan, supra.
In closing, we note that FST timely filed the record from its notice of appeal from the June 26 and July 10, 2014 orders dismissing the bank’s claims against the guarantors and argues one point relating to the confirmation of the foreclosure sale to the bank. However, we cannot properly consider that point because FST failed to designate these orders in its notice of appeal. Orders not mentioned in a notice of appeal are not properly before the appellate court. Lindsey v. Green, 2010 Ark. 118, 369 S.W.3d 1.
Appeal dismissed.
Harrison and Gruber, JJ., agree.
. Rule 4(a) of the Arkansas Rules of Appellate Procedure-Civil provides that "a notice of appeal shall be filed within thirty (30) days from the entry of’the judgment, decree, or order appealed from.” Ark. R.App. P.-Civ. 4(a) (2015).’ '
. The record on appeal “shall be filed with the clerk of the Arkansas Supreme Court and docketed therein within 90 days from the filing-of the first notice of appeal.” Ark. R.App. P.-Civ. 5(a) (2015). If a party fails to file the record within the ninety-day period provided under Rule 5(a), the party's appeal is dismissed. Dalton v. First State Bank, 374 Ark. 142, 288 S.W.3d 589 (2008); Farris v. Merrill Lynch Bank & Trust Co., 372 Ark. 373, 276 S.W.3d 257 (2008). FST filed its first notice of appeal on August 7, 2013, making the record due no later than November 5, 2013. The record was filed almost eleven months later on October 3, 2014. | [
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DONALD L. CORBIN, Associate Justice
11 Appellant Jeremy Clay Thompson appeals the order of the Saline County Circuit Court convicting him of the offense of failure to appear, a Class C felony, and sentencing him to a term of imprisonment of seven years. On appeal, he argues that the circuit court erred in denying his motion for a directed verdict because there was insufficient evidence to support his conviction because he had not yet been charged with a crime when he failed to appear. We accepted certification of this case from the Arkansas Court of Appeals because it involves an issue of first impression and an issue needing clarification of the law; hence, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(b)(1) and (5) (2014). We reverse and dismiss.
Appellant was arrested on August 21, 2012, for the felony offense of theft of property. He was arrested pursuant to a warrant issued by the Saline County Circuit Court on | ¡August 17, 2012. Appellant signed an “Appearance Agreement” on August 22, 2012, agreeing to appear in the Saline County District Court on September 4," 2012, at 1:00 p.m. and agreeing to pay an unsecured cash bond of $2,500, which required him to pay $250 that day. This agreement was signed by Appellant and the Saline County sheriff. Appellant did not appear in district court that day as required, and the Saline County district judge issued an arrest warrant for Appellant on the theft charge and a failure-to-appear charge. The State subsequently filed a felony information on September 26, 2012, alleging that Appellant committed the offenses of theft of property, a Class D felony, failure to appear, a Class C felony, and was a habitual offender. After Appellant was arrested again, he appeared before á district judge and was released by order of the district court pursuant to a “Pre-Trial Release Order,” entered on November 21, 2012. Pursuant to this order, Appellant was required to post a $15,000 sheriffs bond and was to appear in district court on December 11, 2012. This order also advised Appellant that a violation of the order could “result in sanctions including arrest, imposition of additional costs and/or revocation of Defendant’s release.”
Appellant again appeared in district court on the required date. Thereafter, on December 13, 2012, the district court entered an appearance order stating that Appellant had been informed of the pending charges, had waived a formal reading, had entered a plea of not (¡¡guilty, and- had been ordered to appear in the Saline County Circuit ■ Court on December 17, 2012.
A jury trial was held on June 5, 2013, at which time the State nol-prossed .the theft-of-property charge. Following the presentation of the State’s evidence, Appellant moved for a directed verdict. In so doing, Appellant argued that the State failed to meet its burden of proof because at the time of the alleged failure to appear, Appellant had not been formally charged with a criminal offense. The circuit court denied the motion. Appellant renewed his directed-verdict motion at the close of all the evidence, but the- circuit court again denied it. Prior to the court instructing the jury, Appellant proffered a ndnmodel jury instruction setting forth the offense of failure to, appear, which included an element that a formal charge was pending at the time Appellant failed to appear. .The circuit court declined to give this instruction. The jury found Appellant guilty and sentenced him as a habitual offender to a term of seven years’ imprisonment. This appeal followed.
Appellant’s sole point on appeal is that the circuit court erred in denying his motion for.a directed verdict because he could not be convicted of the offense of felony failure to appear when he had not yet been charged with any criminal offense. The State counters that the circuit court properly denied Appellant’s motion because, even assuming that there must be a felony charge pending at the time Appellant failed to appear, the theft-of-property charge |4was pending in the sense that there was a pending offense awaiting the filing of formal charges.
On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. See Laswell v. State, 2012 Ark. 201, 404 S.W.3d 818. In reviewing a challenge to the sufficiency of the evidence; this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. See- id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. See id. When a defendant challenges the sufficiency of the evidence that led to a conviction, the evidence is viewed in the light most favorable- to the State. See Sullivan v. State, 2012 Ark, 74, 386 S.W.3d 507.
The issue in this appeal turns on the language found in the failure-to-appear statute, codified at Arkansas Code Annotated section 5-54-120. The version of the statute, which is applicable in this case, provided as follows:
(a) A person commits the offense of failure to appear if he or she fails to appear without reasonable excuse subsequent to having been:
(2) Lawfully set at liberty upon condition that he or she appear' at a specified time, place, and court.
| B(b) Failure to appear is a Class C felony if the required appearance was in regard to a pending charge or disposition of a felony charge either before or after a determination of guilt of the charge. •
Ark.Code Ann. § 5-54-120(a)(2), (b) (Supp. 2011).
Clearly, under section 5-54-120(b), the offense of failure to appear can only be a Class C felony if the required appearance was “in regard to a pending charge or disposition of a felony charge either before or after a determination of guilt of the charge.” Appellant asserts that the word “pending” as used in section 5 — 54—120(b) necessarily contemplates that a charge has already been filed against an accused. The State counters that such an interpretation defies basic rules of statutory construction.
This court reviews issues of statutory interpretation de novo, as it is for this court to decide the meaning of a statute. See Newman v. State, 2011 Ark, 112, 380 S.W.3d 395. We construe criminal statutes strictly, resolving any doubts in favor of the defendant. See id. We also adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. See id. We con.strue the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language, and 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. See id.
Under these rules, we must first look to the plain language of the statute .and only then, if the language is ambiguous, do we resort to the rules of statutory interpretation. In Webster’s New World Dictionary 998 (3d College ed. 1988), the word “pending” in its adjective form is defined as “not decided, determined, or established.” The definition uses the ex- ample “a ^pending lawsuit” to illustrate the word’s meaning. Similarly, Black’s Law Dictionary defines “pending” in its adjective form as “[rjemaining undecided; awaiting decision.” Black’s Law Dictionary 1248 (9th ed. 2009), Under these two definitions, it is clear that a “pending charge,” as used in section 5-54-120(b), means a charge that has been filed but not yet adjudicated.
The State acknowledges the aforementioned definitions but argues that “pending” as defined in Black’s is also “commonly understood to refer to events— such as the filing of formal charges — after a case has been initiated by arrest.” See Black’s Law Dictionary 1248 (9th ed. 2009). But, the State fails to acknowledge the fact that its preferred definition of “pending” applies when the word is used as a preposition, such as “pending the filing of charges.” The word “pending” as used in section 5-54-120(b) is used as an adjective to modify the word “charge.” Moreover, we do not agree that interpret ing “pending” to mean a charge that has already been filed would render the rest of the language in section 5-54-120(b) superfluous. The remainder of that provision, “disposition of a felony charge either before or after a determination of guilt of the charge,” simply specifies that an accused must appear at proceedings when there is going to be a disposition of a felony charge, whether it be a trial, dismissal, or other adjudication of a felony charge (before a determination of guilt) or sentencing (after a determination of guilt). Aceord-ingly, the circuit court erred in denying |7AppeIlant’s motion for a directed verdict because there was not sufficient evidence supporting his conviction. We therefore reverse and dismiss his conviction and sentence.
Reversed and dismissed.
Baker and Goodson, JJ., concur.
. At the bottom of this arrest warrant there is a "Return of Service” that was, to be completed by the sheriff or deputy sheriff upon Appellant’s arrest and includes a blank to fill in the amount of bail ordered, as well as a blank for the signature of a judge. This was all left blank on Appellant's arrest warrant.
. We disagree with the State’s assertion that Appellant’s argument is not preserved for our review because "the jury was not instructed to consider the pendency of the theft charge as an element of failure to appear.” The issue of which instructions were given is irrelevant to a review of a directed-verdict motion, because that motion is decided by the circuit court before the case is submitted to a jury.
. Although the issue was not raised by Appellant, we note our concern with the process surrounding Appellant's arrest and release. The "Return of Service” on the initial arrest warrant was never completed nor does it bear the required signatures of the sheriff or a judge. The "Appearance Agreement” signed by Appellant, which was the basis for the charge of failure to appear, was signed only by Appellant and the Saline County sheriff. Cheryl Spade, the Saline County district court clerk, testified at trial that sometimes an accused is "bonded out by the Saline County Sheriff's Department in advance and they set the date, and that’s what happened in this case.” Nothing in our Rules of Criminal Procedure allow the release of an arrested person by anyone other than a judicial officer. See Ark. R.Crim. P. 9.1, 9.2 (2012). | [
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COURTNEY HUDSON GOODSON, Associate Justice
11A jury empaneled in the Union County Circuit Court found appellant Desmond Evans guilty of capital murder in connection with the death of a toddler in his care. The circuit court sentenced Evans to a term of life in prison without parole. For reversal, Evans alleges that ■ the ' circuit court erred (1) in failing-to instruct the jury on the lesser-included ’offenses of first- and second-degree murder; (2) in admitting certain autopsy photographs; and .(3) in admitting a letter Evans wrote and attempted to send from the jail. We affirm Evans’s conviction and sentence.
Evans’s conviction stems from the death of twenty-one-month-old Cheris Samuels while she was in Evans’s care. According to the evidence presented at trial, Evans was in a relationship with Cheris’s mother, Josie Payne'. Evans, Payne, and her two children lived together in the home of Evans’s grandparents, along with other members of Evans’s family. On August 9, 2011, Payne left the house at approximately 6:30 p.m. . to attend an ‘ anger-|2management workshop and Cheris remained at the house with Evans., Payne returned home around 8:30 p.m., and Evans told her that Cheris was asleep on the sofa. Some thirty minutes later, Evans called, for Payne and told her that a liquid' was coming out of Cheris’s mouth. Upon inspecting the’ child, they discovered that she was not breathing and that her eyes, lips, and face were blue, Evans telephoned 911, and paramedics, Jill Goodwin and Seth Rainwater, responded to the call. According to their trial testimony, when they arrived, they found Cheris on the kitchen floor. She was unresponsive and had no heartbeat. The paramedics attempted to resuscitate her, but they were unsuccessful. Later,.she was pronounced dead at the hospital. Dr. Daniel Dye, an associate medical examiner for the State of Arkansas, testified that Ch'eris died from multiple strikes to her head with a blunt object. He stated.that the head injuries caused bleeding within the brain, which eventually resulted in her death..
At trial, the State introduced an unsigned letter that the Union County Sheriff s office had confiscated from the Union County jail while,¡Evans was there awaiting trial. 'Union County Sheriff Deputy Paul Kugler stated that the letter was placed, in the outgoing mail for the Union County jail, but- that it could not be mailed because there was no return address or return name on it; - Kugler testified that when he opened the. letter to ascertain whether it was safe to shred, he discovered that the letter solicited the intended recipient to write a letter claiming responsibility for the child’s death as. the result of an accident. Evans testified |aat trial and admitted that he had • authored the letter.
At the conclusion ‘of the trial, the jury found Evans guilty of capital murder, and the court sentenced him-to life in prison without parole. From that verdict, Evans filed this appeal.
For his.first point, Evans argues that the circuit court, abused its discretion in failing to instruct the jury on the lesser-included offenses of first- and secondrde-gree murder. According to Evans, the circuit court improperly ruled that he raised a defense of absolute innocence, which barred submission of lesser-included offenses to the jury. The State contends that Evans failed to preserve this argument for appeal because he agreed that his defense was that of absolute innocence and because he failed to proffer an instruction on first- or second-degree murder.
We hold that this issue is not preserved for our review. This court has long held that to preserve an objection to the circuit court’s failure to give an instruction, the appellant must make a proffer of the proposed instruction to the judge. See, e.g., Fincham v. State, 2013 Ark. 204, 427 S.W.3d 643; Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994). Because Evans failed to proffer an instruction for any lesser-included offense, this issue is not preserved for our review.
Evans’s second point on appeal is that the circuit court erred in admitting certain photographs of Cheris’s brain that were taken during the autopsy. Evans argues that the prejudicial effect of the photos outweighed any probative value and that, accordingly, the circuit court should have excluded them. The State responds that the photographs were | ¿necessary to explain the cause of death and were properly admitted. ■
We. have held that the admission of photographs is a matter left to the sound discretion of the circuit court, and we will not reverse absent an abuse of that discretion., Airsman .v. State, 2014 Ark. 500, 451 S.W.3d 565, When photographs are helpful to explain testimony, they are ordinarily admissible. Id. Moreover, the mere fact that a photograph is inflarrimato-ry or cumulative is not, standing alone, sufficient reason to exclude it. Lard v. State, 2014 Ark. 1, 431 S.W.3d 249. Even the most gruesome photographs may be admissible if they assist the trier of fact in any of the following ways: (1) by shedding light on some issue; (2) by proving a necessary element of the case; (3) by enabling a witness to testify more effectively; (4) by corroborating testimony; or (5) by en abling jurors to better understand the testimony. Anderson v. State, 2011 Ark. 461, 385 S.W.3d 214. Other acceptable purposes include showing the condition of the victim’s body, the probable type or location of the injuries, and the position in which the body was discovered. Id.
In this case, Evans challenges photographs of Cheris’s brain that illustrated the internal bleeding that ultimately caused her death. Evans argues that the medical examiner could have described the internal injuries rather than show the jury the photographs of the brain. Evans’s argument is not convincing. As noted above, we have held that the mere fact that a photograph is inflammatory or gruesome is not sufficient reason to exclude it if the photograph serves a valid purpose, Evans makes no .argument .that the challenged photographs did not serve a valid purpose; indeed, the testimony at trial indicates that they were relevant to show the cause of death. The medical examiner, Dr. Dye, testified that the photographs. |Bof the brain assisted him in reaching his conclusion that Cheris died from bleeding .in her brain. Accordingly, the photographs advanced the purposes of corroborating and helping the jurors better understand Dye’s testimony, as . well as showing the probable type and location of Cheris’s fatal injuries. The circuit court did not abuse its discretion in admitting the photographs, and we affirm its decision on this point. ■
Evans’s final issue on appeal is that the circuit court erred- in admitting the letter he had written from the Union County jail. Evans argues that the State did not timely disclose this letter- to him and that, accordingly, ■ the circuit court should have suppressed it. The State responds that Evans is' precluded from raising this argument on appeal because Evans sought and received a continuance and did not object further to. the new- trial date.
We concur that Evans is precluded from challenging the admission of the letter based on the timing of its production because he acquiesced to the circuit court’s decision on this matter. The record reflects that the State first apprised Evans and the circuit'court of the letter on September 4, 2012, at a pretrial hearing. Evans objected to the letter, arguing that it changed his defense strategy for the case, and he requested either the exclusion of the letter or a continuance of the upcoming trial. Counsel for Evans stated, “If the Court decides not to. exclude .it then the reason I’m asking for an exclusion is because I don’t have the time to deal with it.” The circuit court then inquired, “So if I grant your continuance then you don’t have an exclusion issue?” ‘ Counsel for Evans replied, “I don’t have an exclusion issue.” The court then proceeded to rer schedule the trial for a later date, and counsel for Evans stated, “That week is good for me, Your Honor.” Our caselaw is clear that a defendant cannot agree [¿with a trial court’s ruling and then attack the ruling on- appeal. Williams v. State, 374 Ark. 282, 287 S.W.3d 559 (2008). Because Evans received the continuance he requested in lieu of suppression and then agreed to the new date set for the trial, he may not challenge this ruling on .appeal.
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 appellant. From this review, no prejudicial error has' been found.
Affirmed.
. The record reflects that the envelope did contain a return address but was missing a return name. | [
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JOSEPHINE LINKER HART, Associate Justice
The appellees (the School Districts) in Kimbrell v. McCieskey, 2012 Ark. 443, 424 S.W.3d 844 (the first appeal), are now before this court as appellants seek-irig" to reverse an adverse order -of the circuit court following our opinion and mandate in the first appeal. On appeal, the School Districts argue: (1) the circuit court erred, on remand, in determining that it lacked subject-matter jurisdiction to entertain and grant the post-remand mandatory injunctive relief sought by the School Districts in the form of ordering the Arkansas Department of Education (ADE) to- release to the School Districts $615,439 in appropriated 98% guaranteed Uniform Rate of Tax (URT) adjustment funds that had been released by the ADE in all prior- school years, and which the ADE had illegally “set off’ against what the ADE computed as “excess URT funds” in the 2010-2011/2011-2012 school years; (2) the circuit court erred in its July 29, 2013 order on remand and the subsequent rehearing order that was deemed denied because it did not fulfill the letter and the spirit of the mandate and opinion of this court in the first appeal by failing to grant-the specific post-remand relief requested by the School Districts, based on what the circuit court referred to as the law of the case; (3) on April 2, 2013, the General Assembly substantially amended Arkansas Code Annotated section 6-20-2305 by passage of Act 557 of 2013, but such legislative action did not negate the legal obligation of the ADE to release the appropriated funds owed to the School Districts for the school years 2010-2011 and 2011-2012; (4) the issue of the School | ¡¡Districts’. claims for 98% guaranteed URT adjustment funds.was argued before both the circuit court and the supreme court in-the'first appeal, as shown by documentary evidence, oral testimony, and briefs filed by both parties in both courts and, accordingly, this issue was not waived by the School Districts. We affirm.
A. Procedural History Prior to the First Appeal
This case began when the ADE attempted to recover $1,387,367 from the Fountain Lake School District and . $824,916 from the Eureka Springs School District, believing that these sums were an overpayment of state funds. The ADE proceeded on the assumption that the URT levy was a state tax and that the URT levy was enacted to provide the bulk of the revenu'e for “foundation funding,” a statutorily imposed, minimum-per-student iñeome stream that was guaranteed to each school district. The ADE believed that any amount of the URT revenue collected in a school district that exceeded the foundation-funding amount could be recouped and redistributed to fund other school districts.
The School Districts disagreed and filed suit against the ADE, seeking declaratory and injunctive relief. In part, their complaint asked for a mandatory injunction requiring the ADE to release all federal and state funds that they were due. The ADE responded by filing a motion to dismiss, which was denied, and the circuit court granted partial.summary judgment in favor of the School Districts. In pertinent part, the circuit court, made the following findings of fact:
|⅜9. Pursuant to A.C.A. § -6-20-2305(a)(1)(A), the State provides “foundation funding aid” to the public school districts; Such section provides:
For each school year, each school district shall receive state foundation funding aid computed as the difference between the foundation funding amount pursuant to subdivision (a)(2) of this section and the sum of ninety-eight percent (98%) of the uniform rate of tax multiplied by the property assessment of the school district plus the miscellaneous funds of the school district.
10. A.C.A. § 6-20-2306, enacted in 2003 states:
(a) If the Department of Education determines that an overpayment has been made to a school district under any appropriation authorized by this subehap-ter, the department is authorized to:
(1) Withhold the overpayment from subsequent state funding;
(2) Transfer the amount withheld 'for the overpayment to the line item appropriation from which the overpayment was originally made; and
(3) Request a'refund from the school district in'the amount of the overpayment.
(b) The school district shall comply as directed by the department.
While the circuit court found that the URT levy was a “state tax,” it nonetheless stated in -its conclusions of law that, in accordance with Arkansas Code Annotated section 26-80-101(b)(l)(A), the Treasurer was required- to, and had been, receipting and distributing all URT monies and that
[t]he payment by the Treasurer of the 25-mill URT revenues in accordance with the unambiguous directives of A.C.A. § 26-80-101 is not an overpayment of “any appropriation authorized by this subchapter” within the parameters of the ADE’s authority under A.C.A. § 6-20-3606.
In the circuit court’s judgment, it enjoined the ADE from seeking repayment of “any portion of the 25-mill URT tax revenues assessed and levied by Article 14, § 3(b)(1) of the Arkansas | ^Constitution.” Further, the circuit court enjoined the ADE from “levying, assessing, withholding, or setting off from or against any state or federal monies belonging to the plaintiff school districts for repayment of any portion of the 25-mill URT revenue required by Article 14, § 3(b)(1) of the Arkansas Constitution.” Notably, the circuit court did not find that the School Districts were entitled to the 98% guaranteed URT adjustment funds. -
The .School Districts subsequently moved to have the ADE found in contempt. They asserted that the ADE had “willfully” and “blatantly” refused to comply with the circuit court’s orders because it “refused to release and immediately send to these two (2) Plaintiff school districts, after entry of the Circuit Court’s Judgment on September 20, 2011, all amounts of state and federal funds that have been ‘withheld’ or ‘setoff by these ADE Defendants.” (Emphasis in the original.) In addition to the ADE’s withholding of categorical funding to recoup overpayment of state funds, the School Districts .specifically cited the refusal by the ADE -to. release the URT adjustment funding. In response, the ADE noted that foundation funding was made up of two components: URT and Foundation Funding Aid. It stated that foundation-funding aid was paid “wholly out of state general revenue” and was intended only to assure that basic per-student foundation funding was being met. The ADE asserted that foundation-funding aid was not addressed by the circuit court’s orders. '
In its January 20, 2012 order, the circuit court declined to hold the ADE in contempt. Although the circuit court found that the ADE’s decision to withhold categorical funding | r,violated its orders, the court excused the conduct because its order lacked clarity. The circuit court also specifically ruled against the School Districts’ request for the URT adjustment funding. It stated:
Plaintiffs also requested that the Court hold the ADE Defendants in Contempt for not. paying to the school districts additional general revenue under what is known as the 98% collection rate adjustment at Arkansas Code Annotated section 6-20-2305(a)(4). The Court denies this requested relief.
The School Districts sought rehearing; but their motion to reconsider was denied by the circuit court. The ADE filed an amended notice of appeal on January 20, 2012, that additionally designated “the pleadings filed subsequently to the September 20, 2011 Judgment up to and through the date of the Amended Notice of Appeal.”
B. The First. Appeal
In the first appeal, this court addressed three arguments. Two arguments were raised by ADE on direct appeal: (1) the circuit court erred in finding that ADE was not authorized by the legislature to recoup and redistribute any URT revenues received from the School Districts that were in excess of the foundation-funding amount; and (2) the circuit court erred in finding that ADE lacked the authority to withhold monies from the School Districts where they had submitted deficient budgets that erroneously budgeted as ongoing revenue the amounts of URT revenue in excess of the foundation-funding amounts. 2012 Ark. 443, at 2-3, 424 S.W.3d 844, 846. The School Districts raised one argument on cross-appeal: the circuit court erred in finding that the revenues generated by the URT were state-tax revenues. Id. at 3, 424 S.W.3d at 846. It is important to note that, in the first appeal, this court specifically acknowledged that the ADE “further appeals from the circuit court’s order [ 7of January 20, 2012, in which the circuit court declined to hold ADE in contempt and clarified its prior judgment.” Id, at 2, 424 S.W.3d at 846.
In resolving the arguments raised on appeal, this court held that the (1) the ADE lacked authority to redistribute excess URT revenue from one school district to another; (2) budgets set by school districts that included URT revenue in excess of the foundation funding amounts were not deficient; and (3) URT was not a state ad valorem tax. The School Districts’ entitlement to 98% guaranteed URT adjustment funding was not directly argued by either party on appeal. Indeed, the School Districts expressly stated in their cross-appeal that “the amount of locally levied, generated, and collected 26 mill URT ad valorem school property tax proceeds are sufficient to meet these constitutional and statutorily set goals [of an equal opportunity for an adequate education] ... without state assistance.” Moreover, in this court’s written opinion, we stated:
For the School Districts here, however, their URT revenues generated more than the foundation-funding amount, therefore the State was not required to provide any foundation-funding aid to them. It is the URT revenues of the School Districts in excess of $6,023 that are at'issue in the instant case.
2012 Ark. 443, at 11, 424 S.W.3d 844, 850.
Although the ADE did acknowledge in a footnote that this argument had been made |sto the circuit court, this acknowledgment Was’ made in the context of the ADE’s argument that the School Districts were not entitled to retain the amount of URT collections that exceeded the foundation-funding amount. -It is also noteworthy that, in the argument presented in their appellees’ brief, the School Districts asserted that' the circuit court “enjoined the ADE Appellants from attempting to set off amounts of categorical funds or 98% guaranteed URT monies provided for in Ark. Code Ann. § 6-20-2305(a)(4)(A), because the General Assembly had legislatively addressed this very issue in enacting A.C.A. § 26-S0-101(a), (b), and (c).” The School Districts made this assertion not as argument, but as a matter of historical fact. Even so, no circuit court order expressly ordered the ADE to disburse to the School Districts the 98% guaranteed URT adjustment funding.
C. Proceedings After Remand
Upon remand, the School Districts filed a motion requesting that the circuit court order the ADE to release to them the 98% guaranteed URT adjustment funds. In opposing the motion, the ADE asserted that the opinion in the first appeal did not specifically require the ADE to release any of the 98% guaranteed URT adjustment funds. At the hearing on the School Districts’ motion, although no ■witnesses were called, the circuit court clearly found a distinction between “categorical funding,” which covered .such things as school lunches, and the “98% guaranteed .URT adjustment funds.” The circuit court confirmed that all the |flcategorical funding previously withheld by the ADE had been disbursed to the School Districts. The circuit court entered an order correcting its-previous finding that the URT levy was a state tax, and described it as a “one-of-a-kind tax, a school district tax, approved by the voters of the State of Arkansas,” and denied the School Districts any further relief.
The School Districts filed a motion asking the circuit court to reconsider the denial of its request to order the ADE to' disburse the 98% guaranteed URT adjustment funding. In their motion, the School Districts again asserted that the ADE had illegally set off the “98% guaranteed URT supplemental funds” for the 2010-2011 and 2011-2012 school years. They contended that a total of $391,551 was due the Fountain Lake School District and $223,888 was due the Eureka Springs School District. The ADE opposed the reconsideration motion, asserting that the School Districts were barred by the law-of-the-case doctrine from seeking the 98% guaranteed URT adjustment funds. The motion to reconsider was deemed denied. The School Districts filed this appeal.
D. Standard of Review
When the issue before us on appeal is .whether, on remand, the circuit court has followed our-prior decision in the case, we review the actions of the circuit court to determine whether our directions, as expressed by the opinion and mandate, have been “followed exactly and placed, into execution.” City of Dover v. Barton, 342 Ark. 521, 526, 29 S.W.3d 698, 699 (2000). The jurisdiction of the trial court is confined to the appellate court’s directions. Id.
1 rnE. Arguments on Appeal
On appeal, the School Districts first argue that the circuit court erred, on remand, in determining that the circuit court lacked subject-matter jurisdiction to enter.tain and .grant the post-remand mandatory injunctive relief sought by the School Districts in the form of ordering the ADE to release to these school districts $615,439 in appropriated 98% guaranteed URT adjustment funds'that had been released by the ADE in all prior school years and which the ADE had illegally “set 'off' against what the ADE computed as “excess URT funds” for the two school years in question. They contend that the phrase in the mandate requiring the dispersal of “any and all withheld funds” necessarily included the 98% guaranteed URT adjustment funds, because it would be “illogical” to order the disbursement of one category of appropriated aid and exempt from disbursement another category Of appropriated aid, when both were authorized by Act 272 of 2007. This argument is not persuasive.
In this case, under the mandate rule, the circuit court was bound by the holdings in the first appeal-.as the law of the case and lacked the authority to vary it, or judicially examine it, for any other purpose than to put it into execution. Johnson v. Bonds Fertilizer, Inc., 375 Ark. 224, 289 S.W.3d 431 (2008) (citing Wal-Mart Stores, Inc. v. Regions Bank Trust Dep’t, 356 Ark. 494, 156 S.W.3d 249 (2004)). It had no power to grant further relief as to any matter decided by this court. Id. In the first appeal, the School' Districts failed to argue to this court that the circuit court erred in its ruling with regard to the 98% guaranteed URT adjustment funds.' While the School Districts may have believed that the circuit court had already awarded them these funds, there is no such express award in any of the circuit court orders. | ^Furthermore, the circuit court’s judgment stated that, “All other causes of action and claims for relief of the plaintiffs not specifically addressed herein are' denied.”
To the extent that the 98% guaranteed URT adjustment funds are mentioned at all by the circuit court in any of its orders, the award of these funds is expressly denied in the January 20, 2012 order where the circuit court declined to find the ADE in contempt. In that same order, the circuit court clarified its ruling regarding which funds it had enjoined the ADE from withholding. It stated, “The Court intended, by the language of paragraph 8 of the Judgment entered herein on September 20, 2011, that- no categorical funding amounts would be withheld by the ADE.” In the order’s next paragraph, the circuit court further clarified that it did not intend to treat categorical funding and the 98% guaranteed URT adjustment funding the same. It stated,
Plaintiffs also requested that the Court hold the ADE Defendants in Contempt for not paying to the School Districts additional general revenue under what is known as the 98% collection rate adjustment at Arkansas Code Annotated section 6-20-2305(a)(4). The Court denies this requested relief.
The different ways in which thé circuit court treats categorical funding and the 98% guaranteed URT adjustment funds is telling, as both sources of money were withheld by the ADE. With regard to the categorical funding, the circuit court found that the ADE .had wrongfully withheld these funds from the School Districts. It stated, however, that it declined to hold the ADE defendants in contempt because it found its September 20, 2011 judgment to be unclear. Nonetheless, the ADE was ordered to release the categorical funding. With regard to the ADE’s retention of the 98% guaranteed URT adjustment funds, which it described as “additional general revenue,” the. circuit court not only refused to hold the ADE | iain contempt, it also denied the School Districts’ request for it to order the ADE to disburse this money. The School Districts could have appealed this ruling in the contempt order, but did not.
For this reason, the first appeal did not address the issue of the 98% guaranteed URT adjustment funding. This court stated that the appeal was about the School Districts’ excess URT collections, not funds taken from the State’s general revenues to bring the School Districts per-pupil revenues up to the foundation-funding amount, which this court generally referred to as “foundation funding aid.” 2012 Ark. 443, at 10, 424 S.W.3d at 850; Consequently, because neither the mandate nor the opinion in the first appeal state that- the School Districts are entitled to URT adjustment funds, the circuit court did not-err in finding that it lacked the authority to order that those funds be disbursed by the ADE.
As to the School Districts’ contention that it was “illogical” to treat the appropriated funds referred to -in Act 272 of 2007 differently, we note that the eight-page Act addressed and amended virtually all of the state’s school-funding formula.., It is only logical for the judiciary to ti;eat different categories of appropriations as separate entities in a manner consistent with how they, were treated by the General Assembly.
The School Districts' next- argue that the circuit court erred in-its order and “deemed denied” order on remand when, based on the law of the. case, it did not fulfill the letter and the spirit of .the mandate and opinion of this court.in the first appeal when it failed to grant the specific post-remand, relief requested by the School Districts. We disagree.
The law-of-the-case doctrine prevents an issue already decided from being raised' in |isa subsequent appeal and includes issues that could have been appealed and were not. Kelly v. Kelly, 2014 Ark. 543, 453 S.W.3d 655. As previously noted, the School Districts did not appeal the circuit court’s adverse ruling regarding the 98% guaranteed URT adjustment funds. When the circuit .court was confronted with the issue- of the School Districts’ entitlement to 98% guaranteed, URT adjustment funds, there was nothing in our opinion and the mandate that affected its decision denying- these funds to the School Districts. Accordingly, the -circuit court did not err when- it found that the School Districts were-barred from raising this issue on remand.. Likewise, the School Districts are barred from raising the issue in this appeal. Id.
For- their third'- ■ point on appeal, the School Districts argue that when the General Assembly substantially amended Arkansas Code Annotated section 6-20-2305 by passage of Act 557 of 2013, on April 2, 2013, that legislative action did not negate the legal obligation of the ADE to release the appropriated funds owed these two school districts for the school years 2010-2011 and 2011-2012. Act of Apr. 2, 2013, No; 557, 2013 Ark. Acts 2007. The Act added subparagraph (a)(4)(C), which states:
The Department of Education shall not distribute to 'a school district the funds under subdivision (a)(4)(A)(I) of this section if, regardless of the school district’s tax collection rate, the school district’s net revenues meet or exceed the foundation funding amount set forth in § 6-20-2305(a).
Ark.Code Ann. § 6-20-2305(a)(4)(C) (Repl.2013). The ADE argues that the passage of Act 557 of 2013 renders the issue moot.
We decline to hold that the passage of Act 557 of 2013 renders this issue moot. However, for the School Districts to prevail on this point, we would have had to found merit in one or both of their prior two’ arguments. Because we have not, it is unnecessary for us 114to' address this argument in this' appeal.
For their final point, the School Districts argue that the issue of the School Districts’ claims for “98% guaranteed URT adjustment funds” was argued before both the circuit court and this court in the first appeal, as shown by documentary evidence, oral testimony, and the briefs filed by both parties in the circuit court and in this court. They contend that the presence of the issue in these forms indicates that it was not waived by the School Districts. They point to portions of the abstract and addendum where the issue of their entitlement to the 98% guaranteed URT adjustment funds was raised to the circuit court and assert that they referenced these- instances.where it was argued to the circuit court in several places in their appellate brief. In so doing, the School Districts : argue that this - court should be satisfied that the presence of an argument in the circuit-court record and fleeting references to the 98% guaranteed URT adjustment funding constituted- an argument on appeal. The School Districts likewise also assert that presentation ■ of this issue in this way meant that it was not “waived” in the first appeal.
We agree that the issue was raised to the circuit court; it decided the issue adversely to; the School Districts. The School Districts, however, did not challenge the circuit court’s ruling in the first appeal. Moreover, this court noted that the School Districts were not entitled to any additional general revenue because them URT collections exceeded the foundation-funding amount. McCleskey, 2012 Ark. 443, at 10, 424 S.W.3d 844, 850. We decline to hold that the mere presence of an issue in any form is the same as making an appellate argument. In Daniel v. Spivey, 2012 Ark. 39, 386 S.W.3d 424, this court recently 115held that even listing an issue in the heading of an appellant’s argument on appeal was insufficient for this court to consider it an appellate argument when the issue is riot further discussed in the “body” of the brief In the absence of any argument, the point is considered waived. Id.; Housing Authority of City of Texarkana v. E.W. Johnson Constr. Co., 264 Ark. 523, 573 S.W.2d 316 (1978).
Affirmed.
. Originally, Bob Allen McCieskey, individually and as- a representative of all similarly situated taxpayers who pay ad valorem taxes for the support of the Fountain Lake School District, Riisty Windle, individually and as a representative of all similarly situated taxpayers who pay ad valorem taxes in support of the Eureka Springs School District, as, well as the school districts themselves, (the School Districts), sued the appellees, the Commissioner of the Arkansas Department of Education, Thomas W. Kimbrell, in his official "capacity, the Arkansas Department of Education itself, then Arkansas State Treasurer Martha Shoffner in her official capacity, and others (collectively referred to hereinafter as the ADE). On the, current appeal, Becky Fur-nas has been substituted for Bob "McCieskey, and A1 Larson has been substituted for Rusty Windle. Also, Charles Robinson has been substituted for Martha'-Shoffner.
. Article 14, § 3(b)(1) of the Arkansas Constitution established the URT, which is a statewide 25-mill property tax. Arkansas Code Annotated section 26-80-101 levies the 25-mill URT. Because URT revenues are the cornerstone of. school funding, the State, through the ADE, provides aid to school districts out of general revenues if URT collections plus categorical funding fails to provide the school district with the foundation funding-amount set by statute on a biannual basis. Ark. Code. Ann. § 6-20-2305. This aid is what is referred to as the 9,8% URT adjustment-rate funding.
. The ADE also sought to recoup $232,279 from the Amorel School District and.$112,-284 from the Westsi'de School District, but these school districts did not participate in this lawsuit. ■
. (b)(1) There is established a uniform rate of ad valorem property tax of twenty-five (25) mills to be levied on the assessed value of all taxable real, personal, and utility property in the state to be used solely for maintenance and operation of the schools.
. The URT funds collected within a school district are required to be immediately remitted to that school district.' Ark.Code Ann. § 6-20-2305, The General Assembly also created a guaranteed minimum amount of funding for each school district called “foundation funding,” which is a minimum, per-student level of funding that is set biannually. Id.
. The footnote stated: “In fact, [the School Districts] went so far as to allege that the 98% actual collection adjustment (Ark. Code Ann. § 6-20-2305(a)(4)) required the State to pay .these Districts even moré revenue on top of the disparity caused by their URT revenue in excess of the Foundation Funding amount.” | [
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Holt, J.
Appellant, Fill Sanders, sued appellee, Dan F. Walden, to recover alleged damages to Ms automobile, growing out of an upset. At the time of the mishap, the car was being driven by J. B. Sanders, brother of Fill Sanders. Appellant, J. K. Young, who was riding in the automobile with J. B. Sanders sued separately to recover for alleged personal injury and loss of time. The two actions were consolidated below for trial, and from a judgment on a jury’s verdict in favor of appellee (defendant below) is this appeal.
Fill Sanders alleged in his complaint that he owned the automobile in question and had loaned it to his brother, J. B. Sanders, (to use), that while his brother was driving the car on the concrete' highway paralleling the Rock Island Railroad in Bauxite, in a lawful manner, and in the exercise of due care for his safety, appellee, Walden, while driving an automobile on the highway and approaching him, negligently turned his automobile to his left in front of plaintiff’s car “there by causing the said J. B. Sanders to leave tbe highway in order to prevent the two cars from colliding, and as a result, plaintiff’s car was turned over and the body of the car wrecked,” and sought damages in the amount of $600. Appellant, Young, alleged that he was riding-in the car with J. B. Sanders at the time it was overturned and sought to recover for personal injuries with allegations of negligence against appellee similar to those alleged by appellant, Sanders.
Appellee answered with a general denial and pleaded contributory negligence on the part of appellants as a bar to recovery. ■
The evidence presented is in irreconcilable conflict and as usual in most cases of this nature, each party claims- the negligence of the other as the cause of any resulting damages.
In the present case, appellants do not question the sufficiency of the evidence to support the jury’s verdict, but “complain only, of the instructions as given by the court, and they think each instruction given on behalf of the defendant is erroneous and constitutes a reversible error. ’ ’
Briefly, the facts disclose that at the time of the mishap appellant, J. B. Sanders, in company with J. K. Young, was driving the car in question from Vimy Ridge to Benton where he and Young were both employed. At the end of the day’s work, Sanders and Young returned to their homes in the car. Young paid Sanders 25c per day for transportation. On the day of the upset, Sanders drove the automobile along thé concrete highway in Bauxite and as he neared a street intersection observed appellee, Walden, approaching in another car.
Appellee Walden’s version of what immediately followed was that when he was about one hundred feet from the intersection, he held out his hand, reduced the speed of his car to three or four miles an hour, opened his car door to look out for trains, and then closed the door, slowly drove into the intersection, again put out his hand, and turned his car to the left, intending to leave the highway onto the intersecting street. When he first saw appellant’s car, it came from under the viaduct and was about one hundred feet away when he proceeded onto the intersection. “I thought Sanders was going the same way I was and I didn’t want to make a side swipe, I slowed down, he cut right straight ahead of me, he came by like a bullet. ’ ’ His car hit the rails, spun around, and turned over. The cars did not touch each other.
Over appellant’s objections, the court gave, among others, appellee’s instruction No. 4, as follows: “Yon are instructed that the plaintiff, Sanders, cannot recover for any damages alleged to be done his automobile in the accident in question in this case, if you find from a preponderance of the evidence that the driver of his car was negligent in any degree.”
The court, in the circumstances here, erred in giving this instruction and the cause must be reversed for this reason.
It is undisputed that the owner of the damaged automobile in question had loaned the car to his brother, J. B. Sanders, who thus became his bailee and the negligence of the bailee could not be imputed to the bailor under the previous holdings of this court.
In Missouri Pacific Railroad Company v. Boyce, 163 Ark. 440, 270 S. W. 519, we held (quoting headnote): “Where a truck struck by a train had been loaned to the driver for use for his own pleasure, the driver’s negligence could not be imputed to the owner* nor be interposed as a defense, as the negligence of a bailee is not imputable to the bailor where the subject of the bailment is damaged by a third person.”
This holding was reaffirmed in the more recent case of Featherston v. Jackson, 183 Ark. 373, 36 S. W. 2d 405.
The other instructions complained of by appellants, we think it unnecessary to discuss.
In view of a new trial, we.point out that whether appellant, Young, and the driver of appellant’s car were on a joint mission at the time, should, in the circum stances, have been submitted to the jury. Crown Coach Company, Inc., v. Palmer, 193 Ark. 739, 102 S. W. 2d 853.
For the error indicated, the judgment is reversed and the cause remanded for a new trial. | [
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Robins, J.
Appellee, Columbia Motor Transport Company, a Delaware Corporation, made application to Arkansas Public Service Commission for certificate authorizing appellee to operate as a motor carrier of freight within this state. Appellants, thirty-three duly licensed motor freight carriers, filed protest and resisted the application. After an extended hearing the Commission granted the application and ordered the issuance of the certificate of convenience and authority as prayed for by appellee. The protesting carriers appealed to the Pulaski Circuit Court, where judgment affirming the Commission’s order was rendered. This appeal is prosecuted from that judgment.
The service proposed by appellee and authorized by the Commission was to be rendered in accordance with a contract entered into between appellee and Guy A. Thompson, Trustee in Bankruptcy of Missouri Pacific Railroad Company, on March 19, 1946. This contract contemplated “a system of coordinated rail-motor-truck service, auxiliary to or supplemental of the Trustee’s service by rail, for the handling of less-than-carload freight . . . over certain highway routes and between stations on certain lines of railroad of Missouri Pacific Railroad Company, Debtor, located within the state of Arkansas. . . . ” Under this contract appellee agreed to haul in motor trucks, along prescribed routes, from certain stations of the railroad company to certain other designated stations of the company, freight tendered to it by the railroad company. Appellee was to be compensated for this hauling on a mileage basis at such rates as should be thereafter agreed upon by the parties to the contract.
The trustee in bankruptcy of the railroad company was authorized to enter into this contract by order of the United States District Court, in which the bankruptcy proceeding was pending, and the trustee, supporting appellee’s request, intervened in the proceeding before the Public Service Commission.
The proposed service was thus described by the Commission in its order:
“Missouri Pacific Railroad Company and its affiliated lines in Arkansas (hereinafter referred to collectively as Missouri Pacific) is a common carrier by rail and its system covers a large portion of the State of Arkansas. It currently has 269 stations on its lines in Arkansas. It desires to establish and operate a system of coordinated rail-truck service along its lines which will be auxiliary to and supplemental of its present service by rail for the handling of less than carload freight and merchandise, mail and' express.
“Columbia proposes to assume full responsibility for compliance with the laws of Arkansas and the rules and regulations of this Commission. It is estimated that the proposed service will require the use of from twenty-five to thirty trucks. Columbia will charge Missouri Pacific for its services on a mileage basis to be determined later by the parties, but not to exceed the charges now being paid by Missouri Pacific for similar service in other states. The total mileage to be operated by Colum bia in. Arkansas will be 1,946.84 miles which, does not exceed the mileage allowed by the Arkansas law. Schedules will be coordinated with the movement of merchandise cars by Missouri Pacific between merchandise centers. . . .
“The service to be rendered by Columbia will be limited to stations now or hereafter located on the lines of Missouri Pacific. Columbia does not propose to file any schedules of rates to be charged to the shipping-public by it,' but will collect its charges from Missouri Pacific. . . .
“At the present .time, less than carload freight of Missouri Pacific is handled exclusively by boxcars, and local way-freight trains. The cost to Missouri Pacific of rendering comparable service for less than carload freight by rail would be prohibitive. The handling of l.c.l. freight under the proposed plan will result in a substantial annual saving- to Missouri Pacific. Experience in other states has proven that the distribution of l.c.l. freight by trucks as proposed in the application is the most satisfactory and economical means of handling this kind of freight.
“Under the proposed plan, the time consumed in handling l.c.l. freight will be substantially reduced. In some instances the time will be reduced as much as eight days. Under the existing service, a shipment from Pine Bluff to a point between Little Bock and Newport is delivered the next morning and between Knobel and Newport the delivery is the late afternoon of the next day. Under the proposed service, this shipment from Pine Bluff would be- delivered the same night. . . .
“Of the 269 Missouri Pacific stations in Arkansas, there are 57 stations which are not now being- served by a certificated motor carrier of freight. It is estimated that it would require the services of 38 existing motor freight carriers to perform the proposed services for Missouri Pacific. It is contended that under the proposed operations Missouri Pacific will continue to haul the same freight it is now hauling and that the only change will be in the manner in which l.c.l. freight is handled between certain stations.
“Under the proposed plan, Missouri Pacific will operate merchandise cars daily, except Sunday, between the following points: Little Rock to McGehee; Little Rock to Wynne; Little Rock to Newport; Little Rock to Russellville ; Little Rock to Fort Smith; Little Rock to Gurdon; Little Rock to El Dorado; Texarkana to Little Rock; Fort Smith to Little Rock; McGehee to Lexa; and McGehee to Little Rock. These points are designated as ‘break-bulk points’ and represent points at which sufficient l.c.l. freight is accumulated to justify the operation of a merchandise car.
“For illustration, a less than carload shipment originating at Pino Bluff and destined for Batesville would bo taken from the door of the shipper to the freight depot of the Missouri Pacific at Pine Bluff by the Missouri Pacific pick-up and delivery service. The agent at the Missouri Pacific depot in Pine’ Bluff would issue a railroad bill of lading to the shipper. The shipment would then move by Columbia’s truck to Little Rock. In Little Rock the shipment would be loaded in a merchandise car and moved by rail to Newport. It would be unloaded at Newport and then moved by Columbia’s truck to Batesville. The reverse routing of this shipment from Batesville to Pine Bluff would be different. A shipment from Batesville to Pine Bluff wo'uld move all the way by Columbia’s truck. The reason for this difference is that there is not enough l.c.l. freight originating in Newport and points north and northwest to justify the operation of a merchandise car from Newport to Little Rock. Less than carload freight destined for intermediate stations between break-bulk points will be handled by truck. ? >
Much of appellants’ argument here is directed to their contention that appellee’s operations will be those of a common carrier and not a contract carrier. With this proposition we agree. The Commission properly held that appellee will be a common carrier, and this' holding is supported by the weight of authority. State v. Rock Island Motor Transit Company, 209 Minn. 105, 295 N. W. 519; Baldwin v. State Corporation Commission, 143 Kan. 580, 56 P. 2d 453; United States v. California, 297 U. S. 175, 56 S. Ct. 421, 80 L. Ed. 567.
But, say appellants, every common carrier is required, under the provisions of Act 367 of the General Assembly of Arkansas, approved March 26, 1941, to haul freight at rates shown in a duly promulgated tariff, and not for the compensation agreed to be paid by the railroad company on mileage basis, and every common carrier must, under the law, issue a bill of lading for each shipment. And appellants argue that the proposed service will not comply with these two requirements. A sufficient answer to this contention is that the freight handled by appellee will be hauled for charges duly fixed in a properly filed and approved tariff; and a bill of lading will be issued by the railroad company for each shipment. The requirements as to filing of tariffs by carriers and as to issuance of bills of lading by them are primarily for the benefit of shippers and under the plan proposed by appellee shippers will have every protection as to freight rates, and as to evidence of the transportation contract, that the law intends. There is in the statute invoked no prohibition against a transportation service of the nature herein involved; and we conclude that failure of the lawmakers to authorize expressly such a service would not deprive the Commission of the power to grant permission for it.
Appellants also argue that the necessary showing of its financial ability to render the proposed service was not made by appellee. It appears from the record that, while the capital of appellee itself is relatively small, appellee is a subsidiary of Columbia Terminals, a larger corporation. The balance sheet of this latter concern showed net current assets of $334,960.57 and unappropriated surplus of $746,223.79. According to the finding of the Commission, Columbia Terminals has undertaken to subscribe and pay for an amount of the capital stock of Columbia sufficient to provide adequate funds for Columbia to carry on the proposed operation. The Com mission concluded that appellee was financially able to render the contemplated service; and we are unable to say that this conclusion was erroneous.
It is urged by appellants that the evidence does not support the finding of the Commission that public necessity and convenience require the additional transportation service contemplated by appellee’s application. In considering this phase of the case it must be remembered that we are dealing with the finding of a tribunal erected by the Legislature for the special purpose of investigating and determining matters of the nature here involved; and the finding of such a tribunal on a fact situation may not be upset by the courts, unless the finding is clearly against the weight of the testimony. This principle is recognized and the authorities supporting it are cited in the recent case of Camden Transit Company v. Owen, 209 Ark. 861, 192 S. W. 2d 757.
In the hearing before the Commission forty-eight witnesses, from many different localities in Arkansas, testified that the proposed service was needed and would greatly serve the convenience of the public. These witnesses were all businessmen, shippers of merchandise, and acquainted with traffic conditions. It was shown that fifty-seven of the stations on the railroad company’s line, the shippers at which would benefit from the new plan for handling freight, had no motor freight truck service whatever. While the appellants offered to furnish their trucks to do the same hauling, along routes embraced in their respective licenses, as that proposed by appellee, this service of course would be of no avail to shippers in the fifty-seven towns not served by any of appellants. Furthermore, it was not shown that it would be practicable to coordinate the schedules of the thirty-three different haulers with those of the railroad company so as to make the plan suggested by them feasible.
Upon a careful review of the record we are unable to say that the Commission’s finding and that of the lower court upholding the Commission are so contrary to the weight of the evidence as to authorize us to set same aside. The new coordinated rail and truck service will doubtless be of great convenience to the shipping public, and, while the rights of. those already in the transporta-' tion field must be taken into account in a proceeding of this kind, the paramount consideration is always the interests of the public, at whose expense the highways used in this type of transportation are built and maintained. “In granting certificates, the public convenience and necessity should be the first consideration, and the interest of public utilities already serving the territory secondary, . . . ” Public Utilities by Pond, 4th Ed., § 913, p. 1849. Santee v. Brady, 209 Ark. 224, 189 S. W. 2d 907; Lienhart v. Bryant, 209 Ark. 764, 192 S. W. 2d 530; Camden Transit Company v. Owen, 209 Ark. 861, 192 S. W. 2d 757.
But under the order made by the Commission the service authorized was not limited to a rail and truck or truck and rail movement of freight. Under this order a hauling of freight by appellee’s trucks from shippers at certain points to consignees at other points, without any preceding or succeeding movement by rail, is authorized. Now* this would permit appellee, which is not a railroad corporation, to haul freight by motor truck — without any movement whatever by rail — on railroad bills of lading at rates fixed for rail transportation. "While the testimony adduced before the Commission was sufficient to show the need of supplementing rail transportation of freight with a motor truck haul thereof, it did not show the necessity of any additional transportation facilities by motor truck only. The Commission should have provided that the authorization for the new service would permit only freight shipments that move partly by rail and partly by truck.
The judgment of the lower court is modified so as to require the Commission to amend the order appealed from by including therein this sentence: “Provided, that the service authorized by this order shall not include transportation of any freight in which there is not a bona fide movement by rail and truck or by truck and rail.” And, as so modified, the judgment of the lower court is affirmed. | [
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Smith, J.
On the 18th. day of June, 1945, Sam Cox purchased a policy of insurance from appellant on a Hud soil car against collision or upset covering a period of one year and paid the premium thereon. On or about the 11th day of October, 1945, Cox sold the Hudson car to Garrett & Payton, and the appellee, H. E. Garrett, went to the office of the appellant a:id procured a transfer of the policy from Cox to Garrett & Payton, receiving a sticker from the appellant to be attached to the original policy.
On or about the 8th day of November, 1945, the appellees sold the Hudson car and purchased a Ford sedan bearing Motor No. 18-6805192, and the appellee, H. E. Garrett, again went to the office of the appellant and procured a sticker to be attached to the original policy of insurance showing that the policy now covered the Ford sedan instead of the Hudson car. On January 24, 1946, after Garrett had purchased the interest of his partner, Payton, Garrett exchanged the Ford car covered by the policy of insurance for a Chevrolet car and took a check, which was never paid, and a title retaining note for the balance of the purchase money, which had never been paid, and executed an unconditional bill of sale to Mc-Mahan & Lindsey for the Ford sedan. McMahan went to the office of the appellant and applied for and was issued a policy on the car covering liability, but no collision or upset insurance was issued. The Ford sedan was in the possession of McMahan & Lindsey from the 24th day of January, 1946, until the 4th day of February, 1946, when the Ford sedan was upset and damaged.
On September 3, 1946, the appellee, H. E. Garrett, filed suit in the circuit court of Faulkner county, Arkansas, to recover on the original policy of insurance issued by the appellant, and the appellant answered on the 13th day of January, 1947, denying generally all of the allegations of the complaint, and alleged in addition thereto that the appellee, H. E. Garrett, at the time of the upset had no insurable interest in the Ford sedan, and that the appellant was not liable under the terms of the policy of insurance for the reason that the Ford sedan was under a bailment, lease, conditional sale contract, mortgage or other encumbrance not specifically declared and described in said policy, as provided by the express terms of said policy, it being provided that the policy should be void if it were.
The appellee replied to the answer of the appellant in which he claimed that he went to the office of the appellant for the purpose of procuring a sticker to go on the policy, but that he met Mr. Kellaiythe president of the appellant, and told him that he had sold the car, but had not been paid the purchase money, and he was directed to wait and see whether the purchase money was paid before having the transfer made.
The exact conversation as detailed by appellee was: “I told him that I had sold the car, but that I had not received any money on it, and had two checks for down payment. He (Kellar) said, ‘You have done so much changing on these cars, why not wait and see if you get the money, you might have to take it back. ’ ’ ’ He told the president of the company that he wanted an endorsement made on the policy which would protect him pending final consummation of the sale. The effect of this direction of the company’s president was to leave the policy in effect temporarily, and a few days later the collision occurred. The checks were dishonored when presented for payment. Appellee operated a taxicab business and had carried, and then carried other policies on other cars with appellant company.
The value of the car was shown to be $1,300 at the time of the collision, which wrecked it, and the car was sold after the collision as junk for $225. The policy was for $1,300, with $50 deductible clause, and the jury returned a verdict for $1,000.
For the reversal of the judgment pronounced upon this verdict it is insisted that under the provisions of the policy it was not in force at the time of the collision and instructions were asked based upon these provisions. One of these provisions was that “said policy does not apply under any of the coverage therein while the auto mobile is subject to any bailment, lease, contract, sale, mortgage or other encumbrance not specifically declared and described in said policy,” and it is insisted that in as much as the undisputed testimony shows there had been a conditional sale of the car, the company is not liable. Based upon this provision of the policy the court gave an instruction at appellant’s request, telling the jury there could be no recovery if there had been a conditional sale, after modifying the instruction by adding a provision reading as follows: ‘‘provided you find from the evidence that defendant, by an authorized representative, had not waived the provisions of the policy applicable to conditional sales for the protection and benefit of plaintiff,” to which modification appellant excepted.
Another instruction was given with a similar modification over appellant’s objections, based upon a provision of the policy relating to the sale of the car.
Both provisions of the policy, or either of them, would operate to defeat a recovery in this case, if there had been no waiver of the right of the company to assert the benefit of the provisions referred to, thereby leaving in effect the insurance on the wrecked car. But as has been said, there was testimony that there had been a waiver thereof, by an authorized representative of the company, for a period of time extending beyond the date of the collision, and the question presented by this record is whether there had been a waiver and the verdict of the jury is conclusive of this issue of fact.
These provisions of the policy, if waived at all, were waived by the president of the company. Having been inserted for the benefit and protection of the company, they may be waived by it.' The Chapter on Insurance, West Digest of Arkansas Reports, §•§ 375-6, cites a number of our cases to the effect that such provisions may be waived, and having been waived as found by the jury, the policy was in force when the collision occurred. The judgment must be affirmed and it is so ordered, | [
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Minor W. Millwee, Justice.
This is an original proceeding by petitioner, Twin City Lines, Inc., seeking a writ of prohibition to prevent the Benton Circuit Court from proceeding with trial of an action filed against peti • tioner in that court by Fred Pearce, administrator of the estate of his deceased daughter, Helen Pearce.
The record discloses that on April 10,' 1947, the administrator filed a complaint against petitioner for damages in the injury and death of the said Helen Pearce, deceased, alleged to have resulted from the negligent operation of one of petitioner’s buses at Fort Smith, Sebastian county, Arkansas. The complaint further alleged that both Fred Pearce and Helen Pearce were residents of Benton county, Arkansas, at the time of her death.
Petitioner appeared specially in the Benton Circuit Court on June 6,1947, and filed its motion to dismiss the complaint for improper venue and to quash the service of summons upon it in the action. The motion alleged that deceased, Helen Pearce, was a resident of the Fort Smith District of Sebastian county, Arkansas, at the time of the accident and at the time of her death, within the meaning of Act 314 of 1939, which provides that such action must be brought either in the county where the accident happened or in the county where the deceased resided at the time 'of injury or death; that the complaint showed on its face that the accident occurred in the Fort Smith District of Sebastian county; and that the Benton Circuit Court was, therefore, without jurisdiction of the person of petitioner.
At a hearing before the Benton Circuit Court on the motion to quash and dismiss, petitioner offered testimony to show that Helen Pearce was a resident of Sebastian county at the time of her death, while the administrator-plaintiff offered evidence to show that his daughter resided in Benton county at said time. After hearing this testimony the trial court overruled petitioner’s motion to quash the service and dismiss the suit. Petitioner then filed its application in this court for a writ of prohibition and has attached thereto the record of the proceedings in the Benton Circuit Court, including a transcript of the evidence taken at the hearing on the motion to quash and dismiss.
It will be observed that the question as to whether the trial court had jurisdiction of the person of petitioner turns on the fact of Helen Pearce’s residence at the time of her death. The fact of deceased’s residence at the time of her death is, therefore, a controverted and contested question which the trial court was called upon to determine from the testimony adduced on that issue. This court has repeatedly held that where the jurisdiction of a trial court depends upon a question of fact, a writ of prohibition will not lie. Crowe v. Futrell, 186 Ark. 926, 56 S. W. 2d 1030; Terry v. Harris, 188 Ark. 60, 64 S. W. 2d 82; LaFargue v. Waggoner, 189 Ark. 757, 75 S. W. 2d 235; Chapman & Dewey Lumber Co. v. Means, 191 Ark. 1066, 88 S. W. 2d 829.
In Sparkman Hardwood Lbr. Co. v. Bush, 189 Ark. 391, 72 S. W. 2d 527, this court said: “The office of the writ of prohibition is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction; but it is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for it has no other protection against the wrong that shall be done by such usurpation. When the court has jurisdiction over the subject-matter and the question of its jurisdiction of the person turns upon some fact to be determined by the court, its decision that it has jurisdiction,’ if wrong, is an error, and prohibition is not the proper remedy. Order of Ry. Conductors of America v. Bandy, 177 Ark. 694, 8 S. W. 2d 448; Merchants’ & Planters’ Bank v. Hammock, 178 Ark. 746, 12 S. W. 2d 421; Lynch v. Stephens, 179 Ark. 118, 14 S. W. 2d 257; Roach v. Henry, 186 Ark. 884, 56 S. W. 2d 577; Crowe v. Futrell, 186 Ark. 926, 56 S. W. 2d 1030.”
Petitioner argues that the circuit court placed the wrong construction on the testimony which was introduced at the hearing on its motion to quash and dismiss, and says that the facts are undisputed that deceased was a resident of Sebastian county, Arkansas, at the time of her death. We do not regard the testimony as to deceased’s residence as being wholly undisputed and certainly the legal effect of such facts is a matter that is highly controversial. In Robinson v. Means, Judge, 192 Ark. 816, 95 S. W. 2d 98, Justice Baker, speaking for the court, said. “Probably in most instances the facts upon which jurisdiction may rest or be determined are controverted. In most other instances they might be controverted, that is to say, there is the possibility of the facts being disputed. In either event the matter is one that must be determined by the trial court, and in the proper exercise of the trial court’s functions we do not interfere by prohibition. We might differ most seriously from the view taken by the trial court, but if we think the trial court erred, we can correct that only upon appeal. ’ ’
In the case of Simms Oil Co. v. Jones, Judge, 192 Ark. 189, 91 S. W. 2d 258, the court said': “We do not say that the facts presented here are in dispute as between the parties, but the legal effect of such facts is in sharp controversy.
“We have held in several cases, the most recent of which is the case of Chapman & Dewey Lumber Co. v. Means, 191 Ark. 1066, 88 S. W. 2d 29, that we would not undertake to determine facts upon petitions for writ of prohibition. A well-considered case, Arkansas Democrat v. Means, 190 Ark. 948, 82 S. W. 2d 256, quotes with approval the announcement of this court in the case of Finley v. Moose, 74 Ark. 217, 85 S. W. 238, 109 Am. St. Rep. 74; ‘If the existence or nonexistence of jurisdiction depends on contested facts which the inferior- tribunal is competent to inquire into or determine, a prohibition will not be granted; though the superior court should be of opinion that the questions of fact have been wrongfully determined by the court below, and, if rightly determined, would have ousted the jurisdiction.’ ”
The holding in the case of Robinson v. Means, supra, was reaffirmed in the case of Safeway Cab & Storage Co. v. Kincannon, Judge, 192 Ark. 1019, 96 S. W. 2d 7, where the court said: “If petitioners preserve their objections to the jurisdiction of their persons in the trial of this cause, and an adverse verdict and judgment go against them or either of them, then, if erroneous, it may be corrected on appeal.” .
It, therefore, appears that petitioner has an adequate remedy by appeal from the order of the trial court overruling the motion to quash and dismiss. There was a time when the remedy by appeal could not be said to be an adequate one. Under many of our earlier decisions it was held that an appeal to this court served to enter the appearance of a defendant, no matter how erroneous the decision of a trial court might prove to be on a question as to its jurisdiction of the person. This technical and unreasonable rule of procedure was severely criticized by Justice Butler, speaking for the court, in Chapman & Dewey Lumber Co. v. Means, supra. The rule was finally abolished and the cases supporting it were directly overruled in Anheuser-Busch, Inc. v. Manion, 193 Ark. 405, 100 S. W. 2d 672.
Prior to our decision in the recent case of Twin City Coach Co. v. Stewart, Adm’r., 209 Ark. 310, 190 S. W. 2d 629, the appellant in that case had applied here for a writ of prohibition adopting the same procedure employed by petitioner in the case at bar. Prohibition was denied in that case on the ground that the record presented a question of fact for determination by the trial court, but the question was preserved and the correctness of the trial court’s action on the motion to quash was reviewed on appeal. Petitioner relies on the case of Norton v. Purkins, Judge, 203 Ark. 586, 157 S. W. 2d 765. The authority and power of this court to grant the writ of prohibition was neither questioned nor discussed in that case. However, in cases involving original proceedings in this court, we think the question of our jurisdiction and authority to restrain trial courts is one that properly raises itself and that a failure to act in the premises should not be affected by mere silence or consent of the parties.
The circuit judge had a right to determine the question of the residence of the deceased, Helen Pearce, at the time of her death. If the question was determined erroneously, petitioner has an adequate remedy by appeal and prohibition will not lie.
The writ is, therefore, denied. | [
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McHaney, Justice.
Ou April 29, 1946, appellee entered into a written contract with appellant by which he agreed to do certain work on appellant’s house at 700 Wolfe Street, Little Eock, Arkansas, and to furnish all labor and materials, for a price of $1,000 to be paid $500 on completion of job and $500 as soon as arrangements could be made for a loan. Appellee completed the work promptly, demanded payment, but same was refused. He thereafter, on June 8, 1946, brought suit against appellant, alleging said facts, to recover a judgment against him for $1,000. Appellant answered on June 24, 1946, with a general denial. Trial to a jury on November 21, 1946, resulted in a verdict and a judgment for $1,000.
Thereafter, on March 25, 1947, at a subsequent term of the court, appellee filed in said cause what he called a “Motion to Enforce Lien,” in which, among other matters, he set out all the aforesaid matters, described the property with more particularity as the east 85 feet of lot 12, block 10 of Faust’s Addition to the City of Little Eock, and in which, for the first time, he asserted a lien on said property in this language: “Plaintiff says that the work performed by him under the terms of his contract with the defendant created a mechanics and materialman’s lien in his favor upon said house and lot to the extent of $1,000, and that the filing of the suit within 90 days after completion of the contract as aforesaid was a substantial compliance with the statute relative to availing himself of the benefits of said act; that this.action to enforce the lien as created as aforesaid is brought within the statutory period of 15 months since filing the aforesaid suit.
“Wherefore, plaintiff prays that the judgment for $1,000 against the defendant be levied out of the property charged with the lien therefor and that special fieri facias issue against said property to the end that plaintiff’s claim may be satisfied out of said property, and for costs herein expended.”
Appellant, on May 14,1947, responded to said motion and asserted that appellee did not ask the court to declare a lien on said property in his original complaint and upon a trial no lien was declared thereon, and that the judgment was rendered at a former term of the court, and that it is too late at that time to establish a lien against said property. He later, on June 28, 1947, filed an amendment to his response to the effect that said motion designed to have the court change the judgment from one in personam to one in rem; that it is not now subject to be amended or changed; and that the court was without jurisdiction to grant the relief sought.
The court, on .March 2, 1947, entered an order nunc pro tunc granting the relief prayed in said motion, fixed a lien on said property, ordered it sold, if not paid in 90 days, and ordered a special fieri facias to issue. This appeal is from that order.
We think the learned trial court fell into error in so holding.
Appellee, being the original contractor, was not required to give the 10 days’ notice to the owner, appellant. Section 8876, Pope’s Digest. He was clearly entitled to a mechanics lien on said property only “upon complying with the provisions of this act.” Section 8865, Pope’s Digest. Section 8881 provides how the lien shall be established by any person who wishes to avail himself of said act. He must file with the circuit clerk of the proper county, and within 90 days after the materials are furnished or the work or labor done or performed, “a just and true account of the demand due or owing to him,- — and containing a correct description of the property to be charged with said lien, verified by affidavit. ’ ’
For the purpose of this opinion, we assume that the description of the property as 700 Wolfe Street, Little Rock, Arkansas, was sufficient.
We have several times held that when suit is brought within 90 days to establish and enforce the lien, there is no necessity between the lien-holder and the land-owner, to file any account, other than the one accompanying the complaint, nor to enter any abstract of the particulars in the mechanics lien book. Anderson v. Seaman, 49 Ark. 475, 5 S. W. 799; Pfeiffer Stone Co. v. Brogdon, 125 Ark. 426, 188 S. W. 1187; Carr v. Hahn, 133 Ark. 401, 202 S. W. 685.
Appellee filed Ms suit within the 90 days given and, therefore, was not required to give notice. ' If he had claimed or asserted a lien in this complaint, the jury and the court, no doubt, would have given him a verdict and a judgment therefor, but nowhere in Ms complaint or in the verdict or in the judgment is there any mention of a claim for a lien. He simply asserted that appel-. lant owed him $1,000 for services performed in the performance of a certain contract for which he prayed judgment. He got all he asked. Appellee apparently relied upon appellant’s personal credit to collect Ms debt and this he had a right to do. He could not have a lien, except upon compliance with the statute, and we have held that a substantial compliance is all that is necessary and that the statute will be liberally construed in favor of the lien claimant. Wildwood Amusement Co. v. Stout Lumber Co., 178 Ark. 977, 12 S. W. 2d 911. But the claim for a lien must be filed within 90 days, or there can be no lien. In Martin v. Blytheville Water Co., 115 Ark. 230, 170 S. W. 1019, it was held that the lien must be asserted within that time. Here, appellee was too late, for he asserted and attempted to enforce his lien for the first time in his “Motion to Enforce Lien,” long after the 90 days had expired, and came too late. See, also, Union Indemnity Co. v. Covington, 178 Ark. 533, 12 S. W. 2d 884; McGehee Realty & Lumber Co. v. Kennedy, 200 Ark. 926, 141 S. W. 2d 524.
The order of July 2, 1947, is reversed and the cause remanded with directions to cancel said order and to dismiss appellee’s “Motion to Enforce Lien.” | [
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Minor W. Millwee, Justice.
This appeal involves the question of the sufficiency of the evidence to sustain a charge of willful and wanton negligence on the part of the driver of an automobile in an action for damages against the owners under our guest statute (§§ 1302-4, Pope’s Digest).
Carl McAllister brought an action to recover damages for the- death of his 15-year-old daughter while riding as a guest in an automobile owned by defendants, J. Y. Calhoun and wife, and being operated by their daughter-in-law, Mrs. J. V. Calhoun, Jr. At the conclusion of the testimony on behalf of plaintiff, the trial court directed a verdict in favor of defendants on the ground that the evidence was insufficient to show that the operator of the car involved in the tragedy was guilty of willful or wanton negligence as required by the guest statute.
In determining the correctness of. the ruling of the trial court on this issue we must give the evidence its strongest probative force in favor of plaintiff. The rule is stated in Barrentine v. The Henry Wrape Co., 120 Ark. 206, 179 S. W. 328, as follows: “In determining on appeal the correctness of the trial court’s action in directing a verdict for either party, the rule is to take that view of the evidence that is most favorable to the party against whom the verdict is directed, and where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury.” See, also, Scott v. Wisconsin & Ark. Lbr. Co., 148 Ark. 66, 229 S. W. 720.
The evidence on behalf of plaintiff was as follows: Imogene Calhoun, the 16-year-old daughter-in-law of defendants, was residing with them at Vanndale, Arkansas, in July, 1945, while her husband, J. Y. Calhoun, Jr., was in military service. A friend, Alidean Tyree, of Forrest City, Arkansas, was visiting Imogene on July 22, 1945, when defendants gave their daughter-in-law permission to use their 1942 Pontiac automobile to make a trip to Wynne, Arkansas. Defendants’ five-year-old daughter, Fay Frances Calhoun, wanted to go to the picture show at Wynne and permission was given for her to go along. They drove to Wynne where l1 ay Frances was left at the home of relatives. Imogene and Alidean then drove to Cherry Yalley and picked up their friends, Margie Cummings, Naomi Cummings Gardner, and the deceased, Ver die Rae McAllister, after the latter had obtained plaintiffs’ permission to join the others.
Wynne is located 14 miles south of Cherry Yalley and seven miles south of Yanndale. The trip from Wynne to Cherry Yalley and return was made via Bird-eye instead of Vanndale, the home of defendants and a more direct route. In Wynne the five girls picked up Fay Frances Calhoun and two younger sisters of the Cummings girls and left them at a movie theater. At Imogene’s suggestion the five girls then decided to drive to Forrest City, which is 16 miles south of Wynne, intending to pick up the children on their return to Wynne after the show was over.
Imogene was driving at a high rate of speed at a point about three and one-half miles south of Wynne when she lost control of the car which left the road, turned over and came to a stop in a field about 50 or 60 feet from the highway, tearing up the ground as it went. The accidept happened sometime in the afternoon on State Highway No. 1 which is a hard-surfaced road. Ver die Eae McAllister sustained injuries resulting in her death 44 hours later.
Margie Cummings, who was riding on the back seat, testified that Imogene drove 75 miles per hour on the trip from Cherry Valley to Wynne and that she and her sister asked Imogene to reduce the sped and that she promised to do so before they left Wynne for Forrest City; that they were driving 80 miles an hour just before the accident, when Naomi Gardner again asked her to slow down; that Imogene was still driving 80 miles per hour, when they heard a noise which sounded as if a recap on a rear tire was coming off. 'Margie testified that Imogene applied the brakes when they heard the noise under the car, while Naomi testified that she did not know whether or not the brakes were applied. There was no evidence that the tire blew out. Imogene lost control of the car which left the road, turned over and went through, or over, a barbed wire fence enclosing the field where the car stopped. The girls were friends and the purpose of the trip to Forrest City was to take an airplane ride, which was suggested by Imogene.
There was also evidence that Imogene had the reputation of being a fast and reckless driver, and that defendants permitted her to drive the automobile knowing that she was a reckless driver.
To-sustain the action of the trial court in directing a verdict in their favor defendants say that evidence of excessive speed and noncompliance with the request of a guest to slow down are not, alone, sufficient evidence of willful or wanton negligence. Tile cases of Splawn, Admx., v. Wright, 198 Ark. 197, 128 S. W. 2d 248, and Edwards v. Jeffers, 204 Ark. 400, 162 S. W. 2d 472, are cited in support of this contention. In the case first cited the parties were driving, on a straight gravel road at a speed of 40 to 45 miles per hour, when the driver reached down to turn on, or adjust, a heater and the car plunged into a bridge railing, injuring the plaintiff. It was held that the driver was guilty of nothing more than a simple act of negligence in attempting to adjust the heater, and that this evidence was insufficient to justify a recovery in view of the guest statute.
In the Edwards case, supra, plaintiff alleged that her host drove at a reckless, dangerous and unlawful rate of speed while attempting to negotiate a curve and that the car left the road, resulting in serious injury to plaintiff. It was further alleged that the careless and unlawful rate of speed amounted to willful and gross negligence on the part of the defendants. There was testimony on behalf of plaintiff that one of the defendants was driving 70 or 80 miles an hour at the time the car skidded and turned over on its side in a ditch. It was pointed out in that case, however, that the physical facts demonstrated that defendant had not attained a speed of 70 or 80 miles an hour at the time of the accident as plaintiff’s witnesses testified, and it was held that the driver of the car was not guilty of willful and wanton negligence under the statute.
In the instant case we think the physical facts tend to support, rather than contradict, the testimony of the Cummings girls that Imogene was driving 80 miles an hour when the car left the road.
In the Splawn case, supra, we said: “Whether an automobile is being operated in such a manner as to amount to wanton and willful conduct in disregard of the rights of others must be determined by the facts and circumstances of each individual case.” Whether or not a driver was guilty of willful or wanton negligence is ordinarily a question of fact for the jury. Blashfield, Cyclo pedia of Automobile Law & Practice (Perm. Ed.), vol. 10, p. 759.
In the cases relied on by defendants this court reaffirmed the rule laid down in Froman v. J. R. Kelley Stave & Heading Company, 196 Ark. 808, 120 S. W. 2d 164, where it was held that in order to recover under our guest statute the negligence must be of a greater degree than gross negligence, and the shadowy distinction between gross negligence and willful or wanton misconduct was recognized and discussed. In the Proman case this court said: “In Malcom’s Automobile Guest Law an entire chapter (VII) is devoted to ‘Willful and Wanton Misconduct Under the Guest Law Statutes,’ and scores of cases are cited in which the difference between negligence and willful and wanton misconduct is discussed. All the cases appear to recognize the distinction, although a number point out the fact that the difference between gross negligence and willful and wanton misconduct is so narrow and indistinct that in many instances the question is one for the jury whether the negligence had become willful and wanton.” In the same case the court approved the definition of the term “willful negligence” as stated by the Vermont court in Sorrell v. White, 103 Vt. 277, 153 Atl. 359, as follows: “ ‘To be willfully negligent, one must be conscious of his conduct and, although having-no intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally or probably result in injury. . . . “willful negligence” means a failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another.
When the testimony on behalf of plaintiff is viewed in the light most favorable to plaintiff, we think the able trial judge erred in holding as a matter of law that the evidence was insufficient to show willful and wanton negligence on the part of the driver. The excessive rate of speed at which the car was being driven at a time when wartime driving restrictions were in effect together with the driver’s failure to heed the protests of guests, were sufficient, in our opinion, to make a question for the jury on tlie issue of willful and wanton negligence.
Defendants also say that the trial court was warranted in directing a verdict in their favor because plaintiff alleged but failed to prove that the driver was acting as defendants’ agent at the time of the accident. It is true that agency was not shown, but this was not fatal to plaintiff’s case since there was substantial evidence that defendants permitted their daughter-in-law to drive the car, knowing that she was a careless and reckless driver. Layes v. Harris, 187 Ark. 1107, 63 S. W. 2d 971; Chaney v. Duncan, 194 Ark. 1076, 110 S. W. 2d 21.
For the error indicated, the judgment will be reversed and the cause remanded for a new trial. | [
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Griffin Smith, Chief Justice.
The primary question is whether Chancery Court had power to direct sale of real property for reinvestment while there was possibility that remaindermen not in being might take.
When D. J. Burnham executed his will in 1924 Martha Overturf, a daughter, was made principal devisee and legatee. Direction was that all property, both real and personal, (subject to certain bequests not here involved) should go to Martha for life, and then to the heirs of her body; “. . . but if she shall die without issue living at her death, then I give such remainder to my nephews and nieces in equal shares per capita, their heirs and assigns ’ ’.
Martha 'Overturf became the wife of David G-. Wing and appears here as Martha B. Wing. The first-named appellant, Martha Wing, is Martha B. Wing’s daughter; The family resides in Ohio at Mechanicsburg, as did the testator. Property dealt with by the Chancellor is 1,500 acres of rice land near Hickory Bidge, in Cross County.
Mrs. Wing’s complaint discloses that she has three children — a daughter and two sons. The sons are minors. The testator’s nieces and nephews are adults. Mrs. Wing named her own children and her father’s nieces and nephews as defendants. She asserted that as life tenant she was not in a position to devote the necessary attention to rice culture, nor did she have sufficient knowledge of farming to justify further investments and expenditures for maintaining the lands as rice plantations. It was also alleged that current prices had probably reached a market peak. James Bobertson was appointed guardian ad litem for the minors.
The chancellor found that it would be for the best interest of all concerned, including contingent remainder-men not in being, that the lands be converted. Mrs. Wing’s age is not given, but her life expectancy is mentioned in- one of .the briefs as “thirty or thirty-five years”.
The decree, from which the guardian ad litem has appealed, found the property to be worth $65,065. A Commissionfer was appointed to give notice for twenty days and sell to the highest bidder on a credit of six months, with appropriate' security. However, at any time before such public sale, the property may be disposed of privately at its reasonable market value — not less than $65,065. It was directed that proceeds from sale be applied in payment of expenses, including a commission of not more than five percent if the Commissioner should find it necessary to employ an agent, “and such agent makes or causes to be made a cash sale of said property as authorized herein”.
After paying attorney fees, court costs, etc., the remainder is to be invested and reinvested in U. S. government bonds, and the income and principal “from time to time [distributed] as may be ordered by this Court.”
The decree, in its essential features, is patterned from the rule established in Bedford v. Bedford, 105 Ark. 587, 152 S. W. 129. The opinion was written by Chief Justice McCulloch, who very clearly committed the Court to the rule followed in certain other states, “. . . Where there is created a class of contingent remainder-men, some not in being at.the time, suit [for sale and reinvestment] may be maintained, and those in being sufficiently represent the whole class. This is treated as a doctrine of necessity; for otherwise the jurisdiction of the court would be entirely defeated, because of the fact that there might arise other parties not then in being”. Further emphasizing, Judge McCulloch said: “The theory upon which [the so-called rule of necessity] rests is [as stated in Gavin v. Curtain, 171 Ill. 640, 49 N. E. 523, 40 L. R. A. 776] that ‘the possible persons not in esse are therefore represented by the parties before the court, and, if they ever come into being, will be bound and concluded by the decree’ ”. See, also, Hardy v. Hilton, 211 Ark. 991, 204 S. W. 2d 163.
The Bedford opinion stresses the Court’s duty to. “follow up” reinvestments, to the end that the testator’s intentions be respected. In the case at bar the decree designates National Bank of Eastern Arkansas (at Forrest City) as trustee. However, inherent powers of Chancery permit substitution. We think the decree should affirmatively express what was intended and may be implied: that is, the trustee should he required to make periodical reports to the Court, (at least annually) showing essential facts relating to the trust; and in the event another is substituted for the Bank the securities should he protected by a sufficient fidelity bond.
' That part of the decree permitting the trustee to distribute the income and principal “from time to time as may be ordered by the Court” should he modified by striking the word “principal”, thus denying distribution of the corpus while there are contingencies under which remaindermen might take. With this modification and the requirement for reports by the trustee and bond in the event of substitution, the decree is affirmed.
The 1,500-acre tract is operated as two farms, one valued at $43,620, the other at $21,445.
A further provision is that “ . . . such net proceeds . . . are hereby impressed with a trust in favor of each and all of the parties in esse and unborn [as their rights appear] and shall [so] remain, . . . as the right, title, and interest of said parties are created in said real estate by the will of D. J. Burnham.”
For statements of the rule see 33 American Jurisprudence, p. 743, § 265; 31 Corpus Juris Secundum, p. 104, § 89(b).
We shall assume that the Chancellor, in designating National Bank of Eastern Arkansas as trustee,. ascertained that the Bank had procured the special permit authorized by subdivision (k) of § 248, Title 12, U. S. C. A. | [
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Ed. F. McFaddin, Justice.
In this appeal two questions are presented: first, whether the Arkansas G-ross Receipts Tax (as levied by Act 386 of 1941) is applicable to the transactions described in the stipulations in this case; and, second, whether appellee Sears-Roebuck & Company is prevented, by its conduct, from obtaining an answer to the first question. We decide only the second question; that is, we hold that Sears-Roebuck & Company, by its conduct, is prevented from obtaining an answer to the first question as above stated.
Otho A. Cook (hereinafter referred to as “appellant”) is, and was at all times hereinafter mentioned, Commissioner of Revenues of the State of Arkansas; and appellee Sears-Roebuck & Company (hereinafter referred to as “Sears”) is, and was at all times hereinafter mentioned, a large merchandising establishment with retail stores in Little Rock, Hot Springs and Fort Smith. In each retail store there was a “mail order desk” where the consumer could examine the catalogue for items not found in the retail store. In addition to the three retail stores, Sears also had “mail order offices” in Pine Bluff, Camden, Jonesboro, El Dorado and Helena. These “mail order offices” had no merchandise on hand for sale, but had only Sears catalogues from which items could be ordered.
At either the mail order desk in any of the three retail stores, or at the mail order office in any of the other five cities mentioned, the procedure was the same: the prospective customer could examine the catalogues and order from the Memphis, Tennessee, or the Kansas City, Missouri, store of Sears any item found in the catalogues. Such an order was subject to acceptance or rejection in Memphis or Kansas City, and was shipped by carrier to the purchaser. The method of payment varied. Prices listed in the catalogue were f.o.b. the point of shipment. Were these sales thus made through such mail order desk or mail order .office “sales made in Arkansas,” so as to be taxable transactions under our Gross Receipts Tax Act 386 of 1941 (hereinafter called the “Tax Act”) ? That is the original question; and the one that led to this litigation.
Prior to 1945, Sears had regularly collected, and remitted to appellant, as provided by the said Tax Act, the gross receipts tax arising from all sales made at the mail order desks and mail order offices . Beginning in January, 1945, Sears continued to collect the tax from its customers, but refused to remit to appellant any taxes so collected. In July, 1945, appellant made an assessment against Sears for $2,688.44 for the tax on sales made by Sears at its mail order desks and mail order offices in Arkansas during the months of January and February, 1945. After the said assessment, Sears undertook to follow the procedure of § 10 of the Tax Act, in that Sears: (a) seasonably protested the assessment; (b) had a hearing before the Commissioner; and (c) from the order of the Commissioner sustaining the assessment, seasonably filed its appeal in the Pulaski Chancery Court. In its chancery pleading, Sears said ■:
‘ ‘ Sears-Roebuck & Company now desires that an appeal be granted it from the order of the said Commissioner of Revenues as provided in § 10 of Act 386 of the Acts of the General Assembly of Arkansas for 1941, and that the legality of the assessment hereinbefore mentioned be determined by this court.”
Sears failed to completely follow the procedure of § 10, in that it failed to pay the tax; but, by reason of the stipulation hereinafter to be mentioned, we treat the tax as paid, and this as a suit for refund. Appellant by answer claimed that the sales of Sears to its customers at the mail order offices and mail order desks were consummated in Arkansas, and that the assessment was correct.
With the issue thus joined, appellant and Sears entered into a stipulation reciting the method of business, as hereinbefore explained, and also containing the two paragraphs, as follows: • ' t
“Sears-Roebuck & Company was duly licensed by the Revenue Department of the State of Arkansas under the Gross Receipts Tax Law and has been issued permit No. 76-190-23. This permit is a blanket permit for the Company in Arkansas and retail stores in Little Rock, Hot Springs and Fort Smith have been issued sub-permits.
“Sears-Roebuck & Company has been collecting the Arkansas Gross Receipts Tax from the customers placing orders through order desks and order offices. Prior to 1945, the tax was remitted to the State of Arkansas on these orders. Since that time, the amounts collected have been held by Sears-Roebuck & Company pending the ultimate outcome of this suit.”
The chancery court entered a decree cancelling the assessment made by the Commissioner; and from that decree, there is this appeal.
I. The Status of the Suit. At the outset, we state that we treat this case as though Sears had. paid the $2,688.44 and penalty, and was here seeking to recover the same. We do this because Sears said that it was proceeding under § 10 of the Tax Act, and that section expressly tequires that the money must be paid as a prerequisite to an appeal to the chancery court. Whether appellant exceeded his authority, in failing to' require Sears to make actual payments of such money, we need not now decide; but we treat this case as though Sears had fulfilled all the essentials required of it under § 10. We do this since Sears, in invoking for its benefit § 10 of the Tax Act, also necessarily assumed the concomitant burdens of that section.
II. Unjust .Enrichment. We have previously copied two paragraphs of the stipulation; and these show (1) that Sears obtained a permit from the State to collect the sales tax from Sears’ customers; and (2), that, acting under the authority and power of that permit, Sears actually collected the sales tax from the purchasers in the transactions here involved. Whose money is it now? Either, it belongs to the State, or it belongs to the persons who paid the taxes to Sears. At all events, it is not Sears’ money. How, then, can Sears be heard in this effort to recover the money that it has paid? Or, if we should treat the money as still in the hands of Sears, how can Sears be heard in its effort to keep the money, which it collected as an agent of the State? The propounding of the questions suggests the answers that must be made in a court of equity. To allow Sears to recover this money, or to retain it, is to disregard completely the entire doctrine against unjust enrichment. t
In the American Law Institute’s Restatement of the Law of Restitution, the following appears in § 1-A, as a fair statement of what is meant by unjust enrichment: “A person is unjustly enriched if the retention of the benefit would be unjust.”
A well-considered ease, applying the rule against unjust enrichment in a situation similar to the one in the case at bar, is Shannon v. Hughes & Co., 270 Ky. 530, 109 S. W. 2d 1174. There, the State of Kentucky had undertaken to enact a retail sales tax of seven cents per quart of ice cream. The Act had provided that the person or firm making the sale should collect the tax and remit the same to the State; and Hughes & Co., as the seller of ice cream, had collected the tax from its customers, and had remitted such collections to the State. Later, in an action by other parties, the tax had been declared void. Then Hughes & Co. brought its suit to recover the money which it had paid to the State. The Kentucky Court of Appeals, in denying Hughes & Co. any relief, applied the doctrine of unjust enrichment. We quote:
“The proof shows that appellee added the tax to the price charged for its products, and thus collected the tax from its vendees and shifted to them the economic burden of its imposition. ... In U. S. v. Jefferson Electric Manufacturing Company, 291 U. S. 386, 54 S. Ct. 443, 78 L. Ed. 859, the Supreme Court sanctioned the refusal to refund illegal taxes to one who, although he paid them, did not bear their burden. It is true that the court had under consideration in that case an act of Congress which required the claimant to prove that he had not shifted the burden of the tax as a condition precedent to his recovery. This was a legislative recognition of the principle that a taxpayer who is allowed the refund of a tax, the economic burden of which has been borne by another, has been unjustly enriched. The doctrine of unjust enrichment has received a wide application in tax cases even without the aid of a statute. The Supreme Court of Illinois in a number' of decisions denied recovery of taxes paid under an unconstitutional statute levying a tax of two cents a gallon on gasoline, where it appeared that the claimant had collected the tax from his vendees, on the ground that recovery by the claimant would not inure to the benefit of the vendees. Richardson Lubricating Company v. Kinney, 337 Ill. 122, 168 N. E. 886; Standard Oil Company v. Bollinger, 348 Ill. 82, 180 N E 396.
“We are of the opinion that, under the circumstances herein outlined, the sellers of ice cream who paid the tax into the state treasury should show that the amounts they seek to recover do not include collections made by them from their customers pursuant to the provisions of § 2 of the act. To hold otherwise would be manifestly unjust and would result in the unjust enrichment of the one seeking to recover the tax from the commonwealth and supported by no outlay on his part.”'
In the case at bar, it is admitted by Sears that it would be entirely impracticable for Sears to attempt to return to the customers the sales tax money collected in this case. Such return is not even contemplated by Sears; the fact that the customers paid the tax is shown by the stipulation previously copied. Therefore, Sears must be denied recovery, unless it can remove itself from the rule against unjust enrichment.
III. The Status of Sears. In such effort to remove itself from the rule against unjust enrichment, Sears says it is the “real taxpayer,” and therefore entitled to the money as its own.
Sears argues: (a) that the Tax Act levies the tax on Sears; (b) that the assessment is against Sears as a taxpayer — and not as a tax collector; and (c) that the fact, that Sears added some amount approximating the tax to the prices of the articles sold, is immaterial to the issues here. In making these contentions, learned counsel for appellee, both in the oral argument and supplemental brief, has made a detailed comparison of one of our previous sales tax acts (Act 233 of 1935) with'the present dross Receipts Tax Act. The purpose of such comparison was an attempt to distinguish the status of Sears in the case at bar from the status of the merchant who collected the sales tax in Wiseman v. Phillips, 191 Ark. 63, 84 S. W. 2d 191, because, of such merchant, we said: ‘ ‘ The merchant is not taxed. He is a tax collector. The tax is required of the purchaser, and the merchant.must collect and account for it.”
In Mann v. McCarroll, 198 Ark. 628, 130 S. W. 2d 721, we had under consideration the Arkansas Retail Sales Act of 1937 (being Act 154 of 1937), and we there also referred to the seller collecting the tax as being the agent of the State.
We, cannot, and do not, agree with Sears’ contentions in this regard. In accepting a permit from the State under the present Tax Act, and in collecting the tax from the customers in the case at bar, Sears became a tax collector for the State, just as the merchant did in the reported case of Wiseman v. Phillips, supra. We have repeatedly held that the present Gross Beceipts Tax Act is a sales tax act. McLeod v. Dilworth, 205 Ark. 780, 171 S. W. 2d 62; and U-Drive-’em Service Co. v. Hardin, 205 Ark. 501, 169 S. W. 2d 584. Furthermore, we point out provisions of the present Tax Act, which point unerringly to the status of Sears as a tax collector under the Act (Act 386 of 1941):
Section 2g says: “The term ‘seller’ shall mean and include every person making a sale in an established business as herein defined.” Section 2i says: “The term ‘consumer’ or ‘user’ means the person to whom the taxable sale is made, or to whom taxable services are furnished.” Section 2e says: “ The term ‘ taxpayer ’ means any person liable to remit a tax hereunder or to make a report for the purpose of claiming any exemptions from payment of taxes levied by this Act. ’ ’ These definitions of seller, consumer and taxpayer show that the taxpayer is the one who makes the report, as distinct from the seller and the consumer: so Sears occupies the position of a person making a report, and also the position of the person making the sale.
Section 3 of the Act says, in part: ‘ ‘ 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. . . . ” Thus, the tax is not levied on the seller or the consumer, but is levied on the transaction, that is, the sale itself.
Section 7 of the Act is most convincing. It says:' “The seller, or person furnishing such taxable service, shall collect the tax levied hereby from the purchaser.” Thus, the Act specifically states that Sears shall collect the tax from the consumer.
Section 12 of the Act concerns permits, and says: “It shall be unlawful for any taxpayer to engage in or transact business within this State unless a written permit or permits shall have been issued to him. Every such taxpayer desiring to engage in or conduct a business within this State shall file with the Commissioner of Revenues an application for a permit to conduct such business, setting forth such information as the Commissioner may require. . . . Any taxpayer who engages in business, subject to the provisions of this section without a permit or permits, or after a permit has been suspended, shall be subject to penalties as hereinafter provided.” It would have been unlawful for Sears to have undertaken to collect the tax without a permit; and Sears would have violated the law if it had not collected the tax from the consumer.
In short, a study of our tax Act demonstrates that Sears is a “taxpayer” only in the sense that it collects and remits the tax and makes a report thereof; but is not a “taxpayer” in the sense of being the initial payer of the tax. That burden — under § 7 of the Act' — falls on the party who purchases the merchandise from Sears, and Sears only collects and remits the tax to the State with a report.
Sears makes the contention that the Commissioner, acting under § 7 of the Tax Act, has adopted a bracket system for determining the collection of the tax; and that, under § 14, the taxpayer (if prompt) is only required to remit 98 per cent, of the tax clue — being allowed to retain the balance as remuneration for bookkeeping, “filing reports, collecting the tax and remitting it when due under this Act.” Sears cites these provisions in its effort to show that the tax is actually paid by Sears. But these provisions show that Sears is really receiving compensation for “collecting the tax and remitting.” They reinforce our conclusion that Sears is a “tax collector,” and .that Sears, by its conduct as hereinbefore detailed, is prevented from questioning the State’s right to the money.
Cases from other jurisdictions are in accord with the views herein stated. We refer especially to Spencer v. Consumers’ Oil Co., 115 Conn. 554, 162 Atl. 23; Wade v. State, 97 Colo. 52, 47 Pac. 2d 412; and Kesbec v. McGoldrick, 278 N. Y. 293, 16 N. E. 2d 288, 119 A. L. R. 536.
In Spencer v. Consumers’ Oil Co., supra, the oil company, being under a license from the State of Connecticut, had collected from purchasers a tax of two cents per gallon on gasoline. The oil company, then claimed that the tax was illegal, and refused to remit to the State the amount collected. In sustaining the State’s right to recover the money from the oil company, the Supreme Court of Errors of Connecticut said:
“ . . . this corporation invoked certain of our state laws to establish itself as a licensed distributor of gasoline, conducted a large business under that franchise, collected its own price in full and in addition a tax for the State of Connecticut of two cents on every gallon sold, as provided by this law, and now refuses to pay over to the State the tax so collected on the ground that the laws which licensed it to sell gasoline, and in addition to the regular sale price retained by it to collect for the State of Connecticut a tax of two cents a gallon,- were invalid and void and that therefore it can keep for its own use large sums of tax money which admittedly do not belong to it. The mere statement of stich a claim constitutes a fair answer and should suffice to defeat it. . . .
“The defendant accepted a license to do business as a distributor under the act in question . . . ; it acted in collecting that money from consumers under the terms of the,act; and made monthly reports of such collections to the commissioner as required by the act. It cannot, having acted under the statute to the detriment of others, now claim that the statute was unconstitutional and void,
“In the present case the defendant has in good conscience no right to retain this money and is charged with a heavy moral obligation to make the payment.”
In Wade v. State, supra, the Denver Oil Company had applied to the State of Colorado for a license to operate as a distributor of motor fuel, and had received such license upon making bond with sureties. One of the requirements of such licensee was that it collect from the purchaser the tax of four cents per gallon on all motor fuel sold by such distributor. The oil company failed to pay the tax; and when the State sued, the oil company sought to attack the constitutionality of the taxing statute. In sustaining the State’s right to recover, the Supreme Court of Colorado said:
“In their attack upon the constitutionality of the act imposing the tax, the oil company, as distributor, or its sureties, are as strangers to the question. They would receive no benefit, neither would they suffer any injury by or through a.holding of the validity or invalidity of the act. In the tax collected by them, they could acquire no interest requisite to a right to successfully object to the imposition of the tax. That requisite obtains to one who first protests and then pays the tax. Defendant sought and obtained a privilege under the statute, claimed existence thereunder, as a distributor, and now attacks the law that fostered it. As against purchasers, it enforced the statute with impunity. We fail to conceive any equitable principle which would permit one to repudiate a statute, after sanctioning it, by applying for, and receiving, a privilege thereunder, especially where, under-the faith of a bonded obligation, he has been allowed to collect a tax, which, although claiming the act to be unlawful, he thereafter seeks to retain. ’ ’
In Kesbec v. McGoldrich, supra, the oil company, acting under a permit from the city, had collected a gasoline sales tax, a portion of which was later held to be illegal. The oil company sought to recover, but the Court of Appeals of New York denied such a recovery, saying:
“Petitioner (i. e., oil company) got this fund on its declaration that its customers were paying a tax for transmittal to the city treasury for unemployment relief. The valid general authority to the petitioner to collect the city sales tax was disclosed. Petitioner was not bound to ascertain whether the Comptroller’s regulations went, beyond the limitations of law. The sales tax was not imposed on the vendor. It fell upon the purchaser ■. . . ”
It will be observed that in the Kentucky case and the New York case there had been a previous adjudication of the illegality of the tax jnvolved; and the court then set about to determine who was entitled' to the money previously collected. Of course, in the case now before us, there has never been any adjudication that the tax was illegal, and nothing herein is to be taken as the slightest indication in that regard. The cases are cited and' quoted from to sustain the point that in no event can Sears hold the tax money it has collected from its customers.
Among the cases cited by Sears is State of Montana v. Sunburst Refining Co., 76 Mont. 472, 248 Pac. 186, 46 A. L. R. 969, claimed to be a case holding that the State cannot recover from a dealer the amount the dealer collected under a sales tax act subsequently held invalid. But we point out that the Montana Sales Tax Act was different from the Tax Act here involved. The Montana court recognized such difference in this language: “The law does not impose any tax upon the consumer, although in practice it may be that the distributor or dealer passes it on to him by advancing the price of the product sold. The law did not constitute the defendant an officer or agent to collect a tax from its customers.”
There are annotations in 93 A. L. R. 1485 and 119 A. L. R. 543 on the topic, “Right as between dealer or manufacturer and taxing authorities in respect of taxes and license fees illegally received or collected.” In these annotations there are reviewed: (1) cases which hold in accordance with the views herein expressed; (2) cases which hold contra; and (3) cases following federal statutes concerning suits for refund. Without reviewing all these cases, we reach the conclusion that 'Sears’ status under our Tax Act is that of a tax collector, and that the rule against unjust enrichment is a bar to Sears’ effort to recover (or retain) the tax which Sears collected from its customers under this Tax Act. Sears sought to assert in this case that the Arkansas 'Cross Receipts Tax was inapplicable to the sales that Sears made at its mail order desks and mail order offices. That was the original point.; but we have never reached that question for decision, because Sears, by its conduct, is prevented from obtaining an answer to that question in the case at bar.
The decree of the chancery court is reversed, and judgment entered here sustaining the assessment made by the Commissioner against Sears.
In using the terms “mail order desk” and “mail order office,” we follow Sears’ designation, and without any intimation that such designation indicates our conclusions as to the effect of the method of doin°business. “
Section 10 of Act 386 of 1941 is copied, in part, for convenient reference:
“If the Commissioner, after examining the return of any taxpayer or upon the failure of any taxpayer to file a return, determines that the taxpayer is liable to the State for any taxes specified under this Act, he shall give such taxpayer notice of his intention to collect such assessment by issuing a certificate of indebtedness as hereinafter provided, or by any other legal means. Such taxpayer may, if he so desires and duly notifies the Commissioner in writing within twenty (20) days after receipt of such notice of intention, demand a hearing on the question of the issuance of such certificate of indebtedness. Thereupon the Commissioner shall set a time and place for hearing and shall give the taxpayer reasonable notice thereof. The taxpayer shall be entitled to appear before the Commissioner and be represented by counsel and present testimony and argument. After the hearing the Commissioner shall render his decision in writing and by order establish any deficiency or.tax found by him to be due and payable. If any taxpayer is aggrieved by any decision of the Commissioner he shall be required to pay the amount of taxes, interest and/or penalties found due by the Commissioner and after the payment of such taxes, interest and/or penalties, he shall be permitted to appeal within a period of thirty (30) days after such decision to the Chancery Court of Pulaski County where the matter shall be tried de novo. An appeal shall also lie from the Pulaski Chancery Court to the Supreme Court of Arkansas as in other cases now provided by law.
“In the event any taxpayer is found by such court or courts entitled to recover any sums paid pursuant to the orders of the Commissioner as hereinbefore provided, such sums shall be refunded to him from a fund to be created by the Commissioner out of monies collected under this Act, to be known as the ‘Special Gross Receipts Refund Account,’ to be maintained for such purposes, which account shall not exceed the sum of $10,000.”
For other cases construing these words, see “Unjust Enrichment” in Words and Phrases, Permanent Edition, Vol. 43, p. 272, and also in the pocket part of the same volume. | [
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Robins, J.
Asserting that they were heirs at law of Mrs. Belle H. McKenzie, who died testate bn December 1, 1946, appellants brought this suit in the chancery court against appellee, Guaranty Loan & Trust Company, the executor of said decedent, and against appellees, E. R. Crum, Robert G. Howard and Jo M. Walker, the trustees named in her will, which had already been admitted to probate without objection. Appellants alleged that the disposition of her residuary estate, made by Mrs. McKenzie in Item 26 of her will, was void and they prayed that, since she died intestate as to this property, the executor be required to turn same over to appellants as heirs.
The lower court sustained a demurrer of appellees to the complaint, and entered decree dismissing the complaint. Appellants ask us to reverse that decree.
The will in question here contained numerous bequests "and devises, none of which was to any of appellants, and Item 26, the part of the will under consideration here, was as follows: “All the rest, residue and remainder of the property real, personal and mixed, which I may own at the time of my death, or to which I may be entitled, I hereby devise and bequeath unto said trustees, with the right in them to sell and dispose of said property by sale, at such time or times and in such manner as they may deem best; the proceeds from such sales, together with all money and bonds, as may come into their hands as such trustees to be given to some foundation, or organization whose purpose it is to discover a cure for rheumatism; provided -that if such trustees cannot agree upon a foundation or organization engaged in such investigation, they may give and donate such proceeds to any charitable institution or institutions, foundation or foundations, organizations or organization, upon which they may all agree. And I hereby nominate and appoint E. E. Crum, Eobert G. Howard, and Jo M. Walker, trustees to carry out the above trusts. I direct that they be paid the sum of two hundred and fifty dollars each by the executor of this my last will and testament, for their services as such trustees.”
It is first argued by appellants that the trust created by Item 26 of the will must fail because there is no definite or definitely ascertainable beneficiary designated by the testatrix. But the testatrix did designate the class in which her beneficiary should be found, and left to her trustees the duty and power to select, from the class of institutions pointed out by her, the beneficiary which in their judgment should enjoy her bounty. This was a suf ficiently definite designation. “If the founder describes the general nature of the charitable trust, he may leave the details of its administration to be settled by trustees under the superintendence of a court of chancery.” Russell v. Allen, 107 U. S. 163, 2 S. Ct. 327, 27 L. Ed. 397. See, also, Biscoe v. Thweatt, 74 Ark. 545, 86 S. W. 432, 4 Ann. Cas. 1136; McDonald v. Shaw, 81 Ark. 235, 98 S. W. 952; Garrett v. Mendenhall, Executor, 209 Ark. 898, 192 S. W. 2d 972.
It is next urged by appellants that, in order to be valid, the trust created in Item 26 must be a charitable trust, and that the trust provided for in said item was not such because the language of the will did not exclude the possibility of property of the testatrix going to a corporation engaged in business for profit. Conceding the correctness of appellants’ position as to the necessity of exclusion of profit making institutions, we think that a fair interpretation authorizes the holding that such an exclusion is found in the language of the will. The testatrix provided that the property should be received by 4 4 some foundation, or organization [to be selected by the trustees] whose purpose it is to discover a cure for rheumatism.” And she further directed that if the trustees could not agree upon a suitable recipient under this clause, they might donate the fund “to any charitable institution or institutions, foundation or foundations, organization or organizations, upon which they may all agree. ’ ’
In construing a will we may not look to a clause or a sentence thereof standing alone, but we should 4 4 ascertain the intention of the testator from the language used as it appears from consideration of the entire instrument.” Booe v. Vinson, 104 Ark. 439, 149 S. W. 524. When all the language of this portion of the will is given consideration and effect we think it clearly appears that the testatrix was not providing for any institution, other than a charitable one, to become recipient of her gift.
The lower court therefore properly sustained appellee’s demurrer and dismissed appellants’ complaint.
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McHaney, Justice.
The sole question for decision in this case is the constitutionality of § 2 of Act 135 of 1947, entitled “An Act to Increase Exemptions Allowed Under Income Tax Laws of Arkansas; to Amend Certain Other Provisions of the Income Tax Law of 1929; to Provide Additional Revenues for Public Services; to Declare an Emergency and for Other Purposes.”
Section 2 of said act amends subsection (c) of § 13 of Art. Ill of Act 118 of 1929, commonly referred to as the Income Tax Act of 1929, by adding a proviso “that the deductions herein allowed for taxes on income paid or accrued within the income year and imposed by the authority of the United States shall not exceed an amount equivalent to fifty per cent (50%) of such Federal income tax so paid or accrued.” It was made to apply retroactively to incomes for the year 1946 and prospectively to subsequent years. Section 8 of said Act 135 provides for severability of its provisions, in the event of the invalidity of any part thereof.
Appellee brought the action against appellant to enjoin the enforcement of said § 2, alleging its invalidity, and that it was entitled to deduct the whole federal income tax paid by it in its fiscal year instead of one-half thereof as provided by the act and determined by appellant.
A general demurrer was interposed by appellant to the complaint, which was overruled, and he, electing to stand on his demurrer, was enjoined from collecting any tax from appellee by. virtue of said § 2 of said act. This appeal followed.
In Sims v. Ahrens, 167 Ark. 557, 271 S. W. 720, it was held that a gross income tax law was void, being “in effect a tax upon interstate commerce, and as operating in a discriminatory and ai'bitrary manner.” Syllabus 1. It was also there held that “it is within the discretion of the Legislature to pass a properly classified net income tax law.” That decision was rendered in 1925, and in 3929 the Legislature passed Act 118, which this Court sustained, as being a properly classified income tax law, in Stanley v. Gates, 179 Ark. 886, 19 S. W. 2d 3000,
. Act 118 of, 1929, in § 13, Art. Ill, provided for the allowance of a number of deductions ‘ ‘ in computing net income,” one of them (c), being taxes paid or accrued within the income year, imposed by authority of the United States — or of any State — ; “except inheritance taxes, and except income taxes imposed by this Act and taxes assessed for local benefits, of a kind tending to increase the value of the property assessed.”
“Net income” is defined in § 7 of Art. Ill as “the gross income of a taxpayer less the deductions allowed by this Act.” What this Court would have done in Stanley v. Gates, supra, had the original act then under consideration allowed as a deduction only one-half of the taxes imposed by authority of the United States, we do not know, but it seems likely that the whole act would not have been declared void because thereof. Federal income taxes at that time were small as compared to what they are now, and what then would have been a very small matter now becomes a matter of much substance. But the language of the late Chief Justice Hart in that case indicates that the decision would have been the same had the federal tax deduction been one-half, or even none at all, for he there said: “While there must be no discrimination in favor of one as against another of the same class, the States may make exemptions, levy different rates upon different classes, and make sibch deductions as they choose, so long as they obey their own Constitutions.' Citing State v. Frear, 148 Wis. 456, 134 N. W. 673, 135 N. W. 164, L. R. A., 1915B, 569, Ann. Cas. 1913A, 1147, and State v. Johnson, 170 Wis 218, 175 N. W. 589, 7 A. L. R. 1617. ’ ’ The holding in that case was by a divided Court, the writer of this opinion voting with the majority in that. The minority dissented on the ground that the act was discriminatory as between individuals and corporations. If, as the majority held, “The States may make exemptions, levy different rates upon different classes, and make such deductions as they choose,” then it seems necessarily to follow that the limitation as to the deduction now under consideration is a valid exercise of legislative power. Perhaps the. language stressed in the above quotation is a little too broad, since it was conceded in oral argument, and we think correctly, that the ordinary and necessary expenses of doing business, including salaries, rentals, interest, losses, bad debts, etc., as set out in § 13 of Act 118 of 1929, must be deducted in order to determine net income, and that the Legislature could not exclude such items as deductions from gross income. But the matter of taxes paid to the United States and to State, stands on a different basis. These taxes represent the ' taxpayer’s share of the cost of government and are a first charge on his income. They are levied and paid for the protection of his "right to engage in business — his right to earn an income- — and their deduction from what might be called gross net income, or net income for purposes of taxation, do not render the act one upon gross income. We think the allowance or disallowance of taxes as a deduction from net income for tax 2ourposes, rests entirely in the legislative discretion, and exists by legislative grace, just as do- exemptions.
Decisions of the courts of many states construing income tax laws of such states are cited by the respective' 2Darties in their excellent briefs, including those filed by the friends of the Court, but we do not cite them or comment in detail upon them. Some of the states have express constitutional provisions for the enactment of income tax laws, while others, such as Arkansas, do not. Ours was enacted under the well settled rule that such a law is not prohibited by our Constitution, and that the Legislature may enact any law that is not' expressly or by necessary implication prohibited by the Constitution. For instance, the State of MississÍ2opi has an income tax law, not founded on express constitutional sanction that excludes from deduction all income taxes, while ours, as amended, excludes all State income taxes and only one-half the federal income taxes. In Tri-State Transit Co. v. Tax Commission, 196 Miss. 23, 16 So. 2d 35, and on rehearing at page 782 of the Southern citation, it was held that, the exclusion by the statute of all income taxes as a deduction, included federal excess profits taxes, since such excess profits taxes were income taxes within the meaning of the act.
Act 118 of 1929 specifically excludes from deduction inheritance taxes, taxes on assessed benefits and income taxes imposed by said act, and no one has ever claimed that such deductions render our act one upon gross income and, therefore, invalid. It was held in State ex rel. v. Wisconsin Tax Commission, 185 Wis. 525, 201 N. W. 764, that: “It is well settled that in determining what deductions may be made in respect to inheritance and income taxes, the Legislature has very broad powers, and that ‘income’ for the purposes of taxation is not necessarily identical with ‘income’ for other purposes.”
Appellee’s counsel, as well as counsel amici curiae, base their argument for affirmance of the decree upon the holdings of this Court in Sims v. Ahrens and Stanley v. Gates, supra, that a gross income tax could not be levied and that only a properly classified net income tax act could be sustained under our Constitution, and that unless a deduction is allowed for the whole of the federal income tax paid, the act to that extent imposes a tax on gross income and is void.
We cannot agree with this contention and the quotation above from Stanley v. Gates rather strongly contradicts the contention. While, of course, it is true that net income, to the extent that it includes federal income taxes, is not in an accounting sense net income because, to that extent, it is something the taxpayer cannot call his own and spend as he pleases, but for purposes of taxation it is net income. A large portion of our own salaries is never received by us, because withheld at the source, which is also true of all other salaried taxpayers; but can we say that it is not income because we never had it in our hands? We report it as income and we take credit for the amount withheld in our federal reports. But we are permitted to deduct only one-lialf of such amount in our returns to the State, only because Act 135 of 1947 allows it to be done. As already pointed out this class of deductions, just as are exemptions, is a matter for Igeislative determination and not one for the courts.
The decree is, accordingly, reversed and the cause dismissed.
Robins, J., dissents. | [
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Robins, J.
One of the appellants, Mrs. N. T. Terral, mother of E. S. Terral, deceased, filed in the chancery court a petition against appellee, Mrs. E. S. Terral, his widow and administratrix, alleging that E. S. Terral died intestate on September 10, 1945, leaving him surviving his widow, appellee Mrs. E. S. Terral, and no descendants; that the intestate at his death owned property of the value of $156,000, besides property.of the value of $96,000 held by him and his wife, appellee Mrs. E. S. Terral, as tenants by'the entirety, and United States govern ment bonds of the value of $30,000 issued to himself and others. It was further alleged that appellee, as administratrix of her deceased husband’s óslate, was about to pay all .slate and federal death laxes out of the share of said appellant in her deceased son’s estate, without paying from said appellee’s share the proportionate share due from her.
The petition concluded with a prayer that the court order said appellee as such administratrix to pay said' death taxes and to charge same proportionately to the entire estate left by E. S. Terral, deceased, and that said appellee be enjoined from paying over to herself as widow any part of the property of said estate until said death taxes were paid.
By an amendment to the petition it was alleged by appellant that said appellee was claiming in her own right, as surviving tenant by the entirety, certain described real estate, owned by the Tillar Mercantile Company, a partnership, in which E. S. Terral, deceased, owned an undivided 25/24-Oth interest; that on November 26, 1927, said E. S. Terra! executed a deed, by which he attempted to convey this undivided interest to R. H. Wolfe, and on November 30, 1927, Wolfe and his wife executed a deed by which they attempted to convey this interest (25/24-Oth share in said partnership lands) to E. S. Terral and Carr M. Terral (appellee), husband and wife, as tenants by the entirety with right of survivor-ship; but it was charged hi this amendment that both said deeds were of no effect because the said E. S. Terral could not convey his interest in specific partnership property so as to create an estate by the entirety. It was also alleged in this amendment that prior to his death said E. S. Terral had taken numerous promissory notes, secured by real estate, which notes were made payable to Edward S. Terral or Mrs. Carr M. Terral (appellee), and others were made payable to Edward S. Terral, and that appellee was claiming said notes as her own, and that she should be required to account therefor, as well as certain bonds payable to her and her husband, in her administration. It was prayed that the deeds to the part nership lands be declared to be of no effect and that the interest, of E. S. Terral therein be declared to be a part of his estate, and that appellee be enjoined from disposing of any of the property except for purposes of administration of the estate.
Appellants, Troy Terral, Eula Terral, Mrs. J. F. Jones, Ellen Grammil and Nettie Terral, filed an intervention in which they alleged that they, as the only surviving brother and sisters of the said E. S. Terral, deceased, with their mother, appellant Mrs. N. T, Terral, were the only heirs at law of said E. S. Terral, deceased; and they adopted the pleadings filed by their mother and asked'the same relief.
Appellee, in her answer, admitted the relationship of the parties, as set forth in the petition and intervention. She alleged that she was entitled to have set aside to her as her dower one-half in value of all property owned by E. S. Terral at his death, exclusive of the property owned by her and her husband as tenants by the entirety and the government bonds; that it was necessary to consider the value of all property in determining the amount due for federal and 'state estate taxes, but that she, as administratrix, proposed to pay said taxes out of property other than the property held as an estate by the entirety and the United States bonds and property other than the property belonging to her as her dower and as her allowance under §§ 80, 82, 84, and 86, Pope’s Digest, of'the laws qf Arkansas; and that none of said share and property belonging to her as widow and as surviving tenant by the entirety and the United States government bonds was chargeable with any part of said federal and state estate taxes. Appellee asked the court to direct her to pay the said estate taxes out of the assets of the estate of E. S. Terral, deceased, after assignment of dower and statutory allowances to her, exclusive of property held by appellee as surviving tenant by the entirety, and of the United States bonds; that the court make said assignment and also adjudicate whether she as administratrix should assert title to any of the said property claimed by her as surviving tenant by the entirety.
Appellee also filed an intervention, separate answer, and cross complaint and a supplemental answer and cross complaint in which she asked that her title to described personal property (including certain promissory notes payable to her and her deceased husband and some payable only to her husband, but all secured by real estate mortgages to her and her husband) be confirmed, and that the title to the interest in the partnership real estate be confirmed in her.
None of the parties has raised any question below or here as to the jurisdiction of the chancery court to adjudicate all phases of this controversy.
The lower court decreed:
(1) That such of the promissory notes executed by Mrs. Baradel ánd the Tanners, J. M. Scales and wife, and E. E. Pounders and wife as appeared to be payable only to E. S. Terral should be so reformed as to show E. S. Terral and the appellee as payees, and that said notes, as well as the other notes originally made payable to E. S. Terral and appellee were the sole property of appellee as surviving tenant by the entirety.
(2) That none of the United States bonds described in the pleadings was a part of the estate of E. S. Terral, deceased.
(3) That the deeds executed by Terral and his wife to Wolfe and from Wolfe to Terral and his wife (by, which appellee claimed an estate by the entirety was vested in her husband and herself in the interest of Terral in lands of the Tillar Mercantile Company) were null and void and that the interest of Terral in these partnership lands was a part of the Terral estate.
(4) That no part of the estate (federal or state) taxes was chargeable against or payable from the property belonging to appellee as suiwiving tenant by the entirety or from property belonging to her as dower or as her statutory allowances.
Appellants contend here that those portions of the decree by which reformation of the promissory notes was granted and by which that part of the property going to appellee as dower and for statutory allowances was absolved from liability for estate taxes were erroneous.
Appellee, on her cross appeal, urges that the lower court erred in refusing to award to her as surviving tenant by the entirety the undivided 25/240th interest in the partnership lands.
These questions are presented by this appeal:
1. Should a proportionate part of federal and state estate taxes be charged to a surviving tenant .by the entirety, and to surviving payee of government bonds, and to a widow on her dower and statutory allowances ?
2. Was the evidence sufficient to authorize the reformation of the promissory notes made payable to E. S. Terral alone so as to make them payable to E. S. Terral and appellee?
3. Did the deed from Terral and wife to Wolfe and the deed from Wolfe and wife to Terral and appellee create an estate by the entirety, under which, at Terral’s death, the entire interest in the partnership lands vested in appellee?
I.
It has been frequently held by the Supreme Court of the United States that the federal government is not com cerned as to who shall finally pay the federal estate tax; and no federal statute attempts to regulate the incidence of such tax. The most recent ruling on this subject was in the case of Riggs v. Del Drago, 317 U. S. 95, 63 S. Ct. 109, 87 L. Ed. 106, 142 A. L. R. 1131, in which the court said: “We are of the opinion that Congress intended that the federal estate tax should be paid out of the estate as a whole and that the applicable state law as to the devolution of property at death should govern the distribution of the remainder and the ultimate impact of the federal tax. ’ ’
In the case of Thompson v. Union & Mercantile Trust Company, 164 Ark. 411, 262 S. W. 324, 37 A. L. R. 536, conformably with the above rule, we held that the federal statute did not fix the ultimate source of payment of the federal estate tax, and that since all claims of every sort against an estate are ordinarily paid out of the part of the estate to be distributed to the heirs, none of this tax was payable out of the widow’s dower. Our holding on this question was in accord with that in a majority of the states where the same question had arisen, though there are decisions to the contrary. Billings v. People, 189 Ill. 472, 59 N. E. 798, 59 L. R. A. 807; Corporation Commission v. Dunn, 174 N. C. 679, 94 S. E. 481, L. R. A. 1918F, 498, Ann. Cas. 1918D, 1086.
Appellants, to support their contention that appellee’s dower and interest as surviving tenant of an' estate by the entirety is liable for a proportionate share of the state and federal estate taxes, urge that the rule announced in the Thompson case, supra, has been abrogated by Act No. 99 of the General Assembly of Arkansas, approved February 24,1943, which was as follows :
“An Act to Determine the Incidence of State and' Federal Estate Taxation.
“Be It Enacted by the General Assembly of the State of Arkansas:
“Section 1. Except as otherwise directed by the decedent’s will, the burden of any State and Federal Estate, Death and Inheritance Taxes paid by the executor or administrator shall be spread proportionately among the distributees, and/or beneficiaries of the estate, so that each shall bear his proportionate part of said burden.
“Section 2. That all Acts and parts of Acts in conflict herewith be, and the same are hereby repealed, and this Act shall take effect and be in force from and after its passage.”
Appellee argues that this statute does not control here because a widow of an intestate is not a “distributee”, or a. “beneficiary” of an estate, and hence her part of the property of the intestate is not affected by the enactment requiring that estate taxes shall be “spread proportionately among the distributees, and/or beneficiaries of the estate.”
It is necessary, therefore, that we determine what persons the Legislature intended to include in the terms “distributees and/or beneficiaries of the estate.” If these words refer only to the heirs or legatees or devisees of a decedent, and not to a surviving spouse, appellee’s contention that her portion of the estate is exempt must be sustained. On the other hand, if the Legislature meant to include a surviving spouse when it used these words, then the lower court erred in upholding appellee’s claim to exemption.
One rule of construction, often relied on by the courts in deciding the meaning of words in a statute, is that courts will consider the usual and ordinary interpretation of the words, and will also consider them in reference to the subject matter in the minds of the legislators.
Now this court, in the Thompson case, supra, decided in 1924, had determined that a widow’s dower was exempt from federal estate taxes; and the Supreme Court of the United States had, about sixty days before the convening of the 1943 General Assembly, handed down its opinion in the case of Riggs v. Giovanni Del Drago, supra, in which the power of the states to fix the incidence of the federal estate tax was emphasized and in which the validity of a New York statute, which, among other things, required a widow to bear her proportionate share of estate taxes, was upheld.
A Legislature is presumed, in enacting a statute, to have had in mind court decisions pertaining to the subject legislated on and to have acted with reference thereto. Merchants’ Transfer & Warehouse Co. v. Gates, 180 Ark. 96, 21 S. W. 2d 406; Texarkana Special School District v. Consolidated Special School District No. 2, 185 Ark. 213, 46 S. W. 2d 631.
If the Legislature had intended to continue in force the rqle laid down in the Thompson case, supra, it is rea sonable to assume that in providing for distributing the impact of federal and state estate taxes, apt and unmistakable language, to exclude from payment of such taxes tlie property received by the surviving spouse of the intestate, would have been used in the Act. No such language was used, but the Act provides for an equal and proportionate payment of estate taxes from the shares of all1‘ distributees ’ ’ and ‘ ‘ beneficiaries. ’ ’ While it may be said that, in a technical sense, neither the word “distributee” nor the word “beneficiary” refers to a surviving spouse of the intestate, yet, in the popular' conception, such a spouse does receive a beneficial share in the distribution of propeiW that a decedent possesses at his or her death; and, in view of the situation with which the Legislature was dealing when it enacted this law, we conclude that it used these words in their nontechnical sense as referring to all persons, including a surviving spouse and a surviving joint tenant, in whom the law might vest any part of the property of the intestate. A somewhat similar conclusion as to the meaning of the word “distributee” was reached by the Kentucky Court of Appeals in the case of Allen v. Foth, 210 Ky. 343, 275 S. W. 804.
The lower court therefore erred in decreeing that the proportionate share of the federal and state estate taxes should not be deducted from the property belonging to the widow as dower and as surviving tenant of the estate by the entirety.
II.
The evidence abundantly supports the finding of the lower court that it was the intention of all parties to the promissory notes (described in the decree) which showed E. S. Terral alone as payee therein that the notes should be payable to E. S. Terral and the appellee, his wife. These notes were in each case a part of a series, the other notes of which were made payable to E. S. Terral and appellee, and all the notes of each series were secured by a real estate mortgage executed by the maker to both E. S. Terral and appellee. The money loaned to the makers of these notes -Wus taken from a bank account which was subject to the check of either E. S. Terral or appellee and some funds of he'rs seem to have been placed in this account. The testimony, as to some of the notes, of the scrivener who prepared them, and as to others, of the makers, as well as other relevant testimony, all point unerringly to the fact that Mr. Terral and the makers of these notes intended that they should be so drawn as to include appellee as a payee, and that the omission of her name resulted from a clerical error. This testimony was not contradicted and it measured up well to the standard of proof required for reformation of written instruments.
III.
E. S. Terral, deceased, was in 1927 a partner in Tillar Mercantile Company, a partnership, which owned many tracts of land in Drew and Desha counties. In that year he executed a deed conveying to R. H. Wolfe his home- and several other small tracts of land owned by him, and also “an interest equal to 25/240ths” (the interest owned by him in the partnership) in real estate of the Tillar Mercantile Company and described in detail in the deed. Three days later R. H. Wolfe and his wife executed a deed by which they conveyed all of this property, by the same description as in the conveyance to Wolfe, to “E. S. Terral and Mrs. Carr M. Terral, husband and wife, as tenants by the entirety with survivorship. ’ ’
These partnership lands, with the exception of some tracts which were sold by the partnership, remained such until' the death of E. S. Terral, after which the partnership business has been liquidated and the proceeds placed in the hands of a trustee pending the outcome of this suit. It was shown that in 1927, and at all times afterward, the Tillar Mercantile Company was solvent. At no time from 1927 to the death of E. S. Terral were any of the lands of this firm needed to discharge its debts, but at all times there has been on hand partnership p.ersonal property sufficient to pay all partnership obligations.
It is contended by appellants that the interest of a partner in lands of the partnership is not such as might be so conveyed as to create the estate by the entirety.
It is well settled, of course, that a partner does not as an individual own any specific partnership property and has a right only to a certain share in the assets after payment of the partnership debts; but, nevertheless, this interest “is property and it is susceptible of being seized under legal process, as well as of being sold and conveyed, . . . ” 47 C. J., p. 781.
“At common law, on a conveyance being made to partners, they normally become vested with the legal title as joint owners or tenants in common.” 40 Am. Jur. 193.
“Property which has been conveyed to a firm, or to partners in trust for a firm, is held by them as tenants in common, or, according to some authorities, at common law as joint tenants, as where legal title vests in individual partners through a conveyance to the firm by name, no partner being able to convey more than his undivided interest therein. ” 47 C. J. 758.
“A purchaser [of the interest of a partner] becomes a. tenant in common with the other partners, subject to the equity of the partners and creditors to apply the firm property to the firm obligations.” 47 C. J. 799. Keith v. Ham, 89 Ala. 590, 7 So. 234; McCauley v. Fulton, 44 Cal. 355.
We have been referred to no decision where it is held that the interest of a partner in partnership lands may not be so conveyed as to create an estate by the entirety therein.
There is good authority for the rule that, at common law, an equitable estate might be' converted into an estate by the entirety.
The United States Circuit Court of Appeals for the Ninth Circuit, in the case of Eilmonds v. Commissioner of Revenue, 90 F. 2d 14, held that a joint tenancy might be created in the equitable title to property, citing as upholding the rule these English eases: Ashton v. Smallman, 2 Vern. 556, 23 Eng. Rep. 960; Bustard v. Saunders, 7 Beav. 92, 49 Eng. Rep. 998: Kenworthy v. Ward, 11 Hare 196, 68 Eng. Rep. 766; The Earl of Sussex v. Temple, 1 Ld. Raym. 310, 91 Eng. Rep. 1102.
So, whether Terral ’s interest in the partnership lands be held as having been that of a tenant in common or whether it be held that, as a partner, he had only an equitable estate therein, subject to the rights of creditors, it appears that ho had such an interest therein as to authorize him to create the estate by the entirety, as it is admitted that he purposed to do.
Since both of the conveyances, from Terral and wife to Wolfe and from Wolfe and wife to Terral and wife, were executed before the passage of our Uniform Partnership Act (Act 263 of the General Assembly, approved March 26,1941) it is unnecessary for us to consider what effect, if any, the provisions of this Act would have on these transactions if this law had been in force when they occurred.
It follows from what has been said that so much of the decree as grants appellee’s prayer for reformation of the promissory notes is affirmed; that so much of the decree as orders that property vested in appellee for her dower allowances, and as surviving tenant of an estate by the entirety should not be charged with a proportionate share of federal and state estate taxes is reversed with directions to order that appellee pay said proportionate share of said taxes out of her said dower, allowances and interest as such survivorand that so much of the decree as denies to appellee the entire ownership of the 25/240th interest in the partnership lands described in the 1927 conveyances be reversed with directions to enter decree vesting said interest in appellee; and upon remand the lower court will make appropriate orders for having appellee’s dower and allowances set aside to her; and appellants will pay one-half of all costs, and appellee' will pay one-half thereof. | [
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Minor W. Millwee, Justice.
H. L. Abercrombie was plaintiff in the chancery court in a suit to enjoin the defendant, Ed. Dodson, from taking sand and gravel from certain lands.
Plaintiff alleged in his complaint that he was the owner of the sand and gravel, having reserved same in a deed which he executed to Mike Richards in October, 1944; that defendant had entered upon the lands and was taking sand and gravel thereform without the consent of plaintiff; and that defendant is insolvent and plaintiff had no adequate remedy at law.
Mike Richards filed an intervention in the suit alleging that at the time plaintiff executed the deed to him it liad been specifically agreed by the parties that Richards would acquire title to the lands in fee simple, free from any reservation, and that upon acquiring said title, he would convey the sand and gravel to defendant for a valuable consideration which had already been paid to plaintiff and intervener; that intervener had no knowledge of the reservation contained in the deed until shortly before the suit was filed; that failure of plaintiff to deed the lands in fee simple as agreed constituted a breach of contract and entitled intervener to damages and reformation of the deed to conform to the agreement of the parties. !
Defendant, Ed Dodson, filed an answer containing the following allegations: “He admits and adopts the allegations set forth in the intervention of the intervener, Mike Richards. For his answer to the complaint of the plaintiff, he denies each and every material allegation of plaintiff, and he alleges that as .to the gravel in, on and under the lands described in the complaint, he is the absolute owner of same by reason of a contract of agreement between the plaintiff, H. L. Abercrombie and the intervener, Mike Richards, wherein for a valuable consideration they agreed to convey to him said gravel; that up until the filing of this intervention he has used said gravel according to said agreement and should be permitted to continue to do so; that the plaintiff and the intervener should be required by mandatory injunction on the order of this ' Court to execute to him by proper legal instrument title to all of the gravel in, on and under said lands described in the complaint.”
The plaintiff filed a demurrer to the intervention of Richards and a separate motion to strike that part of the answer of Dodson above quoted. The trial court evidently treated the motion to strike as a demurrer which was sustained to both the answer and intervention, with leave to amend within 10 days. Whereupon a joint amendment to the answer and intervention was filed by the defendant and intervener containing the following-allegations :
“They, and each of them, reaffirm each allegation set forth in their answer and intervention. They, and each of them, state that the title in the deed referred to in the pleadings herein, wherein the title to the gravel as described in the pleadings, was retained in said deed by reason of mutual mistake and misunderstanding between the parties plaintiff, defendant, and intervener, and by reason of fraud practiced upon the defendant and intervener by the plaintiff. The fraud practiced by the plaintiff upon defendant and intervener consists in the plaintiff intentionally causing the retention clause of the gravel to be placed in the deed and later not advising the intervener and defendant that such retention clause had been placed therein, after the plaintiff had agreed absolutely and reaffirmed such agreement several times with the parties defendant and intervener that there would be a conveyance of the gravel along with the land and that no retaining clause to any title to any gravel on the land would be retained in the plaintiff; that the parties defendant and intervener relied upon such representations made to them, and each of them, by the plaintiff. The parties defendant and intervener allege, that when and after the deed was prepared they relied upon plaintiff to have said deed prepared according to his agreement with them.”
The demurrer of plaintiff to the answer and intervention, as amended, was sustained by the trial court. While the record recites that the “cause of action” was ordered dismissed when the defendant and intervener declined to plead further, this is apparently the result of a clerical error in drafting the order of the court. None of the parties has raised the issue here and, since the court proceeded to enjoin the defendant according to the prayer of the complaint, we will assume that the answer and intervention were dismissed instead of the cause of action. The defendant and intervener have appealed and the question for consideration is whether the allegations of the answer and intervention, as amended, are sufficient to constitute a defense to the complaint of the plaintiff.
It is well settled that in testing the sufficiency of a pleading by general demurrer every reasonable intendment should be indulged to support it. If the facts stated in the pleadings, together with every reasonable inference therefrom constitute a cause of action, or a valid defense, then a demurrer should be overruled. Ark. Life Ins. Co. v. Am. Nat. Ins. Co., 110 Ark. 130, 161 S. W. 136; Neal v. Parker, 200 Ark. 10, 139 S. W. 2d 41.
To support the action of the chancellor in sustaining the demurrer to the answer and intervention, plaintiff invokes the rule repeatedly recognized by this court to the effect that one who signs a contract, after opportunity to examine it, cannot be heard to say that he did not know what it contained. Mitchell Mfg. Co. v. Kempner, 84 Ark. 349, 105 S. W. 880; Pittsburgh Steel Co. v. Wood, 109 Ark. 537, 160 S. W. 519; Stone v. Special School Dist., 119 Ark. 553, 178 S. W. 399. In these cases there was no evidence tending to show that the signature of one of the parties to the contract was procured through fraud, or inequitable conduct, upon the part of the other party to the contract. Such cases are to be distinguished from a case where-the fraud or inequitable conduct of one of the parties causes the- other party to sign the contract under a mistake of fact, without reading the contract. Galloway v. Russ, 175 Ark. 659, 300 S. W. 390.
In Massachusetts Mutual Life Ins. Co. v. Brun, 187 Ark. 790, 62 S. W. 2d 961, it is said: “There is a well-recognized exception to the-' rule that a party is bound to know the contents of a paper which he signs; and that is where one’ party procures another to sign a writing 'by fraudulently representing that it contains the stipulation agreed upon, when, in fact, it does not, and where the party signing relies on the faith of these representations, and is thereby induced' to omit the reading of the writing which he signs. It is well settled that a written contract which one part}*- induced another to execute by false representations as to its contents is not enforceable, and the party so defrauded is not precluded from contesting the validity of the contract by the fact that he failed to read it before attaching his signature. Tanton v. Marlin, 80 Kan. 22, 101 Pac. 461; Willey v. Clements, 146 Cal. 91, 79 Pac. 850.” The same rule is applicable where a written instrument is accepted otherwise than by signing it. 12 Am. Jur., Contracts, § 137.
In Nicholson v. Hayes, 166 Ark. 112, 265 S. W. 640, the court said: “The rule in this State is that, to justify a reformation of a written instrument, there must have been a mutual mistake, or a mistake on the part of one party coupled with fraud on the part of the other, and that, if parol evidence is relied upon to establish the ground of reformation, it must be clear, unequivocal and decisive. Welch v. Welch, 132 Ark. 227, 200 S. W. 139, and Cain v. Collier, 135 Ark. 293, 205 S. W. 651.”
We agree with plaintiff’s contention that the allegations of the answer and intervention are insufficient to support reformation of the deed on the ground of mutual mistake inasmuch as it is alleged that the plaintiff intentionally had the reservation placed in the deed to Richards. Under the liberal construction which we are required to give pleadings, however, we are of the opinion that the intervention and answer stated facts sufficient to constitute a cause of action for reformation of the deed on the ground of fraud or inequitable conduct of plaintiff coupled with a mistake on the part of the intervener. If the deed was tendered to and accepted by intervener without any misrepresentation of its contents by the plaintiff, there would be no ground for reformation. If, however, a failure of intervener to read the deed was induced by the fraudulent representations of the plaintiff and the deed was accepted under a mistake arising from circumstances amounting to fraud or inequitable conduct on the part of plaintiff, then a cause of action for reformation would lie. While the allegation of the answer and intervention charging fraud on the part of plaintiff may not be aptly stated, it is sufficient to constitute a defense when every reasonable intendment is indulged to support it.
It follows that the trial court erred in sustaining the demurrer to the answer and intervention. The decree is accordingly reversed and the cause remanded with directions to overrule the demurrer, and for such further proceedings as may be necessary. | [
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Holt, J.
This action involves an election contest and was brought under the provisions of our election laws relating thereto, § 4833 et seq., Pope’s Digest, Act January 23, 1875, p. 32.
In an election for the office of sheriff of Madison county held November 5, 1946, appellant, Berry Denney, was declared elected, later qualified and assumed the office. His opponent, John B. Dotson, Jr., on May 5, 1947, within six months from the date of said election, filed in the Madison county court a complaint for contest in which he alleged that he had received the majority of the legal votes cast and should be declared elected.
Proper notice was given contestee on May 5, 1947. Thereafter, the contestee filed motion in the county court to quash the notice and also filed a demurrer to the complaint, both of which were overruled and the case was set for trial. Thereupon, the contestee, Denney, filed petition for Writ of Prohibition which was heard and denied by the Madison circuit court, Judge J. Sam Wood, presiding on exchange. This appeal followed.
Appellant says: “The sole question to be determined in this case is whether or not the contestant proceeded with the contest in the county court at a time arid in a manner to give the county court jurisdiction to hear and determine the contest.”
Section 4833, supra, provides:: “Venue. If the election of any Supreme Judge or Commissioner of State Lands be contested, it shall be before the circuit court of Pulaski county. If the election of any circuit judge, prosecuting attorney, ' chancellor, clerk of the Pulaski chancery court, a judge of the county and probate court, be contested, it shall be before the circuit court of the county where the defendant or contestee resides, or the county where the contestant resides and the contestee may be found. Act January 23,1875, § 67, p. 91:
“Section 4834. Limitation. All actions to contest the election of Supreme Judges shall be commenced within one year after the election or commissioning of said judges, and actions for contesting the elections of all other officers herein mentioned within six months after they are elected or commissioned.
“Section 4837. Jurisdiction. When the election of any clerk of the circuit court, sheriff, coroner, county surveyor, county treasurer, county assessor, justice of the peace, constable, or any other county or township officer, the contest of which is not otherwise provided for, shall be contested, it shall be before the county court, and the person contesting any such election shall give the opposite party notice in writing ten days before the term of the court at which such election shall be contested, specifying the grounds on which he intends to rely, and, if any objections be made to the qualification of voters, the names of such voters, with the objections shall be stated in the notice, and the parties shall be allowed process for witnesses.
“Section 4838. Evidence — how taken. Either party may, on giving notice thereof to the other, take depositions to be read in evidence on the trial, and the court shall, at the first term (if fifteen days shall have elapsed after such election, and if less than fifteen, then at the second term)- in a summary way, determine the same according to evidence.”
The venue for contest, and the court in which such contest must be filed, is thus definitely fixed and a contest over the office for sheriff “shall be before the county court.”
As we interpret the sections of the statute, supra, all relate to matters of procedure except § 4834, which is a statute of limitation and definitely fixed the time within which a contest may be prosecuted for any office above mentioned to a period of six months with the single exception that in “all actions to contest the election of Supreme Judges shall be commenced within one year after the election or commissioning of said judges. ’ ’
Since the office of sheriff is among those above mentioned, the limitation for a contest is a period of six months from the date of the election, which date in the present case was November 5, 1946.
The rule announced in Alexander v. Stuckey, 159 Ark. 692, 253 S. W. 9, applies with equal force here. That case involved a stock law election contest and it was there held: (Headnote 3) “Animals — Contest of Stock Law Election — Limitation.—Under Spec. Acts 1921, No. 4, § 2, providing that a stock law election under that act shall be held under the general election laws so far as applicable, an action to contest a stock law election is barred by the six months’ limitation of the general election laws contained in Crawford & Moses’ Dig., § 3847 (now § 4834, Pope’s Digest),” and in the body of the opinion, the court, speaking through Mr. Justice Wood, said: “It is provided in § 2 of the Act that: ‘said election shall be held under the general election laws of the State, so far as they are applicable. ’ In the general provisions of our election laws relating to contests, chapter 54, Crawford & Moses ’ Digest, is § 3847, as follows: ‘All actions to contest the election of Supreme Judges shall be commenced within one year after the election or commissioning of said judges, and actions for contesting the elections of all other officers herein mentioned within six months after they are elected or commissioned. ’ The provisions of the act under review bringing the election under the control of the general election laws of the State, so far as they are applicable, subjects the election, which the appellants challenge in their complaint, to the above limitation under the general election laws. . . . As we have seen by the section above quoted, the general election laws provide for a limitation upon the time when election contests shall be commenced, and that limitation is six months for all other officers except the Judges of the Supreme Court.”
The recent Act 406 of the acts of 1947 has no application here. That act took effect March 28, 1947. It makes no provision for time in which to file an action for the protection of rights which have already accrued, as in the present case. It is a statute of limitation and prospective in scope. Section 1 provides that “all actions to contest the election of a person to any county, city or township office shall be commenced within twenty (20) days after the General Election at which any such person was elected. Section 2 repeals all laws in conflict, and Section 3 is an emergency clause.
To give effect to that act in the present case would cut off Dotson’s right to contest for the reason that when the act became effective, the twenty days limitation provided within which to file a contest, had already run, and Dotson would be denied all rights to contest.
In the recent case of Schuman v. Walthour, 204 Ark. 634, 163 S. W. 2d 517, we said: “An existing right of action cannot be taken away by legislation shortening the period of limitation to a time which had already run; it is not within the power of the legislature to cut off an existing remedy entirely, since this would amount to a denial of justice. Consequently, it is firmly established that when a new limitation is made to apply to existing rights or causes of action, a reasonable time must be allowed before it takes effect in which such rights may be asserted or in which suit may be brought on such causes of action, and that a limitation statute is void if the period allowed is unreasonably short.”
Finding no error, the judgment is affirmed. | [
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Smith, J.
It is sought in this case to partition a homestead. The parties in interest are two brothers, M. A. and H. B. Henderson, and Carrie M. Henderson, their mother. The suit was filed in the name of Carrie M. Henderson, the mother, and M. A., one of the sons, against H. B. Henderson, the other son. An accounting for and a division of certain money and personal property was also prayed, but that division has been made and that question has passed out of the case. The complaint alleged that the brothers own jointly a certain 30-acre tract of land on which the mother has resided for many years, and two adjoining 40-acre tracts of land, all of which comprise and are a part of their mother’s homestead, the father of the two sons having died many years ago.
It was alleged that the mother has a dower and homestead interest in the real estate, and that ‘ ‘ she consents to the bringing of this suit for partition and asks that her dower in the real estate be protected.” It was alleged that the real estate is not divisible in kind .and it might be necessary to sell it and divide the proceeds of the sale. It was further alleged that- the mother ‘ ‘ is in the actual possession of the real estate by way of homestead and dower.”
It was prayed that the dower interest of the mother be protected and “that the property, both real estate and personal property, be divided as to value, that a master be appointed to state the account between the brothers, and on the coming in of the master’s report, a decree'be rendered dividing the property as the interest of the parties máy appear, according to the finding of the master, that the interests of the different parties be vested in them, and that the defendant, H. B. Henderson, be enjoined and restrained from interfering with the property and from handling and removing said money, and for costs and all other proper relief.”
It will be observed that the complaint contained no prayer for an order to sell the property if a division in kind could not be made, a circumstance of importance in view of the subsequent developments herein recited.
* The master was appointed as prayed, and testimony was heard by him, much of which related to the value of the separate tracts comprising the homestead. The testimony heard by the master was reported by a stenographer, and the master made the transcription of this testimony a part of his report. The first witness whose testimony was heard was Mrs. Henderson, the widow. Much of her testimony related to the manner in which a large sum of money had been accumulated by the brothers in the operation of a dairy on the land in question, as partners. In regard to the partition of the land she testified as follows, putting the testimony in a narrative form.
She wanted to reserve her homestead rights. She wanted the land kept intact as one tract, all of which comprised her homesteád, and she did not want it divided, but wanted it kept the way it now is. If the brothers could agree, and each take his part, she would agree to that, but she did not want it sold while she was living, and she wanted to stay there as long as she lived. She wanted each of her sons to have what was right when she was gone, but she did not want it sold while she lived. On her cross-examination she expressed a willingness to have the interest which each son should have determined, but that she did not want to move off the land and did not intend to do so, and that all she wanted was not to be disturbed in her possession. In view of this testimony it cannot well be said that she consented to any order which would disturb her possession, or that she waived her right of homestead.
The master employed a surveyor, who made a survey and plat .thereof, dividing the land into two tracts and a finding was made as to the owelty which should be paid to equalize the tracts in value. The master’s report contained a description by metes and bounds of the two tracts according to the survey. As to the rights of the widow the master made the following finding and report.
“The Eights oe Carrie M. Henderson.
“The finding is that she be left undisturbed in the residence and premises now occupied by her, and that the recommendation as to M. A. Henderson being-awarded the ownership of the lands of which it is a part, is that such award be subservient to her rights of dower and homestead; that she has rights of dower and home stead in the entire 120 acres involved herein and those rights are paramount to the rights of either or both of her sons, and that the award of possession of the tracts to each of them, be subservient to her rights of dower and homestead.”
.Notwithstanding this report of the master, a decree was rendered February 18, 1946, which recites that the widow and both her sons were parties to the. suit, and that if the land was not susceptible of a division in kind, it should be sold and the proceeds of the sale divided according to the interests of the parties. It was recited and provided that upon the sale of the property, the interest of the widow should be paid her, and the remainder of the proceeds be divided equally between the sons. It was further ordered:
“That upon the sale of said property as. aforesaid and the confirmation of such sale by the court, all the right, title and interest of either and all the parties hereto, including all the dotal and homestead rights of the plaintiff, Carrie M. Henderson, in and to said property, and every part thereof, shall be divested out of them and vested in the purchaser or purchasers. Thereupon, and after execution and delivery of the commissioner’s deed, without further order of this court, this court’s writ of assistance do issue to the sheriff of Pulaski County, directing him to place said property into the custody of the purchaser or purchasers at such sale.”
No appeal was prosecuted from this decree within the time limited by law.
The commissioner appointed to make the sale published notice thereof, but the sale was not had pursuant thereto, and no sale has yet been had. 'After the expiration of the time within which an appeal could have been taken, Mrs. Henderson filed a motion to vacate the decree, and set it aside. In support of this motion Mrs. Henderson offered to introduce testimony to the effect that she had employed no attorney to represent her, and that she consented to the partition only upon the condition that it be effected without disturbing her possession under her right of ownership. Appellee’s at torney offered to introduce testimony that he had been authorized by Mrs. Henderson to file the partition suit.
The court declined to hear and pass upon this testimony, being of the opinion that as the decree had become final, through the failure to appeal therefrom, relief could be afforded only by complying with the provisions of § 8248, Pope’s Digest, which provides that proceedings for vacating or modifying a judgment after the expiration of the term at which it was rendered, shall he by a complaint verified by affidavit setting forth the judgment or order and the grounds to vacate or modify it, and the defense to the action, if the party applying for the vacation of the decree was the defendant, and that on this complaint a summons should issue and he served, and other proceedings be had as in an action by proceedings at law.
In. refusing to hear the offered testimony, and in dismissing the 'motion to vacate the decree the court stated: “You might take this down: The court dismisses the motion on the ground’that final decree was rendered in this cause in February of 1946, and that under the statute the only manner in which the decree can be set aside is by filing a complaint, having a summons issued directed to the other parties in said cause, and have a hearing in court, after they are in court by service of summons.”
The attorney for Mrs. Henderson insisted that the decree was void on its face for the reason that the court lacked the power or jurisdiction to order a 'sale of a homestead for purposes of partition under any circumstances and insisted that he be allowed to file his motion. The court then said: “I can’t keep him from filing it, but if he makes a motion I will have to dismiss it. Let me make this suggestion before you go up on this: You know it will be next fall before it will be passed on and if they hold you have to file a complaint you would have to start over. If you have any doubt, wouldn’t it be simpler to file a complaint, and you can get service in twenty days.”
Mrs. Henderson’s attorney insisted that thé motion recited that Mrs. Henderson had never concurred in the decree of sale, and that there would have to be a finding-on this question of fact, to which insistence the court responded: “There would be a finding if I found you were in court, but I find you are not in court. Tou can file your suit,and get in court'in twenty days. We are not going to have any sale pending the determination of her rights. I don’t see why you don’t, by agreement, dismiss and sell the stuff subject to her homestead and dower.” To which suggestion counsel for appellee responded: “We can’t sell it that way; we have tried it,” and counsel for Mrs. Henderson said: “I don’t- think you can sell that homestead under.any circumstances.” As counsel for Mrs. Henderson stood and now stands on that contention, the court dismissed the motion to vacate the decree and from that order is this appeal.
Counsel for appellant is mistaken in his position that a homestead may not under any circumstances be sold for partition, whether by consent or not. In the case of Hoback v. Hoback, 33 Ark. 399, it was held that when a widow is a party to a suit for partition among the heirs, and fails to claim her homestead right, it is barred by the decree ordering- partition. See, also, Merrill v. Harris, 65 Ark. 355, 46 S. W. 5.38, 41 L. R. A. 714, 67 Am. St. Rep. 929, Tipton ex parte, 123 Ark. 389, 185 S. W. 798. In the case last mentioned it was held that the court was without jurisdiction to sell a homestead when there are unpaid debts. Here there are no minors and no debts, so that it may not be said that the court was without jurisdiction to order a sale for purpose of partition under any circumstances. That order may have been erroneously made, but there was no appeal from it.
The court suggested that appellants’ motion be treated as a proceeding- under § 8248, Pope’s Digest, and that it be heard at a future date, and we think this action was proper. It is true that no summons issued upon this motion as the law requires, but appellee was advised of the motion, was present in court, and resisted the motion and the summons would now serve no useful purpose.
In this view this appeal is premature and the cause will be remanded for a hearing on the motion, which will be designated as a complaint to vacate the judgment, as the court suggested, and if it be found that appellee’s attorney was without authority, to waive her right of homestead, and that she claimed and did not waive her right, the motion should be sustained, and the partition decree set aside as prayed.
In the case of Cherokee Construction Co. v. Harris, 92 Ark. 260, 122 S. W. 485, 135 Am. St. Rep. 177, Judge Fratjenthal said: “The chief purpose of this constitutional provision (in relation to a widow’s homestead) was to secure to the widow and minor children a fixed home during the life of the widow or minority of the children. To secure this object, it was made exempt from sale; so that it cannot be sold to pay the decedent’s debts, and it cannot be partitioned, either in kind or for sale. Trotter v. Trotter, 31 Ark. 145; Kirksey v. Cole, 47 Ark. 504, 1 S. W. 778; McCloy v. Arnett, 47 Ark. 445, 2 S. W. 71; Nichols v. Shearon, 49 Ark. 75, 4 S. W. 167; Stayton v. Halpern, 50 Ark. 329, 7 S. W. 304; Burgett v. Apperson, 52 Ark. 213, 12 S. W. 559; Bond v. Montgomery, 56 Ark. 563, 20 S. W. 525, 35 Am. St. Rep. 119; Sparkman v. Roberts, 61 Ark. 26, 31 S. W. 742.”
It was evidently the view of the court that the motion should be heard when the requirements of the statute as to filing complaint and having service thereon had been met, and he said he would set the hearing “for future trial,” to which suggestion Mrs. Henderson’s attorney said, “All right,” yet he has appealed without having that hearing. It would be unnecessary to file a new complaint as the pleadings and proceedings have already fully developed the issues which the court should hear.
The cause will, therefore, bé remanded for a hearing of this motion, and if it be determined either (1) that Mrs. Henderson did not authorize the attorney to file suit in her name, or (2) even if she did, that she had agreed that a division of the land might be made in the event only her right of homestead was preserved and not destroyed, the decree ordering a sale for the purpose of partition will be vacated as such a decree conld be rendered only with her consent, or by a waiver of her right of homestead.
It would have been more seemly in these sons to have waited until their mother’s death to have asked partition, a right which could be exercised only with their mother’s consent. It is the widow who has the right of' homestead, and this is a right individual and indivisible, which cannot be divided or sold for partition except with her consent, and if it is found that consent w^is withheld, the partition decree should be vacated as prayed.
Appellee insists that authority for the sale of the homestead even without the widow’s consent is found in Act 92 in the Acts of 1941 and in the opinion of the cases of Rockmore v. Pembroke, 208 Ark. 995, 188 S. W. 2d 616, and Overton v. Porterfield, 206 Ark. 784, 177 S. W. 2d 735. This contention may be disposed of by saying that neither of those cases involved the right to partition a homestead. Act 92 of 1941 amended § 10509, Pope’s Digest, which section relates to the partition of oil and gas leases. The case of Overton v. Porterfield, supra, in construing § 10509, held that oil and gas leases owned in joint tenancy, in common, or in coparceny might be sold for development purposes, but we find nothing in Act 92 supra, conferring the right to sell a homestead for purposes of partition. If it did, grave doubt would arise as to its constitutionality for the reason that the right of homestead is conferred by the Constitution and may not be destroyed by a statute authorizing its partition. Here only the widow has the right of homestead, the heirs at law having long since attained their majority, Art. 9, § 6 of the Constitution. | [
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Ed. F. McFaddin, Justice.
By this appeal, the appellants challenge the order of the chancery court of June 30, 1947, which set aside a default decree of February 3, 1947, and gave the original defendant an opportunity to defend the case on its merits.
Appellants (H. B. and F. D. Christopher) are the. sons and only heirs at law»of W. M. Christopher, who died on November 13, 1940. Appellee (Mattie Christopher) is the widow of W. M. Christopher, and the stepmother of appellants. On May 7, 1938, W. M. Christopher executed a deed to Mattie Christopher describing certain lands in Columbia county, Arkansas. The deed was recorded in March, 1941. On December 21,1946, the sons (appellants here) filed complaint in the Columbia Chancery Court against the stepmother (appellee here), seeking to set aside the said deed executed by W. M. Christopher to Mattie Christopher. The complaint alleged that the grantor lacked mental capacity and was under the undue influence of the grantee.
Mattie Christopher lived in Little Rock, and was employed at the Apex Laundry. A deputy sheriff of Pulaski county served the summons on her on January 12, 1947. On May 19, 1947, this same deputy sheriff made an affidavit reading in part as follows:
“ ... I served a summons upon'Mattie Christopher at the Apex Laundry on West Markham Street in Little Rock, Arkansas. At the time of service I was under the impression that the summons had been issued in a divorce suit in Magnolia, Arkansas, and so informed Mattie. She became excited and said she didn’t have any husband and didn’t want anything to do with the summons. She thereupon walked away from me and I was forced to leave the summons on a table there at the Apex Laundry.
“I am certain that Mattie Christopher was ignorant of the nature of the suit which was filed against her and I misinformed her at the time of service because I did not actually know the nature of the suit either.
“Mattie Christopher is a good woman, but is ignorant and excitable. ’ ’
On January 15, 1947 (three days after the service), Mattie Christopher consulted a lawyer in Little Rock, who wrote a letter to an abstracter in Magnolia concerning the title to the lands. The Little Rock lawyer did not see the summons, and did not know of the suit. Mattie Christopher asked him “to find .out something about what it was. ’ ’ On February 3,1947, — and before the Little Rock lawyer learned of the pending litigation — a decree was rendered by the Columbia Chancery Court cancelling the deed from W. M. Christopher to Mattie Christopher. The decree recited default by Mattie Christopher, and the hearing of oral evidence to support the allegations of the complaint. As soon as the Little Rock lawyer learned of the decree, he notified Mattie Christopher; and she promptly employed her present counsel, who — at the same term of the chancery court— filed an unverified motion seeking to vacate the decree. This motion was not acted on by the court before the term ended. Thereafter, and at a subsequent term, the motion was verified, and, with amendments, contains aliegations sufficient to bring it within the purview of §§ 8246 and 8248, Pope’s Digest.
On June 30, 1947, the Columbia Chancery Court heard the motion to vacate the decree of February 3,1947. The hearing was partly on depositions and partly on evidence ore tenus — all of which is before us. At the conclusion of this hearing, the court set aside the decree of February 3,1947, and gave Mattie Christopher 20 days in which to file her answer to the original complaint. This appeal — as first stated herein — is an attack on the order of June 30,1947.
Of course, after the lapse of the term, Mattie Christopher could have the decree set aside (by the procedure here attempted) only by establishing one of the grounds stated in § 8246, Pope’s Digest, and only by verifying her complaint and alleging a meritorious defense as provided in § 8248, Pope’s Digest. As heretofore stated, she finally brought her pleadings within the legal requirements of these sections.
We have carefully studied the evidence, and are unable to say that the chancery court was in error. From all of the evidence in the record — which we do not lengthen this opinion by detailing — the chancery court could have found that Mattie Christopher was prevented by unavoidable casualty from making her defense. See Columbia County v. England, 151 Ark. 465, 236 S. W. 625; McElroy v. Underwood, 170 Ark. 794, 281 S. W. 368; Supreme Lodge v. Johnson, 179 Ark. 589, 17 S. W. 2d 323; American Co. v. Wilson, 187 Ark. 625, 61 S. W. 2d 453; Kochtitzky v. Malvern Gravel Co., 192 Ark. 523, 92 S. W. 2d 385. We, therefore, reach the conclusion that the chancery court did not abuse its discretion in making the order here challenged.
Affirmed. | [
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Ed. F. McFaddin, Justice.
This is a railroad grade crossing case. On November 22,1945, Bobby Dale Diffee, then 18 years of age, attempted to drive his automobile north on Oak Street in Salisaw, Oklahoma, across the main line track of the Missouri Pacific Railroad Company. His car was struck by the engine of a west-bound passenger train, and was carried about 300 feet before the train stopped. Young Diffee sustained injuries, the nature and extent of which will be discussed in topic III, infra. This action was filed in Crawford County, Arkansas, by Jeff Diffee to recover damages for himself as parent. He also sued as next friend for the minor, to recover damages for the injuries sustained by Bobby Dale' Diffee. The father and son are the appellees here. The defendants below — and appellants here — are Missouri Pacific Railroad Company (by its trustee), and the engineer and fireman of the locomotive that struck young Diffee’s car.
The collision occurred in Oklahoma, and the actions were brought in Arkansas. According to the well-established rule, the law of Oklahoma governs as to substantive rights, and the law of Arkansas governs as to procedural rights. Crown Coach Co. v. Whitaker, 208 Ark. 535, 186 6. W. 2d 940 and cases and authorities there cited. See, also, St. L. S. F. R. Co. v. Cox, 171 Ark. 103, 283 S. W. 31, and Leflar on Conflict of Laws, page 197; and 11 Am. Juris., 498. This rule is conceded by both sides in this litigation. Some of the Oklahoma cases involving railroad crossing accidents are: Mo. Pac R. Co. v. Merritt, 104 Okla. 77, 230 Pac. 513; M. K. & T. Ry. Co. v. Flowers, 187 Okla. 158, 101 Pac. 2d 816; Thorp v. St. L. & S. F. R. Co., 73 Okla. 123, 175 Pac. 240; M. K. & T. Ry. Co. v. Perino, 118 Okla. 138, 247 Pac. 41, 47 A. L. R. 283; Dickinson v. Cole, 74 Okla. 79, 177 Pac. 570; M. K. & T. R. Co. v. Stanton, 78 Okla. 167, 189 Pac. 753; St. L. I. M. & S. R. Co. v. Gibson, 48 Okla. 553, 150 Pac. 465; Kugler v. White, 91 Okla. 130, 216 Pac. 903; St. L. S. F. Ry. Co. v. Rundell, 108 Okla. 132, 235 Pac. 491; Thrasher v. St. L. S. F. R. Co., 86 Okla. 88, 206 Pac. 212. In the case at bar there were judgments for each of the appellees ; and in this appeal the appellants present the three contentions herein listed and discussed.
I. Appellants Contend that They Were Free of Negligence, and Were Therefore Entitled to an Instructed Verdict in Their Favor. The only allegation of negligence submitted to the jury was the defendant’s alleged failure to give the statutory signals. Title 66, § 126 of Oklahoma statutes of 1941 reads: “A bell of at least-thirty pounds weight, or a steam whistle, shall be placed on each locomotive engine, and shall be rung or whistled at the distance of at least eighty rods from the place where the said railroad shall cross any other road or street, . . .”
There were several witnesses who testified that these signals were not given. One was the plaintiff, Bobby Dale Diffee. Another was a disinterested witness, Thomas Scott. He testified that he was only a short distance from the crossing, and that he was looking directly at it and saw the train strike the car; and he said:
“The whistle didn’t blow, and the bell didn’t ring. It rang after it hit the car. Just as quick as it hit the car, I jumped out of my car; I got my keys out and opened the door -of my place and called the ambulance. I knew they would need one.
“Q. You. say that the train didn’t whistle or ring a bell. Do you tell the jury that you were looking in that direction?
11‘A. Yes, sir.”
Other witnesses testified to like effect; and we conclude there'was sufficient evidence to take the case to the jury on the question of whether the statutory signals were given. St. L. I. M. & S. Ry. Co. v. Kimbrell, 117 Ark. 457, 174 S. W. 1183; Mo. Pac. R. Co. v. Rogers, 184 Ark. 725, 43 S. W. 2d 757; St. L. S. F. Ry. Co. v. Rundell, 108 Okla. 132, 235 Pac. 491.
II. Appellants Contend That the Undisputed Proof Shows That Bobby Dale Diffee Was Guilty of Contributory Negligence, Which is a Bar to Recovery. The State of Oklahoma does not appear to have a comparative negligence statute similar to our statute (§ 11153, Pope’s Digest); and, so, in Oklahoma, contributory negligence is an absolute defense. Appellants claim that contributory negligence was shown by the undisputed proof, and they contend that an instructed verdict should have been given in favor of the appellants. Against this claim of appellants, the appellees answer that (a) the Constitution of Oklahoma forbids an instructed verdict in such a case, and (b) the facts here made a case for the jury. We notice these.
(a) The Constitution of Oklahoma (Art. 23, § 6) says: “The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury.”
Appellants say this constitutional provision relates to procedure only, and not to substantive rights, and that since the Arkansas .law governs as to procedure, the quoted Oklahoma constitutional provision is not binding. Appellants ^isk us to overrule our cases of Mo. Pac. R. Co. v. Miller, 184 Ark. 61, 41 S. W. 2d 971, and Mo. Pac. R. Co. v. Holmes, 197 Ark. 576, 124 S. W. 2d 14, in which cases we held that Art. 23, § 6 of the Oklahoma Constitution created a substantive right, rather than prescribed a mere matter of procedure. Appellants insist that in these cases we overlooked the two Oklahoma cases of Independent Cotton Oil Co. v. Beacham, 31 Okla. 384, 120 Pac. 969, and Muskogee Co. v. Napier, 34 Okla. 618, 126 Pac. 792.
In asking us to overrule our cases, the appellants cite us to Hopkins v. Kurn, 351 Mo. 41, 171 S. W. 2d 625, 149 A. L. R. 762, and Bourestom v. Bourestom, 231 Wis. 666, 285 N. W. 426. On the other hand, appellees insist that we adhere to our former holdings; and they cite Caine v. S. L. & S. F. R. Co., 209 Ala. 181, 95 So. 876, 32 A. L. R. 793, wherein the Supreme Court of Alabama reached the same conclusion as that in our cases, supra. In the excellent briefs, filed by both sides, the respective contentions are ably argued; but we find it wholly unnecessary to discuss — much less decide — this contention, because of our holding on the factual issue now to be discussed.
(b) The facts here made a case for the jury. We give a brief review of some of the evidence. Young Diffee was driving his car north on Oak Street. He testified that, as he approached the main line track, his view to the east was partially obstructed by a string of railroad cars extending to within 15 or 20 feet of his car. Other witnesses said that the string of railroad cars extended to Within 20 feet of Oak Street, while others estimated that the railroad cars extended to within 50 feet of Oak Street. In addition to the string. of cars, there were also three small structures on the railroad right of way south of the main track and east of Oak Street; and it was testified that these also tended to obstruct the view to the east. Young Diffee testified that he brought his car to a stop 5 or 10 feet south of the main track; that he heard no signal; that he looked first to the east, and then to the west, and he saw no train approaching from either direction, and he then proceeded to cross the main track with his car in second gear at a speed of 5 or 6 miles per hour; and that after he was on the track, he saw — for the first time' — a train approaching from the east, and that this train struck his car. It was shown that his car was still in second gear after the wreck.
Other eye witnesses substantiated Diffee’s testimony. The witness, Thomas Scott, testified as regards Diffee’s car:
“. . . I was looking over there. This ‘B’ model car was going north, driving rather slowly and stopped just before he got to the tracks; and just as he started across the tracks the train hit him.. I didn’t see the train until just before it hit him, because there were some boxcars along there.”
The fireman of the train that struck Diffee’s car said he saw the car slow down a few feet from the crossing ; and then continue forward. Under this testimony as detailed, and other testimony in the record, we conclude that even under our own holdings, there was made a fact question for the jury, on whether young Diffee was guilty of any contributory negligence. Smith v. Mo. Pac. R. Co., 138 Ark. 589, 211 S. W. 657; St. L. I. M. & S. Ry. Co. v. Kimbrell, 117 Ark. 457, 174 S. W. 1183; Mo. Pac. R. Co. v. Shell, 208 Ark. 70, 185 S. W. 2d 81, and cases there cited.
Finally, on this issue of contributory negligence, the appellants contend that all of the testimony offered on behalf of appellees should be discarded as contrary to established physical facts. In the recent case of Alldread v. Mills, 211 Ark. 99, 199 S. W. 2d 571 we had occasion to discuss such a contention; and many cases and treatises are there listed. Appellants offered in evidence pictures, diagrams and drawings designed to show that the west end of the string of boxcars on the switch track south of the main track was necessarily more than 100 feet east of the Oak Street crossing, because — as the appellants contend- — if the west end of the boxcars had been closer than 100 feet to the Oak Street crossing, then the cars would have been on the switch that led into the main track, and would have been so close to the main track that the boxcars would have been struck by the passenger train. From this, the appellants argue that the physical facts (that is, the pictures, diagrams and drawings) disproved the testified facts, and that the physical facts must govern; and that Bobby Dale Diffee could have seen the train approaching from the east if he had looked; and that he was thus .guilty of contributory negligence as a matter of law.
We have examined the pictures, diagrams and drawings, and are impressed by the fact that there was a string of railroad cars and also three structures, and these certainly tended to obstruct the view of any train approaching from the east, whether young' Diffee stopped as close as 5 or 10 feet from the main track, or whether he stopped 25 or 30 feet away. The fact that he stopped was testified to by witnesses, and the exhibits do not disprove such testimony. Furthermore, the testimony given by one of the appellants tends to dispute the deductions sought to be drawn from the exhibits. Appellant, W. F. Rogers, fireman, of the locomotive, testified that he saw Diffee’s car “a few feet from the crossing”; that Diffee slowed as though he was going to stop, but did not stop. Rogers said that the locomotive was 50 or 75 feet from the crossing when he first saw the automobile. He was asked, regarding the boxcars:
“Had you passed those cars on the side track when you saw the automobile?
“A. I don’t think so.”
Rogers was a railroad man, and one of the appellants, and the effect of his testimony is to place the west end of the string of boxcars within 50 or 75 feet east of Diffee’s car. His testimony substantiates the testimony of appellees, and other witnqss.es, and leaves questionable and for the jury the entire “physical fact” argument of the appellants.
III. Appellants Contend That, at All Events, the Verdicts Are Excessive. The trial court rendered a judgment for Jeff Diffee in the amount of $1,000. This is not excessive. The testimony shows that the father paid, or is obligated to pay, $350 in doctors ’ bills, and that he was deprived of the services of his 18-year-old son from the time of the injury, and that the son had been rendering valuable services to the .parent. The jury returned a verdict for Bobby Dale Diffee for $15,000. In Mo. Pac. R. Co. v. Newton, 205 Ark. 353, 168 S. W. 2d 812, we reviewed some of the cases giving the rules whereby a verdict may be tested as to gross excessiveness.
Under the proof in this case, it is impossible for us to say, as a matter of law, that the verdict is grossly excessive. The testimony shows that the automobile was caught by the cowcatcher of the engine and was carried 300 feet, and that young Diffee was then taken from the wreck in an unconscious condition, and was hospitalized for two weeks in Port Smith, and suffered great pain; that he sustained a concussion, four fractured ribs, and a punctured and partially collapsed lung; that he vomited blood for several days; that he has been unable to work as he did before the injury; and that he will always suffer some inconvenience from these aforementioned injuries.
The evidence shows that shortly before the injury, he had passed the draft board for acceptance into the armed forces of the United States,' but his injuries incapacitated him so that he was never inducted. Dr. Bryan, a physician of Salisaw (whose qualifications, ability and integrity are admitted by the appellants) testified that young Diffee is now suffering with diabetes; and Dr. Bryan gave it as his expert opinion that the diabetic condition was caused by and was a result of the injuries sustained in the collision. The testimony thus satisfactorily met the test stated in A. T. S. F. Ry. Co. v. Melson, 40 Okla. 1, 134 Pac. 388, Ann. Cas. 1915D. 760, as to when medical evidence' may go the jury on the question of disease resulting from injury. Dr. Bryan stated that the diabetic condition would materially interfere with the physical work that young Diffee had been previously accustomed to perform, and that the diabetic condition would grow progressively worse. ,
Appellants laid great stress on the fact that diabetes is’caused by an abnormal condition in the pancreas; and the physician called by the appellants testified that young Diffee sustained no injury to the pancreas. It is admitted that .traumatic diabetes is a rare occurrence, but we cannot say that it does not exist, when the text books and reported cases discuss traumatic diabetes. The vol ume, “The Relation Between Injury and Disease.” written by Reed and Emerson, and published by the Bobbs Merrill Company in 1938, on page 79 .says:
“Diabetes insipidus occasionally follows head injuries, especially fracture of the skull and bullet wounds which injure the base of the brain. Although as a rule it appears insidiously, yet cases which follow injuries and emotional crises may start acutely. In conclusion, it should be emphasized that trauma can be held responsible for those cases of diabetes insipidus alone which directly follow severe head injuries.”
The cases and books make no distinction as to whether the traumatic diabetes is insipidus or mellitis in type. Eicholz v. Niagara Falls Co., 73 N. Y. S. 842 (affirmed by N. Y. Ct. of Appeals, 66 N. E. 1107) is a very enlightening case which involved the question of traumatic diabetes and the sufficiency of the medical testimony to take to the jury the question of an injury causing the disease. In that case the plaintiffs’ testator had been injured by the falling of earth into a trench in which he was working, and had been incapacitated from performing any work, and he developed diabetes. Experts for the plaintiff testified that the diabetes was the result of the injury. Experts for the defendant testified contra. The New York court said:
“It is also urged that the evidence upon the question as to whether or not diabetes resulted from the accident was so speculative and uncertain that it should not have been left to the consideration of the jury. In the first place, it should be-remembered that the defendant first proved that plaintiffs’ testator was suffering from diabetes, and in that way sought to account for the very serious condition which he was in at the time of the trial, and the opinion of its experts was to the effect that this disease was not caused by the accident. On the other hand, the experts called by the plaintiffs gave it as their opinion that the disease was due to the injury which plaintiffs ’ testator received. They admitted that diabetes might have been produced by a large number of causes, and that they could not state positively that in this case it was due to the injuries received, but from all the con ditions and circumstances, the fact that before the accident plaintiffs’ testator was perfectly healthy and well, they expressed the opinion that the condition existing at the time of and prior to the trial was due to the injury, and that diabetes was caused thereby. Under the circumstances the jury was entitled to consider the evidence. The jury was instructed fully upon the proposition, and told that, before it allowed any damages because of such disease, it was incumbent upon the plaintiffs to satisfy them by a preponderance of evidence that such disease was caused by, or was the result of, the injury. The cases cited by appellants’ counsel are not authority for a contrary holding in this case; certainly, the ruling of the court is supported by the decision in the case of Bowen v. Railroad Co., 89 Hun, 598, 35 N. Y. Supp. 542. In that case the court said: ‘The plaintiff at the time of the accident was seventeen years of age, in vigorous health, and in good physical condition. His injury was apparently severe. It was followed by certain conditions of physical impairment. It was competent to prove that they are consequences which may be attributed to the injury, and, in view of the fact that such conditions have been the result, the medical opinion is relieved from any imputation that it was speculative.’ In the case at bar the injured party, prior to the accident, was, so far as known, in perfectly sound health. He was a strong, robust, vigorous man. No other cause for his condition as it appeared at the time of the trial, other than the accident, was known or could be suggested. It was competent for the expert physicians to testify that such condition was, in their opinion, the result of the injury.”
So, in the case at bar, Dr. Bryan’s testimony as to the diabetic condition of young Diffee made a fact question for the jury, and with that evidence in the record before us, we cannot say, as a matter of law, that the verdict is grossly excessive.
Affirmed. | [
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Robins, J.
Appellant asks us to reverse judgment of the lower court by which he was found liable to the State of Arkansas for income tax for each of the years from 1940 to 1944, inclusive.
There is no dispute as to the facts in this case. Appellant concedes that he has paid no income taxes to the State for the named years, and there is an agreement as to the amount due from him, if he is liable for any such tax.
Appellant’s sole contention is_ that he was a nonresident of the State of Arkansas within the meaning of the term as used in the Income Tax Act of 1929 (Act 118 of the General Assembly, approved March 9,1929), and that as a nonresident he was not liable for any tax, since no part of his income was earned within the state.-
During all the years involved appellant was the representative of the fourth district of Arkansas in the Congress of the United States.
It was stipulated as follows: ‘ ‘ That the defendant is the duly elected, qualified and acting Representative in the Congress of the United States from the Fourth Congressional District of Arkansas; that the defendant is a qualified elector of Sebastian county, Arkansas, and that when the Congress is in session he resides in the city of Washington to enable him to attend to his duties as such Representative; that when Congress is not in session he sometimes returns to Arkansas and remains there until the next Congress convenes; that during the periods covered by this suit he has actually remained in the city of Washington in each year for which income tax is claimed, for more than six months; that in none of said years has the defendant maintained a place of abode in the State of Arkansas; that in each of said years he has maintained continuously a place of abode in the city of Washington; that in each of said years the Congress has been in session in the city of Washington for more than six months and that the defendant has in each of said years been present at that place attending the sessions of Congress for more than six months in each said year.”
The following definitions in the Income Tax Act of 1929 are relevant here:
Section 14025, Pope’s Digest, Subdivision (9). “The word ‘resident’ means natural persons and includes for the purpose of determining liability to the tax imposed by this Act upon or with reference to the income of any taxable year, any person domiciled'in the State of Arkansas and any other person who maintains a permanent place of abode within the State and spends in the aggregate more than six months of the taxable year within the State. ’ ’
Section 14025, Pope’s Digest, Subdivision (10). “The word ‘nonresident’ when used in connection with this Act, shall apply to any natural person whose domicile is without the State of Arkansas, or who maintains a place of abode without the State, and spends in the aggregate more than six months of the taxable year without the State.”
Since it is conceded that appellant was an elector of Sebastian county, and since under the Constitution a person, to be an elector of a county, must be a resident of such county, there is a presumption that appellant was a resident of that county; and since under Art. I, § 2, of the Constitution of the United States, a representative in Congress must, when elected, be an inhabitant of the state, in which he is chosen, there is also a presumption that when elected to Congress appellant was an inhabitant of Arkansas. State v. Steele, 33 La. Annual, 910; Dallinger v. Richardson, 176 Mass. 77, 57 N. E. 224; Firth v. Firth, 50 N. J. Eq. 137, 24 Atl. 916; Hammond v. Hammond, 103 App. Div. 437, 93 N. Y. S. 1.
But in this case resort to presumptive evidence as to appellant’s residence or domicile is not necessary, because in his brief here he concedes “that the defendant is not, and has never claimed to be other than a ‘resident’ or a ‘domiciliary’ of this state as those terms are ordinarily, and apart from statutory remodeling, customarily understood. . . . unquestionably his legal and only domicile is in Arkansas.”
Appellant argues, however, that under the last clause (Subdivision (10) of § 14025, Pope’s Digest) it must be held that appellant is a nonresident, within the meaning of the tax law, because it was stipulated that he had maintained a place of abode without the state and had spent more than six months of each year without the state.
We cannot agree with this contention. We think the words “place of abode” as use'd in this Act mean something more than a place of temporary sojourning, and that they imply a degree of permanence that did not attach to. appellant’s stay in Washington. This court has frequently held that “place of abode” as used in our. statute relating to service of process means a place where a person has fixed his permanent home, and that a given place may be a “place of abode” of a party, though he may be actually absent therefrom for a long period of time. Du Val v. Johnson, 39 Ark. 182; McGill v. Miller, 183 Ark. 585, 37 S. W. 2d 689; Shephard v. Hopson, 191 Ark. 284, 86 S. W. 2d 30; Husband v. Crockett, 195 Ark. 1031, 115 S. W. 2d 882. In the last cited case we held that “usual- place of abode” is synonymous with residence.
The stipulation shows that appellant was a resident of Arkansas, and did not establish or maintain without the state such a “place of abode” as would constitute him a nonresident.
The judgment of the lower court was correct and is affirmed. | [
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Robins, J.
Examination of the transcript discloses that there has been no final judgment or other appeal-able order in this case. Begun as an ejectment suit by W. E. Beloate as executor and devisee of S. R. Beloate, deceased, it was transferred to the chancery court on motion of appellee Tizzie Smith, who was the original defendant below.
Two orders made below (in addition to order transferring the cause to equity) are shown in the transcript.
One of these is an order eliminating from the complaint W. E. Beloate as executor. This order was not a final one, because W. E. Beloate, individually, was the real party in interest and his rights were in no manner affected by the executor being removed from the litigation.
The other order was one sustaining the motion of appellee to strike an amendment to the complaint. This amendment in reality was a statement of legal conclusions which appellant sought to have drawn from the evidence, and, if these conclusions were justified, the chancery court on final hearing might, in the absence of such amendment, have treated the complaint as having been amended to conform to the proof. After this amendment was stricken appellant’s original complaint still remained for disposal. Therefore, this order was not final or appealable.
Since the lower court has made no final order in this case, it is not properly here. Reynolds v. Craycraft, 26 Ark. 468; Lee v. Black, 27 Ark. 336; Davis v. Hale, 114 Ark. 426, 170 S. W. 99, Ann. Cas. 1916D, 701; Durben v. Montgomery, 144 Ark. 153, 221 S. W. 855, 223 S. W. 17; Harvey v. Marr, 173 Ark. 90, 291 S. W. 981.
The motion of appellees to dismiss the appeal will, therefore, be sustained. | [
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Minor W. Millwee, Justice.
Appellees were the owners of the west half (W1/^) of section 2, and the north half (N%) of section 11, in township 6 north, range 1 east, Cross county, Arkansas, in 1942 when said lands became delinquent for the 1941 state and county taxes. The lands were sold and certified to the state, and on January 8, 1945, the State Land Commissioner conveyed the north half of section 11 to appellant, Dave Tyer, and the west half of section 2 to appellant, Malcolm Smith. The State of Arkansas instituted confirmation proceedings in the Cross Chancery Court and a decree was rendered May 28, 1945, confirming the state’s title to the aforesaid lands.
On July 20, 1945, appellees intervened in the confirmation suit of the state and attacked the validity of the 1942 tax sale and the confirmation decree based thereon. An amendment to the intervention was filed on April 17, 1946. Appellees alleged that the tax sale was void and prayed that the confirmation decree and tax deeds to appellants be set aside and canceled, and that appellees be permitted to redeem the lands from.the tax sale and have their title thereto quieted and confirmed.
Appellants filed a response to the intervention in which they alleged ownership of the lands by virtue of their respective deeds from the State Land Commissioner. The cause was submitted to the trial court upon the pleadings, stipulations and testimony of several witnesses. A decree was rendered declaring the tax sale void and the confirmation decree and tax deeds to appellants were set aside and canceled. Appellees were also granted the right to redeem said lands by payment of the amount of taxes, penalty and costs as provided by law.
Having intervened in the confirmation proceedings within one year after rendition of the confirmation decree, appellees may, under the provisions of Act 423 of 1941, attack the 'decree and tax sale upon any ground which would have constituted a meritorious defense to the complaint upon which the decree was rendered. Appellees attacked the validity of the 1942 tax sale upon 14 separate grounds and proof was offered upon several of these. Since we hold that the invalidity of the tax sale was established under the fourth ground urged in appellee’s amendment to the intervention, we find it unnecessary to set out or discuss the other grounds relied upon. This alleged defect is: “4. That the Quorum Court of Cross county failed to levy any school taxes for the year 1941 against the property involved in this suit.”
Appellees introduced the record of the proceedings of the Quorum Court showing the levying of the taxes for 1941. This record reflects that court was opened on November 17, 1941, with the county judge, county clerk and sheriff present. The record further recites the presence of a majority of the justices of the peace of Cross county, “making the following levy of the assessments, valuations of the real and personal property for the said county for the year 1941.” Paragraph No. 3 of the proceedings immediately following contains an entry relative to the levy of school taxes as follows: “On motion 'of C. T. Stuart and seconded by G. D. Bowers, that the levy voted by the various school districts of Cross county for the year 1941 be confirmed, and was unanimously carried.” The foregoing constitutes the record of the court relative to the levying of school taxes.
Under § 2527 of Pope’s Digest, the Quorum Court is charged with the duty of levying the county, municipal and school taxes for the current year after all appropriations have been made. In the case of Alexander v. Capps, 100 Ark. 488, 140 S. W. 722, it was contended that a five-mill tax had been levied by the Quorum Court for school purposes, and the court said: “If the school tax of 5 mills had been levied, that fact could only be shown by the record. As was said by this court in Hodgkin v. Fry, 33 Ark. 716-721, quoting from the Supreme Court of Michigan: ‘Every essential proceeding in the course of the levy of taxes must appear in some written and permanent form in the record of the bodies authorized to act upon them.’ Moser v. White, 29 Mich. 59. See, also, Taylor v. State, 65 Ark. 595, 47 S. W. 1065; Logan v. Eastern Land Co., 68 Ark. 248, 57 S. W. 798; Martin v. Barbour, 140 U. S. 634, 11 S. Ct. 944, 35 L. Ed. 546.”
The record in Alexander v. Capps, supra, failed to show a vote was taken by the levying conrt. While the record of the Quorum Court in the instant case shows a vote was taken and the motion passed unanimously, there is no way to determine, from an examination of this record, the millage tax levied in the school district in which the lands here involved are located. The amount of school tax voted by the various school districts is not found in the record nor does the record reflect that the court had before it any designation of the millage voted by any school district in the county.
Appellants rely on the case of Anthony v. Western & Southern Life Insurance Company, 198 Ark. 445, 128 S. W. 2d 1014, to sustain the sufficiency of the levy of school taxes. The ground of attack in that case was “that no proper certificate or return certifying the voting of a school tax in the district in which said lands are situated was filed with the county clerk or county court of Little River county, Arkansas.” This court found that a proper certificate was filed. Moreover, the record of the Quorum Court making the levy in that case definitely set out-the number of the school district, the mills voted, and the purpose for which such millage was voted.
In urging the sufficiency of the levy of school taxes appellant says: “The taxes, as had been shown by the election returns, together with the other taxes levied by the Quorum Court had evidently been extended at one of the prior days of this court, and all they needed to do this day was to levy the taxes as voted by the various school districts and as most likely then already extended on the books for their convenience by the clerk.” The record introduced by appellees purports to represent the entire proceedings had in Quorum Court with reference to the levying of the 1941 taxes. If such taxes had been properly extended upon the record at a previous session of the court, as suggested by appellants, this record should have been presented.
In Morris v. Levy Lumber Co., 103 Ark. 579, 148 S. W. 252, the record’ showed that the quorum court “proceeded to levy the taxes” and the levy was held void. Mr. Justice Wood, speaking for the court there said: “Now, the function of levying taxes by the levying court is in no sense judicial, but is rather that of a legislative or administrative function delegated to that court by the Legislature, whose supreme function and power it is to authorize the levy of taxes. The presumption that everything was rightly and correctly done that obtains in judicial proceedings by the courts does not apply to the levying court in its purely administrative function of levying taxes.”
In Schultz v. Carroll, 157 Ark. 208, 248 S. W. 261, the record of the levying court set out the number of the district, the tax voted and the purpose of such tax, but listed the amount voted in figures without indicating whether said figures designated dollars, cents or mills. It was held by a divided court that the entry as to the amount of tax sought to be levied was meaningless and the sale was held invalid because the school tax had not been legally levied. In the recent case of London v. Montgomery, 211 Ark. 434, 201 S. W. 2d 760,'we indicated our' disapproval of the majority holding in the Schultz case. However, in the case at bar the record of the Quorum Court fails to show a designation of the amount of the school levy in any school district by figures alone, or otherwise, and it is impossible to determine from an examination of this record the amount of the millage sought to be levied. The London case, supra, involved a collateral attack of a confirmation decree and the record there showed that the Quorum Court had before it a certificate from the County Board of Education designating the millage voted.
The decree of the trial court holding the tax sale void is correct and is accordingly affirmed. | [
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KENNETH S. HIXSON, Judge.
| jThis is a child-custody case. After eight years of marriage, appellant Danette White filed a complaint for divorce against appellee Michael White on October 29, 2012. In her complaint, Danette alleged that she should have custody of the parties’ son R.W., now seven, and in Michael’s answer he denied that she should have custody. A two-day hearing was held, and the trial court entered a divorce decree on August 5, 2013, awarding custody to Michael. Danette filed a notice of appeal as well as a motion for reconsideration on September 3, 2013, and the trial court entered an order denying her motion for reconsideration on November 4, 2013. Danette filed an amended notice of appeal on November 4, 2013.
12In this appeal, Danette argues that the trial court abused its discretion in denying her motion for reconsideration. Danette also contends that the trial court erred in awarding custody to Michael. We affirm.
The initial hearing was held on May 31, 2013. At the conclusion of that hearing, Danette’s counsel asserted that he had learned from opposing counsel just the day before that custody would be an issue. Danette’s counsel stated, “I thought we were going to be arguing over property, and obviously I was mistaken and we resolved that.” Danette’s counsel asked for an additional hearing to present more testimony on the custody issue, and the trial court granted the request. The second day of the divorce hearing was held the following Monday, on June 3, 2013.
Danette lives on a chicken farm, and while she had been unemployed for a few months prior to the hearing, she anticipated resuming chicken farming in the future. Danette had temporary custody of R.W. pending the divorce, and she also has custody of her thirteen-year-old son, N.L., from a previous relationship. Danette testified that during their marriage she and Michael took equal care of R.W., and that they both love him and are good parents. Danette also testified that although N.L. is not Michael’s biological son, Michael has been like a father to N.L. and has helped raise him. Danette testified that she has a close family that lives in the area and is available to help her care for her children. Danette thought that it was in R.W.’s best interest to be in her custody.
Michael testified that he is a master plumber and has owned his own business for the past seven years. He indicated that he has a good relationship with R.W. and that they Rengage in lots of activities together. He stated that he separated from Danette in August 2012 because of Danette’s violence and inappropriate conduct. Michael introduced a video recording of an incident showing Danette’s volatile behavior, where she was screaming at him, hitting him, and threatening him. Michael testified that Danette displayed this type of uncontrollable behavior at least once a month. Michael further testified that Danette was verbally abusive to the children and beat them excessively. Michael did acknowledge in his testimony that he has two older children with whom he no longer has any relationship.
Michael’s mother, father, and stepmother testified that they have been involved in R.W.’s life and are available to help raise him. These witnesses testified that Dan-ette cursed incessantly and that she often directed extremely vulgar language toward her children when disciplining them. There was also testimony that Danette had angry outbursts and administered excessive and violent corporal punishment on R.W. Finally, there was evidence that Danette engaged in the unusual practice of bathing with her two sons.
At the close of the two-day hearing, Danette’s counsel suggested that the parties submit written briefs on the custody issue to be decided by the trial court, and the court agreed and set a briefing schedule. On July 1, 2013, Danette’s counsel submitted a six-page letter brief to the trial court, exhaustively setting forth the evidence from the hearing pertaining to custody and arguing that it was in R.W.’s best interest to be placed in the custody of Danette. Nowhere in her brief did Dan-ette claim a lack of notice or time to prepare for the custody battle. On August 5, 2013, the trial court entered the divorce decree awarding custody to Michael.
|4On September 3, 2013, Danette filed a motion for reconsideration, purportedly pursuant to Rule 60 of the Arkansas Rules of Civil Procedure. In her motion, Dan-ette claimed that she did not know Michael was seeking custody until the day before trial and that she lacked sufficient notice and time to prepare for the custody case. Danette claimed that due to this lack of notice she was unable to present large amounts of evidence to the court. Attached to Danette’s motion were multiple affidavits attempting to establish additional facts including that Michael was violent and abusive, and that he had cursed and behaved badly in front of the children. In her motion to reconsider, Danette argued that there had been a miscarriage ofjus-tice, that the court should schedule a hearing to take additional evidence, and that custody of R.W. should be placed with her.
After a hearing on Danette’s posttrial motion, the trial court entered an order on November 4, 2013, denying the motion for reconsideration. In reaching its decision, the trial court explained:
At the hearing on Friday, May 31, 2013, counsel for the parties advised the court that it would not be possible to finish the testimony that day. All agreed to take as much testimony as possible and to continue the proceedings at 2:00 p.m. on Monday, June 3, 2013. [Danette’s counsel] testified that he was well aware that he could have asked for a continuance following the May 31st portion of the hearing, and he believed that the motion would have been granted had it been requested. However, he stated that he elected to go forward with the hearing on June 3 because he believed it to be in his client’s best interest. Having made that decision, movant should not now be heard to complain that other evidence and testimony should have been offered. To allow an unsuccessful litigant to receive a new trial by merely alleging that there is additional ^evidence and testimony that the court should hear would undermine the entire justice system.
Danette’s first argument on appeal is that the trial court abused its discretion in denying her motion for reconsideration. She contends that her motion should have been granted pursuant to Rule 60(a), which provides, “To correct errors or mistakes or prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk.” Danette claims that she was a victim of surprise at the divorce hearing because she had just recently become aware that Michael was seeking custody of R.W. Danette argues that as a result of this “ambush” she was denied notice and a fair opportunity to prepare her case and litigate the controversy.
We reject Danette’s first argument for two reasons. First, we conclude that her posttrial motion, although titled under Rule 60, was actually in the nature of a motion for new trial that sought relief under Rule 59, and that the motion was untimely because it was not filed within ten days of the divorce decree. Moreover, even had a timely posttrial motion been filed, this would have come too late because Danette failed to object and request a continuance for additional time to prepare at the divorce hearing.
Although Danette filed her motion for reconsideration under Rule 60 claiming a “miscarriage of justice,” our supreme court has held that motions should be liberally construed and that courts should not be blinded by titles but should look to the substance of motions to ascertain what they seek. See Stickels v. Heckel, 2009 Ark. App. 829, 370 S.W.3d 857. Rule 59(a) provides, in pertinent part, that “[a] new trial may be granted ... for any of | fithe following grounds materially affecting the substantial rights of such party: ... (3) accident or surprise which ordinary prudence could not have prevented[.]” In this case the relief requested by Danette in her posttrial motion is squarely contemplated by Rule 59(a)(3).
In Stickels, supra, we stated that were we to interpret the term “miscarriage of justice” as used in Rule 60(a) expansively to embrace all grounds under Rule 59, Rule 59 would have no independent meaning. Our supreme court has clearly stated that Rule 60 may not be used to breathe life into an otherwise defunct Rule 59 motion. United S. Assurance Co. v. Beard, 320 Ark. 115, 894 S.W.2d 948 (1995). Rule 59(b) provides that a motion for new trial shall be filed not later than ten days after entry of the judgment. Because Danette’s purported Rule 60 motion was in actuality a Rule 59 motion and was not filed within ten days of the divorce decree, the motion was untimely and the trial court was without jurisdiction to entertain it.
Even were we to agree with Danette that her posttrial motion was timely and properly before the trial court, she would still be afforded no relief. It is well settled that to preserve a point for appeal, a proper objection must be asserted at the first opportunity, Travis Lumber Co. v. Deichman, 2009 Ark. 299, 319 S.W.3d 239, and a party cannot obtain relief by asserting an argument for the first time in a posttrial motion. Milner v. Luttrell, 2011 Ark. App. 297, 384 S.W.3d 1. It has long been the rule in civil cases that both an objection and a request for a continuance are prerequisites to appellate review of a claim of surprise. Swindle v. Lumbermens Mut. Cas. Co., 315 Ark. 415, 869 S.W.2d 681 (1993). In Thorne v. Magness, 34 Ark.App. 39, 805 S.W.2d 95 (1991), we stated that one who is surprised by his adversary’s testimony is not entitled to a new trial on that ground if, rather than asking for a ^postponement to secure necessary evidence, he reserves his plea of surprise as a “masked battery in the effort for a new trial.”
At the divorce hearing, Danette neither objected to Michael’s testimony bearing on child custody nor requested a continuance beyond the following Monday to secure additional evidence. The case moved forward and was fully litigated without objection by Danette until she received an adverse custody decision and filed her posttrial motion. At the hearing on Dan-ette’s posttrial motion, her attorney gave the following testimony during cross-examination:
When I find out the day before that you are really serious about custody, I could have asked for a continuance. I don’t know if it most likely would have been granted. Typically, my experience is if you and I both agree, typically the court will not have a problem with that. I could have requested it. I thought it was in my client’s best interest to go forward. I can sit here and Monday morning quarterback, there were a lot of things that came out in the trial that I was unaware of. I made that trial strategy. ... Well, I don’t know how much liberty I got on Monday afternoon of putting on anything I wanted. I did put in everything I wanted to put in at the time [on the issue of custody].
This testimony by her trial counsel demonstrated that Danette had a full and fair opportunity to litigate the custody issue, and that her counsel elected not to request a continuance as a matter of trial strategy. By failing to object at the divorce hearing or request additional time to prepare, Dan-ette waived any claim of unfair surprise, and such claim could not be resurrected by a posttrial motion.
Danette’s remaining argument is that the trial court erred in awarding custody to Michael. Arkansas law is well settled that the primary consideration in child-custody cases is the welfare and best interest of the child; all other considerations are secondary. Wymer v. Hutto, 2014 Ark. App. 497, 442 S.W.3d 912. In reviewing child-custody cases, we consider the evidence de novo but will not reverse a trial court’s findings unless they are clearly erroneous. Id. We give due deference to the superior position of the trial court to view and judge the credibility of the witnesses. Id. This deference to the trial court is even greater in cases involving child custody, as a heavier burden is placed on the trial court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the child. Id.
Giving the proper deference to the trial court on matters of judging credibility and evaluating the best interest of the child, we hold that the trial court’s decision to award custody of R.W. to Michael was not clearly erroneous. It is evident from the record that both parties love their son and that both are capable of being his custodian. However, in finding that it was in R.W.’s best interest to be in his father’s custody, the trial court relied on testimony that Danette had considerable anger issues and would sometimes exhibit uncontrollable outbursts. There was also testimony that on some occasions when she disciplined R.W. she would use vulgarity and call him deplorable names, and would sometimes administer excessive punishment. Michael demonstrated that he can provide stability for R.W. and has considerable assistance from an extended family that shows a great interest in R.W. and his educational development. The trial court found that Michael was not without his faults, but that those faults did not cause the court nearly the concerns it had about Danette.
|sWe are mindful that the trial court’s custody decision has the effect of separating the custody of R.W. and his older half-brother, N.L. However, we have held that the prohibition of separating siblings in the absence of exceptional circumstances does not apply with equal force in child-custody cases where the children are half-siblings. Eaton v. Dixon, 69 Ark.App. 9, 9 S.W.3d 535 (2000). In this case, the testimony reflected that R.W. and N.L. will still live in the same neighborhood, and Michael expressed the intent that they continue to spend time together. We affirm the trial court’s finding that it was in R.W.’s best interest to be placed in his father’s custody.
Affirmed.
WHITEAKER and BROWN, JJ„ agree.
. Danette waived her attorney-client privilege so that her counsel could testify at the hearing. Her counsel provided testimony regarding phone conversations with opposing counsel and the decision to go forward with the custody battle. | [
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KAREN R. BAKER, Associate Justice
|,A Johnson County Circuit Court jury found appellant Susan Lynn Houghton guilty of possession of drug paraphernalia with intent’ to manufacture methamphetamine and possession of drug paraphernalia, for which she was sentenced tú a total of 144 months’ imprisonment in the Arkansas Department of Correction. Houghton v. State, 2014 Ark. App. 32, at 1, 2014 WL 171009. After Houghton’s counsel filed a no-merit brief, the court of appeals affirmed her conviction and sentence on January 15, 2014. Id. Subsequently, Hough-ton filed a petition for posteonviction relief under Arkansas Rule of Criminal Procedure 37. The circuit court denied her petition without a hearing. This court’s jurisdiction over Rule 37 appeals is proper pursuant to Arkansas Rule of Criminal Procedure 37.3. Ark. R.Crim. P. 37.3(b) (“If a petition on which the petitioner was represented by counsel is denied, counsel shall continue to represent the petitioner for an appeal to the Supreme Court, unless relieved as counsel by the circuit court or the Supreme Court.”). On appeal, Hough-ton contends that the circuit court erred in denying her petition without a hearing. We affirm.
lain her petition, Houghton alleged that her trial counsel was ineffective for failing to object to. five statements — two during the State’s opening statement, two during the State’s closing argument, and one during sentencing — made by the prosecutor. Houghton challenged the following remarks made by the prosecutor during opening statement:
Now at the root — at the root of this case and frankly the methamphetamine problem up and down the River Valley is the fact — let me back up just a minute and clarify for you what she actually is charged with.
Now as I started to say, the root of this case, as well as the root of .the entire methamphetamine problem in the River Valley and probably the South, is the fact that methamphetamine, Ladies and Gentlemen, is very, very easy to make. It’s very easy to make.
Houghton contended that the prosecutor encouraged the jury to consider irrelevant information by indicating that “the jury should consider the River Valley and the South’s problem with methamphetamine during jury deliberation in the guilt phase.” Houghton also contended that her trial counsel was ineffective for failing to object when the prosecutor stated, during opening statement, that “I do not expect you all to make a decision , based on what I’m telling you. First off, you haven’t heard both sides yet.” Houghton contended that this statement was “a clear violation of the law and [Houghtonj’s right to due process,” because she had “no obligation to testify or present any evidence in her own defense.”
Likewise, Houghton’contended that her trial counsel was ineffective for failing to object to the following statements made by the prosecutor during closing argument:
Now this morning when I was talking to you I said really -the root of the problem ■in this case, and I say really the root of the problem throughout the River Valley and may even in the South is the fact that methamphetamine is so easy to make. ...
In fact, I care more if you are operating out of Johnson County, Arkansas because I [{¡can’t do one thing about the guy in Mexico. I can’t do a thing. I can do it when he starts distributing on I-40, and we do it. You see interdiction all the time, but as far as the manufacturer, I can’t do a thing, but I can sure do something here, and that’s why we are here;
Houghton’s third point in her Rule 37 petition alleged that trial counsel was ineffective for failing to object when the prosecutor made the following statement during the sentencing phase: “I know I’m getting emotional about this, but I see this stuff time after time after time. If she were a user, she wouldn’t be here and I wouldn’t be here. I’ve got fifty of them on the docket. We don’t — I don’t do this.” According to Houghton, the “record clearly shows the repetative injection by the prosecutor of statements that were not objected to by defense counsel for [Houghton] and which demonstrated a defective representation that influenced the outcome of the trial in the guilt phase as well as the sentencing phase.”
Finally, Houghton alleged that her trial counsel was ineffective for failing to file a motion to suppress an incriminating statement she made to law enforcement. According to Houghton’s petition, Officer Johnson saw a black pot on the floorboard of .Houghton’s black Dodge Charger. He was able to see inside the car because the door- was open. As. he approached, Houghton attempted to close the door of the car and Officer Johnson told her not to shut the door., because he knew what was inside. Houghton .then replied, “It’s a meth lab.. I .came up here to bum it.” In her petition, Houghton contended that Officer Johnson “exercised control over her by not permitting her to close the Dodge’s door. His failure to immediately advise [Houghton] of her 5th Amendment right should have caused the defense attorney to understand his obligation to file a motion to suppress her statement.”
On May 19, 2014, the circuit court denied Houghton’s petition without a hearing. |Jn its order, the circuit court concluded that Houghton failed to establish that she was denied a fair trial as a result of trial counsel’s failure to object. The circuit court concluded that Houghton failed to show any prejudice arising from trial counsel’s failure to object to the remarks made during opening statement because the jury was instructed that such remarks were not evidence, and the jury was instructed to disregard any argument, statements, or remarks of the attorneys that had ho basis in the evidence. The circuit court concluded that the remaining statements were made as a result of testi- • mony given during Houghton’s trial and that there was no comment on Houghton’s decision not to testify., Finally, the circuit court determined that trial counsel was not ineffective for failing to file a motion to suppress a statement Houghton made to law enforcement officers prior to her arrest because the motion would not have been successful.
On appeal, Houghton challenges the circuit, court’s conclusion that trial counsel was not ineffective for failing to object during opening statement and closing argument and to the prosecutor’s statement made during the sentencing phase. She .contends that “in the present case we do not know what the trial strate gy of the trial counsel was, because he did not testify at a hearing on the petition.” Houghton contends that the circuit court’s conclusion that counsel’s decision not to object during opening statement and closing argument was one of trial strategy is “not supported” and is “mere speculation of the court.” Houghton further conteiids that trial counsel should have objected to the prosecutor’s, statement that the jury had not “heal'd both sides yet,” because that statement was a comment on the fact that Houghton wouldnot testify, which violates her rights protected by the. Fifth Amendment to [fithe U.S. Constitution. Finally, Houghton asks this court to overrule its previous decisions rejecting the doctrine of cumulative error as it applies to claims of ineffective assistance of counsel.
In turning to the merits, we note that the circuit court did not hold an evi-dentiary hearing. Rule 37.3 of the Arkansas Rules of Criminal Procedure provides that an evidentiary hearing should be held in a postconviction proceeding unless the files and record of the, case conclusively show that the prisoner is entitled to no relief. Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999) (citing Bohanan v. State, 327 Ark. 507, 939 S.W.2d 832 (1997) (per curiam)). If the files and the record show that the petitioner is not entitled to relief, the circuit court is required to make written findings to that effect. Ark. R.Crim. P. 37.3(a).
On appeal from a trial court’s ruling on a petitioner’s request for Rule 37 relief, this court will not reverse the trial court’s decision granting or denying post-conviction relief unless it is clearly erroneous. Kemp v. State, 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). A finding is clearly erroneous when, although there is evidence to support it, the. appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id.
Í
“The benchmark for judging a claim of ineffective assistance of counsel must be ‘whether counsel’s conduct so undermined the proper functioning of the adversarial process |fithat the trial cannot be relied, on . as having produced a just result.’ Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)].” Henington v. State, 2012 Ark. 181, 403 S.W.3d 55. Pursuant to Strickland; we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance must show that counsel made errors’ so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel’s performance fell below an objective standard of reasonableness'. Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id.
Second, the petitioner must show that counsel’s deficient performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Id. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reason able doubt -respecting guilt, i.e., the decision reached would have been different absent the errors. Howard v. State, 367 Ark. 18, 238. S.W.3d 24 (2006).’ A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both showings, it cánnot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. Finally, cónclusory statements that' counsel was ineffective cannot be the basis for postconviction relief. Anderson v. State, 2011 Ark. 488, at 5, 385 S.W.3d 783.
17Houghton’s first point on appeal is that the circuit court erred in denying her Rule 37 petition without a hearing. As previously stated, Rule 37.3 permits a circuit court to deny a petition for postconviction relief without a hearing, but requires that the circuit court “shall make written findings to that effect, specifying any part of the files, or records that are relied upon to sustain the court’s findings.” Henington v. State, 2012 Ark, 181, at 9, 403 S.W.3d 55, 62. Thus, our rule does not require circuit courts to hold a hearing on every petition. In Henington, we affirmed a denial without a hearing when the circuit court’s order explained that the allegations contained in the petition were conclusory and lacked factual explanation. In the present case, the circuit court’s five-page order included detailed findings of fact and conclusions of law on each point raised in Houghton’s Rule 37 petition. Consequently, we cannot say that the circuit court’s written order does not comport with the requirements of Rule 37.3.
In addition, we agree that the files and records of Houghton’s case conclusively show that her counsel was not ineffective for failing to object during opening statement or closing argument. We have acknowledged that experienced advocates might differ about when, or if, objections are called for since, as a matter of trial strategy, further objections from counsel may result in comments seeming more significant to the jury. Sasser v. State, 338 Ark. 375, 391, 993 S.W.2d 901, 910 (1999) (citing Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985)); see also Howard v. State, 367 Ark. 18, 238 S.W.3d 24. Furthermore, many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements, and the failure to object during closing argument and opening statement is within the wide grange of permissible professional legal conduct. Id. Here, the circuit court found that trial counsel’s decision not to object was one of trial strategy outside the purview of a Rule 37 petition. The circuit court further found that Houghton failed to demonstrate prejudice because -the jury was instructed that remarks of counsel during opening statement are not evidence. Finally, the circuit court concluded that neither the opening nor the closing argument by the prosecutor were egregious misstatements.
We recognize that failure to object may be ineffective assistance of counsel resulting in prejudice where statements made in opening statement and closing argument are egregious. However, in this instance, we agree with the circuit court that the prosecutor’s statements were not egregious. Here, the State presented testimony from law enforcement officers regarding the methods used to manufacture methamphetamine and the ease of obtaining the necessary components. Houghton fails to show that any of this testimony was inadmissible. When evidence is admissible, a party is entitled to refer to .it during opening statement. Smith v. State, 2009 Ark. 453, at 11, 343 S.W.3d 319, 326. Moreover, the prosecutor’s closing argument did not constitute an appeal to the jurors’ passions and emotions. .Rather, the-prosecutor’s comments discussed evidence that was presented regarding the manufacture of methamphetamine in Mexico. A reversal of a judgment due to remarks made by counsel during closing arguments is rare and requires that counsel make an appeal to the jurors’ passions and emotions. Price v. State, 365 Ark. 25, 37, 223 S.W.3d 817, 826 (2006). Moreover, every plausible inference may be argued in closing. Howard v. State, 348 Ark. 471, 495, 79 S.W.3d 273, 288 (2002). Failure to make a merit-less objection is not an instance of | ¡¡ineffective assistance of counsel. Jackson v. State, 352 Ark. 359, 105 S.W.3d 352, 361 (2003). Finally, the jury was instructed that remarks made during opening statement were not evidence and to disregard any argument, statements, or remarks of the attorneys that had no basis in the evidence. Therefore, the circuit court did not err in finding that Houghton failed to demonstrate defective representation that influenced the outcome of the trial. Although there may be instances in which trial counsel’s decision not to object during opening statement or closing argument amounts to ineffective assistance of counsel, we decline to find error in trial counsel’s failure to object when the remarks are not egregious.
Houghton’s second point on appeal. is that the circuit court erred in concluding that her trial counsel was not ineffective for failing to object to. the prosecutor’s statement that the jury had not “heard both sides yet.” Houghton maintains that this constituted an impermissible comment on her decision not to testify.
In Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the Supreme Court of the United States extended the protection of the Fifth Amendment to the states. In addition, the Arkansas Legislature has provided statutory protection of this right:
On the trial of all indictments, informa-tions, complaints, and other proceedings against persons charged with the commission of crimes, offenses, and misdemeanors in this state, the person so charged shall, at his own request, but not otherwise, be a competent witness. The failure of any person so charged to make such a request shall not create a presumption against him.
Ark.Code Ann. § 16-43-501. This court has long recognized that violation of this statute would be “presumptively prejudicial.” Bridgman v. State, 170 Ark. 709, 710, 280 S.W. 982, 982 (1926). However, .this court has applied the harmless-error standard to improper |incomments on the defendant’s right not to testify. See Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995).
In this case, the circuit court concluded that the statement “you haven’t heard both sides yet,” was not an improper comment on Houghton’s right not to testify. The circuit court found that the prosecutor could have reasonably anticipated that Houghton “intended to cross-examine [the] State’s witnesses to present her side as challenges to the weight to be given testimony and evidence presented by the State.” In Bradley, we determined that the prosecutor improperly commented , on the appellant’s right not to testify by stating, during closing argument, that “the defendant’s right not to testify should not be considered .evidence oft guilt, at the same time, it should not be considered evidence of-innocence.” Id. at 104, 896 S.W.2d at 427. However, we ■ found the error to be harmless because the eyewitness testimony and the physical evidence of appellant’s guilt were overwhelming. Id. at 105, 896 S.W.2d at 428.. Moré recently, we determined that a-prosecutor’s remarks during opening statement .indicating that the defendant would testify was harmless error given that. the defense counsel had indicated during jury voir dire that the defendant would testify. Elser v. State, 353 Ark. 143, 147, 114 S.W.3d 168, 170 (2003).
Here, even assuming that the prosecutor’s' statement was improper, Hóughtóh fails'to show that she was prejudiced by the statement. First, the jury was instructed that Houghton had the right not to testify arid the fact that she did not testify was not evidence of guilt and should not be considered in arriving at a verdict. Second, the State presented overwhelming evidence of Houghton’s guilt. The State presented evidence that on July 25, 2011, Officer |1¶ Johnson visited the property where Houghton was allegedly living.- Upon arriving, Officer Johnson saw Houghton standing outside her car. Inside the car was a black container with a plastic- bottle of “Liquid Fire” and tubing sitting on the front passenger floorboard of her car. Houghton attempted to shut the door, but Officer Johnson informed her that he had -already seen what .was inside the car. At that point, Houghton admitted that-,it was a.“meth lab” inside her car. Officer Johnson, along with Officer Shannon Holman, conducted a search of the car and found a pipe designed to smoke methamphetamine, thirty-six pseudoephedrine tablets, lithium batteries, metal clippers, a glass jar containing liquid ■ methamphet-amines a plastic squeeze bottle containing “liquid fire,” scissors, an air pump, plastic tubing, coffee filters, digital scales, plastic bags, and a syringe containing methamphetamine. In addition to the items recovered from the car, Officer Johnson recovered several items which he testified were used in the manufacture and distribution of methamphetamine from the cabin where Houghton was living. Officer Johnson, Officer Holman, and Phillip Johnson, from the Arkansas State Crime Laboratory, identified and explained the function of each of these items as it relates to the manufacture and distribution of methamphetamine. Houghton did not object to any of this testimony, or to introduction of the items seized, or to the introduction of photographs of the car and cabin. In light of this overwhelming evidence of guilt, the comment made by the prosecutor, even if improper, was harmless. See, e.g., Elser, 353 Ark. 143, 114 S.W.3d 168.
For her third and final point on appeal, Houghton contends that the circuit court “should have considered all the potentially objectionable points and made a cumulative error 1 ^ruling that the overall failure to object resulted in an unfair trial.” Although Houghton acknowledges that this court has “consistently refused to recognize the concept of cumulative error in ineffective assistance of counsel claims,” she urges this court to “reconsider this and overrule the previous. decisions rejecting the doctrine of cumulative error.” Houghton is correct that this court has refused to apply the cumulative-error doctrine to ineffective-assistance-of-counsel claims. Young v. State, 2015 Ark. 65, at 8, 2015 WL 854754 (“[W]e do not recognize an ineffective-assistance-of-counsel claim based purely on the cumulative effect of counsel’s errors.”). This court does not lightly overrule cases and applies a strong presumption in favor of the validity of prior decisions. B.C. v. State, 344 Ark. 385, 390, 40 S.W.3d 315, 318 (2001) (citing State v. Singleton, 340 Ark. 710, 13 S.W.3d 584 (2000); McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998)). Although we have the power to overrule previous decisions, we will uphold them unless great injury or injustice would result. Bharodia v. Pledger, 340 Ark. 547, 11 S.W.3d 540 (2000). The party asking us to overrule a prior decision has the burden of showing that our refusal to overrule the prior decision would result in injustice or great injury. B.C., 344 Ark. at 390, 40 S.W.3d at 319. Houghton has made no such showing here. Accordingly, we decline to overrule our previous decisions refusing to apply the cumulative-error doctrine to claims of ineffective assistance of counsel.
We find no error in the circuit court’s conclusion that the files and records of Houghton’s case conclusively show that she is not entitled to relief.
Affirmed.
. She does not challenge the circuit court’s conclusion regarding trial counsel’s failure to file a motion to suppress her statement made to Officer Johnson. Issues raised below but not argued on appeal are considered abandoned. Gulley v. State, 2012 Ark. 368, at 12, 423 S.W.3d 569, 578. | [
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Minor W. Millwee, Justice.
This is an action by appellee, Dr. W. F. Jeffett, against appellant, DeSoto Life Insurance Co., to recover monthly total disability benefits for the period from October 1, 1946, to April 1, 1947, under a health and accident insurance policy.
Appellee had previously brought suit in the circuit court on a like claim, but for a different period, and obtained judgment against appellant which was affirmed by this court on July 8, 1946, in the .case of DeSoto Life Insurance Company v. Jeffett, 210 Ark. 371, 196 S. W. 2d 243. On the former appeal it was adjudicated that appellee was totally disabled from practicing his profession of dentistry as a result of an accidental injury. There was evidence on the former trial that appellee sustained an injury to the right side of his face from the severe “kick” or recoil of a shotgun he was firing while on a hunting expedition. Medical testimony on the former appeal was to the effect that the accidental injury re- suited in paralysis of the seventh facial nerve, a condition'known as Bell’s palsy. The condition prevented a closing of the right eyelids and concentration of vision at close range caused an excessive secretion of tears and blurring of vision which prevented appellee from performing the substantial duties of his profession.
In support óf the allegations of his complaint in the instant case appellee introduced certified copies of the complaint and judgment entered thereon at the former trial. Appellee again gave an account of the nature and results of the injury and testified that he had been unable to do any kind of dental work since he closed his office in August, 1945. Dr. A. W. Cox, an eye specialist who has attended appellee since the date of the accident, repeated his testimony given at the former trial concerning the nature and extent of the injury to appellee and stated that there had been no improvement in his condition since the first trial, and that he was still disabled to perform any of the duties of a dentist. Another specialist who examined appellee three times in 1945 and twice in 1946 corroborated the testimony of Dr. Cox and stated that the disability, in his opinion, ¡would continue indefinitely.
Opposed to this testimony was that of three specialists who had either examined or observed examinations made of appellee on October 25, 1946, and February 3, 1947. They testified that the spastic condition in the right side of appellee’s face5 was not caused by an injury to the seventh cranial nerve or, if so, that the condition had cleared up; that Bell’s palsy, or paralysis of the seventh nerve, would cause the side of the face to sag instead of being drawn up as is appellee’s; that they did not observe any excessive lachrymation in appellee’s eye; that appellee had high blood pressure and that the tenseness in the right side of the face might have been caused by his general nervous-condition. Appellee was in essentially the same condition at the time of both examinations. Two of these witnesses were of the opinion that appellee was able to practice all phases of dentistry at the time of the trial while the other thought he could perform at least a part of such duties.
The issues were submitted to a jury and a verdict returned in favor of appellee for $1,200, the amount for which he sought recovery. The judgment entered on the jury’s verdict included the statutory penalty of 12% and attorney’s fees.
Appellant’s first contention for reversal of the judgment is that the evidence is insufficient to establish total disability of appellee. Appellant argues that the testimony not only shows that appellee was not totally disabled for the six-month period involved in the present action but also that he was not disabled from the injury claimed during the period for which he recovered judgment in the former action. This contention necessitates a consideration of the effect of the former adjudication.
In the case of Equitable Life Assurance Society v. Bagley, 192 Ark. 749, 94 S. W. 2d 722, it had been determined on a former appeal that appellee, Bagley, was totally disabled within the meaning of the policy on August 19, 1933, and for a time prior to that date. It was held that the finding of fact of -total disability on August 19, 1933, on the first trial was conclusive and binding on the second appeal. Chief Justice Johnson, speaking for the court, there said:
“Since we are concluded by the former opinion on the question of appellee’s total disability on August 19, 1933, the legal query arises, what presumption attends such finding on future circumstances?
“The rule seems to be that, in the absence of proof to the contrary, it must be presumed that appellee was totally disabled on August 20, 1933, and at all times subsequent thereto unless and until it is made to appear affirmatively, by testimony, that appellee has recovered subsequent to the former adjudication. See 10 R. C. L., p. 872, § 15. ' •
“In view of the stated declaration of law it follows that, after appellee introduced in evidence the testimony supporting the former adjudication, the burden shifted to appellant to establish by a preponderance of the testimony that appellee had recovered from total disability subsequent to the former adjudication . .
The rule announced in the Bagley case was approved and followed in United Fidelity Life Ins. Co. v. Dempsey, 197 Ark. 221, 122 S. W. 2d 170. An instruction embodying these principles was approved in the recent case of Mutual Benefit Health & Accident Ass’n v. Murphy, 209 Ark. 945, 193 S. W. 2d 305.
The judgment obtained by appellee at the former trial was entered on November 14, 1945. The complaint and judgment rendered at the former trial were admissible in evidence as proof of the existence of disability at that time. When certified copies of these were introduced by appellee, this constituted a conclusive showing of total disability at the time of the rendition of the former judgment and gave rise to a rebuttable presumption that it continued in the future and shifted the burden to the company to go forward and show by a preponderance of the evidence that the condition no longer existed. As stated in the Bagley case: “It may be that the former adjudication was wrong in principle, and in fact, but nevertheless it is an established precedent and must be treated as such. ’ ’
The question, therefore, for the jury’s determination was whether appellee had, subsequent to the former adjudication, sufficiently .recovered to perform the substantial and material acts necessary to the prosecution of his profession. This question was submitted to the jury upon conflicting medical .testimony. When the evidence on this issue is considered in the light most favorable to appellee, we find it substantial and sufficient to support the verdict of the jury.
Appellant also assigns as error the action of the trial court in refusing to give its requested instruction No. 2, which is set out in appellant’s brief. It is contended that the refused instruction contains a correct definition of “total disability” which does not appear in any of the instructions given. But appellant has not set out any of the instructions given by the trial court and we must indulge the presumption that the trial court correctly instructed the jury and that the refused instruction, although found to he correct, was covered by others given. Carpenter v. Hammer, 75 Ark. 347, 87 S. W. 646; DeQueen & Eastern Ry. Co. v. Thornton, 98 Ark. 61, 135 S. W. 822; Greenville Stone & Gravel Co. v. Chaney, 129 Ark. 95, 195 S. W. 13; Covill v. Gerschmay, 145 Ark. 269, 224 S. W. 609; F. Kiech Manufacturing Co. v. James, 164 Ark. 137, 261 S. W. 24; Hethcox v. Stewart, 178 Ark. 235, 10 S. W. 2d 362. In Loose-Wiles Biscuit Co. v. Jolly, 152 Ark. 442, 238 S. W. 613, the court said: “Error is assigned in the refusal of the court to give certain instructions requested by the defendant, which are set out in the brief. But, inasmuch as all the instructions are not set out, we must assume that the points raised in the instructions which were refused were covered in the instructions ’which were given.” The reasons supporting this rule are set out in U. S. Auto Co. v. Arkadelphia Milling Co. 140 Ark. 73, 215 S. W. 641, and will not be repeated here
Finding no error, the judgment is affirmed. | [
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Smith, J.
Appellee Watkins sued Appellant Harris for an accounting, alleging that Harris owed him a sum in excess of $6,'000 after listing credits to which Harris was entitled, in the sum of $1,081.03. By consent a master was appointed to state the account on depositions taken by the respective parties. The master made report that Harris was indebted to Watkins in the sum of $6,899.40, and that Harris was entitled to credits amounting to $995.32, thus fixing a balance due Watkins of $5,904.08.
In the complaint Watkins alleged that Harris had rented from him 300 acres of land for which Harris agreed to pay $7 per acre as rent, or a total of $2,100, but he later amended his complaint to allege that he had rented his farm to Harris for the lump sum of $2,800.
• When the master made his report, Harris filed a motion that he be permitted to take additional testimony under the allegation that evidence had been newly discovered which would show errors in the masters’ report. This motion was overruled and we are unable to say that the discretion of the court was abused in this respect, inasmuch as the testimony was taken by depositions, and abundant time had been allowed for that purpose, and proper diligence was not shown in discovering the evidence.
The testimony relates to a large number of items which are set out in the master’s report, to which Harris filed numerous exceptions, none of which were sustained by the court. We will discuss only the exceptions which we think are sustained by the testimony.
Watkins owned farming land in the northern part of Desha county, while Harris had much larger farming interests in the southern part of Phillips county, these being adjoining counties. Watkins became badly in volved financially, and was unable to completely gather his crop of cotton and corn, or to make arrangements for farming his land during the ensuing year. He applied to and received assistance from Harris. He turned over to Harris numerous items of personal property covered by the master’s report. Watkins testified that this was done with the understanding that Harris pay his debts, but the master did not so find, nor would we, if Watkins had filed exceptions in this respect. But the master did profess to find and value the personal property which Watkins had turned over to Harris, and his finding and report as to the quantity of this property and the value thereof is the subject of numerous exceptions by Harris.. We take up in order such of these exceptions as we think should be sustained under the testimony in the case.
The first of these is the charge of $2,800 rent on Watkins’ farm land which Harris cultivated in the year 1945. There was much testimony, sharply conflicting, as to the rent to be paid. Testimony offered by Watkins was to the effect that Harris agreed to pay $7 per acre, while the testimony offered by Harris was that the agreed rent was $5 per acre. However, Watkins finally testified that the agreed rental was $2,800, and he was allowed credit for that sum.
We think this was error not only because Watkins had alleged in his complaint that the- rent was to be $2,100, which would be $7 per. acre for 300 acres of land, but for the further reason that Watkins was asked how much land he cultivated and he answered: “About 300 acres of land that can be cultivated. The rest is in the woods, lakes and levees.” However Watkins did testify that there were 450 acres subject to cultivation. Harris’ version of the rental contract was that the planting season was far advanced when he agreed to rent any of the land, and that he agreed to pay rent on only so much of the land as he was able to cultivate, and that this acreage was 185. We think the rent should be charged on 300 acres as there was that much land subject to cultivation, and no one except Harris cultivated any. However, we find that an excessive charge for rent of $700 was made.
The master charged Harris with 2,093.2/3 bushels of corn at $1.10 per bushel, amounting to $2,303.02. Watkins had 105 acres in corn. The testimony shows that Harris gathered the corn, pursuant to his contract with Watkins, whatever that contract may have been, and about which there are sharp disputes in the testimony. According to Harris he agreed to harvest the corn, deduct the cost of doing so and divide the proceeds of the sale of the corn. According to the testimony offered by Watkins, he sold the corn in the field to Harris “where it is and as it is” for $1.10 per bushel. The master’s report in-dictates that he accepted the testimony as true, but even so we think he charged Harris for an excessive amount of corn.
It is impossible to reconcile the testimony as to many of the items and charges in the master’s report to which Harris excepted. We are unable to say that in accepting Watkin’s version as to the terms of the sale of the corn the master made a finding contrary to the preponderance of the evidence, but we do find that the master’s report as to the amount of corn for which Hands should be charged is contrary to a preponderance of the evidence.
The testimony of Watkins in regard to the corn.is corroborated by that of one C. E. Shackleford who had been employed by Harris as a farm manager, but who had been discharged, and who made little effort to conceal his hostility to Harris. Shackleford and Watkins agreed as to the terms of the sale and both testified that when the corn had been gathered and placed in three farm houses, marks were placed on the walls of the houses showing the height of the piles of corn, and when it was removed they measured the cubic content of the space it had occupied and calculated the number of bushels of corn from the measurement. The master’s report is based upon this testimony. Shackleford reported that he did not actually measure the buildings, but just looked to see if Watkins had measured them. This was about the last of April or the first of May.
If this testimony was opposed only by that of Harris, we would not disturb the master’s finding, but it sharply conflicts with testimony which tends to discredit it. One Bourland who had been Harris’ farm manager, but had removed to Mississippi, testified that he superintended the gathering of the corn, which commenced April lltli and was completed about the 20th or 22nd of that month, that he has a record of the corn gathered, according to which there were 734 bushels.
One Ellis, who described himself as a straw-boss, working now for Harris, had been employed by Watkins as an overseer in 1944, the year the corn was grown. He testified there was no fence around the corn, and that hogs and cows had been turned into the corn field, and that a lot of the corn had been stolen or consumed by the hogs and cows, that he was in charge of the labor when Harris gathered the corn and that he estimated between 800 and 1,000 bushels were gathered.
One Dickens testified that he had been employed by Watkins as a farm manager in 1944, and that he personally supervised the cultivation of the corn crop, which in his opinion would have yielded about 3,360 bushels had it been gathered seasonabty, but he testified that when the corn was gathered in April livestock had been running in it, a part had been stolen, and the weather had damaged the remainder, so that at the time it was gathered not more than one-half remained and half of that was damaged.
Just what the truth is in regard to this corn may never be known, and we do not profess to have determined that fact, but we do find the credit allowed to Watkins on this account should not exceed $1,803.02, and that any charge in excess of that sum is contrary to the preponderance of the evidence. This charge will therefore be reduced to $1,803.02.
There are exceptions to other items in the master’s report involving charges against Harris, with corresponding credits to Watkins, as to the justice of which we entertain grave doubts, but we sustain only the exceptions to the master’s report which we find are contrary to the preponderance of the evidence.
In his complaint Watkins itemized credits to which Harris was entitled totaling $1,081.03, yet the master allowed Harris credits of only $995.32, a difference of $85.71, and we find no satisfactory reason why Harris should not he given the full amount of the admitted credit.
The charge for rent made by the master will be reduced from $2,800 to $2,100, and the charge for the corn will be reduced from $2,303.02 to $1,803.02.
The judgment against Harris will therefore be modified by charging him with only $2,100 on account of rent, with only $1,803.02 on account of corn, and Harris will be allowed the additional admitted credit of $85.71. As thus modified the master’s report and the decree thereon is affirmed. | [
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Holt, J.
July 30, 1946, a petition, signed by a majority of the qualified electors residing in Denmark Special School District, lying parity in Jackson and partly in White counties, Arkansas, was filed with the Jackson County Board of Education, requesting that said Denmark Special School District be dissolved and its territory attached to and made a part of the Bald Knob Special School District in White county, Arkansas.
Proceeding under the provisions of § 11486, Pope’s Digest; as amended by Acts 279 and 327 of 1941, due notice was given by publication in a newspaper.
The Board of .Directors of the Bald Knob Special School District of White County passed a resolution .requesting the Jackson County Board of Education to grant the prayer in the petition, supra, .for consolidation of the Denmark ■ District with that of the Bald -Knob District.
November 26, 1946, the petition was heard by the Jackson County Board of Education at Newport and an order was made aiid entered by the Jackson County Board dissolving the Denmark Special School District and annexing its territory and transferring its funds to the Bald Knob Special School District in White county.
Thereafter, on February 7, 1947, W. E. Orr, County Supervisor for White county wrote appellants’ counsel: “The situation in regard to the Denmark Special-Bald Knob Special consolidation, ordered by the Jackson County Board of Education, November 26, 1946, was as follows: For many years the Bald Knob unit has served as the high school for a large percentage of the pupils living in the Denmark district. Such a plan resulted in a loss to Bald Knob, because their expenses per child in average daily attendance annually were in excess of the amount being received for tuition from the individual Denmark students. Not wishing to deprive these children of high school advantages, the Bald Knob board was agreeable when consolidation suggestions were made by residents of the Denmark community.
“Because of the impossibility of arranging a joint meeting of the White County and Jackson County Boards of Education it was decided that the merger could best be made by operating under § 11481 within the county of the smaller district. This plan was acceptable to those involved in White county. The Jackson County Board of Education met on November 26 and ordered this consolidation. A copy of the minutes of this meeting with the consolidation order was filed in the office of the County Supervisor, White county, December 2, 1946.”
An appeal was taken from the order of the Jackson County Board of Education, to the Jackson Circuit Court, and on February 11, 1947, the cause was heard and judgment rendered affirming the consolidation order of the Jackson County Board of Education.
This appeal followed.
For reversal, appellants contend that -“the court erred in holding that the Jackson County Board of Education, acting singly and without the contemporaneous collaboration of the White County Board of Education, could lawfully order tlie dissolution of the Denmark Special School District, a district situated in Jackson and White counties, Arkansas, and that the court erred in refusing to hold such a unilateral order was void. ’ ’
While under the provisions of § 11486, Pope’s Digest, as amended, the action of the Boards of Education of both Jackson and White counties were required, in order to effect the consolidation of the Denmark District, which lay partly in each county, with the Bald Knob District, we are unable to say, in the circumstances here, that this requirement was not complied with, or substantially so, as found by the trial court. The,burden was on appellants to show that the White County Board did not approve or accede to the order of consolidation made by the County Board of Education of Jackson county, and this we think they have failed to do.
■ We quote from the court’s findings: “It appears from the hearing and the statements and the records here of the proceedings of the White County Board of Education and of the Jackson County Board of Education that a petition was presented to the County Board of Education and that there were 49 qualified electors residing in the district which was to be dissolved, the Denmark School District, and out of that number 34 had signed the petition, requesting that the district be dissolved and annexed to and become a part of the Bald Knob School District in White county. Proper notices the court finds were given of this hearing; the notice, also, given to the White County Board; and it appears from the record that the Jackson County Board of Education at its meeting on the 26th day of November, 1946, had its hearing on this petition and passed favorably upon it consolidating the district, the Denmark District, consolidating it with the Bald Knob School District. . . . This action was approved, the court finds, by the Board of Directors of the Bald Knob School District. In other words, they assented to it and agreed to it by resolution that this action be taken. . . . Here in this case I think the jurisdiction of matter was had by both boards and while there might be some little irregularity in the proceedings in that the board of 'White county did not sit in with the board here, that is, they did not exactly have a joint hearing, but they had notice of it; and after the County Board of Education of Jackson county had acted on it and approved it that the County Board of Education of White county acted upon it by-adopting and approving the procedure of the Jackson County Board, adopted it and made it a part of the minutes and records of procedures of the County Board of Education of White county. Consequently, in this case, both of the boards having authority to act upon this proposition have acted upon it and approved it. . . . And it will be the judgment and findings of the court that the action taken by the County Board of Jackson county and of White county be approved and that the Denmark Special School District be dissolved and annexed to the Bald Knob School District in White county.”
The letter from W. E. Orr, White County 'Supervisor, which was in evidence, tends strongly to support the trial court’s finding that the White County Board of Education, after due notice, and receipt of copy of the consolidation order and proceedings of the Jackson County Board of Education, accepted and agreed to the consolidation order of the Jackson County Board. In the last paragraph of that letter, supra, Orr referred to the difficulty of arranging a joint meeting between the two boards, that consolidation was acceptable to those in White county and “the Jackson County Board of Education met on November 26 and ordered the consolidation. A copy of the minutes of this meeting with the consolidation order was filed in the office of the County Supervisor, White county, December 2, 1946.”
In addition, it is undisputed that the Board of Directors of the Bald Knob Special School District, by resolution, requested the Jackson 'County Board of Education to grant the petition for consolidation of the districts.
The County Board of Education of White county and the Bald Knob Special School District are not parties to this suit and are not complaining.
No error appearing, the judgment is affirmed. | [
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Smith, J.
It is sought by this appeal to have reversed and set aside an award of the Workmen’s Compensation Commission, to compensate the widow of J. W. Morris for the death of her husband, which award had been affirmed by the Circuit Court, and from which judgment is this appeal.
The instant case is companion to the case of Hobbs-Western Company, hereinafter referred to as the Company, against Craig, 209 Ark. 630, 192 S. W. 2d 116, in that some of the testimony is similar and much of it is identical in the two cases. The employee was killed in each case while pursuing* his employment as a laborer engaged in the manufacture of ties, both being killed in the same mill.
The- former opinion recited the contract under which one Lea was engaged in the manufacture of the ties and the principal question of fact in the Craig case was whether Lea was a subcontractor or a seller of ties. It was held that Lea was a subcontractor, and that inasmuch as he had procured no compensation insurance covering his operations the Company, .the principal contractor, was liable under § 6 of the Workmen’s Compensation Act, for the injury and death of Craig, which occurred while he was worldng as an employee of Lea, the subcontractor.
The first paragraph of § 6 of the Workmen’s Compensation Act reads, as follows: “A contractor in the performance of whose contract one or more persons are employed, either by himself or by a -subcontractor, who subcontracts, all or any part of such contract shall be liable,for and shall pay compensation to any employee injured whose injury arises out of and in the course of such employment, unless the subcontractor primarily liable therefor has secured compensation for such employee so injured as provided in this Act.”
We construed this paragraph in the Craig case, supra, and it was there held, to quote a headnote from that case: “The purpose of the Legislature in enacting § 6 of the Workmen’s Compensation Act (Act 319 of 1939) providing that a contractor shall be liable for and pay compensation to an employee of his subcontractor where the injury arises out of and in the course of the employment unless the subcontractor has secured compensation to the employees in such case was to make the principal contractor a guarantor of the personal injury obligation of the subcontractor.”
Lea testified in the instant case that he was operating the same mill, under the same contract with the Company, when Morris was killed, as he was operating under when Craig was killed, and his testimony established a number of facts recited in the opinion in the Craig case. For the reversal of this judgment on the award against the Company and its insurance carrier, it is insisted that while there are points of similarity in the two cases, they differ in two essential respects and that therefore the opinion in the Craig case is not authority for affirming the judgment here appealed from. It is first insisted that the testimony in the instant case was that Lea was the seller of the ties, and that whether he was or not he had taken out compensation insurance which rendered § 6 inapplicable to his sawmill operations.
Much testimony was heard which is recited in the opinion prepared by the Commission, but without reciting this testimony in detail we announce our conclusion to be that it was sufficient to support the findings of fact announced in the- opinion, the essential portions of which may be summarized as follows. The Company bought the mill used in the manufacture of the ties and paid the entire purchase price. It was sold by that Company to Lea under a contract which permitted Lea to pay for it by manufacturing ties, a certain credit being allowed for each tie manufactured by Lea, and delivered to the Company. Lea gave the Company a note payable one day after demand, which was secured by a mortgage on the mill. In addition the Company bought certain timber which Lea used in his operations, on which Lea paid stumpage as he consumed the timber. It was shown that on certain occasions Lea used the mill with the knowledge and permission of the Company, for persons other than the Company, but in doing so he did not use any of the Company’s timber, except that he did manufacture some lumber from portions of the timber called tie sidings. Lea testified that in manufacturing ties there were strips from the logs called tie sidings, which could not be made into ties, and that he sawed no lumber except from tie sidings. In other words, those sidings were a by-product and to prevent their waste Lea made some lumber from them. He testified that ordinarily these sidings were given to the mill operator, but that he paid stumpage thereon to the Company. He further testified that he sold ties only to the Company, and that he felt obligated both morally and legally to deliver all ties made by him to the Company, and that he was under the apprehension that if he sold ties to anyone else the Company would take the mill from him by a demand that his purchase money note be paid, and representatives of the Company admitted in fact that this demand of payment probably would have been made had Lea sold ties to anyone else. We conclude, therefore, that the Commission was warranted in finding as it did that Lea was a subcontractor.
There was testimony in the Craig case, as in the instant case, as to the manufacture of lumber from the tie sidings, it being contended there, as here, that Lea’s operations were not confined exclusively to the manufacture of ties. We disposed of that contention in the Craig case by saying: “We regard as unimportant the contention that Steve Lea received as his own the slabs and extra pieces of wood (called ‘tie sidings’), remaining after a tree had been manufactured into crossties. There is no finding that this residue amounted to any appreciable item, or that any disposition was ever made of any such residue from the Petty tract. ’ ’
So here, Lea was primarily engaged in manufacturing ties and these exclusively for the Company, although testimony does show that he sawed a few switch ties for the Rock Island- Railway Company, but the Company timber was not used in doing so, and this was done with the consent of the Company’s representative.
Now it was shown that while manufacturing ties for the Company, Lea engaged in the business of producing pulpwood, and that he secured compensation insurance covering those operations. This fact forms the basis for the contention that Lea was operating as a seller, and not as a subcontractor inasmuch as the Company had no interest in the production of the pulpwood, and that this insurance relieved the Company from liability under § 6 of the Workmen’s Compensation Act, inasmuch as Lea had insurance for the protection of his pulpwood operations.
The testimony in regard to this insurance will be presently stated. After Craig had been killed, and while the claim for compensation on account of his death was being heard by the Compensation Commission, one of the Commissioners told Lea not to continue to operate the sawmill without insurance. Lea then said to the Company’s manager for this state: “Ted, I can’t run my mill without compensation insurance. I do not’have the money to put up $250 (for insurance premium) and I am not going to try to run it. I would rather let you have the mill back some way or other, ’ ’ and the manager said: “Well, there is no use in you carrying compensation insurance and putting up $250 and carrying it, and we have a suit already pending. Until the pending suit is settled you go ahead and run and we will take care of you until the Craig case is settled.” Lea testified that he understood from the conversation that the Company would take care of the insurance. The occurrence of this conversation was deniéd, but Lea’s testimony was credited by the Commission and found to be true. Morris was killed before the opinion in the Craig case was delivered, holding adversely to the Company’s contention that it was not liable for the injury to one of Lea’s employees, and the same contention is now made as to the relationship between the Company and Lea when Morris was killed.
The Commission found in this case, as it did in the Craig case, that Lea was a subcontractor, operating without insurance, and that the Company, as principal contractor, was liable under § 6 of the Compensation Act.
The Commission specifically found “that Lea did deliver to Hobbs-Western Company all the ties produced by him at the time of the death of J. W. Morris, and prior thereto, and that he was bound to do so, not only from a moral standpoint, but from the very nature of his financial arrangements with Hobbs-Western Company under which he worked at their sufferance and was subject to their will as to termination or continuance of this arrangement. ’ ’
The Commission found, and the testimony abundantly supports the finding, that Morris was killed June 18,1945, while sawing the Company’s timber into ties for delivery to the Company. After Morris had been killed and Lea learned that he had no insurance covering the operation of the sawmill, he procured insurance on his mill’s operations with the Commercial Standard Insurance Company.
About the first of the year before Morris was killed, Lea formed a partnership with one Harvey Williams to produce pulpwood, and he secured an insurance policy covering those operations from the Associated Indemnity Corporation, dated January 1, 1945. Lea and Williams entered into a contract with the International Paper Company, Southern Kraft Division, to produce pulpwood.
The testimony is practically undisputed, and the Commission found the fact to be that there was no connection whatever between the pulpwood operations and the manufacture of ties. The operations were carried on in different places. The two businesses were separately managed. Distinct records were kept at different places, by different bookkeepers, and separate equipment and nonrelated employees are used in each business. It is true that in April, 1945, Lea bought the interest of Williams, his partner, and an indorsement was added to this policy showing that the insured was S. C. Lea, individually. But there was no change in the coverage of the insurance policy, which recites that it covers such premises or other work places necessary and essential to performance of employer’s contract with International Paper Company, Southern Kraft Division, Camden, Arkansas. The classification of operations is set out as “Logging and Lumbering, No. 2702, including transportation of logs to mill: construction, operation, maintenance or extension of logging roads or logging railroads; drivers, chauffeurs and their helpers.”
Item five of the classifications contained in the policy 'is: “This employer is conducting no other business operations at this or any other location not herein disclosed —except as here stated.” “No exceptions.” This statement was true for the reason that the employer insured was not Lea individually, but a partnership of which Lea was then a member.
Lea testified, over the Company’s objection, that it was not intended that this policy should cover anything except the pulpwood operations, and that the premium for the policy was computed “at so much per cord or unit of pulpwood delivered to anyone by the employer.”
There is no testimony to the contrary and that such was the intention of the parties is shown by the fact that Lea took out a separate policy with the Commercial Standard Insurance Company covering his sawmill operations after Morris’ death. There were two separate businesses, conducted at different places, without any relation whatever to each other, and the Commission so found.
The contention was made before the Commission and here renewed that liability for compensation should be assessed against the Associated Indemnity Corporation, and that the policy issued by the company on the pulpwood operations exonerated appellant Company and its insurance carrier from liability under § 6 of the Compensation Act hereinabove quoted, is fully and correctly answered by the declarations of law made by the Commission. In this opinion the Commission quoted from § 38(c) of the Compensation Act, reading as follows: “No policy of insurance against liability under this Act shall be made unless such policy shall cover the entire liability of the employer under this Act; provided that as to any question of liability as between the employer and the insurer the terms of the insurance contract shall govern; provided, further, that when an employer is engaged in more than one business for the purpose of insurance against his liability under this Act, each separate and distinct business may be covered by separate policies.’.’
The opinjon construed this paragraph, as follows: “It is permissible for the parties to a compensation insurance contract to limit the liability of the insurer to particular work* at particular places. Full coverage of the entire liability of an employer at a given place, or places, on specified work, fully meets the intents of the statute in this respect. ’ ’
The Commission applied this construction of the statute as follows:
“In the case before us the Associated Indemnity Corporation issued a policy of insurance to Steve Lea for specified work, that is, his pulpwood operation under his contract with the International Paper Company, arid the policy so recites. Lea testified that he understood this policy only covered Ms pulpwood operation and not his sawmill, which he thought was being taken care of by Hobbs-Western Company. The deceased was an employee of the sawmill, he performed no work in the pulpwood operation: according to the testimony there was no intermingling of employment, there being separate locations, separate management, separate crews and separate bookkeeping arrangements and pay rolls.
“Under consideration the Commission is of the opinion that the policy issued by the Associated Indemnity Corporation to Steve Lea on his pulpwood operations did not cover his sawmill operation and that under § 38(c) of the Act, the insured, Steve Lea, and the insurer, Associated Indemnity Corporation, had a right to limit the coverage of said policy to specified work; that the policy so issued covered all the liability of the employer within the meaning of § 38(c).”
This application conforms to the law as declared in the Chapter on Workmen’s Compensation Acts, 71 C. J. 910, where it is said: “In some jurisdictions the Workmen’s Compensation Act therein does not permit an employer to insure his employees in one part of his business and remain a nonsubscriber as to the rest of the business which, in substance and effect, is conducted as one business. But an employer who conducts two wholly separate and distinct kinds of business can become a subscriber as to one business without insuring his employees in the different and distinct business. A statute which provides that the entire liability of the employer shall be assumed in compensation policies in the state does not require coverage for the entire liability of an employer, anywhere and at any time, but such liability of the employer as the insurance company undertakes to assume must be assumed in its entirety. It is permissible for the parties to a compensation insurance contract to limit the liability of insurer to particular work at particular places. Full coverage of the entire liability of an employer at a given place or places, on specified work, fully meets the intent of the statute in this respect.” Cases cited in the notes to the text fully sustain the text.
Many cases are cited in the per curiq,m opinion by the Supreme Court of Texas in the case of Barron v. Standard Acc. Ins. Co., 122 Tex. 179, 53 S. W. 2d 769, which sustains the declarations that the rule is well established that employers of labor operating under the Workmen’s Compensation Act cannot cover part of their employees and leave part of them uncovered, where such employees are engaged in the same general business or enterprise, and a policy issued thereon will cover all employees in such business, but that it is equally well settled that where an employer conducts two separate and distinct kinds of business, each business involving different risks, pay rolls, and requiring a different premium for compensation insurance, he may elect to insure a, class of employees in one business and not to insure a class of employees in the other business.
It is conceded that if Morris, an employee of Lea at the sawmill plant, was not insured under the policy issued by the Associated Indemnity Corporation, there was no insurance covering him, and we concur in the holding of the Commission that this policy did not cover the employees at the sawmill. The Commission was justified in finding that Lea was operating the sawmill as a subcontractor in violation of § 6 of the Compensation Act.
The judgment must, therefore, be affirmed in accordanee with the opinion in the Craig cáse, and it is so ordered. | [
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Ed. F. McFaddin, Justice.
This is an unlawful detainer action. In the court helow the appellees, John Franco and Albert Pellin, were the plaintiffs, and the appellants, D. Cortiana and J. Cortiana, were the defendants. We will refer to the parties as they were styled in the trial court.
FACTS
The Kansas Educational Association of the Methodist Episcopal Church is a corporation organized and existing under the laws of the State of Kansas. A number of years ago this corporation, by mortgage foreclosure, became the owner of certain real estate in Washington county, Arkansas, the possession of which is herein involved. The corporation rented this land each year to the defendants, D. Cortiania and J. Cortiania, husband and wife. On January 29, 1946, the defendants executed a rent note to the corporation for $150 due September 1, 1946, and also signed a rent contract covering the land, which contract provided, inter alia;
“6. Should the lessees fail to pay rent as above stipulated, in full, they hereby agree that this lease shall at once terminate at that time, and that they will immediately give peaceable possession of said premises and that no holding over shall be construed as an extension or renewal of this lease.”
On October 7, 1946, the plaintiffs filed this action in unlawful detainer against the defendants. The complaint alleged that the plaintiffs were the owners of the land (having acquired title by mesne conveyances from the Kansas Educational Association); and that the Oortianias’ rent contract and note of $150 had also been assigned by the Association to L. L. Smith, and by Smith to the plaintiffs. The complaint also alleged that the defendants had failed to pay the rent note dne on September 1st; that under section 6 of the contract such failure forfeited defendants’ right to possession of the land; and that a notice to quit had been served on the defendants on October 1, 1946.
The defendants filed a general denial; and also filed a cross complaint against the Kansas Educational Association, L. L. Smith and John Franco and Albert Pellin. In the cross complaint the defendants alleged that they held a valid and binding agreement wherein the Association had agreed to sell to these defendants, for the consideration of $5,500, the land described in the rent contract, and being the premises involved in the action; and they tendered the $5,500 and prayed specific performance against said Association. The defendants also alleged that the conveyances from the Association to L. L. Smith and from Smith to John Franco and Albert Pellin, should be canceled. To obtain the relief prayed in the cross complaint, the defendants moved that the entire action be transferred to the chancery court. The circuit court overruled the motion to transfer to equity and later, in effect, dismissed the cross complaint.
On May 5, 1947, the cause was tried in the circuit court. The plaintiffs exhibited: (1) the deed from the Kansas Educational Association, acknowledged September 12, 1946, conveying the land in question to L. L. Smith; (2) the deeds from L. L. Smith to the plaintiffs dated September 30, 1946, conveying the land in question; and (3) the original note and rent contract of January 29, 1946, executed by the defendants to the said Association, and assigned by that corporation to L. L. Smith, and assigned by Smith to the plaintiffs. It was shown that the said rent note due September 1,1946, was unpaid, and that demand for possession of the premises had been made. The defendants admitted the nonpayment of the rent note; but sought to. show (1) an offer dated July 8, 1946, made by the Association to the defendants, to sell them the property; and (2) an acceptance of the offer by the defendants. They admitted that none of the purchase price had been paid, and also admitted that they held no deed from the Association, but insisted that they were entitled to a deed through specific performance of the contract, as they had claimed in their cross complaint.
At the conclusion of all of the evidence, both sides requested an instructed verdict; and the court gave one for the plaintiffs. From the judgment based on that verdict there comes this appeal; and the appellants urge that the trial court erred: (1) in dismissing the cross complaint; (2) in refusing to transfer the entire cause to chancery; and (3) in giving the instructed verdict for the plaintiff.
OPINION
At the outset we call attention to the case of Cherry v. Kirkland, 138 Ark. 33, 210 S. W. 344, in which we held that the grantee or assignee of the original landlord could maintain an action of unlawful detainer against the party who was in possession as the tenant of the original landlord. The holding in that case allows the plaintiffs here — -Franco and Pellin — to maintain this action. They showed all the essentials for a recovery in an unlawful detainer case — i. e., their position as landlord, a contract of rent, unpaid rent, defendants’ forfeiture of the right of possession, and plaintiffs’ demand for possession.
"What was the defense to the action? Defendants cross complained against the Association for specific performance of an agreement of the Association to convey to the defendants; but that did not constitute a defense in an unlawful detainer action. The trial court, in striking the cross complaint, followed our holding in Denton v. Denton, 209 Ark. 301, 190 S. W. 2d 291, which is directly in point. In the Denton case we reversed a trial court for entertaining a cross complaint which brought extraneous matters into an unlawful detainer action; and we quoted § 6058, Pope’s Digest, which reads: “No cross-action or actions for the recovery of the possession of premises in litigation by the defendant, or any person claiming under Mm, against the plaintiff or his lessee shall be brought under this act during the pendency of the first action. Provided, however, that nothing herein shall preclude such party from instituting and prosecuting an action of ejectment for the premises during the pendency of an action under this act.”
This.section was also authority for the trial court’s refusal to transfer the unlawful detainer cause to the chancery court, because the concluding sentence of the said section allows an ejectment action tcj be prosecuted even while the unlawful detainer action is pending. Both ejectment and specific performance (as here involved) are essentially proceedings for title and possession: so, the defendants, here, had the right to prosecute a suit in equity for specific performance even while the unlawful detainer action was pending in the circuit court. See Texas Hardwood Lumber Co. v. Richardson, 115 Ark. 28, 170 S. W. 481 and DeClerk v. Spikes, 206 Ark. 1004, 178 S. W. 2d 70. In Dunlap v. Moose, 98 Ark. 235, 135 S. W. 834, we pointed out the singleness of purpose of an unlawful detainer, action: “The action of unlawful detainer is only to decide the right to the immediate possession of lands and tenements, and not to determine the right or title of the parties to or in them.”
The present unlawful detainer action was filed in the circuit court on October 7, 1946, and was not tried until May 5, 1947, so there was ample time for the defendants to prosecute their specific performance suit. They could not, by interposing equitable claims, convert the unlawful detainer action into another form of proceeding, because other forums were open to them.
A study of § 6058, Pope’s Digest, also leads to the conclusion that the general rule — requiring the plead ing in one action of all possible claims or defenses against the opposing party — does not apply to actions of forcible entry and unlawful detainer; so for that reason Act 334 of 1941 affords no support to the defendants. The defendants may still prosecute a suit in equity for specific performance against the Kansas Educational Association; and may join therein its grantee and these plaintiffs (see Dunlap v. Moose, supra)-, but in this present action of unlawful detainer the defendants offered no defense sufficient to take the case to the jury. Therefore, the trial court correctly directed a verdict for the plaintiffs. We also observe that each side requested an instructed verdict, and no other requested instructions appear in the record; so the directed verdict has the force and effect of a jury verdict. See St. L. I. M. & S. Ry. Co. v. McMillan, 105 Ark. 25, 150 S. W. 112, and other cases in West’s Arkansas Digest, “Trial,” § 177.
The defendants gave bond and retained possession of the premises until the circuit court trial. Then, they gave a supersedeas bond and further retaining bond, and have continued to retain possession of the premises. We affirm the judgment of the circuit court here appealed from; but remand the cause to the circuit court to determine and adjudge the rents and other damages accruing since the judgment, and for execution and other proceeding’s not inconsistent with this opinion.
This section has an interesting history: It first came into our statutes by § 15 of the Act'of January 10, 1845; and continued in the statutes until the Code of 1869, when a different system of forcible entry was devised, which was a justice of the peace proceeding (see §§ 495 to 512,_ ine., of the Civil Code of 1869). But by Act 48 of 1871, the provision allowing the justice of the peace proceeding was repealed, and the old 1845 act was readopted; and through all the changes from 1871 to date this § 6058, Pope’s Digest, has' continued in effect, | [
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Grieein Smith, Chief Justice.
The case, like others of like nature coming from areas where unusual developments affect values, presents issues that have acquired importance because oil and gas have been found.
Pee ownership of approximately sixty acres, and the status of mineral and royalty deeds, are involved.
Prior to 1860 a plantation proprietor named Mack C. Smith owned Reason Criner — a slave set free by the Emancipation Proclamation of Jan. 1, 1863. The slave’s son, John H., lived with his father on the Smith lands in 1886. Record ownership of the southwest quarter of the southwest quarter of section nineteen, township fifteen south, range eighteen west, (Ouachita County) was in George L. Ritchie in 1894 and so continued until the litigation from which this appeal comes, although there were tax forfeitures and redemptions which are in no sense controlling here. Ritchie’s muniment of title was a deed from Creel Lumber Company, presumptively a corporation.
John H. Criner and his wife, claiming ownership — as the evidence in the case at bar discloses — cleared and improved the land the father said he owned, bnt through mistake erected buildings south of the line between sections nineteen and thirty. This encroachment extended 110 yards, and as projected east and west involves ap-. proximately ten acres. Title to the south half of the north half of the northwest quarter of section thirty was asserted by John IT. Criner through purchase from Peter Todd (John’s brother-in-law) in 1911. This is an irregular tract susceptible of description by metes and bounds only.
In February 1939 Criner and his wife, Mary, executed an oil and gas lease and a mineral deed to E. E. Scott and EL Andrews. By the terms of these documents only forty acres described as the southwest quarter of the southwest quarter of section nineteen were affected. Consideration was that the grantees should procure a decree quieting title in the grantors, or effectuate the same end by satisfactory means. The deed and lease were subsequently cancelled when it was judicially determined that consideration for their execution had failed. However, they were placed of record within two weeks after execution.
The suit resulting in cancellation, but broader in intended scope, was filed in November 1945 by J. C. Ritchie for himself and as attorney in fact for others. The decree was rendered December 10, 1946.
In September 1945 Ritchie, for himself and others he was authorized to represent, executed a deed conveying half of the mineral royalties pertaining to the southwest quarter of the southwest quarter of section nineteen, and the northwest quarter of the northwest quarter of section thirty. Within this area of eighty acres was all of the land claimed by Criner, either through purchase, adversé possession, or otherwise. Y. S. Parham, to whom the deed was executed for a consideration of $4,000, claims to have been an innocent purchaser, and the Court so found. Others who joined in the intervention were parties to whom Parham had conveyed certain interests. In finding that Parham and his grantees were protected, the decree vested fee title in Criner, subject to the outstanding rights.
The Ritchie interests have appealed from that part of the decree and from a finding that they should refund '$3,000 representing the sum received from Parham — this for the benefit of Criner; — while Criner has appealed from the holding that the royalty deed is good.
In holding that Criner was entitled to the property, subject to the rights of Parham and his grantees, the Court considered testimony showing that prior to 1894 Reason Criner had ‘£ bargained ’ ’ with Creel Lumber Company for the forty acres in section nineteen. A contract of some kind — the exact nature of which John Criner did not understand — was made between John’s father and the Lumber Company, in consequence of which the ex-slave paid $50 in cash or its equivalent and owed $50 on the purchase price of $100'. John testified that he agreed to pay this balance because his father was old; and he, (John) having but recently married, desired to utilize the property for home purposes. The Lumber Company is alleged to have executed bond for title.
Because title, was in the Lumber Company when Reason Criner made the contract, and because the Lumber Company in November 1894 conveyed the property to George L. Ritchie, John Criner, according to his testimony, “made a deal” with Ritchie to assist in perfecting title. John Criner and his wife each testified that a deed was executed by Ritchie. It was never placed of record, and was lost. Neither could there be found, the bond for title or any recorded entry relating to it.
By some process presumptively official (Koonce v. Woods, 211 Ark. 440, 201 S. W. 2d 748; Deniston v. Langsford, 211 Ark. 780, 202 S. W. 2d 760) the land was assessed in 1894 in the name of Ransom Criner and after having been sold for taxes in 1895 and bought by H. W. Myer, it was redeemed by John H. Criner. There was a penciled notation on the record of certificate of purchase indicating that it had been transferred to George L. Ritchie. Thereafter John H. Criner paid taxes until 1916.
Ritchie died in 1913, leaving an estate inventoried at more than $360,000. March 21, 1913, George R. Gordon was appointed administrator. He at once asserted claim to the so-called Criner land, had it assessed as property of the Ritchie heirs, and began paying taxes. During the greater part of the ensuing period no question appears to have been raised regarding Criner’s right to possession, as distinguished from ownership. The Ritchies now, however, contend that Criner was a tenant and paid rent.
J. C. Ritchie, who manages the Ritchie estate, was a resident of Ruston, La., in 1945. On September 3rd V. S. Parham called upon him for the purpose of purchasing royalty interests attaching to the two 40-acre tracts, one in section nineteen and the other in section thirty, as heretofore mentioned. Parham met Thomas Gaughan, an attorney of Camden, and asked his opinion regarding the Ritchie title. Gaughan, it appears, had represented Tide Water and Seaboard Oil Companies regarding an oil and gas lease executed by the Ritchie heirs.
Gaughan informed Parham that when the question of ownership was raised he procured from Criner (then in possession) a disclaimer in affidavit form. In this writing, dated March 18:, 1938, Criner affirmed that he was renting the land and claimed no interest other than that of a tenant. Parham and a friend — neither of whom was an attorney — examined Ouachita deed and mortgage records and found the conveyance of 1894 through which George L. Ritchie took from Creel Lumber Company. An abstracter’s certificate was procured, showing that the Ritchies had paid taxes for the ten preceding years.
While the negotiations were pending Parham and his associate undertook to make a personal inspection of the land. Parham testified that he was not familiar with the exact location, but entered a tract and made inquiry of an old Negro who identified himself as John L. Criner. He asked who owned the land (subsequently found to be the property in litigation) and was told that it belonged to the Ritchies, but that he (Criner). rented. Parham then endeavored to procure from Criner a disclaimer of title. The Negro first agreed to the proposal, provided Parham could give assurance that he would not be disturbed in possession [as tenant] during the remainder of his life, and that a payment of $50 be made.
In the meantime the Ritchies had drawn a draft on Parham for the amount involved. After considering what Graughan had told him and what Criner himself had said regarding tenancy, Parham concluded to complete the agreement and directed the bank to pay the draft drawn for the Ritchies by Graughan. That night Parham called Ritchie by telephone and received assurance that Criner’s possession would not be disturbed. The following day when Parham saw Criner, the latter refused to sign either a quitclaim deed or a disclaimer, explaining that his wife and son did not want the documents executed. Smead Stuart, who was with Parham when he talked with Criner, supported Parham’s testimony.
We agree with the Chancellor that Criner’s conduct in asserting he was merely a tenant mislead Parham, and that without assurances of non-ownership the draft would have been dishonored. Criner’s mineral deed and oil and gas lease to Scott and Andrews, although recorded, were not in the line of title from Ritchie to Criner and were not constructive notice of Criner’s claim.But even so, Criner at a later period told Parham he was only a tenant.
We are also of opinion there was sufficient evidence to sustain the Chancellor’s holding that Criner either believed he held under a deed, and hence thought he was owner, or that relationships originally amicable had grown hostile as to the heirs. At least we are not willing to say the Chancellor erred in concluding that on the issue of a lost deed the evidence was clear and convincing. Oral evidence is in harmony with the record fact that for years the property was assessed in Criner’s name. There is no showing that the legal status changed when Cordon, who no doubt acted honestly upon prima facie showings made to Mm, caused tax receipts to be issued to the RitcMe estate.
The Chancellor thought that in addition to the deed, evidence of adverse possession preponderated. Although Criner’s testimony in support of the deed goes only to the claim that it conveyed the southwest quarter of the southwest quarter of section nineteen, the undisputed evidence is that he mistakenly assumed that the south line of the forty acres was approximately 110 yards farther south. He took possession of the additional ten acres in good faith, believing it was his; and, acting with the same good faith, he erected buildings. Criner thought the irregular area of about ten acres later bought from Todd was immediately south of the property in section nineteen, when in fact the two strips in combination accounted for almost twenty acres in section thirty. The chancellor found that the penciled notation made on the ■recorded certificate of tax purchase was “obviously” unofficial, that it was made by some third person, and was not intended as evidence of an assignment or transfer to Ritchie.
In explaining why the disclaimer procured by Thomas Gaughan was executed in 1938, Criner testified that Gordon, as administrator, had asked him to sign it so that he (Gordon) could “complete title to an oil and gas lease”. This testimony is somewhat corroborated by Richard K. Mason, a Camden attorney, who said that, seven or eight years before, George Gordon and John Criner came to his office and discussed some land about which there was a dispute. No papers or documents were shown him, and Gordon did most of the talking. Mason’s memory was hazy regarding details, but the idea he got was that Criner was to make certain concessions, in return for concessions by Gordou (presumptively acting for the Ritchie estate). The purpose, seemingly, was to permit Gordon “. . . to give a lease, or a mineral deed — whether it was surface or mineral rights I don’t remember — and they [were in my office] not more than five or six minutes. . . . Something was said about a waiver or disclaimer, [but] I don’t remember just [what], the words were. I believe I said, [addressing Criner], ‘All right, John, if yon sign that waiver it will pnt you out of court to any one who sees it’. And I believe I made the statement that Mr. Gordon would take care of him if he said he would”. Other facts and circumstances were considered, including payment of government agricultural benefits to Criner for a number of years.
We think that in view of all the testimony the Court did not incorrectly appraise the weight of evidence upon the one hand and its clear, cogent, and convincing nature upon the other; hence the decree is affirmed on appeal and cross appeal.
Mr. Justice McFaddin did not take part in the consideration or determination of this case. | [
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Smith, J.
On June 30, 1944, appellant Standridge entered into a contract with the Eoyal Lumber Company, a business partnership composed of and operated by Jeff Carpenter, Joe A. Eice and Eoy A. Eice, whereby appellant agreed to sell to the Eoyal Lumber Company all pine and hardwood timber located upon ah 1,100-acre tract of land, for an agreed price of so much per thousand feet. Several drafts of the contract of sale were .prepared, all by C. E. Alexander, who was the company’s bookkeeper, and who became its manager some time after the execution of the contract.
This suit was filed to cancel this contract on account of the alleged, breach thereof, and pending its decision, the company was enjoined from cutting and removing the timber. The relief prayed was denied, the injunction was dissolved, and the company’s time for cutting the timber was extended, for the period of time covered by the injunction, and from that decree is this appeal.
The contract as prepared by Alexander, contained a clause reading as follows: “The said second party (lumber company) shall be given a period of not to exceed three years in which to cut and remove the said timber according to this contract”. An advance payment of $100 was made, and its receipt acknowledged in the contract “as evidence of good faith on the part of the party of the second'part, said advance payment to be applied on the stumpage cost of said timber during the performance of said contract.” The contract was prepared in duplicate, a copy being given to each of the parties. Appellant carried his copy home with him for the purpose, as stated by him, of studying the contract, and the testimony concerning the circumstances attending its execution is sharply conflicting.
According to appellant lie objected to the contract as prepared, which had already been signed by the lumber company, because it contained no stipulation as to the time when the cutting of the timber should begin, and the manner in which it should be pursued, and he refused to sign it until an addenda had been prepared reading as follows:
“The parties to the foregoing contract further agree that the cutting of this timber shall start with the first available machinery which can be had by the second party, and that said milling operations will continue without interruption, barring natural or unforeseen- causes.
‘‘This addenda or rider is hereby made a part of the foregoing contract by and between Arthur Standridge, party of the first part and the Boyal Lumber Company, of Mt. Ida, Ark., party of the second part.”
This addenda was written in duplicate and a copy thereof attached to each of the copies of the original contract.
Jeff Carpenter, one of the partners in the lumber company, and Boy A. Bice, another partner, testified that the addenda was attached to the contract the next day after it had been signed by both parties, and the court accepted this view of the testimony, and under that view held that the addenda was void for the reason-that it constituted a material modification of the contract, and was void for the reason that it had not been signed as required by the statute of frauds, by the party here sought to be charged.
We take a different view of the testimony. It is undisputed that appellant objected to the contract as prepared, because it contained no provision as to the time when the cutting of the timber should begin, and it is undisputed also that it was agreed that the contract should be so modified as to provide a time for beginning cutting operations. The insistence is that the modification of the contract was not evidenced by the signature of the party here sought to be charged as required by the statute of frauds.
It is our opinion there was no modification of the contract, and that there was only one contract and that this writing referred to as an addenda was in fact a part of the original contract. Now it is true that this addenda was not attached to the contract until after it had been signed on behalf of the partnership, or party of the second part, but we find it also to be true that the addenda was agreed upon and attached to the contract before appellant signed it. The signature of the party of the second part would not make a complete contract. The signature of the other party was equally necessary, and there was no contract until both parties had signed, and as it was not signed by appellant until after the addenda had been attached as a part of the contract, we conclude that it became not a modification, but a part of the only contract between the parties.
As stated the testimony of Carpenter and Boy A. Bice supports the finding of the chancellor that the contract had been signed by both parties before the addenda was attached, but conflicting testimony and the probability of the case is to the contrary. It is undisputed that appellant Standridge was insistent that the contract be modified to stipulate when the cutting should begin, and it is also undisputed that this insistence was acceded to, and we think it highly improbable that Standridge signed or would have signed before the addenda was made, not as a modification, but as a part of the original contract. He is as positive as to the time when the addenda became a part of the contract as are Carpenter and Bice. We think the testimony of one Alexander, the bookkeeper for the lumber company, tips the scale on this issue of fact in Standridge’s favor.
Alexander’s testimony was as follows. He was the company’s bookkeeper and in charge of its office. The parties had been negotiating for about a week prior to June 30, 1944, the date of the contract. Witness made two or three rough drafts before the contract was agreed upon. Standridge carried his copy home to study it. Having carried the contract home to study it, we think it improbable that he signed before studying it. The witness further testified that Standridge returned the next day and insisted that a provision be inserted as to the time when the cutting should begin. But Mr. Rice, one of the partners, stated that this could not be done, as he did not know when machinery would be available to saw the timber, and the recital contained in the addenda was agreed upon. The witness was asked:
“And it was not signed by Standridge until you had placed that rider on the contract?”
He answered: “As I remember, that is right. Probably it had been signed by Jeff Carpenter as manager before that. I am not sure about that. As I remember, after this addenda was written then Mr. Standridge signed the contract.”
On cross-examination the witness was asked:
' “Now, I believe you say you do not remember exactly whether or not Mr. Standridge signed the instrument before or after this addenda had been placed upon the contract. ’ ’
He answered: “I don’t remember clearly, but I am inclined to believe it was after the addenda, because he kept hesitating about signing it until the agreement suited all parties. The contract as prepared suited the company and Mr. Carpenter may have already signed it, but Mr. Standridge did not sign it as I remember until the addenda was added.”
He was further asked on his cross-examination: “Why was that addenda not written on the original contract rather than be attached, as it is, to this paper ? ’ ’
He answered, “Because I didn’t know just how much space it was going to take up and I didn’t know whether I could get it on there or not. When descriptions are too long I sometimes write them on a separate piece of paper and paste it on.”
He was further asked: “Would you be sure that Mr. Standridge had not previously signed this instrument, before the addenda was written and attached to the contract?”
He answered: “Yes, I am pretty sure lie had not.”
Asked why he felt sure, he answered: “Because that was one of the things that Mr. Standridge contended for, the last thing, that addenda there, that clause-.”
We conclude from this testimony that the addenda was attached before Standridge had signed, and that the contract became complete only upon his doing so. The statute which it is claimed prevents the addenda from being binding upon the lumber company reads as follows: ‘No action shall be brought ... to charge any person upon any -contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them . . . unless the agreement, promise or contract upon which such action shall be brought, or some memorandum or note thereof, shall be made in writing, and signed by the party to be charged therewith, or signed by some other person by him thereunto properly authorized.” Section 6059, Pope’s Digest.
Inasmuch as the company did not again sign after the addenda had been prepared and attached to the original draft of the contract, it is insisted that the addenda is not enforceable against the company, the party here sought to be charged with the provisions of the addenda, because of the statute from which we have quoted. But it must be remembered that Alexander was the agent of the company and the statute permits signing by the party to be charged or by his authorized agent, and it was this agent who prepared and attached the addenda. Alexander prepared the addenda in the presence of two members of the lumber company who knew it had been prepared to meet Standridge’s insistence. This addenda does not refer to the Royal Lumber Company by its partnership name, but it does refer to the party of the second part, and that party was the Royal Lumber Company.
These facts bring the case within the rule announced in the case of Wood v. Conner, 205 Ark. 582, 170 S. W. 2d 997, which case reviewed some of the authorities, one of our cases among the number, as to what constitutes “signing” by the party sought to be charged, within the requirements of the statute of frauds. The instrument there in question was a note payable to the order of one Wood, who was the party sought to be charged in that ease. In preparing* the note Wood wrote his own name as the payee, but did not otherwise sign. It was there held that the name of Wood, the party sought to be charged, appearing in the note which he had prepared, was a sufficient signature to meet the requirements of the statute. We there quoted from the annotated case of Kilday v. Schamcupp, 91 Com. 29, 98 Atl. 335, L. R. A. 1917A, 151, the statement that “Where the defendant placed his own name in the body of the memorandum this was itself such authentication by him as to satisfy the statute of frauds.” We there also quoted from our case of Wilson v. Spry, 145 Ark. 21, 223 S. W. 564, a statement from Wood on Statute of Fraud, § 345, reading as follows: “It is not necessary that the memorandum should be contemporaneous with the contract, but it is sufficient that it has been made at any time afterward, and then anything under the hand of the party sought to be charged, admitting that he had entered into the agreement, will lie sufficient to satisfy the statute, which was only intended to protect parties from having parol agreements imposed upon them.”
In the chapter on the Statute of Frauds, 49 Am. Jur. 698, § 393, it is said: “The physical attachment of one document to another may establish the connection of the papers for the purpose of affording a memorandum to satisfy the Statute of Frauds, especially where the one is referred to in the other as an attached paper.”
If is admitted and undisputed that the addenda was attached to the contract in suit by pasting it, that this physical annexation was done by the agent and employee of the lumber company, and we hold that his action in so doing was the act of the lumber company, especially as it all took place in the immediate presence of members of that firm, with their knowledge and approval.
•These views result in the conclusion that the addenda was a part of the contract between the parties, and that it required the lumber company to begin cutting the timber with the first available machinery, and that these operations should continue without interruption barring natural or unforeseen causes.
Under the view of the court below that the addenda vas not a part of the contract, the lumber company had three years within which to cut and remove this timber, and as only 23 months of that time had expired when the suit was filed, the relief was denied, and the court made no finding as to whether the lumber company had proceeded with the expedition required by the addenda, nor shall we, but we do reverse the decree, and remand the cause with directions to adjudge whether the lumber company had proceeded with the required expedition before being enjoined.
The contention that relief by way of cancellation should be denied in any event, for the reason that appellant had the adequate remedy at law of suing for damages for the breach of the contract, may be answered by saying that appellant testified that his chief reason for selling the timber was to devote the land on which it grew, and was standing to the pasture of his large herd of cattle, this being appellant’s principal business, and it would be very difficult, if not impossible, to measure this damage.
The decree will, therefore, be reversed and the cause remanded with directions to adjudge the question of fact not passed upon. | [
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Holt, J.
Appellant, as administrator of the estate of his son, Dan Glidewell, deceased, sued appellee, Arkhola Sand & Gravel Company, an Arkansas corporation, to recover damages for the benefit of the widow and next of kin of the deceased, who had been found dead on the premises of the company in Van Burén at about 10 o ’clock on the night of February 7, 1946.
Specific acts of negligence of the company were alleged in the complaint of appellant to have caused the death of Glidewell. Appellee’s answer was a general denial and further pleaded, as a bar to recovery, the contributory negligence and assumption of risk of Glide-well, the deceased.
Upon a trial and at the close of all of appellant’s testimony, the court, on appellee’s motion, directed a verdict in favor of appellees. This appeal followed.
The rule is well settled that in testing the sufficiency of the evidence where there has been a directed verdict, as here, if there is any substantial evidence, it is the duty of the trial court to submit the question to the jury, and in making this test, the evidence and all reasonable inferences deducible therefrom must be viewed in the light most favorable to the party against whom the verdict was directed. Collett v. Loews, 203 Ark. 756, 158 S. W. 2d 658.
Appellant’s evidence showed that appellee operated a sand and gravel plant on the banks of the Arkansas River at Van Burén, from which it sold sand by the truck load to truckers who called for it. Appellee pumped sand from the river bed and after it was washed and screened, it wa§' carried by a conveyor belt and dumped in a pile over and upon a concrete tunnel, the tunnel being-used to facilitate the loading of open bed trucks. This tunnel is inside about 8% feet wide, 10 feet high, and about 100 feet long, running east and west. It was enclosed except at the east end which is open -to -admit entrance of trucks. This sand pile was about % acre in area at the bottom and approximately 40 feet in height. The tunnel had four or five openings in its roof, approximately 18 inches square, each closed with an iron scuttle having a lever handle. In loading sand, the truck driver backed his truck under the tunnel under one of these openings and when the scuttle was pulled down and the hole opened, the sand would flow into the truck by gravity and fill the truck. The flow of sand was stopped when the loading was completed by pushing up on the lever handle and closing the scuttle. The sand was called for and sold both day and night, and drivers frequently loaded their own trucks without assistance. At night, after the workmen had gone, the premises were in charge of the night watchman who had a small office near a roadway that led onto the premises and down to the mouth of the tunnel. After work hours when a driver-brought his truck for a load of sand, it was the custom to go by the night watchman’s office and if the watchman were there to pay for the load and then go on down and secure his load. The trucker was sometimes accompanied by the night watchman and on occasions, the trucker went alone and loaded his truck without assistance. The tunnel and Sand pile were unlighted at night.
The evidence further showed that the deceased was 31 years of age, healthy, strong, a hard worker, and with a life expectancy of 34 years. He owned his own truck and had been in the trucking business for about eight years, hauling for those who procured his services, and was earning about $250 per month with which he supported a wife and two- children. At about 3 o ’clock p. m., February 7, 1946, he was engaged by a party at Lavaca, Arkansas, to haul some plaster to Fort Smith and then get a load of sand at appellee’s plant in Yan Burén to be hauled back to Lavaca.
At about 10 o’clock p. m. of the same day, two of appellant’s witnesses, Lewis and Christy, arrived in a truck at appellee’s plant to procure a load of sand. They were accompanied to the tunnel by the night watchman and there they found the truck of the deceased, Glide-well, backed'into the tunnel in position to load sand. The truck was fully loaded and unattended. The night watch man proceeded to drive Glidewell’s truck out of the tunnel and the Lewis and Christy truck was backed in. While Lewis and Christy were, preparing to load, the night watchman reported that he had found a hat on the sand pile. He immediately called officers who,' together with the night watchman, Lewis and Christy, went up on the pile of sand, and after digging above the loading shoot over the place where Glidewell’s truck had been found, they discovered Glidewell’s body buried in the sand with his feet in the shoot. He was in a crouched position and dead. He was in the bottom of an inverted cone of sand, the sides which sloped up to a maximum of about 15 feet in height. ■
Some five other witnesses testified on behalf of appellant that at times they had procured sand from the gravel company (appellee) and had loaded their trucks at this tunnel and at times when the sand was wet, it would sometimes stick and fail to .flow freely through the scuttles into the trucks. When this occurred, it was necessary to dislodge the sand to cause it to flow freely. These witnesses were further permitted to testify, over the objections of appellee, that there was a custom of the drivers to go on top of the tunnel on occasions when the sand would not flow freely, to dislodge it by shovelling or prodding with an iron bar or stick. This testimony was admitted on condition that it be connected up with the deceased by some substantial evidence showing that deceased had knowledge of such custom.
The sand pile in which the deceased’s body was found was described by appellant’s witnesses as an “ordinary river sand no different than any other sand;” “just a loose pile of sand;” “the same kind that’s in' any sand pile that comes out of the river;” that it would slide and shift and change position, and stick when it got wet, like any other sand.
There were no eye witnesses to the occurrence of the death of Glidewell.
The sand pile was shifting and changing from time to time, sometimes low and sometimes big, and would change as sand was taken out and more sand added.
The deceased at the time of his -unfortunate death was an invitee on appellee’s premises, and appellee owed him the duty to use ordinary care to keep its premises in a reasonably safe condition to prevent injuring him.
The negligent acts upon which appellant based his complaint were: (1) that appellee negligently maintained and operated its place of business, failed to give haulers, and Dan Glidewell in particular, proper warning and instructions in loading the sand and the dangers incident thereto; (2) that appellee was negligent in failing to maintain sufficient help to Dan Glidewell in loading the sand when appellee knew or should have known, that an inexperienced person could not load same; (3) that appellee was negligent in that it failed to provide proper loading stations and in allowing the pile of sand to become wet, causing it to clog easily “and fail to go into said chutes;” and (4) that appellee negligently failed to clean out said loading chute or tunnel and allow sand to accumulate therein “so that it was impossible for the said Dan Glidewell to enter into said tunnel or chute for the purpose of loading said vehicle.”
On the record presented, we have reached the conclusion that the trial court correctly directed a verdict in favor of appellee.
As we view the testimony, appellant’s whole case is based on inferences, speculation, and conjecture. We find no substantial testimony to support the allegations of negligence in this case.
It is undisputed that the deceased, Dan Glidewell, left Lavaca at about 3 o’clock on the afternoon of February 7th to get a load of sand at appellee’s plant at Van Burén and haul it back to Lavaca. There is no evidence in this record that he was seen again until his body was found at about 10 o’clock that night in the sand pile of appellee.
Sunset on February 7, 1946, occurred at 5 :52 p'. m. (Missouri Pacific Railroad Company v. Magness, 206 Ark. 1081, 178 S. W. 2d 493), and that more than three hours of daylight therefore, remained after Glidewell left Lavaca within which to complete his mission. The distance from Lavaca to Van Burén is approximately 25 miles over a paved road. The record is silent as to the time Glidewell reached the sand plant. No one appears to have seen him.
The record also fails to disclose whether the deceased loaded his truck himself, whether he had assistance, whether the sand stuck or failed to flow freely into the truck, whether it was daylight or dark, whether Glide-well climbed on the pile of sand over the tunnel to dislodge it and was caught in a sand slide, while engaged in dislodging the sand and thus buried and killed, whether the deceased was inexperienced in loading the sand, or whether out of curiosity Glidewell might have climbed on the pile of sand, stumbled into the hole, fell by reason of dizziness or heart failure, the evidence fails to disclose.
The burden rested on appellant, in order to make a jury question, to adduce some substantial testimony from which the jury might have found some act of negligence on the part of appellee, alleged in appellant’s complaint.
This, appellant might establish, either by direct or circumstantial testimony. He could not rely upon inferences, based on conjecture or speculation in order'to establish proof of negligence. “What is meant is that an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.” 20 Am. Jur., § 165, p. 169.
In Fort Smith Gas Company v. Blankenship, 193 Ark. 718, 102 S. W. 2d 75, we said: “The indulgence of inferences will not supply a non-existent fact. Inferences to support a verdict arise out of facts established by evidence. Other inferences are purely speculative, on maybe guesswork or conjecture. This method of dealing with the rights of parties has been condemned by many decisions. (Citing cases.) ”
And in Moran v. State, 179 Ark. 3, 13 S. W. 2d 828, it was said: “It is not allowable, under the rules of evidence, to draw one inference from another, or to indulge presumption upon presumption to establish a fact. Reasonable inferences may be drawn from positive or circumstantial evidence, but to allow inferences to be drawn from other inferences, or presumptions to be indulged from other presumptions, would carry the deduction into the realm of speculation and conjecture.”
The above case, Ft. Smith Gas Company v. Blankenship, and Missouri Pacific Railroad Company, et al., v. Ross, Administrator, 194 Ark. 877, 109 S. W. 2d 1246, were cited in 32 C. J. S., “Evidence,” § 1044, p, 1129, in support of the following text: “An inference can be drawn only from the facts in evidence, and cannot be based on surmise, speculation, conjecture, or guess.”
In the Ross case, in which there were no eye witnesses to the accident, (as here) and circumstantial evidence was relied upon rather than direct testimony, and the question was whether there was any substantial evidence to be submitted to the jury, the deceased’s body having been found on the side of the railroad track with evidence of physical injury, we said: “We are asked to say (1) that when the body was found as related by witnesses, the conclusion necessarily followed that Ross was.killed by a train; and (2) that attending circumstances were sufficient to satisfy the rule that every verdict must be sustained by some substantial evidence, either direct or circumstantial. If this be conceded, still the question remains unanswered. Upon what testimony did the jury predicate a finding that the statutory duty of care was disregarded? . . ., Conjecture and speculation, however plausible, cannot be permitted to supply the place of proof,” and in Turner v. Hot Springs Street Railway Company, 189 Ark. 894, 75 S. W. 2d 675, we find this language:
“The trial court was correct in directing a verdict for appellee, because the testimony adduced by appellant was not sufficient to show that the injuries received were proximately due to any negligence of appellee. No witness testified that appellant’s fall was proximately due to the small pieces of snow and ice afterwards seen in the vestibule of tbe street car. It is true, tbe jury might have guessed or speculated that her fall was caused by stepping upon the small pieces of ice and packed snow in the vestibule of tbe street car, but, on tbe other hand, it was equally as probable tbat ber fall was caused by packed snow or ice wbicb bad accumulated on ber own shoes. Tbe point is, juries are not permitted to guess or speculate as to tbe proximate cause of an alleged injury, the burden resting upon appellant to show by a preponderance of tbe evidence tbat ber injuries were caused by some negligent act or omission of appellee. ... In the recent case of National Life & Accident Ins. Co. v. Hampton, 189 Ark. 377, 72 S. W. 2d 543, we stated the applicable rule as follows: 'It is tbe well-settled doctrine in tbis State tbat a jury’s verdict can not be predicated upon conjecture and speculation,’ and continuing we adopted the rule as announced by tbe Supreme Court of tbe United States in Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, 21 S. Ct. 275, 45 L. Ed. 361, as follows: 'It is not sufficient for tbe employee to show tbat tbe employer may bave been guilty of negligence — tbe evidence must point to tbe fact tbat be was. And where tbe testimony leaves the matter uncertain, and shows tbat any one of half a dozen things may bave brought about the injury, for some of which tbe employer is responsible and for some of wbicb be is not, it is not for tbe jury to guess between these half a dozen causes and find tbat tbe negligence of tbe employer was the real cause, when there is no satisfactory foundation in the testimony for tbat conclusion.’ ”
So here, as we bave indicated, unless we build inference on inference, or delve into speculation or conjecture (wbicb we cannot do), there is no substantial evidence of negligence in tbis record, as we view it.
No negligence could be inferred from appellee’s maintaining a large pile of ordinary sand on its premises and tbat it would be necessary for appellee to warn Dan Glidewell of any danger incident thereto. We know of no rule of law tbat would make a pile of sand, as here, prima facie dangerous. Tbat piled sand when wet will stick, and when dry and piled over an opening and released, will pour by gravity through an opening, is generally known to everyone. Appellee had no superior knowledge to that of the deceased in this regard. Therefore, there was no duty resting upon appellee to warn Dan G-lidewell. Appellant, however, earnestly argues that the trial court erred in refusing to permit him to show, by witnesses, that it was the custom of other drivers who came to appellee’s plant for sand, to climb upon the tunnel in order to dislodge the sand when, and if, it became stuck or clogged in the chutes. It appears that the court disregarded this offered testimony of appellant on the ground that appellant had failed to adduce any testimony that the deceased knew of, or ever participated in, such- a’ custom. The trial court was correct in disregarding this testimony, for we find no evidence that deceased knew of or ever observed such custom.
All the witnesses who testified as to the purported custom also testified that they had never seen the deceased on appellee’s premises prior to his death, and that they knew nothing as to what he saw or did while .there.
In the chapter on “Customs and Usages,” 25 O. J. S., § 9, pp. 84 and 85, the text writer says: “A party relying on a usage must himself have had knowledge of it at the time the transaction was entered into; . . . A party to a transaction cannot set up a usage of the other party, of which the party setting it up was ignorant at the time of the transaction, . . .,” and in Wall v. Mutual Life Insurance Company of New York, 217 Ia. 1106, 253 N. W. 46, the Supreme Court of Iowa stated the rule: “It is another well-settled principle that where a claim is made of particular custom and usage the same must be known by the parties affected by it or it will not be binding. Or, to say it another way, where one seeks to advantage himself of a particular custom or usage, the same must have been known to him at the time he acted and he must have acted and relied thereon. ’ ’
The Supreme Court of South Carolina in J. B. Colt v. Robinson, 137 S. C. 224, 135 S. E. 312, said: “As to the first ground of error: The testimony complained of, and which was admitted by the circuit judge over the objection of the plaintiff, had to do with alleged transactions between the plaintiffs and persons other than the defendant in the present case, with reference to the plaintiff’s methods of dealing with such persons regarding the sale of lighting plants similar to that sold to the defendant, and to statements alleged to have been made to these persons by agents of the plaintiff during such negotiations. No connection or relationship between these transactions and the transaction alleged to have taken place between the plaintiff and the defendant was shown, and this testimony was clearly inadmissible. ’ ’
We therefore conclude, after consideration of all the testimony in this case, that there was no substantial evidence to take the case to the jury, and accordingly, the judgment must be, and is affirmed. | [
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Gtrieein Smith, Chief Justice.
The appeal is from a judgment that petitions filed with the County Court .were sufficient to require an election under Initiated ’ Act No. 1 of 1942-3. The measure deals with intoxicating liquors.
Appellants think that because Act 74 of 1883 divided the County into two districts for Circuit, Chancery, and Probate Court purposes, it must have been in legislative contemplation that County Court — in respect of subject ‘matter — would not have jurisdiction if rights enjoyed by citizens of one district would be prejudiced by action of citizens of the other district. Specifically it is argued that self-determination is a right enjoyed by subdivisions within the County; hence, the Eastern District (with Berryville as the site of government) should not be permitted to add the names of its petitioners to those originating in the Western District (Eureka Springs) when the result of an election participated in by the County as a whole might defeat the will of those voting in the Western District.
Reliance is upon Act 147 of 1901 authorizing separate voting in the Eastern and Western Districts “ . . . at any general election ‘for license’; [whereupon] the County Court may grant dramshop or drinking saloon license in said District”.
It is not necessary to determine whether Act 30 of 1915, applicable to the state, repealed Act 147. It prohibits issuance of license and repeals conflicting laws. To the same effect is Act 13 of 1917, known as the Bone Dry Law.
Effect of our holdings is that Act 108 of 1935, as amended, and Initiated Act No. 1 of 1942-3, must be looked to for authority to engage in liquor transactions. Hughes v. State, 209 Ark. 125, 189 S. W. 2d 713. The opinion cites Mondier v. Medlock, 207 Ark. 790, 182 S. W. 2d 869, where it was said that the formula promulgated in Initiated Act No. 1 “was complete in respect of elections.”, and that “no essential constituent of an election is left to intendment”. In the light of these and related holdings, we must refer to the Initiated Act for guidance. It provides that when the requisite number of electors shall petition the Court of any County, the Court shall order a special election “to be held in such County, township, municipality, ward, or precinct, to be affected thereby”.
It was decided in Denniston, County Judge v. Riddle, 210 Ark. 1039, 199 S. W. 2d 308, that when a County as a whole votes “dry”, no subdivision may thereafter have a-separate vote on the liquor issue.
Distinction between the facts here presented, and issues ■ adjudicated in Scaramuzza v. McLeod, Commissioner of Revenues, 207 Ark. 855, 183 S. W. 2d 55, is that by Sec. 5, art. 13, of the Constitution, two county seats were authorized for Sebastian County, “at which County, Probate, and Circuit Courts shall be held as may be provided by law. ’ ’
The Act of 1883 applicable to Carroll County,- after creating divisions for Circuit, Chancery, and Probate Courts, directs that certain things be done (p. 115) “by the County Court of Carroll County”. The County Clerk (Sec. 18) must keep financial records, each to be as distinct “as though the two Districts were separate . . . counties”.
These provisions do not sustain appellants in their argument that the County Judge has separate jurisdictions as to subject matter. On the contrary, reference in Section 15 to “the County Judge of Carroll County” negatives the thought that the limitation contended for was intended. [See Belford v. State, 96 Ark. 274, 131 S. W. 953].
Affirmed. | [
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Robins, J.
The chancery court denied appellant’s prayer for an injunction to prevent appellees from continuing to construct a dwelling house on a rectangular tract sixty feet in width and two hundred forty feet long, situated west of Block 5 of McClure and Bayliss’ Addition to the City of Russellville, and the court also refused to require appellees to remove the building, which was forty per cent complete when the suit was filed. In the decree, however, the lower court held that appellant was “entitled to such damage to his property which he may be able to sustain by proof” by reason of appellees’ interference with appellant’s easement over the said tract.
Appellant asks us to reverse that portion of the decree by which his prayer for injunction was denied.
‘Appellees have cross-appealed against that part of the decree which might be construed as a finding that appellees are liable in .damages to appellant. There was no .prayer in appellant’s complaint for such damages and no proof relating to the amount thereof. All parties have treated the decree below as final, apparently assuming that the decree contemplated establishment of amount of appellant’s damages in a separate proceeding.
It is the contention of appellant, owner of land adjoining on each side the tract upon which appellees were constructing the house, that this tract had been dedicated as a street in the plat of the addition of which it was a part, and that the dedication was also shown by a deed executed by L. B. McClure and John A. Bayliss, the owners at that time, to appellant. Appellee, W. L. Smith, asserted title by virtue of a later deed executed by McClure to said appellee.
The ■ land involved in this litigation is situated in the western part of Russellville on the north side of Main Street, which runs almost east and west, its exact course being north 71 degrees west.
This property was formerly owned by L. B. McClure and John A. Bayliss, who laid it off into an addition designated as “McClure & Bayliss’ Addition.” In this addition were located eight full-sized blocks of twelve lots each, with two fractional blocks at the east end of the addition. Four of the full blocks and one fractional block abutted on the north side of Main Street and a like number on the south side. Block No. 5 was in the northwest corner of this addition, .and the southwest corner of this block was 112 feet along the north side of Main Street from the quarter section line which formed the western boundary of the addition. The northwest corner of this Block 5 was (on line parallel with Main Street) 194 feet east of this quarter section line, the difference in distance growing out of the fact that the addition was laid out in conformity with the lines of Main Street, which did not run exactly east and west.
On the plat of the addition, filed by McClure and Bayliss, the tract involved herein, 60 feet wide and 240 feet long, is not designated as a street, but it is apparently the width of the north.and south streets in the addition. This area, on the plat, is shown with north and sonth boundary lines, as well as east and west lines. Other spaces shown as streets bear names, and do not have any north and south boundary lines to enclose them.
Immediately west of the tract in dispute here, the remainder of the land in the addition north of Main Street forms a trapezoid, the east line of which is 240 feet long, the north line 134 feet, the west line 254 feet, and the south line (along the north side of Main Street) 52 feet.
Block 5 and this irregular tract were conveyed to appellant by McClure & Bayliss on November 18, 1922, by deed containing, after the description of the property, this clause (which is the basis for appellant’s claim of easement), to-wit: “Leaving a street sixty feet wide between Block Five of the McClure & Bayliss Addition to the City of Russellville, Ark., and the last described tract herein conveyed.”
On September 22, 1945, McClure sold and conveyed to appellee, W. L. Smith, certain unplatted land lying immediately north of the McClure & Bayliss Addition; and on November 8, 1945, McClure, for an expressed consideration of $1.00, conveyed, by metes and bounds, to said appellee the rectangular tract 60 feet wide by 240 feet long, in controversy here.
McClure testified that, since he had sold to said appellee the unplatted land lying north of the addition he (McClure) no longer needed the sixty-foot strip which he had reserved in his deed to appellant for an outlet to his acreage north of the addition, and, assuming that Smith wanted to use it only for this purpose, he conveyed it to him without requiring any payment therefor. Smith did not agree to this version of the matter, saying that McClure let him have the tract in controversy for a nominal consideration because he had already paid a large sum to McClure for the acreage lying to the north.
After acquiring deed to the sixty-foot rectangle said appellee made an effort to purchase from appellant the trapezoid west of this rectangle, but appellant refused to sell. '
According to appellant’s testimony construction of the dwelling house on the disputed tract was begun on, or about, June 2,1947. This suit to restrain further work on the building, a one-story dwelling of modern and substantial construction, the walls being of concrete blocks on foundation of the same material, was filed by appellant on August 13, 1947. The outside walls and the roof had been finished at that time; and there was testimony to the effect that it would be impracticable to move the house. On the same day appellant served on appellees notice that application for temporary, restraining order would be made on August 15,1947. This application seems not to have been presented, and the trial was not had until September 2, 1947.
There is a conflict in the testimony of the parties as to whether appellee Smith, at the time he began building,. was warned by appellant that the tract on which he started construction was a street. But in the view we take of the matter this conflict is unimportant. While the plat filed by McClure and Bayliss did not reflect a dedication of the area as a street (and Mr. McClure testified that he never formally made such a dedication), the deed from McClure and Bayliss to appellant, showing that the disputed tract was to be a street, was sufficient to vest in appellant an easement over this rectangle; and appellant’s deed had been recorded long before appellees acquired any rights in the premises. Appellees therefore had record notice of appellant’s easement.
Nor could this easement of appellant be revoked by McClure’s action in afterwards conveying the rectangle to appellee Smith. The rule is well settled that, where a landowner conveys property to another and in the conveyance provides for an easement for the grantee, this amounts to an irrevocable dedication and the grantee may enforce Ms right to snch easement, regardless of any attempted conveyance thereof by the grantor. Rogers v. Bollinger, 59 Ark. 12, 26 S. W. 12; Talbert v. Mason, 136 Ia. 373, 113 N. W. 918, 14 L. R. A., N. S. 878, 125 Am. St. Rep. 259.
The lower court denied appellant’s prayer for injunction solely on the ground that appellant was estopped by his delay in seeking relief. This holding presents the basic question for decision herein.
One of the cardinal principles of equity, often applied by the courts, is that equity will lend its aid only to those who are vigilant in asserting their rights. Sims v. Petree, 206 Ark. 1023, 178 S. W. 2d 1016. This principle is especially applicable where, as here, the suitor has sought to invoke a drastic remedy such as injunction, and it has often been held to bar one who waits until another party has expended a considerable sum in erecting a structure, complained of as an interference with an easement, before asking an injunction against the completion and maintenance of such structure. “A party seeking equitable relief against interference with an easement must be prompt in doing so. ” 28'C. J. S. 799.
We think the supreme court of Illinois, in the case of Carstens v. City of Wood River, 344 Ill. 319, 176 N. E. 266, correctly stated the rule thus: “One who seeks equitable relief against interference with an easement must act with reasonable promptness after learning of the proposed violation of his rights, and cannot stand idly by and permit the structures complained of to be completed at large cost without objecting. Equity, in all cases where a mandatory injunction is sought, will strictly require that the application for relief be promptly made, and a failure to assert such right, without sufficient excuse therefor, until after large expenditure of moneys, operates as a bar to relief in a .court of equity. ’ ’
The undisputed testimony shows that, after appellees began constructing the dwelling, appellant waited three .months, and until appellees had expended approximately $2,000 in the construction work, before seeking equitable redress. The lower court properly held that by his inaction he was estopped.
While the language of the lower court’s decree might be susceptible of such a construction, we do not think that the lower court meant to decree that appellant was entitled to damages and that appellant should be remitted to a court of law to establish the amount of such damages; but, in reality, the lower court’s holding was that the decree denying appellant’s prayer for injunction should not bar an action by appellant for any damages that he might be able to show he was entitled to recover against appellees; nor was there any adjudication as to how much of the rectangular tract has been closed to appellant’s use. The essence of the lower court’s ruling was that appellant had, by failing seasonably to institute his suit, lost his right to require removal of the dwelling house. We treat the decree of the lower court as adjudicating this one question and nothing more. When the decree is thus interpreted, it is apparent that appellees are not entitled to any relief here on their cross-appeal.
The decree of the lower court is therefore affirmed, both on direct and cross-appeal. | [
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Ed. F. MoFaddin, Justice.
Mrs. Ghaska Williamson filed suit for divorce and alimony and property settlement against her husband, Collie E. Williamson. Mrs. Williamson’s alleged grounds for divorce were indignities, cruelty and habitual drunkenness.' There was also an effort in the evidence to imply that he had committed acts of adultery. Mr. Williamson, by cross complaint, sought a divorce on the claim-that he had been defrauded into contracting the marriagb. The issue • of property rights and alimony consumes a considerable portion of the record of 315 pages, which is also replete with many charges and countercharges. The chancery court denied' a divorce to each party, but awarded Mrs. Williamson the sum of $100 per month as permanent alimony or separate maintenance, and also awarded her all costs and $300 attorney’s fee. Both sides have appealed.
I. Mrs. Williamson’s Claim for Divorce.
A. Adultery. Although the complaint did not charge it, there was some evidence tending to show Mr. Williamson guilty of alleged acts- of adultery. The evidence was entirely insufficient to support a decree on that ground, even if it had been properly alleged.
B. Indignities, Cruelty and Drunkenness. The parties first became acquainted in 1938 in Fort Smith, Arkansas, where Mr. Williamson was employed as a salesman. After four or five months, Mr. Williamson was transferred to Missouri, and he took with him the future Mrs. Williamson and her four-year-old daughter — child of a former marriage. The Williamsons were later married in 1938, and lived together until October, 1942, by which last-mentioned date they had returned to Fort Smith. Mrs. Williamson obtained a divorce in February, 1943, on the grounds of cruelty and indignities. Alimony and property rights were not involved in that decree.
A few days before the divorce decree was granted, Mr. Williamson received from his father substantial real properties in Independence county, now claimed to be worth in excess of $100,000; and Mr. Williamson removed to his properties shortly after receiving title. Notwithstanding the February, 1943, divorce decree, Mrs. Williamson went to Independence county in September, 1943, and she and Mr. Williamson lived together without any marriage ceremony until February 2, 1946, when they were remarried. They continued as husband and wife, until July 18, 1946, when Mrs. Williamson left him on account of her alleged grounds of divorce. This suit was filed on July 20, 1946, and in it she sought alimony of $250 per month and statutory dower in personal and real property. A hearing was held on the alimony claim on August 12,1946, and that evidence has been duly brought into the record before us.
We forego detailing the complete evidence in the record, because to do so would give this opinion the flavor of a modern salacious novel. It is sufficient to say that Mrs. Williamson’s testimony in the alimony proceedings shows that she is not entitled to a divorce on any of the grounds claimed in her complaint; and this for the reason now to be given. She testified that she and Mr. Williamson lived together — but unmarried — from 1943 to 1946; that, during such period, he was guilty of continuing indignities, cruelties and drunkenness; that, notwithstanding this, she married him. She introduced no corroborative evidence that, as a prerequisite to such remarriage, she exacted of him any promise of reformation; and she testified that his acts of indignities, cruelty and drunkenness were no worse after the February, 1946, marriage than prior thereto. She gave answers to questions as follows:
“Q. You testified that every time you mentioned to him about getting married, he cursed you and abused you and was mean to you, and in spite of all that you wanted to marry him? A. I either wanted to marry or leave him. Q. He didn’t make you stay? A. Well, what else could I do? He had brought me back, but after he got me here he wasn’t willing to settle anything. I wouldn’t have stayed if I had had anything to leave him on. Q. You had as much as you had the other day. A. Naturally. Q. You stayed because you wanted to stay? A. I married because I wanted to. Q. No one made you stay after' you married him. What did he do after you married him in February this year — what did he do? A. He did the same things he had been doing. Q. The same things he had been doing before you married? A. Yes, sir. Q. And has continued ever since? A. Yes, sir.”
In the light of this testimony, it is obvious that before the remarriage Mrs. Williamson was well aware of Mr. Williamson’s bad habits. He continued to be guilty of indignities, cruelty and drunkenness after they remarried, but she cannot use these acts as grounds for divorce, because she knew of them in advance. When parties live together in an illicit relationship simulating marriage, and one party is guilty of continuing acts of indignities, cruelty and drunkenness to the other, and they subsequently marry without any corroborated proof of a promise of reformation, and after the marriage the same indignities, cruelty and drunkenness continue in no greater degree than before, then, in such case, equity will not allow the continuing misconduct to be claimed as grounds for divorce.
We find no case in our reports with facts exactly like those in the case at bar, but there are cases from other jurisdictions that may be cited as persuasive of the statement just made. Rankin v. Rankin, 17 S. W. 2d 381, lists facts somewhat similar to those in the case at bar. There, the Kansas 'City (Missouri) Court of Appeals held that á wife, having married her husband for the third time-with full knowledge of his disagreeable habits, could not assert such habits as grounds for divorce, since his continuing bad conduct was the natural outcome of his previous and well-known and settled bad habits. In Tilton v. Tilton, 29 S. W. 290, the Court of Appeals of Kentucky said: “ . . . and the cruelty of the husband, consisted in his persistent purpose to lead a life of dissipation; and this the unfortunate woman was apprised of, ánd assumed to risk, when taking him as her husband; and upon this state of facts the chancellor would have been justified in dismissing her petition, and certainly denying to her such relief as an absolute divorce. ’ ’
The philosophy of the law applicable to a case like the one at bar is well expressed in Caswell v. Caswell, 64 Vt. 557, 24 Atl. 988, 33 A. S. R. 943, in these quoted words: “To entitle one to relief in a divorce court the party must come with clean hands. It is a general doctrine that a man shall not complain of what he knew . . . at the time of the marriage. ” See, also, the topic, “Ante-Nuptial Knowledge of Cause,” in 19 C. J. 82 and in 27 C. J. S. 607.
We, therefore, affirm the chancery court in refusing Mrs. Williamson’s divorce, not only for the reason already stated, but also for the additional reason that the testimony was sharply disputed, and the chancellor saw the witnesses and heard them testify, and we cannot say that his findings are against the preponderance of the evidence.
II. Mr. Williamson’s Claim for Divorce. We likewise affirm the chancery court in refusing Mr. Williamson a divorce. Even if his wife had married him for his money and pretended a nonexisting’ love for him, and even if that were a ground for divorce — ydiich we do not decide — nevertheless, he lived'with her for several years before the marriage, knowing of her desire to'marry him and obtain a “settlement.” Furthermore, he lived with her for several months after the marriage, and never left her. ITis claim of “fraud” clearly appears to be an afterthought, and an attempted defense against a property settlement rather than a real claim for a desired divorce.
III. Separate Maintenance. The chancery court awarded Mrs. Williamson one hundred dollars per month as separate maintenance or permanent alimony, and we affirm this portion of the decree. Mr. Williamson was guilty of indignities, cruelty and drunkenness. Mrs. Williamson cannot claim these acts as grounds for divorce, for the reasons previously stated; but, as long as she remains away from him because of his misconduct, the award of one hundred dollars per month is justified by the evidence.
IV. Attorney’s Fee and Costs. The chancery court allowed Mrs. Williamson three hundred dollars attorney’s fee and all costs. Since she has been forced to defend Mr. Williamson’s cross appeal, we increase the attorney’s fee an additional one hundred and fifty dollars, and award all costs against Mr. Williamson.
With the said additional award of $150 attorney’s fee, we affirm in all other respects the decree of the chancery court. | [
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(xrieein Smith, Chief Justice.
Lillie M. Jones died intestate in 1946. Her husband had been Scipio A. J ones, well-known Negro lawyer, whose estate she had administered. A petition, followed by interventions, asked Probate Court to determine who were the heirs of Lillie M. Jones. Prom a judgment that the persons designated were entitled to the interests set out, Minnie Lockett has appealed.
In an amended order of September 2, 1947, entered nunc pro tunc as of April 1, 1947, the distributive interests were adjudged, based upon the following findings: Tom and Ben Lockett were full brothers of Lillie Jones, and Walter Allen was a half brother. Daughters of Tom Lockett were Ada Cole and Minnie Lockett, who were half sisters. Ben Lockett had a son, Teo, and a daughter, Reola Travis. Walter Allen had one daughter, Luvenia Adams. Teo Lockett, who inherited from his father, Ben, died intestate, leaving a daughter, Willie May Lockett-Johnson. A one-third interest was awarded Luvenia Adams, and to Ada Cole, Minnie Lockett, Reola Travis, and Willie May Lockett-Johnson, a sixth, each.
Appellant contends that Ada Cole failed to prove that Tom Lockett and Ada’s mother, Charlotta Webb, were married; hence it was not established that Ada was legitimate, and the presumption that she was' Tom’s daughter because of his access to Charlotta was not sustained. It is likewise contended that as to Minnie Lockett the evidence does not establish she was Tom’s daughter, and a half-sister to Ada Cole. The belief that Minnie’s claim is spurious rests upon testimony that her mother was named Sarah, and that Sarah and Tas McNeill lived together. Tas died in 1915. Minnie is said to have been born in 1911. Tom married Sarah in 1918.
Another exception to the Court’s finding of facts is that there is> insufficient proof that Lillie Jones had recognized Walter Allen as a half brother, or had admitted any degree of relationship. For this reason, urges appellant, Luvenia Adams should be excluded.
There was testimony that Luvenia’s paternal grandfather was Elijah Allen and her paternal grandmother was Marguerite Adams; also that Marguerite “after-wards” married Allen Lockett. Lillie Lockett was a daughter, and she married Scipio Jones. Appellant insists there is no proof of cohabitation between Elijah and Marguerite, nor was it shown by common acceptation and reputation that Elijah and Marguerite were man and wife. Marguerite was Lillie Lockett’s mother, hence it was incumbent to show that Luvenia was Marguerite’s granddaughter.
The brief in behalf of Luvenia Adams questions the quantum of proof required to overthrow factual findings of a Probate Court. Campbell, Administrator, v. Hammond, 203 Ark. 130, 156 S. W. 2d 75, discusses admissible testimony. It was there said that on appeal a Probate cause will be tried de novo, as are Chancery cases. The concurring opinion was in agreement on this point. That part of the opinion relating to admissibility of evidence is referred to in Wilson v. Dodson, Administrator, 203 Ark. 644, 158 S. W. 2d 46; Gocio v. Seamster, Judge, 20.3 Ark. 937, 160 S. W. 2d 194, and in Farrell, Administrator, v. Holland, 205 Ark. 523, 169 S. W. 2d 643.
Gray v. Fulton, 205 Ark. 675, 170 S. W. 2d 384, expressly holds that where an appeal from Probate Court “is supported by a preponderance of the evidence, as distinguished from substantial evidence, it will be affirmed if that is the only question”.
We are frank to say that the evidential basis upon which some of the claims rest would be more satisfactory if marriage or divorce had been established by record proof. This, however, is not imperative if circnmsfances make the procedure impracticable. Some of the witnesses told of conduct that occurred more than thirty-five years ago, and of acts upon which presumptions were based. Conversations touching upon relationships, duties discharged and obligations performed, interest'in a child or children — care, solicitude, or the absence of these- — such transactions were brought before the trial court. They come here with the prima facie verity that attaches to judgments and decrees.
It is fundamental that one who claims to be the heir of a decedent must, as a prerequisite to the right to participate in the estate, establish the relationship relied upon. Holt v. Brackville et al., 158 Ark. 642, 250 S. W. 33. A presumption of marriage, however, may stem from cohabitation, accompanied by declarations of the parties and behavior consistent with the status alleged. Martin v. Martin, ante, p. 204, 205 S. W. 2d 189. In the cited case the inference relied upon was held insufficient because there was proof in contradiction that John Martin married Fannie Woods in 1895 and there was no divorce until 1902; hence, as the opinion says, John was under a legal disability that jjrevented marriage to Lena Watkins during the period of their cohabitation, and bigamy is not presumed.
We are not persuaded that a preponderance of the evidence does not support the judgment.
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Holt, J.
Appellee, R. V. Madden, brought this suit against appellant, B. P. Magness, to recover damages for an alleged breach of a contract of employment.
From a judgment, on a jury’s verdict, awarding appellee $5,250, comes this appeal.
Appellee, in substance, alleged in his complaint that about June 2, 1945, appellant employed him as manager of the Earle Fertilizer & Seed Company and the Magness Milling Company, for a term of five years at a salary of $350 per month, plus 30% of the net profits of the business, “guaranteeing the plaintiff (appellee) that such profits would not be less than $50 per month, and further agreeing to pay all travelling, entertaining and other expenses incident to the operation of the business; that said contract was in’ writing” and signed by the parties; that appellee entered upon his duties prior to July 1, 1945, and continued until November 3, 1945, when he was discharged, without reasonable cause, by appellant and sought damages in the amount of $8,000.
Appellant’s answer was a general denial and affirmatively pleaded the Statute of Frauds as a complete defense and further defended on the ground that at the time of the execution of the alleged contract, he was so intoxicated that he did not grasp or comprehend the consequences of his acts.
Appellee based his right to recover upon the following writing, in the form of a letter: “June 1, 1945. Mr. R. Y. Madden, Osceola, Ark. Dear Sir: Confirming our conversation today we offered you the position as Manager of the Earle Fertilizer & Seed Company and the Magness Milling Company on the following terms.
“We agree to pay you a salary of $350 per month plus 30% of the net profits from these businesses. Guaranteeing that this will equal a salary of $400 per month. All traveling and entertainment and any other expenses pertaining to the operation of the business will be paid by the Company. The office overhead expenses to be equitably prorated at a later date. We will make satisfactory financial arrangements to handle the maximum amount of business. You are also given an option to buy 1/3 of the business on or before five years at the original cost plus improvements less normal depreciation.
“I own the Magness Milling Company and 75% of the Earle Fertilizer & Seed Company. Yours very truly, (signed) B. P. Magness, B. P. Magness. Accepted 6/2/45 (signed) R. V. Madden — Signed 7/20/45.”
The trial court took the view that there was sufficient ambiguity in the contract to warrant its construction to be submitted to the jury and this was done under appropriate instructions.
Appellant argues that the court erred in so doing and says “there is no ambiguity in the contract. Its construction was for the court, not the jury.” “But the trial court should not have submitted to the jury the question of construction of this contract and left to it the right to fix its terms, for the reason that there was no ambiguity.”
It was appellant’s contention that under the plain terms of the contract appellee’s employment was from month to month, whereas appellee contended that his employment was intended to be for a term of five years as provided in the following clause: “You are also given an option to buy 1/3 of the business on or before five years at the original cost plus improvements less normal depreciation,” and that we think when the contract is considered in its entirety, as it must be, that there was sufficient uncertainty as to what the parties intended by the words used, as to the duration of the employment, to make a jury question, and extrinsic testimony was properly admissible to show the intention of the parties.
In the early case of Haney v. Caldwell, 35 Ark. 156, Mr. Justice Battle, speaking for the court, said: “As a general rule, oral evidence is not admissible to contradict or vary the terms of a valid written contract. . . . But if a contract is not certainly intelligible by itself, extrinsic testimony is admissible to show the intention of the parties, ... In all such cases the extrinsic testimony is not admitted to prove what the parties to the instrument may have secretly intended; or to add to, take from, change, vary, contradict, or modify; hut to find out what is the meaning of the written words they have used, and the true sense thereof as they used them. ’ ’
Appellee testified that he was 53 years of age and had been an oil worker from about the age of 18, and had held various positions until July, 1936, when he became manager .of the Ralston-Purina Mill at Osceola, which he held until June 5, 1945, as long as the company owned the plant. There was evidence that he was capable and a highly efficient operating manager. He was a successful and skilled mill superintendent with valuable connections, knew the industry well and was successful in building up the Ralston-Purina’s business.
Appellant, Magness, a farmér and ginner, being in need of a manager, sought out appellee and as a result, the contract, supra, was entered into between them. Appellee began actual work under the terms of the contract on July 1, 1945, and on the first Saturday of November, 1945, after the mill was in operating condition, appellant discharged appellee on the ground that appellee was “too high priced a man,” and because only one man could run the business on the black market.
At the time of his discharge, appellee was paid four months’ salary in the amount of $1,400.
Appellee testified: “I told Mr. Magness that I wouldn’t consider coming down there for one year; and unless it was a permanent thing, I wouldn’t consider it. He said ‘come on down, it’s permanent,’ ” although he, appellee, understood the contract to cover a period of five years. He further testified that appellant suggested that he purchase a home, which he did, and that Magness advertised the connection in a large number of trade publications, stating that appellee was interested in, and would manage, the mill. Appellee was unable to relocate and obtain employment for approximately twelve months after his discharge and spent approximately $700 looking for employment and was otherwise damaged.
We think it unnecessary to detail all the testimony. Appellee’s general fitness for the position of manager of appellant’s companies at Earle was undisputed and when all the evidence is considered, we are unable to say that there was no substantial evidence to support the jury’s finding, in the circumstances here, that it was the intention of the parties, under the terms of the contract, that appellee’s tenure of employment was for a term of five years.
While appellant argues that the following clause in the contract: "You are also given an option to buy 1/3 of the business on or before five years at the original cost plus improvements less normal depreciation,” was only an option to appellee to purchase at any time within the five-year period, we think that the jury might have found, as they evidently did, that this clause furnished, a clue to the real intention of the parties which was that the contract should continue for a five-year term.
In the case of Norton v. Cowell, 65 Md. 359, 4 Atl. 408, 57 Am. Rep. 331, the Court of Appeals of Maryland had for consideration an action brought to recover wages alleged to be due on a contract of hiring. The contract was in the nature of a letter, in part as follows: "Capt. John Cowell- — Dear Sir: Your conduct during the last eighteen (18) months that you have been in my employ, has given me great satisfaction; and now .' . .1 appoint you superintendent of all my ships. . . . And your wages will be ($100) one hundred dollars per month, with all hotel and other expenses; and, if you give me satisfaction at the end of the first year, I will increase your salary accordingly.” There the court said: "But stipulation for the payment of wages quarterly, monthly, or even weekly, are not inconsistent with a yearly hiring. Fawcett v. Cash, 5 Barn. & Adol. 908. For, as said by Lord Kenyon, C. J., in the case of King v. Birdbrooke, 4 Term. R. 245: ‘Whether the wages were to be paid by the week or the year can make no alteration in the duration of the service, if the contract were for a year.’ Here the written agreement furnishes a clue to the real intention of the parties, when it says: ‘If you (the appellee) give me satisfaction, at the end of the first year, I will increase your salary accordingly.’ Why at the end of the year, rather than at any other time, if the contract was monthly, or only at will, as contended by the appellant? This passage of the letter, taken in connection with the situation of the parties, and the nature of the service to be performed, would seem to leave no room for doubt as to what was really contemplated by the contract of employment. It would not be reasonable to suppose that it was intended that the appellee should have the right to terminate the contract at will, and thus to imperil the interests of his absent principal.”
The general rule is stated in The American Law Institute, Restatement of the Law of Agency, p. 1030, § 442, in this language: “However, the fact that payment is to be made in accordance with a time unit is evidence, in connection with other relevant facts, indicating that the agreement is for such unit. Thus, an agreement for the period of time mentioned as that for payment, or as the basis for payment, is indicated if one party pays consideration aside from his promise to employ or to serve; or if the agency is an important one and of a kind such that a temporary appointment would not be likely to be made; or if, as the principal has notice, the employee has made an important change in his general relations in order to accept the position, such as the removal of himself and his things to a new place; or if he has given up a position of some value in order to enter the employment.” (161 A. L. R. 713.)
In the case of Bennett Lumber Company v. Walnut Lake Cypress Company, 105 Ark. 421, 151 S. W. 275, this court said: “The purpose of all interpretations is to ascertain and give effect to the intention of the parties to the contract as expressed by their writing, and in doing this it is necessary to consider the circumstances surrounding the making of the contract, its subject, the situation and relation of the parties and the sense in which, taking these things into consideration, the words used would be commonly understood; for it fairly may be assumed that the parties used and understood them in that sense,” and in Wood v. Kelsey, 90 Ark. 272, 119 S. W. 258, it was said: ‘‘Courts may acquaint themselves with the persons and circumstances that are the subject of the statements in the written agreement, and are entitled to place themselves in the same situation as the parties who made the contract so as to view the circumstances as they viewed them, and so as to judge of the meaning of the words and of the correct application of the language to the things described.”
So here, appellee’s general fitness, the importance of the position, the likelihood that a short term of employment was not contemplated, the fact that appellee had established his home in Earle with the thought of permanency, and that it.was unlikely that appellee would care to buy a one-third interest during the five year period unless he were the manager during that time, all could properly be considered in determining tenure of employment intended by the parties under the wording of the contract.
The question of appellant’s intoxication at the time of the execution of the contract was submitted to the jury under instructions about which there is no complaint.
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McHaney, J.
Appellee, a citizen, taxpayer and qualified elector of the City of West Memphis, Arkansas, a city of the first class, brought this action against the City, its Mayor, Clerk, and members of the City Council to enjoin them from issuing $50,000 in bonds and from pledging any revenues therefor under the provisions of Amendment No. 13 to the constitution for the construction of a municipal auditorium in said city pursuant to the provisions of ordinance No. 135 adopted May 6, 1947, and after an affirmative vote of the electors of said city held on June 10, 1947.
Appellee alleged that prior to the adoption of said ordinance No. 135, to-wit, in 1938, the City Council had passed ordinance No. 77, pursuant to said amendment, which authorized the issuance and delivery of $50,000 in 4% bonds for the purpose of purchasing a site for and constructing a combination city hall and building to house the city’s fire-fighting equipment, and for other purposes, which had been approved by a vote of the people, and had been issued, sold and delivered, are dated December 1,1938, are not callable prior to maturity, ma ture January 1 of the years 1942 to 1960, and that the bonds Nos. 14 to 54, inclusive, aggregating $37,500 are still outstanding and cannot be paid prior to their maturity dates.
Section 4 of said ordinance 77 reads as follows: “In order to pay the bonds as they mature, with interest thereon, there is hereby levied upon all real and personal property within the City of West Memphis a tax of five mills for each of the years 1938 to 1959, inclusive, with five per cent, added for unforeseen contingencies, and if the proceeds of said tax are not sufficient to pay said bonds with interest as they mature then said levy shall be continued from year to year until the last of said bonds is paid in full; and the City Recorder is directed to transmit a certified copy of this section of this ordinance to the County Clerk of Crittenden county to the end that said taxes may be extended on the tax books of said county and collected annually along with the other taxes.”
The bonds issued in 1938 under the provisions of ordinance 77 state on their face that: “For the prompt payment of this bond and all others of this issue and the interest thereon, the City of West Memphis hereby pledges its full faith, credit and taxing power, including the five mill tax authorized to be levied by said amendment to the Constitution (No. 13) and levies by Ordinance No. 77 of the City of West Memphis passed and approved on the 26th day of November, 1938.”
Other allegations set out a complete history of the two ordinances and appellee’s contention that the attempted pledge by Ordinance No. 135 of a,nj part of the five mill levy made and pledged by Ordinance No. 77 is void.
Appellants answered admitting a number of the allegations of the complaint and asserted that, when the 1938 bonds were executed and delivered, the taxable property in the City was $849,121, and that a five mill tax thereon was required to pay the principal and interest on said bonds, but that since then there has been a large increase in the assessed valuation, so that at this time it amounts to $1,386,527, and a five mill tax thereon produces substantially more than the total amount required to service both issues as they mature, as shown by the schedules of payment in both said ordinances.
A demurrer was interposed to the answer, was sustained, and this appeal followed.
Appellants say the question presented is: “Can the City of West Memphis use the surplus revenue derived from the five mill tax, and can it pledge this revenue in payment of a different bond issue, subject to the prior claim of the first bond issue?”
This question must be answered in the negative, as did the trial court. In the first place there is “no surplus revenue derived from the five mill tax” which is not already pledged by both § 4, above quoted, of said Ordinance No. 77 and the language in the bonds themselves, also above quoted. Not only is the whole of this five mill tax pledged to pay the principal and interest of the 1938 bond issue, but the full faith and credit of the City and all its taxing power are pledged for this purpose. There is, therefore, no surplus available to be pledged for the 1947 issue of bonds. It may be true, as the answer alleges and the demurrer admits, that a surplus accumulating in the bond account is over and above the amount. necessary to service the 1938 bonds, but it is not avaliable for the purpose now sought, because it has been pledged. The levying of the full five mill tax in 1938, authorized by Amendment No. 13, exhausted the power of the City to levy any further tax under said amendment, except for bonds for water works and light plants, and no other tax may be levied under said amendment until all bonds issued in 1938 have been retired. Rogers v. Parker, County Judge, 211 Ark. 957, 203 S. W. 2d 401. See, also, Campster et al. v. Sanderlin, County Judge, ante, p. 665, 208 S. W. 2d 16.
The decree is accordingly affirmed. | [
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