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Minor W. Millwee, Justice.
This is an appeal from a judgment of the Circuit Court refusing to set aside an order entered by that court on May 5, 1947, which affirmed appellant’s conviction in the justice of the peace court for the crime of possessing intoxicating liquor fov the purpose of sale in dry territory.
Appellant alleged in the motion that he was prevented by “accident, mistake and information” from attending court on May 5, 1947, when the circuit court affirmed the judgment of the justice court. It was further alleged that he perfected his appeal from the justice of the peace judgment assessing a fine of $50 against him, and duly executed a bond for his appearance in circuit court on the first day of its 1947 term; that he appeared on said date and was advised by the court clerk that there would be no court that day, and that appellant would be notified when to appear for trial; that on the evening of May 5, 1947, he learned that the justice of the peace judgment had been affirmed and a fine of $250 assessed against him. It was also alleged that appellant was legally in possession of the wine and liquor which officers found upon his premises without a valid search warrant.
According to the testimony given by appellant at the hearing on the motion to set aside the order affirming the justice court judgment, he appeared at the courthouse on April 28, 1947, the first day of the April, 1947, term and was informed by the deputy circuit clerk that the latter was reasonably sure that court would be held on May 5, but that appellant would be notified when to appear for trial. He understood that he had been fined $50 by the justice of the peace instead of $250 as shown by the transcript of the proceedings in justice court filed in circuit court.
The testimony of appellant was disputed by that of the deputy circuit clerk and the justice of peace who tried appellant on the charge. The clerk did not remember having a conversation with appellant on April 28th and informed all who made inquiry on that date that court would definitely be held on May 5th. The testimony-of the justice of the peace was to the effect that he offered to fix appellant’s fine at $50, after he was found guilty of the charge, if the latter would promise to quit handling-liquor in the town of Caraway and settle the. case in justice court, but the offer was not accepted and appellant was told that his fine was $250, as shown by the transcript.
Appellant contends that the circuit court was without power to affirm the judgment of the justice of peace court in view of the decision of this court in Thomas v. State, 41 Ark. 408, where it was held that § 4280 of Pope’s Digest does not authorize an affirmance of a justice of the peace court judgment in an appeal of a misdemeanor case where the defendant fails to appear in the circuit court. This case was decided prior to the enactment of § 4228 of Pope’s Digest, which is § 4 of Act 151 of 1905, and provides: “If the appellant shall fail to appear in the circuit court when the case is set for trial, . . . then the circuit court may, unless good cause be shown to the contrary, affirm the judgment of the justice, or police, or city court and enter judgment against the appellant for the same fine or penalty that was imposed in the inferior court, with costs, and the same shall have the same force and effect as other judgments of the circuit court in cases of convictions or indictments for misdemeanors.” In view of the provisions of this statute and § 3973 of Pope’s Digest, which provides that a trial may be had in the absence of the defendant in misdemeanor cases, the circuit court has authority to affirm the judgment of the justice of the peace court on appeal, if a defendant fails to appear and the penalty imposed is a fine only, as in the case at bar.
Appellant also insists that the possession of three quarts of wine and one pint of liquor in dry territory is not a violation of the law under Act 91 of 1947, which makes it unlawful to possess more than a gallon of intoxicating liquors in dry territory. But this statute has no application where the- possession of a quantity of intoxicating liquors, less than a gallon, is for the purpose of sale in violation of law.
Motions to set aside judgments filed within the term at which such judgments are entered, are addressed to the sound discretion of the trial courts. McDonald v. The Olla State Bank, 192 Ark. 603, 93 S. W. 2d 335. The trial court concluded from the testimony offered on the motion to set aside the former judgment that appellant had due knowledge that court would convene on May 5, 194.7, and we are unable to say that an abuse of discretion is shown in his refusal to vacate the order affirming the judgment of the justice of the peace court.
Affirmed. | [
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RITA W. GRUBER, Judge.
| Appellant Henry Wayne Mills, the twenty-two-year-old son of appellee Henry Mills, intervened in an existing domestic-relations case between his parents to collect unpaid child support on his own behalf. He appeals the trial court’s order awarding him a judgment in the amount of $13,018.80, which amount includes an attorney’s fee of $1,100.50 and court costs of $100. The trial court also ordered that interest shall accrue on the judgment at a rate of ten percent per annum. Appellant brings two points on appeal: first, the trial court erred in awarding interest from the date the petition to collect child support was filed rather than from the date the child support should have been paid; and second, the trial court abused its discretion in granting the statutory minimum in attorney’s fees. We reverse and remand for the trial court to recalculate the amount of interest due to appellant, but we find no abuse of discretion with regard to the court’s award of attorney’s fees.
| ¿Interest
We turn to appellant’s first point on appeal: interest awarded. The amount of interest due on unpaid child support is governed by statute. See Ark.Code Ann. § 9-14-233(a) (Repl.2008). We review a trial court’s interpretation of a statute de novo, as it is for the appellate courts to decide what a statute means. Baker Refrigeration Sys., Inc. v. Weiss, 360 Ark. 388, 201 S.W.3d 900 (2005).
Appellant contended in the trial court that Ark.Code Ann. § 9-14-233(a) required the trial court to award interest on the unpaid child support from the date that it should have been paid. The trial court rejected appellant’s argument and awarded interest on the unpaid child support from the date appellant filed his petition to collect the unpaid support. The trial court agreed in the hearing that the statute provided that interest accrued when the child support became due; however, the court determined that the language in section 9-14-233(a) was not mandatory, and it found such a calculation of interest was not equitable in the case before it because of the delay between the time the support became due and the time appellant filed his petition.
There are two questions before this court: what does the language in the statute mean, and is this language mandatory? Arkansas Code Annotated section 9-14-233(a) provides that “[a]ll child support that becomes due and remains unpaid shall accrue interest at the rate of ten percent (10%) per annum unless the owner of the judgment or the owner’s counsel of record requests prior to the accrual of the interest that the judgment shall not accrue | ¿interest.” The basic rule of statutory construction is to give effect to the intent of the legislature. Great Lakes Chem. Corp. v. Bruner, 368 Ark. 74, 82, 243 S.W.3d 285, 291 (2006).
Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. We construe the statute so that no word is left void, superfluous or insignificant, and we give meaning and effect to every word in the statute, if possible.
Id. (internal citations omitted).
The language in the statute before us states that interest shall accrue at the rate of ten percent per annum on “[a]ll child support that becomes due and remains unpaid.” This statute governs actions to collect unpaid child support; it does not govern the enforcement of earlier judgments that have already been entered. Unpaid child support becomes due on the date the initial child-support order requires it to be paid, not on the date a petition is filed to collect it. See, e.g., Sharwm v. Dodson, 264 Ark. 57, 60, 568 S.W.2d 503, 505 (1978) (stating that entitlement to payment of child-support installments vested as they accrued). We explained the difference between an action to collect accrued child-support arrearages and an action to enforce a judgment in Johns v. Johns, 103 Ark.App. 55, 286 S.W.3d 189 (2008).
In Johns, Ms. Johns had obtained judgments in 1982, 1995, and 1999 for unpaid child |4support owed by Mr. Johns. In 2006, Ms. Johns filed a motion for contempt against Mr. Johns for refusing to make payment on these arrearages and sought to enforce the 1999 judgment. Mr. Johns argued that Ms. Johns’s action was barred by the statute of limitations because the youngest child was more than twenty-three years old when the motion for contempt was filed in 2006. He argued that Ark.Code Ann. § 9-14-236(c) (Repl. 2008) only allowed actions for the collection of child-support arrearages to be brought “any time up to and including five (5) years beyond the date the child for whose benefit the initial child support order was entered reaches eighteen (18) years of age.”
We held that Mr. Johns’s reliance on this statute of limitations was misplaced because Ms. Johns was not bringing an action to recover accrued child-support ar-rearages from an initial support order but, rather, was seeking enforcement of a judgment, which was governed not by Ark. Code Ann. § 9-14-236 but by Ark.Code Ann. § 9-14-235. The court defined “accrued child support arrearages” as “a delinquency owed under a court order or an order of an administrative process established under state law for support of any child or children that is past due and owing.” Johns, 103 Ark.App. at 58, 286 S.W.3d at 191 (citing Ark. Code Ann. § 9-14 — 236(a)(1)). Citing Ark.Code Ann. § 9-14-235(e), the court defined a “judgment” as “unpaid child support and medical bills, interest, attorney’s fees, or costs associated with a child support case when such has been reduced to judgment by the court or become a judgment by operation of law.” Id.
In 1989, at the time Ark.Code Ann. § 9-14-233(a) was first enacted, a statute |figoverning the accrual of interest on a judgment already existed. Arkansas Code Annotated section 16-65-114 provides that interest on a judgment entered by a court shall bear interest at ten percent per annum. This statute has been in effect for judgments enforcing child-sup port arrearages since long before 1989. See, e.g., Shaman, 264 Ark. at 62, 568 S.W.2d at 506 (citing Ark. Stat. Ann. § 29-124 — the predecessor to Ark.Code Ann. § 16-65-114 — and stating that there is no question that the judgment for child-support arrearages bore interest at ten percent per annum). We find it difficult to believe that the legislature would have enacted a statute in 1989 simply to maintain the status quo and authorize something that had already long been the law regarding interest on judgments without even mentioning the word judgment. Rather, Ark.Code Ann. § 9-14-233(a) was aimed not at judgments but at the actual child-support arrearage — that is, at the “child support that becomes due and remains unpaid” — just as the plain language of the statute indicates.
Indeed, while not in issue in these cases, it appears that both this court and the supreme court have affirmed circuit court decisions awarding interest from the date the child support became due and remained unpaid rather than from the date the petition to collect the unpaid support was filed. See, e.g., Jones v. Billingsley, 363 Ark. 96, 98, 211 S.W.3d 508, 510 (2005) (awarding judgment for past-due child support of $10,816, plus interest of $4,867.20); Brandt v. Brandt, 103 Ark. App. 66, 70, 286 S.W.3d 202, 205 (2008) (requiring |ficircuit court to recalculate past-due child support and noting that “appropriate interest amounts should then be based upon these recalculations,” citing Ark.Code Ann. § 9-14-233(a)).
We now turn to the second question: is it mandatory that the circuit court award this interest? The language in the statute provides as follows: “[a]ll child support that becomes due and remains unpaid shall accrue interest at the rate of ten percent (10%) per annum unless the owner of the judgment or the owner’s counsel of record requests prior to the accrual of the interest that the judgment shall not accrue interest.” Ark.Code Ann. § 9-14-233(a) (emphasis added). Our supreme court has consistently held that the use of the word “shall” means that the legislature intended mandatory compliance with the statute unless such an interpretation would lead to an absurdity. Ramirez v. White County Circuit Court, 343 Ark. 372, 380, 38 S.W.3d 298, 303 (2001). The statute states that all child support that becomes due and remains unpaid shall accrue interest unless the owner of the judgment or the owner’s counsel of record requests prior to the accrual of the interest that the judgment not accrue interest. In this case, the owner of the judgment has not so requested; the legislature’s intent for unpaid child support to accrue interest is not an absurdity; and thus we hold that the statute required the circuit court to award interest on the unpaid child support from the time that it became due and remained unpaid, not from the date the petition was filed. We therefore reverse and remand for entry of an order consistent with this opinion.
Attorney’s Fees
17Appellant’s second point on appeal is that the circuit court abused its discretion by awarding the statutory minimum in attorney’s fees and that it violated his right to due process because it failed to afford him a hearing on this issue. We turn first to appellant’s contention that his right to due process was violated. First, it is unclear whether appellant is arguing that his right to due process under the United States Constitution or under the Arkansas Constitution or under both has been violated. Further, he has failed to mention of what life, liberty, or property interest he has been deprived by the circuit court’s alleged failure to afford him a hearing on the proper amount of attorney’s fees due to his attorney. Finally, he provides no convincing argument and no authority to show that the fees awarded to his attorney implicate appellant’s right to due process. We will not consider an argument, even a constitutional one, if appellant makes no convincing argument or cites no authority to support it. Hendrix v. Black, 373 Ark. 266, 283 S.W.3d 590 (2008).
We now turn to appellant’s assertion that the circuit court abused its discretion in awarding the statutory minimum in attorney’s fees. We will not set aside an award of attorney’s fees absent an abuse of discretion by the circuit court. Calvert v. Estate of Calvert, 99 Ark.App. 286, 288, 259 S.W.3d 456, 459 (2007). Arkansas Code Annotated section 9-14-233(b) (Repl.2008) states that the circuit court “shall award a minimum of ten percent (10%) of the support amount due or any reasonable fee, including a contingency fee approved by the circuit court, as attorney’s fees in actions for the enforcement of payment of support provided for in the order.” At the hearing, appellant’s attorney argued that his | sclient should be made whole with regard to attorney’s fees and that appellant was paying his attorney one-third of the judgment collected. In spite of this, the circuit court awarded ten percent of the support due as an attorney’s fee. The statute does not require the court to award a contingency fee. It gives the judge the discretion to award either “ten percent (10%) of the support amount due” or “any reasonable fee.” We hold that the circuit court did not abuse its discretion.
Reversed and remanded in part; affirmed in part.
PITTMAN and BAKER, JJ., agree.
. This provision was initially enacted in 1989, and the italicized portion of the statute was added in 2001 by Act 1248.
. We note that Ark.Code Ann. § 9-12-309(c), found in the chapter on divorce and annulment, contains identical language to Ark.Code Ann. § 9-14 — 233(a) and was in effect in 1989. | [
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G-rippin Smith, Chief Justice.
The question is whether the Court abused its discretion in refusing to reopen a judgment and hear proof in justification of the complaint of maladministration.
When William Thompson died in 1933 he owned 320 acres and a small amount of personal property. He was survived by a widow and eight children. Luther Thompson, a son, qualified as administrator in November 1933. His inventory of August 27th, 1934, lists assets other than land at $771.39. The items included $165.51 in cash, $110.38 in a restricted bank deposit, and various farming implements and stock. The land was thought to be worth $3,200. In addition it is contended that $225 in rents were collected. Three claims were filed: one for $43.48, one for $558.42, and the other for $250 — a total of $851.90. Sureties to the administrator’s bond were Roy Smith and Dr. S. A. Thompson. Smith is an officer in the corporation claiming $250, while the item of $558.42 was due Dr. Thompson. The claim for $250 was not itemized and was allowed at a time when the statute of limitation was applicable.
In June 1936 the administrator petitioned for authority to sell the lands to pay debts. The viewers returned an appraisement of $5 per acre and the property was bought by Dr. Thompson at a sale held June 27, 1936, the consideration being $1,075. Execution of the deed was approved July 27th of the same year. The administrator’s first and final settlement was approved in January 1937, having been filed the previous October. Credit was taken for an amount equal to sale price of the land. There was no mention of the personal property. The record showing these transactions was brought up by certiorari.
In July 1941 plaintiffs as the sole surviving heirs of William Thompson alleged that the administrator, in procuring an order to sell land for the payment of debts without disclosing possession of $996.23 in personal assets, practiced a fraud upon the court. It was alleged further that after acquiring the real property Dr. Thompson sold eighty acres — 40 by quitclaim deed to Hide Thompson for a consideration of $300, and 40 to Luther Thompson for $200. Each of these parties subsequently obtained quitclaim deeds from others who in these proceedings are plaintiffs. The grantees included in their pleadings a disclaimer to title and asked that the snm of $500 be treated as a credit on Dr. Thompson’s claim against the William Thompson estate. Dr. Thompson died during pendency of the litigation.
There were a great many pleadings, including a motion to dismiss. The Chancellor, as Judge of the Probate Court, delivered a written opinion with his judgment of November 23, 1946. Among other reasons for dismissing the action there was in effect a finding that because of laches the plaintiffs should not prevail. But there were also findings that, prima facie, the proceedings were regular; that it was sought to impeach what appeared to be valid judgments of a court having jurisdiction of the parties and subject matter. An excerpt from the opinion is: “ The record shows that the proposed sale of the real estate wa's advertised as required by law. It must be presumed that all of the parties knew of all of the details of the proceedings in the Probate Court, and no complaint or question was raised regarding the regularity or legality of said proceedings until the filing of this suit”, the order for such sale to pay the debts having been made approximately five years before suit was instituted.
Eegarding the allegation that Dr. Thompson did not act in good faith, the opinion says that ££ . . . the contention is not borne out by any facts, but appears to be based principally upon speculation”. It was then said that determination of the charge of fraud in procurement of the judgment directing sale of real property was a question passed upon by the Probate Court. The whole matter, says the opinion, was before that tribunal, and necessity for the sale was a fact adjudicated. There was comment on the widow’s right to statutory allowances, with the inference that a presumption of payment would arise, thus reducing by $450 the personal assets. Pope’s Digest, §§ 80 and 86.
Some of the personal property was shown to have been “one old wagon, $20; two sets of old gear, $3; one ‘middle buster’, $6.50; one two-horse turning plow, $6; one 1929 Chevrolet touring car $100”, and other imple ments of a similar character. Two goats were estimated to be worth $1, and three calves $9. A shotgun and .22 rifle were appraised at $7, a mowing machine at $65, three hogs, four cows, and three ‘yearlings’ at $79. There are references to evidence or information available to the Court, but not in the record.
We are not able to say that the Court incorrectly found that the allegations of fraud practiced in procurement of the judgments was insufficient, or that it was wrongfully found that delay militated ¿gainst rights that once existed. If the proceeding were one in Chancery to surcharge and falsify the administrator’s settlement because of failure to account for the personal estate, a different situation might be presented. The object, however, is to avoid the proceedings pertaining to sale of the realty. If any debts were payable and the personal property was insufficient to discharge them, the Court’s jurisdiction to direct sale of the lands attached. This was a question of fact to which the presumption must attach that the Court acted in compliance with law.
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Minor W. Millwee, Justice.
The parties to this suit are sisters and the sole heirs at law of W. T. Hawkins who died in Madison county, Arkansas, January 4, 1947. On January 28, 1947, appellant, Elsie Y. Sprawls, filed suit against appellees, Pollie O. Hawkins and Irma Par-due, her sisters, to cancel two deeds executed by their father on January 2, 1947, conveying 121 acres of land to appellee, Pollie O. Hawkins.
Appellant alleged in her complaint that at the time the deeds were executed her father was wholly incompetent to transact business, or understand the nature and consequences of his acts, by reason of age and infirmities; that appellee, Pollie O. Hawkins, procured the execution of said deeds by undue influence used upon her father at a time when he was mentally incompetent; and that said deeds were executed without consideration. It was further alleged that each of the parties was the owner of an undivided one-third interest in the lands as co-tenants. The prayer of the complaint was for cancellation of the deeds and partition of the lands according to the respective interests of the parties.
The answer of appellee, Pollie O. Hawkins, admitted the execution of the deeds to her by her father and denied other allegations of the complaint. A similar answer was filed by appellee, Irma Pardue, in which she denied incompeteney of her father to execute the deeds to her sister and asked that the deeds be sustained in conformity with the wishes of her father.
Upon a trial of the issues the chancellor on exchange rendered a decree dismissing the complaint of appellant for want of equity and this appeal follows.
Although the only grounds alleged in the complaint for cancellation of the deeds were the menthl incapacity of the grantor and undue influence of the grantee, appellant introduced testimony, without objection, in an effort to show that the deeds were executed by deceased in blank and that there was a want of delivery of the deeds. The appellees also introduced evidence, without objection, to establish the existence of an oral agreement between appellee, Pollie O. Hawkins, and her father whereby the latter agreed to convey the lands to her in consideration of services performed by her in caring for him and her agreement to continue to do so during his lifetime.
The evidence for the most part is not in serious conflict and is to the following effect: W. T. Hawkins resided on his farm about three and one-half miles west of Hindsville, Arkansas, with his wife and three daughters. About 15 years ago appellant, Elsie V. Sprawls, and appellee, Irma Pardue, the two younger daughters, married and moved to homes of their own. Appellee, Pollie O. Hawkins, remained with her parents assisting in the household and farm duties and caring for her parents. Mrs. Hawkins died in April, 1944, and W. T. Hawkins was afflicted with a disease of the kidneys for 13 months prior to his death on January 4, 1947, at the age of 73. At times he suffered painful attacks and his daughter, Pollie, nursed and took care of him and performed other duties of the household.
Prior to January 2, 1947, W. T. Hawkins- had requested A. H. Berry to come to his home to make some deeds. Berry arrived on the morning of January 2, accompanied by his son and a notary public. Hawkins in formed Berry that he wanted to deed his lands to his daughter, Pollie O. Hawkins, and furnished the scrivener with his old deeds for the purpose of obtaining a description of the lands to be conveyed. One of these deeds was made to deceased as “W. T. Plawkins,” and the other as “Tom Hawkins.” Hawkins signed two deeds to two separate tracts, as the old deeds were made to him, and acknowledged his signature before the notary public. Berry did not have his typewriter and the descriptions were typed in the deeds at his home shortly after Hawkins signed them. It is not clear from the testimony whether there were blanks, other than the description, filled in after Hawkins signed the two deeds. The notary public executed the acknowledgment on the morning of' January 3, 1947. On the same date Hawkins suffered a severe phvsical attack and was taken to a doctor’s office in Huntsville, Arkansas, where he died the following day. The two deeds were turned over to Pollie O. Hawkins on January 6, and were recorded on January 8, 1947.
Appellant- and two other witnesses gave it as their opinion that the deceased was not competent to execute the deeds when they were made, while the appellees, two younger brothers of the deceased, and other witnesses testified to the mental competency of the deceased at said time.
Appellee, Pollie O. Hawkins, testified that her father agreed to convey the land to her in consideration of the services which she had performed and her agreement to continue to take care of him as long as he lived. This testimony was corroborated by that of several other witnesses including the two brothers of the deceased, who testified that the latter had on several occasions, prior to the execution of the deeds, asserted his intention of deeding the property to his daughter, Pollie, because of the services she had rendered in caring for him and which she would be obligated to render for the balance, of his life. The two deeds recite a consideration of “services rendered and to be rendered” by the grantee, Pollie O. Hawkins. According to the testimony of the scrivener, this provision was placed in the deeds after deceased told him why he wanted the deeds made to his daughter, Pollie.
There is an absence of evidence indicating any undue influence used by Pollie O. Hawkins upon her father to procure' execution of the deeds. As to the mental, capacity of the grantor, the preponderance of the evidence is to the effect that deceased was in full possession of his mental faculties at the time he executed the deeds. Without attempting to detail the testimony on this issue it may be said that the conclusion as to mental incompetency of deceased expressed by witnesses for the appellant is unwarranted by the facts upon which such opinion was based. There was evidence that deceased was suffering considerable physical pain several hours after he executed the deeds although he appeared to be alert mentally even at that time.
The principal contentions for reversal of the decree are that the deeds are void for the reason, (1) that blanks were filled in the deeds after they were executed without written authority of the grantor, and, (2) there was no delivery of the deeds. The record fails to show a formal amendment of the complaint to allege these Objections to the validity of the deeds. However, since testimony was adduced thereon without objection, the complaint should be treated as amended to conform to the proof. By the same token the answer of appellees should be treated as amended to conform to the proof of the establishment of an oral contract to convey the lands existing between the grantor and his daughter, Pollie. In Kahn v. Metz, 88 Ark. 363, 114 S. W. 911, this court said: “It is objected that the settlement was not pleaded in the answer. But the evidence of the settlement and the written receipt evidentiary of it were received without objection. It is an undisputed fact of the case, only its effect being- a matter of controversy. It is permissible under the Code to amend pleadings to conform to the proof; and on appeal, where the pleadings have not been so amended, they are considered amended to conform to the testimony which has been adduced without objection. Railway Co. v. Triplett, 54 Ark. 289, 15 S. W. 831, 16 S. W. 266; Davis v. Goodman, 62 Ark. 262, 35 S. W. 231; Waterman v. Irby, 76 Ark. 551, 89 S. W. 844; Young v. Stevenson, 75 Ark. 181, 86 S. W. 1000. This principle has been applied to answers as well as complaints. Shattuck v. Byford, 62 Ark. 431; Trippe v. DuVal, 33 Ark. 811.
“This is an equity case, where the trial here is de novo on the record as made in the chancery court, and the pleadings will be considered amended here to' conform to defenses made ont by evidence introduced without objection.” Other cases-to this effect are collected in West’s Ark. Digest, Yol. 2, Appeal & Error, §.889(3).
Under this state of the record we find it unnecessary to determine-whether the deeds were void for the reasons urged by appellants. Regardless of the validity of said deeds, when all the pleadings are treated as amended to conform to evidence adduced without objection, we hold that the oral agreement of deceased to convey the lands to his daughter, Pollie, in consideration of antecedent services and the further agreement to continue to care for deceased during his lifetime, was established by clear, satisfactory and convincing evidence. Pollie O. Hawkins testified to the existence of such agreement. The fact that she also testified that she would have cared for her father without an agreement does not minimize her rights thereunder. Other relatives and neighbors of the deceased testified concerning his statements made over a period of several months prior to the execution of the deeds which tend to corroborate the testimony of Pollie O. Hawkins and show the existence' of the agreement. A witness for appellant testified that he offered employment to Pollie O. Hawkins at a canning factory shortly before the deeds were executed and was informed by deceased that his daughter would get more by caring for him than she could earn at the factory. The fact that the deeds recited a consideration of services rendered and to be rendered by the grantee is a strong circumstance indicating the existence of the oral contract to convey the lands.
It follows that title to the lands passed to appellee, - Pollie O. Hawkins, under the oral contract regardless of the validity of the deeds. The trial court correctly dismissed the complaint of appellant and the decree is affirmed. | [
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RAYMOND R. ABRAMSON, Judge
| Appellant Alan Ray Edwards was convicted of murder in the'first degree with a firearm enhancement and criminal attempt to commit.murder in the first degree. Edwards was sentenced to sixty-five years’ imprisonment in the Arkansas Department of Correction.. For his sole point on appeal, Edwards argues that the trial court erred in granting the State’s motion in limine barring expert testimony concerning Edwards’s capacity to form intent. We affirm.
Edwards does not challenge the sufficiency of the evidence to support his convictions. Accordingly, a lengthy recitation of the facts is unnecessary. The charges against Edwards arose out of an incident on September 3, 2012, at the Pop-A-Top Lounge in Hot Springs, Arkansas. Edwards and James .“Toby” Fowlks were both at Pop-A-Top that day; Edwards had been a regular customer at the club, but had recently been banned from the premises after he threatened to kill a female bartender and everyone in the club. Edwards was apparently 12unaware that he had been banned from the club until he arrived on September 3. When another bartender, Teresa Williams, informed him that he was no longer allowed at the club, Edwards began “rantin’ and ravin’ and eussin’.”. Fowlks intervened and chased Edwards outside the club where Fowlks hit him in the face, causing a bloody nose.
Edwards then got in his truck and drove •away. Edwards returned to the" ■ club roughly half an hour later with a shotgun and shot Fowlks twice, killing him instantly. Edwards then turned the gun towards Williams and fired two shots at her, but missed. As Edwards exited, he was apprehended by witnesses in the parking lot. The shooting was videotaped by club cameras, though no audio was recorded.
On November 12, 2012, Edwards was charged with one count of murder in the first degree with a firearm enhancement and one count of criminal attempt to commit. murder in the first .degree. After Edwards filed-a motion for mental evaluation, the court ordered that he undergo examination by Dr. Paul Deyoub. On January 2, 2013, Dr. Deyoub submitted his forensic evaluation, which found-that Edwards was fit to proceed, did not have a mental disease or defect, had the capacity to form intent, had the capacity to appreciate the criminality of his conduct, and had the capacity to conform his conduct to the requirements of the law.
Edwards contested Dr. Deyoub’s findings, and Edwards’s, request for an independent evaluation was granted. Dr. Albert Kittrell was employed to perform the evaluation. Dr. Kittrell submitted his forensic evaluation on September 18, 2013. He concluded that Edwards was fit to proceed, had a mental disease — a psychotic disorder not otherwise specified |s(NOS)— but no mental defect, did not have the capacity to form intent, and had the capacity to conform his conduct to the requirements of the law.
A hearing was held on October 7, 2013, and Edwards stipulated that he was fit to proceed. Dr. Kittrell testified that Edwards did not have the capacity to form the required culpable mental state based upon his finding that Edwards suffered .from a psychotic disorder NOS and had lost contact with reality. Specifically, Dr. Kittrell based his opinion on Edwards’s report of having visual and auditory hallucinations and being paranoid without ever having received proper treatment. On cross-examination, Dr. Kittrell • confirmed that he believed that Edwards was competent to stand trial. At the conclusion of the hearing, defense counsel made a motion for judgment of acquittal on the mental-disease-or-defect issue because Edwards lacked the capacity to form the requisite culpable mental state, an element of the offense. The court.denied the request, citing the conflicting opinions concerning the issue.
A jury trial was held May 21 and 22, 2014. Prior to jury selection, the State moved in limine to exclude Dr. Kittrell’s opinion that Edwards lacked the capacity to form the requisite culpable mental state, relying on Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994), and Bruner v. State, 2013 Ark. 68, 426 S.W.3d 386. After briefly taking the matter under advisement, the circuit court found that the Steioart case was directly on point and granted the State’s motion. On May 22 the jury found Edwards guilty of murder in the first degree, the firearm enhancement, and criminal attempt to commit murder in the first degree. The ^sentencing order was entered on June 4, 2014, and this timely appeal follows.
Edwards’s only argument on appeal is that the trial court erred in granting the State’s motion in limine, barring Dr. Kittrell’s expert, testimony of Edwards’s lack of capacity to form intent. The trial court relied solely on Stewart, swpra, when making its decision. In that case, a clinical psychologist concluded that Stewart had a mental defect that rendered him unable to conform his behavior at the time he fatally shot a man after they exchanged heated words in a café. A psychiatrist who also examined Stewart disagreed, opining that Stewart did not suffer from a psychotic illness. As in this case, on the day of trial, the circuit court granted the State’s motion in limine, which limited the expert testimony and precluded the defense from asking the doctors if Stewart lacked the specific intent to commit murder at the time of the killing. Stewart, 316 Ark. at 155-56, 870 S.W.2d at 753-54.
The Stewart court acknowledged that jurisdictions in this country are split over the issue of whether expert:testimony on the ability of a defendant to form specific intent to murder is admissible, but held that “the better view, in our judgment, is that it is not.” Id. at 158, 870 S.W.2d at 755. The court further explained:,
Other jurisdictions, have held that expert testimony on specific intent to murder is inadmissible. See, e.g., Haas v. Abrahamson, 910- F.2d 384 (7th Cir.1990); State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (Neb.1990); State v. Clements, 789 S.W.2d 101 (Mo.App1990); State v. Bouwman, 328 N.W.2d .703 (Minn.1982). According to the Nebraska Supreme Court, expert testimony on homicidal intent is merely , an expression of an expert on how the jury should decide the case. State v. Reynolds, supra. We agree. We further agree .that the issue of whether the defendant formulated intent Rto kill is within the capability of lay jurors to decide. . State v. Clements, supra. While expert testimony on whether a defendant iacked the capacity to form intent is probative, we question whether opinion evidence on whether the defendant actually formed the necessary intent at the time of the murder is. State v. Bouwman, supra.
Id. at 159, 870 S.W.2d at 755-56.
The Stewart court also expounded on the distinction between the two categories of expert testimony. Whether the defendant had the requisite capacity at the time of the killing is a decision best left to the jury:
[Psychiatric testimony concerning whether a defendant has the ability to conform his conduct to the requirements of law at the time of the killing as part of an insanity defense may seem in some cases to approximate- testimony on whether the defendant had or did not have the required specific intent to commit murder at a precise time.' We draw a distinction between the two categories of testimony, however. A general' inability to conform one’s conduct to the requirements of the law due to mental defect or illness is the gauge for insanity. It is different from whether the defendant- hdd the specific intent to kill another individual at a particular time. Whether Stewart was insane certainly is a matter for expert opinion. Whether he had the required intent to murder Ragland at that particular time was for the jury to decide.
Id. at 159, 870 S.W.2d at 755.
Our supreme court and this court have consistently followed the rationale of Stewart for over twenty years, and the instant case is directly on point with the facts and legal analysis presented in Stewart. Both Drs. Deyoub and Kittrell agreed that Edwards understood the proceedings against him, wás capable of assisting in his own defense, was able to appreciate the criminality of his conduct, and could conform his conduct to the requirements of the law. The only dispute between the doctors’ respective conclusions was that Dr. Deyoub believed that Edwards had the capacity to form intent and Dr. Kittrell opined that Edwards did not.' Based on the ruling in Stewart, the decision whether Edwards had the requisite intent to | (¡commit his crimes was an ultimate issue for the jury to decide, and it was not proper for any witness — even an expert — to testify concerning that issue.
At trial, both Drs. Deyoub and Kittrell testified as to Edwards’s mental health, and the trial court instructed the jury on the affirmative defense of mental disease or.defect. The jury heard the testimony concerning Edwards’s mental status and was fully capable of deciding if Edwards had the. capacity to form intent without either of the doctors testifying as to their opinion on that specific matter.
The circuit court ruled that only a single aspect of Dr. Kittrell’s testimony was inadmissible. Dr. Kittrell was allowed to testify as to all other opinions and findings related to Edwards’s mental health, and the jury was instructed on the affirmative defense of mental disease or defect. The decision to admit or exclude evidence pertaining to the defendant’s ability to form intent is left to the trial court’s sound discretion, and we will not reverse absent an abuse of that discretion. Laswell v. State, 2012 Ark. 201, 404 S.W.3d 818. Here, the trial court did not abuse its discretion in refusing to permit the expert opinion concerning Edwards’s ability to form the requisite mental intent at the time he shot Fowlks. Therefore, we affirm.
Affirmed.
Glover and Brown, JJ., agree.
. On November 19, 2014, we remanded this case for a hearing pursuant to Brewer v. State, 66 Ark. App. 324, 992 S.W.2d 140 (1999), after a motion to substitute retained counsel was filed on October 29, 2014. At a hearing ' on December 1, 2014, the trial court found Edwards to be indigent, and an- order was entered the same day. | [
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PER CURIAM
_jjln 2011, appellant Antonio Lamont Smith was found guilty by a jury of murder in the first degree and possession of a firearm by a felon. He was sentenced as a habitual offender to an aggregate sentence of 780 months’ imprisonment. Appellant appealed the judgment on the ground that the evidence was insufficient to show that he acted with purpose when he shot the victim. The Arkansas Court of Appeals affirmed. .Smith v, State, 2012 Ark. App. 359, 2012 WL 1869519.
Subsequently, appellant timely filed in the trial court a verified, pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011). The trial court denied the petition after holding a hearing. Appellant brings this appeal.
In his petition, appellant alleged that he was not afforded effective assistance of counsel at trial- This court has held that it will reverse the trial court’s decision granting or denying postconviction relief only when that decision is clearly erroneous. Conley v. State, 2014 Ark. 172, 433 S.W.3d 234. 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 12conviction that a mistake has been committed. Caery v. State, 2014 Ark. 247, 2014 WL 2158140 (per curiam); Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694.
When considering an appeal from a trial court’s denial of a Rule 37.1 petition based on ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel’s performance was not ineffective. Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29.
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 that the trial cannot be relied on as having, produced a just result.” Strickland, 466 U.S. at 686,104 S.Ct. 2052. 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. Caery, 2014 Ark. 247; Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). There is a strong presumption that trial counsel’s conduct falls within the wide range of professional assistance, and an appellant has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55; McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144. (per curiam). Second, the petitioner must show that counsel’s deficient performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Holloway v, State, 2013 Ark. 140, 426 S.W.3d 462, A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel’s performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner must .show that there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Breeden v. State, 2014 Ark. 159, 432 S.W.3d 618 (per curiam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The language, “the outcome of the trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in sentencing. Id. Unless a petitioner makes both showings, it cannot be said that the. conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. “[T]here is no rea son for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.
' Testimony at trial' established that on March 12, 2010, appellant was with Kisma Gary and Cizaño Jones and that they drank alcohol and smoked marijuana during the day.* At some point, the three were joined by Clarence Hayes with whom they drove to buy some “sherm,” which, according tó one witness,” is marijuana laced with “PCP.” The group smoked the substance, first in the car and then at Hayes’s house. Gary testified that appellant was “wigging out” at - Hayes’s house, yelling, screaming, removing his clothes, and shouting that he wanted to have sex. She further testified that she feared that appellant intended to rape her and that he Upulled a gun' and pointed it at her. After appellant touched the gun to Gary’s chest, she fled to her grandmother’s house and then called Jones, who said that everything had calmed down. Shortly thereafter, appellant and Hayes drove to Gary’s location. From remarks by Hayes and appellant, Gary surmised that appellant had shot Jones.
The forensic evidence showed that Jones had been shot three times, that the bullets were fired downward, and that the fatal shot was to the forehead. Hayes’s neighbor testified that he heard one gunshot and then another thirty-five to forty seconds later.
Leroy Vance, who shared a jail cell with appellant after the shooting, testified that appellant had voiced several versions of the shooting in an effort to come up with a version that would be less incriminating, including one in which Hayes had pushed the victim Jones in front of the gunfire. Appellant testified at trial that he had shot the gun at the scene but contended that the victim was a close friend and that the victim’s death was entirely inadvertent.
The issue of the sufficiency of the evidence was raised on direct appeal, and the court of appeals held that the evidence was sufficient to sustain the judgment. The court of appeals noted that the evidence that there were three gunshot wounds to the victim, at least two of which were fired some seconds apart, ran counter to appellant’s account of the shooting- as an accident. The appellate court further noted that appellant’s romantic interest in Gary, coupled with • appellant’s efforts in jail to concoct a less incriminating version of events, also belied his testimony that the shooting was not intentional.
In his Rule 37.1 petition, appellant set out his allegations of ineffective assistance of counsel in the following six claims: (1) counsel failed to call Clarence Hayes who could have testified that the shooting was an accident; (2) counsel failed to investigate the shooting and prepare a defense that the shooting was accidental; (3) counsel prejudiced the defense by raising his character defects; stating that his educational level was eighth or ninth grade, and making a hand gesture circling his head suggesting that he was stupid or crazy; (4) counsel did not properly object to a video tape of him made after the shooting and did not argue that his demeanor in the video tape reflected that the shooting was accidental; (5) counsel erred in calling Mildred Johnson to “verify” an incident that had happened seven years before the shooting concerning appellant’s drug use because the testimony prejudiced the defense; (6) counsel failed to raise the fact, and call a witness to support the fact, that the victim had been pushed in front of the gun.
With leave of the court, appellant was allowed to file an amendment to the Rule 37.1 petition. The first two claims in the amended petition cited to portions of the trial transcript that appellant contended contained examples of counsel’s prejudicing him. The prejudice was alleged to have arisen from counsel’s statements concerning a change in the' theory of the defense and from counsel’s remarks in the opening statement concerning remarks made by the State in its opening statement, which were not supported by fact. He further contended that counsel prejudiced the defense by bringing up appellant’s drug use throughout the trial; by failing to present mitigating evidence at sentencing; 'by failing to retain an investigator to interview witnesses; by not bringing out conflicts in statements to police; and by failing to question Leroy Vance about a statement Vance had made to the police that was consistent with Hayes.’s statement that Hayes had taken the gun from appellant at some point.
Appellant first' argues in his brief that the trial court failed to comply with Rule 37.3(a). Rule 37.3(c) provides that an evidentiary hearing should be held in postconviction proceedings unless the files and record of the case conclusively show that the prisoner is entitled to no relief. See Eason v. State, 2011 Ark. 352, 2011 WL 4092485 (per curiam). Here, an evidentiary hearing was held. While appellant contends that the hearing was unduly short, the trial court did not limit the issues to be covered at the hearing, and appellant was allowed to raise any questions he desired.
With respect to the assertion that- the trial court failed to make the written findings required by the Rule, the claims contained in the petition were largely conclusory in nature and did not require extensive written findings. Appellant did not explain what mitigation -evidence was available, what information the further interviewing of witnesses would have uncovered,' or otherwise support his" allegations with facts from which prejudice to the defense could be determined. Conclusory statements and allegations without factual substantiation are insufficient to overcome the presumption that counsel was effective, and such, statements and allegations will not warrant granting postconviction relief. Anthony v. State, 2014 Ark. 195, 2014 WL 1716538 (per curiam). Moreover, this court may affirm the denial of a Rule 37.1 petition, regardless of the adequacy of the order, if we can determine from the record that the petition was wholly without merit or wh'en the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted. See Anthony, 2014 Ark. 195; see also Lemaster v. State, 2013 Ark. 449, 2013 WL 5968938 (per curiam); Montgomery v. State, 2011 Ark. 462, 385 S.W.3d 189. Prom a review of the order, the record, and the briefs filed in this appeal, appellant has not demonstrated that the trial court erred in denying the relief sought.
The crux of the allegations of ineffective assistance'of counsel raised by ap pellant, and also argued in this appeal, is that trial counsel employed improvident trial strategy. Appellant faulted counsel to some degree in each allegation of ineffective assistance of counsel for not somehow establishing that the shooting was accidental. The allegations pertaining to counsel’s failure to demonstrate that the shooting was an accident include the assertions that counsel prejudiced the.-jury by pointing out his lack of education, by .suggesting with hand- gestures- circling his head that he was stupid or crazy, by not establishing that a video tape of him made after the shooting showed him in a state of shock rather than merely high on drugs, and by questioning witnesses about his current and past drug use. Appellant argues in each claim that counsel was wrong to focus on his mental condition as affected by drug use and other factors as an explanation for the shooting rather than showing that the shooting was accidental.
Counsel for appellant testified at the hearing that his approach to the trial revolved around the facts that the victim had been shot three times in a small room and that appellant admitted to having pulled the trigger. It was counsel’s desire to demonstrate that everyone involved, including the victim, was high on drugs and thus cause the jury to conclude that appellant should be given a lenient sentence. Counsel explained that he did not call Clarence Hayes as a witness because Hayes had informed counsel that he would testify that appellant shot the victim from between one and two feet away, that appellant shot the victim on purpose, that | «appellant had pointed the gun at Hayes, and that Hayes was hiding in the room in fear that appellant was going to shoot him. In the opening statement for the defense, counsel stated to the jury thát appellant and the victim were good friends, that everyone in the. room was impaired by drug use, and that the shots were fired around the room rather than simply at the victim. Counsel questioned appellant at trial on whether he intended to shoot the victim, and counsel also questioned appellant and other witnesses concerning appellant’s lengthy friendship with the victim and appellant’s lack of a propensity for violence. Counsel argued that .appellant did not commit murder in the first degree and succeeded in having the jury instructed on lesser-included offenses:
■ Counsel is allowed great leeway in making strategic and tactical decisions. Leak v. State, 2011 Ark. 353, 2011 WL 4092217 (per curiam). We have repeatedly held that matters of trial strategy, even if the strategy proves improvident, are not grounds for granting- postconviction relief. Prater v. State, Ark. 164, 402 S.W.3d 68; Fretwell v. State, 292 Ark. 96, 728 S.W.2d 180 (1987) (per curiam). Nevertheless, the decisions must be based on reasonable professional judgment. ■ Clarks v. State, 2011 Ark. 296, 2011 WL 3136042 (per curiam); Leak, 2011 Ark. 353. Here, it Cannot be said that appellant established that counsel’s decision to base the defense on appellant’s altered state of mind occasioned by extreme drug use was anything more than an issue of trial strategy. Clearly, appellant did not show that the strategy was outside the bounds of reasonable professional judgment, particularly if the evidence adduced at trial is considered concerning appellant’s admission to having shot the victim and the evidence concerning appellant’s extreme behavior, apparently brought on by the drug use.
|9With respect to appellant’s assertion in his amended Rule 37.1 petition that counsel was remiss in not questioning Leroy Vance about a statement he had made to police concerning Hayes’s having taken- the gun from appellant at some point, the claim did not establish that counsel was ineffective." ■ Appellant contended. that Vance’s statement was the same as that of Clarence Hayes, and the jury should, have been made aware that the statements were the same inasmuch as the verdict rested on the credibility of the prosecution’s witnesses. The allegation does not satisfy 'the Strickland, standard for establishing-that counsel was ineffective because it does not derhonstrate that there is a reasonable probability that, but for counsél’s failure to question Vance about his statement, the fact-finder would have had a ;reasonablé doubt' respecting guilt, i.e., thé decisión reached would have been different absent the error. In light of the totality of the evidence, even if Vance and Hayes had made the same -statement, the allegation is not sufficient to show that the outcome of the trial would have been different had the jury known about the statements.
In his brief, appellant adds to the allegation concerning Vance’s statement a claim that private papers were" illegally seized and that counsel should have investigated the seizure. He also raises for the first time the arguments that the State failed to disclose the video tape before trial and that counsel should have moved to sever the felon-in-possession-of-affirearm charge. Neither the additional claims concerning Vance’s statement nor the claims regarding the video tape and counsel’s failure to move to sever the charge will be considered in this appeal. Because arguments raised for the first time on appeal could not have been considered by the trial court, such arguments will not be addressed by this court in its review of the trial court’s order. Dixon v. State, 2014 Ark. 97, 2014 WL 805350 (per curiam); Green v. State, 2013 Ark. 455, 2013 WL 5968933 (per curiam); Williams v. State, 2013 Ark. 375, 2013 WL 5524467 (per curiam).
Appellant’s claims in the petition and the amended petition were not supported by facts sufficient to overcome.the presumption that counsel’s conduct was within the wide range of reasonable, acceptable professional assistance. As appellant did not meet his burden of demonstrating that counsel made specific - errors that prejudiced the defense, the trial court did not err in declining to grant relief under Rule 37.1.
Affirmed.
. Appellant also contends in his brief that he was entitled to, but denied, appointment of counsel at the Rule 37.1 hearing. In order to demonstrate an abuse of discretion by the trial court in declining to appoint counsel, appellant was required to make a substantial showing in his request for counsel that his petition included a meritorious claim. Ellis v. State, 2014 Ark, 24, 2014 WL 260991 (per curiam) (citing Viveros v. State, 372 Ark. 463, 277 S.W.3d 223 (2008) (per curiam)). A review of the petition demonstrates that appellant did not make that showing. | [
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RITA W. GRUBER, Judge
1 ¶ Appellant Jacqueline Ferguson was convicted by a jury in the Lonoke County Circuit Court of second-degree domestic battering for physically abusing her child, LF, who was four years old at the time of the incident. Appellant argues on appeal that the circuit court abused its discretion, first, for denying her motion to recuse from the case and, second, for refusing to accept her waiver of a jury trial. Because we hold that the circuit court-did not abuse its. discretion in either ruling, we affirm appellant’s conviction.
The issues before us in this case arose out of a dependency-neglect action, also in the Lonoke County Circuit Court. That case began after a call was placed to the Arkansas Child Abuse Hotline on March 31, 2014, reporting that appellant had physically abused two of her adopted children, LF and ZF. At the time, appellant and her husband were serving as licensed foster parents. An adjudication hearing was held on July 1, 2014, at the conclusion of which, |2appellant’s children were adjudicated dependent-neglected.
At the adjudication hearing, the court heard the testimony of appellant’s two teenage foster daughters; Dr. Karen Farst, a pediatrician from Arkansas Children’s Hospital, who specialized in child-abuse pediatrics; several lay witnesses familiar with the children, who testified that the children had skin problems and allergies; and Dr. Brad White, a dermatologist, who testified that marks on LF were consistent with a skin condition called urticaria. At the conclusion of the hearing, the court made the following statements:
I find that there’s dependent neglect. I do find that the allegations have been substantiated by proof beyond a preponderance of the evidence. The child is dependent neglect. There was physical abuse of the child younger than six years of age. I don’t see. how. you can find anything else.
In the. meantime, on June 13, 2014, the State filed an information for domestic battering against appellant in this criminal case. The judge who had heard the dependency-neglect matter was assigned to this ease, too. On September 2, 2014, appellant filed a motion for recusal, arguing that the judge had presided over a juvenile case involving the “exact same” allegations that were involved in the criminal case and had “rendered a decision against [appellant] in the juvenile court proceeding.” Therefore, appellant alleged, she should recuse pursuant to Rule 2.11(A)(6)(d) of the Arkansas Code of Judicial. Conduct, which requires a judge to disqualify herself in any proceeding in which her “impartiality might reasonably be questioned,” including circumstances where the judge “previously presided as a judge over 13the matter in another court.” Ark.Code Jud.' Conduct, Rule 2.11 (2015). Appellant also argued that the judge should recuse under Rule 2.11(A)(1), which provides as follows: “The judge has a personal bias or prejudice concerning a party ... or personal knowledge of facts that are in dispute in the proceeding.” Id. Appellant then waived her right to a jury trial.
The circuit court held a hearing on both matters and entered an order on November 5, 2014, denying appellant’s motion to recuse and an order on November 26, 2014, denying appellant’s waiver of a jury trial. The court entered an additional order on February 3, 2015, indicating that she had denied appellant’s request, for a bench -.trial and set a jury trial because appellant believed that the court harbored a bias against her or had prejudged the disposition in the criminal case due to her involvement in the juvenile case.
A jury trial was held’ on February 4 and 5, 2015, where the same witnesses who testified in the juvenile hearing presented testimony. The jury found appellant guilty' of second-degree domestic battering and sentenced her to five years in the Arkansas 'Department of Correction with an additional one-year enhanced penalty for committing the offense in the presence of a child. Appellant immediately filed a motion for the setting of an appeal bond. The judge advised from the bench, “I do not do appeal bonds.” On February 9, 2015, appellant filed a motion for reconsideration of the court’s “denial” of her appeal bond to which the State responded, and which the court denied in formal orders entered on February 24 and March 24, 2014.
I. Recusal
For her first point on appeal, appellant contends that Judge Elmore abused her ^discretion in refusing to re-cuse because she had presided over the same matter in another court, she, had personal knowledge of the facts that were in dispute in appellant’s criminal proceeding, and she exhibited the appearance of bias against appellant. We turn to the relevant law and our standard of review. A judge has a duty to hear a'case unless there is a valid' reason to disqualify. Perroni v. State, 358 Ark. 17, 186 S.W.3d 206 (2004). Moreover, a judge is presumed to be impartial, and the party seeking recusal “bears a substantial burden in proving otherwise.” Duty v. State, 45 Ark. App. 1, 5, 871 S.W.2d- 400, 402 (1994); see also Porter v. Ark. Dep’t of Health & Human Servs., 374 Ark. 177, 191, 286 S.W.3d 686 (2003). A judge’s recusal is discretionary, and her decision will not be reversed absent a showing of abuseof discretion. Duty v. State, 45 Ark. App. 1, 871 S.W.2d 400 (1994). Finally, a judge’s improper failure to recuse herself does not result in reversible error unless'there is a showing of prejudice from the failure to recuse. Id.
To support her argument, appellant cites the following authority — found within Canon 2 of the Arkansas Code of Judicial Conduct — -which governs a-judge’s decision whether to disqualify in a particular case.
Rule 2.11. Disqualification
(A) A judge shall disqualify himself or herself 'in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not. limited to the following circumstances:
(1) The judge has a personal bias • or prejudice concerning a party or a party’s ■lawyer, or personal knowledge of facts that are in dispute , in the proceeding.
(6) The judge: ...
(d) previously presided as a judge over the matter in another court.
Ark. Code Jud. Conduct, Rule 2.11. ■
|BShe argues that the judge presided over a juvenile dependency-neglect action against appellant and in this criminal case in which the exact saíne witnesses and testimony were presented against her. She also contends that the judge had already determined appellant’s guilt before her criminal trial, as evidenced by her concluding statements at the adjudication hearing: “There was physical abuse of the child younger than six years.of age. I don’t see how you can find anything else.” Finally, she argues that the judge obtained personal knowledge of the precise facts in dispute in the criminal trial by presiding over the adjudication in which all of the allegations, witnesses, and evidence presented would be presented in the criminal trial. Appellant contends that bias was demonstrated by the court’s refusal to accept appellant’s waiver of a jury trial, despite the State’s assent thereto; its denial of appellant’s motions for, directed verdict; and its denial of appellant’s' motion for the setting of an appeal bond. : .
First, we have held -that the language in Rule 2.11(A)(1), referring to 'a judge’s “personal knowledge of the facts,” does not preclude participation of a judge who obtained that knowledge through previous judicial participation. Duty, 45 Ark. App. at 6, 871 S.W.2d at 408. “The fact that a judge may have an opinion concerning a cáse does not dictate that a recusal is required.” Id., 871 S.W.2d at 403 (citing Rush v. Wallace, 23 Ark. App. 61, 742 S.W.2d 952 (1988)). In that instance, whether recusal is required lies within the judge’s conscience. Id. Appellant presents neither argument nor evidence that the judge in this case had any persdnal knowledge about the ease other than the knowledge that she acquired acting as a judge in the. dependency-neglect matter.
| (¡Regarding Rule 2.11(A)(6)(d), wé can find no law, and appellant cites none, suggesting that “the matter” that the judge previously presided over in another court refers to such different proceedings as a dependency-neglect proceeding in a juvenile case and a criminal case. And we. are not persuaded. that these two cases are “the same matter.” Although appellant argues that the juvenile proceeding was “against” her, it was not. In a dependency-neglect case, the court’s findings concern the child, not the parent. The court in the juvenile case at issue here found that the child was dependent neglected; who was at fault was not in issue. Moreover, the burden of proof was a preponderance of the evidence. Conversely, in appellant’s criminal case,.the findings were made against appellant and were found beyond a reasonable doubt. Furthermore, and critically important to the judge’s decision not to recuse.here, the facts were 'found, not by the court, but by a jury. And appellant does not point to any particular evidentiary rulings by the court that affected appellant’s right to receive a fair and impartial trial. We hold that, under these circumstances,.the adjudication and the criminal trial were not “the same matter” and that the judge did not abuse her discretion in denying appellant’s request to recuse from the criminal trial. Although appellant points to the judge’s rulings denying her motions for directed verdict and her appeal bond as evidence of her actual bias or prejudice, we note ..that the appeal bond was denied after the trial, and thus did not affect the impartiality of the trial; an adverse ruling is not enough to demonstrate bias. Irvin v. State, 345 Ark. 541, 550, 49 S.W.3d 635, 641 (2001); Gates v. State, 338 Ark. 530, 545, 2 S.W.3d 40, 48 (1999).
II. Denial of Waiver of Jury Trial
Appellant’s second point on appeal is that the circuit court abused its discretion in refusing to. accept her waiver of a jury trial after the State had assented to it. Appellant argues that she attempted to waive her jury trial and request a bench trial because she believed that she could receive a fairer trial by bench.
Arkansas Rulé of Criminal Procedure 31.1 provides as follows: “No defendant in any criminal cause may waive a trial by jury unless the waiver is assented to by the prosecuting attorney and approved by the court.” The comment to that rule states that.“[i]t is not the purpose of this rule to impose any limitation on a court’s discretion to refuse to allow the waiver of trial by jury.” At the hearing on the matter, appellant’s counsel admitted to the court, that he thought the court might be biased against his client. The court then stated that it would deny the request for a bench trial and schedule a jury trial. Counsel indicated that he also had concerns about the jury pool in place — which was jury pool No. 2 — so the court agreed to use jury pool No. 1 to alleviate counsel’s concerns. In its formal order, the court denied the waiver, stating that appellant had questioned the court’s impartiality and thus the case would be heard by a. jury.
An abuse of discretion occurs when the trial court makes a judgment call that is arbitrary and groundless. Smith v. State, 90 Ark. App. 261, 205 S.W.3d 173 (2005), Appellant’s argument that she believed she could receive .a “fairer” .trial by bench .trial rather than by jury trial is in direct conflict with her motion to recuse and her counsel’s statements | sto the judge that he thought she might be biased against appellant. Our review of the record does not convince us that the court’s denial of appellant’s waiver was either arbitrary or groundless. Accordingly, we hold that the trial court, did not abuse its discretion.
Affirmed.
" Gladwin, C.J., and Virden and Hoofman, JJ., agree.
Harrison and Kinard, JJ., dissent. ■
. Appellant appealed the adjudication to this court, which affirmed because her argument regarding judicial bias was not preserved. Ferguson v. Ark. Dep’t of Human Servs., 2015 Ark. App. 99, 2015 WL 711304.
. Our supreme court also denied appellant’s motion for sétting bond pending' appeál on May 28, 2015. | [
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Smith, J.
Appellee Stevens filed suit on a promissory note and an account against Odell Wright in the common pleas court of the Cliickasawba District of Mississippi county, in which he prayed judgment in the sum of $379.54. He also filed an affidavit for an attachment against Wright in which he averred that Wright had departed from this state with the intent to defraud his creditors and had moved a material part of his property out of the state, not leaving enough to satisfy the plaintiff’s demand, and is about to sell or otherwise dispose of his property, with the intent to cheat, hinder and delay his creditors.
The bond required by statute — § 535, Pope’s Digest — was executed and approved, and the attachment issued and was levied upon an automobile and a Farm-all tractor.
Wright filed an answer in which he denied each and every material allegation of the plaintiff’s complaint, and he also filed a controverting affidavit denying the allegations of 'the affidavit for the attachment. Bud Wright, father of Odell, filed an interplea in which he alleged that he was the owner of the automobile and the tractor, and that they were not, therefore, subject to seizure under the writ of attachment. Along with the interplea, Bud Wright filed a forthcoming bond, signed by himself, and Roy McKay and T. J. Richardson, conditioned as required by .law. An answer to the interplea was filed, denying its allegations.
The cause was heard in the common pleas court and it was adjudged that the interpleader was the owner of the automobile, but was not the owner of the tractor, and the attachment was sustained as to it. The court found also that Odell Wright was indebteded to Stevens in the sum of $379.54, less a credit of $50.
It was further found and adjudged that the value of the tractor was $350, and it was ordered that Stevens have and recover of and from the said Bud Wright, Roy McKay and T. J. Richardson, sureties aforesaid, the amount of the said debt, and that in case the tractor is not delivered to the sheriff to be sold, “that the judgment be enforced against Bud Wright, Roy McKay and T. J. Richardson, sureties aforesaid, for so much of the judgment as shall not exceed the value of said property, and shall remain unsatisfied after the return of execution against the property of said defendant as aforesaid.”
Odell Wright filed an affidavit for an appeal, and the appeal was perfected. Odell Wright and Bud, his father, as principals, with Roy McKay and T. J. Richardson, as sureties, executed the following supersedeas bond:
“Whereas, the appellants, Odell Wright, defendant, and Bud Wright, intervener, are taking an appeal from the judgment of the Circuit Court Chickasawba District of Mississippi county, Arkansas, rendered on the 23rd day of January, 1947, it being a regular day in the January term of the Circuit Court, in and for the Chickasawba District of Mississippi county, Arkansas, said judgment being in favor of E. E. Stevens, appellee, against Odell Wright, and Bud Wright in the sum of $346.49 against -Odell Wright, and the sustaining of an attachment against one tractor alleged to belong to the intervener, and the appellants are desirous of superseding said judgment.
“Now, T. J. Richardson and Roy McKay, sureties, hereby covenant with the said appellee, E. E. Stevens, that they will pay all sums, including cost and damages that may be charged against the appellants, or, in the event of the failure of the appellants to perfect said appeal to a final judgment in the Supreme Court, or if said appeal, for any cause he dismissed, that said sureties shall perform the judgment of the court appealed from; also said appeal should be perfected without delay, and that said appellants shall satisfy and perform the judgment or order appealed from in case it should be affirmed.
“Dated this the 20th day of February, 1947.”
Richardson and McKay were the same sureties who executed the bond on the appeal from the court of common pleas to the circuit court.
Upon the trial of the appeal in the circuit court, Stevens testified that Odell Wright had disposed of various articles of property, but it was not shown that he had left the state except temporarily to visit his wife, who was sick, in the State of Tennessee. It does not appear to be contended that Wright had left enough property in the state to satisfy Stevens’ judgment.
The testimony fully sustains the verdict of the jury at the trial of the appeal in the circuit court, finding Odell Wright was indebted to Stevens in the sum of $329.54, with interest, and the attachment was also sustained by the jury.
Upon the question of the ownership of the tractor, the court charged the jury as follows: “You are told that if you find from the evidence in this case that Bud Wright in good faith, and for value, purchased the property from his son prior to the levy of the attachment, which was on April 4th, 1946, then you should find for the intervener, Bud Wright.” This instruction put in issue the good faith of the intervener in purchasing the tractor from his son, and we cannot say that there was no testimony to support the verdict.
The action of the court in submitting to the jury the question of discharging or sustaining the attachment is criticized, but it is conceded that this court has held that this is a permissible practice, although the better practice is for the court itself to decide this question. Von Berg v. Goodman, 85 Ark. 605, 109 S. W. 1006; Bank of Wynne & Trust Company v. Stafford & Wimmer, 129 Ark. 172, 195 S. W. 397; Ford v. Wilson, 172 Ark. 335, 288 S. W. 712.
The judgment from which is this appeal recites that it appears that the tractor cannot be returned to the plaintiff, and that its value was $500, and it was ordered and adjudged that the plaintiff have and recover from the said' Roy McKay and T. J. Richardson, sureties aforesaid, the amount of said judgment..
It will be observed that the sureties on the supersedeas bond obligated themselves to perform the judgment of the court, and as the tractor cannot be produced, they are liable in a sum not exceeding the value of the tractor as was adjudged by the court, Ode'll Wright being-one of the appellants.
Appellee expresses his satisfaction with his judgment and it will therefore not be necessary to make any order requiring the production of the tractor.
As no error appears, the judgment must be affirmed. | [
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Minor W. Millwee, Justice.
Appellees, Theodore T. Massey and Odel Massey, father and son, brought this action in the Franklin Circuit Court seeking damages for personal injuries allegedly sustained by them when the wagon in which they were riding was struck from the rear by a truck being driven by appellant, Bill Spillers, as the servant of appellants, S. O. Boone and Ira Taylor. Trial to a jury resulted in a verdict and judgment in favor of Theodore T. Massey for $4,000 and Odell Massey in the sum of $100.
For reversal of the judgment it is first insisted that the trial court erred in refusing to direct a verdict in favor of appellants, Boone and Taylor, because of the insufficiency of the evidence to support a finding by the jury that Bill Spillers, the driver of the truck, was employed by them at the time of the collision. The evidence discloses that the collision occurred on U. S. Highway No. 64 at a point about 2% miles east of Altus, Arkansas. Appellants, Boone and Taylor, are partners and own and operate a mill and lumberyard at Atkins, Arkansas. At the time of the collision Spillers was returning from Clinton, Missouri, where he had hauled a load of lumber from the plant of Boone & Taylor. The truck belonged to Boone & Taylor and Spillers tried to contact them by telephone soon after the collision, but they were not at the plant. The sheriff of Franklin county then called appellant Boone and informed him that Spillers had left with the truck and advised Boone to come to Altus and take care of the appellees.
The next day Mr. Boone came to Altus and, according to the testimony of appellee, Theodore T. Massey, Boone admitted that Spillers was driving for the partnership. Boone directed Spillers to write a check to Dr. Pilstrom of Altus for his services in treating appellees. Boone and Taylor then took appellees to Dr. Mobley at Morrilton for further examination and treatment. Appel lant, Ira Taylor, paid Dr. Mobley for Ms services and appellees were then taken to Scotland, Arkansas, their destination. An employee of Boone & Taylor also hauled the wagon and team to Scotland.
It was admitted by the driver that appellee, Theodore T. Massey, requested Boone and Taylor not to discharge Spillers on account of the collision, and that no contention was made at that time that Spillers was not employed by the partnership. In his testimony, Spillers referred to Boone and Taylor as his “bosses” and there was evidence that he made similar references immediately following the collision.
Appellants testified that the driver of the truck was operating under an oral lease agreement whereby Spillers rented the truck from the partnership, bought the lumber at the mill, and resold it to others. Spillers testified that he paid Boone & Taylor $7.00 per thousand lumber feet for the use of the truck, and that the same charge was made regardless of the length of the haul; that he had paid for the lumber after he had made the haul and would sometimes use partnership funds to buy lumber from other mills; and that he paid all operating expenses of the truck. lie was unable to produce any record of these sales, but appellant, Ira Taylor, introduced several bills in his handwriting, in pencil, purporting to show sales of lumber to Spillers. These invoices contain endorsements showing the dates of sale to, and payment by, Spillers. The endorsement showing payment in each instance bears á date ranging from 21 days to 13 months earlier than the date of sale although Spillers testified that he paid for the lumber after he sold it. Taylor also testified that he could take the truck from Spillers at any time and that he did so soon after the accident.
It will thus be seen that the testimony is in dispute as to whether Spillers was an employee of Boone & Taylor at the time of the collision. In Wright v. McDaniel, 203 Ark. 992, 159 S. W. 2d 737 this court said: “Practically all authorities hold that where it is claimed that an oral contract exists, and it is one which the employer may terminate at any time, it is a question for the jury whether the relation is that of an independent contractor or master and servant.” It was further said in that case: “It is frequently asserted that whether the relation of master and servant exists in a given case is usually a question of fact. Where the contract is oral and the evidence is conflicting, or where the written contract had become modified by the practice under it, the question as to what relation exists is for the jury under proper instructions. If the contract is oral, and if more than one inference can fairly be drawn from the evidence, the question should go to the jury whether the relation is that of employer and independent contractor or that of master and servant. Moll, Independent Contractors and Employers Liability, p. 62, et seq.”
In the case of Hobbs-Western Co. v. Carmical, 192 Ark. 59, 91 S. W. 2d 605, it was claimed that Williams, the driver of the vehicle involved in a collison, was an independent contractor and not an employee of HobbsWeslern Company, and Justice Butler, speaking for the court, said: “Appellants insist that as the undisputed evidence is to the effect that Williams furnished his own method of conveyance, bore the operating expenses of his truck, and for his services was paid a stipulated sum, this establishes his relationship with the appellant company as that of an independent contractor. This contention overlooks the evidence which tends to show the control retained over the work by Westmoreland. A reasonable inference to be drawn from the evidence is that Westmoreland intended to, and did, retain the right to give directions in regard to the details of the work. In the case of Ice Service Co. v. Forbess, 180 Ark. 253, 21 S. W. 2d 411, we said: ‘The conclusion as to the relationship must be drawn from all the circumstances in proof, and where there is any substantial evidence tending to show that the right of control over the manner of doing the work was reserved, it became a question for the jury whether or not the relation was that of master and servant.’ ” A similar conclusion was reached in Ellis & Lewis v. Warner, 180 Ark. 53, 20 S. W. 2d 320; Arkansas Power & Light Co. v. Rickenback, 196 Ark. 620, 119 S. W. 2d 515; and Ozan Lumber Co. v. Tidwell, 210 Ark. 942, 198 S. W. 2d 182.
There are many circumstances in evidence in the case at bar from which the jury may have reasonably concluded that appellants, Boone & Taylor, retained and exercised a degree of control over the work of Spillers which only subsists under the relationship of master and servant. The question of the relationship was properly submitted to the jury under evidence that was substantial and sufficient to support the verdict on this issue.
It is next insisted that error was committed in the admission of certain testimony. Appellee, Theodore T. Massey testified on direct examination that he had passed two physical examinations for employment by a railroad company in Oklahoma a short time prior to his injuries. Counsel for appellants cross-examined the witness at considerable length concerning these examinations, and on redirect examination, counsel for appellees asked Massey if he had a written report of such examination and he replied in the affirmative. The witness identified a paper exhibited by his counsel as being the report of such examination. Appellants objected and counsel for appellees then announced that he would not offer the paper in evidence. Although the report was not introduced, counsel for appellants contends that he was placed in an “unfair position” before the jury when Massey was permitted to state that he had a written report of the examination. This testimony was in response to a rigid cross-examination of the witness concerning his alleged examination and employment by the railroad company prior to his injury, and was admissible as a circumstance to rebut the inferences arising from such, cross-examination. There was no error prejudicial to appellants in the admission of this testimony.
At the conclusion of the testimony on behalf of appellants, appellees recalled Spillers for further cross-examination. At this point Spillers was asked whether he had a social security card. Appellants objected and requested the court to strike the testimony of the witness. This testimony was proper since it was in rebuttal to the testimony offered by appellants on the question whether the relationship of master and servant existed at the time of the accident. There was no abuse of the trial court’s broad discretion in permitting the witness to be recalled in rebuttal on this issue.
It is also argued that the court erred in giving instructions Nos. 2 and 10 at the request of appellee, and in refusing to give instructions Nos. 12 and 14 requested by appellants. The instructions are not abstracted, but appellants in their argument set out the particular instructions which they now contend were erroneously given or refused. Instruction No. 10, given at the request of appellees, defines concurring negligence. This issue arose from the testimony of Spillers to the effect that an unidenitfied driver of another automobile proceeding in the same direction passed Spillers at a high rate of speed at the time of the collision causing him to strike appellees ’ wagon. It is argued that this instruction would permit a recovery regardless of the negligence of appellees. The instruction is not subject to this objection. It specifically provided that if one act of negligence concurred with one or more negligent efficient causes “other than the fault of the injured persons,” then the person charged with negligence is not relieved of liability because his was not the sole negligence causing the injuries.
Instruction No. 2, given at the request of appellees, is a finding instruction conforming to the issues and evidence offered by appellees on the alleged negligence of appellants. The instruction is long and we do not set it out here. The form of the instruction has been approved by this court in numerous cases and we find no merit in appellants’ contention that there was no testimony which warranted the giving of the instruction.
The trial court correctly modified instruction No. 14 .offered by appellants. The instruction is as follows: “You are instructed that if you find from the testimony in this case that the plaintiff was guilty of contributory negligence at the timé and place of the alleged accident, or if his conduct and manner pf driving of his yehicle contributed in any manner to bis alleged injuries, then if you so find, your verdict should be for the defendants, unless you further find that the driver of the truck discovered the plaintiffs in a position of peril, on said highway, if you find that they were m such position, in time to have in the exercise of ordinary care on his part avoided striking them after such discovery by him, if any.” The court modified the instruction by adding that part of the instruction appearing in italics. The doctrine of discovered peril was an issue in the case and the modification correctly stated the applicable law as declared by this court in Sylvester v. U-Drive-Em System, 192 Ark. 75, 90 S. W. 2d 232, and cases there cited. In that case the court quoted with approval from St. Louis, S. W. Ry. Co. v. Simpson, 184 Ark. 633, 43 S. W. 2d 251, as follows : “The discovered peril doctrine, or the doctrine of last clear chance, as it is sometimes called, constitues an exception to tíre rule that the contributory negligence of the plaintiff is a bar to his action. Under this doctrine, where one discovers the perilous situation of another in time, by the exercise of ordinary care, to prevent injury to him, it is his duty to do so, which is regarded in law as the proximate cause of the injury, and this, too, regardless of the contributory negligence of the injured person. Such a person is regarded in law as having the last clear chance to prevent injury or death to another, and it is his duty to do so.”
Since appellants have not abstracted other instructions given and refused, they are not in position to contend that the trial court erred in refusing to give instruction No. 12 requested by them. Conceding the correctness' of the instruction, it may have been fully covered in the instructions given but not abstracted, and we are not required to explore the record to determine such matters. In Keller v. Sawyer, 104 Ark. 375, 149 S. W. 334, this court said: “The refusal to give a certain instruction cannot be relied upon as error unless all of the instructions are set out in the abstract. DeQueen & Eastern Ry. Co. v. Thornton, 98 Ark. 61, 135 S. W. 822.”
It is finally contended that the verdicts are excessive. Appellees were thrown violently from the wagon when the truck driven by Spillers struck the left rear wheel of the wagon. The testimony discloses that Odell Massey, who was 13 years of age, was unconcious for a short time and suffered a cut on his knee which left a small scar. He suffered some pain and, while he was not seriously injured, the award of $100 cannot be said to be excessive.
Appellee, Theodore T. Massey, was 58 years of age at the time of the accident and sustained a fractured arm and shoulder and other injuries to his back and hip. Dr. Pilstrom testified that his injuries were permanent and that appellee had reached his maximum recovery at the time of the trial. He gave it as his opinion that Massey suffered a permanent disability of 45 or 50 per cent., to his left arm on account of the injury and that he could not do manual labor. Massey suffered considerable pain immediately following the accident and still suffered at the time of the trial particularly from the- injuries to his back and hip. .He testified that he earned $7.50 to $15 per day working for a railroad and on other jobs prior to his injuries, but that he had been unable to do any kind of labor since. We are unable to say that the jury was actuated by passion or prejudice in fixing the amount of his damages at $4,000.
The record is free of prejudicial error and the judgment is affirmed. | [
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Ed. F. McFaddin, Justice.
This is an attempt by appellants, as the collateral heirs of R. B. Wilson, to set aside a conveyance that he made to his wife, Mrs. Cora Wilson (appellee). Appellants claim that at the time of the conveyance, R. B. Wilson was mentally incompetent because of age and illness, and that appellee obtained the conveyance by the exercise of undue influence. The chancery court sustained the conveyance.
Appellants site us to such cases as: Boyd v. Boyd, 123 Ark. 134, 184 S. W. 838; Gonzales v. Tucker, 101 Ark. 558, 142 S. W. 824; Richey v. Crabtree, 198 Ark. 25, 127 S. W. 2d 269; Kelly’s Heirs v. McGuire, 15 Ark. 555; Jones v. Travers, 116 Ark. 95, 172 S. W. 828; Parker v. Hill, 85 Ark. 363, 108 S. W. 208; Hightower v. Nuber, 26 Ark. 604; and Waggoner v. Atkins, 204 Ark. 264, 162 S. W. 2d 55. Appellee cites us to such cases as: Hawkins v. Randolph, 149 Ark. 124, 231 S. W. 556; Pledger v. Birkhead, 156 Ark. 443, 246 S. W. 510; Boggianna v. Anderson, 78 Ark. 420, 94 S. W. 51; and Faulkner v. Byland, memo in 201 Ark. 1185, reported in 147 S. W. 2d 37.
The rules of law applicable to a case such as this one are well settled by numerous decisions of this court, which are cited and quoted from at length in our recent case of Petree v. Petree, 211 Ark. 654, 201 S. W. 2d 1009. By making reference to the Petree case, we forego the necessity of listing and discussing these rules.
Before proceeding to a consideration of the issues, we give some of the background facts: For more than 40 years R. B. Wilson was the owner of a farm of 414 acres in Madison county, Arkansas. This farm is the property in controversy. For many years R. B. Wilson was a bachelor; but in 1922 he married appellee, Mrs. Cora Wilson. They lived together on the lands herein involved all thp years thereafter until shortly before R. B. Wilson’s death, which occurred in Fayetteville on March 17, 1946. They had moved to Fayetteville a few months before he died. That Mrs. Cora Wilson was a kind and dutiful wife is clearly established. R. B. Wilson and Cora Wilson had no children. Appellants are his nieces and nephews, who would take some interest in the lands herein involved if the deed to Cora Wilson be held invalid.
About July 29, 1945, R. B. Wilson suffered an illness diagnosed as heart trouble. We will refer to this as the “first illness,” because prior to that time his only deficiency was an impaired hearing, which had existed for many years. He was taken to a hospital,in Fayetteville on July 29, 1945, where he remained until August 18th. Then he went back to his farm, and there observed his 88th birthday on August 30, 1945. After he returned from the hospital, the deed in question was executed in Fayetteville on September 1, 1945. His mental condition from August 18th to December 23rd is in sharp dispute, and we will refer to this period as the “questioned interval.” Of course, the real issue is his mental condition at the time he executed the challenged instrument.
On December 23, 1945, he contracted a cold, and returned -to the hospital, and remained there a short time. On January 29, 1946, he made a trip to the bank at Huntsville. Just when he went back to the hospital on account of his final illness is not shown; but, at all events, he died on March 17, 1946. So much for the background facts. Now to the disputed issues.
The appellants contend that after R. B. Wilson’s first illness (July 29th-August 18th), he was never mentally capable of transacting .business, particularly 'such as executing the deed in question on September 1, 1945, and that the deed was obtained by undue influence. To support their contentions, we have the testimony of most of the appellants, and a number of relatives, and also some disinterested witnesses; and some of these witnesses testified as to his condition during most of the questioned interval.
On the other hand, appellee claims that after August 18th, through all of September, and up until December 23rd, R. B. Wilson was transacting many kinds of business, driving his car, and going wherever he desired; that his mental condition was excellent on September 1, 1945, and that there was no undue influence. A number of friends and relatives and some disinterested witnesses support appellee’s contention; and their testimony concerned his condition during most of the questioned interval.
What, then, is the truth?
The record shows that Mr. Wilson did all of the following things, after August 18th and during the period we have referred to as the questioned interval:
(a) He drove his automobile on numerous occasions. Sometimes he went alone on business trips. On at least three occasions he drove his wife to Fayetteville to see the dentist.
(b) He went to the county fair at Huntsville.
(c) He went to church on several occasions, even attending night services.
(d) He discussed with a tenant on his farm the amount of the corn that the tenant had gathered while Mr. Wilson was in the hospital.
(e) He proposed a sale of land, and insisted that the purchaser take the title as it was, and stand the expense of clearing up any defects; but when Mr. Wilson learned how much income tax -he would have to pay, he decided not to sell, and succeeded in renting the land to the proposed purchaser.
(f) He went to the bank, and transacted business.
(g) When he made the deed here in question, he gave instructions as to how it should be drawn, and reserved for himself a life estate.
None of the persons with whom he dealt in any of the above matters doubted his sound mentality. The lawyer who officiated in the drawing of the deed in question, and also the notary public who took the acknowledgement, testified that Mr. Wilson was mentally sound on September 1,1945, the date the deed was executed.
As we have heretofore said, the evidence was in the sharpest dispute, but with the above facts in the record, we cannot say that the chancellor’s findings are against the preponderance of the evidence. On appeal, we have only the testimony on the printed page to aid us. The learned special chancellor saw each witness in person, and heard each witness testify. What we said in Murphy v. Osborne, 211 Ark. 319, 200 S. W. 2d 517, applies to this case:
“The Finding of the Chancery Court will not be Reversed on Appeal unless such Finding is against the Preponderance of the Evidence. Some of the scores of ■cases recognized and reiterating this long-established rule are collected in West’s Arkansas Digest, ‘Appeal and Error’, § 1009. In the case at bar the chancellor saw each witness when he testified. The chancellor observed the demeanor on the witness stand, the inflection in the voice and the hesitance or rapidity of the words flowing from the mouth of the witness. The chancellor thus had an opportunity to see more than the mere words on the printed page which, alone, come to this court. With the testimony in this case in hopeless conflict, we cannot say that the Chancery Court decided against the preponderance of the evidence.”
The decree of the chancery court is affirmed. | [
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McTIanby, Justice.
Appellee, a resident of Benton, Arkansas, sued appellant to recover damages caused by a fire originating in the bathroom of his home in said city which quickly spread to other rooms. It is not alleged that appellant caused the fire, but that the operator was negligent in not answering promptly a call to notify the Fire Department made first by his wife and then by himself, which caused a delay of four or five minutes in reaching the Fire Department. He also alleged negligence of appellant in permitting its telephone system to become so obsolete, ■ crowded and inadequate that it did not render prompt and efficient service.
Appellant demurred to the complaint which was overruled, and it answered with a general denial. Trial to a jury resulted in a verdict and judgment against appellant for $1,500. This appeal followed.
The proof shows that appellee had a contract with appellant for telephone service in his residence at the rate of $1.75 per month. The telephone system in Benton is known as the magneto type, one where the subscriber has to crank his ’phone in order to contact central, and the hook that holds the receiver must be held down when ringing central.
Assuming that the evidence sufficiently established the allegations of the complaint, still we are of the opinion that there can be no recovery in this case and that the court should have directed a verdict for appellant at its request. •
We have held in two cases that: “A telephone company is not liable for special damages for failure to furnish connection to a patron if it had no notice of the circumstances out of which the damages might arise.” Southern Telephone Co. v. King, 103 Ark. 160, headnote 1, 146 S. W. 489, 39 L. R. A., N. S. 402, Ann. Cas. 1914B, 780; Southwestern Bell Telephone Co. v. Carter, 181 Ark. 209, 25 S. W. 2d 448. The reason for the rule, which was first announced in the old English case of Hadley v. Baxendale, 9 Exch. 341, was well stated by Judge Riddick in Hooks Smelting Co. v. Planters Compress Co., 72 Ark. 275, 79 S. W. 1052, quoted in the Carter case, supra, as follows: “Now, where the damages arise from special circumstances, and are so large as to be out of proportion to the consideration agreed to be paid for the services to be rendered under the contract, it raises a doubt at once as to whether the party would have assented to such a liability, had it been called to his attention at the making of the contract, unless the consideration to be paid was also raised so as to correspond in some respect to the liability assumed. To make him liable for the special damages in such a case, there must not only be knowledge of the special circumstances, but such knowledge ‘must be brought home to the party sought to be charged under such circumstances that he must know that the person he contracts with reasonably believes that he accepts the contract with the special condition attached to it. ’ In other words, where there is no express contract to pay such special damages, the facts and circumstances in proof must be such as to make it reasonable for the judge or jury trying the case to believe that the party at the time of the contract tacitly consented to be bound to more than ordinary damages in case of default on his part.”
It is not claimed by appellee that he ever notified appellant that if it did not answer his calls for the Fire Department promptly, he would hold it liable for the resultant loss, and it is not reasonable to presume that appellant would have contracted to furnish him service at the small rate charged, if it should assume liability for damages caused by a fire for which it was in no wise responsible in its inception.
The case of Foss v. Pacific Tel. & Tel. Co., 26 Wash. 92, 173 Pacific 2d 144, cited by appellant, is in point and reviews practically all the cases on the subject up to that time (1940) and shows that practically all the courts hold the same as we do. In fact, our case of So. Tel. Co. v. King, supra, is cited to support the holding there made, with a lot of others, and appellee cites no case to the contrary.
Appellee cites and relies on § 2073(b) of Pope’s Digest for an affirmance of the judgment. This section provides as follows: ‘ ‘ Every public utility shall furnish, provide and maintain such adequate and efficient service, instrumentalities, equipment and facilities as shall promote the safety, health, comfort, requirements and convenience of its patrons, employees and the public. ’ ’
This section is § 10(b) of Act 324 of 1935, which Act is entitled “An Act Providing for the Better Regulation of Certain Public Utilities in the State of Arkansas and for Other Purposes.” It is a lengthy Act with 71 sections and many sub-sections. It created the “Department of Public Utilities” of the Arkansas Corporation Commission, and gave it broad powers. Section 2071 gives the Utilities Department the exclusive power to regulate utilities and enforce the provisions of said Act and §§ 2079 and 2080 provide for its investigation and correction of all violations of the Act, including the failure to render adequate service. Sections 2121 through 2125 provide the penalties which may be inflicted .for all violations of said Act, and there is no provision therein making any utility liable in special damages to a customer for failure to render adequate service. The section relied on is simply declaratory of the then existing law relative to public utilities and added nothing to their duty to furnish adequate service.
We are, therefore, of the opinion that appellee’s action for special damages cannot be maintained under said section of the statute, and that the court erred in refusing to direct a verdict for appellant. The judgment is reversed and the cause is dismissed. | [
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Robins, J.
This suit was instituted in the lower court on November 5, 1946, by appellees, the widow and heirs at law of W. M. Howell, who died intestate in 1932, to cancel a deed executed on March 10, 1928, by said W. M. Howell and wife, conveying approximately 40 acres to appellant. It was alleged that this deed, which had been recorded, was void and that it constituted a cloud on appellees’ title.
Appellant in his answer alleged that the deed was executed for a valid consideration, $400 paid by appellant to W. M. Howell, and that appellees had no title to the land.
The cause was tried on oral testimony and the lower court rendered decree sustaining appellees’ claim to the land and canceling the deed executed to appellant by W. M. Howell and wife. Appellant asks us to reverse that decree.
The evidence disclosed that W. M. Howell, in 1928, owned the 40-acre tract involved herein, with small tenant house and garden spot located thereon, and that he also owned a farm of about 110 acres adjoining the land in' controversy. Appellant had married Mr. Howell’s daughter, who later obtained a divorce from appellant, remarried, and is now Mrs. Addie Gunn, one of the appellees.
Mr. Howell, being in bad health and unable to cultivate his farm, entered into a written agreement on March 10, 1928, with his son-in-law, the appellant, whereby he rented his farm to appellant for the. years 1928 to 1932, both inclusive. In this agreement there were set forth certain undertakings on the part of Howell as .to furnishing appellant, and undertakings on the part of appellant to work a “full crop” and to pay a stipulated portion of the crop to Howell each year as rent. The concluding paragraph of this contract was: “And party of second part [appellant] agrees that if he should fail to carry out the above contract that he will return land deed back to party of the first part [W. M. Howell]. .Said land deed being dated March 10, 1928.”
On the same day (March 10,1928) W. M. Howell and his wife executed a warranty deed, conveying for an expressed consideration of $400 the 40-acre tract in controversy; and this is the deed referred to. in the rent contract.
The principal witness for appellees was appellee, Mrs. Addie Gunn, who was appellant’s wife at the time of the execution of the rent contract and the deed. She testified that her mother and father were alone except for an invalid sister of witness, her father was an invalid, and her mother was not able to work; that they wanted some one to live on the place, and appellant wished to go back on a farm; that appellant told her father they would remain there as long as her parents lived; that appellant paid nothing to her parents when the deed was executed; that she and appellant “were living from hand to mouth, ’ ’ and appellant had no money at all with which to make such a payment; that her father furnished money to them in accordance with the rent contract, but appellant wasted that money. She also testified that in January, 1929, appellant told her that he was going to leave her and that he did leave her and their child on January 11, 1929; that appellant told her he was going to give the land deed and contract back to her mother; that he wrote her this note some time after he left: “This is to advise you that I am gone. I am writing you this note to let you know I am gone. I decided we could not live together any more as we can’t get along. You and the child can have everything except my clothes and Isaac’s picture”; that from the time appellant left, up until the time of the .trial, her father, mother and she and their tenants had been in possession of the land; that her parents had made similar arrangements with one of her brothers, a brother-in-law and also herself to work the land, but that they had been similarly rescinded by her brother and brother-in-law by turning back to her parents the deeds, and that she was not claiming sole ownership of the land under her deed; that appellant was present when the deed to the land in controversy," as well as the other Howell land, was executed to her by her mother and her brothers and sisters, and that appellant raised no objection thereto and made no claim to the land.
Appellee, Mrs. W. M. Howell, testified that appellant returned the deed to her about two days before he left home.
Appellant testified that he paid Howell $400 for the land, and denied that he returned the deed to Mrs. Howell. He stated that when he left he told his wife “all I was carrying off was my hunting clothes and my dogs ’ ’; that he did not object to the Howells cutting timber on the land involved herein because his wife and child were living on the place. He testified that he signed the rent contract without reading it; that from 1928 to 1944 he did not pay any taxes on the land; that he worked in the sheriff’s office part of the time. This occurred in his testimony: “Q. If you had any interest in this 40 acres of land, why didn’t you turn to the books and see about the taxes on your land? A. They cut the tifaber off. I didn’t know whether or not it was worth it to pay the taxes. Q. You never did look to see about the taxes? A. No, sir. Q. When was the timber cut? A. I don’t know. ’ ’
There was testimony by other witnesses, but it merely tended to corroborate in some minor particulars that of the witnesses detailed above.
In the trial below the parties and their witnesses testified before the court. The lower court thus had an opportunity to observe their manner and demeanor and to make an appraisal of their testimony that we do not have.
The lower court found that appellant’s agreement to cultivate Howell’s land for five years was the sole consideration for the execution of the deed; that appellant intended by delivering the deed to re-vest the title in Howell; that appellant permitted appellees to remain in undisturbed possession of the land, paying the taxes thereon from 1929 to 1944.
While there is some conflict in the testimony, we cannot say that these findings are against the preponderance of the evidence.
Ordinarily, the return of a deed by the grantee to a grantor does not operate to re-vest the title in the grantor. Campbell v. Jones, 52 Ark. 493, 12 S. W. 1016, 6 L. R. A. 783; Watters v. Wagley, 53 Ark. 509, 14 S. W. 774, 22 Am. St. R. 232; Ames v. Ames, 80 Ark. 8, 96 S. W. 144, 117 Am. St. Rep. 68.
But there was shown in the case at bar something more than the mere return of a deed. Here there was a written agreement on the part of appellant to the effect that if he failed to work Howell’s farm he would return the deed to the land in controversy. He failed to work the farm rented by him, abandoned the land conveyed to him, and, according to Mrs. Howell, returned the deed to her. He moved away, and for 15 years remained away from the' land, permitting timber to be cut and removed from the land and did not have enough concern about the land to ascertain whether anyone was paying the taxes thereon. During this time the daughter of the Howells obtained a divorce from appellant and remarried; and appellant also took another wife. .
Now if any meaning is to be given to appellant’s agreement to return the deed, in event of his failure to cultivate Howell’s land, it must be held to mean that he undertook, in event he did not carry out his contract, that he would surrender the land and all his title thereto back to Howell.' His actions indicated that he so interpreted the agreement. He refused to carry out his undertaking to stay and cultivate for Howell his farm for the remaining four years of his term. This agreement on his part was, according to the testimony of Mrs. Gunn, which the lower court accepted as true; the sole consideration for the deed. Hence, it would be inequitable for hiña to demand a restoration of his deed long after he had surrendered it and after he had failed to perform the undertakings on his part that caused it to be executed. Dealing with a somewhat similar question, this court, in the case of Taliaferro, Ex’r., v. Rolton, 34 Ark. 503, said: “But where such cancellation or surrender has been made under circumstances which .would render it a fraud on the part of the holder of the legal title to retain it, such circumstances, for instance, as would render a restoration of the status quo impossible, a constructive trust will be adopted as a convenient machinery for the fulfillment of justice, . . .”
We think the rule applicable in the case at bar was aptly stated in the case of Parker v. Parker (N. J.), 56 Atl. 1094, as follows: (Headnote 1) “Though the surrender or cancellation of a deed by consent of the parties thereto will not divest the grantee of the title conveyed and re-invest the grantor with the legal title, yet where such transaction is had under an agreement, and after-wards acted upon by all the parties in interest, the grantor thereby regains the equitable title to the property, and can compel the grantee in equity to execute a deed of reconveyance.”
The decree of the lower court was in accordance with the views expressed above. It is accordingly affirmed. | [
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McHaney, Justice.
Appellant was charged by information with the crime of pandering, under the provisions of § 3391 of Pope’s Digest which makes it a felony ■ for any person to “knowingly accept, receive, levy or appropriate any money or other valuable thing, without consideration, from the proceeds of any woman engaged in prostitution, ’ ’ and fixes the punishment on conviction at not less than two nor more than 10' years ’ imprisonment. The statute also makes the receipt of any such money presumptive evidence of lack of consideration-
The information charged, in the language of the statute, that the appellant did “knowingly accept, receive, levy and appropriate money, without consideration from the proceeds of the earnings through prostitution of Ruby Mae Melton” who posed as his wife. They were arrested at the Hotel Pines in Pine Bluff and the State presented evidence of similar offenses at several hotels in Little Rock, where Ruby Mae was plying her trade in company with appellant. When the case came on for trial the court ordered that the information be amended in certain particulars, over the exceptions of appellant.
Trial resulted in a verdict of guilty and 10 years’ imprisonment, on which judgment was entered accordingly. This appeal followed.
1. During the closing argument of the State’s attorney, he read to the jury Webster’s definition of a panderer, — “a pimp, a procurer, a male bawd, a profligate wretch who caters for the lust of others” — over the objections and exception of appellant. This is the first assignment argued for a reversal, but we think it is without merit and resulted in no prejudice to him. Wide latitude is allowed in argument to the jury and the Webster definition is no broader than the meaning of the statute which the court read to the jury. Certainly a man who lives off of the proceeds of the earnings through prostitution of a woman he calls his wife is “a profligate wretch who caters for the lust of others. ’ ’
2. It is next said that instruction No. 2 is erroneous because it does not tell the jury that appellant could be convicted only for receiving the proceeds of or from a woman’s prostitution, and not her earnings, if any, from legitimate sources. We think the instruction not open to this objection, but, if it were, it was appellant’s duty to call the defect to the attention of the court by a specific objection. Only a general objection was made.
3. Instruction No'. 5 told the jury that evidence of other similar offenses to the one charged had been admitted, not for the purpose of conviction for such similar offenses, but “solely for the purpose of showing design, particular intention,” etc., “and you should consider such evidence for this purpose and for this purpose alone.” It is now argued, for the first time and without a specific objection, that the “court should not single out and direct the jury to consider any particular evidence as proof of any particular issue. ’ ’ This instruction was in appellant’s favor. It was cautionary, in its nature. Other competent evidence had been introduced of offenses exactly similar to the offenses charged, and it was for the protection of appellant that the court limited the jury’s consideration thereof to the matters stated. Cases are cited to the effect that the court has no right to point out what inferences should be drawn from the evidence, (Blankenship v. State, 55 Ark. 244, 18 S. W. 54, and others), but the court did not point out any inference to be drawn by the jury, but only that they should consider such evidence only for the purposes stated.
4. Another assignment argued for a reversal is that the court erred in permitting the witness, Prank Williamson, to testify, over appellant’s objections and exceptions, to statements made to him by Ruby Mae Melton in the absence of appellant. Ruby had testified both on direct and cross-examination that she had not been engaged in prostitution, did not give appellant any money, did not have any dates with men and that the Negro bell boys in hotels did not make any dates for her. On cross-examination, after testifying that she had a conversation with witness Williamson in the jail after her arrest, in the absence of appellant, she was asked this question: “Is it for a fact that you told him (Williamson) that during all of the time you were in Little Rock at the Gleason, Marion, Ben McGehee and Capitol Hotels that you were engaged in prostitution ? ’ ’ She answered: “ No, sir, I didn’t tell Mr. Williamson any such of a thing.” Another question was: “Did you tell Mr. Williamson that practically all of the money you and Mr. Melton had from the time you left Atlanta in March that you had made by prostitution?” She answered, “No I didn’t.” She denied she told Williamson that, on the night of May 1, at the Pines Hotel in Pine Bluff, she had sexual intercourse for money. Mr. Williamson testified on rebuttal that she did make the statements to him which she had denied making. Counsel for appellant objected to the testimony of the witness on the ground that appellant was not present when the statements of Ruby Mae were made to Mr. Williamson, which was overruled. Certainly this testimony was admissible to impeach the testimony of Ruby Mae Melton, or as going to her credibility as a witness, and the court was not requested to so limit it. So, the objection must fail, even though the ground of objection stated was well taken, a question we do not now decide.
5. It is also argued that the court erred in directing that information be amended by inserting after the word ‘ ‘ money ’ ’ the words “good and lawful money of the United States of America,” and by inserting after the words “Ruby Mae Melton” the words “a female prostitute then and there engaged in prostitution.” No error was committed by these amendments as they are permitted by § 3853 of Pope’s Digest. Underwood v. State, 205 Ark. 864, 171 S. W. 2d 304.
Other, assignments are argued for a reversal of the judgment which we have carefully considered and find them without substantial merit.
No error appearing, the judgment is affirmed. | [
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Minor W. Millwee, Justice.
Appellee, Arthur D. Yates, was employed by appellant, Bruner-Ivory Handle Company for seven years prior to June 9, 1942.. On November 7, 1943, he filed a claim with the Workmen’s Compensation Commission asserting that he had a com pensable disability, on account of bronchiectasis, which arose out of and in the course of his employment with the handle company.
After separate hearings before two referees and the full commission, the claim was referred to the Medical Board of the Workmen’s Compensation Commission as provided in the compensation act (§ 14(c) (4) of Act 319 of 1939), there being a controversy on the question of whether or not appellee’s condition was the result of an occupational disease or an occupational infection.
At a hearing before the medical board on August 14, 1944, appellee was referred to two Little Rock physicians who conducted clinical and X-ray examinations of appellee over a period of five days and reported their findings to the board.
On October 19, 1944, the medical board reported to the commission as follows: “After reviewing all the testimony in this case, including the reports of Drs. Cull and Fulmer of Little Rock, dated August 31,1944, we are of the opinion that this man has a chronic maxillary sinusitis causing chronic bronchitis, and we are of the. opinion that when the sinus infection is cleared this bronchial trouble will be entirely relieved, and that his present condition is not related to his occupation.
• “Accordingly, the Medical Board finds that the claimant did not sustain an occupational disease or occupational infection arising out of and in the course of his employment.”
On November 8, 1944, the commission rendered its opinion based on the medical board’s findings and the claim for compensation was denied. Appellee then filed a petition for review of the decision of the commission in which specific objections to the findings and conclusions of the medical board were made under § 14(c) (7) of the compensation act.
Pursuant to this petition the matter was again heard by the commission on December 4, 1944, on the testimony of Dr. Cheairs, of the medical board, and Drs. Cull and Fulmer, who conducted examinations of appellee at the request of the board. At the conclusion of this hearing the medical board refused to reconsider its former findings and the commission reaffirmed its decision of November 8, 1944. The commission found: “That any condition from which this claimant now suffers is not the result of an accidental injury or occupational disease or occupational infection that arose out of and in the course of his employment with the respondent employer and his claim for compensation is, therefore, denied.”
On appeal, the circuit court found that the claim was subject to review on all questions, both of law and fact. The judgment recites: “That the claimant is totally and permanently disabled by reason of bronchiectasis, which was incurred by the claimant as a result of an occupational disease or occupational infection and which árose out of and in the course of his employment with the respondent employer.” Compensation was awarded on a weekly basis as long as the disability existed, or until the sum of $7,000 had been paid to appellee.
Under § 25(b) of the compensation act we have repeatedly held that the findings of the commission on questions of fact will not be disturbed, if there is sufficient competent evidence to warrant the making of the award. Appellee readily concedes that the circuit court was without authority to overturn the award of the commission, if the procedure provided in this section is to be applied to the appeal of appellee from the award of the commission to the circuit court. However, it is earnestly insisted that the appeal to circuit court is governed by § 14(c) (7) of the compensation act. The last sentence of this sub-section reads: “Every decision by the commission that sets aside, reverses, affirms, or modifies a finding or conclusion by the medical board shall be subject to review by the courts, upon appeal, on all questions, whether of law or fact. ’ ’
Assuming, without deciding, that the procedure outlined in the section relied on by appellee is applicable, as the circuit court found, and that the circuit court on appeal is authorized to review findings of fact made by the commission on the medical question involved, we are then confronted with the question whether there is substantial evidence to sustain the circuit court’s finding that appellee incurred an occupational disease or occupational infection which arose out of and in the course of his employment. Section 2(f) of the compensation act provides: “ ‘Injury’ and ‘Personal Injury’ shall mean; Accidental injury or death arising out of and in the course of employment, and such occupational disease or occupational infection as arises naturally out of such employment or as naturally and unavoidably results from’ such accidental injury as hereinafter defined.” Neither bronchiectasis nor sinusitis is listed as an occupational disease in the act*
It is undisputed that appellee became disabled on June 9, 1942, although there is some dispute as to the extent of such disability. Appellee worked in the “dipping room” of the factory where handles are dipped into a vat containing a lacquer solution. Appellee testified that the fumes and vapors from the lacquer solution caused his eyes to smart and a feeling of intoxication; that his general health was good until about three or four weeks prior to June 9,1942, when he began to run a little temperature and losé weight. Upon the advice of Dr. Lile, appellee stopped work and was later advised by his doctor that he was totally disabled and suffering with bronchiectasis.
Dr. Lile first diagnosed the case as tuberculosis and advised appellee to go to the sanatorium at Booneville, Arkansas, for examination. Dr. Riley of the sanatorium reported that X-ray pictures showed evidence of chronic bronchitis, but he was unable to say whether appellee had bronchiectasis, and he found no evidence that the disability was occupational. Dr. Lile based his opinion that appellee had bronchiectasis largely on the report of Dr. Riley, and testified that appellee’s condition was not caused by his work. A report from Dr. Buchanan is in the record which states that appellee was totally disabled from bronchiectasis on February 24, 1944, but no opinion is given as to whether the disability is occupational.
At the last hearing before the commission,' Drs. Cull and Fulmer testified that appellee was suffering from a bronchial trouble which was secondary to, and caused by, a chronic sinus infection; that appellee’s condition was not unusual and was not caused by his occupation; and that fumes from the lacquer solution would not cause bronchitis, nor sinusitis which is a bacterial infection. X-ray pictures made upon their examination of appellee in August, 1944, showed the bronchi entirely normal, but revealed a severe condition of sinusitis. In his testimony, Dr. Cull quoted at length from medical texts on the toxic effects of the solvents used in the lacquer solution and gave the following conclusion based on these authorities: “Personally I can find no evidence»in studying this whatever that you could get a chronic sinus or bronchial condition from any such solvent as used here. That is my personal opinion. These particular ingredients are used widely in industry as solvents. If they are prone to produce pulmonary trouble it should be readily found, but I can’t find it.” Both physicians testified that a pre-existing nasal or chest infection would be temporarily aggravated by breathing the vapors from solvents used in the lacquer solution, but that the irritation would have no permanent effect on such infection.
The opinion of all the physicians who testified on the question was that there was no causal relation be-, tween appellee’s disability and his employment. While the question is not free from difficulty, it is our considered opinion that there is a lack of substairtial evidence to support the finding of the circuit court that appellee incurred an occupational disease or occupational infection which arose out of and in the course of his employment. The judgment of the circuit court is accordingly reversed, and the cause remanded with directions to reinstate the findings and order of the compensation commission. | [
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Holt, J.
On May 9, 1946, appellees filed four separate suits to recover damages to land and crops alleged to have resulted from overflows. The suits, by agreement, were consolidated for trial.
Appellee, J. Neal, is the husband of appellee, Cary S; Neal. The tract of land involved here consists of eighty acres and was owned by Cary S. Neal. J. Neal, at the time of the alleged damages, was cultivating the tract as tenant. Damages were sought by appellees to growing crops and permanent injury to the tract of land resulting from an overflow in 1943. Appellees also sought damages for another overflow in 1945, which it was alleged resulted in damage to crops and injury to the tract of land in question. It was alleged that the crops were destroyed in each of the overflows and that the land was washed and permanently damaged by each overflow as a result of the negligent manner in which appellant had constructed and maintained its roadbed in that it failed to use proper care in providing sufficient openings and drains to permit overflow waters north of the roadbed to escape, thus damaging appellees’ property.
Appellant answered all suits with a general denial and further pleaded as a bar to appellees’ claims the three-year statute of limitations.
A jury awarded appellees, in separate verdicts, crop damages growing out of the 1945 flood in the amount of $3,000, and $1,000 for injury to the land, and for damages to crops growing out of the 1943 flood $2,000, and $1,000 for injury to the land, or a total of $7,000.
This appeal followed.
For reversal, appellant argues the insufficiency of the evidence and the three-year statute of limitations as a bar. It appears from the evidence that the roadbed of appellant, at the time of its construction on the north edge of appellees’ property, contained two openings or’ drains to permit flood waters north of the embankment to escape to the south. One of these openings, in the' nature of a 90-foot wood trestle, was filled in in 1923 and a 5 x 4 drain constructed under the roadbed to take its place, thus materially reducing the opening at this point. This 5x4 drain had not been changed up to the date of trial. The other drain or-opening less than one quarter mile up the roadbed, following an unusual flood which overtopped the roadbed in 1933, was practically doubled in size, the size of the opening being increased from about 700 square feet to 1,400 square feet, and this latter opening had not been changed since 1933.
Up to this point, there is little, if any, dispute in the testimony.
There was substantial testimony that in 1943 flood waters, though not as high as in 1933, accumulated north of appellant’s roadbed and on account of insufficient drains and openings .in the roadbed, the water in passing through these openings washed and permanently damaged appellees’ eighty-acre tract of land and destroyed the crops growing thereon.
For this permanent damage to the land and destruction of the crops in 1943 appellees were entitled to recover for the reasons which we shall presently point out. (Missouri Pacific Railroad Co., Baldwin, et al., Trustees, v. Kuykendall, 193 Ark. 106, 97 S. W. 2d 620.) However, having once recovered permanent damages in a tort action against appellant, permanent damages to the same tract of land and loss of crops may not again be recovered for subsequent damages in 1945.
If a permanent obstruction to the flow of surface waters is erected an original action arises for the recovery of any damages* which thus ensue, or which must necessarily therefor ensue, and a single action may be maintained provided the nature and extent and certainty of future damages may be ascertained, admeasured and compensated, in which event there can be no recovery for a recurring damage from the same cause. In such an action the recovery is not only for the damages which had occurred, but for those which will reasonably occur, the occurrence of which will result in the depreciation of the value of the land, and for this reason, the measure of such damage is the difference in the value of the land before and after the erection of the obstruction.
If, therefore, there was a recovery in 1943 or in any other year for the permanent injury to the land, there cannot be a subsequent recovery for a recurring damage because the owner has been compensated for such damages by the recovery of this difference in value of the land, which difference in value was occasioned by the fact that not only had present damages been sustained when the suit was filed, but the reasonable certainty that subsequent damages would be sustained which would reduce the market value of the land.
Stated otherwise, the law is that if the erection of the obstruction, frequently referred to as a nuisance, is such that damage will result from its erection, a suit may be brought immediately upon the erection of the obstruc tion although the damages had not then been sustained. If, however, it is uncertain that damages may be sustained, or if so, that the extent and amount thereof may not then be ascertained and compensated, the suit need not be brought until there has been damage.
The law is that one may not first recover for permanent damages and thereafter recover for a recurring-damage. If this may be done, the owner recovers twice for the same damage because a recovery for a permanent or original injury includes not only the damages which have then occurred, but also the future damages which will occur and reduce the valué of the land.
Here, the owner has twice recovered compensation for the damages to the land, once for the 1943 overflow and again for the 1945 overflow. The following.correct instruction was given on the measure of damages for the first overflow in 1943: “If you find for‘the plaintiff, Cary S. Neal, as to damages to her land in the year 1943, then she would be entitled to recover the difference, if any, between the fair market value, if any, of the lands so damaged immediately before and immediately after such damage, if any.”
The proper measure of the damages was the diminished value of the land and this reduced value was occasioned not only by the certainty that an overflow had damaged the land, but a reasonable certainty that subsequent overflows would render it less valuable for the uses to which it was adapted. If there has been a recovery for the permanent damage to the land by the owner from the 1943 flood, neither the owner nor his tenant can recover for his subsequent crop damage because the reduced value of the land occasioned by the reasonable certainty that there would be future damages was compensated for the damages resulting from the 1943 overflow.
The rule is announced in 15 Amer. Jur., under Damages, § 25, p. 417, as follows: “If an injury to realty is permanent in character, all the damages caused thereby, whether past, present, or prospective, may be recovered in a single action. Moreover, recovery of all such dam ages must be in a single action, under the rule which prohibits splitting causes of action. The damages so recovered are called ‘permanent or original .damages.’ They are given on the theory that the cause of injury is fixed and that the property must always remain subject to such injury and for the purpose of preventing a multiplicity of suits and putting an end to litigation.”
And, in 1 Amer. Jur., under Actions, § 118, p. 498, the text writer says: ‘ ‘ Generally, it may be said that the question as to whether there is a right to but one.action for injuries caused by a nuisance or a right to successive actions depends upon whether the cause of the injury is permanent or temporary and upon the character of the injury. If the cause is temporary, there is a right to successive actions. ... If, however, the cause of injury is a permanent nuisance, as where permanent structures, are erected infringing on the plaintiff’s rights in his land, such as railroad embankments, culverts, bridges, and dams, a single action should be brought for the entire damages, both past and prospective, which will bar a subsequent action. This is particularly true where the original act creates a nuisance to land which is permanent in its nature and at once necessarily productive of all the damage which can ever result from it, or which indicates prospective injuries that are obviously and necessarily certain and reasonably capable of being estimated for all time. ’ ’
The three-year statute of limitations does not apply here. Baldwin v. Neal, 190 Ark. 673, 80 S. W. 2d 648.
We conclude, therefore, that so much of the judgment as allowed recovery for the alleged damages growing out of the 1945 flood in the amount of $4,000 was erroneous. That part of the judgment awarding appellees $3,000 for permanent injuries to the land and crop damage resulting from the 1943 flood is affirmed.
Accordingly, the total judgment of $7,000 is reduced to $3,000, and as so modified, is affirmed. | [
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G-bieein Smith, Chief Justice.
John Blackwell sought to subject certain lands to the payment of his judgment against Mitchell Heard. The appeal is from a decree quieting title in Homer Steen, who intervened.
The lands involved embrace 410 acres, all but eighty having been owned by John C. Heard. The west half of the northwest quarter of section fifteen, township fourteen north, range sixteen west, was on September 26,1938, conveyed by Muriel Redman to John C. Heard and Florence Heard, who were husband and wife.
John C. Heard died prior to 1944. His two sons, Mitchell and John K., were sole heirs. Florence Heard died May 26, 1944. Neither parent had undertaken to alienate the property.
In 1930 Mitchell Heard became indebted to Blackwell, who on February 6, 1944, obtained judgment for the balance of $168.
January 1, 1944, Mitchell Heard quitclaimed to his two daughters, Brooxie Nell Earns and Helen Henrietta Heard. The deed was not recorded until September 14, 1945. The conveyance purported to coyer 410 acres, the ineffectual description “Pt.” having been used in three instances.
July 1, 1944, Mitchell and John E. undertook to convey by warranty deed all of the 410 acres. The grantee was Dewey Elmer Treece, who later sold to Steen. The Mitchell-Treece deed was recorded January 13, 1945.
It is contended (a) that the Court erred in finding that Mitchell Heard’s conveyance to his two daughters was not a fraud upon Blackwell as a creditor; (b) even though this transaction were otherwise valid,'the grantor did not at that time have any interest in the west half of the northwest quarter of section fifteen, and the quitclaim deed did not carry an after-acquired title; (c) title to the tracts described as “pt.” could not be quieted.
The Chancellor’s determination that Mitchell Heard’s conveyance to his daughters was not fraudulent must be sustained. There is an inference of insolvency, but that is not enough. Five dollars “and other valuable considerations” were recited in the deed. There was testimony .that the daughters engaged to care for their grandmother who suffered from cancer, and this they did. They also offered to substitute their deed for their father’s in favor of Treece. Treece — who did not testify; — alleged in his answer and cross-complaint that he purchased in good faith without notice and paid $1,500 for the properties. There is no testimony that he knew of the unrecorded deed. It follows that as to Brooxie Nell Earns and Helen Henrietta Heard the Treece title was superior.
Muriel Redman’s deed of 1938 vested in John C. and Florence Heard an estate by the entirety. When John C. died title to the eighty acres was absolute in the survivor, but when the wife died in May 1944 Mitchell and John E. each inherited a half interest. But the judgment procured by Blackwell became a lien in respect of Mitchell’s undivided half. When Treece took under his deed in July, following the death of Florence Heard in May, Mitchell’s interest was charged with Blackwell’s judgment lien; nor was it in any .manner affected by the deed from Treece to Steen.
The Court had a right to correct the three descriptions in order that the land actually owned by John C. Heard would be identified. Appellant cannot complain of this. He did not contend that other lands were intended, hence clarification would have been to his advantage had he prevailed as'to the three tracts aggregating 330 acres.
The decree in result is affirmed in all matters other than the holding that Steen’s title to the eighty acres be quieted. In this respect it is modified. A lien is recognized on the undivided half- interest acquired by Mitchell Heard. The cause is remanded with directions that the property be sold for purposes consistent with this opinion and at a time to be ordered by Chancery Court, unless the debt in Blackwell’s favor be paid.
See Graham v. Quarles, 206 Ark. 542, 176 S. W. 2d 703. | [
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Ed. F. MoFaddin, Justice.
Appellee, R. A. Ashabranner, a real estate broker in Hot Springs, filed action against appellant, C. C. Reynolds, and Ms wife, Mrs. Cornelia Ney Reynolds, for $1,750 claimed by appellee to be due Mm as the earned commission under a real estate broker’s contract. Mr. and Mrs. Reynolds owned, by estate of entirety, a tourist court near Hot Springs. An agent of Ashabranner approached Mr. Reynolds to list the property for sale, at a price of $35,000, and Reynolds signed a contract reading as follows:
“January 25, 1946.
“For and in consideration of the services rendered and to be rendered by Dixie Realty Company, R. A. Ashabranner, Broker, in selling or assisting me to sell or exchange the property described on the reverse side of this contract, of which I am the sole owner, I agree that R. A. Ashabranner, Broker, shall have the sole and exclusive agency of sale for said property for a period of three months from date hereof, and thereafter until notified by me orally or in writing of its withdrawal from sale; and I hereby authorize them to sell or contract with purchaser for. the sale and conveyance by warranty deed of said premises according to the price and terms herein given, title to be shown by abstract of title which I agree, to furnish.
“If said property be sold or otherwise disposed of by R. A. Ashabranner, Broker, during the above period, I agree to pay to their order the sum of $........... — ...................... being the customary commission of 5 per cent, on the gross amount of said sale, or the value at which it may, with my consent, be exchanged for other property.
“I further agree to pay said commission to R. A. Ashabranner, Broker, 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.
“Signature of Owner G. C. Reynolds.”
General information about the property, and the price thereof, were detailed on the reverse side of the page.
The instrument was never signed by Mrs. Reynolds. Witnesses for Ashabranner testified that Mr. Reynolds reported himself as' the sole owner of the property (just as stated in the instrument). Reynolds testified that he advised Ashabranner’s representative that the property was an estate by entirety, and that the instrument had to be signed by Mrs. Reynolds before it could become a contract. The conflict on this point is a disputed issue discussed in topic I, infra.
Ashabranner procured a purchaser claimed to be ready, able and willing to buy the property. The Reynolds refused to convey, and Ashabranner filed this action for his commission. The case was tried to a jury, and resulted in a verdict and judgment awarding Ashabranner $875 against O. G. Reynolds, but no judgment against Mrs. Cornelia Ney Reynolds. Prom the judgment of $875 against him, O. C. Reynolds has appealed; and Ashabranner has cross appealed, claiming he is entitled to a judgment against C. G. Reynolds for the full amount of $1,750. Mrs. Cornelia Ney Reynolds is not a party to this appeal. Much of the case in the lower court related to whether Mrs. Reynolds was liable. The jury verdict settled that question; and, as to her, Ashabranner has not appealed; so, tlie questions presented here relate to the case between Ashabranner and C. C. Reynolds.
I. Did Ashabranner Have a Contract with Reynolds? The general rule is, that, unless there are provisions to the contrary, one who émplóys a broker is liable for the broker’s compensation, regardless of the employer ’s interest in the property. See 9 C. J. 586 and 12 C. J. S. Brokers p. 178, § 82, and cases there cited. Our own cases of Branch v. Moore, 84 Ark. 462, 105 S. W. 1178, 120 Am. St. Rep. 78; Reeder v. Epps, 112 Ark. 566, 166 S. W. 747; and Chandler v. Gaines, 145 Ark. 262, 224 S. W. 484, point to the conclusion that Reynolds’ inability to convey the entire title would not be available as a defense to him if in fact he made a binding contract with Ashabranner to pay the real estate man a commission' for producing a purchaser ready, able and willing to buy the property on the terms stated. The signing of the instrument was admitted by Reynolds; so Ashabranner had a contract, unless it was signed on a condition that kept it from coming into force. Such is now to be considered.
Reynolds claims that the instrument he signed to Ashabranner was on a condition precedent, which was that the instrument was not to be a contract until Mrs. Reynolds signed it. Appellant thus seeks to bring himself within the rule of such cases as Barr Cash & Package Carrier Co. v. Brooks Co., 82 Ark. 219, 101 S. W. 408, and American Co. v. Whittaker, 100 Ark. 360, 140 S. W. 132, 37 L. R. A., N. S. 91, which cases hold that parol evidence is admissible to prove that a written contract, although complete on its face and delivered, is not to go into existence and be binding* until certain conditions precedent have been fulfilled. On this point appellant says: “Appellant further contends that one of the conditions of the contract was that the wife’s signature should be obtained thereto before it was binding. His contention in this respect certainly should have been submitted to the jury. The instructions wholly ignore this theory of appellant’s case.”
And on his -theory, of a condition precedent to the coming into existence of the contract, appellant requested defendant’s instruction No. 4, the refusal of which is assigned as error. This instruction reads: "If you find from the evidence in this case that the defendant, C. C. Reynolds, signed the contract with the plaintiff in good faith, hut on the condition that the plaintiff was to obtain the signature of his wife thereto, and if you further find that the plaintiff failed or neglected to procure Mrs. Reynolds’ consent or signature to said contract, you are instructed that, having failed to meet a condition precedent, the contract was incomplete, and the defendant, C. C. Reynolds, was discharged by operation of law, and the plaintiff could not recover.”
Assuming that appellant is correct on his abstract principle of law, nevertheless, when we consider the evidence relating to the conduct of the appellant after he knew that Mrs. Reynolds had not signed the contract, we reach the conclusion that the instruction should not have been given in the form requested, because it did not include the question of whether Reynolds had waived the condition precedent. Appellant first testified about the signing of the instrument: "... I told him I would sign the contract if he wanted me to, and that he could contact my wife later and get her signature on it; otherwise, I said, the contract would be null and void, because her signature had to be on the contract. So I signed the contract and he departed.” And, later, appellant testified : " Q. Did you ever discuss with your wife the fact that you had listed the property with Mr. Ashabranner ? A. I told my wife what I had done about listing the property, yes. Q. When did you tell her that? A. Probably two or three days after Mr. Ashabranner was out there. Q. In the course of two or three days you told her about it? A. Yes. Q. She knew then that you listed it? A. Yes. Q. You continued then to show the property to the prospective purchasers as they came out there? A. I showed the property. I hadn’t shown it to anybody before that.
“Q. I believe you testified you advised your wife you had signed the contract? A. Yes. Q. And' she knew these various prospective purchasers were out there from time to time, did she not? A. Yes.”
In short, even if the instrument had been originally signed on a condition precedent (that Mrs. Reynolds would have to sign before there was a contract), nevertheless, Reynolds, after discussing the matter with his wife, continued to let Ashabranner perform his part of the contract by bringing prospects to see the property. In the absence of a contract, Reynolds had no right to expect Ashabranner to show the property to any prospect; and, furthermore, Reynolds, by showing the property to these prospects, performed acts which made a fact question as to whether he had waived the condition precedent to the existence of the contract. The situation here is not that of a waiver of a condition precedent stated in the ‘written contract; rather, it is the waiving of a condition precedent to the coming into existence of the contract. See 17 C. J. S. 792 on “'Conditions Precedent.” In 13 C. J. 791, in discussing the waiver of a condition precedent in actions concerning contracts, the general rule is stated: “The question as to whether a condition precedent has been performed is purely one of fact to be determined by the jury under the evidence. And the same has been held to be true of the question as to whether the performance of such condition has been waived, but the jury should be properly instructed as to the law.” See, also, 17 C. J. S. 1297.
The issue of waiver was as definitely intertwined with the issue of condition precedent as pleaded contributory negligence is intertwined with pleaded negligence; and we have repeatedly held that a “binding instruction,” ignoring pleaded contributory negligence, should be refused. Natural Gas Co. v. Lyles, 174 Ark. 146, 294 S. W. 395; Temple Cotton Oil Co. v. Skinner, 176 Ark. 17, 2 S. W. 2d 676; Postal Tel. Co. v. White, 188 Ark. 361, 66 S. W. 2d 642; Mo. Pac. R. Co. v. Burks, 197 Ark. 1104, 121 S. W. 2d 65. If instruction No. 4 had been given, the essential issue of waiver would have been ignored; yet instruction No. 4 was a “binding instruction,” in tbat it said “tbe plaintiff cannot recover.” Before Reynolds can successfully complain of tbe refusal of tbe trial court to give tbe defendant’s requested instruction No. 4, Reynolds must show not only (a) tbat tbe instruction was a correct declaration of law applicable to tbe case, but also (b) tbat tbis instruction constituted a complete declaration of law on tbe point at issue. Reynolds bas failed in tbis latter essential, because be did not, in bis instruction No. 4 (or, in fact, in any other requested in-' struction) couple tbe issue of waiver with tbe issue of condition precedent.
Trial courts are not required to give instructions wbicb need explanation, modification or qualification. See 64 C. J. 912. ¥e have repeatedly held tbat it is not error for tbe trial court to refuse an instruction wbicb excluded one of tbe issues in tbe case. American Ins. Co. v. Haynie, 91 Ark. 43, 120 S. W. 825, concerned an instruction which ignored tbe issue of waiver. Gunter v. Williams, 137 Ark. 530, 210 S. W. 136, concerned an instruction tbat ignored tbe issue of ratification of a contract. See, also, Carp v. Priess, 166 Ark. 130, 265 S. W. 664, and other cases collected in West’s Arkansas Digest, “Trial,” § 253(3). So, for tbe reasons stated, we bold tbat tbe trial court did not err in refusing Reynolds’ instruction No. 4.
With tbis question settled, it follows tbat there was ample evidence to take tbe case to tbe jury on tbe primary question of whether Ashabranner bad a contract with Reynolds. Tbe jury’s verdict settled that issue in favor of appellee.
II. Did Ashabranner Produce a Purchaser “Beady, Able and Willing’’ to Buy the Property in Accordance with the Contract¶ The evidence was amply sufficient to take that question to the jury. The proposed purchaser, Mr. Cellenano, testified that he was ready; able and willing to buy the property on February 27, 1946 (well-within the contract time), and to pay the full cash price therefor; and that, subsequent to the refusal of Reynolds to convey, Cellenano paid more than $35,000 in cash for somewhat similar property. There was other evidence, all going to show that Ashabranner had produced a purchaser “ready, able and willing.” We have considered the other assignments on the direct appeal of Reynolds, and we find no error; and the judgment against him is affirmed.
III. The Gross Appeal of Ashabranner. Immediately after the jury returned its verdict of $875, in favor of Ashabranner and against Reynolds, Ashabranner moved the court to render a judgment in his favor and against Reynolds for the full sum of $1,750. This was in the nature of a motion non obstante veredicto. This motion was denied by the court; and, by his cross appeal, Ashabranner claims that the trial court committed error. But Ashabranner is is no position to claim any error in this regard, because he filed no motion for new trial in the lower court.
In Larimore v. Howell, 211 Ark. 63, 199 S. W. 2d 320 we said:
“When it appears from the face of the pleadings that either side is entitled to a judgment thereon, then the party so entitled may have a judgment notwithstanding the verdict; and on appeal to this court in such case, there need be no motion for new trial filed in the lower court ;• because the question presented here is one based entirely on the record, i. e., the pleadings.
“But when the motion for judgment notwithstanding the verdict is asked because of matters claimed to appear in the evidence — as distinct from the pleadings — then the party who seeks to invoke the jurisdiction of this court must first have filed a motion for new trial in the lower court.” (Italics now added).
Ashabranner’s right to a recovery in this case depended on the evidence rather than merely on the pleadings — as has been heretofore demonstrated. Since Ashabranner filed no motion for new trial, it follows that his cross appeal should be denied.
The judgment of the circuit court is affirmed, both on direct appeal and cross appeal.
A “binding instruction” is one which tells the jury that, if only the conditions stated in that one instruction are found to exist, then the jury will determine the case. In other words, the instruction in effect “binds” the jury to return a verdict based only on such instruction. For some cases on “binding instructions,” see: Scott-Burr v. Foster, 197 Ark. 232, 122 S. W. 2d 165; Siegel & Co. v. Moore, 204 Ark. 50, 161 S. W. 2d 387; Long Bell Lbr. Co. v. Tarver, 196 Ark. 275, 118 S. W. 2d 282; Mo. Pac. R. Co. v. Dalby, 199 Ark. 49, 132 S. W. 2d 646. | [
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Gtrieein Smith, Cl\ief Justice.
In 1942 and in 1943 Buschow Lumber Company procured from the State deeds purporting to convey lands that had been sold in 1931 for 1930 taxes. It is conceded that assessments not authorized by law were extended and included in the tax exactions, resulting in void sales. These jurisdictional defects, however, were not called to the Court’s attention in 1936 when the State’s decree of confirmation was rendered.
J. C. F. Motz owned 120 acres of the forfeited land. Other tracts, aggregating 153.51 acres, were owned by W. L. Hook. In April 1947 Swindle procured a quitclaim deed from Hook, and in May of the same year Witt took by quitclaim all interest that Motz may have had. Result is that these appellees stand in the position of record owners in respect of forfeitures. The lands are wild and unimproved.
The Lumber Company paid taxes on assessments made after it received the State deeds. In the Witt case a tender of $23.88 was made. Swindle offered to refund, but the amount is in blank.
Appeal in the consolidated cases is from decrees avoiding confirmation and vesting title in Witt and Swindle, respectively, on condition that taxes paid by the Lumber Company be repaid with interest at six per cent.
While agreeing that the original sales were void, appellant insists that the confirmation decree gave the State color of title, and as between the State upon the one hand and those claiming under the quitclaim deeds, the former should prevail; or, if this is not correct, then the State and its subdivisions should not suffer loss of taxes for the years intervening between forfeiture and purchase.
Appellees say that because appellant did not, at trial, ask that a lien be declared for the unpaid interim taxes, the question is not relevant now. They call attention to Act 269 of 1939, by the terms of which certain provisions are made for the protection of one whose title to lands . . . purchased from the State . . . has failed. In addition to “all other available remedies”, such defeated purchaser may be given a lien on the land “for the amount of the taxes, penalty, and cost for which said lands were originally forfeited and sold, plus all taxes on said lands which have subsequently been paid by the purchaser”, etc.
We agree with appellees that under the record and stipulations the Collector did not have power to sell, and confirmation added nothing; nor is the contention that the property had been abandoned legally tenable, although Motz, in Pennsylvania, and Hook, in California, had been absentee owners for more than fifteen years. There is no presumption that wild and unimproved land upon which taxes have not been paid has been abandoned.
While the suits filed by appellees are in terms actions to quiet title, actually the.decrees permit redemptions ; for when the void tax sales are cancelled and the attempt to confirm is disposed of, the Lumber Company stands stripped of all interest under the Commissioner’s deeds other than rights conferred by Act 269 of 1945 authorizing refunds. The deeds, although predicated upon what the Commissioner mistakenly thought was effective confirmation, were at least color of title in appellant’s hands, in spite of the fact that actual possession was not taken.
Section 13868 of Pope’s Digest is a requirement that owners who seek through the County Clerk to redeem within two years pay the amount for which the land forfeited, with penalty, etc., “. . . and the taxes which would have accrued thereon if such land or lot had been continued on the tax books and the taxes extended. . . .” .Vandergrift v. Lowery, 195 Ark. 257, 111 S. W. 2d 510. This statute is not by express terms applicable to a situation such as we are dealing with; but it does disclose a general policy that property struck off to the State but not certified shall be taxed, and on the basis of the legal assessment for which it forfeited.
The State has a continuing lien for taxes, including those due its subdivisions. Appellees have invoked the aid of equity in an effort to clear their title to lands they say did not become State property, yet they do not offer to do equity by saving to the State an amount equal to taxes that would have accumulated if no sale had been attempted. To retain title it was incumbent upon Motz and Hook to discharge all legal levies against the lands. This obligation was not met by an attitude of inaction in 1931; nor was it equitably excused. Suit to enjoin certification to the State could have been maintained, if coupled with tender of sums actually due.
A court of equity may — and ordinarily should — require of a suitor that he do- equity when the court’s purely equitable dispensation is sought. In the instant case good conscience demands that appellees pay to'the State (or to appellant as the State’s apparent successor in title) the aggregate of successive yearly taxes, based upon assessments at the time of forfeiture.
The State’s policy to collect taxes for years subsequent to forfeiture has for many years been expressed in legislative Acts. Even minors — special favorites of law — were not excepted. Pope’s Digest, 8666-7. The Act of March 27, 1893, p. 167, Pope’s Digest § 8673, permitted redemption under the overdue tax Act by discharging the obligation first incurred,' with penalty, interests, etc., “and all State and County taxes that would have subsequently accrued thereon had [the land] remained on the tax books subject to taxation”.
A procedure in effect more than sixty years ago— Act of February 15, 1887, p. 13, Pope’s Digest § 8680 — • allowed redemption from the Land Commissioner, who executed his deed and sent a copy to the County Clerk. Thereupon the Clerk “. . . extended on the tax books against said lands the taxes for the years that the same [had] not been paid since said erroneous sale . . . under the overdue tax law, and such taxes as [had] not been paid on such lands since sale to the State shall be charged and collected”. Pope’s Digest § 8682. See, also, § 8686, which required payment “of all taxes that would have accrued thereon for all purposes if the same had not been sold to the State”.
The Confirmation Act of 1935, ■§ 6, p. 321, contains a provision that “If any person . . . sets up the defense that the sale to the State was void for any cause, such, person . . . shall tender to the clerk of the court the amount of taxes, penalty and costs for which the land was forfeited to the State, plus the amount which would have accrued as taxes thereon had the land remained on the tax hoohs at the valuation at which it was assessed immediately prior to the forfeiture. . . .”
Almost identical language is found in Act 296 of 1929 — the old confirmation law.
We think it quite clear that there was no legislative intent that land should escape taxation as a by-product of invalid sales; hence, in the cases at bar, if appellees are to prevail they must not shift to the State a definite financial loss for which there is no statutory formula.
If appellant applies for reimbursement under Act 269 of 1945, its claim against the State should be diminished in an amount corresponding with payments appellees tender into Court in discharge of the accumulated taxes. Result is that appellees, as successors in title, will be relieved of the forfeitures, and will have paid only the taxes legally due from year to year, under assessments not complained of by the original owners. An out and out affirmance of the decrees would mean that the State, after receiving appraised values for which, prima facie, the lands sold, made corresponding refunds; and the only taxes actually paid would be those for 1930,1944, and 1945.
The decrees are modified in conformity to this opinion. The causes, however, are remanded with directions that the trial Court fix a reasonable time for compliance, and for. appropriate orders vesting title in appellees when they have met the equitable prerequisites.
In addition to the illegal assessments, some of the property was sold under “Pt.” descriptions.
Act 119 of 1935; Pope’s Digest, § 8918,
Tender of $23.88 on the Motz property seemingly had reference to the year of forfeiture (1930) plus 1944 and 1945. Presumptively the offer by Swindle included the same years, although this is not definitely shown. The record does not show when the Lumber Company had the properties assessed. Since one purchase was in 1942 and the other in 1943, the discrepancies are not explained. In any event taxes were not paid for thirteen years, nor were tenders made.
Cases in point are Fuller v. Wilkerson, 198 Ark. 102, 128 S. W. 2d 251; Smart v. Alexander, 201 Ark. 211, 144 S. W. 2d 25; Sherrill v. Faulkner, 200 Ark. 1006, 142 S. W. 2d 229; Noe v. Schuman, 210 Ark. 999, 198 S. W. 2d 510. There are many others to the same effect,
For discussions of abandonment and laches, see Carmical v. Arkansas Lumber Co., 105 Ark. 663, 152 S. W. 286; Herget v. McLeod, 102 Ark. 59, 143 S. W. 103; Parr v. Matthews, 50 Ark. 390, 8 S. W. 22; Earl Improvement Co. v. Chatfield, 81 Ark. 296, 99 S. W. 84; Chancellor v. Banks, 92 Ark. 497, 123 S. W. 650; Jones v. Temple, 126 Ark. 86, 189 S. W. 847; Union Saw Mill Co. v. Pagan, 175 Ark. 559, 299 S. W. 1012.
The State’s deed to 120 acres — the Motz land — was on the basis of $1.75 per acre, or $210, plus $13 cost. The Hook tracts were sold at the appraised price of $1.60 per acre, or $245.61, plus cost of $1(5.35. | [
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Holt, J.
Appellees were police officers in Benton, Arkansas. This suit was instituted against them by appellant, Herman H. Crouch, to recover damages for injuries alleged to have been sustained while appellees were arresting him and incarcerating him.
The substance of his complaint was that appellees, while arresting him at a time when he was in a drunken condition, and in taking him to jail, unnecessarily, willfully, maliciously and intentionally “struck, beat and kicked the plaintiff (appellant) several times with pistols and blackjacks, severely, painfully and permanently injuring him, ” etc.
The answer of appellees was a general denial. Trial resulted in a verdict for appellees and from the judgment is this appeal.
The appellees testified, in effect, that while on duty-on Sunday, March 30, 1947, at about 11 p. m., they observed an automobile being operated by an intoxicated driver. Upon stopping the car they found it contained three men including appellant, all of whom were under the influence of liquor. Two of the occupants submitted to arrest, but appellant resisted and tried to escape. Appellant cursed and abused appellees, struggled and fought with them, tried to break away, and attacked them with a screwdriver. One of the appellees during the encounter and in trying to ward off appellant’s attack, struck appellant with his fist and knocked him down, but appellant continued to resist, kicked one of the appellees in his stomach, and before he was subdued and- submitted to arrest appellees struck him with a “blackjack” or “slapper.”
Appellant was confined in jail' and released the following morning. His injuries consisted of cuts and bruises and were not of a serious or permanent nature.
Mrs. Nell Johnson, cashier of a local theater, as she was leaving to return to her home, witnessed the encounter and gave testimony tending to corroborate appellees ’ version.
For reversal, appellant argues that the verdict was contrary to the law and evidence, that the colirt erred in giving certain instructions, in excusing Juror Green, and that Juror Mrs. Henry Kjelley was disqualified to serve, and when questioned on her voir dire failed to disclose her disqualification, and that he should have a new trial for this reason.
The principles of law governing cases of this nature have been many times announced by this court. In Elgin v. Talley, 169 Ark. 662, 276 S. W. 591, 42 A. L. R. 1194, this court said: “We therefore hold that the force or violence which an officer may lawfully use to prevent the escape of a person arrested for a misdemeanor is no greater than such as might have been rightfully employed to effect his arrest. In making the arrest or preventing the escape, the officer may exert such physical force as is necessary on the one hand to effect the arrest by overcoming the resistance he encounters, or on the other to subdue the efforts of the prisoner to escape; but he cannot in either case take the life of the accused, or even inflict upon him a great bodily harm except to save his own life or to prevent a like harm to himself.” This principle was reaffirmed in Whitlock v. Wood, 193 Ark. 695, 101 S. W. 2d 950, 110 A. L. R. 955.
Appellant based his right to recover not on the negligence of appellees, but on the theory that in arresting appellant, on a misdemeanor charge, they used more force than was necessary or that they could rightfully use, which resulted in injuries and damages to appellant and that their acts were willful, malicious and intentional. He says in his brief ‘ ‘ the appellant elected to strike the negligence charge from the complaint and the case was submitted to the jury on the issue whether or not the alleged treatment of him by appellees was ‘unnecessarily’, willfully and maliciously done.”
Appellees, on the other hand, defended on the theory that they used no unnecessary force or violence when making the arrest, that they acted in good faith, without malice, and used only such force as was necessary to make the arrest and to protect themselves while doing so.
Both theories of the parties were fairly and fully submitted to the jury, in accordance with the rules of law announced in the above cases.
When all of the instructions are considered together, we find no error in those given by the court without modification nor in the giving of others after modification.
The court, in effect, told the jury that if they found from a preponderance of the evidence' that appellees in arresting and incarcerating appellant unnecessarily, intentionally, willfully or maliciously injured him or used unnecessary force or violence in making the arrest or incarceration and that as a result, appellant was injured, then he should recover. On the other hand, if they should find that appellees in making the arrest and incarceration used only such force as was necessary and acted in good faith and did not willfully or maliciously injure appellant, then they should find for appellees.
A question of fact was thus presented to the jury and there was substantial testimony upon which their verdict in favor of appellees was based.
The court did not err in excusing Juror Green. The record disclosed, just before the jury was selected: “Mr. McCray: The defendant objects to the juror Green and being forced to exercise one of his three challenges to eliminate the juror from this jury inasmuch as his son has a suit pending in this court of a similar nature to this one filed against Fred White, Chief of Police, the immediate superior of the defendant in this case. The Court: Mr. Green’s name will be stricken. Mr. Coffelt-Save our exceptions.”
The truth of the above statement of appellee’s attorney was not challenged. Appellees were entitled to the services of a juror who was unprejudiced and unbiased. In passing on the qualifications of jurors, the trial court is accorded much latitude and discretion, and unless abused its action will not be disturbed. We find no abuse of discretion here.
Finally, appellant contends that the juror, Mrs. Henry Kelley, was disqualified to serve in that she was the landlord of one of the appellees and failed to disclose Ibis disqualification on her voir dire (§ 3995, Pope’s Digest, First Subdivision). We think this assignment without merit for the reason that Mrs. Kelley testified that she was not the landlord of either of the appellees, that neither rented from her and that she had had no dealings with either of the appellees.at all.
Finding no error, the judgment is affirmed. | [
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Smith, J.
This appeal involves the custody of a girl 9, and a boy 6 years of age. It originated in a suit for divorce, and the custody of these children, filed in the circuit court of Yamhill county, Oregon, in August, 1945. Howard Ralph Jackson, the father of the children, filed suit against Lilly F. Jackson, now Gregory, his wife, the mother of the children, in which he alleged the infidelity of his wife, and her illicit relations with one Charles Gregory. It was alleged that Mrs. Jackson had told her husband that she no longer loved him, but that she did love Gregory, and that she had admitted her illicit relations with Gregory, and her intention to continue those relations.
No answer was filed and a decree was rendered September 15, 1945, awarding the husband a divorce and the custody of the children. The testimony on which the decree was rendered does not appear in the record now before us, but presumably it established the allegations of the complaint.
On November 7, 1945, Mrs. Jackson filed a motion to set aside this decree, to reopen the case, and to have the custody of the children awarded her. It was alleged that Mrs. Jackson had employed an attorney to represent her for the agreed fee of $100, of which she had paid $80,. but the attorney failed to perform the duty for which he had been erriploye.d. The motion was heard on affidavits which were to the effect that the husband had no just cause for divorce, and was the party at fault in their marital troubles, and that the attorney had failed in his duty to her. Opposed to these affidavits was one by the attorney Mrs. Jackson had employed to represent her, in which he stated that he did not appear and defend because Mrs. Jackson directed him not to do so. She was aware that the suit involved the custody of her children, and he admonished her. that if she did not defend the suit she would later regret her failure to do so.
The motion to reopen the case was heard by the court on December 1, 1945, and taken under advisement until January 26, 1946, at which time a decree was entered refusing to reopen the case, or to modify the original decree rendered September 15,1945.
On December 23, 1945, Mrs. Jackson filed another petition to modify thé original decree by awarding her the custody of the children. This motion was supported by affidavits purporting to show that she was a fit and proper person to have the custody of the children and that Jackson was. not. These allegations were all. categorically denied by Jackson at the trial from which this appeal comes. A summons issued on this last mentioned petition which was never served, and there was testimony tending to show that Jackson was evading service, whereupon the court ordered the publication of a warning order to require Jackson to appear and show cause why the custody of the children should not be changed and given to Mrs. Jackson. This warning order was published, the date of the first publication being March 21, 1946, and the fourth and last publication was on April 11, 1946.
The original decree of September 15, 1945, had awarded the children to Jackson without restrictions as to their place of residence, and on January 10,1946, Jackson brought the children to Sharp county, in this state, where he had been reared and where his father and mother resided, and he testified at the hearing from which is this appeal that he did this with the intention- of making Sharp county his future and permanent home. He had gone with his wife after the outbreak of the war to the state of Oregon, where both had secured employment in a war plant.
A copy of the motion to vacate the original decree was mailed to and received by Jackson, which he took to the attorney' he had employed to represent him in his original suit, and he was advised by the attorney that he might appear if he wished, but that he was not required to do so, as the letter was not a legal summons and a letter to that effect, written by the attorney, was offered in evidence at the hearing from which is this appeal. Jackson did not appear and on April 22, 1946, the petition was heard on the affidavits which had been filed, and an order was entered on that date vacating the original decree in regard to the children, and awarding Mrs. Jackson the custody of the children. Armed with a copy of this decree Mrs. Jackson came to Sharp county on January 29, 1946, and demanded custody of the children. She was accompanied by Gregory, the man with whom, according to the allegations of the complaint in the original suit, she had been criminally intimate. She appears to have married Gregory immediately after the rendition of the April 22, 1946, decree, and we will hereinafter refer to her as Mrs. Gregory.
Pleadings in the Sharp county chancery court were filed by Mrs. Gregory alleging her right to the custody of the children under the April 22, 1946, decree, a certified copy of which was filed, and the court gave the parties an immediate hearing. After hearing such testimony as the parties wished to offer, the court ordered a recess and suggested that the parties confer and see if they could not agree upon an order to be entered. After this conference was had the court entered an order signed by the Chancellor and the attorneys for the respective parties, reading as follows:
“In the case of Lillie Frances Jackson Gregory, the plaintiff, versus Howard Ralph Jackson, defendant, case No. 156. This cause coming on to be heard, both parties being present in person, and. Sidney Kelly, attorney representing the plaintiff, and Thomas J. Carter, attorney representing the defendant, after much testimony was taken in the case, all parties having agreed to an order of the court which is as follows:
“The court orders that the custody of Nita June Jackson, age nine, and Howard Ralph Jackson, Jr., age six years, be awarded until further orders of this court to the parents of the defendant, to-wit: Mr. and Mrs. R. W. Jackson, who own their own home, approximately one and one-half miles from Evening Shade; that the defendant shall pay to Mr. and Mrs. R .W. Jackson whatever is reasonable or is demanded by Mr. and Mrs. R. W. Jackson.
“It is further ordered that both the plaintiff and the defendant may visit with said children at any and all reasonable times, but at all times under the control of these custodians that neither party shall take the children outside the jurisdiction of this court, and if either one shall do so the person shall be in contempt of court and shall be punished accordingly except as follows: If either the father or the mother at any- time desires to take the children outside of the State of Arkansas for any reasonable period of time not exceeding thirty days, either may do so, provided such party shall deposit with the Clerk of this court the sum of three hundred dollars as a guarantee that said children will be returned within thirty days, otherwise said money may be used by Mr. R. W. Jackson for the purpose of returning said children to the jurisdiction of-said court, and the offending parties will likewise also be in contempt of court.
“The court finds that there is some testimony indicating that the parents might be likely to prejudice the children against the other: the court orders both parents and the custodians to refrain from doing anything to prejudice those children against either parent and the court if convinced later that they are doing this will take such actions into consideration and will rule on same at that time.
“Wherefore: These findings and orders, are so considered, order and decreed, on May the 7th, 1946, at Evening Shade, Arkansas, in open court at a regular day of the chancery court for the Southern District of Sharp county, Arkansas.” This order was made and entered May 7, 1946.
Apparently satisfied with this order Mrs. Gregory returned to the State of Oregon with her new husband and Jackson also returned to that state for the purpose, as stated by him, of disposing of property there owned by him, including a home, and while so engaged he secured employment in Oregon, but his children remained in Sharp county with his parents, where he had shipped his household effects.
On December 4, 1946, Mrs. Gregory reappeared in Sharp county with her husband and a new attorney and filed a petition praying the court to amend .and modify the order of May 7, 1946, and award the custody of the children to her. This hearing was continued from time to time until January 28,1947, when a decree was entered refusing to change the custody of the children, but before making that order, and at the conclusion of all the testimony, the court remarked: “The Court denies plaintiff’s petition for custody of the children, and the Court at this time denies defendant’s petition for a change in custody of the children for the reason that the Court thinks it would be better before making a change in custody, if ever, to give all parties full opportunity to be heard.”
At this hearing Mrs. Gregory offered testimony to the effect that she and her present husband, who testified that he would be pleased to have the children in his home, could better take care of the children and afford them better educational facilities than could their father. Jackson had also remarried and Mrs. Gregory insisted that his present wife is too young to have the custody of the children. Jackson testified that he had acquired a house, and would establish a home in Sharp county, where he had secured permanent employment, and his wife testified that the children were very affectionate to her and that she would be pleased to have them in her home. Jackson filed a response to the motion to vacate the decree, in which he alleged that Mrs. Gregory was not a proper person to have the custody of his children especially since she had married the man who had invaded and broken up his home. This was a renewal of the allegation upon which he had obtained his divorce and the award of the custody of the children, which the Oregon Court had refused to vacate or modify after a full hearing with all parties present as stated above.
We do not compare or discuss the relative' advantages which could be afforded the children further than to say that we find no abuse of the court’s discretion in refusing to vacate the decree of May 7, 1946, so far as the welfare of the children is concerned.
On January 28, 1947, the court entered the decree from which is this appeal refusing to award the custody of the children to Mrs. Gregory. For the reversal of this decree it is insisted that the full faith and credit which the Constitution of the United States requires the courts of one state to give the judgments of another state had not been given to the Oregon decree of April 22, 1946, and further that that decree remains effective until modified by the court which rendered it.
Under the laws of this state and the state of Oregon, a decree awarding or changing the custody of children is a final decree from which an appeal may be taken, but it is not the law of either state that such decree is final in that it may not be subsequently modified where conditions are changed, and the welfare of the child requires. Nor is it the law that such a decree may be modified only by the court which rendered it. The recent opinion of the Supreme Court of the United States in the case of People of State of N. Y. ex rel Halvey v. Halvey, 330 U. S. 610, 67 S. Ct. Rep. 903, is conclusive of this question.
There the custody of an infant had been awarded to a mother under the decree of a Florida Court; The father took the child to New York and the mother followed and brought habeas corpus in the State of New York to recover possession of the child. The decision of the Court of Appeals of New York was reviewed on certiorari as presenting a problem under the Full Faith and Credit Clause of the Constitution, § 1, Art. Y. After stating that the Florida court had the jurisdiction to modify'its decree, the court said: “So far as the Full Faith and Credit Clause is concerned, what Florida could do in modifying the decree, New York may do,” and further “that the state of the forum has at least as much leeway to disregard the judgment, to qualify it, or to depart from it as does the state where it was rendered. ’ ’
The Supreme Court of Oregon held in the case of Neil v. Neil, 112 Ore. 63, 228 Pac. 687, that the court had no jurisdiction to enter a final and irrevocable decree concerning the custody of the minor child of divorcéd parents, and that an order with respect to the custody is never final in the sense that it is unchangeable. In the case of Saltzman v. Saltzman, 154 Ore. 178, 58 Pac. 2d 617, it was held that whenever it is shown to the court that a change of custody is in the interest of the child’s welfare, the court may in its discretion modify a previous decree. We have a number of cases in this state to the saíne effect.
Without deciding whether the Circuit Court of Oregon acquired jurisdiction to render its decree on Jan. 22d, above referred to on constructive service, after the children had been brought into this state to become with their father permanent residents thereof, a right the father had ás the original decree granting the divorce and awarding the custody of the children imposed no restrictions as to residence or removal of the children, we hold that the decree from which is this appeal is valid, and entitles the father of the. children to their custody until and unless it is vacated or modified by a subsequent decree.
Even though the last decree of the Circuit Court of Oregon is valid it cannot be said that there has been no such change in the conditions of the parties since its rendition as would authorize a change of custody contrary to the provisions of that decree, which was rendered upon a motion filed by Mrs. Gregory as Mrs. Jackson. It appears that immediately subsequent to that decree Mrs. Gregory married the man who had invaded Jackson’s home as alleged in the original divorce suit, and we think it neither fair to the father or to the children, nor to their best interest to have them transferred into the environment of Gregory’s home.
The decree must, therefore, be affirmed, and it is so ordered. | [
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Holt, J.
The Workmen’s Compensation Commission awarded appellee, S. W. Pitts, compensation from June 19, 1945, “at the rate of $10 per week for permanent partial disability, said compensation not to exceed 450 weeks,” together with medical and hospital expenses and attorney’s fee.
On.appeal to the Scott Circuit Court, judgment was entered affirming the Commission’s award. From the circuit court’s judgment comes this appeal.
For reversal, appellants argue: “(1) That appellee, 5. W. Pitts, was not injured on March 15, 1945, while working for the Harris Motor Company, and that there is no evidence in the record to sustain a finding that he was so injured. (2) That appellee did not notify appellants of any such alleged injury within the time prescribed by law and that his failure so to do bars any right he may have to compensation.”
(1)
The record reflects that much evidence was taken in this case, and after a careful consideration of it all, we think the Commission’s statement of the essential testimony presented by the parties is a fair abstract and summation, which we approve and adopt. It is as follows
“At the original hearing the claimant testified that he had been in the employ of the respondent company since 1931 with the exception of the years 1940 and 1943. He stated that on March 15, 1945, while working for the respondent he was aiding other employees in unloading a shipment of motors received by the respondents. Three men were engaged in lifting the motors from a truck and one of the men lost his hold on a motor and threw a sudden and heavy weight onto the claimant. Claimant testified that immediately following this occurrence he felt a stinging sensation in his neck and he told his fellow workers he was' afraid he had hurt his neck. He stated that later he mentioned the occurrence to Mr. Frank Hawkins who was acting manager at the time and also told him that he believed he had injured himself. He continued work until June 19, 1945, and on the advice of Dr. P. W. Denman, who had been treating claimant, he entered the Veterans Hospital at Fayetteville; where he remained for approximately 30 days.
“Claimant’s son, Mr. Wallace Pitts, testified that he knew of no former injury suffered by his father, and that while his father'was a patient in the Veterans Hospital he visited him there. Upon his return he stated that he went to Waldron, Arkansas, to the Harris Motor Company where he told Mr. Harris himself, Mr. Smith, the bookkeeper, and Mr. Hawkins about his father’s condition. and the diagnosis made by the physicians at the Veterans Hospital.
“Claimant’s wife, Mrs. Pitts, also testified that claimant had not received any accident which caused disability during the period of their marriage since 1918.
“Luther Douglass, a mechanic for respondent company, testified that he was helping unload the motors on March 15, 1945. He stated: ‘My hands were greasy and my hold slipped and I dropped my end of the motor and that is what jerked Mr. Pitts at the time he claims to have been injured. Mr. Pitts put his hand up to his neck and said “boys that hurt my neck some way”.’
“Mr. Prank Hawkins, acting manager of the respondent company, Ben Milligan, another mechanic of the company, and George Smith, bookkeeper of the company, all testified that they knew nothing of the alleged injury until December of 1945 or early in January of 1946. Mr. Harris, owner of the company, stated that he knew Mr. Pitts was in the hospital, but he made no effort to find' out claimant’s condition because he had no knowledge that claimant contended that his disability resulted from an accident suffered during his employment.
“The medical evidence submitted to the hearing commissoner consisted of the following medical reports: Dr. P. W. Carruthers reported on February 25, 1946, that after examining this claimant he was unable to associate the patient’s complaint with the injury. He further stated: ‘It is my opinion that his condition is due to an old congenital deformity and it has nothing whatever to do with the injury he is alleged to have received. ’
“On the same day claimant was examined b}r Dr. D. T. Cheairs, medical adviser, of the Commission. • Dr. Oheairs also felt that claimant’s disability which he found to be a 50% reduction in the movement of die neck and head did not result from the accident of March 15, 1945. The same opinion also was held by Dr. Robert Watson who reported on March 4, 1946.
“Dr. I. Pulton Jones of Port Smith stated that claimant’s condition was due to an old fracture, dislocation of the 5th cervical vertebra and he believed that claimant was totally and permanently .disabled from performing any manual labor.
“Dr. W. P. Bose of Port Smith found the dislocation of the '5th cervical vertebra as did all the other examining physicians and stated that in his opinion the claimant was permanently disabled from performing manual labor. On this evidence the commissioner found •that the claimant suffered an accidental injury March 15, 1945, in the course of his employment resulting in a 50% permanent partial disability to the body as a whole by reducing his wage earning capacity by 50%. The commissioner felt that claimant had discharged the burden of proof placed upon him to show the occurrence of an injury and a resulting disability and he thereupon awarded compensation benefits at the rate of $10 a week. It is from this award that the respondents appeal.
“At the hearing on review the Commission requested claimant to produce' a report of the examination and diagnosis of the physicians at the Veterans facility at Fayetteville who had treated this claimant shortly after his injury. On January 4, 1946, a report signed by Grady O. Haynes, clinical director of the institution, was introduced in this case. It listed the findings of the physicians at the hospital including a dislocation of the cervical spine. As this report was insufficient to serve the purpose of the Commission, a supplemental report was requested and received. The report is in part quoted here: ‘ The X-ray findings are quoted as follows: AP and lateral roentgenograms of the cervical spine revealed a dislocation of the 5th cervical vertebra on the 6th with encroachment on the mumane of the spinal canal. There is some complications of the lemina,, the cervical spine at this point is angulated toward the right.’
“The history as given on June 28, 1945, was as follows: ‘About one year ago car in which patient was riding stopped suddenly. For the past three months patient has had pain and stiffness in the neck and pain in the right shoulder.’
“With the admission of this report coupled with the reports of physicians who examined this claimant on behalf of respondents to the effect that claimant’s disability was due to an old congenital deformity it ap peared that perhaps this claimant’s present complaints were not a result of injuries sustained by him in. his employment with the Harris Motor Company.
“Claimant requested and was granted permission to produce additional testimony contending that the history contained in the Veterans Administration’s report' was in error and that it was not given to them in that way by the claimant.
“On November 15, 1946, the testimony of Mr. Pitts regarding his statement to the Veterans Hospital was placed in the record over the objection of respondents. At that time Mr. Pitts stated that he gave the same history to the Veterans Administration regarding the occurrence of the injury as he did to all the other examining physicians and that it was that he had sustained an accident as.described above while in the course of his employment with the Harris Motor Company. His son, Wallace Pitts, again testified that he' knew of no automobile accident or other injury to his father. The same testimony was again offered by Mrs. Pitts. The testimony of Dr. Bose and Dr. Jones was introduced into the record. Both of these physicians testified that in their opinion claimant could not have been working as he did if he had sustained the disability to the cervical spine of which he now complains a year prior to June of 1945. Both of these doctors felt that since this claimant worked for the Harris Motor Company ¿ engaged in handling parts and machinery, he would have been unable to perform such duties if he had had a dislocation of the cervical spine as early as indicated by the history contained in the report of the Veterans Hospital.”
Prom the above testimony, some of which is somewhat conflicting, we are unable to say that there is no substantial evidence to support the findings of the Commission. We said in the recent case of Meyer v. Seismograph Service Corporation, 209 Ark. 168, 189 S. W. 2d 794: “The rule is firmly established that the findings of the Commission, which is the trier of the facts, will not be disturbed on appeal to the circuit court if supported by substantial testimony. Act 319 of 1939, § 25b. (Citing many cases). . . . In a long line of decisions since the passage of the act here in question, the rule has been clearly established that the findings of the Commission shall have the same binding force and effect as the verdict of a jury, or of a circuit court sitting as a jury, and .when supported by substantial evidence, such findings will not be disturbed by the circuit court on appeal to that court or on appeal to this court.”
(2)
Appellants’ second contention that the appellee failed to give the required notice, we think untenable for the reason that appellee testified he received the injury to his neck on March 15, 1945, while in, and during the course of, his employment with the Harris Motor Company, and filed his claim for compensation with the Commission January 23, 1946. Obviously, the claim was filed well within the year required under § 18(a) of the “Workmen’s Compensation Law.” Appellants argue, however, that the notice of his alleged injury required to be given to the employer by the injured employee, under §,17, was not given and that the claim for compensation was barred for this reason.
Section 17(a) provides: “Notice of-injury or death in respect of which compensation is payable under this Act shall be given within sixty (60) days after the date of such accident or death (1) to the Commission (2) to the employer,” and Sub-section (d) provides: “Failure to give such notice shall not bar'any claim under this Act (1) if the employer had knowledge of the injury or death, etc.”
Appellee, as above noted, testified that he did notify Mr. Hawkins, acting manager of his injury.
Under our recent holding in Williams Manufacturing Company v. Walker, 206 Ark. 392, 175 S. W. 2d 380, this was sufficient notice. We there held: (Headnote 5) “Where an employee reports his injury as he knows it without designating its nature because not aware thereof, compensation cannot be refused for lack of notice.”
On the whole case, finding no error, the judgment is affirmed. | [
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Minor W. Millwee, Justice.
This is an action by appellee, John P. Almand, to recover compensation for his services as an architect in the preparation of plans and specifications for re-construction of an ice plant for appellant, H. C. Doup, in the City of North Little Rock, Arkansas. The cause was tried before the court without a jury upon the testimony of the parties and one other witness. This appeal is from a judgment in favor of appellee in the sum of $720.
It is undisputed that the parties entered into an oral agreement whereby appellant employed appellee to draw plans and specifications for rebuilding appellant’s plant which had burned. It is also undisputed that an architect’s fee of 6% of the cost of the building was to be paid under the agreement, provided appellee also, supervised construction of the building.
The testimony of appellee is to the following effect: In July or August, 1945, appellant approached appellee at his home in Little Rock where he maintained his office and employed him to draw plans and specifications for the plant for a fee of 6'% of the cost of the completed structure: Appellant furnished appellee with rough drawings of the plan of construction contemplated. The parties held several conferences over a period of three or four weeks in which a complete understanding was reached regarding the kind of materials to be used in the building and other details of construction. Appellee then informed appellant that the plans would be completed on a certain date and appellant agreed to return at that time. Appellant failed to appear on the appointed date and appellee called him at his home in Pine Bluff several days later. Appellant agreed to come to Little Rock the following Monday or Tuesday. Appellant again failed to appear on the dates designated, but, in response to another telephone call from appellee, appeared about a week later.
The plans and specifications were then ready and lying on the table in the room where the parties conferred, but appellant showed no interest in the plans and stated for the first time that he was not going to invest more than $10,000 in the building. Appellee had previously informed appellant that the brick alone would cost approximately that amount and appellant had made no objection to the cost of the different materials to be used in the construction of the building. Appellee then informed appellant that he was due part of his fee and would like to talk to him about that, but appellant re plied that he was not paying anything to anybody that day and walked away. Appellant did not ask. to see the plans and specifications and appellee did not offer them after appellant indicated that he had no interest in them and refused to consider payment of. any part of the fee then due.
Appellee further testified that construction of the building, based on the plans and specifications he had drawn, would cost $20,000; and that under the practice recommended by the American Institute of Architects a fee of 75% of 6% of the cost of construction is due on completion of the plans and specifications and the final 25% is due where the architect supervises construction. Appellee rendered a bill to appellant for $900 based on this method of calculation of his fee and payment was refused. The plans and specifications were introduced in evidence.
Appellant testified that appellee agreed to draw the plans and specifications for 3% of the cost of construction and an additional 3% provided he also supervised the erection of the building. He also testified that he did not employ appellee to determine the cost of the building and did not object to the proposed cost thereof; that appellee advised him that the building would cost $14,000 or $15,000; he did not remember saying he was not going to invest more than $10,000 in the building.
Appellant further testified that appellee seemed to be disinterested in getting out the plans and delayed making them in order that he might do other work; and that he did' not draw the plans according to appellant’s instructions. While appellant testified that appellee did not deliver or offer to deliver the plans, he admitted that he did not ask for them. He also testified that he did hot ask appellee to stop work on the plans. He later employed another architect to draw the plans. At their last conference appellee demanded a fee of $900' and that one-half of it be paid at that time, which appellant refused to do.
Mitchell Seligman, an architect, testified that in arriving at a fee for completion of plans and specifica tions the' architect estimates the cost of the building and bases his fee thereon. The customary charge is 6% of the cost of construction and under the practice of witness 3.6% is charged for plans and specifications and 2.4% for supervising the work. While the American Institute of Architects recommends the practice followed by appellee, each architect is permitted to adopt his own procedure in fixing fees.
It is evident from the testimony just recited that the question whether appellee performed the services required of him under the agreement and drew the plans and specifications according tc the instructions of appellant is sharply disputed. In 6 C. J. S., Architects, p. 308, the textwriter states: “Where the architect prepared plans and specifications for a building pursuant to an unconditional order or direction of the owner, he is entitled to recover for his services whether or not the plans are used if they substantially comply with the employer’s instructions. So his right to compensation will not be defeated by the fact that the building for which the plans are prepared was never constructed or by the fact that the time is not such as to render it expedient to build.” The trial court sitting as a jury necessarily found under conflicting testimony that appellee substantially complied with the instructions of appellant in drawing the plans and specifications. There is substantial evidence to support this finding.
Appellant states his principal contention for reversal of the judgment as follows : “It is the contention of the appellant that the appellee, having failed to deliver or even tender, according' to the evidence, the plans and specifications for the construction of the building, the appellant is not liable in any way to the appellee. ’ ’
In 6 O. J. S., Architects, p. 311, § 14, it is said: “In order to entitle the architect to compensation for drawing plans there must be a delivery or tender of the plans prepared, although it has been held that where the owner refuses to accept the plans no tender is necessary in order to entitle the architect to compensation, as he is not required to do an idle act.” The general rule-in reference to the necessity of tender is stated in Read’s Drug Store v. Hessig-Ellis Drug Co., 93 Ark. 497, 125 S. W. 434, as follows:“ On general principles, whenever the act of one party, to whom another is bound to tender money, services, or goods, indicates clearly that the tender, if made, would not be accepted, the other party is excused from technical performance of his agreement. The law never requires a vain thing to be done. Isham v. Greenham, 1 Handy 361, quoted in Dodd v. Bartholomew, 44 Ohio St. 171, 5 N. E. 866; Union Central Life Ins. Co. v. Caldwell, 68 Ark. 505, 58 S. W. 355; Weinberg v. Naher, 51 Wash. 591, 99 Pac. 736, 22 L. R. A., N. S. 956, and 28 Am. & Eng. Ency. Law, p. 8.” See, also, Bender v. Bean, 52 Ark. 132, 12 S. W. (180) 241, and Hollowoa v. Buck, 174 Ark. 497, 296 S. W. 74.
It is true that there was no actual manual delivery or offer of the plans to appellant. When the evidence is given its strongest probative force in favor of appellee, the trial court was warranted in finding either that an actual tender of the plans and specifications was made or that such tender would have been an- idle and useless act. According to the testimony of appellee the plans had been completed in conformity to the instructions of appellant on the date of their last conference and appellant had beén so advised. The blueprints were lying on the conference table when appellant indicated for the first time that he was not going to invest more than $10,000 in the building and would not accept the plans as drawn. He made no request for a change in the plans, nor did he ask to see them, but walked away when appellee broached the subject of compensation for his services. Under these circumstances a formal tender of the plans by appellee would have been a vain and futile act which the law does not require;
It is also insisted that the judgment is excessive. At the conclusion of the testimony, the record recites: “Thereupon, the Court, having heard the evidence and being well and sufficiently advised as to the law and having heard the arguments of counsel renders its decision in favor of the plaintiff in the sum of $720 with interest at 6% from April 24, 1946, until paid; to which action of the Court the-defendant at the time asked that his exceptions be saved and duly noted of record, which is hereby accordingly done. ’ ’ Appellant made no request for separate findings of fact and law as provided in § 1534 of Pope’s Digest, and none were made by the trial • court. The formal judgment recites “that the plaintiff is entitled to judgment -against the defendant in the sum of $720, being 6% of $12,000, the cost of the building for which the plaintiff, an architect, drew plans and specifications . . .” Appellant now contends that since the building was never constructed appellee could not have been entitled to more than 75% of the $720 allowance made by the trial court under appellee’s testimony and that the judgment is, therefore, excessive by $180. But this is a question which should have been raised in the motion for new trial and may not be raised for the first time here. Error in the assessment of the amount of recovery is made a ground for new trial by § 1536, Pope’s Digest, but appellant did not allege the excessiveness of the judgment as a ground in his motion for a new trial, and for that reason we cannot consider it here. St. L. I. M. & S. Ry. v. Branch, 45 Ark. 524; Glasscock v. Rossgrant, 55 Ark. 376, 18 S. W. 379; Battle v. Draper, 149 Ark. 55, 231 S. W. 869; McWilliams v. Kinney, 178 Ark. 513, 11 S. W. 2d 1; Jelks v. Rogers, 204 Ark. 877, 165 S. W. 2d 258.
In the case of Kansas City Southern Railway Company v. Short, 75 Ark. 345, 87 S. W. 640, there was a judgment in favor of appellee for $180 in an action against the railway company for conversion of four bales of cotton. The court there said: “As heretofore indicated, there was sufficient evidence for the jury to find the value to be $160; and the amount ábove that is excessive, but the assessment of excessive damages is specifically made ground for new trial. Kirby’s Dig., § 6215. The cases are too numerous for citation that errors not assigned in the motion for new trial are waived. The court could and doubtless would have corrected this error in the lower court; but whether it would or not, this court will not correct it until the lower court is first invited by the motion for new trial to do so, and then given the opportunity.” So, here, if the judgment was erroneous in assessing the amount of recovery the trial court should have been given an opportunity to correct it before the question can be considered here. Moreover, the evidence for appellee in the case at bar was sufficient to warrant a judgment for a sum greater than actually found by the trial court.
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Ed. F. McFaddin, Justice.
The only question to be decided on this appeal is: was there sufficient evidence to take the case to the jury on the issue of whether the insurance policy was in force on August 24,1941.
On the date just mentioned, James Piper (then a soldier stationed at Camp Robinson), in operating his automobile, caused personal injuries and property damage to appellee, H. L. Abercrombie, for which appellee recovered judgment against Piper in the sum of $1,100 in Saline Circuit Court on March 13, 1946. Piper failed to pay the judgment; and thereupon Abercrombie instituted the present action against the appellant, as Piper’s alleged insurance carrier. The complaint alleged that on July 1,1941, the appellant issued a liability insurance policy to Piper covering the period from July 1, 1941, to January 1, 1942, and that, pursuant to the said policy, appellant was required to pay the judgment that appellee held against Piper. Appellant’s defense was, that the policy issued to Piper was cancelled for nonpayment of premium on August 12, 1941 (12 days prior to the collision), and that appellant was not liable to Piper or appellee, because of such cancellation.
Abercrombie introduced in evidence the original policy issued by the appellant to Piper, and also a letter which accompanied the policy. The policy stated, inter alia: that the name of the insured was James It. Piper of Battery “A,” 130 F. A., 35th Division, Camp Robinson, Arkansas; that “the term of the policy shall be from July 1, 1941, to January 1, 1942, . . . and for such terms of six calendar months each thereafter as the required renewal premium is paid by the insured on or before expiration of the current term and accepted by the company;” and that the policy was issued in consideration of a membership fee of $7 and a premium fee of $12.60, and that “failure to pay any installment when due voids the entire policy. See conditions. ’ ’ Condition 18 of the policy reads: ■ '
“Default in Required Payments to Company Voids Protection. This entire policy shall automatically be void as of the date of its issuance without notice of cancellation, or notice of any other kind if there- be failure to make payment of the membership fee or premium recited in this policy, or any installment thereof, for which in sured has given an instrument in writing, when due and upon presentation thereof. . . .”
The letter which accompanied the policy was from the appellant to Piper, dated July 7, 1941, and reads in part:
“Dear Policyholder:
“We are enclosing Policy No. 6037496-Ark. which protects you in the event of loss due to the ownership, maintenance or use of the automobile described for the coverage specifically set forth in this policy.
“Under our plan uf operation, a membership fee and a premium are charged for the initial term specified in the policy. The membership fee is not returnable, but entitles you to insure one automobile for the coverages for which the fees were paid so long as this company continues to write these coverages and the insured remains a desirable risk. The premium is the charge for the insurance granted you for the term of the enclosed policy.
“Thirty days prior to the expiration of the term set forth in this policy, you will receive from us a statement of the amount of the next renewal premium required to be paid to continue the policy for a succeeding term of six months. This procedure is followed at the end of each six months and this statement is made so that it may be entirely clear to you how the future payments are to be handled.”
After introducing the said policy and letter and the Saline Circuit Court judgment as aforesaid, the plaintiff rested his case.
Thereupon the defendant showed: that even though the policy stated that it covered the period from July 1, 1941, to January 1, 2942, it nevertheless called for a membership fee of $7 and a premium of $12.60; -that the policy and the letter were sent upon the payment of the membership fee alone; that Piper paid the $7 member ship fee and was to pay the premium fee in two equal installments of $6.30 each; that the first installment was to be due on August 6, 1941, and the second installment, thirty days thereafter; that a premium notice for the first installment of $6.30 was mailed to Piper on July 22, which notice stated:
“. . . in order that your insurance may be in full force and effect, please forward this payment so that it will reach this office on or before the due date.” (i. e., August 6, 1941).
Appellant also showed that no premium payment was ever received from Piper; that on August 12, 1941, the policy was cancelled for the nonpayment of the premium clue on August 6, 1941; and that the company notified Piper:
“Tour remittance covering collection memorandum which accompanied your application for insurance has not been received. According to the provisions of your policy, failure to make payment when due voids the policy, and you are without protection until payment is made. ’ ’
In addition to the written notices, supra, the agent of the defendant company — who issued the policy to Piper — testified that he personally called on Piper at Camp Robinson and demanded payment of the premium of $6.30 clue on August 6, and that no payment was ever made, and that the said agent personally notified Piper that the insurance policy was cancelled on August 12 because of nonpayment of premium.
On the foregoing evidence, the court submitted to the jury the question of whether the policy was in force on August 24, 1941. This was over the objection of the appellant, who asked for an instructed verdict. We think the court should have given this instructed verdict as requested. Under the proof here Piper paid $7 membership fee, and received a policy which required him to pay $12.60 in premiums, and which provided that failure to pay the premium voided the policy. All the evidence shows that the $6.30 premium (clue August 6) was never paid, and that the policy was canceled for such nonpayment.
There is no issue here of credit being extended to Piper on account of the existence of a policy. Neither does plaintiff claim that the policy was issued for the plaintiff’s benefit pursuant to any statute of this state requiring an automobile owner to have liability insurance. There is no claim by Abercrombie that the appellant has done anything that amounted to a waiver of its claim that the policy was canceled for nonpayment of premium. There are certain defenses that an insurance company can interpose against an insured, but which it cannot make as against an injured party in an action such as the one here. But we need not consider these matters, because the defense of the cancellation of the policy — prior to the accident — for nonpayment of the premium, is a defense available to the insurance company against the plaintiff in this case.
To sustain the judgment of the lower court, appellee makes two arguments-: (1) he contends that the issuance of the policy along with the letter created a presumption that the policy was in effect until January 1, 1942, and that this presumption was enough to take the case to the jury. But the policy itself had the provision that the premium was $12.60; and the policy did not recite the receipt by the company of any such premium. On the contrary, the policy contained the provisions as previously copied, that the policy would be canceled for nonpayment of premium; and that is exactly what was done, 12 days prior to the collision. Also, (2) appellee insists that the language in condition 18, as previously copied, required Piper to give some “instrument in writing” before the premium would be due. The said provision in section 18 means that, if the premium be not paid when due, or arranged by ‘ ‘ instrument in writing, ’ ’ then the policy would be canceled; and if a note or other “instrument in writing” had been given to defer the payment, then the failure to pay such note or other “instrument in writing” when due, would void the policy. Condition 18 affords the appellee no support.
The sole issue was whether the policy was in force on August 24, 1941. We hold that there was no evidence to take the case to the jury on that question, and that the instructed verdict should have been given for the defendant.
It follows that the judgment of the circuit court is reversed, and the cause is dismissed.
Robins and Millwee, JJ., dissent.
There is no question raised as to the form of the action. The appellee might be proceeding under Act 196 of 1927, and the cases construing that act, one of which is Casualty Reciprocal Exchange v. Bounds, 191 Ark. 934, 88 S. W. 2d 836; or, the appellee might also be proceeding under condition 7 of the policy, which reads in part:
“. . . Any person or his legal representative who has secured such judgment or written agreement shall thereafter he entitled to recover under the terms of this policy in the same manner and to the same extent as the insured. . . .” | [
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Ed. F. MoFaddin, Justice.
The appellant, for community improvement, purchased a-tract of 12 acres for a city dumping ground. This tract was about 300 yards from the nearest public highway, and the land between the highway and the proposed dumping ground was owned by the appellees. Appellant claimed that a roadway had been established, by prescription over the appellee’s land from the highway to the proposed dumping ground. Accordingly, appellant filed suit in the chancery court ' to compel appellees ’ to remove their fences and open a roadway to the public across the appellee’s land from the highway to the dumping ground. • The chancery court, after hearing the evidence, dis missed the complaint for want of equity; and from that decree there is this appeal.
Appellant admits that its right to prevail rests entirely on the claim of prescription. We quote from appellant’s brief: “The appellant contends that the road is a public road acquired by prescription. It does not contend that the County Court or the Highway Commission created said .road or that either agency ever worked or maintained same.” That roadways may be established by prescription is recognized by our cases: Howard v. State, 47 Ark. 431, 2 S. W. 331; Patton v. State, 50 Ark. 53, 6 S. W. 227; McLain v. Keel, 135 Ark. 496, 205 S. W. 894. General authorities recognize the same rule: 29 C. J. 371, et seq. On the other hand, roadway established by prescription (as distinct from county court order) may be lost for nonuser. Porter v. Huff, 162 Ark. 52, 257 S. W. 393; Simpson v. State, 210 Ark. 309, 195 S. W. 2d 545; Pierce v. Jones, 207 Ark. 139, 179 S. W. 2d 454.
In McLain v. Keel, supra, Mr. Justice Wood, speaking for this court, clearly stated the rule both as to prescription and nonuser, in this language: “It is well settled that where a highway is used by the public for a period of more than seven years, openly, continuously and adversely, the public acquires an easement by prescription or limitation of which it cannot be dispossessed by the owner of the fee. Patton v. State, 50 Ark. 53; Road Improvement District No. 2 v. Winkler, 102 Ark. 553, 145 S. W. 209. But it is also equally well settled that the right to a public highway once established by limitation or prescription may be abandoned by nonuser, and if so abandoned for a period of more than seven years, the right of the owner of the fee to re-ent.er and to thereby exclude the public from the use of the highway is restored.”
The proof in the case at bar shows a nonuser for more than seven years. Prior to 1937 the land had been unenclosed woodland, and the owner had permitted the public to go over the land en route to the river nearby. In July, 1937, the appellees enclosed the land with a wire fence; and this prevented all passage across the land. The appellee Hardy Jacobs testified: “Q. When was the fence put around it? A. Some time in this month of 1937. Q. Some time in July? A. Yes. Q. 1937. Has that fence been there continuously, ever since? A. Ever since then. Q. When you first put up the fence did you leave any gap or opening? A. No. Q. What time or what year after that did you make a gap or opening then? A. It was a year later when I made the gap at the road. Q. Why? A. To haul wood out of it myself. Q. There was some land on the east side? A. That’s right. Q. Was it all wooded land? A. There were about 5 acres cleared where they cut wood that winter.”
Hardy Jacobs also testified that lespedeza was planted on the cleared ground; that in 1941 he closed the “gap” by placing a post in the center of the old roadway, and running a wire from the adjacent posts to the said center post; and that the land had remained enclosed, and with the public excluded. In a few instances when someone had cut the fence, Jacobs had promptly repaired it. His testimony was substantiated by that of several distinterested witnesses who testified that the land had been fenced against the public, and the roadway had been closed for 10 years. One such witness was the present County Judge of Van Burén county, who testified that the roadway over appellee’s land had been fenced against public use “for the last 10 years,” and that there had never been a county road over the appellee’s land. In short, the preponderance of the evidence shows a nonuser by the public for more than seven years, since the land was fenced in 1937, and this suit was not filed until 1947. The facts in the case at bar are most similar to those in Porter v. Huff, 162 Ark. 52, 257 S. W. 393, and we apply the holding in that case to this case.
It is unnecessary for us to consider the other contentions raised by the appellees, because we conclude from a study of the evidence that, even if a roadway over appellee’s land had ever been established by prescription, nevertheless, it had been lost by nonuser. Such conclusion necessitates an affirmance of the decree of the chancery court.
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Robins, J.
This is a controversy between appellant and appellee, her former husband, over the custody of their seven-year-old daughter. The appellant asks us to reverse the decree of the lower court which was in favor of appellee.
The parties to this suit were married in 1938. They lived together as husband and wife until in August, 1944, at which time appellant left her husband and returned to the home of her mother in Tennessee.
Appellee, on December 20, 1944, instituted suit against appellant in the lower court, asking divorce and custody of their child. On the same day there was filed in the lower court an entry of appearance signed and sworn to by appellant, in which she stated that she had no defense against appellee’s suit for divorce, and that she understood that appellee; was asking for custody of the child. Decree, granting appellee a divorce and custody of the child, was rendered by the lower court on December 21, 1944.
Thereafter, on February 15, 1945, appellant married Nick Pastor, a soldier with whom she became acquainted in September, 1944, in Tennessee; and on March 3, 1945, appellee also re-married.
Appellant’s last husband remained in the army until December, 1945, and appellant then accompanied him to his home in California, where they have since resided.
I
On January 28, 1947, appellant filed in the lower court her petition, here under consideration, to modify the original decree, so as to award her the custody of the little girl.
At the hearing below 10 witnesses testified on behalf of appellant and 14 witnesses testified for appellee.
Most of the testimony of appellant’s witnesses was directed to proof of the excellent reputation of appellant in her new home and a showing that Pastor, her second husband, was a good man and that they were able, financially and otherwise, to give the child a suitable home and proper care.
Among the witnesses for appellee were the mayor of Marianna, the sheriff of Lee county, the president,of a bank, school officials and several neighbors of appellee. These all testified to the sterling character of appellee and his second wife. The witnesses acquainted with the situation in appellee’s present home agreed that the little girl was receiving the very best of care and training. It was shown, without contradiction, that appellee’s present wife had made a determined and successful effort to win the affections of her little step-daughter.
Appellee testified that appellant left him without any sort of warning, that he took the little girl (then about five years old) from their home in the country to visit in the home of a friend in Marianna, with the understanding that appellant, who was planning a trip to town, would call for the child; that instead of doing this appellant, without even telling the child, boarded a train and went to Dyersburg, Tennessee, her former home. He testified that he did not find out where his wife had gone for several days.
Appellant sought to explain her sudden departure by stating that appellee had been mistreating her and that she was sick and could no longer endure his conduct toward her. A physician who had attended her several times testified that she was not ill physically, but suffered from hysterics and “brainstorms.”
No judge can ever approach consideration of a case of this kind without a realization that something more than human wisdom is needed to guide in its decision. For we are dealing here with the destiny of a helpless, innocent little child who has been thrown, without any fault whatever on her part, into the maelstrom of a bitter controversy between her parents. Courts could be spared many of these difficult decisions and the little victims of the tragedies which such cases reflect might be saved from the terrible experience of an all-out court battle between the father and mother — the two persons who should and do, to the normal child, represent all that is dearest in life — if these parents would only realize the blighting sorrow that a broken home brings into the lives of children of divorced persons. If these fathers and mothers really love „their offspring as much as thej7’ profess to do when they litigate over their custody they would suffer much from each other rather than cause this unhappiness to their children.
In the case at bar it was shown that appellant virtually abandoned her little daughter and went away without letting either her hubsand or her child know of her departure. Having every reason to know that the decree would carry with it an order vesting custody of her child in appellee, she complacently facilitated the obtaining of divorce by appellee. She may have had what seemed to her sufficient reason for so doing. But the fact remains that she deliberately brought about the situation which she now seeks to undo.
One of the witnesses, a woman of great culture and evident refinement, detailed the patient, wise and kindly manner in which this step-mother, who seemingly sensed with rare perception the great duty and responsibility which she had assumed, had, from the very beginning, dealt with her little step-daughter. This witness further testified that this step-mother was doing nothing whatever to prejudice the child against appellant.
A child may well he compared to a clinging plant— its love and affection naturally reaches out and winds itself around those with whom it is associated. For nearly three years appellant permitted others to minister to this child and perform for her the duties that are the precious privilege of a mother.
The paramount object in every ease like this is so to order the custody as will be for the .best interests of the child.
Mr. Justice Riddick said in the case of Lipsey v. Battle, 80 Ark. 287, 97 S. W. 49: “.In questions of this kind concerning the custody of infants the main consideration that should influence the court is the best interest and well-being of the child.” See, also, Coulter v. Sypert, 78 Ark. 193, 95 S. W. 457; Washaw v. Gimble, 50 Ark. 351, 7 S. W. 389.
When it is considered that modifying the former decree would entail an uprooting of the child’s life and taking her 2,000 miles away from her father, who has ever been constantly with her and who, according to the evidence, is giving her an excellent home and proper care, we cannot say that the chancellor erred in his conclusion that the best interests of the child would be served by permitting her to remain with appellee.
The decree appealed from is affirmed. | [
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Holt, J.
June 23, 1947, appellee, D. M. Moore, sued appellants, alleging that he had entered into a written partnership agreement with them on April 5, 1947, for the purpose of operating a cafe and night club on highway 61, north of the city of Blytheville. Copy of the agreement was made an exhibit to, and a part of the complaint. • He further alleged that he owned the property upon which said club was located, together with all fixtures and equipment necessary for the operation of said cafe and club; that under the terms of their agreement, appellants agreed to devote their entire time to the oper ation and management of said club; “that the parties hereto were to share equally in its net gains and losses. The defendants herein have breached said partnership contract in that they have failed and refused to account to the plaintiff for his proportionate share of the net proceeds, have failed and refused to permit the plaintiff to have access to the bank accounts, bank balances and books for the purpose of determining the net gains of said business; have devoted a large portion of their time to the performance of other businesses for their individual gain; have made erroneous representations to the plaintiff concerning the income of said business; and that the defendants refuse to agree to a dissolution of the partnership, and a settlement of its affairs; that the conduct on the part of the defendants herein deprives plaintiff of his proportionate share of the net profits and that the defendants are collecting money which is properly assets of the partnership and converting same to their own use and benefit; that the defendants and each of them are wholly insolvent and that plaintiff has no adequate remedy at law.”
His prayer was that appellants “be restrained from handling or controlling any of the funds or property of said firm, and from interfering in any manner with the orderly liquidation thereof; that a receiver be appointed to take charge of the assets of said firm, and the affairs by him wound up in an orderly manner as may be directed by this court; that an accounting be had and the true status of the affairs of said partnership determined; that said firm be dissolved, and the creditors thereof be paid out of the firm’s assets; and that after an accounting has been had and the creditors paid, any remaining sum be divided between plaintiff and defendants, according to their respective interest, as aforesaid, etc.”
Appellants filed a response in which they denied all material allegations in appellee’s complaint and specifically denied that said business was a partnership arrangement, and alleged that they were in possession of the property in question under a lease contract for a period of one year.
There was a hearing June 27, 1947, and we quote from the court’s findings: “From said petition, the duly verified response of the defendants to said petition, the oral evidence of George Ford and W. A. Bickerstaff the court doth find: That said plaintiff and defendants are a co-partnership and that a receiver should be appointed to take charge and liquidate said business, it is thereEORE BY THE COURT CONSIDERED, ORDERED AND DECREED that O. A. Davis be, and he is hereby appointed as receiver in this cause and as such shall, after taking the oath and giving bond as required by law, said bond to be in the sum of $10,000, take charge of the property described in the petition, and operate, manage and control the same, subject to.the orders and directions of this court.”
This appeal is primarily from an interlocutory order of the court appointing a receiver. The right to appeal from the order appointing a receiver herein is found in the provisions of Act 355 of the acts of the Legislature of 1937 (Pope’s Digest, § 7507). That act is entitled: “An Act Authorizing Appeals from Injunctional and Receivership Orders.” Section 1 provides: “Where, upon a hearing in a circuit or chancery court, or by a judge thereof in vacation, an injunction is granted, continued, modified, refused, or dissolved by an interlocutory order or decree, or an application to dissolve or modify an injunction is refused, or an interlocutory' order or decree is made appointing a receiver, or refusing an order to wind up a pending receivership or to take the appropriate steps to accomplish the purposes thereof, such as directing a sale or other disposal of propertjr held thereunder, an appeal may be taken from'such interlocutory order or decree. The transcript shall be filed with the clerk of the Supreme Court within thirt}^ days from the entry of such order or decree, and the appeal shall have precedence in the Supreme Court. The proceedings in other respects in the circuit or chancery courts shall not be stayed during the pendency of such appeal unless otherwise ordered by the court, or by the Supreme Court, or a judge thereof.”
In § 2, the emergency clause, it was found “that this act is necessary for the protection of litigants and for the speedy administration of justice.”
The validity and constitutionality of this act were upheld by this court in Riggs v. Hill, 201 Ark. 206, 144 S. W. 2d 26, and in Sager v. Hibbard, 203 Ark. 672, 158 S. W. 2d 922. In the latter case, on rehearing, we said: “Without discussing constitutionality of Act 355, approved March 25, 1937 (Pope’s Digest, § 7507), we dissolved the interlocutory order, wherein the chancellor had refused-to vacate a temporary restraining order. Effect of the decision is to uphold validity of Act 355. This we now expressly affirm.”
While those cases dealt with injunction proceedings, under the plain terms of the act, the right of appeal from an interlocutory order or decree appointing a receiver would be, and is the same as in injunction proceedings.
Whether appellants and appellee were operating under a rental lease contract for a period of one year, as appellants argue, or a partnership agreement as appellee contends, we find it unnecessary to determine.
In any event, appellee’s interest in the property in question here, which it is undisputed he owned, was sufficient in view of the testimony relating to the manner and actions of appellants in managing and carrying on the business here involved, to justify the action of the chancellor in appointing a receiver.
The agreement or contract between the parties here provided that appellants “will pay all the expense incident to the operation of said business; that they will pay their bills promptly; that they will not create or fix any liens upon the property, and that after all of the expense is paid incident to the operation of said business, then the second parties are to have and receive 30 per cent each ou.t of the net earnings of said business, and the first party is to have 40 per cent, of the net proceeds coming from the operation of said business. . . . ” and that appellants “will keep accurate records and accounts showing in detail the expense and earnings of said business, and that they will furnish to the first party on the first day of each month an itemized statement of the operating expenses and the profits coming from the operation of said business, and that they will pay to the first party his share and interest coming from the operation of said business; that they will at all times keep accurate and correct accounts of the operation of said business, and that same will be held open and subject to fhe inspection of the first party and that all settlements must be mutually agreed upon between the parties.
“It is-further agreed and understood that the second parties will not withdraw or receive from said business any sum of money except their net share which will be due them coming from the operation of said business.”
Appellant, Ford, testified that he put $351.13 “into the operation of the business, ’ ’ that appellee was to reimburse him and that he and Bickerstaff had each actually drawn out of the business $310. Bickerstaff had put approximately $480 into the business.
The evidence tended to show that appellant, Ford, was not devoting his entire time to the business in accordance with the agreement. He admitted that he took certain afternoons off and had, during the operation of the cafe and night club in question and long prior thereto, been the active representative of the Adams Appliance Company and sold merchandise for this company on a commission basis. Ford admitted that he owned no real estate and when asked “You don’t own anything over and above what the law allows you, — -over and above your exemptions? A. No.” He further testified that appellant, Bickerstaff, owned his home. The evidence tended to show the insolvency of both appellants. There was other evidence tending to show that appellants were not making a proper accounting to appellee as- agreed, and that appellee, although given the right under the terms of the agreement, was denied access to the books and accounts and receipts and the right to check the cash register.
The power of the court to appoint a receiver in circumstances such as are presented here is found in § 11189, Pope’s Digest, which provides: “Appointment pendente lite. In an action . . . between partners or others jointly owning or interested in any property or fund, on the application of plaintiff or of any party whose right to or interest in the property or fund or the proceeds thereof is probable, and where it is shown that the property or fund is in danger of being lost, removed or materially injured, the court may appoint a receiver to take charge thereof during the pendency of the action and majr order and coerce the delivery of it to.him.”
The general rule governing appointment of receivers “is that the action of the court must be governed by a sound and judicial discretion,” 45 Amer. J. P., p. 27, § 22.
The chancellor in this case heard the oral testimony of the witnesses presented. He was, therefore, in a much better position to judge of the credibility to be given to the testimony than we could possibly be. We are unable to say that the action of the court appointing a receiver was not justified by a preponderance of the testimony or that the court’s sound discretion in the matter has been abused.
Accordingly, the decree is affirmed. | [
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PER CURIÁM.
This appeal involves two cases consolidated by order of the chancery court.
In the first case (No. 3412 on docket of the lower court), appellee, T. B. Goldsby, a taxpayer of the town of Lepanto, sought an injunction against the said town and its mayor and aldermen to prevent them from issuing revenue bonds of the municipal sewer and water plants to pay for certain improvements thereon, the pro posed action of tlie mayor and aldermen being alleged to be illegal because of the fact that these plants were in charge of a Board of Public Utilities created in pursuance of Act 95 of the General Assembly of Arkansas of 1939. The mayor and aldermen answered, denying lack of authority on their part to issue the bonds. The plaintiff demurred to this answer, and his demurrer was sustained.
In the second case (No. 3413 on docket of the lower court), D. F. Portis, another taxpayer of Lepanto, prayed an injunction against the members of the Board of Public Utilities of the town, to prevent-them from carrying out their avowed purpose to issue revenue bonds of the sewer and water plants for the purpose of making the proposed improvements. The Board of Utilities answered, denying plaintiff’s allegation that it lacked authority to issue bonds, and asserting that this authority was granted to it under Act 95 of the General Assembly of Arkansas of 1939. The plaintiff demurred to this answer and his demurrer-was overruled.
In neither case did the court render any decree or make any final disposition of the suit. In one case the demurrer of the plaintiff to the answer of defendants was sustained; in the other case the demurrer of plaintiff to the answer of the defendant was overruled. But there was no final adjudication in either case, so as to constitute an appealable order.
We have frequently held that where the record shows only an order made by the lower court disposing of a demurrer, and no final order or judgment, no appealable order is shown. Campbell v. Sneed, 5 Ark. 398; Hamilton v. Buxton, 5 Ark. 400; Hanger & Co. v. Keating, 26 Ark. 51; Johnson v. Robinson, 9 S. W. 432; Gates v. Solomon, 73 Ark. 8, 83 S. W. 348; Moody v. Jonesboro, Lake City & Eastern Railroad Company, 83 Ark. 371, 103 S. W. 1134; Atkins v. Graham, 99 Ark. 496, 138 S. W. 878; Adams v. Primmer, 102 Ark. 380; 144 S. W. 522; Davis v. Receivers St. Louis & San Francisco Railroad Company, 117 Ark. 393, 174 S. W. 1196; State v. Greenville Stone & Gravel Co., 122 Ark. 151, 182 S. W. 555; Fair- view Coal Co. v. Ark. Central Railroad Co., 153 Ark. 295, 239 S. W. 1058.
Since the lower court has made or rendered no final order or decree, the appeals must be dismissed as being premature; and it is so ordered. | [
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Holt, J.
June 3, 1946, appellee brought this suit against appellant, her former husband, to replevin certain household goods and property which she claimed to own.
Appellant answered with a general denial and affirmatively pleaded res judicata as a complete defense.
On a jury trial, there was a finding in favor of appellee, and the following verdict returned: “We, the jury, find for the plaintiff and find that she is entitled to the possession of the following articles of property or the value as follows: 1 Bed Boom Suite — Value $50; 1 Dining Boom Suite — Value $50; 2 9x12 Bugs — Value $40; 1 Coffee Table — Value $.10; 1 Electrolux Sweeper— Value $50; 2 Bed Spreads — Value $25; 6 Bed Quilts— Value $30; 1 Floor Lamp — Value $2; 1 Wine Chair —Value $10; 1 Inner Spring Mattress — Value $40. J. A. Miller, Foreman. ’ ’
From the judgment comes this appeal.
After 20 years of married life, the parties here separated December 13, 1943,. and appellee obtained a divorce January 20, 1944. Appellee, in her complaint for divorce, made no request for a property settlement. The decree of the trial court, evidently in compliance with § 4393 of Pope’s Digest, contained the following: “That all property not disposed of at the commencement of this action which either party hereto obtained from or through the other during the marriage hereby 'annulled, and in consideration or by reason thereof, be restored to them respectively.”
Immediately following their separation and prior to the divorce decree, appellee testified that they had a property settlement and appellant gave her the property involved here. She further testified that she immediately removed this property from their home, along with an automobile and some other property not involved here. She had had possession of the property set out in the jury’s verdict, supra, for approximately three years until she returned to appellant and carried it back to the home that she and appellant were occupying when they separated. She returned to appellant at his earnest solicitation and “he promised if I would come back, he would spend the rest of his life making up for what he had done,” that she relied on his promise and “took the stuff and went back over there and I didn’t any more than get in until the thing started and was pure hell until I left and when I left I was down sick” and was in bed for three weeks. He refused to let her have the property and placed a padlock and a notice on the door. “Q. You ’have been away with the property in your possession for about three years. A. Yes.”
Appellee’s sister, Buddy Mae Green testified that she was present when appellee and appellant separated, heard their conversation with reference to the property involved here, and that appellant told appellee she could have it, and fully corroborated appellee. Appellant denied that he .gave her the property and claimed ownership.
Appellee has remarried since her divorce from appellant.
It is conceded that the property rights of the parties here were not settled by the divorce decree, supra, and that decree did not determine appellee’s rights in the property here. Whether appellant gave her the property and that she has owned it since their separation was a question for the jury to determine, and while appellant denies that he gave her the property and that she owned it, the jury refused to accept his version of the matter and we think there was ample evidence upon which the jury based its verdict.
The record reflects that subsequent to the divorce decree, appellant sued appellee to replevin the automo bile, supra, which appellee had carried away with her following their separation, and that appellant was successful in that suit. The only property involved in that action was an automobile. None of the property here was involved. See Johnson v. Swanson, 209 Ark. 144, 189 S. W. 2d 803.
Appellant says: “The law of res judicata applies in the case at bar.” Appellee “is barred in the instant case because when she filed her former suit for divorce she failed to ask for a division of property, and she was the one who was then doing the suing.” We cannot agree that the doctrine of res judicata has any application in the present case.
“To render a judgment in one suit conclusive of a matter sought to be litigated in another, it must appear from the record, or from extrinsic evidence, that the particular matter sought to be concluded was raised and determined in the prior suit, or that it might have been litigated in that case.” Coleman v. Mitchell, 172 Ark. 619, 290 S. W. 64.
It is undisputed that the issue as to ownership of the property here involved was not raised in the divorce suit or in the car case. On the facts here, it was hot necessary for appellee to have raised this issue in either of those cases for the reason that she claimed and the jury has found that she was, and has been since her separation from appellant, the absolute owner of the property in question by virtue of the property settlement and gift from her husband.
In Johnson v. Swanson, supra, we said: “In the case of Apple v. Apple, 105 Ark. 669, 152 S. W. 296, this court sustained a decree in favor of a former wife against her former husband enforcing (in an action brought by her after the lapse of the term at which the divorce was granted) a verbal agreement between the parties during the marital relation as to division of personal property.”
Appellant also contends that appellee was not entitled to recover three or four items included in the jury’s verdict for the reason that these items belonged to her present husband and he was not made a party to the suit. We think this contention without merit for appellant conceded that he had no interest in this property, that it belonged to appellee’s present husband and offered to deliver it to the court. Appellant is therefore in no position to complain.
Appellant also says that there was no proof as to the value of the property. We think this contention also without merit for the reason that appellee testified as to the cost and value of the property and that it could not be purchased at its cost price. This was sufficient.
Finally appellant contends that the trial court erred in permitting the jury to take into the jury room a list of the property described in the complaint. On this point, the record reflects the following: “Mr. Oof felt: The defendant objects to the court giving the jury the following list of property described in the complaint for them to consider and take into the jury room as they consider of their verdict. 1 bedroom suite, 1 living and dining room suite, 1 9x12 rug, two dozen quarts of canned food, 1 coffee table, 1 floor lamp, and other items listed . . . We object for the reason that there are many items set forth in said list not referred to in the testimony of the case, or mentioned with a value. There was no competent testimony in the case to fix the value and it is undisputed proof that she is not the owner of any of the property. The Court: Overruled. Mr. Coffelt: Save exceptions.”
Here, it appears that the court permitted the jury during its deliberations to have a list of the items claimed and set out in appellee’s complaint, consisting of 18 different items. We think appellant’s objection untenable for the reason that it was within the sound discretion of the trial court, in the circumstances here, to permit the jury to have a list of the property sought to be recovered as an aid in determining the specific items and the value of each which appellee might be entitled to recover. Obviously, it would have been difficult for the jury to remember all of them. The Supreme Court of Michigan in the case of Trudell v. Pearll, 189 N. W., page 61, held: (Headnote 1) “In replevin for a large number of articles of household, goods, it was not error to permit the jury to take with them the hill of particulars containing the inventory of the goods, replevied, since, if the jury believed a part of the goods were those of plaintiff and a part belonged to defendant, they could not be expected to remember all the articles without having such list.” See, also, Hickman, et al. v. Ford & Co., 43 Ark. 207.
As has been pointed out, we think the evidence was ample to establish appellee’s ownership of the property listed in the jury’s verdict as well as its value.
On the whole case, finding no error, the judgment is affirmed. | [
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Ed. F. McFaddin, Justice.
On the night of January 13, 1947, David Gough, a man about 80 years of age, was brutally killed in his home as a result of choking and beating. His mutilated body was not discovered until more than 36 hours after his death. For the death of Gough, appellant Troy Delaney was convicted of murder in the first degree; and in this appeal presents the assignments herein discussed.
I. The Sufficiency of the Evidence. On the morning of January 13, 1947, Troy Delaney was released from the Washington county jail, where he had been confined on a charge of drunkenness; and at the time of his release he had $5.50 in cash. He spent the greater part of that day — and some of his money — in drinking beer; he said he drank 21 or 22 bottles: After dark he met Sallie Parker, a woman 55 years of age. They drank some beer, and then left the drinking place; later, they met some unidentified men who gave them a bottle of whiskey, a large portion of which was consumed by Delaney.
At the jury trial Delaney claimed loss of memory from the time he drank the whiskey until he awakened the next morning in company with Sallie Parker in the school house at Lowell, a settlement several miles away. Sallie Parker testified that, after Delaney drank the whiskey, he went with her to the house of David Grough, where Delaney robbed and killed Grough; and that, in so doing, Delaney got blood on his shirt and soot on his face, when he knocked over the stove in the struggle with Grough. Sallie Parker also told how she and Delaney went to a filling station, called a taxicab, and then went to the Lowell school house and spent the night.
There were other witnesses who testified that when Delaney was at the filling station, he had soot on his face and blood on his shirt. The spending of money in the filling station, and the paying of the taxi fare to Lowell, and several additional matters of corroboration were also shown by witnesses other than Sallie Parker. Significant evidence concerned a comb: the deputy sheriff of Washington county testified that, when Delaney was in jail on January 12, 1947, the deputy gave him a certain blue comb, and that the same comb was found hanging on the shirt of the body of the deceased David Grough. When Delaney was arrested, he had a newspaper clipping naming himself as the murderer. Also, concealed in his bed was a letter he. had written to his mother, referring to the death of Grough.
In addition to the denial of his guilt, Delaney introduced evidence seeking to show that a man named Curtis Wages had murdered Gough, and that Sallie Parker had first identified Wages as the murderer and later had changed her story in order to pin the guilt on Delaney. The credibility of Sallie Parker’s testimony was for the jury. It is possible that Wages might have been with Delaney and Sallie Parker, and might have participated in the murder, but such facts would not absolve Delaney.
Without reciting all of the evidence, we conclude that it was amply sufficient to take the case to the jury on the question of Troy Delaney’s guilt. Furthermore, there is no evidence that the verdict was the result of passion or prejudice.
II. The Degree of the Grime. It is strenuously insisted that there is no evidence of premeditation, and that we should, therefore, reduce the crime to murder in the second degree. There are two answers to this contention: (a) There was testimony that the murder was committed in the act of robbery. The court charged the jury that murder committed during the commission of a felony is murder in the first degree. To that instruction there was no objection. In fact, there were no objections to any of the instructions given by the court, (b) Deliberate and specific intent could have been found to exist from the brutal nature of the killing. Rosemond v. State, 86 Ark. 160, 110 S. W. 229, and authorities there cited.
III. Sallie Parker as an Accomplice. The appellant insists that Sallie Parker was an accomplice, and that her testimony must be corroborated. The answer is twofold. The trial court submitted to the jury the question of whether Sallie Parker was an accomplice. If the jury found that she was not an accomplice, then her testimony did not have to be corroborated. On the other hand, even if she were an accomplice, her testimony was corroborated, as we have previously indicated.
IY. Newly Discovered Evidence. In the amended and substituted motion for new trial, duly presented to the court, appellant claimed that he had five items of newly-discovered evidence. These items related to evidence of contradictory statements made by Sallie Parker; and evidence tending to show that Curtis Wages was the murderer. Also, the defendant stated that, since the trial before the jury, he had recovered from his loss of memory, and coulcl testify as to his acts. He did so testify in the hearing on the motion for new trial.
We have repeatedly held that a motion for new trial on the ground of newly-discovered evidence is addressed to the sound discretion of the trial court. Armstrong v. State, 54 Ark. 364, 15 S. W. 1036; Huckabee v. State, 174 Ark. 859, 296 S. W. 716; Jones v. State, 196 Ark. 176, 116 S. W. 2d 610; Sutton v. State, 197 Ark. 686, 122 S. W. 2d 617. The ruling of the trial court on a motion for new trial on the ground of newly-discovered evidence will not be disturbed by this court on appeal in the absence of an abuse of discretion. Osborne v. State, 96 Ark. 400, 132 S. W. 210; Russell v. State, 97 Ark. 92, 133 S. W. 188; Thompson v. State, 130 Ark. 217, 197 S. W. 21; French v. State, 205 Ark. 386, 168 S. W. 2d 829. The trial court heard all of the witnesses offered by the defendant on the five items of newly-discovered evidence. The testimony heard by the trial court is before us in the record, and we have carefully examined it; we reach the conclusion that there was no abuse of discretion in overruling the motion for new trial.
Y. The Motion of December 12, 1947. The defendant was convicted on April 29,1947. The motion for new trial, as previously referred to, was overruled by the court on June 25, 1947, and the defendant sentenced on that day. All of the afore-mentioned proceedings were during the April term of the Washington Circuit Court. On December 12,1947, (a day of the October, 1947, term) the appellant presented to the Washington Circuit Court an additional motion for new trial, listing eight other items of newly-discovered evidence. This last-mentioned motion was properly stricken by the circuit court. There is no provision allowing a motion for new trial in criminal cases, on account of newly-discovered evidence, to be filed after the expiration of the term at which the judgment of conviction was rendered. Satterwhite v. State, 149 Ark. 147, 231 S. W. 886; State v. Martineau, 149 Ark. 237, 232 S. W. 609.
Finding no error, the judgment of the circuit is in all things affirmed. | [
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Holt, J.
Appellant, Selmer Jordan, was charged by information with murder in the first degree, alleged to have been committed by shooting George W. Renfro to death. The trial jury found him guilty of voluntary manslaughter and assessed his punishment at'two years imprisonment in the penitentiary. This appeal followed.
Appellant has not filed a brief.
Ill his motion for a new trial, he alleged, that (1) the evidence was not sufficient to support the verdict, (2) the court erred in giving eacJi of the instructions 1 to 23, inclusive, on behalf of the State over his objection and exceptions, (3) in refusing his requested instruction No. 1, and (4) “in permitting the prosecuting attorney in his closing argument to argue to the jury over the objections and exceptions of the defendant that it was the defendant’s duty to exhume and perform an autopsy on the deceased’s, George Renfro’s, body to determine the manner in which deceased was shot.”
(1)
Appellant admitted the killing, but testified that he did so in his own self-defense.
Ethel Renfro, widow of the deceased, testified that she was present when her husband was shot and killed. “I went out on the porch for something. I heard some talking down in the field, it was Selmer (appellant) talking to George (the deceased).” She could see them both and was about 220 steps away. ‘£ The first I heard was Selmer cursing George and saying that he ought to kill George and that he would kill him. Jordan (appellant) told him to get out and to get away from there and not to come back. He (George) said, I am going.” She further testified that appellant and her husband argued over payment for some firewood and rent claimed by Bertha Davis, who was present, and that Bertha called George “a low-down liar and Selmer shot him.....I was watching Selmer. I' don’t know which way George was facing. Q. Why were you watching Selmer? A. He was cursing George and said that he ought to kill him and he would. Q. Did you see the gun? A. No, sir, but I saw the smoke when he fired. ’ ’
Following the shooting she asked appellant to help her and to stay with her husband until she could get help, but that he refused and a little later appellant, in company with Mrs. Davis, left the scene carrying the double barrel shotgun. She further testified, in effect, that her husband was unarmed and “Did Selmer tell you down there that he killed him (George Renfro) ? A. YeS, sir.” There was also other evidence that George Renfro was unarmed.
Henry Morse testified that “Selmer said that he killed George or had to kill him or something like that. ’ ’ Shortly thereafter appellant left carrying the double barrel shotgun.
There was evidence that the deceased was shot in the back.
Appellant testified that he was 70 years of age and had lived at Mulberry, Arkansas, all of his life. His version was that he and deceased quarreled about appellant’s right to remove certain cane as appellant’s part of rent from land claimed by deceased and when he told the deceased that he was “going to haul it out,” that deceased said: “You might go ahead and strip that, but, by God, you won’t haul it out, he said that there would be guns popping all over this place.” They had also had other misunderstandings and quarrels.
lie further testified: “On Thursday, I don’t know why I did it, but I did. I came in from the west up through the woods. I didn’t come in from the north where I did on Wednesday. It led into this opening north of the crossing there. When we got there, I walked through this gap that had been cut across this branch and I had walked here through the gap and turned to the left toward the cane and set my jug of water down and I carried my gun with me, and I sat down on the rock and still held to the barrel. Just about that time the dogs made a racket barking at something. I just stopped just about there and I saw Mr. Renfro get up from the thicket that was right straight across from where I had laid the paddle down and he came through this gap to the north of the cane and came right around through this gap. . . . He came around like he was in a hurry, he was looking out in the cane, but I was just up behind these honeysuckle vines, he was looking out there in the cane. All of a sudden he looked around and saw me 14 feet or 7 or 8 steps away. He whirled right around to the right. I was on the east. He threw that gun on me, I seen that gun in his hand and before he had time to shoot me, I shot him. . . . Q. What happened when you shot him? A. He fell from me. When the charge of shot hit him, he fell down. Q. Fell on his back or face? A. It sorta knocked him. He staggered down, he didn’t fall. Once he got right up and staggered and fell again, then got about half up again and fell and never did get up any more. ’ ’
There was other testimony, but we do not attempt to set it out in detail. It thus appears, viewing the testimony in the light most favorable to the State, as we must, it tended to show that appellant shot appellee in the back, killing him almost instantly and at a time when the deceased was unarmed and about eight steps away, when appellant was in little, if no danger of being injured by the deceased. We think the testimony, when all was considered, was ample to support the jury’s verdict and in fact would have supported a higher degree of homicide than that of which appellant was found guilty. Clardy v. State, 96 Ark. 52, 131 S. W. 46; Brown v. State, 208 Ark. 180, 185 S. W. 2d 274, and cases there cited.
(2)
The court’s instructions were those usually given in a case of this nature and were correct declarations of law applicable to the facts presented. They correctly and clearly defined murder in the first degree, murder in the second degree and voluntary manslaughter and in fact every phase of the case appears to have been fully and properly presented to the jury. Instructions similar in effect have been many times approved by this court. We find no prejudicial error in any of them.
(3)
The court was also correct in refusing to give appellant’s requested instruction No. 1, since this instruction had been fully covered by other instructions given by the court. The court was not required to repeat instructions.
(4)
Appellant’s last complaint that the court erred in permitting improper argument of the prosecuting attorney, is without merit for the reason that the record fails to show that the argument complained of was made, objected to and exceptions saved. Therefore, this alleged error is not before this court for consideration.
On the whole case, finding no error, the judgment is affirmed. | [
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Griffin Smith, Chief Justice.
Suits to which this appeal is related were brought in the' District Court of the United States for the Western District of Arkansas, at El Dorado. Separate actions were by Horace A. Young upon the one hand, and by Betty Jean Gilbert and others, against Levi Garrett and others. Ejectment was sought, together with an accounting and compensation for rentals, timber removed, minerals — -particularly oil- — ■ and incidentals. Interests alleged were l/54th and 5/54ths of an undivided 308 acres in Columbia County.
Rights asserted in the chancery suit are barred unless it can be said that pendency of some phase of the actions entitled Young v. Garrett et als., and Gilbert v. Garrett et als., prevents limitation. Appellants say they are saved by § 8947 of Pope’s Digest. It provides that where an action is begun in a timely manner and the plaintiff suffers a nonsuit, or if a plaintiff’s verdict is delayed by arrest of judgment, or if, after judgment, there is a reversal, “ . . . such plaintiff may commence a new action within one year after such nonsuit suffered or judgment arrested or reversed”.
Young v. Garrett and Gilbert v. Garrett were dismissed for want of indispensable parties. Federal Rules Decisions, v. 3, p. 193. Separate appeals were taken. In a decision dated May 9, 1945, the two appeals were covered in a single opinion by the Circuit Court of Appeals, and affirmed. Rehearing was denied August 8, 1945. Accompanying thfe petition for rehearing was a prayer that the causes be remanded to permit the District Court to consider amendments which, in the opinion of the losing parties, would meet the objections urged as to jurisdiction by showing an appropriate alignment. The appellate court held that it was without power to allow the amendment, but in denying a rehearing the cause was remanded with directions to permit the appellants to apply for leave to amend “for the purpose of stating jurisdiction, if possible, . . . provided that such application be made within a reasonable time and not later than October 1, 1945”. The opinion (but not the order accompanying remand) is found in 149 F. 2d 223. For a detailed review of the litigation see Young v. Garrett, etc., 5 F. R. D. 117. There, in a thoroughly considered opinion, the matters at issue were treated in a comprehensive manner and leave to amend was denied.
It is disclosed that motions were filed September 24, 1945. There were amended and substituted complaints. The defendants objected on the ground (1) that the court was without power to grant the relief without vacating or modifying its former judgment of dismissal, and this it could not do; (2) indispensable parties had been omitted, and inclusion of them would destroy diversity of citizenship — the sole ground of federal jurisdiction; (3) the actions were barred by the applicable state statute of limitation, and (4) facts and circumstances did not warrant exercise of the court’s discretion even if it existed.
A significant expression in Judge Miller’s opinion appears at page ‘ 120 of the Fifth Federal Rules Decisions: — “Assuming that the appellate court had power to remand the cases without reversing the judgments of the trial court, the [District] court construes the order of remand as a direction to consider and determine the law on all questions involved in the motions with no expression of opinion of the appellate court as to what action should be taken by this court, but that if the motions should be granted and further proceedings had, that such should not be inconsistent with the expressed opinion of that court”.
Subdivision [3] of the opinion discusses the trial court’s right to grant the motions. In holding that the power did not exist, attention was directed to the fact that the Circuit Court of Appeals specifically denied the petition for rehearing, thus leaving the District Court’s judgments intact. The motions for leave to amend, said Judge Miller, were filed more than two years after September 14, 1943, when the District Court dismissed. Claims sought to be asserted by the new proceeding were included in the former actions. Following dismissal, the plaintiffs did not attempt to amend, preferring to rely upon their assertions that the court had jurisdiction. Hence, said the opinion, “to permit an amendment now, it would be necessary for this Court to modify the judgments appealed from and affirmed”. After listing cases supporting the conclusion announced, it was said:
“The authorities . . . definitely establish that a District Court is wholly without power to vacate or modify a judgment after the expiration of six months from rendition, and under the Rules of Federal Procedure, such authority cannot be conferred.” After mentioning various Rules under which relief could be granted in circumstances to which they applied, the opinion continues with the statement that there were no reservations in the judgments, rendered by the District Court September 14, 1943 — “nothing remained for the Court to do. . . . None of the Rules of Federal Civil Procedure purport to give the District Court power to modify or set aside or take any other action that would be tantamount to vacating a final judgment after the expiration of six months”. Following these conclusions there was the additional finding that merits of the controversies did not justify a reopening.
- On September 19tli, 1946, there was filed in Columbia Chancery Court an action similar in purpose to those brought in Federal Court. The Chancellor, May 2, 1947, found that on March 12, 1947, the plaintiff had filed a pleading admitting there were other actions pending in the Court of Appeals involving the same causes and the same parties. A demurrer was sustained on the ground that more than a year had intervened between August 8, 1945 — final judgment of the Court of Appeals — and September 19, 1946, when the instant suit was brought.
The Young-Garrett order of dismissal heretofore referred to (5 F. R. D. 117) was appealed. February 25, 1947, Judge Miller’s actions were affirmed. Young v. Garrett, etc., 159 F. 2d 634. Appellants contend, in effect, that the concluding paragraph of the opinion of affirmance reflects a purpose by the Court of Appeals to treat the cases as pending until final District Court action, and this did not occur until February 25,1947. Referring to cases it had considered, the Circuit Court said: “In view of the circumstances [of the^ causes dealt with by Judge Miller] the Court did not abuse its discretion in denying leave to plaintiffs to file their tendered amended and substituted complaints”.
Judge Seth Thomas, who wrote the appellate court’s opinion, mentioned Judge Miller’s finding that because of the lapse of time between dismissal in 1943 and the tendered amendments in September 1945, the District Court, under Rule 60(b) of the Federal Rules of Civil Procedure, was without power to permit the amendments to be filed. Relief from a judgment under this Rule is limited to instances where the judgment, order, or proceeding taken against the petitioner has been through his mistake, inadvertence, surprise, or excusable neglect. The trial court, said Judge Thomas, would have been justified in'believing that the erroneous alignment of parties was the result of “mistake” or “inadvertence”. If due to either, Rule 60(b) might be invoked. But, says the opinion, the District Court held that the plaintiffs waived the right to file the tendered amendment and-substituted complaint, and “ . . . This situation pre sents the question whether the Court as a matter of .law erred in so holding”. The old demurrer has, said the appellate Court (under the new rules) been superseded in applicable cases by the motion to dismiss; and, since under the former practice the right to amend was waived-by a plaintiff who elected to stand upon his complaint and to appeal from an order of dismissal, then by analogy the same result attended wheil a plaintiff appealed from the trial Court’s action in sustaining a motion to dismiss.
Under this construction of the Rule — a construction we must accept in view of the affirmance without a finding that the District Court was in error on any point advanced — the problem presented is whether (as appellants contend) the statute of limitation was tolled not only during the period of appeal from the order of September 14, 1943, but during the time that ran after the decision of August 8, 1945.
Rule 60(b) affirmatively provides that the motion it authorizes “ . . . does not affect the finality of a judgment or supersede Its operation”. U. S. C. A., Title 28, § 723c, p. 727; Federal Rules Decisions, v. 1, “Text of Rules”.
The expression “toll the statute of limitations”, as appellants seek to construe and apply it, is inexact. Our nonsuit statute is an independent Act. It does not supplement any existing limitation laws. It authorizes a new action, to be brought within a year when conditions giving rise to its application exist. The words “new action” are used twice. The right created was unknown to the common law; and, being a period of grace intended for the protection of those who through conditions beyond the expectation ofv reasonable minds were faced with irreparable loss, it was thought best as a matter of sound public policy to say that after the original right to act within a fixed period had expired, the mistake would be treated as though failure to proceed in a way free from error was not without extenuation, hence justice — and that fine sense of social balance we call equity — warranted a privilege that the defeated party might begin anew. If, within a year, advantage were taken of the new right so created, the cause would proceed independently of the original bar.
But wording of the Act does not justify belief that it was the legislative purpose to so liberalize this gratuity that irrespective of adverse judicial decisions in a given case that the controversy in that jurisdiction had been terminated, a period of one year would yet remain while courts were reaffirming what had already been explicitly held.
When the Court of Appeals refused to' grant a rehearing and affirmed Judge Miller’s order of dismissal, it appears to have attempted to confer upon the trial court a power subsequently found to be non-existent. That is the effect of Judge Miller’s holding, and on appeal for the second time in these cases he was not reversed. So, in effect, rights of the parties to maintain their suits in Federal Court were settled by the appellate court August 8, 1945, and under Buie 60(b) the judgment was a finality. If treated as a nonsuiF — an issue we do not decide — more than a year elapsed before the Chancery suit was filed in September of the following year.
We need not discuss appellees’ assertion that a suit filed in a state court while the same cause pends in Federal Court does not come within the nonsuit statute and take its place as a matter of course as a new suit properly brought under § 8947 of the Digest. The argument rests upon an analysis of the statute, which by its terms indicates that the right does not come into existence until a nonsuit has been taken, and in the new proceeding the fact that there was a nonsuit has been alleged by appropriate pleadings. The conclusions we have reached obviate a discussion of that and other questions raised by the appeal.
Affirmed.
Preceding, suits had been filed by Gilbert et als. v. Elam et als.
It was alleged that the proceedings were under authority of Act 334, approved March 26, 1941.
Section 8947 is: “If any action shall be commenced within the time respectively described in this act, and the plaintiff therein suffer a nonsuit, or after a verdict for him the judgment be arrested, or after judgment for him the same be reversed on appeal or writ of error, such plaintiff may commence a new action within one year after such nonsuit suffered or judgment arrested or reversed. ...”
Amounts demanded were reduced in an effort to bridge jurisdictional impediments.
For convenience the Federal Court cases are shown collectively: Young v. Garrett et al. and Gilbert et al. v. Garrett, 3 F. R. D. 193 (Sept. 14, 1943); Young v. Garrett et al. and Gilbert v. Garrett et al., 149 Fed. 2d 233 (May 9, 1945); Young v. Garrett et al. and Gilbert v. Garrett et al., 5 F. R. D. 117 (Feb. 28, 1946); Young v. Garrett et al., and Gilbert et al., v. Garrett et al., 159 Fed. 2d 634. | [
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Smith, J.
This appeal is from a decree, entered in a suit brought by appellee, cancelling certain conveyances whereby appellant and appellee became owners of appellee’s home in the City of Fort Smith, as tenants by the entirety. They were married October 25, 1945, at which time appellee was 80 years old, and appellant was 50.' It was appellee’s third marital venture and appellant’s second.
Before the marriage a marital contract was entered into whereby each relinquished any and all claims against the estate of the other. The consideration for the contract, in addition to the marriage, was the payment to appellant of $500 in cash, and the agreement that there should be paid to her $3,500 as a first claim against appellee’s estate, if she survived him, and that she should also have appellee’s automobile, if he owned'one at the time of his death. By mutual consent this contract was abrogated and set aside on November 24,1945.
The testimony on appellee’s behalf was that he was very fond of and proud of his wife, but that she was less affectionate to him. There is no testimony that they had any serious quarrels or disagreements, and appellee’s chief complaint against his wife is that she neglected him and spent too much time away from him. On one occasion she took a business trip with a lady friend which carried her into the State of Missouri. They spent about a week on that trip. Another was to Hot Springs with the same lady, which lasted somewhat longer. ■ Appellant owned a home in the City of Eureka Springs where she lived with her mother, and she owned s'ome lots in Missouri. Appellee’s financial condition was much more effluent than that of appellant.
Appellee owned a home in the City of Fort Smith for which he had paid $7,250,'and on May 3,1946, certain conveyances were executed which operated to vest the title of this home in appellant and appellee as tenants by the entirety, and the purpose of this suit was to cancel these deeds.
The parties went together to the office of a Mr. Wren, a Notary Public, who apparently prepared the deeds and took the acknowledgments thereto, his secretary being the conduit through which the title vested in appellant and appellee as tenants by the entirety. Appellant testified that she did not know Mr. Wren, but was introduced to him by appellee, who did know him, and was known to him. Wren did not testify and the record is silent as to the explanations made to Wren to enable him to prepare the necessary papers. Appellee carried the deeds to the office of the recorder of deeds, and they were recorded. Copies of these deeds were introduced by consent. These are the deeds which this suit seeks to cancel.
Appellee’s health was not good, and he was very nervous and as his condition did not improve he requested his son, who resided in Charleston, and was the cashier of a bank there of which appellee was president, to take him to a hospital in Charleston, operated by appellee’s son-in-law. Appellant did not accompany appellee to the hospital, -her explanation being that her mother with whom they were living in Eureka Springs, was sick at the time, and that she herself was quite ill. A doctor testified that appellant was under his treatment from June first, until after the first of September, during which time appellee was in the hospital, and that during that time appellant was unable to nurse anyone as she was undergoing her menopause, and was in a nervous condition, suffering also from a badly infected sinus and from arthritis. On his cross-examination the doctor was asked if he had not had relations, not professional, with the appellant. No testimony was offered giving any basis whatever for the question, and the doctor denied the existence of any such relations. Appellant testified that although she was unable to visit appellee in the hospital, she wrote him a number of letters, but none- of them was answered. These letters were no doubt available to appellee, but none of them was offered in evidence. Appellant testified that she finally concluded that her letters were not being delivered to appellee, and she wrote a letter to appellee’s brother-in-law, enclosing a, letter to appellee, which she requested the brother-in-law to deliver. It was delivered and it is admitted that the other letters had also been received.
The testimony is that prior to, during and subsequent to appellee’s confinement in the hospital, he complained to his friends that his wife was neglecting him, and he appears to have become more nervous and resentful of the neglect of which he frequently complained. He lost weight and did not improve under the treatment at the hospital. There is no testimony that the question of, divorce had ever been discussed before appellee left for the hospital, and appellant testified that the first intimation that she had that appellee wished a divorce was when appellee’s son so advised her. This son, accompanied by his own son, went to Eureka Springs and found appellant was not at home, although her mother was, but she was npt out of the city, and he carried his father to the hospital in a truck.
This witness testified that appellee complained much of appellant’s neglect of him and that he did not know she had gone to Hot Springs until her return, and that while in Hot Springs appellant drew a check against appellee’s bank account, of which fact witness apprised his father. This occurred, however, before appellee was taken to the hospital. This witness further testified that his father was very proud of his wife and introduced her to everybody and “he talked that way to the immediate family,” and he stated that as far as he could tell, her attitude was good towards her husband.
On the second trip to Eureka Springs the witness saw appellant’s attorney and advised him that his father wanted a divorce and was desirous of settling his affairs, and the attorney told him to see appellant herself. He did so, and concerning that interview he testified as follows:
“Well, in the conversation she was very courteous and very nice, but in the conversation it was brought up that perhaps a divorce should be gotten and in the conversation she said, £I did not marry your daddy for love, I married him for money. If I had married for love I would have had a chance of several younger fellows.’ ”
This witness was accompanied by his own son on this visit and in corroboration of the testimony of his father, the son testified that appellant told his father that she had married appellee for his money and his property and that if she had married for love she would have taken a choice of three or four younger men.
A niece of appellee testified that she visited her uncle on one occasion and found him very nervous and restless because appellant was not at home, but she returned before the niece left. That he was very fond of and attentive to his wife, but she was indifferent and inattentive to him. This witness’s husband gave testimony to the same effect.
Dr. Bolinger testified that his wife was appellee’s niece and that he operated the hospital in Charleston to which appellee was brought. He was asked about appellee’s condition while a patient there, and he stated that appellee was highly nervous and in no condition to transact business during that time. When asked about appellee’s condition before coming to the hospital, he answered that he did not know and he did not testify that appellee’s condition while at the hospital was such that he would not realize and understand what he was doing. .In this connection it may be said that no witness testified that appellee’s mental condition was such that at any time he did not know and realize and comprehend what he was doing and the decree from which is this appeal is based upon other grounds, it being recited in the decree that the deeds are cancelled on the grounds of “fraud and undue influence. ’ ’
This suit is predicated upon the allegation that appellant won appellee’s affection and betrayed his confidence, that she married him only for the purpose of acquiring as much of his estate as possible, and that when this purpose had been accomplished she thereafter pursued such a course of conduct toward him as to render his condition as her husband intolerable, thereby compelling him to sue for a divorce.
The decree cancelling the deeds, creating an estate by the entirety in appellee’s home, summarizes certain testimony which, if it did not control the decision, was certainly not disregarded. The most important of this testimony was given by one Lee Gates and his wife. Gates .testified that he lived in a rent house behind appellant’s home and he described himself as a land surveyor engaged in mowing lawns. He testified that one day between sundown and dark he and his wife went downtown, and in going by appellant’s home saw a man standing on the back porch. He and his wife returned home about 10 p. m. and in doing so they again passed appellant’s home. The lights were out except in the bedroom, which he supposed was appellant’s. He saw appellant and a man in the room, who were just sitting there in the'bedroom talking and when asked how close together they were sitting answered that they were “in each other’s laps,” but that he did not stop at all to look. His wife corroborated this testimony, and it was apparently credited by the learned Chancellor, but we do not credit it. If the witnesses saw what they testified they did see, it is highly improbable that they “did not stop at all to look. ’ ’ If the testimony is true, appellant is a strumpet without modesty, and there is no testimony giving her that name or reputation. Gates and his wife testified that an electric light was burning in the. room and they could see 'from 'the street what was happening in the room.
It was shown by undisputed testimony that this night was the only night appellee was away from home after his marriage, he having gone to Charleston to witness the graduation of his grandson. Appellant testified that a man came to the house that night, the man being appellee’s nephew and that he came to the back rear door because the front door had been freshly painted, and was roped off; that she invited him in and he remained there only a short time, not exceeding twenty minutes. The housekeeper was there at the time in an adjoining room, and she and a lady who was spending the night with appellant gave testimony to the same effect. However, Gates and his wife did not disclose what they had seen. Mrs. Gates testified that she did not tell anyone about what she saw until the day before she testified, when she told appellee’s son. Mr. Gates had disclosed his information only a day earlier. Mrs. Gates further testified that she had done housecleaning work for appellant on four or five occasions and that on one occasion appellant said 'to her, “I wish the old devil (meaning appellee) would die and get out of my way. ’ ’ Witness said, ‘ ‘ What did you marry him for?”, and appellant answered, “To get what he had, his money and his property,” and witness said, “I would hate to wish anybody anything like that.” .It is difficult to believe that appellant was so callous as to make a remark of that kind to a servant who was only occasionally and incidentally employed. Needless'to say appellant denied making the remark.
Other testimony referred to in the opinion of the Chancellor related to two letters which appellant had written to an elderly gentleman who had apparently addressed appellant on the subject of marriage. In one of these letters she stated that she had márried one old man from whose estate she had received but little, and that she did not intend to marry another who had given the principal part of what he had to his daughter. These letters were written some months after the divorce decree had been rendered, and were admitted in evidence on the theory, as stated by appellee’s counsel,'that they tended to show that appellant was a “gold digger.”
Appellant denied that she had neglected appellee and stated that only on two occasions had she been absent from home, and-both times on business and that her husband knew when she went and why she was gone. She "made both trips with a lady friend who was engaged in selling commercial advertising and that her first trip, lasting about a week, was extended to enable’ her to go to Missouri to see about a house she owned there. The second trip of somewhat longer duration, was made with the same lady, and on this trip they went to Hot Springs where appellant sought to perfect her discharge from service as a WAC, in which she had enlisted at the beginning of the war. She testified that she had made appel lee a dutiful wife, aud she and her mother testified to numerous acts of unrequired attention which appellant performed consisting largely of the preparation of certain foods of which appellee was fond. She denied that she sought a divorce or wanted one, or that she inveigled appellee into marrying her, hut that to the contrary, she declined his offer of marriage more than once on account of the disparity in their ages, and consented only when members of appellee’s family urged her to marry him, a statement which was not denied, and when she agreed to marry appellee they signed the marriage contract under which she agreed to accept much less than the value of her dower interest would have been had she married and survived appellee.
Appellant denied ever having told anyone that she did not love appellee and had married him only for his money, and she testified that she had no thought of divorce until appellee’s son came to see her and told her that his father wanted a divorce. She testified that appellee ’s son brought ’this news to her by saying: “I have come here to lay my cards on the table and make a settlement with you, but first I want you to know that dad is .broke,” and appellant said, “That is strange. He did have plenty. Have you spent it?”, and he said, “No,” and appellant told him of various interests he had, but he said, “I know he had that but it is gone.” Appellant said, “I am glad you talked to me about it because you would always think I got it, and I would think you got it, ’ ’ and he said, “We have to get together on this,” and said, “Pa doesn’t have anything”; and he says, “You didn’t love him. ’ ’ - He said, ‘ ‘ He loved you, but you just married him for money, but I don’t blame you. After all, it was a business proposition on your side of it.”- “And I never said a word.”
Appellant consented that appellee might have a divorce, if he wished one, although she did not want a divorce, and the matter thereafter appears to have been referred to the respective attorneys of the parties. Appellant’s attorney wrote appellee’s son a letter in which he stated that appellee had left certain clothing at appellant’s home which would be sent to him, and requested that certain personal effects belonging to appellant which had been left in the Fort Smith home be sent to her. In the same connection it was stated in the letter from appellant’s attorney to appellee’s son:
“To keep matters on a purely business basis she advises that so long as you wish to use the home there it is agreeable to her, without any claim by her for rental; but if your plans are not to occupy the place, and it appears inore desirable to rent it, that sole handling of the .property would be left to you, but that she would, of course, expect to receive half of the rentals. ’ ’
■ Suit for divorce was filed by appellee and by agreement was not contested, and the divorce decree recites that a property settlement had been effected. This agreement effecting a property settlement was offered in evidence by appellee’s son and when asked where he had obtained it, answered, “If my memory serves me right, from the hands of his (appellee’s) attorney.” Appellee’s son testified that he read the property settlement agreement to his father and that “I explained to him that it was the property settlement, that the money he had given Queen (appellant) and those other things in the way of rings and stuff like that was to be hers and the car was to be hers and in addition to that he was to pay her $3,500 and for that she was releasing-,” the sentence was not completed, but other testimony of witness would have completed the sentence by saying that she released all claim to any other part of the property. He testified that he did not know his father had executed the deeds hereinbefore referred to relating to the home. Confirmation of the deeds here in question was not recited in this instrument and witness testified that the instrument was understood to confirm the gift appellee had made appellant including the money he had'given her when she sold her old home in Eureka Springs and had bought another and in addition the car and the $3,500 for which the original marriage settlement had provided.
Appellee testified that his physical condition was such that he did not understand the property settlement except as it was explained to him by his son, but what ever tlie facts may be as to the understanding of the parties as to the purport and effect of the property settlement, it formed the basis of the divorce decree in that respect and it is certain that the decree did not undertake to divest appellant’s title to the interest in the homestead and it was necessary to institute this suit because it did not.
We have recited much of the testimony because we are not in accord with the opinion of the learned Chancellor as to his findings of fact that the deed to the interest in the homestead had been obtained by fraud and undue influence. Based upon that finding the court below held that the opinion of this court in the case of Harbour v. Harbour, 103 Ark. 273, 146 S. W. 867, controlled and the relief prayed was granted. There are controlling-points of difference which make the instant case more similar to that of Biddle v. Biddle, 206 Ark. 623, 177 S. W. 2d 32.
Appellee has not been denuded of substantially all his property or a major part thereof. In fact, except for the interest in the homestead and the advance to enable appellant to buy her new home in Eureka Springs, in which they were living when appellee was carried to the hospital, appellant has gotten only about what she would have obtained under the marriage contract, had she survived appellee. We do not find that appellant was entirely free from guile. There is usually but little romance in the marriage of an old man needing a nurse, and a woman much younger wanting a home. It is true that the Harbour case and other cases hold that notwithstanding a previous divorce decree may have failed to adjudicate the question of fraud that question may be adjudicated in subsequent litigation, yet it is always required that fraud be shown. It was said in the Biddle case, supra:
“The record here wholly fails to present clear and convincing evidence of a fraudulent plan or scheme on the part of appellant to obtain the property of the appellee through a simulation of an affection for him which she did not feel. The very most that could be said in this regard is that some of the facts disclosed by the record induce a suspicion that appellant’s attitude toward appellee was prompted by motives which were not entirely free from guile. Such evidence is not sufficient to support a finding of fraud, . . . ”
There is no showing of any plan or purpose on appellant’s part to obtain appellee’s property or any considerable part thereof, and then to divorce him. On the contrary appellant did not seek the divorce and the uncontradicted testimony shows that she was opposed to it. Appellee’s son, who appears to have been in charge of the divorce, was advised in writing that appellant saw no reason for a divorce, and did not want the divorce, and the testimony refutes the contention that any undue influence was exerted to procure the execution of the deeds which have been cancelled. Appellant admits that she asked appellee if he did not think it would be right for him to give her something that would be a home, but she testified that she did not insist that this be done. In fact, when the deeds were executed giving her an interest in the homestead, that interest was not given her in severalty but as a tenant by the entirety, and it was shown and not disputed that she consented that appellee might occupy the home without paying rent, but it was stipulated in the letter above quoted from that if he did not occupy the home, but rented it, that she should have one-half the rent. There was but little, if any guile in this demand.
Appellee professes to have been unaware that he was deeding an interest in his home and that he had no such intention, but his own testimony refutes this contention. He testified as follows : £ ‘ Q. You would not have thought of deeding that home away, I take it? A. Why — Deed my home away? — Of course not. Q. As a matter of fact, your wife never asked you to do that? A. Well, she talked about it. Q. You had discussed it? A. I think so. Some— not a great deal. Q. What was your attitude in talking to her about it? A. I don’t know, Judge. — I don’t know. Q. You don’t know what you may have said? A. No.”
Yet appellee took his wife to a scrivener of his own selection, unknown to his wife, but known to Mm, and had the deeds executed, and after they had been executed and recorded lie kept them in "his own possession, locked in a safe.
We think the proof fails to show by “a preponderance of the evidence which is clear and convincing” which the Biddle case held the law requires, that a fraud had been practiced upon appellee in procuring the execution of the deeds. It was said that the same degree of proof was required to cancel an instrument duly executed and recorded in the later case of Barnett v. Morris, 207 Ark. 761, 182 S. W. 2d 765; Eaton v. Humphreys, 209 Ark. 525, 190 S. W. 2d 973; McHenry v. McHenry, 209 Ark. 977, 193 S. W. 2d 321.
The decree of the court below will therefore be reversed and the cause remanded with directions to vacate the decree from which is this appeal and to dismiss the complaint. | [
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Smith, J.
Appellant was found guilty of voluntary manslaughter on his trial under an information charging him with the crime of murder in the first degree, alleged to have been committed by killing one W. J. Jett. It was alleged that appellant had killed Jett “by then and there striking and beating the said W. J. Jett on the head with some blunt instrument, to the Prosecuting Attorney unknown.”
A petition for change of venue was filed, properly supported by the affidavits required by the statute. There were six of these affiants, four of whom were summoned and appeared before the court for examination, a practice approved in numerous eases. A prima facie showing was made requiring that the venue be changed, but a number of other witnesses were called who expressed the opinion that no such prejudice existed against appellant as would prevent him from obtaining a fair and impartial trial in the county in which he had been informed against.
Prior to the adoption at the 1936 General Election of Initiated Act No. 3, entitled, “An Act to Amend, Modify and Improve Judicial Procedure and the Criminal Laws, and for other Purposes,” it would have been improper for the court to have heard other testimony as to the truth of the statements of the affiants supporting the petition for a change of venue. The court could have inquired only into the question of the credibility of the affiants. For that purpose, they could be summoned into court and examined as to the extent and source of their information upon which their opinions were based, and independent testimony might also have been heard as to the credibility of the affiants, all for the purpose only of determining the question of the credibility of the affiants, and unless it was found as a result of this examination, or independent testimony that the affiants were not credible the court was without discretion in ordering the venue changed, and would have been required to make that order.
This Initiated Act No. 3 (Acts 1937 p. 1384) made many changes in criminal procedure and the portion thereof relevant here appears as § 3918 of Pope’s Digest, and reads as follows: “The application of the defendant for such order .of removal shall be by petition setting forth the facts on account of which the removal is requested; and the truth of the allegations in such petition shall be supported by the affidavits of two credible persons who are qualified electors, actual residents of the county and not related to the defendant in any way. Reasonable notice of the application shall be given to the attorney for the State. The court shall hear the application and, after considering the facts set forth in the petition and the affidavits accompanying it and any other affidavits or counter affidavits that may be filed after hearing any witnesses produced by either party, shall either grant or refuse the petition according to the truth of the facts alleged in it and established by the evidence. ’ ’
This act was passed pursuant to the authority of § 10 of Art. 2 of the Constitution which provides that “the venue (of criminal actions) may ,be changed to any other county of the judicial district in which the indictment is found, upon the application of the accused, in such manner as now is, or may be, prescribed by law.”
So, therefore, the jurisdiction of trial courts has been enlarged to permit an inquiry which before the adoption of the Initiated Act No. 3 was not permissible. Pursuant to this enlarged authority the court heard the testimony of other witnesses besides that of the supporting affiants and announced the conclusion that appellant could obtain a fair trial in that jurisdiction. We may therefore review only the exercise of the judicial discretion vested in the court and in view of the conflicts in the testimony, we are unable to say that any abuse of this discretion was shown. It follows from these views that the opinion in the case of Bailey v. State, 204 Ark. 376, 163 S. W. 2d 141, is approved, while the opinion in the case of Fancher v. State, 205 Ark. 1085, 172 S. W. 2d 680, is, so far as it conflicts with this opinion, disapproved.
The deceased Jett had been beaten to death as alleged in the information, by a blunt instrument, very probably the barrel of a gun found near the body of the deceased, and the testimony supports the finding that appellant was the user of this weapon, indeed this appears not be questioned. Defendant did not admit or deny that he had employed the weapon, but testified that he had no recollection or knowledge whatever of the killing, and he interposed the defense of not guilty by reason of insanity. The trial .court brushed this defense aside and refused to submit it to the jury as will presently appear.
There was no testimony of any existing ill will between deceased, and appellant, although there was testi mony that they had a quarrel over some trifling matter in 1942, but it appears that this had been forgiven and forgotten by both deceased and appellant.
Appellant was addicted to the excessive use of intoxicants and it was shown that when he drank at all, he drank excessively. He testified that to enable him to control this habit he had voluntarily enlisted in the army and that he had served in the armed forces for a period of 20 months, of which 14 were spent in overseas service. The testimony on the part of the state as elicited from appellant’s cross-examination was that he had enlisted to terminate a criminal procedure for an act of violence probably committed while under the influence of liquor.
Appellant went to the home of the deceased to employ him in harvesting a crop of rice, and when he arrived at deceased’s home he found a drunken party assembled. Appellant first refused to drink, but through the insistence of deceased’s wife he began to drink and soon became very drunk. Evidently deceased and appellant led in the drunken arguments, and all the party finally left except deceased and appellant. No one wit-' nessed the killing, but a woman referred to as deceased’s wife, testified that she saw appellant trying to awaken deceased, by pommelling his head against the floor. But this evidently was not the cause of death. As appellant tried to arouse deceased he was saying, “Get up, we are in Europe and must fight.” The testimony of this woman was somewhat incoherent and full of palpable contradictions. Deceased had divorced her, as shown by court records, yet she denied the divorce and was living in illegal cohabitation with Jett. She denied that she drank at all, or that she was drunk when all the persons present testified that she not only drank, but was drunk. Nevertheless, the weight to be given her testimony was a question for the jury and its effect is that appellant must have killed deceased as no one else was present who could have done so.
Mrs. Jett went to the home of one Kennedy, a neighbor, to report the trouble she had seen. When Kennedy went to Jett’s home he found the deceased on the floor, and defendant asleep on the bed a few feet away, with a single barrel shot gun between them. When Kennedy aroused appellant he found that he had no recollection of what had happened and did not kno'w' that Jett had been attacked or was dead. The witness went for a doctor, although Jett was dead, and he reported what he had seen to the sheriff, and when he returned appellant had gone home. Appellant did not know how he got home, and it was testified that he fell off his horse when he mounted it. The sheriff went to appellant’s home where he found him groggy and asleep. The doctor who accompanied the sheriff to Jett’s home testified that the wounds on Jett’s head indicated that he had been beaten to death. Another witness who had accompanied the witness to Jett’s house testified that Jett was on the floor, very bloody, and that appellant was on the bed asleep, unconscious, and that he took no notice whatever of anyone around.
A Dr. Davis was called to testify as an expert to answer a hypothetical question as to appellant’s sanity, based on the facts above recited, but the court declined to permit the witness to answer the question.
At the conclusion of the testimony, the court gave the instructions usually given in homicide cases, but he refused to give any instruction on the question of insanity. Error is assigned in the refusal of the court to permit the doctor to answer the hypothetical question, and also in the refusal to charge the jury as to the insanity of the appellant being a defense to the crime.
Both these objections would be well taken if there had been testimony tending to show that appellant was insane. There was no contention however, that appellant was an insane man. The contention is that he became so drunk that he did not know what he did and that he was not aware that he was doing wrong. Here the testi-mony is that appellant voluntarily became drunk, although he testified that he was induced to drink by the persuasion of Mrs. Jett and the conviviality of the crowd he found in Jett’s home, and before he got sober he had beaten Jett to death, a fact of which he was wholly unaware until so advised.
The opinion in the case of Byrd v. State, 76 Ark. 286, 88 S. W. 974, written by Judge Riddick in his lucid style, covers this case so fully that we quote from it rather extensively. There as here the presiding judge refused to permit witnesses who saw the killing to express the opinion that the accused was insane. In holding that no error was committed in excluding this testimony, it was there said:
“But if we assume that these witnesses would have answered that the defendant was insane, this testimony would have shown nothing more than that the use of intoxicating liquor had a very bad effect on the defendant, and that they produced in him a species of temporary insanity; but this kind of insanity is ordinarily no excuse for crime.
“In this case the fact that the defendant was intoxicated at the time he assaulted Burnsides may have raised in the minds of the jury a reasonable doubt as to whether there was a specific intent to kill, and led them to reduce the crime to murder in the second degree. But no specific intent to kill is necessary to constitute the crime of murder in the second degree, under our statute, and the law is that ‘the intention to drink may fully supply the place of malice aforethought;’ so that, if one voluntarily becomes too drunk to know what he is about, and then without provocation assaults and beats another to death, he commits murder the same as if he was sober. 1 Bishop, New Crim. Law, § 401.
“Now, in this case defendant was not at the time of the killing laboring under delirium tremens or other form of more or less fixed insanity caused by continued intoxication. The insanity that he was laboring under, if any, was the immediate result of the intoxicating liquor he drank on the day of the homicide. In other words, he was simply drunk from effects of liquor which he had voluntarily taken. While in that condition, he met this infirm old man, towards whom it seems that he entertained some grudge on account of & suspicion that the old man had instigated a prosecution against him, and, with passions inflamed and excited by the drink he had taken, he assaulted him and beat him into unconsciousness without any provocation whatever. It is no doubt true that if he had been sober this deed would not have been done. While his passions were inflamed by drink, his subsequent conduct showed that defendant was not so drunk that he did not know what he was doing-. The fact that a few minutes afterwards he told his wife what he had done, and made preparations to escape, and did elude the officers for several days, shows that he at once appreciated the gravity of the crime he had committed. But, if we concede that he was insane, it was not delirium tremens, but only his ordinary condition when drunk. He voluntarily drank the whiskey, and became drunk. The books are full of cases holding that such insanity, which is only another word for drunkenness is no excuse for crime. Casat v. State, 40 Ark. 511; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162. ”
Appellaht was not found guilty of murder either in the first or second degree, but only of voluntary manslaughter, and no specific intent is required to commit that crime. We hold, therefore," upon the authority of the Byrd case, supra, and.of later cases which approved it that no error was committed in refusing to submit the question of appellant’s insanity to the jury. See, also, High v. State, 197 Ark. 681, 120 S. W. 2d 24; Ballentine v. State, 198 Ark. 1037, 132 S. W. 2d 384; Alford v. State, 110 Ark. 300, 161 S. W. 497; Carty v. State, 135 Ark. 169, 204 S. W. 207. See, also, § 2931, Pope’s Digest.
Certain other exceptions were saved: and argued, but we think no discussion of them is required, and as no error appears the judgment must be affirmed, and it is so ordered. | [
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Minor W. Millwee, Justice.
Henry Brown liad been employed by appellant, Blankinship Logging Co., as a log cutter for about eight years on October -18, 1946, when he was killed in the wreck of a truck belonging to the company. Appellee, Bertha Mae Brown, is the widow of Henry Brown and filed a claim with the Workmen’s Compensation Commission on behalf of herself and their six minor children. The logging company is owned and operated by G-. R. Blankinship and will hereinafter be referred to as “Blankinship.”
The claim was resisted by Blankinship and the insurance carrier and, after a hearing before Commissioner Riffel at Warren, Arkansas, appellee was awarded the maximum benefits under the compensation law on February 21, 1947. At the request of the employer and insurance carrier additional evidence was presented at a hearing before the full commission which resulted in the same award as made by Commissioner Riffel. On appeal to the circuit • court the award was affirmed and appellee was allowed interest thereon at the rate of 6% from May 19, 1947, the date of the award by the full 'commission.
Appellant’s principal contention for reversal of the judgment is that the death of Henry Brown did not arise “out of and in the course of employment” as required by our Workmen’s Compensation Law (*§ 2(f) of Act 319 of 1939). In determining whether there was substantial evidence to support the findings of the commission on this issue, we must view the facts in the light most favorable to support the award. J. L. Williams & Sons, Inc. v. Smith, 205 Ark. 604, 170 S. W. 2d 82; Elm Springs Canning Co. v. Sullins, 207 Ark. 257, 180 S. W. 2d 113.
We summarize the facts as follows: About two months prior to Brown’s death Blankinship began a logging operation about 14 miles from Crossett, Arkansas, which is located about 60 miles south of Warren, Arkansas. Blankinship’s place of business was located at Warren where most of the logging crew resided. Blankinship furnished a truck which was used in transporting the crew to Crossett on Sunday evenings. The crew remained in Crossett during the work week and the truck was used in transporting the crew to and from the log woods. On Friday evening the crew returned to Warren in the same truck. Tyree Crane, a saw filer, drove the truck until about three weeks prior to the death of Henry Brown. Crane lived about 10 miles north of Warren and kept the truck at his home from Friday night until Sunday night each week.
When Tyree Crane signified his intention to quit work, Joe Woodward was employed in his place as saw filer. Woodward lived at Fordyce, Arkansas, about 30 miles northwest- of Warren. After Tyree Crane terminated his employment, Henry Brown started driving the truck daily between Crossett and the log woods and on the week-end trips to Warren. At that time'all members of the crew except Woodward and Mack Crane lived at Warren. On Friday night following Woodward’s employment Brown drove the truck to Warren and employees living there were let out near their homes. Brown then proceeded to Fordyce where he delivered Woodward to his home and returned to Warren where the truck was kept over the week-end. On the following Sunday Brown drove to Fordyce for Woodward, and other members of the crew boarded the truck at Warren and the truck proceeded to Crossett. The same procedure was followed the following week except that Mack Crane was picked up near his home several miles north of Warren and on the highway between Warren and Fordyce.
On Friday, October 18, 1946, the crew arrived in Warren from Crossett about 9 p. m. with Henry Brown driving the truck. All of the crew except Woodward, Mack Crane and Tom Cook, Brown’s neighbor, left the truck near their homes in Warren. Brown stopped at his home for a few minutes and then drove to Fordyce where Woodward was delivered to his home shortly before midnight. The truck was then driven back toward Warren until it reached New Edinburg where it turned east to the Crane community and Mack Crane was let out of the truck. Brown and Tom Cook proceeded toward Warren and the truck became involved in a wreck resulting in the death of both men.
Joe Woodward testified that when G. R. Blankinship hired him'he was told to report to James Henderson, the woods foreman. He boarded the truck at Warren on Sunday evening and talked to Henderson the next morning. Henderson agreed to furnish transportation to Woodward to and from his home at Fordyce. James Henderson denied making this agreement, but testified that he knew that Brown was using the truck in transporting Woodward to Fordyce and that he had not instructed him to do otherwise. 'Blankinship knew that Brow’ll was driving the truck in the. place of Tyree Crane, but denied any knowledge of the use of the truck for transportation of crew members beyond Warren. He also testified- that it was the general practice to furnish transportation to the members of the logging crew; and that if he had known about the trips to Fordyce, he would have let the arrangement stand. None of the employees paid anything for transportation to and from work, and Blankinship paid fuel and other operating expenses of the truck while Brown was driving it.
There was some evidence that Brown and other crew members were drinking on the night Brown was killed, but appellants concede that the testimony is insufficient to defeat the claim for compensation on account of drunkenness.
Appellant relies on the general rule to the effect that injuries sustained by employees going to and returning from the regular place of employment are not deemed to arise out of and in the course of the employment. The authorities generally recognize several exceptions to the general rule. One of these exceptions, which is as well established as the rule itself, is stated by the Washington Court in the case of Venho v. Ostrander Railway & Timber Co., 185 Wash. 138, 52 P. 2d 12-67, 1268, as follows: “When a workman is so injured, while being transported in a vehicle furnished by his employer as an incident of the employment, he is within ‘the course of his employment,’ as contemplated by the act. In other words, when the vehicle is supplied by the employer for the mutual benefit of himself and the workman to facilitate the progress of the work, the employment begins when the workman enters the vehicle and ends when he leaves it on the termination of his labor.
“This exception to the rule may arise either as the result of custom or contract, express or implied. It may be implied from the nature and circumstances of the employment and the custom of the employer to furnish transportation.” Many cases are cited by the Washington Court in support of this exception to the “coming and going ’ ’ rule. Other cases are compiled in 145 A. L. R. 1033. See, also, “Current Trends in Workmen’s Compensation” by Harovitz, pages 677-8.
Appellant relies on the case of Liberty Mutual Ins. Co. v. Cardillo, 154 Fed. 2d 529. That case arose under the District of Columbia’s Workmen’s Compensation Act. Employees living in the District of Columbia were working at Quantico, Virginia. The employer paid travel costs to and from the place of employment and allowed employees to select their own method of transportation. Several employees formed a car pool and alternated in the use of their cars. The Deputy Commissioner found that the death of an employee while driving his automobile homeward with other employees after terminating a day’s work arose out of and in the course of employment even though the employee was not being paid wages at the time. This holding was reversed by the Circuit Court of Appeals for the District of Columbia in the case relied on by appellant. However, on review by the Supreme Court of the United States in Cardillo v. Liberty Mut. Ins. Co., 330 U. S. 469, 67 S. Ct. 801, the circuit court of appeals was reversed and the decision of the Deputy Commissioner was sustained. In reversing the case the court said:
“There are no rigid legal principles to guide the Deputy Commissioner in determining whether the employer contracted to and did furnish transportation to and from work. ‘No exact formula can be laid down which will automatically solve every case.’ Cudahy Packing Co. of Nebraska v. Paramore, 263 U. S. 418, 424, 44 S. Ct. 153, 154, 68 L. Ed. 366, 30 A. L. R. 532; Voehl v. Indemnity Ins. Co., 288 U. S. at page 169, 53 S. Ct. at page 382, 77 L. Ed. 676, 87 A. L. R. 245. Each employment relationship must be perused to discover whether the employer, by express agreement or by a course of dealing,- contracted to and did furnish this type of transportation. For that reason it was error for the Court of Appeals in this case to emphasize that the employer must have control over the acts and movements of the employee during the transportation before it can be said that an injury arose out of and in the course of employment. The presence or absence of control is certainly a factor to be considered. But it is not decisive. An employer may in fact furnish transportation for his employees without actually controlling them during the course of the journey or at the time and place where the injury occurs. Ward v. Cardillo (135 F. 2d 260, 77 U. S. App., D. C. 343). And in situations where the journey is in other respects incidental to the employment, the absence of control by the employer has not been held to preclude a finding that an injury arose out of and in the course of employment. See Cudahy Packing Co. of Nebraska v. Parramore, supra; Voehl v. Indemnity Ins. Co., supra.”
The case of Hunter v. Summerville, 205 Ark. 463, 169 S. W. 2d 579, involved facts somewhat similar to those in the instant case. There the timber contractor acquiesced in the custom of employees riding to and from the log woods on trucks of a subcontractor whose compensation insurance was paid by the contractor. An employee was injured while riding home from work on the subcontractor’s truck. In affirming an award of compensation by the commission this court said: “In view of the fact that the evidence in this case established that transportation to and from his work was a prerequisite to the appellee’s engaging in the timber cutting, and that there was an implied undertaking by the employer to furnish this transportation, as well as a tacit acquiescence on the part of the employer in the custom of Ms workmen riding on Ms sub-contractor’s truck when it was convenient to do so, we concMde that tbe circuit court did not err in sustaining tbe award made by tbe commission in favor of tbe appellee.”
We are of the opinion that there is substantial evidence to support the conclusion of the Commission that the death of Henry Brown arose .out of and occurred in the course of his employment. The evidence viewed in the light most favorable to support the award is sufficient to establish an implied, if not an express, agreement of the employer to furnish transportation to the employee, Woodward, to and from Fordyce, Arkansas. If Woodward’s testimony is credited there was an express contract of transportation to and from his home. It is undisputed that Brown was pursuing a well established custom of Blankinship in transporting the employees from the work site to their homes with the knowledge and acquiescence of the foreman- of the logging-crew, and the circuit court did not err in affirming the action of the Commission in so holding.
It is next insisted that the circuit court erred in allowing interest at 6% on the award from May 19,1947, the date of the award by the full Commission. Appellants have not abstracted their motion for new trial, but, according to the abstract furnished by appellee, this alleged error was not assigned in appellants’ motion for new trial in the circuit court and may not be raised for the first time here. Tinsman Mfg. Co., Inc. v. Sparks, 211 Ark. 554, 201 S. W. 2d 573.
On the date of the hearing of the appeal in the circuit court appellants filed a motion to remand the case to the Commission for further hearing on the ground of newly discovered evidence. The matter which appellants set out in their motion tends to impeach the witness Joe Woodward upon testimony which appellants should, by the exercise of reasonable diligence, have discovered and produced at one of the former hearings. This motion was overruled by the trial court and his action in so doing was not assigned as error in the motion for new trial. When the transcript was filed in this court on appeal, appellants refiled the same motion here. Having failed to preserve the alleged error of the trial court in overruling their motion to remand in their motion for new trial filed in the circuit court, appellants have waived the right to urge it here. This omission may not be cured bjr refiling the same motion to remand in this court.
' The judgment of the circuit court is correct and is, therefore, affirmed. | [
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Minor W. Millwee, Justice.
Appellant was charged by information filed by the prosecuting attorney with the crimes of rape and incest, alleged to have been committed by having sexual intercourse1 with his 15-year-old daughter forcibly and against her will. He was convicted of rape and his punishment fixed by the jury at life imprisonment- in the penitentiary.
The'first three assignments of error alleged in the motion for a new trial challenge the sufficiency of the evidence to support the verdict. The State’s principal reliance for conviction is based on the testimony of the prosecuting witness, the daughter of appellant, who testified that her mother died five years prior to the trial, which was held on May 26th and 27th, 1947. She testified positively that appellant, on several occasions prior to Christmas in 1946, forced her to leave her bed, where she slept with two sisters, and go to his bedroom where he had sexual intercourse with her forcibly and against her will; that he threatened to kill her if she exposed him; and that she was expecting the birth of a child in July and appellant was the father of the child. She also testified that she wanted to go to a doctor, but appellant would not permit her to do so unless he went along; that she did not know what was wrong with her lintil appellant took her to the doctor in February, 1947. Appellant gave her some quinine capsules to take prior to the visit to the doctor. There was some corroboration of the testimony of the prosecuting witness by her 13-year-old sister and 19-year-old brother.
On cross-examination the prosecuting witness testified that she went to the picture show on two occasions with Charlie Cross, hut that they were accompanied each time by her sisters and other relatives, who were named by the witness. Each occasion occurred more than a year prior to the trial and she had not since these occasions, been with the Cross hoy. She denied telling several parties named by the appellant that she did not know who was the father of her expected child, and none of the parties named were called'as witnesses to impeach this testimony. She also- denied that she conspired with an older brother, who had returned from military service, to “get rid” of her father.
Appellant denied the charges of misconduct made by his daughter and testified that she told him she had been to a doctor twice prior to the examination in February, 1947, and that the doctor told her there was nothing wrong with her. The prosecuting witness threatened to get even with him when he punished her for going out with boys at night. He also testified that his oldest son objected because he refused to permit the prosecuting witness to attend parties and dances.
The guilt or innocence of appellant of the .charge of rape was a question for the jury to determine under conflicting testimony. Viewed in the light most favorable to-the state, the evidence is sufficient to sustain the verdict.
The principal contention for reversal of the judgment is that the trial court abused its discretion in refusing to grant appellant’s motion for a continuance of the case. Information was filed against appellant on February 22,1947, and the case set for trial for April 14, 1947. At appellant’s request a subpoena was issued for several witnesses including one Opal Croslin. The sheriff was unable to obtain service on this witness and filed the subpoena with the cleric on April 12,1947, after indicating on the face of the writ that Opal Croslin was “out of town.” The return on the back of the subpoena showing service on “the within named” was not signed by the sheriff. When the case was called for trial on April 14, 1947, Opal Croslin was not present. The case was continued to May 26, 1947, on oral motion of appellant and all witnesses present were ordered by the court to appear on that date. Appellant made no inquiry about service of the subpoena on Opal Croslin and her absence was not called to the attention of the court when other witnesses were recognized to appear on May 26th.
When the case was called for trial on May 26, 1947, appellant filed a written motion for continuance because of the absence of Opal Croslin: The motion alleged that, if said witness were present, she would testify that shortly before' appellant was arrested she talked to the prosecuting witness who told her: “that if something didn’t show up this month that she would have to marry Charlie Cross, that her Daddy was catching on; that he had been suspicious for some time and had been threatening to have her examined and that he is insisting on it so strongly that I am going to have to go and be examined.”
While the motion was being considered by the court on May 26, 1947, another subpoena was issued for Opal Croslin and the sheriff of Saline county was informed by officers in White county that the witness was at Bald Knob, Arkansas. The White county officers were directed to bring the witness to Jacksonville in Pulaski county, where they would be met by the Saline county sheriff and the witness returned to Benton to testify in the case. At this point the court ordered the trial to proceed. A jury was selected and opening statements of counsel for the state and defense were made.
When court was resumed on May 27, appellant renewed the motion and further testimony was heard. The sheriff testified that when he arrived at Jacksonville to return the witness, he learned that she had left Bald Knob for Newport in Jackson county before she could be apprehended by the White county officers. Officers at Newport had been unable to locate the witness.
Counsel for appellant testified that when the case was first called for trial on April 14, he looked at the subpoena filed by the sheriff, but assumed that Opal Croslin was present, having been informed by her brother and others that all witnesses were present. Belying on this information, and the notation on the back of the subpoena, he thought she had been recognized to appear on May 26, with the other witnesses. He talked with other witnesses on May 25, but had never talked with Opal Croslin, and made no inquiry about her at the time he talked with the other witnesses. He talked with Mamie Croslin, the mother-in-law of Opal, and she did not inform counsel that her daughter-in-law was absent from Benton.
^ The sheriff testified that Mamie Croslin told him that Opal Croslin was out of town when he was trying to serve her with the subpoena prior to April 14. Mamie Croslin also gave him the information that Opal was in Bald Knob on May 26.
There was also testimony that Opal Croslin lived with her family in a trailer and moved about from place to place. One witness testified that he lived near Opal Croslin at Benton and had not seen her for five or six weeks prior to May 26.
After hearing testimony on the motion for continuance, the following occurred: “The Court: After due consideration of the motion for continuance and also-the amendment to the motion and after hearing the testimony before the court, the court is of the opinion that due diligence hasn’t been exercised as shown on the part of the defendants in securing the witness Opal Croslin, and since the case was called yesterday and set for yesterday and proceedings have been had to the extent a jury has been selected and opening statements have been made by both the State and defendant attorneys, the court feels that he should' proceed with the case and the motion for continuance is overruled.
“Mr. McDaniel: Exception^ to the court overruling the motion. Objections for the reason that it was distinctly understood yesterday when we proceeded with the trial of the case upon the condition this witness would be produced and the court said that we would proceed with that understanding.
“The Court: In answer to that the court agreed to that rather than to overrule the motion for continuance with an effort to try to get the witness, but I do not think the court would be justified in continuing the case on the grounds as stated in the motion set forth by the defendant in this case. Objection overruled.”
We have repeatedly held that motions for a continuance are addressed to the sound discretion of the trial court, and that there must be an arbitrary and capricious exercise of such discretion to warrant a reversal on account of the denial of such motion. Miller v. State, 94 Ark. 538, 128 S. W. 353; Morris v. State, 103 Ark. 352, 147 S. W. 74; Wilson v. State, 188 Ark. 846, 68 S. W. 2d 100.
Conceding, without deciding, that due diligence was exercised by appellant to obtain the testimony which the motion alleges Opal Croslin would give, if present, the trial court did not commit prejudicial error in refusing to grant the continuance. The statement attributed to the prosecuting witness in the motion would have been competent testimony to impeach her by showing that she had made statements different from her testimony at the trial. Before the impeaching testimony could be offered 'and become admissible it was incumbent upon appellant to lay the proper foundation for its introduction by inquiring of the prosecuting witness concerning the contradictory statement. Pope’s Digest, § 5198. Although the prosecuting witness was questioned about other contradictory statements allegedly made to other parties, she was not asked whether she had a conversation with Opal Croslin in which the statement set out in the motion for continuance was made. Since appellant did not lay the foundation for introduction of the impeaching testimony, he is not in position to claim that he is prejudiced by the trial court’s refusal to grant a continuance on account of the absence of Opal Croslin. Harper v. State, 79 Ark. 594, 96 S. W. 1003.
Appellant also insists that the court erred in admitting the testimony of a 19-year-old brother of the prose-' cuting witness when he was asked to tell what he knew, about the case, and gave the following answer: “I had an idea it was going on for two or three times, whenever I go in home from town I could see the lights would be off and I could hear somebody run around the floor out of her room and one night I didn’t know where I had went to bed and-1 had went to sleep and Dad was over there setting in the front room and I heard him call [the name of the prosecuting witness] to come here and T never did hear her answer. ” Appellant did not object to the answer at the time it was given. After the witness had testified further and was excused, appellant objected to the above testimony.' It is insisted that the entire answer of the witness was incompetent because the reasons given by him for reaching the conclusion that something “was going on” were insufficient to form a basis of a suspicion. We cannot agree that the answer was incompetent. The witness stated facts upon which he based his conclusion that something was going on between his father and the prosecuting witness. It was proper for the jury to consider these facts. Had a timely objection been made to that part of the answer which stated a con-, elusion on the part of the witness, the court would doubtless have stricken that part of his answer.
Appellant made general objections to all instructions given at the request of the State, and objected to the court’s refusal to give certain instructions requested by him. We have carefully examined these instructions and find that the court fully and correctly declared the applicable law, and that the matters set out in the instructions refused were fully covered in those given.
We find no prejudicial error and the judgment is affirmed. | [
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Minor. W. Mill wee, Justice.
The defendant was charged by information with the crime of involuntary manslaughter in the striking and killing of Bobby Wheeler with a motor truck, which was allegedly being recklessly and illegally operated by defendant while under the influence of intoxicating liquor. A jury found defendant guilty and fixed his punishment at 18 months in the penitentiary.
It is earnestly insisted that the evidence is legally insufficient to support' the verdict and that the trial court, therefore, erred in refusing to direct a verdict of not guilty at defendant’s request.
It appears from the testimony that defendant was driving his brother’s 1%-ton truck toward Earle, Ar-’ kansas, on the afternoon of August 21, 1947, when it struck or sideswiped a bicycle being ridden by Bobby Wheeler and Charles Barrett, 15 and 14 years of age, respectively. Bobby Wheeler was operating the bicycle and the other boy was riding on the bar that extends from the seat to that part of the frame which supports the handlebars. The collision occurred on Highway 64 about iy2 miles west of Earle, Arkansas, where the road is straight. The paved surface of the road is approximately 25 feet wide with a gravel shoulder on each side about 3y2 feet wide.
Thurman McCay, who lives at Marion, Arkansas, testified that he was driving to Earle about 4:30 p. m. when he passed the truck being driven by defendant in the same direction. He observed the boys traveling-on the bicycle toward Earle in front of defendant’s truck. After passing the bicycle, he looked in his rearview mir ror and. saw the truck driven hy defendant continue toward the bicycle which was traveling on the right edge of the blacktop pavement and saw one of the boys go up in the air. Defendant’s truck passed McCay about 200 yards beyond the place of the collision as the latter stopped to return to the scene. On reaching the scene of the collision, he saw that the Wheeler boy was seriously injured and left a companion with the two boys while he drove to Earle to call an ambulance.
He overtook defendant’s truck and blocked the entrance to a side road that defendant was-about to enter near the schoolhouse at Earle. He told defendant that he had better stop his truck; that he had hit two boys and that he (McCay) thought defendant had killed one of them. Defendant replied, “What boys? I didn’t see any boys.” McCay then drove into Earle where he called an ambulance and, on returning to the scene of the accident, observed defendant’s truck parked in front of the schoolhouse. Defendant did not go to the scene of the collision, but remained in the truck. Several per-, sons who had gathered nearby testified that defendant sat in the truck “with his head down,” or that he was “bent over,” or “slumped over,” in the truck.
Two officers, who arrived while defendant was still seated in his truck, testified that they detected the odor of alcohol on defendant’s breath. When asked what he had been drinking, defendant replied that he “had a couple of bottles of beer back at Earle awhile ago.” The officers detailed other conversations had with the defendant while he was being taken to jail at Marion, and concluded that he was under the influence of intoxicating liquor. Defendant did not have a driver’s license. The truck was turned over to defendant’s brother who was taking a vocational agricultural course for veterans at the Earle school.
Charles Barrett testified that the bicycle was traveling straight down the right edge of the road about 1 or iy2 feet off the blacktop pavement when it was struck from the rear, and that there was no wobbling of the bicycle at the time of the collision.. The bed on defendant’s truck was wider than the cab and there was a fresh indentation on the right front of the bed, or cross piece that supports the bed.
The back of Bobby Wheeler’s skull was fractured and his back and hips were badly mangled. He died about 30 minutes after reaching a hospital.
The defendant testified that he was visiting his brother, who lived about five miles north of Earle, at the time of the accident; that he delivered his brother to the Earle school about 1 p. m. and drove to Wynne, Arkansas, and returned to Earle about á :30 p. m.; that he knew nothing of the collision until McCay told him about it; that he recalled seeing two boys on a bicycle somewhere on the road. When asked if he turned to the left in passing them, he stated that he did not, but that he already had plenty of room to pass. He denied being intoxicated, but stated that he drank three bottles of beer at the home of his brother on the morning of the collision. He did not sound his horn and was unable to explain why he did not go to the assistance of the boys when McCay told him that he had hit them.
Two witnesses testified on behalf of defendant that they were traveling in a truck from Earle shortly before the accident when they met the truck driven by defendant, and that the bicycle was wobbling in the road a few feet ahead of defendant’s truck as they met it. This testimony was sharply disputed by Charles Barrett, Thurman McCay and his companion, who testified that they met no other vehicle at or near the time of the collision and that 'the bicycle was proceeding straight down the edge of the road when it was struck by the truck driven by defendant.
The prosecution was conducted under Act 169 of 1947. Section 1 of said Act amended § 2982 of Pope’s Digest to read as follows: “If the killing be in the commission of an unlawful act, without malice, and without the means calculated to produce death, or in the prosecution of a lawful act, done without due caution and circumspection, it shall be manslaughter. Provided further that when the death of any person ensues within one (l) year as a proximate result of injury received by the driving of any vehicle in recldess, willful or wanton disregard. of the safety of others, the person so operating such vehicle shall be deemed guilty of involuntary manslaughter. ’ ’ The italicized proviso was added by the 1947 Act. Section 2 of said Act 169 amended § 2994 of Pope’s Digest by changing the punishment for involuntary manslaughter from a maximum of 12 months’ imprisonment in the penitentiary to a maximum of three years, or a fine of not less than $100 nor more than $1,000, or both such fine and imprisonment. The trial court instructed the jury in the language of the statute and no complaint is made in the giving of instructions.
In a prosecution for homicide resulting from the negligent operation of an automobile under § 2982 of Pope’s Digest prior to the passage of Act 169, supra, this court held that the state was required to prove a higher degree of negligence than is ordinarily contemplated to establish liability in a civil action. Phillips v. State, 204 Ark. 205, 161 S. W. 2d 747.
By § 6707 of Pope’s Digest, as amended by Act 194 of 1943, it is made unlawful for any person to drive a vehicle while under the influence of intoxicating liquor. Under § § 6694 and 6696 of Pope’s Digest the driver of a vehicle involved in an accident resulting in injury or death to any person is required to return to the scene of the accident and render reasonable aid and assistance to the injured party. Such statutes have as their purposes the prevention of accidents and the preservation of persons from injury on the highways. White v. State, 164 Ark. 517, 262 S. W. 338.
Defendant argues that, since the front of the truck did not strike the bicycle, it is more reasonable to believe from the testimony that the two boys were riding in a reckless manner and that the bicycle wobbled against the truck as it passed them; and that the state’s case rests entirely on speculation. The jurors were the judges of the credibility of the witnesses on the issue of whether the bicycle wobbled into the side of the truck or defendant recklessly sideswiped the bicycle with the truck while he was operating it under the influence of intoxicating liquor. In testing the legal sufficiency of the evidence to support the verdict, it must be viewed, in the light most favorable to the state. When so considered, the jury was warranted in concluding that the reckless operation of the truck by defendant while under the influence of intoxicants was the direct and proximate cause of the death of Bobby Wheeler. This inference is strengthened by the manifest indifference to the fate of the two boys which defendant apparently displayed in failing to return to the collision scene, or render assistance, upon learning of the collision, in violation of a duty imposed upon him by statute. We conclude, therefore, that the evidence is sufficient to support the conviction for involuntary manslaughter. White v. State, supra; Bennett v. State, 161 Ark. 496, 257 S. W. 372; Nichols v. State, 187 Ark. 999, 63 S. W. 2d 655; Martin v. State, 206 Ark. 151, 174 S. W. 2d 242.
It is also argued that the boys riding the bicycle were guilty of negligence which contributed to the injury and death of Bobby Wheeler. The doctrine of contributory negligence recognized in civil actions is inapplicable here. In 5 Am. Jur., Automobiles, § 796, it is said: ‘ ‘ The familiar rule that contributory negligence of the person injured or killed by the negligence of the defendant in the operation of an automobile bars a recovery in a civil action has no application to a prosecution for homicide due to criminal negligence in operating an automobile. In such case, the decedent’s behavior may have a material bearing upon the question of the defendant’s guilt,, but. if the culpable negligence of the latter is found to be the cause of the death, he is criminally responsible whether the decedent’s failure to use due care contributed to the injury or not.” This rule was approved by this court as early as 1911 in the case of Bowen v. State, 100 Ark. 232, 140 S. W. 28.
We find no error and the judgment is, therefore, affirmed. | [
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McIIaney, Justice.
This is the second appeal in this case,, the former opinion reversing the judgment and sentence for voluntary manslaughter may be found in 211 Ark. 233, 200 S. W. 2d 513. It was reversed because the court erred in asking the jury whether they were divided “.ten for conviction and two for acquittal,” and then telling them “yon are making some progress, even though it is slow.”
On the trial anew appellant was again convicted of voluntary manslaughter and sentenced to two years in the penitentiary, and he has again appealed.
The only assignment of error argued here is that the court erred in refusing to instruct the jury on involuntary manslaughter. Since he was convicted of voluntary manslaughter in the former trial, although indicted for murder in the first degree, he could not be convicted of a higher degree of homicide on the second trial, because in law he is deemed to have been acquitted of all higher degrees on the first trial, and to try him again on the higher degrees would be to put him in jeopardy again for the same offense. '■
Section 2982 of Pope’s Digest defines involuntary manslaughter as follows: “If the killing be in the commission of an unlawful act, without malice, and without the means calculated to produce death, or in the prosecution of a lawful act, done without due caution and circumspection, it shall be manslaughter.”
In Bennett v. State, 161 Ark. 496, 257 S. W. 372, we said: “Involuntary manslaughter is, as its name implies, an involuntary killing done without any intent to kill, but in the commission of some unlawful act, or in the improper performance of some lawful act.” This language was quoted with approval in Nichols v. State, 187 Ark. 999, 63 S. W. 2d 655.
It is well settled that, in order to justify the court in giving an instruction on involuntary manslaughter, or any other degree of homicide, there must be some substantial evidence to support such instruction. In Robinson v. State, 177 Ark. 534, 7 S. W. 2d 5, we quoted from Clark v. State, 169 Ark. 717, 276 S. W. 849, that “if there is no evidence to establish a lower degree of homicide than murder in the first degree, the court, in properly giving the law must of necessity determine whether there is any evidence at all to justify a particular instruction, and it is the duty of the jury to take the court’s exposition of the law.” This same language was cited with approval in Arnold v. State, 179 Ark. 1066, 20 S. W. 2d 189, where the error complained of and denied was the refusal of the court to instruct upon voluntary manslaughter.
Was there any evidence here to support an instruction on involuntary manslaughter1? The trial court found there was not and we agree.
The undisputed facts are that appellant, the deceased Altus Walls, and five other men, on the afternoon of December 7, 1946, gathered at a shack located on a county road about 100 yards south of State Highway 27, some three miles west of Murfreesboro, in Pike county, for the purpose of playing a dice game called craps for money, which they did. They also drank some whiskey, appellant and deceased consuming more than the others and became, intoxicated. Two of the players left before the trouble. An argument arose between appellant and deceased over dice "fades” and whiskey, but the others interfered and prevented trouble. The game broke up and all started for home. Appellant, deceased, and another walked slowly toward the highway and were waiting for the car of the other two to come up to take them to town. The argument between the two was renewed and a fight ensued in which deceased knocked appellant down and tried to hit him with a rock. Appellant ran away, went to the home of his brother, some 200 yards away, got his brother’s shot gun, returned to the scene of the difficulty and shot and killed said Altus Walls. Appellant is the only witness to the actual shooting and killing. He testified that, when he went back to the scene of the difficulty with the shot gun, he ordered Basham who had picked up deceased’s cap to drop the cap, get in the car with the other two, telling them to drive on and to keep driving; that deceased was in the woods, squatting down behind a stump; that he went into the woods, and "when nearly to deceased, defendant stopped. Deceased continued to move around stump with hands down by his side behind stump and assuring defendant that he wasn’t going to bother him and that everything would be all right. Defendant told deceased not to try to come to him. During the conversation deceased dived at defendant and defendant shot him.” Appellant’s abstract.
We do not agree with appellant that this testimony from him justified the giving of an instruction on involuntary manslaughter. He left the scene of the difficulty, walked a distance of about 200 yards, secured a deadly weapon, returned and ordered all the other witnesses away, and then shot the deceasd at a time when he was apparently begging for his life. The fact that deceased lunged at appellant’s feet, in an effort to save his- own life, would hardly justify a plea of self defense, or constitute ground for the giving of the instruction requested.
We have examined the other assignments of error and find them without merit.
Affirmed. | [
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Griffin Smiti-i, Chief Justice.
Mrs. M. C. Pearce sued Mrs. Isabelle Williamson and R. A. Caldwell as partners, alleging that a house they , moved from land owned by the plaintiff was worth $500. The appeal is from judgment on a jury’s verdict in favor of the defendants.
The partnership as such farmed lands belonging to Mrs. Pearce, starting in 1935. In April 1941 a small portable sawmill, in charge of Caldwell, was by agreement with Mrs. Pearce moved to a predetermined site on the rented land for use in converting certain logs into lumber. Williamson & Caldwell collected $905 from Mrs. Pearce for clearing land from which the logs were taken. Seemingly the sawmill was utilized as an incidental means of salvaging value of the usable timber. The record does not show to what extent Mrs. Pearce shared in production of the mill, or when it was delivered, although ad mittedly she received some of the lumber. Caldwell testified that his agreement with Mrs. Pearce before moving the mill was not in regard to cutting timber, but in connection with clearing the land.
After the mill had been located a small tenant house near it was used by a night watchman. Mrs. Pearce testified the building was placed there by her husband, who later died. Mrs. AVilliainson and Mr. Caldwell each testified that the house was ^formerly on Mrs. Williamson’s land and was loaned to the partnership for temporary use. This is the building about which the controversy arose and for which Mr's. Pearce asks pay.
October 31,1941, Williamson & Caldwell leased from Mrs. Pearce, for a period of five years from January 1, 1942, the fractional northwest quarter of section seven, etc. It embraced the farming lands formerly cultivated b3r the partners, and included the millsite. At the end of the term, but shortly before possession was surrendered, the house was taken on direction of Caldwell to premises owned b3r Mrs. Williamson.
A lease as originally worded by a lawyer representing Mrs. Pearce was objectionable to Caldwell, who in turn had his attorne3^ prepare the document finally executed. It contains a covenant that the lessees will keep all improvements in good condition, usual wear and tear excepted, and will vacate the premises upon termination of their rights.
On'conflicting evidence regarding when, how, and from where the house was moved, its construction, cost of replacement, purpose for which used, etc., the jury found against Mrs. Pearce. Her contention is that as a matter of law the house became a part of the realty, in the absence of an agreement, express or implied, that it was to be moved to her land and used temporarily to facilitate sawmill work. By her assertion that the house was- built by her husband Mrs. Pearce definitely contradicted all of the testimony given b3;r witnesses for the defendants tending to show that the building came through Mrs. Williamson. If, therefore, the case turned upon this question of fact the jury’s verdict would be conclusive. But the issue does not rest upon such an accessible basis; nor can it be said that there was probative substance, evidencing waiver, in Caldwell’s testimony that after the house was put on the property Mrs. Pearce asked where it came from, and was told by Caldwell that he borrowed it from Mrs. Williamson, and “it will have to be put back when I’get through.” Caldwell did not say that Mrs. Pearce assented to his intent. If this conversation had occurred before the house was moved and Mrs. Pearce had then remained silent, consent might be implied. At the time Caldwell spoke, however, he had acted upon his own responsibility, assuming there would be no objection.
When the mill was moved from the Pearce lease late in 1941 or early in 1942, the house remained undisturbed until the close of 1946. In the meantime it was not used in connection with agricultural activities. For a short period a fisherman occupied it, but seemingly without consent. The house was built on “six by eights,” and when placed on Mrs. Pearce’s land there was no additional foundation or substructure, hence no change indicating permanency or want of it.
Assuming that Caldwell’s intention was that the house would be returned to Mrs. Williamson, still the two as lessees — months after the building had been placed on location — executed their new contract and dealt with the property as it existed October 31,1941. The contract was written at Caldwell’s instance, and he did not see fit to mention the house. Later Mrs. Pearce insured for $250 ■ — including the buildings with five other tenant houses separately numbered.
Appellant thinks the applicable law is declared in Sanitary District of Chicago v. Cook, 169 Ill. 184, 48 N. E. 461, 39 L. R. A. 369, 61 Am. St. Rep. 161. It was there said that the great weight of authority was to the effect that where at the expiration of a lease during which trade fixtures are erected by a tenant, and subsequently a new lease is taken without reserving the right of removal, such fixtures cannot be removed at ex piration of the second lease. The reason, says the opinion, is that at the time the last lease is given, fixtures in place are part of the thing demised, and a tenant in accepting such lease without reserving property he might formerly have been entitled to has acknowledged the landlord’s right. The decision, rendered in 1897, was subsequently referred to as the Illinois rule. It recognizes an absence of uniform application and points to a criticism by Judge Cooley written nearly ten years earlier. Kerr v. Kingsbury, 39 Mich. 150, 33 Am. Rep. 362.
In. Springs v. Atlantic Refining Co., (North Carolina) 205 N. C. 444, 171 S. E. 635, 110 A. L. R. 474, it is pointed out that the liberality extended to a tenant to remove improvements made by him may not apply as between vendor and vendee, or mortgagor and 'mortgagee. It was then said that the apparent majority holding supports the proposition that where, at the expiration of a lease during which trade fixtures have been erected by the tenant, a new lease of the same premises is taken, containing no reservation of any right or claim, of the tenant to the fixtures placed during the first lease, such fixtures are not removable by the tenant during or at the expiration of the second lease, notwithstanding his continuous possession of the-premises. The case is am notated in 110 A. L. R., p. 480, and discussed as the “forfeiture” and the “non-forfeiture” rule, with Michigan cases speaking for the latter.
The tendency to hold as .a matter of law that execution of a new contract without reservations estops the tenant from asserting a claim he formerly had, has in recent years given way in many jurisdictions to a milder policy more in conformity with the so-called non-forfeiture rule; and this is particularly true where, in view of essential facts relating to the time, manner, and use of the fixture, it can be said that it was reasonably necessary to practical operations under the lease, and where no substantial injury can result to the landlord.
None of our eases-has decided the exact point in question and we do not appear to have adopted the forfeiture or the non-forfeiture rule; nor do we now approve either to the extent of holding that where a second lease is taken without interruption of tenancy the single factor of silence in respect of a building would be conclusive of the claim that it was or was not subject to removal. But we do hold that in placing the house at the millsite (assuming that it came from the Williamson farm) without consulting Mrs. Pearce, and in failing to remove it within a reasonable time after the mill had served its purpose, Caldwell justified the belief that there was no expectation of claiming it. In consequence Mrs. Pearce treated the house as her own, causing it to be insured, and paying premiums. Whatever rights the lessees may have had were so effectively disregarded that abandonment 'Was fairly inferable, and when Mrs. Pearce, acting upon assumption that her possession would not be questioned, caused the house to be insured under an assertion of ownership, that status cannot now. be questioned by those who created it.
One witness testified that the house was worth $60 or $75 and Caldwell said it was worth $100 to $125. One who had inspected it for the purpose of giving testimony thought the lumber alone would cost $98, to which labor would have to be added if the building should be replaced. It was approximately twenty-four years old — built, as some said, of cypress. West Memphis Lumber Company gave Mrs. Pearce a replacement estimate of $978 on plans she presented. Mrs. Pearce thought the old house was worth from $500 to $700.
Under the Court’s instructions the jury was permitted to find that Mrs. Pearce had no valid claim; hence damages were not properly considered. The judgment is reversed and the cause is remanded with directions to try this issue alone. | [
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ROBIN F. WYNNE, Judge.
' 11 Clifford Malone appeals from his conviction for rape. He argues on appeal that the State failed to prove that he was the victim’s guardian, which is a necessary element of the offense as charged. We affirm.
Appellant was charged with one count of rape. The criminal information alleged-that on or about May 30, 2011, he engaged in sexual intercourse or deviate sexual activity with a minor and that he was the victim’s guardian. A person commits the offense of rape if he or she engages in sexual intercourse or deviate sexual activity with another person who is a minor and the actor is the victim’s guardian. Ark. Code Ann. § 5 — 14—103(a)(4)(A)(i) (Repl. 2013). For the purposes of section 5-14-103, “guardian” means a .parent, stepparent, legal guardian, legal custodian, foster parent, or any person who by virtue of a living arrangement is placed in an apparent position of power or authority over a minor. Ark.Code Ann. § 5-|¾14-101(3) (Repl.2013).
At trial, the victim, A.H., who was seventeen at the time of trial, testified that on May 30, 2011, appellant told her to -remove her clothes. She testified that she did what he told her to do, and he rubbed lotion on her breasts, buttocks, and vaginal area. He also put his finger inside her vagina. A.H. and appellant were alone in the house at that time.
Tina Woolridge, A.H.’s mother, testified that A.H.’s father had custody of her since 1998 and that she exercised visitation with A.H. either every weekend or every other weekend. A.H. would stay at Ms. Wool-ridge’s home during the entire weekend of visitation. At the time of the offense, appellant was Ms. Woolridge’s boyfriend and was living with her in the home they shared. Ms. Woolridge estimated that by May 2011, she had been exercising visitation with A.H. for about a year. Ms. Woolridge testified that there were two or three occasions on which she left A.H. alone with appellant while she went to work. According to Ms. Woolridge, appellant was responsible for A.H.’s care while she was not there. A.H. testified that appellant was with her every time she was at the house and her mother was not there. A.H.’s grandmother lived near her mother, and A.H. had to tell appellant if she was going to her grandmother’s house if Ms. Woolridge was not there so that he would know where she was.
After the State rested, appellant moved for a directed verdict, arguing that the State failed to prove that he was A.H.’s guardian. The trial court denied the motion, stating that “if there was some protection or decision that needed to be made, he was an adult on the scene with apparent authority to make that — to make that call.” Appellant took the stand and ladenied committing the offense. He also stated that there were times during which he would supervise A.H. while Ms. Wool-ridge was at work. At the close of all of the evidence, appellant renewed his motion for directed verdict, which was denied.
The jury found appellant guilty of rape. The trial court sentenced appellant to 120 months’ imprisonment in the Arkansas Department of Correction. This appeal followed.
Appellant’s sole argument on appeal is that the State failed to prove that he was A.H.’s guardian for the purposes of section 5-14-103. As stated above, the applicable definition of the term “guardian” includes any person who by virtue of a living arrangement is placed in an appar ent position of power or authority over a minor. Ark.Code Ann. § 5-14-101(3). Appellant first argues that he does not meet the applicable definition of guardian because there was no evidence that A.H. lived with him beyond sporadic visitation. Although appellant did not live with the victim’s custodial parent, any apparent position of power or authority he had over A.H. would be the result of a living arrangement, specifically, his living arrangement with A.H.’s mother. Appellant lived with A.H.’s mother. A.H. was required to spend time in her mother’s home as a result of the custody and visitation arrangement between her parents. Clearly, A.H.’s contact with appellant was as a result of a living arrangement. Appellant’s argument lacks merit.
Appellant next makes several arguments challenging the evidence presented by the State in order to prove that he was placed in an apparent position of power or authority over A.H. Appellant’s argues that there was no evidence that he was a caretaker of A.H. or that he was a disciplinarian to A.H. In support, he contrasts this case with opinions by this court |4and our supreme court in which defendants who were caretakers or disciplinarians to their eventual victims were held to have been in apparent positions of power or authority over their victims. While evidence of caretaking, disciplining, or other related interactions may be facts that have been highlighted by our appellate courts in determining whether a defendant was a victim’s guardian for the purposes of the statute, such facts are not required to be present. All that is required is that the defendant be in an apparent position of power or authority over the victim.
There was evidence before the jury in this case that appellant was left alone with A.H. on several occasions, including the day of the offense. A.H.’s mother testified that appellant was responsible for A.H’s care while she was away at work. Appellant stated that he would supervise A.H. while her mother was at work. A.H. testified that when appellant asked her to remove her clothes, she did what she was told to do. We hold that the evidence presented to the jury was sufficient for the jury to reasonably conclude that appellant was in a position of apparent power or authority over A.H. when the offense occurred.
Affirmed.
GLADWIN, C.J., and PITTMAN, J., agree. | [
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MoHaney, Justice.
Appellant is the grandson of the late George W. Bennett who died testate on October 5, 1945, a resident of North Little Rock, Arkansas. The will of the testator is not in the record, but it is conceded that it was probated and that appellee is the executor. Appellant appears to have contested the will on the grounds of the mental incapacity of the testator and the alleged undue influence of the chief beneficiary, one J. D. Scruggs, a brother-in-law. The will was held to be valid in that case, from which there was no appeal. But, because appellant was not mentioned or named in said will, the court held that he was entitled to take under § 14525 of Pope’s Digest, the pretermitted child statute.
Appellee filed his annual account current in the probate court on November 6, 1946. Thereafter, appellant filed exceptions to various items in said account, but the only item we are here concerned with is a deposit in the Twin City Bank of North Little Rock, in the name of said J. D. Scruggs, on December 26, 1944, which was not in- eluded as an asset of said estate by appellee in liis said account current.
The matter was tried on January 27, 1947, and the court entered a judgment denying the exception on the ground that the $2,200 item was a gift from the testator to Scruggs, made during the lifetime of the decedent, and was not a part of the assets of his estate after his death. This appeal followed.
The undisputed facts are that on December 26, 1944, George W. Bennett delivered to J. D. Scruggs $2,200 in cash at a hospital in Little Bock, Arkansas, while he, Bennett, was a patient therein; that Scruggs deposited said sum in said bank td' his own credit, but authorized and directed said bank to honor checks drawn on said account and signed “J. D. Scruggs by G. W. B. or G. B.”, in other words Bennett had the right to draw all or any part of said deposit by signing checks in the name of Scruggs by himself; that prior to his death Bennett, by checks drawn in the manner stated, had reduced the balance in said bank to $1,700, and that Scruggs personally never drew a check against said bank account until after the death of Bennett, his first check being dated October 6, 1945, the day following Bennett’s death. In a little black book kept by Bennett and given to Mrs. Church, a witness, for safekeeping, a reference to said deposit in his handwriting reads: “$2,200 deposited December 27th in Twin City Bank by J. D. Scruggs in favor of Geo. W. Bennett to be drawn by George W. Bennett at any time he wants money on J. D. Scruggs account.” In a letter to Bennett dated January 1, 1945, at Cuero, Texas, Scruggs said in part: “I only (as you required) put your money in a bank in my name, which I assure you I will not check against, but you have full authority to check against . . . ” In another letter dated January 21, 1945, Scruggs said: “On January 2nd I deposited $2,200 of your money in my name . . . ”
Scruggs now contends, as does the appellee, that Bennett made a gift to him of this $2,200 and the court so found and held. In so holding we think the learned trial court fell into error. Gifts inter vivos, as well as causa mortis, to be effective as such, must be established by clear and convincing evidence and the elements essential to their validity must be proven as a whole by such evidence. In Stifft v. W. B. Worthen Co., 176 Ark. 585, 3 S. W. 2d 316, we said: “The elements necessary to constitute a valid gift inter vivos were stated by this court in Lowe v. Hart, 93 Ark. 548, 125 S. W. 1030, to the effect that the donor must be of sound mind, must actually deliver property to the donee, must intend to pass the title immediately, and the donee must accept the gift.”
In the more recent case of Baugh v. Howze, 211 Ark. 222, 199 S. W. 2d 940, we said: “To constitute a valid gift inter vivos, certain essential elements must be present, these include actual delivery of the subject-matter of the gift to the donee or to some one as agent or trustee for the donee, with a clear intent to make an immediate present and final gift beyond recall, and at the same time unconditionally releasing all future dominion and control by the donor over the property so delivered.”
Applying these well-settled rules of law to the facts before us, we conclude that two of these essential elements necessary to a valid gift are absent in that Bennett did not give the money to Scruggs with the intention at the time of passing the title thereto to him and Scruggs did not accept the gift as his own, but only as agent for Bennett, or as a trustee, and, therefore, there was no valid gift inter vivos.
Appellee contends that, because the order of the court states that the court based its findings in part on the testimony heard in the will contest case, as shown by its' judgment, and that the' testimony in the will contest is not in the record now before us, we should indulge the conclusive presumption that such omitted testimony sustains the court’s findings. Such is the usual rule. Here, however, in response to appellant’s motion, the court ordered appellee to name the .witnesses who gave relevant testimony in the will contest and to set out the sub stance of their testimony on which the court relied. In partial compliance with such order, appellee named himself and Scruggs, but did not set out the substance of their former testimony, presumably because both of them testified in this case and their testimony is in the record. Having failed to comply fully with the court’s order to set out the substance of the former relevant testimony, appellee is in no position to invoke the rule. The evidence of witnesses named in this case was the best evidence. Conine v. Mize, 189 Ark. 92, 70 S. W. 2d 845; George v. Davie, 201 Ark. 470, 145 S. W. 2d 729.
The judgment is, therefore, reversed and the cause remanded with directions to sustain the exception and to direct the appellee to charge himself therewith when and if he is able to collect same from Scruggs by the exercise of reasonable diligence by suit or otherwise. | [
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Minor W. Millwee, Justice.
Appellant, Mrs. Vivian Withers, was named executrix in the will of her uncle, W. R. LaCotts, a resident of the Southern District of Arkansas county, who died July 22,1944. After directing the payment of debts and funeral expenses, the testator bequeathed and devised all of his property to appellant. The will was filed for probate on July 28, 1944, and letters testamentary issued on -September 25, 1944.
A claim in the'amount of $602.44 in favor of appellee, J. C. Merritt, based on a joint promissory note of testator and his brother, was examined and allowed as a third class demand by the Probate Court on March 26,1945.
Ón December 14, 1945, appellant filed a motion to set aside the judgment allowing the claim of appellee. Appellant alleged as grounds for her motion that: (1) Neither she nor her attorney had any knowledge of the filing or allowance of the claim of appellee until December 3, 1945; (2) she was never presented with a claim and was never notified of the filing thereof, as required by law and said claim was, therefore, void for want of notice; (3) the estate of W. R. LaCotts, deceased, was not indebted to appellee because the alleged claim was barred by the statute of limitations. The statutes of limitation and non-claim were pleaded in defense of the claim,
Appellee filed a response denying the allegations of the motion and alleging that on July 21, 1945, hé filed a petition, as a creditor, to require appellant to file a bond, inventory and settlement of the estate, and that this petition was presented to the court in the presence of counsel for appellant who agreed to file an inventory, which was not done until December 14, 1945; that soon after the filing of the claim, appellant acknowledged the authenticity and correctness of the claim to appellee at his place of business in DeWitt, Arkansas; and that the judgment of allowance had become final and was not subject to review.
At a hearing on the motion to vacate on December 9, 1946, appellant testified that she was never notified of any claim being filed against the estate; that the claim of appellee was never exhibited to- her and she was not notified by letter, or otherwise, that a claim had been filed until long after it was allowed. She also testified that on one occasion appellee had mentioned the fact that he had a claim against the estate, but did not know the amount of the claim. She told appellee that she lived at El Dorado, Arkansas, and that the matter should be taken up with her attorney and the note presented to him. She also testified that after,she filed her motion to vacate the judgment allowing the claim, appellee brought the original note with a statement of credits attached thereto to the office of appellant’s attorney; that she inspected the note and statement of credits attached thereto and the date of the last payment shown on the statement was June 30, 1939'; that witness and her son both made written notations of this date,' and appellee was told that the note was barred by limitations.
Appellant’s attorney testified that shortly aftér probation of the will he had a conversation with counsel for appellee in which the latter mentioned the existence of the indebtedness and witness told him to present the note and, if it was1 all right, the matter could probably be adjusted; that nothing further was said and, thinking appellee would file the claim, witness made several searches of the files and was unable to find the claim; that one of these searches was made a few days before the expiration of the statute of non-claim.
The secretary of counsel for appellant testified that she searched the file in the clerk’s office on three, or more, occasions 'and did not find the claim. A search-was made before the claim was allowed, and the deputy clerk failed to find the claim when he searched the file at witness’ request.
Appellee offered no evidence in contradiction of testimony on behalf of appellant, but counsel for appellee stated, to the court that the claim was filed and that he talked with opposing counsel about the note and having filed the claim. The record discloses that a duly authenticated claim with a copy of the note attached thereto was filed on July 29,1944. The claim does not include a statement of credits, but recites, “Balance due on above note after payments credited as of July 27, 1944, the sum of $602.44. ’ ’ At the conclusion of the hearing on the motion to vacate, the trial court denied same and the executrix has appealed.
The law applicable to the method of exhibiting and allowing demands against estates at the time of the instant proceedings is found in §§ 100 and 107 of Pope’s Digest which read as follows:
“Section 100. . . . Any person may exhibit his claim against any estate as follows: if the demand be founded on a judgment, note or written contract, by delivering to the executor or administrator a copy of such instrument, with the assignment and credits thereon, if any, exhibiting the original, and if the demand be ¿founded on an account, by delivering a copy thereof, setting forth each item distinctly and the credits thereon, if any; provided, that any person having or holding a claim against any estate may file said claim, authenticated as now required by law, with the probate clerk of the court which has jurisdiction of the Executor and/or Administrator and/or estate; provided further, that immediately upon the filing of such claim with the probate clerk, it shall be the duty of the claimant, his attorney or agent, or anyone for the claimant, to notify the Executor and/or Admin istrator by registered mail with return receipt requested, directed to the last known address, of the fact that the claim has been filed with the clerk, and unless such Executor and/or Administrator shall approve or disapprove said claim by writing thereon within thirty days from the date of the mailing of such notification, the said claim shall, for all purposes, be regarded as having been exhibited to, and approved by, the said Executor and/or Administrator; and the judge of probate shall if he deems the claim just cause a concise entry of the order of allowance to be made upon the record, which shall have the same force and effect as a judgment. . . .
“Section 107. ... If the Executor or Administrator shall be satisfied that the claim thus exhibited against the estate of his testator or intestate is just, he shall indorse thereon his approval and allowance of the same, and the time it was exhibited; provided, however, that all claims filed with the claimant, his attorney or agent in the manner prescribed by § 100 shall be deemed to have been approved by the Administrator and/or Executor unless, within thirty days from date of the receipt of notice from the claimant, his attorney or agent, as set forth in the preceding section of this act, such Executor and/or Administrator shall, in writing, and in the manner now prescribed by law, disapprove said claim.
Prior to enactment of the above statutes the only method provided for exhibiting a demand against an estate based on a promissory note was by delivering to the executor or administrator a copy of the note, with the credits thereon, and exhibiting the original instrument. The provisos contained in §§ 100 and 107, Pope’s Digest, were added by Act 90 of 1935. In many cases construing the earlier statute this court has held the requirements set out therein to be mandatory. In Friend v. Patterson, 150 Ark. 577, 234 S. W. 978, this court said: “This provision of the statute requiring the original to be exhibited to the administrator is mandatory. . . . The statute conserves a wise purpose, inasmuch as it was intended to prevent possible mistakes, frauds, or forgeries, by giving to the executor or administrator the opportunity to ex amine the original instrument which is the basis of claim before approving or rejecting it. As we have said, it must be complied with before the claimant can have judgment in his favor allowing the claim against an estate in the probate court. ’ ’ See, also, Acker v. Watkins, 193 Ark. 192, 100 S. W. 2d 78, and cases there cited.
There are a few cases holding that, while the' provision of the earlier statute was mandatory, the administrator might, under certain circumstances, waive the delivery of the copy. Typical of these is the case of Grimes as Ad. v. Booth, 19 Ark. 224, where the administrator complained that the requirement that a copy of the claim be delivered to him had not been met. The proof showed that the original demand, duly authenticated, was presented to the administrator along with several other claims; that the administrator at his own request kept' the original claim for more than six weeks and examined the books and papers of deceased in'reference to the sev-' eral claims. It was held that the court was warranted in finding a waiver of the delivery of a copy as provided in the statute.
In Abston-Wynne & Company v. Wasson, 186 Ark. 929, 56 S. W. 2d 1029, it was held that the executors of an estate might waive exhibition of the original note. There a claim was presented with copies of the notes attached thereto which were exhibited to the executors who promptly allowed the claim, parties claiming to be creditors and devisees under the will objected to allowance on the ground that the original notes were not exhibited to the executors. The undisputed proof showed the executors were familiar with the indebtedness and knew that it was a valid claim against the estate which had not been paid, and, knowing the claim was just, made no demand for the original notes.
The undisputed evidence in the case at bar is that neither appellant nor her attorney was presented with either the original or a copy of the note prior to allowance of the claim on March 26, 1945. While the record shows a claim was filed with the clerk on July 29, 1944, it is not contended that appellee, or anyone for him, noti fiecl appellant by registered mail that the claim had been filed as provided in § 100, Pope’s Digest. Mere knowledge on the part of the executrix that the claim was in existence is not sufficient to constitute a waiver of the mandatory provisions of the statute. McIlroy Banking Co. v. Dickson, 66 Ark. 327, 50 S. W. 868; Kaufman v. Redwine, 97 Ark. 546, 134 S. W. 1193. It is true that counsel for appellant showed lack of diligence in complying with the court’s order that an inventory be filed in response to the petition of appellee, but this occurred several months after the claim had been allowed without notice to appellant and did not amount to a waiver of the statutory requirements.
Since the judgment of allowance was rendered without notice to appellant, it is subject to attack for unavoidable casualty preventing appellant from appearing or making her defense to the claim under the 7th subdivision of § 8246 of Pope’s Digest. Hunter v. Euper, 63 Ark. 323, 38 S. W. 517. However, the judgment was not void but voidable and, before she was entitled to have the judgment set aside, it was incumbent on appellant to allege and prove a valid defense to the claim as provided in § 8249 of Pope’s Digest. H. G. Pugh & Co. v. Martin, 164 Ark. 423, 262 S. W. 308; Davis v. Bank of Atkins, 205 Ark. 144, 167 S. W. 2d 876.
In the motion to vacate appellant pleaded the statute of limitations as a bar to the claim of appellee. The note upon which the claim is based was due December 15,1931, and, according to appellant’s testimony, the last payment credited on the statement exhibited to her several months after the claim was allowed was dated June 30, 1939. If this testimony is true, then the five-year statute of limitations (§ 8933, Pope’s Digest) had run before the claim was filed. Throughout the hearing on the motion to vacate, the trial court ruled that the only ground upon which the judgment could be set aside was that of fraud practiced in obtaining the allowance of the claim, and the court refused to consider the testimony offered by appellant on the defense of the statute of limitations. When counsel for appellee offered to introduce testimony on this issue the court stated that it was not necessary. It, therefore, appears that the question whether appellant had a meritorious defense to the claim was not fully developed and that this happened through no fault of appellee.
The judgment denying the motion to vacate the order of allowance is reversed and the cause remanded for a new hearing on the sole issue of whether appellant had a valid defense to the claim. | [
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Per Curiam.
The appeal is from a decree granting Samuel Brown Deal a divorce under subdivision seven, § 2, Act 20 of 1939 — separation for three years without cohabitation. The only question is one of fact: was the plaintiff a bona fide resident of Arkansas. Pope’s Digest, § 4386, Act 71 of 1931.
Appellee had lived at Waukegan, Illinois, where he worked in a bank. He came to Little Rock March 20, 1947, but went to Eureka Springs April 6th. The complaint was filed May 22nd — two days beyond the minimum of sixty days required by law. The decree is dated August 5th. Warning order was published and an attorney ad litem notified the wife, Effie Florence.
Appellee testified that he went to Eureka Springs for rest, but almost immediately consulted a lawyer. Letters he had written his daughter, Shirley, were identified. The first (May 10 — twelve days before complaint was filed) assured Shirley appellee would return to Waukegan about July 1st, and “if the bank still has a job for me 1 will take it.”
Four days later, in another letter, appellee said, “As I [previously] told you, I will return to Waukegan just as soon as I am through here.” In a communication of May 24th there was the statement: “According to my present thought I want to return to the bank,' if a job is open. . . . I do not know what steps your mother will take, but I will continue my end down here and hope for a successful conclusion.” Subsequently he wrote: “The mission on which I came here will soon be ended, and for good or ill it is my decision, so let the future bring what it may.” To appellant he wrote: “You must know b> this time that the reason I am down here is to secure a divorce.” To this appellee added: “One will be granted as soon as I become a permanent resident of the State. ’ ’
April 28, 1947, bona fide as applied to one claiming to be a resident was construed. Cas sen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585.
June 18th appellee wrote his daughter: “ . . . Unfortunately I will be held up longer than I wished, due to certain angles my case is taking. I do want to. get back.” He later wrote: “I will be here for another month, at least.”
Appellee’s purpose in coming to Arkansas, and his intent to leave as soon as a divorce could be procured, are quite clear. The appeal is controlled by the Cassen case. See, also, Swanson v. Swanson, ante, p. 439, 206 S. W. 2d 169.
For want of jurisdictional residential requirement the decree is reversed. Cause dismissed. | [
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Smith, J.
Three separate causes of action were consolidated and tried together, and verdicts were rendered in the three cases totaling $65,000. One of these for $15,000 was in the suit of James EL Adams for .the loss of the consortium of his wife, who died as a result of terrible burns suffered by her. Another was returned in the suit of the administrator of Mrs. Adams’ estate for $10,000, rendered as compensation for her pain and suffering, and the third, in favor of Adams, for $40,000, as compensation for pain and suffering, and for the diminution of his earning capacity. It is strongly insisted that each of these verdicts is excessive, but that question is not decided, as all the judgments on these verdicts are reversed for reasons presently to be stated.
The suits arose out of the fire which consumed the Great Northern Hotel in the City of Hot Springs, on the night of September 13, 1946. Adams and his wife registered at the hotel between 12:00 p. m. and 1:00 a. m. that night, and were assigned to Boom 352, which was located on the top, or third floor of the hotel. There were 73 bedrooms in the hotel, of which 37 were on the • third floor, the others being on the second floor. Another guest had been assigned to Boom 350 on the third floor. This room would have adjoined Boom 352, but for the intervening room numbered 351.
There is no contention that the hotel was in any mariner responsible for the origin of the fire, which started in Boom 350. The guest in that room was evidently drunk and continued to smoke after retiring. Apparently he fell into a drunken stupor, and he testified that his bed was on fire when he was awakened. He attempted, without success, to extinguish the fire, which was communicated to the curtains in his room, and he testified that the room went up in flame. He ran out of his room, giving the alarm as he went and he escaped safely by going down a stairway in front of Boom 351, leading to the second floor.
Shortly after retiring, Adams discovered that the hotel was afire, and he and his wife were trapped with no means of escape, except by running through the fire which had spread to the stairway. The fire was also between his room and the elevator, and there was no fire escape in the west wing of the building, where his room was located, and the only means of escape without running through the fire, was through the windows of his room, which fronted on Broadway Street. Thé hotel itself fronted Benton Street and Malverri Avenue, the latter running into Malvern Avenue at an angle of about 45 degrees. There were 13 rooms on this front on the third floor. There were three wings to this floor of the hotel, all on halls leading into a larger hall, into which the front rooms of the hotel opened. There were three stairways leading from the third floor to the second, one of which was at the east end of the hall, and the fire escape leading from the 3rd floor was located there.
The second, or middle wing of the third floor, in which there were 10 rooms, fronted on a hall, one end of which led to a stairway at the north end of the floor, the other end opened into a large hall into which all the front rooms opened. As has been stated, there was a stairway at the west end of the long hall and another stairway at its east end. The elevator was between these stairways and it had been employed in taking Adams and his wife to their room.
We copy the allegations of the complaint charging-negligence. They (Adams and his wife) looked for a fire-escape and found they were trapped. . . . The hotel was a three-story building and the only fire escape was on the east side, next to the Post Office. Martha Adams ’ room was on the third floor and. there were no ropes, fire escape, stairway, or any way for the inmates of the hotel to get out. There was no fire escape at all on the west side of the hotel where Martha Adams was staying. The only way she could get out was through the windows of her room. No ropes were provided as required by law. Williamson and Relyea (the owners) rented, the building- to Ford (the lessee) to be used and operated as a hotel, and by the exercise of ordinary care should have known that no fire escape had been provided. The defendants were jointly and severally negligent to have permitted the only fire escape to be obstructed by a large exhaust fan. They were negligent in having- a stairway from the second floor to the street obstructed. They were negligent in failing- to keep .the building clear and free from inflammable matters. They were negligent in failing to have the building wired for electricity. No attempt was made to prove any of the last alleged acts of negligence and none of them was submitted to the jury. It was however alleged that but for the negligence of the defendants Martha Adams could have gotten out of the hotel without injury.
These allegations are copied from the complaint filed in the suit of the administrator of Mrs. Adams’ estate, and the allegations of the other complaint are substantially to the same effect. But none of them contained the allegation that due care would have required the installation of more than one fire escape, although it is alleged in the complaint filed by Adams for himself, that “all defendants knew there were no fire escapes notwithstanding § 7201, Pope’s Digest.” This section reads as follows:
“It shall be the duty of every person operating any hotel, or inn containing seven rooms or more, two stories high or more, within the State of Arkansas to have a rope not less than one-half inch in diameter and knotted not more than fifteen inches apart, and of sufficient strength to hold up five hundred pounds and long enough to extend within twenty-four inches of the ground. Said rope to he securely attached to the window sill, or wall of one window in each room about the first story of said building to be occupied by guest. Said rope to he kept in full view at all times. This section not to apply to hotels equipped with iron fire escapes, and any proprietor, lessee or manager of any hotel, or inn refusing to comply with the provisions of this act shall he guilty of a misdemeanor, and, on conviction, such proprietor, lessee, manager, agent or clerk in charge of said hotel or inn, whenever any violation of this act shall occur shall be fined not less than ten dollars nor more than fifty dollars, or imprisonment for a term not exceeding thirty days, or by such fine and imprisonment.”
One instruction told the jury upon what findings they might hold appellants negligent, which of course means liable, and a second instruction told the jury to find for plaintiff if it were found that defendants were negligent as defined in the other instructions.
The chief insistence for the affirmance of the judgment is that ropes were not supplied in the various rooms as § 7201, Pope’s Digest, requires, if fire escapes were not provided. The complaint did not allege that it was negligence to have provided only one fire escape from the third floor. Had that allegation been made, issue could have been joined as to whether ordinary care would have required more than one fire escape in view of the facilities furnished for that purpose, to-wit, three stairways, one elevator and one fire escape leading from the third floor. On the contrary, without that allegation, the jury was directed to find whether that failure was negligence.
The instruction number one in effect directed a verdict for the plaintiff, as it authorized the finding of negligence “if suitable and workable methods were not furnished for the exit of persons renting rooms on the west side of the third floor of the building, in case of fire.” Many objections were offered to this instruction. It permits the jury to view this fire and the injuries resulting from it retrospectively and not prospectively. If this were the proper or permissible test of negligence there would be liability for nearly all injuries as most of them could have been averted if something had not been done which was done, or something was left undone which might have been done. It is a trite saying that hind sights are better than fore sights. Inasmuch as the owners and the lessee of'the hotel were not insurers of the safety of their guests, liability must be determined by the answer to the question “Did they furnish the facilities for the safety of their guests which ordinary care required and reasonable prudence would have suggested?” If they did not they were negligent. If they did they were not negligent, although it may now appear that some “suitable and workable method” might have been employed which was not employed.
It is therefore insisted that the instruction is erroneous in that it in effect directs a verdict for the plaintiff inasmuch as it now appears that precautions were not taken, which if taken would have offered a means of egress, whereas, it is urged that all the precautions were taken which ordinary care and reasonable prudence would have suggested.
Had it been alleged that more than one fire escape' should have been provided, that issue could have been developed, but it was submitted to the jury in the instructions, without allegations upon which to base it.
It is admitted that no one of the rooms in the hotel had been provided with ropes, which failure was alleged as negligence and it is now insisted that § 7201, Pope’s Digest, was thereby violated and that this violation is sufficient to sustain the charge of negligence. Now this statute does not read that the failure to provide ropes in the absence of fire escapes shall constitute negligence. This absence of ropes in each room, would be evidence of negligence, but the statute does not make this failure negligence per se. Our decisions are to the effect that the violation of a statute is evidence, but is not conclusive of that question. Bain v. Ft. Smith Light & Traction Co., 116 Ark. 125, 172 S. W. 843, L. R. A. 1915D, 1021; Pankey v. L. R. By. & Electric Co., 117 Ark. 337, 174 S. W. 1170; Nichols v. State, 187 Ark. 999, 63 S. W. 2d 655.
The statute quoted does not require that all hotels two stories high or higher, containing seven rooms or more, shall be provided with ropes. In fact, this requirement is not imposed at all on hotels equipped with iron fire escapes. But counsel argues that lacking ropes the Great Northern Hotel should have had more than one fire escape, but if this is true, it is true as a matter of fact, and not as a matter of law. Counsel says the law imposed the requirement that more than one fire escape be installed, lacking ropes in the hotel rooms, and that the use of the plural words “fire escapes” requires that construction of the statute. But the use of the plural words appears in the portion of the section reading, “This section not to apply to hotels equipped with iron fire escapes.” Correct grammar required the use of these plural words, as it was not to be assumed that one fire escape would serve more than one hotel. A violator of this statute is subject to a fine, but the statute does not undertake to impose civil liability, although its violation is evidence of negligence.
The question which should control, and which should have been submitted to the jury, is what safeguards should have been provided whether ropes or fire escapes, or both. The size of the hotel and the probable number, or the largest number of guests anticipated or invited to secure accommodations at any one time should be taken into account. This would properly have been a question for the jury had the pleadings raised the issue that one fire escape did not meet the requirements of the statute under the structural arrangements of the hotel. One fire escape might suffice for some hotels two stories high, having seven rooms, but be wholly inadequate for larger ones not equipped with ropes. An owner or operator of a hotel might be guilty of negligence if there were no statute on the subject, and there would be negligence if the precautions for the protection of guests had not been taken which ordinary care suggested and required. So that in the last analysis the question is was there negligence, and as has been said this is a question to be viewed prospectively and not retrospectively.
Separate briefs have been filed for the owners of the hotel and the lessee thereof, and in the briefs for the ownérs it is insisted that the duty to furnish ropes was imposed upon the lessee and not upon them. This was a matter for private contract. If the lessee undertook to operate the hotel without adequate fire escapes he should have required the owners to furnish ropes, but if the lessee did not impose this requirement upon the owners, he should have himself furnished them.
But not so with the fire escapes. The lessee was operating the hotel under a month to. month lease, and it appears unreasonable to impose upon bim the duty of providing the iron fire escapes. If there is liability in this case it arises out of the fact that due care was not used in equipping the building with adequate fire escapes and, lacking these, ropes, in each room. We conclude therefore that if there is liability both the owners and the lessee may be liable.
Cases are cited distinguishing the duty of operators and lessees of hotels from that of owners and operators of places of public amusement, where a large number of people may be expected to assemble and disperse in a short period of time, but we do not review them as we think no distinction exists between hotels and places of public amusement, in the matter of precautions to be taken for the protection of persons invited to enjoy the facilities furnished. •
We approve the holding of the Supreme Court of Colorado in the case of Colorado Mort. & Inv. Co. v. Giocomini, 55 Col. 540, 136 Pac. 1039, L. R. A. 1915B, 365, refusing to recognize a distinction as to the duty owing by the operator of public places generally from that of the owners and operators of hotels. The public has in each or in both cases only such protection as may be provided for their safety. In a note of the annotator to the case of Webel v. Yale University, 123 A. L. R. 878, it is said, ‘£ Except under special circumstances, the cases are practically uniform in applying the same rule of liability against the owners of hotel premises as is applied against the owners of amusement places.”
We interpret the instructions given as making the appellants insurers of the safety of their guests inasmuch as it now appears that precautions might have been taken, which if taken would have enabled all guests to escape from the burning building, whereas the question which should have been submitted to the jury is, as has been stated, whether all the precautions had been taken.which reasonable prudence and ordinary care would have suggested, these being the stairways leading from the third to the second floor, an elevator and one fire escape. The jury might have found that these facilities for escape did not meet the requirements of due care, but that question should have been submitted without permitting the jury to impose precautions which might have transcended ordinary care. Baker v. Dallas Hotel Co., 73 Fed. 2d, 825; Louisville Tr. Co. v. Morgan, 180 Ky. 609, 203 S. W. 555, 7 A. L. R. 396; West v. Spratling, 204 Ala. 478, 86 So. 32; Thomas v. Wollcott, 180 N. Y. Supplement 798.
For the error indicated the judgment is reversed and the cause remanded for new trial.
Robins, J., dissents.
McFaddin and Milewee, JJ., dissent in part. | [
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Griffin Smith, Chief Justice.
J. C. Hickingbottom, a building contractor, sued Dr. E. F. Norton and Mary G. Norton, (husband and wife) alleging that by the terms of a written contract the plaintiff was to supply labor necessary to make certain repairs to real property owned by the defendants, compensation to be $1,389.75. It was further alleged that as the work progressed there were requested alterations or additions, reasonable value of which was $792.75. The undertakings were finished November 15, 1945. Demand was for payment covering the additional.services, with interest at six per cent, from date of completion.
An answer admitted the original contract, but denied the supplemental agreement. By way of cross complaint the defendants alleged damages of $750 because of plain tiff’s failure to substantially perform under the written contract. Payment of $1,100 was claimed to have been made, leaving, prima facie, $289.75 withheld to offset matters neglected. This was included in the cross complaint prayer for $750.
The jury returned a verdict for $347.69 in favor of the plaintiff without explaining how the amount was arrived at. The Court gave judgment for this sum, with interest at six per cent, from December 1, 1945. Thereupon the defendants filed exceptions. Their contention was that the jury must have found that the unpaid difference between $1,389.75 and $1,100 had been earned, and that to this item of $289.75 interest at ten per cent, for two years had been added. This conclusion, it is argued, infers that the jury disallowed the difference between $792.75 claimed by the plaintiff, and $289.75, — that is, $503; hence the balance defendants concede would have been payable if plaintiff had completed the original contract, and interest for two years at ten per cent, yearly ($57.94) accounted for the judgment, $347.69'.
It is quite probable that the jury did just what appellants claim; but the appeal is here without a bill of exceptions and our consideration extends only to the face of the record. Appellants tendered to the trial court affidavits executed by jurors who explained how they arrived at a verdict. These were properly disregarded. "While in the case at bar there is no suggestion that in the interim between return of the verdict and execution of the affidavits members of the jury had mingled with the public or could have been subjected to outside influence, a policy permitting jurors individually to impeach, or materially explain, their official action would tend toward impairment of verdicts, rendering them less secure. See Consolidated Rendering Co. v. New Haven Hotel Co., 300 F. 627. We are not, of course, dealing with a case where misconduct of a juror is alleged.
In Reiff v. Interstate Business Men’s Accident Association of Des Moines, Iowa, 127 Ark. 254, 192 S. W. 216, the Court lield considerations of public policy in the orderly administration of justice forbid the reception of evidence on the part of a juror, after discharge of the jury and separation of its members. It was there sought to show by a juror that he did not “understand and appreciate” the effect of the verdict.
In their brief appellants concede that the last work done by Hickingbottom was November 1.5,1945. Instructions are certified by the Clerk as a part of the record, and appellants argue by analogy that when Instruction No. 4 is considered, showing how the controverted items were submitted, the conclusion is inescapable that the charge of $503 for extra work was disallowed. But if it be conceded that this construction is tenable, the difficulty is that the instructions are not before us. In O’Neal v. Parker, 83 Ark. 133, 103 S. W. 165, it was said that instructions given or refused, if not brought up by bill of exceptions, will not be considered, although copied in the transcript. Chief Justice McCulloch, in writing the Court’s opinion affirming the judgment appealed from by Queen of Arkansas Insurance Company (102 Ark. 95, 143 S. W. 596), said: “None of the instructions is contained in the bill of exceptions, nor does the bill of exceptions contain any call for them, though the clerk has included what purports to be a list of instructions in the transcript. This is an additional reason why we cannot consider the assignment of alleged errors in giving instructions ’ ’.
It must be held that there were matters before the jury, as reflected by the record, from which it could have found that appellants owed appellee $347.69 and that it was due November 15, 1945. There is no contention that the amount earned by Hickingbottom was not payable when the work was completed.
Appellants’ last contenton is that since the debt found by the jury to be due was not a liquidated demand, interest could not be added to the judgment for an amount accruing prior to a determination of the value of the services. The principle discussed is analogous to Judge Hart's reasoning in White & Black Rivers Bridge Co. v. Vaughan, 183 Ark. 450, 36 S. W. 2d 672. Vaughan asked judgment on a quantum meruit basis. The opinion says that he did not claim any contract, or allege that there was an agreement to pay a stated amount for the services rendered. In the instant case appellant stated a supplemental contract, and says that under it labor amounting to $792.75 was supplied. It is not asserted that the agreement was for a particular sum. In that respect the transaction aligns with facts in the Vaughan controversy. If, as the jury found, appellant was entitled to $347.69 December 1, 1945, payment should have been made at that time, and the Court did not err in adding interest. Rogers v. Atkinson, 152 Ark. 167, 237 S. W. 679. This result, of course, disregards appellants’ contention that the judgment could only have been for $289.75 as of November 15, 1945, and that the jury added interest at ten per cent, for two years. In the absence of a bill of exceptions we must presume there was competent evidence before the jury from which it could have found that a part of the claim for $503 should be allowed, and that this integral, as distinguished from $57.94 in interest, accounted for the result.
Affirmed.
By § 4060 of Popes Digest, “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 lots. — Section 269 of the Criminal Code. | [
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ROBERT J. GLADWIN, Chief Judge.
_|jThis is an appeal from the Arkansas Workers’ Compensation Commission’s February 13, 2014 opinion denying appellant DeLove Redd additional temporary-total-disability (TTD) benefits and permanent-disability benefits in excess of the seven-percent whole-body impairment already being paid to him. Redd appeals the Commission’s finding regarding his entitlement to permanent-disability benefits in excess of seven percent. We affirm.
Statement of Facts
Redd is sixty-two years old and has an eleventh-grade education. He began working for appellee Blytheville School District in 1982 as a custodian. During his almost thirty years of employment with the school district, Redd sustained several injuries, including a right-shoulder injury, a left-knee injury, and a back injury, all of which were accepted by the school district. Redd’s most recent injury was sustained on August 16, 2011, as the result of |2a specific incident while helping a co-worker, Broderick Harris, lift a fifty-five-gallon drum into a large dumpster.
Redd was initially examined by Dr. James Russell, but he was subsequently referred to Dr. John Campbell, a neurosurgeon in Jonesboro, Arkansas. Following an MRI, Redd was diagnosed as having sustained a small central L4-L5 disc herniation, which was treated conservatively, without surgery.
Redd was released to return to work on February 22, 2012, with a twenty-pound lifting restriction, no bending and twisting at the same time, and no prolonged standing or sitting for more than two hours. On January 11, 2018, Dr. Campbell opined that Redd’s only permanent restriction was not to lift over twenty pounds.
The school district made work available to Redd within the restrictions imposed by the doctors. He testified that when he returned to work, he missed many days because his back would begin bothering him. Redd retired at age sixty-two and began drawing both social-security retirement and retirement from the school district. He said that he takes Aleve “every now and then” for his back pain. Redd testified that the school district provided him with restricted-duty work at the same salary until he elected to take retirement in July 2012. Redd told the Commission, “If I worked for three days, they paid me for three days. They didn’t lay me off. I was the one who elected to retire because I knew I couldn’t do the work.”
James Williams testified that he worked as a plumber for the school district and that, after Redd was injured and returned to work, Redd was not able to do the types of work | she had previously been doing. Williams said that the district placed Redd with him as Williams’s helper, and that his work did not require heavy lifting. He opined that the school district was trying to protect Redd from heavy lifting by placing him with Williams.
Donald Jenkins, the maintenance supervisor for the school district, testified that once Redd was released with restrictions, work was made available within the restrictions imposed. Jenkins further stated that if Redd had not retired, work within Redd’s physical restrictions would have continued to be provided.
Richard Atwill, the superintendent of the Blytheville School District, testified by telephonic deposition that Redd was provided assistance at all times following his return to work and that the school district always made work available within Redd’s restrictions until his retirement on or about July 11, 2012. Atwill further stated that Redd was not considered an “at will” employee due to the school contract and public policy, maintaining that if Redd had not retired, he could have continued to work and receive the same hours and pay that he had received prior to the injury.
The administrative law judge (ALJ) found in pertinent part that Redd failed to prove by a preponderance of the evidence that he was entitled to additional TTD; that he failed to prove that he was entitled to permanent-partial-disability benefits in excess of the seven-percent whole-body impairment; and that the school district made suitable employment available to him within his physical restrictions. Redd appealed this decision to the Commission, which affirmed and adopted the ALJ’s decision. This appeal timely followed.
|4iStatement of Law
We review decisions of the Commission by considering whether there is substantial evidence to support its decision. Wheeler Constr. Co. v. Armstrong, 73 Ark.App. 146, 41 S.W.3d 822 (2001). Substantial evidence is that relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. Questions concerning the credibility of witnesses and the weight to be given their testimony are within the exclusive province of the Commission. Sivixay v. Danaher Tool Grp., 2009 Ark. App. 786, 359 S.W.3d 433. Further, we review the evidence and all reasonable inferences in the light most favorable to the Commission’s findings and affirm if its findings are supported by substantial evidence. Id.
The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 882 (2000). When a claimant has an impairment rating to the body as a whole, the Commission has the authority to increase the disability rating based upon wage-loss factors. Lee v. Alcoa Extrusion, Inc., 89 Ark.App. 228, 201 S.W.3d 449 (2005). The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other factors affecting wage loss, such as the claimant’s age, education, and work experience. Logan Cnty. v. McDonald, 90 Ark.App. 409, 206 S.W.3d 258 (2005). Motivation, post-injury income, credibility, demeanor, and a multitude of other factors are matters to be considered in claims for wage-loss-disability benefits in excess of permanent-physical impairment. Henson v. Gen. Elec., 99 Ark.App. 129, 257 S.W.3d 908 (2007).
IfiAn employee who is extended a bona fide and reasonably-obtainable offer to be employed at wages equál to or greater than his average-weekly wage at the time of the accident is not entitled to permanent-partial-disability benefits in excess of the percentage of permanent-physical impairment. Ark.Code Ann. § 11 — 9— 522(b)(2) (Repl.2012). The employer has the burden of proving a bona fide offer of employment. Ark.Code Ann. § 11-9-522(c)(1) (Repl.2012). The primary question before the Commission was whether continued employment offered to Redd was a bona fide offer of employment that disqualified him from receiving wage-loss benefits.
Discussion
Redd contends that the Commission erred by finding that suitable employment was made available to him within his physical restrictions until such time as he took voluntary retirement. It is the employer’s burden to prove that an employee was given a bona fide offer to be employed, at wages equal to or greater than his average-weekly wage at the time of the accident. Ark.Code Ann. § ll-9-522(c)(l). Redd contends that his testimony was that he missed many days after returning to work, due to his injury. He contends that his testimony — if he worked for three days they paid for three days — did not prove that his employer had given him a bona fide offer because his earning power was not equal to or greater than the amount he was earning before the injury. He claims that Williams’s testimony corroborates that he missed a lot of work and could not perform the work.
Redd argues that the employee must be capable of performing the required job activities for the offer to be bona fide, barring wage-loss disability in excess of his anatomic grating to the body as a whole. In support, he cites Wal-Mart Associates, Inc. v. Keys, 2012 Ark. App. 559, 423 S.W.3d 683, where this court upheld the Commission’s determination that a6 bona fide offer of employment had not been made to the claimant because the job was beyond her physical limitations, according to the description of the job and the claimant’s experience working in the precise position that she was being offered. He argues that, here, as in Keys, supra, the school district’s offer was not bona fide because the job offer was beyond his physical limitations and in fact resulted in lower pay.
The instant case is distinguishable from Keys, supra. There, even though the employer offered Keys a job as a door greeter to comply with her restrictions of no lifting over twenty pounds, no bending or stooping, and no prolonged standing or sitting, when Keys returned to work, her assigned duties were outside the bounds of those restrictions. Here, Redd was given a bona fide offer and, by his own testimony, was accommodated when he returned to work. He testified that he had the same hours and pay. His coworkers testified that his job duties were within his accommodations and that the school district was trying to protect him. Substantial evidence supports the Commission’s finding that Redd was not entitled to wage-loss disability because he had a bona fide offer to be employed at wages equal to his average weekly wage at the time of the accident. Ark.Code Ann. § 11 — 9— 522(b)(2).
Affirmed.
PITTMAN and WYNNE, JJ., agree. | [
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BILL H. WALMSLEY, Judge.
|,Appellant Bank of the Ozarks (the Bank) appeals from orders declaring it to be the trustee of the Hamilton Living Trust, ordering it to provide an accounting to appellee Susan Cossey, and awarding attorney’s fees to Cossey. We dismiss the appeal for lack of a final order.
The Hamilton Living Trust was created by Cossey’s parents, Frank and Margaret Hamilton. The Hamiltons served as trustees during their lifetime, and the Bank was slated to become successor trustee upon both of their deaths. Cossey and her brother, Larry Hamilton, were the beneficiaries of the trust and would receive its proceeds upon their parents’ deaths.
Frank Hamilton died in November 2008, and Margaret Hamilton died in November 2009. Shortly thereafter, the Bank sent a letter to Larry Hamilton, declining to serve as successor trustee. The Bank’s repudiation gave Larry Hamilton and Susan Cossey the power to name a successor trustee, but they did not do so.
LAfter rejecting the trusteeship, the Bank began distributing money from a trust account to Larry Hamilton, purportedly to cover his mother’s funeral expenses and certain bills pertaining to her property. The Bank also liquidated trust-owned securities at Larry Hamilton’s request. These activities took place over a period of years, during which the Bank intermittent ly urged Larry Hamilton to select a new trustee, to no avail.
In January 2013, Cossey — who had not been copied on the communications between the Bank and her brother — filed a petition in Pulaski County Circuit Court, demanding an accounting from the Bank. She alleged that the Bank had served as the successor trustee of the Hamilton Living Trust since Margaret Hamilton’s death in 2009 and had failed to provide the quarterly accountings required by the trust. The Bank answered that it had no duty to provide an accounting because it had rejected the trusteeship of the Hamilton Living Trust. Following a bench trial, the circuit court declared that the Bank had acted as trustee and ordered the Bank to perform an accounting within thirty days. In a subsequent order, the court awarded Cossey $9,441.50 in attorney’s fees and costs. The Bank appeals from those orders.
The question of whether an order is final and appealable is jurisdictional, and this court is obligated to consider the issue on its own even if the parties do not raise it. King v. Jackson, 2014 Ark. App. 488, 2014 WL 4748473. An order that contemplates further action by a party or the court is not a final, appealable order. Oldenberg v. Ark. State Med. Bd., 2013 Ark. App. 599, 2013 WL 5745125. Even though the issue decided by the circuit court might be an important one, an appeal will be premature if the court’s decision does not, from a practical standpoint, conclude the merits of the case. \sId.
In the present case, the circuit court declared the Bank to be trustee of the Hamilton Living Trust and ordered the Bank to provide Cossey with an accounting. The accounting has yet to be performed and will necessarily involve future. actions by the Bank, as well as future oversight and rulings by the circuit judge. The court’s order therefore contemplates further action by a party or the court and is not final and appealable.
We are aware that the Bank’s notice of appeal cites Ark. R.App. P. 2(a)(12) (2014), and Ark.Code Ann. § 28-1-116 (Repl. 2012), as authority for pursuing an appeal at this juncture. Rule 2(a)(12) permits an appeal from all orders in probate cases (with certain rare exceptions) as allowed by section 28-1-116, which provides in pertinent part:
(a) APPEAL PERMITTED. Except as provided in subsection (b) of this section, a person aggrieved by an order of the circuit court in probate proceedings under the provisions of the Probate Code may obtain a review of the order by the Supreme Court or the Court of Appeals.
(b) ORDERS WHICH ARE NOT AP-PEALABLE. There shall be no appeal from an order:
(1) Removing a fiduciary for failure to give a new bond or to render an account as required by the court; or
(2) Appointing a special administrator.
We have interpreted section 28-1-116(a) to allow an immediate appeal from almost any probate order. See Ferguson v. Ferguson, 2009 Ark. App. 549, 334 S.W.3d 425. However, under the terms of the statute, the order must be from a probate proceeding under the provisions of the. Probate Code. The present appeal does not fall within that category.
The list of statutes that make up the Probate Code appears in the notes to Ark. Code |4Ann. § 28-1-101 (Repl.2012). The list does not include the statute at the heart of this case, Ark.Code Ann. § 28-73-701 (Repl.2012), which sets forth the meth od of accepting or declining a trusteeship and is part of the Arkansas Trust Code. Further, Ark.Code Ann. § 28-1-104 (Repl. 2012), contains a list of matters that are considered probate proceedings. Trust matters do not appear on the list and historically have not been cognizable as probate matters. See Schenebeck v. Schenebeck, 329 Ark. 198, 947 S.W.2d 367 (1997); Thomas v. Ark. Dep’t of Human Servs., 319 Ark. 782, 894 S.W.2d 584 (1995). Section 28-1-116 therefore does not confer appealability on the court’s order declaring the Bank to be the trustee.
We understand that, as a practical matter, the Bank would prefer to settle the question of its trusteeship on appeal before providing the accounting ordered by the court. The Bank may wish to consider Ark. R. Civ. P. Rule 54(b) (2014), which permits a circuit court to certify an order as appealable even where all claims in the case have not been resolved. The certification must be contained in a Rule 54(b) certificate that appears immediately after the court’s signature on the judgment, and the certificate must contain “an express determination, supported by specific factual findings, that there is no just reason for delay” of an appeal. Ark. R. Civ. P. 54(b)(1) (2014).
Without commenting on the propriety of a Rule 54(b) certificate or its future | ^contents, we simply bring this rule to the Bank’s attention. For now, in the absence of a final order or an order containing a proper Rule 54(b) certificate, followed by a timely notice of appeal, we lack jurisdiction to review the challenged order. We therefore dismiss the appeal without prejudice.
Dismissed without prejudice.
HARRISON and GRUBER, JJ., agree.
. The court stayed its orders pending appeal.
. The jurisdictional divide between trust and probate cases no longer exists because amendment 80 to the Arkansas Constitution gave the circuit court jurisdiction over all matters previously cognizable in circuit, chancery, probate, and juvenile court. In re Estate of Thompson, 2014 Ark. 237, 434 S.W.3d 877. However, the distinction remains for the purpose of determining whether an immediate appeal may be taken under section 28-1-116. See, e.g., Long v. Alford, 2010 Ark. App. 233, at 2 n. 1, 374 S.W.3d 219, 220 n. 1.
. Our analysis applies equally to the Bank's appeal from the attorney-fee order. Without a final order, no appeal can be entertained by our court, even on a collateral issue such as attorney’s fees. LaRue v. Ground Zero Constr. Co., 2014 Ark. App. 93, 2014 WL 580056. | [
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ROBIN F. WYNNE, Judge.
|, Johnson County Regional Medical Center and Risk Management Resources appeal from a decision of the Arkansas Workers’ Compensation Commission in which the Commission awarded Freddie Dean Lindsey additional medical benefits, additional temporary-total disability (TTD) benefits, and wage-loss disability benefits. Appellants argue that appellee’s claim for wage-loss disability benefits is barred by statute. Alternatively, they argue that the award of wage loss by the Commission is not supported by substantial evidence. We affirm.
Appellee worked for Johnson • County Regional Medical Center as a paramedic. He injured his back on May 20, 2007, as he was attempting to lift a large patient from her bed. An MRI revealed a right-sided disc herniation at L5-S1. He underwent a lumbar diskectomy at L5-S1 in July 2007 that was performed by Dr. Arthur Johnson. Appellee experienced an l2exacerbation of his pain following the procedure and was treated with epidural steroid injections. On May 14, 2008, Dr. Johnson stated in a letter that appellee had reached maximum-medical improvement (MMI) and assigned a physical impairment rating of ten percent to the body as a whole. Appellee underwent a functional capacity evaluation (FCE) in June 2008, which revealed that he could perform medium-duty work. Dr. Johnson returned appellee to work at medium duty. At the end of June 2008, the medical center offered appellee a position as a phlebotomist. The duties for that position required continuous standing and walking, lifting and carrying up to thirty pounds, and occasional pushing/pulling up to forty pounds. Ap-pellee refused the position, claiming that he could not perform the duties necessary for the position. After that, the medical center made no further offers of employment to appellee, and appellee did not contact the medical center to inquire about any available positions.
In June 2008, appellee reported a significant increase in back pain while he was attempting to pick plums off a tree. An MRI performed in July 2008 revealed scarring at the site of appellee’s surgery. On July 22, 2008, Dr. Johnson recommended that appellee undergo a discogram to determine whether appellee’s pain was “diskogenic in nature.” Appellee underwent the discogram in November 2008. Dr. D. Luke Knox reported in January 2009 that the discogram provided appellee with 100% relief and that appellee was prepared to go forward with fusion surgery. Dr. Knox performed the surgery on May 28, 2009. Appellee initially reported improvement following the surgery, but reported in January 2010 that some of his back and leg pain had redeveloped. Following another FCE in May 2010, Dr. Knox |scleared appellee to a light classification of work. Dr. Knox also assessed a permanent-physical-impairment rating of fourteen percent to the body as a whole. Due to ongoing issues with pain, Dr. Knox performed a removal of the hardware from the fusion surgery in July 2011.
Appellee underwent a vocational assessment in September 2011, performed by Heather Taylor, a vocational consultant. Based on the assessment, Ms. Taylor concluded that appellee would have options to pursue employment in light-duty positions in the medical field. Ms. Taylor’s report states that light duty requires occasional lifting of eleven to twenty pounds, frequent lifting of one to twenty pounds, constant lifting of negligible weight, and frequent standing or walking. Her report included a list of potential jobs, including medical records clerk, medical assistant, medical billing, and medical coding.
The parties held a hearing before an administrative law judge (ALJ) regarding appellee’s entitlement to additional medical benefits, additional TTD benefits, and wage-loss disability benefits. Appellee testified that he was fifty-four years old, had a GED, and had completed the paramedic program at the University of Arkansas for Medical Sciences. He worked as a paramedic from 1984 until he was injured on May 20, 2007. He had not worked since his injury. He testified that he was offered a phlebotomist position by the hospi tal, but maintained that he could not have performed that position because he could not have done the bending and stooping required for the position. The hospital had not offered him any other positions. He had not done anything to look for work. Appellee testified that he could 14sit up and stand for fifteen to twenty minutes. His back was still hurting as of the time of the hearing. He had also had three heart attacks and a quadruple-bypass surgery since his injury. Appellee testified that he was receiving approximately $1204 per month in social-security disability benefits and had been receiving the benefits for three years.
Maribel Baker, the hospital’s assistant administrator of human resources, testified that the phlebotomist position was the only one approved to be offered to appellee. Appellee would have earned the same hourly rate in that position as he had as a paramedic. Appellee was offered the position at the end of June 2008 and refused it without explanation. No other positions were offered to appellee. Heather Taylor testified that she believed there were light-duty and sedentary positions that appellee could perform in the medical field. She did not know how many jobs would be available in his area or if any of the recommended positions would be available at all.
The ALJ issued an opinion in which she found, among other things, that appellee was not entitled to wage-loss disability benefits. Appeal was taken to the Commission, which reversed the decision of the ALJ and awarded appellee wage-loss disability benefits in the amount of thirty percent rated to the body as a whole. This appeal followed.
When reviewing a decision of the Commission, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirms the decision if it is supported by substantial evidence. Patton v. Jim Smith Collision & Wrecker, 2010 Ark. App. 420, 2010 WL 1905096. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if ^reasonable minds could reach the Commission’s conclusion, we must affirm. Id.
Appellants’ first argument on appeal is that the Commission erred in holding that wage-loss benefits can be awarded to an employee who refuses a bona fide offer of employment. The Commission is authorized under Arkansas Code Annotated section 11 — 9—522(b)(1) to consider claims for permanent-partial disability benefits in excess of the employee’s percentage of permanent-physical impairment for unscheduled injuries. An injury to the back is unscheduled. According to Arkansas Code Annotated section 11 — 9—522(b)(2) (Repl.2012),
[S]o long as an employee, subsequent to his or her injury, has returned to work, has obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than his or her average weekly wage at the time of the accident, he or she shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by a preponderance of the medical testimony and evidence.
The Commission agreed with appellants that the offer of the phlebotomist position in 2008 constituted a bona fide job offer for the purposes of section 11 — 9—522(b)(2). However, appellee’s injury necessitated additional surgeries after the job offer was made, and in 2010, he was released to light-duty work. At that point, the duties of the phlebotomist position were outside of his restrictions. No offer of employment was extended to appellee after he was released to light duty.
The prohibition from receiving wage-loss benefits under section 11 — 9—522(b)(2) remains in effect only so long as the conditions necessitating the bar exist. See Belcher v. Holiday Inn, 48 Ark.App. 157, 868 S.W.2d 87 (1993). In this case, the bar was the bona fide offer of employment. We have previously stated that an employee must be capable of | fiperforming the required job activities in order for the proposed position to be considered a bona fide offer of employment. Wal-Mart Associates, Inc. v. Keys, 2012 Ark. App. 559, at 8, 423 S.W.3d 683, 688. When appel-lee’s condition worsened, and his duty classification changed, the offer of employment as a phlebotomist was no longer a bona fide offer for the purposes of section 11-9-522(b)(2). Despite appellants’ contention to the contrary, the Commission did not find that they were required to extend numerous offers of employment. There simply had to be a bona fide offer of employment to appellee for the bar to receiving wage-loss benefits to remain in place. Likewise, appellants’ contention that the Commission required them to extend an offer of employment after the final impairment rating was issued is without merit, as the Commission’s decision only required them to extend a job offer that fit within appellee’s restrictions in order for that position to constitute a bona fide offer of employment. Once there was no longer a bona fide offer of employment on the table, appellee was no longer barred from receiving wage-loss disability benefits under section 11 — 9—522(b)(2). See JB Drilling Co. v. Lawrence, 45 Ark.App. 157, 873 S.W.2d 817 (holding that a claimant was not barred from receiving wage-loss benefits, despite the fact that he- voluntarily quit his position with the employer, because his condition worsened, resulting in his being unable to perform his previous job duties). Therefore, the Commission did not err by finding that appellee was not barred from receiving wage-loss benefits.
Appellants’ second argument is that the Commission’s award of wage-loss disability |7benefits is not supported by substantial evidence. The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Drake v. Sheridan Sch. Dist., 2013 Ark. App. 150, 2013 WL 765188. When determining wage-loss disability, the Commission should consider, in addition to medical evidence, the claimant’s age, education, experience, and other factors affecting wage loss. Id. Other factors may include, but are not limited to, motivation to return to work, post-injury earnings, credibility, and demeanor. Id. A lack of interest in pursuing employment impedes the assessment of the claimant’s loss of earning capacity, although it is not a complete bar. Id. The Commission may use its own superior knowledge of industrial demands, limitations, and requirements in conjunction with the evidence to determine wage-loss disability. Id.
Here, the evidence before the Commission was that appellee was a fifty-four-year-old man with a GED whose only additional education was a paramedic program. He had worked as a paramedic for twenty-three years before he was injured. He was unable to perform his duties as a paramedic after his injury. While the Commission noted that appellee did not appear motivated to return to work, that is but one factor among several others for the Commission to consider. Appellants also point to the transferrable skills they assert would allow appellee to resume working. That evidence was before the Commission to consider in determining the extent of appellee’s wage loss. The Commission weighed the wage-loss factors and determined that appellee sustained wage-loss in the amount of thirty percent. We hold that this finding is supported by substantial evidence of record.
Affirmed.
GLADWIN, C.J., and PITTMAN, J., agree.
. Dr. Knox later added one percent to the rating for a total impairment rating of fifteen percent.
. Appellants also assert that Arkansas Code Annotated section 11-9-526 would bar benefits. The Commission did not rule on this argument, precluding consideration of it on appeal. Qualserv Corp. v. Rich, 2011 Ark. App. 548, 2011 WL 4388302. | [
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JIM HANNAH, Chief Justice.
|,The State brings this interlocutory appeal pursuant to Arkansas Rule of Appellate Procedure — Criminal 3 (2014) and contends that the circuit court erred in granting appellee Stephen Crane’s motion to suppress. On appeal, the State contends that, because the material-witness rule does not apply to search-and-seizure cases, the circuit court erred as a matter of law by concluding that additional officer testimony was required to support the “pat down” of Crane. The State also contends that the circuit court erred as a matter of law when it found that a warrant was required to search the locked safe discovered in Crane’s minivan. We dismiss the appeal in part and reverse and remand to the circuit court in part.
On October 25, 2012, law enforcement officers in Calhoun County arrested Robert Martin after discovering a large quantity of methamphetamine in his vehicle incident to a traffic stop on the parking lot of an Arkansas Game and Fish Commission facility. Martin told |2officers that another individual, later identified as ap-pellee, Stephen Crane, had arranged to purchase $5,000 worth of methamphetamine from him in the next hour, and Martin allowed officers to view text messages that Crane had sent him. After Crane sent a text message to Martin to arrange a meeting, officers using Martin’s phone responded to Crane via text message and told him to come to a location in Calhoun County “to do the deal.”
Crane arrived at the agreed-upon location, exited his minivan, and walked to the front of Martin’s vehicle. Shortly thereafter, officers asked, “What’s your name?” When Crane answered, “Steve Crane,” officers took custody of him and conducted a pat-down search of his person that resulted in the discovery of methamphetamine in his pocket. Officers then arrested Crane and searched his minivan, which led to the discovery of a safe containing $5,000, drug paraphernalia, a small baggie of suspected methamphetamine, and a .32-caliber Smith and Wesson pistol.
On November 30, 2012, the State charged Crane with possession of methamphetamine with the purpose to deliver, possession of drug paraphernalia, unlawful use of a communication device, and simultaneous possession of drugs and a firearm. Crane filed a motion to suppress and an amended motion to suppress, arguing that all items discovered during the search of his person and his minivan should be excluded. The State responded, and the circuit court held a hearing on the motion. Darrell Sells, an agent with the Thirteenth Judicial Drug Task Force, was the sole witness at the hearing. According to Sells, “[o]nce we arrived [at the scene], I believe it was Officer Houston Bradshaw [who] | spatted him down. The wildlife officer advised me he’s got meth in his pocket.” Sells stated that he observed the “pat down” of Crane, that he saw what appeared to be methamphetamine removed from Crane’s person, and that the discovery of the suspected methamphetamine gave officers probable cause to search Crane’s minivan. Further, Sells stated that, “in a sense,” the minivan was searched for the safety of officers because “[a]ny time you’re dealing with methamphetamine there is a chance you could have chemicals of different types.” At the conclusion of the hearing, the circuit court ordered further briefing.
Meanwhile, Martin, who had also been charged with drug offenses, filed a motion to suppress, arguing that all evidence seized and statements made by him before and after his arrest on October 25, 2012, should be suppressed. The circuit court entered an order granting Martin’s motion to suppress statements and denying his motion to suppress evidence. Thereafter, the circuit court entered an order granting Crane’s motion to suppress, finding that all evidence seized or statements made by Crane based on information received from Martin should be suppressed under the doctrine of the fruit of the poisonous tree. The State requested reconsideration, and in a supplemental order granting Crane’s motion to suppress, the circuit court stated that, although it agreed with the State that Crane was “without standing, under the current state of our law, to rely on the failures of law enforcement in [Martin’s] case, suppression of the contents of the safe found in [Crane’s] vehicle and the evidence seized as a result of an alleged ‘pat down’ must still be the result” |4because there were no exigent circumstances to justify the warrantless search of the safe and there was “no valid or tangible evidence that the ‘pat down’ of Crane was legal or appropriate.” The State appeals the circuit court’s supplemental order granting Crane’s motion to suppress.
As a threshold matter, we must determine the propriety of this appeal under Rule 3 of the Arkansas Rules of Appellate Procedure-Criminal. Pursuant to Rule 3, the State may take an interlocutory appeal “from a pretrial order in a felony prosecution which ... grants a motion under Ark. R.Crim. P. 16.2 to suppress seized evidence.” Ark. R.App. P.-Crim.3(a)(l). As this court has frequently observed, there is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the State. E.g., State v. Threadgill, 2011 Ark. 91, at 6, 382 S.W.3d 657, 660; State v. Nichols, 364 Ark. 1, 4, 216 S.W.3d 114, 116 (2005); State v. Pruitt, 347 Ark. 355, 359, 64 S.W.3d 255, 258 (2002). The former is a matter of right, whereas the latter is granted to the State pursuant to Rule 3. See, e.g., State v. Guthrie, 341 Ark. 624, 628, 19 S.W.3d 10, 13 (2000). Appeals by the State are limited to instances in which the court’s holding would be important to the correct and uniform administration of the criminal law. See, e.g., State v. Rowe, 374 Ark. 19, 22, 285 S.W.3d 614, 617 (2008). This court has held that the correct and uniform administration of the criminal law is at issue when the question presented is solely a question of law independent of the facts in the case appealed. See, e.g., State v. Myers, 2012 Ark. 453, at 4, 2012 WL 6061932. Therefore, an appeal that turns on facts unique to the case or involves a mixed question of law and fact is not a proper appeal. See id. at 5, 2012 WL 6061932.
|fiIn this case, the State has raised two issues for our review. First, the State contends that, because the material-witness rule does not apply to search-and-seizure cases, the circuit court erred as a matter of law by concluding that additional officer testimony was required to support the pat-down search of Crane. Crane responds that, because the issue involves the circuit court’s consideration of the particular facts of the case and its determination that those facts did not justify the pat-down search of Crane, this court should dismiss the State’s first point on appeal. We agree.
After hearing Sells’s testimony, the circuit court found that there was “no valid or tangible evidence” that the pat-down search was “legal or appropriate” and, therefore, the evidence obtained from that search must be suppressed. The circuit court’s decision to exclude the evidence necessarily turned on the circuit court’s determination of the credibility of Sells. We have long held that the circuit court, not this court, determines the credibility of witnesses. E.g., Nichols, 364 Ark. at 5, 216 S.W.3d at 117;. see also State v. Cherry, 2014 Ark. 194, at 7, 2014 WL 1776015 (stating that, in suppression cases, “it is the circuit court that will be the ultimate arbiter of credibility”) (quoting Jackson v. State, 2018 Ark. 201, at 11, 427 S.W.3d 607, 614). Because the resolution of the pat-down-search issue turns on the facts unique to this case, the issue is not appeal-able by the State. Accordingly, we dismiss the State’s first | fipoint on appeal.
The second issue raised by the State is that the circuit court erred as a matter of law when it found that a warrant was required to search the locked safe discovered in Crane’s minivan. This issue is proper for our review because it is a question of law independent of the facts in the case appealed: Did the circuit court’s ruling rest upon an incorrect interpretation of the automobile exception to the Fourth Amendment’s warrant requirement?
Generally, a search is considered invalid absent a warrant based on probable cause to search. See Jackson, 2013 Ark. 201, at 8, 427 S.W.3d at 613. But in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the Supreme Court of the United States established the “automobile exception” to the warrant requirement, recognizing that the mobile nature of automobiles justifies a search, based on probable cause, even when a warrant has not been obtained. See id., 427 S.W.3d at 613. Moreover, the Court has made clear that “[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); see also California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991) (“The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.”).
In the supplemental order granting Crane’s motion to suppress, the circuit court found as follows:
The search of Crane’s vehicle only revealed a black fireproof safe which was locked. Again, Crane is under arrest and his vehicle is in the custody of law enforcement. There are no exigent circumstances, thus there is no reasonable explanation as to why law enforcement did not seek a search warrant of the locked safe.
17This ruling is incorrect for two reasons. First, the ruling makes no mention of probable cause. Second, the ruling is based on the circuit court’s finding that, absent exigent circumstances, a warrant is required to search a vehicle.
In Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999), the Court granted a petition for certiorari of the judgment of the Maryland Court of Special Appeals, in which the Maryland court held that, “in order for the automobile exception to the warrant requirement to apply, there must not only be probable cause to believe that evidence of a crime is contained in the automobile, but also a separate finding of exigency precluding the police from obtaining a warrant.” Id. at 466, 119 S.Ct. 2013 (citing Dyson v. State, 122 Md.App. 413, 712 A.2d 573, 578 (Md.Ct.Spec.App.1998)). The Court reversed, holding that “the ‘automobile exception’ has no separate exigency requirement[;]” rather, it requires only a finding of probable cause. Id. at 466-67, 119 S.Ct. 2013. The Court explained,
The Fourth Amendment generally requires police to secure a warrant before conducting a search. California v. Carney, 471 U.S. 386, 390-391 [105 S.Ct. 2066, 85 L.Ed.2d 406] (1985). As we recognized nearly 75 years ago in Carroll v. United States, 267 U.S. 132, 153 [45 S.Ct. 280, 69 L.Ed. 543] (1925), there is an exception to this requirement for searches of vehicles. And under our established precedent, the “automobile exception” has no separate exigency requirement. We made this clear in United States v. Ross, 456 U.S. 798, 809 [102 S.Ct. 2157, 72 L.Ed.2d 572] (1982), when we said that in cases where there was probable cause to search a vehicle “a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not been actually obtained.” (Emphasis added.) In a case with virtually identical facts to this one (even down to the bag of cocaine in the trunk of the car), Pennsylvania v. Labron, 518 U.S. 938 [116 S.Ct. 2485, 135 L.Ed.2d 1031] (1996) (per curiam), we repeated that the automobile exception does not have a separate exigency requirement: “If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment ... permits police to search the vehicle without more.” Id. at 940 [116 S.Ct. 2485].
In this case, the Court of Special Appeals found that there was “abundant probable cause” that the car contained contraband. This finding alone satisfies the automobile exception to the Fourth Amendment’s warrant requirement, a conclusion correctly reached by the trial court when it denied respondent’s motion to suppress. |sThe holding of the Court of Special Appeals that the “automobile exception” requires a separate finding of exigency in addition to a finding of probable cause is squarely contrary to our holdings in Ross and La-bron.
Id. at 466-67,119 S.Ct. 2013.
We hold that, in the instant case, the circuit court erred as a matter of law in finding that, absent exigent circumstances, a warrant was required to search the safe in Crane’s minivan; therefore, we reverse and remand on the State’s second point on appeal. Because we have dismissed the State’s first point on appeal, the circuit court’s ruling excluding the evidence from the pat-down search stands. Accordingly, on remand, the circuit court must determine whether, independent of the evidence seized during the pat-down search, officers had probable cause to search the safe in Crane’s minivan.
Appeal dismissed in part; reversed and remanded in part.
. According to Sells, there were “[p]ossibly five” officers at the scene: Officer Houston Bradshaw, Officer Terry Clark, Director Rice, "the game and fish officer,” and Sells.
. Smith v. State, 254 Ark. 538, 542, 494 S.W.2d 489, 491 (1973), we adopted the rule that, "whenever the accused offers testimony that his confession was induced by violence, threats, coercion, or offers of reward then the burden is upon the state to produce all material witnesses who were connected with the controverted confession or give adequate explanation for their absence.” | [
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JOSEPHINE LINKER HART, Justice.
11 Upon the circuit court’s revocation of his six suspended sentences for controlled-substance convictions, appellant, Sharvelt Marquette Mister, was sentenced to a total of 57 years’ imprisonment. The Arkansas Court of Appeals affirmed the circuit court’s decision. Mister v. State, 2012 Ark. App. 375, 2012 WL 1943630. Mister then filed a petition for postconviction relief under Rule 37.1 of the Arkansas Rules of Criminal Procedure. Following a hearing, the circuit court denied the petition, and Mister now appeals. On appeal, Mister argues that his trial counsel was ineffective because counsel never explained to him his maximum sentencing exposure and also misled him about a plea offer. We hold that the circuit court did not clearly err in denying relief and affirm.
In an appeal from the denial of postcon-viction relief, this court considers whether, based on the totality of the evidence, the circuit court clearly erred in holding that counsel’s ^performance was not ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See, e.g., Cothren v. State, 344 Ark. 697, 703, 42 S.W.3d 543, 547 (2001). Under Strickland, a petitioner raising a claim of ineffective assistance of counsel must first 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. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. A petitioner making an ineffective-assistance-of-counsel claim must show that counsel’s performance fell below an objective standard of reasonableness. Id. at 687-88, 104 S.Ct. 2052. In doing so, the claimant must overcome a strong presumption that counsel’s conduct fell -within the wide range of reasonable professional assistance. Id. at 689, 104 S.Ct. 2052. Further, the petitioner must show that counsel’s deficient performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Id. at 687, 104 S.Ct. 2052. Such a showing requires that the petitioner demonstrate a reasonable probability that the fact-finder’s decision would have been different - absent counsel’s errors. Id. at 694, 104 S.Ct. 2052.
In 2001, Mister was sentenced on each of three controlled-substance offenses to nineteen years’ imprisonment with an additional suspended imposition of sentence of ten years. The record further shows that in 2007, he was sentenced on each of three controlled-substance offenses to twelve years’ imprisonment with a suspended imposition of sentence of eight years. In 2010, the State petitioned to revoke the six suspended sentences. The circuit court granted the State’s petition, and Mister was sentenced to twenty-one years’ imprisonment on each of the three 2001 convictions and eighteen years’ imprisonment on each of the three 2007 convictions. The court ran the three twenty-one-year sentences | .^concurrently, ran two of the eighteen-year sentences concurrently but consecutive to the three twenty-one-year sentences, and ran the third eighteen-year sentence consecutively to both the three twenty-one year sentences and the two eighteen-year sentences. Mister was to serve a total of fifty-seven years’ imprisonment.
At the Rule 37 hearing, Mister testified that on the day of his revocation hearing, his trial counsel, Naif Samuel Khoury, told him that he had “a twenty-year plea deal.” Mister testified that he wanted to sign the plea agreement but that Khoury told him that he had to sign the plea agreement in front of the prosecutor. Mister testified, however, that when he arrived at the hearing, he “walked into a bench trial,” and that he thought he “was going to take a plea bargain.”
Mister testified that he had previously received a plea offer of thirty years and that he had rejected it. Mister further testified that he also received another plea offer for twenty-five years. Mister testified that he wanted a twenty-year plea agreement, and Khoury told him that the State would not make such an offer, but on the day of the hearing, Khoury told him he had a twenty-year plea offer, and Mister wanted to accept it.
Mister further testified that his maximum sentencing exposure was never explained to him. Mister testified that when he received a letter from the State offering a thirty-year plea, the letter stated that his maximum exposure was 117 years. On cross-examination, Mister testified that Khoury had brought the letter over to him but did not explain to him that his exposure was 117 years. Mister testified that when he returned to prison, Khoury sent him a paper that Khoury had received from the State that set out how the 117-year sentencing |4exposure was calculated, but that Khoury had never explained it to him. During questioning by the court, Mister admitted that he knew about the 117-year sentencing exposure prior to trial and that Khoury knew about it as well. Mister agreed that he rejected the thirty-year offer and the twenty-five year offer because he did not understand the 117-year sentencing exposure.
Khoury testified that he received a letter setting out the State’s offer of thirty years’ imprisonment with the State’s estimate of 117 years and spoke to Mister about the letter but that Mister rejected the offer. Khoury testified that he also received a facsimile from the State setting out the 117-year sentencing exposure and that he went over the document with Mister. According to the document, Mister’s exposure was twenty-one years on each of the 2001 convictions and eighteen years on each of the 2007 convictions, which added to 117 years. Khoury testified that Mister appeared to understand what he was telling him but disagreed with the amount and wanted Khoury to look into it. Khoury further testified that he discussed with Mister the State’s offer of twenty-five years’ imprisonment and that Mister rejected it. Khoury also testified that, at Mister’s request, he filed a motion with the court asking the court to assess Mister’s claim that his exposure was only twenty-eight years. Khoury testified that he was never under the impression that Mister’s maximum sentencing exposure was twenty-eight years.
Khoury testified that he had prepared for the revocation hearing. Khoury also testified that he did not recall a twenty-year plea offer. Khoury was asked about a plea statement, dated the date of the hearing, with his signature on it that set out a plea offer of twenty years with | ¡-.fifteen years suspended. Khoury testified that it “looks like” an offer of twenty years. Khoury further testified, however, that “[t]his may have been something that I was pushing on the prosecutor.” At this point, the court interjected, stating that “from personal experience, having been a prosecutor in Mr. Khoury’s cases, that was something that he did with some degree of regularity, was complete plea forms and present them to the State.” In response to Khoury’s testimony, Mister again took the stand. Mister denied that Khoury explained the document setting out the State’s calculation of Mister’s 117-year maximum exposure.
In its written order, the circuit court denied Mister’s petition. The court found that the evidence adduced clearly showed Khoury’s efforts to try and resolve the matter by plea, but with the strategic and tactical plan to prepare for the hearing. Further, the court found that Khoury’s motion asserting that Mister’s maximum sentence exposure was twenty-eight years and Khoury’s counter-proposal to the State of a twenty-year sentence were both matters of trial tactics or strategy and that Khoury’s decision was supported by reasonable professional judgment.
In his argument on appeal, Mister notes that, prior to the revocation hearing, he rejected both the State’s offer of thirty years’ imprisonment and twenty-five years’ imprisonment. He asserts that, because he was under the belief that he was facing a sentencing exposure of twenty-eight years’ imprisonment, he wanted a plea, agreement for twenty years’ imprisonment. He contends that, even though the State had indicated on the plea offers that he had a maximum sentencing exposure of 117 years’ imprisonment, he “did not understand,” that Khoury “never explained to him the extent of his exposure or how the State had | (¡determined the maximum sentencing exposure was 117 years,” and that Khoury could not explain it to him since Khoury did not understand. Mister contends that had he been aware of the extent of his maximum sentencing exposure of 117 years, he would have accepted one of the State’s plea offers because that would have constituted a “fair deal,” whereas an offer of twenty-five or thirty years on a twenty-eight-year maximum sentence would not have been a “good deal.” Further, Mister asserts that Khoury was ineffective because he misled him into believing that there had been a plea offer of twenty years, and that he relied upon the misrepresentation, accepted the alleged plea offer, and expected to enter a plea on the day of the hearing instead of facing a trial. Mister alleges that Khoury never told him he was going to trial and never prepared for trial.
In considering Mister’s arguments that Khoury did not explain to him the 117-year maximum sentencing exposure, Mister admitted at the hearing that he was aware of the 117-year sentencing exposure. Further, Khoury testified that he explained to Mister the State’s calculation of the 117-year sentencing exposure. Thus, the evidence establishes that both Khoury and Mister were aware of the possible sentence and that Khoury had advised Mister about it. Even though Mister testified that Khoury did not explain it to him, Khoury testified otherwise, and the resolution of credibility issues is within the province of the circuit court. See, e.g., Johnson v. State, 321 Ark. 117, 127-28, 900 S.W.2d 940, 946 (1995).
As for Mister’s allegations relating to the twenty-year plea offer, Khoury testified that he did not recall a twenty-year plea offer from the State. Further, Mister did not present any evidence indicating that the State made such an offer. Rather, the only evidence adduced 17relating to a twenty-year plea offer was a plea statement signed, not by the State, but by Khoury, and Khoury testified that “[t]his may have been something that I was pushing on the prosecutor.” The circuit court concluded that Khoury’s coun-terproposal of a twenty-year sentence was a matter of trial tactics or strategy and that Khoury’s decision was supported by reasonable professional judgment. Where a decision by counsel was a matter of trial tactics or strategy, and that decision is supported by reasonable professional judgment, then counsel’s decision is not a basis for relief under Rule 37.1. See, e.g., Henington v. State, 2012 Ark. 181, at 9, 403 S.W.3d 55, 61-62. Though Mister further alleges that he was misled by Khoury and that Khoury never prepared for trial, the circuit court considered Khoury’s testimony that he prepared for the hearing and then found that Khoury’s strategic and tactical plan was to prepare for the hearing on the State’s petition to revoke Mister’s suspended sentences while trying to resolve the matter by plea. Resolution of issues relating to Mister’s and Khoury’s credibility was within the province of the circuit court. Johnson, supra. Based on this record, we cannot hold that the circuit court clearly erred in making this finding. Thus, we hold that Mister failed to make the requisite showing under Strickland, and we affirm.
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JOHN MAUZY PITTMAN, Judge.
|!This is an appeal and cross-appeal from an order of the Arkansas Workers’ Compensation Commission. Appellee, Joseph Fee, was employed by appellant, Kroger, when he sustained an admittedly compen-sable injury. After a hearing on appellee’s claim for benefits, the Commission issued a decision finding that all treatment received by appellee through November 15, 2012, was reasonably necessary; that replacement therapy for low testosterone was reasonably necessary to counteract side effects of medicine prescribed for ap-pellee’s compensable injury; that appellee proved entitlement to additional temporary-total-disability through December 27, 2011; and that appellee proved that he had sustained a compensable mental injury pursuant to Ark.Code Ann. § 11-9-113 (Repl.2012).
Appellant Kroger argues that there is no substantial evidence to support the findings that appellee’s treatment through November 15, 2012, was reasonably necessary; that the need 12for testosterone therapy resulted from the compensable injury; or that appellee had sustained a compensa-ble mental injury. On cross-appeal, appel-lee argues that there is no substantial evidence to support the Commission’s findings that he was not entitled to additional medical treatment after November 15, 2012, or to additional temporary-total-disability benefits after December 27, 2011. We affirm in part and reverse in part on direct appeal, and we affirm on cross-appeal.
In reviewing workers’ compensation decisions, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings,' and we affirm if the decision is supported by substantial evidence. Loar v. Cooper Tire & Rubber Co., 2014 Ark. App. 240, 2014 WL 1632547. Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. White v. Georgian-Pacific Carp., 339 Ark. 474, 6 S.W.3d 98 (1999). The determination of the credibility and weight to be given a witness’s testimony is within the sole province of the Commission; the Commission is not required to believe the testimony of any witness but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Farmers Cooperative v. Biles, 77 Ark.App. 1, 69 S.W.3d 899 (2002). The Commission has the duty of weighing medical evidence as it does any other evidence, and its resolution of the medical evidence has 13the force and effect of a jury verdict. Continental Express v. Harris, 61 Ark.App. 198, 965 S.W.2d 811 (1998).
Appellee, who was forty-two years old at the time of the Commission’s 2013 deci sion, was employed by appellant as a meat cutter in February 2000, and continued in that employment through October 7, 2010. It was stipulated that, on that date in 2010, appellee tripped and fell while unloading a truck, resulting in injury to many body parts, including his neck and back. Initial radiology testing of his neck and spine by x-ray and CT scans revealed no fractures or gross abnormalities. Suffering from low back pain and neck pain with numbness in his right hand, he was initially diagnosed by Dr. Bernard Crowell with cervical and lumbar strain and radiculopa-thy into the right upper extremity.
Dr. Crowell took appellee off work and ordered physical therapy on October 19, 2010. After several physical-therapy sessions and pain treatment with- hydroco-done, Flexeril, and naproxen, a follow-up visit on November 2, 2010, led Dr. Crowell to conclude that appellee’s symptoms remained unchanged and that his pain cycle was unbroken. Dr. Crowell renewed ap-pellee’s prescriptions, kept him off work, and ordered an MRI of his spine. The MRI was performed on December 2, 2010, by Dr. David Harshfield, Jr., who reported various abnormalities of appellee’s cervical and lumbar spine, the most significant being broad-based posterior-disc protrusion of the cervical spine.
Appellee returned to Dr. Crowell for a follow-up examination on January 13, 2011. Noting that, despite continued physical therapy, appellee was still complaining of neck pain with pain radiating into both arms, with pain, numbness, and tingling into the small finger of |4the right hand, Dr. Crowell recorded his impression as “[f]all with lumbar strain, along with broad-based disc herniations at C5-C6 and C6-C7.” Dr. Crowell noted that he was attempting to obtain approval for an epidural steroid injection to appellee’s cervical spine at C5-C6 and returned appellee to light-duty work with restrictions to begin January 17, 2011.
Appellee returned to light-duty work for approximately six weeks but ultimately was sent home by his supervisor after he complained of numbness and shoulder pain. On January 25, 2011, appellee returned to Dr. Crowell, who gave him a seven-day supply of Ambien, scheduled an epidural steroid injection at C5-C6, and referred him to Dr. Christopher Mocek. On February 15, 2011, Dr. Mocek noted cervical spine pain, low back pain, cervical radiculopathy, lumbar spondylosis, and positive indications for sexual difficulty. Dr. Mocek’s treatment plan included administration of HCD, Skelaxin, and Penn-said, and part-time work with a new weight restriction of ten pounds.
Dr. Crowell took appellee off work on March 10, 2011, and released him to light duty on March 29, 2011, restricted to sitting for four hours per day and occasional lifting up to ten pounds. On April 4, 2011, Kroger notified appellee that duty modifications had been arranged and that he was to return to work in his regular position. Appellee saw an internal medicine specialist, Dr. Daniel Cartaya, for depression on April 7, 2011. Dr. Cartaya diagnosed ap-pellee’s condition as a recurrent episode of major depressive disorder with moderate but constant depressive symptoms, secondary to his on-the-job injury and exacerbated by his relationship with his wife. A licensed clinical social worker, David Hendrix, Jr., saw appellee on April 21, 2011, noting that appellee was depressed because he | ¿was being sent back to work, because of money problems related to his injury, and because of demands placed upon him by his wife. Mr. Hendrix diagnosed depressive disorder and recommended regular talk therapy and a psychiatric evaluation for possible medication management.
On April 26, 2011, appellee followed up with Dr. Crowell, who noted that appellee was despondent, had obtained no relief from the epidural steroid injection, and complained of low back pain with pain radiating into the right leg. His impression was cervical radiculopathy and herniated nucleus pulposus of the cervical spine and low back pain. However, electrodiag-nostic testing performed on May 4, 2011, revealed no neuropathic or myopathic abnormalities of the upper extremities. Dr. Crowell took appellee off work again on May 24, 2011, noting that he could offer appellee no services other than operative intervention and stating his intention to refer appellee back to Dr. Mocek for a comprehensive plan of care rather than continued injections.
A psychiatric evaluation was performed by Dr. Robin Hickerson on July 13, 2011, who diagnosed “Adjustment Disorder with Depressed Mood and Generalized Anxiety Disorder.” Dr. Hickerson noted that ap-pellee had been prescribed Effexor for depression and was suffering sexual side effects from that drug, and she recorded that appellee was unable to work, was in chronic pain, and was very angry with Kroger for perceived unfair treatment.
On July 19, 2011, appellee was examined by Dr. James Adametz, who opined that appellee’s MRI scans of the cervical and lumbar spine were essentially normal, that the x-rays of his thoracic spine were normal, and that his nerve-conduction studies were normal. He |fistated that, although appellee appears to have “had this take over his life and been incapacitated by it,” he did not believe that appellee had sustained a serious injury or required surgery. He recommended a functional capacity evaluation, although he predicted that it would be inconsistent, and opined that it would be reasonable to provide pain management and up to two more epidural steroid injections.
In response to correspondence from Kroger, Dr. Crowell stated his diagnosis as disc herniation at C5-C6 with radiculo-pathy in the upper extremity with numbness and tingling, along with low back pain. In addition, Dr. Crowell opined that appellee had reached maximum medicál improvement on May 24, 2011. Kroger paid temporary-total-disability benefits until August 24, 2011; appellee has not since attempted to return to gainful employment.
Appellee was seen by Dr. Gary Fran-kowski for a repeat cervical-epidural steroid injection at C5-C6 on September 18, 2011. Dr. Frankowski’s notes indicate that appellee had a beneficial response to his last such injection. ' However, after seeing appellee on October 4, 2011, Dr. Crowell recorded that appellee obtained no relief at all from the second injection.
Dr. Crowell wrote Kroger on October 18, 2011, and stated that his office erred in his earlier opinion that appellee had reached maximum medical improvement, that appellee remained under his care, and that he would notify Kroger when appellee reached maximum medical improvement. On November 11, 2011, appellee participated in a functional capacity evaluation; the report stated that, although appellee demonstrated that he was at least capable |7of sedentary work, his true functional level could not be determined because he gave unreliable effort during the evaluation.
On November 17, 2011, Dr. Crowell noted that, because appellant was not a surgical candidate, he was being referred to Dr. Columbus Brown for pain management. In a letter to Kroger dated December 6, 2011, Dr. Crowell stated that, although appellee had probably reached maximum medical improvement, he would like Kroger to refer appellee to a comprehensive pain-management physician before stating categorically that appellee had in fact reached maximum medical improvement. After seeing appellee on December 15, however, Dr. Crowell noted that, because appellee was still complaining of neck and low back pain despite physical therapy and several epidural steroid injections, he intended to schedule surgery in the near future to perform an anterior-cervical dis-cectomy with interbody fusion at C5-C6.
On December 27, 2011, Dr. Adametz opined that appellee had reached maximum medical improvement and qualified for a six-percent permanent-partial impairment to the body as a whole. On February 2, 2012, Dr. Crowell signed a note stating that appellee was still under his care until further notice. On March 7, 2012, appellee was seen in Dr. Cartaya’s office complaining of panic attacks.
On April 3, 2012, the Commission approved a change of physician from Dr. Crowell to Dr. Mocek, who assessed appel-lee as suffering from cervical-spine pain, right upper-extremity radiculitis, and low back pain. Dr. Mocek recommended additional diagnostic testing. On May 17, 2012, Dr. Mocek reported that appellee complained that his pain ^medication was interfering with his sex life. On June 12, 2012, Dr. Mocek noted that appellee had benefitted from a change in medication from Effexor to Wellbutrin, and had a low testosterone level. Stating that the low testosterone was related to appellee’s taking opioid medication for his neck, Dr. Mocek ordered monthly testosterone injections to be followed by repeat testosterone-level checks two weeks after each injection.
A psychiatric evaluation of appellee was provided by Dr. Purushottam Thapa on July 5, 2012. She noted that appellee had been dealing with depression and anxiety since 2008, but that appellee stated that his current problem started with the work-related injury that he sustained on October 7, 2010. Dr. Thapa diagnosed “Major Depressive Disorder and Anxiety Disorder,” for which she prescribed Paroxetine and Clonazepam. Noting on August 9, 2012, that the Paroxetine was causing appellee sexual dysfunction, Dr. Thapa withdrew appellee from that medication and increased his dosage of Wellbutrin.
Dr. Mocek performed a diagnostic cervical medial-branch nerve block (MBNB) on September 12, 2012; he noted that he intended to repeat the procedure in one month and that, if appellee reported eighty-percent or more relief from the injections, appellee would be a candidate for radio-frequency ablation of the facet-joint nerves to provide prolonged pain relief. After a follow-up appointment on October 16, 2012, Dr. Mocek noted that appellee reported experiencing 100% relief for three to four hours after the cervical MBNB performed on September 12. Based on this result, Dr. Mocek recommended radio-frequency ablation, but this was not performed because appellant controverted any further medical treatment, testing, or medication as of October 1, 2012. On November 14, 2012, Dr. Cartaya wrote | flthat he believed that the procedure proposed by Dr. Mocek was the correct way to proceed. Appellee was last seen by Dr. Mocek on November 15, 2012. Dr. Mocek noted increased cervical and lumbar pain and radiculitis; increased appel-lee’s hydrocodone dosage; recommended a testosterone injection; and refilled appel-. lee’s medications.
Appellant argues that the Commission erred in finding that the medical treatments provided through November 15, 2012, were reasonably necessary for treatment of appellee’s compensable injury. Although couched in terms of the sufficiency of the evidence, this argument is prem ised on the assertion that the only credible medical opinion was that of Dr. Adametz, who recommended no farther treatment after the cervical-epidural steroid injection administered by Dr. Frankowski on September 18, 2011. However, the question of the credibility of medical opinions is within the sole province of the Commission; Arkansas appellate courts have consistently and repeatedly held that, when the Commission chooses to accept the opinion of one physician over that of another, the appellate court is powerless to reverse the decision. E.g., Nettleton School District v. Adams, 2010 Ark. App. 3, 2010 WL 26893.
Nor do we agree that substantial evidence is lacking to support the Commission’s finding that replacement therapy for low testosterone was reasonably necessary to counteract side-effects of medicine prescribed for appellee’s compensable injury. Appellant argues that Dr. Mocek’s opinion that opioid medications administered to relieve appellee’s pain from his compensable injury caused a drop in his testosterone level was not stated to a reasonable degree of medical certainty because it lacked the requisite degree of definiteness. See Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). We do not agree. Although it is Imtrue, as appellant notes, that Dr. Mocek wrote on August 16, 2012, that it was well known that chronic use of opioids for chronic pain “can” cause a reduction in a man’s testosterone production, this statement is taken out of context. A fair reading of the entire medical note shows that Dr. Mocek’s comment was directed not to the reason for the need for testosterone therapy, but instead to his frustration with Kroger for having denied coverage for this therapy despite the fact that the causal connection between chronic opioid use and low testosterone was well established. In any event, Dr. Mocek definitively stated his opinion regarding causation in his report of June 12, 2012, where he wrote, “The low testosterone is related to taking opioid medication for his neck.”
We agree, however, with appellant’s argument that substantial evidence is lacking to support the Commission’s finding of a compensable mental injury. The Commission based its award of compensation for psychological and psychiatric costs on Ark.Code Ann. § 11-9-113 (Repl. 2012), which requires proof that the mental injury was caused by physical injury to the body. In Amlease, Inc. v. Kuligowski, 59 Ark.App. 261, 957 S.W.2d 715 (1997), the issue was whether the claimant’s post-traumatic stress disorder was properly found to have been caused by physical injuries that he sustained in a compensable vehicular accident. We held that it was not caused by claimant’s physical injuries because the claimant admitted that his mental anguish stemmed not from his own injuries but instead from the death of the other driver involved in the accident. In Terrell v. Arkansas Trucking Service, Inc., 60 Ark.App. 93, 959 S.W.2d 70 (1998), the claimant was involved in an accident in which his truck overturned on a bridge embankment, and he subsequently suffered mental distress and was |nsafraid to drive his truck again. The issue was whether the Commission erred in denying his request for a psychological examination. We held that it did so err because such an exam was necessary for him to prove his claim of mental injury:
There is no question that appellant sustained physical injuries in the com-pensable accident. Whether the physical injuries have caused appellant’s mental distress must be answered by psychological evaluation by a licensed psychiatrist or psychologist. The results of the evaluation should make it clear whether appellant’s distress is the result of his physical injuries or the accident itself. For appellant’s mental injury to be compensable it must have a causal connection to his physical injuries. As the statute is written, mental injury or illness under this section is not compensable unless it is caused by the physical injuries.
Terrell, 60 Ark.App. at 96, 959 S.W.2d at 72.
Here, there was no medical opinion offered to show that appellee’s mental condition was caused by his physical injury. Although medical evidence on the issue of causation is not required in every case, see, e.g., Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999); Cooper Tire & Rubber Co. v. Strickland, 2011 Ark. App. 585, 2011 WL 4585236; Wal-Mart Stores, Inc. v. Leach, 74 Ark.App. 231, 48 S.W.3d 540 (2001), we think that such evidence was necessary in this case because appellant’s depressive and anxiety disorders were recurrences of conditions that dated to at least 2008, two years prior to his compensable injury. In the absence of any medical opinion regarding the cause of appellee’s mental distress, or evidence to show that the distress he experienced after his injury was different in degree than that experienced before the injury, we hold that there is no substantial evidence to support the Commission’s finding of a compensable mental injury under Ark. Code Ann. § 11-9-113. We express no opinion as to whether appellee’s psychiatric treatment could have been found to be compensable under § 11-9-508.
|12On cross-appeal, appellee argues that the Commission erred in finding that he was not entitled to additional medical treatment after November 15, 2012. We find no error. Medical opinion differed widely over the utility of further medical treatment, and the Commission chose to believe the opinion of Dr. Adametz on this point; this is a question of the weight of the evidence, not its sufficiency. See Nettleton School District v. Adams, supra.
Appellee also argues that the Commission erred in finding that he proved entitlement to temporary-total disability only to December 27, 2011. Temporary-total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages; the healing period continues until the employee is as far restored as the permanent character of his injury will permit, and it ends when the underlying condition causing the disability has become stable and nothing in the way of treatment will improve that condition. Carroll General Hospital v. Green, 54 Ark.App. 102, 923 S.W.2d 878 (1996). Determining when the healing period ends is a fact question for the Commission. Id. Although there was opinion offered to the contrary, here the Commission’s finding as to the end of the healing period was based on Dr. Adametz’s express opinion that appellee had reached maximum medical improvement as of that date. This, too, is a matter of credibility into which we may not intrude. See id.
Affirmed in part and reversed in part on direct appeal; affirmed on cross-appeal.
GLADWIN, C.J., and WYNNE, J., agree. | [
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BART F. VIRDEN, Judge
hOn February 20, 2013, motorist Katherine Keller rear-ended the vehicle driven by Mary Wallis in stop-and-go traffic on I-49 (formerly 1-540). Keller eventually admitted fault. Wallis filed a claim against Keller seeking damages for pain and suffering and mental -anguish. The jury found in favor of Wallis, but returned a verdict of zero damages. Wallis filed a motion for a new trial based on Arkansas Rule of Civil- Procedure 59(a)(5) and (6), which was deemed denied. Wallis appeals, asserting that zero damages was not a verdict the jury could deliver. We affirm.
I. Facts
At'trial, Keller’s attorney stated in opening statements that, “it’s not, folks, that they are not entitled to anything. It’s not "that she’s not entitled to anything, it’s that they’ve got to prove that they’re- entitled to $25,000 at minimum or $100,000 at maximum.”-’
’ |2Wallis’s family members testified about her reduced capacity since the accident. Wallis’s son, Todd, testified that she was no longer able to attend his three children’s numerous sporting events, which she had done regularly before the accident. He testified that she was a very active, busy person before the accident and that the accident “really slowed her down. It’s kind of made it where she’s constantly in back pain. Not constantly, but it’s regular. Migraines from it. It slowed her down,”
Wallis’s youngest son, Trent, also testified that his mother no longer participated in bovding, playing catch with him, gardening, cleaning, cooking, and playing with their dogs. He also testified that Wallis had back surgery in 2002.
Wallis’s husband, Richard, testified about her inability to maintain the level of activity she enjoyed prior to the accident and that he and the children and grandchildren had begun helping out with the housework. He described his wife’s physical state immediately after the accident, testifying that she “couldn’t hardly get up. I mean she’s real tender. She basically just laid down.” He testified that basically nothing relieved her pain, that she just had good days and bad days, and was not “the same dynamo she was before[.]” On cross-examination, Richard stated that she went back to work a week after the accident. He testified that his wife has worked full-time and has at times taken a second job while he was being treated for colon cancer. He also stated that, apart from the.initial visit to the doctor a week after the accident, Wallis had seep a physi.cian for back pain only once about a year later.
Wallis testified that immediately after the accident, she . was able to get up and walk around and did not realize the extent ‘of her injuries. Within half an hour, she was having back [¡¡spasms and allowed the EMT to place her in a collar and on a back board and transport her to the hospital via ambulance. After she was x-rayed, she was instructed to take a week off of work, and she was given pain medications. Wallis went to her regular physician for a follow-iip visit a week after the accident, and he prescribed anti-inflammatory medicine, Naproxen, and adjusted her pain medications. He diagnosed her with lumbar strain due to a motor-vehicle accident. Wallis also testified that she underwent back surgery in 2002 to address ruptured disks in the L4/L5 region of her spine. She stated that the surgery, combined with physical therapy, was successful and that after the surgery (but prior to the accident) she had felt mild back pain from time to time that could be managed with Tylenol or Motrin, but that it “wasn’t enough to put me down to where I couldn’t do anything,” Wallis. described her job history, and said that she had worked full-time since the accident, occasionally having two jobs and other times only having one job.
Wallis testified how her life had changed since the accident. She stated that she no longer cleaned the house as before, and that “I just don’t live my life like I have prior to the -wreck.” She testified that nothing relieved the pain and- that sitting, standing, walking, lying down, and basically all daily activities aggravated the sharp pain in her back. ■
Keller also testified about how the accident happened and that Wallis seemed okay immediately afterward and was walking around.
In closing arguments the defense argued that “The only thing they are asking for is pain and suffering. Have they met that burden of proof? Is that the kind of proof you would want if you had a friend or a loved one sitting where Kate is today? I submit to you that it is not.” 14Then, the defense went on to say, “Now I think the case is worth some money ... I’d start at the $1000 range* or the $3000 range” and asked the jury to “return a verdict that’s reasonablef.]”
The jury returned a verdict finding in favor of Wallis, but awarded no damages for pain and suffering and mental anguish. Wallis filed a motion seeking a new trial, arguing that' the jury was in error in awarding nothing. The circuit court did not act on the motion within thirty days, and it was deemed denied. This appeal follows.
II. Standard of Revieiv
When the primary issue is the alleged inadequacy of the damage award, we will affirm the denial of a motion for a new trial absent a clear and manifest abuse of discretion. Fritz v. Baptist Mem’l Health Care Corp., 92 Ark. App. 181, 184, 211 S.W.3d 593, 595 (2005). An important consideration is whether a fair-minded jury could have reasonably fixed the award at the challenged amount. Depew v. Jackson, 330 Ark. 733, 740, 957 S.W.2d 177, 181 (1997). When a motion for a new trial is made on the ground that the verdict is clearly contrary to the preponderance of the evidence, we will likewise affirm the denial of the motion if the jury’s verdict is supported by substantial evidence. Barringer v. Hall, 89 Ark. App. 293, 300, 202 S.W.3d 568, 573 (2005).
The jury is the sole judge of the credibility of the witnesses and of the weight and value of their evidence. Kempner v. Schulte, 318 Ark. 433, 436, 885 S.W.2d 892, 893 (1994). It may believe or disbelieve the testimony of any one or. all of the witnesses, though such evidence is uncontradicted and unimpeached. Id.
|BIII. Arkansas Code Annotated ' § 16-64-119(b) . ,
Keller argues that Wallis ■ waived any objection to the jury’s verdict under Arkansas Code Annotated section 16-64-119 when she failed to poll the jury before they were dismissed. Declining to poll the jury does not bar an appeal under Rule-59. Keller’s argument concerning the statute is misapplied under the present circumstances.
Arkansas Code Annotated section 16-64-119(b) sets forth that after the verdict has been read by the foreman, “either party may require the jury to be polled, which is done by the clerk or court asking each juror if it is his or her verdict. If any one answers in the negative, the jury must again be sent out for further deliberation.” Subsection (d)(2) dictates that when there is no disagreement and neither party polls the jury, “the verdict is complete and the jury discharged from the case.” Before the discharge of the jury, the parties have a right to have jurors polled and to call for corrective measures to cure any apparent confusion. Smith v. Perkins, 246 Ark. 427, 429, 439 S.W.2d 275, 276 (1969). The purpose of the statute is to isolate any irregularity or inconsistency in the verdict, such as the jury’s misunderstanding of jury in structions, for example. See Spears v. Mills, 347 Ark. 932, 69 S.W.3d 407 (2002). We have not held that a party’s claim under Rule 69(a)(5) or (6) can arise only under circumstances involving jury confusion or an inconsistency in the verdict, creating a situation in which it would be helpful to poll the jury. The necessity of polling the jury, or lack thereof, is not'at issue here. We find no merit to this argument on appeal and do not discuss it further. '
IV. Rule 59(a)(5) and (6)-
We now turn to Wallis’s assertion that the zero verdict awarded by the jury was in error. | gWallis divides her argument into two points: (1) error exists in the amount of recovery; and ¡(2) the award -is clearly against the preponderance of the evidence. Because the two points are so closely related, we shall address them together,
Wallis contends that Keller’s attorney’s statements in opening and clo'sing argument that the case was worth “some money” amounted to a concession, and therefore the jury was obliged to award damages for pain and suffering. Therefore, she argues, under Rule 59, she should have been granted a new trial because the jury’s verdict was clearly contrary to the preponderance of the evidence, and the award was inadequate.
Rule 59(a) (5) of the Arkansas Rules of Civil Procedure provides that a new trial may be granted on the ground of error in the assessment of the amount of the recovery, whether too large or too small. Subsection (6) of Rule 59(a) allows for a new trial when “the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law.”
Wallis cites Machost v. Simians, 86 Ark. App. 47, 158 S.W.3d 726 (2004), in support of her assertion that the zero award was in error. In Machost, the appellant appealed from the denial of her motion for new trial after a jury returned a,verdict in her favor for $2000 in her negligence action; against appellee Simkins. As in our case, Sim-kins’s liability was not in dispute. Sim-kins’s attorney conceded in both opening and closing arguments to the jury that Machost’s medical bills were both reasonable and necessary. However, in Machost, the jury was instructed to assess the medical expenses as well as pain and suffering, and mental anguish. There was testimony from Machost and her physician about the medical costs incurred:
She [Machost] explained that her medical bills amounted to about $10,000, including approximately $3000 from the emergency room, and approximately $5000 for physical 17therapy. At the end of her statement, she requested an award, for medical expenses and for pain and suffering.
Id. at 50,158 S.W.3d at 727.
Unlike Machost, in the present case, medical expenses were not at issue or requested by Wallis. She requested the jury consider only her pain and suffering, and mental anguish in assessing damages. The testimony heard by the jury concerning Wallis’s damages was anecdotal evidence from herself and her family. While such evidence is permitted and common in such proceedings, it does not establish a fact beyond a jury’s determination. As stated above, the jury is the sole judge of the credibility of the witnesses and of the weight and value of the evidence. Kemp-ner, supra. The jury could have reasonably decided that the testimony from only family members was not reliable or persuasive as to the damages requested.
Furthermore, our supreme court has held that the admission of fault by a defendant does not automatically entitle the plaintiff to recover damages. James v. Bill C. Harris Constr. Co., Inc., 297 Ark. 435, 440, 763 S.W.2d 640, 642 (1989). In Barnes v. Everett, 351 Ark. 479, 491, 95 S.W.3d 740, 747 (2003), the supreme court declined to accept statements that the ap-pellee had made during closing arguments in appellant’s earlier case as proof of the value of appellant’s claim. Barnes had alleged that her attorney committed malpractice by advising her to settle a claim. To prove damages, Barnes attempted to use statements her attorney made in closing argument during the original trial as evidence of what, her claim was worth'. Barnes characterized these statements as admissions and argued that her attorney’s statements were substantive evidence of the- value of her claim. The supreme court held that the statements were not admissions, stating, “we agree with the circuit court that such statements made on behalf lsof a client and under the duty to zealously represent the client may not be characterized as personal admission on the attorney’s part. Indeed, statements made by attorneys during opening statement and closing argument are not even considered as evidence at all.” Id. at 490, 95 S.W.3d at 749.
On the other hand, in Yeager v. Roberts, 288 Ark. 156, 157, 702 S.W.2d 793, 794 (1986), our supreme court held that the appellant’s lawyer had conceded liability in his closing argument, and therefore it was not an abuse of discretion to grant the new trial where the jury found in favor of appellant despite his admission of liability. During closing argument, appellant’s attorney stated, “We will concede the accident was our fault.”. The jury, however, returned a verdict in favor of the appellant. The appellee moved for a new trial, and it was granted. There are two distinctions between Yeager and the present case. The first is that the jury in Yeager found appellant free from liability when appellant’s attorney admitted liability. In the present case, the jury found ■ in favor of Wallis, but awarded no damages. The second difference is that in Yeager our supreme court held only that the circuit court did not abuse its discretion in considering, an attorney’s statements made during closing arguments when it awjarded a new trial to appellee. The.case does not support Wallis’s assertion that the circuit court should be required to grant a new trial based on the attorney’s opening and closing statements that the case had some value. We place great value and trust on the duty and ability of juries to hear evidence, weigh that evidence, and determine if damages have been proved, and if so, to set those damages.
Based on the evidence, we believe the jury could reasonably fix Wallis’s damages at zero, Rand the verdict is supported by substantial evidence. Accordingly, we affirm the circuit court’s denial of Wallis’s motion for a new trial. ’
Affirmed.
Gruber and Whiteaker, JJ., agree. | [
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Grieein Smith, 'Chief Justice.
Unauthorized diversion of the natural flowage of Garrison Creek .and resulting damage to farm lands were alleged in the complaint, resulting in judgment for $2,000.
The Railroad Company as defendant thinks the trial court erred in two respects, either of which would be. controlling: First, evidence upon which the verdict rests was insubstantial; secondly, physical transactions resulting in obstruction of the stream were departures from terms of an agreement between the Railroad Company and Maguire & O’Brien. The latter, it is contended, as' independent contractors had undertaken to perform a specific task, and in respect of means and methods appellant was not concerned. Its interest was in the result. St. Louis, I. M. & S. R’y. Co. v. Gillihan, 77 Ark. 551, 92 S. W. 793; Moore and Chicago Mill & Lumber Co. v. Phillips, 197 Ark. 131, 120 S. W. 2d 722.
Before 1942 elevation and contour of appellant’s lines between Van Burén and Greenwood Junction were unsatisfactory. The trackage was less than half a mile from Arkansas River at points where the right-of-way adjoined nearly 150 acres of Yerna Williams’ land that is generally south of where new construction was necessary.
Maguire & O’Brien, supervised by appellant’s engineer, or contractually subject to his supervision, dumped into the stream a small quantity of stone, ‘ ‘ . . . very sizeable, . . . the largest about a yard, . . . probably 1,000 or 1,500 pounds of these.” But in addition there was an area 880 feet along the track where rock or shale had been removed and deposited on or near Mrs. Williams ’ property. The wastepile varies in depth from an estimated ten or twelve feet; and for a distance of 600 feet the width is from 25 to 55 feet.
When water from the creek is forced against this fill there is no natural outlet to the north, particularly at points designated as, essential by the engineer-witness L. B. Bryan, who said that the area owned by appellee to the south was “low bottom land” suitable for spinach. In substance the testimony sums up to the proposition that although the lands now are, and formerly had been subject to Arkansas River overflows, and no one could say with mathematical accuracy how much head- or backwater would be impeded in escape to the river because of the obstruction, it was quite obvious the natural grade had been changed, and that acceleration of flowage was causing erosion, with resulting damage.
It was sought to show that a small bridge built of concrete, dirt, and stone, with a 42-inch drainpipe beneath, might account for some of the damage. The structure had been erected for Mrs. Williams at a cost of $564. Pacts relating to it and a probability that it would measurably contribute to the injuries were before the jury, and the presumption attaches that they were taken into consideration.
Was the verdict justified!
When insufficiency of evidence is alleged we look to the abstract to determine whether, as a matter of law, there was substantial testimony upon which the verdict could rest. When at trial the plaintiff has met this burden, or if a deficiency has been inadvertently supplied by the defendant, it is the Court’s duty to submit the controversy to the jury. If in the Court’s opinion the verdict is not sustained by a preponderance of the evidence, it should be set aside. On appeal, however, there is a conclusive presumption that the Circuit Judge exercised a sound discretion; hence we look only for substantiality in the evidence as distinguished from a preponderance. But see Mueller v. Coffman, 132 Ark. 45, 200 S. W. 136.
It is insisted that because Mrs. Williams (who dealt in real estate and had knowledge of market values) testified the lands adversely affected were worth $5,000 before the dump was erected and only $3,000 thereafter, it is not reasonable to say that the difference of $2,000 was a loss she sustained because of the tort; and this, it is argued, is demonstrated by appellee who as a witness in March 1947 when asked if she would sell for $5,000, replied that she would not. We agree with counsel for appellee that Mrs. Williams could truthfully express her opinion regarding the extent of damage and at the same time exercise a right to refuse $5,000 for the property, even though she believed it to be intrinsically worth but $3,000. The area of 150 acres adjoined other property she owned, and though eroded, it could have a sentimental value, or a usage peculiar to appellee’s needs. The estimate of $5,000 related to 1942, or 2943, and the damage occurred when the embankment was erected. ■ Suit was filed in October 1944. The contract called for completion of the work in July 1942.
There is no occasion to pass upon what may appear to be an inconsistent attitude, but one which is not, as a matter of lawT, contradictory. It is, nevertheless, quite evident that the full impact of .the injury was computed and- that the loss of $2,000 covered present and prospective depreciation, and excludes the theory of recurrence.
Appellant’s plea that it is relieved because Maguire & O’Brien were independent contractors must fail, even if it should be conceded that in some respects Railroad v. Gillihan, and Moore, etc., v. Phillips, have analogy with the case at bar. One controlling distinction severs recourse to the authorities relied upon.
The Construction Contract (1-a) defines engineer as “the carrier’s . . . duly authorized representative.” The specifications for grading deal with materials from excavations. If the quantity excavated exceeded requirements for building embankments, “ ... the surplus shall be used or disposed of as directed by the Engineer. ’ ’
This is not a controversy between the Railroad Company and its contracting firm. Appellant had the right by independent action (or possibly by affirmative pleadings in this suit) to seek reimbursement for any loss it sustained by reason of faulty disposal. In the absence of any showing other than the contract it must be pre sümed' that the Engineer acquiesced in what was done. Bnt whether he did or did not, he had that right, and if not availed of then, appellant cannot now avoid-liability for something another did that the engineer conld have prevented.
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Minor W. Millwee, Justice.
Appellee, Aubrey Hickenbottom, filed suit in tbe Boone Chancery Court against the Commissioner of Revenues of the State of Arkansas and the Circuit Clerk and Sheriff of Boone county to restrain them from proceeding to issue and levy an execution based upon a certificate of indebtedness filed in compliance with Act 386 of 1941. The petition alleged: “That defendant Otho A. Cook is Arkansas Revenue Commissioner and as such claims to have judgment against this plaintiff on some alleged cause of action which claim is not true; that any alleged or ostensible judgment is spurious and any claim which said defendant as such Commissioner may claim is ungrounded in fact . . .” It was also alleged that appellee would suffer irreparable damage unless the defendants were restrained from issuing and serving the writ of execution. The petition was filed on May 31, 1947, and a temporary restraining order was entered by the trial court on the same date pursuant to the prayer of the petition.
On June 10,1947, appellant, the State Revenue Commissioner, filed a motion to dismiss the petition and dissolve the temporary restraining order. The motion contains the following allegations:
“1. On February 22, 1946, the Commissioner of Revenues, Otho A. Cook, gave notice to the plaintiff of his intention to file a Certificate of Indebtedness for the collection of Gross Receipts Tax owed the State of Arkansas by the plaintiff upon the sale of used automobiles in this state for the period beginning January 1, 1943, to February 21,1945, both inclusive together with penalty thereon, as provided by said Gross Receipts Tax Act (Act 386 of the Acts of 1941) in the total sum $1,093.41.
‘ ‘ That said notice was in accordance with the provisions of said Gross Receipts Tax Act and that thereafter on November 4, 1946, the said Commissioner filed said Certificate of Indebtedness with the Circuit Court Clerk of Boone county, to be entered in the Circuit Court Judgment Docket as provided by § 11 of said Act, and that the entry of the Certificate of Indebtedness in said docket constitutes a judgment as though rendered by the Circuit Court of said county, which judgment is a lien upon all the real and personal property of the plaintiff.
“Defendant states that no hearing before the Commissioner was requested within the period of twenty days from the giving of said notice of intention to file said Certificate of Indebtedness and that more than thirty days lapsed between the giving of said notice and the filing of said Certificate of Indebtedness; that no appeal was filed or prayed by the plaintiff, as provided by said gross receipts tax act. Defendant, therefore, states that the entry of said Certificate of Indebtedness by the'Circuit Court Clerk of Boone county on November 8, 1946, and the execution issued thereon on November 12, 1946, became final and that the same were not appealed from and that said judgment now is in full force and effect and constitutes a prior and paramount lien upon all property, both real and personal, owned by said plaintiff. ’ ’ It was further alleged in the motion that the petition filed by appellee (plaintiff) did not state a defense to the judgment and that the court was, therefore, without jurisdiction of the suit.
Appellee filed no response to the motion of the Commissioner and at a hearing held on June 10, 1947, the chancellor overruled the motion and, the Commissioner declining to plead further, the temporary injunction was made permanent. The decree found: ‘ ‘ That the defendants are proceeding to levy upon the property of plaintiff an execution .based upon a Certificate of Indebtedness rendered without authority of law . . . ” The revenue commissioner duly excepted to the action of the trial court and has appealed.
It will be observed that the only ground of invalidity appellee alleged against the certificate of indebtedness in his petition is that said certificate was based upon a claim which was untrue and ungrounded in fact. The motion of the commissioner to dismiss and dissolve, which was not denied or otherwise controverted, states that on February 22, 1946, he notified appellee of his intention to file the certificate of indebtedness and that same was filed on November 4, 1946, as provided by 10 and 11 of Act 386 of 1941; that appellee-failed to demand a hearing within 20 days from receipt of the notice of intention to file the certificate, and failed to appeal to the chancery court within 30 days of the.giving of the notice or filing of the certificate in the office of the circuit clerk.
In construing §§ 10 and 11 of Act 386 of 1941 in the case of Harclin, Commissioner of Revenues, v. Gautney, Chancellor, 204 Ark. 723, 164 S. W. 2d 427, this court held that chancery court is without jurisdiction to entertain a suit questioning the validity of the tax and the certificate of indebtedness where such suit is filed by a taxpayer more than 30 days after filing of the certificate and due notice of the intention to file the certificate had been given as provided in the statute. It was there said:
“We think the Legislature had a right to designate a period within which one alleged to owe the State on sales tax, or two per cent, on gross receipts, would be required to make his defense. If the controversy goes only to the proposition that the transaction is . not taxable, or, if taxable, the person assessed is not the party charged by law with payment, such issue is determinable by the chancery court of the county where it is sought to compel collection — that is, where the certificate, prima facie, creates a lien. If the issue relates only to the amount of a valid tax to be paid, then it is appropriate for the General Assembly to require payment as a condition precedent to the right to litigate as to any alleged overcharge; and since the fund, when so paid, is transmitted to Little Rock, it is competent for the lawmaking body to fix the venue in Pulaski county.
“Where payment has been made, and the suit is one to recover, then the certificate of indebtedness has performed its function, and there is no lien.
“In the instant case action was not taken within thirty days; hence, the question cannot now be raised. It is true § 10 of Act 386, by its terms, requires suit to be filed in Pulaski chancery court within thirty days. Insofar as' the time element is concerned, the limitation of thirty days applies with equal force to a litigant who seeks relief in his home county where the right to assess any tax under Act 386 is challenged, and to the litigant who only questions the amount of a tax that has been legally assessed, some part of which is due.” The same result was reached in Hardin, Commissioner of Revenues, v. Norsworthy, 204 Ark. 943, 165 S. W. 2d 609.
Appellee contends that the cases above mentioned are not in point and says in his brief: “There is in this case no controversy over amount of tax due, if any; nor are we concerned with any question as to whether proper notice, hearing, or other preliminary procedure was duly given, held, or followed.” Appellee then argues that the action of the chancellor in overruling the motion to dismiss and restraining the commissioner and county officers should be sustained because the attorney for the revenue commissioner was without authority to sign the certificate of indebtedness which was filed in the instant case. This contention is untenable. Appellee did not challenge the validity of the certificate of indebtedness on this ground in the petition filed by him in the chancery court and the question of the regularity of the signature to the certificate may not be raised for the first time here. According to the uncontroverted allegations of the motion to dismiss, appellee, although given due notice, waited more than six months after filing of the certificate of indebtedness and the issuance of the first execution thereon to question the validity of the tax assessed against him. If he wished to question the sufficiency or regularity of the signature to the certificate of indebtedness, that issue should have been raised in the chancery court in a timely manner. The issue not having been raised in the petition filed in the chancery court, appellee may not rely upon it in this court on appeal.
It'follows that the trial court erred in overruling the motion of appellant to dismiss and dissolve the temporary injunction. The decree is accordingly reversed and the cause remanded with directions to dissolve the permanent injunction and dismiss, the petition of appellee. | [
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Ed. F. McFaddin, Justice.
This suit is an attempt by appellant to cancel a lease of a store building.
Appellant, as plaintiff below, filed his amended and substituted complaint in the chancery court, alleging:
(1) that plaintiff is the executor of the last will and testament of Mrs. Nora Bice, deceased, and, as such, is under duty to sell the real estate of the deceased;
(2) that the deceased was the owner of the store building involved in this litigation, and now occupied by the defendant Bobert Emrich;
(3) that the defendant “is a tenant in this property and claims the right to use and occupy same until June 6, 1955”; and such claim for continued occupancy prevents the plaintiff from selling the property, and thereby damages the estate;
(4) that the defendant claims that he has the right to hold possession until June 6, 1955, by virtue of a certain written lease as follows:
“Bent Contract
“This contract made and entered into this day by and between Jimmie J. Penn, Lessee, and Lewis Machine Company of Joplin, Mo., as tenant for sub-lease, is as follows, to-wit:
‘ ‘ The said.....................................................hereby lets for rental purposes unto the said Lewis Machine Company from June 10, 1946, to December 1, 1950, with option for another five years, the following:
“The building at 113 West Elm Street in Rogers, Arkansas, now occupied by the Rogers Auto Supply, for the purpose of continuing the business of said Rogers Auto Supply. The monthly rental to be $50 payable on the tenth day of each month in advance.
“The sub-lessee hereby agrees to keep the building in good condition and to return it to the lessee at the expiration of this lease in as good condition as it now is.
“Signed in triplicate this 6th day of June, 1946.
“(Signed) Jimmie J. Penn, Lessee.
“Rogers Auto Supply,
“By Carl C. Zimmerman, sub-tenant.
“Approved by owner: (Signed) Nora M. Rice.”
(5) that the sub-lease instrument was approved by Mrs. Nora Rice (appellant’s testate) under these circumstances : on June 6, 1946, Jimmie J. Penn had the building rented from Mrs. Rice on a month-to-month basis, and was operating the Rogers Auto Supply, in the building, for the Lewis Machine Company, a Missouri corporation; and Jimmie J. Penn prepared the sub-lease and obtained Mrs. Rice’s signed approval; but instead of the sub-lease being signed by Lewis Machine Company, it was signed in its trade name, i. e., “Rogers Auto Supply”— by Carl C. Zimmerman, a fellow-employee with Penn in the business;
(6) that the sub-lease agreement was not signed in the firm name of Lewis Machine Company, because that company was a Missouri corporation, and had no permit to do business in Arkansas, and -the' officers of the Lewis Machine Company directed Zimmerman to sign the lease “with and for the fraudulent purpose and intent to avoid and evade the laws of the State of Arkansas, requiring foreign corporations to be licensed in this State in order to transact business within the State of Arkansas;, . . . that the Lewis Machine Company was and is a reliable company and that if said contract had been signed by it and if it had been licensed at the time of this transaction, within the State of Arkansas, then said contract would have been in every way good and binding”;
(7) that in June, 1947, the Lewis Machine Company discharged Zimmerman, and placed the defendant Robert Emrich in charge of the Rogers Auto Supply, and that Emrich is now operating the business, but that he is insolvent and without financial resources; and that Em-rich’s statement — to the effect that he can occupy the building for the Rogers Auto Supply until June 6, 1955— is preventing the plaintiff from selling the building and causing irreparable loss to the estate of which plaintiff is executor.
The prayer of the complaint was: “Wherefore, plaintiff prays that by proper order, judgment and decree of this Court, said rent contract be canceled, set aside and held for naught together with such other and further relief as to which plaintiff may show himself entitled. ’ ’
The chancery court sustained the defendant’s general and special demurrer, and dismissed the complaint; and the plaintiff has appealed.
Many interesting questions are presented, such as (1) possession as necessary to maintain suit to remove cloud from title; (2) whether a landlord can maintain a suit to cancel a lease in the absence of a prayer for possession; and (3) the adequacy of the plaintiff’s remedy at law. We forego discussion of these questions, because the only defendant in this case is “Robert Emrich doing-business as Rogers Auto Supply”; and the allegations in the complaint show that no cause of action is alleged against Emrich.
Under the allegations of the complaint, the Léwis Machine Company has all the time owned and operated the business under the trade name of Rogers Auto Supply, and Jimmie J. Penn, Carl C. Zimmerman and Robert Emrich have been merely agents and employees of said Lewis Machine Company, Furthermore, under the allegations of the complaint, Zimmerman — in signing the lease agreement — -signed the trade name of Lewis Machine Company, i. e., Rogers Auto Supply, at the.direction of the vice-president of the Lewis Machine Company. These allegations are sufficient to justify the claim that the corporation — Lewis Machine Company — is the real defendant in interest. In 58 C. J. 720, the following is stated as the substance of judicial holdings relating to the form of signatures: “As a general rule a party may use any character, symbol, figures, or designation he thinks proper to adopt as a signature, and be bound thereby, provided it was used as a substitute for his name. A party may also use a fictitious name, a firm name, or the name of another; . . . ” See, also, 2 C. J. 671-2.
Thus, the Lewis Machine Company in having the lease agreement signed in its trade name became a necessary party defendant under the allegations of the complaint. Robert Emrich — the only named defendant — was merely an agent; the corporation, as such, should have been sued. The fact that the Lewis Machine Company is alleged to be a Missouri corporation doing business in this State without a permit would prevent the Lewis Machine Company from using the courts of this State (see § 2251, Pope’s Digest); but does not prevent the Lewis Machine Company from being sued in this State. See Mushrush v. Downing, 181 Ark. 85, 24 S. W. 2d 972.
There is no necessity for us to consider here such questions as (1) whether the foreign corporation, under the allegations made, has forfeited the benefit of its contract for failure to obtain a permit; or (2) whether Mrs. Rice, in dealing with the Lewis Machine Company, knew that it did not have a permit to do business in this State, and thereby estopped herself from claiming the contract to be forfeited for such reason. These are matters that cannot be considered until there are proper parties before the court. The extent of our holding in this cas.e is, that the plaintiff’s complaint showed on its face that the real defendant was the Lewis Machine Company, and since that company was not a party, the chancery court correctly sustained the demurrer.
Affirmed.
In the transcript the date is shown' as 19 W, but this is evidently a typographical error, since the pleadings show that it should be 1950. | [
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Robins, J.
Appellee sued appellant for $300 for damage done to appellee’s automobile in a collision between it and a truck driven by appellant on Highway 70 in Pike county. Appellant answered, denying liability and asking judgment on counter-claim against appellee for $200 to cover damage occurring to appellant’s truck in the collision.
A jury returned a verdict in favor of appellee for $175, and from judgment entered on the verdict this appeal is prosecuted.
I.
It is first urged by appellant that the lower court erred, iri permitting'plaintiff to introduce in evidence certain photographs of his damaged car. It was shown that these photographs were made a short time (“a few days or maybe a month after the car was wrecked”) and it is not contended that they did not properly represent the condition of the car after the wreck. In fact, nothing of any importance was shown by these pictures that was not brought out by testimony.
Under these circumstances, no error prejudicial to appellant was committed by the lower court in admitting these photographs in evidence.
II.
Appellant next complains of the action of the lower court in giving three separate instructions at the request of appellee. Principal complaint against these instructions is that they did not in sufficiently definite terms require proof of appellant’s negligence as a condition to recovery by appellee. The lower court gave eight different instructions at the request of appellant and in these instructions the court emphasized the fact that no recovery could be had by appellee unless the evidence showed that appellant was guilty of negligence causing or contributing to the collision. The jury were also instructed that any negligence of appellee, however slight, that caused or contributed to the collision would bar recovery by appellee.’ The court told the jury that they should consider all the instructions together. When ail the instructions are thus considered we cannot say that they incorrectly presented the law, or that the jury could have been misled thereby. Arkadelphia Lumber Co. v. Posey, 74 Ark. 377, 85 S. W. 1127; Velvin v. State, 77 Ark. 97, 90 S. W. 851; Temple Cotton Oil Co. v. Skinner, 176 Ark. 17, 2 S. W. 2d 676; Frame v. Whittam, 181 Ark. 768, 27 S. W. 2d 990; Baltimore & O. R. Co. v. McGill Bros. Rice Mill, 185 Ark. 108, 46 S. W. 2d 651.
III.
It is finally argued by appellant that the lower court erred in failing to instruct the jury to return a verdict in his favor.
The rule is well established that in determining whether a peremptory instruction should have been given by the trial court, the evidence must be given its strongest probative force in favor of the party against whom the peremptory instruction is asked. Robinson v. St. Louis-San Francisco Ry. Co., 172 Ark. 494, 289 S. W. 465; Rexer v. Carter, 208 Ark. 342, 186 S. W. 2d 147.
Viewed in this way, we conclude that the evidence warranted the refusal of the peremptory instruction and that it was sufficient to support the verdict. The testimony showed that appellee was driving his automobile along the highway when appellant attempted to drive his truck onto the highway from a private driveway entering on the north side of the highway. In doing this appellant, with appellee’s car approaching from the west in plain view, drove his truck at a right angle with the road, and the front end of the truck was (according to appellant’s admission) some distance south of the center of the highway when the collision occurred. The front of appellant’s truck struck the left side of appellee’s car about the middle thereof. The testimony of appellee and his witnesses tended to show that appellee drove out of the traveled portion of the road in an effort to avoid the collision, which they insisted was caused by appellant, after slowing down as he entered the road, suddenly starting his truck forward and running against the car of appellee. Under this xoroof the question of determining whose negligence caused the collision was one peculiarly within the province of the jurjh
No error appearing, the judgment of the lower court is áffirmed. | [
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McHaney, Justice.
Appellant sued appellee for damages in treble the amount of an overcharge made by appellee to appellant in the sale price of a 1940 one-half ton truck, which sale was made January 19, 1945. He alleged that he paid appellee $550 cash at that time and executed to him one note for $406 payable in monthly installments of $33.87 each which were paid, the last installment being paid on January 23, 1946. He also alleged that the O. P. A. ceiling price on said truck was $468, and that he had been overcharged $488.44, and he prayed damages in treble that amount, or $1,465. The suit was filed on October 26, 1946. Appellee filed a motion to dismiss the action on the ground that the suit was not filed until more than one year after the transaction, and that, under the Price Control Act, regulating the bringing of such suits, one year is fixed as the period of limitations.
The trial court sustained the plea, dismissed the action, and this appeal followed.
The action was brought under the provisions of Emergency Price Control Act of 1942, Title 50, U. S. C. A., Appendix 925, § 205 (e), relative to “enforcement,” which provides that the buyer such as appellant here, “may, within one year from the date of the occurrence of the violation — bring an action against the seller on account of the overcharge. ’ ’ Both parties agree that this statute is one of limitation. Appellant insists that the time began to run from the final payment, January 23, 1946, whereas appellee insists it began to run from the date of the sale, January 19, 1945.
The Act itself provides the answer. The action is permissive only, it “may” be brought by the seller, but it can only be brought “within one year from the date of the occurrence of the violation.” It appears certain that, if a violation occurred, and we must assume it did, it occurred when the sale was made, January 19, 1945. The fact that a note was given in part payment does not change the “date of the occurrence.” In Schreffler v. Bowles, 153 Fed. 2d 1, it was held that, where goods were sold more than one year, but were shipped and delivered within a year of the bringing of the action by the Administrator (Bowles), the action was not barred. Here the truck was delivered to appellant on the date of sale, and the action was barred.
The judgment is accordingly affirmed. | [
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Per Curiam.
This is an original proceeding by petitioner, S. L. Turner, seeking a writ of prohibition to restrain the chancellor of the First District from making-further orders, other than the granting of the writ, in a habeas corpus proceeding instituted by petitioner against Mae Turner, his wife, for possession of their two-year-old child.
In his complaint in the habeas corpus action petitioner’s claim for possession of the child was based upon a decree of the circuit court of Lee county, Alabama, entered on September 5, 1947, awarding petitioner custody of the child. Mae Turner filed an answer and cross complaint denying the allegations of the complaint and asserting her right to the custody of the child and to a. divorce from petitioner. On motion of petitioner that part of the cross complaint relating to divorce was stricken and on November 10,1947, the case was set down for further hearing on the question of the child’s custody. On November 20, 1947, petitioner filed the instant pro eeeding here to prohibit the chancellor from proceeding further and requesting this court to grant the writ of habeas corpus.
While the decree of a court of a sister state awarding the custody of a child is final on the conditions then existing, it is not res adjudicaba in that it may not be subsequently modified by a court of this state having jurisdiction of the person, where conditions and circumstances have changed since rendition of the original decree and the best interests of the child require a modification. Hamilton v. Anderson, 176 Ark. 76, 2 S. W. 2d 673; Tucker v. Turner, 195 Ark. 632, 113 S. W. 2d 508; Keneipp v. Phillips, 210 Ark. 264, 196 S. W. 2d 220; Gregory v. Jackson, ante, p. 363, 205 S. W. 2d 471.
The trial court, therefore, had jurisdiction to determine whether conditions arising subsequent to the rendition of the Alabama decree warrant a modification of the original order of custody. If this question of fact is erroneously decided by the trial court, this error may be corrected by appeal or certiorari, and prohibition is not the proper remedy. Twin City Lines, Inc., v. Cummings, Judge, ante, p. 569, 206 S. W. 2d 438; McGuffey v. Haynie, Chancellor, ante, p. 739, 208 S. W. 2d 10.
The petition for writ of prohibition is, therefore, denied. | [
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McHaney, Justice.
The custody of Bobby Joe Reynolds, about seven or eight years old, is involved in this appeal. He is the child of appellant and appellee who were formerly husband and wife. The same question was involved in Reynolds v. Tassin, 209 Ark. 890, 192 S. W. 2d 984, and we affirmed the order of the Chancery Court of September 19, 1945, which awarded such custody to appellee for nine months of each year, and to appellant for three months each year, on condition that appellant pay to appellee $5 each week while such child was in her custody for its support and maintenance.
On November 26, 1946, about eight months after the rendition of our former opinion, appellant filed his petition to modify said order of September 19, 1945, so as to give him the entire custody of said child, subject to the right of appellee to visit her child at all reasonable times. He alleged that conditions regarding the welfare of said child have materially changed since said decree in favor of appellant in these respects: that his home has been enlarged and greatly improved, including modern conveniences therein; that he has joined the West Helena Baptist church, of which his present wife is also a member ; that said child would have the benefit of good schools and churches; that the home of appellee and her husband is not modern, is in a sparsely inhabited district in Louisiana and no playmates for said child; and other matters were alleged against Mr. Tassin, the stepfather of said child. Appellee denied that there has been any such change in' the situation of the parties as to justify a change in the custody of said child as prayed, but asserts that, if any change has been made, it supports and confirms the former decree, and she denied the other allegations regarding her present home and surroundings.
We have here a large record, consisting of testimony of a number of witnesses on each side. We think it would serve no useful purpose to detail this testimony here. One of the witnesses for appellee was appellant’s mother who had visited in the Tassin home a short time before testifying. After testifying that said home and surroundings were very good, she was asked on cross-examination what interest she had down there, and answered: “My baby child was there, Bobbie Joe; I wanted to know if he had a good home, and he has a good home, and I don’t want it torn up.” She also testified that they had a bathroom in the house, but the toilet was an outside one.
The evidence as to the kind of home and the surroundings is in dispute, but we think the preponderance of the evidence supports the court’s finding that there is no material change for the worse in the situation of said child which would justify a change in its custody.
It is well settled that ‘ ‘ a decree fixing the custody of a child is final on conditions then existing and should not be changed afterwards unless on altered conditions since the decree was rendered or on material facts existing at the .time of the decree, but unknown to the court, and then only for the welfare of the child.’’ Phelps v. Phelps, 209 Ark. 44, 189 S. W. 2d 617, headnote 1. See, also, Keneipp v. Phillips, 210 Ark. 264, 196 S. W. 2d 220; Reynolds v. Tassin, supra. Also, in custody cases, the court must give first consideration to the best interests of such child, and where a change in custody is sought by modification of a former decree, the burden of showing such a change in conditions as to justify such modification is on the party seeking it. See cases above cited.
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Holt, J.
September 28, 1937, the State Land Commissioner issued to appellee, Nelcy Johnson, a donation certificate to the following land in Cross county: “West half (WVz) of the southwest quarter (SW%) of section eighteen (18) in township seven (7) north, range four (4) east, containing 106.88 acres of land, more or less.”
Johnson, with his family, went into immediate possession, built a house and barn and made other improvements. The land was wild and timbered. He cleared approximately 15 acres. After two years of occupancy, he-made the necessary proof of entry and improvements and on'December 27, 1939, the Commissioner of State Lands executed and delivered to him deed to the property.
July 31, 1940, Johnson sold and conveyed this land to appellee, Mrs. Mary Parris, who has had possession and has occupied the land since the sale to her.
September 4, 1943, appellant, J. C. Brookfield, instituted this suit in which he alleged, in substance, that he was the owner of land in section 19, which joins section 18 on the south. That he also owned by seven years or more of adverse possession, a strip 272 feet wide, approximating 20 acres in section 18, along the south boundary line of section 18. He further alleged that “the defendant, Nelcy Johnson, obtained a deed from the State of Arkansas, which deed is dated December 27, 1939, conveying said real estate under a tax forfeiture for the taxes for the year 1926, * * * .”
That the State’s tax sale was void for a number of reasons which he assigned. He further alleged that “Johnson conveyed said land to Mrs. Mary Parris (appellee), which deed is dated July 31, 1940.” He also claimed ownership.
His prayer was that the deeds to Johnson and Parris be canceled as a cloud upon his title and that title be confirmed and quieted in him.
Appellees, in their answer, admitted “that the defendant, Nelcy Johnson, obtained a deed from the State of Arkansas to said forfeited lands, and alleged that the said defendant, Nelcy Johnson, went into possession of said lands under the deed from the State of Arkansas under date of December 27, 1939, and that he held the exclusive possession of said lands from that date until he sold same to this defendant, Mary Parris, and that the said Mary Parris, has been in the exclusive possession of said lands ever since she purchased same from said Nelcy Johnson which was in July, 1940, and that she and her grantor, Nelcy Johnson, have held the exclusive possession of said lands more than two years prior to the filing of this action by these alleged plaintiffs. ’ ’
The trial court found the issues in favor of appellees and dismissed appellants’ complaint for want of equity. :
This appeal followed.
The primary question presented is whether appellant, Brookfield, obtained title to the 20-acre tract, supra, by adverse possession of seven years or more 8925, Pope’s Digest) and therefore entitled to have his title quieted and confirmed as against appellees.
It was undisputed here that appellant, Brookfield, had no paper title or color of title to the 20 acres in question. His sole claim of title was by adverse possession. In these circumstances, the general rule is stated in Culver v. Gillian, 160 Ark. 397, 254 S. W. 681, as follows : “One of the defenses to the suit is that the defendant has title to the lots in question by adverse possession. It will be observed that he does not claim to have entered into possession of the lots under color of title. In cases of adverse possession under color of title, the actual possession, by presumption of law, is constructively extended to the limits defined in the paper conveyance which gives color of title. In the case, however, of adverse possession without color of title, the adverse possession is limited to the land actually adversely occupied. Here the defendant does not claim adverse occupancy under color of title.
“’While, in such cases, to constitute an adverse-possession, there need not be a fence or building, yet there must be such visible and notorious acts of ownership exercised over the premises continuously, for the time limited by the statute, that the owner of the paper title would have knowledge of the fact, or that his knowledge may be presumed as a fact . . . ”
It is undisputed that Nelcy Johnson went into possession of this land September 28,1937, under a donation certificate from the State and after two years received deed from the State Land Commissioner, and remained on and improved the property until he sold to Mrs. Farris in July, 1940, and that Mrs. Farris has had possession and occupied the land since.
In these circumstances, appellees have acquired title to the land by two years’ adverse possession under the provisions of § 8925 of Pope?s Digest. They acquired title even though the State’s tax deed was void. “Where a purchaser of land has been in actual possession of the land under a tax deed for more than two years, he acquires title, regardless of the validity of the tax sale.” Chavis v. Henry, 205 Ark. 163, 168 S. W. 2d 610.
In the recent case of St. Louis Union Trust Co. v. Hillis, 207 Ark. 811, 182 S. W. 2d 882, we said: “Where adverse possession is entered under color of title, the grantee in the instrument constituting color of title will be deemed in constructive possession of the entire body of land described in the instrument if in the actual adverse possession of any part thereof. The' following, among other cases, are to the same effect: Crill v. Hudson, 71 Ark. 390, 74 S. W. 299; Haggart v. Ranney, 73 Ark. 344, 84 S. W. 703; Boynton v. Ashabranner, 75 Ark. 415, 88 S. W. 566, 91 S. W. 20; Van Etten v. Daugherty, 83 Ark. 534, 103 S. W. 737; Flannigan v. Beavers, 172 Ark. 28, 287 S. W. 755; Rucker v. Dixon, 78 Ark. 99, 93 S. W. 750.”
While appellants claim that appellees were holding under a void tax deed, in construing the provisions of § 8925 of Pope’s Digest, this court in St. Louis Union Trust Co. v. Hillis, supra, further said: “The rule-laid down in all of these cases is that this statute (§ 8925) is a statute of limitation, and that actual, adverse possession under a tax deed from the State Land Commissioner (and, since the amendment by Act No. 7 of 1937, approved January 26,1937, under a donation certificate), vests a good title in the occupying holder of the donation certificate or deed, regardless of any defect in the tax sale under which the state acquired title.”
Has appellant, ■ Brookfield, established his claim to the property by adverse possession?
While he testified that he had adversely occupied this 20-acre tract for more than seven years, we think the great preponderance of the testimony is against his contention. The evidence shows that this entire tract was covered with virgin timber with the exception of two small “patches” approximating less than three acres, which had at one time been cleared, hut had not been cultivated for many years, was covered with small timber and cut up with “gullies.”
Appellee, Johnson, testified positively that the 20-acre tract in question was “wild and virgin timber,” that he had cleared 15 acres and lived on the land with his family until he sold it to appellee, Mrs. Mary Farris, that no one else occupied any part of the land after he donated it in 1937 except Mrs. Farris, that he had had the boundary line between sections 18 and 19 surveyed by Mr. Newsum, a surveyor of 40 years’ experience, and that the tract belonged to him. lie admitted that two small “patches” of this tract had at one time been cleared, but for many years had not been cultivated, had grown up in timber, and contained many “gullies.” There was'testimony of several other witnesses, which corroborated Johnson.
After a careful consideration of all the testimony, we are of the opinion that the chancellor’s findings are not against the preponderance thereof, and accordingly, the decree must be, and is affirmed. | [
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D.P. MARSHALL JR., Judge.
|,A noncustodial parent, trying to do the right thing, voluntarily increases his court-ordered child-support payments because his income has increased. No court order mandating and memorializing the change is ever entered. More than seven years pass. Faced with a petition from the Office of Child Support Enforcement for an increase in support, the noncustodial parent pays nothing for four months. He then settles with OCSE on an increased support amount going forward. May the noncustodial parent get the benefit of his years of overpayments against the four months of unpaid support? The circuit court said no, giving various reasons. We conclude, based primarily on the voluntariness of the overpayments and a slightly different estoppel analysis, that the circuit court answered the question correctly.
The material facts are undisputed. Daryl Guffey and Kim (Billings) Counts divorced in 1995. The circuit court awarded custody of the parties’ two sons to Counts and ordered Guffey to pay child support. After one modification, Guffey was obligated to pay about $400.00 a month. In 2000, Guffey wrote Counts. He provided copies of some pay stubs showing increased income and explained that he had used the enclosed chart from Administrative Order No. 10 to calculate his support obligation at $694.00 a month. Guffey suggested that this arrangement would “bring to an end either of us spending any more money on attorney fees.”
At an earlier hearing, the chancellor had emphasized that private agreements changing support were not binding. In response to Guffey’s letter, Counts contacted her lawyer. She then requested more financial information from Guffey. She also suggested preparing an agreed order that her lawyer could present to the court to avoid more attorney’s fees. No modification order was ever entered. For seven years, Guffey paid the increased amount every month into the court’s registry, noting on his check the month covered by the payment. The records showed the overpayments. Counts used the money each month for their sons’ needs.
In the fall of 2007, the OCSE petitioned the court to increase Guffey’s monthly obligation. For the four following months, acting on the advice of counsel, Guffey paid no support. He and OCSE eventually settled, resulting in an order requiring Guffey to pay |sabout $925.00 a month. Counts asked the circuit court to hold Guf-fey in contempt for the four-month gap in payments. Guffey responded that he was entitled to credit as to those months for his seven years of overpayments.
After a hearing, the court held Guffey in contempt and ordered him to pay four months’ worth of support at the earlier court-ordered amount — approximately $1600.00 total — over time. The court gave a thorough ruling from the bench, which was later reduced to an order. The court gave many reasons for its conclusion: Guf-fey never intended for the overpayments to be credits; the payments were child support, not future child support; they were gifts; and “principles of equity and equitable estoppel” barred Guffey from claiming credit for them against his four-month gap.
II.
We are not persuaded by Guffey’s main argument that, in essence, the circuit court’s decision retroactively modified his child-support obligation. Absent a finding of fraud in procuring the order, our law forbids retroactive modifications of support orders. E.g., Yell v. Yell, 56 ArkApp. 176, 179, 939 S.W.2d 860, 862 (1997). Like all parents, Guffey had a legal duty to support his minor children apart from any court order. Ford v. Ford,, 347 Ark. 485, 490, 65 S.W.3d 432, 440 (2002). Under the longstanding order in this case, Guffey’s legal duty was quantified at about $400 a month. But he volunteered to pay more and did so regularly. The scope of his enforceable legal obligation remained unchanged until the OCSE petitioned the court in late 2007 to order increased support. Yell, 56 Ark. App. at 179, 939 S.W.2d at 862.
[4The circuit court concluded that Guffey’s overpayments were both child support and a gift. Guffey attacks that characterization, arguing that the money was either one or the other but not both. We see no gift. Guffey paid more because he recognized his inchoate legal obligation to increase support based on increased income. His acts were commendable, but he was not giving presents. This was voluntary child support month by month. The voluntariness of the payments is legally important. One who pays without legal obligation is not, in general, entitled to claim the benefit of his voluntary payment. Bishop v. Bishop, 98 ArkApp. 111, 114, 250 S.W.3d 570, 572 (2007); see also Glover v. Glover, 268 Ark. 506, 508, 598 S.W.2d 736, 737 (1980). Reading the bench ruling and order as a whole, we are convinced that the circuit court correctly focused on the voluntariness of Guffey’s overpayments. The gift label is not dis-positive.
The core question is whether Guffey was entitled to wash his later nonpayments with his prior overpayments. We think not. How can this be if, as Guffey presses, our law refuses to recognize private agreements modifying child support? E.g., Burnett v. Burnett, 313 Ark. 599, 603-05, 855 S.W.2d 952, 954-55 (1993).
Guffey makes a strong point. For example, if either he or Counts had petitioned the circuit court to enforce their $694.00-a-month agreement, the court would have said no, and made an independent judgment about the correct support amount — starting from the petition date— based on Guffey’s income. Yell, supra. Neither parent, however, sought to enforce their agreement. Instead, the circuit court enforced the prior order for $405.00 a month, accepted Counts’s estoppel defense, and barred Guffey from belatedly claiming the 15benefit of his voluntary over-payments.
Estoppel resolves the tension here. The books are full of cases holding that, notwithstanding the law against enforcing private support agreements, estoppel is available to do equity between the parties. E.g., Wilhelms v. Sexton, 102 ArkApp. 46, 51-53, 280 S.W.3d 565, 569 (2008); Chit-wood v. Chitwood, 92 ArkApp. 129, 137-38, 211 S.W.3d 547, 552 (2005); Lewis v. Lewis, 87 ArkApp. 30, 33-34, 185 S.W.3d 621, 623 (2004); Barnes v. Morrow, 73 ArkApp. 312, 317-18, 43 S.W.3d 183, 187-88 (2001); Ramsey v. Ramsey, 43 Ark. App. 91, 96-98, 861 S.W.2d 313, 316-17 (1993). That is precisely what the circuit court did in this case.
The parties spar about whether modern equitable-estoppel doctrine applies to the essentially undisputed facts. Chitwood, 92 ArkApp. at 138, 211 S.W.3d at 552 (elements). It does not. The circuit court, as Guffey reminds us, said as much in its bench ruling. The court found no hidden knowledge on Guffey’s part. He did not make each monthly payment knowing, while Counts did not, that he was building up a credit balance that he could use to cover future obligations. The court found, and the record leaves no doubt, that Guf-fey intended each monthly payment to support his sons’ needs for that month. Guffey (or his new wife) so noted on every check. Guffey’s intentions, as he points out, do not decide the support issue. Glover, 268 Ark. at 507-09, 598 S.W.2d at 736-37 (noncustodial parent’s intentions that medical care and airfare were child support not dispositive). But they drive the estoppel analysis. Absent knowledge on Guffey’s part, and corresponding lack of knowledge on Counts’s part, the modern understanding of equitable estoppel does not fit the | ficase. Chitwood,, supra.
Here again, we must avoid the tyranny of legal categories. “In using the term ‘estoppel,’ one is of course aware of its kaleidoscopic varieties.” John H. Wig-more, The Scientific Role of Consideration in Contract, in Legal Essays in Tribute to Orrin Kip McMurray 641, 648 (Max Radin and A.M. Kidd, eds., 1935). The circuit court rested its order on “principles of equity and equitable estoppel,” concluding that “it would be wholly inequitable to allow the defendant to claim a credit for the alleged overage paid since February 2000.” The conclusion was sound, as was the invocation of equitable principals and estoppel in general. We may affirm on any ground supported by the record. Fñtzinger v. Beene, 80 Ark.App. 416, 424, 97 S.W.3d 440, 444 (2003). And we therefore put to one side the particular variety of estoppel mentioned by the circuit court.
The correct ground, we conclude, is the promissory variety of estoppel. Wate-rall v. Waterall, 85 Ark.App. 363, 367-68, 155 S.W.3d 30, 33 (2004). Guffey told Counts that he would pay the higher monthly amount of support. He did so voluntarily and faithfully for seven years. She accepted the payments, relying on them month by month to support their children. Because of her reliance, it would be inequitable to rewind the years and give Guffey credit now for some of the overpay-ments against his four months of unpaid child support. Waterall, 85 Ark.App. at 367-68,155 S.W.3d at 33.
We have found no Arkansas case applying this variety of estoppel in a child-support dispute, though this court has indicated that the doctrine may be available. Shroyer v. \1Kauffman, 75 Ark.App. 267, 273, 58 S.W.3d 861, 865 (2001). For several reasons, we have no hesitation in applying promissory estoppel in this case. First, as we said, precedent approves applying estoppel principles in these kinds of cases. Second, doctrinal flexibility is the hallmark of equity. Third, long before the modern hardening of equitable estoppel into “essential” elements, Arkansas recognized and applied the root principle at work:
Equitable estoppel is the effect of the voluntary conveyance of a party, whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires corresponding right, either of property, of contract, or of remedy.
Geren v. Caldarera, 99 Ark. 260, 263, 138 S.W. 335, 336 (1911) (quotation and citation omitted). So described, the principle covers promissory estoppel, equitable estop-pel, and many other varieties of estoppel. The point is the estoppel — the bar — raised by the parties’ conduct. Guffey’s voluntary overpayments of monthly child support for seven years, and Counts’s reliance by spending the money each month for their sons, precludes Guffey from getting belated credit for his past extra support.
Our holding is not in conflict with Burnett, and like cases, which refuse to enforce private support agreements. In the circumstances presented, the circuit court made no error in refusing Guffey’s claim for a credit for his voluntary overpayments against his four months of unpaid support. Counts was entitled to raise an estoppel defense to that claim. Cf. Shroyer, supra. Nor are we persuaded that Glover v. Glover, supra, decides this case in | ^Guffey’s favor either. Payments made into the registry are certainly child support. Guffey’s overpayments were. But that truth does not compel an impervious legal conclusion that Guffey was entitled to credit for his overpayments. Estoppel was neither raised nor decided in Glover. 268 Ark. at 507-09, 598 S.W.2d at 736-37.
We recognize, too, that the chancellor told them, twice, in an earlier hearing that Guffey would receive credit for support payments made through the registry. Reading those statements in context, however, it is clear that the court was cautioning Guffey about the risk of paying Counts around the system. But if Guffey had made such payments, and if Counts had admitted receiving them, then our law would not pretend the payments were never made. Ramsey, supra. The chancellor’s admonition was correct but incomplete. Like Glover, the chancellor’s statements do not decide this case. Estoppel principles and the voluntary-payment rule
One point remains. On reply, Guffey argues that OCSE has no standing on appeal. Here Guffey is correct. OCSE settled with Guffey, and did not participate in the hearing about the overpayment issue. Before the hearing OCSE even argued that the records showed a credit for Guffey. On appeal, OCSE and Counts filed a joint appellees’ brief supporting the judgment. She is pro se on the brief. OCSE, however, has no standing to argue the issues presented on appeal. At this point, it has no dog in the overpayment hunt. Insurance from CNA v. Keene Corp., 310 Ark. 605, 610, 839 S.W.2d 199, 202-03 (1992). IsAncl OCSE cannot make new arguments on appeal, especially ones contradicting its position below. Taylor v. Producers Rice Mill, Inc., 89 ArkApp. 327, 329-30, 202 S.W.3d 565, 567 (2005). We found the brief helpful. But we consider it on behalf of Counts alone; and we reject OCSE’s request that we award the Office fees for preparing the brief.
Affirmed.
KINARD and GLOVER, JJ., agree. | [
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Holt, J.
On April 14, 1942, at about 1:30 a. m., a truck wbicli appellant, Carl Favre, was driving on concrete highway 64 on the outskirts of the town of Plumerville, struck and killed two work horses belonging to appellee. Appellee, the owner, sued to recover damages. He alleged that appellant was negligent in that he failed to keep a lookout and was driving at an excessive and dangerous rate of speed, while under the influence of liquor.
Appellant’s answer was a general denial, and in a cross complaint alleged that he was free from negligence, but that appellee was negligent “in that said stock be longing to the plaintiff (appellee) was not kept off the public highways as required by law,” and prayed for damages to his truck and for personal injuries.
At the close of all the testimony, the trial court refused to submit to the jury any issue in appellant’s cross complaint, having found that no evidence had been adduced in support thereof. The cause went to the jury on the remaining issues, and resulted in a verdict for appellee in the amount of $300.
This appeal followed.
For reversal, appellant questions the sufficiency of the evidence to support the verdict, contends that the court erred in giving instructions numbered 16, 17, 18 and 20, and the fact that appellee’s horses were running at large, with or without his knowledge, was in violation of the Conway County Stock Law as alleged in his complaint and prima facie evidence of appellee’s negligence, and that the court erred in refusing to submit this issue to the jury.
The facts tended to show that appellee kept the horses in question confined within an enclosure surrounded by a wire fence, that they had broken out on the night in question, without appellee’s knowledge and had strayed upon the highway where they were struck and killed by appellant’s truck.
Lum Reed, on behalf of appellee, testified that the horses were killed on the highway almost directly in front of his house. He was awakened by a considerable crash “like two automobiles or something blowing up in front of the house. ’ ’ He immediately went to the scene and appellant was walking around the truck and remarked to Reed “I killed this man’s team.” Appellant said he lived at Conway. “Q. During the time you observed him (Carl Favre), what can you say as to his condition as to being sober? A. I would say he was intoxicated some. Q. Mr. Reed, I wish that you would give the jury the position of the car and the horses'? A. The car was on the north side of the highway headed east, the mare was lying a few feet in front of the truck in a dying condition when I got ont there, broken leg and probably a broken neck. Q. What was the condition of the black horse? A. Well, I judge the black horse was something like a 100 feet east, opposite side of the highway, on the south side of the highway. Q. From the point where these horses were struck, where the car stopped and the gray mare was lying, back west, (appellant was driving east) I will ask you, how far that road is perfectly straight? A. Right close to a quarter of a mile. Q. To the top of the hill? A. Yes. Q. There is nothing to obstruct the view of the defendant and nothing to prevent him from seeing these horses, if he had lights ? A. The road is straight and open, not a thing in the world to keep him from seeing .them.”
There was other testimony of a corroborative nature.
Act 405 of the 1919 Legislature provides in § 2 that “it shall be a misdemeanor, punishable by a fine not exceeding fifty dollars ($50) for any person owning horses . . . to allow the same to run at large anywhere in Conway county,” and in § 5, “The owner of any stock, which is allowed to run at large in Conway county, . . . shall be liable to triple damages for any damage which may be done by such stock running at large,” etc.
In Briscoe v. Alfrey, 61 Ark. 196, 32 S. W. 505, 30 L. R. A. 607, 54 Am. St. Rep. 203, this court had for consideration § 359, Pope’s Digest, which prohibits the running at large of stallions or unaltered mules. In construing that statute, it was held that running at large meant the negligent act of the owner in allowing the animal to run at large which would subject him to the civil and penal consequences prescribed by that statute. There it was said: “What degree of care is required? Only that which a prudent man under similar circumstances would exercise to prevent animals of the kind mentioned from running at large, taking into consideration their natural habits and propensities. It is the intentional Or negligent permission of the owner for his animal to run at large, which subjects him to the civil and penal consequences prescribed by the statute. Whether the owner has exercised such care as the law requires, if the facts are disputed, is a question for the jury. ’ ’
This principal was reaffirmed in Fraser v. Hawkins, 137 Ark. 214, 208 S. W. 296, and in Field v. Viraldo, 141 Ark. 32, 216 S. W. 8. See, also, 2 Amer. Jur., page 739, § 62, under the subject “Animals.”
The rule announced in these cases applies with equal force here, and the court did not err in refusing to hold, in effect, that the fact that appellee’s horses were at large, in the circumstances here, was prima facia negligence on the part of appellee.
On the facts presented, the instructions complained of by appellant, when considered along with all other instructions given by the court and fully covering the case, were correct declarations of the law. These instructions were as follows:
“16. You are instructed that in Conway county, under the law, persons owning or controlling cattle and stock are required to keep up and not to permit them to run at large knowingly.”
17. If they should find from a preponderance of “the evidence in this case that the plaintiff knowingly permitted 'the stock alleged to have been killed by defendant’s automobile to run at large and in so doing, if such occurred, plaintiff was negligent and that such negligence, if any, was the proximate cause of the stock being killed and that defendant was in the exercise of ordinary care at the time of the alleged accident, in the driving and operation of his automobile, then if you so find, your verdict should be for the-defendant. ”
18. If they should find from a preponderance of “ the' evidence in this case, that the stock alleged by plaintiff to have been killed by defendant’s automobile, without plaintiff’s knowledge or permission, got out of an enclosure and upon the highway as alleged, and that defendant was guilty of some act of negligence as alleged, which was the proximate cause of the death of such stock, then if you so find, your verdict should be for the plain tiff. Provided, you find that plaintiff was not guilty of negligence contributing to causing the death of such stock.
“20. You are instructed'that if you find from the testimony in this case, that, and from a preponderance thereof, the defendant was guilty of some act of negligence at the time and place of the alleged accident, as alleged in the complaint which was the proximate cause of the death of the stock sued for herein, then your verdict should be for the plaintiff. Provided, you find that plaintiff was not guilty of negligence contributing to or causing the damages complained of.”
Appellant placed strong reliance on the recent case of Pool v. Clark, 207 Ark. 635, 182 S. W. 2d 217. .However, we think that case distinguishable for there the statute under consideration made it “unlawful for any . . . horses ... to run at large,” whereas here we are dealing with a statute that makes it unlawful for the owner to “allow” the animals to run at large. The former is an absolute inhibition, whereas the present case involved the question of whether the owner exercised due care to restrain his horses.
While appellant denied any acts of negligence on his part, this was a question for the jury and when all the evidence is considered, we are unable to say that there was no substantial evidence to support the verdict returned.
On the whole case, finding no error, the judgment is affirmed. | [
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Smith, J.
Appellant was tried under.an information containing two counts, in one of which he was charged with burglary, and in the other with the crime of grand larceny. He was convicted on both counts and given a sentence of three years in one, and nine years in the other.
Errors assigned for the reversal of both convictions relate to questions of fact. It is first insisted that the testimony fails to show that the crime of burglary was committed. It does show that at some time during the night the jewelry store of one Rainwater in the City of Walnut Ridge was broken into, entrance having been effected through a window in the rear of the store. The glass of the window was broken and particles thereof were found at the base of the window, on one of which fingerprint's were found. A large quantity of jewelry consisting of rings, watches, fountain pens, billfolds, and the like of a total value of over $500 were missing when the store was opened on the morning after it had been entered. This testimony abundantly sustains the finding that a burglar had entered and that the crime of burglary had been committed.
It is next insisted that the testimony is not sufficient to sustain the finding that appellant had committed this crime. Soon after the burglary had been committed the sheriff of the county learned that someone had offered for sale in tlie City of Marianna, a quantity of jewelry similar to the kind which had been taken from the Rainwater store, and the sheriff and Rainwater went to Marianna to investigate. A local police officer in Marianna had been notified, and that officer had made an investigation which resulted in his recovering certain articles of jewelry and a billfold.
A young woman employed in a cafe in Marianna testified that appellant sold her a birthstone ring, and that he sold jewelry to other employees in the cafe. She identified appellant as the man who made the sales. Rainwater identified the rings as being similar to the rings he had in his store. A billfold was recovered, which Rainwater testified was similar to the billfolds which he carried in stock and he also identified some rings and some watch bands which were similar to those carried by him, all of which had been sold by appellant in Marianna.
Appellant was located in a Federal prison in Kansas and by extradition was returned to this state. He told the officers who returned him to this state that he had never been in Walnut Ridge. At his trial he admitted that he had been in Walnut Ridge at about the time the burglary had been committed, and that he bought a watch in the Rainwater store. A clerk in this store in charge of the jewelry department at the time of the burglary testified that he had never seen appellant in the store. Appellant admitted that he did go to Marianna with a quantity of jewelry for sale, but he testified that a nephew, Dillar Duty, gave him the jqwelry to sell for one-half the proceeds of the sale. Dillar Duty denied having done so.
Without further recitation of the testimony it may be said that it was clearly shown that appellant was in possession of property recently stolen and the jury evidently did not accept appellant’s explanation of his possession. This testimony alone would suffice to sustain the larceny charge. See Mays v. State, 163 Ark. 232, 259 S. W. 398, and cases there cited.
As to the burglary charge, the testimony showed that the piece of window glass on which the fingerprints appeared were submitted to Capt. J. E. Scroggins, an officer of the State Police Department, whose duty it had been for many years to make investigation and identification of fingerprints. This officer was furnished the fingerprints of appellant while appellant was confined in the state penitentiary and he identified the prints on the glass as being identical with those taken at the penitentiary. It is argued that this testimony is valueless because of the improbability that Scroggins could carry in his mind the identity of the fingerprints during the years that had lapsed since the glass was submitted to him for investigation. The glass has now been lost. But Scrog-gins testified that his opinion when he first made the investigation was very positive as to identity, and that he had kept the glass in his possession for several years, during which time he had used it in his instruction to students.
If Scroggins is not mistaken in his identification there can be but little, if any, doubt that appellant broke and entered Eainwater’s store. His testimony and the weight to be given it were of course questions for the jury, but apart from this testimony, we think the jury was warranted in finding that appellant was the man who had in fact broken into and had entered Eainwater’s store and that the evidence is sufficient to sustain the conviction.
The judgment must therefore be affirmed and it is so ordered. | [
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Smith, J.
Appellee sued to recover damages for the alleged breach of an oral contract which he had with appellant by the terms of which he was employed to haul logs owned by appellant from three separate tracts of land, for the agreed price of $8.00 per thousand. We make no attempt to reconcile the testimony which is in hopeless conflict, as this was the function of the jury, hut it may be said that the testimony offered by appellee is to the effect that he had a contract which appellant-breached, and that damages were sustained as a result thereof. This being true a cause was made for submission to the jury to assess damages resulting from the breach of the-contract.
Appellee did not re'quest any instruction whereby the damages might be determined and assessed, but appellant supplied the omission by asking an instruction which the court gave, in which the jury was told that the loss of the profits which would have inured from the performance of the contract was the proper measure of damages. This instruction conforms to the opinion in the case of Boynton Land & Lbr. Co. v. Dye, 126 Ark. 513, 191 S. W. 13. Testimony offered by appellee, although in sharp conflict with that offered by appellant, is sufficient to sustain the verdict assessing the damages, and we would therefore affirm the judgment, except the court erred in refusing'to give instruction numbered two requested by appellant. This instruction reads as follows:
“The court instructs the jury that, in order that a contract be entirely binding and legal, the observance of its terms and conditions must be binding upon all the parties thereto. So, if the jury believes from the preponderance of the evidence in this case that the terms of the contract sued on left it entirely optional with the plaintiff whether or not he would perform his promise, if you find there was a promise, then this contract would not be binding, on the defendant and you should find for the defendant.”
. The court gave this instruction after adding thereto a phrase reading as follows: “unless you further find from the evidence that the terms of the contract were changed at different times by promises made by the defendant to the plaintiff. ’ ’ An exception was saved to the modification.
It would be immaterial that the contract was modified provided the modified contract gave appellant the same optional right to perform, as the modified contract would be governed Jiy the samé rules of law.
Appellant’s testimony is to the effect that he gave appellee no exclusive right to log his timber, and that appellee had the right to do so or not, as he pleased, and that appellee’s own testimony lends support to this contention. He was asked, Q. “Under the agreement, yon would work or not work, it was up to yon?” A. “Beg pardon?” Q. “Yon had a right to work or not work?” A. “That’s right.”
The applicable legal principle is elementary. A party who has the option to perform cannot insist that the other party shall do so. Where it appears that one party.was never bonnd on his part to do the act which forms the consideration for the promise of the other, the agreement is void for the lack of mntnality. Duclos v. Turner, 204 Ark. 1000, 166 S. W. 2d 251.
For the error indicated the judgment is reversed and the canse remanded for new trial. | [
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MoHaney, Justice.
The appeals in the two cases above named are from different courts, but have been consolidated here, because the facts are quite similar, and come from decrees holding loan contracts, evidenced by promissory notes secured by mortgages on real estate, to be usurious and void.
Appellees are Negroes. Appellant is a white man residing in Memphis,' Tennessee. He is engaged in the real estate and loan or loan brokerage business. In the Sims case he says he is in the real estate business and buys commercial paper. In the Jones case he says he has not been in the real estate business for 10 years. He denied that he makes loans.
H. K. Gish, who is not a party to this litigation and did not appear as a witness, also lives in Memphis and is engaged in the loan business'. In October, 1943, Gish began to negotiate loans to Negroes in Crittenden and Cross counties, completing 10 of such loans up to December 1, 1944, including the Sims -and Jones loans here involved.
In the Sims case, the evidence is undisputed that Sims was indebted to a bank in Forrest City in the sum of $1,389.73, secured by a mortgage on his 40-acre farm, and went to Gish to borrow $1,900 on the farm, to pay off that indebtedness, and for other purposes. Gish agreed to make the loan and would be out to inspect the farm to determine the value of the security. Later Gish and appellant went out to inspect the farm. Sims, who is unable to read or write, and his wife, who is also practically illiterate, later went to Memphis to close the deal, taking with them a statement from the bank of the amount of its debt. They were presented six notes and a deed of trust to be signed. The wife signed them for herself and husband. They both thought the notes totaled $1,900, the amount they sought to borrow, and that the deed of trust secured that amount only, when in fact the notes totaled $2,600, and the trust deed secured said amount. The notes and trust deed were issued to appellant as the lender and Gish was not named in any instrument, although Sims thought Gish was the lender and never had heard of Tindall in connection, with the loan. Appellant gave his check to his attorney for $2,300, and said attorney paid off the bank’s indebtedness of $1,389.73 and turned over the balance to Gish. Sims later called on Gish in Memphis and was advised by Gish that he had a balance coming to him of $510' from which he withheld $50 for himself and $25 for the attorney’s fee, leaving a net to Sims of $435 which was paid to him. This accounts for a total of $1,899.75 out of the $1,900 borrowed, the other 25 cents probably being a notary fee.
On August 25, 1944, appellees filed an answer to the suit of the National Bank of Eastern Arkansas against them, which is not relevant here, said bank not being a party to this appeal, and a cross complaint against appellant, alleging the facts aforesaid, and, that said Gish was not their agent, but was the agent of appellant; that they learned after the original action was filed herein that the deed of trust and notes they had signed secured a purported indebtedness of $2,600; that they have never received any sums from appellant or his agent Gish in excess of $1,824.73; and that the instruments now held by appellant do not reflect the just indebtedness owing to him. The prayer was for cancellation and determination of the true indebtedness owing by them. Later an amendment to the cross complaint was filecl pleading usury.
Appellant filed a general denial to the cross complaint of appellees. He alleged that he bought the Sims notes and mortgage from Gish at a discount of $300 and that the instruments were so drawn as to make him the payee. On December 32, 1946, he amended his answer to seek a foreclosure of the deed of trust, three of the notes then being in default.
Trial resulted in a decree cancelling the notes and deed of trust because usurious. The court found “that H. K. Gish was acting in conjunction with and as the agent of the cross defendant, O. A. Tindall, in obtaining and making such loan and, at no time, was the agent of or acting for the cross defendants, Will Sims and Carrie Sims; that the notes and deed of trust executed by the cross complainants to secure the sum actually obtained amounted to a usurious contract, the agent, Gish, not being entitled to deduct any fees or brokerage on the loan which could be properly chargeable to any person other than his principal, C. A. Tindall; that the maximum legal rate of interest under the laws of Arkansas, when added to the loan actually received, would not amount to the amount charged and sought to be charged and amounted on its face and in fact to usury; that the debt and obligation should be cancelled together with the deed of trust securing the payment thereof; that the amount paid into the court upon the interpleader of the cross complainants should be surrendered and returned to the cross complainants, Will Sims‘and Carrie Sims.” A decree was entered accordingly.
This appeal comes from that decree.
It is clear to us, as it was to the trial court, that these ignorant Negroes were badly mistreated and that an attempted fraud was practiced upon them.» Clearly they sought to borrow from Gish only $1,900, but by fraud or deceit were induced to‘sign obligations to pay $2,600 at 6% per annum to appellant who paid $2,300 for them. Who got the other $400? Evidently Gish got it. There were five notes of $400 each and one note for $600, all dated March 8, 1944, and one due on December 1, 1944, and one on each December 1 to and including 1949, with interest at 6% per annum. The interest reserved, together with the discount of $300 to appellant, plus the more than $400 kept by Gish, clearly amount to more than 10% per annum on the $1,900 loan, and is usurious in amount. It was admitted in oral argument by counsel for appellant that, if we should affirm the trial court’s finding in the Sims case, that Gish was acting as the agent of appellant in obtaining and making-such loan, and was at no time the agent of appellees, the contract was usurious and the decree should be affirmed.
We think the overwhelming weight of the evidence supports the court’s finding in this respect. A number of other loans'were secured by Gish from other Negroes during 1943 and 1944, and all followed substantially the same pattern as that followed in this case. None of these loans was made by Gish, except possibly a “furnish” loan to Will Jones for $700. In all of them, notes and deeds of trust were executed by the borrowers for substantially larger amounts than the borrower wanted to borrow, and* without their knowledge, and in every case this excess over what the borrower thought he was borrowing was split between Gish and appellant, the latter claiming to have bought the notes from Gish at a discount, even though the notes and trust deeds were drawn in his favor. How could he buy his own notes from one who did not have a dollar invested in any of them? All of the facts and circumstances lead definitely to the conclusion that Gish and appellant were working together. While appellant denied that Gish was his agent, his actions speak louder than his words. He knew the loans were to be made with his funds, he inspected the lands on which loans were to be made in company with Gish, told Will Jones that Gish was his agent, was referred-to by Gish as the “big boss” in his presence. Some of the notes were paid by borrowers to Gish and he stamped them paid with appellant’s stamp, and many other facts and circumstances justified the court’s finding that Gish was the agent of appellant and not the agent of the borrowers. Gish had no agreement with any borrower to pay him a commission for procuring a loan and' all of them thought Gish was lending the money. Appellant, through his attorney, had all' the proceeds of loans, after satisfying outstanding liens, paid to Gish, thus enabling him to get the difference between the actual loan and the face amount thereof, less appellant’s so-called discount.
We conclude that the court’s finding of agency between Gish and appellant is supported by a preponderance of the evidence. Therefore, the loan in the Sims case is usurious and void. Our constitution § 13 of Art. 19 provides that “All contracts for a greater rate of interest than 10 per cent per annum shall he void, as to principal and interest, and the General Assembly shall prohibit same by law; . . This the General Assembly did. Section 9401 et seq., Pope’s Digest, and § 9403 authorizes the procedure here taken.
The decree in the Sims case is accordingly affirmed.
The Jones case follows the same pattern as the Sims case. Notes and a deed of trust were executed to appellant for a larger amount than the borrower asked for or received. But the testimony of Will Jones and his wife as to the actual amount received by them under the loan is too indefinite and uncertain to justify a finding of usury.
It appears that appellees executed notes secured by deed of trust to appellant on October 20, 1943, totaling $4,250, when, as they alleged, they sought to borrow and thought they had borrowed only $3,000. But they testified that they got $3,700 or $3,800 or more. It appears that about three months later they secured a loan from Gish, on a note or notes for $700 secured by a second deed of trust on the same property. This appears to be the only loan that Gish made to any of the 10 borrowers who testified in these records. Whether appellees meant they received the sum stated above out of the loan made by appellant, or whether they received said amount from both loans we are unable to say. Certain it is that, of the loan made by appellant for the face amount of $4,250, $3,000 of it went to pay an existing mortgage indebtedness to Mrs. Curlin. Appellant says he-paid $3,800 for the Will Jones paper, so called discount of $450. If the appellees received from this loan the amount they stated they received, the transaction might not be usurious, but might be fraudulent as to the excess. Also appellant might be entitled to ask subrogation on the Curlin mortgage paid by him.
In view of the uncertainty in the evidence and feeling that the evidence should and can be more fully developed, we reverse the decree in this case and remand the cause for further proceedings. | [
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• Ed. F. McFaddin, Justice.
This is a three-cornered suit involving a seller and two rival purchasers.
In 1924. A. J. Kempner acquired certain acreage in Pulaski county. In 1943, he caused this acreage to be surveyed and platted into tracts numbered serially 1 to 8, inclusive, of “Blue Hill Subdivision.” Kempner obtained blueprints showing the eight tracts. We refer to these blueprints as the “1943 plat.” Herewith is a copy of the plat of tracts 1 to 3, inclusive. This plat was
also introduced in evidence, and will be referred to as the “1947 plat.”
The plat that Kempner had when he dealt with Kromray and Stobaugh was the 1943 plat which did not show the location of the old road, the house, well and sheds, as indicated on the 1947 plat. The point is that Kempner, until long after dealing with Kromray and Stobaugh, thought that the north line of his acreage was the road shown on the 1947 plat as “old road,” when, in fact, Kempner’s north line was the other road shown on the 1947 plat as “gravel county road.” The house, well and sheds on tract No. 2 are the only improvements on any of the tracts; and in 1945 the house was occupied by Kempner’s tenant, Mr. Lattimore.
In December, 1945, appellant Kromray approached Kempner to buy from him the tract on which was located the house, well and sheds. In their conversation they identified the land as being the tract on which these improvements were located. Kempner (believing his north line was the old road) thought the house was located on tract No. 1, and so interpreted the plat to Kromray. They agreed on the terms of the sale to be a total of $1,000, and Kempner gave Kromray a receipt reading:
“12-3-45
“Received from Ben Kromray $10.00 (ten and no/100 dollars) for part payment for plat #1 containing 10.84 acres of Blue Hill Subdivision. Bal. $990.00 to be paid cash when deed is delivered.
A. J. Kempner”
Kempner assisted Kromray in having the tenant— Lattimore — vacate the house and premises; and Kromray entered into possession in August, 1946, and ever since has been in possession of the house and improvements on tract No. 2, and has made other payments to Kempner.
In September, 1946, appellee Stobaugh, knowing of Kromray’s actual possession of the house and improvements, approached Kempner to buy a tract. Kempner told Stobaugh that Kromray had purchased tract No. 1, and Kempner offered to sell Stobaugh tract No. 2 for $955. They agreed. Kempner gave Stobaugh a copy of the 1943 plat, indicating to him on the plat that Krom ray’s house was on tract No. 1; and Kempner gave Stobaugh a receipt which read:
“September 2, 1946
“Received from J. F. Stobaugh $100 Levy R. 1
one hundred.....no/100 .... Dollars
For payment on Tract 2 Blue Hill Subdivision as platted by J. J. Jones Bal. $855.00. $100.00 add. to be paid then $25.00 per month 6% notes.
A. J. Kempner ’ ’
A few days after dealing with Stobaugh as aforesaid, Kempner learned that the house occupied by Kromray was on tract No. 2 instead of No. 1. Kempner then-offered Stobaugh a return of his money, which was refused because Stobaugh wanted tract No. 2, which had a frontage of 329 feet on the highway. Kempner then offered to move Kromray’s house to tract No. 1, and to bore a well on that tract, if Kromray would vacate tract No. 2. But this was refused by Kromray, because tract No. 1 is hilly and rocky, whereas tract No. 2 is level and tillable.
Then Kempner had an engineer to make a survey of the property. The result was the 1947 plat showing the county gravel road, and also the old road; and this 1947 plat explained how Kempner, confused as to the location of the roads, had thought the house, well and sheds were on tract No. 1, whereas they were actually on tract No. 2. All negotiations for an amicable settlement failing, this litigation ensued. Stobaugh brought suit against Kempner for specific performance of his contract (being the receipt previously copied), and offered to pay the balance in full to Kempner. Kromray, brought in as a party, asked that his contract with Kempner be reformed to describe tract No. 2 instead of tract No. 1, and also offered to pay in full his balance due to Kempner. Kempner admitted his mistakes, offered to return all parties the monies he had received, and pleaded the Statute of Frauds against both contracts. The wives of the parties were joined in the litigation. The chancery court rendered a decree sustaining Stobaugh’s claim, awarding him specific performance against Kempner for tract No. 2, and denying any relief to Kromray. From that decree, both Kromray and Kempner have appealed.
1. Stobaugh’s Claim to Recovery. Stobaugh was not placed in possession of any of the property by Kempner; and Kempner has pleaded the Statute of Frauds. This statute is found in § 6059, Pope’s Digest, and the words thereof, germane to this case, are these
“No action shall be brought . . . to-charge any person upon any contract for the sale of lands . . .. unless the agreement, promise or contract upon which such action shall be brought, or some memorandum, or note thereof, shall be in writing, and signed by the party’ to be charged therewith, . . .”
In an effort to satisfy the requirements of that statute, Stobaugh introduced the receipt which Kempner had executed to him, and which is the only writing held by Stobaugh. That receipt has been previously copied herein. When tested by our cases, it is clear that the receipt is insufficient to fulfill the requirements of the statute. In our recent case of Perrin v. Price, 210 Ark. 535, 196 S. W. 2d 766, we had occasion to discuss the essentials required of a memorandum to fulfill the Statute of Frauds. Some of our cases are reviewed therein. It may be true, as counsel state, that we have gone further than most courts, to require that all the essential provisions of the contract be in writing in order to satisfy the Statute of Frauds; but at all events, such is our holding, and to it we adhere. Stobaugh’s receipt described the property, but failed to state: (1) when the $100 additional would be paid; (2) when the payments of $25 per month would begin; and (3) when interest would begin. The case of Perrin v. Price, supra, is authority for holding such omissions to be fatal defects. We, therefore, hold that Stobaugh’s receipt was insufficient to comply with the Statute of Frauds, and he cannot have specific performance against Kempner. But, since Kempner offered — by stipulation in the record — - to return to Stobaugh all the money which Stobaugh had paid him, we therefore award to Stobaugh a judgment against Kempner for $100 together with interest at 6% from September 2, 1946, until paid.
II. Kromray’s Claim to Recovery. With Stobaugh’s claim disposed of, we come to Kromray’s claim. He must not only make good his claim for reformation of the instrument executed by Kempner to him, but also must overcome Kempner’s plea of the Statute of Frauds. We treat these separately.
A. Reformation. The receipt signed by Kempner, and given to Kromray has been previously copied here. It referred to the property as “tract No. l”; and Kromray now insists that it should be “tract No. 2.” The law is well settled, that to entitle a party to reform a written instrument upon the grounds of mistake, the proof must show beyond reasonable controversy that the mistake was mutual. See Cherry v. Brizzolara, 89 Ark. 309, 116 S. W. 668, 21 L. R. A., N. S. 508. Other cases enunciating the same rule may be found in West’s Arkansas Digest, Reformation of Instruments, § 19. Tested by the rules of these cases, it is clear that Kromray’s proof meets the requirements for reformation for mutual mistake.
Kromray testified that he could not read and could .only write his name; that he told Kempner that he (Kromray) wanted to'buy the tract on which was located the house, well and sheds; that he bought the property entirely by reference to the said improvements and because the land was level; that he could not read the receipt or plat, and relied entirely on Kempner as to the tract number; Kromray further testified that, with Kempner’s assistance and approval, he took possession of the tract on which the house, well and sheds were located, and has remained in possession thereof ever since, and that Kempner has accepted payments from Kromray, knowing of the tract he was occupying and claiming. Other witnesses corroborated Kromray.
Kempner was asked about his agreement with Kromray; and these questions and answers appear:
“Q. Now, Mr. Kempner,- . . . did you make an agreement with Mr. Kromray with reference to one of the lots in Blue Hill Subdivision? A. I did. Q. Tell the court what you sold him, so far as your agreement indicated and what you intended to sell him and if there was any mistake, why such a mistake-was'made. A. When 1 bought the property, I think it was in 1924, they showed me the line of that property was the cross road by the house; that was the north end of the property; when I sold Mr. Kromray Lot 1 I thought I was selling the lot including the house and well and out buildings. They told me the north line of my line was— Q. How long since you have examined that property?" A. Been over it, you mean? Q. Yes. A. I haven’t been over it since the dáy I bought it in 1924.”
It is thus clear that it was the intention of both parties for Kempner to sell and Kromray to buy the tract on which were located the house, well and sheds; and that the mistake in describing the tract occurred because: (1) Kempner was confused as to its boundaries, and honestly misinformed Kromray as to the tract number; and (2) Kromray could not read, and relied on Kempner to write the correct tract number on the memorandum. The testimony here is similar to that in Black v. Baskins, 75 Ark. 382, 87 S. W. 647, in which case the court allowed reformation to describe’ correctly the tract intended to be sold, and of which possession was actually taken. Kromray is entitled to a reformation of his memorandum, to read “tract-No. 2” instead of “tract No. 1.”
B. Statute of Frauds. AVe have previously copied the receipt which Kempner gave Kromray in December, 1945. Kempner has pleaded the Statute of Frauds against that memorandum; but such plea is unavailing to him, because he put Kromray in possession of tract No. 2 and continued to receive payments on the purchase price. In such a situation no. written memorandum was required, because the possession of the property delivered by Kempner to Kromray, even under a verbal con tract, would take the case out of the Statute of Frauds. Such has been our holding since the earliest days of Statehood. Keats v. Rector, 1 Ark. 391, discusses this point. For the many other decisions holding that possession takes the case out of the Statute of Frauds and allows the contract to be established by parol evidence, see West’s Arkansas Digest, “Statute of Frauds,” § 129. Kempner’s own testimony clearly established that he put Kromray in possession of tract No. 2 in accordance with Kempner’s contract to sell the property to Kromray. It is stipuated in the record that Kromray has tendered to Kempner the balance of the purchase price. If follows therefore that Kromray is entitled to specific performance of his contract, and is entitled to receive tract No. 2 by general warranty deed with relinquishment of dower on payment of an amount, which — with that already paid — will total $1,000, the agreed price.
Kempner’s absolute frankness and his explanation as to how the mistakes occurred are highly commendable. He expressed every willingness to put the parties in status quo ante, and — because the litigation occurred on account of his mistakes, we think the costs of all courts should be paid by him.
The decree of the chancery court is reversed, and the cause remanded with directions to enter a decree and proceed consistently with this opinion.
In Vol. 1, page 269 of the Arkansas Law Review, there is an article entitled “Change of Possession and the Statute of Frauds.”
As to the deed being one of general warranty, see Skinner v. Stone, 144 Ark. 353, 222 S. W. 360, 11 A. L. R. 808, and cases there cited. | [
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Smith, J.
On December 27, 1941, appellant Bridwell executed to appellee Gruner a warranty deed describing 760 acres of land. Among other lands described was the NE}4 of the SW1^ of Sec. 15, T. 11 N., it. 9 W. and the SW^ of the SW% of the same section.
This suit was brought by Gruner against Bridwell to recover damages for the breach of the covenant of warranty of the title to the land; to recover certain taxes which he had been required to pay, which were delinquent when the deed was delivered; and to recover certain attorneys’ fees which he had paid in defending the title to the land. From the decree awarding certain damages which we will discuss, is this appeal.
The SW% of the SW^ of Sec. 15 was the subject of the litigation reported in the case of Bridwell v. Rackley, 206 Ark. 381, 175 S. W. 2d 389 There one Rackley claimed title under a sale for the nonpayment of the 1934 taxes due thereon, but the decree from which that appeal came sustaining Rackley’s title was reversed and Bridwell’s title was upheld. There was therefore, no breach of the covenant of warranty as to this 40-acre tract. In that case Bridwell was represented by C. A. Holland and Racldey by G. P. Houston and Gordon Armitage.
Gruner alleged that he had paid two attorneys ’ fees, one of $25, and the other, $100. The testimony does not show for what services the $100 fee was paid, nor does it show that there was any litigation which Bridwell had refused to defend when called upon to do so. The testimony does not show that Bridwell failed or-refused to defend the case of Bridwell v. Rackley, although Gruner testified that he had paid Plolland a fee of $25 in that case. But it does not show that this was all the fee paid, or that Bridwell had refused to pay Holland the fee charged. There is a failure of proof that in any matter, or in -what matter, Bridwell was called upon to defend the title and had failed to do so.
To recover damages in suits of this character the law requires the purchaser of the land to give his warrantor notice that the title has been called into question, and to request the warrantor to defend. Collier v. Cowger, 52 Ark. 322, 12 S. W. 702; Smith v. Boynton Land & Lbr. Co., 131 Ark. 22, 198 S. W. 107; Fels v. Ezell, 183 Ark. 229, 35 S. W. 2d 359. Absent this showing, the court properly disallowed the attorneys’ fees.
It was found, and the holding does not appear to be seriously questioned, that Bridwell was not the owner of the NE14 of the SW^ of section 15. Upon this finding Gruner was allowed to recover the value of this 40-acre tract, which was found to be $200. This was of course proper and that recovery is sustained.
The court also allowed Gruner damages in the amount of certain taxes which were delinquent when the deed was delivered, and it may have been that fees were paid for services in this connection, but the testimony does not show this to be true.
Gruner testified that after obtaining bis deed he applied to tbe county collector of taxes to pay tbe current taxes then due, but tbe collector refused to receive tbe taxes upon tbe ground tbat no taxes were assessed against tbe lands, as they bad forfeited to tbe state. Tbe collector testified tbat tbis forfeiture was an.error, nevertheless no taxes bad been assessed which Gruner .could pay.
. These delinquent taxes constituted a lien outstanding when Bridwell conveyed tbe land to Gruner, and it was of course Bridwell’s duty to discharge tbis lien, and there was only one way in which that could be done, and tbat was by paying the taxes. Tbe taxes were paid, and tbe amount thereof was computed by tbe sheriff to have been $452.25. Tbe accuracy of tbis calculation does not appear to be disputed.
These taxes were of course a lien on tbe land which subsisted until they were paid, and tbe lien of tbe state therefore could be discharged only by payment. Bridwell did not redeem as bis covenant of warranty required him to do, but Gruner did pay. and the amount which be paid was $452.25, and tbe judgment was properly rendered for that amount. Bridwell cannot escape liability for tbe payment of these taxes because they were not assessed after tbe erroneous forfeiture to tbe state, for tbe reason tbat tbe law requires an owner when redeeming bis land to pay tbe taxes for which tbe land sold, and those which subsequently accrued. Section 13868, Pope’s Digest'. Vandergrift v. Lowery, 195 Ark. 257, 111 S. W. 2d 510.
As no error appears tbe decree must be affirmed and it is so' ordered. | [
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Grikbtn Smith, Chief Justice.
The girl, a victim of tragic abuse and misfortune, was just seventeen — little more than a child.
Appellant, a gray-haired married man with grown children, was in Hot Springs making a nocturnal tour of grills, bars, and the market places of pleasure. At Mike’s Resort he found a younger man whose tastes were somewhat similar. Jewell, who was so soon to die, had entered West End Bar shortly before appellant and his new-found friend stopped there to satisfy their thirst.
Jewell had finished a coca-cola and was waiting for one she was not to see again — -her mother. Parsons and his pick-up started conversation; and together the three went to Wagon Wheel where the men drank again, but the girl did not. At half past eleven they were at Purity Grill. Appellant says he left alone in his son’s car — a conveyance he had been using for accommodation of the party. Others say Parsons drove away with Jewell.
An hour later David E. Anderson, en route to Little Rock, and while driving about eight miles from Hot Springs, was startled to see, directly in front, the door of a Model A Ford fly open as the car proceeded at approximately twenty miles; and a body fell or was thrown to the paving. Although the death-car driver stopped within a short distance, he then drove on without getting out or identifying himself. Anderson gave assistance.
The -injured person- — who proved to be the child Parsons attached himself to at West End Bar — died several hours later without gaining consciousness.
There was evidence at the trial from which the jury could have found that Jewell, in a desperate effort to escape further physical sacrilege, leaped from the moving-car after her virginity had been violated.
In the indictment it was charged that the defendant caused Jewell’s death while contributing to her delinquency. See Pope’s Digest, § 7499. The motion to quash because of misjoinder was properly overruled. Parsons defended on the ground that when he left Purity-Grill Jewell was still there, and that he did not see her again. Description of the car observed by Anderson corresponded with that of the Ford admittedly used by Par-, sons. His denial that Jewell went with him was unsupported, and it is at variance with testimony of those who were positive the two left together. Although circumstantial, the evidence was sufficient to convict.
An exhaustive examination of the record and full consideration of all matters advanced as reasons for reversal do not overcome the State’s contention that appellant received a fair trial.
Affirmed. | [
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Bobins, J.
This is a dispute between owners of adjoining land as to the right to use a certain roadv Appellant purchased section 34 in township 13, north, range 8, east, in 1931. Appellees, J. G. Stuckey and Fred Stuckey, bought section 35 in the same township and range in 1935. Thus the west line of section 35, which is the east line of section 34, is the dividing line between the land of these parties. Highway No. 40 runs along the south line of these sections, and the road in controversy extends directly north from this highway, entering it at about where the highway is intersected by the line between the said two sections, and its northern terminus being the south bank of Little Biver, where at one time there had been a ford.
Appellant placed a barrier across this road and appellees instituted the instant suit to enjoin this interference with their use of the road, alleging that they, along with the public, had used same for more than seven years, in such manner as to give them a prescriptive right thereto; and appellees also alleged that if the road was not on the line between section 34 and section 35 it was on the land of appellees, J. G. Stuckey and Fred Stuckey.
The lower court made no finding as to whether the road was situated on said appellees’ land, but held that the appellees had acquired a prescriptive right to travel it as a private road, 'and enjoined appellant from- interfering with such use. From the decree is this appeal.
There was testimony by several witnesses to the effect that tenants of appellees, J. G. Stuckey and Fred Stuckey, and the public generally had been using this road for considerably more than seven years before the dispute arose. During this time some maintenance work, such as filling up holes in the road, had been done by said appellees ’ tenants.
While there was no testimony that the claim, on the part of appellees, of right to use the road was ever brought directly to the knowledge of appellant until shortly before the suit was filed, the evidence was sufficient to authorize a finding that the character of the use was such as to impart to appellant notice of the asserted right.
The evidence introduced by appellant indicated a permissive use, but we cannot say that the finding of the lower court, that the use was adverse and under claim of right for more than seven years, was against the weight of the evidence taken as a whole. Clay v. Penzel, 79 Ark; 5, 94 S. W. 705; Scott v. Dishough, 83 Ark. 369, 103 S. W. 1153; McGill v. Miller, 172 Ark. 390, 288 S. W. 932.
We have consistently held that the finding of the chancery court on a fact question will not be set aside by us unless such finding is against the preponderance of the evidence. The decree of the lower court must therefore be affirmed. | [
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DAVID M. GLOVER, Judge.
|/The issue in this case is whether service of a termination-of-parental-rights petition on appellant Roy McMahan was proper. We hold that it was not; therefore, we reverse and dismiss.
At the termination hearing, McMahan (who was incarcerated at the time the Department of Human Services (DHS) filed the petition to terminate his parental rights to his son, JM), raised the issue of improper service of the petition. After taking testimony on the issue, the trial court found that he had been properly served; McMahan’s parental rights were terminated by order filed on March 4, 2014. In that order, the trial court specifically l2found that on December 20, 2013, McMahan was served in person pursuant to the Rules of Civil Procedure.
Arkansas Code Annotated section 9-27-341(b)(2)(A) (Supp.2013) provides:
The petitioner shall serve the petition to terminate parental rights as required under Rule 5 of the Arkansas Rules of Civil Procedure, except:
(i) Service shall be made as required under Rule 4 of the Arkansas Rules of Civil Procedure if the:
(a) Parent was not served under Rule 4 of the Arkansas Rules of Civil Procedure at the initiation of the proceeding;
(ib) Parent is not represented by an attorney; or
(c) Initiation of the proceeding was more than two (2) years ago; or
(ii) When the court orders service of the petition to terminate parental rights as required under Rule 4 of the Arkansas Rules of Civil Procedure.
Here, all parties agree that service was required under Rule 4, not Rule 5. McMa-han points out in his brief that there was no proof he was served pursuant to Rule 4 “at the initiation of the proceeding,” thereby requiring service under Rule 4; DHS does not refute this assertion.
Rule 4 of the Arkansas Rules of Civil Procedure provides, in pertinent part:
(d) Personal Service Inside the State. A copy of the summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made upon any person designated by statute to receive service or as follows:
(4) Where the defendant is incarcerated in any jail, penitentiary, or other correctional facility in this state, service must be upon the administrator of the institution, who shall deliver a copy of the summons and complaint to the defendant. A copy of the summons and complaint shall also be sent to the defendant by first class mail and marked as “legal mail” and, unless the court otherwise directs, to the defendant’s spouse, if any.
Is At the termination hearing, McMahan’s attorney raised the issue of improper service. On McMahan’s behalf, he acknowledged that service on the prison warden had been correctly performed under Rule 4(d)(4), but he took issue with the lack of compliance with the second sentence in Rule 4(d)(4) — specifically, that DHS had failed to send a copy of the summons and complaint to McMahan by first-class mail and marked as “legal mail.” McMahan’s attorney then asked for a dismissal for improper service based on that provision.
At the hearing, McMahan testified that he was currently incarcerated at the Tucker Unit of the Arkansas Department of Correction and had been there since November 2013; that he was served with the termination-of-parental-rights petition by the warden in December 2013; but that he did not receive any legal mail while he was incarcerated. McMahan also testified that he was earlier served in person with the petition to terminate his parental rights by a lieutenant when he had been in the Washington County jail. On cross-examination by his counsel, McMahan reiterated that at no time while he was incarcerated at the Tucker prison unit did he receive a first-class letter marked “legal mail” either from DHS or from the court.
Jodie Reynolds, a legal assistant for Washington County DHS, testified one of her duties was to make sure that defendants were served in termination-of-parental-rights cases. Reynolds testified that after the November 2013 termination hearing (in which the trial court refused to terminate McMahan’s parental rights because he was not properly served), she took a copy of the termination petition together with a summons on November 21, 2013, to the Washington County jail and gave both of them to the administrator. Reynolds also stated |4that she made additional service on McMahan by sending him a copy of the petition and summons certified mail and restricted delivery to the warden of the Tucker prison unit. She further testified that she also mailed a copy directly to McMahan first-class and stamped “legal mail.” Reynolds said that she was sure she had sent McMahan a copy, although she did not have the file and was not sure if a copy of that communication was in the file. At that point, counsel for DHS moved to introduce into evidence Reynolds’s letter addressed to McMahan and dated December 16.
McMahan was recalled to the witness stand and again testified that he never received a copy of the December 16 letter while he was at the Tucker prison unit.
The trial court found that service was proper on McMahan at the Washington County jail, because he was personally served there. The trial court further found that service was proper on the warden at the Tucker prison unit. Based on Reynolds’s testimony that she had sent McMahan a copy of the summons and complaint by legal mail, the trial court found that DHS had complied with the service requirements of Rule 4.
Service of valid process is necessary to give a court jurisdiction over a defendant. Jones v. Turner, 2009 Ark. 545, 354 S.W.3d 57. When there has been no proper service — therefore no personal jurisdiction over the defendants of a case — any judgment is void ab initio. State v. West, 2014 Ark. 174, 2014 WL 1515898. As statutory service requirements are in derogation of common-law rights, they must be strictly construed, and compliance with them must be exact. Id. The | jjSame reasoning applies to service requirements imposed by court rules. Jones, supra. Our service rules place “an extremely heavy burden on the plaintiff to demonstrate that compliance with those rules has been had.” Brown v. Arkansas Dep’t of Human Servs., 2013 Ark. App. 201, at 4, 2013 WL 1228032 (citing Dobbs v. Discover Bank, 2012 Ark. App. 678, at 8, 425 S.W.3d 50, 55 (emphasis in original)). Our appellate courts review a circuit court’s factual conclusions regarding service of process under á clearly erroneous standard, but when a complaint is dismissed on a question of law, we conduct a de novo review. West, supra.
Upon these facts, we cannot agree that service was properly obtained in this case. The requirement at issue here was whether DHS sent a copy of the summons and complaint via first-class mail marked “legal mail” to McMahan at the Tucker prison unit. McMahan testified that he never received such mail; Reynolds testified that she did in fact send McMahan such mail. The trial court believed Reynolds’s testimony. However, the only document sent to McMahan at Tucker that was entered into evidence by DHS was a letter dated December 16, 2013. The letter, which indicates that it was hand delivered, states:
Pursuant to Rule 4 of the Arkansas Rules of Civil Procedure, you are herewith served the enclosed summons.
Please note that a hearing regarding Termination of Parental Rights has been scheduled for February 14, 2014, at 1:30 p.m., at the Washington County Courthouse, Juvenile Division. Your presence at such hearing is required.
The letter indicates that it was hand delivered, not mailed first-class mail with the notation of “legal mail.” Further, the letter indicates that only the summons was enclosed, not the petition for termination of parental rights. Service requirements are strictly construed and require exact compliance. Because DHS did not strictly comply with the service ^requirements for incarcerated individuals pursuant to Rule 4 of the Arkansas Rules of Civil Procedure, the trial court clearly erred in finding that service was proper and denying the motion to dismiss for lack of proper service.
DHS argues that McMahan was handed two summonses — one at the Washington County jail and another one from the warden of the Tucker prison unit. This argument, however, does not address the failure to comport with the service requirement that McMahan be sent a copy of the summons and complaint via first-class mail marked “legal mail.” Actual knowledge of a proceeding does not validate defective process. Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996).
DHS further argues that McMahan’s argument should be rejected because “it takes the ‘strict compliance’ doctrine in Arkansas to an extreme extent.” DHS contends that McMahan had the burden to produce the envelope marked “legal mail.” Such an argument defies logic, as McMa-han testified that he never received such an envelope. It was DHS’s burden, as the plaintiff, to demonstrate compliance with the service rules, not McMahan’s burden. Brown, supra. DHS failed to prove that it had strictly complied with the service requirements for an incarcerated defendant — its own exhibit, the December 16, 2013 letter, directly contradicts Reynolds’s testimony. Because the service. requirements were not strictly complied with, the trial court clearly erred in denying McMa-han’s motion to dismiss the petition to terminate his parental rights.
Reversed and dismissed.
HARRISON and WYNNE, JJ., agree.
. This is not the first time the issue of proper service has been raised in this case. In an order filed on November 22, 2013, in which JM's mother's parental rights were terminated, the trial court found that as to McMahan, the petition to terminate was denied because McMahan had not been properly served pursuant to Rule 5 of the Arkansas Rules of Civil Procedure.
. Service on the warden at Tucker is not an issue, as McMahan concedes that portion of the service was correctly performed. | [
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PER CURIAM.
[ petitioner James E. Clemons filed in this court a pro se petition for belated appeal and an amended petition for belated appeal. He seeks to lodge the record and proceed belatedly with an appeal of two orders filed in the Union County Circuit Court. The first order denied a petition under Act 1780 of 2001 Acts of Arkansas, as amended by Act 2250 of 2005 and codified as Arkansas Code Annotated sections 16-112-201 to -208 (Repl.2006), and the second denied a motion for reconsideration of the order denying relief. We treat the petitions as a motion for rule on clerk and deny it.
In 1992, Billy Ponder was stabbed to death at his flower shop in El Dorado. In 2007, testing of certain physical evidence from the crime scene provided a DNA match to petitioner’s DNA sample on file in CODIS, the national DNA databank. In 2009, petitioner was convicted of capital murder for Ponder’s death and received a sentence of life imprisonment without parole. This court affirmed the judgment. Clemons v. State, 2010 Ark. 337, 369 S.W.3d 710.
12In 2012, petitioner filed a habeas petition in the circuit court seeking scientific testing of certain evidence. A writ of habeas corpus can issue based on new scientific evidence proving a person actually innocent of the offense for which he was convicted. Ark.Code Ann. § 16-112-201; Winnett v. State, 2013 Ark. 482, 2013 WL 6157328 (per curiam). The circuit court initially dismissed the petition for lack of jurisdiction, but this court reversed and remanded for the trial court to consider the petition. Clemons v. State, 2013 Ark. 18, 2013 WL 298077 (per curiam). On remand, the circuit court entered an order denying the petition on April 11, 2013. In that order, the circuit court referenced a response filed by the State on February 25, 2013, and adopted that response, incorporating it into its order as setting forth the basis for the decision.
On April 17, 2013, petitioner filed a motion for reconsideration that asserted that the order did not include the findings of facts and conclusions of law required under the statute. Petitioner filed a notice of appeal from the April 11, 2013 order on May 29, 2013. He also filed, on September 4, 2013, a “second notice of appeal” from an order entered on September 5, 2013, denying the motion for reconsideration. The September 4, 2013 notice of appeal did not reference the earlier order or indicate that the previous notice of appeal had been amended. On December 16, 2013, which was 101 days after the date the second notice of appeal was deemed filed, the record was tendered to this court’s clerk, and the clerk declined to lodge it. See Ark. R.App. P.-Crim. 2(b)(1) (2014) (“A notice of appeal filed after the trial court announces a decision but before the entry of the judgment or order shall be treated as filed on the day after the judgment or order is entered.”).
The two notices of appeal were timely, and the petition is therefore appropriately treated |sas a motion for rule on clerk to lodge the record under Arkansas Supreme Court Rule 2-2 (2013). Mitchael v. State, 2012 Ark. 256, 2012 WL 1950256 (per curiam). Arkansas Rule of Appellate Procedure — Criminal 4(b) (2018) requires that the record be tendered to this court within ninety days of the date of the notice of appeal. When a petitioner fails to perfect an appeal in accordance with the prevailing rules of procedure, the burden is on the petitioner, even if he is proceeding pro se, to establish good cause for failure to comply with the procedural rules. Martin v. State, 2014 Ark. 187, 2014 WL 1673758 (per curiam).
As grounds to excuse the procedural default, petitioner alleges that his representative was reassured in person by the circuit-court clerk about one week before the deadline to lodge the record that the record would be prepared and lodged on time, and he attached an affidavit to the amended petition in support of that claim. This court has consistently held that it is the appellant who is to perfect an appeal. Id. We need not consider the asserted basis for good cause, however, because it is clear from the record that petitioner could not prevail on appeal if he were allowed to proceed. An appeal from an order that denied a petition for postconviction relief, including a petition seeking scientific testing, will not be allowed to proceed where it is clear that an appellant could not prevail. Hall v. State, 2013 Ark. 516, 2013 WL 6327525 (per curiam).
Although petitioner seeks to appeal both the April 11, 2013 order denying his petition and the September 5, 2013 order denying the motion for reconsideration, it was not made clear in the second notice of appeal that petitioner was amending his first notice of appeal to include the earlier order. Amendment of the notice of appeal is necessary in order to appeal the denial |4of the April 11,2013 order. See Ark. R.App. P.-Crim. 2(b)(2). We need not determine whether petitioner satisfied the requirements of Rule 2, however, because it is clear from our review of the order for reconsideration that petitioner could not succeed on appeal as to either order.
Petitioner’s grounds for the circuit court to reconsider its order denying relief were that the court failed to grant an evidentiary hearing or make findings of fact and conclusions of law as required by the statute. Arkansas Code Annotated section 16-112-205 requires the trial court to set a hearing, determine the issues, and make findings of fact and conclusions of law in an order granting or denying the relief, unless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief. Ark.Code Ann. § 16-112-205(a). The circuit court’s April 11, 2013 order denying relief referenced a response filed by the State as the basis for the order. If the State’s response incorporated into the order sufficiently covered the necessary issues, then the circuit court was not prohibited from referencing the response in its order to provide the basis for the decision. See Robinson v. State, 2014 Ark. 310, 439 S.W.3d 32 (per curiam) (holding that, because the State’s response to a petition under Arkansas Rule of Criminal Procedure 37.1 covered the issues raised in the petition and this court could determine from the record that the petition was wholly without merit, the order was adequate).
Here, the State’s response did provide a sufficient basis for the circuit court to determine that the files and records of the proceedings conclusively show that the petitioner was entitled to no relief. Although petitioner is correct that the order and response did not explicitly make a ruling indicating summary disposition of the petition, the response clearly stated that the | ¿petition had failed to identify any evidence for testing that had been preserved and secured as a result of his conviction and which would support a theory of defense to establish petitioner’s actual innocence.
Arkansas Code Annotated section 16-112-202 requires that a petitioner who requests relief and who seeks scientific testing to provide the basis for his relief must identify evidence for testing that meets specific criteria set out in the statute. Before a circuit court can order testing under the statute, there áre a number of these predicate requirements that must be met. Hutcherson v. State, 2014 Ark. 326, 438 S.W.3d 909 (per curiam).
Under section 16-112-202, the petition must identify specific evidence for testing that was secured as a result of petitioner’s conviction; the evidence must have been maintained subject to a chain of custody; and the petitioner must identify a theory of defense, not inconsistent with any affirmative defense presented at trial, based on the new evidence that the requested testing would provide, and which would establish petitioner’s actual innocence. See Ark. Code Ann. § 16-112-202; see also Aaron v. State, 2010 Ark. 249, 2010 WL 2006568 (per curiam). In addition, the specific evidence to be tested cannot have been previously subject to the same testing, and the petitioner who seeks testing must not have knowingly waived the right to test the evidence or failed to request testing in a prior motion for post-conviction testing. Ark.Code Ann. § 16-112-202(2). Petitioner sought additional testing in support of his claim for relief in his petition, but he did not identify evidence that would satisfy the predicate requirements under section 16-112-202 so that testing could be ordered.
In his request for testing, petitioner identified evidence that he contended had been ^preserved for testing, as follows: latent prints on the cash drawer; blood on a golden towel found at the crime scene; blood on the cash drawer; epidermal skin on the victim’s jean’s rear pocket. He attached reports from the Arkansas State Crime Laboratory dated from 1992 and 1996 in support.
The reports that petitioner attached did not indicate that, to the extent not consumed during testing, samples had been retained. The trial record, however, does contain reports from the later testing conducted in 2007, 2008, and 2009, which have such notations concerning cuttings and tape lifts from the victim’s pants, cuttings from the towel, and a swab from an area of the cash drawer. The victim’s jeans were to be retained by the El Dorado police department under an order issued March 18, 2009, but the cash drawer and the remaining portions of the towel were not included in that order.
To the extent that there were samples retained for testing, however, petitioner did not explain in the petition how any new evidence that might be developed would support a theory of defense that would establish petitioner’s actual innocence. Petitioner must have shown in his petition that the testing could provide new material evidence that would raise a reasonable probability that he did not commit the offense. See Slocum v. State, 2013 Ark. 406, 2013 WL 5596315 (per curiam). At trial, petitioner’s defense was based on the theory that, after petitioner had been paid by the victim for a sexual encounter and left the flower shop, someone else had come into the shop and taken the victim’s money and stabbed him. The trial testi mony from representatives of the crime lab concerning the evidence that petitioner wished to have reexamined was already consistent with that theory.
|7The testimony was that all of the eight usable latent prints examined from the cash drawer excluded petitioner, that the DNA profiles from the lifts from the towel were too limited for accurate comparisons, that there were no DNA profiles obtained from the cash drawer, and that the DNA profile mixture from the victim’s back pocket excluded petitioner as a contributor. Considering the theory of defense used at trial and the fact that the evidence that petitioner would now have retested failed to connect petitioner to the crime, petitioner did not show there was any theory of defense that would establish his actual innocence. He did not identify any individual that, with a link to the crime scene, would have become a viable suspect, nor did he otherwise identify a defense theory that would exonerate him using the evidence that could be produced from further testing.
In addition, petitioner did not identify new tests that were to be performed on either the fingerprints or the DNA evidence. Because the evidence had already been subjected to testing, this was essential in order to satisfy section 16-112-202(2). It was also necessary because the petition was filed more than thirty-six months after the judgment had been entered, triggering the requirement that petitioner rebut a presumption against timeliness. See Ark.Code Ann. § 16-112-202(10). To rebut the presumption, petitioner was required not only to identify new testing methods, but also demonstrate that the new technology was substantially more probative than the technology that was available at the time of his trial. See Slocum, 2013 Ark. 406, 2018 WL 5596315.
The reports concerning the evidence at issue that were admitted in petitioner’s trial | ^detailed tests that were conducted during a period from 2007 to 2009. The petition only made conclusory allegations to the effect that there were new methods of technology that are substantially more probative than the prior testing that was available in 1992. It is true that a number of specialized DNA tests had become available before 2007, and, as the opinion on direct appeal notes, newer tests were utilized in identifying petitioner as a suspect. See Slocum, 2013 Ark. 406, 2013 WL 5596315 (discussing the availability of Short Tandem Repeats and mitochondrial-DNA testing prior to 1995). Petitioner did not, however, identify any new methods or any advancements following his 2009 trial in support of the allegations. He did not demonstrate that any new specialized test was substantially more probative than the Polymerase Chain Reaction DNA technology used on the evidence admitted at trial in 2009. He accordingly did not rebut the presumption against timeliness. See id.; Aaron, 2010 Ark. 249, 2010 WL 2006568; see also Hutcherson v. State, 2014 Ark. 326, 438 S.W.3d 909 (per curiam); Gardner v. State, 2013 Ark. 410, 2013 WL 5596120 (per curiam); Penn v. State, 2013 Ark. 409, 2013 WL 5596313 (per curiam); Hill v. State, 2013 Ark. 357, 2013 WL 5434704 (per curiam).
The generally applicable standard of review of an order denying post-conviction relief dictates that this court does not reverse unless the circuit court’s findings are clearly erroneous, although issues concerning statutory interpretation are reviewed de novo and an abuse-of-discretion standard applies when the statute allows the trial court to exercise discretion. Barton v. State, 2014 Ark. 418, 2014 WL 5089358 (per curiam). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. It was not clear error for the circuit court to summarily dismiss the petition without an evidentiary hearing because the | ^petition did not identify evidence or testing to satisfy the statutory requirements for testing. Because the order sufficiently set out the basis for the decision so thát this court could affirm the denial of relief, petitioner cannot prevail on an appeal of either order.
Petitions treated as motion for rule on clerk and denied.
. The petition was filed on April 9, 2012, and the judgment was entered on March 26, 2009. The petition was filed more than a week after the end of the period for filing a presumptively timely petition. | [
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CLIFF HOOFMAN, Justice.
17 The State appeals from the circuit court’s grant of appellee Quinton Riley’s motion for a new trial based on juror misconduct. The State argues on appeal that the circuit court abused its discretion in granting a new trial and asserts that jurisdiction is proper pursuant to Ark. R.App. P.-Crim. 3(b) and (e) (2014). We disagree that we have jurisdiction of this State appeal under Rule 3, and we therefore dismiss the appeal.
After a two-day jury trial held on December 11-12, 2013, Riley was convicted of kidnapping and sentenced as a habitual offender to life imprisonment. On December 16, 2013, Riley filed a motion for new trial based on juror misconduct. He alleged that Juror # 1, Brittany Lewis, had used her cell phone to post on Facebook during jury deliberations in violation of the circuit court’s instructions to the jury that they were prohibited from doing so. Riley claimed that he became aware of Lewis’s posts after the trial had already concluded. |;>He asserted that he had been prejudiced by Lewis’s failure to follow the circuit court’s instructions and argued that Lewis’s conduct violated his right to due process and prohibited him from having a fair and impartial jury. Riley attached to his motion the Facebook posts made by Lewis.
A hearing was held on the motion for new trial on January 6, 2014. At the hearing, Lewis admitted that she had made several Facebook posts during the course of Riley’s trial. At 5:18 p.m. on the first day of trial, during a recess, Lewis posted, “Still in this Court Room. Lord, I’m ready to go home. I’m sleepy and tired, and my red wine is calling my name.” Then, at 7:02 p.m. that same evening, after the jury had begun deliberating, Lewis posted “Droooowee. We can’t come to a decision. Ugh FML.” Lewis’s next post came at 11:07 p.m. after the jury had been released for the evening. She stated, “Got home at 9:30 after leaving jury duty at 8:40. I’m just now eating my dinner while I’m irritated as hell. I probably won’t be able to sleep tonight after hearing testimonies and seeing horrible pictures and I gotta do it all over again tomorrow. Nite nite. ‘grabs wine while wishing I had vodka’[.]” The next morning, on December 12, 2013, Lewis posted at 8:34 a.m., “Good morning. Got jury duty again this morning, and hopefully we won’t be there until 8:40 p.m. like last night. Ain’t nobody got time for that.”
Lewis testified that all of her posts were made during breaks in the trial. She admitted that her post at 7:02 p.m. on December 11 was made during jury deliberations; however, she claimed that she had taken a restroom break at the time. The circuit court noted in this | .^regard that the restroom was inside the jury room and that no juror had left the room during deliberations.
Following the hearing, the circuit court entered an order on January 10, 2014, granting Riley’s motion for new trial. The court found that the jury had been repeatedly instructed throughout the trial not to discuss the case with anyone and that they had also been specifically instructed in accordance with AMCI 101(g) not to use cell phones or other communication devices for any purpose while in the jury room during deliberations. The circuit court cited to this court’s decision in Dimas-Martinez v. State, 2011 Ark. 515, 385 S.W.3d 238, in which we held that the defendant was prejudiced by a juror’s posts on Twitter during the trial because this demonstrated that the juror had failed to follow the trial court’s instructions. Although the circuit court noted that there were some differences in Lewis’s conduct and that of the juror in Dimas-Martinez, the court found that these differences were not sufficient to distinguish that case from the present one. The circuit court found that by posting to Facebook, Lewis had disregarded and violated the court’s clear orders. The court stated that Lewis’s conduct was even more egregious because one of her posts was made while she was supposed to be deliberating. The court found that all jurors are presumed to be unbiased in following the court’s instructions but that Lewis’s conduct had overcome that presumption. Based on its conclusion that Riley had not received a fair trial, the circuit court ordered a new trial. The State appealed from this ruling.
As a preliminary matter, this court must first decide if it has jurisdiction to hear the State’s appeal in this case. We will not consider an appeal by the State unless the correct and ^uniform administration of the criminal law requires review by this court. Ark. R.App. P.-Crim. 3(d). In practice, we review only State appeals that are narrow in scope and involve the interpretation of law. State v. Jenkins, 2011 Ark. 2, 2011 WL 143571. State appeals that merely demonstrate that the circuit court erred are not permitted. Id. Furthermore, we will not accept an appeal by the State where the circuit court has acted within its discretion after making an evidentiary decision based on the particular facts of the case or even on a mixed question of law and fact, as those appeals do not require an interpretation of our criminal rules with widespread ramifications. Id.
In the present case, the State argues that the circuit court clearly erred in finding juror misconduct because Lewis did not violate the court’s instructions by her Facebook posts. The State contends that Lewis’s posts were not musings, thoughts, or comments about the facts of the case, which are improper pursuant to Dimas-Martinez, supra, and that the circuit court in this case did not prohibit the jurors from making any social-media posts at all. In addition, the State argues that, even if Lewis’s posts violated the circuit court’s instructions, the circuit court erred by finding that Riley was prejudiced by the violations. The State asserts that Dimas-Martinez is factually distinguishable and that the circuit court abused its discretion in extending that decision to the facts in this case.
Riley argues that this court does not have jurisdiction of this appeal under Ark. R.App. P.-Crim. 3 and that it must therefore be dismissed. We agree. The State’s sole argument on appeal is that the circuit court abused its discretion in granting Riley’s motion for new trial. In support of its argument, the State contends that the circuit court clearly erred |fiin finding that Lewis violated the court’s instructions to the jury and also that the court erred in finding that Riley was prejudiced by these violations. Both of these are factually intensive inquiries. The issue of whether Lewis violated the circuit court’s instructions by her Facebook posts is based on the unique facts of this case, as is the issue of prejudice. While the State attempts to frame its argument as one of law by contending that the circuit court erred by extending the holding in Dimas-Martinez, supra, this issue is one that involves the correct application of the law to the facts in this case. This is demonstrated by the State’s assertion that Di-mas-Martinez is “factually distinct” from the present case. We do not accept State appeals that raise the issue of an application of the law to the facts of the case, as we have held that this does not involve the correct and uniform administration of the criminal law. State v. Short, 2009 Ark. 630, 361 S.W.3d 257(dismissing State appeal from trial court’s grant of new trial based on bailiff’s response to juror question).
The State cites State v. Cherry, 341 Ark. 924, 20 S.W.3d 354 (2000), and State v. Osborn, 337 Ark. 172, 988 S.W.2d 485 (1999), both cases involving juror misconduct, in support of its contention that we have jurisdiction of this appeal pursuant to Ark. R.App. P.-Crim 3. However, both of these cases are distinguishable from the present case. Although we did not specifically discuss the issue of jurisdiction in Cherry, we did state that the appeal was “extraordinary,” as it involved a novel situation of juror misconduct. Id. at 928, 988 S.W.2d at 357. Also, in Osborn, the appeal involved a question of law, which was whether the circuit court’s decision violat ed Ark. R. Evid. 606(b). We held that this issue was one | (¡where the correct and uniform administration of the law required our review. Id. at 173, 988 S.W.2d 485.
The State has failed to establish that this court has jurisdiction of this appeal under Ark. R.App. P.-Crim. 3, as it turns on whether the circuit court’s findings are supported by the unique facts in this case, and it does not involve the correct and uniform administration of the law. Therefore, we dismiss the appeal.
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PER CURIAM
bln 2013, Danny Stalnaker was found guilty by a jury of murder in the second degree and being a felon in possession of a firearm. He was sentenced as a habitual offender to an aggregate term of 54'0 months’ imprisonment and a fine of $20,000. The Arkansas Court of Appeals affirmed. Stalnaker v. State, 2014 Ark.App. 412, 437 S.W.3d 700.
Subsequently, Stalnaker - timely filed in the trial court a verified, pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013), claiming that he was denied effective assistance of counsel. The trial court denied- the, petition. Stalnaker brings this appeal.
| jjWe do not reverse the grant or denial of postconviction relief unless the trial court’s findings are clearly erroneous. Lemaster v. State, 2015 Ark. 167, 459 S.W.3d 02. 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. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883.
We assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United ■States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. Under this standard,.the petitioner must first show that counsel’s performance was deficient. Id. This requires a showing that counsel made errors so serious that counsel deprived the petitioner of the counsel guaranteed to the petitioner by the Sixth Amendment. Id. Second, the deficient performance must have resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial whose outcome cannot be relied on as just. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). Both showings are necessary before it can be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable, Lemaster, 2015 Ark. 167, 459 S.W.3d 802.
Stalnaker was originally charged with first-degree.murder in-the death of Chris Patterson. Evidence adduced at trial reflected that Stalnaker and Patterson were at a camping area and that Patterson, who was heavily intoxicated, had been annoying other persons throughout the day with verbal abuse and threats of physical harm. In the evening, Stalnaker retrieved a shotgun, exchanged some words with Patterson, who was seated at a picnic table, and then - struck | .¡Patterson on the side of the head with the stock of the shotgun. Stal-naker said that he acted out of fear of Patterson, he did not intend to kill him, and he did not realize .that Patterson would die from the blow. The medical examiner described the injury as significant and life threatening. , .
At trial, Stalnaker’s counsel requested that the jury be instructed on the justifiable use of “physical force” because -Stal-naker believed that he was defending himself from Patterson’s threat of physical force, as found in Arkansas Model Jury Instruction — Criminal 704. -The trial court denied the request and offered to give the “deadly physical force” instruction found in Arkansas Model Jury Instruction — 705. Counsel declined 705, arguing that -the facts would not support that instruction. Counsel ultimately withdrew- the request that the jury be instructed on a justification defense at -all and proffered 704. Counsel also proffered jury instructions on the lesser included offenses of negligent homicide and manslaughter after the trial court declined to instruct the .jury on those offenses.
On direct appeal, Stalnaker raised the issue of whether the trial court abused its discretion in declining the proffered justification-defense instruction in .704. The court of appeals held that there was no abuse of discretion in declining 704 because.- the facts supported the “deadly physical force” instruction in 705, if any justification defense.
In his Rule 37.1 petition, Stalnaker alleged that counsel was ineffective because counsel abandoned the strategy of “self-defense, negligent homicide and/or manslaughter” without his permission. As his first issue in this appeal, he argues that counsel was remiss in not objecting when the trial court declined to instruct the jury on negligent .homicide and manslaughter as lesser included offenses and that counsel was ineffective by riot raising the issue on direct appeal. |4He further argues that counsel should not have withdrawn his request for an instruction on justification.
With respect to the issue concerning the jury instructions for negligent homicide and manslaughter, as stated, the record reflects that counsel specifically sought instructions on negligent homicide and manslaughter and proffered instructions on those offenses when the court denied the request for the instructions. Therefore, counsel did raise the issue at trial and obtained a ruling on it. As to whether counsel was ineffective for not raising the issue on direct appeal, a petitioner contending that his appellate attorney was ineffective for failing to raise an issue must demonstrate that he was prejudiced by counsel’s decision. To establish prejudice, the petitioner bears, the burden of demonstrating that there was, an issue that would have been meritorious on direct appeal and would have resulted in relief from the judgment. State v. Rainer, 2014 Ark. 306, 440 S.W.3d 315. Appellant did not make that showing.
To establish that there would have been merit to the issue of whether the trial court erred in declining to give-the instructions, Stalnaker appears to rely primarily on his belief that the trial court in its order misstated or misunderstood the facts of the case or failed to come to the correct conclusion, i.e. that Stalnaker acted in self-defense. He essentially argues that the facts, if accepted- from his perspective, were not sufficient to sustain the judgment of conviction. Stalnaker’s interpretation of the facts itself, however, is not a showing that the court of appeals would have reversed the judgment if counsel had raised on appeal the issue of the trial court’s refusal to give instructions on negligent homicide and manslaughter.
The sufficiency of the evidence, including the credibility of witnesses, was a matter to be ^decided at trial.,- Stalnaker’s stringent disagreement with the trial court’s statements concerning the facts of the case is not a ground to reverse the order denying postconviction relief. Moreover, to the extent that Stalnaker was asking the trial court in his Rule 37.Í petition to reassess the question of whether the facts supported the judgment, Rule 37.1 does not provide a means to attack the weight of the evidence to support the conviction. Anderson v. State, 2015 Ark. 18, 454 S.W.3d 212 (per curiam). The claim amounts to a direct attack on the judgment. Id. As such, a challenge to whether the evidence was sufficient to sustain the judgment' is a matter to be raised at trial and on the record on appeal. Leach v. State, 2015 Ark. 163, 459 S.W.3d 795 (2015). It is well settled th'át Rule 37:1 does not afford an opportunity to a convicted defendant to challenge the sufficiency of the evidence merely because thé petitioner has raised the challenge as an allegation of ineffective assistance of counsel. Nickelson v. State, 20l3 Ark. 252, 2013 WL 2460147 (per curiam).
Therefore* the sole question cognizable under the Rule is whether counsel erred by riot raising on direct appeal the issue of the trial court’s declining to give the proffered instructions on the two lesser included Offenses. Stalnaker did not meet his burden of demonstrating that counsel was ineffective because he failed to show that the issue would have been meritorious. In assessing prejudice, courts “must consider the totality of the evidence before the judge or jury.” Strickland, 446 U.S. at 695, 100 S.Ct. 1945. Here, there was evidence that Patterson, who had a blood alcohol content four times the legal limit for intoxication, was seated with his legs under a picnic table. Stalnaker went to retrieve a shotgun and, after.briefly exchanging words with Patterson, swung the gun with great- force “like a baseball swing” and struck Patterson in the head. | (¡Stalnaker testified that he struck Patterson because Patterson stood up and threatened him, but no other witness testified to Patterson’s having threatened Stal-naker. There was testimony only that Patterson was verbally belligerent, obnoxious, and had made general threats to “kick” or “whoop” people. Considering the totality of the evidence adduced at trial and the court, of appeals’ decision that the facts supported a verdict of second-degree murder,- Stalnaker did not establish that he was entitled-to an instruction on negligent homicide or manslaughter. Stalnaker has not shown that there is a reasonable probability that the outcome of the trial would have been different had an instruction on the lesser included offenses been given to the'jury. See Rasul v. State, 2015 Ark. 118, at 6, 458 S.W.3d 722.
Turning to the issue of whether counsel was ineffective in riot asking for a jury instruction on justification as a defense, counsel proffered jury instruction 704, which - required a showing that the perpetrator was justified in-using “physical force” to defend himself. Counsel argued that 704 was the only jury instruction appropriate to the fácts of the case. Counsel declined the court’s' offer to instruct the jury in accordance with jury instruction 705, which required a showing that “deadly physical force” was justified because counsel did not consider that the facts would support a showing' that Stalnaker was justified in using deadly physical force. Rather than accept 705, counsel proffered 704 and argued on appeal that the trial court erred in not giving that instruction. The court of appeals found that it was not error for the trial court to reject the instruction and noted that counsel’s decision not to accept 705 was a matter of trial strategy. .
We find that both counsel’s decision not to ask that the jury be instructed on negligent 17homicide and manslaughter and also counsel’s decision not pursue a jury instruction on justification as a defense were tactical decisions about which seasoned advocates could disagree. Matters of trial tactics and strategy are not grounds for postconviction relief on grounds of ineffective assistance of counsel. Rankin v. State, 365 Ark. 255, 227 S.W.3d 924 (2006). This court has held that competent counsel may elect not, to request a particular jury instruction as a matter of strategy. See Feuget v. State, 2015 Ark. 43, 454 S.W.3d 734 (2015).
Counsel here was free to weigh whether the jury might be more likely to enter a verdict favorable to the defense if it, were required to decide between first-degree and second-degree murder. ■ : See Henderson v. State, 281 Ark. 406, 664 S.W.2d 451 (1984) (per curiam). Likewise, counsel was not wrong to decidé not to have the jury instructed on the only justification defense that the court was willing to give when the facts of the case were considered.
At the close of his discussion of his first argument for reversal in his brief, Stalnaker states that counsel made a mistake when he did not challenge the mention in the pretrial omnibus hearing that Stalnaker had been found guilty of five prior felonies. He contends that there should have been an objection so that he could have appealed the issue. He does not contend that the jury was present when the prior felonies were mentioned.
The record on direct appeal reflects that there was a discussion outside the presence of the jury in which Stalnaker advised the court that it was his intention to testify. During that discussion, counsel expressed his understanding that there were -two prior felony convictions .that were the basis of- the habitual-offender claim. The State agreed that there were two prior felonies and that those convictions would be made known to the jury at the beginning of the | gState’s ease. The jury in the sentencing portion of the’trial was duly advised that Stalnaker had two prior felony convictions. Accordingly, even if there were some mention in a pretrial hearing at which the jury was not present that Stal-naker had more than two prior felonies, that information was not before the jury. As a result, Stalnaker made no showing of prejudice to the defense. Without a showing of prejudice, there is no ground for granting postconviction relief. Carter v. State, 2015 Ark. 166, 2015 WL 3542239.
As his next ground for reversal of the trial court’s order, Stalnaker contends that the trial court erred in' holding that his attorney was not ineffective in three areas. Stalnaker faults counsel for not asking for a change of venue, not requesting a mental evaluation, and for spending too much time focusing on plea negotiations instead of, preparing for trial. We find no error because Stalnaker did not provide factual substantiation to show that he was prejudiced by counsel’s conduct in any of the three areas.
Stalnaker did not state what circumstances would have formed a basis on which the court would have granted a motion for change of venue such as affidavits, newspaper reports, or statements by residents, to support the assertion that he could not have received a fair trial without a change of venue. A bare allegation that a change of venue should have been sought does not show that a meritorious motion could have been made or. that an impartial jury was not empaneled, Thomas v. State, 2014 Ark. 123, 431 S.W.3d 923. Moreover, we have held that the decision whether to seek a change of venue is largely a matter of trial strategy and therefore not an issue for debate under our postconviction rule. Id. (citing Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985) (per curiam)).
laAs to the failure of counsel to secure a mental evaluation for Stalnáker before trial, a petitioner who asserts that counsel was ineffective for failing to obtain á mental evaluation before trial must demonstrate with facts that he or she was not competent at the time of trial. Robertson v. State, 2010 Ark. 300, 367 S.W.3d 538 (per curiam). Stalnaker offered no facts to substantiate his allegation.
Likewise, Stalnaker offered no facts to. show, that counsel should have spent more time preparing for trial and less time on plea negotiations. An assertion of ineffective assistance of counsel based on failure to investigate must be supported by facts describing how a more searching pretrial investigation would have changed the results of the trial. Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895. General assertions that counsel did not aggressively prepare for trial are not sufficient to establish an ineffective-assistanee-of-counsel claim. Id.
In his next point for reversa} of the trial court’s order, Stalnaker contends that it was error under Martinez v. Ryan, — U.S. —, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012)t,and Trevino v. Thaler, — U.S. —133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013) for the trial court not to permit him the time necessary for him to retain counsel for the Rule 37.1 proceeding. Stalnaker’s reliance on Martinez and Trevino is misplaced. 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 |into 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. Trevino clarified aspects of Martinez but it did .not require states to make provision for every petitioner in a collateral attack on a judgment to have counsel. See Chunestudy v. State, 2014 Ark. 345, 438 S.W.3d 923 (per curiam). Postconviction matters are considered civil in nature, and there is no absolute right to counsel. Newton v. State, 2014 Ark. 538, 453 S.W.3d 125 (per curiam).
As- his final issue on appeal, Stal-naker asserts that he is a “victim of trial penalty” because he is serving a longer sentence than he would be had his attorney been effective in plea negotiations. In short, he contends that he is being penalized by the fact that he went to trial rather than accepting a negotiated plea.
Outside the presence of the jury, counsel informed the court that Stalnaker had been offered a negotiated plea whereby he would plead guilty to murder in the second-degree and be sentenced to thirty-one years’ imprisonment. Stalnaker informed the court that he could not accept the plea offer because he did not feel himself guilty of a crime. When Stalnaker appeared before the court and explained that he had refused the plea offer from the State, he was asked by the court if his all his questions had been answered and again asked if he wished to decline the plea offer. Stalnaker repeated that he did not wish to accept the plea. In response to the court’s remarking that counsel-was a competent attorney, Stalnaker said, “I feel like I’ve been | n treated as fair as I can be treated.”
It is clear from the record that Stalnaker- made the decision- to be tried by jury. The mere fact that Stalnaker was later dissatisfied with his decision or that he received a longer sentence than he would have received had he accepted the plea bargain is not a basis for a collateral attack on a judgment under Rule 37.1.
Because Stalnaker failed to meet his burden of establishing that he was denied effective assistance "of counsel under the Strickland standard, the trial court did not err in declining to grant his Rule 37.1 petition. Accordingly, we affirm the order.
Affirmed.
. In his brief on appeal, Stalnaker has restated some of the issues raised in the petition filed below and in some instances added arguments. On appeal, an appellant is limited to the scope and nature' of the arguments he made below and that were considered by the circuit court in rendering its ruling. For that reason, we will consider only those argument in the brief which were raised below and the support for those claims that appeared in the petition. Feuget v. State, 2015 Ark, 43, 8, 454 S.W.3d 734, 740 (2015). Any allegation raised below which is not argued in this appeal is considered abandoned. See Beverage v. State, 2015 Ark. 112, 458 S.W.3d 243.
. In'his Rule 37.1 petition and brief, Stalnaker alleges that the plea offer was for a sentence of twenty-one years, but the direct-appeal record establishes that the offer was for "thirty-one years. | [
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. BART F. VIRDEN, Judge
hThe Craighead County Circuit Court adjudicated appellant S.C. delinquent for filing a false report of rape. She was sentenced to serve ninety days in juvenile detention and ordered to perform 160 hours of public service, have no contact with the accused, and work on getting her GED. S.C. argues on appeal that the trial court erred in denying her directed-verdict motion. We affirm.
I. Hearing Testimony
Deputy Brian Womack with the Craig-head County Sheriffs Office testified that on July 22,2014, he received a report from S.C. that she had been raped. Womack testified that |2S.C. told' him that she and several friends had gone swimming that afternoon; that the accused was driving her and the others home; that he drove her to a church; that the one other person who had not yet been dropped off stepped out of the car; and that the accused got into the back -seat and “forcibly’', raped her.
Investigator Ron Richardson with the Craighead County Sheriff s Office testified that he interviewed S.C., who showed him text messages on her cell phone. The following is a text-message string between her and the accused on the day after the incident:
Accused: Goodmorning
S.C.: Wryd
S.C.: Wrud
Accused: At my moms
S.C.: Where does you’re mom live?
Accused:,Salem
S.C.: I’m mad at you.
Accused: Y
S.C.: Because I told you no last night:
Accused: , Lol
S.C.: You raped me.
Accused: Nope
S.C.: Then what would you call it? I said no.
Accused: Then you said ok
|aS.C.: No I didn’t!
Accused: Yeah Hun Caz I told you if it hurt I’d stop and when I started I said do you want me to stop you said no keep going!!!
S.C.: No I didn’t!!!! ■
Richardson also interviewed the accused who said that he and S.C. had consensual sex. The accuséd provided Richardson with text messages between him and S.C. sent on the night of the incident. When Richardson confronted S.C. with those text messages, she vehemently denied having written them and “had an outburst.” Those text messages read:
Accused: Hey
S.C.: Why are we just sitting here? Lol
Accused: Caz I wanna I’ll take you home if you wanna go the weirdo '
Accused: Besides is crazy
S.C.:. Well if you were back here I’d better lol.
Accused: Lol ok I’ll come back there
S.C.: Okay lol.
Accused: Your having to much fun
S.C.: Now I’m turned on from you biting me!!!
Accused: Hehe we’ll he’s in the car
S.G.: Make him get out lol.
Accused: Are we could
I ¿Forty-five minutes later:
S.C.: Did you do anything? ? ?
Accused: What you mean
S.C.: Did you cum?
Accused: No I didn’t want to keep u that long
Richardson also interviewed the one person who had stepped out of the car, and he said that the accused and S.C.'were “making out” when he left. Richardson further testified that S.C.- later admitted that she had told the' accused “no” at first but: that she later said “ok” to sex. S.C. explained that she was a lesbian and was afraid that, if the accused had gotten her pregnant, her girlfriend would be. mad.
In her testimony, S.C. confirmed the statements made to Richardson but explained further that she did not think anything would happen when she invited the accused to get into the back seat with her. S.C. testified that, although she was not interested in the accused romantically, as they used to be. best friends, she had kissed him and sent him a text message saying that she was “turned on.” S.C. claimed that she was only joking. She testified that the accused had wanted to have sex, that she had consistently told him “no,” and that he had held her down and forced himself on her. S.C. testified, “I did eventually say okay because I couldn’t do anything else.” S.C. testified that, in making the report to police, she had left out the part where she said “ok” to sex because she was afraid- that she would get in trouble.
S.C. moved for a directed verdict ou the basis that she had filed the report because she truly believed that she had been raped. The trial court denied the motion. ■
|⅛11. Standard of Revieio
A motion to'dismiss at a bench trial is identical to a motion for directed verdict at' a jury trial because it is a challenge to the sufficiency of the evidence. L.C. v. State, 2012 Ark. App. 666, 424 S.W.3d 887. While a delinquency adjudication is not a criminal conviction, it is based upon an allegation by the State that the juvenile' has committed a certain crime. A.D. v. State, 2015 Ark. App. 35, 453 S.W.3d 696. Our standard of review is the same as it would' be in' a criminal case; that is, whether the adjudication is supported by substantial evidence. Id. Substantial evidence is evidence, direct, or circumstantial, that is of sufficient force and character to compel a conclusion one way or the o(ther, without speculation, or conjecture. Id. In considering the evidence presented below, we will not weigh the evidence or assess the credibility of witnesses, as those are questions for the fact-finder. Id. .
III. Argument
S.C. argues that the only evidence the State had .against her was “a series of small discrepancies” in her .statements to police. She did- not veer from, her account that she had been raped. She explained on the stand why she had told the accused “ok” after having told him “no” and why she did not tell that to the police, S.C. argues that the inconsistencies in her statements do not negate the fact that she believed she had been raped. She argues that the trial court erred in finding her not credible.
IV. Discussion
A person commits the offense of filing a false report if she files a report with any law-enforcement agency of any alleged criminal wrongdoing on the part of another person |fiknowing that the report is false. Ark.Code Ann. § 5-54-122(b) (Repl. 2005). A person s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime; therefore, circumstantial evidence of a culpable mental state may constitute substantial evidence to sustain a guilty verdict. Kelley v. State, 75 Ark. App. 144, 55 S.W.3d 309 (2001). The intent to commit the offense may be inferred from the defendant’s conduct and the surrounding circumstances. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995).
S.C.’s argument on appeal concerns only her credibility, and this court defers to the trial court’s assessment. A.D., supra. The trial court expressly found that S.C. was not credible. The trial court could have reasonably concluded that S.C. did not provide the text messages from the night of the alleged rape because she knew that they were inconsistent with her subsequent report of rape. Also, S.C.’s conduct after being confronted with those text messages suggests that she knew her report to the police was false. Given the content of the text messages from the night of the incident and S.C.’s admission that she had agreed to have sex, we hold that there was substantial evidence to support the adjudication.
Affirmed.
Gladwin, C.J., and Hixson, J., agree.
. In S.C. v. State, 2015 Ark. App. 118, 2015 WL 802400, this court remanded to settle and supplement the record and ordered rebriefing due to deficiencies in the appellant's abstract and addendum.
. Because the case was tried to the court, S.C.’s motion for a directed verdict is treated as a motion to dismiss. See, e.g., A.D. v. State, 2015 Ark. App. 35, 453 S.W.3d 696.
. 3 The record indicates that S.C. was approximately one month away from turning eighteen years old. There is no information on the age of the accused. | [
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Robins, J.
The lower court granted appellees’ prayer for cancellation of a deed executed by the State Land Commissioner conveying to appellant lot 14, block 2, Tuxedo Park Addition to the City of Little Rock. Appellant has appealed.
This property,' owned in 1942 by E. B. Braddock, deceased, was in 1943 forfeited and sold to the state for non-payment of taxes for the year 1942; and the only issue here is the validity of the tax sale.
The lower court held that the sale was void because the property was sold for an excessive amount of taxes, in that there was included in these taxes an 18 mill levy for school taxes, whereas, as the court below found, a levy of only 13.25 mills was authorized by the voters.
The records introduced in evidence below disclosed that at the school election held in Little Rock on March 21, 1942, the electors voted a school tax of 13.25 mills; and that at the ensuing session of the quorum court a tax for said district was levied as follows: “Maintenance .01325, Building Fund .00475.”
But it was also shown that' at a special election held in the Little Rock Special School District on November 20,1935, called in pursuance of Act No. 28 of the General Assembly, approved September 2,1933, the electors voted a tax of 4% mills, to continue for twenty years, in order to enable the district to negotiate a $55,000 bond issue for building purposes. • ■
Appellees in their brief say: “Appellees contend, and such was the holding of the chancellor, that the electors of a school district must at the annual school election vote the total millage to be levied that year, that the total millage to be extended each year must be voted each year at the annual school election, and that the quorum court must levy the school tax exactly as voted at the annual school election.”
It is apparent that the lower court refused to give any effect whatever to the provisions of Act No. 28 of 1933, and to the 1935 special election held in pursuance of the provisions of this Act.
In the case of Parsons v. Barnett, 189 Ark. 1057, 76 S. W. 2d 83, we had under consideration the validity and effect of the Act involved herein, and we there said: “We therefore hold that said Act 28 authorizes the voting of a continuing levy for a building fund, when the Act is complied with, and this matter of voting a continuing levy in school districts for building funds has twice been held by this court to lie constitutional. Woodruff v. Rural Special School Disk, 170 Ark. 383, 279 S. W. 1037; Ruff v. Womack, 174 Ark. 971, 298 S. W. 222. ’’ See, also, Lakeside Special School District of Chicot County v. Gaines, 202 Ark. 778, 153 S. W. 2d 149; Oak Grove Consolidated School District No. 9 v. Fitzgerald, 198 Ark. 507, 129 S. W. 2d 223.
Since the electors of the district had, at the 1935 election, authorized the 4% mills tax to continue for twenty years, and since they voted the 13'% mills tax in 1942, the quorum court properly levied a total of 18 mills tax for the district in that year. The only defect in the tax sale urged below or here is the asserted excessiveness in the levy of school taxes. No such defect is established by the record, and the sale must therefore be held valid. The lower court erred in canceling the deed of the Land Commissioner to appellant.
The decree appealed from is reversed and the cause remanded with directions to enter decree in favor of appellant. | [
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Smith, J.
For his cause of action appellant alleged that James M. Burgin conveyed a one-acre lot to School District No. 45 of Benton county to be used for school purposes, that a school house was built on the lot which was used for school purposes for a number of years, but was later abandoned and ceased to be used for school purposes, and the district was about to remove the school building a distance of about seven miles. Burgin the grantor in the deed died and his heirs conveyed the lot to appellant who brought this suit to enjoin the district from removing the building, it being alleged that the title thereto had reverted to the Burgin heirs upon the abandonment of the property for school purposes. A demurrer to the complaint was sustained1- and the complaint was dismissed, from which order is this appeal.
The question presented for decision is the proper construction of the deed to the school district, that is, whether the deed conveyed the fee title, or was only a conditional grant of the land for a specific purpose. We copy the relevant portions of the deed.
The recent case of Carter Oil Co. v. Weil, 209 Ark. 653, 192 S. W. 2d 215 received the fullest consideration at our hands and definitely announced that in the construction of deeds and other writings we would be concerned primarily in ascertaining the intention of the parties to the writing; that we would examine such writings from their four corners, all for the purpose of ascertaining what the parties intended by the language which they had employed, and that if such intention clearly appeared effect would be given thereto.
In the case of Luther v. Patman, 200 Ark. 853, 141 S. W. 2d 42, Justice Humphreys said that rules of construction were not intended to control the interpretation of a writing, but to aid in the interpretation, and would be resorted to only when the correct interpretation was in doubt and that the intention of the parties, if it can be gathered from the instrument in its entirety, must control.
We adhere to this ruling and as the meaning of the language employed in the deed appears clear we have no occasion to discuss the subject of conditions subsequent, nor when they arise, or the effect thereof, or to invoke rules of construction.
There is no conflict here between the language of the granting clause and the habendum clause of the deed, but if there were we would still have the authority, and be under the duty to read the instrument in its entirety to ascertain the intention of the parties to the deed. This is definitely decided in the Carter Oil Co. case, supra.
In the granting clause the lot is conveyed to the district “forever or as long as used for school purposes” and the habendum clause reads “To have and to hold the same unto the said district No. 45 and unto — his heirs and assigns forever, or as long as used for school purposes.”
If the sentence just quoted had ended with the word “forever” we would say there was a conveyance of the fee title, but this is not the end of the sentence. There follows the clause “or as long as used for school purposes.” We do not feel authorized to ignore this clause. Certainly it was intended to have some effect, and if any effect is given it we think it means, and can only mean, that the district was to have the use of the lot forever if that use was for school purposes.
In other words there was no intention to convey the fee title, but only to grant a particular or specific use of the property, forever possibly, but forever in the event only that it continued to be used for school purposes and was granted only for the period of time it was so used.
It is argued that the deed should be so construed because it contained no reverter clause. What else was intended by limiting the grant “so long as used for school purposes.” If this is not a reverter clause it is meaningless. What else can it be? It does not conflict with the granting clause which granted and conveyed the right to make a special and particular use of the lot. We conclude that the deed conveyed only the right to this use and when that use terminated} as the complaint alleged and the demurrer admits, there was of necessity a reverter although not expressly stated.
A question somewhat similar was presented in the recent case of Williams v. Kirby School District, 207 Ark. 458, 181 S. W. 2d 488, and we there quoted with approval from Tiffany on Real Property, 3rd Ed. Vol. 1, § 220, as follows: “So when land is granted for certain purposes, as for a schoolhouse, a church, a public building, or the like, and it is evidently the grantor’s intention that it shall be used for such purpose only, and that, on the cessation of such use, the estate shall end, without any re-entry by the grantor, an estate of the kind now under consideration (determinable fee) is created.”
We conclude that the demurrer to the complaint should not have been sustained, and the decree will be reversed, and the cause will be remanded with directions. to overrule it, and for further proceedings not inconsistent with this opinion.
Justices Eobins and Millwee dissent. | [
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Minor W. Mill wee, Justice.
Appellant, Mack Golden, brought this action in replevin against appellee, Yan Wallace, for the possession of a motor truck trailer. Trial to a jury resulted in a verdict and judgment in favor of appellee and this appeal follows.
Appellant has abstracted the testimony with the exception of the exhibits. He has not abstracted the pleadings, judgment, instructions, motion for new trial, or order overruling it, if one. Under Rule 9 of this court appellant is required to file an abstract or abridgment of the transcript setting forth the material parts of the pleadings, proceedings, facts and documents upon which appellant relies, together with such other matters from the record as are necessary to an understanding of all questions presented to this court for decision. The abstract furnished by appellant does not meet this re quirement. In numerous cases this court has held that a reasonable enforcement of this rule of procedure is absolutely necessary to the orderly and efficient dispatch of the business of the court. Koch v. Kimberling, 55 Ark. 547, 18 S. W. 1040; Neal v. Brandon, 74 Ark. 320, 85 S. W. 776; Reeves v. Hot Springs, 103 Ark. 430, 147 S. W. 445; Reisinger v. Johnson, 110 Ark. 7, 160 S. W. 893; Wilkerson v. Fudge, 176 Ark. 11, 1 S. W. 2d 801; Thomson v. Dierks Lumber & Coal Company, 208 Ark. 407, 186 S. W. 2d 425.
In Files v. Tebbs, 101 Ark. 207, 142 S. W. 159, it is said: ‘ ‘ This court, not having had the same opportunity as counsel in the case to become acquainted with this litigation and not being furnished the means for an intelligent consideration and review of it by an abstract as required by rule nine, neccessarily can not pass upon its merits without exploring the transcript, which as has been often heretofore said, it can not he expected to, and will not, do, and this without regard to whether such failure to furnish an abstract is relied upon for an affirmance by opposing counsel or not. Haglin v. Atkinson-Williams Hdw. Co., 93 Ark. 85, 124 S. W. 518; Brown v. Hardy, 95 Ark. 123, 128 S. W. 858; Jett v. Crittenden, 89 Ark. 349, 116 S. W. 665, and cases cited.”
In Keller v. Sawyer, 104 Ark. 375, 149 S. W. 334, the court said: “There is no reference whatever to any motion for a new trial in appellant’s brief. In the absence of such reference, and the overruling of the same, we can not determine that there was any error in the rulings of the court. ’ ’ Since appellant has not abstracted the motion for new trial, if one, or the order overruling it, if one, we cannot tell, without exploring the record, whether such motion was filed and, if so, whether the errors now complained of were assigned in the motion for new trial.
The principal contention of appellant for reversal is that the evidence was insufficient to support a verdict for appellee for possession of the trailer. While we have reached the conclusion that the judgment must he affirmed for failure to comply with Buie 9, it is not inap propriate to say that the evidence as abstracted was, in our opinion, legally sufficient to take the case to the jury on the question of ownership and right to possession of the .property in controversy.
Affirmed. | [
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McHaney, Justice.
Appellant was charged by information with the crime of grand larceny for the stealing of a cow on May 27,1947, the property of Tom Reeves. On a trial for said offense he was convicted and sentenced to two years in the penitentiary, from which he has appealed.
For a reversal of the judgment against him, he makes two arguments: one, the insufficiency of the evidence to sustain the verdict and judgment, and, two, the lack of corroboration of the two accomplices who testified against him.
It is undisputed that the cow of Tom Reeves was stolen on the night of May 27; that the two young men who testified for the State, Miles Roberson and Cuatis Webb, made a deal with appellant to haul the cow in his truck to Jonesboro for sále and agreed to pay him $25 for so doing; that he was to pick up the cow on the highway, sometime on the night of May 27, between 12 and 2 or 3 a. m., at the S curve on said highway below Tip; that the cow was in the lot or pasture of one Scott, about one-half mile from the loading place on the highway; that Roberson and Webb took the cow from the Scott place with a rope about 10 p. m. and tied her up at the appointed place to a tree to await the arrival of appellant and his truck; and that appellant came some time between 12 and 3 that night and the mow was loaded on his truck and taken to Jonesboro over a route not the nearest and most direct, where she was sold and appellant paid the $25 agreed upon for the hauling.
Some of the evidence is in dispute. Appellant says he did not know the cow was stolen, but in this he is contradicted, not only by the accomplices, Roberson and Webb who say they told him the cow was “hot,” meaning it was stolen, but by all the circumstances surrounding the whole matter. The time of. nighty the calling of appellant off out of the hearing of others to make the deal with him to do the hauling, the price paid, the route taken to Jonesboro, the denial by appellant to the officers that he hauled the cow, his admission that he had once before hauled stolen cattle, the tracks of the cow at the tree where she was tied near a vacant house on the highway at the S curve, and other facts and circumstances all tend to show that appellant was standing by, and was actively aiding, abetting and assisting Roberson and Webb in the asportation of the cow, if not the actual theft. While Roberson and Webb actually took the cow from the Scott place the larceny was not fully accomplished until she was removed, and it is undisputed that appellant completed the asportation. We think this evidence amply sufficient, not only to support the verdict and judgment against him, but also to corroborate the testimony of the accomplices.
The court fully and. fairly instructed the jury on the law of larceny, accessories, the testimony of accomplices as provided in § 4017 of Pope’s Digest, and other general instructions on reasonable doubt, presumption of innocence, etc. No objections or exceptions were made to the instructions given or refused, except the request for a directed verdict for appellant, which the court properly refused.
It is too well settled for dispute that, if there is any substantial evidence to support the verdict, we must permit it to stand, and in determining this question we must view the evidence in the light most favorable to the State. Also it is well settled, as the court instructed the jury, that the amount of the corroborating evidence of the accomplices is a question of fact for the jury. Kennedy v. State, 115 Ark. 480, 171 S. W. 878; Mankey v. State, 192 Ark. 901, 96 S. W. 2d 463. In the latter case, after so holding, we said: “If, therefore, there is any substantial evidence tending to connect the defendant with the commission of the crime, although it may be slight, it will be sufficient to support the jury’s verdict. Townsend v. State, 148 Ark. 573, 231 S. W. 1.” Here, such evidence tending to connect appellant with the commission of the crime is not slight. It is admitted by him that, pursuant to arrangements made with Roberson and Webb, he went to the appointed place, in the dead hours of night, and picked up the stolen cow and hauled her to market.
The judgment is correct and is affirmed. | [
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Griffin Smith, Chief Justice.
When Fred Akins, colored, died in September 1935 he owned a small amount of personal property and 39 acres. Surviving were three children — Peyton and John Akins, and Artelia Davis— also the widow, Lulu.
In a will, challenged nine years later, Fred devised the realty to Lulu for life with remainder in fee to Peyton. Artelia and John were bequeathed five dollars each.
The will, filed in November 1.935, was probated in common form January 13,1936. Lulu qualified as administratrix January 16. She died in March 1936.
In August 1941 Artelia Davis brought an action in Chancery for partition, alleging that her father died intestate. According to the complaint she and Peyton, in November 1936, executed a trust deed in favor of J. W. Reed to secure $300.84. Reed died and his son John acquired the trust deed rights. In August 1941 Peyton and John Akins executed their quitclaim deed to Reed for an undivided two-thirds of the Fred Akins lands. At the time suit was filed Artelia claimed she and Reed were tenants in common. This action was dismissed in March 1942 for want of prosecution.
In November 1944 Artelia — -after failing to-get the old suit reinstated — brought a new action in which she was joined by her husband, C. S. Davis. They alleged that John Reed undertook to gain possession of the real property by falsely representing himself to be a creditor, “and caused a copy of the pretended will of the deceased Fred Akins ” to be presented for probate, without notice. It is alleged the will was a forgery, intent being to defraud Artelia in respect of her inheritance and to prevent C. S. Davis from collecting the balance due on a note for $400 executed in his favor by Peyton and Artelia March 21, 1940, and secured by Peyton’s and Artelia’s deed of trust to James Anderson for the use and benefit of C. S. Davis. Prayer was that Reed be required to account for rents and profits, that C. S. Davis have judgment for his debt, that it be declared a lien, and that partition be had.
Reed answered in January 1945, alleging that he purchased the land from Peyton after the latter’s mother died. He asserted that if C. S. Davis held a mortgage it was recorded subsequent to bis own evidence of title. It was also alleged that, upon the death of Lulu Akins, Peyton took under his father’s will, and that the will had been regularly probated.
The Court held that limitation barred a contest of the will and dismissed the complaint. This, however, was not done until testimony had been heard as to merits of the respective contentions.
The complaint did not allege that fraud was practiced on the Court to secure probation of the will. In the absence of something substantially more than an assertion'that the will was forged the judgment gave it verity. “The judgment of a Probate Court, like any other judgment, is conclusive unless fraud is shown in its procurement”.-James v. Gibson, 73 Ark. 440, 84 S. W. 485; Fidelity Deposit Co. v. Fairfield, 164 Ark. 498, 262 S. W. 322. Fraud, as the basis of an action to impeach a judgment, must be extrinsic of matters originally tried or those that might have been tried.-Gulley v. Budd, 209 Ark. 23, 189 S. W. 2d 385.
Genuineness of the will offered in the probate proceedings was a matter that could have been litigated, but was not; nor was it sufficient in view of evidence in this record to say there was want of notice. It follows that Peyton acquired* the fee.
Testimony amply sustains a finding that the trust deed in Davis’ favor was to secure him in the payment of certain debts against the property — taxes, insurance, etc., — and to reimburse him for advances that might be made to cultivate the land. He was to' take charge of the property, rent it to the best advantage, and apply proceeds against expenses. During 1939 and 1940 he collected $200 from Elmer Edwards as rents. Payments made on the property and advances were much less than $200. A fair construction of Davis ’ .testimony is that he was fully compensated and that the deed of trust had served its purpose.
Affirmed.
There were informalities and seeming inconsistencies in the relationships mentioned in some of the pleadings, and a sharp distinction is not drawn between Chancery and Probate jurisdiction. | [
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McHaney, Justice.
On March 4, 1911, W. A. Magness and John D. Magness, and their respective wives, conveyed to their father, W. M. Magness, the 40 acres of land here in controversy, they being his children by his first wife. The granting and habendtm clauses in the deed conveyed the land “unto the said W. M. Magness and unto his heirs by his second wife and assigns. ’ ’ The parties agree that under this conveyance W. M. Magness took a life estate in said land with remainder in fee in his heirs by his second wife. Appellant, Opal Magness, is the only heir of W. M. Magness by his second wife who preceded him in death.
■ W. M. Magness died testate on March 11, 1938. His will, which was probated April 11, 1938, gave to each of his sons William, John and appellant the sum of $1, “which shall he their respective full interest in my estate and property.” All the rest of his estate he gave to Louella Magness, his daughter-in-law, being the wife of his son John, and with whom he lived during his declining years. He also designated her, Louella, as the executrix of his will and requested that she be permitted to serve as such without bond. No letters testamentary or of administration were ever issued to tier. She entered into possession of said 40-acre tract immediately after his death, claiming it as her own. She testified that W. M. Magness thought he owned the land in fee in his lifetime and that at one time he sold an acre of it, but later got it back. She rented the land, collected the rents and paid the taxes until she sold and conveyed' it to Rufus Benefield on February 13, 1943, who thereafter received the rents and paid the taxes until he sold and conveyed it to the appellee, Luther Mabry, in February, 1946. In May, 1946, appellants entered into possession of the house and premises, and Mrabry thereafter brought this action in ejectment to recover the possession of said land.. He alleged that he and those under whom he claimed as above set out had held adverse possession thereof for more than eight years prior to the time appellants unlawfully took possession thereof and that he had acquired title thereto by such adverse possession.
The answer was a general denial and that the possession of Louella Magness, Benefield and appellant was permissive and procured in the nature of a trusteeship or as executrix and could not ripen into adverse possession. There was also a plea of fraud on the part of Louella.
Trial to a jury resulted in a verdict and judgment in favor of appellee for the possession of said propex-ty, for which the court awarded an appropriate writ to issue. This appeal followed.
Appellants’ first and principal argument for a reversal of the judgment is that the court erred in refusing to direct a verdict for them because, they sa}q “the undisputed proof showed Louella took possession perxnissiveiy as executrix and xiever closed the estate nor secured a vesting order nor distributed it,” and, therefore held as executrix until she sold to Benefield. In the. first place, counsel for appellants did not ask for a directed verdict for appellants, or if so, the abstract does not reveal it. In the second place, we think the court properly submitted the question to the jury as to whether she took possession in her representative capacity or as owner claiming the title in fee under the will. We cannot agree that the undisputed evidence shows she took possession as executrix. It does show that she is quite ignorant as to deeds, land descriptions, wills and matters of administration of estates. On cross-examination in answer to a question: “You claim the property under the will as executrix?”, she answered: “Yes, sir.” Yet her whole testimony, when viewed in the light of her ability and understanding, shows that she claimed the property as her own under the will, and not as an asset of the estate of W. M. Magness, and, no doubt, the jury so viewed her testimony. She had no right to possess the real estate as administratrix, except for the purpose of paying the debts of the testator, and there is no showing that it was necessary for this purpose. No claims have been filed against said estate, and .no creditor has asked for a sale of the real estate for this purpose. While she testified on cross-examination that the personal property was not sufficient to pay the debts, she may have paid them herself or the creditors may have abandoned their claims. We think the court properly submitted the question of the character of her possession to the -jury, and there was substantial evidence to support the verdict.
Another argument is that appellant Opal Magness was induced by false representations to surrender possession as tenant of his father to Louella, his sister-in-law, and that limitations would not start to run against him until he learnqd of the fraud. We think the evidence insufficient to establish any fraud or misrepresentation and that the court correctly told the jury in instruction No. 12 that the sole question was whether appellee had acquired title'by adverse possession or whether appellant as owner of the legal title is entitled to retain the possession. The rights of the parties were fully protected in instruction 13, based on findings by the jury from the testimony. The instruction is lengthy and we do not set it out. Some criticism is made by appellants of the latter part of the instruction in basing the seven years’ limitation as being prior to the date of the commencement of the action, July 27, 1946, instead of prior to May 15, 1946, the date of appellants’ entry upon the land, bnt no specific objection was made thereto in the court below, and it could make no difference in the result as the undisputed proof shows Louella took charge of the land in 1938, and the seven years would run out in 1945.
Other matters are argued, but we think they are without substantial merit. The instructions fully and fairly submitted the questions of fact to the jury and covered all instructions requested by appellants in so far as they are correct declarations of law.
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Griffin Smith, Chief Justice.
In a joint complaint by Alma Robins and Stella Haley, each alleged ownership of separate tracts of land traceable to a common source. The action was in unlawful detainer with D. R. Hall and his wife as defendants. The Court apparently treated the proceeding as ejectment, although the instructions deal with unlawful detainer. There was no error in this respect.
The north half, of the northwest quarter of the northeast quarter of section fifteen, township eighteen north, range six west, (Sharp County) was formerly owned by Jesse Ritchie, who died in 1926. His wife died within three weeks of the date mentioned.
October 11, 1924, Alma Robins, a daughter of the Ritchies, executed to Dee Phillips a deed conveying an area described by metes and bounds, beginning at a point on the line between sections ten and fifteen where the Evening Shade-Ash Plat highway crosses the line. The beginning would be slightly west of the northeast corner of the twenty acres originally owned by Ritchie. The undisputed proof, concurred in by Phillips, is that in measuring the land intended to be described in the deed, a “half chain” was utilized, with the result that instead of setting out an area 105 by 429 feet, the strip measured 204% feet north and south and 864 feet east and west. Phillips immediately went into possession of the land he intended to buy, (about one-fourth of that described) fenced it and erected buildings. October 12, 1944, Phillips, using the erroneous description, conveyed to Whited, and in 1945 Whited sold to Hall, who claims to have innocently purchased for value without notice.
February 17, 1941, Alma Robins, by warranty deed, sold to Stella Haley a part of the primary twenty-acre tract. The survey starts at the northwest corner of the north half of the northwest quarter of the northeast quarter and runs east 549 feet, thence south 105 feet to a stream, then southwesterly 670 feet, thence northwesterly 527 feet to the point of beginning. Result is that the 549-ft. east line traverses the west line of the 864 feet conveyed, prima facie, to Phillips. When remainder of the description included in the Haley deed is considered, it is found that a small area covered by the Robins deed to Phillips is embraced within the Robins-Haley conveyance.
Phillips is now a resident of Oklahoma. His testimony was taken by interrogatories. When the questions were submitted to counsel for appellants, they were objected to on the ground that answers would be incompetent. For this reason the evidence has been but sketchily abstracted. We agree with appellees that if purpose of the testimony was to contradict unambiguous recitals in the deed, it would be subject to the objection urged. However, in view of appellees’ pleas of adverse possession, circumstances attending the transactions and their inception — such, for instance, as conduct of Phillips in fencing to strict boundaries, and Alma Robins ’ acts showing intent to claim beyond these lines — would be competent on the point of hostility, but incompetent to bind a purchaser claiming under the deed, such as appellants. The deed, of course, lost its value if appellees’ title ripened by adverse possession, hence testimony relating to conduct is not in contradiction of the deed, but is to show that in spite of the paper conveyance appellees are owners. Evidence of a somewhat similar character featured in Martin v. Winston, 209 Ark. 464, 190 S. W. 2d 962 when W. A. Jackson testified.
In the case at bar Phillips, (who is related to D. R. Hall) was asked: “Did you enclose with a fence all the land, or approximately all, that you purchased from Robins, [and did this occur] soon after this trade was made ? ’ ’ The witness answered: ‘ ‘ Part was fenced soon after purchase; the balance later. ... In the yard and garden I fenced all the land I claimed. ... I helped measure the land [at the time of purchase] with a surveyor’s half-chain, . . . [and] the size of the lot purchased was 105 x 429 feet. . . . At no time after fencing the property did I claim more land than that enclosed, [and] it was fenced a short time after I bought. In selling I thought I conveyed the exact lot purchased from Robins, and no more.” -
R. A. Robins, who with his wife had lived in Oklahoma four years at the time of trial — (he is a minister 70 years of age) — testified that after the Phillips deed was executed a dilapidated barn standing on the property outside the 105 x 429-ft. area was torn down and rebuilt, mutual beliefs at that time being that the barn was on Ritchie lands.
This property, with the new building, was claimed by Hall after he bought from Whited in 1945. Lands contiguous but outside the boundaries as conceived by grantor and grantee in 1924 had been rented for pasturage by the Ritchies or those claiming through them.
Answering the question, “Had the Ritchie estate and Mrs. Robins claimed to own the land south of this original lot all these years, and [did they have it] fenced as pasture?”, a witness replied, “Yes, had it rented out as pasture, kept a fence around it, looked after it, and paid taxes on it.” Summing up his testimony, R. A. Robins said: .
“No one [except tlie Ritchie heirs] has claimed to own more [than the land fenced by Phillips until Hall came along]. It was understood that the garage was on the south side of the land — on the line, or maybe a foot or eighteen inches from it; and that fence was on the line. . . . All these years, before Hall bought, the fence was around the Ritchie land. It went up and joined the yard fence: the cross-fence was partnership, and it ,is still there unless Hall has moved it. . . . The north side was fenced when we sold it [to Phillips]; Armstrong built the cobblestone fence on the front and wire fence on the south. ’ ’
A deed to lands forfeited to the State for 1934 taxes, showing purchase by Mrs. R. A. Robins, and a Clerk’s redemption certificate issued to R. A. Robins covering 1937 forfeiture; also a State deed to Mrs. Robins evidencing sale under classification provided for by Act 331 of 1939, were offered as evidence of ownership, but were excluded because the land described was “Pt. NE14 NW14, Sec. 15, Twp. 18N, R. 6W.” The ruling was correct as applied to the evidence.
Appellants think they should prevail under the general rule that where a grantor remains in apparent possession of the demised property his rights are those of a trustee, or at most he holds in subordination to the grant, hence adverse possession can have no foundation because of such occupancy. Forrest v. Forrest, 208 Ark. 48, 184 S. W. 2d 902, is cited. The quotation is from Corpus Juris Secundum, v. 2, p. 656, and the statement 'is that there is merely a presumption. In the instant appeal we think there was a question for the jury under testimony where the presumption yielded to facts. The controversy was submitted under instructions free of error.
The defendants, before answering, moved to dismiss for misjoinder of parties. It is insisted that because Alma Robins does not claim to own any of the land Stella Haley describes in her complaint, and because Stella Haley is not interested in the property Alma Robins contends for, the misjoinder is fatal. Appellees proceeded under authority of Act 334, approved March 26, 1941. Section one provides that all persons may join in an action as plaintiffs if they assert any right to relief jointly, severally,' or in the alternative in respect of or arising ont of the same transaction, occurrence, or series of transactions or occurrences and if any question -of law or fact common to all of them will arise in the action. A plaintiff need not he interested in obtaining all the relief demanded, and judgment may be given for one or more of the plaintiffs “according to their respective-rights.” See Ripley, Ex-Parte, 209 Ark. 701, 192 S. W. 2d 127. While facts in the Ripley case are not the same as those pertaining to the instant appeal, the decision discloses the legislative purpose to liberalize a procedure, to the eiid that rights or liabilities incidental to or growing out of common or related transactions may be adjudicated in a single suit. Under the Act this may be done if an adverse party is not deprived of a substantial right.
Affirmed. | [
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Minor W. Millwee, Justice.
Bud Coiner was charged by information with the crime of involuntary manslaughter in the killing of Arthur Robinson by striking and running over Robinson with a motor truck, which Comer was alleged to have driven without due caution and circumspection, and while in an intoxicated condition. He was found guilty by a jury and his punishment fixed at one year in the penitentiary.
The first three assignments of error in the motion for a new trial challenge the sufficiency of the evidence to support the verdict. The testimony 'of the State tends to show that on Saturday night, September 28, 1946, Comer and Robinson parked the latter’s 1930 model truck alongside a filling station at Tupelo, Arkansas. The tire on the left rear wheel had been removed and the truck was running on the rim. Doyne Hall, who was near the filling station at the time, testified that Comer and Robinson were drinking and called him to the truck and gave him a drink from a “fifth of whiskey.” After further conversation and drinking, Robinson offered to take Hall home in the truck, but the latter advised him to leave the truck at the filling station because of the absence of the rear tire. Robinson took this advice and left about the time the filling station closed.
Appellant then got in the truck and told Hall he was going to drive it home. Hall advised against it] but appellant proceeded to get in the truck and drive over a narrow roadway leading from the rear of the filling station diagonally across the lot to a road east of the station.
Elmer Bagwell left the filling station “just ahead” of the truck. A minute or two later Bagwell returned to the station and reported that somebody had been run over and he asked for a light. Hall and Bagwell went to a point about 75 yards behind the station where they found Robinson lying on the ground near the narrow roadway. A doctor was summoned and Robinson was removed to a hospital where he died-three days later.
Other witnesses saw appellant leave the truck at another point in the town of Tupelo shortly after he left the filling station. The track made by the rim of the left rear wheel was easily traceable from the filling station to the place where Robinson was found, and on to the place where appellant abandoned the truck. Robinson was lying about three feet left of the lefthand side of the narrow roadway and, according to the track, the car swerved about three feet to the left of the road at this point and then back into the road. Blood was found in the sand about two feet to the right of the track made by the rim of the left rear wheel and there were footprints discernible in the sand along the left side of the roadway at this point.
The arresting officer found appellant on the porch of another’s house in a drunken condition about two hours after he left the station. Although he was not questioned about the matter, appellant told the officer, “I was not driving that truck.”
Ed Satterfield purchased the Robinson truck the following Monday and, while installing a steering gear, discovered human skin with beard in it on the radius rod housing under the car. He also found hair stuck to grease on the transmission. Robinson had skinned places about his head and body and was unconscious. The ribs on the right side of his chest were fractured and caved in. His death was attributed to the chest injury which produced a hemorrhage and traumatic pneumonia.
Appellant testified that he and Robinson went to Augusta earlier in the evening in Robinson’s truck. They were drinking and purchased a bottle of whiskey at Augusta. On the return trip to Tupelo they had a “flat” on the left rear wheel and removed the tire. Robinson was then too drunk to drive, and appellant drove the caito the filling station in Tupelo. He did not remember taking a drink with Hall, but named two others with whom he did drink at the filling station.- He and Robinson were good friends and he could not recall driving the truck from the filling station, but did remember going to the house where the officer found him.
We think this evidence was sufficient to sustain the charge of involuntary manslaughter and that the jury was warranted in finding that the killing was the result of the reckless and careless driving of the truck by appellant while in an intoxicated condition.
The next contention of appellant is that the trial court erred in excluding statements made by the deceased to the witnesses, Charlie Jones and Nathan Gardner. These witnesses testified that they visited Eobinson in the hospital on Sunday morning following the accident on Saturday night when the deceased asked them what the authorities were holding appellant for. When told that appellant was being held for running over deceased, the latter said: “Well, they ought to turn the s— of a b— loose.” It is insisted that the statement was admissible as a dying declaration.
Jones testified that deceased did not say anything to indicate that he knew he was in a dying condition, but witness could tell he was in “pretty bad shape.” Gardner testified that deceased was “pretty spirited and cheerful,” but that he said, “I don’t think I’ll be here many days,” before making the statement that his friend should be turned loose.
Appellant relies on the case of Rhea v. State, 104 Ark. 162, 147 S. W. 463, where this court said: “Dying declarations are admissible only in cases of homicide where the death of the person killed is the subject of the charge and the circumstances of the death are the subject of such declarations. It is well settled that such declarations must be made, not merely when the declarant is in articulo mortis, but he must be at the. same time under the consciousness of impending death and without expectation or hope of recovery. It is not necessary,' however, that the declarant should, at the time of making the declaration, state that he makes them under a sense of impending death; if it satisfactorily appears from the evidence in any mode that the declarations were made under that consciousness, then they are admissible. This may be shown directly by the express language of the -declarant; it may also be inferred from his wounded condition and evident danger, from expressions or statements made to him or in his hearing by physicians or others in attendance, from his manner and conduct and other circumstances shown in the case.”
Applying these principles to the case at bar, we conclude there was no error in refusing to admit Robinson’s statement as a dying declaration. Whether the statement attributed to the deceased was made under a sense of impending death, and without hope of recovery, was a preliminary question of fact for the trial judge in determining admissibility. It was also the court’s duty to determine whether the statement of Robinson related to the facts or circumstandes of his death, or amounted to a "mere expression of opinion or belief. The trial court was warranted in finding that appellant failed to make a satisfactory showing that the statement of deceased was made under consciousness of impending death without expectation of recovery. Nor can it be said that the subject of the declaration, i. e., that appellant should be released, would throw any light on the circumstances of Robinson’s death.
It is finally contended that there was error in the giving of instruction No. 6. The effect of this instruction was to tell the jury that voluntary drunkenness was no defense to the charge of involuntary manslaughter, since it. was unnecessary to find that a defendant had the specific intent to kill upon that charge. There was no error in the giving of this instruction. In Bennett v. State, 161 Ark. 496, 257 S. W. 372, this court said: “The intent to commit the offense of involuntary manslaughter of which the appellant was convicted is not an ingredient of the crime. Involuntary manslaughter is, as its name implies, an involuntary killing done without any intent to kill, but in the commission of some unlawful act, or in the improper performance of some lawful act.” The court then concluded that voluntary drunkenness was no defense to the crime. See, also, Boyd v. State, 161 Ark. 665, 255 S. W. 566.
Finding no error, the judgment is affirmed. | [
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'Smith, J.
Appellants recovered a judgment in a district court in Texas against Dr. W. L. Shirey in 1967, for $40,116.29, plus interest and costs. Suit was filed on this judgment in the Little Eiver Circuit Court, in this state, in which case a writ of attachment issued, and was levied upon certain real estate in that county, and the rents maturing on the attached property were impounded. Dr. Shirey was then, and is now, a resident of the State of Texas. He made no appearance and service on him was had by the publication of a warning order. The property on which the attachment was levied had been owned by Dr. Shirey’s wife, who died testate in 1947. Her will, which was duly probated in Little Eiver county, reads as follows:
“Know All Men By These Presents:
“That I, Alice M. Shirey, of Texarkana, Texas, being of sound mind and memory, do make, publish and declare this to be'my Last Will and Testament, revoking all others.
“First: I nominate and appoint my husband, W. L. Shirey, the Executor of my estate without bond, and desire that he be required to file only an inventory of my estate with the Court as the law requires, and that he be not required to file any further statements or make any further reports to the Court.
“Second: I direct that all ’my just debts and funeral expenses be paid.
‘ ‘ Third: I devise and bequeath to my granddaughter, Marilyn Shirey Bors’t the sum of $1.00.
“Fourth: I devise and bequeath to my granddaughter, Jeanne Shirey Brackin all of my household goods.
“Fifth: I direct that my Executor keep my estate intact as nearly as possible, and I also direct that my Executor shall hold in trust my entire estate, receiving-only the income therefrom during his lifetime to be used for necessary expenditures.
“Sixth: In the event my husband should die prior to my death, then it is my desire that the income only from my five brick buildings located in Foreman, Little River county, Arkansas, shall go to my son, Guy O. Shirey during his lifetime, to be used exclusively by him, but at his death title to the aforesaid buildings shall revert to my daughter, Fay Roberts, and granddaughter, Jeanne Shirey Brackin, or to their surviving heirs, to be divided equally.
“Witness my hand this 27th day of October, A. D. 1943.”
An intervention was filed in this attachment case by the Hon. Will Steel of Texarkana, Arkansas, in which he alleged that Dr. Shirey had declined to qualify as executor, and had resigned as trustee, and that intervener had been appointed in the doctor’s stead. He alleged that the administration of the estate was then pending in Little River county, but he did not allege that any debts had been probated against the estate, or that there were any debts which might be ■ probated. The Probate Court of Little River county granted Steel permission to intervene in the attachment suit, and he did so by filing a motion to dissolve the attachment on the ground that Dr. Shirey had no interest in his wife’s estate which was subject to seizure under an attachment or otherwise. This motion was sustained and the attachment was dissolved, and from that order and judgment is this appeal.
For the reversal of this judgment it is insisted that Dr. Shirey took a life estate in the attached property. Whether he did or not under the will set out above is the question for decision.
Under the authority of the case of Taylor v. Bacon, 102 Ark. 97, 142 S. W. 1128, it is conceded that if Dr. Shirey took a life estate under the will of his wife this estate is subject to be seized under an attachment, and to sale under an execution, but it is denied that Dr. Shirey took that estate, or any other, under the will of his wife, which is subject either to attachment or execution.
It was said in the case of Robertson v. Schard, 142 Ia. 500, 119 N. W. 529, 134 Am. St. Rep. 430, by the Supreme Court of Iowa, that: ‘ ‘ The wife is under no obligation to give or devise to an insolvent husband her own estate when she knows that it will be immediately absorbed by his creditors, and if she can construct a trust from which he may derive some benefit, without vesting him with an estate or interest which is subject to levy, or other legal process, at the suit of such creditors, and thereby make sure that he will not become an object of public charity, there is no good reason in law or morals why she should not be allowed to do so.”
We are cited to no case which questions this power. Indeed appellants do not question the existence of this right and power, but insist that it was not exercised in an effective manner, and that the will devised a life estate to the husband and that he was the sole beneficiary under the will.
At § 99 of the Restatement of the Law of Trusts, p. 270, the law is stated to be that the sole beneficiary of a trust cannot be the sole trustee of the trust, and as it is insisted that Dr. Shirey was named as sole trustee for his benefit alone, his trustee interest was merged and he became the owner of a legal life estate which is subject to seizure under an attachment and to sale under an execution. Cases are cited in a note appearing in the chapter on Trusts, 54 Am. Juris. § 117, to the same effect.
It is argued also for the reversal of the judgment here appealed from, that Shirey became the trustee of the estate in question at the instant of the death of his wife, but we do not agree. The probate of the will was essential before the trust became effective, and upon its probate Shirey declined to serve as executor or trustee, and requested that Steel be appointed in his stead, which was done.
We said in the case of Carr v. Harrington, 107 Ark. 535, 155 S. W. 1166, “Trusts arise when property has been conferred upon one person and accepted by him for the benefit of the other. In order to originate a trust, two things are essential; first, that the ownership conferred be connected with a right or interest or duty for the benefit of another; and, second, that the property be accepted on these conditions.”
The court was without power to compel Shirey to act either as executor or as trustee, and he declined to serve in either capacity, but the trust did not fail for that reason, if a trust had been created. It is familiar law that equity will not permit a trust to fail through the failure of the named trustee to serve, but will in that event appoint another trustee, and Shirey declined to serve.
It is apparent that Mrs. Shirey intended that the executor named by her should also serve as trustee. The court did not lack the power to appoint an executor when the named executor declined to serve, and this appointment constituted the executor as trustee, as the testatrix manifestly intended that the executor and trustee should be oue and the same person. It does not appear that the chancery court, sitting in probate expressly appointed Steel as trustee. But the record reflects that the court treated Steel as being trustee as well as the executor. That this is true is shown by the fact that the court directed Steel to intervene in the attachment ease and to make defense.
The will is very inartistically drawn, but we think it clear that the testatrix intended to create a trust. It is contended by Shirey that a spendthrift trust was created, but whether this is true or not, a trust was created, and the duties of the trustee were defined, and these duties are such that only a trustee or an executor made trustee could perform them.
Evidently Mrs. Shirey’s estate was solvent and valuable, and evident also is the fact that she did not intend that the administration of her estate pursue the usual course. After directing that the executor pay her debts and funeral expenses, she directed that her executor “be not required to file any further statements or make any further reports to the Court.” But, as we shall presently see, she imposed certain duties ordinarily performed by trustees and not by executors.
In this connection we take occasion to say that we do not agree that Dr. Shirey was the sole beneficiary under the will. There was a devise of a dollar to a granddaughter, and to another granddaughter there was a devise of all the household goods of the testatrix, and it 'was the duty of the trustee to execute those devises. But in paragraph five of the will, duties more important were imposed upon the trustee, the performance of which would not inure to Dr. Shirey’s benefit alone. It was directed that the estate be kept intact as nearly "as possible, and that the executor should hold the entire estate in trust, receiving only the income therefrom during his lifetime, to be used for necessary expenditure, all for the benefit of the named beneficiaries who would take title upon the expiration of the trust, and this was a continuing duty.
Mrs. Shirey directed that her estate be kept intact, which would hardly be done if the attachment was sustained, and the attached lots sold under the judgment which would follow. There were four of these lots, on which there were five brick buildings, and they might not all be sold to the same person, but even so, the purchaser would feel no obligation to make any repairs except such as were necessary to secure the enjoyment of a life estate, liable to be terminated at any time upon Shirey’s death. It is conceivable that the purchaser or purchasers might not even elect to keep the property insured or the taxes paid, although the failure to pay taxes would, under § 13813, Pope’s Digest, terminate the life estate, if it be held that Shirey had a life estate, and the trustee would be deprived of the funds which Mrs. Shirey directed should be devoted to those purposes. Certainly the payment of taxes, and the insurance of the property were necessary expenditures, and so also, the necessary repairs of the buildings if rent paying tenants are to be kept in possession and the will expressly directed that her trustee should have the income from the property for the payment of these necessary expenditures.
We think it evident that the testatrix intended that the remaindermen mentioned in the sixth paragraph of the will should succeed to an estate which had been kept intact, and had been preserved, and to that end Mrs. Shirey imposed upon her trustee the active duty of preserving her estate through the expenditure of revenues therefrom. The will expressly directs the trustee to use the income for necessary expenditures.
We conclude, therefore, that Dr. Shirey took no alienable interest or estate in the land which is subject to attachment or sale, and the judgment of the court dissolving the attachment will, therefore, be sustained. | [
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Ed. P. MoEaddin, Justice.
This appeal necessitates the consideration of some of our statutes relating to dissolution of domestic corporations.
On March 25, 1942, Josie Walker duly obtained a judgment in the Municipal Court of the City of Helena for $100 against Kemmer Gins, Inc., then a duly organized and existing domestic corporation domiciled in Phillips county, Arkansas. Kemmer Gins, Inc., appealed the Municipal Court judgment to the Phillips Circuit Court; but,- because some of the attorneys and witnesses of both sides were in the Armed Forces, the case was not tried in the Circuit Court until April 30, 1946. On that last-mentioned date, all parties announcing ready, a trial de novo to a jury resulted in a judgment for Josie Walker against Kemmer Gins, Inc., for $100 and interest and costs. An execution, issued on the Circuit Court judgment, was returned nulla bona; and then Josie Walker and her attorney learned, for the first time, that Kemmer Gins, Inc., had filed a certificate of dissolution of the corporation in the county clerk’s office of Phillips county on January 12, 1943, which certificate stated that the corporation had dissolved by unanimous consent of all stockholders on September 7, 1942, and the assets had been distributed to the stockholders.
Upon the return of the nulla bona execution, Josie Walker filed the present suit in the Phillips Chancery Court against Ludwig Hirsch, Edmund Hirsch, Saul Davidson, Abe Davidson arid B. B. Kemmer, as all of the previous stockholders of Kemmer Gins, Inc. In addition to the folegoing facts, the complaint also alleged that the said defendants took over all the assets of the corporation, which assets were far in excess of all liabilities, including Josie Walker’s judgment; that, in equity, the said defendants held these assets as trustees. The prayer was for joint and several judgment against the said defendants for the amount of Josie Walker’s judgment, interest and costs, and that, for the satisfaction of the plaintiff’s judgment, she have a lien upon said assets that passed into the hands of the defendants. All of the defendants pleaded limitations; and B. B. Kemmer, in addition, pleaded that the other four defendants had agreed to hold him harmless from any and all liability for debts of the Kemmer Gin, Inc., such as the judgment of Josie Walker. The'case was tried upon stipulated facts, which included all those above detailed, as well as other facts hereinafter mentioned.
The chancery court entered a decree in favor of Josie Walker, and against Ludwig Hirsch, Edmund Hirsch, Saul Davidson and Abe Davidson, jointly and severally, for the full amount of Josie Walker’s circuit court, judgment, interest and costs, and also decreed her a lien on certain real estate; and as to that decree, the Hirsches and Davidsons have appealed. The circuit court entered a decree discharging E. E. Kemmer from all liability to Josie Walker; and as to that decree Josie Walker has appealed.’ The essential issues will be discussed under suitable topic headings. We will refer to: (1) Kemmer Gins, Inc., as the “corporation”; (2) Ludwig Hirsch, Edmund Hirsch, Saul Davidson and Abe Davidson as “appellants”; (3) Josie Walker as “appellee”; and (4) E. E. Kemmer individually as “Kemmer.” No brief has been filed for him in this court.
I. Limitations. In the chancery court the appellants and Kemmer claimed limitations under the provisions of §§ 2210, 2203' and 2148, Pope’s Digest. These sections are a part of Act 255 of 1931 entitled, “An Act to Provide for the Formation of Corporations, the Regulation and Control of Corporations, and for other Purposes.” This 1931 act amended — if it did not in fact supersede — Act 250 of 1927. Appellants contend: (1) that the present chancery suit is barred because it was filed more than three years after the corporation was dissolved, and after notice of such dissolution had been filed in the office of the county clerk; (2) that the appellees committed a fatal error in failing to revive the circuit court suit against appellants under the provisions of § 2210, Pope’s Digest, prior to the rendition of the circuit court judgment; and (3) that, at all events, they were entitled to the protection of the two-year statute of limitation contained in § 2148, Pope’s Digest.
It will be observed that a judgment had been obtained against the corporation in the municipal court, and was pending on appeal in the circuit court Avhen the corporation was dissolved. If the dissolution of the corporation had been suggested in the circuit court action, then, under § 2210, Pope’s Digest, the action could have been revived against the appellants and Kemmer as trustees. Such suggestion was not made by appellee,. because neither she nor her attorney knew of the dissolution of the corporation. Likewise, neither the attorney representing the corporation, nor any of the appellants, nor Kemmer suggested or mentioned such dissolution. So, § 2210 was not invoked by either side. It is stipulated that at the trial in the Phillips Circuit Court on April 30, 1946, R. R. Kemmer testified as a witness for the corporation, and both Saul Davidson and Edmund Hirscli were present and witnessed the trial, and that no one suggested that the corporation was dis solved. In short, § 2210, Pope’s Digest, was not invoked by either side in the circuit court case.
But § 2210 is not the exclusive method of continuing the prosecution of a pending action against a dissolved corporation. Section 2203 provides an alternate method. Section 2203 provides, inter alia, that the corporation, even though dissolved, may continue the defense of the suit; and the procedure of that section was followed in the Phillips Circuit Court. It is thus clear that the appellants and Kemmer elected to proceed under § 2203, in that they allowed the defense of the suit in the circuit court to be made as though the. corporation were still alive; and when they elected to proceed under that section, they necessarily were bound by all the provisions of that section. The last clause of that section provides that:
<£. . . with respect to any action ... or proceeding . . . commenced against the corporation prior to . . . dissolution . . . such corporation shall . . . be continued . . . beyond said three-year period and until any judgments, orders or decrees therein shall be fully executed.”
We italicize the last few words, because the judgment rendered by the Phillips Circuit Court has not been “fully executed.” Appellee sought the aid of the chancery court to complete the execution of the judgment by recapturing assets transferred by the corporation over and above the debts. Appellants and Kemmer have stipulated that they received assets of the corporation over and above all debts. The equity is that they took these assets as trustees for creditors of the corporation. Until appellee’s judgment is “fully executed,” appellants and Kemmer are in no position to claim § 2203 as a defense.
Furthermore, this is not a suit against a stockholder as such under § 2148, Pope’s Digest; but is a suit against individuals to charge them as trustees for receiving assets of the corporation over and above the debts, and which assets should be subjected to the payment of appellee’s judgment. The following cases, while decided before the enactment of Act 255 of 1931, nevertheless enunciate general principles applicable to tbe case at bar. Des Arc Oil Mills v. McLeod, 141 Ark. 332, 216 S. W. 1040; Hanson v. McLeod, 174 Ark. 270, 294 S. W. 998; and McCoy v. Lockridge, 188 Ark. 197, 66 S. W. 2d 624.
Tbe chancery court correctly overruled the plea of limitations, and correctly rendered judgment against appellants.
II. The Appeal Against Kemmer. The chancery court denied appellee any judgment against Kemmer. This was evidently because the appellants, in accepting title to certain assets of the corporation in 1942, agreed “to hold the said R. R. Kemmer harmless ... in the event the remaining indebtedness referred to shall not be paid. ’ The fact that the appellants had agreed to hold Kemmer harmless does not defeat appellee’s right to a judgment against Kemmer jointly and severally along with appellants, because it is stipulated that “each of the defendants has received property upon this dissolution the value of which exceeded the debts of the corporation at the time of the dissolution, and the amount of the judgment awarded Josie Walker.” This stipulation gave appellee the right to a judgment against Kemmer the same as against the other defendants. Kemmer may have a cause of action against appellants, but that is a matter not now before us. The point here is that Kemmer cannot use the appellants’ agreement to indemnify him, as a defense against appellee’s suit.
It follows that the decree of the chancery court is affirmed against appellants, but is reversed insofar as R. R. Kemmer is concerned, and remanded with directions to render judgment for appellee against Kemmer the same as was rendered against the appellants. Costs of this appeal are taxed against appellants and Kemmer jointly and severally.
Section 2210 Pope’s Digest was section 48 of Act 255 of 1931, and reads: “If any corporation becomes dissolved by the expiration of its charter or otherwise, before final judgment obtained in any action pending or commenced in any court of record of this State, against any such corporation, the said action shall not abate by reason thereof, but the dissolution of said corporation being suggested upon the record, and the names of the trustees or receivers of, said corporation being entered_ upon the record, and notice thereof served upon said trustees or receivers, or if such service be impracticable, upon the counsel of record in such case, the said action shall proceed to final judgment against the said trustees or receivers by the name of the corporation.”
Section 2203 Pope’s Digest was section 41 of Act 255 of 1931, and reads: “All corporations, whether they expire by their own limitations, or are otherwise dissolved, shall nevertheless be continued for the term of three years from such expiration or dissolution as bodies corporate for the purpose of prosecuting and defending suits by or against them and of enabling them gradually to settle and close their business, to dispose of and convey their property, and to divide their assets but not for the purpose of continuing the business for which said corporation shall have been established; provided, however, that with respect to any action, suit or proceeding begun or commenced by or against the corporation prior to such expiration or dissolution and with respect to any action, suit or proceeding begun or commenced by the corporation within three years after the date of such expiration or dissolution, such corporation shall only for the purpose of such actions, suits or proceedings so begun or commenced be continued bodies corporate beyond said three-year period and until any judgments, orders, or decrees therein shall be fully executed.”
Section 2148 Pope’s Digest was section 15 of Act 255 of 1931, and reads: “No action shall be brought against the stockholders for any debt of the corporation until judgment therefor is recovered against the corporation and an execution thereon has been returned unsatisfied in whole or in part. Provided, it shall not be necessary to secure judgment against a corporation in the hands of a receiver, or which shall have been adjudged bankrupt. No stockholder shall be personally liable for any debt of the corporation not payable within two years from the time it is contracted, nor unless an action for its collection shall be brought against the corporation within two years after the debt becomes due; and no action shall be brought against the stockholder after he shall cease to be the owner of the shares for any debt of the corporation, unless brought within two years from the time he shall have ceased to be a stockholder.”
Attorneys for appellants in this court did not appear as representing the corporation in the circuit court.
See Carter v. Adamson, 21 Ark. 287, and see, also, 31 C. J. 441. | [
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Ed. F. McFaddin, Justice.
This appeal involves the question of an implied warranty.
In October, 1944, appellees, (lien Sharp and Herman Young, were partners engaged in painting houses and other buildings in Lee county, Arkansas; and appellant was engaged in the manufacture and distribution of paint and kindred products, with its home office in Dallas, Texas. By two orders — one dated October 24, 1944, and the other, October 31, 1944 — appellees, for use in their work, ordered from the appellant certain of its paint at the total invoice price of $940.60. These were written orders solicited from appellees by the salesman of appellant. The paint was delivered to appellees in November, 1944. In April, 1945, they remitted $281.40 for the portion used, and attempted to return the unused portion to the appellant.- The returned shipment was refused by appellant, and left with the carrier; and then appellant filed this action against appellees for $659.20 alleged as balance due on account for the paint. The defense of appellees was that appellant breached the implied warranty, i. e., appellees claim that the paint was 'worthless for the purposes intended.- The cause was tried to a jury, and resulted in a verdict and judgment for appellees; and this appeal is an effort to reverse that judgment. Appellant urges the two points-which we will list and discuss.
I. Appellant’s Prayer for an Instructed Verdict. The trial court correctly ruled that, since the order and original receipt of the paint was admitted by appellees, therefore the burden was on them to prove that there was such a breach of implied warranty as would defeat appellant’s action. To meet this burden, appellees offered evidence designed to show: (1) that appellees were experienced workmen and knew how to paint houses and other buildings; (2) that their painting with products of other companies had always been satisfactory; (3) that, on account of weather conditions, they did not use appellant’s paint until February, 1945; (4) that by April, 1945, the paint which appellees used in February, 1945, had washed off the buildings; (5) that they then ascertained that appellant’s paint was worthless as paint; and (6) that appellees thereupon paid for the paint used and shipped the unused portion to appellant. Persons, on whose buildings the appellant’s paint had been used by appellees, testified that the paint was worthless.
Appellees testified that they could not tell whether appellant’s paint would be worthless until they tried it on buildings; and that, as soon as they ascertained the worthless nature of the paint, they paid for the portion used and promptly shipped the unused portion to appellant. The record is replete with correspondence between the parties: appellees protesting about the paint, and appellants refusing to accept the returned shipment. The orders, which the appellees signed when they ordered the paint from appellant, contain no language stipulating against an implied warranty — even if such could be done —so the law implies that the paint was to be reasonably fit for use as paint. A jury question was made as to whether appellant’s paint fulfilled the implied warranty.
In the recent case of Hydrotex Industries v. Floyd, 209 Ark. 781, 192 S. W. 2d 759 we pointed out that, in dealings concerning a product such as paint, there exists an implied warranty that the product is reasonably fit for use for the purpose for which it is deliberately sold. See, also, Johnson v. Madison Paint Co., 170 Ark. 1193, 281 S. W. 358 and Mo. Paint & Varnish Co. v. Merck, 170 Ark. 1037, 282 S. W. 270. In Bowser v. Kilgore, 100 Ark. 17, 139 S. W. 541, we quoted with approval this language:
“ ‘When a manufacturer offers Ms goods for sale, where the opportunity of inspection is not present before the purchase, the vendee necessarily relies on his (manufacturer’s) knowledge'of his own manufacture. In such cases the law implies a warranty that the articles shall be merchantable and reasonably fit for the purpose for which they were intended.’ ”.
The case of Hydrotex Industries v. Floyd, supra, shows that the result is the same as regards implied warranty, whether determined by the law of Texas or the law of Arkansas.
Appellant says that by reason of certain telephone conversations, it had allowed appellees 15 days from receipt of the paint in which to elect whether to return the shipment or keep it; and appellant insists that when appellees retained the paint past the 15-day period, they thereby waived the implied warranty. But, in this contention the appellant is confusing the contract as made between the parties with the implied warranty as made by law. If appellees had returned the paint in 15 days, they would have followed the agreed provisions between the parties without knowing whether the paint was good or bad. The evidence shows that they had to apply the paint to a building, and determine the weather effect, before they could learn of the breach of the implied warranty. That is what they did; a.nd when they ascertained that the paint was wortHess, they had a right to invoke the implied warranty, which existed in addition to the contractual provisions. In Johnson v. Madison Paint Co., supra, we said:
“Where there is a breach of warranty, in order to rescind, there must be a return of the property, or an offer to return it, within a reasonable time; but, where the property is wholly unfit for the intended use, an offer to return the property in order to rescind is not essential. ’ ’
We conclude that a question of fact was made for the jury on the issue óf whether the appellant violated the implied warranty that the paint was reasonably fit for the use for which it was designed, i. e., the painting of houses and other buildings. Appellees produced evidence that the paint was worthless, so'the appellant’s prayer for an instructed verdict was correcüy refused.
II. Instructions. Appellant says that the trial court was in error in giving instruction No. 3, which reads as follows:
“So if you find from a fair preponderance of the evidence that the product sold the defendants was not reasonably-fit for the use for which it was intended; and that the defendants, within a reasonable time after discovering the product was not fit for the use for which it was intended,- returned the products to the plaintiff, then your verdict will be for the defendants.”
This instruction was not inherently erroneous. It was evidently framed from the language of this court in the case of Johnson v. Madison Paint Co., supra, as previously quoted. When we consider this instruction along with the others which the court gave — some of which are not abstracted by appellant — , and when we consider that the appellant offered to this instruction only a general objection, we reach the conclusion that appellant’s complaint, concerning this instruction, is unavailing.
No error appearing, the judgment of the lower court is affirmed.
There is only a memorandum in the Arkansas Report; the full opinion is contained in the Southwestern Reporter. | [
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Ed. F. MoFaddin, Justice.
The question on this appeal is whether the mayor of a city — which is operating-under the Municipal Civil Service Act — has the right to appoint the chief of police of such city.
The Arkansas Legislature, by Act 28 of 1933, enacted a comprehensive civil service law affecting- the police and fire departments in cities of the first class. The act is referred to as the “Municipal Civil Service Act. ” It is admitted by all parties to this litigation that the city council of Hot Springs by appropriate ordinance established the civil service procedure for the Hot Springs police department. The city council selected the civil service commissioners, and duly approved the rules and regulations of the board of civil service commissioners of such city. Section 15 of said rules and regulations made the following classifications in rank of the Hot Springs police department: (1) chief of police, (2) assistant chief of police, (3) captain, (4) lieutenants, (5) detective and desk sergeant, and (6) patrolmen. The said section also stated just what grades were eligible to take the examination for promotion to the next higher grade.
With the foregoing conditions existing, the mayor of Hot Springs attempted to appoint a chief of police; and this litigation challenged such authority of the mayor. The chancery court held that the mayor had the authority to appoint the chief of police; and from that decree there is this appeal. Appellees point — inter alia —to § 9844, Pope’s Digest, as authority for the mayor’s right of appointment. This section (originally from Act 67 of 1885) states that the mayor shall have “the power to choose and appoint the chief of the police department . . . ” Against this statutory provision, the appellants point to Act 28 of 1933 as taking such power away from the mayor. In reply, appellees say that Act 28 of 1933 did not expressly repeal § 9844, Pope’s Digest, and that a repeal by implication is not favored. With these contentions ably presented — as they are — we come to the question first posed in this opinion.
We hold that the mayor of Hot Springs does not have the power to appoint the chief of'police. Prior to Act 28 of 1933 the mayor undoubtedly had the power to make such appointment under § 9844, Pope’s Digest. But the 1933 act, in the concluding portion of section 1 thereof, stated: “ . . . provided that this act shall not apply to the chief of police in all cities which now have, or may hereafter have, a commission, form of government, and provided further that the chief of police in said cities shall be appointed and removed as now provided by law.”
We know from the legislative journals — of which we take judicial notice — that the language above quoted was duly added by amendment before the bill was finally adopted. This amendment evidenced an unmistakable legislative intent to exclude from the operation of the municipal civil service act the selection of the chief of police in any city having a commission form of government. By expressly excluding the cities having the commission form of government, the Legislature made apparent its conclusion that in all other cities the appointment of the chief of police would be governed by the municipal civil service act. Hot Springs does not have the commission form of government.
Furthermore, in the case of Stout v. Stinnett, 210 Ark. 684, 197 S. W. 2d 564, in denying the claimed right' of a city to have two chiefs of police, we had occasion to consider and discuss the present method of selecting a chief of police; and in that case we said; “Prior to the passage of Act 28 of 1933, the power to appoint the chief of police reposed in the mayor. . . . The act of 1875. gave the mayor the power to appoint ‘the chief of the police department’ as well as the right to suspend him for cause. This power has now been taken away from the mayor and placed in the hands of the civil service commission by Act 28, supra.”
Thus, the statute as construed in Stout v. Stinnett, supra, makes clear the fact that Act 28 of 1933 took from the mayor, and placed in the civil service commission, the power to appoint a chief of police in all cities affected by the Act, except those operating under the commission form of government. That this Act 28 worked a limitation on the mayor’s power as previously possessed under § 9844, Pope’s Digest, is too clear to admit of doubt. Of course, the entire § 9844, Pope’s Digest, was not repealed, but only so mucb of tbe section as theretofore had empowered the mayor to name the chief of police, in cities operating under the aldermanic system.
In this present appeal we are asked also to state whether the Civil Service Commission of Hot Springs could legally and validly appoint (George Callahan as chief of police. That is, we are asked to say whether Callahan possesses all of the legal qualifications necessary for an appointment as chief of police even by the civil service commission. There is no evidence in this record that the civil service commission of Hot Springs has made, or is contemplating the making of, such an appointment. Therefore, we do not decide this question, because such a decision would be only a declaratory pronouncement. What we said in Micklish v. Grand Lodge, 162 Ark. 71, 257 S. W. 353, is apropos: “The courts do not sit for the purpose of determining speculative and abstract questions of law, or laying down rules for the future conduct of individuals in their business and social relations, but are confined in their judicial action to real controversies, where the legal rights of parties are necessarily involved and can be conclusively determined.'’ See, also, Cook v. LeCroy, 208 Ark. 673, 187 S. W. 2d 318; Little Rock School District v. Arkansas Public Service Commission, 210 Ark. 165, 194 S. W. 2d 874; Christy v. Speer, 210 Ark. 756, 197 S. W. 2d 466. So, we leave undecided any question as to Callahan’s eligibility for appointment by the Hot Springs civil service board. What we decide here is, that the mayor does not have the power to appoint the chief of police under the facts in this case.
For the error indicated, the decree is reversed and the cause remanded with directions to enter a decree in keeping with this opinion.
This act may be found in §§ 9945 to 9964, inclusive, Pope’s Digest. It has been before this court in many cases, some of which are: Fiveash v. Holderness, 190 Ark. 264, 78 S. W. 2d 820; Stockburger v. Combs, 190 Ark. 338, 78 S. W. 2d 816; Stockburger v. Cruse, 191 Ark. 822, 88 S. W. 2d 70; Civil Service Commission v. Cruse, 192 Ark. 86, 89 S. W. 2d 922; Civil Service Commission v. McDougal, 198 Ark. 388, 129 S. W. 2d 589; McAllister v. McAllister, 200 Ark. 171, 138 S. W. 2d 1040; Ward v. Ft. Smith, 201 Ark. 1117, 148 S. W. 2d 164; Ellis v. Allen, 202 Ark. 1007, 154 S. W. 2d 815; Civil Service Commission v. Matlock, 205 Ark. 286, 168 S. W. 2d 424; Id., 206 Ark. 1145, 178 S. W. 2d 662; Id., 208 Ark. 529, 186 S. W. 2d 936; Allen v. Baird, 208 Ark. 975, 188 S. W. 2d 505; Stout v. Stinnett, 210 Ark. 684, 197 S. W. 2d 564.
There was a dissent by the. Chief Justice in the case of Stout v. Stinnett, supra; but I am authorized to state that the dissént did not go to the point discussed and decided in the present case, | [
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Holt, J.
December 23, 1944, Mrs. Lydian Tolbert leased to the appellee here, M. T. Loggains, certain rice land in Poinsett county for a term of four years, beginning January 1, 1944, and ending December 31, 1947. Loggains took possession and operated under the lease for the year 1944, and on December 28th of that year, for a cash consideration of $2,000, he assigned and sold said lease to appellants here, J. M. Crump and E. E. Murray, who took possession and operated under the assignment for the years 1945 and 1946, enjoying the fruits of the rice crops for those two years. During the occupancy of Crump and Murray, under the assignment from Loggains (appellee), Mrs. Tolbert brought suit for the possession of the leased land, alleging that the assignment, supra, was null and void and of no effect and that by virtue of said attempted assignment appellee, Loggains, had forfeited his interest in said lease contract.
Appellants, Crump and Murray, and appellee, Log-gains, were made parties defendants in that suit, each was summoned and separately answered Mrs. Tolbert’s complaint. Appellants, Crump and Murray, in their answer, after interposing a general denial, pleaded “that should the plaintiff (Tolbert) herein prevail and this court set aside and declare void and of no effect the assignment of said lease contract, there would result a total failure of consideration for the assignment of said lease and a breach of an implied warranty that the defendant, M. T. Loggains, as said lessee, had a right to assign and sell said lease contract to these defendants (appellants herein), and that therefore the said M. T. Loggains in such contingency, would be indebted and obligated to refund to.these defendants, ft. R. Murray and J. M. Crump, two thousand and no/100 ($2,000) dollars and interest thereon, from date of assignment, and these defendants in such contingency would be entitled to judgment against the defendant, M. T. Log-gains, for said sum of two thousand dollars and interest thereon,” and their prayer was that “in such contingency as stated above, they have judgment against the said defendant, M. T. Loggains in the sum of $2,000 and interest and their costs expended, and that as to the complaint of plaintiff they be discharged with their costs, and that the complaint of the plaintiff be dismissed for want of equity and for all other proper relief.”
On a trial the court found that the attempted assignment of the lease by Loggains (appellee here) to Crump and Murray was null and void, that Loggains had forfeited his interest in said lease contract, and by its decree appellants here, Crump and Murray, were dispossessed and deprived of the use and benefit of said land for the year 1947. In that decree the court made no specific finding or reference to the prayer of appellants, Crump and Murray, supra, wherein they prayed that in the event Mrs. Tolbert should prevail, it find and declare that Loggains would be indebted and obligated to'refund to them the consideration paid to him for the lease assignment and that they have judgment against Loggains accordingly.
That case, Grump and Murray v. Tolbert, was appealed to this court, and on December 16, 1946, was affirmed. 210 Ark. 920, 198 S. W. 2d 518. Thereafter the present suit was instituted, by appellants filing a motion for a judgment against Loggains in the sum of $666.66 for a partial failure of the $2,000 consideration paid by them to appellee for the assignment of the lease, alleging a mutual mistake of law as to the right of Loggains to sell and assign said lease, in view of the decision of the court in the former suit of Mrs. Lydian Tolbert against Murray, Crump and Loggains, supra.
Appellee responded to appellants’ motion, questioned jurisdiction of the lower court and demurred on the ground that the motion did not state a cause of acton and further “that thjs court has no jurisdiction of the matters set forth and mentioned in the motion of said co-defendants, or of this defendant, for the reason that said above entitled cause has been adjudicated and a judgment has been rendered therein, and an appeal was taken from same by said co-defendants, to the Supreme Court of Arkansas, where said judgment was affirmed.”
Upon a hearing, the cause was submitted to the court below on appellants’ motion, appellee’s response and demurrer thereon, the record, pleadings and evidence in the original case of Tolbert v. J. M. Crump, R. R. Murray and M. T. Loggains, et al., supra, and after taking the cause under advisement, the 'court on May 5, 1947, entered a decree overruling the motion of appellants and dismissed same for want of equity.
This appeal followed.
On the record presented, we hold that the decree of this court, supra is res judicata of any and all claims presented by appellants in the present suit and that the decree of the trial court was correct and should be affirmed.
The defense of res judicata was alleged, supra, by appellee when he questioned the jurisdiction of the court “for the reason that said above entitled cause has been adjudicated and a judgment has been rendered therein, and an appeal was taken from same by said co-defendants, to the Supreme Court of Arkansas, where said judgment was affirmed. ’ ’
We said in Robertson v. Evans, 180 Ark. 420, 21 S. W. 2d 610, that “the test in determining a plea of res judicata is not alone whether the matters presented in a subsequent suit were litigated in a former suit between the same parties, but whether such matters were necessarily within the issues and might have been litigated in the former suit.”
In Gosnell Special School District No. 6 v. Baggett, 172 Ark. 681, 290 S. W. 577, a case in point here, we held: (Headnote 2). “A decree restraining plaintiffs from teaching a certain school held res judicata of their subsequent action for damages for breach of their contract to teach, where the former decree necessarily implied a finding that plaintiffs had no contract to teach, and it is unimportant that plaintiffs asked no affirmative relief for breach of the contract .in the prior suit. ’ ’ (Headnote 3). “The judgment or decree of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which could have been interposed in the former suit. ’ ’
In the former suit in which appellants and appellee were active parties, appellants as above indicated affirmatively asked for the relief which they now seek in the present suit. Their right to this relief could have been and should have been litigated and disposed of in the former suit. The}*- failed to press their claim iii the former suit to a conclusion and their attempt now to secure that relief comes too late. Res judicata bars them from such relief.
Finding no error, the decree is affirmed. | [
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Holt, J.
Odell Ramick was charged with murder in the first degree, committed by killing his former wife. He was convicted of voluntary manslaughter and his punishment fixed at seven years in the penitentiary. From the judgment is this appeal.
For reversal, appellant argues (1) that the court erred in holding the testimony -of Bobbie Jean Stiers competent and admissible, and (2) that “the court erred in refusing to admit the offered testimony of Robert Poteet (at Eagle’s Dance Hall), that on an occasion at Eagle’s Dance Hall one Austin Alley, who later married the then wife of defendant, engaged in a controversy with defendant and made the statement that he, Austin Alley, would shoot or kill defendant, that defendant walked away from Alley and Alley followed defendant and continued the controversy until some stranger interfered and told Mm to be quiet.”
Appellant was the former husband of Emma Della Alley. There were only two eyewitnesses to the killing, appellant and deceased’s eight year old daughter. Appellant testified that on October 19,1946, after Emma Della had married Alley, he, appellant, went to the apartment of his former wife to procure some personal belongings. Finding the door unlocked, he entered. There was no one in the apartment at the time. After procuring some personal effects, including a loaded pistol, which he carried in his hand, he started to leave and met his former wife and her small daughter in the hallway, that upon seeing him, Mrs. Alley became enraged, struck him, used harsh words,- and because of a crippled condition of his feet, he did not have good control of his body, he fell against the wall, the pistol was accidentally discharged, the bullet striking and killing Mrs. Alley.
Bobbie Jean testified, in effect, that while she was in the doorway of the apartment house, her mother was in the landlord’s room making a phone call. Appellant came in, went upstairs, came back down, “and mother was coming out of that landlord’s room and they started in fighting and she pushed him against the wall and the gun was fired. I couldn’t see what kind of gun it was, but it was fired and she fell. . . . Q. When you were standing there in the door, what made your mother shove Odell? A. Because he started in fighting her. Q. How did he start in fighting her? A. Well, I think he just hit her,” and that Ramick, after the shooting, ran from the-house and that was the last she saw of him. There was other evidence of a corroborative nature, which we think it unnecessary to detail. It suffices to say that after a review of all the testimony, we think it was ample to support the jury’s verdict, and in fact, would have warranted a conviction of a higher degree of homicide.
(1)
There was no error in admitting the testimony of the little girl. She showed herself to be of average intelli gence and able to comprehend the meaning of an oath, and no abuse of the court’s sound discretion in permitting her to testify has been shown. The admissibility of this character of testimony was thoroughly discussed by this court in the recent case of Hudson v. State, 207 Ark. 18, 179 S. W. 2d 165, wherein the child witness was seven years of age. There, in holding that the trial court properly permitted the child’s testimony to go to the jury, we said: (Headnote 2.) “If a child-witness, when offered, has capacity to understand the solemnity of an oath and to comprehend the obligation it imposes, and if in the exercise of a sound discretion the trial court determines that at the time the transaction under investigation occurred the proposed witness was able to • receive accurate impressions and to retain them to such an extent that when testifying .the capacity existed to transmit to fact-finders a reasonable statement of what was seen, felt, or heard— then, on appeal the Court’s action in holding the witness to be qualified will not be reversed.”
(2)
Appellant’s second contention, supra, that the court erred in refusing to admit the testimony of Poteet is untenable. Appellant argues in support of this contention that threats of Austin Alley against Ramick tended to show Alley’s hostile feelings toward Ramick and that this hostility “could have contributed to decedent’s present hostility” toward appellant and therefore Poteet’s testimony should have been admitted as bearing upon the hostile attitude of deceased toward Ramick. As indicated, the testimony related to certain threats that Austin Alley, the husband of Mrs. Alley, is alleged to have made against appellant, Ramick, at a dance hall, in the absence of Mrs. Alley and some time (the length of time not being shown) prior to the killing. There is no contention that deceased made any threats against appellant. In short, appellant sought to introduce testimony relating to a difficulty between himself and a third party in the absence of deceased. The court did not err in excluding this testimony.
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Minor W. Millwee, Justice.
The facts and issues in this case are set forth in the opinion rendered on a former appeal in Hull v. Hull, 210 Ark. 539, 196 S. W. 2d 905. Appellee, Lennie Hull, purchased a five-acre tract of land from J. C. Price in 1944 and the description in his deed embraced the two-acre tract in controversy. Appellants, who are the sons and heirs at law of Gully Hull, deceased, had been cultivating most of the two-acre strip for a number of years. Appellee brought an action in ejectment to establish his title and right to possession of the disputed tract. A verdict and judgment for appellee was reversed on the former appeal. On a retrial of the issues appellee has again prevailed and this appeal follows :
On the former appeal the judgment was reversed on account of error in the admission of a deed from the heirs of Jameson Bussey to W. G. Price executed in 1894. This deed was offered by appellee to establish a link in his. chain of title from the government. The description employed in the deed was held to be insufficient to identify the lands in the absence of supplemental proof establishing such identity, and in the absence of a showing that W. G. Price was in peaceable and adverse possession of tbe lands for a sufficient length of time to vest title in him, as appellee had alleged in his complaint. We also held in the former opinion that error was committed by the trial court in refusing to admit statements made by Gully Hull tending to show that his cultivation of the lands in controversy was permissive pending a survey of the lands.
Following our decision on the first appeal J. C. Price filed a petition in chancery court to confirm his title to the lands conveyed to him by his father in 1917, along with other lands. Appellants intervened in the confirmation suit, but this intervention was later withdrawn. A decree was entered April 18, 1946, confirming the title of J. C. Price in the lands conveyed to him by his father. The decree recites that J. C. Price obtained title to the lands conveyed to him by his father, W. G. Price, and the lands in controversy were properly described in the 1917 deed from W. G. Price tb J. C. Price, which was introduced as a link in appellee’s chain of title. While there could be no confirmation of title in J. O. Price to the tract which he had conveyed to appellee, the decree shows that the five-acre tract deeded to appellee by J. C. Price was carved out of the 38-acre tract which the latter acquired from his father. The effect of the confirmation decree was to cure the defective description in the deed from the heirs of Jameson Bussey to W. G. Price in 1894, and the decree was property admitted in evidence for this purpose.
There was also testimony on the second trial showing that W. G. Price was in possession of and paying taxes on the lands in controversy in 1894 and for 10 or 15 years thereafter, and before Gully Hull and appellants began cultivating a portion of the lands. Appellee relied on this possession, as well as the 1894 deed, in support of this link in his chain of title. This proof of adverse possession of W. G. Price was sufficient to support his claim of title irrespective of the validity of the deed from the heirs of Jameson Bussey.
Appellants insist, as they did on the former appeal, that a verdict should have been directed in their favor because there was no substantial evidence to show that the long continued cultivation of the lands by them was permissive instead of adverse. Appellee having established his record title to the lands in controversy, the burden rested on appellants to establish their claim of adverse possession by a preponderance of the evidence. Brown v. Bocquin, 57 Ark. 97, 20 S. W. 813; McConnell v. Day, 61 Ark. 464, 33 S. W. 731. Appellants offered no testimony in support of their claim of adverse possession, but relied upon the testimony offered by appellee on this issue.
J. C. Price testified that he was plowing the lands in controversy about 25 or 30 years ago when he and Gully Hull became engaged in an altercation over the boundary line of their adjoining lands. W. G. Price and Andy Hull, father of appellee, appeared and it was agreed that the lands would be surveyed and that each party would abide by the line to be established by the survey. Arlos Webb testified that he had heard-each of the appellants state on several different occasions that they were holding and cultivating the strip of land in controversy until a survey was made. It is true that this testimony is somewhat weakened by other evidence showing that the parties continued to quarrel over the land lines, but the credibility of all the testimony was for the jury’s determination. The intent of appellants in holding and cultivating the lands was a matter to be determined bjr the jury from all the facts and circumstances. If appellants cultivated the lands by mistake and with the intent to claim only to the true boundary, which was to be determined by a future survey, their possession was permissive and not adverse. If, on the contrary, they intended to claim it as their own without recognition of any right in the record owners, their title by adverse possession was complete. Goodwin v. Garibaldi, 83 Ark. 74, 102 S. W. 706; Waters v. Madden, 197 Ark. 380, 122 S. W. 2d 554. The admission and statements of appellants and their father were circumstances which the jury might consider, along with all the other facts and circumstances, in determining the real intention of appellants, and constituted sufficient evidence to support the verdict reached on the issue of adverse possession.
Appellants also contend that error was committed when the trial court, while instructing the jury, stated that he had refused to grant the request of appellants for a directed verdict in their favor. Requests for directed verdicts are frequently made and acted upon in the presence of the jury. The statement of the court, though inappropriate, did not in our opinion constitute prejudicial error calling for a reversal of the judgment.
Affirmed. | [
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Smith, J.
Appellee Thompson brought suit in replevin to recover possession of certain hogs which appellant Cragar had impounded under the supposed authority of Act 157 of the 1919 session of the General Assembly, which was a local fence act applicable only to Perry county. This act of 1919 was amended in material respects by Act 493 of the 1923 session of the General Assembly. Both of these acts were .passed prior to the adoption of the amendment to the constitution known as the Local Bill Amendment, reading as follows:- “The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.”
Subsequent to the adoption of this amendment the 1927 session of the General Assembly passed an act, No. 125, which repealed the 1923 act above, referred to. This the General Assembly had the authority to do, but it also undertook to reenact § 1 of the 1919 act which it did not have the authority to do, inasmuch as the effect of that action was to reenact provisions of Act 157 which had been materially altered by the Act of 1923.
Section 13282, Pope’s Digest, reads as follows: “When a statute shall be repealed and the repealing statute shall thereafter be repealed, the first statute shall not thereby be revived unless by express words. ” Now it may be conceded that the act of 1927 manifested the express purpose of reenacting § 1 of the Acts of 1919, and this it could have done by a repealing act which in express words showed that intent, if the legislation in question was not of a local or special character. But this statute does not authorize the amendment of a local act in any manner whatever, or the reenactment of local legislation and could not do so because the constitutional amendment forbids.
The case of Simpson v. Teftler, 176 Ark. 1093, 5 S. W. 2d 350, involved certain local fence laws. After quoting the Local Bill Amendment, Justice Mehaffy there said: “The Legislature, under this amendment, could not pass a special act. And if a special act had been passed before the adoption of this amendment, but had not gone into effect, the Act of 1927, undertaking to-care a defect, would, in effect, be passing a local act. . . . It (the General Assembly) could not do indirectly what the Constitution prohibits it from doing directly.” The same learned justice also said in the case of Johnson v. Simpson, 185 Ark. 1074, 51 S. W. 2d 233, that since the adoption of the Local Bill Amendment, the Legislature cannot amend, though it may repeal a local act previously passed.
Here the provisions of § 1 of the 1919 Act had ceased to be the law upon the passage of the 1923 act, and it was sought to reenact these provisions by the passage of the Act of 1927. This the amendment forbids.
Appellant filed an answer in the replevin suit asserting tlie authority to impound hogs under the provisions of the 1939 Act. A demurrer to this answer was sustained thus raising the question whether § 1 of the 1919 Act was effective as existing law. We think the court was correct in holding that it is not, and the demurrer was therefore properly sustained and the judgment from which is this appeal is affirmed. | [
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Holt, J.
Appellant, August Koelsch, was charged in the State of Oklahoma with wife and child abandonment, which, under the laws of that State, is a felony. A requisition was issued by the Governor of Oklahoma for appellant’s arrest as a fugitive. Appellant was arrested in Sebastian county, and upon a hearing before the Governor of this State, the requisition of the Governor of Oklahoma was honored, and immediately following this action of the Governor of Arkansas, appellant filed petition for a writ of habeas corpus before the Sebastian Circuit Court, Port Smith District, and upon a hearing the writ was denied and he was remanded to the custody of the officer who had him under arrest. He was later released on bond. This appeal is from that judgment.
Por reversal, appellant contends that “no person may lawfully bo removed from one state to another by virtue of the constitutional provisions relative to extradition unless he is charged in one state with a-crime, has fled from justice and demand is made for his delivery to the state wherein he is charged with the crime, and if either one of these conditions is absent, the Constitution affords no warrant for restraint of that person,” and also says “the petitioner (appellant) admits his identity, but denies that he is a fugitive from justice. ’ ’
On the record presented, it is undisputed that appellant was a resident of Oklahoma on January 1, 1945, when the crime, supra, was alleged to have been committed by him and after the commission of the alleged offense, he left Oklahoma and removed to Arkansas. Under the Oklahoma law, the charge against him was a continuing offense. It is conceded that appellant is the identical person charged in Oklahoma. In these circumstances, appellant became a fugitive from justice. The court below was not concerned with appellant’s guilt or innocence, and its judgment in denying the writ was correct.
The applicable and well established rule in a case such as this is stated by this court in Swann v. State, 206 Ark. 184, 174 S. W. 2d 557, where we said: “The Circuit Court, after the requisition of the demanding state had been honored by the Governor of this state, copld consider a petition for habeas corpus for only two purposes: first, to establish the identity of the prisoner; and, second, to determine whether he is a fugitive. Also, that the question of the guilt of the prisoner is to be determined on the trial of the charge in the demanding state.
“Here, there is no question of the identity of the petitioner. As to whether he is a fugitive, he is again concluded by the holding in the case just cited. There,. the late Justice' Butler, for the court, said: ‘In Appleyard v. Massachusetts, 203 U. S. 222, 27 S. Ct. 122, 51 L. Ed. 161, 7 Ann. Cas. 1073, it was held'that where a person is properly charged within a given state with the commission of an offense in that state, covered by its law, and, who, after the date of the commission of the alleged offense, leaves the state, he becomes a fugitive from justice within the meaning of the provisions of the Federal Constitution (Const., Art. 4, § 2; 18 U.S.C.A., § 662), and laws relating to extradition regardless of the purpose or the motive, or under what belief he leaves the demanding state, even though at the time of leaving he had no knowledge or belief that he had violated its criminal laws, and did not consciously flee from justice in order to avoid prosecution for. the alleged crime. The Governor of Arkansas, by his act in honoring the requisition, found that appellee was a fugitive from justice. In this state of the case the rule seems to be that before he would be entitled to a discharge by court order, the evidence would have to be practically conclusive in his favor. Keeton v. Gaiser, 331 Mo. 499, 55 S. W. 2d 302; Munsey v. Clough, 196 U. S. 364, 25 S. Ct. 282, 49 L. Ed. 515.
“The crime charged against him was committed, if committed at all, in the state of California, at a time when petitioner was residing there. . . .' Shortly after the alleged offense, he left California and returned to Warren, Arkansas, and was a resident here when arrested. Therefore, he was a fugitive, under the rule just stated within the meaning of the requisition laws, and the court properly refused to discharge him.” See, also, Stuart v. Johnson, 192 Ark. 757, 94 S. W. 2d 715; State ex rel. Lewis, Sheriff, v. Allen, 194 Ark. 688, 109 S. W. 2d 952, and the very recent case of Letwick v. State, 211 Ark. 1, 198 S. W. 2d 830.
Accordingly, we affirm the judgment of tile trial court and the Arkansas -officer holding the extradition writ is directed to take appellant into custody and release him to the agent of the State of Oklahoma for removal to that state. | [
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Minor "W. Milwee, Justice.
Appellant, Alta May Stanley, brought this action as the natural guardian and next friend of her minor daughter, Maxine Shipman, against appellee, Calico Rock Ice & Electric Company, to recover damages for the death of Sam Shipman, the father of Maxine. Sam Shipman was divorced from appellant, Alta May Stanley, in 1939. Appellant, Lela Shipman, is the widow of Sam Shipman, deceased, and the stepmother of Maxine Shipman. She was made a defendant in the complaint of Alta May Stanley, and filed a pleading in which she adopted the allegations of the complaint and asked for judgment against appellee.
The complaint alleged that Sam Shipman was electrocuted on August 5, 1945, because of the negligence of appellee, as follows: “That said defendant was negligent in permitting a defective transformer to exist and remain unrepaired in the vicinity of the place where the deceased was constructing his home. The exact nature of the defects being to plaintiffs unknown. That by reason of such defective transformer and negligence on the part of the defendant a dangerous amount of electric current highly in excess of 110 volts was permitted to flow through the line leading to the deceased’s garage and into the electric cord; and this highly excessive amount of current caused the deceased’s death.
“That the defendant, Calico Rock Ice & Electric Company, Incorporated, knew, or by the exercise of ordinary care should have known, that said transformer was defective and dangerous and that the condition existing constituted a menace and danger to the lives and property of many people, including the deceased, in the vicinity of such transformer. The defendant, Calico Rock Ice & Electric Company, Incorporated, was negligent in its failure to properly repair or replace the defective transformer and in permitting a dangerous and excessive amount of current to flow into the wires upon deceased’s premises and the negligence of said defendant was the direct and proximate cause of the deceased’s death. ’ ’
The answer of appellee denied the allegations of the complaint and pleaded contributory negligence on the part of the deceased.
At the close of the testimony on behalf of appellants and at the conclusion of all of the testimony, the trial court denied a request for an instructed verdict in favor of appellee. The jury returned a verdict for appellant, Alta May Stanley, in the sum of $2,500 and for appellant, Lela Shipman, in the sum of $500. Appellee then filed a motion for a judgment in its favor notwithstanding the verdict. The trial court treated this motion as a motion for a new trial and sustained the same, entering an order granting appellee a new trial. Pursuant to the provisions of § 2735 of Pope’s Digest, appellants excepted and filed notice of appeal, consenting that judgment absolute should be rendered against them in this court, if the order granting appellee a new trial should be affirmed.
The order of the trial court granting the motion for a new trial does not state the specific ground upon which such action was taken. Since, however, the effect of the motion filed by appellee is to allege the insufficiency of the evidence to sustain the verdict, we must affirm the action of the trial court, if it can be supported on this ground. Hall v. W. E. Cox & Sons, 202 Ark. 909, 154 S. W. 2d 19.
For reversal of the judgment sustaining the motion for a new trial appellants say in their brief: ‘ ‘. . . . if there is such evidence in this record as would have caused this Court to affirm this case if the appeal had been by the appellee, who was the defendant below against whom the verdict of the jury was returned, this case will now be reversed because the verdict was supported by sufficient evidence and the court below was in error in holding otherwise and ordering a new trial.” Tn the cases cited by appellant in- support of this argument the trial court had overruled, instead of granting, a motion for a new trial by the defendant. The trial court thus gave its approval to the judgment by refusing to grant a new trial on the ground that the verdict is contrary to the evidence. In such cases this court has uniformly upheld the verdict where there is any testimony of a substantial character to support it. The same rule is not applicable, however, where the trial court has found that the verdict of the jury is against the pre ponderarme of the evidence and has sustained the motion for a new trial, as in the case at bar.
The case of Wilhelm v. Collison, 133 Ark. 166, 202 S. W. 28, involved an appeal by plaintiff from an order granting a motion for a new trial filed by defendant, and the court said: “We are not called upon to pass upon the legal sufficiency of this testimony to support a verdict based upon it, because the court below granted a new trial pursuant to the prayer of a motion therefor, which assigned as a ground therefor that the verdict of the jury was contrary to the preponderance of the evidence: We have many times said that the trial court should grant a motion for a new trial when convinced that the verdict of the jury was clearly against the preponderance of the evidence. Mueller v. Coffman, 132 Ark. 45, 200 S. W. 136; Twist v. Mullinix, 126 Ark. 427, 190 S. W. 851. And when the trial court reaches that conclusion and takes that action we have announced as a rule governing us in our review of that action that ‘this court will not reverse a decision of the trial court granting a new trial on the weight of the evidence unless it appears that there has been an abuse of the discretion in setting aside the verdict which is sustained by the clear preponderance of the evidence.’ McIlroy v. Arkansas Valley Trust Co., 100 Ark. 599, 141 S. W. 197.”
In McDonnell v. St. Louis S. W. Ry. Co., 98 Ark. 334, 135 S. W. 925, this court said: “It is reversible error for the trial court to direct a verdict for one party where there is any substantial evidence to warrant a verdict for the other party. The trial court can not take from the jury its prerogative to determine disputed questions of fact. St. Louis, I. M. & S. Ry. Co. v. Petty, 63 Ark. 94, 37 S. W. 300; Wallis v. St. Louis, I. M. & S. Ry. Co., 77 Ark. 556, 95 S. W. 446; State v. Caldwell, 70 Ark. 74, 66 S. W. 150; Hutchinson v. Gorman, 71 Ark. 305, 73 S. W. 793; LaFayette v. Merchants’ Bank, 73 Ark. 561, 84 S. W. 700, 68 L. R. A. 321, 108 Am. St. Rep. 71; Neal v. St. Louis, I. M. & S. Ry. Co., 71 Ark. 445, 78 S. W. 220; Crawford v. Sawyer & Austin Lbr. Co., 91 Ark. 337, 121 S. W. 286.
“But that is a different question from the one under consideration. It is not invading the province of the jury for the trial judge to set aside its verdict where there is a conflict in the evidence. On the contrary, it is the duty of the trial court to set aside a verdict that it believes to be against the clear preponderance of the evidence. But it should not, and the presumption is that it will not, set aside a verdict unless it is against the preponderance of evidence. This court will not reverse the ruling of the lower court in setting aside a verdict where there is substantial conflict in the evidence upon which the verdict was rendered, but will leave the trial court to determine the question of preponderance. Taylor v. Grant Lumber Co., 94 Ark. 560, 127 S. W. 962; Blackwood v. Eads, 98 Ark. 304, 135 S. W. 922.”
In Johnson v. Mantooth, 120 Ark. 99, 179 S. W. 175, the trial court treated a motion for judgment notwithstanding the verdict as a motion for a new trial which was granted, as in the instant case, and this court held (to quote a headnote) : “The action of the trial court in granting a new trial on the ground that the verdict is not supported by the evidence, is not reviewable on appeal, where it appears that there is a substantial conflict in the testimony. ’ ’
In Twist v. Mullinix, supra, Justice Wood, speaking for the court, said: “The only tribunal, under our judicial system, vested with the power to determine whether or not a verdict is against the preponderance of the evidence is the trial court. Where there is a conflict in the evidence and the trial court finds that the verdict, upon a material issue of fact, is against the preponderance of the evidence, the logical and necessary result of such finding as matter of law is that the verdict must be set aside; otherwise, it would be impossible to correct the error. ’ ’
In the recent case of Clark v. Gill, 206 Ark. 267, 174 S. W. 2d 679, we said: “It is the duty of the trial court, if there is a substantial conflict in the evidence as to negligence, to submit, the question to the jury for its determination; but, if the jury returns a verdict which, in the opinion of the trial court, is against the preponderance of the evidence, it is his duty to set it aside and grant a new trial on the motion of the losing party. ” The same rule is announced and followed in many cases which are cited in Crawford’s Civil Code of Arkansas, p. 306.
This brings us to a consideration of the question whether the trial court abused its discretion in holding that the verdict of the jury was against a preponderance of the evidence and granting the motion for a new trial. We will not attempt to detail the testimony of each witness, but a brief summary of the evidence will suffice to demonstrate that no abuse of discretion on the part of 'the trial court is shown.
Sam Shipman was a mechanic and had constructed a. garage and part of a new home on his lots in the town of Calico Rock. He installed the electric wiring in his garage which was connected with a distribution line running from a transformer serving 25 other customers of appellee. The primary line leading from the power source to this transformer carried 2300 volts. It was the function of the transformer to reduce the voltage to 110 on the distribution lines to the various service connections. There was a severe rain and electrical storm on the night of August 4, 1945, and fuses of the transformer which were blown out were replaced early the next morning and service restored.
About 9 :30 a. m. August 5, 1945, Sam Shipman con"nected one end of a long 250 volt extension cord with a socket in his garage, picked up the other end of the cord and proceeded to' drag it out of the garage, intending to connect it to another cord attached to an electric pump in the yard. Shipman was holding the metal connection points of the cord in his -left hand and when he had walked a few feet outside the garage he was electrocuted. A thumb and one finger were burned and there were also burns on his buttotíks and one heel. When Shipman received the shock he fell to the ground clinging to' the end of the cord which was pulled from his hand. Ship-man’s widow testified that the ground was dry where deceased fell, but other witnesses on both sides testified the ground and grass were wet from the hard rain on the previous night. There was a sharp dispute in the evidence as to whether deceased’s clothing was also wet.
An electrical expert of 19 years’ experience testified that Shipman could have come to his death from a current of 110 volts under the conditions existing at the time he received the shock; that he knew of death resulting from an electric shock of 97 volts under similar conditions ; and that a high voltage tends to knock one loose from the wires, while a lower voltage tends to paralyze and hold one to the wires. He also testified that a current of 220 volts would burn out light bulbs and blow the fuses in the switch box in Shipman’s garage.
The local manager of the power company testified that he replaced the blown out fuses in the transformer after examining the wiring. The company had no equipment to test the transformer, but he ascertained that lights were burning in the nearest house after replacing the blown out fuses. He took the transformer down after Shipman’s death and found no defect in it. The oil had become a little dark, but was still in good condition. The oil was changed and the transformer later placed in service, without further repairs, at another location in Calico Bock.
Several witnesses for appellants whose homes were served by the same transformer testified that they received shocks on the morning Shipman was killed. Ship-man’s mother testified that she received a shock when she turned on a radio. One witness felt a tingle in his fingers when he touched the outside of an empty light socket and another received a severe shock when she pulled a chain attached to a light socket. Another witness received a shock from touching the metal roof of his home, while pulling some wet vines from the roof in the afternoon following the death of Shipman. There was also evidence that a wet tree was burned where the insulation was worn from a wire which was rubbing against the tree. There was no evidence of a light bulb burning out or damage to other electrical appliances, and none of the fuses were blown out in tbe switch boxes of the 26 connections served by the transformer in question. The testimony on behalf of appellee was to the effect that the shocks received by the witnesses for appellants could have occurred from a current of 110 volts on the distribution wires supplying their homes.
The burden was upon appellants to show by a preponderance of the evidence that Shipman’s death was proximately caused by the negligence of appellee in maintaining a defective transformer which permitted an excessive amount of electric current to be carried through the line to the deceased’s garage. From a consideration of all the testimony we are unable to say that the trial court acted arbitrarily, or abused his discretion, in finding that the verdict of the jury was contrary to a preponderance of the evidence, and in granting a new trial.
The judgment is, therefore, affirmed and judgment absolute in favor of appellee will be rendered here in pursuance of the stipulation of appellants under § 2735 of Pope’s Digest, supra. | [
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Robins, J.
Information was filed by the prosecuting attorney against appellants, Albert Wilkersop and Willie Wilkerson, charging them with having committed the offense of murder in the first degree by shooting to death George Cletus Bryant and C. W. Winston.
A jury found appellant, Albert Wilkerson, guilty of murder in the second degree and left his punishment to the court. Appellant, Willie Wilkerson, was found guilty of voluntary manslaughter and his punishment fixed at imprisonment in the penitentiary for a term of two years. From judgment of the court sentencing Willie Wilkerson in accordance with the verdict, and fixing Albert Wilkerson ’s punishment at confinement in the penitentiary for a term of twenty-one years this appeal is prosecuted.»
On February 9, 1947, George Cletus Bryant, C. W. Winston and Archie Bryant were driving, in what witnesses designated as a “jeep,” along a public highway from Cornerstone to Altheimer in Jefferson county. Cletus Bryant held an appointment as deputy sheriff of Jefferson county. A sedan, driven by appellant, Willie Wilkerson, with appellant, Albert Wilkerson, his brother, also on the front seat, passed the “jeep” at a high rate of speed.
The occupants of the “jeep” pursued the sedan, passed it, and parked on the road in front of the sedan, which stopped also. Cletus Bryant and C. W. Winston got out of the “jeep” and went back to the sedan. Cletus Bryant was armed with a pistol, but Winston was unarmed. Bryant was a few steps ahead of Winston and when he came up to the car a colloquy between him and appellant, Willie Wilkerson, who was driving the car, ensued. Shots were fired by appellant, Albert Wilkerson, and by Cletus Bryant. Appellant, Willie Wilkerson, was slightly wounded, and Cletus Bryant and C. W. Winston both fell in the road mortally wounded, death of each of them occurring a short time afterwards.
It was the theory of the state that Cletus Bryant, being an officer, went to the car in which appellants were riding for the purpose of arresting the driver on account of the manner in which he had been driving, and that when he attempted to do this appellant, Albert Wilkerson, began firing the fatal shots before Bryant had made any demonstration with his pistol. The defense was that Bryant, without good cause, drew his pistol and began firing at Willie Wilkerson, whereupon appellant, Albert Wilkerson, in self-defense, and in defense of his brother, took his brother’s pistol from under the “dashboard” of the car and fired on Bryant, and that Winston, being in line of fire, was' unintentionally shot.
These grounds for reversal are urged by appellants:
1. That the information, filed against them was invalid because it embraced the killing of two different persons.
2. That the court erred in permitting introduction of a card showing the appointment of Cletus Bryant as deputy sheriff.
3. That, since the evidence was insufficient to show guilt, the lower court erred in refusing to .direct a verdict of not guilty.
4. That the lower court erred in instructing the jury as to the guilt of one who, though not inflicting the mortal blow, is present and aids, abets or encourages the commission of the offense.
1.
Section 3838, Pope’s Digest, is, in part, as follows: “The offenses named in each of the subdivisions of this section may be charged in one indictment. . . . The homicide of several persons, when committed by the sainé person or persons, at the same time or in furtherance of the same criminal'design. ” It is conceded that Bryant and Winston were both shot and killed at the same time, and that the shots were fired by appellant, Albert Wilkerson. The lower court therefore did not err in refusing to quash the information because it embraced the killing of both Bryant and Winston.
2.
The sheriff of Jefferson county testified that he had appointed Cletus Bryant as a deputy sheriff, and he introduced in evidence, over the objection of appellants, a card on which the following appeared: “Pine Bluff, Ark. Jan. 1, 1947. Mr. Cletus Bryant has been commissioned as Special Deputy Sheriff [Signed] Garland Brewster, Sheriff Jefferson County. This Commission expires Dec. 21, 1948. ’ ’ Blank line, presumably for identifying signature of appointee, appeared at one end of card.
Appellants urge that under the provisions of § 11815, Pope’s Digest, the appointment of a deputy sheriff must be “ ‘in writing under the hand of the sheriff, and shall be filed and recorded in the Recorder’s Office in the County’.” There is no proper showing in this case that Bryant’s appointment was not actually made, and evidence thereof recorded, as required by statute. The sheriff testified that he had appointed Bryant and the signed card was merely supplemental to his testimony. The proof was sufficient to show prima facie that Bryant had sufficient reason to assume that he had been appointed deputy sheriff and had authority to make an arrest for a violation of traffic law. Appellant, Willie Wilkerson, according to his own testimony, had concluded that Cletus Bryant was in fact an officer and was preparing to submit to arrest when the shooting started. Under this proof, no prejudice to appellants could have arisen from the introduction of this card.
3.
It is next argued on behalf of appellants that the evidence was insufficient to support a verdict of guilty as to either of them. There was testimony of a substantial nature from which the jury was justified in finding that appellant, Albert Willierson, began firing at the two slain men before any hostile demonstration had been made against either of appellants, and that his action sprang, not from an honest belief that it was necessary to use his weapon in necessary self-defense or defense of his brother, but from resentment at the car being stopped or from a desire to prevent the arrest of his brother by Bryant, who, according to the testimony of appellants themselves, informed them, when he went to the car, that he was an officer. This finding of the jury is of course binding on us.
While there is no proof of words or overt acts on the part of appellant, Willie Wilkerson, to establish his guilty concert in the crime, it was shown by the state’s testimony that, before Cletus Bryant drew his pistol or fired it, this appellant, sitting beside appellant, Albert Wilkerson, allowed Albert to take his (Willie’s) pistol and begin shooting. This fact and other circumstances shown were sufficient to authorize the jury to infer that he was actively consenting to and aiding in the criminal acts. Hunter v. State, 104 Ark. 245, 149 S. W. 99.
4.
Appellants do not contend that the lower court, when formally charging the jury, did not give a correct instruction as to the meaning of “aiding and abetting” so as to enable the jury to determine properly the responsibility of appellant, Willie Wilkerson; but they argue that error was committed b}r the lower court when the jury, during their deliberations, returned to the courtroom for further instructions as to this phase of the law. We have examined the transcript of what was said by the court in response to questions by a member of the jury and we do not find that the court made any erroneous statement of the law at that time.
There are many other assignments of error in the motion for new trial. We have carefully considered all of these .assignments and conclude that none of them should be sustained.
The judgments appealed from are affirmed. | [
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Minor W. Millwee, Justice.
E. B. Treece was the owner of several tracts of land in Searcy county, Arkansas, where he died intestate in 1918 survived by his widow, Patti Treece, and five children as his only heirs at law. Appellee, Eugene Treece, is the oldest of said children and appellant, Winston Treece, is next in age. There was no administration of the E. B. Treece estate and his widow rented and paid taxes on the lands until her death in 1942. The heirs of E. B. Treece also inherited a lot in the City of Marshall, Arkansas, from their grandfather, J. E. Treece who died in 1926. In 1937, appellant executed and acknowledged a deed to appellee conveying his undivided one-fifth interest in the lands and all other claims of appellant to the E. B. Treece estate. This instrument was recorded on March 2.3, 1940.
The instant suit was instituted by appellant on August 27, 1946, to cancel the deed which he executed to appellee in 1937. The complaint alleged that appellant signed and acknowledged the deed omitting the name of a grantee, and left the instrument with his mother for safekeeping with no authority given anyone to insert the name of a grantee therein. It was further alleged that no consideration was received for the deed and that it was never delivered to appellee; that the instrument was recorded without the knowledge or consent of appellant and did not become a deed for the reason that a grantee was not named therein. It was prayed that the instrument be cancelled and appellant decreed to be the owner of an undivided one-fifth interest in the lands described therein, and for an accounting of all moneys received by appellee from the E. B. Treece estate. An amendment to the complaint was filed alleging that appellee and other heirs of E. B. Treece, deceased, had attempted to convey one tract of land belonging to the estate to Stella Goddard in March, 1946, and it was asked that she be made a party defendant to the suit. The Citizens Bank of Marshall, Arkansas, intervened alleging that it held a mortgage on the lands conveyed to Stella Goddard and was without notice of any claim, or right, of appellant in said lands.
In his answer appellee alleged that the 1937 deed was delivered to him by appellant in consideration of the payment and cancellation of a debt of $1,235 which appellee loaned and advanced to his brother at various times from 1933 to 1935 in order to finance his college education; that after appellant finished school, he attempted to settle the indebtedness on several occasions by conveying his undivided one-fifth interest in his father’s estate to appellee; that the offer was finally accepted and appellant delivered the deed to appellee who placed it of record; and that appellant had at all times, since, and prior to the filing of suit, recognized appellee as the owner of the original one-fifth interest of appellant in the estate of their parents.
A trial of the issues resulted in a decree dismissing the complaint of appellant for want of equity and this appeal follows.
There was a sharp dispute in the evidence as to whether the deed was delivered to appellee. Appellant testified that he signed and acknowledged the deed and offered it to appellee in August, 1937, at El Dorado, Arkansas, in payment of advancements in the amount of $850 made to him by appellee; that appellee refused to accept the deed and appellant mailed it to his mother at Marshall, Arkansas, for safekeeping and did not authorize anyone to deliver it. Early in 1940, he learned that the deed had been recorded, bnt he had not recognized his brother to be the owner of his one-fifth interest in the lands.
Testimony on behalf of appellee is to the effect that he began work immediately after he finished school in 1932 and became self-supporting. He made advancements to appellant to defray his expenses as a student in the University of Arkansas from 1933 to 1935 under, an agreement whereby appellant would make repayment of the debt, after he finished school, with- interest at 5% from the date of graduation. Appellant finished school in 1936 and was employed at El Dorado, Arkansas, in 1937. Appellee was then employed at Bearden, Arkansas, and made request for repayment of the advancements. Appellant acknowledged the existence of the indebtedness in the amount of $1,235 and paid $50 on the debt at that time. Appellant tendered a deed to his one-fifth interest in the estate to appellee in payment of the debt in 1937, and on several occasions thereafter. Appellee refused to accept these deeds for the reason that the value of a one-fifth interest in the estate would not exceed $500 at that time. The parties were in Marshall, Arkansas, on March 23, 1940, when appellant tendered-the deed in question to appellee and he accepted it in satisfaction of the debt. He did not inspect the deed, but took it to the clerk’s office immediately after delivery and instructed the clerk to record it and mail it to his mother. Since 1940, the lands have increased in value and the present value of one-fifth interest in the estate would approximately equal the amount of the indebtedness due appellee by appellant. A Marshall attorney testified that he drafted some deeds for appellant conveying lands to appellee prior to 1940, but did not draw the instrument involved in this suit.
We think a preponderance of the evidence shows that the deed was delivered to appellee in March, 1940, by appellant who thereafter asserted and claimed no interest in the estate until this suit was filed in 1946. Appellant made no contributions in payment of taxes and other expenses of the estate and made no claims to dividends from rents. In the management of the estate since 1940, the other heirs have recognized appellee’s ownership of his brother’s original one-fifth interest in the estate and lands of the estate have been disposed of,' taxes paid and rents distributed on that basis.
The deed which appellant seeks to cancel recites: “That I, Winston W. Treece, a single person, for and in consideration of the sum of One & No/100 Dollars, to me in hand paid by Eugene B. Treece, the receipt of which is hereby .acknowledged, do hereby grant, bargain, sell and convey unto the said........................and unto his heirs and assigns forever, the following lands lying in the County of Searcy and State of Arkansas, to-wit: . . . ” The grantee’s name in the habendum clause of the deed was also in blank.
. In 16 Am. Jur., Deeds, § 76, p. 482, the textwriter states the rule to be applied in testing the sufficiency of the designation of a grantee in a deed, as follows: “A deed to be operative as a conveyance-must in some manner designate as grantee an existing person who is capable of taking title to the land. So long, however, as a person has been named in the body of the deed, with words indicating that it was intended that he should be the grantee, the deed will be effective although the name does not appear in the granting clause, but only in the habendum or in the acknowledgment of payment of consideration. ... In short, where the instrument refers to someone in such terms that there is no doubt that he is the grantee, the deed will be effective although his name is not specifically stated as being the grantee.” See, also, 26 -C. J. S., Deeds, § 25, p. 206; Tiffany Real Property (Third Ed.), Yol. 4, § 967, p. 33; Thompson on Real Property (Perm. Ed.), Yol. 6, § 3165, p. 323.
The precise question involved here was before the Supreme Court of North Dakota in the case of Henniges v. Paschke, 9 N. Dak. 489, 84 N. W. 350; 81 Am. St. Rep. 588, where the court had under consideration the validity of a deed from F. T. Walker and wife which recited that the consideration was paid by John P. Walker, who was not otherwise mentioned in the deed. Speaking of the deed, the court said: “It recites that the consideration was paid by John P. Walker. That fact alone raises a very strong, but perhaps not a conclusive, presumption that he was intended as grantee. But we do not rest our conclusion on this presumption. But three persons are named in the deed. The first two — F. T. Walker and Maggie Walker — are grantors. The other person named is John P. Walker. The deed, after reciting that the consideration is paid by John P. Walker, declares that the grant is ‘unto said...............’; that is, to some person or persons theretofore named. The only person to whom it can possibly refer is John P. Walker, for the grantors could not convey to themselves, and no other persons are named. Through a clerical omission Walker’s name was not repeated in the blank in the granting clause, but he had already been named, and, had the blank been filled, no other name than hi's could have been inserted. The language, as it stands, forbids it. Our conclusion is that the deed designates John P. Walker by name as grantee with-entire certainty, and is, therefore, a valid instrument.” The North Dakota court approved the language of Chief Justice Craves, speaking for the court, in Newton v. McKay, 290 Mich. 1, as follows: “It is not indispensable that the name of the grantee, if given, should be inserted in the premises. If the instrument shows who he is, if it designates him, and so identifies him that there is no reasonable doubt respecting the party constituted grantee, it is not of vital consequence that the matter which establishes his identity is not in the common or best form, or in the usual or most appropriate position in the instrument. ’ ’ The same result was reached by the Texas court in Hopkins v. Walters, 224 S. W. 516.
In Black v. Brown, 129 Ark. 270, 195 S. W. 673, this court said: “In Thomas v. Marshfield, 10 Pick. (Mass.) 364, the first objection to the deed was that the grantees were not named, nor designated with sufficient certainty. The court said: ‘With regard to the first objection, it is .not essential to the validity of a grant, that the grantee or grantees should be named; but if not named, they must be ascertained by description, so as to be distinguished from all others; and any uncertainty in this respect will render the grant void.’ ” In Wood, et al. v. Boyd, 28 Ark. 75, it was held that a deed will not be void for uncertainty as to the grantee, if the grantee be - so described that his identity may be made certain or discovered by proof aliunde.
Tested by the foregoing rules we think there was a sufficient designation of appellee as grantee in the deed in question. The fact that the grantee’s name was left in blank in the granting and habendum clauses of the deed was clearly a clerical omission which is supplied by reference to the acknowledgement of payment of the consideration by appellee. This view is strengthened by a consideration of the circumstances surrounding the execution and delivery of the deed, and the evidence is sufficient in our opinion to warrant reformation of the instrument to supply the unintentional omissions of the scrivener.
In urging the invalidity of the deed appellant relies, on the principles announced in Adamson v. Hartman, 40 Ark. 58; Williams v. Courton, 172 Ark. 129, 287 S. W. 745, and Curlee v. Morris, 196 Ark. 779, 120 S. W. 2d 10. In these cases the name of the grantee was intentionally left in blank by the grantor. The instrument did not mention the name of the grantee and his name was afterwards inserted without authority from the grantor. It was held that the instrument did not become operative as a deed by the unauthorized insertion of the name of the grantee. In the instant case the failure to insert the grantee’s name in one part of the deed was an unintentional omission which is supplied by reference to another part of the instrument. The principles announced in the cases cited are not controlling here.
The action of the chancellor in dismissing the suit of appellant to cancel the deed in controversy was correct, and the decree is accordingly affirmed. | [
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Minor W. Millwee, Justice.
The parties to this action were married in 1939. On October 2,1940, appellant, June A. Sandidge, executed a warranty deed to -appellee, Ms wife, to four lots in the City of G-urdon, Arkansas. The parties resided in one of the two bouses located on these lots until 1945 when they separated and appellee sued appellant for a divorce and settlement of property rights in the chancery court.
On October 7, 1946, a decree was rendered in the chancery court which denied a divorce to appellee, but fully adjudicated the property rights of the parties and found that appellee had fee title to the four lots in controversy. Neither party appealed from the chancery decree.
On April 1, 1947, appellee brought this action in circuit court alleging her ownership and right to possession of the four lots by virtue of the deed from appellant and the chancery decree. The complaint also alleged that appellant refused to deliver possession to appellee and continued to occupy the property and collect the rents after receipt of notice to vacate which was given soon after their separation in 1945. Appellee prayed judgment for possession of the lots together, with $1,600 which she alleged to be the rental value of the property from April, 1945, and for damages in the sum of $1,000'for unlawful detention of the property by appellant.
Appellant filed a demurrer to the complaint stating that circuit court was without jurisdiction because appellee had only an equitable title to the lands under the deed from her husband, and that such title was insufficient to support an action at law for possession. The demurrer was overruled and appellant answered denying the material allegations of the complaint and further alleged that he retained legal title to the property as long as the parties remained married and was entitled to occupy the premises as trustee by operation of law. Appellant also filed a cross complaint alleging that he conveyed the property to appellee in 1940 on her promise to reconvey to the parties jointly within 30 days. He prayed damages in the sum of $1,000 for breach of her alleged agreement to reconvey the property.
In answer to the cross complaint appellee interposed the plea of res judicata based on the chancery court decree of October 7, 1946.
On a trial of the issues the circuit judge instructed a verdict in appellee’s favor for possession of the four lots in controversy and directed the jury to fix the fair rental value of the ^property from October 7, 1946, the date of the chancery decree, to the date of the trial, -which was held on April 29, 1947. The jury returned a verdict for appellee for possession of the property and $375 in rents. Appellee excepted to the trial court’s refusal to permit the jury to allow rents accruing prior to October 7, 1946, but there is no cross appeal on this issue.
The primary contention of appellant for reversal of the judgment based on the jury’s verdict is that' circuit court was without jurisdiction. In support of this contention appellant argues that appellee acquired only an equitable interest in the lands under the deed from appellant in 1940; and that chancery court was without authority to decree any greater interest in the land than that acquired by appellee under said deed. Appellant cites a number of cases holding that a deed of land by a husband to Ms wife will convey to her only an equitable estate, while he holds the legal title as her trustee. Some of these cases are Ogden v. Ogden, 60 Ark. 70, 20 S. W. 796, 46 Am. St. Rep. 151; Maupin v. Gaines, 125 Ark. 181, 188 S. W. 552; and Wilkerson v. Powell, 173 Ark. 33, 291 S. W. 799.
In Maupin v. Gaines, supra, the court held that a wife could not maintain a suit for possession in a court of law under a deed from her lrusband where the holder of the legal title refused to join in the suit. The rule announced and followed in the foregoing cases was changed by Act 8.6 of 1935. Section 1 of said act, now appearing as § 1866 of Pope’s Digest, reads as follows: “Any deed of conveyance of real property located in this State, executed after the passage of this Act by a married man directly to his wife or by a married woman directly to her husband, shall be construed as conveying to the grantee named in such deed the entire interest of the grantor in the property conveyed, or the interest specified in the deed, as fully and to all intents and purposes as if the marital relation did not exist between the parties to such deed.”
Under the above-mentioned statute the chancery court was authorized to find, as it did, that the deed from appellant to his wife conveyed his entire interest in the four lots in controversy. Having bec'ome invested with absolute ownership in the property by virtue of the( chancery court decree appellee was entitled to assert her right of possession in the circuit court. The decree of the chancery court determined the respective interests of the parties in properties other than the lots in controversy. Appellant accepted the benefits of the decree and neither party has appealed therefrom.
In support of his cross complaint appellant offered testimony to the effect that appellee, at the time of the 1940 conveyance, orally agreed to reconvey the property to appellant. Error is assigned in the exclusion of this testimony. The question of a contemporaneous agreement to reconvey was one that should have been, and doubtless was, thoroughly explored in the chancery suit where title to the property was finally adjudicated. The chancery decree was conclusive of the rights of the parties on this issue and the trial court correctly excluded this testimony.
The jury fixed the rental value of the property at $375 for a period of six months and 22 days, or a monthly rental of $55.70. Appellant insists that the verdict for rents is.grossly excessive. - Tenants who had lived in the smaller rent house since October, 1945, testified that they paid a monthly rental of $15, appellant paying the utility bills. One of the tenants also paid appellant $20 per month rental for two rooms of the larger six-room house for several months. Appellee testified that she was offered $50 per month for the six-room house and could have easily rented it for that amount. Viewed in the light most favorable to appellee, the evidence was sufficient to support the verdict fixing the rental value of the property.
Appellant argues that neither he nor appellee was properly qualified to testify concerning the fair rental value of the property. The testimony was not objected to on this ground at the trial and appellant has waived the right to urge the objection here.
Appellant executed a supersedeas bond guaranteeing the satisfaction of the circuit court judgment as well as rents which have accrued since the trial. While we are authorized to enter judgment against the sureties on the supersedeas bond here, we are unable to definitely fix the amount of rents accruing since the trial until actual possession of the property is surrendered to appellee.
The .judgment of the circuit court is, therefore, affirmed, but the cause will be remanded to the circuit court with directions to ascertain the rentals which have accrued since the trial, such determination to be made on the basis of $55.70 per month, for which judgment will be entered against appellant and the sureties on the supersedeas bond. | [
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Ed. F. MoFaddin, Justice.
We are prevented from deciding this appeal on its merits, because of the absence of compliance with our statutes on abatement and revival (§ 1252, et seq., Pope’s Digest).
In January, 1939, S. N. Higgerson was the owner of certain property in Stuttgart. Being well advanced in years, he made a contract with his son, C. ft. Higgerson (appellee), to the effect that, if O. E. Higgerson would support S. N. Higgerson during his life, then on the death of the latter, the said son would own the property. C. E. Higgerson entered into possession of the property, and for a short time all parties seemed happy and satisfied. Then, in 1940, S. N. Higgerson- left the property, and entered the Illinois Independent Order of Odd Fellows ’ Old Folks ’ Home in Coles county, Illinois, and was an inmate of that institution at the time of the trial of this cause in the court below on April 17, 1946.
On April 18, 1944, S. N. Higgerson filed the present suit in the Arkansas Chancery Court, alleging that C. E. Higgerson had failed and refused to perform the said contract of support, and prayed that S. N. Higgerson recover the property. The Independent Order of Odd Fellows (hereinafter called “Odd Fellows”) intervened in the suit, claiming that S. N. Higgerson, some time after 1940, had executed to the Odd Fellows a warranty deed to the property involved in this suit, and praying that any recovery by S. N. Higgerson be declared to innure to the Odd Fellows. Against the complaint, and against the intervention, C. E. Higgerson filed separate answers, denying that he had breached the contract with S. N. Higgerson in any way, and alleging that C. E. Higgerson had all the time been .ready, able and willing to perform said contract,
With, issues thus joined the cause proceeded to trial, with S. N. Higgerson as plaintiff and C. E. Higgerson as defendant, and the Odd Fellows as intervener. Depositions were filed at various times; and there were several oral hearings. On April 17,1946, there was the final hearing on oral evidence, at which time the chancery-court took the case under submission. A decree was rendered on July 5, 1946, finding that C. E. Higgerson had not violated his contract. The decree concludes with this language: “That defendants do have of and recover from intervener all costs herein expended. To all of which findings, judgment and decree of the court the plaintiff excepts and prays and is granted an appeal to the Supreme Court of Arkansas.”
On January 2, 1947, the transcript was filed in this court with this indorsement thereon, “The plaintiff herein, by his attorney, prays an appeal to the Arkansas Supreme Court.” After the briefs were filed in this court on behalf of S. N. Higgerson as appellant and C. E. Higgerson as appellee, it was admitted in this court that S. N. Higgerson had departed this life in May, 1946. His death occurred, thus, prior to the rendition of the decree in the chancery court. Our statutes on abatement and revival of actions may be found in §§ 1252 to 1272, inclusive, Pope’s Digest. Section 1258 says, in part: “Where one of the parties to an action dies . . . before the judgment, if the right of action survives in favor of or against his representatives . . . the action may be revived and proceed in their names. ’ ’
Section 1259 says, in part: “The revivor shall be by an order of the court that the action be revived
Section 1264 says: “Upon the death of the plaintiff in an action, it may be revived in the name of his representatives, to whom his right has passed. Where his right has passed to his personal representative, the revivor shall be in his name; where it has passed to his heirs, or his devisees, who could support the action if brought ¡anew, the reyiyor may be in their pames, ’ ’
Since it is admitted that the suit brought by S. N. Higgerson has not been revived in any manner, it necessarily follows that there is no appellant before this court.
It might be said that the chancery court judgment against the Odd Fellows did not abate by reason of the death of S. N. Higgerson, and authority for that position might be found in 1 C. J. 159, in the following statement: “Where there are two or more parties plaintiff to a suit in equity, the death of one does not abate the suit where the cause of action survives to the others; but the suit abates as to the deceased plaintiff.” But, even so, the Independent Order of Odd Fellows has not appealed to this court. We have copied heretofore, verbatim, the indorsement of appeal.
In short, there is no party appellant before this court, and under this state-of the record, we direct the clerk to strike this case from our docket, and to issue immediate mandate to the chancery court so certifying. | [
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Ed. F. MoFaddin, Justice.
This is a dispute between professional men. A lawyer sued a doctor for an attorney fee, and the doctor has appealed.
Agents of the Internal Revenue Department investigated the income tax returns of appellant, Dr. James Bookman of Helena, Arkansas, and on August 20, 1946, served notices on Dr. Bookman of additional assessments of taxes, penalties and interest for the years, and in the amounts as follows:
1942 .........................................................................................$12,050.00'
1943 .............:............................................................................ 17,175.00
1944 ............................................ 21,700.00'
1945 .......................................................................................... 15,375.00
Total ..........................................................................$66,300.00
A tax lien notice (under § 3670, et seq., of tlie Internal Revenue Code of the United States, 26 U. S. C. A., § 3670, et seq.) was placed of record in Phillips county. Dr. Bockman was given 10 days in which to pay the said amount of money, which he had in several safe deposit boxes. The investigating agents had located and counted more than this amount of money.
First, we give Dr. Bookman’s version: He testified that he had already employed an attorney of Helena and an income tax expert of Memphis, Tennessee; but he felt that he needed the services of another attorney, so he went to a friend in Helena — Mr. Bealer — to get a letter of introduction to Mr. Sam Rorex, the appellee, an attorney in Little Rock. Bockman testified that he said to Bealer:
“You know the trouble, and I would like to contact Mr. Rorex.”
The meeting between Bockman and Rorex — arranged pursuant to Bookman’s request — was at about 9:30 a. m., August 27, 1946, at the Albert Pike Hotel in Little Rock. Bockman says that as soon as he advised Rorex the nature of the business, Rorex went to the Internal Revenue office in Little Rock, and ascertained from the officers the exact nature of the case, and returned to Bockman, who was waiting in the lobby of the hotel. We quote from Bookman’s own testimony:
“. . . he came back very excited .’ . .-, and we got into his room and he said, ‘Well, I am sorry, old boy, you have got two warrants for your arrest out against you and you had better get that money right up there, you had better do it immediately. ’
“Q. Did he say he was unable to get it reduced? A. He said for me to put up the money, he said, ‘This is going to cost you five thousand dollars. You had better get that money. They are only giving us two hours and you had better get that money.’ Q. What did you tell him when he said it was going to cost you five thousand dollars? A.' I did not answer him one word.”
Bockman had what he claimed to be $66,300 in currency in his automobile. He took Rorex to the office of the Internal Revenue Department in Little Rock, and asked Rorex to assist his- secretary and the revenue agents in counting the money. Bockman left while the counting was in progress, but his secretary remained. Finally, it was ascertained that the necessary amount was not present, and later Bockman supplied it; and Bock-man says this was the end of Rorex’ services. He claimed that all he wanted Rorex to do was to obtain a reduction in the amount required to be posted; but Bockman admitted that Rorex advised him that Rorex’ fee would be $5,000, and that Bockman — while he never agreed by words — did immediately avail himself of Rorex’ services without objecting to the stated fee.
Now, we give Rorex’ version of the transaction: He testified that he met Bockman on the morning of August 27th by previous appointment. We quote Rorex’ testimony:
“He told me these agents of the Internal Revenue Office and the collector’s office . . . had searched his lock boxes and found almost eighty-five thousand dollars in currency. ... I said, ‘You are faced with two charges. Did you make a proper income tax return?’; and he said, ‘no.’ Then I said, ‘You have been charged with failing to make a proper return. Both are penitentiary offenses, but-1 am not trying to scare you.’ He said, ‘I want to employ you to represent me’; and I said, ‘On both the criminal and the civil side, too?’; and he said, ‘Yes’; and I said, ‘. • . . I will have to charge you five thousand dollars to represent you’, and he said, ‘That is all right.’
“. . . I said,‘Doctor, you had better sit here while I go over and see what kind of shape you are in. They might have a warrant for you and they might put you in jail.’ I went to the Internal Revenue Department and Mr. Thompson was not in and I talked to Mr. Hurley, the field agent. They had an information on the desk and an information for his arrest; and I made the best speech I could for the man about his arrest; and I got Mr. Emory and Mr. Culpepper and Mr. Gooch (who succeeded me). I got an agreement that if it was satis-' faótory with the Treasury Department, there wouldn’t be any prosecution. I went back and told Doctor Bock-man what the understanding was; that they wanted the money and that he was about to be arrested; that I had been advised that I had to have the money in there by 11 o’clock. It was 20 or 30 minutes to 11 then. I told Doctor Bockman, and he said it was satisfactory. . . . We went out and got in the car and went to the collector’s office. . . . This 'money was in one’s, five’s, ten’s and twenty dollar bills in paper sacks. We spread it out on the tables and Doctor Bockman -and I stood by and watched them count it. . . . ”
Rorex continued:
“. •. . We started before noon, and along about 4 o’clock Doctor Bockman said he had to come back to Helena. . . . and he sent for some lady over in town and 'she came and stood by and helped count the money. . . . When they finished the counting, . . . there was about seventeen thousand dollars short.
“Q. What effect did that have on the settlement you had made? A. They blew up, and I tried to get Doctor Bockman on the telephone. He wouldn’t answer the phóne, and I had to call Bealer; and he. called, and talked to his secretary, and told her they had better get that money over there. Q. Then what happened? A. I asked them to give me until Thursday to get the money over there, and Doctor Bookman’s secretary came over. Q. Did she ever come to see you? A. No, sir, she never did. Q. Did you obtain a release of the lien? A. Yes, sir, this lien was to be released when this money was paid in. It was released: not only sent to the court house here for the release, but it was sent to Little Rock, . . . Q. What remained to be done after the money was paid in'? A. Nothing in the world except for the Internal Revenue agents to tell Doctor Bockman how much they were going to pay him back.”
We do not lengthen the opinion by further detailing of the testimony. The evidence is voluminous. Many witnesses testified. When Bockman paid the $66,30.0, and received a release of lien and a feeling of security from criminal prosecution, he refused to pay Rorex the $5,000 fee or to cooperate or correspond with him in any way. Thereupon Rorex filed this action against Bock-man for the $5,000 fee. The case was tried to a jury, and resulted in a verdict and judgment for Rorex for $5,000, and this appeal is an effort to reverse that judgment. Appellant urges six contentions for reversal. These, summarized, relate to (a) instructions as to the amount of recovery, and (b) the court permitting the plaintiff’s attorneys to cross-examine Dr. Bockman as to having been previously convicted of misdemeanors. We discuss these points.
I. Instructions as to the Amount' of the Recovery. The trial court told the jury in plaintiff’s instruction No. 1:
“If you find from a preponderance of the evidence that the defendant entered into a contract of employment with the plaintiff and agreed to pay a fee of $5,000, and that after such employment had been partially performed, then the defendant failed to permit the plaintiff to fulfill the balance of the contract to be performed, and that the plaintiff was willing and able and attempted to fulfill such employment but was precluded from doing so by the defendant, then in that event your verdict will be for the plaintiff for the amount of the contract, or $5,000.
“You are instructed that if you find from a preponderance of evidence that Dr. Bockman employed Mr. Rorex to render legal service and agreed to pay a fee of $5,000, and that Mr. Rorex was at all times ready, willing and able to render the agreed services, then it would be no defense that Dr. Bockman may have employed others to render the same services, and your verdict will be for the plaintiff for $5,000.”
To this instruction the defendant offered the following objection:
“The defendant objects to plaintiff’s instruction No. 1 because under the instruction the only verdict the jury could return, if they should return a verdict for the plaintiff, would be for $5,000, and no other amount, and if they should find that the plaintiff performed some service for the defendant, hut not all of the services required in the alleged contract, then the plaintiff would not be entitled to a verdict for the full amount of $5,000.”
In the excellent briefs filed by both sides, there is ably argued the question of whether the amount of the fee should have been left to the jury to be fixed. Without reviewing all of the cases cited, we think the entire issue here is settled by our holding in Brodie v. Watkins, 33 Ark. 545, 34 Am. Rep. 49, which is our leading case on attorney’s fee in a situation where the client refuses to permit the attorney to perform. In that case Mr. Justice Baton stated — in language which had become classic — the law concerning attorney fees. There, Watkins had retained Turner as his attorney, to prosecute an action under a contract whereby the attorney was to have 10% of the recovery. Watkins later employed other attorneys, and summarily discharged Turner, who, at all times, was ready, able and willing to complete the contract. The other attorneys recovered $10,000 for Watkins, and Turner asked $1,000 as the 10% fee to him under the contract which he claimed Watkins had breached.
In holding that Turner was entitled to a fee, Mr. Justice Bakin said:
“. . . in cases of special contracts for legal services, which are wrongfully prevented by the client, and where the attorney holds himself continually ready to serve, the latter may claim the whole compensation, subject to such abatement as would, in the natural course of things have been incurred if the services had been continued. The value of the legal services proper, will not be apportioned; bnt whilst, upon the one hand, the attorney will not be put upon the quantum meruit, he ought not to recover more than he would have made if he had gone on with the case. His time, however, does not belong wholly to his client, and no deduction can, in ordinary cases, be justly made on the presumption that it was wholly occupied in other professional business. ’ ’ •
• It was shown that Turner, in order to prosecute the litigation, would have been obliged to attend court at Pine Bluff, and that his actual expenses of about $200 had been saved by reason of the breach of the contract: so, he was allowed to recover, $800, which was the full amount net that he would have recovered if Watkins had not breached the contract.
In the case at bar there is no showing that Rorex would have been put to any definite amount of expense in completing the contract with Bookman. The record shows that Rorex lives in Little Rock, and that the Internal Revenue office is in Little Rock, so there would have been no traveling expenses. Appellant offered no evidence as to any amount of expenses that Rorex would have been obliged to expend in fulfilling all of his obligations under the contract. Furthermore, in objecting to instruction No. 1, the appellant did not raise the issue of the matter of expenses. We have previously copied in full his objection. So the “expense matter” necessarily passes out of consideration.
There is left, then, the appellant’s objection that Rorex “did not perform all the services”; so should not have full recovei’y. But Rorex performed all that Bock-man would allow him to perform, and stood ready to perform all other services; and such services accomplished by Rorex were sufficient to keep Bookman from being arrested. We think Mr. Justice Eakin covered this point in Brodie v. Watkins, supra, when he said:
‘ ‘ Legal services . . . cannot be apportioned either by time, or the amount of physical labor expended in drawing papers, attending courts, and oral arguments. It is the attorney’s judgment, his learning, his responsibility and advice, which is relied upon, and which gives the peculiar value to legal services. Perhaps the most difficult and valuable services of the attorney may be rendered in considering his client’s case, and giving him confidential information, before any visible act is done. These are general considerations, to show that the professional services of an attorney cannot justly be apportioned by the plain and obvious mode indicated above for cases of other classes.”
To the same effect, see, also, Files v. Fuller, 44 Ark. 273; and Weil v. Fineran, 78 Ark. 87, 93 S. W. 568.
Therefore, as against the objection offered to it, we conclude that plaintiff’s instruction No. 1 was correct; and this conclusion disposes of appellant’s objéctions as to all the other instructions relating to the amount of the recovery.
II. Bookman’s Previous Convictions for Misdemeanors. Bockman was a witness in his own behalf; and on cross-examination he was asked about having been previously convicted of some offenses. The plaintiff sought to introduce in evidence duly certified copies of the judgments of the Court of Special Sessions in New York City showing: (1) that Dr. Bockman was convicted on September 3, 1930, of the offense of “unlawful practice of medicine,” and was sentenced to three months in the workhouse.,; (2) that Dr. Bockman was convicted on July 1, 1931, of the offense of “unlawful practice of medicine,” and was sentenced to four months in the workhouse; and (3) that Dr. Bockman was convicted on September 8,1936, (on a plea of “guilty”) of the offense of “making false statements to obtain benefits under Workmen’s Compensation Law,” and was sentenced to six months in the workhouse.
The plaintiff insisted below and insists here that these records were admissible in evidence as going to impeach the credibility of the witness; and in support of such position, cites § 5155, Pope’s Digest. The defendant insisted below — and insists here — that these records were not admissible since they related only to misdemeanors, as distinguished from felonies; and in support of such position, cites § 5197, Pope’s Digest. A very interesting question is thus posed, as to the effect of § 5155, Pope’s Digest, (Act 222 of 1913) on § 5197 (Act 52 of 1905 and § 654 of the Civil Code). We are cited to no Arkansas cases which have discussed this question; and it is unnecessary for us to discuss it here, because the record reflects that the trial court, after first admitting the certified copies, later ruled them inadmissible. This appears in the record:
“The Court: Are they felony convictions? Mr. Walker: No, sir, they are convictions on a misdemeanor on appeal. The Court: Any records of convictions of misdemeanor will not be allowed to be introduced. Mr. Walker: I offer these in evidence. The Court: The Court holds they are not admissible. Mr. Walker: Note our exceptions.”
The record thus affirmatively shows that the trial court excluded from the consideration of the jury all of the records of conviction; so, at all events, appellant was not prejudiced.
The trial court, however, did permit the plaintiff’s attorneys to cross-examine Dr. Bookman as to whether he had ever been convicted of misdemeanors, and he admitted that he had been convicted twice. There was no error in this cross-examination, since the trial court— without objection on the part of the defendant — correctly limited the effect of the cross-examination in these words:
“Some evidence has been introduced as to the conviction of the defendant on various charges. You are instructed that this testimony goes only to the credibility of the defendant as a witness in his own behalf and is not to be considered by you in any manner as to the merits of the case,”
In Benson v. State, 103 Ark. 87, 145 S. W. 883, Mr. Justice Frauenthal, speaking for this court, said:
“The defendant was introduced as a witness in his own behalf, and upon his cross-examination he was asked if he had pleaded guilty to the crime of petit larceny and had been adjudged guilty of that offense. He testified that he had pleaded guilty and been adjudged guilty of that crime. . . . When a defendant in a criminal case becomes a witness in his own behalf, he is subject to impeachment like any other witness. The testimony which he gives may be discredited in the same manner that this may be done in the case of any other witness. Upon his cross-examination, therefore, he may be questioned relative to specific acts for the purpose of discrediting his testimony, and he may be asked as to whether or not he has suffered a former conviction for some crime affecting his credibility. When a defendant is a witness in his own behalf, the purpose of such testimony is only to impair his credibility and not to exclude him as a witness, and such conviction may be shown, therefore, by his own cross-examination and need not be shown by the record of the judgment.”
In Hunt v. State, 114 Ark. 239, 169 S. W. 773, L. R. A. 1915B, 131, Ann. Cas. 19161), 533, Chief Justice McCulloch said:
“On the contrary, it has been held that the defendant in a criminal prosecution, when he takes the witness stand, places himself in the attitude of any other witness, and that he may be interrogated concerning specific acts of his own for the purpose of testing his credibility. Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41. He cannot be asked about a mere accusation or indictment (Benton v. State, 78 Ark. 284, 94 S. W. 688, but for the purpose of testing his credibility, he may be asked about a judgment of conviction. Vance v. State, 70 Ark. 272, 68 S. W. 37. Such matters are collateral to the issue and affect only the credibility of the accused as a witness, but are nevertheless competent for that purpose.”
In Kennedy v. Quinn, 166 Ark. 509, 266 S. W. 462, we recognized the above-quoted rule as applicable also to the cross-examination of witnesses in civil cases. Therefore, the trial court was correct in allowing Dr. Bookman to be cross-examined as to his admitted convictions.
Conclusion: Finding no error, the judgment of the circuit court is in all things affirmed.
The following text in Weil v. Fineran (p. 92 of the Arkansas Report) is expressly approved as correct: “No error in the court’s rulings is presented by assignments of error 1, 2, 3, 4 and 5 of the motion for new trial. We find no error in the giving of the instructions numbered 2, 3, 4 and 5. The instructions properly presented the law applicable to the issue and the facts in evidence. The court erred, however, in giving instruction No. 6 as to measure of damages. Brodie v. Watkins, 33 Ark. 545, 34 Am. Rep. 49. See, also, Van Winkle v. Satterfield, 58 Ark. 617, 25 S. W. 1113, 28 L. R. A. 853, on the issue of the breach of contract and the measure of damages therefor. See Brodie v. Watkins, supra, and Davis v. Webber, 66 Ark. 190, and Thweatt v. Freeman, 63 Ark. 575, 84 S. W. 720, on the question of the duty of good faith from the attorney to his client.” | [
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RHONDA K. WOOD, Associate Justice
|,Appellant Bobby Denney filed an interlocutory appeal challenging the circuit court’s order denying his motion for summary judgment and sustaining a lien on his property. Because this is not .a proper interlocutory appeal and the judgment is not a final order, we must dismiss the appeal.
I. Facts and Procedural Background
Bobby Denney entered into a contract with Justin Denney and his company, Den-ney Construction, for the construction of a new home. In this contract, Justin was identified as the “Contractor.” Justin began purchasing the materials to build the house and arranging the services of other tradesmen that would be necessary for its construction. At some point after beginning the project, the parties had a disagreement about the trusses that were to be used in framing the building, and Bobby insisted that Justin cease all work and leave the construction site.
[ 2Justin thereafter served Bobby with the statutory notice outlined in Arkansas Code Annotated § 18-44-115(a)(7) (Supp. 2013), describing the lien on property that arises in favor of contractors, subcontractors, suppliers, and other materialmen if they are not compensated for their work. Justin next filed a document entitled “Lar borer’s, Mechanic’s or Materialman’s Lien” in which . .he claimed entitlement to $25,821.73 for his labor and services, as well as other labor and materials that he had arranged and for which he had already paid. Justin then filed the present suit that serves as the genesis of this appeal, in which he prayed for judgment in the same amount and requested that his lien be given priority over Peoples Bank, which had provided financing for the construction project.
Bobby moved to dismiss the suit for failure to state a claim, arguing that Justin had failed to serve him with the notice concerning potential liens that is required to be provided by contractors before the commencement of work, and, therefore, Justin was entitled to neither a lien nor any other type of recovery. See ArkCode Ann. § IS^é-llSía)® — (4). Justin resisted the motion by asserting that he was merely acting as a subcontractor, that he was engaged in a direct sale under Arkansas Code Annotated § IS — 44—115(a)(8), and that the statute’s notice requirements did not apply. At the hearing on the motion to dismiss, the circuit court accepted testimony from three witnesses, including Bobby Denney and Justin Denney. Accordingly, the motion to dismiss was treated as a motion for summary judgment under Arkansas Rule of Civil Procedure 12(b).
After listening to the testimony, the circuit court denied the motion for summary judgment, finding that there were material issues of fact yet to be determined. The order also recites that “the Court sustains the lien attached to [Bobby Denney’s] property.” |sBobby then filed this interlocutory appeal and requested transfer of the case to this court, citing the need for clarification or development of the law regarding the direct-sales provision codified at Arkansas Code Annotated § 18-44-115(a)(8). The request for transfer was granted, and both parties now urge this court to interpret, the lien statutes and render a ruling on the merits of the arguments presented.
II. Jurisdiction
Even though none of the parties address it, the court has a duty to be certain it has jurisdiction, even if the parties do not raise the issue. - Smith v. Smith, 337 Ark. 583, 990 S.W.2d 550 (1999). In this case, Bobby filed his interlocutory appeal alleging jurisdiction pursuant to Arkansas Rule of Appellate Procedure — Civil 2(a)(5), which provides that an appeal may be taken from an order which vacates or sustains an attachment or garnishment. The court’s' order temporarily sustained a mechanics’ and materialmen’s lien, not an attachment within the meaning of this rule.
An attachment is “[a] writ ordering legal seizure of property (especially] to satisfy a creditor’s claim) or of a person.” Black’s Law Dictionary 152 (10th ed. 2014). Our statutes outline the circumstances and procedures by which a party can obtain a writ of attachment. See generally ArkCode Ann. §§ 16-110-101 et seq. (Repl. 2006 & Supp. 2013). None of the grounds for issuing the writ áre present in this case, and Justin did not. seek out a writ of attachment pursuant to those, statutes; rather, he attempted to obtain a lien through the mechanics’ and materialmen’s lien statutes. The circuit court preliminarily sustained the mechanics’ and material-men’s lien in this case, and -its use of the word “attached” in the order was serving as a postpositive adjective modifying the noun |4“lien.” See Bryan A. Gamer, Garner’s Modem American Usage 648 (3d ed., Oxford University Press 2009). As used in the court’s order, the word “attached” is completely unrelated to the noun “attachment,” which is described in our Rules of Appellate Procedure and Arkansas Code Annotated §§ 16-110-101 et seq. Accordingly, there is no attachment subject to a proper interlocutory appeal at issue,in this case within the meaning of Rule 2(a)(5).
We have explained that Rule 2 of the Arkansas Rules of Appellate Procedure— Civil requires that a judgment or decree be final in order for it to be appealable, .with limited exceptions, and the purpose of ■this rule is to avoid piecemeal litigation. Advanced Envtl. Recycling Techs., Inc. v. Advanced Control Solutions, Inc., 372 Ark. 286, 275 S.W.3d 162 (2008). As explained above, this case does not fit into one of the limited exceptions that would make this a proper interlocutory appeal under our rules. The parties also do not allege that the order appealed from is a final order, as we have ,clearly held that .the denial of summary judgment is not a final order from which an appeal may be taken. Med. & Dental Credit Bureau, Inc. v. Lake Hamilton Bible Camp & Conference Grounds, 291 Ark. 353, 724 S.W.2d 477 (1987). Because the present appeal does not involve a final order and it is not one of the other types of permissive interlocutory appeals outlined in Rule 2, we conclude that it is an unauthorized interlocutory appeal.. When an appellant pursues an unauthorized interlocutory appeal, the. appeal will be'dismissed.’ Haile v. Ark. Power & Light Co., 322 Ark. 29, 907 S.W.2d 122(1995).
Appeal dismissed.. | [
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LARRY D. VAUGHT, Judge
|! Appellant, Danny Shane Akers, appeals his conviction by a Poinsett County jury of first-degree sexual assault and fourth-degree sexual assault. On .appeal, he challenges the sufficiency of the evidence and argues that his conviction for first-degree sexual assault violated his right to privacy-under the Constitution of the United States and the Arkansas ■ Constitution because it was based upon his status as a teacher. He also argues that the trial court committed reversible error when it denied two of his proffered jury instructions. We affirm.
At trial, the evidence revealed that Ak-ers, a ninth- and tenth-grade English teacher at Trumann High School, had an ongoing sexual relationship with a minor, A.C., beginning the summer after her tenth-grade year, when she was fifteen years old. A.C. had been Akers’s student the two previous school years, and Akers continued to serve as the teacher advisor for a student organization in which she was involved. Akers and A.C. would meet early in |2the morning at the school and between classes to talk, kiss, and have sex in his classroom. He often wrote notes to excuse her tardiness when their interactions made her late for class. In November 2011, A.C. discovered that she was pregnant with Akers’s child. Akers and A,C. continued their relationship until May, when Akers texted A.C. that he would not leave his wife.- A.C. gave birth to Akers’s son on July 14, 2012.
Akers was charged with first-degree sexual assault under Arkansas Code Annotated section 5-14-124(a)(3) (Supp. 2011), which states that a person commits the crime if he “engages in sexual intercourse ... with a minor who is not the actor’s spouse and the actor is [a]n employee of the victim’s school or school district[.]” He was also charged with fourth-degree sexual assault under Arkansas Code Annotated section 5-14-127, which covers sexual intercourse and sexual contact between an actor twenty years old or older and a minor under the age of sixteen. -
At the close of the State’s case, Akers moved for directed verdict, arguing that there was insufficient evidence that he had utilized a position of trust and authority to influence A.C. to have sex with him. He further argued- that it would violate his state and federal constitutional rights to privacy to find him guilty based solely on his status as a teacher. The court denied the motion.
At the close of all evidence, Akers renewed his motion, and it was again denied. Akers requested two jury instructions, which the court rejected. First, Akers proffered a jury instruction on first-degree sexual assault that would have included, as added elements of the'offense, “that Danny Akers was in a position of trust or authority over [A.C.]” and that he “used the position to engage in sexual intercourse” with her. Second, after he was found laguilty, Akers proffered an alternative sentencing instruction that would have allowed the jury to sentence him to house arrest and/ or probation in lieu of prison. The jury sentenced Akers to nineteen years in prison and a fíne of $15,000 for first-degree sexual assault and six years in prison and a fine of $10,000 for fourth-degree sexual assault. Akers, filed a timely notice of appeal.
Akers’s first point on appeal is that the trial court erred in denying his motion for directed verdict for two reasons: (1) the evidence was insufficient, and (2) a conviction based solely upon his status as a teacher is unconstitutional. In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Smoak v. State, 2011 Ark. 529, at 2, 385 S.W.3d 257, 259. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id., 385 S.W.3d at 259. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Ids, 385 S.W.3d at 259.
Akers argues that there was insufficient evidence that , he held a position of authority or trust over A.C. and that he used that position to influence her to have sex with him. The court found that there was evidence that he held and utilized such a position because he had been her teacher, continued to be her advisor in a school organization, and utilized his position to facilitate their sexual encounters. However, the trial court found that the statute did not require , proof that Akers held and utilized such a position because he was a teacher at A.C.’s school. The version of Arkansas Code Annotated section 5-14-124 under which Akers was charged states
14(a) A person commits sexual assault in the first degree if the person engages in sexual intercourse or deviate sexual activity -with a minor who is not the actor’s spouse and the actor is:
(1) Employed with the Department of Correction, the Department of Community Correction, the Department of Human Services, or any city or county jail or a juvenile detention facility, and the victim is in the custody of the Department of Correction, the Department of Community Correction, the Department of Human Services, any city or county jail or juvenile detention facility, or their contractors or agents;
(2) A mandated reporter under . § 12 — 18—402(b) and is in a position of trust or authority over the victim and uses the position of trust or authority'to engage in sexual intercourse or deviate sexual activity; or
. (3) An employee in the victim’s school or school district, a temporary caretaker, or a person in a position of trust or authority over the victim.
Under section (a)(3) of the statute, Ak-ers could be found guilty based upon his employment in A.C.’s school, without additional evidence that he utilized a position of trust and authority to engage in- sex with A.C. The trial court was correct in rejecting Akers’s argument that the State had failed to prove that he was in such a position and utilized it to influence A.C. into having sex with him. . Section (a)(3) is written in the disjunctive, so proof of any of the items listed in the section is sufficient. State v. V.H., 2013 Ark. 344, at 7, 429 S.W.3d 243, 247.
Akers next argues that, if proof that he utilized a position of’ trust and authority over-A.C. is not required, the statute is unconstitutional because it criminalizes otherwise legal activity based solely on his status as a teacher and violates his right to privacy. Akers argues |Kthat he would not have been charged with first-degree sexual assault but for his status as a teacher because the other applicable statute criminalizes a sexual relationship between an adult twenty years old or older and a minor under sixteen. Therefore, he argues, a thirty-eight-year-old may legally have sex with a sixteen-year-old, unless he falls within the special categories, such as school employee, that give rise to first-degree sexual assault,
Statutes are presumed constitutional, and the burden of proving otherwise is on the challenger of the statute. Paschal v. State, 2012 Ark. 127, at 8, 388 S.W.3d 429, 434 (citing Jefferson v. State, 372 Ark. 307, 276 S.W.3d 214 (2008)). If it is possible to construe a statute as constitutional, we must do so. Id, Because statutes are presumed to be framed in accordance with the Constitution, they should not be held invalid unless the constitutional conflict is clear and unmistakable. Id.
The Arkansas Supreme Court addressed a similar challenge in Smith v. State, 354 Ark. 226, 118 S.W.3d 542 (2003), in which Smith was convicted of having sex with a former student who' was, at the time, enrolled in a different school within the same district where Smith "taught. Smith argued that the statute violated the Equal Protection Clause because it created an impermissible classification between persons who are employed by school districts and persons who are not employed by school districts. The Arkansas Supreme Court explained that the Equal Protection' Clause permits non-suspect classifications that have a rational basis and are reasonably related to a legitimate government purpose. Smith, 354 Ark. at 235-36, 118 S.W.3d at 547 (citing Seagrave v. Price, 349 Ark. 433, 79 S.W.3d 339 (2002)). Equal protection does not require that persons be dealt with identically; it only requires that classification rest on real and not feigned differences, that the distinctions have |fisome relevancé'to the purpose for whichthe' classification is made, and that their treatment be not so disparate as to be arbitrary. Smith, 354 Ark. at 235 — 36, 118 S.W.3d at 547 (citing McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999)). When addressing an equal-protection challenge to a statute, it is not our role to discover the actual basis for the legislation. Smith, 354 Ark. at 236, 118 S.W.3d at 547 (citing Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002)). We merely consider whether there is any rational basis which demonstrates the possibility of a deliberate nexus with state objectives so that legislation is not the product of arbitrary and capricious government purposes. Id. If we determine that any rational basis exists, the statute will withstand constitutional challenge. Id. ■■ In Smith, our supreme court found .that the. statute was aimed at protecting minors from sexual encounters with adults in positions of power or authority over the minors, and including employees of the victim’s school and school district was rationally related to that goal because
[s]chool district employees are authority figures to minor children. Children are instructed to obey and to respect employees of their school district and, children are instructed that they may suffer consequences if they are insubordinate to school district employees. The classification of school district employees is relevant because it is the school district employees who have daily access to minor children. The State has an interest in the general welfare of children, and it certainly has an interest in making laws which punish school district employees who abuse their positions of trust and authority to facilitate inappropriate relationships with children. Smith has failed to proye that,§ 5-14-120 violates his right to equal protection.
Smith, 354. Ark. at 238,118 S.W.3d at 549.
The court cited facts very similar to those presented here: Smith was the victim’s former teacher, the sexual relationship began after Smith was no longer her teacher, during the relationship Smith was also employed by the district as a. school-bus driver, and Smith |7and the victim often met in his classroom to have sex. The State argued, and. ¡the Arkansas Supreme Court agreed, that
[ajppellant- developed a relationship with the victim as a direct result of his being her teacher and maintained that relationship as' a direct result of his being employed in the same school district. The legislature could have rationally concluded that persons such as appellant should not use their positions as school and school-district employees to find and cultivate their underage sexual partners.
Smith, 354 Ark. at 237, 118 S.W.3d at 548.
Unlike in Smith, Akers specifically argues that the statute violates his constitutional right to privacy. He relies upon Paschal v. State, 2012 Ark. 127, 388 S.W.3d 429, in which the Arkansas Supreme Court found that a similar statute, when applied to sexual contact between a teacher and a consenting adult-age student (the victim in Paschal was over the age of eighteen), infringed on the defendant’s right to privacy. The court analyzed the Paschal ease under strict scrutiny because it found- that both the United States and Arkansas Constitutions protect the fundamental right to privacy, see Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), as well as “all private, consensual, noncommercial acts of sexual intimacy between adults,” see Jegley v. Picado, 349 Ark. 600, 632, 80 S.W.3d 332, 350 (2002); Paschal, 2012 Ark. 127, at 9, 388 S.W.3d at 434-35. Akers argues that the application of the first-degree sexual assault statute to his sexual contact with a sixteen-year-old should likewise be evaluated under strict scrutiny and be found unconstitutional.
Akers’s reliance on Paschal is misplaced. The court in Paschal explicitly relied upon the fact that the victim was a “consenting adult” over the age of eighteen, and our constitutional protections for such activity have only been extended to “private, consensual, noncommercial acts of sexual intimacy between adults.” Picado, 349 Ark. at 632, 80 S.W.3d at 350. Here, Akers and A.C. began having sex when she was fifteen years old. Moreover, the reasoning in Smith holds true; the State has an interest in protecting students from sexual advances from their teachers and school employees who have unique access to minors and are inherently viewed as authority figures. Akers has provided no legal authority or persuasive argument as to why we should extend constitutional privacy protection to an adult’s sexual relationship with a minor, and we decline to do so.
Akers’s second point on appeal challenges the circuit court’s refusal of two jury instructions that he requested. The first instruction would have required the jury to find that, in addition to his position as an employee of A.C.’s school district, he held a position of trust and authority over A.C. and utilized that position of trust and authority to influence, her to have sex with him in order to find him guilty of first-degree sexual assault. A party is entitled to a jury instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving the instruction. Vidos v. State, 367 Ark. 296, 300, 239 S.W.3d 467, 476 (2006). We will not reverse a trial court’s decision to give or reject an instruction unless the court abused its discretion. Id., 239 S.W.3d at 476. A non-AMI Criminal instruction should be given only when the trial judge finds that the AMI Criminal instruction does not correctly state the law or that AMI Criminal does not contain a needed instruction on the subject. Ventress v. State, 303 Ark. 194, 197, 794 S.W.2d 619, 620 (1990). As discussed above, the statute did not require proof of these additional elements, and there is no constitutional requirement that they be added. Therefore, the circuit court properly rejected Akers’s proffered instruction as to the elements of first-degree sexual assault.
|flThe second instruction requested by Akers and refused by the court was an alternative sentencing instruction, which would have allowed him to be sentenced to probation and/ or house arrest in lieu of prison. The decision to allow or reject alternative sentencing instructions is reviewed for abuse of discretion. Benjamin v. State, 102 Ark. App. 309, 314-15, 285 S.W.3d 264, 268-69 (2008). Additionally, absent a showing of prejudice, we will not reverse. Miller v. State, 97 Ark. App. 285, 286-88, 248 S.W.3d 487, 488-89 (2007). Akers cannot demonstrate! prejudice be-causé the jury chose to sentence Akers to more than the minimum sentencing options it had available. Therefore, it strains credulity to argue that the jury would have sentenced him to an even.less restrictive alternative, such as house arrest or probation, had it been given the option. Moreover, there is no indication that the court, in rejecting the alternative..sentencing instruction, acted improvidently, thoughtlessly, or without due consideration, which would amount to abuse of discretion. Benjamin, 102 Ark. App. at 315, 285 S.W.3d at 268-69.
Affirmed.
Harrison and Gruber, JJ., agree. | [
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PER CURIAM.
| |Appellant Donald Thompson, by and through his attorney, Cindy M. Baker, has filed a motion for belated appeal.
Thompson’s notice of appeal in this case was due on September 4, 2008. In his original motion for belated appeal, filed on March 10, 2009, Thompson argued that his notice of appeal had not been filed until September 18, 2008, because he had been placed on administrative lockdown at the jail and had not been permitted to contact his attorney to tell her that he wanted to appeal. At that time, we determined that it was not plain from the motion, affidavits, or record whether there was attorney error, and we remanded the matter to the circuit court for entry of findings of fact regarding Thompson’s alleged inability to communicate with his attorney during a period in which he was on 12administrative lockdown at the jail. See Thompson v. State, 2009 Ark. 191, 305 S.W.3d 425 (per curiam).
Following this court’s remand, the circuit court conducted an evidentiary hearing at which the court heard the testimony of appellant Thompson; attorney Cindy Baker; Thompson’s mother, Sharon Ben-da; Captain Archie Rousey of Carroll County Sheriffs Office; Sergeants Patricia Wood and Juan Cribbs and retired Sergeant Walter Noftsger of the Sheriffs Office; and Corporal Christine Clark of the Sheriffs Office. After the hearing, the circuit court entered an order in which it found that Thompson had been on lock-down from August 19 to August 25, 2009, and that during that time, Thompson had not been prohibited from contacting his attorney. The court also noted that, during the first three weeks of Thompson’s incarceration, he had spoken to and attempted to speak with his attorney, and that his attorney was made aware of his desire to see her and discuss the appeal.
The court pointed to the testimony of the Sheriffs Office personnel. Captain Rousey indicated that even when a prisoner is on lockdown, he is not denied access to his attorney and may speak to his attorney on the phone or communicate by mail. Captain Rousey also testified that the only time attorney Baker spoke to Thompson at the jail was on September 18, 2008. However, the jail staff also noted that Thompson never asked to speak to his ^attorney while he was in lockdown, apparently assuming that he would not be allowed to speak to her.
The court described the testimony of Thompson’s mother, Sharon Benda, who stated that she had spoken to her son twice weekly at the jail, and that she had communicated her son’s desire to appeal to Baker. Benda said that she had the money for the appeal as early as July but that she was not aware that Baker wanted the money before the appeal was filed. The court stated that it believed that Benda had the money to pay Baker for the appeal before Thompson went to jail; that Thompson had initially been uncertain about the appeal but later communicated his desire to appeal; and that Thompson repeatedly asked Benda to have Baker contact him.
Cindy Baker also testified at the hearing. She stated that she had spoken to Thompson after he was incarcerated and that he had advised her that his girlfriend and mother would be trying to get the money for his appeal; however, the court noted that this testimony contradicted Benda’s testimony, described above, that Thompson had the money for the appeal earlier. Although Baker testified that she was communicating with Benda and had no reason to believe that Benda would not communicate Thompson’s wishes, the court found that her testimony contradicted Thompson and Benda’s assertions that Thompson asked to speak with Baker and that Benda had communicated Thompson’s desire to appeal. The court noted Thompson’s testimony that he had been permitted to use the |4phone at the booking desk to call Baker’s office on August 26, 2008, as soon as he was released from lockdown, but Baker offered no explanation for her failure to go to the jail and see her client until September 28, 2008. The court described Baker as an “experienced attorney who concentrates her practice in the area of criminal law” and stated its belief that she was “familiar with the jail policies and ... knew she could see her client at any time.”
Regarding the original motion for belated appeal, the circuit court found that Baker’s statements in that motion — that Thompson had been in lockdown when the appeal was due — were untrue. The court further found that Baker’s statement in the motion to the effect that Thompson had no access to a telephone or mail during that time were also untrue. The court determined that the statements in the motion were “unsupported by the testimony of the defendant, his mother, and law enforcement.”
Moreover, the court credited Thompson’s testimony that Baker’s secretary brought the affidavit in support of the motion to the jail and waited for Thompson to sign it. Many of the statements in the affidavit, however, the court found to be untrue. For example, the court pointed to the averments that Thompson was in lock-down and could not communicate with anyone for a week, and the statement that Thompson was unable to secure funding for his appeal until September 18, 2008. The circuit court stated flatly that these statements were false.
| ¡¡The court concluded its factual findings by stating that Thompson had been placed in lockdown from August 19, 2008, until August 25, 2008, and that he was not prohibited from calling or seeing his attorney during this time. The court found that the testimony given in open court did not support the allegations made in the motion for belated appeal and that the statements made in the affidavit in support of the motion were untrue.
From the circuit court’s findings of fact, we conclude that Thompson did timely communicate his desire to appeal to his attorney via his mother and had the funds available to pay counsel to pursue the appeal. However, his attorney did not contact him until well after the time for filing the notice of appeal had expired. In support of this conclusion, we note the trial court’s crediting of Thompson’s testimony that he called Baker on August 26, as soon as he was released from lockdown. Baker, however, undisputedly did not contact Thompson until September 18, 2008, and she gave no explanation for her failure to visit her client in order to ascertain his wishes regarding his appeal.
When the judgment is entered in a criminal case and the trial attorney is made aware by the convicted defendant that the defendant desires to appeal within the thirty-day period from the date of judgment for filing a notice of appeal, counsel is obligated to file a timely notice of appeal. Spillers v. State, 341 Ark. 749, 19 S.W.3d 35 (2000) (per curiam). The obligation to file the notice of appeal and to preserve the appeal by lodging at least a partial record in the appellate court is not affected by counsel’s inexperience with appellate work, Rthe convicted defendant’s financial status, or counsel’s belief that the defendant could not prevail on appeal. See Mallett v. State, 330 Ark. 428, 954 S.W.2d 247 (1997) (per curiam); see also James v. State, 329 Ark. 58, 945 S.W.2d 941 (1997) (per curiam).
The obligation to preserve the appeal also exists if retained counsel believes the appellant to be capable, but unwilling, to pay the costs of the appeal. In no event may counsel simply abandon an appeal. It is well settled that under no circumstances may an attorney who has not been relieved by the trial court fail to preserve an appeal when the convicted defendant timely communicates to counsel his desire to appeal. Ragsdale v. State, 341 Ark. 744, 19 S.W.3d 622 (2000) (per curiam); Langston v. State, 341 Ark. 739, 19 S.W.3d 619 (2000) (per curiam).
Given the facts as found by the circuit court, we conclude that Thompson’s motion for belated appeal should be granted, and we direct the clerk of this court to accept the record and docket this appeal. However, we refer his attorney, Cindy Baker, to the Supreme Court Committee on Professional Conduct.
Motion for belated appeal granted. | [
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PER CURIAM.
11 This is an interlocutory appeal from an order of the Phillips County Circuit Court granting in part and denying in part appellant Don Gentry’s motion for summary judgment on statutory immunity grounds. Gentry is the elected County Judge of Phillips County. On January 30, 2003, appellee Christine Robinson filed a complaint against Gentry and Phillips County, alleging that she had been raped by a jailer, Jimmy Ward, while she was an inmate at the Phillips County Jail. Her complaint contended that Ward’s actions violated her rights protected by the Arkansas Civil Rights Act, Ark. Code Ann. § 16-123-106 (Repl.2006). She further maintained that the County owed a duty to protect her while she was incarcerated in a county facility, and that the County “failed to properly screen and hire employees of its jail [and] failed to conduct a proper background check of Jimmy Ward, |2which would have revealed he had engaged in similar acts in the past.” She further alleged that Ward was “negligently hired and retained by Phillips County,” and that Ward’s actions violated the Arkansas Civil Rights Act.
Gentry and the County answered on February 20, 2003, asserting that Robinson’s complaint faded to state a cause of action upon which relief could be granted. The defendants subsequently moved for summary judgment on October 12, 2004, arguing that the pleadings and discovery documents, including deposition transcripts, revealed that there were no material facts in dispute. Gentry contended that Robinson’s complaint should be “dismissed as a matter of law since there is no basis for liability as asserted by the plaintiff in her complaint based upon the undisputed facts in the record.” In support of his summary-judgment motion, Gentry attached transcripts of depositions from Robinson, Sheriff T.L. Green, and jail administrator Oscar Hoskins. Both Green and Hoskins averred that it was the County’s policy to conduct background checks on all potential employees.
In a brief accompanying his summary-judgment motion, Gentry argued that, at all times relevant to the suit, it was the policy of the Phillips County Sheriffs Office to do background checks on new employees, including jail staff. He also asserted that it was the jail’s policy to never allow a male staff member to have contact with a female inmate unless there was a female matron present. Gentry further argued that the County’s liability in a civil-rights action could only be established by showing that Robinson’s rights were violated |sby an action pursuant to official municipal policy or misconduct so pervasive among non-policy-making County employees “as to constitute a custom or usage with the force of law.” Moreover, citing Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), Gentry argued that there could be no official-capacity liability based upon theories of respon-deat superior.
Gentry also noted that Robinson’s claims of constitutional violations stemmed from the County’s alleged negligent hiring of Ward. Pointing out that the County enjoyed statutory immunity from tort actions, see Ark.Code Ann. § 21-9-301 (Repl.2004), Gentry urged that no tort action — such as Robinson’s negligent-hiring claim — could lie against the County because of the actions of its agents or employees. Gentry argued that, to the extent that this “negligent hiring” could be considered a constitutional violation that could be maintained under the Civil Rights Act, then Robinson could not prevail “because Phillips County had a policy of performing background checks on applicants such as Jimmy Ward and, in fact, did a background check prior to his hire.” Therefore, Gentry concluded that Robinson had failed to raise a genuine issue of material fact concerning the existence of a pattern of unconstitutional misconduct or deliberate indifference to or tacit authorization of such conduct by the County.
Robinson replied to Gentry’s motion for summary judgment on November 12, 2004. In her accompanying brief, she pointed to Hoskins’s deposition testimony that he did not Rrecall the actual hiring of Jimmy Ward; further, although he said that the general process involved gathering the criminal records of an applicant to determine if he or she was fit to work in the jail, Hoskins said that he never reviewed NCIC records for any potential employee for the jail. Robinson also pointed to Green’s deposition testimony, wherein he stated that he never participated in criminal background checks for jail employees.
Based on these depositions, Robinson alleged that it was “clear that Phillips County either had no policies in place to protect the plaintiff or it chose to ignore or disregard the existing policies.” Robinson urged that there were disputed issues of fact that precluded granting Gentry’s motion for summary judgment.
After a hearing on November 13, 2008, the circuit court entered an order in which it granted Gentry’s motion for summary judgment in part and dismissed Robinson’s tort claims. However, the court denied the motion relative to Robinson’s claims that Gentry and the County had violated the Arkansas Civil Rights Act. Gentry filed a timely notice of appeal, and he now urges this court to conclude that Robinson’s complaint should have been dismissed in its entirety.
We are unable to reach the merits of Gentry’s arguments, however, because he has failed to comply with Arkansas Supreme Court Rule 4-2(a)(5). Rule 4-2(a)(5) provides, in pertinent part, as follows:
|5The appellant’s abstract or abridgment of the transcript should consist of an impartial condensation, without comment or emphasis, of only such material parts of the testimony of the witnesses and colloquies between the court and counsel and other parties as are necessary to an understanding of all questions presented to the Court for decision. Depositions shall be abstracted in a similar fashion.
The procedure to be followed when an appellant has submitted an insufficient abstract or addendum is set forth in Ark. Sup.Ct. R. 4 — 2(b)(3):
Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4 — 2(a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.
In this case, although Gentry’s motion for summary judgment and Robinson’s response thereto relied heavily on the transcripts of the depositions given by Hoskins and Green, Gentry failed to abstract material parts of those documents. While he did provide one page of Hoskins’s deposition in his addendum, that sole page does not touch on Hoskins’s testimony concerning the County’s policies regarding background checks on ^prospective employees. No portions of Green’s deposition were abstracted or included in the addendum.
Accordingly, pursuant to Ark. Sup.Ct. R. 4-2, we order Gentry to file a substituted brief, abstract, and addendum that abstracts the relevant portions of Hoskins’s and Green’s deposition testimony, along with any other portions of depositions that are determined to be necessary to an understanding of all questions presented to this court for decision. See Meyer v. CDI Contractors, LLC, 2009 Ark. 115, 313 S.W.3d 519 (per curiam) (failure to ab stract depositions that supported a motion for summary judgment necessitated re-briefing). The substituted brief, abstract, and addendum shall be submitted within fifteen days from the date of entry of this order. We encourage appellate counsel, prior to filing the substituted brief, to review our rules and the substituted abstract and addendum to ensure that no additional deficiencies are present. See Dachs v. Hendrix, 2009 Ark. 322, 320 S.W.3d 645 (per curiam); Roberts v. Roberts, 2009 Ark. 306, 319 S.W.3d 234 (per curiam). If Gentry fails to do so within the prescribed time, the judgment appealed from may be affirmed for noncompliance with Rule 4-2. After service of the substituted abstract, brief, and addendum, Robinson shall have an opportunity to revise or supplement her brief in the time prescribed by the court.
Rebriefing ordered. | [
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