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Per Curiam.
Janet Louise McLaughlin died intestate on September 26, 1990, in an automobile accident. Her son, Justin Cardin, was injured in the same accident. She was survived by her husband, Greg McLaughlin; her injured son, Justin Cardin; her parents, Billy and Charlene Williams; and her brother and sisters.
On October 8, 1990, Billy and Charlene Williams filed a petition to be appointed guardians of the person and estate of their injured grandson, Justin Cardin. They were subsequently appointed guardians.
On October 11, 1990, in a separate probate proceeding, Greg McLaughlin was appointed administrator of the Estate of Janet Louise McLaughlin.
On May 28, 1991, Billy and Charlene Williams filed a pleading in the probate proceeding in which Greg McLaughlin had been appointed administrator of the Estate of Janet Louise McLaughlin. They labeled the pleading a “Petition for Right of Intervention to Protect Interest of Justin Cardin.” In it, they sought to be appointed special administrators of the Estate of Janet Louise McLaughlin. Underlying these pleadings is a dispute over whether Greg McLaughlin’s attorneys or Billy and Charlene Williams’ attorneys will represent Justin in his case against the third party tortfeasor. The trial court denied the petition for appointment of a special administrator. Billy and Charlene Williams seek to appeal. We dismiss the appeal.
Ark. Code Ann. § 28-1-116(b) (1987) provides:
(b) Orders Which Are Not Appealable. There shall be no appeal from an order removing a fiduciary for failure to give a new bond or to render an account as required by the court, nor from an order appointing a special administer.
Ark. Code Ann. § 28-48-103(f) (1987) provides:
(f) The order appointing a special administrator shall not be appealable.
The Williamses contend that the cited statutes prohibit the appeal of the appointment of a special administrator but do not prohibit the appeal of an order denying the same. We do not think the legislature intended the statutes to be so interpreted.
Our statutory interpretation is guided, in part, by decisions from other states which have similar statutory language.
In Graham v. Gipson, (In re Gibson’s Estate), 64 Ariz. 181, 167 P.2d 383 (1946), the Arizona Supreme Court, in interpreting a statute almost identical to those cited above, held:
The order [refusing to appoint a special administrator] , is not an appealable order under our statutes. There is no provision in [the Arizona Probate Code] providing for an appeal, either from the appointment or the refusal to appoint a special administrator. In fact, no appeal may be taken from an order appointing a special administrator. We hold that the converse of this statutory rule is also the law, and that there is no appeal from an order refusing to appoint a special administrator. (Emphasis added.)
167 P.2d at 384.
The Montana Supreme Court reached the same conclusion in McCabe v. District Court, 106 Mon. 272, 76 P.2d 634 (1938). In that case, the court, citing a state statute which provided that no appeal must be allowed from the appointment of a special administrator, held that there was no appeal from an order refusing to appoint a special administrator. Id. at 638.
Accordingly, we dismiss the appeal. | [
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David Newbern, Justice.
The appellant, Stanley Preston, was tried by jury and convicted of burglary on July 18,1989. In a bifurcated habitual felon proceeding the jury returned a sentence of 21 years. Preston filed a timely pro se motion pursuant to Ark. R. Crim. P. 36.4 raising approximately 13 allegations of ineffective assistance of counsel. Preston’s trial counsel moved to withdraw, and the motion was granted without a hearing. No new counsel was appointed, and no order denying a new trial was entered, although in the order permitting trial counsel to withdraw the Court stated that he did not find trial counsel to have been ineffective. Preston appealed this order. We remanded, Preston v. State, 303 Ark. 106, 792 S.W.2d 599 (1990), due to the lack of a final order, and we wrote:
[A] new lawyer should be appointed to represent the appellant. If the trial court finds the petition does not assert sufficient facts to raise an effectiveness issue, it may so rule. If the trial court finds the petition does state sufficient facts to raise such an issue, a hearing should be held. The hearing at that stage need not necessarily be a formal one, because if the pleadings, files and records of the case conclusively show that the petitioner is not entitled to relief, the court may so rule. If, however, the pleadings and records do not so show, a formal hearing must be held.
The trial court set a hearing and appointed new counsel on the morning of that hearing. The newly appointed attorney only had time to read the pro se petition and had no opportunity to review the record. He had not been at the trial or spoken with trial counsel prior to the hearing. At the hearing Preston was given an opportunity to read and expand on his ineffectiveness allegations and former counsel was given an opportunity to refute them. At the conclusion of the recitation the Trial Court stated he would review the transcript and files and determine whether the allegations merited a formal hearing. Following this review he decided the allegations did not warrant a hearing and issued an order with specific fact findings on each of the assertions denying the motion for a new trial.
Preston raises one point of appeal. He contends that the Court erred in denying the motion because his new counsel was not afforded a meaningful opportunity to obtain review of his ineffectiveness claims or amend the petition to assert additional claims because of his appointment on the morning of his informal hearing.
In his final order the Trial Court did precisely as we directed on remand, he reviewed the petition and found that it did not assert sufficient facts to raise an effectiveness issue. As we made clear in Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989), there is no requirement that the court grant an evidentiary hearing on an allegation other than one of specific facts from which it can be concluded that the petitioner suffered some actual prejudice. Furthermore, the supporting facts must appear in the petition, and the petitioner cannot rely on the possibility that facts will be elicited from witnesses if a hearing is held. Preston’s petition consisted of conclusory allegations, which were not borne out by the record, or bald assertions about the failure to call witnesses. Preston offered no details that a particular witness or witnesses could have testified to particular facts which would in reasonable probability have affected the outcome of the trial.
There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance and the petitioner has the burden of overcoming that presumption. Strickland v. Washington, 466 U.S. 668 (1984). The strong presumption in favor of counsel’s effectiveness cannot be overcome by the mere claim that a petitioner has some witnesses who might have had some evidence to present. Neither Preston’s petition nor his testimony at the informal hearing presented facts which demonstrated that his trial counsel erred or that any error existed which had a prejudicial effect on the actual outcome of the proceedings. We cannot say the Trial Court was wrong in concluding that the petition did not warrant relief.
It was proper for the Trial Court to have appointed new counsel; however, given the Court’s subsequently reached conclusion that the allegations were unworthy of a formal hearing, there was nothing the new counsel could have done to further Preston’s motion. Thus, Preston’s allegation that his new counsel was given no opportunity to help him is not persuasive.
Affirmed. | [
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Robert H. Dudley, Justice.
The appellant was charged with the rape of a three-year-old girl. The State moved to videotape the deposition of the victim so that her testimony could be heard, but she would not be required to suffer the humiliation of appearing in a public courtroom. See Ark. Code Ann. § 16-44-203 (1987). By this time the child was four years and ten months old. The appellant contended that the victim was incompetent and, on that basis, objected to taping her testimony. The trial court held a preliminary hearing on the issue and, after hearing extensive testimony by the child, ruled that the appellant had not shown her to be incompetent.
The case proceeded to trial. The appellant was found guilty of rape and sentenced, as a habitual offender, to life in prison. We need not detail the facts of the crime since the only argument on appeal involves the competency ruling. We cannot say the trial court abused its discretion in making that ruling and, accordingly, affirm the judgment of conviction.
In Logan v. State, we set out the following standards to be used in the trial and appellate courts to determine competency:
A trial court must begin with the presumption that every person is competent to be a witness. A.R.E. Rule 601. The burden of persuasion is upon the party alleging that the potential witness is incompetent. To meet that burden the challenging party must establish the lack of at least one of the following: (1) the ability to understand the obligation of an oath and to comprehend the obligation imposed by it; or (2) an understanding of the consequences of false swearing; or (3) the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the factfinder a reasonable statement of what was seen, felt or heard. The competency of a witness is a matter lying within the sound discretion of the trial court and, in the absence of clear abuse, we will not reverse on appeal. (Citations omitted)
Logan v. State, 299 Ark. 266, 272, 773 S.W.2d 413, 416 (1989).
Appellant argues that the trial court erred in ruling that he did not establish either (1) lack of ability to understand the oath and its obligation, or (2) lack of understanding of the consequences of false swearing.
While the victim’s answers to questions on these issues were at times inconsistent, more often than not she displayed a clear understanding of the undesirable consequences of telling a falsehood, and conversely, she understood the positive and desirable consequences of telling the truth. She clearly had “a moral awareness of the duty to tell the truth.” Hoggard v. State, 277 Ark. 117, 122, 640 S.W.2d 102, 105 (1982). In sum, we cannot say that the trial court abused its discretion in determining the victim was competent and in allowing her to testify by means of a videotaped deposition. Thus, we affirm on the only point argued on appeal.
In addition, because the sentence imposed is life in prison, the complete record has been examined, and we find no other ruling by the trial court which we consider to be prejudicial error. See Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals.
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Robert L. Brown, Justice.
This case comes to us on the sole question of whether the chancellor actually referred to the Arkansas Family Support Chart in making his decision on child support, as required, and sufficiently rebutted the presumption that the support chart is correct.
The facts in this case are not in issue. Appellant Judy L. Black and appellee Charles R. Black, III, were divorced on June 10,1986. At the time they had four minor children. As part of the property settlement, the appellant received approximately $280,000 in cash and an interest in the appellee’s pension fund. At the time of the decree the appellant was not working. The chancellor, in his decree, ordered the appellee to pay $500 a month for each minor child as child support. He further ordered a $1,000 alimony payment to the appellant for one year only.
On October 3, 1989, the appellant filed a petition to modify the decree due to material changes in circumstances involving the needs of the children and the appellee’s ability to pay. In her petition she referred to the fact that two of her four children had reached their majority, and child support was, as a consequence, no longer being paid on their behalf. Total child support each month for the remaining two minor children was, therefore, $1,000.
At the trial it developed that the appellee was indeed earning more income. Whereas in 1986 his income had been about $186,500, his income tax return in 1989 reflected earnings of about $276,500, and in addition to that he received between $18,000 to $20,000 a year in non-taxable income. Accordingly, his annual income had increased over $100,000. It further developed at the trial that all four children still lived with the appellant, and no child was working. The appellant was employed and earned about $800 a month. Of the $280,000 cash settlement, she had some $12,000 remaining. Since the divorce, she had bought a larger home, new furniture totaling approximately $10,000, jewelry worth about $4,500, and a car for her oldest daughter requiring monthly payments. She testified her monthly expenses were $4,000 to $4,500. The appellee had made gifts to his four children in varying amounts for college or for commencement of careers, which were revocable.
The chancellor, in his letter opinion dated August 1, 1990, referred to the change in the appellee’s income, the status of the four children, the financial condition of the appellant, and the appellee’s gifts to the four children at some length. After doing so, he determined that an increase of $250 per month for the two remaining minor children for a total monthly child support payment of $1,500 was appropriate. On September 6, 1990, the chancellor ordered the increased payment, and incorporated his letter opinion by reference into his order. In both his letter opinion and the order, he made mention of the child support chart. In his letter opinion he said that the court “may consider” the child support chart with a number of other factors to determine change of circumstances. The chancellor then added: “It should be noted at this point that the child support chart is not mandatory and the court may disregard it in making any change or refusing to make any change.” He cited Ross v. Ross, 29 Ark. App. 64, 776 S.W.2d 834 (1989), as authority for these propositions. In his order, he further stated:
For the reasons set forth in the letter dated August 1, 1990, attached thereto and incorporated herein by reference, the support chart is not mandatory and is not followed in the specific amount of increased support awarded by this court.
The controlling law on what is required to determine child support was made clear by Act 948 of 1989, now codified in part as Ark. Code Ann. § 9-12-312(a)(2) (1991):
(a)(2) In determining a reasonable amount of support, initially or upon review to be paid by the non custodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a rebuttable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded. Only upon a written finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the support chart, shall the presumption be rebutted.
Also, by Per Curiam order dated February 5,1990, we emphasized that the child support chart created a rebuttable presumption of the amount that was appropriate, and we listed factors to be considered by the court in arriving at the amount of support:
In adopting this per curiam, the Court creates a rebuttable presumption that the amount of child support calculated pursuant to the most recent revision of the Family Support Chart is the amount of child support to be awarded in any judicial proceeding for dissolution of marriage, separation, or child support.
It shall be sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to the Family Support chart is correct, if the court enters in the case a written finding or specific finding on the record that the amount so calculated, after consideration of all relevant factors, is unjust or inappropriate.
Relevant factors to be considered by the court in determining appropriate amounts of child support shall include:
1. Food;
2. Shelter and utilities;
3. Clothing;
4. Medical expenses;
5. Educational expenses;
6. Dental expenses;
7. Child Care;
8. Accustomed standard of living;
9. Recreation;
10. Insurance;
11. Transportation expenses; and
12. Other income or assets available to support the child from whatever source.
Additional factors may warrant adjustments to the child support obligations and shall include:
1. The procurement and/or maintenance of life insurance, health insurance, dental insurance for the children’s benefit;
2. The provision or payment of necessary medical dental, optical, psychological or counseling expenses of the children (e.g. orthopedic shoes, glasses, braces, etc.);
3. The creation or maintenance of a trust fund for the children;
4. The provision or payment of special education needs or expenses of the child;
5. The provision or payment of day care for a child; and
6. The extraordinary time spent with the noncustodial parent, or shared or joint custody arrangements.
In Re: Guidelines for Child Support Enforcement, 301 Ark. 627, 784 S.W.2d 589 (1990).
In his letter opinion the chancellor stated that the child support chart is not mandatory. That is essentially correct. We have previously held, as has the Arkansas Court of Appeals, that there may be other matters in addition to the child support chart that have a strong bearing in determining the amount of support. See Thurston v. Pinkstaff, 292 Ark. 385, 730 S.W.2d 239 (1987); Ross v. Ross, 29 Ark. App. 64, 776 S.W.2d 834 (1989). The factors listed in our Per Curiam order are examples of such other matters.
The case of Ross v. Ross, though, does not hold that a chancellor may disregard the child support chart completely. Nor is the matter of referencing the chart discretionary with the chancery court in light of Act 948 of 1989 and our February 5, 1990 Per Curiam order. Reference to the chart is mandatory, and the chart itself establishes a rebuttable presumption of the appropriate amount which can only be explained away by written findings stating why the chart amount is unjust or inappropriate.
We are mindful that the chart did not contemplate monthly income as high as that of the appellee. But using the chart as a guide, an amount could have been extrapolated. In this regard we point to a recent case where we held that it was sufficient for a chancery court to use figures on the existing support chart to project monthly support amounts appropriate for a party with monthly income exceeding the chart amounts. See Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990). In Scroggins, after projecting such an amount, the chancery court explained in written detail, after consideration of all relevant factors under our Per Curiam order, why that amount should not be followed. We held that that was the appropriate procedure.
Here, the chancellor’s letter opinion gives a detailed explanation for his decision to modify the child support. He discusses specific changes in circumstances in 1989, the year of the petition to modify, as compared to 1986, the year of the divorce, and concludes that the support must be increased. But other than mentioning in his letter opinion that the child support chart may be considered and disregarded, there is nothing to confirm that he indeed referred to the chart in making his decision, projected a support chart amount premised on the appellee’s monthly income, and presumed that amount to be correct. Nor can we confirm that he weighed the factors set out in our Per Curiam order and because of those factors determined that the amount extrapolated from the support chart would be unjust or inappropriate. Certainly, the chancellor’s written findings are not couched in those terms. His order does say that he declined to follow the chart, but, again, that does not confirm that he ascertained the chart amount and found it to be unjust or inappropriate.
We are, therefore, unable to determine in the case before us whether the chancellor followed the correct procedure. Certainly, there is no family support chart amount set out in his letter opinion or order. Moreover, his letter and order are not informative on whether all relevant factors were considered, though clearly some were.
We have the power to decide chancery cases de novo on the record before us, but in appropriate cases we also have the authority to remand such cases for further action. See Schuh v. Roberson, 302 Ark. 305, 788 S.W.2d 740 (1990); Lynch v. Brunner, 294 Ark. 515, 745 S.W.2d 115 (1988). This case requires a remand. We leave it to the discretion of the chancellor to decide whether a more detailed and explanatory opinion will suffice to meet the requirements of our Per Curiam order and Ark. Code Ann. § 9-12-311 (a) (2), or whether further proof from the parties is necessary on the applicable factors and other relevant matters.
Reversed and remanded.
Corbin, J., dissents. | [
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Donald L. Corbin, Justice.
Appellant, James Wesley Johnson, was tried and convicted by a Pulaski County jury for possession of a controlled substance with intent to deliver. He was sentenced as an habitual offender to serve sixty years imprisonment in the Arkansas Department of Correction. Johnson appeals contending that the evidence adduced at trial was insufficient to support the possession conviction. We affirm.
In considering appellant’s sufficiency of the evidence argument, we consider only the evidence that is favorable to the state and supports the appellant’s conviction. Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991). On December 29, 1989, the police went to the area of Thirteenth and Wolfe Streets in Little Rock to investigate an informant’s tip about possible narcotic activity in the area. During the investigation, the police learned that a brown van parked in the alley behind Wolfe Street was a source of drug activity.
After locating the van, the police shined flashlights into the van’s window, and observed a male and a female trying to hide themselves under a pile of clothes on the van’s rear bench seat. Appellant was lying across the floorboard behind the van’s front seats. The police observed the appellant pull a pistol out of his belt, wave it, and stick it under a seat cushion. After removing the van’s occupants, the police recovered a folded piece of paper from the floorboard behind the front seats. The paper contained 2.562 grams of cocaine.
Two officers testified regarding appellant’s position in relation to the spot where they found the paper. One officer testified that appellant was sitting on the paper. Another officer testified that appellant was lying across the paper. The officers also recovered two guns, “crack” pipes, and a pill bottle of Valium. Upon searching the appellant, the officers found a loaded gun clip in appellant’s back pocket. The search did not reveal any drugs on the appellant’s person.
At the close of the state’s evidence appellant moved for a directed verdict of acquittal, claiming that the state’s circumstantial evidence was not sufficient for the jury to conclude that he had committed the crime of possession. The motion was denied.
In determining whether there is sufficient evidence to support a jury verdict, we will affirm if there is substantial evidence to support the conviction. Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988). Substantial evidence, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty, compel a conclusion one way or the other. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). It must force or induce the mind beyond suspicion or conjecture, and a verdict should only have been directed where there was no evidence from which the jury could have found the defendant guilty without resorting to surmise and conjecture. Id. In order for circumstantial evidence to be sufficient to support a finding of guilty in a criminal case, it must exclude every other reasonable hypothesis consistent with innocence. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). However, whether the evidence excludes every other reasonable hypothesis is for the finder of fact to determine. Id.
In the instant case, appellant argues that the state failed to prove possession because there was no direct evidence that the contraband belonged to appellant. He relies on the undisputed fact that the police did not find any drugs on his person at the time of his arrest.
Possession means “to exercise actual dominion, control, or management over a tangible object.” Turner v. State, 24 Ark. App. 102, 103, 749 S.W.2d 339, 340 (1988). At appellant’s trial, two officers testified that appellant was covering the contraband with his body immediately prior to his arrest. Viewing the evidence in the light most favorable to the state, the officers’ testimonies are sufficient to establish that appellant exercised dominion or control over the contraband.
Accordingly, we hold that there is substantial evidence to support appellant’s conviction.
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Robert L. Brown, Justice.
This appeal arises from a default judgment entered against the appellant, CMS Jonesboro Rehabilitation, Inc. d/b/a Northeast Arkansas Rehabilitation Hospital, Inc. (“CMS”), and in favor of the appellees, Boyd Lamb and Delores Lamb, in the amount of $23,572.75. CMS advances the arguments that the service was defective and, alternatively, that the failure of CMS to answer was due to excusable neglect and unavoidable casualty or misfortune.
We do not agree, and we affirm the judgment.
The appellees filed their complaint against CMS and its parent company, Continental Medical Systems, Inc. (“Continental”), on July 25, 1989, alleging damages to the appellees’ residence caused by a dirt-pounding process associated with the construction of a CMS facility that sent shock waves and vibrations to the appellees’ property. The appellees sought to serve CMS by serving its agent, The Corporation Company, with complaint and summons on July 25, 1989, by certified mail, return receipt requested. The receipt was signed by R.L. Wright on the “Signature-Agent” line on July 28, 1989. Under the category on the receipt entitled “Type of Service,” the “Certified” box was marked with an “x.” No check or mark of any kind was made in the “Restricted Delivery” box on the receipt. At the time of service a Standing Delivery Order form was on file with the U.S. Postal Service showing that R.L. Wright was an authorized agent of The Corporation Company to receive unrestricted and restricted delivery mail. After receiving the complaint and summons, The Corporation Company forwarded the same to CMS.
Approximately four and one-half months after the certified mail receipt was signed, and specifically on December 11, 1989, the appellees took a default judgment against CMS and Continental in the amount of $23,572.25. CMS and Continental did not discover the default judgment until April 25, 1990, and moved to set it aside on May 3, 1990. The trial court reviewed affidavits submitted by the parties and evidentiary depositions and heard testimony from a witness and arguments of counsel at a hearing on August 15, 1990. By order entered on August 17, 1990, the trial court denied the motion to set aside with regard to CMS but granted it with regard to Continental, due to lack of in personam jurisdiction.
CMS argues, first, that service of process by the appellees did not satisfy the dictates of Ark. Rule Civ. P. 4(d) (8) (A), which authorizes service of summons and complaint by mail:
Service of a summons and complaint upon a defendant . . . may be made by the plaintiff or an attorney of record for the plaintiff by any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee. Service pursuant to this paragraph shall not be the basis for the entry of a default or judgment by default unless the record contains a return receipt signed by the addressee or the agent of the addressee or a returned envelope, postal document or affidavit by a postal employee reciting or showing refusal of the process by the addressee.
Ark. R. Civ. P. § 4(d)(8)(A). In the case before us, the mail was appropriately addressed to The Corporation Company, which was the registered agent of CMS, with a return receipt requested. A receipt signed by R.L. Wright on behalf of The Corporation Company is also in the record. These facts are not in dispute.
CMS’s argument, however, centers on whether the mailing by the appellees was a “delivery restricted” to The Corporation Company under Rule 4(d)(8)(A). We hold that it was. It is true that the Restricted Delivery box was not checked on the U.S. Postal Service form. Nevertheless, the procedure followed by the postal service and The Corporation Company was the designated procedure under Rule 4(d)(8)(A) had the box been checked: a person authorized to accept restricted mail did so and signed the required receipt which was returned to the appellees and is now part of the record.
It is undisputed that R.L. Wright was authorized to accept restricted mail on behalf of The Corporation Company. Evidencing this fact was the card on file with the postal authorities at the time which was signed by Wright and which contained the added notation: “This authorization is extended to include Restricted Delivery.” Furthermore, Wright signed for and accepted the mail containing the complaint and summons, the same as he would have done had the “Restricted Delivery” box been marked. Under such facts it would strain credulity to hold that the delivery was not, in fact, carried out in restricted fashion and that the purposes and objectives of Rule 4(d)(8)(A) were not, in fact, met.
We particularly note the language in Rule 4(d)(8)(A) which provides when service can be the basis for a default judgment. The rule states that a default judgment shall not be entered “unless the record contains a return receipt signed by the addressee or the agent of the addressee.” That is exactly what was done in this case—a return receipt signed by the appropriate person, R.L. Wright, on behalf of The Corporation Company was made part of the record. The object of the rule is to give CMS knowledge of the appellees’s suit, and that object has clearly been met. For reasons unrelated to service of process, CMS simply failed to respond to the complaint.
In its argument CMS relies heavily on a prior case of this court handed down in 1989 which had somewhat similar facts. See Wilburn v. Keenan Companies, Inc., 298 Ark. 461, 768 S.W.2d 531 (1989). In Wilburn the trial court also refused to set aside a default judgment where service of complaint and summons was by certified mail, return receipt requested, but where the “Restricted Delivery” box was not marked. However, in Wilburn, the person who received the certified mail with the complaint and summons was not authorized by the defendant to receive restricted delivery in accordance with U.S. Postal Service regulations. We reversed the trial court and voided the default judgment. In our decision we referred to both the failure to mark the “Restricted Delivery” box and the recipient who was not authorized to receive restricted mail:
There was no evidence that appellee had directed the summons and complaint to be mailed with restricted delivery. Nor was there any evidence that appellant had specifically authorized, in writing, that L.D. Madden was to be his agent to receive mail. Consequently, the default judgment was void ab initio, and the trial court erred in denying appellant’s motion to set it aside.
298 Ark. at 463; 768 S.W.2d at 532.
The facts in this case are distinguishable from the Wilburn case. Delivery was made in this case as if the “Restricted Delivery” box had been marked. Moreover, in this case R.L. Wright was clearly authorized by The Corporation Company to receive restricted deliveries.
CMS next argues that R.L. Wright could not accept service for The Corporation Company under Ark. R. Civ, P. 4(d)(5), because that rule limits service on a domestic corporation to delivery of the complaint and summons to “an officer, partner other than a limited partner, managing or general agent, or any agent authorized by appointment or by law to receive service of summons.” Here, CMS is a domestic corporation with The Corporation Company as its agent for service of process. Mr. Wright was the agent authorized to receive restricted and unrestricted mail, including process, for The Corporation Company. Indeed, Wright did sign for and accept the process sent by mail to The Corporation Company pursuant to Rule 4(d)(8)(A). We find no merit in CMS’s argument.
In the same vein, CMS points to the Arkansas Code and specifically to a statute directed to service of process when a corporation is the registered agent, which is the situation in the case before us:
Service of any process, notice, or demand upon a corporate registered agent, as agent, may be had by delivering a copy of the process, notice, or demand to the registered agent, president, vice-president, the secretary, or an assistant secretary of the corporate registered agent.
Ark. Code Ann. § 4-26-503(a)(2) (1987). But, again, Rule 4(d)(8)(A) clearly provides for service by mail to be received by an agent of the addressee. Accordingly, the argument of CMS is without merit. We note that alternative means of serving process, such as the alternative set out in Rule 4(d)(8)(A), are contemplated under the statute advanced by CMS in support of its argument:
(c) Nothing herein contained shall limit or affect the right to serve any process, notice, or demand required or permitted by law to be served upon a corporation in any other manner now or hereafter permitted by law.
Ark. Code Ann. § 4-26-503(c) (1987).
CMS finally argues unavoidable casualty or excusable neglect under Ark. R. Civ. P. 55(c) and unavoidable casualty or misfortune under Ark. R. Civ. P. 60(c)(7). In our cases, we have recognized that defaults are not favored in the law and that a default judgment may be a harsh and drastic result affecting the substantial rights of a party. See Burns v. Madden, 271 Ark. 572, 609 S.W.2d 55 (1980). CMS offers as grounds for relief that it contacted its insurance carrier on receipt of the complaint and summons, and the carrier agreed to defend the action on behalf of CMS. The carrier apparently reneged subsequently and advised CMS to demand a defense by the general contractor. This was done, and according to CMS the general contractor agreed to assume the defense. No defense, however, was mounted by the general contractor.
We have held in the past that misunderstandings about who will defend an action are not sufficient to show unavoidable casualty or misfortune under the old Rule 60(c). See McGee v. Wilson, 275 Ark. 466, 631 S.W.2d 292 (1982). And we have further held that a party cannot invoke the aid of this court under Rule 60(c) when that party ignored the action and failed to stay informed. See Diebold v. Myers General Agency, Inc., 292 Ark. 456, 731 S.W.2d 183 (1987); Jetton v. Fawcett, 264 Ark. 69, 568 S.W.2d 42 (1978).
Nor do we hold that the misunderstanding on the part of CMS is sufficient to constitute excusable neglect. Unlike the case of Burns v. Madden, where the attorney for the plaintiff had previously represented the defendant and had advised the defendant to contact his insurance carrier, here there was no previous attorney/client relationship involved and no potential for that kind of misunderstanding to develop. There is no question that there was neglect by CMS. The only question is whether it was excusable. The trial court’s remarks on this point are instructive:
I don’t think that because their client made a deal with the contractor or with the insurance company or with someone else and then forgot about it and didn’t follow up, I don’t think that’s excusable neglect or unavoidable casualty. I think that’s not attending to your business.
We agree. CMS did nothing to assure that the general contractor was indeed defending it. And four and one-half months did pass from the date of filing the complaint to the date of entry of a default judgment during which time CMS apparently did not monitor the case. More was required of CMS than was shown in this case, and that formed the basis for the trial court’s finding. We have previously held that the decision to grant or deny a motion to set aside a default judgment lies within the sound discretion of the trial court, and the question on appeal is whether the trial court abused that discretion. See Burns v. Madden, Jetton v. Fawcett, 264 Ark. 69, 568 S.W.2d 42 (1978). There was no abuse of discretion in this case.
Affirmed.
Dudley and Newbern, JJ., dissent.
Corbin, J., not participating.
By Per Curiam order effective February 1,1991, Rule 60(c) was amended to apply to judgments other than a default judgment. Subparagraph (7) of Rule 60(c) was deleted and replaced by former subparagraph (8). Rule 55(c) was amended to include “mistake,” “inadvertence,” and “surprise” as grounds for setting aside a default judgment. | [
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Jack Holt, Jr., Chief Justice.
Dale Freemond Day, the appellant, was convicted of battery in the first degree and murder in the first degree, and sentenced to ten and forty years imprisonment, respectively. The sentences are to run concurrently.
Day now seeks reversal of his convictions, alleging that the trial court erred; 1) in admitting two photographs of the murder victim into evidence; 2) in refusing to sever the battery and murder offenses; 3) in refusing to grant funds for a private psychiatric evaluation; and 4) in allowing the admission of Day’s statements into evidence. We disagree with all four arguments and affirm.
The facts at trial were presented primarily through the testimony of the battery victim, the investigating officers, and Day, himself.
On the evening of March 3, 1990, Day, who had been residing in Minnesota, arrived at the home of his estranged wife, Victoria Day, in West Fork, Arkansas. Finding no one there, Day entered one of the bedrooms and eventually fell asleep. He awoke to the sound of the television and realized that Victoria and her uncle, James Woodring, with whom she had been having an affair, were in the living room watching a T.V. program. Victoria shortly thereafter entered the bedroom, whereupon Day struck her repeatedly with the butt of a shotgun, breaking both of her hands. Day then went into the living room and hit Mr. Woodring with the shotgun. Mr. Woodring had been asleep on the couch and when he attempted to rise, Day shot him. Day shot Mr. Woodring twice more as Mr. Woodring attempted to leave the house through the front door. The victim got as far as the driveway before he collapsed and died. Day asked Victoria for her car keys and drove Victoria’s car to a nearby convenience store where he had parked his own car earlier. Day exchanged cars, drove to the sheriff’s department, and turned himself in at approximately 2:45 a.m. on March 4.
I. ADMISSION OF PHOTOGRAPHS
Day first contends the trial court erred in admitting into evidence two photographs, State’s exhibits 3 and 4, depicting James Woodring’s body after the shooting. Day asserts the pictures were overly gruesome and inflamatory and that the probative value of the pictures was outweighed by their prejudicial effect. We do not agree.
Testimony at trial established that Mr. Woodring had been asleep prior to Day’s assault and that he ran out of the house, barefoot, to escape from Day. State’s Exhibit 3 showed that Mr. Woodririg was shoeless, and Exhibit 4 showed where Mr. Wood-ring had fallen in proximity to the house. They were the only photographs of the crime scene admitted into evidence.
Even inflamatory photographs can be admitted if they shed light on any issue or are helpful to the jury. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991). The admission of such evidence lies within the discretion of the trial court, and we will not reverse, absent an abuse of that discretion. Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). We find no such abuse here.
II. SEVERANCE OF OFFENSES
Day next argues that the trial court erred in denying his pretrial motion to sever the first degree battery charge and the first degree murder charge.
In addition to the battery and murder offenses, Day was charged with felon in possession of a firearm. The trial court severed this offense, but held that the battery and murder charges should be tried together as they were “part of the res gestae.”
Ark. R. Crim. P. 21.1 provides:
Two (2) or more offenses may be joined in one (1) information or indictment with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both:
(a) are of the same or similar character, even if not part of a single scheme or plan; or
(b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.
A trial court’s decision to deny a motion for severance is discretionary, and two or more criminal offenses are based “on a series of acts connected together” when the offenses occurred close together in time and place. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991) (citing Brown v. State, 304 Ark. 98, 800 S.W.2d 424 (1990)).
Here, Day’s assault on Victoria Day occurred only minutes before Day shot and killed James Woodring, who was present in the next room. Furthermore, Day’s distress and jealousy over his wife’s affair with Mr. Woodring can fairly be characterized as the “single scheme or plan” which prompted him to commit the offenses. The court was correct in not severing the charges.
III. PSYCHIATRIC EVALUATION
Citing Ake v. Oklahoma, 470 U.S. 68 (1985), Day next claims the trial court erred in refusing to grant his request for a private psychiatric evaluation in order to determine his competency to stand trial. Ake provides in pertinent part:
. . .[W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.
470 U.S. at 83. Day’s claim is without merit. In the first place, an examination of the record reflects that Day did not demonstrate to the trial judge that his present competence or his sanity at the time of the offenses would be a significant factor at trial. The trial court, as a cautionary measure, ordered psychiatric evaluation of Day by Dr. Travis Jenkins of the Ozark Guidance Center. Dr. Jenkins reported that Day was competent to stand trial and that there was “no evidence to suggest that he was psychotic at the time of the alleged offenses. . .”, or during Dr. Jenkins’interview with him.
As a result of Dr. Jenkins’ report, Day filed a motion to appoint a private psychiatrist, claiming that since he had some difficulty with anxiety, depression, and behavioral problems, he was entitled to the opinion of a “private employed expert.” In denying Day’s motion, the trial court noted that Dr. Jenkins’ report reflected that “any evidence of anxiety, depression or behavioral problems were not pertinent to [Day’s] psychiatric assessment around the time of the alleged offenses,” and that “he had been afforded an evaluation at [the] Ozark Guidance Center by a duly licensed and qualified psychiatrist. . .”
We have repeatedly held that a defendant’s right to examination under Ake is protected by an examination by the state hospital. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990); Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989). So, even if Day was entitled to an examination, his evaluation at the Ozark Guidance Center is equivalent to examination by the State Hospital. We find no fault in the trial court’s rulings.
IV. ADMISSION OF STATEMENTS
Lastly, Day argues that the trial court erred in allowing into evidence the oral and written statements he made to the police.
Day filed a pretrial motion to suppress all oral and written statements, alleging they were obtained in violation of his privilege against self-incrimination and right to counsel. A suppression hearing was held in which the State called the two officers present when the statements were made. Officer Seigle Bell, an investigator with the Washington County Sheriff’s Department, was on duty at the Sheriff’s office when Day turned himself in in the early morning hours of March 4. Officer Bell testified that Day came into the dispatch room with Corporal Leroy Johnson, who pointed to Day and stated, “I think this is the man you’re looking for.” (Officer Bell testified that he had previously received a report of a possible homicide which named the appellant as a suspect.) Day stated his name, and Officer Bell asked him to place his hands against the wall while he proceeded to pat Day down for weapons. At that point, Day remarked: “The gun is in my car. It’s parked outside.” Officer Bell immediately escorted Day to the waiting room and advised him of his Miranda rights.
Day challenges the admission of this initial statement on the grounds that his entrance to the Sheriffs office placed him in a custodial situation and that he should have been “mirandized” before he uttered the incriminating information. We agree with the trial court, however, that the statement was admissible as a spontaneous utterance.
In determining whether statements are admissible, we evaluate the totality of the circumstances and reverse only if the trial court’s finding is clearly against the preponderance of the evidence. Walker v. State, 303 Ark. 401, 797 S.W.2d 447 (1990). The statement was made within minutes of Day’s arrival at the station, and there is no evidence that Day was coerced or induced into speaking. Officer Bell’s decision to frisk Day first for weapons was appropriate under the circumstances and did not constitute the type of “custodial interrogation” for which the Miranda warnings were designed. We have held many times that a suspect’s spontaneous statements, although made in police custody and prior to Miranda warnings, are admissible against him. See Futch v. State, 288 Ark. 323, 705 S.W.2d 11 (1986); Ward v. State, 272 Ark. 99, 612 S.W.2d 115 (1981).
The other admitted statements to which Day objects occurred after he was twice issued the Miranda warnings. In the first instance, Officer Bell testified that he read each sentence from the standard form used in the department and wrote down Day’s response. Day then reviewed and initialed the form, indicating that he understood his rights.
Following this procedure, Officer Bell and Day entered Officer Bell’s office and sat down with a cup of coffee, at which point Day began talking about the incident, implicating himself in both the battery and murder offenses. Officer Bell testified that he advised Day to wait until Captain O’Kelly arrived, before talking, but Day insisted on continuing.
When Day completed his story, Officer Bell told him that he was going to write out a statement from his notes and have Day sign it. Day then stated, “Well, before I sign anything, I probably better talk to a lawyer.”
Captain O’Kelly testified that when he arrived, Officer Bell briefed him concerning Day’s statement and informed him that Day wished to speak with an attorney before proceeding further. In the presence of Officer Bell, Captain O’Kelly again advised Day of his Miranda rights, and Day executed a second statement of rights form. Captain O’Kelly then informed Day that he knew of Day’s request for counsel and asked Day whether he wanted him to contact a lawyer, to which Day responded that Officer Bell had been mistaken about his request and that he only wanted a lawyer prior to going to court. Captain O’Kelly testified that Day “wanted to tell him what happened.” Day allowed Captain O’Kelly to make written notes of his statement, at the end of which he added his signature.
As to Day’s oral statement to Officer Bell, Day merely argues that this statement is inadmissible since it was “tainted” by the first oral statement. This argument is meritless as the first statement was a spontaneous utterance.
Furthermore, again reviewing the totality of the circumstances, there is no evidence that Day (a repeat offender with five previous convictions) was not fully aware of his rights. Officer Bell testified that Day appeared sober and reasonable and clearly indicated that he understood the rights read to him. Once Day received and understood the Miranda warnings administered to him but, nonetheless, insisted on talking to Officer Bell, he waived those rights.
With regard to the statement made to Captain O’Kelly, Day contends that it, too, was tainted and also, that when he informed Officer Bell he wanted an attorney, all interrogation should have ceased. The trial court ruled that Day effectively recanted this request when he informed Captain O’Kelly that Officer Bell had been wrong about his desire for counsel, and that he wanted to talk. In addition, the trial court noted that there was a serious question as to whether Day actually asserted his right to counsel. In either event, the trial court was correct.
Professors LaFave and Israel state in Criminal Procedure, Vol. 1, § 6.9 (1984 and Supp. 1991), “there is much to be said for the conclusion some courts have reached: ‘where a suspect makes an equivocal assertion of counsel, the police must cease all questioning, except that they may attempt to clarify the suspect’s desire for counsel.’ ” (Citing Towne v. Dugger, 899 F.2d 1104 (11th Cir. 1990)). See also United States v. Fouche, 776 F.2d 1398 (9th Cir. 1985). Here, Day’s comment that he wanted to talk to a lawyer “before I sign anything” constitutes the type of “equivocal” assertion to which Professors LaFave and Israel are referring, and should not preclude further questioning to clarify the matter. See Criminal Procedure, supp. 1991 at 132.
We do not agree with Day that Captain O’Kelly’s dialogue with him following his announcement that he would like to talk with counsel before signing anything amounted to “interrogation.” Captain O’Kelly was merely clarifying Day’s request and took no action to elicit incriminating information. Even if we found that Day properly invoked his right to counsel, his statement still became admissible evidence since it was he, and not the police, who initiated further discussion of the evening’s events. See Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988).
For the foregoing reasons, we affirm. | [
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David Newbern, Justice.
Vernon Keith Franks appeals from his conviction of murdering his grandmother, Lou Emma Franks. He contends the Trial Court erred in failing to grant his motion for acquittal due to mental incapacity at the time the crime was committed. He also argues he was entitled to a directed verdict on that issue. In addition, Franks contends a statement he made while in custody should not have been admitted into evidence and the Court erred by not declaring a mistrial because the jury obtained a dictionary for the purpose of looking up the definition of “premeditated” without notice to the Court or counsel.
We affirm the conviction because, (1) the statute allowing a court to dismiss a charge due to mental incapacity is permissive only, (2) there was evidence on which the jury could base its decision that Franks was not mentally incapacitated at the time of the crime, (3) there was evidence from which the court could have concluded that the statement Franks made while in custody was voluntary, resulting from an initiation by Franks of a conversation with a police officer despite the fact that Franks had earlier insisted on “taking the Fifth” and speaking with a lawyer, and (4) the jury’s procurement of a dictionary without notice to the court or the parties was improper, but no prejudice resulted.
Allen Hicks was an investigator with the Greene County Sheriffs Department. He testified he was called on September 9, 1988, to a residence occupied by the appellant, Keith Franks, and Lou Emma Franks. Mrs. Franks’ body had been found in the yard outside the house lying under a bush. Her head was severely lacerated, and she had blood splashes on her feet. Hicks examined the area and it did not appear to him that a struggle had taken place in the vicinity of the body, nor did it appear that the body had been dragged there.
Hicks went to the residence where he found Keith Franks in the kitchen speaking to Franks’ mother on the telephone. Franks was saying to his mother that his grandmother was dead and apparently had been shot. Hicks asked if Franks knew what had happened to his grandmother, and Franks said he had heard her go out with the dog but she had not returned for about an hour, and he had gotten worried and called relatives to help him look for her, although he had not gone outside to search. Hicks read Franks his rights and told Franks he would like him to come to the sheriffs department to give a formal statement. At that, Franks replied that if he were going to the station he would “plead the Fifth” and wanted to speak to a lawyer. He was taken to the department by another officer.
Hicks and other officers remained at the residence. They found a number of areas and items in the house on which there were stains they suspected to be blood stains. Wet clothing was found on a closet floor, and part of the carpet was wet where apparently there had been an attempt to wash out the stains. Stained towels were found in a dryer. The items and places were later analyzed and found to contain blood.
When Hicks arrived at the sheriffs department later, he was told by Officer Reeves that Franks had asked to speak to him. He had Franks delivered to his office where he asked what Franks wanted. Franks said he wanted to tell what had happened. Hicks readvised Franks of his rights, and a statement was taken. The statement essentially repeated what Franks had said earlier.
After Franks was charged with the crime, he was sent to the State Hospital for mental evaluation. He was diagnosed as schizophrenic and determined to be unable to assist in his own defense. Later, after some five months of treatment, a Dr. Brandt of the State Hospital wrote to the Court that Franks was able to assist in his own defense, but “lacked the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law” at the time of the crime.
1. Mental capacity
a. Motion to acquit
Franks moved for acquittal in accordance with Ark. Code Ann. §5-2-313 (Supp. 1989) which provides:
On the basis of the report filed pursuant to § 5-2-305, the court may, after a hearing if a hearing is requested, enter judgment of acquittal on the ground of mental disease or defect if it is satisfied that, at the time of the conduct charged, the defendant lacked capacity, as a result of mental disease or defect, to conform his conduct to the requirements of law or appreciate the criminality of his conduct. . . .
At the hearing on the motion, Dr. Marino, a psychiatrist from the State Hospital, testified that Franks was delusional and mentally ill, and with the exception of the delusions, his illness was in remission. The delusions included, but were not limited to thoughts that Franks was a member of the CIA, the FBI, and a deputy provost marshall. Franks’ mother testified about similar delusions Franks had had and that he also had a delusion about his father being someone named “Apocalypse Franks.”
In response, the State pointed out that when Hicks asked Franks to come to the Sheriffs office to make a formal statement, Franks wanted to “plead the Fifth” and asked for a lawyer. The State also noted that Franks attempted to eliminate evidence of the crime and thus seemed to appreciate the criminality of his acts.
The motion was denied, and we cannot say that was error. The basis of the motion is the statute quoted above which clearly says that the Court may acquit on the basis of the motion, but there is no requirement that it do so. Construing a predecessor to the current statute, this Court wrote in Westbrook v. State, 274 Ark. 309, 624 S.W.2d 433 (1981), that “the statute permits the trial judge to acquit the defendant ‘in cases of extreme mental disease or defect where the lack of responsibility on the part of the defendant is clear,’ . . .” While there was strong evidence that Franks has been psychotic for years, we cannot say the Trial Court erred in finding that it was not “clear” that Franks was not responsible for his acts at the time the crime was committed.
b. Directed verdict
At the trial, Dr. Bunten, a State Hospital psychologist, and Dr. Marino testified about Franks psychotic condition, and both opined that Franks was not responsible for his acts at the time of the crime. That evidence was supplemented by testimony of Franks’ mother and an aunt, both of whom gave more information about bizarre delusional conduct on his part.
Dr. Bunten and Dr. Marino conceded that their opinions about Franks’ condition at the time the crime occurred had to be based on his history, and they could not say with certainty that he was delusional on that date or that he was suffering any particular delusion having to do with his grandmother.
The State presented the testimony of Dr. Austin, a psychiatrist who had not examined Franks. Dr. Austin responded to a hypothetical question by stating, in effect, that a person who was a severe schizophrenic could have done a killing like the one in question here either in response to a delusion or in response to a longstanding argument. Testimony had been presented indicating that Franks and his grandmother had argued over time about Franks’ lack of employment.
Franks cites no authority for the proposition that the Court should have directed a verdict in his favor. In Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979), Campbell moved for directed verdict on the basis of lack of mental capacity to commit the crime. We noted that the lack of capacity defense is an affirmative defense to be established by the defendant by a preponderance of the evidence, the question being primarily for the jury, and the judge may direct a verdict only when no fact issue exists. See also McCaslin v. State, 298 Ark. 335, 767 S.W.2d 306 (1989), in which we affirmed a trial courts’ denial of a motion for directed verdict based on the affirmative defense of entrapment because the defendant failed to prove entrapment as a matter of law; Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989), also holding that an affirmative defense is established as a matter of law only if there are no factual issues remaining to be resolved by the trier of fact.
While we agree there was very strong evidence that Franks lacked capacity to appreciate the criminality of his acts at the time the crime was committed, we cannot say he had established the defense as a matter of law. If the jury were to find that Franks killed his grandmother and then took fairly elaborate, although not at all successful, steps to hide the crime, that was to be considered on the issue of capacity. So also was Franks’ “pleading the Fifth” and his request for a lawyer. Franks’ mental capacity was a factual issue, and we cannot hold it was error to allow the jury to decide it.
2. The statement
Franks’ argument with respect to keeping his statement out of evidence is that Officer Hicks interviewed Franks after he had said he wanted a lawyer, but before he was successful in contacting a lawyer. If Officer Hicks initiated the contact, that would clearly have been prohibited by Edwards v. Arizona, 451 U.S. 477 (1981). At a pretrial hearing on Franks’ motion to suppress the statement, Officer Reeves, the officer who told Hicks that Franks wanted to talk to Hicks after Hicks reached the sheriff’s department, testified he could not personally say he heard Franks make such a request. Officer Hicks testified that when Franks was brought to him, he asked Franks if he had called his attorney, and Franks replied that he could not get in touch with him. Hicks then testified that Franks “said at that time he wanted to talk to us.”
In Findley v. State, 300 Ark. 265, 778 S.W.2d 624 (1989) , we pointed out that when an accused initiates contact with police authorities after having requested counsel the right to counsel may be considered waived. If Hicks’ testimony is to be believed, Franks initiated the contact resulting in his statement, and there was no Sixth Amendment violation. The question is one of credibility. Segerstrom v. State, 301 Ark. 314, 783 S.W.2d 847 (1990) ; Findley v. State, supra. We cannot say the Court erred in denying the motion.
3. The dictionary
Without the knowledge of the Court or counsel, the jurors requested that the bailiff bring them a dictionary so they could look up the definition of “premeditation.” The bailiff complied with the request. Franks moved for a new trial, and both sides stipulated that the incident occurred as described above. Franks contends it was error to deny his motion for a new trial.
The Trial Court concluded it was error for the jurors to have received the dictionary but, after reading the dictionary definition and the instruction given to the jury on premeditation, held that the error was not prejudicial. The jury was instructed on premeditation as follows:
In order to find that Vernon Keith Franks acted with a premeditated and deliberated purpose, you must find that he formed that intention before acting as a result of a weighing in the mind of the consequences of a course of conduct as distinguished from acting on impulse without the exercise of reasoning powers.
The definitions seen by the jury in the dictionary were:
Premeditate ... to think over, premeditate;... to think out, plan or scheme beforehand, vi. to think or meditate beforehand.
Premeditation ... a premeditating; specifically, in law a degree of planning and forethought sufficient to show intent to commit an act.
We do not reverse the refusal to grant a new trial unless we find the trial court abused its discretion. Mitchell v. State, 299 Ark. 566, 776 S.W.2d 332 (1989); Langston v. Hileman, 284 Ark. 140, 680 S.W.2d 89 (1984).
We find no abuse of discretion here. An annotation at 35 ALR4th 626, 645, cites many cases in which a jury has somehow obtained a dictionary and looked up words, and it has been held that no prejudice resulted. While we agree that, generally, it is misconduct for a jury to seek out reading material without the knowledge of the court and the parties, prejudice does not occur in every case. We tend to agree with the Trial Court that the dictionary definitions quoted above were clearer than the lawyer words “conscious object” found in the instruction and that nothing in the dictionary definitions was prejudicial to Franks.
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Robert H. Dudley, Justice.
The basic issue in this case is
whether the statute setting out the method for prospectively cancelling an automobile insurance policy has abrogated an insurance company’s common law right to rescind an automobile insurance policy ab initio. We hold that under some circumstances an insurance company still has the right to rescission ab initio. In so holding, we reverse the trial court.
Kenneth Ferrell’s automobile insurance policy, which had been issued by Southern Farm Bureau Insurance Company, ended at midnight, January 31, 1988. Early the next morning, February 1, he went to Jarvis Insurance Agency in Crossett to purchase a new policy, which would provide bodily injury, property damage, and collision coverage on his three (3) personal cars and a 1988 Toyota owned by his daughter Christi. The agency apparently assumed that he owned the Toyota. Harold Jarvis, the agent, quoted a price for such a policy. Kenneth said he wanted the cars to be covered immediately, and a clerk took his application. The trial court found that he made numerous material misrepresentations in the application including: not acknowledging his moving traffic violations; not acknowledging his wife’s moving traffic violations; not listing his son’s moving traffic violations or accidents; and, most importantly to this case, not listing his daughter’s moving traffic violations. The trial court found that his daughter, Christi, had no knowledge of the material misrepresentations and did not participate in making them. However, Christi testified that her father was her agent in the procurement of the policy:
Q. Were you relying on your father to get insurance for you or your car?
A. Yes, sir.
Q. And was he authorized to make an application on your behalf to get that insurance?
A. Yes, sir. He was paying for my insurance, so I didn’t—
Q. I understand.
Kenneth paid the premium, and the Jarvis Agency issued a preferred-risk binder on Columbia Mutual Insurance Company. Three (3) days later, on February 4, 1988, Christi did not see a stop sign in Monroe, Louisiana, ran through it, and was hit by another car. The market value of her 1988 Toyota was diminished by $ 11,500.00. In addition, her car destroyed a nearby street sign for which the City asked $89.03 in damages. She immediately reported the accident to the Jarvis Agency.
In the meantime, Columbia Mutual was processing the binder through its normal channels. It had requested U.S. Data, a reporting company, to check the driving history of the listed drivers. U.S. Data furnished the history, probably on February 9. On February 10, an underwriter for Columbia Mutual rejected the binder because of Kenneth’s and Christi’s driving records. The records reflected that Kenneth had two speeding infractions; Christi had four speeding infractions and one accident within the last three years. Under its preferred plan, Columbia Mutual will not issue coverage if a driver has had a driving offense within three years. On February 18, 1988, Columbia Mutual refunded the premium to Kenneth and advised him it was rescinding the policy, ab initio, because of his fraud. At that time, the underwriter did not know about Christi’s wreck.
On February 25, 1988, Columbia Mutual filed suit in chancery court against Kenneth and Christi. The suit sought rescission of the policy retroactive to the date of issue, February 1. The basis of the suit was the material misrepresentation in the policy application.
Kenneth and Christi answered and filed a counterclaim and an amended counterclaim. They alleged that they had suffered property damages of $11,500.00 less a deductible amount of $250.00, and that they had paid $89.03 to the City of Monroe, for a total of $11,339.03 plus interest. They also sought a 12% penalty, and a reasonable attorney’s fee pursuant to Ark. Code Ann. § 23-79-208 (1987). Finally, they prayed for punitive damages in the amount of $250,000 because of Columbia Mutual’s “bad faith” in the “cancellation” of the insurance policy.
Columbia Mutual filed an amended complaint in which it asked alternatively that if the policy were not retroactively rescinded and if Columbia Mutual were required to pay any losses under the binder, then it be given judgment over and against Kenneth for his fraudulent misrepresentation. This amounted to an alternate common law action of deceit. The chancery court took jurisdiction and began to hear all of the causes of action; however, at the conclusion of all the evidence, the chancellor granted Columbia Mutual’s motion to strike Kenneth’s and Christi’s counterclaim for punitive damages on the ground that equity lacks jurisdiction to award punitive damages.
On September 30, 1988, the chancellor granted a partial summary judgment in favor of Christi. He found that the “notice of cancellation” provisions of Ark. Code Ann. §§ 23-89-303 and 304 (1987) and the public policy of this State prohibited Columbia Mutual’s rescission of coverage ab initio. Subsequently, the chancellor granted Christi judgment against Columbia Mutual for $11,339.03, a 12% penalty of $1,360.72, and an attorney’s fee of $8,507.37. The Chancellor awarded Columbia Mutual a judgment over and against Kenneth for the same amount. Kenneth appeals and designates four (4) points for reversal. Columbia Mutual cross-appeals and designates two (2) points. Because the cross-appeal determines the complete outcome of the case, we discuss it first.
In this appeal, Columbia Mutual argues that the trial court erred in refusing to rescind the binder ab initio. It argues Ark. Code Ann. §§ 23-89-303 and 304 (1987), which provide that an insurer must give notice before cancelling a policy, do not apply to first-party property damage coverage. The argument is meritorious.
It is undisputed that at common law an insurance company could retroactively rescind coverage because of fraud or material misrepresentation. Old Colony Life Ins. Co. v. Fetzer, 176 Ark. 361, 3 S.W.2d 46 (1928). Rescission of a contract and cancellation of a contract are two distinct remedies, based on different grounds, 17 G.J. Couch, Couch Cyclopedia of Insurance Law, §§ 67:33, 67:54 (R.A. Anderson, ed., 2d rev. ed. 1983). Cancellation takes effect only prospectively, while rescission voids the contract ab initio. Id.
Many courts have interpreted “no fault” insurance legislation, see Ark. Code Ann. § 23-89-202 (1987), and compulsory motor vehicle acts, see Ark. Code Ann. §§ 27-22-101—104 (Supp. 1991), as expressing a public policy that one who suffers a loss as the result of an automobile accident shall have a source and means of recovery. As a result, courts have held that when an innocent third party has suffered damages as a result of an insured’s negligent operation of an insured vehicle, there is no right of retroactive rescission. These courts have held that the insurance company’s right of retroactive rescission has been abrogated, and the only remedy for an insurance company is prospective cancellation in accordance with the terms of the statute. See Teeter v. Allstate Ins. Co., 9 App. Div. 2d 176, 192 N.Y.S.2d 610 (1959), aff'd 9 N.Y.2d 655, 212 N.Y.S.2d 71, 173 N.E.2d 47 (1961). There are additional reasons for holding that prospective cancellation statutes abrogate retroactive rescission of a policy of liability insurance. If an insurer could unilaterally rescind coverage, unscrupulous insurers could hold the threat over the head of third party claimants in an attempt to bargain down their claims; and immediately issued binders are a marketing gimmick, and insurers are not entitled to be protected from their own gimmicks because they could verify information before extending coverage. See Metropolitan Property & Liability Ins. Co. v. Insurance Comm’r, 535 A.2d 588 (Pa. 1987).
Regardless of the reasoning used, all courts that have considered the question as it applies to an innocent third-party claimant have held that the insurer cannot, on the ground of fraud or misrepresentation, retroactively avoid coverage under a compulsory insurance or financial responsibility law. See Dunn v. Safeco Ins. Co., 14 Kan. App. 2d 732, 798 P.2d 955 (1990), for a listing of cases. In this case, however, we are not dealing with an innocent third-party claimant and make no holding on that issue. Instead, we are dealing with the insureds themselves, Kenneth Ferrell and his daughter Christi, and we are not dealing with a liability policy, but instead with collision coverage. Kenneth made the material misrepresentations for himself and as agent for his daughter. His misconduct is imputed to her.
There is no compulsory insurance statute which requires one to insure oneself against his own property loss. See Ark. Code Ann. § 27-22-104 (Supp. 1991). Thus, when a case involves only the insured and the insurer, and the loss involves the insured’s property, there is no public policy reason to hold that the insurance company’s common law right to rescission has been abrogated. Dunn v. Safeco Ins. Co., supra; United Security Ins. Co. v. Comm’r of Insurance, 133 Mich. App. 38, 348 N.W.2d 34 (1984). To hold otherwise would permit an insured to benefit from his fraudulent misrepresentations and leave the insurer without a remedy.
One case is contra, but it is based upon a statute that is markedly different from ours. In Metropolitan Property & Liability Ins. Co. v. Insurance Comm'r, 535 A.2d 588 (Pa. 1987), the court held that the statute providing for prospective cancellation abrogated the common law right of retroactive rescission between the insurer and the insured because the statute provided:
Nothing in this Act shall apply . . .
(3) To any policy of automobile insurance which has been in effect less than sixty days, unless it is a renewal policy, except that no insurer shall decline to continue in force such a policy of automobile insurance on the basis of the grounds set forth in subsecton (a) of section 3 hereof and except that if an insurer cancels a policy of automobile insurance in the first sixty days, the insurer shall supply the insured with a written statement of the reason for cancellation.
Id. at 594.
In construing the italicized language the court wrote:
the explicit language of the exception. . . clearly indicates the legislative intent to govern the termination of policies even during the sixty day period. Although that language prescribes only minimal procedures to be followed, it nevertheless clearly prescribes what an insurer must do.
Id. at 594.
On the other hand, our statute clearly provides a sixty day grace period during which the common law rules of rescission apply.
This section shall not apply to any policy or coverage which has been in effect less than sixty (60) days at the time notice of cancellation is mailed or delivered by the insurer unless it is a renewal policy.
Ark. Code Ann. § 23-89-303(b) (1987).
Accordingly, we hold that the Arkansas compulsory insurance statutes have not abrogated the insurer’s common law right to rescission when: (1) only the insurer and the insured are involved in a non-compulsory provision of the policy, and (2) the policy has been in existence less than sixty (60) dayg, unless it is a renewal policy.
Courts may sever compulsory provisions of an insurance policy from non-compulsory provisions and permit rescission only as to non-compulsory provisions. Dunn v. Safeco Ins. Co., supra. In Bankers & Shippers Ins. Co. v. McElveen, the court wrote:
The generally accepted rule is that “[w]here a compulsory automobile insurance policy contains additional clauses providing for noncompulsory coverage, a cancellation of the policy will be effective as to the latter clauses even if it does not comply with the statutory requirements as to the cancellation of the compulsory insurance.” Annotation. Cancellation of Compulsory Automobile Insurance, 171 ALR 550, 554 (1947).
Bankers & Shippers Ins. Co., 668 F.2d 185, 187 (3d Cir. 1981).
In the case at bar the chancellor held that the insurer’s cause of action for rescission had been abrogated by the cited statutes. Such a ruling was in error since, under the facts of this case, rescission was still a viable cause of action. As has been previously set out, there were misrepresentations of material facts, the knowledge of which would have caused the insurer to decline to issue the policy, and therefore, rescission is the proper remedy. We so hold in this de novo review.
All of the damages prayed for and awarded were based upon the policy remaining in effect. That policy now has been ordered rescinded. It follows that the damages awarded on the counterclaim and an amended complaint cannot be allowed to stand. Accordingly, the award of damages is reversed. Since no damages are awarded, it is no.t necessary for us to determine whether the chancellor correctly assumed jurisdiction of all facets of this case.
Reversed on cross-appeal. | [
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Jack Holt, Jr., Chief Justice.
On May 8, 1990, the appellant, Wilfredo Gonzalez, was convicted of five counts of delivery of a controlled substance and sentenced to a term of life in the Arkansas Department of Correction for each count.
Gonzalez alleges two points of error on appeal: 1) that the denial of his motion to dismiss “the remaining five charges” in CR 89-69 was error, and 2) that the admission into evidence of the exhibits in this case constituted error because the proper chain of custody was not established. Neither argument has merit, and we affirm.
Gonzalez was initially charged in a single information on August 21, 1989, with seven counts of delivery of a controlled substance (cocaine). The dates of alleged delivery were December 2 and December 28, 1988, January 2, January 6, January 7, January 14, and May 23, 1989.
The first two counts against Gonzalez were set for trial on December 1,1989, at which time he was convicted and sentenced to life imprisonment and a $25,000 fine on each charge. We reversed those two convictions and remanded for a new trial. Gonzalez v. State, 303 Ark. 537, 798 S.W.2d 101 (1990).
Apparently, Gonzalez now claims that the trial court erred in denying his motion to dismiss the remaining five charges contained in the information. However, he cites no authority to support his contention, and we decline to consider this argument on appeal. Garza v. State, 293 Ark. 175, 735 S.W.2d 702 (1987). In addition, we note that we returned the record to the trial court for settlement on the issue of the severance of these charges. The trial court concluded at the hearing to supplement the record that “. . . we were trying to find a case to try the next day because we had a jury coming in and the two cases against Gonzalez where the chemist was available were the ones suggested by the prosecutor and agreed to by the Court and not objected to by the defendant other than a Motion for a Continuance and that is the reason those two particular charges were severed from the remaining five charges.” Gonzalez did not make a request for joinder pursuant to Ark. R. Cr. P. 21.3, and his failure to do so constituted a waiver of any right of joinder as to the related offenses with which he knew that he had been charged.
Gonzalez contends in his second point of error that the admission into evidence of the exhibits in this case was error because the proper chain of custody was not established.
We note that a party has a duty to make a timely and complete objection to the admission of evidence. Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990) (citing Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986)). In this case, both Officer W.L. Holbrook, the undercover agent who purchased the cocaine from Gonzalez, and Ms. Mary Buhler, a chemist in the drug section of the Arkansas State Crime Lab who analyzed the substances submitted by Officer Holbrook, testified without objection that the substances obtained from Gonzalez were cocaine. It was not until the physical exhibits themselves were offered as exhibits to the proof already received that defense counsel objected.
Consequently, Gonzalez did not make a timely objection to the testimony that the substances at issue were cocaine, and he is now precluded from raising the issue on appeal. Furthermore, evidence that is merely cumulative or repetitious of other evidence admitted without objection cannot be claimed to be prejudicial. Dumond v. State, supra.
Pursuant to Ark. Sup. Ct. R. 11(f), we have reviewed the entire record for other reversible error and find none.
Therefore, the judgment of the trial court is affirmed. | [
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Steele Hays, Justice.
Kevin Byler is the six-year-old son of appellant Tanya Byler Moore. Mrs. Moore and Kevin bring this appeal from an adjudication order of the Benton Chancery Court, Juvenile Division, finding that the family is in need of services under the juvenile code. That finding is based on a petition of the prosecuting attorney alleging acts of burglary and criminal mischief by Kevin and a ten-year-old companion. The order directs Kevin to apologize to the victim and to attend counseling at the Ozark Guidance Center.
The only error alleged on appeal is that the state failed to meet the criteria for determining a family in need of services, as provided in Ark. Code Ann. § 9-27-303(16) (1987). The statute defines a family in need of services as including, but not limited to, being habitually absent from school without justification, habitually disobedient to the reasonable commands of parent or guardian, or absent from home without sufficient cause.
The testimony before the chancellor portrays an episode of vandalism of startling proportions: Joe Phillips, a contractor, testified that he had just completed the extensive remodeling of a home. He stopped to inspect the property and discovered Kevin and his companion in the process of systematically destroying the home and contents. Over fifty percent of oak cabinet doors throughout had been damaged, all interior doors were destroyed, a stainless steel sink, a garbage disposal and a marble lavatory were thrown over a railing into a ravine and destroyed; an airless spray paint machine and paint were destroyed, as were mattresses and box springs from twin beds; Levelor blinds were destroyed and each glass panel of three four by five Thermapane windows was broken. A refrigerator and stove were turned on their side. The only salvageable item was a compactor, only partially damaged. Mr. Phillips testified that the cost of the damage to him was $5,593.39, not including damaged articles belonging to the home-owners.
Appellants cite several general rules of statutory construction: legislative intent is obtained by considering the entire act [Knapp v. State, 283 Ark. 346, 676 S.W.2d 729 (1984)]; different sections are construed together [Noggle v. Arkansas Valley Elec. Coop., 31 Ark. App. 104, 788 S.W.2d 497 (1991)]; “the express designation by statute of one thing may properly be construed to mean the exclusion of another,” Chem-Ash, Inc. v. Arkansas Power & Light Co., 296 Ark. 83, 751 S.W.2d 353 (1988). Thus, appellants maintain that had the legislature intended to include conduct other than the three categories expressly covered, it would have said so.
It would be difficult to believe that the legislature meant to compose a statutory scheme that would empower juvenile courts to make an adjudication of a family in need of services based on truancy, disobedience and running away from home, but not on burglary and criminal mischief. However, we need not depend on conjecture, because even giving the maxim on which appellants rely its fullest drift, it is not an absolute: Cook v. Arkansas Missouri Power Corp., 209 Ark. 750, 192 S.W.2d 210 (1946) (“Express designation of one thing in a statute may properly be construed to mean exclusion of another”) [our emphasis]; Little Rock & F.S.R. Co. v. Clifton, 38 Ark. 205 (1881) (“The express of one thing sometimes implies the exclusion of another” [our emphasis.])
Here, it is entirely clear that by using the words “includes, but is not limited to,” the legislature intended a broader concept of a family in need of services than the three illustrations listed in the statute. We conclude that the chancellor did not err in the adjudication of family in need of services and therefore the order is affirmed. | [
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Jack Holt, Jr., Chief Justice.
The appellant, Joseph
Harold Wenzel, was charged with breaking into two homes and raping the occupants. He was tried by a jury, convicted of two counts of burglary and two counts of rape, and sentenced to a total of sixty years imprisonment.
On appeal, Wenzel claims the trial court erred in allowing the admission of FBI DNA profile test results because 1) the DNA laboratory proficiency test results were not timely dis closed, and 2) the DNA profile test results were obtained from vaginal swab samples which were depleted during testing. There is no merit to either of Wenzel’s arguments, and we affirm.
Wenzel first argues that the DNA profile test results should not have been admitted into evidence since the State’s failure to timely provide the proficiency test results, with regard to the profiles, deprived him of due process and his right to pretrial discovery.
The FBI DNA profile results were obtained by comparing Wenzel’s blood samples with vaginal swab samples containing semen, taken from both victims. Agent Lawrence Presley, who conducted the analyses, testified that both tests revealed a “match” between the DNA profile of Wenzel’s blood and the semen obtained from the vaginal swabs. Although the record is unclear as to its definition, proficiency testing apparently is an internal procedure, conducted by the FBI on occasion, to determine whether its laboratory technicians are performing the analyses correctly.
In preparation for trial, Wenzel’s counsel filed a motion for discovery of all scientific tests. Later, Wenzel filed an amended motion for discovery in which he requested a number of documents pertaining to the DNA tests. Wenzel received all the items requested, including autoradiographs, laboratory notes and the profile results, except for the proficiency test results.
The trial court conducted what it termed a “Frye” hearing on July 11, 1990, to determine whether the DNA profile tests constituted admissible evidence and to consider Wenzel’s discovery motions, particularly with regard to discovery of the proficiency tests. Agent Presley testified that it was the policy of the FBI not to release the proficiency tests. The hearing was contin ued on August 30, on which date Wenzel filed a motion in limine requesting that the DNA profiling results be excluded since he had been denied access to the proficiency tests. The trial court ruled that the profile tests were generally admissible but reserved ruling on the motion in limine until the day of trial, which was to begin on September 4. The court, apparently concerned as to whether it had jurisdiction to order the FBI’s release of the proficiency tests, instructed the State to determine why the FBI maintained a policy against releasing the proficiency “grades,” and cautioned that Agent Presley should bring the records to trial and be ready to release them if so ordered.
On the second day of trial, just prior to the State’s direct examination of Agent Presley, the trial court took up the matter of Wenzel’s motion in limine. The following dialogue took place:
THE COURT: The next one is that the defendant has been denied access to the proficiency tests. We had a hearing — I don’t remember what day it was — when the FBI man was down here, Mr. Presley. It was about a month ago, maybe?
MR. ZISER: The first part of July, Your Honor.
THE COURT: And then on August 30th this Motion in Limine. Now, I’ve told you both on the record, I believe, that I was going to delay my ruling until I was able to have some information from the prosecutor. Are you willing to give — I know he said it was their policy not to give out proficiency tests. Now, are you not wanting to give them out?
MR. ZISER: Your Honor, Agent Presley arrived today and he brought the proficiency test results with him. He told me that as far as he was concerned, just to release them. So the State is in position to release them to the defendant in this case if they still want them. I’ve got them right here on my desk. I would like to have a copy made so that I have one as well as the defense does, but I certainly have no objection to them seeing them.
THE COURT: Mr. Davis?
MR. DAVIS: Your Honor, I’m most grateful to the State, but it’s a little bit late in the hour to further proceed or call this witness until I have an opportunity to see those, Your Honor. Apparently, they were here not only today but yesterday.
MR. ZISER: No, sir, I got them over the lunch hour today.
THE COURT: Well, your original discovery motion has requested those, but it wasn’t brought to my attention that you were still — you know, wanted a motion to compel. A month ago you asked this fellow on the stand, or the first part of July, and he said, Well, by golly, our policy is we don’t give them up. Now on August 30th is when you filed your Motion in Limine asking me to do something about it, and I’m trying to do it. I’ve told them we’re going to wait until this fellow comes down here and see what he’s got. Now, he’s got these proficiency tests and what I’m going to do is let you make copies of them, Mr. Ziser, or give him the originals one, so Mr. Davis can look at them before he has to cross examine the witness. Over your objection, Mr. Davis, I’m going to allow him to call the witness to get his testimony started this evening, and I’m going to quit about five o’clock and he can finish up his testimony in the morning. That will give you this evening to go through these proficiency tests to see if there’s any bad test results in there or what’s in there. I don’t know. But that’s how we’re going to work it. Your objection to my ruling will be noted.
MR. DAVIS: Thank you, Your Honor.
THE COURT: Anything else on your motion? I think that finally got all your motion covered, didn’t it?
MR. DAVIS: Yes, Your Honor.
(Emphasis added.)
Wenzel’s argument on appeal, that because he was not furnished the proficiency tests in a timely manner, he was denied due process and his right to pretrial discovery under A.R.Cr.P. Rule 17.1, was not raised below. Wenzel argued, in his motion in limine and at the pretrial hearing, that denial of access to the proficiency tests violated the due process clause and the sixth amendment. Then, at trial, Wenzel’s objection appears to have been premised on the fact that the court was going to permit Agent Presley to testify before Wenzel had an opportunity to examine the proficiency tests, to which the court responded, “Over your objection, Mr. Davis, I am going to allow them to call the witness, and he can finish up his testimony in the morning. That will give you this evening to go through these tests.” Wenzel never objected, however, to untimely discovery and lack of time to examine the evidence, either when the court announced its decision to defer a ruling until the day of trial, or during the trial itself. More importantly, Wenzel did not ask for an additional continuance following his overnight examination of the records. See Renton v. State, 274 Ark. 87, 622 S.W.2d 171 (1981); Hughes v. State, 264 Ark. 723, 574 S.W.2d 888 (1978). Only specific objections made at trial are preserved for appeal. Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991).
Furthermore, by failing to object on the basis of untimely discovery, both when the trial court deferred its ruling at the pretrial hearing and when it granted an overnight continuance, Wenzel, in effect, agreed with the trial court’s ruling by which the profile results would be admitted and cannot now attack that ruling on appeal. See Matthews v. State, 305 Ark. 207, 807 S.W.2d 29 (1991).
Wenzel also objects to the admission of the DNA profile test results on the basis that FBI technicians used up all of the semen found on the vaginal swabs, during the DNA testing. This objection was properly preserved in Wenzel’s motion in limine and at the pretrial hearing.
Wenzel concedes that the State did not technically withhold the samples, but argues that its failure to preserve enough evidence so that the defense could conduct its own tests, deprived him of a fair trial. The United States Supreme Court addressed the issue in California v. Trombetta, 476 U.S. 479, 488 (1984), stating: “[w]hatever duty the Constitution imposes on the State to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense.” The court opined that “evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. at 489. (Emphasis ours.) Later, in Arizona v. Youngblood, 488 U.S. 51 (1988), the court reiterated the necessity of showing the apparent exculpatory value of the evidence at issue and further held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 58. The court directed its holding to “those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.” Id.
Wenzel has made no showing that the evidence possessed any apparent exculpatory value before it was destroyed, as required by the first prong of the standard in Trombetta, nor has he alleged or proven bad faith on the part of the State, as required by Arizona. Also, from the evidence presented at trial, the chance that the swab samples would have exonerated Wenzel appears virtually nil.
Affirmed.
The term “Frye” hearing stems from the seminal case of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which first promulgated a standard for determining the admissibility of novel scientific evidence. Although it labeled the hearing as such, the trial court noted that this court has not yet decided whether to adopt the Frye standard of admissibility (see Rock v. State, 288 Ark. 566, 708 S.W.2d 78 (1986)), and thus considered the matter in light of both Frye and the Arkansas Rules of Evidence. Again, we need not determine which standard is appropriate since the issue of reliability and admissibility of the DNA tests, themselves, is not before us. | [
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Donald L. Corbin, Justice.
Appellant, William Paul Smith, urges reversal of a Pulaski County jury verdict convicting him of capital murder under Ark. Code Ann. § 5-10-101 (a)(4) (Supp. 1989). The jury sentenced appellant to serve life without possibility of parole in the Arkansas Department of Correction. We affirm.
Appellant presents three arguments for reversal of his conviction. His third argument challenges the sufficiency of the evidence. We will address that argument first in accordance with our custom of addressing sufficiency of the evidence arguments prior to our consideration of other alleged trial court errors. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).
Appellant argues that the trial court erred in denying his motion for a directed verdict because the state did not present sufficient evidence of the premeditation and deliberation elements of capital murder. We must affirm if we find substantial evidence to support appellant’s conviction. Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988). In determining whether there is substantial evidence, we consider only the evidence that is favorable to the state and supports appellant’s conviction. Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991).
The state’s evidence showed that appellant drove to the Eastgate housing project in North Little Rock on the night of October 14, 1989. Two eyewitnesses testified that appellant parked his car, got out, and approached the victim, Michael Cooksey, from the side. The witnesses testified that Cooksey did not see appellant until appellant said, “Mike, I told you.” As appellant spoke, he raised a sawed-off shotgun and fired a single fatal shot into the left side of Cooksey’s face. Expert medical testimony established that the shot was fired approximately six feet from the victim. After shooting Cooksey, appellant jumped in his car and drove away.
Section 5-10-101 (a)(4) defines premeditated and deliberated capital murder:
(a) A person commits capital murder if:
(4) With the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person[.]
In the instant case, we believe the state produced substantial evidence that appellant killed Cooksey with the requisite premeditated and deliberated purpose. We have recognized that premeditation and deliberation are criminal elements that are hard to prove with concrete, demonstrative evidence. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982). Rather, the jury may infer a defendant’s intent from the circumstances of the case. Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977). Relevant circumstances include “the character of the weapon used and the manner in which it was used, the nature of the wounds inflicted, the conduct of the accused and the like.” Id. at 372, 556 S.W.2d at 888.
In the instant case, the state’s evidence included eyewit: ness testimony and medical expert testimony. In summary, this evidence established that appellant armed himself with a sawed-off shotgun, drove to the housing projects, walked to within six feet of the victim at an angle from which the victim couldn’t see, spoke the victim’s name, and shot the victim in the side of the head. We believe these circumstances provide more than substantial evidence for the jury to infer appellant’s premeditation and deliberation. Accordingly, we affirm the trial court’s denial of appellant’s motion for a directed verdict.
Appellant’s second allegation of error is that the trial court abused its discretion in failing to declare a mistrial when a juror informed the court that he may have known the victim, Michael Cooksey. The juror, Mr. James Treat, came forward after the jury had been sworn and the other veniremen had been excused to tell the court that a man resembling Mr. Cooksey had inquired periodically about a job at Mr. Treat’s place of employment. (The record is unclear as to how Mr. Treat knew what the victim looked like.) Mr. Treat informed the court that he did not remember the man’s name, and that he could not be sure that the man was Cooksey. The court then questioned Mr. Treat about his ability to serve as an impartial juror:
THE COURT: Would that relationship with the deceased, if in fact it is the same person, have any effect on your sitting as a juror?
JURY MEMBER: No, it wouldn’t affect me, Judge. I just wanted to report it.
THE COURT: I appreciate that, but do you think you couldn’t serve as a fair and impartial juror, even though this is the one that approached you at your job?
JURY MEMBER: No.
The court denied appellant’s motion for a mistrial.
We addressed an analogous situation in Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986). In that case, a juror came forward after the trial began to inform the court that he remembered meeting the prosecuting rape victim several years earlier at her place of employment. We found no abuse of discretion in the trial court’s refusal to declare a mistrial after the juror stated that his previous acquaintance with the rape victim would not affect his ability to be a fair and impartial juror. We recognized that situations involving an innocent failure to recognize the victim initially are clearly distinguishable from those cases where a juror intentionally gave false information during voir dire. Id.
In the instant case, we find no evidence that Mr. Treat intentionally withheld information during voir dire. Furthermore, assuming that the victim was the man Mr. Treat had seen at his place of employment, the information concerning the prior relationship was so tangential that we will not presume prejudice. Mr. Treat’s acquaintance with the man he had seen at the work was so limited that he could not even recall the man’s name. In cases such as this one, where a juror’s withheld information is neither material nor intentionally withheld, we will not find that the trial court abused its discretion in refusing to declare a mistrial. See Decker v. State, 717 S.W.2d 703 (Tex. Crim. App. 1986) (opinion on reh’g).
Finally, appellant asserts two challenges to the constitutionality of the capital murder statute. He first argues that the statute’s death penalty provision constitutes cruel and unusual punishment because of its arbitrary application. Since appellant did not receive the death penalty, he lacks standing to challenge the penalty’s alleged risk of arbitrary application. Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984); Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979).
Appellant also argues that we should declare the capital murder statute unconstitutionally vague because the elements of the offense overlap the first degree murder statute. We have previously rejected the vagueness argument regarding the overlap of capital felony murder and first degree murder. Sellers v. State, 300 Ark. 280, 778 S.W.2d 603 (1989); White v. State, 298 Ark. 55, 764 S.W.2d 613 (1989). In those cases, we held that the overlapping was constitutionally valid because there was no impermissible uncertainty in the definition of each offense. White, supra. We apply the same rationale to section 5-10-101 (a)(4) and hold that the offense of premeditated and deliberated capital murder does not violate the constitutional prohibition of vagueness.
In accordance with Ark. Sup. Ct. R. 11(f), we have examined the record and have determined that there were no rulings adverse to appellant which constituted prejudicial error. Accordingly, we affirm the conviction. | [
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Donald L. Corbin, Justice.
This is an appeal from a July 16, 1990 order of the First Division of the Chancery Court of Pulaski County holding appellant, Angela G. Gatlin, in contempt for failure to comply with a previous order of the court. Jurisdiction of this appeal is in this court pursuant to Ark. Sup. Ct. R. 29(l)(a).
Appellant makes three assignments of error, two of which are based on insufficient evidence. The third is based on the constitutionally guaranteed prohibition against imprisonment for debt. We find no merit in any of appellant’s arguments and affirm.
In a decree filed November 3, 1988, the chancellor granted appellee, T. Gary Gatlin, an absolute divorce from appellant. The decree provided for joint custody of their child, with no provision for child support or alimony. All marital assets were sold and the proceeds of the sale were divided between the parties. Included in the decree was an order that “the parties are each responsible for one-half of the indebtedness owed to the Internal Revenue Service. The parties are to make individual payment plans with the Internal Revenue Service for their portion. The Plaintiff is responsible for all other debts.”
On June 22,1989, appellee served appellant with a motion to show cause, asserting he had continued to make regular monthly payments on the Internal Revenue Service (hereinafter referred to as IRS) indebtedness. Appellee alleged that neither had appellant made payments to the IRS nor had she set up any payment plan with the IRS by which to discharge the indebtedness. On August 23,1989, the chancellor entered an order finding that appellant had made reasonable efforts to make payments to the IRS, but that no payments had been accepted by the IRS, as the appropriate documentation was not in appellant’s possession.
On March 22, 1990, appellee filed a motion with the court claiming to have made all payments to the IRS since the date of the decree. In the motion, appellee requested the court to order that he be responsible for making payments to the IRS and that appellant be required to make payments through the court payable to him until she paid her half of the indebtedness.
On June 28, 1990, appellee filed a second motion to show cause. He alleged that though appellant reportedly went to the IRS, she had not made any payments toward retiring the debt. The chancellor ordered appellant to appear on July 16, 1990, to show cause why she should not be cited for contempt of the previous order. A show cause hearing was held as scheduled and the court announced from the bench that appellant was in willful contempt of the November 3,1988 order of the court for failure to pay one-half of the indebtedness due the IRS. The court ordered appellant to be incarcerated until such time as she posted a $5,400.00 cash bond to absolve herself of contempt.
In its written order, which was filed July 17,1990, the court made the following findings:
3. That pleadings have been filed before this Court as to the contempt of Angela G. Gatlin in failing to comply with this provision of this Court Order on more than one occasion, and Angela G. Gatlin has continued, despite prior Motions, to fail to make payment on this indebtedness.
4. That evidence before the Court is that Angela G. Gatlin has been regularly employed since the date of the Decree and is now earning more than $ 1,700.00 per month.
6. That this Court finds Angela G. Gatlin to be in willful and open contempt of the Orders of this Court and to have made no attempt to pay this indebtedness since the Decree of this Court of November 3, 1988. Angela G. Gatlin is ordered to be held in the Pulaski County Jail until she has paid $5,400.00, being $4,600.00 she was ordered by the Court to pay on November 3,1988 and the $800.00 in interest which T. Gary Gatlin has been required to pay to the Internal Revenue Service due to her failure to pay her share of this indebtedness.
On July 18, 1990, appellant paid $5,400.00 to the Pulaski County Sheriff and was released from jail. The court in an Order of Release filed July 20, 1990, ordered that she be released from custody, that all contempt charges against her be dismissed, and that the funds be released to appellee’s attorney to forward to the IRS.
I.
THE COURT BELOW ERRED WHEN IT ISSUED A CONTEMPT CITATION BASED UPON INSUFFICIENT EVIDENCE THAT DEFENDANT HAD FAILED TO OBEY THE PREVIOUS ORDERS OF THE COURT.
In support of this point appellant first asserts that the findings made by the chancellor in the orders of August 23,1989, and July 17,1990, are inconsistent. She cites Leslie v. Leslie, 174 Conn. 399, 389 A.2d 747 (1978), for the proposition that where the court’s findings in a contempt proceeding are inconsistent and the conclusions are ambiguous to the extent they are irreconcilable, a remand for a new trial on the issue of contempt is required.
The order of August 23, 1989 was entered following a motion by appellant to modify visitation and custody and the counter motion by appellee for appellant to show cause for failure to comply with the order of the court to pay her portion of the indebtedness to the IRS. The court on August 23, 1989 recognized that appellant had not been in possession of the appropriate documentation to make payments to the IRS but that appellee provided her with the same that day. We fail to see that this order is so ambiguous or inconsistent with the other order as to require a new trial. Clearly appellant was still under order of the court to take necessary steps to retire one-half the debt to the IRS.
Appellant also maintains that fair play and due process require that she be put on notice as to what was required of her to avoid or to purge contempt. She maintains both that the November 3, 1988 order was too inconsistent to inform her of what she was required to do as it set neither a final payment date nor a minimum payment, and that prior to July 16, 1990, she was not ordered to pay the $800.00 interest which had accrued on her part of the debt. It is her position that she could not be incarcerated for failure to pay amounts she had never been ordered to pay by a written order of the court and, therefore, the inclusion of the $800.00 in the purge amount requires reversal of the contempt citation.
Disobedience of any valid judgment, order, or decree of a court having jurisdiction to enter it may constitute contempt; punishment for such contempt is an inherent power of the court. Hilton Hilltop, Inc. v. Riviere, 268 Ark. 532, 597 S.W.2d 596 (1980). The general rule is that before a person may be held in contempt for violating a court order, that order must be in definite terms as to the duties thereby imposed upon him and the command must be expressed rather than implied. Warren v. Robinson, 288 Ark. 249, 704 S.W.2d 614 (1986).
In the decree filed November 3,1988, the chancellor clearly ordered the parties “to make individual payment plans with the Internal Revenue Service for their portion” of the indebtedness. The record shows that appellant has not established a payment plan. After hearing appellant’s testimony, the chancellor found that she had made no payment toward retiring the debt.
Our review of a finding of contempt is limited to examining the findings of the trial court and we reverse only if the trial court’s decision is against the preponderance of the evidence. In the Matter of Brown v. Brown, 305 Ark. 493, 809 S.W.2d 808 (1991). From our review of the record before us, we are unable to say the order was indefinite or the trial court’s finding of contempt is clearly against the preponderance of the evidence.
II.
THE COURT BELOW ERRED WHEN IT ISSUED A CONTEMPT CITATION BASED UPON INSUFFICIENT EVIDENCE THAT DEFENDANT’S FAILURE TO OBEY THE PREVIOUS ORDERS OF THE COURT WAS WILLFUL.
In support of this point appellant makes the same argument she made previously concerning the inconsistent findings in the orders of August 23, 1989 and July 17, 1990. In her first argument, it was her position that a new trial was required. However, now she contends that a reversal of the contempt citation is required. For the reasons stated there, this argument is without merit.
Appellant also maintains that even if she failed to comply with the previous order of the court, her noncompliance was not willfull. She relies on Barker v. Barker, 271 Ark. 956, 611 S.W2d 787 (1981) in making the assertion that Arkansas case law demands that before a party may be incarcerated for contempt, the trial court must specifically find an ability to pay and a willful refusal to do so. She maintains that her uncontroverted testimony establishes that she was at all times unable to make substantial payments on the IRS debt, and that her inability to pay was the reason for her failure to comply.
We find no merit in this argument. The chancellor was not required to believe appellant’s testimony. After hearing appellant’s testimony regarding her income and expenses, the chancellor in making his ruling from the bench stated, “[sjhe’s had enough income to [make] at least some payment. She hasn’t made any.” In the order filed July 17,1990, he specifically found appellant “to be in willful and open contempt of the Orders of this Court and to have made no attempt to pay this indebtedness since the Decree of this Court of November 3, 1988.”
On appeal from a finding of contempt this court will reverse only where the finding of the chancellor is against the preponderance of the evidence. C.R.T., Inc. v. Brown, 269 Ark. 114, 602 S.W.2d 409 (1980). Based on the foregoing, we cannot say the chancellor’s finding willfulness in appellant’s failure to comply with his previous order is against the preponderance of the evidence.
III.
THE COURT BELOW ERRED WHEN IT ISSUED A CONTEMPT CITATION AND JAILED DEFENDANT FOR FAILURE TO PAY A DEBT TO A THIRD PARTY.
Appellant relies on the Ark. Const, art. 2, § 16 as limiting the court’s authority to use contempt proceedings to enforce its orders. Section 16 states that, “[n]o person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud.” Appellant maintains that while generally orders for alimony, maintenance or support are not considered debt for the purposes of the constitutional prohibition, an order for a property division is such a debt.
On July 25, 1990, appellant filed a motion to sequester the $5,400.00 until such time as an appeal could be taken from the contempt order. On July 26,1990, appellant filed a motion to set aside the entry of the July 18,1990 order pending a hearing on the July 25, 1990 motion.
On July 30,1990, a hearing was held to consider the two motions. Appellee’s attorney stated that she forwarded the funds to the IRS and that they were received there on July 26, 1990. Appellant’s counsel stated that following the July 16, 1990 hearings, the orders were entered without his knowledge, and, as the $5,400.00 was already paid to the IRS, the sequestration of the funds was a moot issue. He also said that at the hearing on the 16th he was in the process of making an argument to the court when the court made its ruling on the contempt issue and that he would like to make a record of that argument for purposes of appeal. The objection made for the record was that the court did not have authority to incarcerate someone for contempt of the court for failure to pay a third party debt. However, appellant’s counsel failed to obtain a ruling on the matter. Failure to obtain a ruling constitutes waiver of the issue on appeal. McDonald v. Wilcox, 300 Ark. 445, 780 S.W.2d 17 (1989).
For the reasons stated above we affirm the rulings of the chancellor. | [
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Tom Glaze, Justice.
Appellant was convicted for the capital murder of her mother, Gladys Crow, and sentenced to life imprisonment without parole. On appeal, she raises four points for reversal.
As background information leading to appellant’s arguments, we first relate some of the pertinent evidence introduced at trial that supports appellant’s conviction. Appellant’s accomplice, Donald Bates, told the police about the murder, and testified against appellant in exchange for a reduction of the charge to first degree murder and sentence of life imprisonment. The state’s evidence showed Ms. Crow was murdered the morning of October 3, 1989, and on October 31, 1989, her body was found partially submerged in a pond located on property owned by Sollie Sutliff. On November 1, Bates confessed to the police, and implicated the appellant as the one who actually killed Ms. Crow. Bates lived on property which he with another person purchased from Ms. Crow and her husband. They were in arrears on the property which was located adjacent to appellant’s. He said that appellant expressed concern that she believed her mother planned to disinherit her; therefore, she asked Bates to assist in a plan to murder her mother.
Ms. Crow was expected to arrive at appellant’s home on the morning of October 3, and appellant and Bates designed a plan so the appellant could use a crossbow to shoot an arrow through the window of her mobile home as her mother walked towards the home through a small gate. While various means had been discussed to achieve this objective, Bates testified that he was actually present that morning at appellant’s premises and, when Ms. Crow arrived and departed from her car, he suggested she walk through the small gate entrance. As Ms. Crow walked through the gate, the appellant shot her, but her wound was not fatal. Ms. Crow managed to return to her car and attempted to get away. However, by this time, appellant had run to the scene, and with Bates’s assistance, they were able to stop Ms. Crow’s car. Ms. Crow then passed out, and after Bates and appellant dragged her out of her car, appellant proceeded to shoot Ms. Crow with the crossbow two additional times at close range. Bates related how he and appellant disposed of Ms. Crow’s body, clothing, car and the arrows. Prior to Bates’s confession, the police had already found Ms. Crow’s car, which Bates had burned soon after the murder in order to get rid of the blood stains. After confessing, Bates took the police to where he and appellant had disposed of clothing and also the arrows used to shoot Ms. Crow. The officers were able to retrieve the clothing and two arrows from a creek.
Based upon Bates’s confession, the police obtained an arrest warrant for the appellant. As a result of two searches of appellant’s home, the officers found two diary sheets. These sheets of paper contained references to the murder and further implicated appellant. At the time of appellant’s arrest, she was a patient in a Texas hospital. With this background, we now turn to appellant’s first argument on appeal.
Upon the request of Johnson County Sheriff Eddie King, local Texas law enforcement officers effected appellant’s arrest at the Texas hospital. Appellant was on oxygen and attached to an I. V. The officers did a search incident to appellant’s arrest looking for possible weapons and removed a kitchen knife. While an officer remained in appellant’s room, another called Sheriff King who asked if a diary had been found during the search. Upon returning to appellant’s room, the Texas officer saw the diary, a brown three-ring notebook covered in foil, situated on a tray table about five to six feet from her bed. The officer seized the diary. Appellant argued at trial, and now on appeal, that the officers had unlawfully seized the diary, and the trial court erred in failing to suppress its introduction into evidence. We disagree.
Even though the officers did not have a search warrant to search appellant’s room, the law permits a search of the area within the immediate control of the person arrested. A.R.Cr.P. Rule 12.2. In State v. Risinger, 297 Ark. 405, 762 S.W.2d 787 (1989), we set out the following relevant Supreme Court’s discussion in Chimel v. California, 395 U.S. 752 (1969), of the “search incident to arrest” principle as follows:
[W]hen an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for search of the arrestee’s person and the area “within his immediate control”—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. (Emphasis added.)
In the present case, the record reflects that appellant’s diary was only five or six feet from her bed, and although she was on oxygen and attached to an I.V., she was able, on her own, to leave her bed and to walk. Thus, appellant undoubtedly had the capability to destroy the diary. The accessibility issue aside, the Chimel rule defines the area which may be searched, and is not constrained because the arrestee is unlikely at the time of the arrest to actually reach into that area. United States v. Palumbo, 735 F.2d 1095 (8th Cir. 1984).
Gruesome photographs are the subject of appellant’s second issue on appeal. In all, eight photographs of the victim’s body were introduced into evidence. The victim’s body was partially decomposed, because the body had been submerged in the pond for almost a month. At the trial below, the appellant’s attorney only objected to two photographs, exhibits nine and ten. While on appeal, the appellant’s argument includes all the photographs, we can only address her arguments on exhibits nine and ten, since she did not properly object to the other photographs. As we have stated countless times, we will not consider arguments raised for the first time on appeal. See, e.g., Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
We have held that admissibility of photographs rests within the sound discretion of the trial court, and its decision will not be reversed without a showing of clear abuse of discretion. Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). Even inflammatory photographs are admissible if they tend to shed light on an issue, if they are useful to enable a witness to better describe the objects portrayed, or if they better enable the jury to understand the testimony. Id. In Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986), this courtwarned trial judges against the “carte blanche” acceptance of gruesome photographs. In Berry, the court found that six, mostly repetitious, gory, color photographs of the victim’s face were of little probative value and could do nothing but inflame the jury. This court has also held that a defendant cannot admit the facts portrayed and thereby prevent the state from putting on its proof. Cotton v. State, 276 Ark. 282, 634 S.W.2d 127 (1982).
Applying this law to the present case, exhibits nine and ten were three by five color photographs of the victim’s body after it had been removed from the pond. The body is partially enclosed in a yellow body bag. The pictures show the rope tied around the victim’s body which was used with the concrete blocks pictured in exhibit eight to weigh the body down in the pond. These are the only pictures that show the rope still tied around the body.
This court has upheld the admittance into evidence of photographs of a body removed from a pond. See Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979). Here, the state had to corroborate Bates’s account of the murder and hiding of the victim’s body, and, in order to do so, it was necessary for the state to show the ropes attached to her body. Not only are these photographs mild compared to the others not objected to, there is nothing to suggest that the trial judge accepted the state’s photographs “carte blanche.” In sum, the challenged photographs were necessary for the state to prove its case, and the trial court was correct in admitting them into evidence.
Appellant next argues that the trial court erred in allowing Officer Jerry Dorney to read and explain an entry the appellant had made in her diary. In sum, appellant contends Dorney’s testimony was not admissible under Ark. R. Evid. 701 as lay opinion testimony, nor was he qualified to testify as an expert on the subject.
First, we mention the appellant’s argument on appeal touches on fourteen entries in appellant’s diary, but she only interposed an objection to the first diary entry read by Donrey. The diary entries related to topics other than the mere mention of crossbows and arrows. Only the objections raised at trial level are deemed properly before this court; all others are considered waived. Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990).
The entry as read by Donrey, and to which appellant objected, is as follows:
[T]he first entry is on Thursday, February 9th, 1989. It’s some notations at the bottom of the page. It has Fox Fire, Sport Fire and Spit Fire listed and by the side of each of those is the number, the dollar amount, two hundred sixty-two. There’s a notation that says, most energy effect. Thirty, thirty-five, forty, sixty yards deadly; a hundred fifty pound pull; forty dollars for cocking device. Arrows, four dollars each ....
After overruling appellant’s objection, the prosecutor asked Dorney to tell the jury what, in view of his investigation, was the above entry referring to, and Dorney answered as follows:
Okay. It shows that she was comparing cross bows, their pound pull, distance in which they are effective, price of the arrows. She was looking for the best buy on a cross bow.
Dorney’s response was based at least in part from his investigation and acquired knowledge of crossbows and their brand names. Obviously, a juror without experience or knowledge of crossbows would not know what Fox Fire, Sport Fire and Spit Fire referred to. Under Ark. R. Evid. 701, when a witness is not testifying as an expert, his or her testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness and are helpful to a clear understanding of his or her testimony or the determination of a fact in issue. We have stated that Rule 701 is not a rule against opinions, but is a rule that conditionally favors them. Carton v. Missouri Pac. R.R., 303 Ark. 568, 798 S.W.2d 674 (1990). On these facts, we cannot say the trial court abused its discretion in allowing Dorney’s testimony. See Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991).
We cannot address the appellant’s fourth argument challenging the sufficiency of the evidence corroborating Bates’s testimony, because appellant failed to renew her motion for directed verdict at the close of the case as is required by A.R.Cr .P. Rule 36.21(b). See Ferrell, 305 Ark. 511, 810 S.W.2d 29; Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991). This rule is applicable in life cases, as well. Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991).
Under Rule 11(f) of the Rules of the Supreme Court and Court of Appeals, an examination has been made of all other rulings adverse to appellant, and none of them constitute prejudicial error. For the reasons stated above, we affirm. | [
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Steele Hays, Justice.
In this appeal from a rape/incest conviction, the appellant argues the trial court was without jurisdiction and the evidence was insufficient. Neither point is persuasive.
The state filed an information charging appellant, William DeWitt, with two counts of rape and one count of incest. Both rape counts alleged that appellant:
did on or before the 20th day of November 1988, engage in deviate sexual activity with another person who is less than fourteen years of age, with all acts occurring in Greene County, Arkansas.
The incest count alleged that appellant:
did on or before the 9th day of November 1989, being sixteen years or older, engage in deviate sexual activity with a person he knows to be a stepchild with all said acts occurring in Greene County, Arkansas.
A jury trial resulted in appellant being convicted of all three counts with a sentence of thirty years on each count of rape and ten years on the count of incest. The two thirty year sentences were ordered to run consecutively and the ten year sentence concurrently.
Appellant first argues the trial court lacked jurisdiction to try the two rape counts, based on insufficient testimony indicating the exact location of the crimes.
Appellant moved from Louisiana to Greene County, Arkansas, along with his wife and stepdaughter. The record shows that from that time on appellant committed sexual criminal acts with the stepdaughter, who was twelve at the time of this move. Appellant argues that the trial court was without jurisdiction to hear this case, relying on Ark. Code Ann. §5-1-111(1987) which provides:
Burden of proof-Defenses and affirmative defenses-Presumption.
(a) Except as provided in subsections (b), (c), and (d) of this section, no person may be convicted of an offense unless the following are proved beyond a reasonable doubt:
(1) Each element of the offense;
(2) Jurisdiction;
(3) Venue; and
(4) The commission of the offense within the time period specified in § 5-1-109.
(b) The state is not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows that the court lacks jurisdiction or venue.
We have dealt with this issue before and have found that the requirement of proof of jurisdiction under § 5-1 -111 (a) is tempered by section (b) of the same statute. We responded recently to the same argument in Dix v. State, 290 Ark. 28, 715 S.W.2d 879 (1986):
The state need not prove jurisdiction however, “unless evidence is admitted that affirmatively shows that the court lacks jurisdiction.” § 5-1-111. In Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. den., 440 U.S. 911 (1979), we held that before the state is called upon to offer any evidence on the question of jurisdiction, there must be positive evidence that the offense occurred outside the jurisdiction of the court.
We find in this case that there was not “positive evidence” that the crime occurred outside the jurisdiction of the state, and hence no error.
Appellant cites testimony which he submits is “positive evidence” that the offense occurred outside the jurisdiction of Arkansas. The most that can be said of that evidence is that while it may imply that the first offense occurred during the trip from Louisiana, and hence, before reaching Arkansas, the proof also established that the crime was repeated numerous times after the arrival in Arkansas. The affirmative proof that jurisdiction in Arkansas is lacking is even weaker than in other cases where we found the evidence suggesting lack of jurisdiction to be insufficient. See Dix v. State, supra; Richards v. State, 279 Ark. 219, 650 S.W.2d 566 (1983).
Secondly, appellant argues the state failed to prove beyond a reasonable doubt that the two counts of rape occurred before the victim was fourteen years of age.
The charge of rape was based on Ark. Code Ann. §5-14-103 (1987):
(A) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
* * *
(3) Who is less than fourteen years of age.
Appellant argues the state failed to prove that he committed the two counts of rape when the victim was less than fourteen years old. The argument is a claim that the state failed to prove an element of its case and therefore the information should be dismissed for lack of substantial evidence.
This is a challenge to the sufficiency of the evidence and it has been waived. In a jury trial, the defendant’s failure to move for a directed verdict at the conclusion of evidence presented by the prosecution and at the close of the case constitutes a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict. Ark. R. Crim. P. 36.21(b); Starling v. State, 301 Ark. 603, 786 S.W.2d 114 (1990). Appellant made no directed verdict motions, either at the end of the state’s case or the end of all the evidence.
Affirmed. | [
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Per Curiam.
Appellant, James E. Bush, through his attorney, has tendered the record in this case, but the clerk has notified his attorney that the record on its face appears to be without the time allotted for docketing. Appellant insists the clerk is in error in refusing to file the record and has filed a motion for a rule on the clerk. See Rule 5 of the Rules of the Supreme Court and Court of Appeals. The rule is denied.
On January 30, 1991, the final decree was entered. On that same day the appellant filed a motion for a new trial. On February 8, 1991, he filed a notice of appeal. On February 27, 1991, the Chancellor took his motion under advisement and, on June 24, 1991, denied it. Appellant filed his second notice of appeal on July 15, 1991.
In 1988, we significantly amended Rule 4(c) and (d) in an effort to simplify Arkansas appellate practice.
Rule 4(c) of the Rules of Appellate Procedure now provides:
(c) Disposition of Posttrial Motion. If a timely motion listed in section (b) of this rule is filed in the trial court by any party, the time for appeal for all parties shall run from the entry of the order granting or denying a new trial or granting or denying any other such motion. Provided, that if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion will be deemed denied as of the 30th day. A notice of appeal filed before the expiration of the 30-day period shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion or from the expiration of the 30-day period. No additonal [additional] fees shall be required for such filing. (Emphasis added.)
A part of the Reporter’s notes to the foregoing rule provides:
Thus, the 1988 amendment follows the more simplified procedure established in the federal rule, but adds a 30-day “window” for judicial action on postrial motions to prevent problems with excessive delay. Under Rule 4(c), a motion is deemed denied if the trial court neither grants nor denies the motion with 30 days of its filing, and, under Rule 4(d), the time for filing the notice of appeal begins to run at the end of that 30-day period. If, however, an order granting or denying the motion is acted upon within the 30-day period, the time for filing the notice of appeal begins to run upon entry of the order.
Appellant cites a number cases construing an older version of the rule. Under the older version of the rule, the 30-day period for filing a notice of appeal ran from the expiration of 30 days after the motion for a new trial was filed unless the motion was set for a hearing or was taken under advisement within 30 days after it was filed. See, e.g., Watts v. Reynolds, 286 Ark. 425, 692 S.W.2d 247 (1985). Rule 4(c) no longer contains the italicized language, and the cases interpreting the older version of Rule 4(c) are to be distinguished.
Rule denied. | [
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Steele Hays, Justice.
Appellant Anthony Pacee appeals from a judgment on conviction of four counts of violation of the Arkansas Uniform Controlled Substance Act and felon in possession of a firearm, resulting in concurrent sentences of twenty, twelve, twelve and life. Sentencing was enhanced by reason of prior convictions.
Appellant presents four issues on appeal: one, the trial court erred in denying a motion to quash the jury panel and declare a mistrial because of improper use of peremptory challenges by the prosecutor; two, there was insufficient evidence linking appellant to the contraband seized from his residence and from a vehicle; three, the trial court erred in not allowing appellant or his counsel to testify at either the guilt or punishment phase concerning appellant’s .attempts at compliance with a plea bargain agreement; and four, it was error to admit state’s exhibits two, three and four as evidence at the penalty phase of the trial.
I
Appellant is a fifty-one year old black male. He was tried by a panel consisting of eleven white and one black jurors. After the jury was seated, but prior to its being sworn, appellant moved to quash the venire and declare a mistrial upon the contention that the state had used its peremptory challenges to strike five of six black prospective jurors in violation of Batson v. Kentucky, 476 U.S. 79 (1986). The court retired to chambers where counsel for the state explained the reasons behind his strikes. Four of the five jurors excused by the state had served on juries during the current terrti. Ms. Westbrook had served on a jury which had been unable to reach a verdict in a criminal trial. Additionally, she had demonstrated some “preconceived notions” that the use of undercover agents in drug arrests was improper. (A. p. 55). Appellant’s brief tacitly concedes that the state was justified in excusing Ms. Westbrook. Another juror, Robert Smith, had served on a jury in a criminal trial which had been unable to reach a verdict and was believed to have made disparaging remarks about a prospective witness, Officer Lancaster. Two of the five, Grigsby and McDaniel, had served as jurors in criminal trials which had difficulty in arriving at a verdict and had been unable to agree on a sentence. Additionally, Ms. McDaniel was believed by the state to be an acquaintance of some individuals who frequented Pacee’s trailer where drugs were allegedly sold and used. As to the remaining juror, Ms. Carson, the state contends that her demeanor and her relationship with a witness in a recent criminal trial whose testimony the state regarded as perjured, rendered her subject to peremptory challenge. The state’s sixth and final peremptory challenge was used to excuse Wilma Williams, a white juror, who like other members of the panel, had served on a hung jury in a criminal trial. The appellant submits these reasons are insufficient.
In Batson v. Kentucky, supra, the United States Supreme Court, while recognizing that a prosecutor ordinarily is entitled to exercise permitted peremptory challenges “for any reason at all, as long as that reason is related to his view concerning the outcome” of the case to be tried [citing United States v. Robinson, 421 F.Supp. 467 (Conn. 1976)], held that the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on the basis of race, or the assumption that black jurors as a group will be unable impartially to consider the state’s case against a black defendant. If a discriminatory pattern in the use of peremptory challenges is demonstrated, the burden shifts to the state to come forward with a neutral explanation for challenging black jurors. The Batson court noted that while the scope of peremptory strikes was thus limited somewhat in relation to its historical exercise, the prosecutor’s explanation need not rise to the level justifying the exercise of a challenge for cause. Batson at 97. This court has applied the law adopted in Batson, procedural and substantive, in several recent cases: Thompson v. State, 301 Ark. 488, 785 S.W.2d 29 (1990); Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989); White v. State, 298 Ark. 55, 59, 764 S.W.2d 613 (1989); Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988); Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987). Ford v. State, 296 Ark. 8, 20, 753 S.W.2d 258 (1988); and see Shields v. State, 29 Ark. App. 141, 143, 778 S.W.2d 649 (1989). We have said that the standard by which we review the trial court’s evaluation of the sufficiency of the prosecutor’s explanation is whether those findings are clearly against a preponderance of the evidence. Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990).
In view of the state not having used all of its peremptory challenges to exclude members of the appellant’s race, or appellant having been tried by an all white jury, and the fact that the state’s explanations were found by the trial court to be sustained by the preponderance of the evidence, we reject the argument that a Batson violation has been demonstrated. However, we reach that conclusion because of the record presented. The notice of appeal designates the entire record as the record on appeal, yet a notation from the court reporter reflects that at the direction of counsel for the appellant the voir dire was excluded from the transcript. Thus we are deprived of that critical portion of the trial proceedings which would enable us to consider “all relevant circumstances” [Batson, 476 U.S. at 86-97] from which to determine how and why peremptory challenges were used or withheld, and whether the state’s explanations are race neutral and credible. We note the nonuse of peremptory challenges may be just as relevant as the use, because it sometimes develops that the state’s purported reason for striking a venire person of one race is not exercised in a neutral manner. See, for example, Floyd v. State, 511 So.2d 762 (Fla. Dist. Ct. of App. 1987), and cases cited in an exhaustive treatise on issues arising in the wake of Batson. A. Raphael, Discriminatory Jury Selection: Lower Court Implementation of Batson v. Kentucky, 293 Williamette L. Rev. 297 (1989). Before leaving the matter of the state’s explanation for its strikes, we point out that the state’s explanation that Ms. Carson was struck because of her “demeanor” could not withstand scrutiny for lack of specificity.
Appellant argues that the prosecutor failed to question several of the five panelists, arguing that grounds for peremptory challenge must be established by interrogation during voir dire. No authority is cited for this position and we are not persuaded. Certainly the prosecutor must be prepared to defend a strike on race neutral grounds if a sensitive inquiry is conducted, but we know of no reason why that ground, if sufficient, must be developed by question and answer. For that matter, it would not be permissible for the prosecutor to ask venire persons how they had voted on a case that had ended in a hung jury.
The state urges that appellant’s objection under Batson was untimely, since it did not come until the jury was seated. It is the state’s position that the objection must be advanced at the first opportunity, that is, when the first strike is used and, which is subject to challenge under Batson. But we are not convinced that a “pattern of discrimination” is demonstrated, at least for purposes of preserving the point for review, when the first member of a minority class is struck. So long as the objection is made before the jury is sworn, we regard it as timely. Stanley v. State, 313 Md. 50, 542 A.2d 1267 (1988). It has been suggested that panelists who have been struck not be released until the jury is sworn. In that manner reversible error can be averted should the trial court, after hearing the state’s explanation, decide the state’s grounds are insufficient and order the juror reinstated. That procedure appears sound.
II
Appellant claims the trial court should have granted a directed verdict of acquittal in that there was no proof that appellant was in constructive possession of contraband forming the basis of the four counts with which he was charged. Appellant cites Cerda v. State, 303 Ark. 241, 795 S.W.2d 358 (1990), as holding that constructive possession can only be inferred where the contraband is found in a place “immediately and exclusively accessible to the defendant and subject to his control.” He maintains that since there were two women present, the contraband could not have been exclusively in appellant’s control. The argument presupposes that a showing of joint possession or occupancy of premises where drugs are located defeats a charge of constructive possession. That is a misconception. When the facts demonstrate that the defendant’s accessibility is not exclusive, the state must show additional factors to establish possession. Osborne v. State, 278 Ark. 45, 643 S.W.2d 25 (1982); Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988). Since appellant’s brief fails to address this point further, we will observe only that the two women were not residents of the trailer and, in fact, had never been there previously. Furthermore, the briefcase in which drugs and drug parapernalia were found contained records identifying the appellant. A vehicle containing illegal items was registered in his name. It is enough for the state to prove two elements: 1) that the appellant exercised care, control and management over the contraband and 2) he knew the material possessed was contraband. Id.
Ill
Appellant assigns error to the trial court’s refusal to permit appellant to testify with reference to plea bargaining negotiations between the state and the appellant which evidently did not materialize. The trial court excluded the evidence on grounds of relevancy. Since we find neither a proffer nor any clear account of what the evidence would have been, we cannot say the trial court’s ruling was an abuse of discretion. Counsel for appellant then asked that the evidence be introduced in the penalty phase as a matter of mitigation, with respect to which the trial court expressed some doubt. The outcome was that the trial judge reserved judgment on the prospective offer of this proof and the request was never renewed. Appellant’s failure to obtain a ruling is fatal. Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989).
IV
In the penalty phase of the trial the state purported to show that appellant, Anthony Curtis Pacee, had two prior felony convictions. State’s exhibit one reflects a felony conviction with a sentence of five/ten years in the United States District Court for the Southern District of California for possession of a controlled substance with intent to distribute. Appellant does not controvert this conviction. State’s exhibit two reflects a felony conviction in the Superior Court of Los Angeles County, California, for first degree robbery by Anthony C. Pace. Appellant objected to the introduction of exhibit two because the surname is Pace rather than Pacee. Exhibits three and four are records of the Department of Justice, Bureau of Criminal Identification, listing some sixteen alias assumed by appellant between 1956 and 1976 involving criminal offenses in California in the vicinity of Los Angeles. The state contends the appellant’s connection to these alias is evidenced by the number assigned by the FBI to Pacee893 989 C. Appellant’s objection to exhibits three and four is that they are not certified by the custodian or other official of the Department of Justice as being true and correct copies. But our statute provides that a previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trial court beyond a reasonable doubt that the defendant was convicted or found guilty. Arkansas Code Ann. § 5-4-504 (1987). We think these documents more than satisfy that requirement.
Affirmed.
In Edmonston v. Leesville Concrete Co., Inc.,_U.S_, 111 S. Ct. 207 (1991), the Batson principle was extended to civil trials.
Alias: Curtis Lee Jacobson, Jr; Curtis Lee Jacobs; Curtis Junior Jacobson; Lee Jacobs Prentice; Anthony Curtis Pace; Curtis Pace; Anthony Pase; Anthony Cornilius Pase; Anthony Cornilius Pasee; Anthony C. Passee; Tony Cornelius Passe; Cornelius Passe; A.C. Pacee; Tony C. Pacee; Anthony Passe; A.C. Passe. | [
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David Newbern, Justice.
This is a negligence case in which we review a directed verdict granted to the defendants. Mary Alissa Harris worked as a housekeeper in the home of the appellees, Thomas and Gladys Kay. Subsequent to the incident which gave rise to her claim against the Kays, she married their son and is now Mary Alissa Harris Kay, the appellant. For ease of identification, the appellees will be referred to as “the Kays,” and Mary Alissa Harris Kay will be referred to as “Mary.”
Mary was bitten by a brown recluse spider while working in the Kays’ home, and she sustained a serious injury and substantial medical expenses as a result of the bite. Mary’s complaint alleged the Kays knew of “the presence of spiders in their home and did nothing to make the premises safe” for her. At the conclusion of Mary’s case-in-chief, the Trial Court granted the Kays’ directed verdict motion. We affirm the judgment because Mary’s evidence was insufficient to prove the Kays failed to honor the duty they owed to Mary as an invitee in their home.
Mary testified she had observed spider webs, cobwebs, and other signs of insects in the Kays’ house. She discussed the matter with the Kays who advised her they would take care of the problem. She said they did not take care of it, and when she later returned to the house to clean she was bitten by the brown recluse spider while cleaning cabinets.
Mary’s husband, Danny Kay, testified he usually sprayed the Kay’s home for insects and had done so for several years, but he had not been asked to spray in March of 1990.
In the course of giving his oral ruling granting the Kays’ motion for directed verdict, the Trial Court stated that Mary was an employee and not an invitee. While we have no case stating flatly that an employee working on her employer’s premises is an invitee, we have no doubt that is the law. In Coleman v. United Fence Co., 282 Ark. 344, 668 S.W.2d 536 (1984), we held the plaintiff was a trespasser and contrasted an invitee as “one induced to come onto property for the business benefit of the possessor,” citing W. Prosser, Law of Torts § 58 (4th ed. 1981). In Daniel Const. Co. v. Holden, 266 Ark. 43, 585 S.W.2d 6 (1979), we held that an employee of a subcontractor lost his “business invitee” status when, for a personal purpose, he stepped off the portion of the premises where his job required him to be and was injured. The clear implication was that, had the employee remained on the premises controlled by the general contractor, his status would have been that of “invitee.” We have no doubt that Mary was an invitee when she was working at the Kays’ residence at their invitation.
The licensee-invitee distinction was, however, not the basis of the directed verdict. The Trial Court stated that even if Mary were an invitee and thus owed the duty of ordinary care to protect her from harm, there was no evidence that the Kays violated that duty. We agree with the Trial Court’s conclusion.
Cases arising from insect bites to invitees are few. The only one cited by the Kays is Brunnell v. Signore, 263 Cal. Rptr. 415, 215 Cal. App.3d 122 (4th Dist. 1989). In that case a guest in a vacation home was bitten by a brown recluse spider and sued the owner of the premises alleging negligence in failure to maintain the property properly and failure to warn of a dangerous condition. Summary judgment was awarded to the defendant. The rationale of the Court of Appeals in affirming was as follows:
[An] owner or occupier of a private residence does not have a duty to protect or prevent bites from harmful insects where: (1) it is not generally known that the specific insect is indigenous to the area; (2) the homeowner has no knowledge that a specific harmful insect is prevalent in the area where his residence is located; (3) the homeowner has on no occasion seen the specific type of harmful insect either outside or inside his home; and (4) neither the homeowner nor the injured guest has seen the specific insect that bit the guest either before or after the bite occurred. To impose a duty under these circumstances, where the owner or occupier of the premises had no reason to anticipate or guard against such an occurrence would be unfair and against public policy. Imposition of a duty even in those cases where the homeowner shared general knowledge with the public at large that a specific harmful insect was prevalent in the area but the homeowner had not seen the specific harmful insect either outside or inside his home would impose a duty on the owner or occupier of the premises that would also be unfair and against public policy. In either of these instances, the burden on the landowner would be enormous and would border on establishing an absolute liability. Further, the task of defining the duty and the measures required of the owner or occupier of private residences to meet that duty would be difficult in the extreme.
A few other cases are collected in Annot., Injuries to Patron Caused by Insect, 48 ALR3d 1257 (1973). Liability to a business invitee on the basis of failure to exercise ordinary care to make premises safe or give a warning has been upheld where the same or a similar insect or rodent, which has been seen previously on the premises,caused the injury. CeBuzz, Inc. v. Sniderman, 171 Colo. 246, 466 P.2d 457 (1970) (spider); Williams v. Milner Hotels Co., 130 Conn. 507, 36 A.2d 20 (1944) (rat). In cases where there has been an injury from such an incident but there has been no showing of knowledge on the part of the owner or occupier of the premises of the existence of the specific danger and no showing of acts or omission amounting to negligence resulting in the injury, verdicts directed in favor of the defendants have been affirmed. Cunningham v. Neil House Hotel Co., 33 N.E.2d 859 (Ohio App. 1940); Hillwertz v. Parkes, 298 F.2d 527 (6th Cir. 1962) (applying Ohio law).
In reviewing the directed verdict against her, we give Mary’s evidence its strongest probative force. See Harper v. Missouri Pacific R. Co., 229 Ark. 348, 314 S.W.2d 696 (1958). The fact that she had told the Kays of having seen evidence of insects, including spider webs, and the Kays’ assurance that they would take care of the problem, do not, in our judgment, constitute the proof required in the Brunelle case or in the cases where liability to an invitee for an insect bite has been upheld. There was no showing that any kind of spider, much less a brown recluse, had been actually seen on the premises, nor was there evidence that such a harmful insect had ever been seen in the area in which the home was located. There was no evidence from which it could be determined how or, more importantly when, the spider came upon the premises. In these circumstances, we agree with the rationale of the California Court of Appeals that it would be unfair and a virtual declaration of absolute liability to hold the Kays responsible for Mary’s injury.
Affirmed.
Hays and Brown, JJ., dissent.
Glaze, J., not participating. | [
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Donald L. Corbin, Justice.
Appellants, Jerry Glen Seyller and Alma Katherine Seyller, appeal a judgment of the Arkansas County Chancery Court imposing a materialman’s lien on their property in favor of appellee, Pierce and Company, Inc. We find no error in the trial court’s judgment and affirm.
The facts giving rise to the lien in question began when appellant Jerry Seyller consulted his long-time friend Tom Hollman regarding the construction of a metal building for appellants’ wholesale electric business, Seyller Electric, Inc. On June 26, 1989, appellant Jerry Seyller signed a contract for the commercial construction project he discussed with Mr. Hollman. Appellant Alma Seyller did not sign the contract. The contract was written on the letterhead of Ray & Ray Metal Buildings, Inc. (RRMB) and signed by Mr. Hollman as authorized agent of RRMB. RRMB is a corporation holding a valid contractor’s license. Although RRMB was appellants’ general contractor, it did not perform the actual construction for the Seyller Electric project; rather, another corporation, Steel Building Manufacturers, Inc. (SBM) performed the construction. SBM was not a licensed contractor.
Mickey Pierce, president of appellee Pierce and Company, contacted Mr. Hollman seeking to supply ready-mix concrete for the Seyller Electric project. In August and September of 1989, appellee executed two written agreements concerning the concrete for appellants’ building. These agreements were addressed to Mr. Hollman at Ray & Ray Construction Company, Inc. (RRCC) and signed by Mr. Hollman as agent of RRCC. Mr. Hollman was employed as a salesman by both RRMB and RRCC. RRCC was not a licensed contractor.
The testimony of Larry Holleman, an accountant and former Secretary/Treasurer of SBM and RRMB, revealed that RRMB was a shell corporation formed for the purpose of obtaining a valid contractor’s license. Mr. Holleman explained that RRCC, along with several other corporations, was merged into a separate corporation, SBM, in January 1985. SBM continued to do business as RRCC. When SBM was unable to obtain a contractor’s license, RRMB was formed and incorporated on June 9, 1986. RRMB obtained a contractor’s license and, as Mr. Holleman testified was the standard operating procedure of the companies, served only as a general contractor to enter contracts with property owners. SBM would then perform the actual construction and arrange any necessary subcontracting. When RRMB received payment for the construction, it would in turn make payment to SBM. Mr. Holleman testified that the foregoing standard procedure was followed on the Seyller Electric project.
Appellee had not received payment for the concrete it supplied to SBM d/b/a RRCC when construction on the Seyller Electric project was halted before completion. Appellee thus filed suit to establish a lien on appellants’ property pursuant to Ark. Code Ann. § 18-44-101 (1987). The trial court ruled in appellee’s favor establishing a lien on appellants’ property for $29,858.30, the amount of the concrete supplied to SBM d/b/a RRCC for appellants’ construction project. The judgment ordered a sale of appellants’ property with proceeds applied to the $29,858.30 owed appellee. Appellants appeal claiming appellee did not strictly comply with the requirements of our materialmen’s lien statute. Alternatively, appellants claim the lien is unenforceable against appellant Alma Seyller’s interest in the property. We find no merit to appellants’ claims.
As their first argument on appeal, appellants assert the trial court erred in finding the necessary contract required by our materialmen’s lien statute, section 18-44-101. The statute reads in pertinent part:
(a) Every mechanic, builder, artisan, workman, laborer, or other person who shall. . . furnish any material, . . .for any building,. . . upon land,. . . under or by virtue of any contract with the owner or proprietor thereof or his agent, trustee, contractor, or subcontractor, upon complying with the provisions of this subchapter, shall have, for his . . . materials,. . . furnished, a lien upon the building, . . . and upon the land belonging to the owner
Pursuant to this statute, the trial court found there was an enforceable contract between appellee and RRMB, appellants’ general contractor, sufficient to support a materialmans’ lien. Appellants claim-that-section 18-44-101 requires appellee, as a potential lien claimant, to have a contract with either themselves, as property owners, or with another party who has a contract with them. Appellants argue appellee did not meet this requirement because appellee’s contract was with SBM d/b/a RRCC; appellants did not have a contract with SBM d/b/a RRCC as their contract was with the separate entity, RRMB.
Appellants are correct in stating the statute requires appellee to have either a contract with them or with someone with whom they have contracted. Appellants are incorrect, however, in asserting that no such contract exists.
The requirement of the statute has been met and the trial court was correct in so holding, for the statute clearly provides that “a lien can be created if a contract is shown to exist between a materialman and a contractor representing the owner. The necessary contract can be by express agreement or implied from the circumstances or conduct of the parties.” Gillison Discount Bldg. Materials, Inc. v. Talbot, 253 Ark. 696, 698, 488 S.W.2d 317, 319 (1972).
The necessary contract between appellee and appellants’ contractor, RRMB is found through the principles of agency and an implied agreement. Larry Holleman’s testimony, as related at the beginning of this opinion, revealed that the common practice of RRMB was to assign all its contracting authority to SBM. SBM would then perform the construction contracts and arrange any necessary subcontracts. Mr. Holleman testified this was the standard procedure of the two companies and that it was followed in the Seyller Electric project. From these facts, we conclude SBM d/b/a RRCC was an agent of RRMB. See Evans v. White, 284 Ark. 376, 682 S.W.2d 733 (1985). Thus, as section 18-44-101 requires, and in the language of Gillison, supra, a contract “exist [s] between a materialman [appellee] and a contractor representing the owner [SBM d/b/a RRCC].” Gillison, 253 Ark. at 698, 488 S.W.2d at 319.
Appellants claim the trial court, in effect, “pierced the corporate veil” to find the necessary contract existed, and that to do so was error in this particular case. We cannot agree with this contention. The trial court’s judgment is silent with respect to piercing any corporation’s veil and it is not necessary to do so to find a contract between appellee and RRMB. Appellee had a contract with SBM d/b/a RRCC, who was an agent of appellants’ contractor, RRMB.
As their second claim on appeal, appellants argue appellee did not comply with the notice provisions of the materialmen’s lien statute. Specifically, appellants claim they should have received pre-construction notice of any potential liens as required by Ark. Code Ann. § 18-44-115 (1987). It is undisputed that appellants did not receive the requisite notice. Appellee responds with the argument that appellants were not entitled to the preconstruction notice because the construction involved was “commercial construction” which is excepted from the notice requirement by section 18-44-115(f). Because we have recently held the commercial construction exception to the notice requirement unconstitutional on equal protection and due process grounds, Urrey Ceramic Tile Co. v. Mosley, 304 Ark. 711, 805 S.W.2d 54 (1991), we must make a threshold choice of law determination regarding which law applies to the current case. In other words, we must first decide whether to apply Urrey retroactively to this case which was pending before us when Urrey was decided.
We have stated that once a statute is declared unconstitutional, it is treated as if it had never been passed. Bob Hankins Distrib. Co. v. May, 305 Ark. 56, 805 S.W.2d 625 (1991); Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981). However, in this particular case, to treat the statute as if it had never been passed would require us to ignore the well-settled rule that even constitutional arguments are waived on appeal unless raised below. Smith v. City of Little Rock, 305 Ark. 505, 806 S.W.2d 371 (1991). Thus, before addressing the merits of appellants’ second argument, we must make a choice of law. In other words, we must decide if Urrey is applicable to the present case such that section 18-44-115(f) is considered never to have existed; or, if because appellants failed to preserve the constitutional argument for appellate review, is Urrey not applicable to the present case such that sections 18-44-115(f) is considered to exist in this case.
In reaching our determination of the applicability of Urrey we consider the recent decision, James B. Beam Distilling Co. v. Georgia, _U.S_, 111 S. Ct. 2439 (1991), where a plurality of the United States Supreme Court stated its position on the retroactive application of a decision to claims arising on facts antedating the decision. That position, as stated by Justice Souter who announced the judgment of the Court, is that once the Court has applied a rule of law to the litigants in one case, it must apply the same rule of law to all other litigants not barred by procedural requirements or res judicata. Thus, having no procedural bars, James B. Beam Distilling Company, as petitioner, received the benefit of a prior decision of the Court, Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984), although it did not begin to litigate its case until after the Bacchus decision was rendered.
It is important to note that petitioner James B. Beam Distilling Company was not barred by res judicata, a statute of limitations, or other procedural requirements from litigating its case. In that respect, the factual situation in James Beam differs from the factual situation in the current appeal. Here, appellants are barred by the procedural requirement of preserving an issue in the trial court for our review. It is true that in their answer appellants asserted the materialmen’s lien statute violated the Fourteenth Amendment of the United States Constitution and Ark. Const, art. 2, § 3; however, something more than a mere assertion of an argument in the pleadings is required to preserve an issue for appellate review. In Bond v. Dudley & Moore, 244 Ark. 568, 426 S.W.2d 780 (1968), we held that a party’s conduct at trial can have the effect of abandoning an issue raised in the pleadings so that it cannot be relied upon in this court. We have also held that we will not address a constitutional argument that was not called to the trial court’s attention for a ruling on the constitutionality during trial or at some point prior to the entry of final judgment. May v. Barg, 276 Ark. 199, 633 S.W.2d 376 (1982); Wilson v. Wilson, 270 Ark. 485, 606 S.W.2d 56 (1980). In the current case, although appellants raised the constitutional question in the pleadings, and although they raised a question of insufficient notice in their proposed findings of fact and conclusions of law, they did not request or receive a ruling on the constitutional issue from the trial court, nor did they argue the issue before to the trial court. Thus, in accordance with May, supra, Wilson, supra, and Bond, supra, we find appellants did not properly raise the constitutional argument to the trial court and the argument is not subject to appellate review. Accordingly, we hold the Urrey decision is not applicable to this case.
Now we address the merits of appellants’ second claim. The thrust of appellants’ argument is that appellee, who is a licensed contractor, was not entitled to receive the benefit of the commercial construction exception because the actual construction was not “performed by” a licensed contractor. The commercial construction exception, section 18-44-115(f), reads as follows:
The provisions of this section shall not be applicable to commercial and industrial construction performed by contractors licensed under § 17-22-101 et seq.
As was previously stated, it was SBM d/b/a RRCC that performed the construction of appellants’ building. At all times relevant to this appeal, SBM was not a licensed contractor. Thus, argue appellants, since a licensed contractor did not perform the construction, this exception should not apply and appellee’s lien should be held unenforceable for failure to give the requisite notice.
We have already determined that SBM d/b/a RRCC was RRMB’s agent. RRMB, a licensed contractor, was appellants’ general contractor which performed the construction by arranging the work and any necessary subcontracts. As the construction was performed by RRMB, a licensed contractor, the commercial construction exception applies. Appellee’s lien is therefore enforceable and does not fail for lack of notice to appellants.
Appellants’ third argument on appeal is that appellee’s lien should not attach to appellant Alma Seyller’s interest in the property because she did not sign the contract with RRMB. Appellants own the property in question as tenants by the entirety. It is true that appellant Alma Seyller did not sign the contract, however, her actions during the construction indicate she was indeed a party to the contract, at least by implication. Steed v. Busby, 268 Ark. 1, 593 S.W.2d 34 (1980). She had knowledge of the contract and approved it by writing and signing three personal checks, which were drawn on appellants’ joint account made payable to RRMB, for the progress payments. We reiterate the previously cited holding of Gillison Discount Bldg. Materials v. Talbot, 253 Ark. 696, 488 S.W.2d 317 (1972), that the contract giving rise to a materialman’s lien can be either express or implied.
Affirmed.
Holt, C.J., and Brown, J., dissent. | [
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Robert H. Dudley, Justice.
The appellants, Paul A. Schmidt, Pauline B. Schmidt, and Paul G. Schmidt, were the sole stockholders in the Aero Corporation, a family farming corporation. The corporation held its checking accounts in, and borrowed extensively from the appellee McIlroy Bank and Trust. The notes, security agreements, and mortgage involved in this dispute were executed in the corporation name. After the corporation overdrew one of its checking accounts, the bank declared its loans to the corporation insecure. The bank accelerated payment of the notes, made demand for payment, filed suit in chancery court for foreclosure on the security for the notes, and sought a judgment for the remaining deficiency, if any, against the corporation, as well as the individual appellants as guarantors of the notes. The chancery court suit apparently has not been finally concluded. See McIlroy Bank & Trust v. Acro Corp., 30 Ark. App. 189, 785 S.W.2d 47 (1990).
Next, the corporation and the individual appellants filed this “lender’s liability” suit against the bank in circuit court. They asked damages for the corporation and damages for themselves as stockholders, but did not ask relief for themselves as guarantors of notes, possibly because the chancery court had not yet determined whether there was a deficiency for the guarantors to pay. The bank filed an answer and a motion for summary judgment with supporting exhibits and affidavits. The corporation and the individual appellants filed an amended complaint and again asked damages for the corporation and themselves as stockholders, but, again, did not ask for damages as a result of the guaranty agreement.
The trial court granted summary judgment against the corporation on the ground that its charter had been revoked for failure to pay franchise fees, but did not grant summary judgment against the individual appellants.
The bank filed a second motion for summary judgment with attached exhibits showing that all notes, security agreements, and mortgages were executed in the name of the corporation and were only guaranteed by the individual appellants. The appellants field a brief opposing the summary judgment and two of their arguments were that they had “stated a cause of action against the bank under the guarantees” and that “the real parties in interest in this cause of action are the individuals as guarantors.” The concluding paragraph of their brief begins as follows: “The plaintiffs [appellants] have clearly shown that the real parties in interest under the facts set forth in the amended complaint are the individuals as guarantors and parties to the notes and extensions. The plaintiffs should be allowed to amend their complaint to permit the real parties to prosecute the action.” However, even though ARCP Rule 15(a) provides in part, “a party may amend his pleadings at any time without leave of court,” the appellants did not file an amended complaint.
The bank filed a brief in which it responded that 12B Fletcher, Cyclopedia of Corporations, § 5916, p. 447(Perm. Ed. 1984) provides that “a personal guaranty may be a basis upon which suit can be brought,” but that the individual appellants “have not alleged any individual causes of action on the basis of their guaranty contracts.” Then, at the hearing on the second motion for summary judgment the bank’s attorney stated:
One other issue that I would like to address is the fact that plaintiffs now raise a cause of action based upon the guaranty contracts. This is not plead in the Complaint, and not plead in the amended Complaint. I cannot find the word “guaranty” or “guaranty contract with guarantor” or any derivative thereof in the Complaint or amended Complaint. (Tr. 1262). The first time “guaranty” shows up is in the plaintiffs response to the Defendant’s second Motion for Summary Judgment. A personal guaranty may be a basis upon which a suit can be brought. There is no question about that. At no time have plaintiffs plead a cause of action on the guaranty contracts.
The individual appellants’ attorney responded, “We ask the court to allow the plaintiffs to amend the complaint for the sole purpose to include the individuals as guarantors and state a cause of action that would not leave any question. . . .” Again, the individual appellants did not amend the complaint, either orally or in writing. Immediately thereafter the court, from the bench, announced that it was granting summary judgment against the individual appellants, and further stated:
Second, as far as the guarantees, there’s no allegation in either the Complaint or amended Complaint which I earlier allowed to stand, is not plead in either one of these two Complaints. I think that, on the day of the hearing on a motion for a summary judgment, is too late to amend the Complaints to include it, so I’m going to deny your oral motion, Mr. Tennant, to amend your Complaint at this particular point in time.
For their first point of appeal, the individual appellants argue that the trial court erred in refusing to permit them to amend their complaint because (1) “the trial court raised the issue on its own motion” and (2) the trial court did not require a showing of prejudice to the bank or undue delay in the disposition of the cause. Under the facts of this case the arguments are without merit.
ARCP Rule 15(a) provides in pertinent part:
[A] party may amend his pleadings at any time without leave of the court. Where, however, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of an amendment, the court may strike such amended pleading or grant a continuance of the proceeding.
The intent of the rule is stated in the reporter’s notes as follows: “The Committee believed that the amendments to pleadings should be allowed in nearly all instances without special permission from the court. The court is, however, given discretion to strike any amendment which would cause prejudice or unduly prolong the disposition of a case.” We have followed that stated intent. See Webb v. Workers Compensation Comm’n, 286 Ark. 399, 692 S.W.2d 233 (1985); Kay v. Economy Fire & Cas. Co., 284 Ark. 11, 678 S.W.2d 365 (1984).
Appellants argue that the trial court erred in denying the oral motion to amend “on its own motion.” The argument is fallacious. The trial court did not rule “on its own motion.” Instead, the trial court responded to appellants’ unnecessary motion to amend. It was not a ruling on the court’s own motion. If the making of a ruling on that unneeded motion was error, it was invited error. We do not reverse for invited error. Missouri Pac. R.R. Co. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944).
Appellants also argue that the trial court erred because it did not make a finding that the proposed amendment would cause either prejudice or undue delay of the disposition of the case. The argument is without merit for two reasons. First, the matter was not brought to the attention of the trial judge, and we do not reverse for matters raised for the first time on appeal. Bohannan v. Underwood, 300 Ark. 110, 776 S.W.2d 827 (1989). Second, the proposed amendment was never offered, and the trial court had no way of knowing whether prejudice or undue delay would result. Until the trial court knew the factual details of the allegation, it could not know whether additional depositions or interrogatories were necessary. Similarly, we have no way of knowing, and we will not presume error. The rule requires a finding of prejudice or undue delay only when the court strikes a pleading. In that situation the court would naturally have the facts alleged in the amendment before it and would be able to determine whether prejudice or undue delay would occur. The rule does not require a finding of prejudice or undue delay when a party has merely filed an unnecessary motion seeking to amend. The trial court and the other party are entitled to know the factual allegations of the amendment. If our holding were otherwise a party who was responding to a motion for summary judgment and who was worried about the sufficiency of his proof would always file a motion to amend before the hearing solely as a dilatory safety valve. He would always get more time, because the trial judge could not make a ruling on prejudice or delay. The result would be slower and more expensive determination of the action. That is not the purpose of our rule.
The appellants did not argue below, and do not argue in this appeal, that they orally amended their complaint to state a cause of action as guarantors. Under our long standing procedure, we consider only arguments raised by the parties. We do not consider reversing the trial court for the unargued reason that the appellants orally amended their complaint to state a cause of action as guarantors.
. [5] The appellants next argue that the granting of summary judgment was in error because an issue of material fact remained to be decided. In brief, their argument is that when the corporation’s charter was revoked for failure to pay franchise fees, the officers and shareholders were considered to be operating the business as a partnership and were individually liable for the obligations of the de facto corporation, see Whitaker v. Mitchell Mfg. Co., 219 Ark. 779, 244 S.W.2d 965 (1952); Gazette Publishing Co. v. Brady, 204 Ark. 396, 162 S.W.2d 494 (1942), and since they were subjected to individual liability as partners, they ought to be allowed, in fairness, to bring suit in the same capacity. The argument, while novel, is without merit. The reasoning behind the cases holding officers and stockholders liable is that they ought not be allowed to avoid personal liability because of their nonfeasance. On the other hand, it does not follow that they should be allowed to benefit by their nonfeasance by allowing them to bring suit as partners. The effect of revocation was that the corporation lost its capacity to sue, Sulphur Springs Recreational Park v. City of Camden, 247 Ark. 713, 447 S.W.2d 844 (1969), and this particular type of corporate cause of action ceased to exist. To allow the individual appellants to bring this cause of action would effectively reverse prior law which prohibits suits by a corporation whose charter has been revoked and, in addition, would reward them for their nonfeasance.
The individual appellants had no standing as shareholders to sue for injuries to the corporation. A motion for summary judgment is appropriate when no issue of fact, properly pleaded, remains to be decided. Walker v. Hyde, 303 Ark. 615, 798 S.W.2d 435 (1990). The appellants had not pleaded any individual causes of action under their separate guaranty con tracts with the bank. Therefore, the trial court did not err in granting summary judgment.
We need not address the appellants’ third point of appeal which involves an alternative reason for the trial court’s granting summary judgment.
Affirmed.
Holt, C.J., and Brown, J., dissent. | [
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Steele Hays, Justice.
This is a defamation and invasion of privacy action arising from a letter written by the appellant, Ms. Jo Dodson, on October 18, 1988, to the State Board of Therapy Technology, with copies sent to the Governor, Attorney General, a reporter and several others.
Ms. Dodson’s letter focused on the actions of the president of the State Board of Therapy Technology, Marinetta Dicker, and also included references to her husband, appellee David Dicker. The letter asserted, among other things, that David Dicker assisted Marinetta Dicker in rewriting the test for licensing of therapy technicians, which may have been done for profit; the Dickers drafted the budget for the board without the approval of other board members; the Dickers drew up a proposed license law for presentation to the Arkansas legislature without the approval of the board; and, David Dicker has imposed himself as the sixth member of the board. Dodson also stated that, in her opinion, the board had slandered a fellow therapist, Steve Schechter, and David Dicker’s letter to the Rolf Institute was a good example of it; and she wrote “he [Dicker] has such a ‘hate’ for Steve, and to be fair, Steve does not have any great love for him either, and in fact neither do I. I hate a bully . . . especially a sneaky bully, which is what he appears to be in my opinion.”
David Dicker filed suit against Ms. Jo Dodson in Washington County Circuit Court. After a jury trial on June 7, 1990, a verdict was returned in favor of Dicker and he was awarded $7,000 in actual damages and $5,000 in punitive damages.
Dicker offered two alternative theories to the jury, namely, invasion of privacy and libel, specifically, libel per se. Both causes of action may be joined in the same suit, nevertheless, there can be only one recovery for any particular publication. Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979). Ms. Dodson insists that her directed verdict motion should have been granted on both the invasion of privacy and libel theories and we agree.
I.
The Libel Claim
First, we consider Dicker’s libel action. In doing so we note that in cases raising First Amendment issues the United States Supreme Court has repeatedly held that an appellate court “has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S., at 284-286.) See also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 933-934 (1982); Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6, 11 (1970); St. Amant v. Thompson, 390 U.S. 727, 732-733 (1968). We have exercised independent judgment on this issue and conclude that a finding of libel would constitute a forbidden intrusion on free expression because the words involved are not capable of sustaining a defamatory meaning.
In Milkovich v. Lorain Journal Co.,_U.S._, 110 S.Ct. 2695 (1990), the Supreme Court established that the threshold question in defamation actions is not whether a statement could be considered an “opinion” but rather whether a reasonable factfinder could conclude that the statement implies an assertion of an objective verifiable act. Id. at 2707; See generally, Note, Freedom of Speech - No Separate "Opinion” Privilege in Defamation Actions, 13 U.A.L.R. L.J. 517 (1991). The holding in Milkovich was recently applied in Unelko Corp. v. Rooney, 912 F.2d 1049 (9th Cir. 1990). In order to determine whether a statement could be viewed as implying an assertion of fact, the Ninth Circuit set forth three factors to be weighed: (1) whether the author used figurative or hyperbolic language that would negate the impression that s(he) was seriously maintaining implied fact; (2) whether the general tenor of the publication negates this impression; and (3) whether the published assertion is susceptible of being proved true or false. Id. at 1053. We think the Ninth Circuit’s method of analysis is a reasonable extension of the Milkovich doctrine, therefore, our examination of Dodson’s statements follow the Rooney considerations. As this court enters an area of defamation law where we have not previously ventured, we caution that every set of circumstances subsequently considered under this analysis must be examined on a case-by-case basis.
In this case it is not necessary to discuss Dodson’s statements under each category because evidence supporting the second category—the tenor, or general drift of thought of Dodson’s letter—completely negates any impression that Dodson’s statements were presented as an assertion of objective facts about David Dicker. This letter was about Dodson’s protestation of the actions'of a state board and her views on what she perceived to be Mr. Dicker’s interference with its operations. It is most significant that the board’s own policy required that all requests and concerns addressed to it by therapists be submitted in writing. That is precisely what Dodson was doing. Her letter was expressed in terms of her “opinion” and “protest.” It criticized not only Dicker, but also his wife who was president of the state board and the state board itself. In fact, her letter opens with the following statement, “I do hereby formally and strongly protest the actions of the President of the State Board of Therapy Technology, Marinetta Dicker.” Dodson, as a massage therapist, had a substantial interest in the conduct of the State Board of Therapy Technology and her freedom to engage in uninhibited debate over its actions is both legitimate and desirable. The fact that she referred to David Dicker with intemperate language does not convince us that the statements, in their totality, were the type of assertions of objective facts about Mr. Dicker that give rise to liability in a defamation action. Dodson’s statements do not meet the threshold requirement for a defamation action thus, the trial court erred in denying a directed verdict on the libel theory.
II.
The Invasion of Privacy Claim
Next, we consider the denial of Ms. Dodson’s motion for a directed verdict on the issue of invasion of privacy. Dodson argued that David Dicker did not present sufficient proof of malice to produce a submissible issue for the jury.
This court applies certain standards when reviewing the denial of a directed verdict. A motion for directed verdict should only be granted if the evidence is so insubstantial as to require a jury verdict to be set aside. Bice v. Hartford Acc. & Indem. Co., 300 Ark. 122, 777 S.W.2d 213 (1989). In determining the propriety of the trial court’s action concerning a motion for directed verdict, the evidence is given its highest probative value and viewed in a light most favorable to the party against whom the verdict is sought. Id.
The right to recover for an invasion of privacy requires the plaintiff to demonstrate:
(1) the false light in which he was placed by the publicity would be highly offensive to a reasonable person, and (2) that the defendant had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed. RESTATEMENT (SECOND) OF TORTS, § 652 E. (1977).
Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979).
In Dodrill we made it clear that, where the plaintiff is not a public figure and the publication is of matters of general or public concern the plaintiff must prove actual malice by clear and convincing evidence. The question, then, presented under this section is whether Mr. Dicker prevailed on his burden of establishing actual malice as part of his prima facie case of invasion of privacy.
Statements made with actual malice are those made with knowledge that the statements were false or with reckless disregard of whether they were false or not. New York Times Co. v. Sullivan 376 U.S. 254, 279-280 (1964). The constitutional definition of malice is concerned with showing the author’s subjective disregard for accuracy of his statements. The Supreme Court emphasized the subjective nature of the inquiry when it commented that the actual-malice determination in the case before it “rests entirely on an evaluation of [the author’s] state of mind when he wrote his initial report, or when he checked the article against that report.” Bose, supra at 494. See also R. Smolla, Law of Defamation § 3.13 - 3.15 (1991). And in St. Amant v. Thompson, 390 U.S. 727, 731 (1968) the United States Supreme Court stated:
[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.
Additionally, we have recognized that a failure to investigate does not in itself establish the bad faith inherent in malice. Gallman v. Carnes, 254 Ark. 987, 497 S.W.2d 47 (1973).
With these principles in mind, we cannot say that David Dicker proved actual malice with clear and convincing evidence. There was no evidence that Dodson entertained actual doubts as to the accuracy of her statements. Even though Dodson was unable to back up her allegations with proof, the majority of her comments were not completely without basis. Dodson testified, and Marinetta Dicker substantiated her testimony, that Mrs. Dicker had said publicly that she was rewriting the test for therapy technicians. The board’s secretary and treasurer testified that several therapists and massage therapy school owners thought that David and Marinetta Dicker wrote the test. Gordon Bradford, a licensed massage therapist testified that Mr. Dicker’s comments indicated that Dicker and his wife planned to formulate a new law to submit to the legislature. Ms. Dodson explained that her comment about the budget was based on Marinetta Dicker’s comment at a board meeting where she said, “we have ' drawn up the budget and it has been approved.” The appellee makes much of Dodson’s statement, that in her opinion Steve Schechter had been slandered by board members and Mr. Dicker’s letter to the Rolf Institute was a good example, because a letter was actually written by the Rolf Institute. However, Dodson admitted that was an error and testified that it was actually a telephone call that David Dicker made to the Rolf Institute.
The statements made in Dodson’s letter, we believe, reflect the inevitable inaccuracies that accompany debates on controversial issues innate in the public arena, and especially in a governmental board such as the one in this case. A subjective inquiry into Dodson’s state of mind when she wrote the letter reveals that she was motivated by dissatisfaction with the board’s operations. While it is conceded that our “society has a pervasive and strong interest in preventing and redressing attacks upon reputation” that interest must be weighed against protecting our First Amendment’s “vital guarantee” of free and open discussion of public issues. Milkovich at 2707. In this case, our First Amendment guarantee of free speech necessarily prevails.
Reversed and dismissed.
Corbin, J., concurs.
There were other issues raised in Ms. Dodson’s letter that did not concern the appellee, David Dicker, however, the letter in its entirety is too long to reprint for this opinion.
It is noteworthy that Ms. Dodson was subsequently appointed to the board by the Governor, nominated for board president by'Marinetta Dicker and elected to that position by board members.
Because we dispose of the invasion of privacy/false light claim under this analysis we need not decide whether the actual malice standard, which is carried over from defamation actions, could be examined under the Milkovich/'Rooney balancing test. | [
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David Newbern, Justice.
In the Circuit Court the State charged the appellant, Jack Banks, a juvenile, with four offenses: (1) aggravated robbery, (2) attempted capital murder, (3) theft of property valued at less than $200, and (4) fleeing from arrest. Banks was 14 years old at the time the alleged offenses occurred and 15 when the proceedings which are the subject of this appeal occurred. Only one of the offenses charged, aggravated robbery, is listed in Ark. Code Ann. § 9-27-318(b)(1) (Repl.1991) as an offense with respect to which a prosecutor may charge a juvenile in a circuit court as opposed to a juvenile court.
On the basis that all of the offenses were alleged to have occurred in the same episode or course of conduct, the Circuit Court retained jurisdiction of all of the offenses charged but stated that verdict forms would not be given to the jury on the fleeing and theft charges. The Court reserved decision as to whether a verdict form would be submitted to the jury with respect to the attempted capital murder charge. The question presented by Banks’ appeal is whether the offenses should all have been transferred to the Juvenile Court and, if not, whether it was proper for the Circuit Court to retain jurisdiction of any charge not listed in § 9-27-318(b)( 1).
We hold the Circuit Court should have dismissed the charges of offenses not listed in § 9-27-318(b)(1) for lack of jurisdiction. We remand the case for a second hearing on whether the aggravated robbery charge should have been transferred to the Juvenile Court.
The decision of the Circuit Court to retain jurisdiction of all the charges against Banks was made at the conclusion of a hearing on Banks’s motion to transfer all the charges to the Juvenile Court. In response to the Court’s inquiry the prosecutor stated the facts to be proved by the State.
Larry Ball and Eric Coffman were using the pay telephone at a shopping center parking area. They saw two young black men in this same parking lot standing outside a car. While Ball and Coffman were walking back to their car, they were approached by Banks and Andrew Harris. After some conversation, Harris pushed Coffman and ripped a gold chain from Coffman’s neck and struck Coffman in the mouth with his fist. Harris and Banks ran back to their car. Banks pulled a shotgun from the car and brandished it toward Ball and Coffman.
Ball and Coffman drove their car to another parking lot where they found Officer King. They told King what had happened, and King turned on his blue lights and approached the car being driven by Banks in which Harris was a passenger. Banks and Harris sped away, and King gave chase. Harris repeatedly fired a shotgun at King’s police vehicle. The chase ended when Banks lost control and King’s vehicle collided with the car being driven by Banks. King had ducked down in the seat of his car to avoid the shotgun fire at the conclusion of the chase. Banks and Harris were caught by other officers who had arrived at the scene about the time of the crash.
1. Jurisdiction
The jurisdiction of the Juvenile Court is prescribed in Ark. Code Ann. § 9-27-306 (Repl. 1991). The parts of that law relevant to this case provide:
(a) The juvenile court shall have exclusive original jurisdiction of and shall be the sole court for the following proceedings governed by this subchapter:
(1) Proceedings in which a juvenile is alleged to be delinquent or dependent-neglected as defined in this sub-chapter; ....
“Juvenile” is defined in Ark. Code Ann. § 9-27-303 (Repl. 1991) as follows (relevant part only):
“Juvenile” means an individual who:
(A) Is under the age of eighteen (18) years, whether married or single;
“Delinquent juvenile” is defined in Ark. Code Ann. § 9-27-303(11) as:
any juvenile ten (10) years or older who has committed an act other than a traffic offense or game and fish violation which, if such act had been committed by an adult, would subject such adult to prosecution for a felony, misdemeanor, or violation under the applicable criminal laws of this state.
The proceedings in this case were not ones in which a juvenile was “alleged to be delinquent.” Therefore, we cannot say the Juvenile Court had exclusive jurisdiction of the charges solely on the basis of § 9-27-306. Looking further, however, we find Ark. Code Ann. § 9-27-318(b)(l) (Repl. 1991) which provides:
When a case involves a juvenile age fourteen (14) years or fifteen (15) years at the time the alleged delinquent act occurred, the prosecuting attorney has the discretion to file charges in circuit court for an alleged act which constitutes capital murder, murder in the first degree, murder in the second degree, kidnapping in the first degree, aggravated robbery, or rape.
Although not yet codified, Act 903 of 1991 added first degree battery to the list.
Reading §§ 9-27-306 and 9-27-318(b)(1) together, it becomes clear to us that the Juvenile Court has exclusive jurisdiction of all of the offenses charged against a juvenile with the exception of those listed in § 9-27-318(b)(1). Thus, the only offense charged against Banks of which the Circuit Court could properly retain jurisdiction was aggravated robbery.
The authorities cited by the State include Robidoux v. Coker, 383 So.2d 719 (Fla App. 1980). There, the Florida Court of Appeals, considering a juvenile code similar to ours dismissed charges not listed among those for which a juvenile could be tried as an adult. The Florida law permitted trial as an adult of a juvenile charged with an offense punishable by death or life imprisonment. The juvenile was charged with armed robbery, attempted murder, and aggravated assault. Armed robbery was punishable by life imprisonment or death, but attempted murder and aggravated assault were not. In dismissing the latter two charges, the Florida Court of Appeals wrote:
While it might be more convenient to dispose of all three counts involved herein in one judicial proceeding in the adult division, we do not believe the fact that the attempted murder and aggravated assault charges arose out of the same incident as the life felony charge of armed robbery is sufficient to allow adult jurisdiction.
The only other cases cited by the State on this point are from California and North Carolina. Matter of Shanea J., 198 Cal. Rptr. 228 (Cal. App. 2d Dist. 1984); Matter of Ford, 272 S.E. 2d 157 (N.C. App. 1980). The State concedes they are not on point because the juvenile codes in those states are not like the Arkansas Juvenile Code. They provide for concurrent jurisdiction of juvenile and other courts.
In the course of discussing the ruling, the Trial Court referred to Britt v. State, 261 Ark. 488, 549 S.W.2d 84 (1977), as his basis for keeping jurisdiction of all the charges but permitting the jury to consider only one or two of them. The Britt case stands for the proposition that when the acts charged against a defendant do not constitute a continuing course of conduct they may be charged separately. The case has no application to these facts, as we have no doubt that aggravated robbery, fleeing, and attempted capital murder, as charged, were not part of a continuing offense like non-support and promoting prostitution, the examples given in the Britt case. We also have held that theft and aggravated robbery may both be charged because they are separate crimes, having separate elements, even though they may have been committed at the same time. Higgens v. State, 270 Ark. 19, 603 S.W.2d 401 (1980). We are unaware of any decision of this Court which would require all of these offenses to be tried together, and even if there were such a decision, it would not alter our conclusion on the jurisdiction question.
As the Circuit Court lacks jurisdiction of all of the offenses charged other than aggravated robbery, they must be dismissed.
2. Transfer
Banks asks that his case be transferred to Juvenile Court. Given our conclusion that the attempted capital murder, fleeing, and theft charges must be dismissed, that leaves only the aggravated robbery charge as the subject of Banks’s request. His argument for transfer is three-fold. First, he notes that the Circuit Court insisted that to sever the aggravated robbery from the other charges would leave each of the courts with an incomplete view of the incident. Trying all charges in Juvenile Court would cure that problem. Second, he contends that the Circuit Court had before it his counsel’s “proffer” of evidence that he is an immature first offender who accompanied an older person, age 16, of low mental ability on the escapade, and the State presented no evidence other than the violent nature of the crime charged. Although Banks is alleged to have brandished a weapon, it is not alleged that he did any of the shooting. Third, he argues the trial court retained jurisdiction on the basis that the prosecutor had the right to bring charges in Circuit Court rather than on the basis of the criteria stated in Ark. Code Ann. § 9-27-318(e) (Repl. 1991) as follows:
In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
Subsection (f) provides: “Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect.”
At the hearing on Banks’s motion, Banks’s counsel had assembled witnesses to testify with respect to the items addressed in § 9-27-318(e). The Court refused to hear the testimony.
MR. MARCZUK [defense counsel]: Your Honor, I was hoping not to only get counts two, three and four transferred because — He was involved obviously allegedly by the State’s facts in this aggravated robbery. But I was hoping to put on these witnesses today to try to talk you into transferring the whole thing to Juvenile.
THE COURT: I understand what they’re here for. They want me to transfer this to Juvenile because he’s a pretty good kid and he’s a pretty good bet and he hasn’t been in trouble before and all that sort of thing. But that’s not my function. My function is to decide whether or not the prosecutor has the right to try to prosecute them in Circuit Court and to punish them accordingly as adults. That is a discretionary thing and it’s not—It’s not an absolute thing that the Court can deny. And I’m inclined to permit that when the prosecutor feels it’s appropriate in a case, absent some testimony to the contrary. And I will listen to what they have to say. But I’m going to be more inclined to grant it on the basis of lack of substantive proof rather than just what some friends and neighbors and teachers and counselors think would be in the best interest because I see that as just as bias on that part as it is a bias on the prosecutor’s part. They want to punish them as adults and they think that there’s an opportunity to salvage them.
But you’ve got some rather serious criminal conduct alleged here. And, if he is guilty, then I don’t find anything wrong with him being punished as an adult. If he’s not guilty, then you’ve got another matter. If they find him not guilty, then what would be — Suppose I submit only the aggravated robbery to the jury and they find him not guilty of that. And there’s a possibility of that under the facts of this case. Then would you want to transfer the other lesser included or underlying conduct to Juvenile and let him plead guilty to those out there? Of course not. You’re going to say jeopardy’s attached.
So what I see, Lou, is not what’s necessarily good for you nor not what’s necessarily good for the State. I see a responsibility on the part of the Court to take the facts as they may be developed here and see where there’s wrong, if there is wrong, and to get all this young man’s exposure into one ball of wax. If he beats the aggravated robbery, he may walk free. If he doesn’t, he may get some punishment.
So, I don’t want to — I’m not going to tell you you can’t put these people on and have them testify. But I’ve considered everything that you’ve told me that they would testify in this to already.
MR. MARCZUK: Well, I would like to have — Well, if I can paraphrase, they are going to say he’s of borderline mental capabilities.
THE COURT: Now, wait a minute. I’m not going to listen to that. If you want to tell me he’s not guilty by reason of mental defect or disease, then fine. But, now, if you’re — I’ll have to enter an Act Three and we’ll get him examined. On the other hand, if they’re going to say he’s borderline mentally retarded, that is not a defense. And I wouldn’t listen to it on a motion to transfer because Mrs. LaRue should have the opportunity to come in and have an Act Three done and say, “Well, he’s responsible.” And I don’t intend to demean that at all. But you know, Lou, that we’ve got people with I.Q.’s of fifty in the Department of Correction for life. And, you know, that’s a sad and unfortunate fact. I don’t know what his I.Q. is.
But the Court is not — The Court is not impressed with, “Don’t send me to the penitentiary for killing this man because I’ve got an I.Q. that’s dull.” It is not justification that you have a dull I.Q. in murder or rape or robbery or kidnapping or what have you. It’s just not. Total incompetency is. But dullness in not.
I would not hear that without Mrs. LaRue having a chance to rebut it on a motion to transfer to Juvenile. Now, if you want me to hear it, I’ll be glad to. And I’ll be glad to have Dr. White test him or whatever you want to do.
MR. MARCZUK: Well, I understand the position you’re in. But, just reading from the statute here — I know you know the statute and you’ve had a chance to refresh your memory — you’re supposed to make your decision based on the prior history, the repetitive nature of it, the violence of the crime obviously. And, then, after you’ve heard this evidence, if it’s clear and convincing that he should be tried as an adult, then you make your order. That’s why I brought all these folks today.
THE COURT: And I have heard all that testimony. You have told me this is the only time he’s been in trouble. Right?
Okay. I’ve heard that.
You’ve told me that all these counselors and all these people out here think he’s a fine guy. He’s a little bit slow, a little bit dull. But they think that he would be better served if it were transferred to Juvenile. Right?
MR. MARCZUK: Yes, sir.
THE COURT: Okay, I’ve heard that. I’ve denied it. I think that under the facts and the circumstances in this case, if they are as Mrs. LaRue says and if she can prove that, then she has a right and I’m going to permit her to try and convince a jury to send him to the Department of Correction. I don’t know for how much. Maybe only aggravated robbery. But I am at this point willing to let her have the entire events and circumstances developed in order to show what happened out there.
While the Court’s remarks were unclear, it is apparent the decision was made on the basis that the issue being considered was whether there was strong proof of aggravated robbery rather than the statutory criteria for transferring the case to Juvenile Court about which the witnesses might have testified. Some of the Court’s remarks indicate the conclusion that the prosecutor’s discretion in charging the case in Circuit Court is absolute. If the latter was the basis of the Court’s decision, it was erroneous. In Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991), we held that such deference to the discretion of the prosecutor “defeats the purpose of of the Arkansas Juvenile Code which recognizes the need for careful, case-by-case evaluation when juveniles are charged with criminal offenses.”
In Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991), this Court held that a circuit court could decline to transfer a charge of first degree murder to a juvenile court if, after considering the statutory criteria, the court, in its discretion, found clear and convincing evidence that the juvenile should be tried as an adult. The only evidence presented by the State was the charge which evinced the seriousness of the offense alleged and the violent nature of it. The difference between the Walker case and this one is that there the Trial Court listened to the evidence presented by Walker and made the decision on the basis of the statutory criteria. Here, although the court acknowledged the presence of the witnesses and said what he thought they would say, the evidence was not heard. Rather than hearing testimony on the statutory criteria for transfer, the Court made the references quoted above.
We decline to order the case transferred to the Juvenile Court because, given the abuse of discretion standard this Court applied in the Walker case, we cannot say that case clearly should have been transferred. The trial court should, however, have made a decision whether to transfer only after hearing evidence relating to the statutory criteria. We, therefore, remand the case for another hearing.
Reversed and remanded. | [
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William I. Prewett, Special Justice.
On March 21,1985, appellant Dillon executed a promissory note in the principal amount of $14,000 providing for 23 monthly payments of $161.53 plus a 24th payment of the principal amount of $14,000 plus $161.53. The stated interest rate was 13% per annum. Payments of $161.53 per month as provided in the note with the 24th payment being in the amount of the original principal plus the monthly stated amount is an interest charge of 13.84543 % per annum at a time when the maximum legal rate was 13%. The trial court found the note to be usurious; the monthly payment of $161.53 was obviously intended in interest only. However, the trial court further found interest in excess of the maximum lawful rate had not been paid and awarded no relief for the usurious contract. Dillon has appealed from the refusal of the trial court to award relief.
We reverse and remand to the trial court for further proceedings in accordance with this opinion.
Although appellee does not admit the 1985 note is usurious, no serious argument is or can be raised with this decision by the trial court. The principal amount of the note was $14,000 at the time of its execution. The final and 24th payment provided for a balloon payment of $14,000 plus the monthly installment of $161.53. Subsequent to the filing of this litigation, appellee caused to be prepared a schedule whereby an amount equal to thirteen percent (13 %) per annum was allocated to interest with the balance of the payment allocated to principal. The fallacy in this is threefold: (1) it directly conflicts with the specific payment provisions of the note; (2) the note provides for a “Finance Charge” of $3,876.50 (24 x 161.53); and (3) the principal allocations were not made during the term of the note. Dillon paid 23 installments, all of which were interest under the terms of the note. The issue in this appeal is whether interest in excess of the maximum lawful rate was paid by appellant. Article 19, § 13 of the Arkansas Constitution provides: “A person who has paid interest in excess of the maximum lawful rate may recover, within the time provided by law, twice the amount of interest paid.”
According to the payment history submitted by appellee, the first payment of $161.53 was made on April 16, 1985; interest at thirteen percent (13%) per annum to the date of the first payment was $ 129.64. As stated by the trial court, “the note did not contemplate or authorize the lender to allocate such payments in part to principal and in part to interest. . . . Defendant (appellant) correctly argues that interest payments of $161.53 exceed the maximum permissible rate of 13% per annum, and render the note usurious.” We agree. The after-the-fact payment history presented by appellee credits the excess payment of $36.82 to principal, but under the terms of the note, the $36.82 was interest and appellant thereby paid interest at a rate in excess of the maximum lawful rate.
Appellee correctly states that findings of fact made by the trial court shall not be set aside unless clearly erroneous. The facts in this case are not in dispute. Terms of the note and dates of payments are admitted. It requires no expert testimony to compute the interest which would be owed at 13 % per annum. From the first payment, the interest paid was in excess of the maximum lawful rate. In Brookshire v. Coffman, 287 Ark. 112, 115, 696 S.W.2d 748, 750 (1985), this court stated, “[W]e will not countenance an attempt to evade our pre-Amendment 60 usury law through tricky, multiple transactions.” Once it is determined that a charge of excess interest is made by the terms of the note, it is usurious. Subsequent unilateral action whereby the excess interest is called principal will not give new life to the usurious contract. The usurious nature of the 1985 note simply cannot be purged by the subsequent allocation of a part of the interest payment to principal. Davidson v. Commercial Credit Equipment Corp., 255 Ark. 127, 499 S.W.2d 68 (1973).
The trial court, in holding no interest in excess of the maximum rate was paid, used the total dollars of $3,683.60 paid by appellant from the first payment of April 21,1985, to the date of the Modification Agreement of September 23, 1987, and concluded that appellant had failed to pay any “excess interest” since 12 % per annum on $ 14,000 for this period of time would be more than the sum of $3,683.60. The computation by appellee, however, shows that payments totaling $3,876.73 (including unilateral principal allocations) were made through March 24, 1987; accrued interest according to appellee’s computation at that date was $3,716.74 (included interest on $1,151.00 from July 1, 1986, to October 17, 1986, for insurance purchased by appellee). By appellee’s own computation, it received $159.99 more than the lawful interest. Amendment 60 becomes operative when interest is paid at a rate in excess of the maximum lawful rate.
Assuming all payments were made on the exact due date, appellee intended a “Finance Charge” of $3,876.50 when the maximum of 13 % would be $3,640.00. During the first year, appellant made payments totaling $1,938.46; in its reconstruction, appellee calls $1,798.39 interest and allocates the difference of $ 140.09 to principal. However, under the terms of the note, this was not principal; it was interest. The test of whether the note is usurious is judged as of the time the note was made. General Contract Corp. v. Duke, 223 Ark. 938, 270 S.W.2d 918 (1954).
Amendment 60 amended Art. 19 § 13 of the Arkansas Constitution to specifically make the contract “void as to unpaid interest;” thus the 1985 note was void (not voidable) from the beginning as to unpaid interest thereby making all interest paid unlawful. Recovery of twice the “amount of interest paid” is authorized provided the obligated person “has paid interest in excess of the maximum lawful rate.” Amendment 60 does not limit the recovery to “excess” interest but provides that a person who has paid interest in excess of the maximum lawful rate may recover “the amount of interest paid.” Appellant argues that the part of Amendment 60 “making it unlawful for any person to knowingly charge a rate of interest in excess of the maximum lawful rate” brings into effect the permissible recovery of interest; we do not consider the argument as it is not necessary to determine the meaning of this provision for this appeal. Nor is it necessary to decide what the effect would be if the total payments did not exceed the maximum lawful interest even though the appellee charged a rate in excess of the maximum lawful rate.
On September 23, 1987, Dillon executed a “Modification Agreement” to pay $14,543.75 at 11 % interest per annum (the legal maximum) installments of $300 per month. In addition, he paid back interest on October 29,1987, in the amount of $1,097.31, commenced the $300 per month installments on November 28,1987, and last made a payment on April 11,1988. This litigation then ensued.The 1987 Modification Agreement is not in itself usurious but is clearly a continuation of the 1985 note. The 1985 note is still in effect modified as to interest and payment amount by the 1987 Agreement. Usury is determined as of the inception and the subsequent modification will not purge the original vice.
Appellant paid interest in excess of the maximum lawful rate. We reverse the trial court’s finding that no excess interest was paid and remand to the trial court for a determination of the amount appellant is entitled to recover. The trial court has not passed on the questions of whether appellant is entitled to recover all interest paid or only the “excess” interest nor has it addressed the application or lack of application of the double interest provision; accordingly, we leave these questions for the trial court.
We remand for further proceedings and assessments under Amendment 60 not inconsistent with this opinion.
Reversed and remanded.
Brown, J., not participating. | [
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Per Curiam.
Appellant, Jimmy Lane Wicoff, by his áttor-
ney, Christopher Carter has filed a motion for rule on the clerk. His attorney admits that the record was tendered late because the ninety-day limit for filing the record in this Court, see Ark. R. App. P. 5(a), was not extended by a new trial motion with respect to which no record was made. See Ark. R. App. P. 4(c).
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1919, In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Tom Womack, Special Justice.
This appeal results from a decision of the Washington County Circuit Court that the appellants, the City of Fayetteville and the Board of Trustees of the University of Arkansas, are not entitled to an exemption from ad valorem taxes during the construction of a jointly-owned arts center.
In 1988, the appellants acquired real property in Fayetteville on which they planned to construct the Walton Arts Center. By application to the Washington County Assessor, the City and University sought an exemption from property taxation under article 16, § 5(b), of the Constitution of Arkansas, contending that the site for the Center is public property being used exclusively for public purposes. The appellee county assessor denied the application for exemption on the basis that the property was not currently being used for an exempt purpose, the possibility existed that the Center, when completed, would be available for private functions, and the Center would compete with similar facilities in the area which were not being taxed.
The appellants then applied for relief to the appellee, Washington County Board of Equalization, and the request for exemption was again denied. An appeal was taken by the appellants to the Washington County Court, which ruled after a hearing that the property was exempt from ad valorem taxation. The appellees then appealed to the circuit court, which found that the property was not exempt, and the appellants now appeal from that decision. Additionally, the appellees have cross-appealed that part of the circuit court’s ruling holding that public property can, under some circumstances, be exempt from taxation during a period of construction. We affirm the decision of the trial court and deny the tax exemption to the appellants.
The facts are presented on stipulation of the parties and exhibits. The City and University entered into an Interlocal Cooperation Agreement in 1986 to finance, construct, and manage a center for the arts. Under the agreement, each contributed $4,500,000 for construction and an endowment to operate and maintain the facility. The primary source of the funds for the University’s contribution was a private donation from Sam and Helen Walton of Bentonville. The City’s contribution consisted of $ 1,000,000 from its general fund and $3,500,000 from a sales tax capital improvement bond issue backed by the City’s portion of county sales tax revenues. The bond issue was approved by Fayetteville voters in October 1986.
A city block was designated as the site for the Walton Arts Center. The property in the north half of the block was purchased in May of 1988 and is the subject of the present appeal. By January 1, 1989, existing buildings on the property had been vacated, and it had been determined that asbestos abatement would be necessary before demolition of the buildings could begin. Asbestos abatement began in January 1989 and was completed in March 1989. Construction of new buildings was delayed pending the outcome of a condemnation suit concerning the property in the south half of the block. Later in the year, that suit was resolved in favor of the City and University, both in chancery court and on appeal to the Arkansas Court of Appeals.
The Center was designed to consist of two buildings, one to contain two classrooms equipped for art education and offices to be used by area non-profit organizations and Center staff, and a second to contain some additional offices, an exhibition gallery for fine arts, crafts and other exhibitions, a main hall equipped for theatrical productions, and a smaller auditorium outfitted for other arts presentations. A primary consideration in the planning of the Center was the provision of performance space for use by all segments of the public. According to the Center’s executive director, any group or individual requesting use of the facility would be allowed to do so upon payment of a designated rental fee. The amount of rental fees were not determined initially, but were to be kept low in order to encourage maximum utilization of the Center. According to the record, no decision had been reached as to whether those groups and persons renting space would be required to open their events to the public, either on a paying or non-paying basis.
The plans called for operating funds to be derived from earnings on the endowment, rental rates, ticket sales, corporate and foundation grants, gifts and bequests, class registration fees, and state and federal grants. The programs to be offered by the Center would complement conferences and educational programs offered by the Continuing Education Center in Fayetteville, although they might attract the same segments of the general public who would otherwise attend arts programs at the Arts Center of the Ozarks, a private, non-profit arts center in the area whose property was not exempt from ad valorem taxation.
This case calls for an interpretation of the property tax exemption provision of our Constitution, article 16, § 5(b), which states:
The following property shall be exempt from taxation: public property used exclusively for public purposes', churches used as such; cemeteries used exclusively as such; school buildings and apparatus; libraries and grounds used exclusively for school purposes; and buildings and grounds and materials used exclusively for public charity.
(Emphasis supplied.)
In its letter opinion and Order, the circuit court, in reviewing the evidence submitted, made the following findings:
1. Property must be “actually and directly and exclusively” used for a public purpose to be entitled to an exemption from taxation.
2. The actual type of use to which property may ultimately be put is determinative as to questions involving entitlement to an exemption during construction. If the type of use contemplated by the entity seeking the exemption is exclusively public, as well as the actual character of the use to which the property can be put, the property will be entitled to tax-exempt status.
3. If a possibility exists that the property can or will be used for non-public purposes and that issue is raised by the taxing authority, the tax exemption will not be applied prospectively during construction of the facility.
4. Issues related to the use of the Walton Arts Center after construction are not ripe for a decision by the court.
5. The defendants have failed to meet the strict burden of proof imposed upon entities seeking an exemption from ad valorem taxation.
The appellants bring this appeal asserting two points for reversal: (1) The circuit court committed error in ruling that public property under construction for a public purpose shall be denied a tax exemption if there exists an issue as to whether the property may be used for a non-public purpose once completed; and (2) The court erred in finding the appellants had failed to meet their burden of proving that the Walton Arts Center was being used exclusively for public purposes on January 1,1989. On cross-appeal, the appellees urge error in the circuit court’s ruling that the property would have been exempted during the construction period had the appellants met their burden of proof.
As this Court has consistently held, taxation is the rule and exemption the exception. Exemptions from taxation must always be strictly construed, regardless of merit, in favor of taxation and against exemption. Hilger v. Harding College, 231 Ark. 686, 331 S.W.2d 851 (1960); Off-Street Parking Development Dist. No. 1 v. City of Fayetteville, 284 Ark. 453, 683 S.W. 2d 229 (1985). As stated in Brodie v. Fitzgerald, 57 Ark. 445, 22 S.W. 29 (1893):
[Exemptions, no matter how meritorious, a.re acts of grace, and must be strictly construed, and every reasonable intendment must be made that it was not the design to surrender the power of taxation or to exempt any property from its due proportion of the burden of taxation.
The prior cases underscore the limiting language of the constitutional provision and emphasize the heavy burden on those seeking an exemption. Most recently the Court concurred with this approach in Arkansas Conf. Ass’n of Seventh Day Adventists, Inc., v. Benton County Bd. of Equalization, 304 Ark. 95, 800 S.W.2d 426 (1990).
Article 16, § 5(b) requires that exempt property be public property and be used for public purposes. B.D.T. Inc. v. Moore, 260 Ark. 581, 543 S.W.2d 220 (1976). In this case there is no dispute as to the “public property” requirement. The ownership of the tract in question is held in a tenancy in common by two obviously public entities. The issue is whether the property was, at the time in question, “used exclusively for public purposes.” In City of Springdale v. Duncan, 240 Ark. 716, 401 S.W.2d 747 (1966), a city with sewage disposal problems acquired land for use at some undetermined time in the future as a buffer zone for sewage facilities, but had not actually used the lands in this manner, but instead leased them to an individual. A property tax exemption was denied because actual use for a public purpose is required, an expected, intended or contemplated future use not being sufficient to meet the constitutional requirement.
The cases of Hudgins v. Hot Springs, 168 Ark. 467, 270 S.W. 594 (1925), and Forsee v. Bd. of Directors of Bergman Special School Dist., 213 Ark. 569, 211 S.W.2d 432 (1948), cited by appellants, while both permitting exemptions, demonstrate that an existing or prior tax exempt use is required for exemption. In Hudgins, land was acquired and used for city landfill purposes, although the use was subsequently discontinued due to lack of road access. Finding that actual use for public purposes had occurred and that there had been no change in use, this court upheld an exemption. In Forsee, a public school case, an existing structure had been razed by the school district, which intended to make later use of the property by erecting another school building on the old foundation. The Court found that the actual use of the land for school purposes had not ceased, and that its exemption from taxation should continue. Under Hilger v. Harding College, supra, which contains a review of the “exclu sive use” cases, the principles and rules for exemptions of property used for school purposes, for public purposes, and for charity were declared the same due to the similarity of language employed as to each category in article 16, § 5. Consequently, our decisions in the school cases cited, which turn on actual and direct use, readily apply to the present facts.
Appellants further rely on Wayland v. Snapp, 232 Ark. 57, 334 S.W.2d 633 (1960), as authority for the proposition that construction by a public entity of a facility to be used for a public purpose is an exclusive public use under the constitutional provision in issue. We do not concur with this contention because Wayland v. Snapp, supra, concerns an industrial development project facilitated by amendment 49 to the Constitution and Act 9 of the 1960 General Assembly. Both the amendment and the legislative act were intended to facilitate procurement of industry, and the amendment specifically describes such an activity as a public purpose. There is no comparable constitutional or statutory authority indicating that an arts center, prior to its actual operation, will constitute an exclusive public purpose activity.
For ad valorem tax purposes, January 1 of the year in question is the date of determination of property value and right to the exemption. Ark. Code Ann. § 26-26-1201 (1987). On the tax assessment date in the present case, January 1, 1989, the construction of an arts center was proposed, some work had begun in preparation for the removal of existing buildings from the site, but new construction had not commenced. While the record reflects an intent to use the land for the stated purposes, which were stipulated to be generally of a public nature, there had been no actual nor exclusive public use as mandated by the Constitution on the date in question. As correctly stated by the court below, issues of prospective use after construction were not ripe for decision by the court because, as will be shown infra, the evidence showed that the use of the Center after construction might not be exclusively public.
The burden of proving entitlement to the exemption rested with appellants, and we can find no error in the circuit court’s holding that they failed to sustain the burden. Evidence was required that the Center was being used exclusively for public purposes on January 1, 1989. Under the tax exemption statutes, the burden on the party claiming the exemption is to prove entitlement beyond a reasonable doubt. See Ragland v. Dumas, 292 Ark. 515, 732 S.W.2d 118 (1987). We cannot accept any lesser standard for a tax exemption case arising under the Constitution. The evidence before us, including the statement of the executive director of the Center, indicates that fees would be charged for use of the facilities, which may be rented by private individuals, and that, in some instances, events at the Center could be closed to the public at large. The stipulated facts indicate the Center may be used for non-public purposes. Such anticipated private use, regardless of any fee arrangements, could prevent property from being used exclusively for public purposes, which is the constitutional standard. Holiday Island Suburban Improvement Dist. §1 v. Williams, 295 Ark. 442, 749 S.W.2d 314 (1988).
In a prior case this Court affirmed the denial of a tax exemption to property of the City of Fayetteville which was leased to the University for its use and for use by the general public, because the facilities were being rented to private organizations for substantial amounts and in competition with local hotels. Off-Street Parking Development Dist. No. 1 v. City of Fayetteville, supra. Quoting language from Hilger v. Harding College, supra, that decision denied exemption where occasional use was for non-public purposes. In this case, in addition to the use by private groups, there is some evidence, as presented by the statement of the director of the Arts Center of the Ozarks located in Fayetteville, that the Walton Arts Center would be appealing to the same elements of the general public as that private organization, which does not have tax exempt facilities. Consequently, there was evidence before the circuit court which cast at least a reasonable doubt on the actual use of the Center when completed, causing the appellants to fail to sustain their burden of proof regarding the use requirement as of January 1, 1989.
In reference to the circuit court’s holding that a tax exemption for public property under construction may be summarily denied based on the taxing authority’s belief that the property might be used for a non-public purpose when completed, we disagree. The public entity seeking an exemption should be permitted appropriate opportunity to establish by proof its claim of exemption under the standard herein enunciated, otherwise all public property under construction might be subject to taxation based on some perceived chance of a non-public benefit or use. In none of the many cases decided under article 16, § 5(b), is there reference to a standard based on speculation of use by the taxing authority. While this was not reversible error, we must modify the circuit court’s decision in this respect, believing that each case should be judged on its own facts.
In conformity with our holdings on direct appeal, we affirm on the cross-appeal by appellees. If the public property in question had been used in the past for a public purpose, or the applicants for exemption had satisfactorily substantiated an intended exclusive public use, an exemption from taxation would be appropriate. Hudgins v. City of Hot Springs, supra; Yoes v. City of Fort Smith, 207 Ark. 694, 182 S.W.2d 683 (1944); and Forsee v. Bd. of Directors of Bergman Special School Dist., supra.
Affirmed as modified.
Special Justice Hamilton Singleton joins in this opinion.
Newbern and Brown, JJ., not participating. | [
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David Newbern, Justice.
The appellant, Jimmy Dale Patterson, was tried by jury, convicted of murdering Stanley Dunham, and sentenced to life imprisonment. He has raised four points of appeal. He first contends the court should have directed a verdict of acquittal for three reasons: (1) the State failed to prove the killing occurred in the course of a robbery, and thus there was no proof of the underlying offense necessary for a conviction of capital felony murder pursuant to Ark. Code Ann. § 5-10-101 (a)(1) (Supp. 1989); (2) venue was improperly laid in Craighead County because the killing occurred in Greene County; and (3) the State’s evidence proved the killing occurred in self defense. Patterson’s second point is that the Trial Court improperly admitted evidence of a statement made by Patterson despite a promise made during a pretrial hearing that the statement would not be used. His third contention is that two inculpatory statements he made while in custody were not voluntary and should not have been admitted into evidence. Finally, Patterson contends the “fee cap” statute limiting the amount to be paid to counsel appointed to represent indigent criminal defendants is unconstitutional.
We affirm the conviction. There was evidence from which the jury could have concluded the killing occurred in the course of a robbery. Some of the acts requisite to the murder occurred in Craighead County, thus venue was not improperly laid, and the jury was not required to believe evidence of self defense. Thus, we find no error in denial of the directed verdict motion. We find no prejudice resulted from admitting evidence of the statement the State may have agreed to exclude, and we find the totality of the circumstances indicates that the other statements were voluntarily made. Nor is there merit in the “fee cap” argument because Patterson has not demonstrated that his case was prejudiced as a result of the legislative limit on the fee to be paid his appointed counsel.
Stanley Dunham’s body was found in his car in Craighead County. The body and car had been burned, and the body was beyond recognition. The remains were identified by scientific means. Patterson was arrested and questioned about the death on January 13, 1990. He denied knowing Dunham, and his statement was generally exculpatory. Patterson was held in the Craighead County jail that night, and officers found a piece of paper in Patterson’s billfold with Dunham’s name and address on it.
On January 14 Patterson made another statement. In it he admitted having killed Dunham. He said both he and Dunham had dated Judy Stone. He knew Dunham had come to Jonesboro from his Ohio home, and he called Dunham at Dunham’s room at the Holiday Inn. Dunham came to Patterson’s apartment house, and they got into an argument in the parking lot. Dunham threatened Patterson, and Patterson shot Dunham once in the upper body with a single shot .22 caliber gun, placed the body in Dunham’s car, and drove the car to a place called “Hill Top” where there was a telephone booth. Patterson said he called his son to bring gasoline to him. After telling his son to go “down the road,” he splashed the gasoline around in the car and then set it afire. An explosion occurred, and Patterson suffered burns on his arms. Patterson had removed two pistols, a pocket knife, a wrist watch, and over $ 1000 cash from Dunham’s body or from the car. Patterson said he then went to his hometown in Tennessee where he gave his father $600 in exchange for a check in that amount which he later deposited in a bank account.
Yet another statement was taken from Patterson on January 15. In it he discussed in great detail his relationship with Judy Stone and a woman named Peggy Brown. Stone worked for Dunham during the time she and Patterson had a relationship. She travelled to Ohio to help Dunham in his business from time to time. Dunham sent her money while she was in Arkansas. She told Patterson that Dunham made a lot of money but that his children kept him “drained” financially. She also told Patterson that Dunham was obsessed with her and would be dangerous to them if they married or continued their relationship. She assured Patterson that she and Dunham had had no sexual relationship, but Patterson was suspicious anyway, and he knew she had a relationship with yet another man in Indiana.
Patterson said that during the time Stone spent in Ohio he developed a relationship with Peggy Brown. When Stone returned to Arkansas from a five-week stay in Ohio, Patterson and Stone got back together, and Patterson asked Brown to stop seeing him. Brown persisted, however, and was with Patterson when he killed Dunham.
In the January 15 statement, Patterson gave substantially different details about the killing. He said when he called Dunham at the Holiday Inn, he mentioned Stone and said they needed to talk. Dunham agreed to meet him at a place on highway 69 in Greene County. Patterson waited on Dunham who drove to the appointed place. When their cars were stopped four or five feet apart facing opposite directions, Patterson said Dunham put his hand in his coat pocket as if to draw a gun. Patterson picked up his single-shot .22 from the floorboard of his car and shot Dunham. He then got out of his car and went to Dunham. He found no gun in Dunham’s jacket but did find a .44 caliber pistol on the seat of Dunham’s car. He stuffed Dunham’s body in the trunk of Dunham’s car, and removed items from the car and from the body. The burning of the car with gasoline brought by Patterson’s son, occurred much as he had said in his January 14 statement, with the additional detail that Peggy Brown drove Patterson’s car back to Patterson’s apartment.
Patterson told yet another version of the killing in his trial testimony. He said that he wanted to meet Dunham to talk him out of trying to marry Stone. He called Dunham at the Holiday Inn and asked him to meet at the highway 69 location, but when they met there, both got out of their cars and Dunham said “Young man, I am going to marry Judy Stone.” Patterson replied that it would not happen, and that he had been going with Stone for two years. Dunham then went “into a rage,” and came toward Patterson as if to “bear hug” him. Patterson said he struck Dunham and turned back toward his car when he heard Dunham say “I’ll kill you.” Patterson said he then jumped in his car and attempted to drive away but wound up at the dead end of a gravel road. Dunham approached in his car and stopped at an angle near Patterson’s car, and that was when the shooting took place.
1. Directed verdict
a. Evidence of robbery
Patterson was charged with capital murder as defined in Ark. Code Ann. § 5-10-101 (a)(1) (Supp. 1989). The'relevant portion of the statute makes a killing capital murder if it is committed in the course of or furtherance of robbery. The argument here is that a verdict should have been directed in favor of Patterson on capital murder because the State did not prove that the robbery was anything other than an afterthought occurring after Dunham was dead.
Patterson is correct in stating that the State did not present any evidence directed to whether Patterson had formed an intent to rob Dunham prior to his having killed him. There was evidence that Patterson had been in financial straits as late as a month before the killing, and he had heard from Stone that Dunham made a lot of money but was relieved of most of it by his children. The circumstantial evidence consisting of the close proximity of time and place of the killing and the taking of the decedent’s property so as to make it all one transaction is sufficient to allow the jury to conclude the killing occurred in the course of a robbery. Pomerleau v. State, 303 Ark. 275, 795 S.W.2d 929 (1990); Owens v. State, 283 Ark. 327, 675 S.W.2d 834 (1984); Grigsby v. State, 260 Ark. 499, 542 S.W.2d 275 (1976).
b. Venue (jurisdiction)
Patterson contends that, as the killing occurred in Greene County, the Craighead County Circuit Court was without authority to try him for it. Arkansas Code Ann. § 16-88-105(b) (1987) provides, “[t]he local jurisdiction of circuit courts . . . shall be of offenses committed within the respective counties in which they are held.” Section 16-88-108(c) provides, however, “ [w] here the offense is committed partly in one county and partly in another, or the acts, or effects thereof, requisite to the consummation of the offense occur in two (2) or more counties, the jurisdiction is in either county.”
In Hill v. State, 253 Ark. 512, 487 S.W.2d 624 (1972), we reviewed these statutes and similar ones, as well as decisions under them, in other states. Although it was not the holding of the Hill case, we concluded for the purpose of guiding the trial court on retrial that these laws are remedial and to be construed liberally.
In Thrash v. State, 291 Ark. 575, 726 S.W.2d 283 (1987), the evidence showed that Thrash hatched a plan in Desha County to steal a vehicle. The murder and robbery occurred in Lincoln County, but the body was returned by Thrash to Desha County. In Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990), Pilcher met his victim in Saline County and invited him to Grant County where the robbery and homicide occurred. Pilcher then brought the body back to Saline County. We held Thrash and Pilcher were properly tried in Desha and Saline Counties respectively because in those counties “acts requisite to the consummation of the offense” had occurred. The cases are virtually indistinguishable from this one on this issue, and we conclude the Craighead County Circuit Court had jurisdiction of the alleged offense.
c. Self defense
Patterson argues, without citation of authority, that his defense of self defense was established as a matter of law because the only evidence the state put on with respect to how the killing took place consisted of Patterson’s statements of January 14 and 15, in each of which he said he killed Dunham out of fear that Dunham was about to shoot him.
The Trial Court’s instruction to the jury described self defense as an affirmative defense. Patterson made no objection to the instruction. Cf AMCI 4105, the model instruction on use of force in defense of a person which contains no such description. At one point in the instruction given in this case, the Trial Court stated that Patterson had the burden of proving self defense by a preponderance of the evidence. At another point the instruction stated that his burden was only to raise a reasonable doubt as to his guilt.
In his argument, Patterson states that “the appellant has the burden of proof by a preponderance of the evidence the affirmative defense of justification self-defense and the use of deadly force.” The State also argues that self defense is an affirmative defense, citing Ark. Code Ann. § 5-2-607(a) (1987) which states the conditions under which a person is justified in using deadly force, and § 5-1-111(d) (1987) which states that a defendant must prove an affirmative defense by a preponderance of the evidence. The State then cites McCaslin v. State, 298 Ark. 335, 767 S.W.2d 306 (1989), in which we made it clear that a jury is not required to believe a defendant’s evidence on the affirmative defense of entrapment.
Neither of the statutes cited by the state defines justification or self defense as an affirmative defense. In Peals v. State, 266 Ark. 410, 584 S.W.2d 1 (1979), this Court, considering the propriety of an instruction on “choice of evils,” stated, “We think the matter of justification was treated as an affirmative defense at the trial. However, justification is not an affirmative defense. ... It becomes a defense when any evidence is offered tending to support its existence and such evidence may be introduced by either side. Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979).” AMCI 4105 provides a defendant is only required, in asserting the defense, to “raise a reasonable doubt” in the jurors’ minds. In Doles v. State, 275 Ark. 448, 631 S.W.2d 281 (1982), we held that an accused was entitled to an instruction on justification where there was some evidence of self defense. We wrote, “Justification is not an affirmative defense which must be pled, but becomes a defense when any evidence tending to support its existence is offered to support it,” citing the Peals and Thomas cases.
Regardless of the Trial Court’s mistake in describing justification or self defense as an affirmative defense and in giving two standards of proof, one of which was erroneous, there was no reversible error because no objection was made to the instruction. Indeed the error may have been induced by the fact that Patterson treated self defense as an affirmative defense from the outset of the litigation and filed a “Notice of Intent to Raise Affirmative Defense” reciting “Justification —■ Use of Deadly Physical Force in Defense of a Person a/k/a self defense.”
Even in a capital murder case, a defendant must make a contemporaneous objection at trial to preserve a claim of error for review. Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987); Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986).
The Thomas case provides the answer to Patterson’s argument that his unrebutted statements presented by the state prove self defense as a matter of law. We pointed out that we are not required to view the evidence most favorably to the defendant. The opposite is true. The jury is not required to believe all of the defendant’s statements about what happened at the time of the homicide. It may accept or reject any part of the testimony of a witness. Gilliam v. State, 294 Ark. 117, 741 S.W.2d 631 (1987). In this case the evidence was certainly sufficient to show that Patterson killed Dunham, and there is nothing in the record to cause us to conclude that self defense or justification was, as a matter of law, proven by either party.
2. The January 13 statement
At the pretrial suppression hearing, the prosecution stated it would present only the voluntariness of the January 14 and January 15 statements for review because it had no intention of introducing the January 13 statement into evidence. Yet at the trial, the statement, which was exculpatory, was sought to be introduced for impeachment purposes.
Patterson moved to exclude the statement, and the Trial Court held a hearing out of the presence of the jurors to determine its admissibility. It was shown that clearly there was no surprise to Patterson or his counsel who had known of the statement. The only argument seems to be that the State should not have broken its “promise.” Patterson cites no authority on this point and makes no argument which convinces us that any unfair prejudice resulted from the introduction of the statement. This court does not reverse in the absence of a showing of unfair prejudice. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).
3. The January 14 and 15 statements
Patterson contends he asked for an attorney each time he spoke with the sheriffs deputies who took statements from him. The officers testified either that he made no such request or that they could not recall him making it. Patterson contends that at one point when he asked for an attorney to advise him, the officers interviewing him sent for a deputy prosecutor who did not speak to him directly but who answered questions he had about possible sentences by relaying the answers through a sheriffs deputy. The officers testified that a deputy prosecutor was at the jail where they questioned Patterson for up to 30 minutes, and they did ask him questions in connection with the case, but they did not recall that he was called there as a result of Patterson’s request for the assistance of a lawyer.
Patterson also contends he was promised that, if he confessed, the death penalty would be waived and his son and Stone would not be sent to prison.
The issue of voluntariness of an inculpatory statement given by an accused in custody is one this Court determines after looking at the “totality of the circumstances” displayed by the record. Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991). The trial court must resolve conflicts in testimony, and we will not reverse unless the decision in that respect is clearly erroneous. Fuller v. State, 278 Ark. 450, 646 S.W.2d 700 (1983).
Patterson has given us nothing to suggest that the Trial Court in this case was clearly erroneous in choosing to believe the officers rather than Patterson on these questions.
4. The “fee cap”
In Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991), this Court held unconstitutional the statute limiting fees which can be paid to an indigent defendant’s appointed counsel. We had previously held, however, that we would not reverse a conviction on the basis of the constitutional inadequacy of the law unless it were shown that the complaining defendant’s trial was prejudiced by the inadequacy of the fee paid his counsel. Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991). Patterson has made no such showing.
5. Rule 11(f)
As this is a case in which there is a sentence to life imprisonment, the record has been reviewed for all objections decided adversely to Patterson, and we find no error.
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Robert H. Dudley, Justice.
This is a proof-of-will case in which only one disinterested witness testified that the testator signed the will. The probate court admitted the will to probate. We reverse and remand.
The instrument offered as a will purportedly contained the testator’s signature, and, although it did not contain an attestation clause, two (2) people signed it as witnesses. At trial, three (3) witness testified about the testator’s signature. The first witness testified that he signed as an attesting witness and that he recognized the signature on the will as the testator’s. The second witness, also an attesting witness, did not recognize the testator’s purported signature, and testified that she had no recollection of the will or of the events surrounding it. The third witness, who was not an attesting witness and who stood to gain all of the decedent’s property if the will was admitted, testified that the signature on the will was the testator’s.
Ark Code Ann. § 28-40-117(a) (1987) provides:
Proof of will.
(a) An attested will shall be proved as follows:
(1) By the testimony of at least two (2) attesting witnesses, if living at known addresses within the continental United States and capable of testifying; or
(2) If only 1 or neither of the attesting witnesses is living at a known address within the continental United States and capable of testifying, or if, after the exercise of reasonable diligence, the proponent of the will is unable to procure the testimony of two (2) attesting witnesses, in either event the will may be established by the testimony of at least two (2) credible disinterested witnesses. The witnesses shall prove the handwriting of the testator and such other facts and circumstances, including the handwriting of the attesting witnesses whose testimony is not available, as would be sufficient to prove a controverted issue in equity, together with the testimony of any attesting witness whose testimony is procurable with the exercise of due diligence. [Emphasis added.]
This statute means that at least two (2) attesting witnesses, if competent and available, are required to prove the signature of the testator. Children’s Mercy Hosp. v. Chick, 262 Ark. 520, 559 S.W.2d 3 (1978).
The probate judge was aware that the will was not proved by the two (2) attesting witnesses as required by the statute but found that there was a presumption of proper execution under our case of Anthony v. College of the Ozarks, 207 Ark. 212, 180 S.W.2d 321 (1944). While we appreciate the difficulty the probate judge had in understanding that case, we think she misinterpreted it. It was decided before the present Probate Code was adopted. At that time, the statute setting out the mode or method of execution of a will, while not identical, was similar to today’s statute. Compare section 14512 of Pope’s Digest with Ark. Code Ann. § 28-25-103 (1987). However, the statutes providing for proof of a will were different. Compare sections 14535, 14536, and 14537 of Pope’s Digest with Ark. Code Ann. § 28-40-117(a) (1987). With those differences in mind, the case can now only stand for the proposition that once the signing of a will is proven by the two (2) attesting witnesses, and there is no suggestion of fraud or undue influence, there is a presumption that the testator declared to the attesting witnesses that the instrument was his will; and that he either signed in front of them or acknowledged to them his signature on the instrument; and that the attesting witnesses signed at the request of and in the presence of the testator. See Ark. Code Ann. § 28-25-103 (1987).
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Tom Glaze, Associate, Justice.
This is a title insurance case involving an erroneous property description contained in the mortgagee’s insurance policy written by appellant Stewart Title Guaranty Company (Stewart Title). The title insurance policy, in the amount of $316,200, was issued on June 28,1983, to Twin Lakes Federal Credit Union (Twin Lakes), the mortgagee of 400 acres owned by Chris and Rosalee Wade. After a couple of interim transactions, the note and mortgage was purchased by appellee, Kenton Treat. The property description contained in the mortgage and the title insurance policy erroneously placed 32.5 acres in the wrong quarter section. Instead of SE */», SW the description read SW '/i, SE ‘/4. Because of this erroneous property description, 32.5 acres were included in the mortgage and title insurance policy that were not owned by the Wades.
On November 13,1987, when the Wades became unable to make their payments, Treat sued on the note and mortgage and obtained a judgment in excess of $400,000. Treat received $100,000 from the sale of the property at a foreclosure sale on June 15,1989. The Wades are now in bankruptcy. On February 22, 1990, Treat filed suit against Stewart Title seeking recovery under his title insurance policy. In this suit, Treat alleged that, on March 28, 1988, he had notified Stewart Title of the erroneous property description, but no action was taken to correct the problem. After two separate hearings, the trial judge ruled that Stewart Title was liable under the insurance policy and awarded a judgement of $21,125 plus costs. Stewart Title appeals this judgment arguing that there is insufficient evidence to support the court’s ruling on liability and the amount of damages. We find no error, and therefore affirm.
A representative from Stewart Title and its attorneys began the first hearing by offering as a settlement, a quitclaim deed to the 32.5 acres erroneously left out of the title insurance policy. Stewart Title stated that by offering this quitclaim deed, the insurance company would be relieved of liability. Treat refused this offer for the following reasons: 1) Stewart Title could not reform the insurance contract now after knowing about the error for two and one-half years; and 2) the Wades were in bankruptcy, and Stewart Title could not obtain a quit-claim deed for the property without going through bankruptcy court. Because of the comments made by Stewart Title’s attorneys, Treat asserted Stewart Title had stipulated to its liability. Thus, Treat offered nothing further to prove his case at the first hearing. Stewart Title contends that it did not stipulate to liability and that Treat waived his right to present evidence on this issue.
From a review of the proceedings below, we call attention to the following comments made by Stewart Title’s attorneys:
(T)his all came about due to a scrivener’s error----It was the intent to pledge this property for that loan. It’s the intent of the title policy to guarantee that if the loan is forfeited, you may acquire title by foreclosure.
After these comments, Treat stated Stewart Title had admitted liability and therefore the only issue remaining was whether or not Stewart Title had to pay money damages. The trial judge then allowed Treat to have one of his witnesses testify on the issue of damages. At the end of the hearing, the trial judge made the following statement:
Gentlemen, just so it’s clear on the record, there’s no dispute here and the reason the plaintiff has not presented testimony is, there’s no dispute that there was a real estate mortgage given to Mr. Wade to Twin Lakes Federal Credit Union. . . .There was an assignment of that mortgage to Mr. Treat. Subsequently, Mr. Treat had to foreclose that mortgage. That there was a scrivener’s error in the real estate mortgage misdescribing a portion of the land sought to be covered by the real estate mortgage.
The record reflects that both parties agreed to the correctness of this statement.
We read the court’s summation above as showing that the trial judge believed that the parties had stipulated to the issue of liability. And, after review of Stewart Title’s comments below, we agree with Treat’s and the court’s conclusion that Stewart Title agreed to facts reflecting its liability in this case. We also note that Stewart Title took no action to counter Treat’s and the court’s belief. Thus, it would be grossly unjust for us to allow Stewart Title to prevail in its argument that Treat erred in failing to present further evidence on the liability issue.
We now address the damage issue. Both parties agree that in order to recover under his insurance policy, Treat was required to show a loss. The record shows that because of an erroneous property description that included 32.5 acres of someone else’s property, the Wades retained ownership of their 32.5 acres free of encumbrances. In other words, when Treat foreclosed after the Wades defaulted on their note, Treat could not foreclose on 32.5 acres of the 400 acres covered by the title insurance because those 32.5 acres belonged to someone else, not the Wades. In proving his damages, Treat presented testimony which showed the value of the 32.5 acres erroneously included in the policy to be $27,000. Another witness testified that the 32.5 acres owned by Wade and the acreage erroneously included in the policy were worth approximately the same value—$500 per acre.
For the first time, Stewart Title argues on appeal that Treat did not prove the proper loss for a mortgage title insurance policy or the proper measure of damages. Stewart Title made no objection to the value testimony presented below. Instead, Stewart Title acknowledged Treat had sustained a loss but attempted to remedy Treat’s loss by the Wades giving Treat a quitclaim deed to their 32.5 acres, which would be subject to the bankruptcy court’s abandonment of that acreage. Treat rejected this idea, and Stewart Title offered no further argument regarding Treat’s loss, nor did it question the measure of damages utilized or the damage evidence presented in the trial court below. As we have stated numerous times, this court will not consider arguments not presented to the trial court. See, e.g., Crowder v. Crowder, 303 Ark. 562, 798 S.W.2d 425 (1990).
Even if we could address Stewart Title’s argument, from our reading of Treat’s title insurance policy, it is clear that the policy covers, among other things, the loss or damage sustained or incurred by the insured by reason of “title to the estate or interest described in Schedule A being vested otherwise than as stated therein.” Schedule A reflects that the estate or interest referred to at the date of the policy is vested in Chris and Rosalee Wade. As previously stated, the 32.5 acres described in the insurance policy were not vested in the Wades. Thus, under the terms of Stewart Title’s own policy, Treat sustained a loss for which he is entitled to recovery.
For the reasons stated above, we affirm.
We note that Stewart Title is represented by different attorneys on appeal. | [
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Tom Glaze, Justice.
Statutory construction of Act 639 of 1989 (codified as Ark. Code Ann. §§ 14-207-101 to -106) is the subject of this appeal. The City of Bentonville, appellee, annexed certain territory located near the city limits. Under authority of the Public Service Commission, appellant Carroll Electric Cooperative (Cooperative) provided the electricity for this territory. After annexation, the City put up poles and lines so it, too, could provide electricity to this newly annexed area. Three of the Cooperative’s customers requested that their electrical service be disconnected, so that the City could now provide them with electricity. It is undisputed that the City did not acquire any of the Cooperative’s poles, lines, facilities or other physical property, but the Cooperative argues that the City must still compensate it for the loss of its customers under Act 639.
This appeal is the consolidation of two cases involving the three customers who requested the Cooperative to disconnect their services. The Cooperative filed suit for temporary and permanent injunctions to prevent the City from providing electrical service to any of the Cooperative’s member customers without first complying with Act 639 of 1989. The trial court granted a preliminary injunction in one of the cases, but it later granted the City’s motion to dismiss both complaints finding that Act 639 does not apply unless the city takes physical property or facilities. On appeal, the Cooperative argues that the trial court erred in ruling that Act 639 does not provide compensation for the loss of its customers. We do not agree and therefore affirm.
Under section 3 of Act 639, Arkansas municipal corporations owning and operating electric utility systems have the right to acquire any or all properties and facilities of the electric public utilities serving within the newly annexed areas after giving a six-month written notice. Further, section 4 of the Act provides the procedures and valuation formulae governing the compensation of an electric public utility whose properties and facilities have been acquired by a municipality. Subsections (A), (B) and (C) of section 4 are pertinent here and provide as follows:
(A) After the six month notification by the municipality of its election to acquire public utility system properties and facilities the municipality shall pay to the electric public utility an amount equal to the following:
(i) The present-day reproduction cost new of the properties and facilities being acquired, less depreciation computed on a straight-line basis, plus
(ii) An amount equal to the cost of constructing any necessary facilities to reintegrate the system of the electric public utility outside the annexed area after detaching the portion to be sold.
(B) In the event that the electric public utility system does not provide wholesale power service to the municipality acquiring its properties and facilities, the municipality and the electric public utility shall, for a period of six (6) months after the notification required by Section 3 of this act, consistent with laws, rules and regulations of appropriate regulatory authorities and existing power supply agreements negotiate, in good faith, for power contracts which would provide for the purchase of power by the municipality from the electric public utility for an amount ofpower equivalent to the loss of any sales to customers of the electric public utility acquired by the municipality under this act. In the event that the municipality ceases the receipt of wholesale power service from the electric public utility system consistent with the terms of the wholesale power supply agreement prior to five (5) years after the acquisition of electric public utility system properties and facilities under this act, then the municipality will pay, pro rata for the remainder of such five (5) year period in accordance with subsection (C)(ii) of this section.
(C) In the event that such an agreement pursuant to Section 4 (B) cannot be reached within such six (6) month period, then the municipality will pay the public utility for facilities in addition to amounts required by subsection A (i) and (ii) of this section either:
(i) Two hundred thirty percent (230%) of gross revenues less gross receipts taxes received by the public utility for the twelve (12) month period preceding notification from customers in the annexed area or;
(ii) The amount required by subsection (C) (i) payable over five (5) years with interest at the then prevailing AAA insured tax exempt municipal bond interest rate. (Emphasis added.)
In its argument, the Cooperative refers to the language “loss of any sales to customers” in subsection B above and contends that provision provides the Cooperative is entitled to compensation merely for the loss of its customers regardless of whether the City acquired the Cooperative’s property and facilities. Such an interpretation takes the “loss of sales” language out of context and ignores the purpose and plain meaning of the section as a whole. Each subsection of section 4 providing compensation to an electric public utility is triggered when a municipality acquires a public utility’s properties and facilities and the public utility no longer supplies electricity to that municipality. In the present case, the City acquired none of the Cooperative’s properties or facilities, and although it has lost a few customers who chose to switch to the City’s system, the Cooperative continues to provide electrical service to other customers in the annexed area.
The Cooperative also relies strongly on the case of Woodruff Electric Coop. Corp. v. Ark. Public Service Comm., 234 Ark. 118, 351 S.W.2d 136 (1961). There, Forrest City annexed territory where Woodruff Electric Cooperative provided electricity. When Forrest City annexed the territory, Arkansas Power and Light, a lessee of the City, commenced furnishing electricity for the area, and as a result, the Woodruff Cooperative lost nine customers. The Woodruff court construed Act 85 of 1955 which was the controlling law at the time. That Act 85 in pertinent part provided as follows:
If any rural area allocated by the Public Service Commission to a corporation organized under this Act shall be included in, or become a part of any incorporated city, town, or village already being served with electricity by a regulated public utility, then the members of said corporation residing or operating within such city, town or village shall lose their membership and right to receive service from said corporation. It shall be the duty of the Commission to enforce the provisions of this Act and to provide adequate compensation to the corporation for its loss of area and property. . .
Based on the provision quoted above, Woodruff Electric Cooperative was no longer able to provide electrical service to its customers when Forrest City annexed the area. Thus, this court held that Forrest City under the Act, was required to compensate Woodruff for the loss of its nine customers.
The Woodruff case involved different law and different facts. The above-cited provision in Act 85 relied on in Woodruff has since been omitted when Act 85 was amended by Act 103 of 1957, now codified as Ark. Code Ann. § 23-18-331 (1987). Act 103 now provides that cooperatives can continue to provide service to the annexed areas and that the cooperative corporation continuing its electrical service into this newly annexed area must charge a comparable rate.
In sum, under the current statutory provisions, when the City acquires the Cooperative’s properties or facilities, it owes compensation to the Cooperative under section 4(A) of Act 639 of 1989. Further, in the event the Cooperative provides no electricity to the City acquiring its properties or facilities, then the City must compensate the Cooperative as described under subsection 4(B) of Act 639. When the City, however, does not acquire the Cooperative’s properties or facilities, Act 639 does not apply. Instead, the Cooperative merely becomes an alternative supplier, and the City and the Cooperative can both provide electrical service to the area and compete for customers as provided under Act 103 of 1957.
Because the City here acquired none of the Cooperative’s facilities, it owes no compensation to the Cooperative. Instead, the Cooperative can compete with the City for customers.
Finally, we note that the Cooperative, in oral argument, cited several cases from other jurisdictions, but primarily relied on Delmarva Power & Light v. Seaford, 575 A.2d 1089 (Del. 1990), where an electric public utility filed a claim for inverse condemnation after the city annexed territory where the public utility provided services and its customers subsequently switched to the city utility. While there are many similarities between the facts before us and the ones in Seaford, we cannot agree the holding in Seaford is applicable or persuasive. The Cooperative has presented no inverse condemnation claims in this case. Instead, both parties below and on appeal argued Arkansas statutory and case law, and the trial court made its ruling based on this law, as we have on appeal.
For the reasons stated above, we affirm the trial judge’s construction of Act 639.
The Act 103 of 1957 language pertinent here is still in effect, but the Act was amended for other purposes. | [
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Steele Hays, Justice.
This appeal is from a grant of a summary judgment motion for the government on a claim for inverse condemnation. We affirm the trial court.
Raymond and Hallie Barrett, appellants, own land in Poinsett County, Arkansas. They entered into a contract on November 17, 1986, with the governments of various cities in Craighead County aligned in an entity calling itself the “Northeast Arkansas Regional Solid Waste Disposal Authority.” The Barretts were to sell the Poinsett County land to the Authority for use as a landfill for Craighead County. Under the agreement the Authority acquired an option to purchase the property for a price of $750,000. The option expired after March 31, 1987.
Appellants allege that Poinsett County was opposed to using land in its county as a solid waste disposal landfill, and so in response to the Barrett contract, Poinsett County passed a zoning ordinance in December of 1986, preventing any property in the township in which the Barrett land was located from being used for landfill purposes.
On January 15, 1987, the Barretts filed suit in Poinsett County contending that the ordinance in question was illegal and seeking a permanent injunction to prevent the effect of said ordinance. However, while suit was pending, and before closing of the sale pursuant to the terms of the Barrett contract, the Arkansas legislature passed legislation preventing one county from placing a landfill operation in an adjoining county without the consent of the receiving county.
In November 1987, appellants filed an amended petition for declaratory judgment, injunctive relief and damages, claiming there had been a temporary taking of the Barretts’ land by Poinsett County. Appellants contend the Poinsett County action enacting the ordinance delayed the closing of their contract by an illegal spot zoning ordinance; that if it had not been for the Poinsett County ordinance, appellant would have completed their transaction with the Authority prior to the legislative action.
On November 28, 1989, the trial court rendered its judgment. The court assumed for the purpose of the ruling that the zoning ordinance of Poinsett County was unconstitutional. However, the court found the facts did not give rise to inverse condemnation, and that the only other cause of action that might arise would be a tort action for interference with contractual relations which could not prevail because Poinsett County would be protected by governmental immunity.
From that order, appellants bring this appeal. They challenge only the trial court’s finding that there was no inverse condemnation. While we do recognize a cause of action for inverse condemnation under appropriate circumstances, see Robinson v. City of Ashdown, 301 Ark. 226, 783 S.W.2d 53 (1990), we find the trial court correctly granted summary judgement for appellees in this case.
It is not clear from the trial court’s order whether it found there was no cause of action because of the nature of the injury or simply because the injury was not extensive enough to constitute a taking. While it may be debatable that there is no cause of action for the type of injury suffered, see 4 J. Sackman, Nichols on Eminent Domain § 13.33 (1985), it is not necessary for us to decide that question, as it is clear that any injuries sustained were not sufficient to support an action for inverse condemnation.
The United States Supreme Court has held that when there was total diminution in value, a taking through police power regulations occurred. Pennsylvania Coal Co. v. Mahon, 239 U.S. 394 (1915). However, regulations affecting less than all of the use or all of the value of property, remain to be considered on the particular circumstances of each case. Pennsylvania Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). So in Pennsylvania Central, supra, the governmental regulation restricting the use of air space above the train terminal, where it simply prohibited the owners or others from occupying certain features of that space while allowing them to use gainfully the remainder of the parcel was not sufficient damage to constitute a taking. In similar cases, we have held that a much greater reduction in value or use of the property than is present here would not constitute a regulatory taking. See e.g. Winters v. State, 301 Ark. 127, 782 S.W.2d 566 (1990); J.W. Black Lumber Co. v. Ark Dept. of Pollution Control & Ecology, 290 Ark. 170, 717 S.W.2d 807 (1986).
No reduction in the $350,000 valuation of appellants’ land has been shown, or even alleged, only the lessening of one profitable use of the property. Appellants had been using the land for agricultural purposes, continued to use it in that manner during these legal proceedings, and still had available in the future all other possible uses. Given the facts and circumstances this case when set against the standards previously laid down on damages for inverse condemnation, we must agree with the trial court that any injury sustained here was not sufficient to support appellants’ cause of action.
Affirmed.
Glaze, J., concurs. | [
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Robert H. Dudley, Justice.
In this appeal of a boundary line dispute, we set aside a finding of fact by the chancellor and hold that the boundary line was established by acquiescence.
The facts, as viewed in the light most favorable to the appellees, are as follows. Gary and Brenda Stratton acquired eleven (11) acres of land about four (4) miles north of El Dorado in 1975. They lived in the house located on the eleven-acre tract for only a short time before they decided that they wanted a new house. In planning to build the new house they decided to divide the eleven-acre tract by selling three (3) acres, which included the existing house, and retaining the other eight (8) acres on which to build their new house. They offered to sell the existing house and three acres through a realtor. In 1977, Kenneth and Virginia Robertson accepted the offer. At this time there was no legal description of the three-acre tract. Consequently, Gary Stratton and Kenneth Robertson walked over the land, agreed on the boundaries, and fixed all corners and turning points with iron pins. The Strattons next hired a surveyor, F.M Methuin, and requested that he determine the legal description of the three (3) acres according to the location of the iron pins. The surveyor completed his work in April of 1977 and gave the parties a legal description that was used in the warranty deed from the Strattons to the Robertsons. Unfortunately, the legal description was in error and did not describe the tracts according to the agreed line. It described the three-acre tract as extending about fifteen (15) feet into the eight-acre tract on the west side and as extending a few feet into the eight-acre tract on the north side. At the time, however, no one knew of the error in the deed.
In 1983, the Strattons sold their eight-acre tract to the Evanses. The boundaries were again represented as being the iron pins. The Stratton’s deed to the Evanses described the eleven (11) acres but excepted the three (3) acres deeded to the Robertsons. Thus, the Evanses’ deed contained the same error. In 1988, the Evanses conveyed the eight-acre tract to James and Sandra Harris. The Harrises used the same description but also thought the iron pins represented the boundaries. Soon thereafter, the Harrises decided to build a fence on the boundary line as marked by the iron pins. They set fence posts along the line between iron pins and began construction of the fence.
The Robertsons apparently thought that some of the fence posts extended past the iron pin line and onto their property. They employed a surveyor, Ted Pill, to shoot a line for the posts. Mr. Pill’s measurements showed that some of the fence posts were a little out of line according to the iron pins, but that according to the legal description, the Harrises were fifteen (15) feet over onto the Robertson’s land. The Harrises repositioned the fence posts to be on the iron pin line.
The Robertsons then employed another surveyor, Samuel Ball, to conduct a complete survey of their property and plot the results. He entered the bearings and distances in a computer plotter and found the line as described in the deeds was in fact about fifteen (15) feet west of the line established by the pins. He testified that the first surveyor who set out the original metes and bounds description of the three-acre tract made an error in computing the angles and that caused the difference. In 1988, the Robertsons sued the Harrises and asked for the removal of the fence on the iron pin line. The chancellor held that the description in the deed prevailed over the iron pin line and ordered the fence removed.
In Seidenstricker v. Holtzendorf, 214 Ark. 644, 217 S.W.2d 836 (1949), this court set out rather completely our law on boundaries by acquiescence. We wrote:
Acquiescence, by owners of adjoining lands, in a boundary line, as shown by a division fence, for more than seven years will ordinarily confirm the boundary line as thus located, even though the fence may not be placed on the true line between the tracts.
In the case of Gregory v. Jones, 212 Ark. 443, 206 S.W.2d 18, dealing with a question similar to the one involved here, we said: “In Goodwin v. Garibaldi, 83 Ark. 74, 102 S.W. 706, Mr.. Justice Riddick, in sustaining a long-existing boundary between adjacent owners, quoted the classic language of Hon. U.M. Rose, as found in Cunningham v. Brumback, 23 Ark. 336: ‘ . . . better that ancient wrongs should be unredressed than that ancient strife should be renewed.’ Robinson v. Gaylord, 182 Ark. 849, 33 S.W.2d 710, is another case in which an old line was sustained, even against a new survey. Appellee argues that the original rail fence line was established by a mutual mistake and should be changed to the 1946 line, and cited Randleman v. Taylor, 94 Ark. 511, 127 S.W. 723, 140 Am. St. Rep. 141, as authority for such contention. Furthermore, appellee says that there was no dispute prior to the establishing of the rail fence line, so—appellee says—the rule stated by Chief Justice Hart in Robinson v. Gaylord, supra, and restated in Peebles v. McDonald, 208 Ark. 834, 188 S.W.2d 289, does not apply to this case. It is true that in this case the original rail fence line was established without a prior dispute as to boundary; but the recognition of that line for the many intervening years (34 in this case) shows a quietude and acquiescence for so many years that the law will presume an agreement concerning the boundary. In Deidrich v. Simmons, 75 Ark. 400, 87 S.W. 649, there had been no dispute prior to the establishment of the fence line which had been accepted as the common boundary for many years; and in that case Justice McCulloch, speaking for this court said: ‘The proprietors of adjacent lands may by parol agreement establish an arbitrary division line, or an agreement may be inferred from long-continued acquiescence and occupation according to such line, and they will be bound thereby.’ So in the case at bar the recognition of a common boundary for a long period of time is evidence of agreement and acquiescence, which may well exist without the necessity of a prior dispute. See 8 Am. Juris. 804. As stated in the annotation in 69 A.L.R. 1491: ‘... where the owners of adjoining land occupy their respective premises up to a certain line, which they mutually recognize and acquiesce in as the boundary line for a long period of time,... they and their grantees are precluded from claiming that the boundary line thus recognized and acquiesced in is not the true one, although such line may not be in fact the true line according to the calls of their deeds.’ ”
The proof in this case established that the parties and their grantees acquiesced in the boundary set out by iron pins for longer than seven (7) years. Accordingly, we reverse the chancellor and remand this case for entry of a decree consistent with this opinion. That decree must locate the boundary by description. In Rice v. Whiting, 248 Ark. 592, 452 S.W.2d 842 (1970), we explained that where a boundary line is involved, the decree, the permanent record, should describe the line with sufficient specificity that it may be identified solely by reference to the order and without reference to a plat which may not be in existence in a few years.
As stated at the beginning of this opinion, we are setting aside a finding of fact by the chancellor. We only do so when such a finding is clearly erroneous. ARCP Rule 52 (a); Kinghorn v. Hughes, 297 Ark. 364, 761 S.W.2d 930 (1988). The chancellor in this case based his ruling on the specific finding that:
Defendants have not proven that when plaintiffs acquired the property from the Strattons that the grantors and grantee intended that the boundary lines of the property be fixed by the iron pins.
Because we give such deference to a Chancellor’s finding of fact, we set out some of the testimony that causes us to reverse the finding. Gary Stratton, the grantor who divided the eleven (11) acres testified:
Q: Okay. Now, if you would, tell the Court if you had the occasion to meet with the Robertsons or either of them on the property to discuss the terms of the sale?
A: Yes, we did.
Q: More than once?
A: Pardon?
Q: More than once?
A: I recall one time—yes, more than once.
Q: And I suppose at that time you had not already decided exactly where the three (3) acres would be. Is that right?
A: Not exactly, no, sir.
Q: And during the course of your negotiations did you determine where you wanted the corners of that property to be located?
A: Yes. Mr. Robertson and myself discussed it.
Q: And as a result of those discussions, did you actually decide where the corners were to be located?
A: Yes.
Q: So the pin was to be set to the west so that he would retain the oak tree?
A: That’s correct.
Q: Then you walked back to where?
A: Well, to this pin here (indicating on survey).
Q: Okay, and then from there where?
A: Then marked this—this pin here (indicating on survey).
Q: Okay. And there were pins placed, as I understand it, on all these various corners?
A: Yes.
Q: Let me repeat the question then. Were your instructions to Mr. Methuin [first surveyor] with regard to this survey either to locate exactly where the stakes and pins were in the ground and create a description from those pins, or was he to survey to determine where the pins should go?
A: No. I directed the surveyor to the pins myself and I asked him to survey the property according to those pins.
Q: Okay. Do you recall whether or not, when the property was surveyed in 1977, whether a boundary line was flagged and a path was cleared, consistent with what Mrs. Robertson recalled?
A: When the surveyors surveyed it, they flagged the line, yes?
Q: Okay.
A: And had to cut the brush out to make the survey, yes, part of it.
Q: And at the end of this flagged and cleared path, was an iron pin located, to the best of your knowledge? Is there an iron pin at the end of the . . .
A: Yes.
Q: Now, Mr. Stratton, now that you were neighbors, I guess one of the good things that came out of that was that you didn’t have quite as much to mow, but if you would, would you tell the Court, what were the practices of you and what were the practices that you observed Mr. Robertson with regard to mowing down that imaginary line between those two pins?
A: I took care of what was mine and he took care of what was his.
Q: And was it basically a line that was between the two pins that chain link fence sat onto, as well?
A: Yes.
Q: And this continued to be the conduct of both the Robertsons and your family from 1977 until 1983 when you sold it?
A: Yes, sir.
(Tr. p. 111-117)
Kenneth Robertson, a plaintiff and an' appellee, and a grantee of the three-acre tract who is now claiming the erroneous description controls, testified:
Q: Okay. Now, Mr. Robertson, were you aware at the time that you purchased the property in 1977 that there were iron pins placed at various corners to your three (3) acres?
A: I was, yes, sir.
Q: Can you tell the Court whether any corner, to the best of your knowledge, did not have an iron pin?
A: At the time, they all—they was all there.
Q: Okay. Tell the Court what you and Mr. Stratton did. Now, this was before you acquired the land?
A: Okay, he walked me to each corner, pointed it out to me, where the boundary lines was . . .
Q: Mr. Stratton took you to this point, this point, (indicating on survey)?
A: Yeah.
Q: And were there points up here, too? Up in the front? A: Yes, sir.
Q: And so you just . . .
A: Well, yeah, they was . . .
Q: So either you or Mr. Stratton, or both of you, at some point had to decide where those corners were?
A: Yeah, he—we went to each corner.
Q: Okay.
A: I don’t remember going right to the one on the front on the right, but to the west, and south, and the east, we went to them.
Q: And you went to those corners, and—was this before you bought the land? Or after?
A: It was while I was in the process of buying it.
Q: Okay.
A: I don’t remember . . .
Q: So, it was probably after you’d showed some initial interest, but before you actually closed the deal?
A: Yeah, probably. Yes, sir.
Q: And at that time Mr. Stratton had put those pins in and the two of you walked to them and made sure you knew where they were, and those pins—what was the purpose of those pins as you understood it?
A: Supposed to have been the boundary lines.
Q: Okay. Now you know, I want to ask you something, Mr. Robertson. I mean, what I hear you saying is that if the legal description in your deed gives you a little more land, then what Mr. Ball [surveyor] says, is what you want. Is that right?
A: Well, what Mr. Ball-—according to Mr. Ball here, this is what I should have.
Q: Okay. And even though it goes beyond the pins, that’s what you should have because that’s what it says in the deed?
A: I should have on-—what my deed says is what I want, and Mr. Ball has got it marked here right, and that’s what I want and that’s all, that’s it.
(Tr. p. 89-92.)
Virginia Robertson, the other grantee of the three-acre tract, and a plaintiff below, testified:
Q: Okay, And do I understand your testimony correctly that the boundaries of this three (3) acres when you purchased it in 1977 were set by the placing of various iron pins between the various lines?
A: Yes.
(Tr. p. 101.)
Sandra Harris, one of the subsequent grantees of the eight-acre tract and a defendant below, testified:
A: We walked with Gary Stratton over the entire property — well, he showed us the pins that were placed, and then we walked the entire property ourselves.
Q: Okay. And did you find pins at all the corners?
A: Yes.
Q: And what, if any, understanding did you have as to how those pins set relative to the boundaries of the property?
A: It was my understanding that that was the property we were buying.
(Tr. p. 128.)
Samuel Ball, the surveyor who used the computer plotter, found the iron pins still in place in 1988. He testified:
A: The corners that I had were corners that were in place.
Q: All right, they were already in place?
A: Yes, sir.
Q: The corners that you had and that you looked at at that time?
A: Yes, sir.
Q: And would you describe how those corners were in place?
A: They were iron pipes that were driven into the ground.
Q: All right. Now, let me ask you a few questions, then. Your survey, which has been introduced as Plaintiffs’ Exhibit Number 3, reflects that you did find fencing on certain of the boundaries, found iron pins, I believe, at all corners.
A: Yes, sir.
Q: Is that correct?
A: Yes, sir.
Q: And the fact that you found iron pins at all the corners is reflected on your survey by the FIP?
A: It is.
(Tr. p. 60-67.)
Finally, there was no testimony from either of the parties that he or she had ever occupied any land over or across his or her boundary as established by the iron pins. In fact, on those the parts of the property which were mowed, each mowed up to the line established by the iron pins. The rest of the property was in the woods. Accordingly, we set aside the chancellor’s finding of fact and reverse and remand for entry of a decree consistent with this opinion.
Reversed and remanded. | [
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OPINION OF THE COIÍRT. This is an action of debt brought by the appellee against the appellant in the circuit court of Pulaski county, and comes to this court by appeal. It appears from the record, that the defendant in the court below filed his plea of payment, to which the plaintiff replied; and the defendant refusing to join issue by adding a similiter, a judgment on that account was rendered against him, and he now contends that this judgment should be reversed.
The judgment, although not strictly and formally correct, is certainly substantially good, and ought not to be reversed at the instance of the appellant, who was in fault in not completing the pleadings. Admitting the English practice, in a case like this, to be, to strike out the plea and enter judgment by default, it is not perceived what advantage it has over the practice heretofore adopt ed by this court in the case of Russell v. Flanakin [unreported], in which a judgment precisely similar was entered. The defendant in refusing to join issue abandoned his defence, and the plea, though not actually, was virtually, stricken out. It is a mere matter of form, and when substantial justice has been done between the parties, this court would be unwilling to reverse the judgment of the inferior court on mere technical objections of a doubtful character. Judgment affirmed. | [
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Hart, J.,
(after stating the facts). It is insisted by counsel for defendant that if the defendant was guilty of any negligence it was in the State of Missouri, and that in that State there can be no recovery for mental ■anguish for the negligent failure to deliver a telegram. They insist that there was no privity of contract between the defendant and plaintiff, and that it is not liable in this action.
Telegraph and telephone companies are instruments of commerce, and are common carriers of news. Southwestern Telegraph & Telephone Co. v. Danaher, 102 Ark. 547. The telegram in question was delivered by the plaintiff for transmission to the agent of the Memphis, Dallas & Gulf Railroad Company, which operated a telegraph line from Murfreesboro, Arkansas, to Ashdown, Arkansas. The plaintiff did not have the money at the time to pay for the message, but the agent received it and agreed to send it, with the promise that the money should be paid on the following day. The price of the message was paid to the operator on the next day, as had been agreed upon. The operator transmitted the message from Murfreesboro to Ashdown, and the agent of the railway company at Ashdown, who was also the agent of the defendant company, received the message and transmitted it over the wires of the defendant company to Kansas City. The defendant, therefore, accepted the message under.the contract made with the Memphis, Dallas & Gulf Railroad Company at Murfreesboro, and undertook to transmit it as a connecting carrier to the point of destination. Therefore, it accepted the benefits of the contract made with the initial carrier and could avail itself of any of the provisions contained in the contract, and was also liable for a breach thereof.
In the case of theWestern Union Telegraph Company v. Griffin, 92 Ark. 219, the court held:
“Where a telegraphic message was sent from this State, where damages for mental anguish are recoverable, to be delivered in another State, where such damages are not recoverable, and the telegraph company duly transmitted the message, but negligently failed to deliver it to the addressee, either the sender or the addressee may, in an action in this State, recover such damages for mental anguish as they may establish. ’ ’
It is next contended by counsel for defendant that there was nothing in the message that would put the de fendant on notice that appellee might suffer mental anguish if it wa-s not delivered. The message on its face carried notice that its sender was a female, and that it was addressed to a male person. The message also suggested that a near relationship existed between the parties ; that there was a good reason for plaintiff being met at the station, and that damages might naturally and reasonably follow as a result of its negligent failure to deliver the message. See Western Union Telegraph Company v. Archie, 92 Ark. 59.
It is next contended by counsel for defendant that there can be no recovery for mental anguish under the facts of this case. Under our statute damages may be recovered for mental anguish suffered in consequence of the negligence of a telegraph company. Messages, the failure to deliver which gives rise to mental' anguish, are usually those which relate to sickness, death or funeral of a near relative. In some cases, however, a recovery has been allowed where no question of sickness or death was involved. We have uniformly held, however, that the mental suffering must be real, and that there can be no recovery for imaginary situations or conditions of anxiety caused thereby; in other words, that mental anguish indicates a higher degree of suffering than arises simply from annoyance, disappointment, vexation, or regret. In the case of the Western Union Telegraph Company v. Hanley, 85 Ark. 263, a recovery was allowed. In that ease the plaintiff arrived at a deserted railway station at midnight. The public hack was full, so that she could not secure a seat therein, and she had to remain at the depot about three-quarters of an hour before she could proceed to her destination. In the subsequent case of Western Union Telegraph Company v. Archie, supra, we held that there could be no recovery, and undertook to distinguish between the facts in that case and those in the Hanley case. We said that in the Hanley case the mental anguish of the plaintiff consisted in what might have happened to a defenseless woman in the middle of the night in a strange place; that the very fact that she arrived at that time of night, unattended, and with no one to meet her, might have caused her to be insulted or to suffer a worse injury. In the Archie case the plaintiff, who was also a woman, only remained at the station ten or fifteen minutes. She met a friend within two or three blocks after she left the station, and was immediately conducted to the home of a relative where she was going to visit. She arrived in the daytime, and there was nothing in her situation to cause her mental suffering. At most, she was only subject to annoyance or disappointment at not having been met by her relatives. In the instant case it is true that the plaintiff arrived at the .station in the daytime, but she was unattended and unacquainted with any one at that place, except her husband. She was unaccustomed to the ways of a large city, and had no money whatever. She had never been in the city before, and knew no one there except her husband. She waited for him at the station for two hours. Then she went to the address of his employers, and the manager informed her that a man named Flannagan worked for the company, and that he thought he was staying at a place at Ninth and Cherry Streets. He did not offer her any further assistance or even ask her if she needed any. The plaintiff was too embarrassed to ask any further aid; but went to the address given in search of her husband. She failed to find him in that locality and returned to the office. While trying to find her husband, her helplessness and need of protection would doubtless be apparent to any designing person. ‘The fact that she was alone, a stranger and unaccustomed to the ways of a large city, and in search of her husband placed her in a situation where it was not unlikely that she might be subject to insult and perhaps injury. The danger that might result to her from her situation and condition, under the circumstances was not wholly imaginary but her mental suffering for the time was real.
We think, however, as contended by counsel for defendant, that the damages recovered are excessive. When she returned to the office where her husband worked, and it came time to close the office for the day, the. manager provided a place for her to stay until her husband’s return and sent her there. Thereafter she suffered no mental anguish within the legal meaning of the term. Under all the facts and circumstances adduced in evidence, we think the sum of one hundred dollars would have been sufficient compensation for mental anguish suffered by the plaintiff, and a judgment for that amount will be affirmed. | [
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Hart, J.
S. H. Ford, instituted this action in the chancery court against R. P. Wilson and the Overstreet Grain Company to foreclose a mortgage on two mules.
R. P. Wilson borrowed two hundred dollars from ¡S. H. Ford, and on the 23d day of December, lyütí, executed a mortgage to him on two black mules to secure this amount. The property is described in the mortgage as follows:
“The following lands and personal property, situated in the County of Columbia, and ¡State of Arkansas, towit: Two black mules, two and four years old, the same being now in the possession of the party of the first part, R. P. Wilson; and also all of the cotton and corn which the said part.. of the first part shall make, or cause to be made, this year, in said county,” etc.
The mortgage was filed for record in Columbia County on the 20th day of February, 1909. At the time of the execution of the mortgage, and at the time it was filed for record, Wilson resided in Columbia County, and had the mules in his possession there. At the time the mortgage was executed Wilson had two other black mules, but they were older than the ones described in the mortgage. In May, 1909, Wilson left Ms home in Columbia County, and moved to Little Rock, in Pulaski County, bringing the two mules described in the mortgage with Mm. Subsequently, he sold the mules to the Cverstreet Grain Company, and the testimony shows that the grain company did not have any actual notice that the mules were mortgaged to Ford.' One of the mules sold to the Overstreet Grain Company is admitted to be a black horse-mule, and its age corresponds to one of the mules described in the mortgage. The other mule purchased by the Overstreet Grain Company is a mare mule, whose age corresponds to the one described in the mortgage, but, according to the testimony introduced by the defendant, the color of the mule is dark bay. The testimony on the part of the plaintiff tends to show that this mule is a black mule, and that it is sometimes difficult to distinguish between the color of a dark bay mule and a black one. The chancellor found in favor of the plaintiff, and entered a decree of foreclosure. The defendant, Overstreet Grain Company, has appealed.
It is contended by counsel for the Overstreet Grain Company, the vendee of the mortgagor, that the mortgage is void as to it because the description of the property is too vague and indefinite; but we do not agree with them in this contention. In Lightle v. Castlemcm, 52 Ark. 278, it was held that a mortgage which describes the property as ‘ ‘ one black mare mule, six years old, in the mortgagor’s possession in White County, ’ ’ states facts by the aid of which third persons could identify the mortgaged property, and is a good description. The general rule is that the description is sufficient if it will enable a third person, aided by inquiries which the instrument itself suggests, to identify the property. Jones on Chattel Mortgages (2 ed.), § 54; 6 Cyc. 1022.
When the mortgage in question was executed, the mortgagor resided in Columbia County and had in his possession two black mules, two and four years old. It is true he had two other, black mules at the time, but they were older than these two mules, and the Overstreet Grain Company could have readily ascertained these facts by making proper inquiries. The mortgage was executed in December, and at that time something was said about-whether one of the mules should be described as a bay mule or a black one, and it was finally determined to describe it as a black mule. The witnesses for the Overstreet Grain Company say the mule was a bay mule, but they were testifying as to the color the mule appeared to be several years after the mortgage was given and at a different season of the year. It is well known that the shade of color between a dark bay mule and a black one is somewhat indistinct and that different persons might describe the color as one or the other. As above stated, if the Overstreet Grain Company had made inquiry they could have readily ascertained that the two mules which they were about to purchase from Wilson were the ones described in the mortgage. The mortgage itself put them on notice that Wilson had mortgaged to Ford two black mules, two and four years old, which at the time the mortgage was given were in his possession in Columbia County, Arkansas, and any inquiry made would have shown that these were the only two mules of that age which he owned at the time. Therefore, we think that the description of the mules in the mortgage was sufficient to put the Overstreet Grain Company on notice by its record that the miiles mortgaged were the same as those purchased; and this was all that was required. It follows that the decree must be affirmed. | [
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Wood, J.,
(after stating the facts). The judgment of this court reversing the decree of the chancellor in the ease of Stephens v. Stephens (108 Ark. 53) and remanding that cause with directions to vacate its decree cancelling and annulling the deed in question, was an end to the litigation involved in that lawsuit. That was a final decree settling the rig’hts of the parties to that litigation, and the chancellor could only enter a decree as directed by this court. The chancery court had no power, after the mandate of this court was filed directing it to enter a decree cancelling and annulling the deed in question, to reopen the cause and allow new parties to be made and the question relitigated so far as the Stephenses were concerned. The mandate of this court did not leave the cause of Stephens v. Stephens open for further proceedings or direct any further proceedings to be had in that cause. Therefore, the only decree that the. chancery court could have entered was the one it did enter in obedience to the mandate of this court.
The decree of the chancery court in Stephens v. Stephens, entered in obedience to the mandate of this court “settled the rights of the parties as completely and finally as if such a decree had been rendered here, instead of remanding it with such directions to the chancellor. It could not thereafter be modified, altered or disregarded. ’ ’ Hopson v. Frierson, 106 Ark. 292. See, also,Walker v. Goodlett, 160 S. W. 399.
Where the litigation involves real estate it is the rule of this court, where the decree of the lower court is reversed and a decree final is determined upon here, to remand the cause with directions to the lower court to render and enter the judgment of this court. The obvious reason for this rule is that any orders or judgments affecting the title to real property should be entered on the proper court records in the county where the land is situated.
The prayer, therefore, of the petitioner for the writ of mandamus will be denied. | [
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McCulloch, C. J.
The council of the city of Newport passed an ordinance, upon petition of a majority in value of the owners of real property in the city, creating an improvement district, composed of the whole city, for the purpose of erecting and maintaining a bridge across Newport Lake, a body of water, about a mile in length and 200 feet in width, lying within the limits of the city.
A board of improvement was appointed in accordance with the provisions of the statute, and the board proceeded to form plans to make the improvement, and appellant, who was a property owner in the city, instituted this action to restrain further proceedings. He attacks the ordinance creating the district on the ground that the character of the improvement is not such as may be made by taxation as for local improvements within the meaning of the Constitution and statutes of this State; and the suit also involves an attack on the proceedings of the board, in that there is a variance between the improvement described in the petition of the property owners, and that which is about to be undertaken by the board. The petition was for the formation of a district for the purpose of erecting and maintaining, at the site of the present bridge across Newport Lake, a new bridge and roadway leading from the east end of such new bridge to the west end of Malcolm Avenue; whereas it is alleged that the board has adopted a plan to construct an earthen embankment out into the lake at the site of the old bridge, and to construct a short bridge, only about twelve feet in length, to connect the abutments.
The chancellor sustained a demurrer to the complaint, and after final judgment dismissed the complaint for want of equity.
The first question presented was decided in the case of Shibley v. Fort Smith & Van Buren Bridge District, 96 Ark. 410, where we held that ‘ ‘ a bridge for the use of the public, like a street in a city or a highway in the country, is undoubtedly of great benefit and convenience to the traveling public; nevertheless, it may be also of special benefit to adjoining- lands and a fit subject for construction from tbe proceeds of.local assessments.”
It was decided in Little Rock v. Katzenstein, 52 Ark. 107, that the action of the city council in including property in an improvement district is ‘ ‘ except when attacked for fraud or demonstrable mistake — conclusive of tbe fact that such property is ‘adjoining tbe locality to be affected’ by tbe improvement, within tbe meaning of tbe Constitution. ’ ’
Tbe fact that tbe statutes empower councils of cities and incorporated towns to construct and repair bridges does not prevent property owners, or a majority in value thereof, undertaking that kind of improvement pursuant to tbe terms of tbe local improvement statute. Municipalities are authorized to pave streets, and yet it is a common thing for that to be done ht tbe expense of tbe owners of property affected thereby.
That tbe whole of tbe city may be included in one improvement district is settled by tbe decision of this court in Matthews v. Kimball, 70 Ark. 463.
Tbe question as to tbe amount of benefits does not arise in this case and that must, primarily, be settled by tbe board of assessors. The statute affords adequate remedy for relief against excessive or unequal assessments. According to tbe allegations of tbe complaint, this is a bridge which may operate as a peculiar benefit to all tbe property in tbe city, it being- tbe only connection between two parts of the city and also tbe only method of approaching tbe city from a large section of farming country.
There is no merit in tbe contention that there is an attempt to depart from tbe character of tbe improvement authorized by tbe petition. Tbe petition deals with a description of tbe improvement merely in general terms, and tbe plan is left entirely for future development by tbe board. Tbe fact that tbe bridge is to be shortened and an earthen embankment constructed as a part of tbe passageway through and over the lake does not alter tbe character of the improvement as a bridge.
Decree affirmed. | [
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McCulloch, C. J.
Appellant is lessee of a building owned by appellee in the city of Fort Smith under written contract for a term of five years. The contract specifies a “yearly rental of $1,200 for the term,” payable in monthly installments ‘ ‘ on the first day of each and every month.” Appellant moved out of the building and defaulted in the payment of rent for six months, and this is an action instituted before a justice of the peace by appellee against appellant to recover the six installments of $100 each, aggregating the total sum of $600.
The case was tried in the circuit court on appeal from the justice of the peace, and appellant, in addition to other defenses, raised the question of jurisdiction.
If the justice of the peace was without jurisdiction of the subject-matter of the action, the circuit court, of course, acquired none on appeal.
The jurisdiction of justices of the peace is limited by the Constitution, in matters of contract, to controver sies where the amount involved does not exceed the sum of $300, exclusive of interest. Constitution 1874, § 40, art. 7.
Where there are separate causes of action upon distinct contracts each for a sum within the jurisdictional amount of a justice of the peace, they may he joined in one action, even though the aggregate amount exceeds the jurisdictional amount. Berry v. Linton, 1 Ark. 252; American Soda Fountain Co. v. Battle, 85 Ark. 213; Modern Laundry v. Dilley, 111 Ark. 350.
It is contended on the part of appellee that each monthly installment of rent due under the contract constitutes a separate cause of action and fixes the jurisdictional amount.
That contention is unsound. All of the separate installments due under the contract constitute a single cause of action, for the contract is not separable, as where the obligations are represented by different instruments of writing. It is true that an action may be maintained upon each installment as it becomes due, the same as upon different items of an account in the course of accrual; but when the enforcement of the right of action is postponed until succeeding installments become due a suit upon them all constitutes a single cause of action.
In Gregory v. Williams, 24 Ark. 177, the court said:
“While it is true that every written acknowledgment of indebtedness, which may be made the foundation of an action at law, is a separate demand, it is not true, as a proposition of law, that the several items of an open account, although of different dates and arising, out of different dealings and transactions between parties, are each separate demands, and can be sued upon as such. ’ ’
The weakness .of the contention of appellee is in treating each installment as a separate obligation. It is, in fact, one obligation, evidenced by a single instrument, but payable in installments, and the jurisdiction of the court is fixed according to the aggregate amount.
Ve are of the opinion, therefore, that the circuit court did not acquire jurisdiction on appeal from the justice of the peace. The judgment of the circuit court is reversed and the cause dismissed. | [
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Per. Curiam.
The petitioner was, it appears, convicted below of a felony, and prayed an- appeal to this court, and was given time to prepare a bill of exceptions. The oral proceedings were taken down by the court stenographer, and petitioner alleges that that officer refused to furinsh a transcript of the proceedings. He apples to us now for a rule on the stenographer to compel him to furnish a transcript of the proceedings so that the same may be incorporated in the bill -of exceptions.
This court has no power to grant any such relief. It has power to compel the clerk of the trial court to send up a transcript of the record of that court (In re Barstow, 54 Ark. 551), for the clerk of a trial court is to that extent amenable to the orders of this court. Our powers are, however, limited to compelling the clerk to send up such record as has been made in Ms court, and do not extend to making the record of the trial court. The duties of the court stenographer are limited to maMng a record for the trial court, and as he is not an officer of this court for any purpose, and does not certify the record filed in this court, he is not within our reach.
The completion of the records of the circuit court falls exclusively within the jurisdiction of that court, and it would be an assumption of original jurisdiction for us to attempt to control the action of officers of that court. When the record is once made there, we have, as before stated, authority to require the clerk to make a certified transcript and to send it up to this court; but we have no power to compel the officers of the court to discharge their duties in making up the record. Elliott on Appellate Procedure, § 206; States v. Cromwell, 104 N. Y. 664; Thom v. Wilson, Excr., 24 Ind. 324. “We can not make a record for any of the lower courts,” said the Supreme Court of Indiana in the case above cited. “That is their province, and all applications must be made to them. ’ ’
Application denied. | [
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Neill Bohlinger, Associate Justice.
The appellant, Ben M. Hogan & Company, is a partnership which occupied a piece of leased ground in Pulaski County at the intersection of two County Roads which are known as the Carmichael Road and the County Line Road. The Carmichael Road runs east and west and the County Line Road runs north and south. Upon the leased premises the appellant had for more than eight months prior to June 11, 1960, operated a gravel business where it crushed, assembled and maintained a stockpile of gravel which was from 25 to 30 feet high and, according to some witnesses, extended west from within three or four feet of the western edge of the County Line Road for approximately 100 feet.
From this business and stockpile of the appellant, Fred R. Rood, who was a defendant in this action, was engaged in the business of hauling gravel from the appellant’s location. The operation of Rood was that of an independent contractor, independent of the appellant. Among other employees of Rood was a truck driver, one R. G. McNeeley, who was also a defendant in this case in the lower court.
There was an exit road from the property occupied by the appellant that divided into two prongs shortly before its junction with the County Line Road. The plan of operation of the appellant’s business seems to have been that whenever it was planned to load a truck, the operator of the blender or loading plant would sound one blast of a whistle. When the truck was loaded, two blasts were sounded and the truck would then move out from the loading station.
When the loaded truck moved out from the Hogan loading point, Rood and the driver were on their own and moved without direction or control of the appellant. While operating upon this line of procedure, McNeeley moved away from the loading station and taking a fork in the exit road, which had been suggested by, Hogan’s employees as a means of avoiding a mudhole in the County Line Road, McNeeley drove his truck upon the County Line Road where it struck a car driven by Mrs. Lea Nevin, the impact of the collision being such that Mrs. Nevin, Larry Krug and Mrs. Eugenia Krug, the occupants of the car and appellees here, were gravely injured.
To recover damages for their injuries the appellees filed their complaint in the Pulaski Circuit Court against Hogan, Fred Rood and R. Gr. McNeeley, alleging Rood and McNeeley were negligent in operating the truck and semi-trailer at an excessive rate of speed, failure to keep a proper lookout for persons and property rightfully using the County Road; failure to keep the truck and trailer under proper control; failure to stop the truck and trailer before entering a public highway, and failure to yield the right-of-way to the automobile operated by Lea Nevin.
As against the appellant, Hogan, negligence is asserted in the following items: The assembling and maintaining of a stockpile of gravel 25 feet high and 35 feet wide extending from a point 40 feet west of the road up to the boundary of the road which completely obstructed and cut off the view of the appellee and prevented her from seeing the Rood and McNeeley truck; that Hogan had failed to cut and remove trees, bushes and vines which had grown on the leased property of the appellant in such a manner that it had obstructed appellee’s view to the west and prevented her from seeing the RoodMcNeeley truck and trailer; that the appellant had negligently failed to maintain a guard or flagman where the haul road intersects the County Line Road; that it further negligently failed to erect and maintain a sign, signal or other device of any kind, character or description to warn operators of vehicles on such road of the intersection of the haul road and the County Line Road; failed to erect and maintain signs, signals or other devices along the County Line Road that trucks or other vehicles were operating on the haul road which intersects the County Line Road; that the appellant had further negligently failed to warn and instruct other persons hauling of the operation of the gravel plant as to the danger in driving onto the highway without first stopping to ascertain that such move could be made safely.
Prior to the calling of the case for trial the appellees dismissed their complaint as to Fred R. Rood and R. Gr. McNeeley, the dismissal being with prejudice as to these defendants but expressly reserving their action as to the defendant Hogan. At the hearing on the motion to dismiss as to Rood and McNeeley there were introduced covenants not to sue executed by the appellees. A number of points are argued by the appellant for a reversal of the judgment found against it by the Pulaski County Jury in this case but for the reasons hereinafter stated we find it necessary to consider but one here.
Considering first the allegations of negligence against the appellant for failure to maintain a guard or flagman near the point of intersection of the haul road and the County Line Road; to erect and maintain signs and signals to inform operators of vehicles on the County Line Road of the operation of the gravel plant and the exit from the gravel property over the haul road; failure to warn and instruct the haulers from the gravel property of the danger of driving onto the highway before first stopping to ascertain that the move could be safely made, it is clear from the record before us that the operation of Rood and McNeeley was independent of Hogan in every respect and that when the Rood trucks had been loaded and moved away from Hogan’s plant, Hogan’s entire connection with the truck and its load was severed in every way. There was approximately 100 feet between the loading plant and the County Line Road. The loaded trucks could have stopped at any point therein and never gone onto the County Line Road as far as Hogan was concerned. McNeeley, being Rood’s employee and not Hogan’s, no duty devolved on Hogan to instruct him in the manner in which he should operate the truck.
Neither does it appear that there existed any necessity for Hogan to leave his own premises for any purpose. So far as we know, Hogan’s use of the County Line Road was but casual and since he was not hauling over it as a part of his business, we fail to see where any duty devolved on him to place a guard or warning signs or devices of any kind. If such a duty devolved on any person it was on Rood who was the one making use of the road. We find no merit in these allegations of negligence.
That brings us to a consideration as to whether or not the appellant was negligent in maintaining on its-property a gravel pile which it is alleged obscured the vision of the appellee as she drove the car toward the intersection of the haul road and the County Line Road where the accident occurred. This lessening of her sight distance by the gravel pile and the presence of growth of various kinds is alleged by the appellees to have brought about the accident.
The piling of the gravel on his own property by Hogan was not of itself negligent and the only time that the gravel itself could have brought about an injury would have been if Hogan had negligently piled it on the County Road in such a way that a car might strike it or had it been stacked so close to the County Road that part of it had sloughed off and damaged vehicles or persons on the County Road. So far as the gravel piling is concerned, it could have remained in that spot at that height indefinitely without causing any damage. Therefore it cannot in any way be said that the gravel pile was of itself the proximate cause of the injuries of which the appellees complain.
The law in this cause is stated in Arkansas Law Review, Yol. 1, p. 152, as follows:
“In determining whether an act of a defendant is the proximate cause of an injury, the rule is that the injury must he the natural and probable consequence of the act — such a consequence, under the surrounding circumstances of the case, as might and ought to have been foreseen by the defendant as likely to flow from his act; the act must, in a natural and continuous sequence, unbroken by any new cause, operate as an efficient cause of the injury. If a third person intervenes between the act of the defendant and the injury, and does a culpable act, for which he is legally responsible, which produces the injury, and without it the injury would not have occurred, and the act of the defendant furnished merely an occasion for the injury, but not an efficient cause, the defendant would not be liable.” [Citing Gage v. Harvey, 66 Ark. 68, 48 S. W. 898, emphasis ours.]
More succinctly stated the rule is that if a new cause has intervened subsequent to the original negligent act and this new cause is of itself sufficient to stand as a cause of injury, the original negligence is too remote.
Therefore, no negligence attaches to Hogan’s piling his gravel on his own land and it is abundantly clear that after Hogan piled the gravel a new cause, which was the hauling of gravel by Rood, intervened and that the operation of Rood’s truck and trailer was sufficient to stand as the cause of the injury. Considering a parallel case in Goodaile v. Board of Commissioners of Cowley County et al, 111 Kan. 542, 207 P. 785, we have a case in which the owners of land permitted high hedges to grow along public roads which crossed at the corner of their property. The hedge obscured the view of one road from the other. A woman driving a horse and buggy along the road approached the crossing and her horse became frightened at an automobile that appeared suddenly at the crossing of the roads, and when the horse ran, the woman was thrown from the buggy and injured. The court held that the owners of the land were not liable for her injuries, saying:
“The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.
Even if it be admitted that the high hedges were in part of the cause of the accident which resulted in the plaintiff’s injury, it cannot be said that they were the efficient intervening cause of the accident. The horse was frightened by an automobile. That was what caused the accident. In Eberhardt v. Tel. Co., 91 Kan. 763, 139 P. 416, it was held that a telephone guy wire extending into the public highway was not the cause of an injury to one who was riding in a wagon with her husband, who was driving a span of mules that ran away, and ran into the wire and thereby injured the plaintiff in that action. The latter case is closely parallel to the present one. The proximate cause of the injury to the plaintiff in this action was the frightening of her horse, and not the condition of the hedges. Railway Co. v. Bailey, 66 Kan. 115, 122, 71 P. 246; Norris v. Ross Township, 98 Kan. 394, 161 P. 582. The petition did not state a cause of action against the owners of the land.”
In the case of West v. Wall, 191 Ark. 856, 88 S. W. 2d 63, there was before this court a case in which a motor company was arranging the sale of a truck to a partnership of Jacobs and Rose. The brakes on the truck were in very bad condition and Jacobs knew of this fact but he thereafter drove the truck on the public ways at a high rate of speed. In a resulting accident J. T. Wall suffered damages and brought a suit against Jacobs and the motor company who had given Jacobs the truck to try but this court reversed the cause as to the motor company and said:
“* * * The proximate cause of the injury was negligence of Rose upon the business errand for the partnership of which Rose was a member.
As was said by this court in the case of Pittsburg Reduction Company v. Horton, 87 Ark. 576, 579, 113 S. W. 647: ‘It is a well-settled general rule that if, subsequent to the original negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the injury, the original negligence is too remote. The difficulty arises in each case in applying the principle to a given state of facts.’
We think in the proposition before us there can be no difference of opinion upon the matter that Bose’s negligence was in itself sufficient to cause the injuries suffered, and necessarily was the proximate cause of them. Gage v. Harvey, 66 Ark. 68, 48 S. W. 898; Arkansas Valley Trust Co. v. McIlroy, 97 Ark. 160, 133 S. W. 816.
Therefore whatever may have been the negligence of the appellants, that negligence was too remote and cannot be treated here as a concurring cause. Bose and Jacobs were both machinists, both experts, both knew of the condition of the truck. Neither was connected in any particular with the West-Hornor Motor Company. They were not demonstrating for that company. They were testing the truck for themselves, looking after their own business interests for their own profit.
Many authorities could be cited supporting our conclusions above set out. Bizzell v. Hamiter, 168 Ark. 476, 270 S. W. 602; Healey v. Cockrill, 133 Ark. 327, 202 S. W. 229; Keller v. White, 173 Ark. 885, 293 S. W. 1017.”
In the case of Arkansas-Louisiana Gas Co. v. Tuggle, 201 Ark. 416, 146 S. W. 2d 154, Tuggle brought a suit for personal injuries sustained by him alleging that Arkansas-Louisiana Gas Company and the trustees of the Missouri Pacific Bailroad had been negligent; that while he was engaged in unloading a car of tile on the track of the railroad, another car on the track was released and rolled down by gravity and struck the car in which he was working with great force. The allegation of negligence against the Gas Company in this case was that the brakes on the second car had been released by an employee of the Gas Company. It developed during the trial that Hursey was an independent contractor and the relationship of master and servant did not exist. In commenting upon the asserted negligence of the Railroad Company in this case, the court said:
“ * * * But, assuming that the cars should have been placed farther down the track, such negligence was not the proximate cause of the injury. There was an active intervening cause, that of Hursey in releasing the brakes, and the Railroad Company is not liable for the acts of -Hursey who was not its employee. It is said the Railroad Company knew the cars had to be moved. If so, it was its duty to move them and spot them where they could be unloaded. But the mere fact of spotting the ears where they were, assuming that it was negligence to do so, did not cause the injury and could only be said at the most to be the remote cause. In Booth & Flynn v. Pearsall, 182 Ark. 854, 32 S. W. 2d 404, it was said that, 'in order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.’ In Pittsburg Reduction Co., v. Horton, 87 Ark. 576, 113 S. W. 647, 18 L. R. A., N. S., 905, it was said: ‘It is a well settled rule that if, subsequent to the original negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the injury, the original negligence is too remote.’ So here, if we assume that the Railroad Company was negligent in spotting the car, that fact did not cause the injury, except for the intervening act of releasing the brakes.”
We have examined appellee’s authorities and many more and find that none of them support the contention that there was any negligence on the part of Hogan in placing the stock pile of gravel on private property alongside the road. We can find no causal connection between piling the gravel and the accident that occurred between appellee’s car and Rood’s truck. The gravel pile was merely one of the conditions or surrounding circumstances that were present at the time of the acci dent. It was one of the “circumstances” to be considered in applying the rule of reasonable care “under the circumstances ’ ’ in determining the fault or lack of it on the part of the drivers of the vehicles involved. It was no more a “cause” of the accident than was any of the other conditions present, such as: the underbrush and trees which obscured the view — the dirt and gravel road with less traction for stopping than one of a different material — the hill which did not allow an adequate view down the road — the great distance from the bumper to the windshield of the truck which prevented the driver from seeing down the road without pulling out on it. Certainly we are not going to hold liable every property owner who has a tree alongside the road — -the city, county, or state for not providing the most efficient road surfacing material — the city, county, or state for failing to level all hills or straighten out all curves — and manufacturers of vehicles for not shortening truck noses.
The location of the gravel pile and all of these things to which we make reference here are circumstances that should have been considered by Rood and McNeeley in applying the rule of reasonable care.
Neither do we think it devolved upon Hogan to assume that Rood might have hired incompetent or careless drivers or further to assume that Rood’s driver would move without the care that devolved upon him in the operation of the loaded truck-trailer.
At the close of all the testimony in the trial court, the appellant moved for a directed verdict which was overruled by the trial court. This was error. The motion should have been granted and this cause is therefore reversed here and dismissed. | [
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McCulloch, C. J.
This is an action instituted on March 7, 1913, in the chancery court of Garland County by Stella Ussery against her husband, J. M. Ussery, to enforce an alleged trust in her favor under a deed executed by one Robbins to said J. M. Ussery, dated November 27, 1908, conveying a tract of eighty acres of land situated in Garland County.
Defendant J. M. Ussery executed to his codefendant Curl a deed, conveying the land in controversy, about the time of the institution of this action, and the latter was also made a party defendant.
The answer contains a denial of all the allegations of the complaint with respect to the consideration for the deed from Robbins to J. M. Ussery, and alleges that Ussery paid a valuable consideration for said conveyance.
The allegations of the complaint are that on the date mentioned plaintiff’s stepfather, Charles Foster, purchased the land in controversy from Robbins and caused the deed of conveyance to be executed by Robbins to plaintiff’s husband, J. M. Ussery; that Foster paid the consideration for the conveyance and that “he had the deed made to James Ussery, the defendant herein, to hold in trust for the sole use and benefit of plaintiff.”
The allegations of the complaint are not sufficient to take the case out of the operation of the statute of frauds, for, at most, the alleged agreement constitutes an express trust, which can not be engrafted by parol testimony upon a written deed of conveyance. Spradling v. Spradling, 101 Ark. 451.
There was an attempt, however, to bring the case within the principles upon which a trust ex maleficio may be declared.
Plaintiff and defendant had been married many years before this transaction occurred, and had children, the issue of their marriage. They had up to that time lived together happily so far as this record reflects the facts. Plaintiff was in ill health, being subject to epileptic fits, and they lived in the neighborhood of their mother, who was the wife of Charles Poster, the purchaser of the land from Robbins.
Defendant J. M. Ussery testified that at the request of Poster he negotiated the purchase of a quarter-section of land from Robbins, of which the eighty acres in controversy was a part, and that in consideration of his services in negotiating the purchase at a very low price Poster agreed to have the eighty acres in controversy conveyed to him.
The chancellor found against defendant Ussery on that point, however, and we accept those findings as correct.
Poster testified that he purchased the quarter-section of land from Robbins, and, desiring to contribute something to the support of his stepdaughter and her children, he caused the conveyance of the eighty acres in controversy to be made to J. M. Ussery. He testified that there was no agreement with Ussery at all with reference to the land, that he voluntarily had the conveyance made to the latter “to help Stella and him raise their children. I always wanted to help Stella and her children all I could.” He stated that J. M. Ussery was not even present when the deed was executed, but that he subsequently delivered it to Ussery.
Mrs. Foster testified that there was an understanding or agreement that defendant and his wife should move on the land and huild a house and that she (witness) and Foster would move to an adjoining tract so that they could all be near each other.
The Usserys never moved on the land, and within less than a year after the execution of the deed defendant Ussery began to neglect his wife, and finally deserted her, leaving her in a helpless condition.
However reprehensible the conduct of Ussery was, we find nothing in the state of facts with reference to the execution of this conveyance which would warrant the court in declaring the existence of a trust ex maleficio.
The elements constituting that character of trust are stated by Mr. -Pomeroy in language approved by this court, as follows:
“In general, whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentations, concealments, or through undue influence, duress, taking advantage of one’s weakness or necessities, or through any other similar means or under « any other similar circumstances which render it unconscionable for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one' who is truly and equitably entitled to the same, -although he may never perhaps have had any legal estate therein; and a court of equity has jurisdiction to reach the property, either in the hands of the original wrongdoer or in the hands of any subsequent holder, until a' purchaser of it in good faith and without notice acquires a higher right, and takes property relieved from the trust. The forms and varieties -of these trusts, which are termed ex maleficio or ex delicto, are practically without limit. The principle is applied wherever it is necessary for the obtaining of complete justice, although the law may also give the remedy of damages against the wrong-doer.” 3 Pomeroy’s Equity Jurisprudence, p. 2033; Ammonette v. Black, 73 Ark. 310; Bragg v. Hart ney, 92 Ark. 55; Spradling v. Spradling, supra; LaCotts v. LaCotts, 109 Ark. 335.
Foster, the purchaser of the land, testified that no agreement at all was made with Ussery and that the conveyance was entirely voluntary.
Mrs. Foster testified that there was an agreement or understanding that Ussery would move on the place and build a house; but, at most, that testimony, even if it be accepted as the facts of this case, only constituted a promise and violation thereof without any element of positive fraud. With respect to that state of facts we have said:
“There must, of course, in such cases be an element of positive fraud by means of which the legal title is wrongfully acquired, for, if there was only a mere parol promise, the statute of frauds would apply.” Ammonette v. Black, supra.
We are, therefore, of the opinion that, when the testimony is viewed in the light most favorable to the plaintiff, it fails entirely to make a case which would warrant the declaration of a trust in her favor. The chancellor reached an erroneous conclusion in applying the law to the facts as found by him, and the.decree is therefore reversed and the cause remanded with directions to dismiss 'the complaint for want of equity. | [
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Hart, J.,
(after stating the facts). It will he noted from the statement of facts that Irvin died while he was serving Ms first term, and before his new term had commenced. The general rule is that if the deceased was Mmself the incumbent of the office and was elected to succeed himself, a vacancy is created in the first term by his death; but, by the weight of authority, at the commencement of the second term, no new vacancy arises, and the appointee for the balance of the first term holds over until the election and qualification of his succssor. State v. Speidel, 62 Ohio St. 156, 56 N. E. 871; State v. Elliott, 13 Utah 471, 45 Pac. 346. See, also, People v. Lord, 9 Mich. 227. That is to say, when one who is holding an office, and who has been elected to succeed Mmself, dies before entering upon the new term, a vacancy is thereby created in the term in which he was serving, but not in the new term for wMch he has been elected, and upon which he has not entered. Therefore, the one who is duly appointed and qualified to fill the vacancy thus created will hold the office for and during the unexpired term of the predecessor and until his successor has been elected or appointed and qualified in the manner provided by law.
It is not disputed by counsel for Hartsfield that Townsley’s appointment was valid, but it is claimed that his term ended when Hartsfield was appointed in November, pursuant to the act of 1911, which provides for the filling of vacancies that may occur in the office of road overseer, and which, so far as relates to the question at issue in tMs appeal, is as follows:
‘ ‘ That when any vacancy in the office of road overseer shall occur from any cause whatever, or upon failure to elect by a tie vote or otherwise, the county court or judge thereof in vacation shall appoint an overseer for such district or fill such vacancy, as the case may be, whose term of service shall expire at the time designated for all county and townsMp officers to expire. Such judge shall make or cause to be made a true record of appointment. ’ ’
The office of road overseer was created by statute, and it may be filled by election or by appointment, just as the statute may prescribe. It is manifest from the clause of the act just quoted that when Irvin died, the vacancy caused by his death should be filled by the county court. The section likewise provides that upon the failure to elect by a tie vote or otherwise, the county court, or judge thereof in vacation, shall appoint, etc. The words “or otherwise,” in law, when used as a general phrase following an enumeration of particulars, are commonly interpreted in a restricted sense as referring to such other matters as are kindred to the classes before mentioned. Century Dictionary. The author says the phrase “or otherwise,” when following an enumeration, should receive an ejusdem generis interpretation. Otherwise is also defined by Century Dictionary, the Standard Dictionary and by Webster, as meaning, “In a different manner; in any other way.” We think the phrase “or otherwise” in the act under consideration was intended to be used in its broadest and most comprehensive sense. The phrase ‘ ‘ or otherwise ” is not used in the statute as a general phrase following an enumeration of particulars; but it follows the words “upon failure to elect by-tie vote,” and is placed in juxtaposition to these words. When the whole clause “upon failure to elect by tie vote or otherwise,” is considered together with reference to the purpose and object of the act, it is evident that the Legislature intended to give the county judge the power to appoint where no one was elected or where the person elected failed for any reason to qualify when the time for entering upon the new term arrived. In short, we think the Legislature meant by the clause under consideration to give the county judge the power to appoint where there was no election or where the person elected for any reason failed to qualify. The county judge, pursuant to this section, exercised his power to appoint, and when he did so, the person appointed had a right to the office, and having qualified and entered upon the discharge of the duties of the office of road overseer, he was the lawful incumbent of that office. It follows that the judgment of the lower court must be affirmed. | [
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Wood, J.,
(after stating the facts). So far as appel-' lant is concerned, this suit must be treated as an effort on his part to cancel a written lease, which he sets out in his complaint, and to escape its obligations by showing that at the time the lease was entered into and as a consideration which induced appellant to enter into the contract appellee made certain verbal agreements, not expressed in the contract, to the effect that it' would not rent other stpre rooms in the same building below certain prices, and would not permit them to be used for immoral purposes, which verbal agreements and assurances appellee had not complied with.
The appellee is resisting this effort of appellant, and, on its part, is seeking to have the contract as written enforced. The issue, therefore, presented by the pleadings is whether or not the lessee can escape the obligations of the lease on his part or have the same cancelled by parol testimony tending to prove the oral agreements alleged. To sustain his contention that such testimony is admissible, appellant cites and relies upon the case of Welz v. Rhodius, 87 Ind. 1. In that case the defendant sold to the plaintiff certain hotel furniture and fixtures for the sum of $6,000. The contract was in writing. It was alleged, among other things/ in the complaint in that case, that at the time of purchasing the furniture and leasing the hotel by plaintiff from the defendant the latter agreed “that she would not at any time thereafter pernianently establish, open or keep, or cause to be kept, a hotel in the city of Indianapolis,” and further agreed “to remain and board at said hotel and to use her influence to aid in retaining the guests of the house and their patronage for the plaintiff at said hotel,” and, “but for such understanding and agreement the plaintiff would not have purchased the furniture nor opened“a hotel in Indianapolis.” It .then alleged that the defendant had violated her agreement by erecting another hotel close to the hotel she had leased to plaintiff, and had thus drawn away customers from the plaintiff, who would -otherwise have become guests of the plaintiff’s hotel, whereby plaintiff’s business had been greatly injured, to his damage in the sum of $20,000.
The second paragraph, after setting up the main facts as set forth in the first, alleged “that the defendant, to induce him to buy the furniture and take the lease, falsely and fraudulently represented that she wished and intended to retire from business and remain in the hotel and live on her income, and did not intend to and would not carry on a hotel if the plaintiff would buy the furniture and lease the hotel, and that he should have the benefit of her good will and influence; that he believed her statements to be true and fully relied thereon and closed the transaction, without which he would not have done so; that soon after plaintiff took possession under the contract of lease defendant left her hotel and opened another adjacent thereto, and used all her endeavors to and succeeded in withdrawing to herself the customers and patrons of the hotel which defendant had leased to the plaintiff, to his damage,” etc. The court held that the first paragraph of the complaint stated a cause of action, among other things, saying:. ‘ ‘ The case before us, however, does not, strictly speaking, involve proof of an additional consideration for the written lease beyond that expressed therein. On the contrary, the consideration of the parol promise sued on is shown to have been the lease itself and the purchase by the appellant of the hotel furniture and fixtures. In the language of the complaint, ‘In consideration that the plaintiff would purchase said furniture and lease said property, the said defendant agreed to and with the plaintiff verbally,’ etc. This is clearly a collateral undertaking, which in no manner restricts or enlarges any stipulation of the lease, or any obligation of either party, in respect to the subject-matter of that instrument. If, at the same time the lease was made, the parol agreement had been reduced to writing, in a separate instrument, and signed by the parties, it would be regarded as a collateral contract, not necessary to be referred to in any pleading based upon the lease; and it is no less a separate and collateral contract because made by parol. * * * If the agreement not to keep another hotel is merged in the lease, it may just as well be said that the contract for the sale of the furniture is likewise merged. That such collateral agreement may he enforced has been often judicially declared.”
Further along in the opinion the court said, concerning the lease: “That instrument seems to be as the parties intended to make it, and the alleged parol agreement, is so far separate that either may be enforced -without effect upon the other.”
It thus appears that in the case relied upon the plaintiff, who was the lessee, was not seeking to cancel the written lease under which he held, nor to escape its obligations, but he based his suit upon a parol collateral agreement which he alleged was a consideration and inducement for the written lease, and that he was damaged on account of the violation of the terms of this parol agreement. The opinion is too long to quote in full, but the above excerpts show clearly that the basis for holding that the first paragraph of the complaint stated a cause of action was that it set up a parol agreement that was collateral to the written lease, and based the action for damages growing out of a violation of the terms of this collateral agreement. On this theory the court held, of course, “that the parol contract declared on is a separate contract, collateral only to the lease, in-no manner tending -to modify or affect any stipulation in the lease or right or obligation created by it; that the parol promise of the defendant was made in consideration that the plaintiff would purchase the hotel furniture and accept the lease of the hotel itself on the terms named in the writing, and, otherwise than this, is an independent contract. ’ ’
Now, if this were a suit for damages by appellant against the lessor, appellee, upon a parol contract, the consideration for which was the written lease in controversy, and collateral to such lease, and for a violation of which collateral agreement appellant was .seeking to recover damages, and to restrain appellee, the case would be analog’ous to the case of Welz v. Rhodius, supra. But here appellant is seeking to cancel a written contract or lease entered into by him with the appellee on the ground that there was a parol agreement made in connection with, and as a consideration for it, to the effect that appellee promised to do certain things in the future which if had not done, and which rendered the lease contract void for fraud.
There is no allegation in appellant’s complaint to the effect that the appellee made any false representations as to existing or past facts by which appellant was deceived and upon which he relied, and that the contract was entered into upon the strength of such representations, which afterward 'proved to be false. In other words, there are no allegations sufficient to show that the appellee perpetrated a fraud upon appellant in inducing him to enter into the contract. The appellant does not allege matters sufficient to show intentional false and misleading representations such as would have constituted a tort outside of the written contract and which he could have proved by parol. See Hanger v. Evins, 38 Ark. 334.
We see nothing, therefore, in the allegations of appellant’s complaint to take it out of the familiar rule announced by this court in Delaney v. Jackson, 95 Ark. 135, as follows: “Parol evidence is inadmissible to vary, qualify or contradict, to add to or subtract from, the absolute terms of a valid written contract containing no ambiguity. ’ ’
Chief Justice Shaw aptly states the rule as follows: * ‘ The rule of law is well established that parol evidence can not be admitted to alter, vary or control a written contract nor to annex thereto a condition or defeasance not appearing on the contract itself. The rule is founded on the long experience that written evidence is so much more certain and accurate than that which rests in fleeting memory, only that it would be unsafe when parties have expressed the terms of their contract in writing to admit weaker evidence to control and vary the stronger and to show that the parties intended a different contract from that expressed in the writing signed by them.” Underwood v. Simonds, 12 Metc. 275.
Our court has over and over again announced the rule. See cases cited in appellee’s brief.
In 21 A. & E. Eno. Law, 1091, it is stated: “When the writing does not purport to disclose the complete contract, or if, when read in the light of the attendant facts and circumstances, it is .apparent that it does not contain the stipulation of the parties on the subject, the rule does not apply, for when it thus appears that a part of a complete oral contract, not within the statute of frauds, has been reduced to writing, parol evidence is always admissible to show what the rest of the agreement was, otherwise the contract would not be brought before the court, ’ ’
Here the lease as set forth in the appellant’s complaint shows n complete contract. It includes all the particulars necessary to make a perfect contract, and there is nothing on its face to indicate that it was not designed to express the whole agreement between the parties thereto. There is nothing in the written contract itself, therefore, that would authorize or call for the admission of parol testimony.
In Kelly v. Carter, 55 Ark. 112, some negroes were - about to build a church on a certain lot owned by them. Kelley, who owned land adjacent to this lot, purchased the same from the negroes, agreeing to pay them $500 therefor, and upon the additional consideration that the negroes would-not build their church upon any lot in the vicinity. The deed was executed to Kelley and the consideration therein named was $500, but the consideration in regard to not building the church in the vicinity was not mentioned in the deed. The negroes were about to build the church house on a block in the vicinity of the lots owned by Kelley and he -brought suit to restrain them, setting up the above facts. In that case we held, that it might be established by parol testimony that Kelley purchased the lot from the negroes, and that as part of the consideration therefor they were not to build their church house on lands in the vicinity of the land owned by Kelley. In that case the court, after announcing the general rule as to the inadmissibility of parol testimony to alter or vary the terms of a written instrument, said: “But the evidence in this case did not contravene that rule. Its tendency was not to contradict, vary or modify the terms of so much of the contract as was reduced to writing, but to show what the entire contract was.”
That case was correctly decided, but it is clearly distinguishable from the case at bar, and does not conflict with the rule here announced. The language of a deed showing the consideration paid is not contractual; it is •a mere recital of a past fact as to what was paid, and is not a promise to pay or an agreement to perform certain mutual covenants or conditions. Parol testimony is always admissible for the purpose of showing what was the real consideration in a deed or other writing evidencing a contract; but it can not be introduced to show that there was no consideration or to show a consideration that would have the effect to render the deed or writing void.
In this case, according to the allegations of appellant’s complaint, he is seeking to show by parol testimony certain alleged agreements or assurances, contractual in .their nature, and which were to be performed in the future, and which were not expressed in the written contract iof lease, and necessarily tended to vary, alter and contradict the terms thereof by showing different obligations and covenants on the part of the appellee from those expressed in the written contract.
In the case of Hanger v. Evins, supra, we said: “Written instruments are held to contain everything of a contractual character which the parties finally intended should be binding, regardless of all previous negotiations.”
The view we have expressed on the above issue of law makes it unnecessary to set out the evidence, and to discuss the issue of fact raised by the complaint and answer as to whether or not there was such an oral agreement as appellant alleged. Also the issue as to the statute of frauds passes out.
In a lease from the owner of the property to the lessor of the lessor of appellees is a provision to the effect that the “lessee agrees not to use the premises for immoral purpose or any other act or acts in violation of the laws of the United States, the State of Arkansas or the ordinances, rules and regulations of the city of Little Rock. Conceding without deciding that this is a covenant running with the land, yet the leasing of a building for a licensed saloon is not per se an immoral purpose in a legal sense. See Com. v. McDonough, 13 (Allen), Mass. 581. Besides there is no forfeiture declared in the original lease nor the lease in suit for a violation of this provision.
The lease contract being valid, there is no controversy as to the correctness of the amount found due under it for which the court rendered judgment in favor of the appellee.
The judgment dismissing appellant’s complaint for want of equity and rendering judgment in favor of the appellee on its complaint for the amount of rents alleged and found to be due and unpaid is in all things correct, and it is affirmed. | [
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Riddick, J.,
(after stating the facts.) The assignment in question in this case is assailed on several grounds. We will first consider the question whether the evidence is sufficient to support the contention that F. P. Gray, president of the F. P. Gray Dry Goods Company, while contemplating an assignment by said company, purchased large quantities of goods, with a view to include them in said assignment, so that the preferred debts might be paid in full, and thus relieve himself of liability on his indorsement. Outside of the fact that the dry goods company was in an extremely insolvent condition at the time of the assignment, and that Gray, who was himself insolvent, and of no worth, financially, was an indorser on some of its preferred notes, the only evidence directly bearing on this point was the testimony of witnesses Boone and Lambert. Boone was the secretary of the company. He testified that he had a conversation with Gray when he started for New York in March before the assignment was made; that Gray said that he intended to buy very few goods ; that afterwards, while in New York, he bought about twenty-two thousand dollars worth of goods, including a bill he had ordered from Kansas City just before he started for New York. When asked, on cross-examination, whether the amount bought was material^ larger than witness expected him to buy, he replied: “I am not a judge of that, but I am satisfied in my own mind, from what I heard him and the clerks say, that he did not need near the goods.” On the other hand, Lambert, who was a manager of two-of the departments of the company’s store, testified- that it was the custom of Gray to ask the heads of the different departments what goods were needed, before going on to purchase them ; that, before leaving for New York, in March previous to the assignment, Gray had, as usual, asked him to state the amount of goods needed for his departments. In the conversation, Gray instructed witness ‘‘to make the order as small as possible, and not to order any goods unless they were absolutely needed.” He further testified that Gray only purchased about half the goods he requested him to purchase. Gray returned from New York the latter part of March, and the assignment was made on the 12th of May following —about a month and a half after his return.
We do not think this evidence sufficient to show that Gray contemplated the assignment at the time the goods, were purchased, or that he made the purchase with the intention not to pay for the goods. But if such an intention on the part of Gray was shown, it is doubtful if any one, except the creditors from whom such goods were purchased, could complain, and there is nothing in the pleadings or the proof to show us from whom goods were purchased at that time.
The evidence does show that when the company . became hopelessly insolvent, and it was apparent that a failure was inevitable, Gray, a few days before the assignment was executed, and with a view of making the assignment in question, withdrew about seven hundred dollars of cash from the assets of the company, and appropriated it to his own use. Did this make the assignment void? It was said, in the case of Hill v. Woodberry, 4 U. S. App. 72, a case involving the validity of an assignment. made in this State, that “a fraudulent disposition of property invalidates a subsequent assignment for the benefit of creditors only when the deed of assignment is part of a scheme to defraud creditors, and the provisions of the deed are calculated to promote that object.” The assignment executed by the dry goods company was only a partial assignment. It did not pretend to convey to the assignee all the assets of the company, and the funds appropriated by Gray were not included in the assets conveyed by it. We do not see that the assignment tended in any way to promote or cover up the acts of Gray in reference to the withdrawal of such assets, and we hold that its validity was not affected by such acts. Excelsior Mfg. Co. v. Owens, 58 Ark. 561.
It is further contended that the confession of judgment, the deed of assignment, and the application for a receiver, constituted the assignment in fact, and that they were in violation of the statute regulating assignments for the benefit of creditors, and were therefore void. Of the five cases cited by counsel to support this contention, three of them (White v. Cotzhausen, 129 U. S. 329, Preston v. Spaulding, 120 Ill. 208, and Hahn v. Salmon, 20 Fed. 801) are cases which arose under statutes forbidding preferences in assignments by insolvent debtors. These cases were controlled by the rule, which seems to be well established,, that where such statutes exist, an insolvent debtor, contemplating a general assignment, will not be allowed to evade the statute by executing a mortgage or confessing a judgment in favor of one or more of his creditors whom he wishes to prefer. Such a preference in a general assignment being in those States forbidden by the letter of the law, it is properly held that preferences by a mortgage or judgment made in contemplation of an assignment are equally against its spirit and void, for, to quote from the opinion in one of those cases, “courts are not to be misled by mere devices or baffled by mere forms.” In the case of Richmond v. Mississippi Mills, 52 Ark. 30, the court only announced the general rule that courts will look, not only at the name, but at the substance of the instrument, and the intention of the parties, in order to determine what the instrument is. In Mackie v. Cairns, 5 Cow. 547, the other case cited by counsel, the deed of assignment contained a provision that the trustees should pay the grantor for his support, out of the proceeds of the property assigned, a sum not exceeding two thousand dollars per annum. Afterwards, the assignor, being apprehensive lest the assignment should be held void on account of this reservation in his favor, confessed a judgment in favor of the trustees named in the assignment for the benefit of the preferred creditors. It was held that an insolvent debtor can make no assignment of any part of his property in trust for himself, and that if the security for the benefit of creditors contain such a provision, or be intended to come in aid of another security containing such a provision, it is void. The assignment was therefore declared void because of this reservation in favor of the grantor, and the judgment was also held to be void because the court found that the object and intention of it was to carry out and sustain an illegal assignment.
These cases can have but small weight here, for the assignment before us does not reserve any benefit to the grantor, and it does not contravene the policy of our law, for we have no statute forbidding preferences. In this State the debtor, having the absolute right to prefer one or more of his creditors, may do so by assignment, mortgage or judgment, or in any other legitimate way. If, at or about the time he executes an assignment preferring certain creditors, he also confesses judgment in their favor, the court may properly scan such acts of an insolvent debtor closely, to see that no fraud is perpetrated under the pretense of securing a debt. But. when it is founc^ that the judgment is based on a valid debt, which is also preferred in an assignment executed, in due form, and otherwise legal, then, to declare them void, we are forced to hold that although, standing alone, each would be valid, yet, taken together, both would be-bad. To such a conclusion we cannot come.
But it is said that, at the time the assignment was-executed and the judgments confessed, the parties interested intended to apply to the chancery court for the appointment of a receiver that the goods assigned might, be sold on terms prohibited by the statute, and that this intention made the assignment in law fraudulent and. void. The question whether the chancellor erred in appointing a receiver, and in taking jurisdiction over the-assets assigned, is not before us in this case. The appellees appeared, and, by proper petitions, became parties to the action, and, without any demurrer or objection to the jurisdiction of the court, submitted the case on its-merits, and it is not necessary now to determine the question of the regularity of the appointment of the receiver. But if it be conceded that the appointment of a receiver was, under the circumstances, unauthorized, still we cannot adopt the view that the intention to-bring an unauthorized suit is such a fraud as will invalidate an assignment in other respects valid. We do not think that an intention, based on a mistaken view of the-law, should be followed by such severe consequences.
This brings us to the question whether the assignment was rendered invalid by reason of the fact that If. P. and James A. Gray, two of the directors of the dry goods company, were interested as indorsers on some of the notes to Worthen & Co., which constituted a portion of the indebtedness preferred by the assignment. It will be necessary, therefore, to consider the question of the-powers of corporations to make assignments, and to pre fer creditors, under the laws of this State. In the old case of Ex parte Conway, 4 Ark. 304, this court first considered the question whether a corporation has, unless restrained by its charter, or some statute, the same power of disposing of its property by assignment as an individual under like circumstances has, or, in other words, quoting the language of the court, “whether the law places natural and artificial persons upon the same footing in regard to such assignments?” The conclusion reached by the court in that case was that a corporation has the same power of disposing of its property by assignment, and of preferring its creditors, that a natural, person has, under like circumstances. In the later case of Ringo v. Biscoe, 13 Ark. 575, the same question was considered by the court, and the doctrine that an insolvent corporation has the same right to execute an assignment and make preferences among its bona fide creditors that a natural person has, under like circumstances, was re-affirmed in an opinion by Chief Justice .Watkins. That a corporation in failing circumstances has the right to make an assignment and prefer one or more of its •creditors has, in this State, never been doubted or questioned since the determination of those cases. But, outside of this State, the rule seems to be well established, .and Mr. Burrill, in his work on Assignments, quotes with approval the language of Chancellor Walworth, in De Ruyter v. Trustees of St. Peter's Church, 3 Barb. Ch. 119, that “it appears to be settled, by a weight of authority which is irresistible, that a corporation has the right to make an assignment in trust for its creditors ; and may exercise that right to the same extent and in the same manner as a natural person, unless restricted by its charter or some statutory provision.” And he ■concludes the same section by saying that, “apart from statutory provisions, no distinction exists between an individual and a corporation in regard to the exercise of the power to make preferences.” Burrill on Assignments (6 ed.), sec. 45, pp. 64 and 65, where the authorities are collated.
If it be true that an insolvent corporation may prefer its creditors, and if it be also true that the debt due Worthen & Co. was an honest and bona fide debt, which the dry goods company had the right to contract, and that the indorsement by the directors was legitimate, then, upon what logical or reasonable ground, can we conclude that the dry goods company could not prefer this debt in making the assignment ?
There are quite a number of cases decided by differ- . ent courts that hold that the assets oi an insolvent corporation constitute a trust fund, and that the directors will be treated as trustees holding this fund for the benefit of the creditors of the corporation. It is apparent that where this rule is adopted in its full extent, no preferences to any creditor can be made by an insolvent corporation, and so it has been held. The Supreme Court of Wisconsin, after laying down the rule that the directors and officers of an insolvent corporation are trustees for the creditors, says: “The directors are then trustees of all the property of the corporation for all its creditors, and an equal distribution must be made, and no preference to any one of the creditors, and much less to the directors or trustees as such.” Haywood v. Lumber Co. 64 Wis. 646. This seems to be the logical and consistent result of' what is known as the “trust-fund doctrine.” To assert that the directors of an insolvent corporation hold its property as trustees, that it is a trust fund in their hands for the benefit of the creditors of the corporation, and at the same time to admit that they may prefer one creditor or one class of creditors, to the exclusion of others equally deserving, would seem to be both illogical and inconsistent. If the directors hold the assets of the corporation as trustees for the creditors, then each creditor has a right to his. share in the proceeds of the assets of the corporation, and the directors cannot defeat this right. So soon as-we admit that the director may prefer one creditor or class of creditors, and thus defeat the right of another creditor to his share in the assets, we come irresistibly, to the conclusion that the directors are not trustees for the .creditors, nor the assets a trust fund, within the ordinary meaning of such terms, for the two positions are inconsistent and contradictory.
As the rule is firmly established in this State that a corporation, even though insolvent, may make preferences among its creditors, it is evident that it cannot be said that the property of a corporation in this State is a trust fund in the hands of its directors, in the strict and technical sense of such words. There may be a qualified meaning in which, at times, the assets of a corporation may properly be termed a trust fund, and this may be well illustrated by reference to certain opinions of the Supreme Court of the United States, in which the question has been considered. In the case of Graham v. Railroad Co. 102 U. S. 148, Mr. Justice Bradley, after referring to the contention that the corporation was a mere trustee holding its property for the benefit of its stockholders and creditors, said: “We do not concur in this view. It is at war with the notions which we derive from the English law with regard to the nature of corporate bodies. A corporation is a distinct entity: Its affairs are necessarily managed by officers and agents, it is true ; but, in law,, it is as distinct a being as an individual is, and is entitled to hold property (if. not contrary to its charter) as absolutely as an individual can hold it. Its estate is the same, its interest is the same, its possession is the same.” The learned judge then proceeds to say that when a corporation becomes insolvent, a court of equity may, at the instance of the proper parties, take charge of its assets, and administer them as a trust fund for the benefit of its stockholders and creditors. “The court,” he says, “will then make those funds trust-funds which, in other circumstances, are as much the absolute property of the corporation as any man’s property is his.” In other words, as we understand that opinion, until a court, through its officers, takes charge of the property of the corporation, it has, even though insolvent, as complete control thereof as an individual would have over his property under like circumstances. In the late case of Hollins v. Brierfield Coal & Iron Co. 150 U. S. 385, Mr. Justice Brewer, reviewing the cases on this question, illustrates the sense in which the term “trust fund” has been used by the court in speaking of the assets of a corporation. “ The same idea of equitable lien and trust,” he says, “exists to some extent in the case of partnership property. Whenever, a partnership becoming insolvent, a court of equity takes possession of its property, it recognizes the fact that in equity the partnership creditors have a right to payment out of those funds in preference to individual creditors, as well as superior to any claims of the partners themselves. And the partnership property is, therefore, sometimes said, not inaptly, to be held in trust for the partnership creditors, or that they have an equitable lien on such property. Yet all that is meant by such expressions is the existence of an equitable right which will be enforced whenever a court of equity, at the instance of a proper party and in a proper proceeding, has taken possesion of the assets. It is never understood that there is a specific lien or direct trust.” It is only in this limited and qualified sense that the assets of an insolvent corporation may in this State be properly said to be a trust fund for its creditors, for our decisions that such a corporation may make preferences among its creditors is inconsistent with the idea of any specific lien or direct trust.
But it is contended that the funds of an insolvent corporation are in the hands of the directors to be disbursed on their unbiased and impartial judg'ment, and that when personal interest or individual gain is an element subserved through their preference, it should be set aside as being in contravention of sound equitable principles. To support this contention, counsel cite, among other cases, the well considered case of Mallory v. Mallory-Wheeler Co. 38 A. & E. Corp. Cases, 120. In that case the directors of a corporation undertook to use their official position for their own benefit, and to increase their salary, to the injury of the interests of the corporation. The familiar rule that no one acting in a fiduciary capacity shall be permitted to make use of that relation for his own benefit, at the expense of the interests of his principal, was invoked by the corporation, and applied by the court. There can be no doubt that the rule was properly applied in that case, for the directors are agents, and, to a certain extent, trustees of the corporation. They will not be allowed to enter into engagements in which they have a personal interest conflicting with the interests of their principal, whose interests they are bound to protect. The rule is of wide application, and applies, as was held in that case, to agents, partners, guardians, executors, and to trustees generally, as well as to the directors and managing officers of corporations. If personal engagements hostile to the interest of their principals are entered into by persons holding such fiduciary relations, they are not, in law, absolutely void, but voidable at the election of their principals. We do not see how that rule can apply in this case, for the party cómplaining here is not the corporation, but certain creditors of the corporation. The directors of a corporation are neither trustees nor agents of the creditors, and they do not occupy a fiduciary relation towards them, and therefore the rule does not apply.
Although there are expressions in many of the cases cited by counsel that seem to support the contention that, even when an insolvent corporation may make preferences, the directors of such corporation must be free from personal bias in disbursing its assets and making such preferences, yet we do not believe that such a rule has any sound reason to rest upon. The very fact -that preferences are made shows always that the party making them is biased more or less towards the person in whose favor they are made. As long as preferences .are allowed to be made by insolvent debtors, they will be dictated more or less by the personal bias of the person making them. The individual debtor, when insolvent, and forced to make an assignment, generally prefers his friends, and often members of his own family. The home creditor and neighbor is preferred at the expense of the non-resident one, perhaps equally deserving. So, when this dry goods company came to make an assignment, it is not strange that, in making preferences, it should favor the home creditors. The contention that the estate of an insolvent debtor should be disbursed by some one acting without bias or personal interest would apply almost as well to the case of an assignment by an insolvent individual or partnership as to that of a corporation, and, if adopted, would result in forbidding all preferences in assignments by insolvent debtors, a result that might be productive of much good, but it is one that the courts must leave to the wisdom of the legislature to accomplish; for, to quote the language of Judge Caldwell, in Gould v. Railway Co., the right to make preferences “is too firmly imbedded in our system of jurisprudence- to be overthrown by judicial decision, and it can no more be overthrown by the courts in its application to corporations than to individuals.” Gould v. Railway Co. 52 Fed. 684. That was a case that arose in this State, and was controlled by the laws of this State, and, after an examination of the authorities, the court held that an insolvent corporation of this State may prefer its creditors, whether they be officers of the corporation or strangers. “The doctrine established by the best-considered cases, and by the Supreme Court of the United States,” says Judge Caldwell, in his opinion in that case, “is that the mere fact that creditors of a corporation are directors and stockholders does not prevent their taking security to themselves as individuals to secure a bona fide loan of money previously made to such corporation, and used by it in conducting its legitimate business.” The same question came in a recent case before the United States circuit court of appeals for the sixth circuit, and the same conclusion was reached. “It may be conceded,” said Judge Taft, who delivered the opinion of the court, “that the trust relation justifies and requires courts of equity to subject preferences by an insolvent corporation of its own directors to the closest scrutiny, and places the burden upon the preferred director of showing, beyond question, that he had a bona fide debt against the corporation; but we do not see why, if a corporation may prefer one creditor over others, it may not prefer a director who is a bona fide creditor. Preferences are not based on any equitable principle. They go by favor, and as an individual may prefer, among his creditors, his friends and relatives, so a corporation may prefer its friends.” Brown v. Grand Rapids etc. Co. 58 Fed. 286. The following cases sustain this position : Buell v. Buckingham, 16 Iowa, 284; Garrett v. Plow Co. 70 Iowa, 697; S. C. 29 N. W. 395; Bank of Montreal v. Salt & Lumber Co. 90 Mich. 345; S. C. 51 N. W. 512; Hospes v. Car Co. 48 Minn. 174; S. C. 50 N. W. 1117; Planters Bank v. Whittle, 78 Va. 739; Hallam v. Hotel Co. 56 Iowa, 179; S. C. 9 N. W. 111; Smith v. Skeary, 47 Conn. 47; Wilkinson v. Bauerle, 41 N. J. Eq. 635; Whitwell v. Warner, 20 Vermont, 425; Duncomb v. Railway Co. 84 N. Y. 190.
The Supreme Court of Iowa, in Garrett v. Plow Co., supra, after discussing at some length the question whether an insolvent corporation can prefer a debt due one of its directors, and deciding that it may do so, then considers the exact question • involved in this case, that' is, whether such a corporation may prefer a note to a person having no connection with the corporation, but upon which note a director is indorser, and disposes of it in the following words : “ The note held by the savings bank presents a different and less difficult question. It was not given to a director or member of the corporation. Rand and other directors are indorsers or guarantors of the note. We know of no principle of law which will compel the bank to proceed against the indorsers or guarantors, and surrender the property it holds to other creditors.”
A corporation will not, any more than an individual, be allowed to convey its property to defraud its creditors, but in the case at bar the evidence is conclusive that the debt due Worthen & Co. was an honest and bona fide debt for a large sum of money, which they in good faith loaned the dry goods company. They had no interest in ■or connection with the dry goods company, either as •stockholders or directors. They had a perfect right to ■make the loan, and it was entirely legitimate for a director to indorse the notes as a personal guaranty that the money should be repaid. As the proof shows that E. P. Gray, who was the indorser on two of the notes for $3000 each, was insolvent, and that James A. Gray, who was the indorser on another one of the notes for $5000, had but little property in this State, it is plain that, in making the loan, Worthen & Co. relied mainly on the faith and credit of the dry goods company. In other words, they expected to be paid by the dry goods company, and not by the indorsers.
While there is not wanting eminent authority to-support the decree of the learned chancellor in this case,, yet, after a consideration of the above authorities, and also of the cases cited by counsel for appellee, we have reached the conclusion that, the dry goods company having the right to make preferences, and Worthen & Co. having advanced it in good faith over twenty thousand dollars to be used in its business, that the fact that two> of the directors were endorsers on notes for a portion of this sum did not, under the laws of this State, render the assignment preferring the debt due Worthen & Co., invalid.
Had we reached a different conclusion, it is doubtful if the equitable principle of,equality could in this case have been applied in the distribution of the proceeds of the assets of the insolvent corporation. Such a conclusion, under the former adjudications of this court, would probably only have resulted in giving priority to a dif— erent set of creditors, not more meritorious or deserving than those preferred by the assignment. Many eminent text writers have severely condemned a state of law that admits of preferences by insolvent corporations, but their reproaches, in the language of counsel,, “ must fall on the legislative, not on the judicial, branch! of the government.” Our own legislature is no longer subject to such criticism, for the act of 1893 forbids suck preferences by insolvent corporations, and this opinion, so-tar as it deals with the question of preferences by such corporations, is only declaratory of what the law was before the passage of that act.
The decree of the chancellor is therefore reversed, and the case remanded, with an order to distribute the proceeds of the assets of the dry goods company in accordance with the priorities named in the assignment.
Mr. Justice Battle dissented. | [
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Paul Ward, Associate Justice.
This appeal concerns certain questions of law which arose out of the administration of the estate of Joe Dean Goodin who died intestate, leaving real and personal property valued at approximately $400,000. It is important at the outset, in order to grasp the issues involved, to understand who constituted the heirs of the deceased and their relationships, and also the nature of the property.
Heirs. Joe Dean Goodin died January 11, 1957, unmarried, leaving no children. The administration of his estate began in March, 1957. The deceased’s mother, Myra C. Goodin, died April 28, 1957, and her estate is being administered under separate proceedings. Myra had a brother, J. J. Dean, who is now living. She also had a sister, Anna Williams, who is deceased, leaving-three children. The above are referred to as the “Dean heirs ’ ’.
The deceased’s father, J. P. Goodin, who died in 1951 had one half-sister and three half-brothers. All of these are now dead. Two of them had one child each (now living); one had five children (now living); one had eight children one of -whom is deceased, leaving six children (now living). These will be referred to as the “Bryan heirs”.
Property. The property affected by the administration of deceased’s estate, for the purposes of this opinion, can be designated as here set out. Paternal ancestral: An undivided one-half interest in 164.6 acres of land and 31.5 acres of land. New acquisition: 711.57 acres of land. Personal property: Among other things (a) On December 24, 1956 decedent leased 80 acres of land for the year 1957 and took a note for $1,950 due that fall; (b) On December 27, 1956 decedent leased the rest of the lands for the years 1957, 1958 and 1959 taking three notes, each in the amount of $21,250; (c) There was certain other income from the estate accruing during the administration.
After the probate judge had made a finding of heir-ship and after a final accounting had been made, the administrator, on March 29, 1961, filed his Petition for Distribution. Thereafter, on July 22, 1961, the judge issued a detailed memorandum opinion indicating what his rulings would be on all questions and issues involved. Based thereon a precedent for a decree was submitted by the Dean heirs (appellants) and another one was sub mitted by the administrator and the Bryan heirs (appellees), each setting ont in detail the real estate interest and the personal property each beneficiary would receive, and also how the costs attending administration were to be apportioned. Where the two precedents were in agreement such instances will not be discussed or referred to in this opinion. The court, however, approved the precedent submitted by appellees and rendered a decree accordingly.
On appeal appellants set out nine separate points for a reversal, but we have decided that all essential issues can be disposed of under two separate specific points and a third general point.
One. The trial court divided the new acquisition lands per stirpes among the Dean heirs and the Bryan heirs — that is, the court gave a one-sixth undivided interest each to the brother and sister (or the heirs of each) of decedent’s mother, and a one-sixth each to the three brothers and one sister (or the heirs of each) of decedent’s father. In so doing, we think, the court committed error. It is our conclusion that an undivided one-half interest in the new acquisition lands must go to the heirs of decedent’s mother and that the other one-half interest must go to the heirs of decedent’s father.
Ark. Stats. § 61-111 reads:
“Descent where no father or mother. The estate of an intestate, in default of a father and mother, shall go as follows: one-half to the brothers and sisters, and their descendants of the father; and the other one-half to the brothers and sisters, and their descendants, of the mother; provided, that if such line of either the father or the mother shall be extinct, then the entire estate shall go to such line of the other. This provision applies only where there are no kindred, either lineal or collateral, who stand in a near[er] relation, and does not apply to ancestral estates.” (The word near should be nearer. See Daniels v. Johnson, infra.)
In the ease of Daniels v. Johnson, 216 Ark. 374, 386-387, 226 S. W. 2d 571, in an exhaustive opinion, this . Court said:
“It is as though. § 61-111 read: ‘The estate of an intestate, in default of [descendants, or brothers or sisters or their descendants, or] a father and mother, shall go as follows . . .’ This gives § 61-111 its proper function, which is to define tlie manner of descent and distribution of non-ancestral estate under the third sub-paragraph of § 61-101.”
When § 61-111 is read in its entirety in conformity with the above quoted language there can be no doubt that it is controlling under the factual situation in the case under consideration, and that it dictates what our conclusion must be. Joe Dean Goodin’s estate is in default of descendants, brothers and sisters, and father and his mother. Therefore, one-half of it must go to the three brothers and one sister (or their descendants) of his father, and the other one-half must go to the brothers and sister (or their descendants) of his mother.
Appellees’ well reasoned and well presented contention is to the effect that this case is not controlled by § 61-111 but is controlled by §§ 61-101 and 61-110. It is certain that the issue presented is not without its perplexities. Harry E. Meek, in an exhaustive memorandum on the Law of Descent and Distribution written in 1961 and published in the Desk Book of the Arkansas Bar Association, in discussing Ark. Stats. § 61-101, said: “But where the intestate leaves no issue, either Sec. 61-110 or 61-111 must be consulted; and the relationship between the three sections has obfuscated Arkansas lawyers for more than one hundred years.”
However, we think a careful study of the history of these sections and their relation to each other confirms the conclusion heretofore reached. Prior to the passage of Act 52 of 1933 the law preferred the paternal heirs over the maternal heirs. For example, Crawford and Moses Digest §§ 3471, 3480 and 3481 all preferred the paternal heirs, but said Act 52 changed those sections to put the paternal and maternal heirs on the same basis. Sections 3471 and 3480 were changed by said Act 52 to read the same as Ark. Stats. §§ 61-101 and 61-110 respectively. Section 3481 (C. & M. Dig.) was changed by Act 52 to read as follows: ‘ ‘ The estate of an intestate, in default of a father or mother, shall go to the brothers and sisters, per stirpes. ” It is apparent this section did nothing to clarify the issue under discussion. However, the above section was changed by Act 117 of 1937 to read the same as Ark. Stats. § 61-111 (heretofore copied). It is necessary now to consider certain language found in § 61-110 (relied on by appellees) which, in all material parts, reads as follows:
“Descent where no descendants . . . but if the estate be a new acquisition, it shall ascend to the father and mother for life in equal shares, and upon the death of one parent, the share enjoyed by such parent during his or her life shall pass to the sole surviving parent for life, and then, both shares shall descend in remainder to the collateral kindred of the intestate in the manner provided in this act [§§ 61-101 — 61-105, 61-107- — 61-113, 61-115 — 61-123].” (Emphasis added.)
The question then is: What section of the statute is referred to by the word “in the manner provided by this act”? It seems clear enough that the above quoted words must refer either to § 61-101 (3rd paragraph) or to § 61-111, because none of the other sections mentioned seem to have any relevancy. Section 61-101 is eliminated by the language quoted from the Daniels case, supra. This leaves only § 61-111 to supplement § 61-110. So, when § 61-111 is applied to the undisputed facts in this case, it seems clear to us that one-half of decedent’s new acquisition lands passes to the Dean heirs and the other one-half passes to the Bryan heirs.
Tivo. Rent Notes. The trial court was correct (a) in giving the estate of Myra (mother of decedent) all rentals accruing, before her death, on the new acquisition lands for the year 1957, and (b) in giving the unaccrued rents (on the three notes for $21,250 each) to those who received the land, as their interests appear. The general rule in this connection is set out in 32 Am. Jur. Landlord and Tenant, 447-448, at page 364. In the first section we find this:
“Generally. — Rents accrued before tbe death of tbe lessor do not descend to bis beirs at law or pass directly to bis legatees, bnt devolve upon bis personal representative for administration and distribution as personal assets of bis estate.”
In tbe other section it is said:
“As a general rule, since rent to accrue is an incident of tbe reversion, upon tbe death of a lessor, who had reserved rent generally for tbe duration of tbe term, rents thereafter to accrue and to become payable either in money or in a share of tbe crops raised upon tbe premises do not devolve upon bis executor or administrator for administration as a part of bis personal estate, but descend at once, with tbe reversion, as real estate, to bis beirs at law. . . .”
Tbe above is true only where, as here, there is sufficient personal property in tbe bands of tbe administrator to pay debts and costs. In the case of Phillips v. Grubbs, 112 Ark. 562, 566, 167 S. W. 101, on rehearing, this same question of rentals was considered, and tbe Court said:
“Tbe decree ought, however, to be modified with respect to tbe order on Grubbs to pay tbe rent to Prank A. Wright as executor of tbe estate of Mrs. Carr. It does not appear that tbe lands or tbe rents and profits thereof are necessary for tbe payment of debts; therefore, tbe beirs are entitled to collect tbe same.”
See also, to tbe same effect, Gailey v. Ricketts, 123 Ark. 18, 184 S. W. 422 and Deming Investment Company v. Bank of Judsonia, 170 Ark. 65, 278 S. W. 634. We have carefully read tbe cases cited by appellants but find nothing to justify a conclusion that tbe said rent notes are personal property in tbe bands of tbe administrator to be distributed to them as such.
Three. Tbe trial court made directives with reference to the payment of certain expenses incident to tbe administration, some of which are unchallenged. Appellants say tbe accountant’s fee and tbe attorney’s fee should be prorated “taking into consideration tbe value of the real as against the personal property”. In regard to the attorney’s fee the trial court said:
‘' This charge, as allowed by the court, shall be prorated so as to charge the personal property with its correct share and those services relating to the land and its rent notes collected shall be charged to the land in proper portion of each interest therein.”
As to the accountant’s fee the court said:
‘ ‘ The court finds that this fee shall be charged to all in proportion to the interest of each in both real and personal property.”
Appellants fail to point out any error in the court’s directive and we cannot say any error exists. What constitutes correct or proper apportionment might depend on evidence showing what services the attorney and the accountant performed in their respective capacities. If any error has been made it can be called to the attention of the trial court on remand. The same thing can be done if, as appellants say, there are errors in the land descriptions.
The conclusions we have already reached relative to the heirs of the deceased call for an affirmance of the administrator’s cross-appeal.
The decree of the trial court is therefore reversed in part and affirmed in part, as indicated herein, and the cause is remanded for further proceedings in accord with, this opinion. | [
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Wood, J.,
(after stating the facts). 1. Counsel for appellant contends that the only promise of marriage made by appellant to the prosecutrix was the conditional one to the effect that he would marry her in the event that she became pregnant, and that the sexual intercourse was • obtained by appellant with the prosecutrix upon such promise, and that sexual intercourse obtained on a conditional promise is not seduction under our statute. Appellant’s contention as to the law is sound.
The most effective snare which the licentious fowler could set in the way of chaste and unsuspecting females to draw them from the path of virtue is in the form of a false or feigned express promise of marriage. Doubtless more innocent and confiding girls and women have been caught in that trap than any other. Hence, the Legislature enacted our statute making it a penitentiary offense to obtain carnal knowledge of any female by virtue of any feigned or express promise of marriage. (Kirby’s Digest, § 2043.) But the statute was leveled at the particular crime of obtaining carnal knowledge of a chaste female through an express promise of marriage. Its purpose was to protect virtuous womanhood, and not to prevent sexual intercourse with a female who was already unchaste. A lack of chastity in the female constitutes a perfect defense to the charge of seduction under this statute. See Polk v. State, 40 Ark. 482; Puckett v. State, 71 Ark. 62; Walton v. State, 71 Ark. 398; Caldwell v. State, 73 Ark. 139; Rucker v. State, 77 Ark. 23; Wilhite v. State, 84 Ark. 67; Oldham v. State, 99 Ark. 175.
If a woman consents to the act of sexual intercourse upon a promise of the man to marry her only in the event that pregnancy results from it, then the promise is based upon a condition that might not arise. Where a woman yields to sexual embraces upon such promise she is not sacrificing her virtue alone because of a desire to marry the man to whom she yields, but, in such case, she is indulging her lustful passion and is resting upon the promise of marriage only for protection and assistance when her disgrace shall have been discovered. But this statute can only be invoked by the female who to the very time of her fall had held her virtue, so to speak, as “the immediate jewel of her soul,” and who was only induced to surrender it through the promise of the man whom she trusted to marry her and solely from a desire to have him keep that promise. The woman who yields her virtue for sexual pleasure and uses the promise of marriage only as a cloak or subterfuge to hide her disgrace is not within the pale of the protection of this particular statute. As was aptly said by the Supreme Court of Oregon in construing a similar statute: “Its design is to protect the chaste woman from the assaults of a wicked and designing man who makes use of the most potent of all seductive arts to win the love and confidence of a woman by professions of love and marriage, and not one who is willing to gratify her own lustful desire.” State of Oregon v. Adams, 22 L. R. A. 840.
In the latter case it was held that sexual intercourse accomplished on promise of marriage conditioned on pregnancy resulting is not within a statute making seduction under promise of marriage a criminal offense. The same was held in People v. Van Alstyne, 39 N. E. 343. See, also, People v. Duryea, 30 N. Y. Supp. 877.
But we do not agree with the learned counsel for appellant in his contention to the effect that the undisputed evidence shows that carnal knowledge of the prosecutrix was obtained solely on the conditional promise that appellant would marry her in the event that she be- • came pregnant. It was a question for the jury, under the evidence, as to whether the sexual intercourse was obtained with no other promise than that appellant would marry the prosecutrix in the event that she became pregnant. True, the evidence shows conclusively that he promised to marry her if she became pregnant, but the jury were warranted in finding from her testimony, taken as a whole1, that the intercourse was had on an express promise of marriage and that the condition as to pregnancy was only intended to hasten the marriage. The prosecutrix testified that appellant had tried often to have sexual intercourse with her before their engagement and she had persistently refused, but after they were engaged he said if she became pregnant “he would marry her right away. ’ ’ They had designated some time in the fall for the marriage to take place.
In Cherry v. State, 38 S. E. 341, the facts were similar, and the court held: “If a single woman allowed a married man to have sexual intercourse with her solely because of a promise by Mm to marry her in the event she became pregnant it was purely a meretricious transaction and not a case of seduction. But if an engagement to marry at a designated time in the future already existed between a marriageable man and woman, and she, on the faith thereof, and because of the fact that he had won her affection and confidence, and under the influence of persuasions and entreaties, accompanied by a promise to immediately consummate the marriage in the event of pregnancy, to submit to Ms lustful embraces, it was a case of seduction.”
It follows that the law announced by the court in instruction No. 3 was correct. The court did not err in refusing prayer No. 16, for the reason that it ignored the testimony tending to show that the sexual intercourse was obtained by an absolute promise on the part of appellant to marry the prosecutrix, but to be consummated “right away” in the event of pregnancy.
2. The court did not err in refusing that part of instruction No. 10 included in the parentheses. The part given wias complete without this. The part refused was but cautionary, and, in effect, argumentative.
There was no error in refusing appellant’s prayer No. 15. This w.as fully covered by instruction No. 11 , wMch the court gave. Besides, the prayer was erroneous because it warranted the jury in entertaining a reasonable doubt that might be created in their minds not from the evidence, but merely “by the ingenuity of counsel. ’ ’
The court did not err in permitting the letters to be read in evidence. These were sufficiently identified by the prosecutrix. Her testimony as to the identification was sufficiently corroborated by.the testimony of Delcie Burton.
There was no prejudicial error to appellant in permitting the. affidavits of the Taylors to be read in evidence. These affidavits were admitted by them, and the witnesses stated -that the facts stated therein were true. It was for the jury to say whether or not these facts were in conflict with the testimony given by these witnesses at the trial. The court told the jury that the affidavits could only be considered for the purpose of impeachment. They were competent for that purpose. Moreover, if the facts set forth in the affidavits were true, as the witnesses stated, it was harmless error to allow the jury to consider them. It was but a repetition of the same facts, and the testimony wtas competent and relevant.
There was no reversible error in allowing the sheriff to testify that he went to Bristow, Oklahoma, to get the defendant. The sheriff, was merely stating what he did through his deputy, stating it as a fact which he knew.
Finding no reversible error in the record, the judgment is affirmed.
Instruction No. 11. — You are instructed by the court that, in this case, the burden of proof rests upon the prosecution to make out and prove to the satisfaction of the jury, beyond a reasonable doubt, every material allegation in the indictment, and unless that has been done, you should find the defendant not guilty. | [
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Bunn, C. J.,
(after stating the facts). The first contention of the appellant is that the service of summons on the defendant insurance company by Boyd & Shelby as its agents was insufficient to compel its attendance, and that no valid judgment could, therefore, be rendered against it, and that the judgment rendered herein is void ; and that for that reason the summons, served upon the appellant in Pulaski county to appear in the said Sebastian circuit court is also void—in other words, is not such service as is authorized by statute to be binding upon it.
First, then, as to the service of summons upon the defendant insurance company, the principal in the bond sued on.
At common law the courts of one State have no jurisdiction over the corporations of other States, for the simple reason that there is no way by which service of summons may be made; for, as stated in Angelí & Ameson Corporations (10th ed.), sec. 402 : “It has been, thought that as a corporation can sue within a foreign jurisdiction, there is no reason why it should not be liable to be sued without its (own) jurisdiction, in the' same manner, and under the same regulations, as domestic corporations. ' The technical difficulty which is said to stand in the way is, that the process against a. corporation must, by the common law, be served on its head or principal officer, within the jurisdiction of the sovereignty where this artificial body exists.
In Bushel v. Commonwealth Insurance Co., 15 Serg. & R. 176, it is said: “The process against a corporation, by the common law, must be served on its head or principal officer, within the jurisdiction of the sovereignty where this artificial body exists. If the president, of a bank of another State were to come within this State, he would not represent the corporation here; his. functions and his character would not accompany him when he moved beyond the jurisdiction of the government under whose laws he derived his character, That this would be the case where he was in the State on business unconnected with the corporation, there can be no question, but where a corporation locates the presi dent or other officer within the State, for the express-purpose of malting contracts here, whether process-served on him would not be sufficient is a question which I shall not undertake to determine, because it does not necessarily arise. There is nothing, then, in the nature of a corporation to exempt it from suit. The difficulty arises from there being no person within the limits of the State on whom you can serve your process.” To-the same effect is City Fire Ins. Co. v. Carrugi, 41 Ga. 660. And these cases are samples of cases in those courts which have gone farthest in seeking, by judicial rule, to-acquire jurisdiction of foreign corporations. This is enough to say, to make the point that, for the courts of a State to acquire jurisdiction of the person of a foreign corporation, they must look, and look alone, to the statutes of their own State.
In practical application of the rule of common law, and as aided by statute, the Supreme Court of the United States, in St. Clair v. Cox, 106 U. S. 350, says : “In Pennoyer v. Neff we had occasion to consider at length the manner in which State courts can acquire jurisdiction to render personal judgments againfet non-residents which would be received as evidence in the Federal courts ; and we held that personal citation (summons), on the party or his voluntary appearance was, with some exceptions, essential to the jurisdiction of the court. ■
“The doctrine of that case applies, in all its force, to personal judgments of the State courts against foreign corporations. The courts rendering them must have acquired jurisdiction over the party by personal service or voluntary appearance, whether the party be a corporation or a natural person. There is only this difference : a corporation, being an artificial being, can act only through agents, and only through them can be reached, and process must, therefore, be served upon them. In the State where a corporation is formed it is. not difficult to ascertain who are authorized to represent and act for it. Its charter or the statutes of the State will indicate in whose hands the control and management of its affairs are placed. Directors are readily-found, as also the officers appointed by them to manage its business. But the moment the boundary of the State, is passed, the difficulties arise; it is not so easy to determine who represents the corporations there, and under ' what circumstances service on them will bind it.
“Formerly, it was held that a foreign corporation ■could not be sued in an action for the recovery of a personal demand outside of the State by which it was chartered.”
And again: “The State may, therefore, impose, as a condition upon which a foreign corporation shall be permitted to do business within her limits, that it shall stipulate that, in any litigation arising out of its transactions in the State, it will accept as sufficient the service ■of process on its agents or persons specially designated ; and the condition would be eminently fit and just. And such condition may be implied as well as expressed.”
That was a case from Michigan, where foreign corporations were permitted to do business by statute, and by the same it was provided thát service could be had on “any officer, member,' clerk or agent of such corporation” within the State, and that this service should operate as personal service. The court further says: “ The transaction of business by the corporation in the State, general or special, appearing, a certificate of service by the proper officer on a person who is its agent there would, in our opinion, be sufficient prima facie ■evidence that the agent represented the company in the business. It would then be open, when the record is offered as evidence in another State, to show that the agent stood in no representative character to the company, that his duties were limited to those of a subordi nate employee, or to a particular transaction, or that his agency had ceased when the matter in suit arose. In the record, a copy of which was offered as evidence in. this case, there is nothing to show, so far as we can see,, that the Winthrop Mining Company was engaged in business in the State when service was made on Colwell.. The return of the officer, on which alone reliance was. placed to sustain the jurisdiction of the State court, gave no information on the subject. It did not, therefore, appear, even firima facie, that Colwell stood in any such representative character to the company as would justify the service of a copy of the writ on him. The certificate of the sheriff, in the absence of this fact in the record, was insufficient to give the court jurisdiction to render a personal judgment against the foreign corporation.”
It is plainly to be seen that the difficulty in that, case grew out of the imperfection of the Michigan statute, in this, that it designated too many classes of agents and representatives of the company, and too' many individuals of some of the classes, upon whom service might be had in order to bind the company. In fact, the statute, in effect, designated any and all officers and agents of the company in the State. That necessarily left it so that a very indefinite sheriff’s return might be made the indisputable foundation of a judgment by default. The court held, however, that while' service on one named as “agent” would authorise judgment, yet that it must first be made to appear, as a jurisdictional fact under that law, that the company was doing business in the State at the time of the service, or the service would be void.
None of the difficulties confronting the court in that case could possibly confront a court under the laws of' Arkansas, for here we have only one agent named upon whom process may be served to bind the company, and,, in case of his absence, the Auditor stands in his place, .and this agency is practically irrevocable, and it does not make any difference whether the company is doing ■business or not in the State at the time of the issuance .and service of the process. The record—the sheriff’s return—need only show definitely the summons to have been served on the designated agent, and that he in fact is such designated agent, or in his absence that it has ■been served on the Auditor of the State. Nothing more may be said in the latter case as to official description, .as there is but one Auditor of State.
This brings üs to the question of whether or not ■service upon this designated agent is the only and exclusively legal service to be had in order to bind a foreign insurance company. A majority of the court are of the .opinion, from what has been said, and from the language .of the constitution and laws of this State pertaining to the subject, that such is the only legitimate mode of obtaining service upon a foreign insurance company, so as 'to authorize a valid personal judgment against it; and this opinion, we think, is in just accord with the true ■sense and meaning of the opinion of the United States Supreme Court from which we have so largely quoted. It is also in harmony with the true sense and meaning of the case of Ehrman v. Teutonia Ins. Co. 1 McCrary, 123.
As early as 1873, what is known as an “insurance bureau” was established by the legislature of this State, by and through which the whole subject of insurance, domestic and foreign, was regulated and managed. Among the provisions of that statute, which forms a separate chapter in our digest, is one imposing duties upon foreign corporations upon which they would fee permitted to do business in this State at all. Among these duties are that of appointing the agent referred to and agreeing that service upon him or the Auditor shall he .held to be personal service upon the company. There was already in existence, as part of the code of pleading and practice, a provision whereby service was to be had upon foreign corporations generally, but the provision in the insurance bureau, under a well known rule ■of construction, was the one, and the only one, applicable to foreign insurance corporations. The present con* stitution provides, in a general way, how foreign corporations may be permitted to do business in the State. See ■sec. 11, art. 12. The bureau act of 1873 was re-enacted in 1875 after the adoption of the present constitution, and the only change made was in this: instead of the separate bureau being managed by an insurance commissioner, the Auditor was substituted as head of the bureau, and so the law stands to this day.
Whatever the courts may choose to say about the matter, the legislative department of the State government has treated foreign insurance corporations of so much importance, and so independent of domestic control, that it has required, as a condition of their being permitted to do business in the State at all, that they (each and every one of them) shall agree that service upon a designated agent shall be personal service upon the company. It is somewhat a matter of doubt, as we have seen, whether, without this agreement, a valid personal judgment could be rendered against one of them at all. At all events, not unless the very act of doing business in the State through an agent may be judicially ■construed to mean an acceptance of the terms imposed by statute so as to become binding, as was held by Judge Caldwell in the case above cited from 1 McCrary. See, however, Rothrock v. Dwelling-House Ins. Co. 23 L. R. A. 863.
The bureau act provided for the protection of policy holders in case of inability or unwillingness of foreign insurance companies to redeem their pledges, and since then bond and security have been required as part of the conditions.imposed (and the sureties on these bonds must, be largely citizens of the State), as in the present instance. These bondsmen, as well as the foreign corporations, have a vital interest in the law being confined in its administration to the exact terms and provisions of the bureau act—the law under and in view of which they entered into their obligations. All of them have a right, to demand, when they (principals and sureties) are sued on the bonds, that no obscure, incompetent or careless, agent shall represent the corporation in this particular matter, but the chosen agent, the confidential representative, shall be notified of the institution of all suits, and they all, by. the State’s sacred contract and treaty with them, have the right to enjoy the benefit of this-agent’s promptness and efficiency. We think that the law, when construed in the light of surrounding circumstances, the objects to be attained, and the great interest to be subserved, can mean nothing else than that the service upon the agreed and designated agent is the only service that can authorize a judgment in such cases.
The next question to be considered is, whether or not, having answered as it did, the trust company entered its appearance, and is bound by the judgment, or, in other words, was the answer a waiver of the service of summons upon it ?
In the first place, a liberal construction of sections 5008 and 5009, Mansfield’s Digest, might determine this-question in favor of the defendant, but, since there are decisions that might be considered as militating against, this summary disposition of the question, we will consider it without reference to those particular sections of the statute. Under the old practice, a plea in abatement had to be disposed of before presenting a plea in bar. Hence, after such a plea overruled, when the defendant interposed a plea in bar, he was considered as having waived defects of service, if that were his plea in abate ment, and entered his appearance. Under the new or the code practice, the rule is different, for the defendant is required to make all his defenses in the one paper denominated his answer. In Grider v. Apperson, 32 Ark. 332, it is said: “Under our code practice, pleas in abatement, as such, have been abolished, and matter in abatement may be interposed in connection with pleas in bar, under a most liberal provision for amendments, intended to prevent delay, and to bring the parties to issue upon the merits of the case.”
In the case of Erb v. Perkins, 32 Ark. 428, the defendant filed his answer containing two paragraphs as defenses, the first in the nature of a plea in abatement as to the insufficiency of notice, and the second a plea in bar, as in the case now under consideration. It was there objected by the plaintiff that, by presenting the plea in bar, the defendant had waived his defense contained in the first paragraph, or plea in abatement. On appeal, however, this court said: “Appellant submits, however, that the defense set up by the first paragraph of the answer, being a matter in abatement, was waived by the second paragraph, which was in bar. By the common law system of pleading, matter in abatement was waived by pleading in bar, but such is not the rule under our code system of pleading, but, on the contrary, in the same answer matter in abatement and matter in bar of the action may be pleaded in separate paragraphs.”
If the defendant is to enjoy the benefit of his plea in abatement, notwithstanding his simultaneous plea in bar, even when he makes no special reservation of his right to do so, as in the case of Erb v. Perkins, just cited, how much clearer is the right when he has asserted and reserved it at every step, even when driven by the force of circumstances to do that which the plaintiff was seeking all along to compel him to do—answer without being legally brought into court. We think his plea in abatement—the first paragraph of his answer—-was good, and should have been sustained, and that the cause should have been dismissed without prejudice for want of proper service upon either of the defendants, and it is now so ordered. | [
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Hughes, J.
(after stating the facts.) The contention of the appellant is that the covenants, in the deed of Shaver and wife, Caroline, to him apply to the land described in the deed, and not to whatever “right, title, claim and interest” the appellees’ ancestor may have had at the time of the execution of the deed, which was all that the deed, in terms of the granting clause, purports to convey. The warranty is: “And we, the said James Shaver and Caroline Shaver, do, for ourselves and our heirs and assigns, warrant and defend the same unto the said Dennis W. Reynolds.” It appears, from the language in the granting part of the deed, that Shaver and wife intended to convey only their “right, title, claim and interest” in the land, and that they intended only to “warrant and defend the same.” This is the \ legal import of their warranty ; that is, that they would ¡warrant and defend such “right, title, claim and inter-fest” as they had in the land at the date of their conveyance, which was all they had conveyed,, The conclusion ¡that such was their intention seems apparent from the language of the conveyance, and is strengthened by the facts that Reynolds, as administrator of the estate of Kelsey, had conveyed this land to Shaver while it was a homestead and could not legally be sold by the administrator. The conveyance of Shaver and wife to Reynolds was, therefore, nothing more than a quitclaim deed.
In Van Rensselaer v. Kearney, 11 Howard, 322, it is said : “ The general principiéis admitted that a grantor conveying by deed of bargain and sale, by way of release or quitclaim of all his right and title to a tract of land, if made in good faith and without any fraudulent representations, is not responsible for the goodness of the title beyond the covenants in his deed.” Patton v. Taylor, 7 How. 159; 2 Sugden on Vendors, chap. 12, sec. 2, p. 421; 2 Kent’s Com. 473', and other cases cited. “Where a deed purports to convey only the right, title and interest of the grantor, the scope of the covenant of warranty may be limited by the subject-matter of the conveyance.” 2 Devlin on Deeds, sec. 931 and cases cited. Tiedeman on Real Property, sec. 858, says : “If a deed purports to convey in terms the right, title and interest of the grantor to the land described, instead of conveying in terms the land itself, a general covenant of warranty will be limited to that right or interest, and will not be broken by the enforcement of a paramount title outstanding against the grantor at the time of the conveyance.”
Affirmed. | [
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Battle, J.
This action was brought by appellees against the appellants in the Pope circuit court, on the law side thereof. The parties waived a jury, and the issues in the cause were tried by the court. Judgment was rendered in favor of the plaintiffs against the defendants ; and an appeal was taken by the defendants, but no bill of exceptions was filed. An instrument of writing, signed by the judge, appears in the transcript, which purports to be conclusions of law and facts found by the court. The findings of facts by the court are also set out in the judgment, as in Smith v. Hollis, 46 Ark. 17, but they show no error. Appellants rely for reversal on the writing purporting to be conclusions of law and facts found by the court. Was it a part of the record?
It has been held by this court that, without a bill of exceptions, the conclusions of law found by the court are no part of the record. Hall v. Bonville, 36 Ark. 491. Eor the same reason the findings of facts by the court should be brought on record by a bill of exceptions, both being required of the court, sitting as a jury, by the same statute. Mansfield’s Digest, sec. 5149. There is no entry on the record showing the filing of any conclusions of law and fact in this case, and if any were filed, they were not in any way made a part of the judgment.
It follows that we cannot consider the writing relied on by appellants as the conclusions of law and facts found by the court.
Judgment affirmed. | [
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BatteE, J.
First. There is a difference between an executory and an executed contract of an infant. In the latter case the contract is binding until it is avoided. In the former, it is without binding force until it is confirmed. If an infant is sued on his executory contract, before or after becoming of age, if he has not confirmed it since his majority, the infancy is a perfect defense. Edgerly v. Shaw, 25 N. H. 514; Tobey v. Wood, 123 Mass. 88; Tyler v. Fleming (Mich.), 35 N. W. Rep. 902; Bishop on Contracts, sec. 937; 1 Wharton on Contracts, sec. 50; Hale v. Gerrish, 8 N. H. 374; Fetrow v. Wiseman, 40 Ind. 148.
The stipulations made by the infant in this case, though connected and forming parts of the same transaction, were virtually divided by the parties into two contracts, one of which was executed, and the other executory. His right to avoid the latter was not affected by the force, effect or existence of the former. 1 Wharton on Contracts, secs. 46, 114.
The first instruction asked for by the plaintiff was properly refused by the court.
Second. The seventh instruction asked for by appellant is not mentioned or referred to in the motion for a new trial, if the abstract of appellant be correct, and was, therefore, waived.
Third. The objections of the appellant to the instructions given at the instance of the appellees are not insisted on in this court, and, we conclude, have been abandoned.
Fourth. As the evidence is not set forth in the abstracts and briefs of the parties, we will not consider it, under the rules of this court.
Judgment affirmed. | [
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Sam Robinson, Associate Justice.
This is an appeal from a conviction of the crime of unlawfully fondling a child in violation of Ark. Stat. § 41-1128.
The first point on appeal is the contention that the court erred in permitting the defendant to be cross-examined about having been convicted of an assault upon one Yirginia Denton. On cross-examination the State’s attorney propounded to the defendant the following questions:
‘' Q. Have you ever been convicted of a crime ?
“A. I paid a fine for a simple assault.
‘ ‘ Q. I would like to ask you if on or about September 23rd if you didn’t pay a fine for assaulting Virginia 'Denton?”
Over defendant’s objection and exceptions he was required to answer the question, and he answered "Yes.”
In support of the argument on this point, appellant cites two cases, but neither is applicable. Alford v. State, 223 Ark. 330, 266 S. W. 2d 804; Moore v. State, 227 Ark. 544, 299 S. W. 2d 838. In each of these cases it was held that the court erred in admitting independent testimony introduced by the State to prove similar crimes to those for which the defendants were then on trial.
But in the case at bar that situation does not exist at all. Here the defendant took the stand as a witness in his own behalf. When he did so he became subject to cross-examination the same as any other witness. In Jutson and Winters v. State, 213 Ark. 193, 209 S. W. 2d 681, in referring to the cross-examination of the defendant the Court quoted from Ware v. State, 91 Ark. 555, 121 S. W. 927: " 'As a -witness in the cause he could have been cross-examined; and upon his cross-examination, like any other witness, he could have been asked as to specific acts for the purpose of discrediting his testimony as a witness.’ ”
In Sullivan v. State, 171 Ark. 768, 286 S. W. 939, the Court said: "This court has adopted the rule that witnesses, including the accused, may be impeached on cross-examination by drawing out the fact that they have committed other crimes and immoralities of various kinds” [citing numerous cases]. Not only did the State have the right to ask the defendant on cross-examination about an assault made on another person but had the right to ask him about the particular person assaulted. The defendant could be guilty of more moral turpitude in making an assault upon a female than for assaulting a big strong man. Of course, if he had cared to do so, appellant would have been permitted to make a full explanation of the assault.
The appellant next argues that the trial court erred in giving instruction No. 6 requested by the State. The instruction is as follows: “You are instructed that no corroboration of the testimony offered by the prosecuting witness is necessary, but that the testimony of Marlene Bailey alone, if believed by the jury, and if it convinces the jury beyond a reasonable doubt of the defendant’s guilt, it is sufficient to sustain a conviction.”
Article 7, § 23 of the Constitution of Arkansas provides: “Judges shall not charge juries with regard to matters of fact, but shall declare the law. . . .”
In Mitchell v. State, 125 Ark. 260, 188 S. W. 805, the Court said: “Instructions by the court pointing out certain evidence and telling the jury that such evidence is sufficient to convict are instructions upon the weight of the evidence and are inhibited by our Constitution. Const., Art. 7, § 23.”
No Arkansas case has been called to our attention approving an instruction such as instruction No. 6 given in the case at bar. Some courts in other jurisdictions, however, have approved similar instructions given in rape cases. We might add that if the instruction is proper in a rape case, it would be proper in the case at bar, because in neither case does the prosecutrix have to be corroborated and in many instances the testimony of the prosecutrix would be the only evidence available. In State v. Richardson, 154 P. 2d 224, the court pointed out that in a rape case the defendant could be convicted on the uncorroborated testimony of the prosecutrix and this was all the court told the jury along that line. But the court points out that the instruction did not tell the jury that the prosecutrix’s testimony alone was sufficient to convict. Here the court did tell the jury by instruction No. 6 that the prosecutrix’s testimony alone was sufficient to sustain a conviction. A similar instruction was also given in People v. McMillan, 212 P. 38. The court did not discuss the point other than to emphasize that no corroboration of the prosecutrix was needed. The instruction was also approved in People v. Liggett, 123 P. 225; State v. Patchett, 79 P. 479; and State v. Orth, 165 P. 652. On the other hand, several courts have disapproved the instruction.
In State v. Schilnsky, 143 S. E. 307, the judgment of conviction was reversed because of the giving of the instruction. The court said that “while this may be an abstract statement of the law, it is incomplete as an instruction to the jury.” In Laycock v. People, 182 P. 880, the judgment was reversed because of the giving of the instruction.
It appears that the giving of an instruction telling the jury that the testimony of the prosecutrix alone is sufficient to convict grew out of the practice of giving a cautionary instruction where there was no evidence to prove the defendant’s guilt except the testimony of one witness, usually the alleged victim in a rape case, such as an instruction that “the charge of rape against a person is easy to make, difficult to prove, and more difficult to disprove” and cautioning the jury on that account to compare and weigh all of the testimony carefully and deliberately without bias.
This Court said in Shank v. State, 189 Ark. 243, 72 S. W. 2d 519: “The credibility of particular witnesses and the weight to be given their testimony should not be emphasized in separate instructions.” An instruction of that kind coming from the court places undue emphasis on such testimony and amounts to a charge to the jury with regard to a matter of fact in violation of Article 7, § 23 of the Constitution.
The weight of the evidence is a matter to be argued by counsel and the weakness or strength of a party’s case should not be called to the jury’s attention by an instruction from the court. We conclude, therefore, that the giving of instruction No. 6 on behalf of the State was an error for which the cause must be reversed and remanded. It is so ordered. | [
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Ed. F. McFaddin, Associate Justice.
These two cases stem from the criminal cases of the State of Arkansas v. Bonnie Connelly, which have been twice before the Court. Connelly v. State, 232 Ark. 826, 335 S. W. 2d 723; Connelly v. State, 234 Ark. 143, 350 S. W. 2d 298. In the first case we reversed the second degree murder conviction of Mrs. Connelly; and in the second case we affirmed Mrs. Connelly’s conviction for manslaughter. When Mrs. Connelly was originally charged with the murder of her husband she employed Messrs. Thomas and Hobbs to represent her; but she became dissatisfied when they insited on sending her to the State Hospital for mental examination, so she discharged them. The said attorneys filed action in the Garland Circuit Court and obtained a verdict and judgment on December 2, 1959 against Mrs. Connelly for $3,559.90 as a reasonable attorneys’ fee; and, by execution, obtained $1,325.50 credit on the judgment.
Then Messrs. Thomas and Hobbs filed this suit, No. 33241 in the Garland Chancery Court, (a) to recover additional fees claimed to be due; (b) to cancel as a fraudulent conveyance an assignment executed by Mrs. Connelly to her mother, Mrs. Alice Nichols, for $11,000.00 of the proceeds of a life insurance policy; and (c) to subject the proceeds of the life insurance funds to the satisfaction of the plaintiffs’ judgment. The New York Life Insurance Company was made a defendant as equitable garnishee in order to impound the proceeds of the said life insurance policy. The Insurance Company paid $19,971.30 as the proceeds of the policy into the Registry of the Court, was discharged with its costs (§ 27-816 Ark. Stats.), and had no further part in this litigation.
The defendants, Mrs. Connelly, her daughter, and her mother (altogether referred to as “Mrs. Connelly et al.”), resisted the complaint, and trial in the Chancery Court resulted in a decree from which both sides have appealed. Mrs. Connelly et al. were dissatisfied because (a) Thomas and Hobbs received any judgment, (b) the assignment to Alice Nichols was not recognized as valid, and (c) the Court held certain assets to await the outcome of this appeal; so they filed their appeal as Case No. 2638 in this Court. Messrs. Thomas and Hobbs were dissatisfied because the amount of the Chancery judgment which they received was not as large as they claimed; so they filed their appeal as Case No. 2642 in this Court. These two pending cases are consolidated because both are from the same decree of the Garland Chancery Court.
I. The Claim Of Messrs. Thomas And Hobbs. Messrs. Thomas and Hobbs claimed that in addition to representing Mrs. Connelly in the criminal proceedings, they had also, at her request and at the request of her daughter, obtained court orders declaring the said Bonnie J. N. Connelly of full age; had resisted guardianship proceedings against Bonnie J. N. Connelly in the Garland Chancery Court; and had also spent considerable time, energy, and effort as attorneys for Mrs. Connelly in briefing the question as to whether she could recover the proceeds of the insurance policy here involved. For all of these services, the attorneys claimed that they should receive a fee of at least $1,500.00, in addition to the Circuit Court judgment which they had already obtained from Mrs. Connelly.
After hearing all of the evidence, the Chancery Court awarded Messrs. Thomas and Hobbs a fee of $200.00 for their services, in addition to the Circuit Court judgment. From the evidence before us, we are unable to say that the Chancery Court was in error in fixing this amount. The Circuit Court judgment in favor of Messrs. Thomas and Hobbs and against Mrs. Connelly was rendered on December 2, 1959 for $3,559.90. The Chancery Court in the case at bar may well have concluded that Messrs. Thomas and Hobbs included in the Circuit Court case their entire account for all services rendered to Mrs. Connelly to the date of the said Circuit Court judgment; and most of the services testified to by Messrs. Thomas and Hobbs, as rendered to Mrs. Connelly in addition to the representation in the criminal case, were services that were rendered before the date of the said judgment. Having the minor declared of age was on July 8, 1959. Resisting the effort of other relatives to have the minor placed under guardianship was on July 21, 1959. In fact, we find very few services to have been rendered by Messrs. Thomas and Hobbs to Mrs. Connelly or Bonnie J. N. Connelly after the date of the Circuit Court judgment of December 2, 1959. Therefore, as to the $200.00 awarded Messrs. Thomas and Hobbs, we are unable to say that the Chancery Court was in error in any respect, either on the appeal of Mrs. Connelly, et al., or on the appeal of Messrs. Thomas and Hobbs.
II. The Assignment Of The Insurance Proceeds. Mrs. Connelly et al. complain because the Chancery Court cancelled as fraudulent an assignment which Mrs. Connelly had made to her mother, Mrs. Alice Nichols. Messrs. Thomas and TIobbs filed their Circuit Court action against Mrs. Connelly on August 17, 1959. Having employed other attorneys, Mrs. Connelly, on September 12, 1959, executed assignments to them totaling in excess of $9,000.00 against the proceeds of the insurance policy. Then on November 2, 1959, Mrs. Connelly executed to her mother, Mrs. Alice Nichols, as Trustee, an assignment for $11,000.00 of the proceeds of the insurance policy. It is this $11,000.00 assignment that the Chancery Court set aside. It was clearly a fraudulent conveyance, and the Chancery Court was correct in cancelling it.
Mrs. Connelly testified that she had no money at the time; that her brothers and sisters loaned her money; and that the assignment to Mrs. Nichols, Trustee, was to repay such advances. Yet, the fact remains that no brother or sister came forward to testify as having made any advances to Mrs. Connelly. Only the mother, Mrs. Alice Nichols, testified, and her testimony was indefinite and uncertain. We thus have a debtor (Mrs. Connelly) in financially desperate circumstances equal to insolvency, making a conveyance (the assignment) to her near relative of all of her tangible assets and with no proved consideration therefor. In Kaufman v. Citizens’ Bank, 189 Ark. 113, 70 S. W. 2d 572, we said:
‘ ‘ The rule of law, in reference to conveyances under the facts and circumstances here presented is well settled in this State, and is to the following effect: ‘Conveyances made to members of one’s household and to near relatives of an embarrassed debtor are looked upon with suspicion and scrutinized with care; when voluntary they are presumed fraudulent, and when the embarrassment of the debtor proceeds to financial wreck such conveyances are conclusively presumed to be fraudulent as to existing creditors.’ Wilkes v. Vaughan, 73 Ark. 174, 83 S. W. 913; Papan v. Nahay, 106 Ark. 230, 152 S. W. 107; Brady v. Irby, 101 Ark. 573, 142 S. W. 1124; Fluke v. Sharon, 118 Ark. 229, 176 S. W. 684.”
III. Holding Assets For Future Distribution. Mrs. Connelly et at. complain that the Chancery Conrt had no authority to retain $1,500.00 of the insurance money in the Registry of the Court to await the outcome of this litigation. From the $19,971.30 paid into the Garland Chancery Court by the New York Life Insurance Company, the decree here challenged made the following disbursements:
(a) To Mr. Holt for attorney’s fees $ 4,459.14
(b) To Mr. Lookadoo for attorney’s fees . 5,309.14
(c) To Mr. House for filing the inter-pleader for the Insurance Company 300.00
(d) To Mr. Francis to satisfy a judgment he held against Mrs. Connelly 1,187.38
(e) To Messrs. Thomas and Hobbs to satisfy their Circuit Court judgment against Mrs. Connelly 2,672.41
(f) To Messrs. Thomas and Hobbs for the Probate and Chancery fee allowed in this case 200.00
Total Paid Out $14,128.07
(g) Retained in Registry of Court 1,500.00
(h) Paid to Mrs. Bonnie Connelly at the time of the decree 4,343.23
Total to Equal Amount Deposited $19,971.30
The disbursements, (a) to Mr. Holt, and (b) to Mr. Lookadoo, Avere for services rendered to Mrs. Connelly in her criminal cases, and she raises no question about these disbursements. Neither is any question raised on this appeal as to the correctness' of the disbursements (c), (d), and (e) above. We have already considered and settled the question as to the correctness of the disbursement (f) which was to Messrs. Thomas and Hobbs for their services in the Probate and Chancery Court. The appellants, Mrs. Bonnie Connelly et al., complain on this appeal that the Chancery Court should not have retained in its Registry the $1,500.00 in item (g), but should have delivered said amount to Mrs. Connelly, along with the $4,343.23 in item (h).
We fail to see wherein Mrs. Bonnie Connelly et al. have any merit in such contention. The money in the Registry of the Court had been interpleaded by the New York Life Insurance Company and the burden was on each claimant to establish such claimant’s right to any part of the interpleaded money. Each person seeking any part of the money had the position of a plaintiff toward such money. In Consolidated Underwriters v. Bradshaw, 136 F. Supp. 395, Judge John E. Miller said:
“. . . an interpleader action normally proceeds in two phases. The first phase is the granting of the interpleader and the dishcarging of the plaintiff from further liability upon payment of the particular fund into the registry of the court. The second phase of an inter-pleader action is the determination of the claimants’ rights to the fund. In regard to the second phase, each claimant occupies the position of a plaintiff and must establish his claim by a preponderance of the evidence. See Phoenix Mut. Life Ins. Co. of Hartford, Conn. v. Reich, D. C. Pa., 75 F. Supp. 886.”
Mrs. Bonnie Connelly, for herself, did not establish a claim to any of the money. Rather, she claimed that she had assigned the money to Mrs. Alice Nichols. So certainly Mrs. Connelly is in no position to complain. Mrs. Alice Nichols’ assignment was held to be fraudulent and void; so she would not be entitled to the $1,500.00 unless her assignment is held to be valid; and it was not valid. What the Chancery Court did was to leave the $1,500.00 in the Registry of the Court to await the result of this appeal. Since no party sought to supersede such decree, no .one could receive the fund until the further orders of the Court; and we find no abuse of discretion by the Trial Court.
The decree of the Chancery Court is affirmed in all respects, and the costs of this appeal are to be paid from the impounded fund.
Mr. Joseph E. Connelly, the husband of Mrs. Connelly, had an insurance policy with New York Life Insurance Company, and his wife was named therein as the first beneficiary. No question is raised on this appeal as to Mrs. Connelly’s right to receive the proceeds of the insurance policy on her husband’s life; but in this connection attention is called to the cases of Smith v. Dean, 226 Ark. 438, 290 S.W. 2d 439; and Horn v. Cole, 203 Ark. 361, 156 S.W. 2d 787.
Section 27-2127.10 Ark. Stats., which is § 18 of Act No. 555 of 1953, is authority for such consolidation. | [
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Neill Bohlinger, Associate Justice.
This cause was initiated by appellee, Inez Newcomb, in the Saline Chancery Court against appellant, Evelyn Glenn Hyder, to require the appellant to perform a verbal agreement for the sale of certain lands in Saline County. The case was presented to the Chancellor, Judge F. I). Goza, on August 25, 1960.
At the close of the testimony, the chancellor made a statement and finding of fact. The finding was dictated at that time to the court reporter and was a finding in favor of the appellee and ordered the appellant to execute a deed to the land in question upon the payment to her of the sum of money that had been agreed upon.
Judge Goza died on September 7, 1960 without having signed a decree based upon his finding and pronouncement and subsequently Judge Ted Donham was appointed to succeed him. Thereafter, on November 29, 1960, there was presented to Chancellor Donham the formal decree based on the finding of Judge Goza which Judge Donham signed and it was duly entered of record. Neither the appellant nor her attorneys were present at that time and no notice of the entry of this decree was given them until January 4, 1961, more than thirty days after it had been entered of record. On January 6, 1961 the appellant filed her motion to vacate the decree and set the cause for a hearing on the merits, which motion was denied by the chancery judge and the appellant prosecutes this appeal from the adverse ruling on that motion and for a reversal thereof relies upon these points:
That Chancellor Donham was without legal authority to render a decree and enter it since the case was heard by another chancellor and that the decree entered is void because no notice was given appellant of the entry of that decree and that there was no evidence upon which the newly appointed chancellor could base a decree and that the decree, as entered, includes lands that the defendant does not and did not own on the date of the alleged agreement to sell.
When the case was presented before Judge Goza it was, so far as the record before us indicates, completely developed and the finding of Judge Goza goes to all points in controversy and was, in effect, a judgment or decree actually rendered. The fact that the signed decree did not find its way immediately into written court record does not prevent it from being what it purports to be, ‘ ‘ a statement and finding of fact. ’ ’ The issues as between the parties had been resolved in that finding. The decree was subsequently presented to Judge Donham, the successor of Judge Goza, who signed it and caused it to be entered of record. This Judge Donham had the authority to do. When the matter was presented to Judge Don-ham, two courses were open to him. He could have reopened the case, reheard it and made a finding just as Judge Goza might have done had he lived and the matter been subsequently presented to him. Judge Donham elected to accept the finding of Judge Goza and signed the decree.
A similar situation was before this court in the case of Winn v. Dodge, 173 Ark. 73, 291 S. W. 992, which states the contention of appellee:
‘ ‘ Chancellor Dodge might, as petitioners insist have reopened the entire cause and have heard it de novo, just as Chancellor Martineau might have done had he remained in that office, but Chancellor Dodge could not be required to reopen and rehear the cause, inasmuch as a final decree had been rendered by his predecessor. The fact that the decree had not been spread upon the records of the chancery court did not make it necessary for Chancellor Dodge to again try the cause. Petitioners are not entitled to a second trial of the cause on its merits. ’ ’
However, the law in this case is limited in its application here. In the Winn-Dodge case the decree had been prepared and was submitted to opposing counsel who' declined to approve it and the attorneys for the defendant in that case were fully apprised of the preparation of the decree and the filing of it with the clerk and were thus in a position to take any necessary action.
Not so with the case at bar for it is apparent that the appellant had no notice of the entry of the decree. Though the chancellor had the power to enter the decree based upon the findings of fact of his predecessor, we feel that the appellant should have been apprised of the entry of the decree.
In American Mortgage Company v. Williams, 103 Ark. 484, 145 S. W. 234, we have a case in which the decree was rendered during a term of the court but was not entered until after the term. The plaintiff, Williams, contended that because the decree [which foreclosed the mortgage and cut off Williams’ equity of redemption] was not entered during term time it was of no effect. This court in that case, in denying Williams ’ contention, placed importance on the fact that Williams knew of the rendering of the decree and was notified of the entry of the decree and afforded the opportunity of approving it as to form.
The appellant in the instant case had thirty days to-appeal from the entry of a decree, the entry of which was unknown to her and did not come to her attention until after the time for her appeal had expired. Since the appellant was not notified of the entry of the decree and thereby lost her right of appeal through no fault of her own, we will treat her appeal from the denial of a motion to vacate the decree as a petition for Writ of Certiorari.
In Merchants & Planters Bank v. Fitzgerald, 61 Ark. 605, 33 S. W. 1064, Judge Battle explained the use of Certiorari in these words:
‘‘According to the well settled practice in this state the writ of certiorari can be used by the circuit court in the exercise of its appellate power and superintending control over inferior courts in the following classes of cases: (1) Where the tribunal to which it is issued has exceeded its jurisdiction; (2) where the party applying for it had the right of appeal, but lost it through n& fault of his own; and (3) in cases where it has superintending control over a tribunal which has proceeded illegally, and no other mode has been provided for directly reviewing its proceedings.” [Emphasis ours, citations omitted.]
See also: Hall v. Bledsoe, 126 Ark. 125, 189 S. W. 1041; McCain v. Collins, 204 Ark. 521, 164 S. W. 2d 448.
In Burgett v. Apperson, 52 Ark. 213, 12 S. W. 559, it is stated:
“The writ is granted in two classes of cases, first: Where it is shown that the inferior tribunal has exceeded its jurisdiction; and, second, where it appears that it has proceeded illegally and no appeal will lie, or that the right has been unavoidably lost.” [Emphasis ours, citations omitted.]
Treating this appeal as a petition for certiorari, it falls well within the cases cited supra and the petition for certiorari is hereby granted and the appellant is given sixty days to prepare and lodge with this court the entire record in this case when it will be submitted with briefs on its merits.
The appellant will recover her costs of this appeal. | [
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George Rose Smith, J.
At the April, 1960 term of the Pulaski chancery court the appellants obtained a default decree foreclosing a materialman’s lien for $932.54, but the decree was incomplete in that it did not appoint a commissioner to conduct the sale, nor did it fix the terms of the sale. In May of 1961 the appellants filed a petition asking the chancellor to correct the earlier decree by the entry of a nunc pro tunc order supplying the omissions. This attempted appeal is from an order sustaining the appellees’ demurrer to the appellants’ petition.
The appeal must be dismissed for the reason that an order which merely sustains a demurrer to the complaint or petition, leaving the cause pending in the trial court, is not a final appealable judgment. Walters v. Burnett, 228 Ark. 45, 305 S. W. 2d 549.
Appeal dismissed. | [
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Carleton Harris, Chief Justice.
This litigation results from an automobile collision between a vehicle driven by Leo Eason, and a vehicle owned by his son, Thomas Franklin Eason, and driven by his daughter-in-law, Nancy Eason, the collision occurring south of Malvern. Mrs. Paul Irvin was riding in the automobile with Nancy Eason. Mrs. Irvin subsequently instituted suit against both Nancy Eason and Leo Eason, seeking damages for injuries allegedly sustained. Mrs. Eason answered, denying the allegations of the complaint, and filed her “cross-claim” against Leo Eason alleging that Leo Eason was negligent and that “if it should be determined that she was negligent in any degree, then, in that event, that her negligence, if any, be prorated along with the negligence of Leo Eason, and that she be awarded judgment against Leo Eason based on the degree of Ms negligence.” Leo Eason likewise answered denying any negligence, and also filed Ms “cross-claim” against Nancy Eason, asserting “that if it should be determined that he was negligent in any degree, then and in that event that his negligence, if any, be prorated along with the negligence of Mrs. Nancy Eason and that he be awarded judgment against Mrs. Nancy Eason based on the degree of her negligence, * * On trial, the jury found Mr. Eason fifty per cent negligent, and Mrs. Eason fifty per cent negligent, and rendered judgment against Leo Eason and Nancy Eason, jointly and severally, in the amount of $5,000. The judgment further provided “that the party paying same shall have and hereby is awarded a judgment against the other defendant in the amount of one-half of such sums as shall be paid in order to satisfy the aforesaid judgment in full; for all of which execution may issue.” Subsequently, Mrs. Irvin instituted suit against the United States Fidelity & Guaranty Company, appellant herein, and alleged, “That execution issued against Leo Eason and Mrs. Nancy Eason by the Circuit Court of Hot-Spring County, Arkansas, and return by the Sheriff of Hot Spring County indicates that Leo Eason and Mrs. Nancy Eason have no property upon which to levy.” It was further alleged that the insurance company referred to had issued a policy of insurance covering the automobile driven by Leo Eason, and judgment was sought against United States Fidelity & Guaranty Company for the $5,000 plus interest, penalty, and attorney’s fee. As a result of the filing of the suit, the company paid Mrs. Irvin $5,000 in full satisfaction of the judgment, and thereafter, sought contribution from Employers’ Mutual Casualty Company, appellee herein, alleging that this latter company had liability coverage on the automobile driven and operated by Mrs. Nancy Eason. Employers’ Mutual answered, admitting that the company had issued a policy, but asserting that such policy excluded injuries sustained by an employee of Thomas Franklin Eason or his wife, Nancy Eason; that at the time the injury was sustained, Mrs. Irvin was a domestic employee of Mr. and Mrs. Thomas Franklin Eason, and was engaged within the scope of her employment when the collision occurred. On trial, the court found that Mrs. Irvin was a domestic employee of the insured; that the policy excluded injuries to such an employee, arising out of and in the course of employment, and entered its judgment denying contribution. From such judgment, comes this appeal.
Appellee had issued its policy to T. Franklin Eason, d/b/a Eason Mobil Station. The policy, inter alia, provided under Coverage “A”, bodily injury liability coverage on behalf of the insured, and under division one of Coverage “C”, provided “To or for each person who sustains bodily injury, sickness or disease, caused by accident, while in or on, or while entering into or alighting from an automobile which is being used by the named insured or with his permission, if insurance for such use is afforded under coverage “A”. Subsection (d) under “Exclusions” provides that the policy does not apply “under coverage 'A’ and division I of coverage ‘C’ to bodily injury to, or sickness, disease, or death of any employee of the insured arising out of and in the course of his employment by the insured, * * *.” Subsequently, an endorsement was placed on the policy to provide coverage for the use of other automobiles owned by the insured, and this endorsement was issued to T. Franklin Eason as an individual. Under this endorsement, the term “insured” was defined as the holder of the policy and his spouse (if a resident of the same household). Liability coverage is further provided for a chauffeur or domestic servant of the insured.
Mrs. Irvin was employed by Mr. and Mrs. Franklin Eason as a domestic servant, helping with the housework and looking after three small children. Appellant vigorously argues that the proof does not reflect that Mrs. Irvin was engaged in domestic duties or acting within the scope of her employment at the time the injury was sustained. It appears from the testimony that at the time of the collision, Mrs. Eason was driving to town, with Mrs. Irvin and her daughter, and Mrs. Eason’s three children in the car. The purpose of the trip actually seems to have been two-fold, i.e., Mrs. Irvin was to help Mrs. Eason with the laundry, or look after the children while the latter was engaged at the launder-mat, following which Mrs. Eason and her daughter planned to attend a show. Mrs. Eason’s testimony was to the effect that Mrs. Irvin was to look after the children while she (Mrs. Eason) did the laundry, and that Mrs. Irvin and her daughter were then going to the show. She testified that the matter of Mrs. Irvin taking care of the children had not been discussed; that at times when she took the children to town, Mrs. Irvin would look after them, and at other times, her mother-in-law would look after them. From the testimony:
“Q. But your mother-in-law wasn’t there on this occasion ?
A. Yes, sir, and it was taken for granted that she would take care of them.
Q. It was taken for granted that while you did the laundry Mrs. Irvin would take care of the children?
A. Yes, it hadn’t been discussed, but I’m sure it would have been.
Q. That was the purpose that you were going to come to town?
A. Well, there were two purposes, yes, sir.
Q. It was a dual purpose, you wanted to have your laundry done and she was going to take care of the children and then Mrs. Irvin and her daughter were going to the show, isn’t that right?
A. Yes.”
Mrs. Irvin was much more definite in her testimony. From the record:
“Q. Mrs. Irvin, you had been employed by Mrs. Eason since August of ’59, is that correct?
A. That’s right, 17th of August.
Q. 17th of August, 1959?
A. Yes.
Q. And on this day that you all were coming into town, Mrs. Irvin, you were coming in to do washing, is that right?
A. We were going to wash some diapers for the babies.
Q. And you and your daughter were also coming into town?
A. That’s right. * * *
Q. But, now, on this day this happened were you planning on going to the show, you and your daughter?
A. After the laundry was done, yes.
Q. But you were planning on going to the show to celebrate her birthday, is that right?
A. That’s right, because we knew that we wouldn’t get to come into town on Tuesday night.
Q. So you were going to do that on Saturday when you came in?
A. After we’d done the laundry.”
Janet Irvin, daughter of Mrs. Irvin, testified likewise that she and her mother were only going to the show after the laundering was completed. We are of the opinion that whether Mrs. Irvin was acting within the scope of her employment at the time of the collision, was a question of fact, and we are unable to say that the trial court’s determination was erroneous, or not supported by substantial evidence.
The endorsement can be of no aid to appellant, for the portions mentioned in appellant’s argument, provide no bodily injury benefits to the insured, chauffeur or domestic servant; rather, only liability coverage is provided when they are operating an automobile covered in the endorsement, i.e., protection is afforded for injury caused to a third party. It then follows, as found by the Circuit Court:
“Under the exclusion of the subject policy the following pertinent language appears: ‘This policy does not apply . . . (subsection “d”) under coverage A and division 1 of coverage C, to bodily injury to or sickness, disease or death of any employee of the insured arising out of and in the course of his employment by the insured; . . .’
It might well be that this clause is inserted by the insurer with the intention that it exclude only the employees of Franklin Eason doing business as a service station operator and such employees being engaged in the furtherance of the service station business; however, the Court can find nothing in the policy limiting this exclusion to garage employees, and in the absence of this, the Court must find that the policy of insurance affords no protection to Nancy Eason against liability to an employee for injuries sustained.”
Affirmed.
This question was mentioned by the Circuit Court in its findings as follows: “From the record in the case which was submitted to a jury it appears that the Court in effect found Mrs. Irvin an employee of the defendant, Nancy Eason. This is indicated from the Court’s refusal to submit the question of Mrs. Irvin’s being a guest to the jury. After carefully reading the record the Court cannot see that an error was made in this decision.” | [
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Bunn, C. J.
Mary J. Pinchback, wife of Prank White Pinchback, died in Jefferson county in November, 1878, having made a will, of which the following is a copy of all that affects this case, to-wit:
“Item 1. I hereby bequeath to my husband, Prank White Pinchback, all my real estate, also all my personal property, including all notes or other evidences of indebtedness, which I now hold or may accrue to the estate ; this provision in my will being that he, my husband, carry out my wishes as follows: That Prank White Pinchback, my husband, is to educate and support my niece, Mary Lula Crowell, until she arrives at the age of twenty-one years, he paying out of the proceeds of my property, personal or real, the sum of two hundred and fifty dollars per annum in United States currency, or any money which is a legal tender.”
The will was duly probated in the Jefferson probate court, and Prank White Pinchback was appointed administrator with the will annexed ; and he proceeded to administer, and filed two annual settlements, which were duly approved, leaving a balance in his hands of $360, but he never made a final settlement.
All the real estate left by Mary J. Pinchback was acquired by her from the estate of B. K. Crowell, deceased, her former husband ; and in July, 1879, the heirs of said B. K. Crowell instituted their suit in the Jefferson chancery court against Prank White Pinchback and others interested, to set aside the conveyances by which Mary J. Pinchback held the lands of her said former husband for fraud in their procurement, and to divest her estate of the same. This suit was successful, and decree rendered accordingly. In the adjustment of the matters between Mary J.- Pinchback and the estate of B. K. Crowell, however, the chancellor decreed an al lowance to Prank White Pinchback, who answered for his wife’s estate, both as administrator and legatee, .the sum of $1,864.01 principal and $24.53 interest, which was subsequently paid to him, and which seems never to have been accounted for by him as administrator.
Prank W. Pinchback never paid anything to the annuitant, Mary Pula Crowell, who subsequently married, and became Mary Pula Crowell Hunkypillar, and is the plaintiff in this proceeding. In September, 1886, Prank White Pinchback died intestate, and J. W. Cox was appointed his administrator by the Jefferson probate court, and the appellant made out, duly verified and presented her account of amounts due from Prank White Pinchback,- as legatee of his wife and her aunt aforesaid, on said annuity, for allowance and probation against his estate. The administrator disallowed her claim, and in due course the same was heard in the probate court, on the response of the administrator and the evidence, and the claim was again disallowed, and the claimant appealed to the Jefferson circuit court, where, on the same state of facts as in the probate court, the circuit court also disallowed her claim, and the matter, on bill of exceptions and otherwise in form, comes to this court on appeal.
The case presented to us is on exception to the findings and judgment of the circuit court, to-wit: Because the circuit court found that Prank White Pinch-back never in fact accepted the devise of his wife, and therefore was not bound to appellant in any sense. Second. Because said court refused to declare the law of the case to be as asked by appellant, to-wit: (1.) “Where a will gives all the testator’s real and personal estate to a person, and declares the donee is to pay all the testator’s debts, and a certain annuity, the acceptance of the gift creates a personal liability in favor of the annuitant, upon which an action at law can be maintained, without any special promise. (2.) If Prank Pinchback accepted the legacy or devise under the will of Mary J. Pinchback, and took possession, he or his estate must pay the annuity to the plaintiff, Hunkypillar, even though the amount he received is insufcent for that purpose. (3.) If Prank Pinchback, as devisee or legatee, received anything under the will of Mary J. Pinchback, her administrator cannot defeat the action of the plaintiff by showing that the estate of Mary J. Pinchback has never been finally closed and the administrator discharged.”
The evidence adduced to show an acceptance, on the part of Prank White Pinchback, of the devise was to the effect that he had received the $1,864.01 principal and $24.53 interest, belonging to the estate of the testatrix, as an individual, and had never accounted for the same as her administrator; that he had answered the complaint of the heirs of B. K. Crowell in his character as legatee, and had so received the proceeds of that suit coming to his deceased wife, the testatrix; that he had paid one or two payments on another annuity provided for; that in such ways he had held himself out as such legatee. The controverting evidence was that of his attorney, who simply testified that Pinchback had never accepted the legacy, by his advice.
A majority of this court are of the opinion that there was an acceptance of the devise, on the part of Prank White Pinchback, and in so far, and for that reason, among others, the judgment of the circuit court is reversed.
On the declarations of law asked by plaintiff and refused by the court below, the opinion of this court is as follows, to-wit:
The general rule by which the rights and liabilities of a devisee who has accepted a devise of lands with conditions attached is thus stated in Brown v. Knapp, 79 N. Y. 143: “It is well settled that when a legacy is given, and is directed to be paid by a person to whom real estate is devised, such real estate is charged with the payment of the legacy. And the rule is the same when the legacy is directed to be paid by the executor who is the devisee of real estate. If the devisee, in such ■case, accepts the devise, he becomes personally bound to pay the legacy, and he becomes thus bound even if the land devised to him proves to be less in value than the ■amount of the legacy.” To the same effect is Williams v. Nichol, 47 Ark. 263; Millington v. Hill, ib. 301; Porter v. Jackson, 95 Ind. 210; Birdsall v. Hewlett, 1 Paige, Ch. 32; Glen v. Fisher, 6 Johns. Ch. 33; Van Orden v. Van Orden, 10 Johns. 30. The origin and application of the general rule is exhaustively discussed in •an article in the 44 Alb. B. J. 186, Sept. 5, 1891, by Judge W. J. Gaynor, wherein all the leading authorities to that date are collected.
This rule is not confined in its application to cases growing out of the disposition of property by will, but is applicable alike to all cases where property and property rights are transmitted from one person to another, with conditions or incumbrances that affect third persons or the parties to the transaction. All, in such cases, take cum onere. All accept the benefits with the obligation imposed by the conditions or charges of which, they, ■at the time, have or are reasonably bound to take notice.
But in the case of wills this rule, of such general application, is necessarily qualified in some respects by ■another, of less general application it is true, but for ■that very reason, among others, the less yielding in its nature. This second rule is stated thus in Worth v. Worth, 95 N. C. 239: “In the construction of testamentary dispositions of property, the primary'purpose ■should be to ascertain and give effect, as far as allowable by law, to the testator’s meaning, and this is to be found within the written instrument itself, in the light of surrounding circumstances. No outside evidence of that intention furnished by his contemporary or other declaration is receivable.”
There are innumerable instances in which the testators, in making devises with charges thereon, have in terms given direction as to what planner, and out of what, funds, the general devisee is to pay off the special legacies, made a charge upon the property devised. In all these cases the personal liability of the devisee is more or less-affected, even to the extent, in many cases, of being entirely wanting. And this is so simply from the fact that the obvious meaning of the testator, as gathered from the language of the will in each case, is to the effect that he does not wish the devisee to pay the special legacy at all events, but only as far as the property devised to him will enable him to do. This principle is-illustrated in numberless cases. Thus in Hayes v. Sykes, 21 N. E. 1080, the following provision of a will was-under consideration in the supreme court of Indiana, to-wit: “I will that, in case there is not money enough in the hands of the executor of my father’s will to pay all my just debts, I then devise that the property herein devised to my wife, Anna, and to my mother, Mary Ann Sykes, shall be held liable, in equal proportion, to pay the same, and to this end I make a charge upon my estate, so devised, to perform the same.”
Here is a charge upon two legacies to pay debts, and under the general rule first referred to, and as insisted upon by the claimant in that case, the legatees would be personally bound to pay these debts, whether the property devised to them is sufficient or not. But the court, from a consideration of the language of the will,- held the real and true meaning of the testator to be otherwise, and therefore it said: .“It is not our opinion that the devisees became personally liable because of their acceptance of the devise made to them by the will. They took title to the real estate subject to the incumbrances and charge that were placed upon it.” It was-then because the will in terms otherwise directed that the devisees in that case were not personally liable to pay the debts, as they would have been under the more general rule. This idea that the general rule is subject to-the intention of the testator is expressed in the cases referred to in note on page 3, Pom. Eq. Jur., sec. 1246; in Eskridge v. Farrar, 34 La. An. 721; in Nudd v. Powers, 136 Mass. 273; in Commons v. Commons, 115 Ind. 162. The principle is illustrated in Hancock v. Fleming, 103 Ind. 533, in which it is said that a purchaser of land incumbered by mortgage is personally bound, or not, for the mortgage debt, according to the meaning of the language of the instrument by which he holds.
Now the language of the will in this case, which provides for the annuity sued for, is: “He (F. W. Pinchback) paying out of the proceeds of my property, personal and real, the sum of two hundred and fifty dollars per annum.” If Pinchback is to pay the annuity out of the proceeds of the property devised to him, it is-plain that his devisor did not intend that he should pay it out of any other fund. Evidently, she did not intend to bind him to pay out of his own funds any deficiency created by a lack of funds devised to him. by her. She plainly never intended to compel him to become a co-benefactor, with herself, of her neice. Nor did she make her devise to him conditional upon his payment of the annuity at all events, or otherwise than out of the proceeds of the property devised. We think the facts in this case, whatever may be the rule in other cases, do not show F. W. Pinchback to be personally liable for the payment of the annuity sued for, but that he was, and his estate is, liable to the extent of funds in his hands at his death, or which have come to his estate since, from the estate of his deceased wife, subject, however, to the claims of creditors duly and in due time probated, and which are still valid and subsisting claims ; and also subject to the claims of other annuitants and legatees, other than the said Pinchback, in so far as they. have preference of, or stand on equal footing with, that of the appellant.
Wherein the declarations of law asked by appellant and refused by the court below are inconsistent with this opinion, the judgment of the court below in refusing same is affirmed, and where otherwise the refusal of the court is not sustained. The findings and judgment of the court below are reversed as aforesaid, and the cause is remanded for further proceedings not inconsistent herewith.
Wood, J., not participating. | [
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Bunn, C. J.
The appellee, Thomas M. Phillips, as road-overseer of one of the road districts of that county, instituted this proceeding in the Jefferson circuit court in equity, at its 'May term, 1892, praying for an order restraining the appellant from obstructing a portion of the public road alleged by him to be under his supervision. After hearing the cause, the chancellor granted the appellee’s prayer, and the appellant appeals to this court.
The portion of road in controversy, and affected by this proceeding, is as follows, as set out in the abstracts, to-wit :
“A public road from Astor Point, on the Arkansas river, to the intersection of the Pine Bluff and Harris Perry road, near Altheimer, Arkansas, through the northeast quarter of section 2, township 5 south, range 8 west, from the northwest corner to the southeast corner of section 2.” This means that the road in controversy runs diagonally through said quarter section from its northwest corner to a point on its south boundary line, nearly equidistant from the southeast and the southwest corners. The residence of appellant is situated on this road, and near to the point on the southern boundary line of the quarter section where the road passes out, going south, into the Phillips plantation.
It appears from the testimony that the place—the Jones place—was settled by Dr. Jones, husband of appellant, say in 1860, the land being in the name of the appellant. It was then mostly, if not altogether, in the woods, a trail at the time running about where the piece of road in controversy now is, along which'people were in the habit of passing from the back country to the nearest landings on the Arkansas river. Dr. Jones built his residence and cleared up, inclosed and put in cultivation the quarter section described, and, in the course of time, other adjoining lands, perhaps ; making quite an extensive plantation, as appears from the plat exhibited with appellant’s answer. At first he made what is known as a “turn-row” where the trail was, and where the road in controversy is now located ; putting up a gate where it entered the quarter section at its northwest corner, and another at the point on its southern boundary where the road or turn-row passed out of the field, going south, and into the l.ands appearing as the “Phillips lands.” It appears that the gates were used for the purpose of permitting people to pass through the field along the road, and doubtless for purposes personal to the owner. The testimony does not show any express intention or wish of Dr. Jones, or of his wife, the appellant, concerning this road at this time and for some years after-wards. But, while they permitted the public to thus use this piece of road through their field, there is no evidence that they surrendered any of their rights or dominion over the same in any way whatever, but continued at all times to.exercise just such control over the same as any farmer would over a private road through his plantation, which he is willing that his neighbors, and such of the public as choose to do so, should make use of for their convenience. There is nothing in the evidence to show that the owners treated it as any other kind'of road.
It appears that, at the April term, 1881, of the Jefferson county court, a petition was presented for the opening of a county road in this locality, extending from the Turner place to Astor landing; and the appellee, Thomas M. Phillips, Capt. N. T. Roberts and a Mr. Bogy, were appointed by that court, as viewers, to lay out and establish the road, as the law requires in such cases. Immediately, the appellee and Capt. Roberts entered upon the discharge of their duties as such viewers, and visited Dr. Jones to confer with him concerning the location of the proposed road, and had a talk with him about establishing the road through his field, to which he strenuously objected, claiming that it ought to be established on the section and township lines, telling them that he would rather they would not locate the road through his field, and promising, apparently as an inducement for them not to so locate it, that it should never be closed. But the viewers refused to act upon his promise, and reported to the county court recommending the establishment of the road through the field where the road in controversy ran. Remonstrance having been made, the report was never acted upon, and the project fell through. Dr. Jones soon afterwards died.
If it is claimed that this road had been previously dedicated to the public use as a highway by Dr. Jones, or if it is claimed that the public had already acquired the right by prescription, it is remarkable that the public road officials of the county—the viewers, one of whom was the appellee—should at such a time be seeking to further strengthen the right and title of the public to this piece of road by endeavoring to impress upon it the character of a statutory public highway. Had the dedication already been made by the owner and accepted by the public, or had the general, continuous and uninterrupted adverse possession of the public for the statutory period already ripened into an easement, it would seem that this appointing of viewers, and their viewing, the route, and performing other duties in that direction all constituted a most idle ceremony and a work of supererogation. If the right had been already acquired by the public, the securing of it in a different mode could not add anything to it. Had the effort to establish the statutory right been successful, doubtless the claim that it had been acquired previously in any other of the modes known to the law would never have been heard of any more. But, that effort having proved a failure, it is thought to make the claim serve a useful purpose in stead. To us, the effort to secure the statutory right, and that, too, by the appellee in this case, was something more than a failure ; it was an admission that the right had not theretofore existed in any form.
After the death of Dr. Jones, in 1881, the appellant assumed control of the plantation, and for three or four years kept the gates closed and, the abstract says, “locked,” giving a key to such of her neighbors as desired to pass through on the road, and giving permission every year to the appellee to haul his cotton crop over the road, as appellant states (the appellee denying that he obtained her permission to pass through, but averring that he did so at his pleasure.) In 1884 or 1885, appellant, finding the gates little protection against indiscriminate travel through her field over the road in question, took them down, and closed up the gaps thus formed by fences in their places. This also proving no protection against the public, a little while before the institution of this proceeding, she substituted barbed wire fences ; and the appellee, and perhaps others, being thus driven to the last resort, brought the suit for the purpose named.
It seems that the county court appointed various overseers over this road district from 1884 until 1892—• first Ackland, then the appellee, and then Holland—without accurately designating the location of the road at' any .time. The appointments of overseers seem to have been mere moves on the chess board by one party and another, so far as individual purposes were to be considered. In fact, from the death of Dr. Jones until the in-,, stitution of this suit, there seems to have been a perpetual strife and struggle over the possession of this road between the appellant—the owner of the soil—and those who essayed to act in behalf of the public. In the meantime, nothwithstanding the several appointments of overseers over this road district, the only work ever done by any of them, or by any one, even apparently on behalf of the public, was the placing of a few fence rails over a sort of ditch that crosses it, and that without the knowledge of the appellant.
It is impossible for us to discover any intention on the part of the appellant to make a dedication by any acts ■of hers shown in the evidence. Moreover, it would be most contradictory for us to say that a right by prescription could arise out of such a state of neighborhood warfare as is disclosed in this record.
In his work on Roads and Streets, Mr. Elliott says : “ If the owner throws open a way to the public, and so conducts himself as to induce a well-founded and reasonable belief that he has a correct knowledge of all the facts, and that, having this knowledge, he intends to dedicate the way to the public use, he will be held to have made a dedication, etc.”
We cannot say, from the evidence in this case, that an implied dedication was made, under the rule stated above. Their acts and conduct do not show, as appears to us, any intention on the part of Dr. Jones, or of the appellant, before or since his death, to make the dedication to the public. Their acts and conduct throughout ■cannot be construed, in our opinion, into anything more than to give a mere license to their neighbors, and such of the public as choose to avail themselves of it. An intent ■essential to a valid dedication must be something more. It must be to vest at least an easement in the public.
The main contention of appellee is that the public has acquired the right by prescription—by continuous, uninterrupted and adverse use for more than the statutory period. At least, such must be his contention, if he would claim for the public by prescription, for such is substantially the language of this court in the case of Howard v. State, 47 Ark. 431, and in all other cases on the subject.
The owners of this property have never ceased to-keep gates or fences, where it enters this field on either side. They have, therefore, never ceased to exercise dominion absolute or qualified over this passageway. The public, therefore, cannot be said to have held at any time adversely to the owner. State v. Green, 41 Iowa, 693; Jones v. Davis, 35 Wis. 376; Chestnut Hill Turnpike Co. v. Piper, 77 Penn. St. 432; Shellhouse v. State, 110 Ind. 509; Cyr v. Madore, 73 Me. 53; State v. Mitchell, 58 Iowa, 567.
It seems that any act on the part of the owner, re-. serving to himself a right or use, which is or may be inconsistent with or antagonistic to the free use on the part of the public, as a highway, has the effect of destroying the right of the public by prescription. Unlike dedication, this is a claim in opposition to the intention, expressed or implied, of the owner, and there must not be any of the elements of prescription wanting, in order to establish the right.
We are of the opinion that the public’s use of this-road has not been so continuously and uninterruptedly adverse to the ownership of the soil as to have ripened into-an easement in behalf of the public. We find therefore no equity in the bill, and the same is dismissed, at the cost of the appellee. | [
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Wood, J.,
(after stating the facts). Appellee shows that he was a passenger on appellant’s train ; that, on approaching Waldo, his destination, the name of the station was announced, the whistle sounded, the bell rung, and the train stopped nearly opposite the depot. Appellee supposed the train had stopped to allow passengers to get off ; and, accordingly, he, following several other passengers, proceeded to debark. No notice was given that the train had side-tracked to allow a belated train to pass. No warning of danger was given, or injunction to the passengers to remain seated until the other train should pass. Appellee was fifty-four years old. It was between nine and ten o’clock at night, and very dark to him as he came out of the brightly lighted coach. The train from which he debarked was making much noise, the bell ringing, steam escaping, and air brakes making sound. As appellee reached the ground, he looked across to the depot, and started toward the plat form. About the time he got upon the main track, he discovered, for the first time, in a few feet of him, the head light of the south-bound engine, but it was then impossible for him to get out of the way. The train was running fifteen or twenty miles per hour. The bell of this engine was not ringing. Appellee was run over, and his foot so mangled as to necessitate amputation. This is the case which appellee makes by his own evidence and that of his son, and, in some respects, his testimony is corroborated by other witnesses.
The appellant, on the other hand, shows that the passengers were notified that the train had side-tracked to allow the south-bound train to pass, and were requested to remain seated until the train should be backed up to the depot platform on the main track. That the whistle was sounded and bell was ringing on the engine that did the injury. Train was running three or four miles per hour. Appellee could have seen and heard it, had he looked and listened, and was notified, even after he got upon the main track, in ample time to have escaped, had he not negligently failed to do so. We are asked, upon this state of the contention, to review the verdict of the jury. It is impossible for the appellate court to bring truth out of so much palpable contradiction. That was the province of the jury and the trial judge. To us it appears, from the number of the witnesses, and the logical and reasonable conclusions to be drawn from their testimony, that the preponderance was decidedly in favor of appellant oh the facts. But preponderance is not determined by numbers alone. The circuit judge, having refused to set aside the verdict, indicates that he regarded the finding of the jury as just and correct. There was certainly evidence sufficient to support the verdict.
The charge of the court in the first part of the r . . . , tourth instruction was not correct, m that it permitted the jury, in weighing the evidence, to regard the mere personnel of witnesses, rather than the subject matter of their testimony, when both should be considered. But whatever defect there was in this particular was cured by the second prayer given at the instance of appellant, in which the court told the jury “that they must not discredit any witness arbitrarily, nor discard or depreciate the testimony of witnesses merely because they were in the employ of the defendant company.”
As to other instructions, it is sufficient' to declare , . , 4 what the law is upon the question involved, without commenting upon them separately. This court, in Railway Co. v. Cullen, 54 Ark. 431, held “that a traveler upon the highway is bound to exercise ordinary care and diligence,at the intersection of a railway, to ascertain whether a train is approaching, in order to avoid collision with it. * * * A failure to look and listen is therefore evidence of negligence on hi's part.” Such is the general rule, as settled by the authorities, enjoining a positive duty of care upon those who would pass over a railroad track to look and listen. A failure to take such precaution before attempting to pass over is negligence. Casey v. Canadian Pacific R. Co. 37 A. & E. R. Cases, 172; Penn. R. Co. v. Beale, 23 P. F. Smith, 504; Nagle v. Allegheny Valley R. Co. 88 Penn. St. 35; Penn. Ry. Co. v. Matthews, 7 Vroom, 531; Gratiot v. Mo. Pacific R. Co. 49 A. & E. R. Cas. 398.
But where trains have stopped at stations for the purpose of allowing passengers to make their entrance and exit, the rule is different. The very fact that the name of the station has been called, and the train brought to a standstill soon thereafter at the station, is tantamount to saying to the passenger, “ The way is open, and you may alight in safety.” The duty of the passenger, under such circumstances, is not the positive one of first ascertaining whether there is danger ahead, before he undertakes to get on or off the train, as the case may be, because he may act upon the implied assurance that all obstructions and interruptions of a dangerous character have been removed.- In other words, he may assume that the railroad company has done its duty to provide him safe landing. B. & O. R. Co. v. State, 60 Md. 449; Philadelphia, etc., R. Co. v. Anderson, 20 Atl. Rep. 2; Columbus, etc., R. Co. v. Farrell, 31 Ind. 408; Bridges v. Ry. Co. L. R. 6 Q. B. 377; Lewis v. Ry. Co. L. R. 9 Q. B. 66; Hutchinson on Carriers, sec. 616; Klein v. Jewett, 26 N. J. Eq. 474. See Memphis & Little Rock R. Co. v. Stringfellow, 44 Ark. 322, and cases there cited, as to effect of announcing name of station ; see also, Terre Haute, etc., Railroad v. Buck, 96 Ind. 346, as to implied invitation to alight; also, Smith v. Ry. Co. 88 Ala. 538.
As was said in Brassell v. N. Y. C. & H. R. R. Co. 84 N. Y. 24 : “A passenger, when taking or leaving a railroad car at a station, has a right to assume that the company will not expose him to unnecessary danger; and while he must himself exercise reasonable care, his watchfulness is naturally diminished by his reliance upon the discharge by^ the company of its duty to passengers to provide them a safe passage to and from the train.” Terry v. Jewett, 78 N. Y. 338; A. T. & S. F. Ry. Co. v. Shean, 18 Col. 368.
The passenger may act upon such reliance. He is not required to look out for and anticipate danger, as in the case of one, not a passenger, crossing at a public crossing or elsewhere. His alertness may be lessened by the implied invitation of the company to alight, and he may fail to take the precaution which would be demanded of him under other circumstances. But the duty of the railroad company will not relieve the passen ger from the exercise of ordinary care in avoiding an actual, obvious or known danger, or excuse any reckless conduct on his part. Even the grossest negligence of the company would not justify recovery, if the passenger, under all the circumstances of the injury, is shown to have been guilty of contributory negligence. Rose v. N. E. Ry. Co. L. R. 2 Ex. Div. 248; Whittaker’s Smith on Neg. 314; Archer v. N. Y. etc. R. Co. 106 N. Y. 589; Chaffee v. Boston & Lowell R. Co. 104 Mass. 108.
In Balt. & Ohio R. Co. v. State, 60 Md. 462, it is stated: “In each case the special facts and circumstances must be considered, and their bearing upon the propriety of the conduct of the party injured, except where the facts are clear and undisputed, must be submitted to the jury for their consideration. * * * And, in considering the facts, the question of ordinary care on the part of the party injured is not to be determined in an abstract way, but relatively, as it may be connected with and dependent upon the duty and obligation of the defendant.” Penn. R. Co. v. White, 88 Penn. St. 327; Gaynor v. Old Col. etc. Ry. Co. 100 Mass. 208; Robostelli v. New York, etc. R. Co. 33 Fed. Rep. 796.
The question of the negligence of the company and of the appellee was submitted in this case upon instructions even more liberal to appellant than were justified by the authorities. Those given for appellee are not strictly correct, in that they lose sight of the theory presented by appellant—that appellee knew the train had side-tracked, was warned of danger, and consequently was negligent in going where he did. But when taken in connection with those given for appellant, especially the 13th as modified by the court, they state the law substantially as above declared. The court did not err in refusing the fourth and sixth for appellant, nor in any of the modifications it made to instructions asked on its behalf.
NOTE.—The great number of cases as to injuries received in getting on or off railroad trains, including those like the present case, in which a person gets off at a preliminary stop, are collected and analyzed in a note to Carr v. Eel River & Eureka R. Co. (Cal.) 21 ER. A. 354. (Rep.)
The judgment of the Columbia circuit court is therefore affirmed.
Bunn, C. J., disqualified. Mansfield, J., not sitting. | [
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George Rose Smith, J.
This is an action at law by tbe appellant as tbe beneficiary of a $1,400 policy of accident insurance issued by tbe appellee to Charles Amos Ingram, the appellant’s son. The complaint asserted that tbe insured died as a result of having been accidentally shot on November 12, 1960. Tbe defendant denied liability on tbe ground that tbe policy did not cover a loss due to injuries intentionally inflicted upon tbe insured. This appeal is from a judgment entered upon a directed verdict for tbe defendant.
Tbe policy provided an indemnity for death occurring as tbe result of bodily injuries sustained through external, violent, and accidental means. A later exception, however, excluded coverage for “any loss resulting from . . . injuries intentionally inflicted upon tbe insured either by himself or any person other than burglars or robbers.”
Tbe proof shows that tbe insured was shot by Eobert Lee White. Tbe appellant first contends that tbe quoted clause is ambiguous and should be construed to mean that coverage is excluded only if tbe insured intentionally killed himself or intentionally induced someone else to do so. Since it is not shown that this decedent persuaded bis assailant to fire tbe fatal shot tbe appellant argues that tbe appellee did not prove its defense.
This contention is not well-founded. An insurance contract is to be construed strictly against the insurer; but where the language is unambiguous, and only one reasonable interpretation is possible, it is the duty of the courts to give effect to the plain wording of the policy. Southern Surety Co. v. Penzel, 164 Ark. 365, 261 S. W. 920. This contract states, as clearly and unmistakably as the English language permits, that there is no liability for a loss resulting from injuries intentionally inflicted upon the insured either by himself or any persons other than a burglar or robber. There is nothing whatever to indicate that the action of the third person must have been induced by the insured. We are not at liberty to rewrite the contract by inserting words that simply are not there. Moreover, the suggested construction is not a reasonable one, for the possibility that an insured might succeed in persuading someone else to murder him is so remote that the exclusionary clause would in practical effect be rendered meaningless.
The appellant’s other contention is that the defendant’s proof was not sufficient to justify the court’s action in directing a verdict. At the trial neither party made any real effort to prove the details of the homicide. The decedent’s father, testifying for the plaintiff, was the only witness. On direct examination he merely stated that he was present when his son was shot and killed on November 12, 1960. On cross-examination the witness stated that White shot the decedent, who in turn shot White in the shoulder after he had first been hit himself. There was also this testimony on cross-examination:
‘ ‘ Q. He was shot though, intentionally, you say, by Robert Lee White, is that right?
“A. I guess he was, he was shooting that way and he hit my boy.”
This meager proof was insufficient to call for a peremptory instruction. The insurer had the burden of proving an affirmative defense based upon an exception in the policy. Willis v. Denson, 228 Ark. 145, 306 S. W. 2d 106. The testimony must be viewed favorably to the appellant, against whom the verdict was directed. It merely shows that White was shooting in the decedent’s direction and hit him. The witness had not previously said that the shooting was intentional, but in response to the question we have quoted he said that he “guessed” it was. We are unable to say that the evidence is so clear and positive that no fair-minded man could find that the defendant had not sustained its burden of proof. It follows that the directed verdict was not proper.
Reversed and remanded for a new trial. | [
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Jim Johnson, Associate Justice.
This case involves the setting aside of a deed because of mental incapacity of the grantor.
The property in question was conveyed on July 12, 1944, from Bev Graves to his then wife Ethel by warranty deed. The deed was filed for record August 26, 1944. Bev Graves died September 11, 1945. The widow occupied the land until her death on March 17, 1960. The plaintiffs, appellees here, are the children of the deceased Bev Graves by a former marriage; they on July 7, 1960, filed their complaint in equity to set aside the deed from Bev Graves to his wife alleging grounds of lack of mental capacity to execute the deed; and further, that the grantor was an insane person at the time the deed was executed and was never at any time thereafter capable of ratifying the deed. The defendants, appellants here, are the collateral heirs and descendants of Ethel Graves, deceased. From a decree of the trial court setting aside the deed, appellants prosecute this appeal.
For reversal appellants rely upon three points. The points will be discussed in the order raised.
First, appellants contend that appellees have failed to show that Bev Graves did not have sufficient mental capacity to execute the deed on the day that it was executed. To support their contention, appellants cite Cullins v. Webb, 208 Ark. 631, 187 S. W. 2d 173, which states in part as follows:
“This case was tried more than fifteen years after the execution of the deeds which appellant seeks to set aside. It is not surprising, therefore, that the testimony of most of the witnesses regarding the. mental capacity of James G. Webb on May 21, 1928, is somewhat vague and indefinite. While there was testimony to indicate the incapacity of Webb several weeks after the execution of the deeds in question, a preponderance of the evidence tends to support the trial court’s conclusion of his mental capacity at the time the deeds were actually executed.”
In the instant case the testimony is specific and definite regarding Bev Graves’ mental capacity at the time of execution, of .the deed. The witnesses testified that they saw him at frequent intervals up to the time of his death except when he was in the State Hospital.
The testimony is undisputed that Bev Graves started losing his mind soon after his son and his daughter-in-law burned to death in 1939. His condition grew progressively worse until his wife Ethel would have to look after him like he was a small child. He would wander off and get lost, wander around at night necessitating his wife’s locking him in his room; she would fix his plate for him and feed him as if he were a child. He didn’t know his own children, poured coal oil in his corn cob pipe, attempted to feed the mule stove wood, couldn’t resist taking hold of his daughter’s hair which he called “stuff” and spent considerable time trying to pin house flies to the wall with his fingers. Mr. Graves was confined to the State Hospital in 1945 where he remained until his death on September 11th.
The proof is clear that Mr. Graves was completely disoriented in 1942, 1943, and 1944, and according to the evidence of Dr. Barbara Barksdale, Senile Psychosis, Confused Type, such as existed in this case, would have rendered Mr. Graves incapacitated in 1944, the year the deed is shown to have been executed.
Q.The Court: “You say this is not a disease that has lucid intervals?”
A. Dr. Barksdale: “No, sir, it is a gradual thing that gets worse as time goes on.”
In Cullins v. Webb, supra, this Court further said:
“Where Chancery cases are tried de novo, findings of fact made by the Court must be. allowed to stand unless they are clearly against the preponderance of the evidence.”
From the undisputed evidence set out above, we cannot say that the learned Chancellor’s findings are against the preponderance of the evidence.
Appellants’ second point contends that the action should have been barred by laches since the suit was brought sixteen years after the execution of the deed. In Sanders v. Flenniken, 180 Ark. 303, 21 S. W. 2d 847, this Court held that mere lapse of time before bringing suit, without change of circumstances or in the relation of the parties will not constitute laches. Not only must there have been unnecessary delay, but it must appear that, by reason of delay, some, change has occurred in the condition or relation of the parties to the property which would make it inequitable to enforce the claim.
In the case at bar the only thing that could have brought about a change of relationship of all the parties was the death of Ethel Graves. Ethel Graves died March 17, 1960; this action ivas brought on July 7, 1960, therefore it is apparent that as soon as it was known that the heirs of Ethel Graves would claim the property, the heirs of Bev Graves filed their suit. There is no showing in the record that injury or prejudice to the appellants occurred as a result of the delay complained of. See Cullins v. Webb, 207 Ark. 407, 180 S. W. 2d 835.
Appellants ’ last point contends that the hospital records introduced were inadmissible and that no witness ivas given to properly prove or lay any foundation for the introduction of the records. The rule is Avell established that in Chancery appeals we eliminate incompetent evidence that was duly objected to in the trial court, and we decide the case here on the remaining competent evidence. Umberger v. Westmoreland, 218 Ark. 632, 238 S. W. 2d 495. Applying this rule to the case at bar, on trial ele novo, we find.that there is an abundance of competent evidence, as indicated under point 1 above, to support the Chancellor’s findings without considering the hospital records.
Affirmed. | [
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Bunn, C. J.
This action was brought in the Sebastian circuit court, for the Greenwood district, on the 6th October, 1891, by the appellant against the appellee company, for work and labor done on its railroad, amounting to a balance unpaid of $167.90.
The appellee interposed a general demurrer, on the ground that the complaint does not state facts sufficient to constitute a cause of action against it, which demurrer being by the court sustained, plaintiff rested, judgment was rendered, and he appealed to this court. It was alleged in the complaint that the plaintiff was a laborer and contractor under one Wilson, who had taken a contract from the appellee company to clear off and grub the right of way, and grade its branch road about one mile in length ; and as such performed work amounting to the sum of $317.90, of which Wilson paid him $150, leaving- the balance sued for as aforesaid. It appears that Wilson had left the country some time before the institution of this suit. Prayer for judgment for the amount of the balance, and that plaintiff have a lien upon the property of the railroad company under the provisions of an act of the general assembly entitled “ An act to protect employees and other persons against railroad companies,” approved March 19th, 1887. The demurrer raises the questions, whether or not the appellant is entitled to judgment against the appellee, and als.o whether he is entitled to the- lien prayed for.
There is no such connection between the statute referred to above, and prior statutes providing for liens for work and labor done and materials furnished, as that the definitions and terms peculiar to the prior statutes have any special influence in interpreting the later one. It is a matter of common knowledge, and of the current history of the times, that the act of 1887 was passed to prevent the worthy, and in many respects defenceless, classes of persons named therein from being deprived of the fruits of their labor, the proceeds of their property used in constructing railroads, and of damages suffered by reason of negligence of those operating the roads, by having their claims made secondary to those of mortgage and other secured creditors, as had theretofore been the case. The benefits conferred by the statute are of course discriminating in their character, and in so far the provisions of the law are in derogation of common right, and must therefore be strictly construed, in respect at least to the ascertainment of the parties entitled, although to be most liberally construed as to its remedial part.
In the first place, a sub-contractor is not specifically named in the statute as one of the beneficiaries. This difficulty seems to have been provided against by the frame of the complaint, in which plaintiff is denominated a laborer as well as contractor. Names do not always truly characterize one’s work or calling. The complaint, in its recitals, shows that plaintiff was a contractor under Wilson, and therefore a sub-contractor relatively to the appellee company. As such, as we have said, he is not expressly provided for in the statute.
In the next place, the complaint does not show any privity of contract between the railroad company and the appellant. In the absence of statutory provisions to the contrary, and under the common law, the relation is a necessity to give a right of action to one party against another in cases like this. Another difficulty of like character is that it is not shown that the appellee is indebted to Wilson in any sum, nor is Wilson a party to this suit, nor has any of the known steps been taken to subrogate appellant to any of the rights of Wilson against appellee, if he has any. In fine, this suit is based on the naked proposition that, because the alleged work inured to the benefit of appellee company, it (the company) is therefore bound for the price of it to appellant, and can be sued accordingly. This is stating it as strongly as we can for appellant.
We have been unable to find any authority to support such a proposition. On the contrary, the courts, without exception, so far as we know, hold : First. That the statute itself, in such cases, gives the limit beyond which the right to a lien does not exist. Kirby v. McGarry, 16 Wis. 72; Harlan v. Rand, 27 Pa. St. 515; Dukes v. Love, 97 Ind. 344; Railway Co. v. Baker, 14 Kas. 563. It is said in Peck v. Miller, 39 Mich. 598, that it requires some expansion of the language to reach to the middleman, if the labor is not performed for the company, but for some one else (the principal contractor); and this is not allowable except upon plain evidence of such an intent. Secondly. There must be a privity of contract between the parties (plaintiff and defendant); otherwise there can be no right of action in the one against the other. Jacobs v. Knapp, 50 N. H. 82; Howard v. Moore, 20 Florida, 167. Finally. The concluding part of the act itself presupposes a right of action in the plaintiff against the defendant as in ordinary actions, and warrants the conclusion that the lien is not intended to confer a right of action, where none existed before, merely because of its 'own inherent character.
The judgment of the court below is therefore affirmed. | [
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Battle, J.
Robert A. Straughan was the head of a family, consisting of a wife, J. A. Straughan, and a child, Charles Straughan. He and F. W. Tucker were friends. On his death-bed he sent for Tucker, to confer with him as to his worldly affairs. At Tucker’s instance he made a will, by which he bequeathed and devised to his wife all his property, both real and per ■sonal. He often requested his wife to confer with Tucker, after his death, in all business affairs, and to follow his advice. He died leaving the will unrevoked, and his wife and child surviving him. He left to his wife $2000 in money, a farm of the annual rental value -of $125, a horse and cow, and a residence, which was a two-story framed building, with five rooms reasonably supplied with furniture, and a stable worth $500 or $600.
Mrs. Straughan delivered to Tucker $1800 of the' $2000 to loan for her, which he did by lending it to Jacob S. Allison at eight per cent, per annum interest; Allison conveying a valuable farm, worth $8000, to Tucker in trust to secure the payment of the same. Tucker retained the mortgage securities.
Some time during her widowhood, Mrs. Straughan promised the grandmother of her son, Charles, that she would, in the event she contracted a second marriage, -convey the farm to him. In January, 1891, when she was contemplating an early marriage, she sent for Tucker. He called to see her, and they talked about business. He told her she ought, before she married, to make some provision for her son, Charles. She said that ■she thought so too, and asked what she had better give-money or the farm—and said that his grandmother wanted her to give him the farm, but she thought the money was better for him, and asked how much she ■ought to give; and Tucker replied one-third of her estate, which was ten or twelve hundred dollars. He left her, and promised to return on the second day thereafter, when she could finally decide what she would do. He did so, and she executed to him an instrument of writing, by which she authorized and directed him to credit the deed of trust executed by Allison with $1200 which she had given her son, Charles, and Tucker gave her a receipt, in which he acknowledged he had received that amount of money for her boy, who was then about fourteen years old. Tucker did as he was authorized, and caused Allison to convey a farm to Vinson in trust to secure the payment of the $1200 for the benefit of Charles, and Vinson accepted the trust, and the deed which created it was delivered to him.
In a few days after Allison had executed the deed of trust to Vinson, Mrs. Straughan brought this action against Tucker, Allison, Vinson and Charles Straughan to restrain Tucker from delivering the deed to Vinson,, or, if delivered, to inhibit Vinson from filing it for record, and to cancel the credit of $1200, and the deed to-Vinson. She alleged in her complaint that the instrument of writing which she executed had been obtained by Tucker from her by undue influence; and that he, at the time he obtained it, declared “that he would never carry out the instructions contained in said paper until plaintiff should marry;” and that the deed to Vinson had never been delivered. The defendants answered denying these allégations.
At the hearing evidence was adduced by the parties to prove the allegations in the complaint of the plaintiff, and the denials in the answers of the defendants. We will not set it out in this opinion. It is sufficient to say that we find from it that the pr'eponderence of the evidence disproves the exercise of undue influence by Tucker, and that the instrument of writing executed by the plaintiff was not delivered on conditions; and that we find that the deed to Vinson was delivered before the bringing of this action.
A final decree dismissing the complaint was rendered in favor of the defendants ; and plaintiff appealed.
During the pendency of this action the plaintiff married J. H. Brewer.
Was the gift of the $1200 complete? In Nolen v. Harden, 43 Ark. 319, this court said “that if the gift be intended in presentí, and be accompanied with such delivery as the nature of the property will admit, and the circumstances and situation of the parties render reasonably possible, it operates at once, and as between the parties becomes irrevocable. Such delivery may be made to bailee, as effectually as to the donee in person. Upon the other hand, if there be only an intention to give and no delivery, it will be inchoate and incomplete, however strong the expression of intention may be; and the property does not pass. One is bound by his acts, but, without consideration, he is not bound to carry out his voluntary intentions, however firmly or earnestly he may express them.”
Upon this point Chancellor Kent says : “Delivery in this, as in every other, case, must be according to the nature of the thing. It must be an actual delivery, so far as the subject is capable of delivery. It must be secundum subjectam materiam, and be the true and effectual way of obtaining the command and dominion of the subject. If the thing be not capable of actual delivery, there must be some act equivalent to it. The donor must part not only with the possession, but with the dominion of the property. If the thing given be a chose in action, the law requires an assignment, or some equivalent instrument, and the transfer must be actually executed.” 2 Kent, Com. (8th ed.) *439.
In this case Mrs. Straughan authorized Tucker, in writing, to credit the deed of trust which Allison had executed to him with the sum of $1200, which she had given to her son, Charles, and received from Tucker a receipt for that amount, as so much money delivered'to him for that purpose. Her intention to make the gift, and to relinquish all control over the same as her property, was clearly manifested by the writing executed by her. Tucker, by his receipt, accepted the gift, and took possession thereof, on behalf of the donee. The two writings, being a part of the same transaction, conferred upon him the authority to segregate the $1200 from the $1800- which Allison had borrowed from her and secured by deed of trust to Tucker. This authority was doubtless given for the reason that Tucker already had the mortgage executed to secure the payment of the $1800, and as an evidence of the fact that the $1200 was the property of her son. As an incident to the power given him, and the possession of the gift, it was his right and duty to secure and preserve it for the donee, whom he undertook to represent. He did so by crediting Allison, and taking the deed of trust from him, in the manner stated, and the gift passed beyond the control of the donor, and became complete, before she undertook to revoke it. Second Nat. Bank v. Merrill & Houston Iron Works, 50 N. W. Rep. (Wis.), 503; Reynolds v. Reynolds, 18 S. W. Rep. 517; Crook v. First Nat. Bank, 52 N. W. Rep. 1131; Thornton on Gifts, secs. 276, 277, and cases cited.
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Neill Bohlinger, Associate Justice.
The appellant and appellee were formerly husband and wife and are the parents of two children, Debra and Bichard Kent Dunn. In 1959 the appellee filed suit for divorce from the appellant in the Sevier Chancery Court where he was awarded a decree of divorce with custody of the two minor children, the eldest of which is six years of age and the younger one four years old.
The portion of the decree placing the custody of the children in the appellee provided that the children should be maintained in the home of appellee’s brother and sister-in-law, Mr. and Mrs. Durden Dunn of DeQueen, Arkansas. They have been and are now being maintained there at the expense of the appellee.
The appellant filed a petition in the Sevier Chancery Court requesting a modification of that part of the decree awarding custody of the children.
The record in this case reflects that the home provided for the children is in the neighborhood of the appellee’s parents and that appellee resides about 200 yards from his brother’s home where the children are maintained and that his work is such that he is enabled to spend a part of each morning with them. There is no complaint made that they are not comfortably housed and it appears that they are enjoying a wholesome life with religious training and that the proper educational facilities will be accorded them as they become old enough to attend school.
To change this condition, the appellant alleges that since her divorce from the appellee she has remarried to Mr. William Bounds who is the father of four children by his divorced wife and that he, in his divorce decree, was awarded the custody of these children. The appellant further testified that she now resides in Little Bock where she and her present husband are gainfully employed and that they have a two-bedroom apartment with kitchen, bath and living room and that she and her present husband contemplate at sometime in the future acquiring a larger house.
In 17A Am. Jur., Divorce and Separation, § 838, p. 32, it is succinctly stated that:
“A party seeking modification of a divorce decree provision for custody of a child on the ground of changed conditions bears the burden of proof of changed conditions warranting a modification in the interest of the child. The evidence which was considered in the original proceedings is proper matter for consideration on an application for modification, so that the court can see what was formerly adjudged and determine whether a substantial change of circumstances has since occurred. ’ ’
The burden then being upon the appellant, the chancellor was required to weigh the original decree awarding the custody of the children with the prospects that are offered in appellant’s presentation in behalf of her petition.
In Meyers v. Meyers, 207 Ark. 169, 179 S. W. 2d 865, this court said:
“We do not have before us the testimony in the original proceeding upon which the chancellor awarded the custody of the child to the father. We must assume that the chancellor’s findings were correct and fully supported by the testimony, especially so since there was no appeal from the decree thus fixing the custody of the child. Patterson v. Cooper, 163 Ark. 361, 258 S. W. 988. The original decree awarding custody of the child to the father was an adjudication that at the time of the rendition thereof, the father and not the mother was the proper person to have the care, custody and control of the infant. While there is continuing authority in the court granting a decree of divorce to revise or alter orders contained in such decrees affecting custody and control of the minor children of the parties, such orders cannot be changed without proof showing a change in circumstances from those existing at the time of the original order, which changed circumstances, when considered from the standpoint of the child’s welfare, are such as to require or justify the transfer of custody from one parent to the other. Weatherford [sic Weatherton] v. Taylor, 124 Ark. 579, 187 S. W. 450, Nelson v. Nelson, 146 Ark. 362, 225 S. W. 619; Jackson v. Jackson, 151 Ark. 9, 235 S. W. 47; Stone v. Crofton, 156 Ark. 323, 245 S. W. 827; Hamilton v. Anderson, 176 Ark. 76, 2 S. W. 2d 673; Kirby v. Kirby, 189 Ark. 937, 75 S. W. 2d 817.”
While the court might review conditions obtaining when the original order was made, we do not find it necessary to go beyond the matters arising since the entry of the divorce decree. The main fact upon which appellant predicates her petition is the fact that she has since remarried to a man with four children of his own, with the joint earnings of the couple being sufficient to maintain the husband and wife and the six children. We find nothing that would convince the chancellor that provision is made for the care of the six-year-old girl and four-year-old boy while their mother and stepfather are absent from the home and at their places of employment and we note an absence of proof that religious training and educational advantages have been planned or con templated by the appellant. The main points in appellant’s plea are that she has remarried and she wants her children. We feel sure that the chancellor weighed that portion of her plea in the light of the fact that while she had visitation privileges, as long a period as seven months passed without her visiting her children.
In these matters the desire of the parent for the child, which is a natural emotion, is secondary. Children of tender ages are but helpless hostages given to fortune in an environment or condition which is not of their making and in which they would be helpless indeed were it not for the conscience of Chancery.
The chancellor denied the petition for change of custody and in that we think he is amply supported by the facts reflected by this record. His decree is, therefore, in all things affirmed. | [
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Jim Johnson, Associate Justice.
This appeal involves an action in replevin. Suit was brought by appellant, Allis-Chalmers Manufacturing Company, against appellees, Sherril L. Glover, Carroll Glover, E. V. Glover, d/b/a Glover Brothers, and Associates Discount Corporation, to recover possession of three used Allis-Chalmers Motor Scrapers, which were purchased by appellees, Glover Brothers, from Kern-Limerick, Inc.,of Little Rock in the spring of 1960. The purchase instruments were in the form of lease agreements but it is in effect conceded that the agreements were actual sales. The lease agreements and notes for the balance of the purchase price were assigned by Kern-Limerick to appellee, Associates Discount Corporation and appellee-intervener, James Talcott, Inc.
Appellant bases its claim for possession on the contention that Kern-Limerick had, on November 12, 1959, sold the same three motor scrapers to Consek, Inc., which corporation in turn had executed conditional sales contracts and promissory notes in favor of Kern-Limerick, evidencing and securing the entire purchase price of the machines, and on the same day Kern-Limerick assigned these instruments to appellant, Allis-Chalmers, as payment on an indebtedness owing appellant by Kern-Limerick.
On trial before the Circuit Court sitting as a jury, appellant contended that by virtue of these alleged earlier transactions its claim to the three machines was prior to the claims of appellees.
The material evidence produced by the respective parties is practically undisputed. From a careful review of the record, we find that there is substantial evidence to support the facts which are summarized as follows:
Kern-Limerick, Inc. was a retail dealer in heavy equipment in Little Rock, Arkansas. It had been the Allis-Chalmers dealer for many years. Consek, Inc. was an Arkansas corporation organized in August of 1959 with all of its stock owned by R. C. Limerick, Jr., President of Kern-Limerick, Inc. Consek had only a net worth of $300, being its original capital. It had no office, warehouse, lot, parts or employees. All of its operations were conducted at Kern-Limerick’s place of business by Kern-Limerick employees.
In November of 1959, Kern-Limerick, Inc., pursuant to a prearranged plan, agreed to by Allis-Chalmers, ordered three new pieces of Allis-Chalmers Equipment for sale to a Mr. Linwood Smith, taking in trade the three pieces of equipment, the title to which is at issue before this Court. It is clear from the record that generally when a dealer sells equipment the factory is paid immediately. In the present instance Kern-Limerick did not have sufficient cash to pay Allis-Chalmers in full for the machinery ordered. Consequently, pursuant to the agreement with Allis-Chalmers, B. C. Limerick, Jr., caused Consek to execute conditional sales contracts to Kern-Limerick, Inc., purporting to represent a sale by Kern-Limerick, Inc. to Consek of the three pieces of equipment traded in, which conditional sales contracts Kern-Limerick then assigned to Allis-Chalmers. This assigned paper was security for the payment by Kern-Limerick to Allis-Chalmers of the balance due on the new machinery sold by Kern-Limerick to Smith. Consek made no down payment or trade-in on the purported sale to it but the entire purchase price of approximately $42,000 plus finance charge, was to be paid in installments. Kern-Limerick paid the installments and Allis-Chalmers fully knew of Consek’s position relative to Kern-Limerick and knew Consek’s financial position.
The used machinery was held on Kern-Limerick’s lot in Little Bock and co-mingled with other machinery owned by Kern-Limerick being held out for sale to the general public. The machinery was the same color as other machinery owned by Kern-Limerick and was not painted black as was other machinery owned by Consek. It did not bear Consek’s name on it as did other machinery owned by Consek. All of this was with the knowledge of Allis-Chalmers.
In the spring of 1960, the three machines were subsequently sold by Kern-Limerick to Glover Brothers under separate contracts, a bona fide purchaser for value without no'Cce of any claim by Consek or Allis-Chalmers. Two of the Glover Brothers’ contracts were then assigned to appellee Associates Discount and one to appellee, James Talcott, Inc.
Based upon these facts the trial court was confronted with a situation created by the conduct of an original owner who had sold the same chattels twice and who had put into circulation and obtained the proceeds of two sets of commercial paper covering the same chattels. The question to be determined was whether appellant, as the holder of the earlier conditional sales contracts and notes, was entitled to prevail over the subsequent innocent purchaser of the machines and the finance companies which acquired the contracts and notes executed by the latter purchaser.
The trial court found in favor of appellee and judgment was accordingly entered. From that judgment comes this appeal.
Since this is an appeal from a judgment of a circuit court sitting as a jury, the principal question presented for our consideration is whether there is substantial evidence to support a finding that there was not a completed bona fide sale from Kern-Limerick, Inc., to Consek, Inc.
In the case of Securities Investment Company of St. Louis v. Williams, 190 F. Supp. 261 (1960) Judge J. Smith Henley had occasion to examine facts identical to the facts in the case at bar. In that case the first finance Company, Securities Investment Company, purchased paper from Kern-Limerick, which paper was a conditional sales contract purporting to represent a sale of a dragline from Kern-Limerick to Consek. The drag-line was left on Kern-Limerick’s lot and was later sold to a purchaser, Williams. The first question considered by the Court was whether the “sale” of the dragline to Consek was bona fide. In that case the position of the first finance company was much stronger than the position of Allis-Chalmers in the instant case for the reason that the first finance company was not at all involved in the preliminaries leading up to the “sale” by Kern- Limerick to Consek. The court in an excellent opinion reviewed the Arkansas cases at some length. The Court put its finger on the essential ingredient that it found lacking there and which is lacking in the instant case. The Court said:
“. . . in order for a sale of personal property to be binding on subsequent innocent purchasers, there must be an actual or constructive delivery of the property to the vendee, or at least an agreement whereby the vendor holds the property as bailee for the purchaser.”
The opinion cited the following Arkansas case: McDermott v. Kimball Lumber Company, 102 Ark. 344, 144 S. W. 524, and quoted the following:
“. . . in the sale of personal property, the delivery of the thing sold is essential as against the rights of third parties asserting a title, right or interest therein subsequently acquired from the seller. A delivery may be either actual or constructive, and in either event it will be effective to pass title. Where property is of such a nature and so situated that actual delivery thereof can be made, then that is necessary. Where the property is too ponderous and bulky for an actual change of its possession, a symbolical or constructive delivery thereof will be equivalent to and effective as an actual delivery. The delivery of such property may be made by doing everything necessary to identify it and by placing on it outward indicia to show a change of the possession and ownership.”
The trial court there further said:
“Assuming without deciding that the separate corporate entity of Consek should be recognized, there was never any sale to Consek which would be valid as to innocent third parties.”
The Court properly found that there was no delivery, either actual or constructive of the machine to Consek and further observed as to what could have been done as follows:
“It is manifest that the machine was susceptible of physical delivery to Consek. It could have been painted black and the name ‘Consek’ inscribed upon it. It could have been segregated on the lot away from the Kern-Limerick stock-in-trade, or, at the very least, some tag or sign could have been placed upon it which would indicate that it had been sold to Consek and was no longer a part of the Kern-Limerick inventory. Nothing of the kind was done. The machine was simply left where it had been placed originally as part and parcel of the Kern-Limerick machinery. There was no intention to deliver, no delivery, no sale. The ‘sale’ was merely a paper transaction which enabled Kern-Limerick to get $20,000 from the plaintiff while retaining possession of the machine and full power to sell it and make delivery to the first willing buyer that might appear. ’ ’
From what has been said above, we cannot escape the conclusion that there is substantial evidence to support the finding that there was no “sale” by Kern-Limerick to Consek; that the transaction between them was simply a part of the financing arrangement of the initial sale to Linwood Smith in which Allis-Chalmers was immediately and directly involved and the relationship between Kern-Limerick and Consek was well known to Allis-Chalmers; that there being no “sale” the assignment of the executed instruments to Allis-Chalmers by Kern-Limerick passed nothing to Allis-Chalmers which it could interpose as against third parties. See Coffman v. Citizens Loan and Investment Company, 172 Ark. 889, 290 S. W. 961.
As to the question of whether appellees are innocent parties without unduly extending this opinion suf fice it to say that there was no substantial showing that appellees were not bona fide purchasers for value without notice of any claim by Consek or Allis-Chalmers. In the absence of error, it follows that the judgment is affirmed.
Appellant’s strongest contention on this point is that the instruments which were assigned to Allis-Chalmers on November 12, 1959, were filed in the office of the Recorder of Pulaski County on November 27, 1959, and were so filed at the time appellees made their purchase. It is noted that the Arkansas Motor Vehicle Registration Law does not apply to construction equipment such as Motor Scrapers and there is no provision in our law for the recording of conditional sales contracts covering personal property. There is, therefore, no question of anv record notice in this case. | [
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Neill Bohlinger, Associate Justice.
The appellees brought this suit in the Conway County Circuit Court to recover the sum of $916.50 for the loss of poultry in a fire which destroyed their poultry house and which house and poultry were insured against fire hazard by a policy of insurance issued by the appellant.
The issuance of the policy and its being in effect at the time of the fire are not contested here and it appears that the appellees have agreed with the appellant on a settlement for the loss of the building.
The issue in regard to the'loss of the poultry was submitted to a jury under proper instructions and a verdict in favor of appellees in the sum of $916.50, plus interest and penalty, was returned by the jury and judgment in conformity with that finding, plus attorney’s fee, was duly entered by the court. The appellant does not take issue with the instructions given by the court and the sole point presented here is appellant’s contention that there is no substantial evidence to support the verdict which the appellant alleges is excessive.
It appears that the appellees purchased a number of hens in June, 1959, for which they paid $1.64 each. The testimony is that at the time of the fire they had 1,400 hens and that the chief value of the poultry was for laying purposes. Due to the age of the hens at the time of the fire it was testified that the hens had passed the peak of their egg producing capabilities and the appellee valued the hens at 75 cents each which, had all the hens been destroyed, would have made their loss $1,050.00. However, they salvaged 102 hens that sold for 75 cents each, reducing their loss by $76.50, and 303 hens were so badly damaged in the fire that they were able to realize only 5 cents a pound for them which netted $57.00. Deducting this salvage from the value of the hens left a loss of $916.50 as set out in the prayer for relief.
There is testimony that the market value of hens at the time of the fire ranged from 9 to 12 cents a pound for meat purposes hut there was also testimony that there was no market in Conway County for the type of chickens which the appellees had after the fire and the market price was whatever they could get for them. The appellees were confronted with the necessity of getting rid of 405 chickens, 303 of which were damaged in the fire, and with no place to house or care for them they seem to have sought the best market available, selling the undamaged hens at a price of 75 cents, and it is not shown that a higher sum was available anywhere. The damaged chickens were sold to a restaurant for eating purposes at 5 cents a pound.
The appellant does not question the competency of testimony for appellees but merely complains of the quality of it. A verdict will not be overturned if there is any substantial evidence to support it, Elkins v. Nelson, 196 Ark. 209, 118 S. W. 2d 287. See also Missouri Pacific Rd. Co. v. Fowler, 183 Ark. 86, 34 S. W. 2d 1071. Appellee, M. M. Farmer, testified as to the value of his property which he had a right to do. Any person, owner of personal property, may testify as to his opinion of its value. Phillips v. Graves, 219 Ark. 806, 245 S. W. 2d 394; Missouri Pacific v. Fowler, supra; Security Bank v. McEntire, 227 Ark. 667, 300 S. W. 2d 588. We said in Kesterson v. Hays, 137 Ark. 592, 209 S. W. 721:
“The question of market value being one entirely of opinion of the witness who undertakes to testify on the subject, does not require expertness on the subject, but it is after all a question for the jury to determine under the circumstances how much weight is to be attached to the testimony of the witness. St. Louis & San Francisco Rd. Co. v. Shore, 89 Ark. 418.”
The evidence presented in this case raised a question for the jury, to which it was properly submitted, and we find from the record sufficient evidence from which the jury could have and did find that the destroyed chickens were of a value of $916.50. That verdict we do not disturb.
There being no error, the cause is affirmed. | [
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Neill Bohlinger, Associate Justice.
The appellee brought this action to recover from the appellant a sum of money which she alleged was due under a 1955 insurance policy for expenses incurred by her in connection with hospital confinement and surgery in October, 1960.
The appellant, insurer, answered and denied liability on the grounds that the physical conditions which required hospitalization and surgery did not originate after October 20, 1955, which was six months after the effective date of its policy. The clauses under which this defense is interposed are as follows:
“PART A HOSPITAL EXPENSE BENEFITS
(c) Sickness, the cause of which originates more than six months after the effective date of this policy and which requires surgery; * * *
EXCEPTIONS REDUCTIONS WAITING PERIODS
WAITING PERIODS. 3. Loss, fatal or otherwise, resulting directly or indirectly from, or by, Tuberculosis, High or Low Blood Pressure, Heart Trouble, Cancer, Hernia or Rupture however caused, Rheumatism, Appendicitis, Rectal or Colon Trouble however caused, Adenoids or Tonsilitis, shall be covered only if the cause of the disease originates after this Policy shall have been in continuous force and effect for a period of six months from effective date. Loss due to any surgical operation, except in connection with accidental injury, shall be covered only if the cause of the disease necessitating such surgery originates after this Policy shall have been in continuous force and effective for a period of six months from effective date.”
The proof in this case discloses that an operation was performed on the appellee for anterior and posterior perineal repair; that appellee filed a claim for hospitalization; and that appellee signed two forms in regard to her claim which were her Claimant’s Statements — Hospital Coverage, and Individual Hospital Insurance Form, in which she designated the date of her first symptoms as July, 1947. It is evident that in 1947 the appellee underwent some treatment for the relief of certain complications. We are indebted to the appellant for an enlightening dissertation on the ills of women instant to childbirth, but whatever the 1947 treatment was designed to relieve seems to have been effective for the appellee states that she had not been troubled with the condition for which an operation was required until “the tomato season of 1960”, which we interpret as July, 1960, at which date the policy was in force.
We think the facts in this case bring it squarely within the rule announced in State National Life Insur ance Company v. Stamper, 228 Ark. 1128, 312 S. W. 2d 441, wherein we had the following facts:
“In July, 1955, a little over a year after Mrs. Stamper purchased the policy of insurance, she began to suffer pain in her neck and shoulders. At first she thought it was caused by her teeth, and had her teeth pulled, but this did not give relief. During most of her life she had a small bony growth or knot on the back of her head. Prior to July, 1955, she had suffered no ill effects whatever from this growth, but in August, 1955, it was determined that the bony growth had increased in size to the point where it was causing the pain suffered by Mrs. Stamper. According to the undisputed evidence the bony growth had not caused any trouble whatever until more than a year after the issuance of the policy of insurance, and it is apparent from the evidence that if the growth actually did cause Mrs. Stamper’s trouble it did so because of increase in size subsequent to the time the policy was issued.”
The decision in the above case was in line with the decided weight of authority that the condition should be deemed to have had its inception either at the time it became active, or when sufficient evidence existed to allow a reasonably accurate diagnosis even though disease germs, infection, or physical condition might have been present in the body prior to the excluded time if the condition was latent, inactive, and perhaps undiscovered.
We think the question as to the date of the direct or contributing cause of the condition for which surgery was required was properly submitted to the jury under plaintiff’s instruction number two. The instruction was as follows:
“You are further instructed that if you find from the preponderance of the evidence that the direct or contributing cause of the condition for which the plaintiff had surgery originated after October 20, 1955, then you will return a verdict for the plaintiff, unless you find for the defendant under other instructions of this case.”
Under this instruction and the evidence in the case the jury could have found either way but the question as to the origin of the condition was fairly submitted to the jury and its finding we do not disturb.
Appellant contends that the appellee “having recovered judgment for less than she demanded and sued for is not entitled to the penalty and attorneys’ fee awarded by the judgment in this case.” This contention is without merit.
The original complaint filed by appellee prayed for judgment in the sum of $285.50 but prior to trial the appellee amended the complaint and asked for $235.50, penalty and attorney’s fee. This amended complaint the appellant answered and faced the court on a prayer for only $235.50. This amount the appellee recovered and she is therefore entitled to penalty, costs, and attorney’s fee. The trial court allowed appellee’s attorney the sum of $150.00 and counsel asks an additional fee on this appeal. Taking into consideration the fact that this case necessitated two trials, one in the municipal court and one in circuit court, we think the sum of $150.00 attorney’s fee reasonable and an additional fee of $75.00 is allowed on this appeal.
The judgment is in all things affirmed. | [
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Ed. F. McFaddin, Associate Justice.
This appeal challenges a decree which refused to annul a marriage. Appellant, Paul Worthington, and appellee, Judith Worthington (nee Nahlen), were married in Idabel, Oklahoma, on October 24, 1960. On the day following the marriage, Paul filed this suit for annulment, alleging that the marriage was entered into by him under duress, i. e., threats on his life and the lives of his parents made by the appellee’s stepfather, Fred Stratton, who forced Paul to drive to Idabel, Oklahoma, and have the marriage ceremony with appellee, Judith.
The answer denied any duress; and, by cross-complaint, appellee alleged: “That she is now pregnant by the plaintiff and has been so for more than six months, that her child is due to be born soon, and that she is without funds with which to pay her hospital bills, doctor bills, and other lying-in expense and the plaintiff should be required to pay a reasonable sum to be fixed by this Court . . .” Trial in the Chancery Court resulted in a decree reading in part as follows: “The Court finds that the burden of proof was on the plaintiff to prove the allegations of his complaint by clear and convincing and satisfactory evidence, which he failed to do, and it is therefore the order of the Court that the plaintiff’s complaint be and it is hereby dismissed.” The plaintiff ivas required to pay $10.00 per week for defendant’s maintenance and also to pay court costs and attorney’s fee. From the judgment of the Chancery Court, appellant prosecutes this appeal, urging: “That the evidence produced by the plaintiff and appellant herein was more than sufficient to justify a judgment on behalf of said plaintiff and appellant.”
I. The Applicable Law. The law of Oklahoma governs as to the annulment of the marriage because it was solemnized in Oklahoma and the parties never lived together in Arkansas. The law of the forum determines the procedure, but the law of the place of the matrimonial contract (Oklahoma) governs the validity of the contract at the place of its execution. Feingenbaum v. Feigenbaum, 210 Ark. 186, 194 S. W. 2d 1012; Leflar, “Conflict of Laws” § 140; and Leflar, “The Law of Conflict of Laws” § 170. What is the law of Oklahoma? In Oklahoma Statutes, Annotated, Title 12 § 1283, it is stated:
“When either of the parties to a marriage shall be incapable, from want of age or understanding, of contracting such marriage, the same may be declared void by the district court, in an action brought by the incapable party or by the parent or guardian of such party; but the children of such marriage, begotten before the same is annulled, shall be legitimate. Cohabitation after such incapacity ceases shall be a sufficient defense to any such action.”
This statute was borrowed by Oklahoma from the General Statutes of Kansas of 1889, par. 4761; and the purpose of quoting this statute is to show that Oklahoma recognizes that marriages may he annulled.
The Oklahoma statute does uot specifically mention a marriage contracted under duress, hut in the case of In re Mo-se-che-he’s Estate (1940), 188 Okla. 228, 107 Pac. 2d 999, the Supreme Court of Oklahoma held that a District Court, under its broad equity jurisdiction, had power to annul a marriage entered into while one of the parties thereto was under an inhibition different from any mentioned in the foregoing statute. The Oklahoma Court said that a court of chancery, by virtue of its ordinary equity powers, possesses jurisdiction in a suit brought for the purpose of annulling a marriage, and the Court mentioned a number of grounds in addition to those listed in the foregoing statute.
In 55 C. J. S. 929, ‘ ‘ Marriage ” § 52, in discussing the general jurisdiction of a court of equity to annul a marriage, cases from many jurisdictions are cited to sustain this text: . . where no statutory limitation has been imposed on the jurisdiction of a court having general equity powers to entertain such suits, a court of equity may take jurisdiction of a suit to annul a marriage where the ground alleged is one on which equity gives relief in respect of contracts generally, namely, in the case of fraud, error, duress, mental incapacity, or want of consent generally.”
II. The Quantum Of Evidence Required. The law of Oklahoma and the law of Arkansas coincide on the necessity of the person seeking to annul the marriage to offer strong, clear, and convincing proof before annulment will be decreed. In Phillips v. Phillips, 182 Ark. 206, 31 S. W. 2d 134, in discussing the quantum of evidence necessary to support a decree for marriage annulment, we quoted from an earlier case:
‘ ‘ ‘ Every intendment of the law is in favor of matrimony. When a marriage has been shown in evidence, whether regular or irregular, and whatever the form of the proof, the law raises a strong presumption of its legality; not only casting the burden of the proof on the party objecting, but requiring him throughout, and in every particular, plainly to make the fact appear, against the constant pressure of this presumption, that it is illegal and void. So that it cannot he applied like ordinary questions of fact, which are independent of this sort of presumption.’ ”
The Oklahoma Supreme Court held in Blunt v. Blunt (1947), 198 Okla. 138, 176 Pac. 2d 471, that the marriage relationship is of such public concern as to require courts to scrutinize actions to annul marriages to discern their probable effect on the public as well as on the individual parties. Likewise, in Stone v. Stone (1944), 193 Okla. 458, 145 Pac. 2d 212, the Oklahoma Supreme Court held that the evidence in an action to annul a marriage had to be strong and conclusive. The general rule is stated in 55 C.J.S. 938, “Marriage” § 58: “The Courts will not grant a decree of nullity except on the production of clear, satisfactory, and convincing evidence.” We have several cases in Arkansas, in each of which marriage annulment was sought on the claim of duress. Some of these cases are Honnett v. Honnett, 33 Ark. 156, 34 Am. Rep. 39; Marvin v. Marvin, 52 Ark. 425, 12 S. W. 875, 20 Am. St. Rep. 191; Lee v. Lee, 176 Ark. 636, 3 S. W. 2d 672; Killer v. Killer, 180 Ark. 1152, 24 S. W. 2d 867; Phillips v. Phillips, supra; and Feigenbaum v. Feigenbaum, supra.
III. The Insufficiency Of The Evidence. Measuring the evidence herein by the applicable rules heretofore mentioned, we conclude — as did the Chancery Court— that the plaintiff failed to establish his case. Paul Worthington was no novice in matrimonial matters. He had a divorced wife and a child at the time he contracted the marriage here involved. He was twenty-two years of age, and Judith Nahlen was nineteen years of age. To recite all of the evidence would serve no useful purpose. Paul Worthington admitted his intimacies with Judith; and his ardent love letters were introduced in evidence; but he claimed that his ardor cooled when Judith told him — which she vigorously denied — that it was doubtful that he was the father of the child to be born. At all events, Judith returned to Little Rock and called Paul on the night of October 23, 1960, and he went in his car to see her. Then Paul says the duress began when Judith’s stepfather threatened to kill him unless he married the girl. Judith, her mother, and her stepfather drove with Paul in his car to Texarkana to have the marriage ceremony in Texas. Paul says all of this was against his will, and that he went only because Judith’s stepfather threatened to kill him, but while Paul was in Texarkana, he was away from the others and called his parents over long distance and could have avoided the marriage if he had so desired. He was away from any alleged duress and could have stayed away. Instead, when it was learned that a waiting period was required before a marriage could be performed in Texas, Paul, Judith, her mother, and the stepfather drove to Idabel, Oklahoma. There Paul again eluded the stepfather and appealed to a police officer for protection. Pull protection was given him. The Chief of Police of Idabel, called by Paul to substantiate his story, testified:
“I told the boy he didn’t have to marry the girl and that was strictly up to him. I said that I didn’t know what the Arkansas Statutes were but that I could tell him what they are in Oklahoma and I said, ‘you do as you please, you don’t have to marry her.’
Q. And you advised him further it was entirely up to him, you would see that he had safe transportation ¿ack?
A. Yes, sir.”
While thus under police protection, Paul called his mother in Little Rock, and the Police Chief testified:
“Q. He talked to his mother and after he talked to her he decided he was going ahead with it?
A. Yes, sir, he decided to marry her.”
And again the officer testified:
“A. I didn’t try to stop it after they agreed to go through with it.
Q. Did he apparently agree to it of his own accord and own will?
A. Yes, sir.”
Paul Worthington claimed that the reason he agreed to the marriage was because Judith’s stepfather said that if Paul didn’t marry Judith, then the stepfather would come back to Little Rock and kill Paul’s parents. This, he claimed, was the real duress. But the evidence is in dispute as to whether this alleged threat of the stepfather was before or after the telephone conversations that Paul had with his parent, as previously mentioned. Here is what the Police Chief — called by Paul Worthington- — testified on this point:
“The Court: I am trying to get from the Chief, if he recalls, but he doesn’t recall, which occurred first.
A. I told you a while ago I don’t know which one of the conversations came up first, but I did say I believe the conversation over the telephone was first.”
Judith, as well as her mother and her stepfather, strongly dispute Paul’s testimony as to all matters of duress; and with Paul’s testimony unsupported on the vital matter of duress through threats, we cannot say that the Chancery Decree is against the preponderance of the evidence. There may have been some duress exerted originally by Judith’s stepfather, but the evidence seems rather clear that Paul ultimately acquiesced and voluntarily applied for the marriage license and had the wedding ceremony performed by the County Judge at Idabel, Oklahoma; and it was only after he returned to Little Rock and consulted his parents that he decided to claim continuing duress.
The decree of the Chancery Court is affirmed; the appellee is awarded $150.00 additional attorney’s fee in this Court; and the Chancery Court has continuing jurisdiction to consider the petition of appellee for maintenance allowance and other expenses for herself and child.
Published by the West Publishing Company in 1951.
The Arkansas statutes regarding annulment of marriage are found in § 55-106 et seq., Ark. Stats. | [
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George Rose Smith, J.
This is a will contest in which the appellant, Charles Kirby, seeks to set aside the will of his mother, Dora Wallace, for undue influence assertedly exercised by the appellee, the principal beneficiary of the will. The appellee is the testatrix’s step-grandson, being the grandson of her second husband. This appeal is from a judgment holding the will to be valid.
The testatrix lived for fifty years upon a forty-acre farm near Rector, in Clay county. She died in 1960 at about the age of 77. Her will had been executed in 1955 in the office of her attorney, Verlin Upton, who testified that the testatrix acted upon her own volition and appeared to be in her normal condition at the time.
Mrs. Wallace left a bequest of $100 to the appellant, her only child. He was 57 years old when the case was tried. He testified that he left his mother’s home when he was 21 and had been living at Elaine, in Phillips county, for 17 years. The rest of the testatrix’s estate, consisting principally of a farm inventoried at a value of $5,000, was left to the appellee. He was 38 when the case was heard. He had been brought up by Mrs. Wallace and had lived in her home from the time he was 20 months old until her death 36 years later. For the last 24 years of that period Mrs. "Wallace was a widow.
The principal charge relied upon by the appellant is that upon several occasions the appellee threatened to leave Mrs. Wallace’s home if she did not make a will in his favor. Such statements, standing alone, would not constitute undue influence, which must deprive the testator of his free agency in the disposition of his property. Parette v. Ivy, 209 Ark. 364, 190 S. W. 2d 441. It is not suggested that Mrs. Wallace was in any way helpless or especially dependent upon the appellee, so that his so-called threats amounted to the taking of an unfair advantage. To the contrary, the statements really amounted to a declaration that he would remain in the home and assist in the operation of the farm only if Mrs. Wallace would leave the property to him upon her death. That conduct falls decidedly short of being undue influence.
There is also testimony that the appellee kept the testatrix in a state of fear, principally by threatening to kill her son, the appellant. This testimony was given by the appellant and members of his immediate family and appears, to say the least, to be greatly exaggerated. It is directly contradicted by the appellee and indirectly contradicted by several of the testatrix’s neighbors and friends, who believed that Mrs. Wallace was very fond of the appellee. We agree with the trial judge in finding it impossible to believe, as the appellant’s proof indicates, that Mrs. Wallace lived in a state of fear and dread for fifteen years or more without her friends and neighbors having any suspicion that such a situation exited.
Affirmed. | [
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Ed. F. McFaddin, Associate Justice.
This is an appeal of a misdemeanor case. The appellant, W. D. England, Jr., was charged in the Pine Bluff Municipal Court with the offense of disturbing the peace (§ 41-1401 Ark. Stats.). At the trial a number of witnesses testi .fied; and the appellant was convicted on each of three •counts. On appeal to the Circuit Court the case was tried before the Judge without a jury, and the attorneys stipulated as to the testimony, a portion of which was:
“It is stipulated and agreed between the parties that if the prosecution witnesses were present they would testify that W. D. England, Jr., operates a Go-Kart Race Track at approximately 20th and Ohio Street; that the Go-Kart Race Track has numerous small vehicles that operate between the hours of 7:00 p.m., up to midnight; that these witnesses live anywhere from one block to six blocks away from the Go-Kart Race Track; that during these hours of 7:00 p.m., to midnight there is a constant roaring of motors and is so loud five to six blocks away that they cannot hear their television sets unless turned up to the highest point; that they have difficulty in carrying on a conversation in their own homes and are unable to sleep during the time the motors are being operated; that several witnesses described the noises as if a gasoline lawnmower was being operated right underneath their window for hours at a time. Some witnesses testified that their children were unable to study or to sleep until nearly midnight . . . ”
Trial in the Circuit Court resulted in a conviction of the appellant on two counts, with a fine of $10.00 and costs on each count, and the fines were suspended “. . . on condition that the defendant does not operate so as to 'disturb the peace, and on payment of the costs.” There was no motion for new trial filed in the Lower Court, the appellant apparently being under the impression that the case could be appealed to this Court as a civil case, according to the provisions of Act 555 of 1953. (§ 27-2106.1 et seq. Ark. Stats.) But that Act relates only to civil cases. McConnell v. State, 227 Ark. 988, 302 S. W. 2d 805. In a misdemeanor case there must be a motion for new trial filed in the Circuit Court, if we are to look further than the face of the record. See City of Monticello v. Kimbro, 206 Ark. 503, 176 S. W. 2d 152; Holliman v. State, 213 Ark. 876, 213 S. W. 2d 617; Long v. State, 216 Ark. 681, 227 S. W. 2d 166; and Van Hook v. Helena, 170 Ark. 1083, 282 S. W. 673.
Appellant argnes most earnestly that upon examination of the face of the record we must reverse the judgment, because — says appellant — the information on which he was tried did not charge an offense. This information, omitting signature and verification, reads:
“The said W. D. ENGLAND, JE. in the County of Jefferson and State of Arkansas on the 1st day of October A. D., 1960, did then and there wilfully, unlawfully and maliciously disturb the peace and quiet of Albert Bridges by operating a go-kart race track and juke box in a loud and unusually noisy manner, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Arkansas.”
The appellant says that he was tried for disturbing the peace under § 41-1401 Ark. Stats.; that the information merely showed that he had disturbed the peace and quiet of Albert Bridges; and that disturbing the peace and quiet of one person is not an offense under our statute or at common law.
There are two answers to this argument of appellant. By Initiated Act No. 3 of 1936, the People of Arkansas adopted a criminal reform measure which did away with many of the technicalities previously required; and, by Constitutional Amendment No. 21, the People provided that offenses prosecuted by indictment might likewise be prosecuted by information. In aecord anee with the said initiated measure, and this Constitutional Amendment, we weigh the information in this case. Section 43-1006 Ark. Stats, (which is § 22 of the said Initiated Act No. 3) says:
‘ ‘ The language of the indictment must be certain as to the title . . ., the name of the court . . ., and the name of the parties. It shall not be necessary to include statement of the act or acts constituting the offense, unless the offense cannot be charged without doing so . . . but the name of the offense charged in the indictment shall carry with it all such allegations . .
The information in this case charged W. D. England, Jr. with the crime of disturbing the peace. Such was sufficient to apprise him of the offense. Some of the cases construing the aforesaid section are Craig v. State, 194 Ark. 925, 114 S. W. 2d 1073; Budd v. State, 198 Ark. 869, 131 S. W. 2d 933; Johnson v. State, 199 Ark. 196, 133 S. W. 2d 15; and Baker v. State, 200 Ark. 688, 140 S. W. 2d 1008; and under these cases the information in this case charged an offense.
Another and more conclusive reason why the appellant cannot prevail on this appeal, is because he failed to raise the question of the sufficiency of the information at the proper time or in the proper manner. In Baker v. State, supra, we pointed out that if a defendant desired to raise the point that the information did not charge a crime or offense, he must either file a demurrer to the information or file a motion in arrest of judgment, in keeping with the provisions of what is now § 43-2208 et seq. Ark. Stats. In the case at bar, the appellant filed no demurrer to the information. Neither did he file a motion in arrest of judgment. He is trying to raise the question by appeal; and such is entirely inadequate.
Affirmed.
Johnson, J., dissents.
The appellant’s place of amusement was located outside of the city limits of Pine Bluff.
Comment has been made that if this Go-Kart Race Track disturbed the peace then many businesses would disturb the peace; but that conclusion does not logically follow. In 8 Am. Jur. 835, “Breach of Peace” § 4, it is said: “An act which if committed at a certain place or time would not amount to a breach of the peace may constitute a crime if committed at another time or place and under different circumstances. In other words, whether or not a given act amounts to a breach of the peace can only be determined in the light of the circumstances attending the act, and the time and place of its commission.” The question, of whether appellant’s operation of the Go-Kart Race Track at the time and place and hours here involved constituted a. breach of the peace, was a matter to be considered under the facts; and no factual issue is raised on this appeal because there was no motion for new trial. | [
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George Rose Smith, J.
This is a hernia claim arising under the workmen’s compensation law. The commission found that the claimant, Childers, suffered a compensable inguinal hernia on February 12, 1960. The commission’s award was affirmed by the circuit court. For reversal the employer contends that the hernia really occurred on February 9, so that the statutory requirements with respect to notice and the attendance of a physician were not met within 48 hours.
Our statute governing hernia cases contains these provisions: “In all cases of claims for hernia it shall be shown to the satisfaction of the Commission:
“(a) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;
“(2) That there was severe pain in the hernial region ;
“ (3) That such pain caused the employee to cease work immediately;
“(4) That notice of the occurrence was given to the employer within forty-eight hours thereafter;
“(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within forty-eight hours after such occurrence.” Ark. Stats. 1947, \ 81-1313 (e).
Childers testified that on February 9, while he was at work, a heavy wrench came in contact with his stomach as he was attempting to free certain jack screws. The pain was intense, but it went away after he had rested for five or ten minutes, and he was able to finish the day’s work. That night he observed a small lump in the hernial area, but it did not occur to him that he might have a hernia. He did his usual work during the next two days, though with some discomfort.
On February 12 there was a leakage of chlorine gas at the plant. Childers had trouble breathing and coughed steadily for twenty minutes or more. This coughing caused abdominal pain that Childers described as much more severe than that upon the first occasion. In the hernial region ‘ ‘ [it] felt like it just broke on through. A big swelling come out. ’ ’ Childers was forced to cease working and was sent to a doctor, who found that he had an inguinal hernia. Childers submitted to an operation on February 24 and was disabled for eight weeks.
Dr. Samuels, testifying as an expert witness for the claimant, was of the opinion that Childers had a congenital abdominal weakness that predisposed him to hernia. With respect to the wrench blow of February 9 Dr. Samuels testified: “I don’t think that produced a hernia. Of course, later he had this severe coughing episode due to irritation by some chemical irritation in the plant, and it is my opinion that the pre-existing congenital type hernia then became of clinical significance due to severe coughing and an increase of inner abdominal pressure.” Dr. Buchman, testifying for the employer, thought that the hernia occurred on February 9. The commission found that “in all probability, claimant’s hernia finally broke through on February 12, 1960, as a result of the excessive coughing.”
Special hernia statutes such as ours, it has been said, are intended to distinguish non-industrial congenital hernias from those definitely produced by trauma or effort at work. Larson, Workmen’s Compensation, § 39.70. There can be no doubt that it was Childers’ work and working conditions that caused his congenital weakness to be converted into an actual case of hernia. Under the appellant’s theory Childers’ injury could never have been compensable, for the incident of February 9 did not cause him to cease work, as the statute demands, and by February 12 it was too late for him to require the attendance of a physician within the limit of forty-eight hours. It is doubtless true, as the appellant insists, that the onset of hernia may in some cases be too gradual for it to meet the statutory conditions for compensability. In this record, however, there is substantial evidence to support the commission’s conclusion that it was not until February 12 that Childers’ condition actually became one of hernia. In that view all the statutory requirements are shown to have existed.
Affirmed. | [
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Carleton Harris, Chief Justice.
In December, 1958, Wade Lahar Construction Company, principal appellant herein, entered into a contract with the city of Little Rock for the construction of a portion of the Little Rock sanitary sewer system. On April 22, 1959, Lahar subcontracted a part of the work with McMinn-Echols Company, principal appellee herein, the latter to build the concrete manholes, and creek crossings, at designated points along the sewer line. The dispute which occasions this litigation arose over the interpretation of Section 4 of the subcontract, which provides as follows:
“The contractor agrees to pay to the subcontractor for the performance of his work the sum of $92,881.00 in current funds, subject to additions and deductions for changes as may be agreed upon, and to make payments on account thereof in accordance with Section 5 hereof.
The agreed price is a lump sum price based on using the following items to add to or deduct from, agreed total.
1. If more or less than 1,455 cubic yards of reinforced steel concrete are used, add or deduct $62.72 per yard.
2. If more or less than 107 cubic yards of fill concrete are used, add or deduct $20.00 per cubic yard.
All quantities of concrete are to be measured from neat lines as per plans and specifications furnished by the consulting engineer.”
Appellee McMinn-Echols contends that it had a lump sum contract for $92,881.00, and was to receive that amount as long as the plans and specifications, which had been prepared, were followed, irrespective of the number of cubic yards used; that items “1”, and “2” had reference only to additions to the work originally covered under the lump sum figure, and the final paragraph applied only if there were a change in plans and specifications. Lahar contends that in order to determine the amount earned under the contract, it is necessary to begin with the “lump sum” figure and, depending upon the amount of concrete actually used, add to or deduct from the agreed total. In other words, the contract was a “lump sum” contract for an agreed amount of work, with unit prices for adjustments, upward or downward, for variations of quantities. According to appellants’ evidence, the set price was placed in the bid for the purpose of establishing bonding ability. It is asserted that the court’s error in interpreting the section was principally due to the failure to give any consideration to the last sentence in Section 4, i.e., quantities of concrete were to be measured from neat lines.
It is admitted that $76,337.50 has been paid by Lahar to appellee for work done under the subcontract. In May, 1960, appellee construction company instituted suit against this appellant and Standard Accident Insurance Company, which had executed performance bond for appellant, alleging that it has earned $103,559.57 under the subcontract, said figure being reached on the basis of $95,097.20 for 1,516.25 cubic yards of reinforced concrete used at the rate of $62.72 per cubic yard, $2,270 for 113.5 cubic yards of fill concrete at the rate of $20 per cubic yard, $4,526.70 for additions and extras, and $1,665.67 for further extras and additions. The complaint recited that $76,337.50 had been paid, and that an unpaid balance was due in the amount of $26,707.47. Appellants answered, and contended that McMinn-Echols had earned only $81,306.91, taking the position that only 1,274.61 cubic yards of reinforced concrete, and 94 cubic yards of fill concrete had been used as specified by the subcontract. This left the amount due this appellee as $4,969.44, but appellants filed a counterclaim and third party complaint against McMinn-Echols, and its surety, National Surety Corporation, alleging that the former had not performed its work in accordance with the subcontract, and that Lahar had been compelled to furnish and perform items which properly were due to be furnished by McMinn-Echols; that this work amounted to $12,865.75, and that appellant construction company was due judgment of $7,896.31 over and above the total amount due McMinn-Echols. On trial, the court, sitting as a jury, held:
“1. That plaintiff, McMinn-Echols Co., Inc., is entitled to compensation from the defendants, Wade Lahar Construction Company and its surety, Standard Accident Insurance Company, for the performance of work under the sub-contract involved in this proceeding, the following sums (before taking into account amounts heretofore paid to plaintiff as set forth below); (a) $91,881.00 as the contracted lump sum amount agreed upon covering the placement of 1,455 cubic yards of reinforced con <crete and 107 cubic yards of fill concrete under the subcontract, and (b) $3,998.40, for the placement of 63 and 3/4ths additional cubic yards of reinforced concrete, at the rate of $62.72 per cubic yard, and (c) $130.00 for the placement of 6 1/2 cubic yards of additional fill concrete, at the rate of $20.00 per cubic yard; making a total of $97,009.40, of which plaintiff has heretofore been paid $76,337.50 by Wade Lahar Construction Company, leaving a balance due plaintiff in the amount of $20,671.90.
2. That plaintiff is not entitled to recover on its claims for additions and extras in the amounts of $4,526.70 and $1,665.67.”
The court also found that Lahar was not entitled to recover on its counterclaim and third party complaint, and further held that none of the parties were entitled to recover statutory penalties or attorneys’ fees from any other party or parties. From the judgment so entered, appellants have appealed. McMinn-Echols has cross-appealed from that portion of the judgment denying recovery on the claims for additions and extras in the amounts of $4,526.70 and $1,665.67, and also that portion denying penalty or attorneys’ fees.
We do not reach all of the issues raised by the pleadings and the proof, for we are definitely of the opinion that the court erred in its construction of the contract. The court gave no consideration to the last sentence of Section 4, heretofore quoted, but apparently took the view advocated by appellees to the effect that this provision only applied if there were a change in plans and specifications (which did not occur). We think this view was erroneous, and find nothing in the instrument to support such a position. The provision under discussion is, we think, entirely clear, and free from ambiguity. We are of the opinion, that in giving effect to all the provisions of the contract, it is apparent that the $92,881.00 figure was not intended as a lump sum payment to be received by appellee McMinn-Echols, irrespective of the number of cubic yards used; in fact, if appellees’ contention is correct, we see no need for the estimates contained in subsections 1 and 2, for there would be no necessity for measuring yardage under a lump sum contract. Again, under appellees ’ view, we see no reason for the language which follows the figure $92,881.00, “subject to additions and deductions for changes.” In Bailey v. Whorton, 207 Ark. 849, 183 S. W. 2d 52, we said, “In construing a contract, every sentence, clause, and word therein should, when it can be reasonably done, be given effect.” When this is done, it definitely appears that the interpretation urged by appellants must prevail. We think logic supports this position, for, as pointed out by appellants, if any method of measurement is used other than from neat lines, a subcontractor could “over order, build his forms too large, let the forms bulge, waste or dispose of the concrete in any number of ways, and his inefficiency, incompetence, or what have you, will inure to his benefit in proportion to his mistakes at a cost to appellant of $62.72 per yard.”
The court found that a total of 1,518.75 cubic yards of reinforced concrete had been used, and 113.5 cubic yards of fill concrete had been used. The 63.75 additional cubic yards of reinforced concrete, and the 6.5 cubic yards of additional fill concrete were arrived at through testimony on behalf of appellees that this amount had been poured, and upon delivery tickets showing the amount delivered to the job. This method of calculation, under the contract, was erroneous, for, as pointed out, that instrument provides that quantities of concrete are to be measured from neat lines as per plans and specifications furnished by the consulting engineer. Appellants offered evidence, arrived at by the latter method, to the effect that 1,274.61 cubic yards of reinforced steel concrete, and 94 cubic yards of fill concrete, were used on this job. Appellees did hot offer any proof under this method of computation.
Because of the error herein set out, the judgment is-reversed. Inasmuch as the court’s findings were predicated upon an erroneous construction of the contract,. and because the court’s findings relative to the counterclaim and third party complaint of appellants, and matters raised on cross appeal by appellee none of which we pass on in the instant litigation, were in the nature of a general verdict, the cause is remanded for the trial court’s further consideration of all factual questions.
It is so ordered.
McFaddin, J., concurs in part and dissents in part.
“Neat line” — (1) The line to which the face of a masonry wall is supposed to conform disregarding minor irregularities.
By subsequent amendment to the complaint, this amount was changed to $103,044.97.
This figure, as well as the $81,506.91, was reached by amendment, the answer originally stating that appellee was due to the sum of. $8,496.31, and that appellee had earned $84,833.81. | [
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Smith, J.,
(after stating the facts). Various questions are raised in the briefs, but we find it necessary to discuss only one of them, that toeing the authority of Romunder to purchase the bank stock with the assets of the veneer company. We think he had no such authority. It is true he was the controlling spirit in the veneer company and dictated its policies and either owned or held in his name as president the great majority of the stock. Notwithstanding the jury, by its. verdict, must have found that Romunder directed Vaughan to deduct from the veneer company’s deposit the purchase price of the stock, the fact is undisputed that the books of the appellant company showed that this sum had been credited back to it, and no other stockholder of this company ever knew of that action. Romunder’s 'knowledge of this transaction could not toe imputed to other stockholders of the corporation who had no actual knowledge, because the contract was for Romunder’s personal advantage and against the interest of the veneer company. Bank of Hartford v. McDonald, 107 Ark. 232.
It is not contended that the veneer company could derive any benefit or advantage from this transaction, and it is sought to bind that company only upon the theory that Romunder was the veneer company, but it has been shown that he was not the owner of all the stock. This deposit constituted in part, the assets of the veneer company and, such assets constitute a trust fund for the benefit of any creditors there may be. Even if Vaughan’s version of this transaction is accepted as reflecting the truth, which must ibe done in view of the verdict of the jury, the fact stands undisputed that the ¡bank knew it was taking assets 'belonging to the veneer company, and not to Romunder personally, with which to pay Romunder’s personal obligation, and Romunder could not authorize this action.
In a discussion of the principle involved here, in the case of American Bonding Co. v. Laigle S. & L. Co., 111 Ark. 155, it was said: “Now, it must be conceded that the note executed by Forsythe in the name of his principal, to .secure his own debt, was not a valid obligation of the Bradley Lumber Company, for it is not within the real or apparent scope of authority of an agent of a corporation, or even of its officers, to bind the corporation by the execution of negotiable paper for accommodation. Simmons National Bank v. Dilley Foundry Co., 95 Ark. 368. Nor did Forsythe have authority to use the funds of the corporation in payment of his private debt. Anders knew, when the note was'executed by Forsythe, that the name of the Bradley Lumber Company was signed merely as an accommodation, and, therefore, the paper was not binding on the Bradley Lumber Company. ’ ’
A number of authorities on this subject were reviewed in the opinion in the case of Simmons National Bank v. Dilley Foundry Co., 95 Ark. 368, where the law on this subject was stated as follows:
“It follows, from this, that no corporation has the power to divert its funds or assets from the purposes for which it was created, and it therefore has not the power by any form of contract to become a surety for or otherwise to lend its credit to another person or corporation. It has the power to make all contracts necessary or incidental to its own business; and therefore a corporation organized for the purpose of carrying on a manufacturing business, such as tbe Dilley Foundry Company, -has tbe implied power to borrow money and make negotiable paper for use within the scope of its 'own -business; but it has no power to become a party to ¡a bill or note for the accommodation of another person or -corporation. The officers of a corporation have no power to bind it by the execution of such accommodation paper, and it can not be held liable thereon when it is known by the' payee or holder that it was executed only for accommodation. 3 Thompson on Corporations, § 2225; West St. Louis Savings Bank v. Shawnee County Bank, 95 U. S. 557; 7 Cyc. 679; 10 Cyc. 1115; El Dorado Improvement Co. v. Citizens Bank, 85 Ark. 185; Park Hotel Co. v. Fourth National Bank, 30 C. C. A. 409; Owen v. Storm, 72 Atl. 441.”
It follows, therefore, that the court erred in rendering judgment upon the verdict of the jury for the amount of the alleged overdraft, -and that judgment will be reversed and judgment entered here for the appellant company for $155 and interest from the 2d day of April, 1913. | [
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■Smith, J.
Appellee recovered judgment for commissions claimed by Mm upon a sale of real estate owned by appellant.
The evidence is not abstracted fully by appellant, but Ms contention is that the evidence at the trial developed the following facts: That appellant listed certain lands with appellee, hut reserved the right to sell the lands himself, if he found a purchaser. That appellees showed the property to one Epps, who was himself a real estate dealer, and subsequently introduced Epps to appellant. 'That appellant and Epps were unable to trade, but appellant listed his lands with Epps, who subsequently procured one Swan as a purchaser, with whom he traded.
Appellee abstracts the testimony offered in his own behalf, and it appears that his testimony in the trial below was substantially as follows: That prior to November 11, appellant listed with him for sale, certain real estate in Hot Springs, valued at $11,000, and appellee was to find a purchaser for said property at that price, or for the consideration of $6,000 and the assumption of an indebtedness secured by a deed of trust in the sum of $5,000. That about the 15th of November, Mr. Epps came to his office and said that he wished to buy or trade for a home in Hot Springs, that he had lands in this State and other States which he would be glad to exchange for property in Hot Springs, and that he had listed with him for sale real estate belonging to his clients and that if none of his own lands would suit a customer he could possibly make a trade on some of the lands listed with him. Appellee told Mr. Epps about appellant’s lots and stated to him that he thought he could negotiate a trade for some of his lands, and that he took him to the property, and Mrs. Meyer showed them through the house; that Epps was well pleased and he went with him to appellant’s store, and stated to Mm at the time that Mr. Epps owned lands in this and other States and wanted to trade for property in Hot Springs; that he had shown appellant’s property to Epps and hoped they could get together on seme of these lands, but if they could not that Eppis had lands 'belonging to others listed with him for sale or trade and they could possibly find something that they could get together on; that he said to appellant at the time that, if he and Epps traded for lands owned by Epps, or listed by others with him for trade, he would expect his commission, and appellant said, “I will take care of your commissions if Epps and I trade. I like to pay commissions,” .and that he left appellant and Epps discussing certain lands in Kansas owned by Epps, and that some time thereafter he called appellant over the phone and asked him how the trade was progressing, and was told, “The man you brought me 'didn’t trade for my property, but got me a man.” Appellant traded with one A. D. Swan who assumed the $5,000 mortgage debt and conveyed to Meyer certain lands owned by him. Epps testified that at the time he first met Holland the .Swan lands were listed with him, and had been for some time.
Appellant has not set out the instructions given by the court in this case, and we must assume that the case went to the jury under instructions correctly declaring, the law.
According to appellee’s version of this transaction, there was an express promise on appellant’s part to pay the commissions, the amount of which is not in controversy, if appellant traded with Epps for any lands owned by Epps, or listed with him for sale, and a sale was made by trading for certain lands owned by Swan, which were listed with Epps at the time the promise was made. The judgment of the court is, therefore, affirmed. | [
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Smith,. J.,
(after stating the facts). It was decided in the case of Sadler v. Cravens, 93 Ark. 11 (to quote from the syllabus in that case) that “Kirby’s Digest, § 1011, authorizing the county court to build a courthouse or jail whenever it shall think it expedient to do so, was not repealed by the subsequent statute (Kirby’s Digest, § 1502), providing that £no county court or agent of any county shall hereafter make any contract on behalf of the county unless an appropriation has been previously made therefor, and is wholly or in part unexpended. ’ ’ ’
Upon the authority of this case, the county court can order the construction of a jail even in the absence of any order to that effect by the quorum court, or of any appropriation by that court. And it may be true that the power of the county court to contract for the construction of a courthouse or a jail through proper orders of that court implies the power to make a preliminary contract with an architect for the preparation of plans for such buildings. But we are not required here to decide whether the county court has the right to make this preliminary contract with the architect where it has made no order determining the necessity for the construction of such building and its purpose to build it. We must assume that the terms employed in the agreed statement of facts are not used colloquially, but in their technical sense. This statement recites that the county judge did certain things, and the county court did certain other things, and this distinction shows those terms were employed advisedly. The county judge, and not the county court, made an order for the building of the jail, and there was never any appropriation by either the county court or the quorum court for that purpose. It does not.'appear that the county court undertook to make any contract ■with appellant for the preparation of these plans, al though such a contract was made by the county judge. The agreed statement of facts recites that appellant did the work under the directions of the county judge, but ■there was no county court order 'appointing him architect for that purpose. There is the recital, however, that the county court made -an order approving 'his plans, and this is the only order of the court upon which appellant could predicate any cause of action against the county. But the majority of the court think this order 'approving the plans did not make a contract, because it .did not order the construction of the jail, nor did it undertake to bind the county to make .any use of these plans. We can not interpolate anything into this agreed statement of facts which will add 'any validity to the recital that there was an order of the court approving the plans. That order does not undertake to bind the county to pay for these plans, and the judgment of the court below will, therefore, be affirmed. | [
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Wood, J.,
(after stating .the facts). The appellant, Missouri & North Arkansas Railroad Company was. in the hands of receivers, and the agents, through whose negligence appellee alleges his injury was received, were the agents of the other appellants and the appellant railroad company had no control over them. The appellant railroad company is, therefore, not liable. Memphis & Little Rock Railway Co. v. Stringfellow, 44 Ark. 322; Ark. Cent. Ry. Co. v. State, 72 Ark. 250.
The judgment against the appellant railroad company is reversed and the cause, as to it, is dismissed.
Agent Warner, who was in charge of the depot at Leslie, was the agent of the .express company and the receivers, whom we will, for convenience, hereafter treat and designate /as the appellants. They were maintaining the depot building in conjunction for the transaction of their business.
The court, .among others, gave the following instruction :
“It was the duty of the defendants using said depot to use ordinary care to keep it in a safe condition for the benefit of those who had a legal right to go upon said depot premises, and I instruct you that one having business to transact with the defendants, or either of them, had a legal right to go to the said depot, and I instruct you that if from the preponderance of the testimony that the said John Leslie bad /business to transact with said defendants, or either of them, that he had a legal right to go to .said depot; and if you find from /a preponderance of the testimony that the said Jo'hn Leslie was injured while upon the premises of the said defendants, and that it resulted from the failure of the said defendants to use ordinary care to keep said depot in a safe condition, then you will find for the plaintiff.”
The court gave other instructions which, in effect, told the jury that if the appellants, the receivers and the express company, knew that the dog was vicious and dangerous, and, with such ¡knowledge, kept the dog in the depot building whereby the appellee received the injury of which he 'Complained then the appellants would be liable.
These instructions considered together, as they /must be, were not prejudicial to appellants. The court properly instructed the jury under the evidence, on the question as to whether or not the receivers had exercised ordinary care to keep the depot building in a safe condition for those who had business to transact with them. See St. Louis & S. F. Rd. Co. v. Grider, 110 Ark. 437. Warner was the agent of both appellants. In maintaining the depot and in carrying on their business, his knowledge, therefore, was the knowledge of the appellants. Whether or not the dog was a vicious and dangerous one, and whether or not the agent, Warner, knew that he was a vicious and dangerous dog were issues of fact for the jury to determine. There was evidence to warrant a finding 'that the dog was vicious /and dangerous, and that appellant’s agent knew .of this fact. There was testimony also to warrant a finding to the effect that, knowing the vicious disposition of the dog, the appellant’s agent was negligent in not keeping him restrained or in not removing him from the depot in such manner as to prevent injury to those who had legitimate business to transact with appellants and who were injured while about such business, and therefore that the receivers were negligent in not beeping the depot in a safe condition.
The appellants complain because the court refused to give the following prayer for instruction:
“You are instructed that .the liability of 'an express company is not the same as that of an owner, because the company were bound by their contract to take and transport the deg .and keep it a reasonable time to deliver ever to the consignee, and -are not presumed to be liable because they kept or harbored the deg, as an absolute owner would do.”
This instruction was not applicable bo the facts of the case and was calculated to confuse and ¡mislead the jury. The general doctrine as to the owners of domestic animals is as follows:
If one knowingly keeps a vicious or dangerous domestic animal, one accustomed to bite mankind, he is liable for injuries done by such animal, without proof of negligence as to the manner in which the animal was kept and handled. The mere keeping of such an animal, knowing its vicious and dangerous qualities, is at the risk of the owner (except as to trespassers) 'and renders him liable in damages to one injured by such animal. Without any proof of negligence, the owner of such an animal, having knowledge of its vicious and dangerous propensities, will be held liable in damages for injuries done by it. See 1 Ruling Case Law, “Animals,” § § 33 and 59, and eases in note. 2 Cyc. 368 and note. Scienter in such eases is the basis of liability. F. F. Harris v. Carstens Pk. Co., 86 Pac. 1125, 6 L. R. A. (N. S.) 1164, and note.
■ The prayer for instruction ignored the evidence on the part of the ¡appellee which tended to prove that the dog was vicious and dangerous and that the appellants knew of that fact. The express company was a bailee for hire of the dog, and proof of scienter on its part brings it within the general doctrine above stated. Having in its possession the animal and knowing its vicious propensities, ¡as the jury were warranted in finding, the express ¡company was as responsible for its safe keeping and was to the same extent liable for injuries inflicted by the dog as if it had been the owner thereof.. “One who has charge of a vicious 'dbg, whether as owner or ¡bailee, knowing him to be vi'dions, must restrain him and if he fails to do so will be liable in damages to any .person injured thereby.” Marsel, by next friend, v. Bowman, 62 Iowa 57. See also, Frammell v. Little, 16 Ind. 251.
The appellants contend that the court erred in refusing to grant prayers on their part submitting to the jury the question as to whether or not the uncrating of the dog iand the manner of. keeping 'and handling the same by agent Warner was within the scope of his employment and the line of his duty. But the court did not err in refusing to grant these prayers, as they were abstract, and, under the evidence, such prayers would have been confusing.
There, was no testimony to warrant the court in submitting to the jury the issue as to whether the agent, Warner, in the manner of keeping and handling the dog, was acting within the scope of his employment. The evidence shows that the consignment had not been delivered. The express company still had the dog in its keeping at the depot, .and necessarily had to keep ■same so as not to cause injury to those who had business to transact with it. All these matters were proper too for the consideration of the jury on the issue as to whether or not the receivers were negligent in not maintaining the depot in a safe condition. There was no testimony to warrant the court in submitting to the jury the issue as to whether or not the agent, Warner, in his manner of handling the dog, was acting on his own responsibility and not as agent of the appellants. In Ms manner of handling the dog while the same was in the depot and undelivered to the consignee, the receivers were liable for failure upon his part to exercise ordinary care to see that the depot building was maintained in a safe condition for those of the public who might have business with them.
The express company having knowledge of the vicious and dangerous propensities of the dog, would be liable, as bailee for hire, for the injuries inflicted under the rule above stated, and the receivers would he lialhle because they owed appellee the duty to exercise ordinary care to maintain the depot in a safe condition, which would involve the duty of protection against the danger caused iby the failure of the express company to restrain the dog. See St. Louis, I. M. & S. Ry. Co. v. Shaw, 94 Ark. 15.
The appellants contend .that the act of the son of the lagent in removing the dog from the orate and of the agent himself in consenting for the dog to be taken from the .depot was not within the line of the agent’s duty, and that therefore .appellants are not liable and they cite Baker v. Kinsey, 38 Cal. 631, 99 Am, Dec. 438. In that case Baker sued Dyer and Kinsey to recover damages for personal injuries sustained from the bite of .a vicious dog- and recovered judgment against them. The testimony showed that Dyer was employed as keeper and collector of a toll bridge. Kinsey, Ms employer, was one of the proprietors of the bridge, and Dyer, without the knowledge or consent of Kinsey, procured a dog, wMle a pup, and kept Mm at the bridge as a companion because he had a fancy for dogs. The dog was vicious and .accustomed to bite mankind. He was not securely kept and was suffered to go at large, without guard or muzzle. His disposition was known to Dyer, but Kinsey never heard of the dog. The Supreme Court held that it was' not shown that the dog had been put there under Kinsey’s direction, and the nature of Dyer’s employment was not such as to authorize or reqMre it to be put there, and therefore reversed the judgment as to Kinsey. The facts clearly differentiate that case from this. There it was not the duty of Dyer to have and keep the dog. Here, as the agent of the express company, Warner was required to have and keep the dog, and, having knowledge of his vicious and dangerous habits, to keep him restrained. As the .agent of the receivers it was the duty of Warner to exercise ordinary care to see that the depot was kept in a safe condition. So as the agent of appellants Warner was acting strictly within the line of his duty in the manner in which he kept and handled the dog.
The judgment is correct and it is theref ore affirmed. | [
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Smith, J.,
(/after stating the facts). There is but little 'conflict in the evidence, and it is agreed that the decision of 'this case turns upon the interpretation given the bond sued upon. Various rules of construction are called /to our attention to enable us to discharge this duty. Appellee, of course, 'concedes that the' first sentence of the guarantee would impose an absolute liability, if it stood alone; but it is said that the effect of the subsequent recitals of the guaranty is to limit this liability, and to' make that liability contingent upon these subsequent recitals. If is a rule of construction that, if 'there is a repugnancy between general clauses and more detailed, specific clauses, the fatter will govern. But this, like all rules of construction, is intended to aid in-the ascertainment of the intention of the parties to the instrument construed. And this meaning is to be derived from a consideration of the whole instrument. However, we find here no such conflict between the opening sentence of this guaranty and the remaining recitals thereof, as requires us to give the words there employed any other than their ordinary meaning. The guaranty is first expressed in general terms and afterward with more detail and particularity, tout no actual conflict or repugnancy of recitals appears, and special provisions will not toe permitted to annul general provisions, where both can stand together, and 'the intention oif the parties .appears to toe that .they should iso stand.
In the constrnction of any instrument, where doubt arises as to its meaning, we may consider the contemporaneous agreements of the parties with respect to the same subject-matter, and when that is done in the instant case, we find that the bond sued on was executed in compliance with the contract under which the improvement was constructed. The material part of that contract is. set cut in the statement of facts, and there appears to he no doutot as to. ‘the character1 of the bond then contemplated. The language there employed appears to' be susceptible of only one construction. And if, in fact, such a bond was executed, as that coutract required, then we may be assured .of the proper construction to give it. There was no ether purpose in executing this bond. When the work wias completed there was no controversy about its having been done as required by the plans, and there is no such controversy now, and if this bond is to toe given a, construction which makes its exeention of value to the district, we must hold that it intended to guarantee the work against .the necessity for repairs for a period of five years. . -
The trouble with the street was that holes and cracks appeared in it and there was. a wearing away of its surface, and its foundation was defective. These defects appear to toe covered toy the terms of the guaranty.
Appellees insist that no liability should be imposed upon the contractor because the foundation used was approved by the engineer. The foundation was, indeed, thus approved; tout it was within the terms of the contract and was used without protest on the part'of any one. Thereafter the bond sned on was executed, in evident compliance with the construction contract, and no question was made that a foundation had been employed which ■would impose a burden the 'Contractor had not agreed to assume.
We think the proper construction of the bond sued on was that it was a guarantee that the street should remain in perfect condition for a period of five years, and that no repairs would be 'required within that time.
The sureties in this ease became such for a money consideration, and their liability is dependent upon ¡the liability of their principal.
It follows, therefore, that 'the court properly refused to render judgment in favor of appellees for the repairs made by the contractor, and 'the judgment of the court, dismissing appellants ’ canse of action for the cost of the repairs which ithe ¡contractor refused to make, is reversed, and as the cost thereof is undisputed, judgment will be rendered here for that amount. | [
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Smith, J.,
(after stating the facts). Appellant invokes the rule that, where the evidence as to the cause of death, or any other effect, leaves the question to conjecture between causes for which appellant would not be ’liable and a cause or causes for which it would be liable, the appellee must fail.
That this is the law is well settled by the decisions of this court. In the case of Railway v. Henderson, 57 Ark. 414, Justice Mansfield quoted with approval from the case of Smith v. Bank, 99 Mass, 605, the following language:/‘When the evidence tends equally to sustain either of two inconsistent propositions, a verdict in favor of the party bound to maintain one of them against the other is necessarily wrong.”
Verdicts can not be predicated upon conjecture, and to apply that principle to the facts of this case, it may be said that it is not sufficient that a reasonable view of the evidence is that the collision might have ■caused deceased’s injury. It is essential under the issues in this case that a preponderance of the evidence should show that his death resulted from the injury received in the collision. Such proof is not required; however, to exclude all doubt on the subject, nor is it required that the proof show the death could not, or that the death did not, in fact, result from a tumor, or some other cause not attributable to the collision. But it is sufficient if the evidence reasonably warrants the jury in finding from a preponderance of the evidence that deceased’s death did, in fact, result from an injury received in this collision. If that finding rests upon mere speculation or conjecture, it can not be 'said to be warranted by the evidence. A number of authorities on this subject were reviewed in the opinion in the recent case of Denton v. Mammoth Spring Electric Light & Power Co., 105 Ark. 161. And other authorities are cited in the more recent case of St. Louis, Iron Mountain & Southern Ry. Co. v. Hempfling, 107 Ark. 476. In this last named case there was quoted with approval, from the case of Settle v. St. Louis & S. F. Rd. Co., 127 Mo. 336, the following language: “In actions for damages on account of negligence plaintiff is bound to prove not only the negligence, but that it was the cause of the damage. This causal 'Connection must be proved by evidence, as .a fact, and not be left to mere speculation and conjecture. The rule does not require, however, that there must be direct proof of the fact itself. This would often be impossible. It will be sufficient if the facts proved are of such a nature, and are so connected and related to each other that the conclusion therefrom may be fairly inferred.”
Does the evidence in this case meet the requirements above stated? We think the jury’s finding is based upon evidence legally sufficient to sustain the verdict. Here there were no premonitory symptoms of an approaching tumor, which is shown to be a disease which very gradually makes its appearance and very gradually accomplishes its deadly work. Deceased left 'his home- a well man and returned within a week noticeably changed in his appearance. The only physician who testified in the case stated that appellant could have received the injury from which he died in this collision and testified that a collision was a very good place to get an injury such as, in his opinion, caused deceased’s death. Indeed, there is no cause assigned for deceased’s condition except that he did sustain an injury in this collision, and it is only surmise and conjecture that there might have been some other cause.
Under this state of the proof we do not feel disposed to overturn the verdict of the jury. The failure to have an .autopsy performed was a circumstance to be considered by the jury, but we can not say as a matter of law that that failure must defeat a recovery. The judgment is affirmed. | [
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Kirby, J.,
(after stating the facts). The proceedings for the establishment of this drainage district were had under the provisions of the Acts of the Legislature of 1909, as amended by Acts of 1911 (Acts 1909, p. 829,1911, p. 193).
Appellant’s first contention is that the circuit court erred in not dismissing the appeal from the county court for want of jurisdiction, claiming no affidavit had been made therefor and no order granting the appeal. The amended record shows, however, that an affidavit was made by appellant for appeal, stating it was. aggrieved by the order of the court overruling its remonstrance and exceptions to the report of the remonstrants assessing the 'benéfits .against it, etc., and the record also shows after the judgment establishing the district was made, and on the .same day that an appeal was prayed and granted. The contention is therefore without merit and the circuit court had jurisdiction of the cause.
It is next contended that the court erred in stating in the discussion with the .attorneys after overruling the motion of the drainage district to dismiss the appeal that plaintiff would have to show that a majority of residents and owners representing a majority of the acreage was in favor of the district, otherwise judgment would be in favor of the remonstrants and the finding of the county court reversed. It is insisted now that the trial court did not correctly understand the law relating to the establishment of drainage districts as shown by said announcement, and therefore erred in its findings of fact and judgment thereon. It calls attention to section 2 of the Acts of 1909 as .amended by the Acts of 1911 in support of this contention, which provides:
“If upon the hearing provided for in the foregoing section, the petition is presented to the county court, signed by a majority, either in numbers or in acreage, or in value, of the holders of real property within the proposed district, praying that the improvement be made, it shall be the duty of the county court to investigate, as provided in the preceding section, and to establish said district if it is of the opinion that the establishment thereof will be to the advantage of real property therein. ’ ’
It is true under the provisions of this law that the county court had authority to investigate the conditions and to establish the district prayed for and create the improvement, if it was of opinion that the establishment thereof would have been to the advantage of the owners of real property therein. And while it is also true that the 'circuit court found that the improvement would be of great benefit to the owners of some of the real property within the district, and that some of the lands were in need of drainage, it found further that the cost of the proposed drainage district was not reasonable, that a great majority of the land owners of the district, both in number and amount of land owned, were opposed to it, and that the establishment of the district would be unjust to them and reversed the judgment of the county court. The matter was for trial anew in the circuit court, which, of. course, had the same power to establish the district as the county court had. This court said relative to the exercise of the power given to establish a drainage district when not petitioned for by the majority in numbers, ownership or acreage of the lands proposed to be included, in Burton v. Chicago Mill & Lbr. Co., 106 Ark. 304: ‘ ‘ This is certainly a very great power vested in the court, and when exercised in the face of the failure of petitioners to secure the signatures of a majority either in number or acreage,, or value, there should be no uncertainty about it being to the advantage of the land owners; and under such circumstances an uncertainty should be resolved in favor of the owners of the property to be assessed, upon whose shoulders the burden of the improvement will rest.” . And this statement is now reaffirmed.
Without doubt great uncertainty existed about the establishment of the district being to the advantage of the land owners which the court properly resolved in favor of the owners of the property to be assessed and against the establishment of the district proposed.
There was much testimony^ showing that a great portion of the lands included in the district were composed of or underlayed with a whitish pipe clay and so unfertile as to be of little use for agricultural purposes. The evidence is amply sufficient to sustain the finding and judgment of the circuit court.
Neither is there any merit in appellant’s contention that the court erred in announcing that the case was sufficiently developed, and in declining to hear more testimony. Much testimony had already been introduced disclosing fully the condition, and after the matter had been so thoroughly developed, it was within the discretion of the trial judge to decline to hear further testimony. It was a public matter being investigated, and after the great amount of testimony was heard that the record shows to have been introduced, other testimony would have necessarily been along the same lines, and the court was noti,required in the exercise of a sound discretion to continue the investigation until every land owner in the district could be heard.
We find no prejudicial error in the record, and the judgment is affirmed. | [
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Kirby, J.,
(after stating the facts). It is contended that the court erred in admitting the testimony relative to the action of the hounds in taking the trail at the place where 'tibe hogs escaped and following it to defendant’s house, because there is no sufficient showing of the qualification of the dogs to accurately trail human beings. Mr. Smith, the president of the bank, who telegraphed for the dogs, stated not only that he had heard a good deal about them running criminals down, that the reputation of the dogs for running' criminals was good, but also that he -got the dogs and had seen them trail some criminals one time from Wheatley to Cotton Plant, and that they did not catch them, because they.took the train there; that he knew the dogs used in this case and they were the same ones.
We think this was a sufficient showing of the qualifications of the hounds, to admit the testimony of their performance in taking the trail at the gap where the hogis were known to have escaped and where witness testified they had been driven out after the posts were raised and the staples pulled by himself ¡and the defendant, and following it around and across the prairie to Holulb ’>s house. For a discussion of the admissibility and effect of such testimony, see Pedigo v. Commonwealth, 103 Ky. 41, 42 L. R. A. 432, 82 Am. St. 566, 44 S. W. 143; Sprouse v. Commonwealth, 132 Ky. 269, 116 S. W. 344; State v. Norman, 153 N. C. 591; Spears v. State, 16 L. R. A. (N. S.) (Miss.) 285, 46 So. 166.
It is next contended that the evidence is not sufficient to sustain the verdict. It is quite voluminous and contradictory to some extent. We do not regard it necessary to -set it cut more fully or further analyze it, it being, in our opinion, amply sufficient to support the ver 'diet. The iustruetions upon the whole ease fairly submitted the issues to the jury.
Finding no prejudicial error in the record, the judgment is affirmed. | [
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McCulloch, C. J.
The Eighteenth Judicial Circuit was created by an act of the General Assembly of 1911, Act 114, p. 78, which contained the following provisions concerning the appointment of a judge and a prosecuting attorney:
“Sec. 3. That the Governor shall appoint a circuit judge to preside over and a prosecuting (attorney for the Eighteenth Judicial Circuit, who shall hold their respective offices until their successors shall be elected and qualified, in conformity with the provisions of the general laws of the State of Arkansas applicable thereto; such circuit judge and prosecuting attorney shall be residents of said circuit, shall possess all the qualifications required by law of circuit judges and prosecuting attorneys and shall perform all the duties required by law of circuit judges and prosecuting attorneys.”
The respondent, Calvin T. Cotham, was commissioned by the Governor to fill the office of circuit judge, his commission, according to the express language thereof, being made to run until the next succeeding general election. At the general election in September, 1912, he submitted his name to the voters of the district as a candidate for that office, .and was elected. His claim is that his election at that time was for a full term of four years from the date of his election, or rather from October 31,1912, the date on which he was commissioned pursuant to the election. At the general election in September, 1914, an election was held for the office of judge of •the circuit, and the relator, Scott Wood, received the highest number of votes 'cast, and has been duly commissioned by the Governor. He claims that the tenure of Judge Cotham ended on October 30, 1914, the day on which the terms of the other circuit judges of the State ended, and he has filed his petition in this court against Judge Cotham for a writ of quo warranto to determine by what authority the latter assumes to exercise the functions of the office of judge of that circuit.
It is conceded by learned counsel on both sides that the creation of the new judicial circuit caused a vacancy to exist, within the meaning of the Constitution, in the office of judge of that circuit. This court has so decided. State ex rel. Smith v. Askew, 48 Ark. 82.
It will be noted that the Legislature authorized only a temporary filling of that vacancy by executive appointment, and left the succession to be supplied in conformity to existing laws without attempting to define or to reiterate them. The lawmakers could not have done otherwise, for the tenure of office and the method of filling a vacancy in unalterably fixed by the Constitution. Cobb v. Hammock, 82 Ark. 584; State ex rel. Attorney General v. Stevenson, 89 Ark. 31.
The Constitution of 1874 (section 17, article 7) provides that “the judges of the circuit courts shall be elected by the qualified electors of the several circuits and shall hold their offices for the term of four years. ’ ’ Terms of elective offices created by the Constitution began on the date the result of the election to fill those offices was officially declared, which was October 31, 1874, and the terms end in regular cycles of the periods named by the Constitution as duration of respective terms. Smith v. Askew; supra; Jewett v. McConnell, 112 Ark. 291, 165 S. W. 954.
Section 50, article 7, of the Constitution of 1874, reads as follows1: “All vacancies occurring in any office, provided for in 'this article shall be filled by special election save that in case of vacancies occurring in county and township offices six months, and in other offices nine month, before the next general election; such vacancies shall be filled by appointment by the Governor.”
In the instance now under consideration, the vacancy occurred more than nine months before the next succeeding general election and the appointment by the Governor ran temporarily until a -special election should be held. If the vacancy had occurred within nine months bef ore the next general election, the question w-ould have been presented whether the appointment ran to the end of the term of the office or merely to the next succeeding general election; but no such question is presented in this case. No election was held prior to the general biennial election of. 1912, when Judge Cotham was elected. It was proper, therefore, for an election of circuit judge to be held at that time — none having been previously held— but the .question of the tenure to follow from that election is presented now for our determination. What we have to decide is whether the vacancy in the office of judge brought about by the creation of the new circuit was for an unexpired term which ended-coincident with the expiration of the -term of the other circuit judges of the State, as contended by the relator, or whether, as contended by the respondent, a full term began with the first general election (1912) after the creation of the new circuit.
The -argument of learned counsel for the respondent, as we interpret it, is that a vacancy in the office does not necessarily imply the interruption of -a fixed term, leaving an unexpired portion thereof, but that a full term for the constitutional period springs into being with the -creation of a new office unless limited by the Constitution itself. The result sought to be adduced from this predicate is that a full term began at the time for commissioning officers elected at the first regular biennial election after the creation of the office, and that -an interim occurred from the creation of the district until that time, which could be and was in this instance filled by an appointment by the Governor. The position is untenable and one which we think is inconsistent with the argument made, for if, as contended, a full term sprang into being by the creation of the office, it began at once and ran for the full term -of four years. This, however, is' directly in conflict with the decision of the court in Smith v. Askew, supra, where it was held that the office was created by the Constitution, and not by the Legislature, and that a full term did not begin to run from the first election. In that ease the court thoroughly committed itself to the doctrine of convenience in uniformity in the election of officers, and while the facts of that case were slightly different from the facts in the present case, it necessarily results from that decision that upon the creation of a new circuit there is evolved into 'operation the office of circuit judge with .an unexpired term ending with the period prescribed in the Constitution for the ending of the terms of other circuit judges in the State. Indeed, the facts in the case of Smith v. Askew were not materially different from those in this case. The new circuit was, in that case, created by an act of the G-eneral Assembly of 1883, and the act contained a provision for the election of a judge of the circuit .at a special election on a day named, 'and contained the further provision that “the terms of office of said officers shall expire at the same time that the terms of office of other circuit judges and prosecuting attorneys expire.” Judge Askew was elected at the special election pursuant to the terms of the statute, and held office until the regular election of 1886, when Judge Smith was elected, .and, thereafter, on October 31, 1886, was commissioned for a full term of four years. The contention on behalf of Judge Askew was that his election was for a full term of four years from the time he was elected in June, 1883, and that he held over from the expiration of that term until his successor could be elected at the biennial election of 1888. He did not submit himself for re-election, as did Judge Cotham, at the first biennial election succeeding the creation of the district. But that is immaterial, for the election of Judge Askew put him in office for the unexpired term, if there was one. There is no intimation in the opinion in that case that the regular full term began with the election of 1884, expiring at the election of 1888, and that the election of Judge Smith in 1886 was to fill an unexpired portion of the term. The clear inference, on the contrary, is that Judge Smith was regularly elected for the full term, and it is .a part of the judicial history of the State that that interpretation has ever since then been placed upon it, and the incumbent of the office of judge in that circuit has been regularly elected for a full term in cycles of four years running from the election of Judge Smith in 1886.
We are not, however, forced to mere inferences as to what the court meant to decide in Smith v. Askew, but the views here announced are in accord with the express language of the opinion itself. After quoting the statute, which specified that “the terms of 'office of said officers shall expire at the same time that the terms of office of other circuit judges .and prosecuting attorneys expire,” the court said: “However, we lay no stress upon this legislative declaration, further than as it shows what the General Assembly understood what the Constitution meant. For, the term of office of circuit judge being, as we have seen, fixed by the organic law, and b.eyond the control of the Legislature, no enactment that they might indulge in would cause the term to end a day sooner or a day later. All that portion of the third section of the act above quoted, which prescribes the duration of the term, and the time when the office is to be filled by a second election, may therefore be stricken out as superfluous, these matters being regulated by the Constitution .and ' general laws of the State. ’ ’
In McMahan v. State, 102 Ark. 12, we also declared that the policy of uniformity in terms of office is favored by our statutes.
The provision in section 17, article 7, of the Constitution that “Judges of the circuit court shall be elected by the qualified electors of the several circuits, and hold their office for the term of four years” refers, not to any election held by the people, but to the election held at the expiration of the term prescribed by the Constitution. And, as we have already seen, the term for circuit judges began on October 31, 1874, and ends in regular cycles of four years.
It follows, therefore, from what we have said, that upon the creation of the Eighteenth Judicial Circuit there' resulted .a vacancy in the office of circuit judge for an unexpired term ending on October 31, 1914, and that relator has been duly elected and commissioned for a full term beginning on the expiration of that unexpired term. He is entitled to the office, and a judgment of ouster will, be rendered against the respondent. It is so ordered.
Wood, J., not participating.
Smith, J., dissents. | [
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CLIFF HOOFMAN, Judge.
|, Acker Construction, LLC, appeals from a judgment entered by the Scott County Circuit Court in favor of appellee, Hanh Billy Tran, in the amount of $68,307 for the cost of repairing seven chicken houses that appellant built for appellee and for appellee’s lost profits resulting from appellant’s delay in performance. On appeal, appellant raises four points: (1) the trial court erred in permitting appellee to introduce the testimony of an expert witness that appellant had hired to inspect the allegedly defective chicken houses before trial; (2) appellee’s proof of lost-profit damages was legally insufficient; (3) the trial court abused its discretion in denying appellant’s motion for a new trial because the jury’s verdict for the cost-of-repair damages was not supported by the evidence; and (4) the trial court erred in refusing to permit appellant to introduce evidence of settlement negotiations. We affirm on all points.
In September 2005, appellant entered into a transaction set forth in two written contracts to build seven chicken houses for Sharon Wadkins and her husband in Wal-dron, |2Arkansas. One contract provided for the construction of four chicken houses for $390,340. The contract set forth the amounts that appellant could draw upon the completion of various stages of construction, with a final payment of $39,032 due upon completion. The other contract was for the completion of three chicken houses for $292,755 and also provided for draws and a final payment of $29,275 upon completion. Both contracts stated that appellant would not be liable for any consequential damages as a result of any defect in products or workmanship.
In November 2005, Sharon and Rory Wadkins assigned their interest in the contracts to appellee, who purchased the real estate upon which the chicken houses were to be built. Appellee refused to make the final payments because of his belief that appellant had given a defective performance. On August 28, 2006, appellant filed a notice of intent to file a lien on the property. On April 27, 2007, appellant filed suit against appellee to recover the $68,307 due on the contracts. Appellee filed a counterclaim for breach of contract, asserting that appellant had failed to timely complete the project. He alleged that, instead of building the four chicken houses to their completion, so that birds could be received (from Tyson) and income generated while the additional three chicken houses were built, appellant worked on all seven houses at one time and did not complete them for almost ten months, depriving ap-pellee of the income he had expected while the additional three houses were being built. He also alleged that appellant had installed inadequate insulation, thereby reducing the life expectancy of the buildings; that the footings and posts were not built according to the engineer’s drawings; and that the cool-cell areas were not constructed with [^treated wood, as required by the engineer’s drawing. He also asserted that work needed to be done to correct a leaking roof, damaged and rotting ceilings, defective door locks, and a damaged door. Appellee asked for damages for the cost of repairs and for the loss of income.
Appellant engaged an expert as a consultant. In the fall of 2008, its representatives and attorney met with the expert, Clinton Holland of H & H Construction, with appellee at the farm so that Holland could review what appellee perceived to be the defects in the broiler houses. His estimate of the cost to make the repairs requested by appellee was $34,716.15. Later, appellant informed appellee that it had decided not to call Holland as a witness at trial. After appellee issued a subpoena for Holland to appear at trial, Holland called appellee’s attorney and informed him that he did not want to attend and suggested that, instead, he send a copy of his estimate of repairs by facsimile. Holland sent this information but did not otherwise discuss his testimony with appellee’s attorney.
Appellant filed a motion in limine to exclude testimony about appellee’s lost profits on the ground that they were speculative and were consequential damages, for which it had not agreed to be liable. Appellee responded that the lost profits he sought were not consequential damages, but were the natural, proximate result of appellant’s breach of contract. He stated that Sharon Wadkins would testify that she had informed Henry Quinn, appellant’s salesman, that she would only enter into a contract with appellant if it would agree to build four chicken houses first so that she could have birds in place and be drawing income while the other three chicken houses were being completed. He also stated that he and Wadkins would testify about the calculation of lost-profit damages with sufficient 14 specificity to take the claim out of the realm of speculation. Appellant filed a second motion in limine to exclude the testimony of Clinton Holland on the ground that his opinion was privileged under Arkansas Rule of Civil Procedure 26(b)(4)(B). In response, appellee asserted that Rule 26 did not apply to this situation because Holland’s identity as an individual with knowledge of the facts was already known to appellee.
On the first day of trial, the parties argued about the motions in limine, as well as the evidence (consisting of two letters from appellee to appellant) that appellant sought to introduce about settlement negotiations. The trial court denied the motions in limine and refused to admit the evidence of settlement negotiations. Henry Quinn; Randy Acker, appellant’s owner; Buddy Bean, whose company sold the lumber used on the chicken houses; Calvin Bain, who served as the second supervisor on the project; Baron Bates, whose company installed the additional insulation to address appellee’s concerns; Johnny Kean, whose employer installed the poultry equipment in the chicken houses; Stanley Forrest (through deposition), whose boss was Johnny Kean; and Dustin Womack, whose business originally installed the insulation, testified on behalf of appellant. Appellee testified and presented the testimony of Larry Schmalz, an engineer; Sharon Wadkins; Clinton Holland; and Trey Gage, a loan officer for Arvest Bank, which had provided funding for the project. Appellant called Trey Gage in rebuttal. At the conclusion of trial, appellant moved for directed verdict on lost-profit damages, which the trial court denied.
The jury returned a verdict for appellant of $0. On another form, the jury returned the following verdict:
15We, the jury find by a preponderance of the evidence in favor of Hanh Billy Tran and award him damages against Acker Construction, LLC in the amount below for the following element of damage.
COST OF REPAIR: $ $34,716.00
LOST PROFITS: $33591.00
Awarded to Tran
Lien released?
M. Tran in turn pays Acker the $68,307 he owes. Lien to be released. NINE OF TWELVE JURORS WHO AGREE TO THE ABOVE:
Mr. Tran to pay the 68307 upon release of the lien.
On October 29, 2010, the circuit court entered the following judgment:
II.
The jury herein entered an award of damages in favor of Billy Tran against Acker Construction in the amount of $136,614.00 and further directed that out of this $136,614.00, Mr. Tran was to pay Acker Construction $68,307.00 as an offset for the release of the lien filed by Acker Construction against Mr. Tran’s property. The jury further specifically found that of the remaining $68,307.00 of said judgment, $34,716.00 was attributable to the cost of repairs and $33,591.00 was attributable to lost profits. Attached hereto as Exhibit “A” is a copy of the verdict form rendered in favor of Hanh Billy Tran in this matter. Attached as Exhibit “B” is a verdict form awarding $0.00 in damages to Acker Construction, LLC.
III.
The net result of this verdict is a judgment in favor of Hanh Billy Tran against Acker Construction in the amount of $68,307.00 consisting of $34,716.00 for the costs of repairs and $33,591.00 in lost profits. This judgment shall bear interest at the rate of 6% per annum until paid. Interest shall accrue from the date of the entry of this Judgment herein and continue until said judgment is paid.
IV.
The lien filed herein by Acker Construction against Hanh Billy Tran is hereby declared void and set aside, the same being attached hereto and incorporated herein as Exhibit “C”.
| ¡Appellant then filed a motion for judgment notwithstanding the verdict (JNOV) and for new trial, which the trial court denied. Appellant filed a timely notice of appeal from the judgment and from the order denying the posttrial motion.
In its first point, appellant argues that the trial court erred in permitting appellee to call Holland as a witness. It asserts that in doing so, appellee made an “end run” around the privilege existing between a lawyer and a consulting expert found in Arkansas Rule of Civil Procedure 26(b)(4)(B) (2011). The relevant portion of this rule states that a party may discover facts known or opinions held by an expert who has been retained by another party in anticipation of litigation or preparation for trial, and who is not expected to be called as a witness at trial, only upon a showing of exceptional circumstances under which it is impractical for that party to obtain the facts or opinions on the same subject-by other means. The decision on whether to allow a witness to give expert testimony rests largely within the sound discretion of the trial judge, and we will not reverse that determination absent an abuse of discretion. Richardson v. Union Pac. R.R. Co., 2011 Ark. App. 562, 386 S.W.3d 77.
The trial court ruled correctly on this issue because Rule 26, which is a rule of discovery, does not apply to this situation; appellant voluntarily disclosed Holland to appellee and brought him to inspect appellee’s chicken houses in appel-lee’s presence. Further, appellant’s voluntary disclosure that Holland was an expert in this subject and that he had an opinion about the repairs, based upon his personal inspection, amounted to a waiver of any possible privilege under this discovery rule. Waiver is the intentional relinquishment of a known right, done with the intent to forever be deprived of its benefits. Spann v. Lovett & Co., 2012 Ark. App. 107, 389 S.W.3d 77. It may occur where a person takes action that is inconsistent with the right or his intention to rely on it and is ordinarily a question of fact. Id. Additionally, a party cannot complain of action he has induced, consented to, or acquiesced in. Neel v. Citizens First State Bank of Arkadelphia, 28 Ark.App. 116, 771 S.W.2d 303 (1989). Rule 26(b)(5), which addresses situations where a party inadvertently discloses information without intending to waive a claim of privilege or attorney work product, does not apply because this disclosure was not inadvertent.
Even if Rule 26(b)(4)(B) had applied, appellee’s use of Holland as an expert was within the exception to that rule, which permits discovery upon a showing of' exceptional circumstances under which it is impractical for the party seeking discovery to obtain facts or opinions on the same subject by other means. Appellee’s attorney informed the trial court that he was unable to obtain another expert to testify about the repairs. Appellee testified that he had called at least ten different contractors that built chicken houses to give him an estimate of the cost of repairs and that they had all turned him down after he told them about appellant’s involvement. Additionally, the trial court made sure that the jury was not informed that appellant had procured Holland’s opinion as a consulting witness and had chosen not to call him as a witness. See Ark. State Highway Comm’n v. Johnson, 300 Ark. 454, 780 S.W.2d 326 (1989). The trial court did not abuse its discretion in this ruling, and we affirm on this issue.
In its second point on appeal, appellant argues that the trial court erred in permitting appellee to present evidence of lost profits, which it contends are consequential damages that | smay only be awarded if they were within the reasonable contemplation of the parties (the “tacit-agreement” test). Appellant contends that there was no breach and that lost profits were not within the reasonable contemplation of the parties in this case because they did not agree on a date of completion; therefore, the trial court should have granted its motion for directed verdict or JNOV. Appellant further contends that ap-pellee’s proof of lost-profit damages was legally insufficient because the calculations were based upon speculation; that this business was a new type of project that Tyson had never done before; and that appellee’s calculations, which were based upon his first year in business, were inadequate because they did not cover a long-enough period of time. We disagree.
A directed-verdict motion is a challenge to the sufficiency of the evidence, and when reviewing the denial of a motion for a directed verdict, we determine whether the jury’s verdict is supported by substantial evidence. Spann, supra. The same rule applies to motions for JNOV. Gassman v. McAnulty, 2009 Ark. App. 471, 325 S.W.3d 897. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without having to resort to speculation or conjecture. Spann, supra. When determining the sufficiency of the evidence, we review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Id. We do not try issues of fact but examine the record to determine whether there is substantial evidence to support the jury’s verdict. Id. Thus, when testing the sufficiency of the evidence on appellate review, we need only consider the testimony of appellees and evidence that is most favorable to appel-lees. Id. We defer to |3the jury’s resolution of the issue unless we can say that there is no reasonable probability to support the appellee’s version. Id.
The evidence supported appellee’s position that the parties agreed that four houses would be completed first. Questions of fact relating to the formation of contracts are for the trier of fact to determine, Ingersoll-Rand Co. v. El Dorado Chem. Co., 373 Ark. 226, 283 S.W.3d 191 (2008), and conclusions concerning the true intent of the parties to the agreement primarily involve issues of fact. Cobren v. Anderson, 2011 Ark. App. 477, 385 S.W.3d 319. Whether the parties agreed that appellant was to first build four houses to completion before beginning the other three was a question of fact. Taylor v. George, 92 Ark.App. 264, 212 S.W.3d 17 (2005). A court may look to the conduct of the parties to determine their intent and to give substance to indefinite terms of a contract. Id.
Sharon Wadkins testified that she insisted to Henry Quinn that she would accept appellant’s bid only if it would agree to build four houses to completion before building the remaining three houses, so she could have the birds from Tyson in place in the first four houses and be drawing income; this schedule would generate a quicker stream of income and reduce the amount of interest on the loan. Wadkins also stated that, in her twenty-five years as a banker, she had seen this type of transaction handled this way in the past.
Further, the contract’s failure to specify a completion date was not significant. The rule is well established that, where there is no provision as to the time of the performance of the contract, the law implies that it must be performed 'within a reasonable time. Id. What would be a reasonable time depends upon the intention of the parties at the time the contract Imwas made, the facts and circumstances surrounding its making, or, in general, what was contemplated by the parties at the time. Id. Both Henry Quinn and Randy Acker testified that a reasonable time frame to build a chicken house was three weeks. Sharon Wadkins stated that Quinn had told her that appellant would start on the project with a big crew and complete it quickly. Thus, the jury had before it evidence of a reasonable time frame in which the houses could have been completed.
Additionally, under the facts of this case, the lost-profit damages were not consequential damages. In general, damages recoverable for breach of contract are those damages that would place the injured party in the same position as if the contract had not been breached. Deck House, Inc. v. Link, 98 Ark.App. 17, 249 S.W.3d 817 (2007). Consequential damages are such damages, loss, or injury as does not flow directly and immediately from the act of the party, but only from some of the consequences or results of such act. Id. Thus, lost profits have been held to be consequential damages when they do not flow directly and immediately from breach of a contract but flow from some consequence or result of the breach. Id. In order to recover consequential damages, a plaintiff must prove more than the defendant’s mere knowledge that a breach of contract will entail special damages to the plaintiff; it must also appear that the defendant at least tacitly agreed to assume responsibility. Id. However, lost profits are not always consequential damages; sometimes, they may be the natural, proximate result of a breach of contract, and in such a case, the “tacit-agreement” rule does not apply. Id. Here, Sharon Wad-kins’s testimony demonstrated that the lost profits were the natural, proximate result of appellant’s breach of its agreement Into first build four houses before commencing work on the other three houses.
We also hold that the evidence of lost-profit damages offered by appellee was sufficiently reliable. While lost profits will not be allowed as damages if the trier of fact is required to speculate as to the fact or amount of profits, less certainty is required to prove the amount of lost profits than is required to show that profits were lost. Spann, supra. If it is reasonably certain that profits would have resulted had the contract been carried out, then the complaining party is entitled to recover. Id. Loss may be determined in any manner that is reasonable under the circumstances. Id. The fact that a party can state the amount of damages he suffered only approximately is not a sufficient reason for disallowing damages if, from the approximate estimates, a satisfactory conclusion can be reached. Id. It has also been held that damages may be approximated, that a damage figure will be upheld if an amount approximating that figure can be ascertained from the evidence, and that a damage award need not correspond in amount to the proof adduced by either party. Id. When, from the nature of the case, the amount of damages cannot be estimated with certainty, or only a part of them can be estimated, the question should go to the jury. Id.
Sharon Wadkins, who is a senior vice president of lending (primarily commercial) with Community National Bank in Waldron, testified that she had been in that business for twenty-five years; that she had dealt with projects like the one involved in this case; and that she had personally operated chicken houses. The trial court believed that, based upon her experience as a banker and as an operator of chicken houses, while dealing with Tyson and other companies, she had acquired sufficient experience to formulate an opinion about | ^appellee’s lost profits. Wad-kins stated that the “grow-out” period with Tyson was thirty-eight days per flock of birds, at which time Tyson would pick them up and, soon after, send a check and put in a new batch of birds. Wadkins stated that, after calculating the gross income from each batch, less twenty-five percent in expenses, the profit should have been $28,714 per flock. She testified that appellant’s delay probably caused appellee to lose the income from two, possibly three, batches of chickens. She stated that for a loss of two flocks, the lost profits would have been $57,428.57. Further, Wadkins estimated the additional interest incurred by appellant’s delay at $14,441.18. Appellee testified that he calculated his lost profits by looking at the first three batches that he had produced in 2006, subtracting expenses from his gross income. He stated that, because appellant did not build four houses first before completing the next three houses, he had lost either $68,264.36 for two batches or $94,896.54 for three batches of chickens. Thus, there was substantial evidence to support the jury’s award of lost-profit damages, and we affirm on this point.
In its third point, appellant argues that the trial court abused its discretion in refusing to grant its motion for new trial based on the cost of repairs under Arkansas Rule of Civil Procedure 59(a)(6), which provides that a new trial may be granted when the verdict is clearly contrary to the preponderance of the evidence. Appellant contends that it substantially performed under the contract and was, therefore, entitled to recovery of the contract price, less the cost of repairs as established by appellee. Arkansas Rule of Civil Procedure 59(a) |1S(2011) provides that a court may grant a new trial for any of several enumerated grounds materially affecting the substantial rights of a party, including when the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law. The trial court’s discretion to grant a new trial under Rule 59 is necessarily broad and will not be overturned on appeal in the absence of an abuse of discretion. Williams v. Liberty Bank, 2011 Ark. App. 220, 382 S.W.3d 726. Given the standard of review, the trial court’s determination to grant or deny a motion for new trial is almost never overturned on appeal. Id.
Appellant misunderstands the jury verdict. The trial court interpreted the verdict as providing that appellant was entitled to the $68,307 due under the contract and that the jury found that appellee’s total damages were $136,614, against which the $68,307 was to be offset; thus, the remainder of $68,307 was the amount due to appellee. Of the net verdict, the Injury attributed $34,716 to the cost of repairs and $33,591 to lost profits. Therefore, it is apparent that the jury found that appellant did substantially perform and that it was entitled to $68,307; however, it also determined that appellee’s total damages were double that amount, leading to a judgment in favor of appellee. Because, as discussed above, the evidence offered by-appellee supports the $136,614 amount in total damages, the trial court did not abuse its discretion in denying a new trial on this basis.
In its fourth point, appellant argues that the trial court erred in denying its request to enter into evidence appel-lee’s statements about compromise contained in two letters. In an October 7, 2006 letter to Henry Quinn (Plaintiffs Exhibit 22) appellee stated:
Regarding to our conversation over the phone earlier today, I believe someone is interfering with our goal to accomplish this insulation matter to meet the term of the two contracts rated R-19. Someone was instructing the insulation crew to blow in certain number of bags into the attic, instead of blowing in enough insulation throughout the attic rated R-19. You know, I wanted to pay Randy Acker as bad as he want his security payment. Therefore, you need to make it clear to the insulation crew that they have to do it right according to the term of the contract.
I only checked House Number 3, 4, 5, 6, within five feet from the corner the insulation is about 3 to 4 inches thick. I have asked them to go back to blow in more insulation to 5 thick, instead they call Steve and Steve called you to B.S. a deception method. The insulation crew has until Wednesday October 11, 2006. Also, since the lien had been filed, I need a copy of filed release of lien than I will release the security payment.
On December 4, 2006, appellee sent the following letter (Plaintiffs Exhibit 23) to appellant’s attorney:
In regarding to your imprudent “as is” letter, your client’s scatterbrained that created the problem to begin with, don’t tell me about breach of contract. Your client blew in additional 843 bags of insulation in the attics; still your client did not full fill the terms of the contracts. In every house, about one to two feet from the corners the insulation is about 3 inches thick.
Iifil am a man of honor, I told Henry Quinn that upon receiving an original certified Release of Lien and I will release the full and final payments of $29,275.00 and $39,032.00. I am sure that Arvest Bank wanted a copy also.
The trial court permitted Plaintiffs Exhibit 22 to be entered into evidence in a redacted form and excluded Plaintiffs Exhibit 23. Appellant contends that it is entitled to a JNOV or a new trial because of this error.
Arkansas Rule of Evidence 408 (2011) provides:
Evidence of (1) furnishing, offering, or promising to furnish, or (2) accepting, offering, or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for, invalidity of, or amount of the claim or any other claim. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion if the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Appellant argues that it should have been able to introduce this evidence because appellee was able to state before the jury that it had filed a “false lien” against his property. It also argues that it had wanted to use the letters to impeach appel-lee’s testimony about the alleged defects in the buildings. Appellant states: “The evidence would have shown that Mr. Tran was satisfied with the performance by Acker to the extent whereby Mr. Tran was willing to pay the remaining contract price in order to fully satisfy the lien which was filed on his property.” However, the attorney to whom appellee directed his December 2006 letter was not present to testify. Appellee took the position below and on appeal that, although he stated in the letters that he would make the payments due on the contract when the lien was released, he did not do so because the paperwork appellant sent him included a full release of 11fiall claims; this was not acceptable because he had never agreed to release his right to sue for lost profits resulting from the delay and for the defective construction.
Evidence of conduct or statements made in compromise negotiations are not admissible on the issue of liability. Baugh v. Johnson, 6 Ark.App. 308, 641 S.W.2d 730 (1982). Rule 408 does not prohibit such evidence when it is introduced for any other reason. Ozark Auto Transp., Inc. v. Starkey, 327 Ark. 227, 937 S.W.2d 175 (1997).
The purpose of Rule 408 is to promote complete candor between the parties to the settlement negotiations but not to protect false representations. Thus, when a party has made a statement at trial which is inconsistent with a statement made during settlement negotiations, the inference is that one of the statements is knowingly false.
Missouri Pac. R.R. Co. v. Ark. Sheriffs Boy’s Ranch, 280 Ark. 53, 64, 655 S.W.2d 389, 395 (1983). Even if evidence is offered for a purpose other than those prohibited, and Rule 408 does not bar its introduction, that does not mean that the evidence is automatically admissible. McKenzie v. Tom Gibson Ford, Inc., 295 Ark. 326, 749 S.W.2d 653 (1988). Such evidentiary rulings are within the sound discretion of the trial court and we will not set them aside absent a manifest abuse of that discretion. Ozark, supra.
We believe that the statements that ap-pellee made in these letters were not demonstrably inconsistent with his testimony at trial and that their introduction would have served little purpose other than to demonstrate appellee’s willingness to settle the claims; therefore, they were properly excluded under Rule 408. Because the trial court did not abuse its discretion in this ruling, we affirm it. See Swindle v. Lumbermens Mut. Cas. Co., 315 Ark. 415, 869 S.W.2d 681 (1993).
Affirmed.
PITTMAN and WYNNE, JJ., agree.
. When a contractor is in default by having failed to complete the contract, he can recover in spite of his breach if his performance was sufficiently substantial. Roberts Contracting Co. v. Valentine-Wooten Rd. Pub. Facility Bd„ 2009 Ark. App. 437, 320 S.W.3d 1. If omissions or deviations from the contract are inadvertent or unintentional; are not due to bad faith; do not impair the structure as a whole; and are remediable without doing material damage, substantial performance permits the contractor to be compensated, with deductions from the contract price. Id. Substantial performance cannot be determined by a mathematical rule relating to the percentage of the cost of completion, and there is no precise formula to use. Id. In the case of a building contract, the difference may be in quality of workmanship and materials. Id.
The issue of substantial performance is a question of fact. Id.
In determining whether performance is substantial, the following considerations are significant: (1) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (2) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (3) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (4) the likelihood that the party failing to perform or offer to perform will cure his failure, taking account of all the circumstances, including any reasonable assurances; and (5) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing. Id. | [
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KAREN R. BAKER, Justice.
|, This case involves a question of Arkansas law certified to this court by the United States District Court for the Eastern District of Arkansas in accordance with our Supreme Court Rule 6-8 (2011), and accepted by this court on July 27, 2011. See McMillan v. Live Nation Entertainment, Inc., 2011 Ark. 302, 2011 WL 3212267 (per curiam). The certified question is as follows:
Whether Arkansas Code Annotated section 5-63-201 is applicable to an exclusive agent of a public facility who sells music entertainment tickets that include in the price of the ticket additional fees, resulting in the price of the ticket being more than the face value and advertised price of the ticket?
We conclude that the answer is yes, section 5-63-201 applies to an exclusive agent who sells tickets that include in the price of the ticket additional fees.
Corey McMillan, individually and on behalf of a purported class, filed a complaint against Live Nation Entertainment, Inc., and Ticketmaster, L.L.C. d/b/a Ticketmaster [2(colIectiveIy Ticketmaster) alleging that Ticketmaster charged fees in excess of the printed ticket price to musical or entertainment events in Arkansas. McMillan contended that in order to attend a musical event at Verizon Arena (Verizon) he was required to buy his four tickets from Ticketmaster, which charged him $220.60, although the face amount of each ticket was $42.75. Each ticket ultimately cost $55.15, and the charges in addition to the face amount of each ticket were designated as a $2.00 per ticket facility charge, a $9.40 per ticket convenience charge, and a $4.00 processing fee for the entire order. McMillan asserted that the additional charges violate Arkansas Code Annotated section 5-63-201(a)(1)(B) (Repl. 2005), which makes it unlawful for any person, corporation, firm, or partnership to sell or offer for sale any ticket to “[a]ny music entertainment event at a greater price than that printed on the ticket or the box office sale price plus any reasonable charge for handling or credit card use, whichever is greater.” McMillan alleged that selling tickets at prices greater then the face value of the tickets is deceptive, unfair, and unconscionable and violates the Arkansas Deceptive Trade Practices Act, codified at Arkansas Code Annotated section 4-88-101 et seq. (ADTPA). McMillan also stated a claim for unjust enrichment.
Tieketmaster filed a motion to dismiss alleging that its sales were first-party ticket sales and that section 6-63-201 is not applicable to first-party ticket sales. Ticketmaster argued that because the fees it charged were permissible, it had not violated section 5-63-201, and the complaint failed to state a claim for violation of the ADTPA or unjust enrichment. McMillan filed a response, stating that because the fees charged by Tieketmaster were unlawful under section 5-63-201, such conduct violated the ADTPA.
|sAs a threshold matter, we note that the certification order states that the federal district court, on its own, seeks review of the question before this court. This is significant as the question posed by the federal court is distinct — though clearly intertwined — from the issues presented in the complaint and the motion to dismiss. Thus, we offer no opinion on whether the additional fees or charges by Tieketmaster violate section 5-63-201 or whether a violation of section 5-63-201 constitutes an unfair trade practice under the ADTPA. Our inquiry is limited solely to the certified question.
Arkansas Code Annotated section 5-63-201 (Repl.2005) is entitled “Tickets to school athletic events or music entertainment events — Sale in excess of regular price” and provides as follows:
(a)(1) It is unlawful for any person, corporation, firm, or partnership to sell or offer for sale any ticket to:
(A) A high school or college athletic event or to an athletic or other event held for the benefit of charity at a greater price than that printed on the ticket; or
(B) Any music entertainment event at a greater price than that printed on the ticket or the box office sale price plus any reasonable charge for handling or credit card use, whichever is the greater.
(2) This subsection shall not apply to an institution of higher education that receives funds per ticket above the face value of that ticket.
(b)(1) Any person, corporation, firm, or partnership violating any provision of this section is guilty of a violation and upon conviction shall be fined in any sum not less than twenty-five dollars ($25.00) nor more than five hundred dollars ($500).
|4(2) Every sale or offer for sale is a separate offense.
McMillan argues that the statute is unambiguous and applies to Tieketmaster because it is a corporation selling tickets at a price greater than that printed on the ticket or the box office price. Tieketmas-ter agrees that the statute is unambiguous, but asserts that the statute does not apply to it because the “price printed on the ticket or box office price” refers to the price that the venue charges for tickets, whether it sells the tickets itself or engages an agent such as Tieketmaster to sell the tickets for it. Tieketmaster adds that whether a venue chooses to sell tickets in person, over a telephone, or over the Internet, the first-party sale by the venue — or its agent — sets the box office sale price for purposes of section 5-63-201.
The cardinal rule of statutory construction is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Central Ok. Pipeline, Inc. v. Hawk Field Servs., LLC, 2012 Ark. 157, 400 S.W.3d 701. When the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no need to resort .to rules of statutory interpretation. Id. In other words, when the language of the statute is not ambiguous, the analysis need not go further and we will not search for legislative intent; rather, the intent is gathered from the plain meaning of the language used. Yamaha Motor Corp., U.S.A. v. Richard’s Honda Yamaha, 344 Ark. 44, 38 S.W.3d 356 (2001). Thus, an unambiguous statute presents no occasion to resort to other means of interpretation as “[i]t is not allowable to interpret what has no need of interpretation.” City of Little Rock v. Ark. Corp. Comm’n, 209 Ark. 18, 21, 189 S.W.2d 382, 384 (1945).
Here, the language employed by the General Assembly is so plain and unambiguous that judicial construction is limited to what was said. Section 5-63-201 makes it unlawful to sell any ticket at a greater price than that printed on the ticket or the box office sale price plus any reasonable charge for handling or credit card use, whichever is greater. Thus, the beginning point is the greater price of either what is printed on the actual ticket or what is charged by the box office. The only additional amount that can be charged is a reasonable charge for handling or credit card use. The statute is specifically applicable to any “person, corporation, firm, or partnership” and does not exclude exclusive ticket agents. Thus, it is applicable to exclusive agents of a public facility who sell music entertainment tickets that include in the price of the ticket additional fees, resulting in the price of the ticket being more than the face value and advertised price of the ticket, unless those fees are a reasonable charge for handling or credit card use.
Ticketmaster argues that as the exclusive and authorized agent of Verizon it is | (¡empowered to do anything that Verizon can do, which means that it essentially becomes the box office and the price at which it sells its tickets constitutes the box office sales price. Contrary to Ticketmaster’s assertion, the “box office sale price” clearly means the price a ticket is sold for at the box office. The plain and ordinary meaning of “box office” is a booth, as in a theater or stadium, where tickets are sold. See Merriam-Webster’s Collegiate Dictionary 148 (11th ed.2003). While technology has certainly changed since the passage of the statute in 1993, tickets to entertainment events could always be sold at locations other than the box office through exclusive agents. Such transactions do not transform the place of such sales into the “box office.”
Additionally, when a statute is unambiguous, the rules of statutory construction do not permit us to read into it words that are not there. Scoggins v. Medlock, 2011 Ark. 194, 381 S.W.3d 781. The legislature made an exception for institutions of higher education in section 5-63-201(a)(2), but it did not exclude exclusive ticket agents, and we will not by judicial fiat amend the statute to address concerns that are properly the province of the General Assembly. It is the function of the General Assembly to offer remedial legislation to address perceived statutory inadequacies. See Oldham v. Morgan, 372 Ark. 159, 271 S.W.3d 507 (2008) (acknowledging that this court leaves the task of rewriting statutes to the General Assembly).
Because Arkansas Code Annotated section 5-63-201 by its plain and unambiguous language applies to a person, corporation, firm, or partnership and does not exclude exclusive ticket agents, we answer the certified question in the affirmative.
Certified question answered.
HANNAH, C.J., BROWN and GOODSON, JJ., dissent.
. Both dissents focus on whether Ticketmaster is guilty of scalping under the facts alleged in the complaint and the motion to dismiss. While we have the authority under Arkansas Supreme Court Rule 6-8(c)(l) to reformulate the certified question, we have not broadened the question to encompass such an analysis.
. Both dissents argue that section 5-63-201 is ambiguous because it can be reasonably construed to support the interpretation of Ticketmaster and the interpretation of McMillan. We disagree. Ticketmaster’s interpretation hinges on the statute only applying to the resale of tickets. This construction is unreasonable because the plain language of the statute does not limit it to the resale of tickets. This court "will not add words [to a statute] to convey a meaning that is not there.” Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 339, 969 S.W.2d 190, 192 (1998). Adding words to a statute that is not ambiguous disregards the legislature’s intent. Id.
Both dissents also argue that legislative intent can be found in the title to section 5-63-201. However, titles and descriptive headings used in the Arkansas Code do not constitute part of the law and shall in no manner limit or expand the construction of any section. Ark.Code Ann. § 1-2-115(b) (Repl. 2008); see also R.N. v. J.M., 347 Ark. 203, 61 S.W.3d 149 (2001). | [
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Riddick, J.,
(after stating the facts.) The only question in this case is whether coal which underlies land of a homestead is a part of the homestead. It is admitted that the value of this homestead is not over $2,500, and if this stratum of coal which underlies the homestead land is a part of the homestead, it follows that it cannot be reached by the administrator or creditors until after the expiration of a homestead estate. Our state constitution provides that if the owner of a homestead die, leaving a widow, “the rents and profits thereof shall vest in her during her natural life,” provided that if the owner leaves children, they “shall share with the widow, and be entitled to half the rents and profits till each of them arrives at twenty-one years of age.” Const. 1874, art. 9, § 6.
Now, it has been correctly stated that the term profits “comprehends the produce of the soil, whether it arises above or below the surface; as herbage, wood, turf, coal, minerals, stones; also fish in a pond or running water.” Bouv. Law Diet. Therefore, if the owner of the land in fee grant to another the rents and profits of such land, to have and to hold the same to him and his heirs, the whole land passes by the grant; “for what,” asks Sir Edward Coke, “is the land but the profits thereof?” Coke, Littleton, 4b; Bapalje & Lawrence, Diet. Land has an indefinite extent, both, upward and downward, and includes not only the surface of the earth, but everything beneath it. 2 Blackstone, Comm. 18. As the constitution gives to the widow and children the rents and profits of the homestead, this, in effect, gives them the use of the whole land. Conceding, then, the contention of counsel for appellant, that this coal is a part of the land itself, yet, as all of the land is included in the homestead estate, the probate court cannot order the land, or any part of it, sold until the homestead rights of the widow and children have terminated. Stayton v. Halpern, 50 Ark. 329. Whether the widow and children have the right to mine and sell the coal is a different question, which we do not decide.
Our conclusion is that this stratum of coal, which the administrator is endeavoring to have subjected to the debts of the estate, is a part of the homestead, and is protected from sale to the same extent that the homestead is protected. It follows that, in our opinion, the judgment of the circuit court is right, and it is therefore affirmed. | [
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Hughes, J.,
(after stating 'the facts.) The appellant contends that this is a Missouri contract, and the appellee that it is an Arkansas contract. The court is of the opinion that it is a Missouri contract, because it is dated and payable at Kansas Cit)r, Missouri, and must be governed by the laws of Missouri. The court is of the opinion also that the evidence is sufficient to sustain the decree that the contract is usurious under the laws of Missouri upon the subject of usury, and the decree to that extent is affirmed.
But the decree as to the penalty, — that is, the forfeiture of the interest to the school fund of Howard county, — is reversed and set aside. We have no law authorizing such a decree, and, while that might be a proper decree, under the Missouri law, in the state of Missouri, yet the law of Missouri imposing such penalty has no extraterritorial force, and will not be enforced here upon the principle of comity.
In Western Transportation & Coal Company v. Hilderhouse, 87 N. Y. 436, 438, the court of appeals of New York held: “It is very well settled that penal laws have no extraterritorial force, and the statute of New York regulating the rate of interest is merely a penal law.” See, also, Lebanon National Bank v. Karmany, 98 Pa. St. 65, 76; Barnet v. National Bank, 98 U. S. 555. “Nor will the courts of one state enforce the statutory penalty of another state. Such penalties can only be enforced in the courts of the states by the laws of which they are imposed; and they cannot be enforced elsewhere, either by the force of the statute creating them, or upon the principles of comity.” Stevens v. Brown, 20 W. Va. 450, 461. Rorer, Interstate Law, p. 206. The courts of no country will enforce the penal laws of another country. State v. Kirkpatrick, 32 Ark. 117, 120. This seems to be a universal rule.
The following sections from the Revised Statutes of Missouri were introduced in evidence:
“Section 5972. When no rate of interest is ■ agreed upon, 6 per cent, allowed as legal interest.
“Section 5973. Parties may agree in writing for interest not ■exceeding 10 per centum per annum on money due or to become due upon any contract.
"’Section 5974. Interest shall be allowed on all money due upon any judgment or order of any court from the day of rendering same until satisfaction be made by payment, accord or sale of property; all such judgments and orders for money upon contracts bearing more than 6 per cent, shall bear the same interest borne by such contracts, and all other judgments and orders for money shall bear 6 per centum per annum until satisfaction made, as aforesaid.
"’Section 5975. No person shall directly or indirectly take, for the use or loan of money or other commodity, above the rate of interest specified in the three preceding sections for the forbearance or use of $100, or the value thereof, for one year, and so after these rates for a greater or less sum, or for a longer or shorter time, or according to those rates or proportions, for the loan of money or other commodity.
"Section 5976. If any action or suit shall hereafter be commenced upon any bond, note, mortgage, specialty, agreement, contract, promise or assurance whatever, which shall be made within this state, and the defendant may, in his answer, show that a greater or higher rate of interest than 10 per cent, per annum was therein or thereby agreed for, or received or taken, and if the answer of the defendant to any suit shall be sustained by the verdict of a jury or the finding of the court, the court shall render judgment on such verdict- or finding for the real sum of money or the price of the commodity actually lent, advanced or sold, and interest on the same at the rate of 10 por cent, per annum; upon which judgment the court shall cause an order to be made setting apart the whole interest for the use of the county in which suit may be brought, for the use of common schools, and the same, when collected, shall be paid over accordingly, and go to and form a part of the common school fund of said comity; and the defendant may recover his costs.”
But can the judgment for the principal be enforced in the courts of this state? It will be observed that, unlike our usury laws, the Missouri statute imposes a penalty in case of usury to the extent only of a forfeiture of the interest, while in our state the law forfeits both principal and interest in case of a usurious contract. In Missouri the contract is not void, but only the interest is forfeited in case of usury. It is contended that our courts will not -enforce a iisurious contract, wherever it may be made; that it is contrary to tlie policy of our laws. If the contract was an Arkansas contract, it would be void, if usurious, and could not be enforced. But a contract, valid under the laws of the state where made, is valid in this state, and may be enforced in the courts of this state. “As a general rule, the validity of a contract is to be determined by the law of the place where -it is made. * * * The nature, validity and interpretation of contracts are to be governed by the lex loci contractus; but remedies, by the lex fori.” The rights of the parties are governed by the lex loci. 3 Am & Eng. Enc. Law (1st Ed.), 542.
As the contract as to the principal was valid in Missouri, and so held by the court, that part of the decree is affirmed, and the cause is remanded to the court with directions to enter a decree in accordance herewith, and to proceed to foreclose the mortgage accordingly. | [
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Battle, J.,
(after stating the facts.) The sale on account of the nonpayment of taxes, having been made on a day not authorized by law, is void. Allen v. Ozark Land Company, 55 Ark. 549. The title to the land in controversy, then, depends upon the legal effect of the two deeds executed by Sawyer, respectively, to Hutchinson and Sigerson. Which of these deeds conveyed the title ?
Section 728 of Sandels & Hill’s Digest is as follows: “No deed, bond, or instrument of writing, for the conveyance of any real estate, or by which the title thereto may be affected in law or equity, hereafter made or executed, shall be good or valid against a subsequent purchaser of such real estate for a valuable consideration, without actual notice thereof; or against any creditor of the person executing such deed, bond or instrument, obtaining a judgment or decree, which by law may be a lien upon such real estate, unless such deed, bond, or instrument, duly executed and acknowledged, or approved, as jis or may be required by law, shall be filed for record in the office of the clerk and ex-officio recorder of the county where such real estate may be situated.” From this section it appears that the title to land does not absolutely and irrevocably vest in the grantee by virtue of the execution of a deed by the owner. As against a subsequent purchaser of the land for a valuable consideration without actual" notice, the title does not absolutely vest in the first grantee, if his deed has not been filed for record. If it did, how could the deed be invalid as to the subsequent purchaser, and,if invalidas to the subsequent purchaser,how could it absolutely vest title in the grantee therein? The only rational solution of this question, it seems to us, is that the absolute title rests with the grantor and his heirs in abeyance, to vest irrevocably only upon the filing of the deed for record in the proper office. 1 Warv. Vendors, p. 542, § 16; Webb, Record of Title, § 168; 2 Sugden, Vendors, *978.
This conclusion is sustained by Youngblood v. Vastine, 46 Mo. 239. In that case the facts were as follows: “Sarah G. Wright, by herself and her trustee, on the 26th day of July, 1859, executed to B. J. Xaupi, in trust, to secure the payment of a promissory note of the same date for $3,700, given to Joseph Tuley, then living, a deed of certain real estate, her separate property, * * * which deed was not put upon record until the 19th of October, 1866. The said Joseph Tuley and Sarah G. Wright died in 1860 and 1861, and on the first of October, 1865, D. Robert Barclay, as trustee of Mrs. Ann A. Macdonald, and with her funds, purchased said property of the heirs of Sarah G. Wright, and received a warranty deed of the same, which was recorded April 28, 1866. * * * Neither Barclay nor Mrs. Macdonald had any knowledge of the trust deed to Xar:pi; that the records were examined before the purchase to see if there was any incumbrances upon the property; that a full consideration was paid for it; that the estate of Mrs. Wright had been settled by the public administrator, and that all debts presented had been paid, but this note was not among them. This suit was brought by the administrator of Tuley to foreclose his trust deed, and the contest arises in consequence of the failure on the part of Naupi, to whom it was made, to place it upon record.” Under a statute similar to ours, the court held that the heirs of Wright, on her death, became the apparent owners of the legal title, and that the duly recorded conveyance by them of the same estate to Barclay, as trustee, carried the title as against Saupi, and said: “It would be more rational to say that the law controls the manner in which rights of property are acquired, and that it will not favor any mode of acquirement that shall encourage fraud. Thus purchasers are required to spread upon record the evidence of their ownership; and if others suffer from their neglect, the law will not recognize such ownership. Or, in using the language of the law of tenures, we might perhaps say that in a conveyance the absolute title rests with the grantor and his heirs in abeyance, to vest irrevocably only upon the record of the deed, and that it will vest in the first grantee in condition to receive the grant, who shall so place it upon record.” See Memphis Land & Timber Co. v. Ford, 58 Fed. Rep. 455.
In the case at bar the deeds to Hutchinson and Sigerson were executed by Sawyer on the same day. The evidence does not show which was first delivered, or that either grantee had notice at the time he bought of the purchase by the other. Hutchinson’s deed was first filed for record. At that time the land was wild and unoccupied, and had never been in the actual possession of anyone. According to our theory, the title to it became absolute, and vested irrevocably, when Hutchinson’s deed was filed for record. In whom did it become absolute and irrevocable ? Certainly, in Hutchinson. He thereby acquired a title superior to that of Sigerson and the right to hold the land, the registration of the deed becoming in this manner a substitute for livery of seizin.
But the chancery court found that the Hutchinson claim was stale. If so, the Sigerson claim was equally stale. The land was wild and unoccupied, and remained so until a short time before the commencement of this action, when plaintiff, holding the Hutchinson title, promptly asserted his rights. Until there was an interference with the possession, there was no occasion for resorting to legal remedies. It is true that Doherty and hi$. grantors for several years paid taxes on the land, but that gave them no right to or interest in the land. If they paid them under the belief the land was their property, the defendant, Doherty, has the right to subject the land to sale for reimbursement; and he is also entitled to recover the value of the improvements made by Mm in good faith and under the belief he was the owner of the land.
The decree of the chancery court is reversed, and the cause is remanded, with instructions to the court to enter a decree in accordance with this opinion.
Hughes, J., dissents. | [
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Biddick, J.,
(after stating the facts.) This is an action on an insurance policy issued by the Supreme Lodge Knights of Pythias, a fraternal association. The policy contained the condition that the assured should comply with all the laws governing the endowment rank of Knights of Pythias now in force or that may hereafter be enacted. The defendant set up as a defense, and undertook to show, that subsequent to the issuance of this policy the Supreme Lodge Knights of Pythias passed a law providing that if the death of any member of the endowment rank shall be caused or superinduced by the use of intoxicating liquors, narcotics, or opiates, etc., then only a certain proportional anuTunt of the policy should be paid, and further that the death of Bobbins was caused by the use of intoxicating liquors and narcotics. To prove this law the defendant introduced two witnesses, Stolte and Bossner. Of Bossner’s evidence it is sufficient to say that the defendant undertook to identify and prove by him a certain pamphlet or book offered in evidence as the printed copy of the records of the proceedings of the Supreme Lodge Knigths of Pythias for the years 1896 and 1898. Bossner stated on cross-examination that he had not compared the copies offered with the original records, and did not know of his own knowledge whether such laws had been passed, or whether the pamphlet offered was a correct copy of same or not. He said, though, that it was “an official publication of the Supreme Lodge Knights of Pythias, and had attached to it the printed signature of the Supreme Keeper of Becords and Seal.” The plaintiff thereupon objected to the introduction of the printed copy, and the court sustained the objection, and excluded the evidence.
We are asked to review this ruling of the circuit court, but a fatal obstacle in the way is the failure of the defendant to set out the rejected pamphlet in the bill of exceptions. It is a well established rule that “when the exception alleges error on the part of the trial court in the rejection of evidence, such excluded evidence must be incorporated in the bill of exceptions.” 3 Enc. PI. & Pr. 427, and cases cited. Now, in this instance, the rejected evidence was not set out in the bill of exceptions. Instead of that, we have in the bill of exceptions questions and answers of the witness Bossner as to what he found in the printed document offered as evidence. But the copy, and not the testimony of the witness, is evidence of its contents; and as the document is not attached to or set out in the bill of exceptions, we are not able to get a clear idea as to what this document was, or purported to be, and are not able to say that the court erred in excluding it. But, even if the pamphlet had been included in the bill of exceptions, we would probably still have to hold that it was not shown to be a true copy by one having knowledge of the fact. The contention of appellant on that point must therefore be overruled.
The defendant also endeavored to establish the law in question by the deposition of Henry B. Stolte. This witness stated that he was secretary of the board of control of the endowment rank of Knights of Pythias. “I have,” he said, "general charge of the business of the office, under the direction of the president of the board. I attend all meetings of the Supreme Lodge Knights of Pythias and of the board of control of the endowment rank. I keep the minutes of the meetings of the board, and have the charge and custody of the books, .papers and records of the board of control and of the endowment rank.” He was then asked to state "what is the law of the Supreme Lodge Knights of Pythias endowment rank,” if "a member of the endowment rank die from the use of intoxicating liquors, chloral or other narcotics,” and proceeded to answer by stating in substance that in that event only a proportional part of the policy could be recovered. It appears from the evidence, we think, that these laws of the order were matters of record on the books of the order. It follows that they could not be proved by parol. As it would have been inconvenient to produce the original books, they should have been proved by an examined or authenticated copy. It was therefore not proper to have witness state his opinion of what the law was. He should have produced a copy of the law or record. It is true that he says that the law of which he testifies is section 1 of article 6 of the general laws, and that it will- be found on page 41 of the printed pamphlet attached to his deposition. But he does not show that this pamphlet is a true copy of the record which defendant was endeavoring to establish, or that he had ever seen the original record. He said also that this pamphlet was an official publication of the constitution and laws of the endowment rank. But this is only the statement of an opinion. He does not state by whom it was published.— whether by the supreme lodge or by some subordinate lodge. In fact, this pamphlet purports to have been published, not by the Supreme Lodge Knights of Pythias, but by the board of control of the endowment rank, which is a subordinate branch of the order. The name of the supreme keeper of records is not attached to it, and there is nothing to show that the parties whose names are printed below the printed certificates attached to the pamphlet had charge of or had examined the original records, or that they had authority to make this publication.
The mere statement that it is official is, as before stated, only an opinion of the witness, and is not, we think, competent evidence to show that it is a correct copy of the law. This pamphlet is not such a publication as proved itself. Its correctness must be established by evidence, and, instead of so much circumlocution, the witness should have stated that he had compared it with the record ■of these laws, and that it was a true copy of the same. If he had stated that he was the keeper of these records, and knew their contents, this, in connection with his other testimony, might have been sufficient; or, if he stated that this pamphlet had been published by the authority and under the sanction of the supreme lodge of the order for the guidance of the subordinate branches of the order and the members thereof, even this might have been sufficient to raise a prima facie presumption that it was a correct copy, as against a member of the order or a beneficiary of its policy. But he does not do this. On the contrary, he endeavors to show the terms of the law, and that it had been legally enacted, by parol, and then refers to a printed pamphlet, which he says is an official publication of the constitution and general laws of the endowment rank. All these questions and answers were objected to by the, plaintiff, and the court sustained the objections and excluded the evidence. The defendant comes very near making the necessary proof, but it does not quite do so. It seems to be a case where the litigant has proved all around a necessary fact, but has not proved the fact itself. Not wishing to be needlessly technical, we have felt some doubt about this question, but a majority of us are of the opinion that the ruling of the circuit court was correct, and should .be sustained.
After this evidence was excluded, the defendant moved for a continuance, which the court refused. The matter of granting a continiiance under such circumstances being largely a matter of discretion, we are not able to say from the facts presented that the court erred. On the whole case the judgment of the circuit court must be affirmed.
Bunn, C. J., and Battle, J., think the evidence of Stolte was sufficient to go to the jury, and that it should not have been excluded, and they therefore dissent. | [
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Battle, J.
On the 7th day of May, 1897, C. M. Hillman brought an action in the Arkansas circuit court against A. B. Castle to recover possession of block 103, in the town of Almyra, in Arkansas county, in this state. He alleged in his complaint that he was the owner of the block, and entitled to the possession of it. He traces the chain of his title to T. H. Leslie, the common source of title of both parties to this action, and alleges that Leslie, on the 28th of October, 1891, conveyed the block to the Central Town Site Company; that it, on the 26th of December, 1894, conveyed the block to Sallie L. Price, and that she conveyed it to plaintiff on the 30th day of January, 1896; and further alleged that the defendant was in unlawful possession of the same.
On the 3d day of November, 1897, the defendant answered; and on the 3d day of April, 1899, filed an amended answer and cross complaint, in which he denied that plaintiff was the owner of the block sued for, or entitled to its possession, and that he was in lawful possession of the same; and alleged that Thomas H. Leslie, being the owner thereof, for a valuable consideration sold and conveyed it, on the 5th day of January, 1892, to W. H. Garrett; that, the block being improved, Leslie placed Garrett in the actual possession of the same; and he so remained until the 24th day of November, 1894, when he sold and conveyed it to the defendant.
And he further alleged as follows: “Defendant says it may be true that the block here in controversy is contained in a deed from the said Thomas H. Leslie to the Central Town Site Company along with 400 or 500 other lots and blocks, but defendant alleges that, if same is contained in said deed as alleged by the complaint, it was inserted surreptitously by the draftsman of the deed, and the said Leslie signed the same without the knowledge that the block in controversy was contained in said deed; that said Leslie will so testify on the trial'of this cause. Defendant says that it may be true that said block is contained in the conveyance from the said Central Town Site Company to Sallie L. Price, but, if so, same was the result of the fraudulent insertion of the same in the deed from the Central Town Site Company as aforesaid.
“Defendant admits that the said plaintiff holds a deed from the said Sallie L. Price for the southwest quarter section 26, township 3 south, range 4 west; but defendant avers that at the time of the purchase of the said land it was distinctly understood ■and agreed by and between the said Thomas H. Leslie and the •Central Town Site Company, and the Central Town Site Company ■and Sallie L. Price, and the said Sallie L. Price and the said plaintiff, Hillman, that no lot or block that had been sold or disposed of in any manner whatever, or that was occupied by any bona fide holder, and situated in the said southwest quarter .section 26, township 3 south, range 4 west, was to be included in said sale,- and the block in controversy was expressly omitted from .said deed; that before the signing of the said deed the plaintiff, under the pretext of wanting to examine said deed, asked permission to look over same, and carried same away, and had a new deed drafted, in which he inserted the whole of the southwest quarter of section 26, including defendant’s block, and represented to the said Sallie L. Price that the deed he returned was the same he had carried away, or that it contained the same land only; that, not expecting the plaintiff to practice any fraud or imposition on her, without examining the same, she signed said deed, not knowing or suspecting that said block was contained in said deed. Defendant alleges that he believes that the said plaintiff perpetrated the fraud aforesaid on his said vendor for the purpose of trying to obtain an unconscionable advantage over this defendant.”
Other allegations were made in the answer. The defendant asked “that T. H. Leslie, the Central Town Site Company, and Sallie L. Price be made parties to this suit; that the amended answer be taken as a cross bill against plaintiff, C. M. Hillman, and the parties aforesaid; that they be required to answer the same; that this cause be transferred to the chancery court for hearing; that plaintiff’s pretended title to the block aforesaid be canceled, set aside, and held for naught, and the cloud cast thereby on defendant’s title be removed, and his title to said block 103 be quieted, and for all other relief.”
On the motion of the defendant, the cause was transferred to the Arkansas chancery court. Thereafter the plaintiff filed an amended answer to the defendant’s cross complaint in the chancery court, and denied the allegations therein as to fraud, and moved that the cause be remanded to the circuit court, which the court sustained, and the defendant excepted. Afterwards, on the 13th day of November, 1899, defendant filed a motion to transfer the cause to the chancery court, alleging that the answer and cross bill tendered an issue that was cognizable alone in the chancery court, and also that a court of law could not grant the relief prayed for, either by the amended answer and cross bill or by the plaintiffs answer to defendant’s cross bill. This motion was overruled by the circuit court, and the defendant excepted.
“The cause was then submitted to the court, sitting as a jury, and he rendered judgment for plaintiff, awarding him the possession of the block in controversy. Defendant. excepted, filed his motion for a new trial, because the findings of the court were contrary to both the law and the evidence, and also because the court erred in overruling his motion to transfer to equity; which motion for a new trial the court overruled, to which the defendant excepted, asked and obtained sixty days in which to prepare and file his bill of exceptions, which he did, and appealed to this court.”
Appellant sought to remove clouds from his title to the block in controversy. According to the allegations of his cross bill, the legal title to the block was conveyed by T. H. Leslie to the Central Town Site- Company, and by it to Sallie L. Price, and by her to the appellee; yet no one of the parties sold or intended to convey the same to the grantees, the conveyance thereof being procured by fraud, without the knowledge or consent of the grantors. He asked that these parties be made parties to the action and sought to remove the cloud chst upon his title by the fraudulent conveyances. This relief is purely and exclusively equitable, and the motion to transfer the cause to the chancery court should have been granted. A careful examination of the evidence adduced at the trial in the circuit court confirms us in this opinion.
The judgment of the circuit court is therefore reversed, and the cause is remanded, with instructions to the court to transfer the cause to the chancery court.
Wood, J., did not participate. | [
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Bunn, C. J.
This is a bill in equity by the appellee^ A. M. Clark, for himself and his brother, W. C. Clark, for whom he sues as next friend, to cancel a deed from Sarah Clark to their mother, Mary Clark, since married to appellant, G. W. Johnston, and have land therein named decreed to be the property of appellees, except a dower interest in their mother, Mary J. Johnston, one of the appellants; and that the lands be partitioned, and that Johnston be enjoined from interfering with the rights of plaintiffs (appellees here), and for all other proper relief.
The defendants answered, setting up facts going to show that the deed from Sarah Clark to Mary J. Johnston (formerly Mary J. Clark) is a valid deed, and that the said Mary J. Johnston is the absolute owner of the lands in controversy, except the portion set off by her consent to plaintiff, W. Ii. Clark.
It appears that Mary J. Johnston and her then husband, James Clark, mother and father of plaintiffs, soon after their marriage resided in the city of Little Bock, and her foster-father, Dr. Killian, and her husband bargained for and purchased on credit, in whole or in part, a residence for the sum of $2,000, and that subsequently Sarah Clark, a cousin of the husband, residing in the city of Fort Smith, proposed to James Clark and the said Mary J., his wife, that if she would sell her place in Little Bock, and move to the country, she would give her the lands in controversy in this suit.
The purchase price of the property in Little Bock was paid by Dr. Killian and James Clark, or by Dr. Killian alone, — the testimony is not certain how that was, — and Sarah Clark, in consumrftation of her agreement, made her deed to the defendant, then Mary J. Clark, with the full knowledge of her said husband. Subsequently, and just before his death, under pretense of correcting an alleged mistake in the description of the lands in the aforementioned deed, he procured a pretended corrected deed from said Sarah Clark, to himself, however, for the same lands, and had the same recorded. It does not appear that there was any difference in the description of the lands in the two deeds. The deed from Sarah Clark to Mary J. Clark had not then been recorded. James Clark made a will, which was duly probated after his death, in which he made disposition of his lands and personal property, without describing his real estate. It was shown, however, in evidence that he had no lands, unless he owned the lands in controversy. He appointed his wife, the said Mary J. Clark, and W. T. Brown his executrix and executor.
On the suggestion of a claim on the part of A. M. Clark, against the title of Mary J. Johnston, G-. W. Johnston consulted counsel, and was advised that his wife’s deed was good, and with her knowledge and consent at once had her deed recorded. It appears that the mother was at all times willing to give her sons a share in the lands, but, according to her testimony, not because the lands belonged to her former husband and their father, but because they belonged to her, and she had the right to do as she pleased in the matter. Finally, an agreement was made between the three whereby the mother was to take the eastern part of the land, containing 88J acres, and presumably the part on which she had resided from the beginning, and the remainder to be divided between the sons in equal parts, having reference to the value of each, and each one named a commissioner to make the division between the three; and the commissioners accordingly allotted the said 88-J acres, the eastern division, to the mother, and of the remainder 70 acres to A. M. Clark, and 107 acres to W. H. Clark; and deeds were made to the mother accordingly, and she made her deed to W. H. Clark according to the division, and he after-wards sold his part to G-. W. Johnston for $400. But, while the mother showed a willingness to make her deed to A. M. Clark for the 70 acres, he, after much delay, finally had a deed made out for her to execute calling for 88 acres, which he claimed was the quantity she had agreed to give him. This deed, calling for 18 acres more than the commissioners had allotted to him, the mother declined to execute. After that this suit was instituted.
It was shown in evidence that W. H. Clark was 21 years old when this suit was instituted, and that he had never authorized its institution. In fact he disclaimed all interest in the matter, and no desire to litigate with his mother. His name as a party was therefore used without authority and without legal right. He was thus eliminated from the suit.
The court held that the title to the land was in Mrs. Mary J. Johnston by virtue of her deed from Sarah Clark. The deed from Sarah Clark to James Clark was, of course, a nullity, since at the time her deed was made to'him she had no authority to convey, having previously parted with her title to Mary J. Clark, since Mary J. Johnston. This part of the decree of the court should have settled the case in favor of defendant, for, if the absolute title was in Mrs. Johnston, her sons could not compel her to give any part of the land to them, or make any other disposition of the same, except just as she might choose to make; for one can deal with his own as he may elect. Nor does the prayer of the complaint call for anything else than the cancellation of her deed from Sarah Clark, and a partition of the lands, as if owned by the former husband of Mary J. and the father of the plaintiffs under his deed from the said Sarah Clark.
Nothing being said, the bill would be dismissed for failing to state a cause of action, and also for want of equity; but, while the pleadings have a different purpose, in argument on the testimony adduced, the plaintiff A. M. Clark (for the other, W. EL Clark, disclaims, and is not in the case) contends that the partition of the lands by the commissioners, appointed by all the parties for that purpose, was in furtherance of an agreement, and that said agreement had for its consideration accruing to the mother the promise of her sons, the plaintiffs, to refrain from suit against her for these lands. A promise to refrain from suit may be a good consideration to support a compromise founded thereon; but here the plaintiff refused to abide by the compromise, and not only so, but brought suit in violation of the agreement itself, even if his version of the matter be true. Under the circumstances of the ease, the plaintiff is not in a position to insist on a partition of the lands in this suit in accordance, even, with the partition of the commissioners, whatever he might have been justified in doing, had he accepted that partition, and not brought this suit.
The chancellor erred in decreeing specific performance, and in adjudging their part of the cost against the defendants, for plaintiff refused to accept the commissioner’s portion, and the defendants were put to the expense and trouble of defending this suit, which had no real foundation, as in effect was determined by the court below, and is determined by this court.
For these reasons the decree is reversed, and the bill is dismissed for want of equity, at the cost of the defendant, A. M. Clark. | [
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Hughes, J.,
(after stating the facts.) The court is of the opinion that the descriptions in the plaintiff’s deeds were sufficient to identify and locate the lots to be conveyed, and ought to have gone to the jury, in connection with the parol evidence. We think that these descriptions, though awkward, taken with parol evidence, sufficiently locate the lots south of the original survey of the town of Jonesboro, south of Jefferson street and east of Main street, as extended, in said town. But the plaintiff fails in his evidence to show that he deraigns title from the government. He also fails to show that he and those under whom he claims or any of them had had adverse possession seven years before the institution of this suit. There is not sufficient evidence, therefore, to sustain the finding and judgment for the plaintiff (the appellee).
This is not like the case of a mere intruder without claim or color of title, against whom possession for a less period than seven years might be good and entitle the party previously in possession in good faith to recover upon such possession only. Here the appellant was in possession, claiming title under a tax deed, which was color of title.
Reversed and remanded for a new trial. | [
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Battle, J.,
(after stating the facts.) The evidence offered by the defendant and rejected by the court was inadmissible. He offered to prove that he said the horse stolen was an estray, and that he refused to sell him. An estray is an animal running at large, the owner being unknown. The evidence offered was not explanatory of any act of the defendant, but simply a denial of every act which needed explanation. At the time he offered the rejected evidence,he adduced or offered to produce evidence to prove that he was not in possession of the horse at the time he said the horse was an estray and refused to sell. The effect of the offer was an effort to prove his innocence by his own assertions.
Defendant objects to instruction numbered 6, because “there was no evidence of the way or manner in which owners of live stock in that community ‘exercised acts of ownership’ over their live stock, and under it the jury may have assumed that owners of live stock permitted it to run on the range, and the only exercise of ownership over the same was to claim it once a year, and that appellant, having claimed the horse, was therefore guilty of larceny.” In this the defendant is mistaken. The court told the jury if they found “from the evidence beyond a reasonable doubt that defendant took possession of said horse, or exercised such ownership over him as owners of live stock usually exercise over same, with intent to steal said horse, they will find defendant guilty.” This instruction is tautological; “took possession” and “exercised such ownership” being used to some extent in the same sense. The finding of the jury, under this instruction, must have been based upon the evidence. The only acts of ownership of the defendant shown by the evidence was the bridling and leading the horse from the range on which he ran to the home of the defendant, and there confining him in his lot, and riding him, and, while in such possession, claiming him as his property. Inasmuch as the jury were directed to find from the evidence, the instruction must be understood as having reference only to the acts of ownership shown by the evidence. Then, again, the court instructed the jury that the ownership must be exercised with the intent to steal. No one can infer from a mere claim an intent to steal. No person seeking by that means alone to steal would be capable of committing larceny; and a man who would impute to a person capable of committing that crime an intent to steal, and find him guilty of larceny upon that evidence alone, would not be competent to serve as a juror.
According to the instructions of the court, in order to find the defendant guilty of larceny, it was necessary to find that the horse alleged to have been stolen was the property of Henry Sullins, and that the defendant took possession of him with the intent to steal. The defendant did not ask the court to instruct the jury that it was necessary to find anything in addition thereto in order to convict him of larceny. The instructions given substantially and in effect embraced all that is contained in the requests of the defendant. We see no reversible error in the instructions, when Tead as a whole, as they should have been.
Judgment affirmed.
Wood and Biddick, JJ., dissent. | [
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Wood, J.
Appellees sued upon an insurance policy which contained this clause: “$2,000 total concurrent insurance permitted, including this policy.” Subsequent to the issuance of this policy, appellees took a policy in another company for $2,000, which it was conceded avoided the policy sued on, unless the appellant had notice of the additional insurance before the loss, and failed to object to such insurance. Appellant conceded that if its local agent liad notice of the additional insurance, and failed to object thereto, the forfeiture was waived. Appellant’s local agent testified that he had no notice of the additional insurance before the loss. Witnesses for appellees testified that he had such notice. The issue was sharply drawn on this question of fact. Marshall, the witness upon whom appellant relied to establish the want of notice of the concurrent insurance, resided and was the local agent at Fort Smith. The cause was being tried, on change of venue, at Greenwood. James Brizzolara, one of the attorneys for appellees, in the first or opening argument to the jury, used this language: “Gentlemen of the jury, if you knew Marshall’s business methods, you would say, ‘God save the plaintiffs, and God save all those who deal with him.’ ” Appellant objected to this remark of counsel, and the court said to the jury: “Col. Brizzolara’s remark is entirely improper, and should not have been made, and I now instruct you to pay no attention to it in making up your verdict, and it must not be considered by you, and give it no weight, hut your duty is to consider the evidence admitted by the court in the progress of the trial.” Col. Brizzolara was not a witness in the case. There was no evidence as to Marshall’s business methods,- — no impeachment of his business integrity or efficiency, nor of his moral character in the community where he lived.
In Vaughan v. State, 58 Ark. 353, speaking of improper remarks by counsel in argument, we said: “Whenever it occurs to us that any prejudice has most likely resulted therefrom, we shall not hesitate to reverse on that account.” In Kansas City, etc., R. Co. v. Sokal, 61 Ark. 138, we said: “Ordinarily, an objection by the opposing counsel promptly interposed, followed by a rebuke from the bench and an admonition from the presiding judge to the jury to disregard prejudicial statements, is sufficient to cure the prejudice; but instances sometimes occur in which it is not sufficient.” In Union Compress Company v. Wolf, 63 Ark. 174, we said: “Where counsel persevere in saying things that are not pertinent to the issue, and are prejudicial „to the other party, the court in civil cases should see that they do not reap any benefit from such statements, even to the extent of setting aside a verdict in favor of the client of the attorney thus offending, if the court should deem that the prejudice cannot otherwise be overcome. There is not wanting high authority for the position that prejudicial statements made in argument are not removed by the rebuke of counsel and a direction by the court to disregard such statements. Our court has not gone to that extent, but, as was said by us in Vaughan v. State, we will not hesitate to reverse when it occurs to us that prejudice has resulted on account of improper argument, although the trial court may have endeavored to remove it.” In St. Louis, I. M. & S. Ry. Co. v. Waren, 65 Ark. 626, this court reversed for improper remarks of counsel which were deemed prejudicial, notwithstanding the lower court told the jury that the remarks of counsel were improper, and that they should pay no attention to them, specifically calling their attention to what was said.
The rule of procedure to which this court is committed is very well expressed in Rudolph v. Landwerlen, 92 Ind. 34, 40, where it is said: “Very many abuses in argument may be sufficiently corrected by the instructions of the court to the jury, and a large discretion as to the refusing of new trials because of such violations belongs to trial courts, and this court will not interfere because of an abuse in argument which was sufficiently counteracted by the action of the trial court in the premises; but it will interfere where, notwithstanding the efforts of the trial court to correct the abuse, the irregularity appears to be such as to prevent a fair trial, and the particular circumstances of each case will guide this court to its decision.” In Chicago, R. & Q. Ry. Co. v. Kellogg, 76 N. W. Rep. 462, it is said: “If the transgression be flagrant, — if the offensive remark has stricken deep, and is of such a character that neither rebuke nor retraction can entirely destroy its sinister influence, — a new trial' should be promptly awarded, regardless of the want of objection or exception.” In the language of Judge Mulkey in Quinn v. People, 123 Ill. 333: “As well might one attempt to brush off with the hand a stain of ink from a piece of white linen” as to eradicate from the jury the impression that was created by the remarks of Col. Brizzolara. The appellant was wholly dependent upon the testimony of Marshall to sustain its contention. He testified that he had no knowledge and had not acquiesced in the additional insurance. In this statement he was in direct conflict with several witnesses for appellees, yet it was the jury’s province to believe him in preference to all the rest. This the jurors would not likely have done, even without the derogatory statements of counsel. Still, they might have done so, and it is not for this court to say that they would not have given more weight to his evidence than the other witnesses, had it not been for the improper remarks. These remarks were gravely prejudicial. True, they were not made under the sanction of an oath as a witness. But the statement of matters of fact by counsel of high character and excellent standing in the profession might be as readily accepted and believed by the jurors, and make as profound and ineradicable impression upon their minds, as if they had been uttered0under oath. The remarks of the learned counsel, if not directly, certainly by insinuation, conveyed to the jury a knowledge on his part of Marshall’s business methods which were so inefficient or disreputable as to make him untrustworthy, and one whom all having business in his line should shun. The statement of counsel that an acquaintance with Marshall’s business methods would make the jurors feel like imploring the Almighty to save plaintiffs and all who had dealings with him was well calculated to make the jury regard him as entirely unreliable, to say the least. We cannot see how it is possible for the jury not to have been prejudiced, notwithstanding all the commendable efforts of the presiding judge to prevent such result. The only cure for such prejudice is a new trial. For that purpose the judgment is reversed, and the cause remanded.
Riddick, J., dissenting. | [
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Hughes, J.
This is a petition by the administrator to sell lands belonging to his intestate’s estate to pay debts. The petition shows on its face that the application to sell was made more than seven j^ears after the death of the decedent, and the qualification of his first administrator. He seeks to excuse- this delay upon two grounds: (1) That the heirs of the estate had been in “endless litigation” over the claims and property of said estate; (2) that in the years 1897 and 1898, “the only two years your petitioner has acted as administrator, there were two large overflows, one each year, rendering the sale of said lands, in the opinion of your petitioner, impracticable for the year 1897 and for the first six months of 1898.”
1. As to the first excuse, after stating that the litigation between the heirs had been “endless,” the petitioner immediately proceeds to disprove this statement by showing that said litigation was finally settled on May 12, 1896. This was six months before, the petitioner qualified, and nearly a year before he took charge of his intestate’s estate, according to his statement in the petition. However, even this was a misstatement of over a year, because, in response to the defendant’s plea, the same administrator shows that this litigation between the heirs was finally ended in the supreme court on the 13th day of April, 1895, and he refers to the. volume and page of the reports showing this decision. Black v. Black, 60 Ark. 390. Of course, the decision of this court was the end of the litigation. The fact that it was not certified down to the probate court until May 6, 1896, is absolutely immaterial and irrelevant. It would hardly be argued that the probate court could or would' make any change in the decree entered here. We thus, see that the litigation referred to in the petition was ended April 13, 1895, nearly two years before the present administrator took charge. Surely this is no excuse for further delay. It is quite the reverse. It affords the best possible reason for prompt action after' the litigation was ended.
The only other litigation mentioned in the record is that concerning the re-classification of the Mallory, Crawford & Company claims. As to this, petitioner says in his response to defendant’s plea: “In 1892 Mallory, Crawford & Company’s claims were allowed against the estate and classed in the fifth class. In 1897 they began a suit to re-classify their claims, which suit is now pending.” Even if this were entirely true, it is clearly no reason for delaying an application to sell lands. The dispute as to whether the Mallory, Crawford & Company claims were in the fourth or fifth class has.no relevancy whatever upon the question as to-whether the application to sell decedent’s lands was made in time. No matter in which class they were, the lands were bound for their payment.
2. We think that the fact that the lands were sometimes overflowed affords no reasonable excuse for the long delay in making-application to sell the lands by the administrator. The record shows that there were years after the administrator commenced when the lands might have been sold, when there was no overflow to interfere. Lands in an overflow country might never be sold if the overflows were a reasonable excuse for not selling, and creditors be kept from realizing their value on their claims. It has been decided in our court that a delay of seven years to make application for the sale of lands by an administrator to pay debts is an unreasonable delay that will bar the application, unless some reasonable •excuse bo shown for the delay. Killough v. Hinton, 54 Ark. 68; Mays v. Rogers, 37 Ark 155; Stewart v. Smiley, 46 Ark. 373; Graves v. Pinchback, 47 Ark. 470; Roth v. Holland, 56 Ark. 633; Brogan v. Brogan, 63 Ark. 405.
It seems to tire court that these cases determine this case, and settle that the administrator’s application to sell the lands, so far as the interest of Irma Black is involved, was barred when the application was made more than • seven years after the grant of administration, there having been no reasonable excuse for the long delay. Irma Bl$ick was a minor.
But as to John Black the court is of the opinion tha't, having-been the administrator of the estate for more than six years, and being responsible to a considerable extent for the delay in the application to sell, and being an heir to one-half of the land, he cannot be heard to complain. He cannot take advantage of his own failure to discharge his duty in the premises. We are therefore •of the opinion that the judgment as to Irma Black must be reversed, but that as to John Black it must be affirmed.
Beversed as to Irma Black and her interest in the lands, and affirmed as to John S. Black and his interest in the lands. | [
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Bunn, C. J.
This is an indictment for murder in the first degree, and judgment for involuntary manslaughter, and sentence for one year in the state penitentiary, and defendant appealed to this court.
The defendant moved the court for a new trial, but on what ground it nowhere appears, as the motion does not seem to have been reduced to writing. On a close inspection of the record, we find only one objection made by the defendant, and that was as to the court’s refusal to admit the testimony of Dr. Young, grandfather of the defendant, as to the opinion expressed to him by the deceased, after he was shot, that the shot was accidentally fired. The record does not show that the foundation was properly laid to make this statement of the deceased admissible as a. dying declaration; and, besides, it was only a matter of opinion of deceased, and corroborative of what other witnesses of the defendant had said on the stand.
The evidence was amply sufficient to convict the defendant of involuntary manslaughter, if not of a higher degree of homicide. Upon the whole ease, there being no objection to the instructions, we are of the opinion that the judgment should be affirmed, and it is so ordered. | [
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Wood, J.,
(after stating the facts.) Section 1125, Sand. & H. Dig., is as follows: “They (circuit courts) shall have power to issue writs of certiorari to any officer or board of officers, or any inferior tribunal of their respective counties, to correct any erroneous or void proceeding, and to hear and determine the same,” etc. The act of March 18, 1899, amended this section by inserting the words “city or town council” after the word “officers.” The amendment did not change the rule of procedure for the correction of mere errors or irregixlaritieS in judicial proceedings. That must still be by appeal or writ of error. St. Louis, I. M. & So. Ry. Co. v. Barnes, 35 Ark. 95.
The mayor’s court had jurisdiction of the cause of action and of the person of the defendant-appellee, Colley. Sections 5147, 5148, Dig. Acts of 1899, p. 45. Justice Strozier likewise had jurisdiction of the cause of action, but he had no jurisdiction of the person of appellee. The warrant of arrest first issued by him, it appears, was returned unserved. No other warrant was issued by him for the appellee until after the trial was had before the mayor. The rule as to concurrent jurisdiction is that the court wherein the proceedings are first instituted will have the jurisdiction 1» conduct the matter to an end without interference. State v. Devers, 34 Ark. 188; Estes v. Martin, 34 Ark. 410; 1 Bishop, Cr. Proc. § 315, and authorities cited. But where the proceedings first instituted are abandoned, the offense may be prosecuted in another court of concurrent jurisdiction. The facts of this ease bring it within the rule announced in James Bradley v. State, 32 Ark. 722.
The mayor’s court having jurisdiction, the other matters complained of could have been corrected on appeal.
The judgment is reversed, and the judgment of the mayor’s court is affirmed. | [
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Bunn, C. J.
This is a controversy over the formation of a school district in Lee county out of the territory of an old preexisting district, in this instance numbered 23. The petition for the formation of the new district was denied by the county court, and on appeal to the circuit court was granted, and the petitioners appealed to this court.
In the course of the hearing, petitioners asked the court to make the following declaration of law, to-wit: “ That, before a district can be divided, there must be an amount of'revenue from all sources to run the white and colored schools for at least three months/5 This declaration the court made with this qualifying statement: “And in my judgment the school can be suspended for the purpose of building schoolhouses,55 which modification was exceptdd to by appellants, who were remonstrants in the court below. There was no error in this modification, for the statute gives to the electors of the district power to determine at a regular annual meeting whether they will have a school for the ensuing year or not (Sand. & II. Dig., § 7029), and this confers, by implication at least, the power to vote the revenues for the year for building or other legitimate purposes.
This cause being tried do novo in the circuit court on appeal, the circuit judge had the same discretion as had the county judge. All the statutory requirements were met 'by allegations in the petition, and this is uncontroverted. The testimony in the case as to the greater convenience of the inhabitants interested in the schools, we think, is sufficient to justify the judgment of the circuit court.
The judgment is therefore affirmed. | [
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Wood, J.,
(after stating the facts.) We are asked to reverse only upon the ground that the court had no jurisdiction. The appellants contend that there was a complete and adequate remedy at law, and for that reason the court of chancery should have transferred the cause to the law court. For the purpose of this motion we must look only to the complaint, and treat its allegations as true. It sets up the trust relation, and shows that the money sued for was obtained through fraudulent representations, and was received and is held in a fiduciary capacity. That was sufficient to give the chancery court jurisdiction. Having jurisdiction of the subject-matter, it does not have to give it up because a court of law could also give complete and adequate redress. This court as early as Bently v. Dillard, 6 Ark. 79, and Hempstead v. Watkins, id. 317, 42 Am. Dec. 696, held that “if a court of law and a court of equity have concurrent jurisdiction over the subject-matter, the party may make his election as to the tribunal which shall determine the controversjr, and cannot be compelled to submit to an adjudication at law, when he prefers going into chancery.” This' doctrine is as sound now as it was then. There has been nothing in the constitution, statutes or decisions to change it. Originally, all matters growing out of trust relations were exclusively of équitable cognizance. But, as Judge Story remarked, “in modern times courts of law frequently interfere, and grant a remedy under circumstances in which it would certainly have been denied in earlier periods. And sometimes the legislature by express enactments has conferred on courts of law the same remedial faculty which belongs to courts of equity. Now (as we have seen) in neither case, if the courts of equity originally obtained and exercised jurisdiction, is that jurisdiction overturned or impaired by this change of the authority at law in regard to legislative enactments; for, unless there are prohibitory or restrictive words used, the uniform interpretation is that they confer concurrent and not exclusive remedial authority. And it would be still more difficult to maintain that a court of law bjr its own act could oust or repeal a jurisdiction already rightfully attached in equity." 1 Story, Eq. Jur. § 80, and authorities cited in note.
In McCrea v. Purmort, 16 Wend. 460, a bill was filed to recover of the defendant certain moneys which he had received as trustee of the complainant. Mr. Justice Cowen, for the court, said: “It is objected that the complainant had an adequate remedy at law. I need hardly say that the argument in that form is far from precluding relief by bill in equity. If the complainant had a remedy at law by action for money had and received, which I think he had, yet equity has a clear concurrent jurisdiction. That is founded on the fact that McCrea took the money as a trustee. The action for money he had received is in the nature of a bill in equity.” In Varet v. New York Insurance Co., 7 Paige, 560, a cargo upon which the defendant had written a policy was seized under the Berlin and Milan decrees and condemned. The plaintiff and defendant having adjusted the loss at $5,000, compensation to that amount was made by the Franch government, and paid over to the defendant. On bill filed to recover the. money from the defendant, it was objected that the complainant’s remedy was at law. Chancellor Walworth said: “The equitable action of assumpsit is now allowed in many cases of this kind where the remedy originally was in equity only. But the fact that a remedy now exists at law in such eases does not deprive this court of its ancient jurisdiction to grant relief here, or, in the language of an English chancellor [Lord Eldon], this court is not at liberty to give up its jurisdiction because courts of law have fallen in love with it.” Hubbard v. U. S. Mortgage Co., 14 Ill. App. 40; see also New York Insurance Co. v. Roulet, 34 Wend. 504. More might be said, but see 2 Beach on Trusts and Trustees; First Cong. Soc. v. Trustees, 40 Mass. (23 Pick.), 148; Harrison v. Rowan, 4 Wash. (C. C.), 202; Kemp v. Pryor, 7 Ves. 237; Irick v. Block, 17 N. J. Eq. 189; 1 Pom. Eq. § 377, and cases cited in note; Bisp. Eq. 56; Sweeny v. Williams, 36 N. J. Eq. 627, and numerous authorities cited; Myrick v. Jacks, 33 Ark. 429.
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Hughes, J.,
(after stating the facts.) The appellants contend that, having been employed to brake cars on the Arkansas Central, and knowing that its tracks were not ballasted or filled in between the ties, he must be held to have assumed the risk ordinarily incident to its employment. But the injury did not occur on the Arkansas Central Railroad, but on a switch or spur track of' the Iron Mountain Railway Company, which might reasonably have been supposed to be properly ballasted in its switch yards. The appellee had a right to rely upon this having been done, as it was a duty the master owed his servants. He was obliged to-furnish them a reasonably safe place in which to' exercise their employment. Little Rock, M. R. & T. R. Co. v. Leverett, 48 Ark. 333.
The evidence showed that it was the custom of railroads to-have such tracks ballasted; that brakemen do not anticipate that they will be unballasted. The company or receiver was liable for using an unballasted track on another road, if injury occurred by reason thereof. Little Rock & H. S. Ry. Co. v. Cagle, 53 Ark. 347. The law requires a railroad company-to furnish a reasonably safe track inside the switching limits where swfitching is required to be done. Lake Erie & W. R. Co. v. Morrissey, 177 Ill. 376; Illinois Central R. Co. v. Cozby, 174 Ill. 109; Little Rock & Memphis R. Co. v. Moseley, 56 Fed. Rep. 1009; Hollenbeck v. Missouri Pac. R. Co., 38 S. W. 723.
The appellee did not assume the risk of danger arising from plaintiffs failure to perform its duty. This was not in the contract of service. Little Rock, M. R. & T. R. Co. v. Leverett, 48 Ark. 333.
The question of plaintiff’s contributory negligence was for the jury, and was left to them by the instructions. We find no-reversible error in the instruction. The damages are not excessive.
The judgment is affirmed. | [
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Bunn, C. J.
This is a suit for damages occasioned by the death of the minor son of the plaintiff Mary Gabsky, while working in a coal mine of the appellant in Sebastian county, Arkansas, on the 28th day of January, 1899.
The complaint is as follows: “Now comes the plaintiff, Mary Gabsky, for herself, and Sophia Gabsky and Stephen Gabsky, minors, by Mary Gabsky, their next friend, and say:
“(1.) That they are resident? of Sebastian county, Arkansas, and the defendant is a corporation organized under the laws of Missouri, and. engaged in the business of mining coal in Arkansas at all the dates hereinafter mentioned. (2) That on or about the 1st day of January, 1899, the defendant willfully permitted one John Gabsky, a minor aged 11 years, to enter its coal mine No. 51, near Huntington, Arkansas, to work therein, and the said John Gabsky continued in said mine until the 28th day of January, 1899, when he was instantly killed in said mine by a large'rock falling upon him from the roof thereof. The said John Gabsky left surviving him, as his sole heirs and next of kin, the plaintiffs herein, Mary Gabsky, who was his mother, and Sophia Gabsky, a sister aged 8 years, and Stephen Gabsky, a brother aged 3 years. None of the plaintiffs have any property or means of support, other than the personal exertions of the plaintiff Mary Gabsky. (3) In consequence of the willful violation of law by the defendant, in permitting the said John Gabsky to enter its mine to work as aforesaid, and his resulting death, the plaintiffs have sustained direct damages in the sum of $2,000. Wherefore they pray judgment against the defendant for $2,000 and costs."
This complaint was filed August 24, 1899, and summons served the next day. The defendant answered on the 12th September, 1899; the first paragraph of its answer being a general demurrer to the complaint as not stating facts sufficient to constitute a cause of action. The second paragraph denies that any cause of action exists in the plaintiff against the defendant, if the death of John Gabsky occurred as alleged. The third paragraph avers a want of information as to certain averments in the complaint as to the matters pertaining personally to the plaintiffs and deceased, averring-the materiality of the same, and demanding strict proof. The defendant in this paragraph denies that it willfully permitted John Gabsky, a minor of the age of 11 years, to enter its coal mine No. 51, near Huntington, Arkansas, to work therein, and states the facts to be: That one Thomas Reskoski, a miner then in the employ of the defendant, and who lived or boarded with the plaintiff, Mary Gabsky, brought the said John Gabsky with him to the said mine No. 51, and asked permission of the “pit boss" thereof to allow bim to take the said John Gabsky into the mine to work for him, the said Reskoski, and the “pit boss” was assured by the said Reskoski and other friends of said John Gabsky that he was of the age of 15 years, and could read and write, and the physical appearance of the said John Gabsky would lead an ordinarily prudent and reasonable man to believe that he was over the age of 14 years, and, so believing and being so assured, the said “pit boss” permitted the said Gabsky to work in the mine for the said Reskoski, and the defendant is informed and believes, and so asserts and avers, that the death of said Gabsky was caused by the neglect and recklessness of the said Reskoski and said John Gabsky and other miners with whom said Gabsky was working, and not through any negligence or dereliction of duty upon the part of this defendant. The defendant states further that it was with the consent and approval of Mary Gabsky that said John Gabsky was permitted to work in said mine, and, if said John Gabsky was under the age of 14 years, said fact was known to his mother, the said Mary Gabsky, and said fact was unknown to this defendant; and, the physical appearance of said John Gabsky indicating that he was of the age when he could lawfully enter- said mine to work, the defendant did not willfully permit a minor under the prohibited age from working therein, and, the said mother so permitting the defendant to be imposed upon, and wrongfully permitting her said son to work in the mine (while) under the age prohibited by law, if such be a fact (and plaintiff has so alleged), it was the negligent act of said plaintiff, and not of this defendant, which caused the death of said John. That it was the duty of the parent of said John to refrain from allowing him to work in the mines under the age permitted by the statute, and the wrongful and knowing act of the parent of said John, and not the willful act of defendant, together with the negligence of said John and his fellow workers, was the cause of his death.
The evidence in the case substantially sustains the averments of the answer.
The demurrer of the defendant, contained in the first and second paragraphs of its answer, raises a question of law, — whether or not Mary Gabsky, for herself or next friend of her two surviving children, has a right of action against the defendant.
The complaint is manifestly founded upon the statute known as the Miners’ Act — nothing more, nothing less. The two sections which are material in the controversy are digested in Sandels & Hill's Digest as follows: “Section 5051. No person under the age of 14 years * * * shall be permitted to enter any mine to work therein. Section 5058. For any injury to persons or property occasioned by willful violation of this act, * * * a right of action shall accrue to the party injured for any direct damages sustained thereby.” The direct damages here referred to mean damages for injury occasioned by the fact of being permitted to work in the mines; and, the working in the mines under the prohibited age being shown, and to be willful in the legal sense, it is ordinarily conclusive upon the defendant, for the object of the act was to prohibit the working of children under 14 years of age in coal mines at all.
If it is thought that an action for damages for the death of a person, as in this ease, survives in the next of kin, it should be asserted by a complaint based upon our statute of survivorship, commonly known as Lord Campbell's Act. What should be shown in a case under that act, we leave for the plaintiffs to determine. But as the case was tried solely under the Miners' Act, and a complaint made in strict conformity thereto, and no provision is made in that act for a survivorship of the action, the demurrer set forth in the first and second paragraphs of the answer should have been sustained; and the judgment of the court is reversed, and the cause is remanded for a new trial, with privilege to the plaintiff to amend her complaint, if she so desires to do. | [
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Battle,-J.
.William Spears-was accused and convicted of larceny, committed ■ by feloniously -taking, stealing, and carrying away three-hogs,'the property of--John; Houston; and he appealed.
The evidence adduced at the trial showed that the three hogs alleged to have been stolen were the property of John F. Hamilton. The allegation in the indictment was that they belonged to John Houston. The ownership should have been proved as alleged. The variance is fatal. Blankenship v. State, 55 Ark. 244. In other respects the evidence of the defendant’s guilt, as it appears in the record before us, is weak and unsatisfactory.
Beversed and remanded for a new trial. | [
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Bunn, C. J.
On the 14th February, 1898, J. J. Bryan, as trustee for the use and benefit of the Bank of Black Bock, filed his complaint in equity to foreclose a deed of .trust executed by H. H. Hadley and wife, to secure a note executed by H. H. Hadley and John K. Oibson to said bank for the sum of $250, dated February 10, 1898, due and payable on the 10th May, 1898, with interest from date until paid at the rate of 10 per centum per annum. Among other things, it was alleged in the complaint: That on August 30, 1888, James M. Stout and George M. Caldwell, partners, recovered judgment against H. H. Hadley, E. C. Olney and M. G. Wilson for $369.50, and $11.50 costs, aggregating $381, upon which was paid subsequently and duly credited: December 18, $5; on May 9, 1891, $102.75; and on March 6, 1895, $50; leaving a balance on the 6th March, 1895, the sum of $-, bearing 10 per centum per annum interest. That on January 13, 1898, execution issued on said judgment, which was levied on the land of Hadley embraced in the deed of trust to the bank, and ran against the estate of Hadley. The last payment, to-wit: on the 6th March, 1895, made on said judgment, was made by Olney individually, and the following instrument of writing was given him by J. M. Stout, who, it appears, was the sole owner of the judgment, viz: "For and in consideration of the sum of $50 to me paid by John K. Gibson, for E. C. Olney, I have this day satisfied a judgment as far as the said E. C. Olney’s obligation thereby is concerned, which was obtained by Caldwell and Stout against H. H. Hadley, E. C. Olney and M. G. Wilson, in the Lawrence circuit court for its western district, aboiit the month of August, 1888, and which is the only judgment I own or control against said parties, intending hereby only to release the said Olney and not the said Hadley and Wilson from further obligation on said judgment, and accept the said $50 in full for his liability on the same. [Signed] J. M. Stout.” That the release of one of the defendants in judgment was a release to all, and that the said judgment was thereby satisfied in full, and as to all the parties defendant therein; and that the execution sále made thereunder of the 248 acres of land of Hadley (which was the same land as is embraced in the deed of trust) was and is null and void. On motion the said J. M. Stout was made a party defendant in the cause.
H. H. Hadley filed his answer and cross bill, and also subsequently his amended answer and cross bill, and alleged the same as to the release as did the plaintiff in his complaint. To this answer and cross bill Stout interposed his demurrer, as to the release of the judgment, and then answered the complaint to the same effect. The demurrer of Stout as to the amended answer and cross bill of Hadley was heard by the court on the 14th March, 1900, and upon consideration was sustained, the court holding that the release only went to the release of 01ne3r, and not to the release of Hadley and Wilson, and, consequently, that the judgment was not satisfied by the making of said payment of $50 by said Olney, and decreed that Stout might proceed to collect the two-thirds share of Hadley and Wilson, but that the release wás tantamount to a covenant not to sue as to the one-third share of Olney. To this ruling the defendant Hadley (refusing to plead over) excepted, his exceptions were noted of record, and he prayed and was granted an appeal, to this court.
On the same day the court proceeded to make its findings on the facts of the case, and render its decree condemning said land embraced in both the deed of trust and execution to be sold, and the proceeds, after payment of costs, to be divided between the plaintiff and defendant Stout, to be applied towards the satisfaction of the deed of trust note of the bank, and the execution of Hadley, adjudged as aforesaid.
The transcript in this cause was filed in the office of the clerk of this court on April 28, 1900, and the briefs of appellant Hadley were filed March 12, 1901, and of the appellees April 10, 1901. The transcript was lodged in this court April 28, 1900, and on September 2, 1901, defendant Hadley filed his petition in the court below for an order nunc pro tunc, so as to make the record show that he had been granted an appeal therein from the final decree. This petition appears to have been granted by the court, over the objection of the'plaintiff. The showing made in the petition does not appear to be sufficient for such an order, but the appeal has been considered nevertheless.
In Ids brief defendant Hadley contends that the trustee, Bryan, suing for the use and benefit of the bank, was not a proper party to the suit, as he had no real interest in it. This contention, how ever, appears'to have been made for the first time in this court, and we need not eonsicler it now. ■
The principal matter of - controversy is the release of Olney by J. M. Stout, the sole owner and ássignee of the judgment of Stout & Caldwell, and which we have copied in the statement of facts. We think the demurrer of Stout to the allegation of dedendant Hadley and plaintiff bank that this release of Olney was a release of all the defendants in judgment was properly sustained, as it expressed on its face the intention of only'releasing Olney, and operated only as a covenant not to sue him, and worked no injury to his co-defendants in judgment, since it had the effect of reducing the total amount thereof, and did not prevent contribution by Olney as to the remainder. The case of Pettigrew Machine Co. v. Harmon, 45 Ark. 291, is in point, and controls this question in the case.
Decree is affirmed. | [
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